ADITYA KUMAR TRIVEDI, J.:–Cr. Appeal (DB) No.635 of 2014 wherein Bikram Jha happens to be the appellant while Cr. Appeal (DB) No.726 of 2014 wherein Pashupati Nath Jha @ Sona Babu happens to be the appellant commonly originate against the judgment of conviction dated 24.06.2014 and sentence dated 25.06.2014 passed by Additional Sessions Judge, 2nd, Madhubani in Sessions Trial No.57 of 2012 / 78 of 2012 arising out of Pandaul P.S. Case No.130 of 2011 convicting both the appellants named above for an offence punishable under Section 323, 302/149 of the IPC and directed each of them to undergo R.I. for life as well as fined of Rs.10,000/- in default thereof, to undergo S.I. for three months as well as R.I. for one year under each head respectively.

2. Informant, Satya Narayan Thakur (PW-3) gave his fardbeyan on 18-05-2011 before ASI of Beta O.P., Darbhanga after death of his father Mahendra Sharma who was undergoing treatment on account of injuries sustained by him at DMCH which was inflicted on 07-05-2011 and for which the narration goes as follows.

3. On 07-05-2011 at about 06:00 AM he came over road adjacent to his Darwaja and found accumulation of rain water. In order to drain out, while he was making the drain, his neighbour Pashupati, Deoti, Gautam, Baidhnath, Vikram, Sabitri came and began to abuse. On his protest, they began to assault over which he raised alarm attracting his father who was assaulted with lathi by Pashupati over his head causing injury thereupon. Blood oozen out therefrom. Subsequent assault was made over stomach by Pashupati. His father fell down and then thereafter was taken to Madhubani Hospital from where he was referred to DMCH and during course of treatment he died.

4. The aforesaid fardbeyan was transmitted to Pandaul P.S. over which Pandaul P.S. Case No.130 of 2011 was registered thereupon under Section 341, 302, 323, 504, 34 IPC whereupon investigation commenced and after concluding the same, charge sheet was submitted against all the accused however, on account of absence of others, the proceeding spelt and proceeded only against these two appellants after cognizance and met with ultimate result, the subject matter of instant appeal.

5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of complete denial. However, neither any DW nor any kind of document has been exhibited on behalf of appellants.

6. Learned counsel for the appellants while assailing the judgment of conviction and sentence has submitted that the finding recorded by the learned lower court is cryptic, perverse, vexatious on account of non-application of judicious mind. To support the same, it has been submitted that at a very first glance of the judgment impugned it gives a clear cut impression of mechanical approach of the learned lower court recording finding of guilt as well as sentence, as deflected from basis principle of criminal jurisprudence where under innocence of accused is the elementary principle. It has also been submitted that it is the prosecution who has to prove its case, and as per evidence whatever been adduced by the prosecution, it is abundantly clear that prosecution has miserably failed to prove the same. To illustrate the same, it has been submitted that in spite of non-examination of the doctor who had conducted postmortem examination, and having it proved by a formal witness, the learned lower court based its finding which legally could not have been discarding the postmortem report, on account of its inadminisbility, the cause of death, as disclosed and accepted by the learned lower court happens to be in utter violation of law.

7. It has also been submitted that delay in recording fardbeyan has not properly been explained. In criminal case, the delay smacks foul smell and on account thereof, the whole prosecution case became doubtful apart from the fact that on account of non-examination of Investigating Officer, appellants are

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