ADITYA KUMAR TRIVEDI, J.

1. Initially Ram Pravesh Kahar and Ten Narayan Kahar, on account of having been convicted and sentenced filed instant appeal. During course of pendency of instant appeal Ram Pravesh Kahar died whereupon, after procuring report from the Superintendent of Police, Bhojpur at Arrah vide order dated 26.09.2018 this appeal has been found to have abated against him whereupon proceeded against sole appellant Tej Narayan Singh who has been found guilty for an offence punishable under Section 304/34 of the IPC and sentenced to undergo R.I. for seven years vide judgment of conviction and order of sentence dated 29.04.2003 passed by Additional Sessions Judge-cum-Presiding Officer, Vth, Fast Track Court, Bhojpur at Arrah in connection with Sessions Trial No.95/1993.

2. Akhilesh Kumar Singh (PW.4) gave his fardbeyan on 13.09.1992 at about 11:45 Am at the Malti Hospital, Arrah Bed No.101, where his father Sheo Balak sah was admitted for treatment and during course thereof, succumbed to his injuries with an allegation that on 11.09.1992 while his father Sheo Balak Sah had blocked the channel for irrigating his field, Ram Pravesh Kahar and Tej Narayan Kahar came near his father having armed with lathi. At that very time, he was at a distance of one bigha engaged in another field. Both the accused persons just after coming near his father began to abuse and then, gave indiscriminate lathi blow. They were saying that their field will not be irrigated only his field (father) is to be irrigated. He after seeing assault over his father rushed till then, his father became unconscious and fell down. At that very time it was 06:30. There was fracture over head of his father and blood was oozing out. Any how he took his father to his house and then, he along with his brother Arvind Kumar Gupta and co-villager Kishun Ram and Bishun Ram took his father to Sonebarsa and then, on 12.09.1992 they carried to Malti Hospital where, during course of treatment his father died. It has further been disclosed that at an initial stage they were not inclined to register a case and so, no information was given to anywhere. It has also been disclosed that they have got no grievances against the accused since before. Only for the irrigation, his father has been assaulted by the accused persons.

3. After registration of Angian Bazar P.S. Case No.46/1992 investigation was taken up and after concluding the same, charge sheet has been submitted facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.

4. Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, nothing has been adduced in defence.

5. In order to substantiate its case altogether five Pws have been examined on behalf of prosecution who are PW.1-Dr. Hari Narayan Pandey, PW.2-Vijay Kumar Sah, PW.3-Hira Devi, PW.4- Akhilesh Sah, PW.5-Arbind Kumar Gupta as well as has also exhibited Ext.1-the postmortem report, Ext.2-Signature of the informant over fardbeyan. As stated above, nothing has been adduced on behalf of defence.

6. While assailing the judgment of conviction and sentence, it has been submitted at the end of learned counsel for the appellant that I.O. has not been examined. On account of non-examination of the I.O. the interest of the appellant is found highly prejudiced in the background of the fact that (a) had there been examination of the I.O., the appellant would have been in a position to cross-examine him over presence/non-presence of independent witness, (b) the actual place of occurrence as, there happens to be deflection of the prosecution version during course of trial from the initial version, (c) what was reason for getting only family members cited as a witness, (d) with regard to finding having at his end during course of inspection of the P.O., (e) whether I.O. had seized relevant prescription issued by treating doctor and so,