R. DAYAL, J. ( 1 ) THIS appeal is directed against the judgment dated 14th September, 1984 of the learned Sessions Judge, Sikkim convicting the appellant Dhan Bahadur Tamang alias Laurey alias Ghoptey under Section 302 I. P. C. for causing the murder of Rinzing Sherpa on 3rd November, 1982 at about 7. 30 p. m. near the cowshed of the deceased at Selape tanke and sentencing him to rigorous imprisonment for life and also to pay a fine of Rs. 500/- and in default to pay fine, to suffer rigorous imprisonment for two years with the direction that if the fine was not paid, the sentence imprisonment in default of payment of fine would run concurrently with the sentence of imprisonment for life. ( 2 ) ACCUSED and the deceased Rinzing Sherpa used to reside at Selape Tanke. Both had cows and used to sell milk Prosecution case, as disclosed at the trial, is that on 3rd November, 1982 in the morning the old cowherd of the deceased left his services and he brought a new one in that evening. The new cowherd was asked to sleep in the cowshed. His younger brother Phurba Sherpa, P. W. 1, went at about 7. 30 p. m. towards the cowshed to give a blanket to the new cowherd and while going, be found the accused near the cow-shed. Seeing him, Phurba Sherpa called his younger brother shouting Kazi Kazi. Hearing his shouts, the elder brother Rinzing Sherpa, the deceased came. Then the accused pushed a spear on to the chest of Rinzing Sherpa. Phurba Sherpa pulled out the spear on being asked by Rinzing Sherpa to do so and threw the spear on the spot and shouted Manchi Mareyo, Manchi Mareyo. Then the accused fled away from the place of occurrence downwards the Press. Hearing the shouts, several persons came up on the scene. The first one to arrive was his aunt Pemba Sharpani, P. W. 2. Other persons, who came to the place of occurrence are his sister Lakpa Dema. P. W. 4, and mother, Yangshe Sberpaiji, P. W. 5. Thereafter Phurba Sherpa went to the India Press to ring up the police and informed the police about the incident. Than, the injured was taken to the S. T. N. M. hospital. There, Dr. C. K. Subba, P. W. 12, examined the injured and found the injured under shock. P. W. 4, and mother, Yangshe Sberpaiji, P. W. 5. Thereafter Phurba Sherpa went to the India Press to ring up the police and informed the police about the incident. Than, the injured was taken to the S. T. N. M. hospital. There, Dr. C. K. Subba, P. W. 12, examined the injured and found the injured under shock. The injured was found to have blood stains all over his body and be was taken to the Operation Theatre. There, his treatment started immediately. Since the doctor found the wounds to be serious, blood transfusion was given. The doctor asked the victim in the presence of the Superintendent of the Hospital, Dr. H. Leacha, P. W. 13 as to how he had got the injuries. The injured told him at about 9. 45 p. m. that he had been stabbed by one Ghoptey Tamag at about 7 p. m. on that very date. That statement, Ext. P-3, was recorded by Dr. C. K. Subba in his own handwriting and was also signed by him. According to the evidence of the Doctor, the injured was in a fit state to make the statement. The next morning at about 2. 45 a. m. the injured died. Post Mortem examination was conducted by Dr. C. K. Subba at about 10. 15 a. m. vide Ext. P-S. According to the evidence of the doctor, following injuries were found on the body of the deceased: 1 Penetrating incised wound on left fourth intercostal space slightly outside midclavicular line 21/2 inch X 1/2 inch lung deep. 2. Similar wound on the back at the level of T-7 slightly on the left of midline. ( 3 ) THE left third and fourth ribs along midclavicular line had been completely sliced up. Incised wound over the corresponding part of the pleura. There was a lacerated wound along the lower border of upper and adjoining upper border of the lower lobe. Heart was intact, empty. The left pleural space contained huge amount of fluid blood and partly clotted blood. The doctor opined that the death was caused due to shock caused by profused intra thoracic haemorrhage and the injuries could be caused by a weapon like the spear, Ext. P. 1. 3. Heart was intact, empty. The left pleural space contained huge amount of fluid blood and partly clotted blood. The doctor opined that the death was caused due to shock caused by profused intra thoracic haemorrhage and the injuries could be caused by a weapon like the spear, Ext. P. 1. 3. While the injured was being taken to the hospital, Sub-Inspector of Police, K. B. Gurung P. W. 1, who was attached to the Sadar Police Station, Gangtok and who had received the telephonic message from Phurba Sherpa from Government of India Press, met him on the way. He gave evidence to the effect that he bad entered this information in the G. D. and had informed the O. C. /s. I. , R. B. Pradnan about it before rushing to the spot. He stated that on enquiry, the victim told him that he had been assaulted by one Laurey Tamang, accused. He further stated that he sent the injured to the hospital and went in search of Laurey Tamang whom he did not find at his residence and so he posted some constables there. Head constable Deo Kumar Pradhan, P. W. 9, and constable Loden Tshering, P. W. 10, have given evidence that they had gone to effect the arrest of the accused on 4th November but in the day he could not be found and so they kept a watch on the house of the accused and waited for him in ambush and then the same night when the accused came, the latter tried to run away seeing them, but they overpowered him and effected his arrest. ( 4 ) FROM the hospital, Phurba Sherapa, P. W. 1 came to the police station and gave a written report, Ex-P. 1. On that basis formal FIR Ex. P-6 was drawn up. Investigation was conducted by the Inspector R. B. Pradhan P. W. 14 who was at that time posted at Sadar Police Station, Gangtok. He visited the same day the Gangtok hospital and found the condition of the injured serious. He also visited the spot at about 9. 45 p. m. and seized from the spot one iron spear Ext. P-i, with blood stains vide seizure Memo Ext. P 2, and bloodstained earth vide seizure Memo Ext. P-7. On 4th November, he seized the blood stained wearing apparels of the deceased in the hospital vide Seizure Memo Ext. He also visited the spot at about 9. 45 p. m. and seized from the spot one iron spear Ext. P-i, with blood stains vide seizure Memo Ext. P 2, and bloodstained earth vide seizure Memo Ext. P-7. On 4th November, he seized the blood stained wearing apparels of the deceased in the hospital vide Seizure Memo Ext. P. 8. He forwarded all these things for forensic and chemical examination in Calcutta. He also held inquest on the body of the victim and prepared the inquest report, which is Ext. P-9. After completing the investigation, he submitted charge sheet against the accused under Section 302 I. P. C. ( 5 ) THE learned Sessions Judge believed the oral evidence and found the dying declaration by Dr. C. K. Subba trustworthy and reliable. He repelled the argument advanced on behalf of the accused that the evidence was not trust worthy since it consisted only of the evidence of close relatives of the deceased. He agreed that there was enmity of the accused with the deceaseds family but did not find the evidence tainted for that reason. It was contended on behalf of the accused that the dying declaration is not reliable for the reason that it gives the name of the killer as Ghoptey Tamang and this was not his name. According to the version of the accused, he is not known as Ghoptey Tamang and in the application dated 6-11-82, Ext. 0. 3, seeking remand of the accused the police had given his name as Dhan Bahadur Tamang alias Laurey and not Ghoptey. Same arguments have been repeated by the learned counsel for the accused in appeal. ( 6 ) IT is well-settled that direct evidence of the witnesses is not to be counted but must be treated and weighed looking into tile surrounding circumstances as well as probabilities. Amongst other factors, regard has to be given to the fact how the evidence of a witness stands the test of cross- examination. Relationship of prosecution witnesses to the murdered man is no ground for rejecting their evidence if their testimony is reliable in the sense that they could be expected to be near about the place of occurrence and could have witnessed the incident. Relationship of prosecution witnesses to the murdered man is no ground for rejecting their evidence if their testimony is reliable in the sense that they could be expected to be near about the place of occurrence and could have witnessed the incident. The mere fact that the witnesses are relatives is no ground to disbelieve them if the question in issue could be proved by their testimony, unless it is proved that the witnesses had a motive to spare the real assailant and falsely involve another person. Ordinarily a close relative would be the last person to screen the real culprit by involving the innocent. While such witnesses may not be absolutely immune from the tendency of roping in some innocent persons alongwith the guilty, ordinarily they do not fail to denounce the real culprit. ( 7 ) IN the present case, there is only one eye witness, namely, Phurba Sherpa P. W. 1 the younger brother of the deceased. He gave evidence that on 3rd November, 1982 at about 7. 30 or 8 p. m. , a new cow-herd came to his residence who was asked to sleep in the cow shed situated nearby and he himself went to give a blanket to him. While he was going to the cow-shed, he noticed the accused where upon he called his younger brother by shouting Kazi. . . Kazit as a consequence of which came the elder brother Rinzing Sherpa who was then stabbed by the accused, whereupon he shouted Manche Mareyo, Manche Mareyo. Then other witnesses came and the accused ran away. No other witness saw the deceased being stabbed After the shouting by Phurba Sherpa, the first witness to arrive lot the scene of occurrence was Pemba Sharpani. P. W. 2 the aunt of the deceased. She gave evidence that after hearing the shouts by Phurba Sherpa she came to the scene of occurrence and saw the victim lying down with his hands on his chest. Further, she deposed that the victim told her that he had been stabbed by the accused with a spear. She also testified have seen the accused running down from the scene of occurrence. Further, she deposed that the victim told her that he had been stabbed by the accused with a spear. She also testified have seen the accused running down from the scene of occurrence. The other witness Lakpa Dema, P. W.-4 the sister, and Yangshe Sherpani, P. W.-5, the mother of the deceased, also testified that after the shouting made by Phurba Sherpa they came to the scene where they saw the victim lying and the victim told them that he had been assaulted by the accused with a spear. Then there is the evidence of K. B. Gurung, P. W.-11 the Sub-Inspector of Police who gave evidence that on receiving the telephonic message from Phurba Sherpa from Government of India Press and after entering the information in G. D. and informing about the matter to the O. C. /s. I. R. B. Pradhan, he rushed to the spot and while going, on the way ,he found the victim being brought to the hospital and then the victim told him that he had been assaulted by the accused. Thus, the only eye witness is Phurba Sherpa and other witnesses have proved the oral dying declaration and the surrounding circumstances. Besides, there is a written dying declaration written in the hand of Dr. C. K. Subha of S. T. N. M. Hospital where the victim had been brought. According to the evidence of Dr. Subba this dying declaration was mad by the victim in the presence of Dr. Lepcha, Superintendent of the hospital, that he has been stabbed by one Ghoptey Tamana. Dr. Subba gave evidence that the victim was physically fit to make the aforesaid statement. His statement was corroborated by Dr. H. Lepeha. P. W. 13 who also testified that at time of giving dying declaration the victim was in a position to talk. ( 8 ) AS regards dying declaration, learned counsel for the accused referred to Thurukanni Pompiah v. State of Mysore1 where it was observed that a dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. It was pointed out that if the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceaseds version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. One of the arguments advanced on behalf of the accused in support of his case that the dying declaration is not trustworthy is that victim was not in a position to make the statement. In this connection, a reference has been made to the medical report, Ext. D-1, which was prepared by Dr. C. K. Subba, P. W. 12, at the time of the admission of the victim in the Emergency Department recording inter alia that the patient was semi-conscious. But merely for that reason it is not made out that the accused was not in a fit state to make the statement. That the victim was semi-conscious at the time of admission in the Emergency Department, is quite vague and no attempt was made in the cross-examination of Dr. Subba to bring on record that the semiconscious state was such as to render him unfit to make a dying declaration. The doctor is the best person to opine about the fitness of the deceased to make the statement. Dr. Subba and Dr. H. Lepcha are disinterested and respectable witnesses and there is absolutely no reason to cast any doubt on their testimony. In fact, under the English law a dying declaration, to be admissible in evidence, should be made when the victim was in hopeless expectation of imminent death. The principle underlying this law is that admissibility should rest on the common knowledge that a sense of impending death produces in a mans mind the same feeling as that of a conscientious and virtuous man under oath. The principle underlying this law is that admissibility should rest on the common knowledge that a sense of impending death produces in a mans mind the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity when the person is at the point of death, when every hope of this world is gone and every motive to falsehood is silenced. It is no doubt true that such a limitation is not present in the Indian law and it is not required that the maker should be in the expectation of imminent death but nevertheless this is a relevant factor in considering the weight to be given to such evidence. Great weight must naturally and necessarily attach to a dying declaration recorded very shortly after the occurrence. In the instant case, the dying declaration recorded by Dr. C. K. Subba was made within about two hours of the incident before that, the deceased bad made similar declaration to the other witnesses Phurba Sherpa, P. W. 1, Pemba Sherpani, P. W. 2, Lakpa Doma, P. W. 4, Yangshe Sherpani, P. W. 5 and K. B. Gurung, P. W. 11 immediately after the incident. There could absolutely be no motive attributed to Dr. C. K. Subba and Dr. H. Lepcha to record a false dying declaration or to record it if the victim could not be in a fit state to make it. ( 9 ) ANOTHER challenge against the dying declaration made is that whereas the dying declaration recorded the name Ghoptey Tamang, the accused did not, according to his case, bear that name. It is no doubt true that in the F. I. R. the name of the accused given was Dhan Bahadur Tamang alias Laurey Temang. It is also true that while seeking remand of the accused vide application dated 6th November, 82, Ext. 0-3, the accused was similarly named by the police. But merely because in certain documents the accused was not named as Ghoptey Tamang also, it does not follow that he did not bear that name or that the dying declaration recorded by Dr. Subba did not relate to him. 0-3, the accused was similarly named by the police. But merely because in certain documents the accused was not named as Ghoptey Tamang also, it does not follow that he did not bear that name or that the dying declaration recorded by Dr. Subba did not relate to him. The witness Phurba Sherpa P. W. 1, Pemba Sherpani P. W. 2, Lakpa Doma P. W. 4 and Yangshe Sherpani P. W. 5 have all deposed that the accused was known by the Dame of Ghoptey Tamang also. Contrary to this, there is the evidence only of one witness, namely, Dhan Bahadur Tamang P. W. 7, who is the son-in-law of the accused and who was declared hostile and who deposed that the accused was known only as Dhan Bahadur Tamang and Laurey and not as Ghoptey Tamang. The learned counsel for the accused contended that since P. W. 7 was a prosecution witness, his evidence should be believed. It was held in Keshoram Bora v. State of Assam2 that the version of a witness declared hostile cannot be treated as the version of the prosecution itself. The question whether the accused was known by the name of Ghoptey Tamang as well, is one required to be determined in the same manner as any other question. It is no doubt true that on behalf of the prosecution, evidence of some independent witnesses could be brought in, but merely because such evidence was not produced that evidence of the relatives of the deceased does not become untrustworthy. While assessing the worth of the evidence on record on this question, one important factor to bear in mind would be that the accused could not make even a faint attempt to show that any other person in the locality was known as Ghoptey Tamang or the dying declaration could possibly relate to some other person. We do not see any reason to doubt the evidence on record that the accused was known as Ghoptey Tamang as well. We are therefore, clearly of the view that the dying declaration, recorded by Dr. C. K. Subba, relates to the accused and is fully reliable and could be the sole basis for convicting the accused. We do not see any reason to doubt the evidence on record that the accused was known as Ghoptey Tamang as well. We are therefore, clearly of the view that the dying declaration, recorded by Dr. C. K. Subba, relates to the accused and is fully reliable and could be the sole basis for convicting the accused. ( 10 ) WE also do not see any reason for having any doubt on the truthfulness of the testimony of the eye witness Phurba Sherpa corroborated by the witnesses Pemba Sherpani P. W. 2, Lakpa Doma P. W. 4 and Yangshe Sherpani P. W. 5 in some material particulars. Phurba Sherpa being the younger brother of the victim could not be interested in shielding the real culprit and implicating the accused. It is true that there is some evidence of enmity between the accused on the one hand and the members of the family of the victim on the ether. Yangshe Sherpani, P W. 5, the mother of the victim deposed in the very examination-in-chief on 1st September, 1983 that four-five years prior to the date of her evidence the accused had threatened her family, whereupon the matter was reported to the police. She clearly stated that the accused had been inimical with her family for a few years, Nima Sherpa, P. W. 6, who is the father of the victim, deposed that formerly the accused used to work under him but afterwards he became inimical to his family and that in the year 1978 his family had a quarrel with the accused when the accused thereatened his family with an axe and then a report was lodged with the police. After stating so much in the examination-in- chief, in the cross-examination he admitted that he as well as the accused had cows and used to sell milk. He also admitted that the accused had been cultivating forest land for some years and before that his family used to cut grass from that land. But he denied the suggestion that after tire accused went to that land, his family wanted to oust him or that his family felt difficulty in cutting grass. He categorically asserted that his family could cut grass from the forest land even thereafter. He denied the suggestion that in the year 1978 the police report made against the accused was false. He categorically asserted that his family could cut grass from the forest land even thereafter. He denied the suggestion that in the year 1978 the police report made against the accused was false. From this evidence, it is clear that the accused was on inimical terms with the victims family. But merely because there was enmity between the deceaseds family and the accused and the witness happened to be closely related to the deceased, oral testimony cannot be diccardd nn that accniint Th ciinrm Cniirt nhcrvd in flrv cinnh v ci-i- of Piinih3 (6) There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal Courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victims hostility to his assistant that naturally makes it necessary for the criminal Courts to examine the evidence given by such witness very carefully and scrutinise an the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance-witnesses or whether they were really present on the scene of the offence. If the offence has taken place as in the present case, in front of the house of the victim the fact that on hearing his shouts, his relations rushed out of the house cannot be ruled out as being improbable and so, the presence of the three eye-witnesses cannot be properly characterised as unlikely. If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness then his evidence has to be examined from the point of view or probabilities and the account given by him as to the assault has to be carefully scrutinised. If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness then his evidence has to be examined from the point of view or probabilities and the account given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family, though he was not concerned wit the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may acid other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. The evidence on record, read in the light of enmity factor fails to create any doubt that the accused was falsely implicated, The witnesses were the most probable persons to be present on the spot at the time of the incident. This is not a case where an enemy might have been implicated with some other person who could be the real culprit. This is a case where there is only one accused and there does not appear to be any reason why the close relatives of the victim should have tried to shield the real culprit and implicate the accused only because of some enmity. Rather enmity provides the probable motive for the murder. ( 11 ) A doubt was sought to be created by making an attempt to make it appear that the old cowherd who had left the service of the victims household in the morning on the day of the incident, that is, 3rd November could he the murderer. Rather enmity provides the probable motive for the murder. ( 11 ) A doubt was sought to be created by making an attempt to make it appear that the old cowherd who had left the service of the victims household in the morning on the day of the incident, that is, 3rd November could he the murderer. A suggestion was given to Phurba Sherpa, P. W. 1, in the cross-examination that his family had assaulted the old cowherd on the previous night and that dues payable to him had not been paid. But these suggestions were denied by him and the denial does not appear to be untrue. ( 12 ) AN attempt was also made, to show that, Phurba Sherpa could himself be the murderer. A suggestion was put to him that he had an eye on the assets of the deceased, which suggestion was denied by him. He, however, admitted that the wife and children of the victim had left after the incident, for Kathmandu, where they were still residing, Further he admitted that the wife of the victim had left for Kathmandu to work there. But from this, it does not follow that she was driven out and she had no other place except to go to Kathmandu. He also stated that the further of the wife of the victim was at Naya Bazar, Gangtok had the only reason for the wife having gone to Kathmandu been the alleged mal-treatment or a feeling of disgust at the conduct of P. W. 1 Phurba Sherpa, she could have gone to Naya Bazar itself. It would thus appear that by making these suggestions only a desperate attempt was made to escape from the charge. ( 13 ) THE learned counsel for the appellant also contended that the night of the incident was a dark night and the a eye witness, namely Phurba Sherpa, could not have been the accused stabbing the victim and Pemba Sherpani, P. W. 2 could not have seen the accused running. Phurba Sherpa, P. W. 1 stated in his cross-examination In the night we had torch lights with us. Pemba Sherpani stated that she was carrying a lamp (Dibree) The evidence of these witnesses is very probable when viewed in the light of the prosecution case that Phurba Sherpa was going to the cow-shed to give a blanket to the new cowherd. Pemba Sherpani stated that she was carrying a lamp (Dibree) The evidence of these witnesses is very probable when viewed in the light of the prosecution case that Phurba Sherpa was going to the cow-shed to give a blanket to the new cowherd. Evidently, he would not have gone without having anything for light. Similarly, after hearing the shouts of Phurba Sherpa it was very probable that Pemba Sherpani would be carrying the Dibree. The learned counsel for the appellant sought the aid of State of UP. v. Han Prasad4 where a murder had been committed on a dark night. The allegation of the prosecution were that the accused had a motive to murder the complainant but mistook the deceased, a family priest of the accused, for the complainant and murdered him and that the witnesses identified the accused in the light of a lantern burning near the place of occurrence. Since it was the case of the prosecution itself that the accused had committed the mistake in identifying the person, who was to be murdered, the existence of lantern was doubtful and it was pointed out that it been there it was highly unlikely that the accused would commit a mistake of such a grave nature. That was a case where murder had been committed at the house of the complainant while the-complainant along with others was sleeping. In the present case, there is no question of any mistake of identity. The complainants side was not sleeping. Phurba Sherpa. P. W. 1, was going to the cow-shed. Naturally he must have arranged for light and, therefore, his evidence is probable. The authority cited is of no help to the accused. ( 14 ) ANOTHER contention raised on behalf of the accused is that the new cow-herd, who could be an independent witness, was not produced by the prosecution. But there is nothing on record to show that he had witnessed the incident. Phurba Sherpa, P. W. 1, deposed that at the time of the incident, the new cow-herd was in the cow-shed it is true that R. B. Pradhan, Inspector, who investigated the case stated that the new cow-herd had been arrested on suspicion and was kept in detention for 24 hours. Phurba Sherpa, P. W. 1, deposed that at the time of the incident, the new cow-herd was in the cow-shed it is true that R. B. Pradhan, Inspector, who investigated the case stated that the new cow-herd had been arrested on suspicion and was kept in detention for 24 hours. But merely because he was arrested or he was in the cow-shed at the time of the incident his evidence was not necessary for the unfolding of the prosecution case and, therefore, failure of the prosecution to produce this person as a witness fails to produce any doubt in the truthfulness of the prosecution story. ( 15 ) IT was also contended on behalf of the appellant that prior to the written report ext. P-i lodged by Phurba Sherpa, P. W. 1 on the basis of which formal F. I. R. Ext. P-6 was registered, a telephonic message had been sent by the said Sherpa from India Press at 8. 25 p. m. on the day of the incident that is, 3rd November, which was entered in General Diary of this Police Station at No. 114 and it is this General Diary Report which should have been treated as F. I. R. , being the first report received. It was not disputed at the time of arguments that this G. D. Report Ext. P-b should have been treated as F. I. R This stated that Phurba, Wangdi Sherpa had reported from India Press that the victim Rinzing Sherpa had been stabbed by one Laurey Tamang above India Press that evening It is true that this GD Report, Ext. p. 10, does not give details about the circumstances in which the crime was committed. Yet it gives the name of the accused as the stabber. The place of occurrence is also given. The time is given as the evening. Thus essential details and given. It is not known at what time exactly formal F. I. R. was registered since the till of the report given in the formal F. I. R. is the same as the time given in the G. D. Report, Ext. p. 10, that is, 8. 25 p. m. R. B. Pradhan stated in his cross-examination that the F. I. R. was registered on 4th November, 1982 in the midnight. p. 10, that is, 8. 25 p. m. R. B. Pradhan stated in his cross-examination that the F. I. R. was registered on 4th November, 1982 in the midnight. The importance of the F. I. R. lies in the fact that it gives the first version soon after the occurrence when the memory of the informant is fresh and the likelihood of opportunity for fabrication is meagre. The Courts have viewed delay in giving F. I. R. with suspicion since the delay often results in embellishment and a report lodged immediately after the occurrence has greater chance of being true. However, such delay cannot by itself be held to be a reason for rejecting the evidence, which is otherwise fully entitled to credit. It is only a circumstance to put the Court on guard. The value of the F. I. R. depends upon the circumstances of each case including the nature of the crime the position, of the informant and the opportunity be bad for witnessing the whole or part of the commission of the crime. The F. I. R. is not a substantive or primary piece of evidence. It can be used only to corroborate or contradict the evidence of the informant. The fact that the victim was lying on the spot after being stabbed, was a circumstance which could have been the reason for not giving all the details of the commission of the crime by the accused on telephone. After all, there was the immediate necessity for rushing the injured to the hospital. That the eye witness himself telephoned the police and State of Orissa gave the name of the accused and after making the victim reach the hospital, went to the Police Station to lodge a detailed written report, which report corroborates the prosecution version, as given by him in his evidence in Court, all go to show that it would not be reasonable to entertain any doubt about the evidence of Phurba Sherpa, only for lack of details in the telephonic message as to the circumstances of the commission of the crime and so the fact that written report has been treated as the F. I. R. and not the telephonic message given earlier, recorded as G. D. No. 114, is of little consequence. ( 16 ) IT was not disputed at the time of argument and the learned Sessions Judge was right in holding that the injuries found on the person of the victim could be caused by a weapon like the spear material Ext. p. I which was found on the spot within a few hours of the incident and the injuries show that the accused had the intention to cause the death of the victim. No arguments were advanced on the point of sentence. ( 17 ) AFTER giving the matter our careful consideration, we are clearly of the view that the charge of murder has been brought home to the accused and that the learned Sessions Judge was right in convicting him under Section 302 I. P. C. and in sentencing him as said above. We, accordingly, dismiss the appeal, uphold the decision of the learned Sessions Judge and maintain the sentences imposed by him. The appellant is on bail. His Bail Bonds are cancelled. He be taken into custody to serve out the sentences awarded to him. Appeal dismissed. --- *** --- .