N. K. BHATTACHARYYA, J. ( 1 ) BY this appeal the accused Ananda. Manna has challenged his conviction under Section 302 I. P. C. and sentence of life imprisonment and to pay fine of Rs. 10,000 only, in default, to suffer Rigorous Imprisonment for 2 year, passed on 18-2-94, in Sessions Trial No. 1 (3) of 1993, by the 2nd Additional Sessions Judge, Alipore, 24-Parganas (South ). ( 2 ) THE background of the prosecution case is that on 18-9-90, at 1. 45 hours one Somnath Manna lodged a complaint in Usthi Police Station within the District of 24-Parganas (s) under Section 302 I. P. C. which was recorded by Sub-Inspector of Police, Dilip Kumar Ghosh, (P. W. 10) the then O. C. of the Usthi P. S. It was read over and explained to the said Somnath Manna and Somnath Manna put his signature on the same. The formal part of the F. I. R. were also filled up by the said sub-Inspector of Police, Sri Dilip Kumar Ghosh and he started Usthi P. S. Case No. 107 dated 17-9-92, and endorsed the investigation of the case in his favour. ( 3 ) THE said Somnath Manna in his F. I. R. Ext. 1/1 alleged that on 17-9-92 at 11 p. m. while he was sitting on a bench in front of tea shop at Sangrampur Bazar, his father Bijon Manna, aged about 55 years was coming through the Sangrampur Mandir Bazar Road after seeing the Biswakarma Thakur in the Pandel located at a short distance from the shop of Somnath Manna. As Bijon Manna came in front of the stationery shop of Liaquat Gayen, then the accused Ananda Manna coming out from a Gali got hold of the hand of Bijon Manna and assaulted him on the back of his neck with a sword which Ananda had in his hand then. Bijan shouted "babago" and had fallen down on the road and Ananda fled through that road straight with the sword in his right hand. Somnath ran to his father and some people, who were standing nearby, also come running but then Bijon was dead by then. Somnath noticed cut injury on the back of the neck of Bijon from which he was profusely bleeding on the road. Some people ran after Ananda but could not get hold of him. Somnath ran to his father and some people, who were standing nearby, also come running but then Bijon was dead by then. Somnath noticed cut injury on the back of the neck of Bijon from which he was profusely bleeding on the road. Some people ran after Ananda but could not get hold of him. ( 4 ) THE further case of the prosecution is that Bijon had a Pan-Biri shop at Baruipur which Ananda wanted to purchase from Bijon at a price of Rs. 6,000 and advanced Rs. 3,000/- to Bijon keeping the balance of Rs. 3,000/ -. Ananda demanded return of Rs. 3,000 from Bijon and Bijon bade for time. ( 5 ) SOMETIME prior to the incident, there was a quarrel between them and at that time Ananda threatened Bijon to teach him a lesson. 5a. After taking investigation of the Case P. W. 10, Dilip Kumar Ghosh came to Sangrampur Bazar and held inquest over the dead body of Bijon Manna in present of Gopal Bar, P. W. 2 and Abu Bakkar Halder, P. W. 8. Abu Bakkar Halder signed on the inquest report Ext. 3 and seized the blood from the P. C. ( 6 ) HE then searched for the accused and examined some witnesses. The blood was seized under a seizure list prepared and signed by him (Ext. 2/1) which was signed by P. W. 8 (Ext. 2 ). He also seized the blood stained Mud (Material Ext. I) ( 7 ) ON 26-9-90, he arrested the accused Ananada Manna and produced him before the Court of the Magistrate, Diamond Harbour. He sent the dead body of Bijan to Diamond Harbour Police Morque for P. M. examination. ( 8 ) P. W. 5, Shri Baidya Nath Mukherjee, an Assistant Sub-Inspector of Police then attached to Kulti P. S. as a constable bearing No. 239, took the dead body of Bijon from Sangrampur Bazar on 18-9-90 to Diamond Harbour Sub-Divisional Hospital under the direction of the then O. C. and identified the dead body to the doctor. ( 9 ) P. W. 10 on transfer made over the charge of investigation to his successor (P. W. 11) on 5-12-90. ( 10 ) P. W. 11, Abdul Haque, Sub-Inspector of Police was attached to Usthi P. S. and he received the case diary from Sub-Inspector, D. K. Ghosh. ( 9 ) P. W. 10 on transfer made over the charge of investigation to his successor (P. W. 11) on 5-12-90. ( 10 ) P. W. 11, Abdul Haque, Sub-Inspector of Police was attached to Usthi P. S. and he received the case diary from Sub-Inspector, D. K. Ghosh. He collected the postmortem report from the Sub-Divisional Hospital, Diamond Harbour then he submitted the charge-sheet. Charge was framed against the accused Ananda Manna under Section 302 I. P. C. for murdering the Bijon Manna and Sessions Trial No. 1 (3) of 1993, started in the Court of the learned Additional Sessions Judge, Alipore. ( 11 ) ANANDA Manna, the accused suffered conviction under Section 302 I. P. C. and sentence of life imprisonment and to pay fine of Rs. 10,000/-, in default, to suffer Rigorous Imprisonment for another 2 years. ( 12 ) PROSECUTION in support of its case examined 11 witnesses of whom P. W. 10, Dilip Kumar Ghosh was the I. O. and P. W. 11, Sub-Inspector Abdul Haque took charge of the investigation from Dilip Kumar Ghosh and submitted charge -sheet. ( 13 ) P. W. 9, Dr. Surendra Nath Sen is an Autopsy surgeon who held postmortem examination over the deadbody of Bijon, we will deal with his deposition at a later stage of this judgment. ( 14 ) P. W. 1, Somnath Manna is a son of Bijon Manna, the victim, is the complainant and an eye witness. The other eye witnesses are P. W. 3, Samir Pramanick, P. W. 4, Paresh Sardar, P. W. 7, Nazrul Naskar. ( 15 ) P. W. 5 the then constable took the dead body of Bijon to the P. M. doctor and identified the dead body to that doctor. ( 16 ) P. W. 2, Gopal Bar saw the dead body of Bijon Manna before the shop of Liaquat on 17-8-92 and also saw a deep injury on the neck of Bijon and according to him Bijon was lying with face upward and his leg was towards the east and his head was towards west. He further deposed that the stroke was given on the left side of the neck of Bijon and he was bleeding profusely from that wound. He did not say anything about the assailant. He witnessed the inquest held by the police over the dead body of Bijon. He further deposed that the stroke was given on the left side of the neck of Bijon and he was bleeding profusely from that wound. He did not say anything about the assailant. He witnessed the inquest held by the police over the dead body of Bijon. He was corroborated by P. W. 8, Abu Bakkar Halder who also saw the dead body of Bijon was lying on the road with his face upward. His head was towards west and leg towards east and he was wearing an under wearing. He further deposed that the police came and collected blood from the Place of Occurrence under seizure list. He proved his signature on it and that the police took the dead body of Bijon to Police Station in a van for holding postmortem examination. He also proved his signature on that inquest report. ( 17 ) ACCORDING to him he accompanied the police up to the railway station and the police went to the police station in the vehicle at about 1-1. 30 a. m. ( 18 ) P. W. 4, Paresh Sardar, son of Panchu Sardar, P. W. 6, deposed that Bijon Manna died on 17-9-90 at 11 p. m. Bijon went to Puja Mandap and while he was returning from the Puja Mandap he raised an alarm "babago" and P. W. 4 saw Ananda Manna fleeing after assaulting Bijon Manna. Bijon Manna raised an alarm "babago" and fell down on the road and died. Accused Ananda has asked them to run away. The house of P. W. 4 is two minutes walk from the place of occurrence. He did not state to the I. O. that Bijon went to the Puja Mandap (Biswakarma) and on his return raised alarm. He did not turn even after hearing the alarm. He did not state to the police that when Ananda was fleeing away he asked them to run away and that as was told by Ananda they fled away. He found cut mark on the throat of Bijon Manna. On the following day i. e. 18-9-1990, he remained on the spot throughout the day. When he returned about 1-1. 30 a. m. on 18-9-90, even then the police did not come. Police came after five minutes to 1-1. 30 a. m. So, P. W. 4 found a cut mark on the throat of Bijon. On the following day i. e. 18-9-1990, he remained on the spot throughout the day. When he returned about 1-1. 30 a. m. on 18-9-90, even then the police did not come. Police came after five minutes to 1-1. 30 a. m. So, P. W. 4 found a cut mark on the throat of Bijon. ( 19 ) WHILE P. W. 2 deposed that he found a deep injury on the neck of Bijon. ( 20 ) WE have already pointed out that a graphic description of the incident has been given by P. W. 1 Somnath Manna. According to him on 17-9-90, Biswakarma Puja was going on in the hat. There was a stationery shop of Liaquat in the hat of village Sangrampur and Bijon was murdered in front of that stationery shop at about 11. 30 p. m. on that date. According to him Ananda proposed to purchase the pan-biri shop of Bijon at Baruipur at a price of Rs. 5,000/- and advance of Rs. 4,000/- for that to Bijon keeping a balance of Rs. 1,000/ -. ( 21 ) ON the date of the incident he was sitting with his father Bijon in the tailoring shop of Bijon at Sangrampur hat. At that time accused Ananda came in a drunken condition and demanded the key of that pan-biri shop from Bijon at Baruipur and Bijon refused to make over the key on the ground that the entire payment had not been made. Then Ananda left. Then Bijon left for the pandel of Biswakarma Thakur and Somnath was sitting at a tea-stall in the hat. ( 22 ) AFTER sometime while Bijon was returning from the pandel Ananda came out from a Golly with a dagger in his hand and gave a blow on the neck of Bijon before the stationery shop of Liaquat and Bijon had fallen down crying "babago". Somnath raised hue and cry and many people assembled there. Police came and took him to police station and there he made a statement recorded by the police and he was detained in the police station throughout the night and released in the morning. He proved the F. I. R. Ext. 1/1 and proved his signature on it Ext. l. ( 23 ) HE further deposed that Bijon married thrice. The mother of Somnath is the second wife of Bijon. He proved the F. I. R. Ext. 1/1 and proved his signature on it Ext. l. ( 23 ) HE further deposed that Bijon married thrice. The mother of Somnath is the second wife of Bijon. The first wife of Bijon stayed with her two Sons Mahadeb and Shankar near the tea-stall at Sangrampur hat and at the material time Mahadeb was aged between 26 to 27 years while Shankar was aged about 20 to 22 years and the house of the brother of Bijon, Gour is close to their house and the grandmother of the witness lives in the house of Gour. ( 24 ) ACCORDING to witness all the shops used to be closed between 10. 30 to 11. 00 p. m. and after closing the business the shop-keepers go to their respective houses. Within 25 cubits from the place of occurrence there are so many houses. He found all shops closed at 11 p. m. on the fateful day and no one was in the hat. According to him Sangrampur hat runs from the railway gate and the road runs straight from Sangrampur Railway Station towards west. The hat sat on either side of that road and the shops are located up to 1/2 kilometer on that road. The tea stall is on the eastern side of the road while Biswakarma Puja was held before 10 to 12 shops from the western side. He further deposed that he stated to the police that when he and Bijon were sitting in the tailoring shop at that time Ananda came there in a drunken condition and demanded the key of the shop from Bijon and Bijon refused to hand over the key as the full payment was not made. He further deposed that he also told the police that payment of Rs. 4,000/- was made to Bijon keeping a balance of Rs. 1,000/ -. He also said that he stated before the police that from tailoring shop he came to the tea-stall and his father went to witness Biswakarma Puja. ( 25 ) HE also deposed that he stated before the police that the accused came out from a Golly with a dagger and gave a blow on the neck of his father with the dagger. ( 25 ) HE also deposed that he stated before the police that the accused came out from a Golly with a dagger and gave a blow on the neck of his father with the dagger. He also stated before the police, according to him, that when his father Bijon came in front of the shop of Liaquat at that time the accused came with a sword in his hand and caught hold the hand of Bijon and dealt a blow to Bijon with the sword and Bijon had fallen down on the ground saying "babago". ( 26 ) MAHADEB is his step brother who went to the house of Ananda Manna for apprehending him. He also deposed that on hearing his cry, his uncle Gour, his stepbrothers Shankar and Mahadeb, their mother and grandmother came there. None of them has been examined in this case. ( 27 ) ACCORDING to him he stated before the police that the price of the Baruipur shop was settled at Rs. 6,000/ -. He further deposed that at first he was taken to Sangrampur Police Camp and from Sangrampur Railway Station he got down from the train on the next station and then went to the police station in a van. He stated the incident to the police at Sangrampur Police Camp and they noted it and then the police asked him to go to Usthi Police Station. ( 28 ) IT is available from the evidence of P. W. 3, that the police camp is at a distance of 25 cubits from the place of occurrence and manned by 5 to 6 police personnels and the police came to the place of occurrence. None of the police personnel in the camp has been examined in this case. ( 29 ) EVIDENCE of P. W. 1 partially corroborated by P. W. 3, Samir Pramanik. He deposed that accused Ananada struck a blow on Bijon with a sword and Bijon fell down crying "babago". Ananda fled thereafter. He further deposed that Somnath Manna went to inform the incident to the nearby police camp. From his evidence it is available that Paresh Sardar, P. W 4. Panchu Sardar, P. W. 6, Nazrul Naskar. P. W. 7, Pradip Ashok and some other persons chased Ananda. Pradip and Ashok have not been examined in this case as witness. He further deposed that Somnath Manna went to inform the incident to the nearby police camp. From his evidence it is available that Paresh Sardar, P. W 4. Panchu Sardar, P. W. 6, Nazrul Naskar. P. W. 7, Pradip Ashok and some other persons chased Ananda. Pradip and Ashok have not been examined in this case as witness. ( 30 ) ACCORDING to P. W. 3 the police came to the place of occurrence with Somnath after getting the information from Somnath he and others were there throughout the night along with Somnath. Here he contradicts P. W. 1who deposed that he stayed at the police station throughout the night and in the morning police released him. ( 31 ) ACCORDING to P. W. 3, two police personnel guarded the dead body of Bijon in the night and Mahadeb and Shankar were also near the dead body. The said two police personnel neither Shankar nor Mahadeb were examined. ( 32 ) ACCORDING to him Somnath went to the police station alone and from the deposition of Somnath, (P. W. 1) it is seen that at the time of the incident he was aged about 13-14 years. ( 33 ) IN the next place P. W. 3 was deposing that he was sleeping. According to him the police came to the place of occurrence on the following day i. e. on 18-9-90, during the day time. But he amended his statement by saying that police came there in the night at 1. 00 a. m. ( 34 ) HE further deposed that police took away the deadbody of Bijon at 1 a. m. on 18-9-90. He also deposed that in order to go to the police station one has to go by the train and the train comes at 1 a. m. in the Sangrampur Railway Station. ( 35 ) WE have already pointed out that the police held inquest over the dead body of Bijon in presence of P. W. 2 and P. W. 8. ( 36 ) P. W. 10 deposed that F. I. R. was lodged at 1. 34 a. m. on 18-9-90 and then he came to the place of occurrence. But P. W. 3 stated that the body was lying at the place of occurrence and police held inquest over the dead body of Bijon Manna at the place of occurrence. ( 36 ) P. W. 10 deposed that F. I. R. was lodged at 1. 34 a. m. on 18-9-90 and then he came to the place of occurrence. But P. W. 3 stated that the body was lying at the place of occurrence and police held inquest over the dead body of Bijon Manna at the place of occurrence. P. W. 3 also deposed that the deadbody of Bijon Manna was removed from the place of occurrence by the police on 18-9-90 at 1. a. m. This cannot be true. ( 37 ) P. W. 3 did not specify the place of injury on the dead body of Bijon. ( 38 ) P. W. 4, Paresh Sardar deposed that Ananda had cut Bijon Manna and he saw the same and thereafter Ananda fled from that place and according to him he found a cut mark on the throat of Bijon. ( 39 ) WHILE P. W. 1 deposed that Ananda struck Bijon with a dagger on the neck and in his F. I. R. he stated that Ananda struck Bijon with a large sword on the back of his neck. Then there should not be any injury on the throat of Bijan. All the eye witnesses deposed in unison that Ananda struck only one blow on Bijon. Some eye witnesses say that the blow was given by the dagger some say with a sword. So the eye witnesses are not consistent on this point. ( 40 ) MAHADEB and Shankar are the two sons of the deceased Bijon while Gour and Ganesh are the two brothers of the deceased Bijon that is the deposition of P. W. 6, Panchu Sardar. ( 41 ) ACCORDING to him on the date of the incident i. e. on 17-9-90 at 11 p. m. he found Mahadeb, Shankar, Gour and Ganesh and also the wife of the deceased Bijon on the spot of the incident. But he did not state anything to them and these persons have not been examined by the police nor cited as witnesses. ( 42 ) P. W. 10 in his deposition stated that in course of the investigation the names of these persons did not emerge and so he did not cite them as witness. But he did not state anything to them and these persons have not been examined by the police nor cited as witnesses. ( 42 ) P. W. 10 in his deposition stated that in course of the investigation the names of these persons did not emerge and so he did not cite them as witness. ( 43 ) P. W. 7, Nazrul Naskar also corroborated P. W s. 1, 3 and 4 by deposing that during the time of the incident he was at a distance of 25-30 cubits from the place of occurrence and that Ananda killed Bijon with a sword and Ananda gave a stroke with the sword and then Bijon had fallen down. So all the eye witnesses deposed that Ananda dealt only one blow on Bijon. ( 44 ) P. W. 1 said at one place that Ananda struck to Bijon with a knife and in another place he deposed that Ananda struck Bijon with a heavy sword. So P. W. 1, Somnath Manna, was not consistent in his statement about the instrument of offence. While P. W. 3 mentioned a sword as the instrument of offence. P. W. 5 did not mention anything about the instrument of offence. P. W. 7 deposed that the instrument of offence was a sword. ( 45 ) ACCORDING to the F. I. R. statement Bijon was struck on the back of his neck with the sword. Somnath, (P. W. 1) stated in his deposition that Ananda struck a blow with a dagger on the neck of Bijon. ( 46 ) P. W. 2, Gopal Bar deposed that a stroke was given in the left side on the neck of Bijon and Bijon was bleeding profusely from there. He further deposed that he saw Bijon lying his face upwards and he had a deep injury on his neck. While P. W. 4, Paresh Sardar saw a cut mark on the throat of Bijon. ( 47 ) ACCORDING to P. W. 7, Ananda struck Bijon with a sword on his neck. ( 48 ) SO the eye witnesses are not consistent about the place where Bijon received injury and on which part of the neck Ananda struck Bijon. So there are inconsistencies about the instrument of offence the place of injury on the person of Bijon but they are consistent that only one blow was dealt on Bijon. ( 48 ) SO the eye witnesses are not consistent about the place where Bijon received injury and on which part of the neck Ananda struck Bijon. So there are inconsistencies about the instrument of offence the place of injury on the person of Bijon but they are consistent that only one blow was dealt on Bijon. So there must be only one injury on the person of Bijon and there cannot be more than one injury. ( 49 ) IN this connection we refer to the medical evidence of P. W. 9, Dr. Surendra Nath Sen who held postmortem examination on the deadbody of Bijon. According to him he held Autopsy upon the dead body of Bijon on 18-9-90, and found the following injuries :- (1) One gapping wound low down over the neck in front (6" x 4") by vertebrae deep. (Cut throat injury) with teapring wounds. DESSECTION : All fracturres at the lebel of the neck (facia muscless vessles nerves trachea, oesophagous with identatation over C-5 and C-6.) (2) incised wounds one below another, left shoulder region. (a) (1) 2" -2" - skin. (b) 3/2" - 2" into skin showing extra vasated with liquid and cloted blood with soft tissue injury. According to doctor, the two injuries mentioned in Item No. 2 are localised on the back of the left shoulder. ( 50 ) IN cross-examination he deposed that he found in all three injuries. The first injury is one gapping wound law down over the neck in front by vertabrae deep. That is in the throat while other two injuries were localised on the back of left shoulder. He deposed in cross-examination that the trachea is at the front side of the throat with a heavy sharp cutting weapon for the purpose of causing heavy injury. .