V. Dutta Gyani, J.— This appeal arises out of the judgment and order dated 30.8 95 passed by the Additional Sessions Judge, Nagaon in Sessions Case No.24 (N) 91 thereby holding the appellant guilty of offence punishable under section 302IPC and sentencing him to undergo imprisonment for life with fine of Rs.500/-, or in default in payment of fine to undergo 1 month RI.. 2. Prosecution case stated in brief was that on 21.5.83 around 12.00 in the forenoon the accused appellant along with others (since absconding) assaulted Arabuddin and his wife Rahima Khatun by means of a dagger. Both of them sustained injuries. The incident was reported to the police on the basis of which a case under section 148/149/324/326 IPC was initially registered at PS Dhing. Arabuddin succumbed to the injuries on the same day, as a result the case registered is converted to one under section 302 IPC and taken under investigation by PW 7. Till the stage of committal one of the accused Kalimuddin was absconding and as such he could not be committed to stand his trial at the Court of Sessions. As per the FIR, Ext 1 names of two other accused were not mentioned, although the PW 3 Feroza Begum is emphatic in her assertion that she had named all the four accuseds whom she had seen assaulting her father and mother. On completion of investigation the accused was charged and tried for the above offences. The trial Court as noted above, found the appellant guilty of the offence charged and sentenced him imprisonment for life. Aggrieved by the same, the present appeal has been preferred. 3. We have heard Mr. FH Laskar, learned counsel for the appellant and Mr. BD Goswami appearing for the respondent State. 4. Attacking the trial Court's judgment the learned counsel appearing for the appellant has raised the following points : “(i) that the First Information Report Ext 1 suffers from inherent infirmities. 3. We have heard Mr. FH Laskar, learned counsel for the appellant and Mr. BD Goswami appearing for the respondent State. 4. Attacking the trial Court's judgment the learned counsel appearing for the appellant has raised the following points : “(i) that the First Information Report Ext 1 suffers from inherent infirmities. The name or the accused appellant does not figure therein and the trial Court has failed to give due weight to this omission in the FIR which according to the learned counsel is fatal, so far appellant's conviction is concerned; (ii) that the learned trial Court erred in placing intrinsic reliance on the evidence of PW 3 the sole eye-witness whose testimony as eye witness is doubtful for the following reasons: (a) that she did not disclose the name of the assailants at the earliest opportunity available to her as also to the IO PW 7; (b) that according to PW 3 the place of occurrence is the public road whereas according to other witnesses PWs 2, 4 and 5 it was the paddy field; (c) the dying declaration as recorded by the doctor PW 6, is not a reliable piece of evidence inasnuch as there is no indication that the injured Arabuddin was in a fit state of mind at the time of making dying declaration, more so in face of the statement made by PW 2 and 4 in whose presence the dying declaration was recorded categorically states that the injured was incapable of making any speech as he was speechless. (iii) that the prosecution witnesses has deliberately suppressed the genesis of the prosecution case and should not have been relied upon for basing an order of conviction.” 5. Learned Public Prosecutor appearing for the respondent State on the other hand maintained that the conviction as recorded by the trial Court is well supported by the evidence adduced by the prosecution and the infirmities as pointed out by the learned counsel for the appellant, even if taken to be correct are not such as to rob the prosecution of its intrinsic truth. 6. In view of the rival submissions made by the learned counsel for the parties it is necessary to refer to the evidence adduced by the prosecution. 6. In view of the rival submissions made by the learned counsel for the parties it is necessary to refer to the evidence adduced by the prosecution. Apart from the dying declaration as recorded by the PW 6, the prosecution examined as many as 7 witnesses including PW 1, the doctor who performed the autopsy. PW 6 the doctor who recorded the dying declaration, PW 7 the 10 who investigated the case. PW 2 is the informant, PW 3 is the daughter of the deceased examined as eye witness. While PW 4 is the cousin of the deceased. Analysing their evidence, the first point that arise for consideration is whether the eye witness Feroza Begum is really a guilty of suppression of facts so far as names of accused assailants are concerned. She has emphatically asserted that she had gave out the names of the accused whom she has seen from close quarter. The PW 2, the informant has also disclosed the same to PW 7 the IO. She has no axe to grind to falsely implicate the accused. The mere fact that he is the daughter of the deceased is no ground to reject her testimony on that count. So far she is concerned, she had told the PW 2 the names of the assailants. Now, if the informant does not go and report all the four names to the police while lodging the FIR, it is not she who is to be blamed for that omission on the part of the PW 2. It is a settled principle that it is only the maker of the FIR who can be confronted with any contradiction or omission in the FIR and Ext. I cannot be used as against PW 3. There is no reason to disbelieve her on that account when she says that she had reported the names of all the 4 accused to PW 2. 7. PW 7 of course in his evidence has come out with a statement that PW 3 did not state to him that she saw Arabuddin was assaulted by dao, dagger etc. by four accused persons. The trial Court on examination of the case diary for the limited purpose of ascertaining the truth of the criticism, same having looked into the case diary found that the statement made by the 10 was not correct. by four accused persons. The trial Court on examination of the case diary for the limited purpose of ascertaining the truth of the criticism, same having looked into the case diary found that the statement made by the 10 was not correct. It may also be noted even while making the above statement the PW 7 even did not refer to the case diary to refresh his memory which he could and ought to have done before giving out such a bald statement. In any case, so far as PW 3 is concerned it is her statement made on oath before the Court which constitute the legal evidence. All other previous statements can only be used for the purpose of contradicting her. Such previous statements are not evidence. 8. What is more significant to note is that PW 3 was not even confronted with her previous statement as recorded by the 10 so as to explain the so called omission, (which in fact does not exist) if the defence was so keen as to avail of any such omission. The least that was expected was to confront the witness with his previous statement as provided under section 162 CrPC. Unless the procedure as laid is followed no omission can be said to have-been proved (See AIR 1959 SC1012, Tahsildar Singh vs. State of UP). To establish reliability of the testimony of PW 3 the other infirmities as about the place of occurrence, what was in fact stated is: There is a fencing in the house where we stay. The road in front of our house runs from East to West. Our living house is in the West side. One has to come to our house from North to West. The courtyard is in the East of the house. Father went out in the morning. I do not know where he went. First I saw my father from the courtyard where I was sitting. He was coming by the road. I saw my father from a distance of 100/120 feet. There was none on the road at that time. I saw the accused persons going. The accused persons were also coming by the road. On seeing the accused coming I did not think that the accused would assault my father. I looked towards the road and saw that 4 accused persons surrounded my father. They were assaulting my father. There was none on the road at that time. I saw the accused persons going. The accused persons were also coming by the road. On seeing the accused coming I did not think that the accused would assault my father. I looked towards the road and saw that 4 accused persons surrounded my father. They were assaulting my father. Father fell down when we reached the PO. The PO is about 4 nals far from our house towards the East side where the accused first surrounded my mother. My father fell on that spot. On our arrival, the accused persons fled away by road. Father fell down on the road. Myself, mother and brother went running there. Nur Islam (witness) is my cousin. Azimuddin is alive and he has come today. They came and saw the injured. Nobody except Azimuddin and Nur Islam came there when my father was lying on the road. We took him to the kitchen. Then many people came to our house. People from far distance also came.” 9. The above passage is an extract from her cross-examination. Paddy field is abuting the road. While appreciating evidence of eye witnesses, one is not to take a grammarian approach to the statement. She vividly described what she saw. Even if one takes into account the evidence of PW 4 and PW 2, the PW 2 stated “ The place of occurence the paddy field, is about 3 nals far from the house of Arabuddin. There was no paddy in the field. It was vacant one and was time for transplanting.” It hardly makes any substantial difference. There was no paddy crop, it was a vacant piece of land adjoining the road. Now while describing scene, it cannot be lost site of that PW 2 came only after hearing the hue and cry, whereas PW 3 had seen her father coming on the road being surrounded by the accused and assaulted. But her testimony has not in any way affected by the above statement made by the PW 3. In his cross-examination-in-chief the PW 2 has clearly stated “I heard the cry at the East direction,” and it is a cardinal rule of appreciation of evidence that the statement as a whole must be read, not taking up a stray sentence from here or there from the statement. 10. In his cross-examination-in-chief the PW 2 has clearly stated “I heard the cry at the East direction,” and it is a cardinal rule of appreciation of evidence that the statement as a whole must be read, not taking up a stray sentence from here or there from the statement. 10. The topography as described by the witnesses is the same. It is a manner of discussion which is bound to be different. 11. Now coming to the dying declaration, it may be noted at the outset that even if this piece of evidence is excluded from consideration, it does not make any material difference so far as the appellant's conviction is concerned. There is no reason to disbelieve the evidence of PW 3, amply corroborated by medical evidence and the res gestae evidence of other witnesses who had seen the accused taking to their heels from the place of occurrence. 12. PW 6 is the witness who recorded the dying declaration, Ext A. A suggestion was thrown to him in his cross-examination that a man with such injuries can not be in a position to talk which he has of course refuted. Another suggestion was, that even before recording the dying declaration the man had already died. All such suggestions thrown to a witness and denied by him do not constitute any legal evidence. If the defence is really keen to establish speechlessness on the part of the injured, there should have been few question with reference to physical conditions, the injuries and its affect on brain. But nothing of the sort has been done. Speech is directly controlled by the nervous system. Thus the cross-examination made about dying declaration is also not well founded and must therefore be excluded. 13. Lastly, it was submitted by the learned counsel for the appellant that Rahima Khatun, though an injured witness, was not examined by the prosecution. It is true that she has not been examined and not explanation is forthcoming for her non-examination. The prosecution could have done well if examined her as witness. But the moot question is, how it helps the appellant. Her examination would have further added support to the prosecution case. 14. In view of the foregoing discussion, the conviction and sentence as recorded by the trial Court does not call for any interference. It is sustainable on evidence available on record. But the moot question is, how it helps the appellant. Her examination would have further added support to the prosecution case. 14. In view of the foregoing discussion, the conviction and sentence as recorded by the trial Court does not call for any interference. It is sustainable on evidence available on record. The appeal is liable to be dismissed it is accordingly dismissed. 15. Before parting with this appeal, it is a sad commentry on the efficiency of the investigating agency that they have not been able to bring to book the other accused those absconding ever since the commission of crime are still at large. No attempt seem to have been made by the police to arrest those absconding accused. All due efforts need be made for bringing the guilty to book.