JUDGMENT K.J. Sengupta, J: This appeal has been preferred by the appellant convict impugning the judgment and order dated 24th May, 1989, passed in Sessions Trial No.4 of September, 1987 (Sessions Case No. 15 of July, 1987), by Sri B. Pal, the then learned Sessions Judge, Bankura. The prosecution case was initiated in pursuance of an FIR lodged by one Ghanashyam Hansda being the P.W.1 and nephew of the victim. In the FIR,, the case was made out that on 3rd October, 1985 at about 6.30 a.m. the said Ghanashyam Hansda being the PW-1 and his cousin brother, Haripada Soren being the PW-2 went for easing themselves to a big pond, viz., Baburpukur situated on the eastern side of the village Belatikiri. After easing themselves as both the aforesaid persons were returning their house, they noticed the appellant/accused Ram Swarup sitting on the western bank of the Baburpukur with a wrapper round his upper portion of the body and wearing a short. At that time they found that the accused was busy in brushing his teeth. While PW-1 and PW-2 were proceeding further they met the victim Fakir (hereinafter referred to as the said victim) who happened to be maternal uncle of both the persons and was proceeding towards Baburpukur. After having met the said victim no sooner had the PW-l and PW-2 advanced about 80 cubits then they heard a screaming raised by the said victim. Both the PW-l and PW-2 turned round and found accused Ram Swarup was striking Fakir with a sword on the ail-path (Kachha road in between two plots of paddy field). The said victim raised alarm and was trying to save himself resisting such strike of sword with his hands, but he fell down on the paddy field by the side of the ail-path, notwithstanding Ram Swarup, appellant herein, continued to strike him with the sword successively. They PW-1 and PW-2 rushed towards Fakir and raised alarm. The appellant/accused having noticed them approaching, filed away towards the eastern side leaving his wrapper and sword at the place of occurrence. PW nos 1 and 2, reaching there found Fakir was lying in a pool of blood with multiple injuries. Meanwhile being attracted by the alarm raised by PW nos. 1 and 2 some of the villagers reached there. The appellant/accused having noticed them approaching, filed away towards the eastern side leaving his wrapper and sword at the place of occurrence. PW nos 1 and 2, reaching there found Fakir was lying in a pool of blood with multiple injuries. Meanwhile being attracted by the alarm raised by PW nos. 1 and 2 some of the villagers reached there. Thereafter, the Fakir was then lifted from the place of occurrence and placed on the ail-path, A 'Khatia' (cot)) was brought and Fakir was brought to his house being laid on the khtatia and the khatia along with Fakir was placed under a Banian tree outside his house. Fakir was still then alive and shortly thereafter he died. Before his death, Fakir made a statement in presence of PW-1, PW-2 and other villagers, that accused is alleged to have inflicted those injuries by sword. Thereafter, the PW nos. 1 and 2 along with the other villagers went to the Raipur Police Station and lodged the aforesaid FIR at 9.05 a.m. on the same date. 2. In pursuance of the said complaint PW-12, sub-Inspector Sri S.P. Bagchi, then working at Raipur Police Station, recorded the statement of PW-1 and started the aforesaid case under section 302 of the Indian Penal Code against the accused. While investigating, the said Officer prepared inquest report, collected the incriminating articles, viz., wrapper, sword and also blood stained earth and controlling earth from the place of occurrence. The said I.O. also prepared a sketch map of the place of occurrence. He examined several witnesses on different dates. The I.O. seized and collected two letters written by the PW-1 from the house of appellant. Subsequently the appellant was arrested after six days of occurrence. The court framed the following charge: “That you, on or about the 3rd day of October, 1985, corresponding to the 16th day of Aswin, 1392 B.S. at village Belatikri, P.S. Raipur, District Bankura committed murder by intentionally causing death of Fakir Hembram, son of late Lusa Hembram of village Belatikri, P.S. Raipur, District Bankura, thereby committed an offence punishable under section 302 of the Indian Penal Code, and within my cognizance.” The accused/appellant pleaded not guilty when the charge under section 302 of the IPC was read out by the learned Sessions Judge to the accused/appellant. The prosecution brought and examined as many as 12 witnesses which includes the informant of the FIR being PW-l. Out of the aforesaid 12 witnesses PW-3 viz., Dilip Kisku, PW-4, Biswanath Tudu, PW-6, Rabi Kisku, PW-7, Biswanath Murmu were declared hostile. The defence also produced 3 witnesses, viz., Gobardhan Hembram being DW-1, Nabin Hembram being DW-2 and Sunil Mandi being DW-3. 3. After considering all the facts and laws, the learned Trial Judge held the appellant guilty and under section 302 of the IPC., sentenced him to serve the life terms, and also to pay a fine of Rs. 5,000/- in default of paying to undergo rigorous imprisonment for a period of five years more. It has been further ordered that out of Rs. 5,000/-, if paid, the amount of Rs. 3,000/- shall be paid to the wife of the deceased as compensation. 4. Mr. Sekhar Basu, learned Advocate, appearing for the appellant submits that the entire prosecution is illegal and invalid as the charge framed by the learned Trial Judge alleges the murder was committed at village Belatikri, P.S. Raipur, District Bankura. It will appear from the FIR, and evidence of both the sides that the murder took place outside the village Belatikri and near Baburpukur which situates at a distance of 200 yards from village Belatikri. Therefore, no murder was committed at village Belatikri as it has been charged. He submits further that if the charge is something different from the allegation of the FIR and other evidence then such charge must fail and no trial ought to have been proceeded. So the sentence of conviction based on the aforesaid charge is illegal and liable to be set side on that ground alone. Mr. Basu on merit of the case submits that if the evidence adduced by the defence is believed, then the entire prosecution case fails. According to the witness of the defence that the deceased victim was murdered by some other person during the night not in the morning on the fateful day as it has been alleged. He submits this evidence has come from a witness who happens to be a relation of the deceased victim and who also went to police station to inform about this incident. He submits this evidence has come from a witness who happens to be a relation of the deceased victim and who also went to police station to inform about this incident. He submits that it will appear from the evidence of the defence that the appellant/accused was even present when the dead body of the deceased was brought from the paddy field to the house of the deceased. It is unbelievable that a person having committed murder would remain present by the side of the victim. He submits that the evidence of the so-called eye-witnesses of the prosecution is unacceptable and unbelievable if it is weighed as against the overwhelming witness of the defence witness. He submits further that it is very unnatural that one should go in the morning for easing himself to a place which is farther from the village while another tank situation nearer from the village for easing. He submits further that all the inhabitants of the village use the Baburbandh which situates at a distance of 50 yards from the village Belatikri. Therefore, it would be natural for the deceased victim Fakir to use the nearer tank rather than a distant tank. No explanation is forthcoming why Fakir went to use the said pond situates at distance. He submits further that there are various serious contradiction in the evidence of the prosecution witness. He submits that the PW-2 is a chance witness as he came one day before the date of incident and he left on the following day. It is unnatural that a near relation would go away after having seen his maternal uncle murdered and killed. Therefore, the evident of PW-2 should be discarded altogether. So far the evidence of PW-1 who is also one of the eye-witnesses is concerned is an interested witness because he was another nephew of the deceased who is bound to exaggerate and embellish the evidence. He further submits that Abani has not been examined although Abani could have been the best witness in this case. He was not examined deliberately lest the entire prosecution case is disproved. It will appear from the evidence that no blood-stain was found on the sword. Mr. He further submits that Abani has not been examined although Abani could have been the best witness in this case. He was not examined deliberately lest the entire prosecution case is disproved. It will appear from the evidence that no blood-stain was found on the sword. Mr. Basu lastly submits that if the evidence of the prosecution case is disbelieved and the evidence of the defence which is a natural one is accepted then the sentence of the conviction is liable to be set aside. From the evidence of defence it would appear that PW-I could not see the occurrence as he was informed by DW-1 who had seen Fakir was lying dead on the ail-path. 5. The learned lawyer, appearing for the State, submits that there are two eye-witnesses in this case who have seen the appellant was inflicting sword injury to the deceased victim. He further submits the eye-witness evidence is without any contradiction of worth noting and further the same is overwhelming. Besides, there are other evidence, viz., material evidence wrapper, sword, blood-stained earth and controlling earth. The other witnesses PW-12 and PW-7 have corroborated the post occurrence fact. If all the evidences are taken together then it would appear the case of the prosecution has been proved beyond any doubt whatsoever. He submits that there is factual or legal mistake in the charge. Admittedly the dead body was found on the ail-path (narrow kachcha path in between two paddy filed) which connects the Baburbandh and Belatikri. He submits that the said Baburbandh is within the area and/or part of village Belatikri. Therefore, in the charge the word ‘village Belatikri’ is not at all incorrect and/or mistake. He submits, therefore, the judgment and order of the learned Trial Judge is perfectly lawful and upon consideration of all the facts and circumstances the appellant has been convicted. 6. We have heard the respective submissions of the learned Lawyers of both the sides. From the materials and facts of this case, it is necessary to decide the following questions in order to upheld the sentence of conviction passed by the learned Trial Judge. (i) Whether place of occurrence according to prosecution is part of the village Belatikri or not. In other words, whether place of occurrence according to prosecution is at village Belatikri or not. (i) Whether place of occurrence according to prosecution is part of the village Belatikri or not. In other words, whether place of occurrence according to prosecution is at village Belatikri or not. (ii) Whether the deceased victim was murdered by some other person according to version of the defence or not. (iii) Whether the appellant has committed murder by inflicting sword injury. 7. Admittedly and from the evidence of the PW-10, viz., Doctor who held post mortem report, the deceased Fakir died of injury. Such injury has been inflicted by sharp heavy or moderate weapon. It would appear from the evidence and the post mortem report that all the injuries are ante mortem and homicidal in nature and the extent of injuries are such that it would cause death to any person. Therefore, it is established that the said Fakir had died because of such injury and unnaturally. It appears from the evidence of both the sides that Fakir was brought from ail-path to his house with injury. It would appear from the inquest report that blood-stain earth and controlling earth were found and/or seized from the place, viz., on the paddy field where Fakir was lying in the morning. It would appear from the evidence of both the sides that injured Fakir was lying in the paddy field belong to one Abani Mondal by both the sides of the ail-path. It would also appear from the evidence that the said Abani is a permanent resident and/or inhabitant of the village Belatikri. Moreover, the deceased victim was the inhabitant of village Belatikri. Some of the villagers use Baburbandh for their easing. Moreover, the incident occurred at the place in between Baburbandh and village Belatikri. The police constable being PW-7 in his evidence stated that he found the dead body of Fakir at Belatikri. No cross examination nor any suggestion contrary thereto, was put to the said witness. Therefore, having regard to the facts and evidence of this case mentioning of village Belatikri in charge is not at all unnatural and improbable. So we hold that there is no defect in any manner whatsoever in mentioning the word ‘village Belatikri’ in the charge and on that seen the prosecution case cannot fail. 8. Therefore, having regard to the facts and evidence of this case mentioning of village Belatikri in charge is not at all unnatural and improbable. So we hold that there is no defect in any manner whatsoever in mentioning the word ‘village Belatikri’ in the charge and on that seen the prosecution case cannot fail. 8. The next question remains whether the evidence of DW-1, DW-2 and DW-3 should be accepted and/or believed and further, weighing the evidence of both the sides which version should be accepted to be true. It appears from the evidence of DW-1 that he has admitted that abnormal death occurred to Fakir and he had also brought the dead body of Fakir from ail-path appertaining to the land of Abani Mondal. He has stated also the appellant/accused was present when the dead body was brought to his house and this is how the story of the prosecution incriminating the appellant is sought to be discarded. In the evidence nowhere we find he has stated that appellant/accused did not commit murder or killed the said victim. If the entire evidence of the DW-1 is taken then the version of the prosecution has been corroborated to some extent. It is not proved by the DW-1 that the appellant/accused was innocent. Only inkling of improbability of the accused being involved in killing has been made out by stating his presence when the dead body was brought. Mere presence of a particular person (even if it is accepted to be correct) does not prove his innocence. So by the evidence of the DW-l the entire evidence of the prosecution is not rendered dis-believable or unacceptable. DW-2 and DW3 have stated in the same line of the DW-1. So their evidence is of no value at all in order to disprove the case of the prosecution. It appears to us that all these witnesses have been tutored to make the same verbatim story in order to create as against the case and evidence of the prosecution. We are not prepared nor do we believe such version of the defence. Therefore, we are unable to accept the submission of Mr. Bose that the accused is innocent. Therefore, we accordingly, on this submission, hold that the occurrence took place at Belatikri village by answering the point no. 1. 9. We are not prepared nor do we believe such version of the defence. Therefore, we are unable to accept the submission of Mr. Bose that the accused is innocent. Therefore, we accordingly, on this submission, hold that the occurrence took place at Belatikri village by answering the point no. 1. 9. The apparent and material contradiction of the evidence of DW-1 and DW-2 inter se strengthens to disbelieve the version of defence. It is stated by DW-1 that he having noticed Fakir was lying dead informed for the first time to PW-1. DW-2 stated in his evidence that DW-1 called him and told him that Fakir was lying to the ail-path of the land belonging to Abani Mondal, but DW-l has not stated in his evidence that he told DW-2 also. 10. So we hold that deceased victim was not murdered by any other person according to the version of the defence. 11. The next question remains whether the witnesses of the prosecution have been able to prove the case beyond doubt or not. Dr. J.N. De, PW-10 has proved unnatural death of Fakir. It is further proved by him that there are good number of sharp cut injuries all over the body of Fakir. His death was due to shock and hemorrhage owing to infliction of the injuries. In his evidence and further in the post mortem report prepared by him the nature of injuries are as follows: “1. One incised wound 4” X 1” bone over an area comprosing of part of right temporal outer part of right side of forehead and also the upper part of right side of face incorporating the right external ear. On dissection, a flap of soft tissue together with skin as well as right externalear was found avalged and only adjerent of the lower part. The zygomatic arch found to be cut and a portion of zygomatic arch measuring 2" at its central part was found missing. 2. One incised wound. 1½” x ¼ x muscle over the outer aspect of upper part of right side of neck placed obliquely. 3. One incised wound 2” x ½” x bone was found over the upper part of frontal region placed obliquely. Lower and inner end of the wound was placed half inch to the left of midline of front and half inch above the middle third of left eye-brow. 3. One incised wound 2” x ½” x bone was found over the upper part of frontal region placed obliquely. Lower and inner end of the wound was placed half inch to the left of midline of front and half inch above the middle third of left eye-brow. On dissection, the soft tissue of the part was clean-out and the underline frontal bone was also found to be partly cut for ¼". 4. One incised wound 1” x ¼” x muscle over the outer and lower part of left side of forehead placed obliquely, 1” to the left of the outer angle of the left eye. 5. One incised wound 1” x ½” x musole bening the lower part of the left extenal ear, 3” below the tip of left mystold process. 6. One incised wound 4” x 3” x bone placed obliquely over an area comprosion of front of flower third of right arm and also front of belt of elbow. On dissection, the soft tissues on the part was found to be clean out together with blood vessels, nerves, and together with blood vessels, nerves and underline shaft humerus was found to be out of ¼”. 7. One incised wound 5” x 1¼” x bone placed obliquely over the back of the left shoulder. On dissection, the soft tissues of the part were cleaned-out a portion of the left humerus were found to sliced off. 8. One incised wound 2” x 2” x muscle placed obliquely over the redial border of upper third of the left fore-arm. 9. One incised penetrating wound 3” x 2” abdominal cavity placed obliquely over the right lateral chest wall at its lower half. On dissection, it was seen to have passed through the skin, fosa muscle of 6th intercostal space, producing fracture of right 6th rib correspondingly pierced the peritohium and finally ended by cutting the lateral surface of right lobe of liver for a length of ½”. The wound was found to be directed from the above downwards, forwards and slightly medialwards. 10. One incised wound ¼” x 2” x muscle over the right hypochondrium, 1½” to the right of midline of front placed vertically. 11. One incised wound 4" x 3" x muscle placed obliquely over the left hypochondrium, 2½" to the left of midline of front. 12. 10. One incised wound ¼” x 2” x muscle over the right hypochondrium, 1½” to the right of midline of front placed vertically. 11. One incised wound 4" x 3" x muscle placed obliquely over the left hypochondrium, 2½" to the left of midline of front. 12. One incised wound 1" x ½" x muscle placed obliquely over the posterior-medial aspect of middle of right arm. 13. One incised wound 1" x ½" x bone over the outer part of dorsal aspect of right thumb at its distal digit. On dissection, part of nail, soft tissue of the part and a portion of distal phalanx was to be cleanout. Fair amount of extra-vassated clotted and liquid blood seen to infiltrate the tissues in and around the injuries and the fractures described above.” 12. He has also deposed that those injuries could be caused by light and/or heavy and/for moderate sharp metal weapon like sword, hasoa. A sword was also seized by the PW 12 and the same was shown to PW 10 whether the wounds could be inflicted with the aforesaid sword or not. He stated in affirmative. PW 10 further deposed that the injuries were inflicted approximately before 36 to 48 hours before carrying out the post mortem examination. The post mortem examination was carried out round about 4 O'clock in the afternoon on 4th October, 1985. In his cross-examination his evidence could not be shaken at all. 13. PW 1 and PW 2 have proved that they had seen by themselves, that accused was assaulting and striking with his sword on various parts of the body of Fakir. They have further witnessed that Fakir was trying to prevent such strike of sword being inflicted upon him with his hands unsuccessfully. Fakir fell down on the paddy field, notwithstanding he went on assaulting and inflicting injuries. When PW 1 and PW 2 raised alarm inviting attention of the villagers and further rushed to the spot accused/appellant leaving his wrapper and the said sword in the field fled away. PW 1 solicited the villagers to grab Fakir who was fleeing. Many villagers came to the spot, viz., in the paddy field. All of them together lifted Fakir' and laid him on ail-path. There Fakir made a dying declaration to PW 2 to the effect that accused/appellant had killed him. This evidence of dying declaration has not been cross-examined at all. Many villagers came to the spot, viz., in the paddy field. All of them together lifted Fakir' and laid him on ail-path. There Fakir made a dying declaration to PW 2 to the effect that accused/appellant had killed him. This evidence of dying declaration has not been cross-examined at all. No suggestion was given to PW 2 that Fakir was killed by some other person during the previous night. Thereafter PW 1 went to the local police station which was about 24 kms. from the place of occurrence. The FIR was registered at 9.05 a.m. on the same day. Thereafter Officer-in-Charge himself took up this case for investigation. The Investigating Officer being PW 12 along with PW 9 came to the spot. Investigating Officer being PW 12 has proved that he had seized the sword, wrapper, and two letters written by PW 1 from the house of accused. The sword and wrapper were seized at and/or from a place near the house of Fakir. No suggestion was given that the sword seized by the I.O. did not belong to accused/appellant. Both the Investigating Officer being PW 12 and the PW 9, police constable have proved that Fakir was killed at Belatikri village. The evidence of PW 1 and PW 2, as well as, the aforesaid witnesses being investigating witnesses, viz., Investigating Officer and police constable is very natural and free from any serious contradiction. The evidence of both of them have been accepted by the learned Court below. We also do accept the same. The hostile witnesses being PW 4, 6 and 7 have motivatedly became hostile as all of them made statements before the PW 12 under section 161 of the Cr.P.C. at pre-trial stage supporting the case of prosecution, none the less, their evidences corroborate some extent. The evidence of PW 1 and PW 2 has also been discussed extenso by the learned trial Judge upon analysis of evidence. So we hold that the prosecution has been able to prove the case beyond any doubt. We hold therefore that appellant committed murder of Fakir. 14. We have gone through the judgment and findings of the learned Court below and we are satisfied the said judgment and findings, as well as, sentence as it do not suffer from any infirmity and/or illegality. 15. Hence, the appeal fails and the same, is dismissed without any costs. We hold therefore that appellant committed murder of Fakir. 14. We have gone through the judgment and findings of the learned Court below and we are satisfied the said judgment and findings, as well as, sentence as it do not suffer from any infirmity and/or illegality. 15. Hence, the appeal fails and the same, is dismissed without any costs. The judgment and sentence passed by the learned Court below is hereby affirmed. S.K. Tiwari, J.: I agree. Appeal dismissed.