D, Biswas, J.-- Appellant Satya Ghose was tried and convicted by the learned Sessions Judge, Berpeta under section 302 of the Indian Penal Code in Sessions Case No.34 of 1995 and sentenced to imprisonment for life and to pay a fine of Rs.500/- in default of which to undergo 3 (three) months imprisonment. Being aggrieved, this appeal has been preferred disputing the impugned judgment on various grounds which will be looked into in due course hereinafter. 2. The prosecution case, as unfolded, is that on the night of 17.3.1992, Bolai Chandra Das, since deceased, was returning home from nearby Janata Market along with accused Satya Ghose and another person named Ismail Hussain. An altercation followed by a scuffle took place on the way between the accused and the deceased resulting in a dagger blow dealt with by the accused on the lower part of the abdomen of the deceased. Having sustained injury, the deceased somehow reached the courtyard of one Akhil Ghose, a co-villager, where he made a statement that the accused had assaulted him. Thereafter, he was shifted to his house where he made a similar statement to his wife and others. He died on the following morning. 3. A GD entry (No. 182 dated 18.3.92) was initially recorded by the police on receipt of the information from one Sukla Ghosh to the effect that at 7 PM on the previous evening Bolai Das was stabbed on the abdomen by the accused Satya Ghose by means of dagger. The information was received by him at about 9 AM and accordingly, he made the aforesaid GD entry. 4. The police started investigation after recording the GD entry. PW 9 Shri Sirajul Haque, Assistant Sub Inspector of Police, Incharge of Kirkira Police Outpost, immediately rushed to the house of the deceased where he found the dead body lying on the verandah. He made an inquest over the dead body and prepared the report, Ext 2. Ext 2 (2) is his signature. An FIR Ext 3, lodged by PW 2 Smti Nagari Bala Das, wife of the deceased, was also handed over to him in the house of the deceased. Ext 3 (1) is the signature of PW 9 along with endrosement. The FIR was forwarded to Baghbor Police Station for registration of a case. Ext 2 (2) is his signature. An FIR Ext 3, lodged by PW 2 Smti Nagari Bala Das, wife of the deceased, was also handed over to him in the house of the deceased. Ext 3 (1) is the signature of PW 9 along with endrosement. The FIR was forwarded to Baghbor Police Station for registration of a case. This witness forwarded the dead body to Barpeta Civil Hospital for post mortem examination and thereafter he handed over the Case Diary to the Officer-In-charge of Baghbor Police Station who eventually took up and completed the rest of the investigation and submitted charge sheet. 5. On appearance before the learned Sessions Judge, charge was framed against the accused under section 302 IPC for committing murder of Bolai Chandra Das at village Balikuri at 8.35 PM on 17.3.92 intentionally causing stab injury by means of knife. 6. In this case, altogether 10 (ten) PWs have been examined including the Medical Officer and two Police Officers. The learned Sessions Judge, after appreciation of the evidence, awarded the verdict of guilt and sentenced the appellant as above. 7. We have heard Mr. AS Choudhury, learned counsel for the appellant as well as Mr. D. Goswami, the learned counsel for the State and have carefully examined the record of the trial Court. 8. It may be mentioned here that Md Ismail Hussain, who was present at the time of occurence and the only eye-witness, was not examined by the prosecution as he was not available in the village. The prosecution succeeded in securing the verdict of conviction mainly relying on the statement of the witnesses relating to oral dying declaration made by the deceased immediately after the occurrence. 9. PW 9 prepared the inquest report, Ext 2. From the report, we find that the deceased had sustained only one stab wound below the naval zone towards the left. 10. PW 3, the doctor, during the course of his examination stated as follows: "On 19.3.92,1 was attached to Barpeta Civil Hospital. On that day I performed post mortem Examination on the dead body of Balai Chandra Das in connection with Balikuri Petrol Post GDE No. 182 dated 18,3.92 and found as follows : Physical appearance : One middle aged not decomposed Rigormortis was, present. On that day I performed post mortem Examination on the dead body of Balai Chandra Das in connection with Balikuri Petrol Post GDE No. 182 dated 18,3.92 and found as follows : Physical appearance : One middle aged not decomposed Rigormortis was, present. External injuries: (1) One penetrating injury on the lower part of the abdomen of about 2cm width x 1.5 cm deep with ante mortem blood clots on pertonal cavity and abdominal wall. (2) One penetrating injury on the lower abdomen. Peritonal wall was found ruptured. Other organs were found healthy. Urinal bladder was found ruptured. However, liver and kidney were healthy. Opinion : In my opinion the death was due to the shock and haemorrage due to the above injury. Ext.l is the P.M. Report and Ext.l(l) is my signature thereon. Ext. 1 (2) is the signature of CM & HO Barpeta C.H. which was known to me. The injury was sufficient to cause death in ordinary course as it had ruptured the urinary bladder. There might have been blood leakage through the bladder. The injury might have been caused by any sharp pointed weapon like dagger." 11. It would appear from the evidence reproduced above that Bolai Chandra Das died of stab injury as alleged by the prosecution. However,from the evidence of Medical Officer, it appears that there were two injuries on the lower part of the abdomen of the deceased. But in our considered opinion, the injury recorded as injury No.2 is the internal injury caused by stab injury as described in injury No.l. After going through the post mortem report, Ext 1, we find no reason to bear any doubt about it, 12. It is established that Bolai Chandra Das succumbed to the penetrating stab injury.But the question is "who has killed him?" The learned Sessions Judge found the answer to this question in the evidence of PW 1, PW 2 and PW 8 before whom the deceased made the statement indicating Satya Ghose as the assailant. We may, therefore, look into the evidence of the witness of dying declaration. 13. PW 1 Akhil Chandra Ghose, a co-villager, was in his bed. A person dashed against the door and fell down calling him outside. He could identify the voice as that of Bolai Chandra Das with whom he had worked earlier. Opening the door, he was Bolai lying on the ground. 13. PW 1 Akhil Chandra Ghose, a co-villager, was in his bed. A person dashed against the door and fell down calling him outside. He could identify the voice as that of Bolai Chandra Das with whom he had worked earlier. Opening the door, he was Bolai lying on the ground. Bolai told him that accused Satya Ghose stabbed him with a dagger. He also saw round-shaped penetrating wound just near the umbelical cord. He poured water on the head of the injured and called Rajendra Shil, Biswanath Malakar, Bhabesh Ghose, Mangal and other neighbours. He also tried to contact the village Doctor who refused to come because of his illness. On his return from the Doctor's house, he heard the injured Bolai Das requesting other persons present to take him to his mother. Accordingly, Bolai was shifted to his house on a pull-cart. Supporting the version of PW 1, PW 2 Smti Nagari Bala Das, wife of the deceased, stated that her husband was brought home by Akhil (PW 1), Nikhil, Haripada, Bisa, Gouranga and others in an injured condition. Her husband, who was in a position to speak, told her that accused Satya Ghose had assaulted him with a dagger. It was further added by this witness that on being enquired, her husband told that there was altercation with the accused in regard to the share of a fishery in presence of Ismail Hussain. the evidence of the above two witnesses further gain support from the evidence of PW 8 Shri Gouranga Chandra Ghose who stated that Bolai told him that it was accused Satya who had stabbed him. This witness also saw the injury on the lower part of the abdomen as pointed out by the deceased. 14. The learned Sessions Judge discarded the evidence of PW 6 Mrityunjay on the ground that he had met the accused at 6 AM on the following morning and, in view of this delay, it is not expected that the injured could have made any state­ment to him. The admission of a suggestion by this witness that he did not tell the I/O that he had conversation with the deceased further augments this doubt. The admission of a suggestion by this witness that he did not tell the I/O that he had conversation with the deceased further augments this doubt. The reason given by the learned Sessions Judge in not relying on his evidence appears to be based on sound logic and hence, we find it difficult to attribute any importance to the statement of this witness. Therefore, consideration regarding the dying declaration has to be confined to the evidence of PW 1, PW 2 and PW 8 only. 15. PW 1 Akhil Ghose and PW 8 Gouranga Chandra Ghose are disinterested neighbours and there cannot be any reason for them to falsely implicate the appellant who also happens to their neighbour. There is no evidence that the relationship of PW I and PW 8 with the accused is strained for any reason whatsoever. There being nothing on record to show that they are sympathetic to the prosecution and hostile to the defence, we find no reason to brand them as unworthy of credence. That apart,, PW 2, wife of the deceased, is not expected to screen out the real culprit and falsely implicate an innocent man. It is there in her statement that her husband had an alteration with the accused regarding fishery matter immediate before the occurrence. The alteration regarding fishery as is evinced by her is not suggestive of any persistent dispute from before between the appellant and the deceased and as such, it cannot be construed as sufficient cause to motivate the wife to falsely implicate the appellant. Therefore, the evidence of PW 1 and PW 8 read with the evidence of PW 2 unerringly points to the guilt of the appellant. The learned counsel for the appellant tried to assail the evidence of the above witness by relying on the decision reported in Dargahi & others vs. State of UP, AIR 1973 SC 2697. But in our considered opinion, in the instant case, PW 1 and PW 8 are neither inimical nor related. PW 2 is spontaneous in her statement. We find no reason to disbelieve them. Therefore, the decision cited above do not salvage the case of defence. 16. But in our considered opinion, in the instant case, PW 1 and PW 8 are neither inimical nor related. PW 2 is spontaneous in her statement. We find no reason to disbelieve them. Therefore, the decision cited above do not salvage the case of defence. 16. The reliability of the dying declaration has also been seriously controverted by the learned counsel for the appellant alleging that the deceased was under spell of liquor at the relevant time and was not in a fit state of mind to make the dying declaration. He referred to the statement of PW 1 and PW 8 in cross examination, about the mental state of the deceased at the time of making the alleged dying declaration and emphasised that no reliance can be put upon such statement to base a conviction. It is true PW 1 stated that the deceased was in an "imbalance state of mind". PW 8 also in his cross-examination stated that Bolai was not in a "full state of mind". What is "imbalance state of mind" or "not in a sull state of mind" have not been properly explained by the witnesses. After as assault by a dagger, a man is not expected to be in normal state of mind. Even if the deceased had consumed liquor before the occurrence, in the absence of proof about the volume of intake, it would not be proper on our part to come to the conclusion that the influence of liquor was such that it was enough to incapacitate the injured from making any reliable statement. It is important to note here that the deceased had consistently, first in the house of PW 1 and, thereafter, in his own house indicted the accused as his only assailant. The successive statements at two different places after a time gap have been consistent. The statements were made within the hearing of PW 1, PW 2, PW 8 and other persons including the mother of the deceased. The successive statements indicting the appellant inspire us to act on the dying declaration made by the deceased. His ability to speak with clarity, in our opinion, cannot be doubted. The statements were made within the hearing of PW 1, PW 2, PW 8 and other persons including the mother of the deceased. The successive statements indicting the appellant inspire us to act on the dying declaration made by the deceased. His ability to speak with clarity, in our opinion, cannot be doubted. The evidence of Medical Officer that the life of the deceased could have been saved had there been any surgical treatment given to him further reinforce the above conclusion inasmuch as it is indicative of the fact that the injury caused on the abdomen had no immediate impact on the brain impairing the memory and the capacity to speak. 17. The learned counsel for the appellant has drawn our attention to the decision reported in Ramesh Bhagwan Manjerakar & others vs. State of Maharashtra, 1997 Crl LJ 796 (Bom) in which case the Bombay High Court discarded the oral dying declaration as doubt was created whether the injured was in a condition to speak or not. In the instant case, we have no hesitation to declare that we have no such doubt in our mind. 18. The learned counsel for the appellant stated that non-examination of other witnesses specially, of the only eye witness Md Ismail Hussain creates a doubt about the veracity of the prosecution case. After going through the order-sheet of the learned trial Court, we find that attempts were made to procure the attendance of Md Ismail Hussain. But he could not be found as he had already left the village. He was a daily wage earner without any permanent residence. As such, non-examination of this witness cannot be treated as "deliberate withholding" permitting adverse presumption against the prosecution. Therefore, the decision reported in 1989 Crl LJ 2169 (SC) to the effect that doubt arises when a material witness is deliberately withheld, is not applicable in this case. Similar is the position with regard to the decision reported in AIR 1971 SC 1586 . 19. Non-examination of the mother of the deceased and other charge-sheeted witnesses, some of them being witness of the dying declaration, remains unexplained. May be the Public Prosecutor in his wisdom did not consider it necessary to multiply the number of witnesses on the point of dying declaration in view of the evidence already tendered. 19. Non-examination of the mother of the deceased and other charge-sheeted witnesses, some of them being witness of the dying declaration, remains unexplained. May be the Public Prosecutor in his wisdom did not consider it necessary to multiply the number of witnesses on the point of dying declaration in view of the evidence already tendered. Whatever may be the reason, there has been a lapse on the part of the Public Prosecutor. Simultaneously, we are constrained to observe that the learned Sessions Judge also failed in his duty to exercise the powers conferred upon him under section 311 CrPC to summon the material witness as Court witnesses. But this lapse, whether on the part of the Public Prosecutor or the learned Sessions Judge, cannot be a contributory factor to render the prosecution case totally untrustworthy if the charge levelled against the accused is otherwise brought home by the evidence of the witnesses already on record. We cannot be oblivious to the fact that it is not the number of the witnesses but the quality of evidence that weighs in a criminal trial. After a careful consideration of the evidence on record we are unable to come to a different conclusion other than that the deceased made the dying declaration indicting the accused appellant as his only assailant which eventually resulted in his death. 20. The next point argued by learned counsel Mr. Choudhury is that there being a GD entry recorded earlier in point of time, the FIR Ext 3 which was filed belatedly is hit by section 162 CrPC. He also challenged both GD entry and the FIR as doubtful because of delay. 21. It is true that the investigation in the instant case started after the GD entry was recorded by PW 9. The FIR, Ext 3 was handed over to the I/O late in the evening by the wife of the deceased. But the contents of the FIR do not materially differ from the contents of the GD entry recorded by PW 9 who has in verbatim reproduced in his evidence the entries made in the General Diary. An FIR is not a substantive piece of evidence but it has its use in impeaching a witness. But the contents of the FIR do not materially differ from the contents of the GD entry recorded by PW 9 who has in verbatim reproduced in his evidence the entries made in the General Diary. An FIR is not a substantive piece of evidence but it has its use in impeaching a witness. Section 157 of the Evidence Act permits its use for corroboration and section 145 of the Evidence Act authorises the defence to use the contents of FIR for the purpose of contradiction. It may be mentioned here that in the instant case the prosecution does not seek any corroboration from Ext 3 to the evidence tendered by PW 2 who lodged the FIR. That being the position, the belated filing of FIR after the GD entry was recorded will have no adverse impact on the prosecution case. The defencce has no reason to be prejudiced as no corroboration is solicited to the statement of PW 2 in the instant case. The learned counsel for the defence has placed before us the decision reported in AIR 1973 SC 491 at 501 and AIR 1960 SC 391 . But the principles highlighted therein in this regard have no applicability in the given circumstances of the instant case. 22. The GD entry was made on 9.20 AM on the following day. Undoubtedly there has been delay. The learned counsel for the State explained that the extraneous injury on the person of the deceased was visibly very simple in nature without any sign of profuse bleeding and, PW 2 and other witnesses, because of their simplicity and ignorance, did not attach any importance to it as is evident from their conduct in not making a serious attempt to procure the assistance of a doctor. In fact, they even could not conceive the seriousness of the matter. The delay in informing the police/lodging the First Information Report cannot be viewed as an exercise for making time to build up a false case. It is needless to point out that an ejahar is the information recorded under section 154 CrPC relating to the commission of an offence on which the investigation starts. In the instant case, the investigation started on the basis .of the GD entry as evinced by PW 9. It is needless to point out that an ejahar is the information recorded under section 154 CrPC relating to the commission of an offence on which the investigation starts. In the instant case, the investigation started on the basis .of the GD entry as evinced by PW 9. Therefore, the ejahar which was belatedly handed over by PW 2 to the Investigating Officer is hit by the provisions of section 162 CrPC and is of no significance for the prosecution except for the limited purposes as provided in the proviso to sub-section (1) of section 162 of the Code'. This situation, however, does not help the defence in any way unless prejudice is shown to have been caused. The defence could not point out how and in what manner it has been prejudiced. The ratio to this decision is based on the principles discussed by the Supreme Court in AIR 1973 SC 1 . 23. The learned counsel for the appellant also argued that the entire process of investigation in this case is wrongful as the investigation started prior to the lodging of the FIR. But we do not find any force in this argument. The receipt and recording of the information by the police is not a condition precedent to the setting in motion of a criminal investigation. From the evidence of PW 9, the police officer, we find that he had started the investigation immediately after recording the GD entry. In course of investigation, the ejahar was submitted to him by the wife of the deceased. In a murder case (cognizable offence), initiation of investigation, that too, after recording GD entry cannot be said to unlawful. The action taken by PW 9 in initiating the investigation at the beginning and, thereafter, handing over the rest of the investigation to the Officer In-charge of Police Station cannot be deprecated. The argument of the learned counsel has no legal basis and, hence, stands rejected. 24. We have carefully considered the oral evidence and circumstances available in this case. Delay in lodging the information to the police has been explained. We have also found the evidence of PWs 1,2 and 8 trustworthy. The medical evidence is consistent with the version of these witnesses. 24. We have carefully considered the oral evidence and circumstances available in this case. Delay in lodging the information to the police has been explained. We have also found the evidence of PWs 1,2 and 8 trustworthy. The medical evidence is consistent with the version of these witnesses. There is absolutely nothing to indicate that either the informant or PW 1 ,and 8 entertained such deep seated grudge as to persuade them to implicate the appellant falsely. The prosecution version is natural and probable. In the circumstances, without and hesitation, we agree with the decision of the learned Sessions Judge that the prosecution case has been proved beyond reasonable doubt. 25. Now we are seized with the question whether the appellant had caused the death of Bolai Das with the intention of causing his death or with the intention of causing such bodily injury as is likely to cause his death. The mitigation circumstances in this case are as follows : "(1) The injured was not given any treatment whatsoever throughout the whole night. (2) PW 3 the Medical Officer stated that the life of the deceased would have been saved had there been surgical treatment extended to him. (3) The accused made no attempt to deal with the second or successive blows. (4) The incident occured immediately after an alteration over a fishery matter." 26. From the circumstances described above, it emerges that the life of the deceased could have been saved had there been proper treatment extended to him immediately. This otherwise shows that the impact of the injury was not so grave so as to cause his death in normal course. This has been evinced by the Medical Officer, PW 3. Further the accused did not make any attempt to deal with second or successive blows which otherwise shows that he lacked the necessary intention to eliminate Bolai Das. The fact that the incident was preceded by an alteration goes to show that it was in approvoked state of mind the appellant had dealt with dagger blow. Although the appellant knew that by such act, he was going to cause such bodily injury as is likely to cause death, the circumstances discussed above bring the offence within the purview of the provisions of clause (3) of section 299 and 4th clause of section 300 and Exception I of section 300 IPC. Although the appellant knew that by such act, he was going to cause such bodily injury as is likely to cause death, the circumstances discussed above bring the offence within the purview of the provisions of clause (3) of section 299 and 4th clause of section 300 and Exception I of section 300 IPC. In our considered opinion, for reasons stated hereinbefore, it cannot be said that the ace used-appellant had the intention to cause death of Bolai Das. Therefore, it would be legitimate on our part to come to the conclusion that the offence committed by the appellant is one punishable under section 304/Part IIIPC. We, therefore, convict the appellant accordingly. 27. In the result, the conviction of the accused-appellant under section 302 Indian Penal Code is set aside. The accused is convicted under section 304, Part II Indian Penal Code. On conviction as above, the accused is sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.100/- in default of which further RI for one year. The accused is entitled to benefit under section 428 CrPC. 28. The appeal is, accordingly disposed of.