H.K.K. Singh, J- This appeal is against the judgment and order dated 19.8.1995 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 146 (WT/A) of 1993 thereby convicting the accused-appellant under section 302 of IPC and sentencing him to undergo life imprisonment. 2. On 1.5.1985 one Anukul Debnath came to Sidhai Police Station and lodged an oral ejahar stating that on the same day i.e. 1.5.85 at about 9.15/9.30 PM, on hearing hue and cry coming from the direction of the house of one Baneshwar Choudhury, he rushed towards the direction and there he found, Abinash Sarkar lying near the back side of the house of Baneshwar. He also found Rabindra Choudhury supporting the head of Abinash. Abinash Sarkar had severe bleeding injuries on his body. The informant also learnt from the persons who were present there that accused Niranjan Shil along with Biswanath Shil and others assaulted Abinash Sarkar. On the basis of the report (ejahar), Sidhai PS Case No. 1 (5)/85 under sections 326/34 of IPC was registered. Subsequently Abinash Sarkar succumbed to his injures on 2.5.85. After investigation, the appellant and the aforementioned Biswanath Shil were charge sheeted for the offence under section 302 read with section 34 of IPC. Hence the trial. 3. After trial, the learned Sessions Judge acquitted the aforesaid Biswanath Shil of the charge leveled against him and convicted the appellant for the offence under section 302 as noted above. The plea of the accused-appellant as gathered from his statement under section 313 of CrPC and also from the trend of cross examination is of total denial and that he has been falsely implicated in the case. 4. We have heard Mr. PK Biswas, the learned counsel appearing on behalf of the accused-appellant and Mr. H. Sarkar the learned Additional Public Prosecutor appearing on behalf of the respondent. Mr. Biswas challenged the judgment of the learned Sessions Judge on more than one ground and he has taken us through the judgment and also the evidence and other materials on record. 5. As per prosecution case, the occurrence took place on 1.5.85. After the occurrence victim Abinash Sarkar was immediately shifted to the hospital where he succumbed to his injuries on 2.5.85. The post mortem examination was performed by one Dr. BK Paul, who died before the trial so, Dr. Pijush Kanti Das who had worked with Dr. 5. As per prosecution case, the occurrence took place on 1.5.85. After the occurrence victim Abinash Sarkar was immediately shifted to the hospital where he succumbed to his injuries on 2.5.85. The post mortem examination was performed by one Dr. BK Paul, who died before the trial so, Dr. Pijush Kanti Das who had worked with Dr. BK Paul for about 27 years deposed before the Court and proved the post mortem examination report (Ext P/l 1). The injuries found by the Doctor on the body of the deceased are as follows : "1. The incised looking wound over the the and posterior part of scalp 5" x 1" x 1/2" and 4" x 1" x W having the bone beneath cut off and stitch given. 2. One incised looking wound over the upper part of right shoulder extending from back to front aspect 4" x 1 "x W stitch given. 3. One incised looking wound over the right side of back at the middle part 6"x 1" x 2" stitch given. 4. One lacerated cut injury over the palmier aspect of right hand extending from base of hand up to the root of the middle finger 4" x 1” x 1”. 6. According to the post mortem report, injuries were caused by sharp cutting and moderately heavy weapon. The cause of death was "due to shock 4th haemorrhage resulting from the multiple injuries including brain injury which is fatal". Further the doctor who deposed on the basis of the post mortem report Ext P/l1 prepared by Dr. BK Paul also has jpv«n his independent opinion before the Court that the injuries available in the postmortem report are not sufficient in the ordinary course of nature to cause death, but the injury on the head was imminently dangerous to cause death. In the course of the trial and also at the time of hearing of the present appeal the opinion of the doctor who performed the post mortem examination is not disputed. Thus, we have no hesitation to come to the conclusion that the finding of the learned Sessions Judge that the deceased Abinash Sarkar died on 2.5,85 as a consequence of the injuries caused on him was correct. 7. Thus, we have no hesitation to come to the conclusion that the finding of the learned Sessions Judge that the deceased Abinash Sarkar died on 2.5,85 as a consequence of the injuries caused on him was correct. 7. Regarding the occurrence, the prosecution has relied upon the oral evidence of eye witnesses, corroborative evidence of other witnesses who threshed to the spot of crime just after the occurrence and oral dying declaration. 8. Shri Gautam Dhar, PW No. 2 and Sankar Deb, PW No. 15 are the direct eye witnesses of the occurrence. Sankar Deb (PW 15) and deceased Abinash £ Sarkar went to the house of Gautam Dhar (PW 1) at about 8/8.30 PM and they gossiped there for about an hour. Thereafter at about 9/9.30 PM, PW 15 and deceased left the house of PW 2. PW 2 also escorted them upto his; gate. Thereafter PW 2 remained at his gate, PW 15 and deceased proceeded towards South and had moved about 25/26 cubits from the gate of PW 2. PW 2 also saw accused Niranj an Shil also going towards the same direction. Suddenly, Niranajn Shil chopped Abinash Sarkar with a dao near the shop of Sankar Choudhury. Abinash raised alarm. In the meantime, PW 2 also rushed towards the spot to intervene in the matter, but accused Niranj an Shil threatened him wielding the dao in his hand and thus through fear PW 2 went back home. In the meantime, PW 15 also raised alarm when he saw the accused assaulting Abinash Sarkar with a dao. At that time accused BiswanathS nil also advanced towards the spot with a lathi in his hand saying see the result of quarrel with us". But PW 2 and PW 15 saw accused Niranjan Sftul assaulting Abinash Sarkar with a dao. As PW 2 left through fear, PW 15 also left the place out of fear. Abinash Sarkar after receiving 2/3 injuries from the dao ran away towards South and fell down in front of the house of Banes war Choudhury. Both PW 2 and 15 came back to the spot after 15/20 minutes and? also on hearing the alarm and hue and cry many persons of the locality rushed there. Abinash Sarkar after receiving 2/3 injuries from the dao ran away towards South and fell down in front of the house of Banes war Choudhury. Both PW 2 and 15 came back to the spot after 15/20 minutes and? also on hearing the alarm and hue and cry many persons of the locality rushed there. Anukul Debn&th (PW1) who also rushed to the spot on hearing the hue arid cry along with Ratan Dutta PW 13 went to the Police Station and lodged the ejahar orally which was reduced into writing by PW 17 Sujit Gupta who was Sub Inspector of Police of Sidhai PS. In the meantime, PW 6, Rabindra Sarkar, PW 7 Prembilash Sarkar and PW 9 Partha Sarkar carried the injured Abinash to Mohanpur Primary Health Centre and thereafter injured was shifted to GB Hospital. The informant PW 1 also mentioned in his ejahar that at about 7 I'M of the date of occurrence Abinash Sarkar came to the shop of one Harakrishna Debnath and told the informant that on that day a settlement would be made between accused Niranjan Shil and others regarding the 'golmat' which occurred two days before the occurrence. 9. Regarding the dying declaration, PW 11 Rabindra Choudhury, Who is one of the persons who rushed to the spot after the occurrence after hearing the hue and cry raised by the victim and others, stated that he (PW 11) learnt from Abinash Sarkar that he was assaulted by accused Nira and Bishu. Rabindra Sarkar (PW 6) and Prembilash Sarkar (PW 7) who are brother/cousin of the deceased stated that in presence of others they learnt from Abinash Sarkar that accused Nira and Bishu assaulted him. Again Partha Sarkar (PW 9) has also stated that he learnt from PW 11 that accused Nira and Bishu inflicted the injuries on Abinash Sarkar and PW 11 also stated that he learnt from Abinash Sarkar that he had been assaulted by accused Nira and Bishu. 10. The learned Additional Sessions Judge, relying upoa the evidence of the eye witnesses which is supported by the other evidence along with material exhibits like weapon of the offence (dao), found that accused Niranjan Shil is the guilty of the offence of murder. 10. The learned Additional Sessions Judge, relying upoa the evidence of the eye witnesses which is supported by the other evidence along with material exhibits like weapon of the offence (dao), found that accused Niranjan Shil is the guilty of the offence of murder. But accused Biswanath Shil was acquitted of the offence as noted above though the learned Sessions Judge did not rely upon e the oral dying declaration and, rightly so. 11. Two accuseds, namely, Niranjan Shil and Biswanath Shil were charged for the offence under section 302 read with Section 34, IPC. Accused Biswanath was acquitted and accused Niranjan Shil was convicted under 302 simpliciter. Mr. PK Biswas, the learned counsel for the appellant has strongly contended that in absence of a specific charge for the offence under Section 302 IPC against accused Niranjan Shil no conviction can be made. Mr. Biswas has also submitted that charge framed against accused for offence under section 302 read with section 34 has not been altered into one under section 302 simpliciter and as such conviction cannot lie. Mr. Biswas has relied upon decision of the Apex Court in the case of Lakhan Mahto & others vs. State of Bihar, reported in AIR 1966 SC 1742 and also another decision in die case of State of West Bengal vs. Vindu Lachmandas Sakhrani alias Deru, respondent reported in AIR 1994 SC 772 . On the other hand, the learned Public Prosecutor has submitted before the Court that in case where more than one accused have been charged and tried for a substantive offence read with section 34 IPC and if, as per evidence offence is disclosed against a specific person and no evidence has come out against the other person then the accused against whom evidence of specific offence is available may be convicted for the substantive offence simpliciter if, no prejudice has been caused to the accused. 12. In the aforesaid case of Lakhan Mahto (supra) several accused persons were charged arid convicted for the offence under section 302 read with section 149 IPC. One of them specifically charged under section 302 and was acquitted of that charge. There was an appeal against conviction but there was no appeal by the State against the acquittal under section 302 IPC. One of them specifically charged under section 302 and was acquitted of that charge. There was an appeal against conviction but there was no appeal by the State against the acquittal under section 302 IPC. The Apex Court held that the High Court cannot alter conviction under section 302/ 149 into one under section 302 or 326 simpliciter. The ratio of this case is not directly applicable in the present case as the provision of section involved in the case was section 149 and not section 34 IPC and as such considering the difference of the scope and the principles of the aforesaid two sections i.e. 34 and 149 IPC concerning vicarious criminal liability, this decision may not be applicable in the prevent case at hand. 13. In the next case, relied upon by the learned counsel for the appellant, State of West Bengal (supra) two accused were charged for the offence under section 302 read with section 34 of IPC. One accused was acquitted but the other was convicted under section 302 IPC simpliciter, though no independent charge under Section 302 was framed. The Apex Court held that common intention being core of the charge, no conviction can be made without an independent charge under section 302 IPC. But in that case the Supreme Court clearly held that there was no direct evidence in that case and prosecution relied upon various d circumstances and the High Court acquitted the respondent on the ground that there was no sufficient evidence against the respondent Affirming the order of acquittal in appeal preferred by the State, the Supreme Court dismissed the appeal. Thus, in this case also there was no specific evidence against the accused who had earlier been convicted by the trial Court and latter acquittal by the High Court in appeal, committed the offence. Thus, it is not helpful in the present case. 14. Section 464 CrPC provides that no finding, sentence or order shall be deemed to be invalid on the ground of error, omission or irregularity in the charge, unless, a failure of justice has in fact been occasioned thereby. Thus in the light of the provision of section 464 CrPC the present case has to be decided. 15. 14. Section 464 CrPC provides that no finding, sentence or order shall be deemed to be invalid on the ground of error, omission or irregularity in the charge, unless, a failure of justice has in fact been occasioned thereby. Thus in the light of the provision of section 464 CrPC the present case has to be decided. 15. In the case of Kishore Chand vs. State of Himachal Pradesh, reported in AIR 1990 SC 2140 three accused persons were charged for the offence ander section 302 IPC and 201/34 IPC. Two accused were acquitted of the charges and the other accused person was convicted for the offence under section 302 simpliciter. There was no independent charge under section 302 DPC. The Apex Court held that if from the evidence, it is established mat any one of the accused have committed the crime individually, though the other accused S were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302 IPC simpliciter. The omission to frame an independent charge for the offence under section 302 IPC simpliciter does not vitiate the conviction and sentence under section 302 IPC. 16. In the case of Yeshwant & others etc vs. State of Maharashtra, reported in AIR 1973 SC 337 it was also held by the Apex Court that in a trial for an offence under section 302 read with section 34 of IPC, when all the accused persons except one were acquitted on the ground of benefit of doubt or any other ground, the remaining accused may be convicted, if the evidence available against him was sufficient for the offence under section 302 simpliciter. 17. In the case of Sawal Das vs. State of Bihar, reported in AIR 1974 SC 778 the Apex Court relying upon an earlier decision reported in AIR 1963 SC 1414 and AIR 15T7I SC 2064 held that when three persons are charged under section 302 read with section 34IPC, two are acquitted and if the liability , of the third accused is proved individually and not conjointly upon him, conviction may be made under section 382 IPC simpliciter. 18. 18. Again a EH vision Bench of this Court in the case of Sambhu Bora & another vs. State of Assam, reported in 1987 Crl LJ 1027 held that in a case of murder charge under section 302 read with section 34 IPC was framed and convicted by the trial Court. In appeal acquitting one and convicting the other c remaining accused under section 304 Part I IPC held that no prejudice should be caused ta the accused and in that case the learned Court relied upon the decision of the Supreme Court in the case of Lok Pal Singh vs. State of MP, reported in 1985 Cri LJ 1134. 19. From the above decisions it is to be seen if the conviction of the accused for the offence under section 302 simpliciter may be maintained, with case, the direct evidence of PW 2 and PW 15 are found supported by the corroborative medical evidence, inquest report and recovery of the weapon of the offence and as per evidence it is proved that accused Niranjan Shil assaulted the deceased with a dao in his hand. The learned Sessions Judge acquitted accused Biswanath Shil and no appeal has been filed by the State against the acquittal, thus we need not go further in respect of accused Biswanath Shil and the learned Sessions Judge specifically mentioned in examination under section 313 CrPC about the dab blows given by the accused Niranjan Shil on the person of deceased. Thus, accused Niranjan Shil well aware of the evidence against him. Hence, we are of the opinion that no prejudice Would be caused if the accused is convicted under section 302 simpliciter even if no charge has been framed for the offence under Section 302 IPC. 20. The next point raised by Mr. PK Baswas is that the FIR is anti-timed and anti-dated and the learned counsel relied upon the decision of the Apex Court in the case of Meharaj Singh vs. State of UP, reported in (1994) 5 SCC 188 . In our case, in the body of the FIR it is mentioned that the same was lodged at 22.30 hours and the Investigating Officer, PW 17 stated that the informant came to the Police Station at 22.20 hours and reported the incident which was recorded in the GD Entry No: 31, dated 1.5.85 which took about lOto 15 minutes. In our case, in the body of the FIR it is mentioned that the same was lodged at 22.30 hours and the Investigating Officer, PW 17 stated that the informant came to the Police Station at 22.20 hours and reported the incident which was recorded in the GD Entry No: 31, dated 1.5.85 which took about lOto 15 minutes. After making the GD Entry he arranged for a police vehicle arid deputed officers and staff to the place of occurrence which took place about 5 minutes and thereafter the Investigating Officer (PW 17) recorded the FIR .Ext P/I on the oral report of the informant PW Iv The learned counsel has also submitted that no reference of crime number or Police Station case number is mentioned in the inquest report (Ext P/7) nor in the post mortem examination report (Ext P/l 1). 21. We have considered the matter and we are of the opinion that the submissions of the learned counsel for fee appellant has no substance. Everything happened hi a quick succession and we also find the FIR was lodged promptly and investigation commenced. Non-mentioning of the case number in inquest report or in the post mortem report, in the circumstances of the case is only a minor omission which can not go to the root of the case. 22. Another point raised by Mr. Biswas, is that in the post mortem examination stomach was found fill of rice and no abnormal smell was there. The learned counsel has submitted that in such a case die occurrence as narrated by the prosecution is not probable and he relied upon Modi's Medical Jurisprudence and Toxicology, Twenty first Edition at page 185. The learned counsel has submitted that as the occurrence took place at 9/930 PM and as there is no evidence that deceased took meal within about 2/3 hours before the occurrence, thus, the entire prosecution story as narrated by PW 2 and PW 15 is not believable. The learned counsel has also relied upon the decision of the Supreme Court in the case of Meharaj Singh (supra) in this regard. 23. In the present case at hand, according to PWs 2 and 15 the deceased was all along with them from 7/7.30 PM onwards i.e. about 2/2-1/2 hours. Though there is no direct evidence from the mouth of the witnesses that they took meal food. 23. In the present case at hand, according to PWs 2 and 15 the deceased was all along with them from 7/7.30 PM onwards i.e. about 2/2-1/2 hours. Though there is no direct evidence from the mouth of the witnesses that they took meal food. Again, in Modi's Judical Jurisprudence at page 185 inferred to by Mr. Biswas it is found, "the fate of emptying of stomach varies in healthy persons. The emptying of stomach depends on (i) consistency aft food, (ii) motility of stomach, (iii) osmotic pressure of stomach intents, (iv) quantity of food in duodenum, (v) surroundings in which food is taken, (vi) emotional factors and (vii) residual variations. It various in man from 2.5-6 hours. A meal containing carbohydrates generally leaves the stomach early and one containing proteins later. The fatty food delays emptying time while liquids leave the stomach immediately after ingestion. Sometimes the emptying of stomach remains in abeyance for a long time in states of profound shock and come. Food has been seen in the stomach remaining undigested in person who received severe head injuries soon after their meal and died within twelve to twenty four hours afterwards. In one case the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours without undergoing digestion. It mast also be remembered that the process of digestion in normal, healthy persons may continue for a time after death. The presence pf tablets or parts of capsules may be significant.” 24. Thus, even if the deceased took his evening meal before he met any of the witnesses the post mortem report does not go against the prosecution story. Both the cases relied upon by the learned counsel for the appellant will not be of any relevance with the present case. 25. The next point raised by the learned counsel for the appellant is that in the present case many important witnesses, namely, Harakrishna Debnath, Sankar Choudhury, Sanjib Dey and Baneswar Choudhury were withheld by the prosecution. To this, learned Public Prosecutor has submitted that Sankar Choudhury and Baneswar Choudhury were not available at their respective house and shop and it was further submitted that it is not necessary to examine all the witnesses for the sake of avoiding repetition. To this, learned Public Prosecutor has submitted that Sankar Choudhury and Baneswar Choudhury were not available at their respective house and shop and it was further submitted that it is not necessary to examine all the witnesses for the sake of avoiding repetition. It is true that important witnesses should be examined if available, but sometimes prosecution may not examine all the witnesses just to avoid repetition of narration of the same fact. If evidence available on record are sufficient to prove the case beyond any doubt then non examination of one or some of the witnesses may not result in discarding the whole prosecution story which is otherwise found proved from available materials on record. 26. For the aforesaid reasons and conclusion we are of the view that the prosecution has been able to prove the case that the accused Niranjan Shit assaulted the deceased on the date, time and place with dao causing multiple injuries on the body of the deceased Abinash Sarkar and accordingly we affirm the conviction and sentence as recorded by the learned Additional Sessions Judge, West Tripura, Agartala. 27. The appeal fails and accordingly the sameds dismissed.