G. R. BHATTACHARJEE, J. ( 1 ) BOTH the above noted death reference and criminal appeal are being dealt with and disposed of by this judgment as they arise out of the same judgment of the Addl. Sessions Judge, 1st Court, Howrah passed in Sessions Trial No. III (October) 1994. It is a case of triple murder. The trial Court by its judgment dated 17/12/98 convicted the appellant Utpal Mondal under section 302 IPC for murder of three persons namely, Smt. Padmarani Mondal, her son Soumen Mondal alias Patal aged about four years and her father-in-law Sudhir Mondal and by order dated 19/12/98 sentenced the appellant to death and also to a fine of Rs. 1,000/- i. d. to R. I. for six months for his conviction under section 302 IPC. Being aggrieved by the judgment and the orders of conviction and sentence, the appellant-accused Utpal Mondal has preferred the present appeal. The trial Court has also referred the case under section 366 Cr. PC to this court for confirmation of the death sentence. Both the death reference and the appeal are being disposed of together by this judgment as already noted above. It may be noted here that originally the trial Court framed charge against the accused Utpal Mondal under three heads, each under section 304 Part-I IPC for causing death of the respective victims. After the commencement of the trial at the conclusion of the examination-in-chief of P. W. 1 Sachindra Mohan Mondal the trial Court, on the prayer of the prosecution, altered the charge to section 302 IPC in place of section 304 Part-I IPC. Briefly speaking the allegation against the appellant is that on 29th July, 1991 at about 7-00 a. m. in the morning he assaulted the aforesaid three victims with wooden 'tasla' (i. e. wooden bar used for bolting door from inside) in their house as a result of which Padmarani died soon after his removal to Uluberia Hospital whereas Soumen @ Patal died in the hospital two days later. Padmarani is the boudi (elder's brother's wife) of the appellant Utpal and Soumen is the son of Padmarani. The deceased Sudhir is the father of the appellant Utpal. ( 2 ) EXT. 1 is the FIR of the case. The FIR was lodged by P. W. 1 Sachindra Mohan Mondal who is the husband of Padmarani and elder brother of the appellant Utpal Mondal. The deceased Sudhir is the father of the appellant Utpal. ( 2 ) EXT. 1 is the FIR of the case. The FIR was lodged by P. W. 1 Sachindra Mohan Mondal who is the husband of Padmarani and elder brother of the appellant Utpal Mondal. It may be mentioned here that appellant Utpal and his brothers are three in number. The eldest one is Murari Mohan, the second one is P. W. 1 Sachindra and the youngest one is the appellant Utpal. In the FIR it is stated by P. W. 1 Sachindra that his father divided the ancestral property amongst the three sons and each one was given one bigha land leaving two bighas of land for the father himself. It is stated in the FIR that Sachindra's father used to stay with him and on 28/7/91, Sunday at about 6-00 a. m. in the morning his elder brother planted paddy saplings in the field allotted to Sachin and there was an altercation between his father and the younger brother Utpal on the issue of replantation and at that time Padmarani, the wife of Sachin went to stop the quarrel but his elder brother Murari and his wife Depali Mondal made an attempt to assault her and that on 29. 7. 91 (Monday) in the morning a quarrel started between the wife of Sachin and the wife of the elder brother of the Sachin concerning the previous day's altercation and at that time Sachin told his wife to remain silent and went to field at 6-00 a. m. It is the further case in the FIR that while Sachin was working in the field at about 8-30 a. m. his cousin Kamal Mondal and Manabendra Sana (P. W. 9) reported that at about 7-00 a. m. his younger brother Utpal Mondal assaulted with a wooden cudgel his wife Padmarani, his father Sudhir Chandra Mondal and also assaulted his son Soumen as a result of which all three were lying in injured condition and on hearing the same he immediately rushed to his house and saw that his wife Padmarani was lying dead with bleeding injuries with face downwards on the varandha of the bed-room of his father. It is also stated in the FIR that before the complainant Sachin arrived, his father and son were sent to the hospital and he learnt from Susanta Mondal (P. W. 4), Rabin Mondal (P. W. 6) and Rabindranath Polley (P. W. 5) that Utpal expressed grief and said that he became excited and assaulted the three victims with a wooden cudgel and committed a crime, and also requested them to save him, and at that time the villagers compelled him to sit. The FIR was signed by P. W. 1 Sachinda Mohan and it was scribed by P. W. 10 Sukhen Mondal. It appears from the endorsements in the FIR that the FIR was received by S. I. A. K. Sam anta (P. W. 15) at 9-50 a. m. while he had been camping at Moubasia Dakshinpara where the occurrence took place and then he forwarded the same to O. C. Ulubaria P. S. through A. S. I. Amal Singha Roy for starting a case under section 304/325/326 IPC and the same was received at the P. S. at 11-45 a. m. and the Ulubaria P. S. case No. 172 dated 29. 7. 91 was started under the aforesaid sections. In this connection it is also to be mentioned here that ext. 11 is the Ulubaria P. S. G. D. entry No. 1488 dated 29. 7. 91 which was lodged at 9-05 a. m. It is recorded in the said G. D. entry that one Samir Mondal and Mongalmoy Mondal of Moubasia came to the P. S. and informed that a serious tension was going on at Moubasia between Utpal Mondal and his father and others over the dispute of paternal property and death of wife of Sachin Mondal was caused. It is also recorded in the G. D. entry that on receiving that information, S. I. A. K. Samanta (P. W. 15) S. I. J. N. Sarkar (since deceased), A. S. I. N. Dey and A. S. I. A. K. Singha Roy left for the P. O. along with constable No. 833. It has been submitted by the learned Advocate for the appellant that neither the said Samir Mondal nor Mongalmoy Mondal has been examined on behalf of the prosecution although Mongalmoy was cited as a witness in the charge sheet. It has been submitted by the learned Advocate for the appellant that neither the said Samir Mondal nor Mongalmoy Mondal has been examined on behalf of the prosecution although Mongalmoy was cited as a witness in the charge sheet. It has also been submitted by him that even Kamal Mondal who has been named in the FIR has also not been examined on behalf of the prosecution although he was cited as a witness in the charge-sheet. It is however to be mentioned that in the FIR it is stated that Kamal Mondal and Manabendra Sana both reported to the P. W. 1 Sachindra in the field about the incident. Although Kamal Mondal has not been examined, Manabendra Sana has been examined as a prosecution witness, being P. W. 9. It is needless to mention that it is not absolutely necessary always that all the witnesses on a particular point must be examined by the prosecution. ( 3 ) WE now proceed to look to the evidence of the prosecution witnesses examined in the case. From the evidence of P. W. 1 Sachindra Mondal we get that he along with the members of his family used to reside in their house at village Moubasia within the P. S. Ulubaria and the members of their family included his wife and child, his elder brother Murari, Murari's wife (P. W. 2) and two children, his younger brother Utpal (the appellant) and their father Sudhir Chandra Mondal as well as his jattuto dada (elder cousin brother), his wife and children. From him we also get that although adjacent to each other, Murari with his family used to live in the old two storyed house with Utpal, and Murari used to live in the ground floor and Utpal in the first floor. We also get it from him that there are three rooms in the ground floor of the said house and three rooms at the first and out of the six rooms two were in occupation of Murari and Utpal, while the remaining four were in the occupation of his cousin brother Himanshu Mondal and his family. P. W. 1 Sachin says that their father used to stay with him in his family. P. W. 1 Sachin says that their father used to stay with him in his family. We also get it from him that his father was aged about 70 years and formerly he was a teacher in Moubasia Kalitala Prathamik Vidyalaya and he retired from his service 10 years back. He says that the portion in which he lives is mud-built and the portion in which his father lived was a pucca-built house. In this connection it has to be noted here that Ext. 12 is the sketch map with index which was prepared by the police officer and which will give some idea about topography of the place. P. W. 1 Sachindra says that on the date of incident i. e. 29. 7. 91 in the morning when he was about to go to the field for cultivation, a quarrel was occurring between Padmarani (his wife) and Depali Mondal (the wife of Murari ). He further says that at that time his son Soumen @ Patal aged about four years was also in the house. He says that as he was about to leave for cultivation, he advised the two women not to quarrel and told them that after coming back from the field he would settle the matter. His further evidence shows that subsequently while he was cultivating in the field at about 7-30 a. m. his relations and close neighbours Manabendra and Kamal rushed to him and reported that his brother Utpal had assaulted and killed his wife Padmarani, his father Sudhir and his son Soumen, and all of them were lying in pool of blood and on hearing this, he rushed to his house and found that villagers Syamal Mondal (P. W. 8), Kamal Mondal, Susanta Mondal (P. W. 4), Rabin Polley (P. W. 5) and others had detained Utpal and surrounded him so that he could not flee away. He says that he found that his wife Padmarani was lying in a pool of blood in front of the door of the room of his father and she was already dead. He further says that he also found that his father Sudhir Mondal was lying in a pool of blood on the stair-case in the house of Himanshu Mondal. He says that he found that his wife Padmarani was lying in a pool of blood in front of the door of the room of his father and she was already dead. He further says that he also found that his father Sudhir Mondal was lying in a pool of blood on the stair-case in the house of Himanshu Mondal. His father was not in a position to speak and his son Soumen he says was lying in a pool of blood near his mother and was still screaming in pain. His evidence is that his father and son were removed to Uluberia Hospital but Padmarani was not removed as she was already dead. He says that 10/15 minutes after his removal to the hospital his father died and his son also succumbed to his injuries two days thereafter. He says that those who detained Utpal told him that they had seen Utpal assaulting the victim and they also stated that Utpal had confessed his cruelty before them. He further says that Utpal also confessed before him about his guilty in assaulting the three victims with a tasla. It has been criticised by the learned Advocate for the appellant that the persons who are said to have detained Utpal did not actually see assault by Utpal and therefore the evidence of Sachindra on the point is not true. In our opinion when an occurrence of the such a magnitude as happened in the present case takes place and different persons come to the place on hearing cries obviously in quick succession, every description of the occurrence by the different witnesses need not be tested on the envil of mathematical accuracy. It is needless to say that reasonable flexibility must be allowed to play in the matter of appreciating the description of the incident given by the witnesses in respect of an incident of this nature when innocuous variations about details are not unexpected even in normal circumstances. P. W. 1 Sachindra says that at the house Tarapada Polley and Gangarani Mondal (P. W. 3) stated before him what they had seen about the incident. It has been commented upon by the learned Advocate for the appellant that Tarapada has not been examined in this case although he was cited as a witness in the charge-sheet. However as we have seen Gangarani was examined as a witness. It has been commented upon by the learned Advocate for the appellant that Tarapada has not been examined in this case although he was cited as a witness in the charge-sheet. However as we have seen Gangarani was examined as a witness. P. W. 1 Sachindra says that Gangarani told him that she had seen accused Utpal assaulting his wife, his father and his son with a tasla and she also told him that after the assault the accused had thrown away and dropped the tasla in a nearby tank. Gangarani is the wife of Surath Mondal who is the cousin brother of P. W. 1 Sachindra. P. W. 1 however says that his injured father and injured son were removed to hospital almost immediately on his arrival at his house. He says that Depali (P. W. 2) also stated to him that the accused Utpal had assaulted his wife, his father and son with a tasla. It may be mentioned here that P. W. 2 Depali was however treated as a hostile witness by the prosecution. In his cross-examination P. W. 1. Says that the viti (plinth) of Susanta is about 5/6 ft below the viti of P. W. 1 From him we got that Hare Krishna Mondal and Dwarik were two brothers and P. W. 1 is a descendant of Hare Krishna Mondal whereas Susanta is the descendant of Dwarik Mondal. He says that he found that Utpal was confined near the house of Susanta Mondal and police also saw Utpal. He says that Himanshu and his family were confined in a room, but he then says that he does not know and he cannot say if they were confined to save them from assault by crowd. He says that Murari's wife and Utpal also used to love his son Soumen @ Patal. They were all separate in mess. He says that Himanshu and his family were confined in a room, but he then says that he does not know and he cannot say if they were confined to save them from assault by crowd. He says that Murari's wife and Utpal also used to love his son Soumen @ Patal. They were all separate in mess. ( 4 ) P. W. 2 Dipali Mondal however did not say in Court what she was expected by the prosecution to say and she was treated by the prosecution as a hostile witness, but from her evidence it is also clear that she heard cries and on hearing the same she came to the court-yard of Himanshu and found that the father of Sachin was lying in his courtyard with bleeding injuries and the wife of Sachin and the son Patal were lying in dalan with bleeding injuries on their persons. She says that she came to the house of Bistu Pada Mondal and narrated the incident to them. She says that she came to know that Utpal had been confined at the P. O. We also get it from her that Utpal who is her youngest debor is staying with her as paying guest. It may be mentioned here that during the investigation her statement was recorded by the Magistrate under section 164 Cr. PC. But what she now wants to say is that what she said before the Magistrate was said by her as tutored by police. ( 5 ) P. W. 3 Ganga Mondal says that P. W. 1 Sachin is her cousin debor and that the accused resides by the side of their house. Her evidence is that on the day of the incident (Monday) she heard cries at about 6/7 a. m. and she went there and saw the incident through the window of the room of Sachin. She says that she found Padmarani lying with bleeding injuries and also found Utpal assaulting his father with tasla. Patal, she says, was lying with bleeding injuries and he was still moving. She says that Utpal thereafter came back. She further says that before that Utpal assaulted his boudi (Padma) and Patal with tasla, and she had seen it. It appears that while deposing she did not maintain the exact sequence of what she saw. Patal, she says, was lying with bleeding injuries and he was still moving. She says that Utpal thereafter came back. She further says that before that Utpal assaulted his boudi (Padma) and Patal with tasla, and she had seen it. It appears that while deposing she did not maintain the exact sequence of what she saw. But her evidence is definite and emphatic that she saw assault by Utpal with tasla on Padmarani, Soumen and Utpal's father. She says that she started crying for help and Shyamal and Kamal, the sons of her debor Ajit came and removed Patal. She further says that people from the locality assembled there and removed Patal to hospital and thereafter the father of Sachin was also removed to hospital. Her evidence is that the accused Utpal came before Susanta and prayed for saving him as he did the mischief. She says that Utpal was fleeing away when para-people caught hold of him and confined him. In her cross-examination she says that it may be that long ago there was Court case with Himanshu and others regarding bastu land and previously they had no talking terms with Himanshu and his family members. We get it from her cross-examination that her house is situated on the eastern side of the house of Sachin towards tank and her viti is about one man's height lower than the viti of Sachin. She says that she saw the incident after climbing over stack of bricks which were kept there near the window of Sachin. The house of Murari, she says, is not visible from the window wherefrom she saw the incident but the house of Himanshu is visible. She says that Utpal left towards the house of Murari after the incident but she did not go inside the house of Sachin and she came out to the road through her house and cried out for help. It has been commented upon by the learned Advocate for the appellant that she had to climb up a man's height and then see the incident and this indicates that it was not actually possible for her to see the incident. We cannot accept this submission. The incident involving three victims obviously did not take place in one moment. It has been commented upon by the learned Advocate for the appellant that she had to climb up a man's height and then see the incident and this indicates that it was not actually possible for her to see the incident. We cannot accept this submission. The incident involving three victims obviously did not take place in one moment. It must have continued for a considerable length of time and therefore there was obviously sufficient time for the P. W. 3 to come and see the incident through the window after taking up proper position. Evidence of Post mortem doctor will also show that there were several injuries on the person of Padmarani which also will indicate that the assault on Padmarani was not an affair of one moment only. There is therefore no improbability in the evidence of Ganga that she saw the incident of assault on the three victims by the accused Utpal with tasla. In her cross-examination Ganga says that she was not interrogated by the police but she is disclosing for the first time before the Court what she had seen, namely, that she had seen Utpal assaulting his father, boudi and Patal with tasla and thereafter he was leaving away. It is submitted by the learned Advocate for the appellant that this shows that Ganga was not at all examined by I. O. during investigation and it is for the first time in Court that she stated about the incident. She says that she did not state before the I. O. that Utpal came before Susanta and prayed for saving him as he did the mischief. Utpal, she says, was apprehended by villagers when he was leaving the house and he was assaulted by villagers and was tied up with a tree. Gangarani is a rustic village woman and also illiterate as would be evident from the fact that she affixed her L. T. I. on her deposition. The occurrence took place in July 1991 and the witness was deposing in the Court in June, 1998, i. e. seven years after the occurrence. It is therefore quite possible that the rustic village woman may not recollect whether she at all made any statement to the investigating officer or to the police after the occurrence. The occurrence took place in July 1991 and the witness was deposing in the Court in June, 1998, i. e. seven years after the occurrence. It is therefore quite possible that the rustic village woman may not recollect whether she at all made any statement to the investigating officer or to the police after the occurrence. The defence has not taken it from any of the police officers as to whether Gangarani was or was not examined by the police during investigation. One of the I. O. namely, S. I. J. N. Sarkar was dead at the time of trial, but the other police officers were examined in the case but it was not taken by the defence that Gangarani was not at all examined during the investigation by the police. In cross-examination the defence took it from Gangarani that she has stated before the I. O. that Sachin Mondal is her cousin debor and they were not in speaking terms with Sachin's family. This clearly indicates that Gangarani was examined by the I. O. under section 161 Cr. PC. The learned Advocate for the appellant has submitted that the prosecution has introduced Gangarani as the sole eye witness of the occurrence as P. W. 3 only after the P. W. 2 while giving evidence did not comply with the prosecution expectation to speak in favour of the prosecution case and that being so it is evident that the P. W. 3 cannot be at all relied upon. In our opinion, this submission is not acceptable, firstly, because it is not the defence case that Gangarani was not at all cited as witness by the prosecution, and secondly if Gangarani were not at all examined by the I. O. during investigation there would have been no question of supplying any copy of section 161 statement to the accused before the trial and in that event the accused would have taken objection even at that stage that no copy of section 161 statement of Gangarani was supplied to the prosecution, but that was not done. On the contrary, as we have seen, the defence in cross-examination took from Gangarani what she stated to the I. O. Thirdly, P. W. 1 as we have seen, in his evidence has said what he learnt about the incident from Gangarani. On the contrary, as we have seen, the defence in cross-examination took from Gangarani what she stated to the I. O. Thirdly, P. W. 1 as we have seen, in his evidence has said what he learnt about the incident from Gangarani. Obviously P. W. 2 the hostile witness was yet to be examined at that stage. Therefore it cannot be said that Gangarani had been introduced by the prosecution as P. W. 2 only after P. W. 2 belied the expectation of the prosecution and was treated as hostile witness by the prosecution. As a matter of fact, as we have seen, P. W. 1 has stated in his deposition what he heard from Gangarani and this he stated when P. W. 2 was not yet examined. ( 6 ) P. W. 4 Susanta Kr. Mondal is the cousin brother of P. W. 1 Sachin and is also his neighbour. His evidence is that on the date of the occurrence at about 7-00 a. m. he came back after fetching milk and at that time he heard P. W. 3 crying for help and he asked Shyamal and Kamal, his bhaipos (nephews) to go to the P. O. and enquire what had happened. He further says that he was told by Kamal and Shyamal that the wife of Sachin had been murdered and Patal and Utpal's father were lying with bleeding injuries and they were still alive. He says that he came out of his room and found the accused (Utpal) trying to flee away with a cycle and he asked him to stop. Patal, he says, was removed to hospital after he was given some warm milk. Utpal, he says, prayed for saving his life as he had committed the mischief and he was apprehending assault from the villagers for his said act. He further says that Utpal confessed that he murdered his father, boudi and Patal and he was confined and villagers came and police was informed. The police, he says, came at about 9-00/9-30 a. m. and he narrated everything to the police. It may also be mentioned here that his statement was recorded under section 164 Cr. PC by the Magistrate. In his cross-examination he says that on the day on which his statement was recorded by the Magistrate, the statements of Rabin Polley and Tarapada were also recorded. It may also be mentioned here that his statement was recorded under section 164 Cr. PC by the Magistrate. In his cross-examination he says that on the day on which his statement was recorded by the Magistrate, the statements of Rabin Polley and Tarapada were also recorded. In his cross-examination he says that they were not taken to the Court by police they were served with a notice to appear before the Magistrate, and they were called as per notice issued by the Magistrate. It has been submitted by the learned Advocate on behalf of the appellant that it is curious that the Magistrate summoned the witnesses for recording their statements under section 164 Cr. PC. It is also submitted by him that record shows that only one prayer was made by the IO for recording statement under section 164 Cr. PC, but in fact, statements of so many witnesses were recorded under section 164 Cr. PC. In our opinion, the question whether summons were issued to the witnesses for recording statements under section 164 Cr. PC. is immaterial. It is also evident that the IO prayed for recording the statements under section 164 Cr. PC Be that as it may, the fact remains that the statements of some witnesses under section 164 Cr. PC were recorded by the Magistrate. But even then such statements are not substantive evidence and we will base our decision not on the statements recorded under section 164 Cr. PC which are not substantive evidence but on the substantive evidence given by the concerned witnesses in Court. PW 4 Susanta Mondal says that he apprehended Utpal when he was just coming out from the house and he had with him a money bag and cycle. He says that his father and grandfather had a Court case with the predecessor of Utpal. In our opinion, that does not furnish any motive to the witness for falsely deposing against Utpal. That apart, the predecessor of Utpal is also the predecessor of PW1 Sachin. ( 7 ) P. W. 5 Rabindranath Polley says that his house is about 300/400 yards away from the place where the incident took place. He says that the incident took place on 29. 7. That apart, the predecessor of Utpal is also the predecessor of PW1 Sachin. ( 7 ) P. W. 5 Rabindranath Polley says that his house is about 300/400 yards away from the place where the incident took place. He says that the incident took place on 29. 7. 91 at about 7-05 a. m. His evidence is that he heard cries from people and came out and found people moving towards the house of Utpal and he followed them and he found the father of Utpal lying with bleeding injuries in the courtyard of their house in front of the house of Himanshu and he was alive at that time. He also found the dead body of the Padmarani Mondal, wife of Sachindra Mondal lying in the dalan with bleeding injuries on her person. He says that Patal was already removed to hospital. He says that he along with Susanta, Rabin Mondal and others confined Utpal as he had told that he murdered those persons. He says that Utpal confessed before them that he committed murder of those persons and prayed for mercy. In his cross-examination he says that his house is about 5 minutes' walk on the southern side of the P. O. and when he came inside the house of Utpal he found the dead-body of Smt. Padmarani wife of Sachin lying in the dalan with bleeding injuries. In his cross-examination he denies the defence suggestion that they tied Utpal with rope with a tree after assaulting him. He also says that they were served with summons whereby they were asked to go before the learned Magistrate. The learned Advocate for the appellant made a lot of submissions on this. We are however of the opinion that this is inconsequential. ( 8 ) P. W. 6 Rabin Mondal says that while he was returning from the field in the morning at about 6-30 a. m. on 29. 7. 91 he heard cries from their para and he was told by Kamal that Utpal murdered his boudi and also assaulted his (accused's) father and bhaipo (Patal ). He came inside the house of P. W. 1 and found dead body of Smt. Padmarani, wife of P. W. 1 lying with bleeding injuries and also found that the Mastermasai (Sachin's father) and Patal were still alive with bleeding injuries. They were, he says, removed to hospital and they expired subsequently. He came inside the house of P. W. 1 and found dead body of Smt. Padmarani, wife of P. W. 1 lying with bleeding injuries and also found that the Mastermasai (Sachin's father) and Patal were still alive with bleeding injuries. They were, he says, removed to hospital and they expired subsequently. He also says that Utpal confessed that he murdered his boudi, father and Bhaipo with wooden tasla. He says that Utpal brought out the said tasla from the tank and handed it over to police and Utpal was also handed over to police. It is submitted by the learned Advocate for the appellant that there is no evidence of any statement by Utpal regarding the whereabouts of tasla and no statement of Utpal in the matter was introduced under section 27 of the Evidence Act as leading to the recovery of the tasla. Section 27 of the Evidence Act speaks about the admissibility of the statement of an accused leading to recovery of any incriminating material. That does not debar evidence regarding discovery or recovery of the incriminating materials in the absence of the statement of the accused. There may be discovery or recovery without any statement under section 27 of the Evidence Act. In the present case, the witness (P. W. 6) says that Utpal brought out the wooden tasla from the tank and handed it over to the police. This factum of production or recovery of tasla is established by the evidence of this witness (P. W. 6 ). A statement of the accused under section 27 of the Evidence Act leading to such recovery is not a necessary pre-requisite for the introduction of the evidence of recovery. Here the prosecution have not introduced regarding the statement of the accused leading to such recovery but independent evidence about recovery is not barred. In his cross-examination P. W. 6 says that immediately after his arrival Patal was removed to hospital. He also says in his cross-examination that Utpal was not tied but was confined by people by the side of the road. The question whether Utpal was as a matter of fact tied by rope with a tree is not of material consequences. Tied or not tied, there is ample evidence on record that Utpal the author of the crime was detained there by other persons. The question whether Utpal was as a matter of fact tied by rope with a tree is not of material consequences. Tied or not tied, there is ample evidence on record that Utpal the author of the crime was detained there by other persons. ( 9 ) P. W. 7 Smt. Mayarani Mondal says that P. W. 1 Sachin is her cousin debor and so is the accused Utpal. He says that the incident took place about 7 years ago and it was about 7-00 a. m. when she was preparing Tiffin for her sons Shyamal and Kamal. She says that she heard cries at that time and she sent her two sons to the house of P. W. 1 wherefrom the cries were coming and then Shyamal came and reported that the father, wife and son of Sachin were lying with bleeding injuries. She says that she went there and Patal was still alive and she brought Patal to her house and gave some milk but he could not swallow it, and she took Patal to Ulubaria Hospital in rickshaw and Patal died after one day. She says that Utpal confessed before them that he murdered his father, boudi and bhaipo (Patal) and prayed for saving his life. She also says that Utpal assaulted the victims with wooden tasla. In her cross-examination she says that Gangarani (P. W. 3) is her own ja and Susanta is her own debor. She says that they lived in the same viti with Susanta. She also says in her cross-examination that she is disclosing what she has stated, for the first time before the Court. Such sort of omnibus statement in our opinion is of no material consequence for discrediting her evidence in the Court. She is a rustic illiterate village woman and even if any specific contradiction or omission with reference to earlier statement is to be taken from her, the same should be put to her in cross-examination and also should be taken specifically from the police officer regarding what she stated earlier during the police investigation. We find no sufficient reason to disbelieve the evidence of this witness. ( 10 ) P. W. 8 Shyamal Mondal is the son of Mayarani. His evidence is that the father of Utpal (the accused), wife of Sachin (Padmarani) and son P. W. 1 (Patal) were murdered by the accused on 29. 7. We find no sufficient reason to disbelieve the evidence of this witness. ( 10 ) P. W. 8 Shyamal Mondal is the son of Mayarani. His evidence is that the father of Utpal (the accused), wife of Sachin (Padmarani) and son P. W. 1 (Patal) were murdered by the accused on 29. 7. 91 at about 7-00 a. m. His evidence also is that he was taking tiffin with his brother Kamal and at that time he heard cries from the house of the accused and his mother and uncle (Susanta) asked them to go to the P. O. and enquire, and then he along with Kamal went to the house of the accused and found the father of Sachin, his wife and son lying there with bleeding injuries. Sachin's wife, he says, was dead but the other two were still alive. He says that Mayarani took Patal to hospital and they took the father of Sachin to Ulubaria Hospital. He further says that he found Susanta holding Utpal as Utpal was fleeing away. His further evidence is that Utpal threw away the tasle in the tank, and he also identified the material ext. I as that tasla. In his cross-examination he says that he has not seen Utpal assaulting the persons. Rather he saw him coming out from the house after assault. He further says that when he saw him, Utpal had already thrown away the tasla. He also makes in the cross-examination the same omnibus statement that he was disclosing for the first time before the Court as to what he knew. This is an omnibus statement and does not, in our opinion, constitute any contradiction or any such infirmity so as to discredit his evidence in Court in the absence of any specific contradiction being taken by the defence from him. In his cross-examination he says that Utpal was apprehended by Susanta when he came out from the house and Utpal had a cycle and one bag was kept in the cycle. ( 11 ) P. W. 9 Manabendra Sana says that he heard cries and immediately rushed to the house of the accused and found the accused being detained by Susanta, Robin Mondal, Rabin Polley and others. He says that he came inside the house of Utpal and found the Mastermasai lying with bleeding injuries but he was still alive. ( 11 ) P. W. 9 Manabendra Sana says that he heard cries and immediately rushed to the house of the accused and found the accused being detained by Susanta, Robin Mondal, Rabin Polley and others. He says that he came inside the house of Utpal and found the Mastermasai lying with bleeding injuries but he was still alive. He also found Susanta's wife and Patal lying in injured condition and Patal, he says, was alive at that time. He was told by Susanta, Robin Mondal and Robin Polley that Utpal committed the murder, he says. He further says that Utpal also confessed before them that he murdered those persons with a tasla. He identifies the tasla which was seized by the police. In his cross examination he says that ext. I (wooden tasla) was recovered from the nearby doba. He also says that Utpal was not tied with a coconut tree by the side of the road. He further says that when Utpal confessed police did not arrive. P. W. 10 Sukhen Mondal is the scribe of the complaint signed by P. W. 1 Sachin which was treated as FIR. He says that it was written at the P. S. and Sachin was not present at that time and it was written as per the instruction of police. Then he says that it may be that Sachin came to the P. S. and signed the complaint. He also says that before going to P. S. he had been to Sachin's house where the incident was narrated to him. He further says that the contents of the complaint is correct as he was told about the same at the P. O. and he does not know anything more. In his cross-examination he says that he want to the P. O. at about 12-00/12-30 p. m. on the day of the incident and he came to P. S. at about 5-00/5-30 p. m. He volunteers that the complaint was written as directed by Sachin and Police. It is true that the evidence of Sachin is slightly haphazard. He might have come to the P. O. subsequently again and even might have gone to the P. S. in the afternoon but the fact remains that he wrote the complaint and wrote it under the direction of Sachin was as said by him. It is true that the evidence of Sachin is slightly haphazard. He might have come to the P. O. subsequently again and even might have gone to the P. S. in the afternoon but the fact remains that he wrote the complaint and wrote it under the direction of Sachin was as said by him. May be that police was also present there but that does not take away the recitals in the complaint which was treated as FIR. This complaint was received by the concerned police officer at the P. O. after they had gone there on the basis of information earlier received by them at the P. S. which was noted in the G. D. Entry. There is nothing wrong in the matter. The learned Advocate for the appellant contends that this FIR cannot be treated as the FIR as the information about the murder was earlier lodged at the P. S. on the basis of which the G. D. Entry was recorded. In our opinion, the G. D. Entry is a very cryptic one and the same is not required to be treated as the FIR. It is only on the basis of that G. D. Entry information that police rushed to the P. O. but the actual FIR giving some details of the occurrence was received by the police after reaching the P. O. and there is nothing wrong in it. ( 12 ) P. W. 14 Anil Baran Singh Roy is the S. I. of Police who filled up the formal part of the FIR of receipt of the written complaint of P. W. 1 Sachin. His evidence is that the written complaint was sent by S. I. A. K. Samanta through A. S. I. A. Singha Roy from Moubasia. He also proves the G. D. Entry No. 1488 dated 29. 7. 91. His cross-examination was declined by the defence. P. W. 15 Ananta Kr. Samanta was attached to Ulubaria P. S. as S. I. of police at the relevant time. He also proves the G. D. Entry No. 1488 dated 29. 7. 91. His cross-examination was declined by the defence. P. W. 15 Ananta Kr. Samanta was attached to Ulubaria P. S. as S. I. of police at the relevant time. He says that on the basis of an information he had been to the village Moubasia at about 9-50 a. m. He further says that he got the information at about 9-05 a. m. It is his evidence that on reaching the village Moubasia he received a written complaint of Sachin Mondal and he sent the same to O. C. Ulubaria P. S. through A. S. I. A. , Singha Roy. He proves his endorsement ext. 1/3 on the written complaint. His evidence shows that S. I. Jiten Sarkar and A. S. I. A. Singha Roy were with him with force. He found the dead body of Padmarani lying on the dalan with bleeding injuries and he held inquest over the dead body as per instruction of S. I. Jiten Sarkar who, he says, was the first I. O. of this case. From his we got that S. I. Jiten Sarkar is now dead. P. W. 15 S. I. Anil Kr. Samanta says that he knows the handwriting and signature of Jiten Sarkar. He speaks about seizure of certain things including the wooden tasla under the seizure list ext. 9. He says that as per the instruction of Jiten Sarkar he prayed before the Court for recording the statements of three witnesses under section 164 Cr. PC. He proves the sketch map of the P. O. with index (Ext. 12) which was prepared by the first I. O. S. I. Jiten Sarkar, since deceased, whose hand-writing he knows. He says that Dipali Mondal (P. W. 2) was interrogated by S. I. Jiten Sarkar who recorded her statement. We have already seen that Dipali Mondal was treated as a hostile witness by the prosecution. P. W. 15 S. I. A. K. Samanta despises as to what was allegedly stated by her to the I. O. S. I. Jiten Sarkar, since deceased, under section 161 Cr. PC. He also proves the inquest reported prepared by S. I. Jiten Sarkar in respect of Soumen Mondal @ Patal and also the inquest report prepared in respect of Sudhir Mondal by S. I. Nisit Kr. Roy. PC. He also proves the inquest reported prepared by S. I. Jiten Sarkar in respect of Soumen Mondal @ Patal and also the inquest report prepared in respect of Sudhir Mondal by S. I. Nisit Kr. Roy. In his cross-examination he says that he accompanied the first I. O. at the P. S. so long he was there. He also says that some of witnesses were examined by the first I. O. on the first day in his presence. He says that no cycle was seized from the P. O. He also says in his cross-examination that one Bholanath Khare was also examined by police on 24. 8. 91. The defence has also taken from him in cross-examination that witness Manabendra Sana was interrogated by I. O. Jiten Sarkar. It may be noted here that no contradiction in respect of any P. W. with reference to any statement under section 161 Cr. PC was however taken by the defence from this witness in respect of any statement recorded by the deceased I. O. , S. I. Jiten Sarkar although such contradiction in respect of the hostile witness P. W. 2 was taken by prosecution from him, P. W. 16 Prabir Das is S. I. of police who submitted charge-sheet after completion of investigation in this case. ( 13 ) P. W. 17 Dr. Kumud Ranjan Chatterjee is the Autopsy Surgeon who held post-mortem examination on the three dead-bodies. He found the following injuries on the dead body of Padmarani : 1. Two lacerated wounds each about 1 " X " X bone deep over upper part of left and right side of the frontal bones. 2. One lacerated wound 1" X " X bone deep over lateral angle of right eye-surrounding swelling present. 3. One lacerated wound 2" X " X bone deep over vault of skill. 4. One lacerated wound 2" X " X bone deep over left parietal region of skull. 5. One lacerated would 2 " X " bone deep over lower part of left forearm. 6. One diffused scalp haemotama along with linear fracture of the left frontal bone with gross looseness of bony fissures of skull. He also found fresh bleeding over various parts of the body. Death, in his opinion, was due to the effect of the abovementioned injuries which were ante-mortem and homicidal in nature. 6. One diffused scalp haemotama along with linear fracture of the left frontal bone with gross looseness of bony fissures of skull. He also found fresh bleeding over various parts of the body. Death, in his opinion, was due to the effect of the abovementioned injuries which were ante-mortem and homicidal in nature. His evidence shows that such kind of injuries could have been caused by assault with a wooden mugur like the material ext. I. He also held post-mortem examination on the dead body of Sudhir Mondal and found the following injuries: 1. Left eye-block with one small-lacerated wound over upper part of forehead. 2. One transverse stitched wound about 4" long over left side of occipital region of scalp, haematoma present with fracture of occipital bone and haemorrage in the brain tissue. 3. Fracture of sternal bone with fracture of ribs left side 2nd and 3rd with rapture of lung tissue and blood in the chest cavity. ( 14 ) THE death, in the opinion of the post-mortem doctor, was due to the effect of the above injuries which were homicidal and ante-mortem in nature. The doctor says that said injuries can be caused if one is assaulted with one tasla or mugur like material ext. I. The post-mortem doctor P. W. 17 also held post-mortem examination on the dead body of Soumen Mondal and found the following injuries : 1. One diffused swelling over left side of the temporal region. 2. One diffused scalp haematoma over whole of skull. 3. Fracture frontal bone with dislocation other bony fissures of skull along with haemorrhage inside brain tissue. ( 15 ) ). Death in the opinion of the post-mortem doctor, was due to the effect of the above mentioned injuries which were homicidal and ante-mortem in nature. The doctor says that the said injuries can be caused if one is assaulted with any wooden tasla or mugur like the material ext. I. He further says that most of the injuries as pointed out by him on the persons of the deceased persons were along sufficient to cause death. In his cross-examination the doctor says that it appears to him from the injuries that the nature of the injuries and the style were more or less same and probably one person was involved. In his cross-examination the doctor says that it appears to him from the injuries that the nature of the injuries and the style were more or less same and probably one person was involved. He also further says in his cross-examination that there is every possibility that all the injuries were caused by the same person. He also says that the nature of the injuries may be the same if one instrument is used in all the cases but it depends upon the force applied. ( 16 ) ). In his examination under section 313 Cr. PC the accused Utpal Mondal says that he had not escaped and he was not involved in the occurrence. He also denies that he admitted his guilt. He rather says that he had gone to the field at 6-30 a. m. on 29. 7. 91 and he told his boudi (Dipali) that he would go to Calcutta after returning from the field and that while he had been returning home an hour he found a gathering of people outside the house and as soon as he arrived there on a cycle he was forcibly brought down from the cycle and was assaulted and kept tied to a tree. He says that he had received the news from the villagers that 'boudi' had died and father and his brother's son had been sent to the hospital. He however says that an occurrence had taken place in the house. He says that he used to respect his father and boudi and that they too were affectionate to him and that Patal used to stay with him for most of the time and he (accused) was affectionate towards him. Lastly he says that his neighbours had informed the police and had him arrested and he is innocent. ( 17 ) ). We have discussed the evidence on record and we find no reason, as we have already discussed, to discard the evidence of P. W. 3 Gangarani Mondal she saw the incident of assault with tasla by the appellant Utpal on the three victims. She has described how she saw the incident after taking position on a stack of bricks and on looking through the window. She has described how she saw the incident after taking position on a stack of bricks and on looking through the window. The criticism made by the learned Advocate for the appellant that it was not possible for her to take the exercise of negotiating height and then see the incident through the window, does not appear convincing. The situation itself was unusual and Gangarani took up all the exercise on hearing cries and in such a situation it is not unnatural that she would, with effort, take up an exercise which one might not have thought of undertaking in a calm and normal situation. The fact that the witness Gangarani was not required to make any statement under section 164 Cr. PC does not expose her evidence in Court to any stigma of incredibility. No contradiction of any worth has been taken by the defence from her or any police officer as to the statement she earlier made to the police during investigation. There is also no convincing reason why we should disbelieve the evidence of P. W. 4 Susanta Kr. who says that when he come out of the room he finds that the accused was trying to flee away with a cycle and he asked him to stop. He is the cousin brother of both P. W. 1 and the appellant Utpal. Susanta, as we have seen, testifies to the fact that the appellant Utpal confessed that he murdered his father, boudi and Patal. P. W. 5 Rabindranath Polley, P. W. 6 Robin Mondal and P. W. 7 Mayarani also testify that the appellant confessed that he murdered the three victims and also prayed for saving his life. It has been contended by the learned Advocate for the appellant that some of the witnesses have said that on being asked question the appellant made confessional statement. It is contended that in the circumstances it cannot be said that the alleged confession was free and voluntary. In our opinion such contention cannot be accepted. The evidence of P. W. 8 Syamal Mondal also lends support to the prosecution case, as we have seen. The mere fact that one makes a statement in answer to a question does not mean that the answer is not voluntary. A statement may be made sue motu or in answer to some question and in either case the statement may be voluntary. The mere fact that one makes a statement in answer to a question does not mean that the answer is not voluntary. A statement may be made sue motu or in answer to some question and in either case the statement may be voluntary. Having regard to facts and circumstances we find no reason to disbelieve the evidence of so many witnesses, namely, P. W. s. 4,5,6 and 7 regarding the confession made by the appellant. It is also needless to mention that the prosecution evidence does not necessarily lead to the conclusion that the confessional statement was made by the appellant only once. The prosecution witnesses seem to us rather disinterested witnesses and many of them are related to the accused also and there is no reason why they should speak falsely against the appellant Utpal. They all came to the P. O. either at the time of or soon after the occurrence. There is also no chance that the offence was committed by any unknown or unidentified person. That being so, it is also absurd to think that leaving aside the real culprit all the witnesses will falsely implicate the appellant. P. W. 9 Manabendra Sana, as we have seen, also speaks about the confession made by the appellant. As we have seen, it has been contended on behalf of the appellant that some of the witnesses who should have been examined have not been examined by the prosecution. In our opinion, that is not of material consequence in the present case where we have got the evidence of other witnesses on the point. ( 18 ) ). The appellant-accused has taken the plea that he was detained there when he came in front of his house after the occurrence on a cycle from the field. His statement shows that people had assembled there in front of his house when the victims have already been assaulted. In the circumstances the defence plea is unbelievable that the people who had assembled there would detain the accused as soon as he came there on a cycle and brand him as culprit leaving aside the real culprit. The accused also does not say, while examined under section 313 Cr. PC that he asked the persons who detained him after his arrival there as to why he was being detained and branded as culprit when he did not commit the offence. The accused also does not say, while examined under section 313 Cr. PC that he asked the persons who detained him after his arrival there as to why he was being detained and branded as culprit when he did not commit the offence. He says that he was detained by the persons as soon as he arrived there and he was also handed over to police, but he does not say that he claimed to be innocent to the persons where detained him which would have been a normal conduct on the part of any innocent person to tell so on being apprehended. Having regard to the facts, circumstances and evidence on record, which we have discussed, we have no manner of doubt that the appellant Utpal is the culprit who assaulted the three victims with tasla. The learned Advocate for the appellant has referred to some points to make out a case of contradiction in the prosecution case amongst the versions of the different witnesses as well as between the case in the concerned G. D. and the written complaint. We have already discussed them in their appropriate places and we must say that there is no such inconsistency or contradiction in the prosecution case or in the evidence adduced by the prosecution as could discredit the core aspect of the prosecution case. Minor inconsistencies here and there, in any, do not make any dent on the prosecution case. ( 19 ) ). Now that we have found beyond doubt that the appellant is the culprit who assaulted all the three victims with wooden tasla and all the three victims died as a result thereof we would now consider as to under what section of Indian Penal Code the appellant should be convicted. Without prejudice to his contention that the appellant deserves to be acquitted, the learned Advocate for the appellant has contended that at any rate this is a case where section 304 IPC and not section 302 IPC is attracted. We have seen, the evidence of the post-mortem doctor shows that the assault was made on the heads of the victims and the injuries suggest that there were repeated strokes on each victim. It is true that the appellant has used only a wooden tasla for committing the assaults but in the case of each victim he assaulted on the head. It is true that the appellant has used only a wooden tasla for committing the assaults but in the case of each victim he assaulted on the head. From the pattern of his actions it is evident that the appellant committed the acts with the intention of causing bodily injury which he knows to be likely to cause death, if not with a more decisive intention, and this will bring the case within the ambit of section 302 IPC. We also find no reason to hold that there was any grave and sudden provocation under the influence of which the appellant could have committed such offence in respect of three persons one of whom is a woman, the other an old man being his father and the third one a child of four years. It is needless to say that mere anger for any reason whatsoever does not amount to grave and sudden provocation depriving the power of self-control so as to make the concerned offence culpable homicide not amounting to murder. The 'explanation' to 'exception-I' in section 300 IPC makes it clear that the question whether any provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Here, in the present case even if we assume that the appellant was in anger for any reason what so ever, that does not provide any premium in his favour to make out a case that he had adequate reason to be deprived of the power of self-control by any grave and sudden provocation. Having regard to the facts and circumstances we are of the opinion that this is a case which comes under section 302 IPC and not section 304 IPC. Accordingly we up-held the conviction of the appellant under section 302 IPC. ( 20 ) NOW coming to the question of sentence, it falls for our consideration whether the death sentence awarded by the trial Court should be sustained and confirmed. There is no doubt that the occurrence is a very sad and unfortunate one as it involved the death of three persons, one of whom is a woman, the other is an old man and the third one is a child of four years. The old man is the father of the appellant. The other two victims also are his close relations. The old man is the father of the appellant. The other two victims also are his close relations. But in our opinion, having regard to the facts and circumstances, the mere fact that the occurrence involved death of three persons, extremely lamentable and shocking though, does not necessarily make it a rarest of rare cases per se so as to imperatively warrant death sentence. From the evidence we have got that the appellant used to love the child and it is not that he had any death-hungry enmity with the other two victims who are his father and boudi. It is evident from the evidence of the witnesses themselves that the appellant committed the offence while he was in a highly agitated and excited state of mind, for whatever reason might it be, and his act in committing the offence was not preplanned or premeditated and the same was rather an instantaneous outburst of an agitated mood. Immediately, after the occurrence he realised the gravity of what he did and he did not hesitate to display his guilty and repentant conscience by candidly confessing his guilt to the persons who came there or who put questions to him. He also prayed to them for saving him. In the circumstances when the act was a sudden outburst resulting from an excited state of mind without any prededicated design or planning as would be also evident from the fact that the weapon chosen was a picked-up tasla and not any type of lethal weapon normally used in committing high offences, like, murder etc and the appellant himself got unnerved by his act as would be evident from his confession and praying for being saved, we are of the opinion that there is in fact no such aggravating circumstances for which this case could come under the category of rarest of rare case so as to warrant death sentence. Having regard to the totality of the facts and circumstances, we are of the opinion that in this case sentence of imprisonment for life, instead of death sentence, for conviction under section 302 IPC will meet the ends of justice. Accordingly we set aside the death sentence imposed by the trial Court on the appellant and instead, sentence the appellant to imprisonment for life for his conviction under section 302 IPC. The sentence of fine imposed by the trial Court is maintained. Accordingly we set aside the death sentence imposed by the trial Court on the appellant and instead, sentence the appellant to imprisonment for life for his conviction under section 302 IPC. The sentence of fine imposed by the trial Court is maintained. In the result the death reference is rejected. Subject to the above modification about sentence, the appeal also stands dismissed.