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2003 DIGILAW 134 (PAT)

Shivan Roy v. State of Bihar

2003-01-30

P.N.YADAV, S.N.JHA

body2003
Judgment : P.N.YADAV, J.:- The appellants Shivan Roy, Raj Kishore Roy, Raja Roy and Bhutto Roy @ Hari Kishore Roy ar1d the accused Subhash Roy, Billa Roy, Dilip Roy and Anil Kumar Roy, who appear to be coming of common ancestor, their interse relation being that of fathers, brothers, sons and cousins woe put up for trial before the 4th Additional Sessions Judge; Purnea. The appellant Shivan Roy stood charged under Sections 302 and 148 of the Indian Penal Code (hereinafter referred to as the Code) while the appellants Raj Kishore Roy, Raja Roy and Bhutto Roy @ Hari Kishore Roy and the accused Subhash Roy Billa Roy, Dilip Roy and Anil Roy stood charged under Section 302 read with Sections 149 and 147 of the Code and the appellant Bhutto Roy was charged under sections 148, 324 and 302 read with section 149 of the Code for having committed murder of their agnate Hardeo Yadav in prosecution of common object of them all on the 4th October, 1987 at Village Mirchaibari under Banmankhi Police Station of Pumea district. The trial court vide the judgment and order dated the 3rd and the 4th October, 1997 rendered in Sessions Trial No. 171 of 1988 found and held the appellants guilty and convicted the appellant Shivan Roy under Sections 302 and 148 of the Code and sentenced him to undergo rigorous imprisonment for life under the first count and rigorous imprisonment for two, years under the second count and it convicted and sentenced the Appellants Raj Kishore Roy, Raja Roy and Bhutto Roy to undergo rigorous imprisonment for life each under section 302 read with section 147 of the Code, the sentences having been ordered to run concurrently acquitting the accused Subhash Roy, Billa Roy, Dilip Roy and Anil Roy of the charges levelled against them. 2. For disposal of the case, it would be relevant and convenient to state, in brief, the factual scenario as highlighted by the prosecution. The informant Yasoda Devi. (P.W.8) is the wife of the deceased Hardeo Yadav. At about 3 P.M. on the 4th October, 1987, she left her home for flour mill for grinding of wheat. She noticed that the appellant Raj Kishore Roy was dragging her husband Hardeo Yadav with gamchha wrapped around his neck along the road from the temple where he was playing cards. (P.W.8) is the wife of the deceased Hardeo Yadav. At about 3 P.M. on the 4th October, 1987, she left her home for flour mill for grinding of wheat. She noticed that the appellant Raj Kishore Roy was dragging her husband Hardeo Yadav with gamchha wrapped around his neck along the road from the temple where he was playing cards. She started crying and protested against high handed and illegal act of the appellant Raj Kishore Roy but the latter paid no heed to her word. In the meanwhile, the appellants Shivan Roy, Bhutto Roy and Rajo Roy having armed themselves with spear, lathi and arrow and bow respectively, the accused Billo Roy taking a Farsa and Subhash Roy, Dilip Kumar Roy and Anil Roy having lathi in their hands along with Paro Devi, mother of the appellant' Shivan Roy arrived at the scene of the incident. Paro Devi who was not sent up for trial allegedly exhorted her son Shivan Roy to do away with the deceased and in pursuance of her order and instigation Shivan Roy pierced spear in that abdomen of the deceased and Billo inflicted Farsa blow on him as a result of which he sustained injuries on his both palms. 3. The deceased in injured condition was taken to Banmankhi State dispensary in the evening. Dr. Daya Nand (P.W.13) attended on him and as the condition of the deceased was serious he informed Raghunath Hoy (P.W.11), Officer-in-charge, Banmankhi Police Station as well as Tarkeshwar Roy (P.W.12), Block Development Officer, Banmankhi for recording h is statement. P. W.12 who was Block Development Officer as well as Executive Magistrate recorded the dying declaration (Ext.6) of the deceased at about 7.30 P.M. on 4.10.1987 in presence of the doctor (P.w. 13). P. W. 11, Raghunath Roy rec orded the fardbeyan of P.W.8 Yasoda Devi at about 8 P.M. in the hospital. On the basis of hf;t( fardbeyan, Banmankhi P.S. Case No. 223 of 1987 was registered under Section 307 besides some other bailable sections of the Code referred to above though the dying declaration of the deceased was recorded half an hour earlier. The injured Shivan Roy (deceased) was referred to Sadar Hospital, Purnea where he succumbed to injury in course of treatment on the 6th October, 1987. Autopsy on the dead body of the deceased was conducted by Dr. The injured Shivan Roy (deceased) was referred to Sadar Hospital, Purnea where he succumbed to injury in course of treatment on the 6th October, 1987. Autopsy on the dead body of the deceased was conducted by Dr. Indra Prasad Bhagat (P.W. 10) on the 7th October, 1987. After the death of the deceased, Section 302 of the Code was added. 4. Soon after the fardbeyan of the informant Yasoda Devi was recorded P.W.11 Raghunath Roy swung into action and he himself started making investigation. He recorded subsequent statement of the informant as well as statements of the doctor (P.W.13), the Block Development Officer (P.W.12) and some other witnesses who were present in the hospital. As it was already late night on the 4th October, he inspected the place of occurrence in the early morning on the 5th October, 1987. He seized blood stained earth from the place of occurrence and recorded the statements of certain witnesses there. After completion of investigation and receipt of postmortem examination report, he submitted chargesheet against all the accused persons including the appellants save and except Paro Devi. 5. The appellants entered into defence and they examined a formal witness named Sikandar Mandai who proved petition of complaint (Ext.A), which was filed by the appellant Hari Kishore Roy @ Bhutto Roy against the deceased and others alleging therein that on the same day i.e. on 4.10.1987 at about 4 P.M. they forming and unlawful assembly went to his Darwaza, began to untie his cattle and on protest being made they brutally assaulted him. From the trend of the cross-examination of the prosecution witnesses and the complaint petition (Ext.A) giving rise to Complaint Case No. 97 of 1987 Wlder Section 307 besides some other bailable sections of the Code the defence set up by the appellants seemed to be that it was the prosecution party which was aggressor and as a matter of fact the deceased and others had mercilessly and brutally assaulted the appellant Hari Kishore Roy @ Bhutto Roy. It was pleaded that P.W.9, Santlal Yadav, brother of the deceased dealt spear blow on Hari Kishore Roy and Dilip, son of Santlal Yadav was also inflicting spear blow on him but unfortunately his spear hit and 'pierced the abdomen of the deceased. 6. In order to prove 'its case the prosecution examined 13 witnesses in all. It was pleaded that P.W.9, Santlal Yadav, brother of the deceased dealt spear blow on Hari Kishore Roy and Dilip, son of Santlal Yadav was also inflicting spear blow on him but unfortunately his spear hit and 'pierced the abdomen of the deceased. 6. In order to prove 'its case the prosecution examined 13 witnesses in all. Besides P.W.8 Yasoda Devi, the informant, P.W.9 Santlal Yadav, P.W. 10 Dr. Indra Prasad Bhagat who held autopsy on the dead body of the deceased, P.W.11 Raghunath Roy, Investigating Officer, P. W. 12 Tarkeshwar Roy, Block Development Officer, Banmankhi, who recorded the dying declaration (Ext.6 of the deceased) and P.W. 13, Dr. Dayanand Roy, who initially attended to the deceased and in whose presence dying declaration was recorded, the witnesses are P.W.1 Hari Nandan Yadav @ Shrinandan yadav, P.W.2 Hari Naraian Sah, Sarpanch, a tendered witness, P.W. 3 Ram Kishun bhagat, P.W.4Ram Krishna Roy, P.W. 5 Bhikari Sah, P.W. 6 Jay Krishna Roy and P.W.7 Bir Bahadur Limbu, a formal witness, who proved signature of Officer-in-charge on the First Information Report. P.Ws. 1, 3, 4, 5, 6, 7, 8 and 9 ware eye witnesses to the incident. The informant Yasoda Devi (P.W.8) is wife of the deceased while Santlal Yadav is his brother. 7. Before embarking upon consideration of the testimony of eye witnesses, it would be relevant to refer to the points raised by counsel for the appellants in order to attach vulnerability to the judgment of the court below. The informant Yasoda Devi (P.W.8) is wife of the deceased while Santlal Yadav is his brother. 7. Before embarking upon consideration of the testimony of eye witnesses, it would be relevant to refer to the points raised by counsel for the appellants in order to attach vulnerability to the judgment of the court below. It has been contended that dying declaration rendered by the deceased was not recorded in accordance with law inasmuch as it was not re-produced in verbative words uttered by the declarant rather it was written in cleansed language, that is, KHARI Hindi and as a matter of fact the deceased was in critical and precarious condition and he was not in a position to make statement and credibility of the dying declaration (Ext.6) is not above board; that occular evidence is inconsistent and discrepant and as many as four accused persons were acquitted and on the basis of the same evidence conviction of the appellants cannot be sustained; that the eye witnesses vis, PW.8 Yasoda Devi and P. W. 9 Santlal Yadav being the wife and the brother respectively of the deceased are highly interested witnesses and besides that PW.1 Hari Nandan Yadav @ Shri Nandan Yadav and P.W.9 Sant Lal Yadav along with the deceased and others were accused in Complaint Case No. 97 of 1987 lodged by the appellant Raj Kishore Roy in respect of the occurrence of the same day and P.W.3 Ram Kishun Bhagat deposed in that case against the appellants while PW.5 Bhikhari Sah was involved in a proceeding under Section 107 Cr. PC. with the appellants prior to the incident and he had also deposed against the appellant Shivan Roy in a case brought against him by one Mahendra and so their evidence cannot safely be accepted; that though the Investigating Officer Raghunath Roy (P. W.11) claimed to have seized blood stained earth from the place of occurrence, seizure list in respect thereof is conspicuous by its absence from the records and the case diary nor was the blood stained earth sent for chemical examination and as such it cannot be said that it was human blood and that no such dastardly and gruesome murder can be committed without any motive but the prosecution has suppressed the genesis of the occurrence and the motive impelling the appellants to eliminate the deceased. 8. 8. Though, in the instant case, conviction is based not merely on dying declaration of the deceased rather it was based on occular evidence considered together with dying declaration, we would first consider genuineness and credibility of the dying declaration (Ext.6). It was recorded by P. W.12 Tarkeshwar RGY, Block Development Officer, Banmankhi, who also happened to bean Executive Magistrate. P.W.13, Dr. Daya Nand Roy first attended the deceased while he was brought to Banmankhi State Dispensary in injured condition. He stated that as the deceased was not in good condition he informed the Block Development Officer (P.W.12) as well as the Officer-in-charge of Banmankhi Police Station (P. W.11) for recording the statement of the deceased. P.W.12 stated that on getting requisition from the Medical Officer-in-charge of Banmankhi. Hospital he rushed to the hospital on a jeep and he arrived there at about 7.30 P.M. on 4.10.1987 and after being satisfied that he was in fit state of mind he recorded his statement in presence of the doctor (P.W.13) as well as one Shiv Lal Pandit. He after recording his statement (Ext.6) read over the same to him who finding it to be true and correct put his thumb impression thereon. The doctor (P.W.13) and the said Shiv Lal Pandit also put their signatures on the statement of the declarant. In his cross-examination. P.W.12 stated that the deceased had spoken forthright without any interruption in his speech. He further stated that he recorded the statement in KHARI Hindi though the deceased spoke in local dialect (Dehati Bhasha) and he put question to the declarant and he re-produced in Ext. 6 the reply thereto made by him, however question was not written by him rather he wrote only answer to the question. All that is not at all material shaking the credibility of the evidence of P.W.12 and the dying declaration. P.W.8 also stated in her evidence that her husband, that is the deceased was conscious at Banmankhi Hospital. The doctor (P.W.13) in paragraph No.3 of his deposition stated that the injured was conscious and in fit mental condition to make speech. Neither P. W.12 nor P. W.13 was suggested that the deceased was not conscious and in a fit state of mind to make statement nor was such suggestion put to P.W.11 who saw the injured along with P. W.13 in the hospital. Neither P. W.12 nor P. W.13 was suggested that the deceased was not conscious and in a fit state of mind to make statement nor was such suggestion put to P.W.11 who saw the injured along with P. W.13 in the hospital. Under such circumstance, genuineness and credibility of the dying declaration (Ext.6) cannot be doubted. . 9. It has been contended that neither the doctor (P.W.13) nor the B.D.O. (P.W.12) recorded certificate to the effect that the declarant was conscious enough and in fit mental condition to make speech though as per ratio decidendi of the case of PAPARAMBAKA ROSAMMA and other vrs. State of Andhra Pradesh, 1999 S.C.C. Criminal) 1361 : 1999(2) PCCR 201(SC) a medical certificate that the injured was in a fit state of mind to make the declaration is essential and absence of such certification has corrode the credibility of the dying declaration. The contention cannot be accepted. After decision of the Full Bench of the Apex Court rendered in the case of KOLI Chunllal Savjl and another vrs. State of Gujrat 2000 S.C.C. (Criminal) 432: 1999(2) PCCR 251 (SC) requirement of certification regarding fitness of mind of the de ctarant has remained only a rule of prudence and the ultimate test is whether the dying declaration \'t truthful and voluntary. The law on this point has still further undergone vest change with the Apex Court's Constitution Bench decision in the case of Laxman vrs. State of Maharashtra 2002 S.C.C. (Criminal) 1491: 2002(3) PCCR 121(SC) In this case, it has been held that fitness of state of mind of declarant is to be decided by the Court but where the evidence of eye witnesses to that effect is available mere absence of doctor's certification as to the fitness of the mind of the declarant would not ipso facto render the dying declaration un-acceptable. The Court is to decide whether the deceased was in a fit state of mind and had opportunity to observe and identify the assailant. Where the eye witness stated that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail nor can it be said that since there is no certification of doctor as to fitness of the declarant's mind, the dying declaration is not acceptable. 10. Where the eye witness stated that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail nor can it be said that since there is no certification of doctor as to fitness of the declarant's mind, the dying declaration is not acceptable. 10. As already observed, in the instant case, the dying declaration was recorded by P.W.12 after he found him in fit state of mind i~ presence of the doctor (P.W.13). There is nothing on the record to suggest that P.W.12 and P.W.13 who were .quite independent witnesses manufactured the dying declaration on their own accord. Even Dr. Indra Prasad Bhagat (P.W.g) who conducted autopsy has not suggested that the injury on the person of the deceased was of such a nature on the person of the deceased was of such a nature that he could not have spoke 3 or 4 hours after infliction of injury on him. From the postmortem examination report as well as paragraph no.26 of the case diary, it would be crystal clear that the deceased died on the 6th October, 1987 that is, two days after the incident leading to infliction of assault on him. Besides the injury on the person of the declarant was not on upper part of chest rather it was on its lower part and none of his vital parts, to with, heart, brain, neck and vocal chord was damaged. Under such circumstance, it is to be held that the deceased was conscious and in fit state of mind to make statement (dying declaration) credibility of which cannot be assailed. 11. A few words on contents of dying declaration. The deceased in his dying declaration (Ext.6) said that the appellants Rajo Roy and Raj Kishore Roy caught hold of him by wrapping gamchha aground his neck and in pursuance of instigation and order of his mother the appellant Shivan Roy dealt bhala blow on him. It is also in his the dying declaration that he was conscious and he made true and correct statement. 12. P.W.1 a Dr. Indra Prasad Bhagat conducted autopsy on the dead body of the deceased on 7.10.1987. It is also in his the dying declaration that he was conscious and he made true and correct statement. 12. P.W.1 a Dr. Indra Prasad Bhagat conducted autopsy on the dead body of the deceased on 7.10.1987. He found sharp cut injury on left lower chest of the deceased with fracture of neighrouring ribs and cartilage and there was wound of entry and wound of exit in right lion with tear of intestine with other findings not being abnormal. The injury found on the person of the deceased was in the opinion of the doctor caused by sharp heavy piercing instrument such as spec r ant the cause of death was shock and hl me rage due to the aforesaid injury and time elapsed since death was within 24 hours. The medical evidence is in consonance with eye witness account of the incident leading to the death of the deceased which shall be discusse hereinafter. 13. Now adverting to the testimony of occular witnesses, it is to be observed that all the eye witnesses, to wit. P.W.1 Hari I'bndan Yadav. P.W.3 Ram Kishun Bhagat, P.W4 Ram Krishna Roy, P.W.S Bhikhari Sah, P.W. 6 jai Krishna Roy, p.w.a Yasoda Devi, the informant and wife of the deceased and P.W9 Santlal Yadav, brother of the deceased consistently stated that it was the appellant Shivan Roy who in pursuance of exhortation and instigation made by his mother pierced spear in the abdomen of the deceased as a result of which he sustained injury whereafter he was soon removed to Banmankhi Hospital which referred him to Purnea Sadar Hospital whera he succumbed to injury in course of treatment. The only inconsistency in the statements of the occular witnesses is in regard to involvement and participation of other appellants and accused persons (since acquitted) in dragging the deceased with gamchha wrapped around his neck from the temple where he long with others was playing cards and bringing him near the Mill where P.W.8 had come for grinding of her wheat. P.WS stated that after she put har wheat at the door of the Mill she noticed that the appellants Rajo Roy and Raj Kishore Roy were catching and dragging her husband, the deceased with gamchha wrapped around his neck, taking him from the temple towards the aforesaid Mill and P.W.1, P.W2, P.W.3, P.WA and P.W. 6 were trying to save him and to get him freed from the clutches of the appellants but in the meanwhile on alarm raised by the appellant Raj Kishore Roy his father, the appellant Shivan Roy having a spear in his hand reached there along with his mother and in pursuance of her order and instigation he pierced spear in the abdomen of the deceased as a result of which he sustained injury and fell down in the drain. According to her, the deceased was conscious. From her evidence vide paragraph nO.9 and that of P.WA in paragraph no. 10 and the evidence of the I.O (PW.11) it would transpire that the temple, the Mill, the drain and the house of P.W.8 situated contiguous and quite near to each other. Though P.W.8 averred in her fardbeyan that all the four appellants and four other accused (acuitted) had been involved and participants in the incident and she also went to the extent of mentioning therein that Billo Roy had also inflicted farsa blow on the deceased causing injuries on his both palms, on such statement was made by her in her deposition. 14. P.W.9 stated that the appellants Rajo Roy and Raj Kishore Roy dragged and took the deceased from the temple towards the Mill but the other accused persons along with the appellant Bhutto Roy had also participated in catching hold of the deceased. P.W.1 stated that the appellants Rajo Roy, Raj Kishore Roy, Bhutto Roy and the accused Dilip Yadav Anil Yadav (acquitted) had caught hold of the deceased and the appellant Shivan Roy pierced spear in his abdomen and the accused Billo Yadav assaulted him with farsa as a result of which he sustained injuries on his both palms. In his cross-examination, the witness said when he arrived at the scene of incident he saw the deceased lying injured in the drain. He appears to have admitted the answer put on his mouth by the cross examining lawyer. In his cross-examination, the witness said when he arrived at the scene of incident he saw the deceased lying injured in the drain. He appears to have admitted the answer put on his mouth by the cross examining lawyer. But on account of his this stray statement the credibility of his mouth by the cross examining lawyer. But on account of his this stray statement the credibility of his being eye witness to the entire incident cannot be shaken. Evidence is to be appreciated and accepted or rejected after considering it in its totality and not on the basis of some stray utterances of the witness. Unlike P.W.8, and P.W.9, P.W.1 stated that Bhutto Yadav (Roy), Anil Yadav and Rajo Yadav (Roy) dragged the deceased from the temple to the aforesaid Mill with gamchha wrapped around his neck before he was inflicted spear blow in his abdonen by the appellant Shivan Roy and farsa 1)low on hIp palms by the accused Billo Yadav. Evidence of P.W.4 is identical to that of P.W.1 with the only difference that P.W.4 did not speak of infliction of farsa blow by Billo Yadav causing injuries on his palms. Though P.W.5 and P.W.6 named almost all accused including the appellants like P.W.8 and p.W.9 and the statement of the deceased (dying declaration), they said that the appellants Rajo Roy and Raj Kishore Roy dragged the deceased from the temple to the Mill before fatal blow was inflictl1d on him by Shivan Roy. However, P.W.5 did not speak of infliction of farsa blow on the deceased by the accused Billo Yadav whereas P.W.6 spoke of and testified to assault inflicted by Billo Yadav on the palms of the deceased with farsa. 15. On perusal of occular evidence, it would be crystal clear that according to P.W,3, P.W.4, P.W.S, P.W.6. P.W.8 and P.W.9 none of the accused including the appellants assaulted the deceased with lathi nor did the deceased in his dying declaration speak of infliction of lathi blow by anyone on him. P.W.1 alone stated that the accused other than Shivan Roy and Billo Roy assaulted the deceased with lathi. Under the circumstances, the court below rightly discarded the version regarding infliction of assault with lathi by the accused persons excepting Shivan Roy and Billo Roy. Infliction of assault with farsa on the palms of the deceased was supported by P.w'1, P.W.3 and P.W.6. Under the circumstances, the court below rightly discarded the version regarding infliction of assault with lathi by the accused persons excepting Shivan Roy and Billo Roy. Infliction of assault with farsa on the palms of the deceased was supported by P.w'1, P.W.3 and P.W.6. Their statements on this point found corroboration from inquest report (Ext.5) in which it is mentioned that there were cut injuries on both the palms of the deceased. P.W.4, P.W.S, P.W.8 and p.W.9 did not speak of infliction of farsa blow on the deceased by Billo Roy nor did the doctor (P. W,10) conducting autopsy make mention of injuries on palms of the deceased in the postmortem examination report (Ext,2). All this need not detain us here any longer for, out of eight accused persons facing trial four including Billo Roy have been acquitted by the court below. P.W.8 Yasoda Devi and P.W.9 Santlal Yadav. the wife and the brother respectively of the deceased stated that they returned home from Banmankhi Hospital and they did not go to PurJ;1ea Hospital whereas P.W.S said they had along with him and the deceased had gone to Pumea Hospital The other witnesses were not asked about it. P.W.8 and P.W.9 who were rustic illiterate vlii'1QGrs might have made wrong statement by admitting the answer put on them in cross examination or they might have returned their home to look after affairs there. Even if they did not go to Purnea with the deceased it is if no consequence and it would introduce no infirmity in the case. It has further been contended that P.W.5 stated that the spear blow hit the leg (pair) of the deceased though the prosecution case was that the spear pierced the abdomen. The contention is based on misreading of writings of the deposition. A careful reading of the deposition of P.W.5 would make it crystal clear that the word is not PAIR (leg) rather it is PAT I (abdomen). P.W.6 is the grandson of Balmiki Mandal who was brother of Moti Mandai and Soti MandaI. The appellants & the accused (acquitted) are the descendants of Soti Mandal. P.W.6 has no dispute or enmity with any of them. There is no reason why he would falsely implicate his own agnates. P.W.6 along with P.W.1, P.W.3, P.W.4 and P.W.5 may be branded as independent witnesses. 16. The appellants & the accused (acquitted) are the descendants of Soti Mandal. P.W.6 has no dispute or enmity with any of them. There is no reason why he would falsely implicate his own agnates. P.W.6 along with P.W.1, P.W.3, P.W.4 and P.W.5 may be branded as independent witnesses. 16. The evidence of the eye witnesses discussed above is quite consistent cud corroborative free from inherent taint and infirmity. Whatever inconsistency or even discrepancy has cropped in their evidence normal due to normal error of memory due to lapse of time which is always there. However truthful a witness may be but such normal discrepancy does not adversely affect How credibility of the evidence or the case of tt1eir party. Their evidence is consistent with medical evidence as well as dying declaration (Ext.6) of the deceased with the only variation in regard to involvement and participation of the accused persons other than the appellants Shivan Roy, Rajo Roy and Raj Kishore Roy. Like the deceased, his wife (P.W.8) and his brother (P.W.9) too did not name other accused persons including the appellant Bhutto Roy. But on that account the evidence of the eye witnesses as regards the appellants excepting Bhutto Roy cannot be assailed and impeached. 17. As already observed on account of P.W.8 and P.W.9 being closely related to the deceased, P.W.3 giving evidence against the appellants in the counter case in which P.W.1, P.W.9 and the deceased and others were made accused, which already ended in acquittal and the proceeding under Section 107 Cr. P.C. between P.W.5 and the appellant Shivan Hay and the former giving evidence against the latter in a case brought against him by one Mahendra their evidence otherwise worthy of credence cannot be discarded. Mere relationship of witnesses is no ground for rejection of their evidence. The same is the case with a evidence of interested witnesses. Evidence of relatives and interested witnesses is required to be scrutinised carefully to find out if it has a ring of truth and if the same is found to be inspiring confidence and is acceptable and it cannot be discarded totally on account of certain infirmities or variations visiting their statements. The test prescribed by the law stands satisfied in the case we are in seisin of. 18. The test prescribed by the law stands satisfied in the case we are in seisin of. 18. The contention that as many as four accused persons have been acquitted and on the basis of same evidence conviction of the appellants cannot be maintained appears to have been advanced only for being rejected. Merely because some of the accused persons have been acquitted though evidence against all of them was the same cannot pave the ground for acquittal of convicted persons on the analogy of acquittal of certain other person who also 'aced trial. The Court can always differentiate the accused who had been acquitted from these who were convicted. 19. The Investigating Officer (P.W.11) stated that on 4.10.1987, he received requisition from Banamankhi Hospital that an injured person had been brought there for treatment and he rushed to the hospital and he along with the doctor (P.W.13) saw the injured Hardeo Yadav and found that his condition was serious and hence the Block Development Officer, Banmankhi (P.W.12) was called to record his statement (dying declaration) and P. W.12 did record the statement (dying declaration) of the injured Hardeo Yadav. P.W.11 recorded tardbeyan of P.W.8 at about 8.00 P.M. He also recorded there the statements of certain witnesses including P.W.12 and P.W.13. He inspected the place of occurrence in the early morning on 5.10.1987 as it was already late' night on 4.10.1987. He gave a vivid description of the same. He found blood falling at the place of occurrence. He seized blood stained earth from there. He also found mark of violence caused by tarsa on a piece of wood which was kept on the drain probably for crossing the drain where the incident took place. It is true that no seizure list in respect of seizure of blood sent for chemical examination and analysis. It was result of negligence or fault on the part of the Investigating Officer. Certainly investigation to that extent was faulty. But on account of faulty investigation no fault can be found with the prosecution case and due to fault committed by the Investigating Agency the entire prosecution case cannot be thrown overboard. 20. It was result of negligence or fault on the part of the Investigating Officer. Certainly investigation to that extent was faulty. But on account of faulty investigation no fault can be found with the prosecution case and due to fault committed by the Investigating Agency the entire prosecution case cannot be thrown overboard. 20. It was vehemtnly urged that no such heinous crime can be committed without some motive, but in the instant case the prosecution does not appear to have come with clean hands and it has suppressed the genesis of occurrence and motive impelling the appellants to commit the murder of the deceased. It is true that generally criminal act is done witl1 a motive but it would not suggest that criminal act can never be committed without any motive. Not often less, it can be noticed that offences including murders have been fancifully committed without any known motive. It is to be born in mind that motive is embeded in the heart/mind of the culprits. It is very difficult for the prosecution to see and find out motive lodged in the mind of criminals. By now it has been set at rest by catena of decisions of the Apex Court as Well as the High Courts that apparent lack 01 motive cannot entitle the accused to benefit of doubt if the prosecution case is found to have been proved by evidence of credible and acceptable evidence. In the instant case, the incident leading to the death of the deceased stands well established by evidence of occular witnesses as well as dying declaration of the deceased. 21. As already stated the defence set up by the appellants by way of putting suggestion to P.W.9 was that P.W.1, P.W.9 and the deceased and others went to the house of the appellant Shivan Roy and they started untying his cattle and on protest being made by him P.W.9 inflicted spear blow on the appellant 'Hari Kishore Roy @ Bhutto Roy, complainant of Complaint Case No. 97 of 1987, petition of complaint, of which was proved by P.W.1 Sikandar Mandai and just then Dilip, son of P.W.9 was also inflicting spear blow on Hari Kishore •Roy @ Bhutto Roy but unfortunately that 'spear inspite of hitting the complainant hit the deceased. Though, the appellants entered into defence and examined a defence witness they did not adduce evidence to substantiate their defence version. As already stated above, the complaint case brought by the appellant Hari Kishore @ Bhutto Roy against P.W.11, P.W.9 and the deceased and others had already ended in acquittal. There is no injury on any of the appellant to be explained by the prosecution. The defence version does not at all seem to be probable and plausible. 22. On a critical scrutiny of the prosecution evidence it would appear there is hardly anything in cross examination of the witnesses which may cast a doubt on the truthfulness of their testimony. Their credibility has not been impeached. They are natural witnesses and have deposed in straight forward manner. There is no reason for us to interfere with the findings recorded by the court below. The learned counsel for the appellants could not persuade us to accept the case of the defence that no much incident took place and the deceased died of spear stroke given by Dilip, son of P.W. 9. 23. The trial court acquitted the accused Subhash Roy, Dilip Ku'mar Roy, Anil Kumar Roy and Billo Roy, who allegedly inflicted farsa blow causing injuries to the deceased on his palms of the charge under section 302 read with Section 149 out of eight accused persons and no other person is said to have participated in the incident and the accused Raj Kishore Roy, Raja Roy and Hari Kishore Roy @ Bhutto Roy were convicted under. Section 302 with the aid of Section 149 of the Code. The allegation against the appellant Hari Kishore Roy @ Bhutto Roy was more or less identical to that of the accused already acquitted. As the number of accused persons has become less than five after acquittal of four accused persons there cannot be said to be any un-lawful assembly as such conviction of the appellants Raj Kishore Roy, Rajo Roy and Hari Kishore Roy @ Bhutto Roy under Section 302 read with Section 149 of the Code becomes un-warranted and the same cannot be maintained. However, it is made clear that the appellants Raj Kishore Roy, Raja Roy and Hari Kishore Roy @ Bhutto Roy are going to be let out on technical ground and their acquitted must not be interpreted to mean that they have been given cleanchit of innonence. However, it is made clear that the appellants Raj Kishore Roy, Raja Roy and Hari Kishore Roy @ Bhutto Roy are going to be let out on technical ground and their acquitted must not be interpreted to mean that they have been given cleanchit of innonence. Even though they participated and they played their role in the incident leading to the commission of murder of the deceased, they are being exonerated merely on technical ground. 24. As regards, conviction of the appellant Shivan Roy under Section 302 of the Code as already discussed there is abundance of unimpeachable evidence that he inflicted a spear blow on the abdomen of the deceased as a result of which he sustained injury and he succumbed to injury after two days in course of treatment in the hospital Of course, the appellant inflicted a single spear blow on the abdomen of the deceased but the injury was so serious as to cause death in the ordinary course of nature. The injury was inflicted on the deceased after he was dragged from the temple where he was playing cards. He was empty handed. There was nothing on records to show that any provocation was given to the assailant. The materials on records are eloquent of the fact that the assailant Shivan Roy assaulted the deceased with the intention of causing bodily injury to him and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. Clause (3) of Section 300 of the Code is fully attracted against the assailant of the deceased. The appellant Shivan Roy has been rightly convicted and sentenced under Section 302 of the Code. 25. In view of the facts and circumstances of the case discussed and the observations made in preceding paragraphs, we allow the appeal of Raj Kishore Roy, Raja Roy and Hari Kishore Roy @ Bhuto Roy and set aside their conviction and sentence under section 302 read with Section 149 and Section 147 of the Code upholding and maintaining conviction and sentence of the appellant Shivan Roy under Sections 302 and 148 of the Code. The appellants Raj Kishore Roy, Raja Roy and Hari Kishore Roy @ Bhutto Roy are on bail. They are discharged from the liability of their respective bail bonds and are set at liberty. The appellant Shivan Roy is already in jail custody. The appellants Raj Kishore Roy, Raja Roy and Hari Kishore Roy @ Bhutto Roy are on bail. They are discharged from the liability of their respective bail bonds and are set at liberty. The appellant Shivan Roy is already in jail custody. He shall serve out the remainder of the sentence awarded to him. The appeal stands partly allowed.