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2005 DIGILAW 414 (CAL)

TAKU @ RANJAN NAG v. STATE OF WEST BENGAL

2005-06-30

AMIT TALUKDAR, V.S.SIRPURKAR

body2005
AMIT TALUKDAR, J. ( 1 ) IN the mid summer night of April 27,1981 death stalked the home of P. Ws. 4 and 6 (Parents of deceased Bablu @ Sujit) when the harbinger of death (read appellant No. 3) called the deceased and in response to whose call he went to meet his tryst with death at the hands of the accused. ( 2 ) PERHAPS they could sense death, which made his elder sibling (P. W. 1), his widow (P. W. 2) and his parents (P. Ws. 4 and 6) trail his last journey from his home. ( 3 ) IN course of such trail they saw how the said Bablu @ Sujit fell prey to the knife blows of the appellant No. 4. ( 4 ) IT is what they have seen and have done forms the spectre of the prosecution case. ( 5 ) IT is what we have found in the evidence and materials in the kaleidoscope of the submissions at the Bar and the authorities falls for our decision in this appeal. ( 6 ) WHILE we proceed to trace back the gory details we have to set the factual matrix in some details to go the whole hog of the matter. ( 7 ) PURSUANT to the chargesheet submitted by P. W. 22, Sushil Kumar chakraborty against the present appellants along with one Hansi Rani Sarkar (since acquitted), wife of P. W. 1 they were arrayed in Sessions Trial No. 1 (5)83 before the learned Additional Sessions Judge, 12th Court, Alipore to answer the following Charge: a. In respect of Hansi Rani Sarkar (since acquitted):"that you, on or before the 27th day of April, 1981, at Rahara within P. S. Khardah abated accused Taku @ Ranjan Nag, Kanchan @ Tapash chakraborty, Sambhu Saha and Kalu @ Mantu @ Manotosh Ghose to do away with the life of Bablu @ Sujit Sarkar and in pursuance of such abatement the said accused persons assaulted Bablu @ Sujit Sarkar on 27. 4. 1981 at Rahara within P. S. Khardah as a result of which he expired and thereby committed an offence punishable under section 302/109 of the indian Penal Code,. . . . . . . . . "b. In respect of all the appellants (1. Taku @ Ranjan Nag, 2. Kanchan @ tapash Chakraborty, 3. Sambhu Saha and 4. 4. 1981 at Rahara within P. S. Khardah as a result of which he expired and thereby committed an offence punishable under section 302/109 of the indian Penal Code,. . . . . . . . . "b. In respect of all the appellants (1. Taku @ Ranjan Nag, 2. Kanchan @ tapash Chakraborty, 3. Sambhu Saha and 4. Kalu @ Mantu @ Manotosh ghose):"that you, on or about the 27th day of April, 1981, at about 9-15 p. m. at rahara within P. S. Khardah in furtherance of the common intention of you all, all of you assaulted Bablu @ Sujit Sarkar by fists and blows and accused kalu @ Mantu @ Manotosh Ghose stabbed Bablu @ Sujit Sarkar with a knife as a result of which said Bablu @ Sujit Sarkar expired and thereby committed an offence punishable under section 302/34 of the Indian Penal code. . . . . . . . . . "c. In respect of the appellant No. 4. (Kalu @ Mantu @ Manotosh Ghose):"that you, on or about the 27th day of April, 1981, at Rahara within P. S. Khardah voluntarily caused hurt to Smt. Soma Sarkar, wife of deceased bablu @ Sujit Sarkar by means of a knife which is an instrument for stabbing and thereby committed an offence punishable under section 324 of the Indian penal Code,. . . . . . . . . " ( 8 ) SINCE the appellants pleaded not guilty they were put on Trial. ( 9 ) DURING the Trial the prosecution examined as many as 22 witnesses to prove its case. The whole range of witnesses can be placed under the following categories: a. EYE-WITNESSES: p. W. 1, Swapan Kumar Sarkar the elder brother of the deceased Bablu @ sujit Sarkar and the maker of the FIR ; P. W. 2, Soma Sarkar, the widow of the deceased; P. W. 4, Priti Rani Sarkar, the mother of the deceased and P. W. 6, barada Kumar Sarkar, father of the deceased are the eye-witnesses. B. PROXIMATE WITNESSES: the witnesses proximate to the incident who have spoken about the incident just immediately thereafter are P. W. 3, Saikat Sarkar, the child witness (nephew of the deceased); P. W. 5, Dr. B. PROXIMATE WITNESSES: the witnesses proximate to the incident who have spoken about the incident just immediately thereafter are P. W. 3, Saikat Sarkar, the child witness (nephew of the deceased); P. W. 5, Dr. Nripendra Mohan Ganguly the Family Physician, who advised removal of the deceased to the hospital; P. W. 14, Subhas Ranjan dasgupta who came to the house just immediately after the incident and carried the deceased to the hospital along with P. W. 2, Soma Sarker; P. W. 11, Beni Gopal dutta after hearing that deceased Bablu @ Sujit was stabbed reached their house and saw him with blood-stained wet clothes and signed on the seizure list (Ext. 2): P. W. 8, Dipak Dutta one of the uncles of the deceased upon being called by P. W. 11 from his house went to the house of the deceased and saw bablu has died. C. SUPPORTING WITNESSES: p. W. 7, Dulal Banerjee the elder brother of the accused Hansi Rani Sarkar (since acquitted) who deposed about the strained relationship between P. W. 1 and his sister; P. W. 9, Sankar Paul, who turned hostile, stated that he heard "golmaal" near the house of P. W. 13, Kanak Chowdhury where the incident occurred and saw a person escaping. D. MEDICAL EVIDENCE p. W. 15, Dr. Subodh Kumar Singha Roy the Autopsy Surgeon of Dr. B. N. Bose Sub-divisional Hospital, Barrackpore and also the Barrackpore Police Case hospital found one stab wound " /" over right side of chest. According to Dr. Singha Roy, Autopsy Surgeon death was due to the effect of stab wound and was homicidal in nature. P. W. 10, Dr. Gautam Dasgupta, Medical Officer of Dr. B. N. Bose Hospital, Barrackpore attended at 10-45 of 27. 4. 81 i. e. , the date of incident on P. W. 2 and found two injuries on her right forearm, which according to Dr. Dasgupta may be caused by a knife. E. POLICE WITNESSES: p. W. 16, Madan Mohan Das, Assistant Sub-Inspector of Police attached to khardah Police Station on 27. 4. 81 at about 22. 15 hours after receiving the written complaint of P. W. 1, Swapan Kumar Sarkar recorded the formal FIR (Ext. l ). P. W. 17, Nirmal Chandra Kanhari, Sub-Inspector attached to Titagarh police Station held inquest over the body of the deceased Bablu in connection with U. D. Case No. 33 dated 28. 4. 81 at about 22. 15 hours after receiving the written complaint of P. W. 1, Swapan Kumar Sarkar recorded the formal FIR (Ext. l ). P. W. 17, Nirmal Chandra Kanhari, Sub-Inspector attached to Titagarh police Station held inquest over the body of the deceased Bablu in connection with U. D. Case No. 33 dated 28. 4. 81 at the Dr. B. N. Bose Hospital. P. W. 18, musaraf Hossain, Assistant Sub-Inspector of Police of Khardah Police station recorded the G. D. Entry (Ext. 4), lodged by P. W. 4 Priti Rani Sarkar, Mother of the deceased. P. W. 19, Prasanta Kumar Chatterjee, Investigating Officer of the case prepared the sketch map (Ext. 5), effected the seizure of the various articles (Ext. 2) and conducted part of the investigation. P. W. 20, Subimal Kumar Biswas attached to the C. I. D. took over the investigation and sent the seized Alamat for F. S. L. examination and obtained the report of the Serologist (Ext. 7) and the f. S. L. Report (Ext. 5 ). P. W. 21, Jagannath Sanyal also attached to the C. I. D. examined P. W. 13 and one Swapan Ghosh (not examined ). He explained that the witness Purnima Biswas (maid of the house of the deceased) and Swapan kumar Ghosh were not available and summons could not be served upon them. P. W. 22, Sushil Kumar Chakraborty also of the C. I. D. on completion of the investigation submitted the chargesheet against the present appellants and also Hansi Rani Sarkar (since acquitted ). ( 10 ) THIS is all the evidence adduced on behalf of the prosecution whilst the defence did not adduce any witness and took a plea of innocence and false implication. ( 11 ) THE Trial ended with the conviction in respect of the charge of section 302/34 of the Indian Penal Code against all the appellants. ( 12 ) THE appellants were sentenced to suffer imprisonment for life while the appellant No. 4. was also sentenced to suffer two years rigorous imprisonment upon his conviction in respect of the charge of section 324 of the Indian Penal code by the judgment and order dated 16. 9. 85 of the learned Trial Court. ( 13 ) ACCUSED Hansi Rani Sarkar was, however acquitted from the charge framed against her. was also sentenced to suffer two years rigorous imprisonment upon his conviction in respect of the charge of section 324 of the Indian Penal code by the judgment and order dated 16. 9. 85 of the learned Trial Court. ( 13 ) ACCUSED Hansi Rani Sarkar was, however acquitted from the charge framed against her. ( 14 ) SHRI Yezdezard Dastoor with Shri P. K. Mazumdar appeared for the appellant Nos. 1, 2 and 3. Since the appellant No. 4 went unrepresented, and none appeared on his behalf on any of the occasion, we appointed Shri P. K. Mitra as a Amicus Curiae to assist the Court for arguing the appeal on behalf of the said appellant No. 4 who went unrepresented. Shri Samir Chatterjee with Shri Joy Sengupta conducted the appeal on behalf of the State. ( 15 ) SHRI Dastoor for the appellants No. 1, 2 and 3 argued the appeal at great length and posed a galaxy of points for our consideration. ( 16 ) SHRI Dastoor firstly submitted that the telephone call made by P. W. 1 from their residence which made the police to arrive at their house was not diarised, and even if so the same was not produced. According to Shri Dastoor since pursuant to the telephone call made by P. W. 1 the police arrived at the spot when the P. W. 1 lodged the written information, which was treated as a first Information Report (Ext. 1) the same would be hit by section 162 of the code of Criminal Procedure as it was made during the course of investigation. He stressed on the telephone call, which, according to him was the starting point of the investigation. According to Shri Dastoor the FIR was substituted document in view of the evidence of P. W. 1 that he corrected himself with regard to the mentioning of the name of his wife instead of his brother's wife (P. W. 6 ). ( 17 ) AS such, he submitted that as there has been tampering with the said document it had no value and the same should be discarded. On this point he referred Sevi and Anr. vs. State of Tamil Nadu, AIR 1981 SC 1230 . ( 18 ) SHRI Dastoor took serious exception to the non-mentioning of the threat given by the appellants to P. W. 1 and the deceased on 26. 4. On this point he referred Sevi and Anr. vs. State of Tamil Nadu, AIR 1981 SC 1230 . ( 18 ) SHRI Dastoor took serious exception to the non-mentioning of the threat given by the appellants to P. W. 1 and the deceased on 26. 4. 81 (just the day before the incident) and the factum of DYING DECLARATION made by the deceased before P. Ws. 1, 2, 3 and4 in the FIR (Ext. 1) made by P. W. 1 proximate to the incident. Referring to the non-mentioning of the said two aspects in the fir Shri Dastoor submitted that as vital points were left out in the First information Report it gives rise to a serious doubt about the entire sequence of events. He referred to the decision of Ram Prasad and Ors. vs. State of U. P. , AIR 1973 SC 2673 and submitted that as the prosecution has suppressed material aspects of the case the same was liable to be discarded. ( 19 ) SHRI Dastoor further submitted that according to the Autopsy Surgeon (P. W. 15) he found some foodstuff in the stomach of the deceased whereas it is the evidence of P. W. 1 and other inmates of the house that after coming back from office he took a glass of water before being called by the appellant No. 4. As such, it was not possible for him to have any meal in the meantime. ( 20 ) ON the question of the conviction of all the appellants in respect of the charge of section 302 with the aid of section 34 of the Indian Penal Code Shri dastoor submitted that then why the appellant No. 4 was found guilty of the charge of section 324 of the Indian Penal Code simpliciter which improbabilises the evidence of the eye-witnesses. ( 21 ) SHRI Dastoor invited our attention to the delay in sending the FIR to the court, which according to him, had some serious effect in view of the background of the case and he referred to the decision of Suresh Chaudhary us. State of bihar, 2003 SCC (Cri) 801. ( 22 ) SHRI Dastoor submitted that the failure of the prosecution to examine any independent witnesses has weakened the force of the prosecution case and referred to the decisions of Harijana Thirupala and Ors. State of bihar, 2003 SCC (Cri) 801. ( 22 ) SHRI Dastoor submitted that the failure of the prosecution to examine any independent witnesses has weakened the force of the prosecution case and referred to the decisions of Harijana Thirupala and Ors. vs. Public Prosecutor, high Court of A. P. Hyderabad, 2002 SCC (Cri) 1370; State of Punjab vs. Harbans singh and Anr. , 2004 SCC (Cri) 75 and Bir Singh and Ors. vs. State of Uttar Pradesh, air 1978 SC 59 . ( 23 ) LASTLY, Shri Dastoor referred to the decision of Sukhdev Singh vs. Delhi state (Govt. of NCT of Delhi), 2003 SCC (Cri) 1714 and submitted that the conviction of the appellant should be altered to one under section 304, Part-II of the Indian Penal Code as out of a sudden impulse the deceased was assaulted which resulted in his death. ( 24 ) LEARNED Amicus Curiae, Shri Mitra adopts the submissions of Shri dastoor and submitted that P. W. 3 was a minor and his evidence should not have been relied at all by the learned Trial Court. Learned Amicus Curiae further submitted that the incident took place at late night and it was not established as to whether there was any source of light by which the appellant could be identified. ( 25 ) SERIOUS criticism was made, so far as the failure of the prosecution to examine Purnima (maid of the house) and Swapan Ghosh, who was a nearby witness, by the learned Amicus Curiae, and it was submitted that the prosecution has suppressed the evidence of those two witnesses, who, if examined, would have said a different story. ( 26 ) TOUGH resistance was put up on behalf of the State to countermand the submissions made on behalf of the appellants. ( 27 ) FIRSTLY, it was submitted that since P. W. 2, Soma Sarkar was at the relevant time residing in Delhi with her parents and she was detached with her matrimonial home after the date of incident she had no axes to grind and if her evidence alone was accepted then nothing was left for the prosecution to be proved. P. W. 2, the widow of the deceased was a very strong witness, who corroborated the prosecution case in a wholesome manner and in the absence of any infirmity her evidence could not be ignored. P. W. 2, the widow of the deceased was a very strong witness, who corroborated the prosecution case in a wholesome manner and in the absence of any infirmity her evidence could not be ignored. ( 28 ) REFERENCE was made to the evidence of P. Ws. 1, 2, 3 and 4 before whom the deceased made a dying declaration. Although P. W. 3 was a child witness he was properly tested by the learned Trial Court before being examined and there was no reason why his evidence would be disbelieved; more so, when on the question of the dying declaration he spoke in tune with the other witnesses -P. Ws. 1, 2 and 4. ( 29 ) ACCORDING to Shri Sengupta who argued the appeal on behalf of the state, being led by Shri Samir Chatterjee, the post-occurrence witnesses namely p. Ws. 3, 5, 8, 11 and 14 supported the prosecution case and even the hostile witness (P. W. 9) admitted that he heard a commotion towards the house of P. W. 13 and saw one person running. He showed from the Inquest Report (Ext. 3)prepared by P. W. 17 and the evidence of the Autopsy Surgeon (P. W. 15) that both substantially supported the prosecution case. ( 30 ) ACCORDING to Shri Sengupta the wound on the right chest was found to be enough to cause death. The ocular evidence also supported the nature of the wound found by the Autopsy Surgeon. He was of the view that even if P. W. 15, autopsy Surgeon somehow missed the other wound the eye-witnesses have noticed two wounds on the deceased; even the family physician Dr. Ganguly (P. W. 5 ). The Police Officer (P. W. 17), who conducted the Inquest found there were two wounds. As such, simply the Autopsy Surgeon missing another wound does not discredit the prosecution case in any manner. ( 31 ) SHRI Sengupta referred to Yunis @ Kariya vs. State of M. P. , 2003 SCC (Cri) 341 to show that non-mention of the number of injuries by the Autopsy surgeon could not lead to rejection of the prosecution case. As such, simply the Autopsy Surgeon missing another wound does not discredit the prosecution case in any manner. ( 31 ) SHRI Sengupta referred to Yunis @ Kariya vs. State of M. P. , 2003 SCC (Cri) 341 to show that non-mention of the number of injuries by the Autopsy surgeon could not lead to rejection of the prosecution case. ( 32 ) THE sequence of events, according to Shri Sengupta, clearly showed that each of the appellants shared a common intention to cause death of deceased bablu and very rightly they were found guilty with the aid of section 34 of the evidence Act. He placed reliance on the decision of Rarnji and Anr. vs. State of bihar, 2002 SCC (Cri) 760 on this point. ( 33 ) SHRI Sengupta further stated that the motive of the murder was very clear from the threat given to the deceased, earlier after he protested about the frequent visit made by the appellants to the other accused Hansi Rani Sarkar (since acquitted ). ( 34 ) SHRI Sengupta submitted that the FIR was lodged within an hour of the incident and as such, there was no scope for any embellishment or the chance of falsely implicating the appellants in any manner and he negated the argument of Shri Dastoor in this regard. He referred to the decision of Krishna Mochi and ors. vs. State of Bihar, 2002 SCC (Cri) 1220 and submitted that the factum of purported G. D. Entry having been recorded and not being proved or the error as pointed out by Shri Dastoor in the FIR was not at all of any consequence as when the prosecution case is cherished with abundance of other evidence the fir need not be even proved which would not damage the prosecution case. ( 35 ) ON the criticism of Shri Dastoor with regard to the omission in the FIR about mentioning the fact of dying declaration and name of other eye-witnesses shri Sengupta referred to Chittar Lal vs. State of Rdjasthan, 2003 SCC (Cri)1377 and submitted it was not at all fatal as the FIR is not supposed to be an encyclopedia of all events reliance, by him, was placed on this point also on the decision of State of A. P. vs. Golconda Linga Swamy, 2004 SCC (Cri) 1805. ( 36 ) REFUTING the submission of Shri Dastoor regarding use of carbon copies of the inquest report, seizure list Shri Sengupta submitted that the same can be used as a primary evidence when the same bears signatures of the maker. He referred to the decision of Prithi Chand vs. State of Himachal Pradesh, AIR 1989 SC 702 in this regard. He also submitted that in the alternative carbon copies can also be used under the secondary evidence in view of section 65 (c)and (e) of the Evidence Act, as the case may be. ( 37 ) LASTLY, Shri Sengupta distinguished the decisions cited by Shri Dastoor and submitted that they were quite distinguishable and were specific on the particular fact situation and in the light of the discussion the same cannot be applied in the present case. ( 38 ) SHRI Sengupta also disagreed with the submission of Shri Dastoor that the conviction should be brought to one under section 304, Part-II of the Indian penal Code by submitting that as the appellants in a pre-planned fashion after calling the deceased from his home stabbed him by surrounding the deceased with a knife; even if it was a single stab injury as it was on the vital part, the offence was very much covered by section 302 of the Indian Penal Code and he referred to the decision of Narayanan Satheesan alias Baboo vs. State of Kerala, 1977 SCC (Cri) 578. ( 39 ) WE have heard the submissions made on behalf of the appellants and also the State and have perused the evidence and materials on record including the decisions cited at the Bar. ( 40 ) LET us now see as to whether the conviction recorded by the learned trial Court can be sustained in the light of the same. ( 41 ) WE first direct our attention to the ocular evidence. P. Ws. 1, 2, 4 and 6 are the eye-witnesses. What they have seen and said forms the basis of the prosecution case. P. W. 1 the elder brother of the deceased Bablu is a very important witness. ( 41 ) WE first direct our attention to the ocular evidence. P. Ws. 1, 2, 4 and 6 are the eye-witnesses. What they have seen and said forms the basis of the prosecution case. P. W. 1 the elder brother of the deceased Bablu is a very important witness. He has spoken about Bablu coming back to their house from office at about 09-00 p. m. on the date of occurrence, which has also been corroborated by the two other eye-witnesses - P. W. 2 and P. W. 4, and after changing he took a glass of water and just at that point of time, appellant No. 3 called the deceased. The fact that appellant No. 3 called the deceased has been corroborated by all the eye-witnesses and that he changed his dress which has also been spoken by P. W. 2 the widow of the deceased. Before leaving the house, in response to the call of the appellant No. 3, the deceased put on a full-pant and a full-shirt, has been stated by all the eye-witnesses - P. Ws. 1, 2, 4 and 6. ( 42 ) THE evidence of P. W. 1 that as he became apprehensive he also followed the deceased finds support from the evidence of the other eye-witnesses. That after proceeding to a certain extent the other accused appeared at the scene and immediately thereafter the appellant No. 4 struck the deceased with a knife and the others assaulted him by fists and blows have been uniformly spoken by all the eye-witnesses. ( 43 ) WITH regard to the identification of the appellants at the place of occurrence i. e. , near the house of P. W. 13, P. W. 4 and P. W. 6 have spoken about seeing the appellants in the glow of the streetlight. The sketch map (Ext. 5)prepared by P. W. 19 shows two light posts, which has also been deposed by him before the Court. ( 44 ) WE find from the evidence of the eye-witnesses that after P. Ws. 1, 2 and 4 intervened and clasped the appellant No. 4 and tried to save the deceased by holding him back. The sketch map (Ext. 5)prepared by P. W. 19 shows two light posts, which has also been deposed by him before the Court. ( 44 ) WE find from the evidence of the eye-witnesses that after P. Ws. 1, 2 and 4 intervened and clasped the appellant No. 4 and tried to save the deceased by holding him back. Upon being injured, while the accused persons fled away, the deceased placing a hand on his chest over the injury rushed back to their house and fell down on the floor when he stated before P. W. 4 in presence of p. Ws. 1, 2 and 3 (the child witness, who was the son of P. W. 1) that the appellant no. 4 assaulted him with a knife and the other appellants dealt fists and blows. ( 45 ) IMMEDIATELY, we find from the evidence of P. W. 6, that he rushed to call their family physician P. W. 5, Dr. Nripendra Mohan Ganguly, who came and found water was poured on the deceased which has also been spoken by P. W. 4 and P. W. 11, witnesses to the seizure list (Ext. 2) in respect of the wearing apparels of the deceased which was found in wet condition. This was buttressed also from the evidence of the father of the deceased (P. W. 6), who changed the dress of the deceased and put on a pyjama. as the dress of the deceased, which he was wearing was wet, before he was shifted to the Dr. B. N. Bose Hospital on the advice of P. W. 5, their family physician in a vehicle brought from ramkrishna Mission. ( 46 ) THE fact of Dr. Ganguly (P. W. 5) attending the deceased, being shifted to the Hospital by the vehicle brought from the Ramkrishna Mission had been spoken by all the eye-witnesses (P. Ws. 1, 2, 4 and 6 including the child witness p. W. 3 ). ( 47 ) WE find from the evidence, that the deceased was removed to the Hospital in the vehicle of the Ramkrishna Mission and was accompanied by P. Ws. 1, 2 and 13 and one Colonel Dasgupta (not examined) along with others. 1, 2, 4 and 6 including the child witness p. W. 3 ). ( 47 ) WE find from the evidence, that the deceased was removed to the Hospital in the vehicle of the Ramkrishna Mission and was accompanied by P. Ws. 1, 2 and 13 and one Colonel Dasgupta (not examined) along with others. ( 48 ) THE evidence of the eye-witnesses including the injured eye-witness P. W. 2 with regard to her being dealt with knife blows by the appellant No. 4 is substantiated from the evidence of P. W. 10, Dr. Gautam Dasgupta, Medical officer of the Dr. B. N. Bose Hospital who attended her on the date of occurrence just on 10-45 p. m. (ie, barely within a short time from the incident) and found two injuries on her right forearm which may have been caused by a knife. ( 49 ) NOW, we proceed to appreciate the evidence of the surrounding evidence, which, in our view, has only given great support and credence to the main prosecution case. ( 50 ) P. W. 7, Dulal Banerjee was the elder brother of the estranged wife of p. W. 1 who deposed that the relationship between P. W. 1 and Hansi Rani Sarkar was strained. This position, we find, also from the evidence of P. Ws. 1, 4, 6 and 3 (child witness ). This evidence of P. W. 7 in the light of the evidence of the eye-witnesses and as also the child-witness (P. W. 3) assumes some importance as it is the prosecution case that Hansi Rani Sarkar (since acquitted) did not share a cordial relationship with P. W. 1 and the appellants used to visit her, and this was not to the liking of both P. W. 1 and the deceased who protested about such visit and it resulted in the threat, given on the date before the incident (26. 4. 1981), as spoken by P. W. 1. ( 51 ) THE genesis of the prosecution case forms the substance, which gives rise to so-called MOTIVE. However, we find that the same becomes inconsequential in view of the overwhelming evidence of the eye-witnesses and we feel the said part of the prosecution evidence need not arrest our attention. 4. 1981), as spoken by P. W. 1. ( 51 ) THE genesis of the prosecution case forms the substance, which gives rise to so-called MOTIVE. However, we find that the same becomes inconsequential in view of the overwhelming evidence of the eye-witnesses and we feel the said part of the prosecution evidence need not arrest our attention. ( 52 ) WE find from the evidence of P. W. 8, Dipak Dutta, who was one of the uncles of the deceased that P. W. 11 also went to the house of the deceased after having heard that deceased Bablu was stabbed and saw him in blood-stained dress which was very wet before being removed to the hospital. He also signed on the seizure list (Ext. 2) pertaining to the seizure of the wearing apparels. ( 53 ) P. W. 13 lived in the house near which the incident took place. Of course, p. W. 13 was on night duty at the time of occurrence. Much have been sought to be made out with regard to the position that another inhabitant Swapan Ghosh was not examined which we feel has to be brushed aside as from the evidence of P. W. 21. Jagannath Sanyal we find summons was issued; but he could not be traced out. ( 54 ) BEFORE proceeding further we also note that P. W. 1 had spoken at the relevant time, in the house, the maid servant of the family was present who, however, was not examined. But, this situation can be also taken care of by the evidence of P. W. 21 who also deposed about her being untraceable in spite of issuance of summons for procuring her attendance although her statement was recorded by P. W. 19. ( 55 ) ALTHOUGH we fail to understand in view of the overwhelming ocular evidence, supported by the other connected evidence, what impact it would have on the prosecution in the event these two witnesses were examined; but, we feel it necessary to address the same as the situation has so bubbled up by virtue of the evidence of P. W. 21. ( 56 ) TO proceed further, we find that P. W. 14 after having heard that Bablu died came to their house and took the deceased to the hospital in the jeep. ( 57 ) IF we match the evidence of P. Ws. ( 56 ) TO proceed further, we find that P. W. 14 after having heard that Bablu died came to their house and took the deceased to the hospital in the jeep. ( 57 ) IF we match the evidence of P. Ws. 5, 8, 11 and14 we find that all of them have heard about the news of death of Bablu and they rushed to his house and found him lying in injured condition. ( 58 ) INTERSPERSED with this evidence is the evidence of the hostile evidence (P. W. 9), who for reasons best known to him, resiled from his earlier version, however, stated that he heard a "golmaal" near the house of P. W. 13 and saw a person fleeing away. ( 59 ) IF we match the evidence of the eye-witnesses, who have spoken about the manner in which the deceased Bablu was called from his house by the appellant No. 3 and thereafter all the appellants accosted him while the appellant no. 4 stabbed him and also his widow (P. W. 2) and thereafter he ran to his house where he collapsed and lay on the floor. That there was an incident near the place of occurrence have been fortified form the evidence, even from the hostile evidence (P. W. 9 ). And that Bablu lay on the floor in injured condition, before being shifted to the hospital, on the advice of P. W. 5 the family physician of the deceased, have been spoken by P. Ws. 8, 11 and 14. ( 60 ) CURIOUSLY enough the Autopsy Surgeon, Dr. Subodh Kumar Singha Roy (P. W. 15) had noticed in course of conducting the post-mortem examination on the body of the deceased found "one stab wound " / " by cavity deep over right side of chest at the level of 5th and 6th intracostal space with oozing of blood. " Before deliberating on the post-mortem, we return to the evidence of the eye-witnesses. P. W. 2 specifically deposed that the appellant No. 4 struck the deceased twice. After the deceased came running to his house and fell on the floor, his mother (P. W. 4) their family physician (P. W. 5), his father (P. W. 6)and P. W. 14, who came just after the incident saw two injuries on the deceased. P. W. 2 specifically deposed that the appellant No. 4 struck the deceased twice. After the deceased came running to his house and fell on the floor, his mother (P. W. 4) their family physician (P. W. 5), his father (P. W. 6)and P. W. 14, who came just after the incident saw two injuries on the deceased. We have to connect this piece of evidence with the evidence of the father (P. W. 6)who deposed that appellant No. 4 "stabbed my son left and right" which would mean that the deceased was struck more than once. Also relevant would be the evidence of the mother (P. W. 4), who was "resisting Taku (appellant No. 4) so I did not actually notice on how many occasions he stabbed my said son after he was given the first stabbing by means of his said knife", on this point. ( 61 ) WE find from the seizure list (Ext. 2) that there was a cut mark on the trouser which the deceased was wearing at the time of incident near the position of his groin, the location of the injury having been spoken by the above witnesses. ( 62 ) THAT explains the injury suffered by the deceased at the hands of the appellants. ( 63 ) IF we again revert back to the Autopsy Surgeon we find that "death in my opinion was due to the effect of stab wound stated above - ante-mortem homicidal in nature. " and "the injury was quite sufficient to cause death in ordinary course of nature. " ( 64 ) ONCE we have found the injuries sustained by the deceased were sufficient to cause death in view of the opinion of the doctor (P. W. 15) who held the postmortem examination it becomes highly insignificant that the Autopsy Surgeon did not notice the second injury on the area near the groin of the deceased which has been seen by P. Ws. 4, 5, 6 and14 apart from the first injury on the chest, which has been found by the Autopsy Surgeon and seen by the eyewitnesses that the deceased was dealt a blow by his knife by the appellant No. 4 on the chest of the deceased which was sufficient to cause death in ordinary course of nature. 4, 5, 6 and14 apart from the first injury on the chest, which has been found by the Autopsy Surgeon and seen by the eyewitnesses that the deceased was dealt a blow by his knife by the appellant No. 4 on the chest of the deceased which was sufficient to cause death in ordinary course of nature. The other injury in the area of the groin even if it was not noticed, does not have any effect. That apart, we have the authority of the supreme Court in Anil Kumar Singh vs. State of U. P. , 2005 SCC (Cri) 178 where it has been decided : "it is trite law that when oral evidence is credible and cogent, that medical evidence is to the contrary, is inconsequential. Only when the medical evidence totally improbabilises the oral evidence, can adverse inference be drawn. " ( 65 ) HERE, the ratio of the said decision of Anil Kumar Singh vs. State of U. P. (supra) has square application and we do not for a moment feel inclined to find any fault with regard to the failure of the Autopsy Surgeon to detect the second injury which, in our view, had no bearing. ( 66 ) ONCE we have found that the confection of the prosecution case have been proved through the evidence of the eye-witnesses and fortified by the surrounding evidence which we have noticed in the foregoing paragraphs now we take up for consideration the submission of Shri Dastoor. ( 67 ) IT is true P. W. 1 made a telephone call from his house to inform the police as a result of which P. W. 19 Prasanta Kumar Chatterjee came to the house of the deceased at about 22. 30 hours. No explanation has been given by the prosecution neither with regard to the time of the telephone call, nor the factum of the said information being reduced into writing and was diarised. ( 68 ) BEFORE appreciating this aspect of the matter as canvassed by Shri Dastoor we have taken care of his second agony so far as the FIR (Ext. 1) which was initiated on the basis of the statement made by P. W. 1 after the said telephone call, which according to Shri Dastoor was registered after the investigation had already begun and also affected by section 162 of the said Code. 1) which was initiated on the basis of the statement made by P. W. 1 after the said telephone call, which according to Shri Dastoor was registered after the investigation had already begun and also affected by section 162 of the said Code. ( 69 ) WE on one hand find that as there is no material to show that the information given over telephone by P. W. 1, which made P. W. 19 to arrive at the spot, we cannot infer that there was any substantial information disclosing a cognizable offence. What was there perhaps was simply the report of an incident as we read from the evidence of P. W. 1 who says - ". . . . . . . . . . . . . . . . . . . . . . . I at once informed our local P. S. i. e. Khardah P. S. over our said telephone to inform this incident. " It was perhaps just an information about the incident. It may not have disclosed the commission of a cognizable offence but a simple narration that a murder had taken place. The telephonic message spelt out about the fact of a murder, which resulted in the police to reach the spot and the FIR (Ext. 1)was registered at about 22. 15 hours. True, there is some discrepancy about the situation which spurred P. W. 19 into action; but, in our view, it cannot have any significance as the basic fact of the prosecution case seems to have been made out. ( 70 ) REFERENCE may be made to the decision of Dhananjoy Chatterjee alias dhana vs. State of W. B. , 1994 (2) SCC 220 . This position has been quite clarified by the Supreme Court where it has been found that a vague and indefinite information given on the telephone which made the investigating agency only to rush to the scene of occurrence could not be treated as a First Information report under section 154 of the Code of Criminal Procedure. If we go by the decision of Dhananjoy Chatterjee alias Dhana vs. State of W. B. , (supra) we feel no difficulty in dealing with the question as raised by Shri Dastoor. If we go by the decision of Dhananjoy Chatterjee alias Dhana vs. State of W. B. , (supra) we feel no difficulty in dealing with the question as raised by Shri Dastoor. ( 71 ) FURTHER the omission of P. W. 1 to mention about the threat given by the appellants just the day before the incident and the factum of the dying declaration not forming the part of the FIR (Ext. 1) lodged by him immediately after the incident which haunted the mind of Shri Dastoor is at best a omission on the part of a distraught elder brother, who had the misfortune of witnessing the murder of his own younger brother and after he was shifted to the hospital one can easily imagine what was the state of his mind when the FIR was lodged. An FIR, it is by now well-settled principle, that it cannot contain an encyclopedia of all the events. It is suffice that simply facts leading to the offence has to be spelt out disclosing the commission of a cognizable offence which can enable the police to take up investigation. ( 72 ) THE perusal of the FIR shows the basic facts have been quite correctly stated by P. W. 1 and the omission of the said two aspects are liable for contradiction with the maker of the FIR (P. W. 1) to the said incident and nothing more, and even if we exclude the same from our consideration we find that the prosecution case does not even in any slightest manner gets affected by virtue of the said position as it has been able to prove its case by plethora of evidence and substantial material brought before the Court. ( 73 ) SO far as the submission of Shri Dastoor that the FIR was a substituted document which in our view, cannot even detain us even for a moment as we find it has been specifically explained by P. W. 1 that:"as I was then extremely excited and nervous so out of mistake I have stated here my wife in place of my said brother's wife which is a sheer mistake. The said injury was sustained by my said brother's wife and not by my wife. My wife was then not at the place of incident where my said brother's wife sustained that injury. The said injury was sustained by my said brother's wife and not by my wife. My wife was then not at the place of incident where my said brother's wife sustained that injury. " ( 74 ) THE argument of Shri Dastoor cannot have any appeal. It is simply an omission, which has been sorted out. The fact that his wife, with whom he shared a strained relationship, was not at the place of incident, as deposed by him, is substantiated from the evidence of the First Investigating Officer (P. W. 19), who arrested her (Hansi Rani Sarkar) from her place of work -Panihati Hospital and also from the evidence of P. W. 20, second Investigating officer of the C. I. D. that the Duty Register checked by him shows Hansi Rani sarkar was on duty at the relevant time. ( 75 ) THE argument of Shri Dastoor with regard to the production of the G. D. Entry (Ext. 4) lodged by P. W. 4 and as has been proved by P. W. 18 showing the threat received by the family of the deceased, was not at all relevant as the important Diary pursuant to the telephonic message was not produced also, in our view, requires no discussion in view of the position which we have already found hereinabove. ( 76 ) SHRI Dastoor has tried to make a point taking cue from the evidence of the post-mortem doctor that since he found undigested rice and vegetables in the stomach of the deceased and death had taken place, according to P. W. 15 within an hour of the taking of the night meal. He submitted that in view of the specific evidence of P. W. 1 that the deceased took a glass of water after he came back from work how could the food particles be found in his stomach, which shifted the time of occurrence. ( 77 ) WE feel that the deceased may have had his meal elsewhere and this cannot, in our view, as it is not known whether the deceased had taken his meal elsewhere before his return from the office be of any significance. We feel no importance should be attached to the point relied upon by Shri Dastoor. ( 77 ) WE feel that the deceased may have had his meal elsewhere and this cannot, in our view, as it is not known whether the deceased had taken his meal elsewhere before his return from the office be of any significance. We feel no importance should be attached to the point relied upon by Shri Dastoor. ( 78 ) FAILURE of the prosecution to examine independent witnesses have been waxed eloquence by Shri Dastoor who was of the view that the eye-witnesses were all related and they had the intention to see the appellants to be convicted. As such, their evidence should not have been accepted by the learned Trial court. ( 79 ) FIRSTLY we find that the hour of the night in a semi-rural area the manner in which the deceased was called from his house the inmates of the house were the only probable persons to have witnessed the occurrence, which they did and we have no reason to disbelieve their versions. True, there was the house of one Barin Bose where P. W. 13 and one Swapan Ghosh resided. If we accept that they ought to have come before the Court to depose we see from the evidence of P. W. 13 that on the relevant time he was on night duty and the evidence of p. W. 21 Jagannath Sanyal shows that they tried to secure the presence of the other inhabitant of the house Swapan Ghosh but he could not be traced out. ( 80 ) THIS explains the position. ( 81 ) WE can also take judicial notice of the fact that nowadays there is total inertia of the common people to come and get themselves involved in an incident and depose in Court. That way we do not find any laches in the prosecution for non-examination of the other independent witnesses. ( 82 ) WE find that simply because a person is related and he being a interested witness his evidence cannot be discarded as it has been held by the Supreme court in Hari Ram vs. State of U. P. , 2005 SCC (Cri) 321 that:"relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegation against an innocent person. It is more often than not that a relation would not conceal actual culprit and make allegation against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. " ( 83 ) THEIR Lordships further held that: ". . . . . . . . . . . . . . . . . . that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. " ( 84 ) THEIR Lordships further proceeded :"when any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. " ( 85 ) WE have carefully assessed the intrinsic value of the eye-witnesses and do not even feel for a moment that they can be either disbelieved or their evidence is exaggerated. ( 86 ) SIMILARLY, we have in Harijana Narayana and Ors. vs. State of A. P. , 2004 scc (Cri.) 65 wherein the Supreme Court has held that conviction on the basis of the evidence of the related witnesses is permissible if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence inspires confidence. As we have found that the eye-witnesses were probable and faithful witnesses and we attach full credence to their version to rely upon the prosecution case. ( 87 ) EVEN in the very recent decision of the Supreme Court in Babulal and ors. vs. State of M. P. , 2005 SCC (Cri.) 620. Their Lordships have held:"relationship is not a factor to wipe out the credibility of any witness' evidence. The Court in a case where relatives are witnesses has to test their version on the touchstone of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. " ( 88 ) AS such, we do not feel tempted to accept the argument of Shri Dastoor in this regard that the witnesses being related and they were interested witnesses and they should be discarded. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. " ( 88 ) AS such, we do not feel tempted to accept the argument of Shri Dastoor in this regard that the witnesses being related and they were interested witnesses and they should be discarded. ( 89 ) A very telling situation cannot be ignored that is the evidence of the widow of the deceased (P. W. 2), who apart from witnessing the gory details of her husband being stabbed and being assaulted by a pack of accused who did not even relent although she along with her brother-in-law and mother-in-law (P. W. 1 and P. W. 4 respectively) sought to intercept them for mollifying their fury, was herself the victim of stab injuries of the appellant No. 4. The evidence of injured eye-witness was a very tell-tale situation which no Court can ignore. The decision of the Supreme Court in Prithvi (MINOR) vs. Mam Raj and Ors. , 2005 SCC (Cri) 198 is absolutely a trite position where the injury suffered by an eye-witness only fortifies the position with regard to the presence of the said witness at the spot. In such view of the matter P. W. 2 is a very important witness, who has to be given due regard. ( 90 ) THE argument of the learned Amicus Curiae with regard to the presence of light in the place of occurrence pales into insignificance in view of the evidence of P. W. 4 and P. W. 6, who have categorically stated that they identified the appellants by the street light and we find from the evidence of the Investigating officer (P. W. 19), who prepared the sketch map (Ext. 5) that he has noticed two street lights on the place of occurrence. ( 91 ) THE next argument of the learned Amicus Curiae was that P. W. 3 was a minor and his evidence cannot be relied upon. Section 118 of the Evidence Act shows who can testify. It reads that all persons can be competent to testify unless the Court considers they are prevented from understanding the questions put to them, or giving rational answers to them, by virtue of their tender years, extreme old age, disease, whether bodily or in mind or for any other cause of the same kind. It reads that all persons can be competent to testify unless the Court considers they are prevented from understanding the questions put to them, or giving rational answers to them, by virtue of their tender years, extreme old age, disease, whether bodily or in mind or for any other cause of the same kind. ( 92 ) ALTHOUGH there is no legal provisions in law to ask preliminary questions to sound a child with regard to the capacity of his testimonial faculty it is always a wholesome course to be adopted as the object of the same is not to legalise the evidence but only to save time of the Court for further progress in examining the said witness who is incompetent to depose. Once the Court has examined the child witness and found that he understands the duty of telling the truth, then there is no bar in accepting his evidence. ( 93 ) HERE we find prior to recording the evidence of the said child witness (P. W. 3) the learned Trial Court took extreme care and caution and utmost pain to test the mental faculty of the said witness to ascertain his capacity to understand and it is only after being so satisfied that his evidence was recorded. That is the first aspect of the matter. ( 94 ) WE should not suffer under the burden of the traditional belief that a child witness is susceptible to tutelage and being coached to give a particular evidence as his mind is susceptible to whatever he thought and on account of his tender age he is vulnerable to the impact of a particular thing being thrust upon him; on the contrary, we should not lose sight of the fact that a child, who has a fresh memory and on account of his innocence he will always come out with the true version. ( 95 ) AS such, that way there is no legal bar in accepting the evidence of a child witness. More so, as in the instant case we find the unimpeachable and eloquent version of P. W. 3 on record which has lent unfailing assurance to the other evidence shows that he as a child witness was the witness of truth but was also not a victim of imagination as most children of that age are prone to. More so, as in the instant case we find the unimpeachable and eloquent version of P. W. 3 on record which has lent unfailing assurance to the other evidence shows that he as a child witness was the witness of truth but was also not a victim of imagination as most children of that age are prone to. ( 96 ) WHILST it is axiomatic truth that uncorroborated testimony of a child is extremely risky to be relied upon; but in the present case we find that the child has spoken about two important facets of the prosecution case ie, DYING declaration of the deceased Bablu before his death to P. W. 4 which has been supported by P. Ws. 1, 2 and 4. Then the said child witness (P. W. 3) has also spoken about the fact of arrival of Dr. Ganguly (P. W. 5) and the vehicle being brought from Ramkrishna Mission on which the deceased was removed to the hospital. These evidence have also been spoken by the other witnesses in tune with each other simultaneously. ( 97 ) AS such, even if we leave out for argument's sake the evidence of the child witness the prosecution case remains as firm as The Rock of Gibraltar. Although the evidence of the child witness, who could not be shaken in his cross-examination, remains as firm as a rock and lends assurance to the main thread of the prosecution case, we do not for a moment feel persuaded by the submission of the learned Amicus Curiae in this regard and are of the opinion that the evidence on the whole are quite inspiring and acceptable. ( 98 ) IT may have been that many other witnesses have not been examined but, after all it is the choice of the prosecution to examine the witnesses whom it likes to do so as to prove its case and here as we have found the witnesses adduced by the prosecution are sufficient to prove its case we do not feel inclined to look into the same. It is not the quantity of the witnesses but the quality of the same, which matters. Since we have the dependable and reliable evidence of the eye-witnesses and other surrounding witnesses, who inspire confidence we feel no difficulty in accepting their versions. ( 99 ) THE decisions of Harijana Thirupala and Ors. It is not the quantity of the witnesses but the quality of the same, which matters. Since we have the dependable and reliable evidence of the eye-witnesses and other surrounding witnesses, who inspire confidence we feel no difficulty in accepting their versions. ( 99 ) THE decisions of Harijana Thirupala and Ors. (supra), State of Punjab vs. Harbans Singh and Anr. (supra) and Bir Singh vs. State of Uttar Pradesh (supra)relied upon by Shri Dastoor are quite distinguishable in the fact situation of the present case in view of the foregoing discussion with regard to the vicinity of the place of occurrence and the probability of the witnesses who were the inmates of the house of the deceased being present at the time of the occurrence. This explains the non-examination of the independent witnesses. ( 100 ) THE decision relied upon by Shri Dastoor in Sevi and Anr. vs. State of tamil Nadu and Anr. (supra), in our view, does not come to his rescue in any manner as in the said case Their Lordships of the Supreme Court were dealing with a situation where the First Information Report itself was substituted by another and the failure of the police to produce the FIR Book in Court in spite of the directions including the General Diary it was held that the prosecution case was suspicious. But, here the situation is quite otherwise. The First information Report (Ext. 1) lodged by P. W. 1 has been suitably proved by P. W. 16 the A. S. I. , who recorded the same almost contemporaneously ie, within one and half hour from the incident and the evidence of P. W. 1 with regard to naming his wife instead of the wife of his brother explains the entire position and we are afraid that the decision of Sevi and Anr. vs. State of Tamil Nadu and Anr. (supra) cannot have any impact in the fact situation of the instant case. ( 101 ) THE decision referred to in Suresh Chaudhary vs. State of Bihar (supra)with regard to the delay in sending the report to the Magistrate has to be understood in the backdrop of that particular decision. vs. State of Tamil Nadu and Anr. (supra) cannot have any impact in the fact situation of the instant case. ( 101 ) THE decision referred to in Suresh Chaudhary vs. State of Bihar (supra)with regard to the delay in sending the report to the Magistrate has to be understood in the backdrop of that particular decision. Suresh Chaudhary's case (supra) should be considered in the backdrop of the particular fact situation of the said case where in the complaint it was recorded that deceased Rajendra chaudhary has already died which was in direct conflict with the evidence of p. W. 12 who says that Rajendra Chaudhary died at a different time in the hospital. As such, delay in sending the report to the Jurisdictional Magistrate after one and half days raised a question; but, here we find that the incident took place on 27. 4. 81 at about 21. 15 hours whereas the First Information Report (Ext. 1) was submitted on the same day at about 22. 15 hours ie, exactly after an hour. The FIR was dispatched to the Court on 28. 4. 81. The records of G. R. Case no. 2086 of 1981 maintained in the Court of the learned Sub-Divisional Judicial magistrate, Barrackpore shows the learned Magistrate gave endorsement on the said FIR by his dated signature of 28. 4. 81 and the accused Hansi Rani sarkar was brought under arrest on 28. 4. 81 itself. ( 102 ) ACCORDINGLY, this submission of Shri Dastoor with regard to the delay in sending the FIR to the Court has no meaning, if we for a moment shift to the evidence of P. W. 19, who arrested Hansi Rani Sarkar on the very night of the occurrence and produced her on the next date, then at once we will find that shri Dastoor's submission bears no significance and the decision relied upon by him in Suresh Chaudhary vs. State of Bihar (supra) has no effect. ( 103 ) AFTER all each decision has to be appreciated in the backdrop of its ratio and cannot be applied in an axiomatic fashion and has to be understood in the context in which it appears. The speaking voice in the decision of Haryana financial Corporation and Anr. vs. Jagdamba Oil Mills and Anr. ( 103 ) AFTER all each decision has to be appreciated in the backdrop of its ratio and cannot be applied in an axiomatic fashion and has to be understood in the context in which it appears. The speaking voice in the decision of Haryana financial Corporation and Anr. vs. Jagdamba Oil Mills and Anr. , 2002 (3) SCC 496 Arijit Pasayat, J. on behalf of the Hon'ble Justice B. N. Kirpal (as the learned Chief Justice of India then was) and the Hon'ble Justice K. G. Balakrishnan in paragraph 22 of the said judgment quoted Lord Denning: "each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. " ( 104 ) WE have given our anxious consideration to the submissions made on behalf of the appellants and considered the same in the light of the materials available on record. ( 105 ) WHAT after all transpires from a wholesome assessment of the entire perspective of the matter we find that we have to proceed on the basis of the probability. After all the murder has been taken place and the report in writing about the said incident was lodged just an hour thereafter naming all the accused persons whose role has been vividly described by the eye-witnesses and the incident has been spoken by the supporting witnesses who came shortly after the incident to the place of occurrence and found the deadbody in the house of the deceased. ( 106 ) THE proximity of the incident and the timing of the report by an eyewitness (P. W. 1)within an hour cannot take away the thunder out of the prosecution case, and we find no scope to disbelieve the evidence on record in any manner. ( 106 ) THE proximity of the incident and the timing of the report by an eyewitness (P. W. 1)within an hour cannot take away the thunder out of the prosecution case, and we find no scope to disbelieve the evidence on record in any manner. ( 107 ) THE decisions cited by Shri Dastoor are quite distinguishable and have no manner of application in the present context; on the contrary, the decision cited by Shri Sengupta with regard to the omission of the Autopsy Surgeon in noticing a second wound, being not fatal and the decision of Yunus alias Kariya vs. State of M. P. (supra), in our view, is absolutely applicable in the present case. So also is the decision of Krishna Mochi and Ors. vs. State of Bihar (supra)with regard to the actual impact of the FIR in a criminal case in the light of the objection of Shri Dastoor about the omissions in the same so also is the decisions of Chittar Lal vs. State of Rajasthan, (supra) and State of A. P. vs. Golconda linga Swamy and Anr. (supra) that the FIR is not supposed to be an encyclopedia of all events. ( 108 ) NOW, we come to the last part of the submission of Shri Dastoor touching on the question of the charge being altered from one under section 302 of the indian Penal Code to section 304 Part-II of the Indian Penal Code in the light of the decision of Sukhdev Singh vs. Delhi State (Govt. of NOT of Delhi), (supra ). ( 109 ) PRIOR to assessing that part of the submission of Shri Dastoor we feel appropriate to once again refer to the evidence of the Autopsy Surgeon (P. W. 15), who found that "the injury was quite sufficient to cause death in ordinary course of nature. " He detected the following injury: "1. One stab wound " / " by cavity deep over right side of chest at the level of 5th and 6th infracostal space with oozing of blood. On further dissection intercostal muscle, tissues and structures underneath where found cut the weapon traversed medial ward and downwards cutting the peritoneum reached the right glove of the liver leaving an incised wound " / " by liver substance. " ( 110 ) WE have seen the manner in which the blow was dealt by appellant no. On further dissection intercostal muscle, tissues and structures underneath where found cut the weapon traversed medial ward and downwards cutting the peritoneum reached the right glove of the liver leaving an incised wound " / " by liver substance. " ( 110 ) WE have seen the manner in which the blow was dealt by appellant no. 4 upon the deceased, who after receiving the injury ran for his life. ( 111 ) FROM the evidence of the eye-witnesses we find that the deceased was caught from his house and in course of some exchange of words the appellant no. 4 struck the fatal blow on the very vital part of the body of the deceased, which according to the Autopsy Surgeon was sufficient to cause death in the ordinary course of the nature. The eye-witnesses sought to resist the appellant no. 4 but it was of no effect and he was stabbed mercilessly while the other accused dealt indiscriminate blows on the deceased. ( 112 ) TO better appreciate this position we have to advert to the provisions of section 300 Clause "fourthly" of the Indian Penal Code: "4thly.-If the person committing the act knows that it so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. " ( 113 ) IN order to find an accused guilty of the charge of section 304 Part-II of the Indian Penal Code it has to be established that he had the guilty knowledge but not the intention. The knowledge, which is understood within the meaning of section 304 Part-II of the Indian Penal Code, is the knowledge of the likelihood of death. ( 114 ) IF we go further deep in the matter, it would be seen that the act done with the knowledge has to be so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death which may fall within the clause "fourthly" of section 300 of the Indian Penal Code and it would constitute the offence of murder. ( 115 ) WE have to keep in mind the definition of culpable homicide, which reads as follows:"299. Whoever causes death by doing an act with. ( 115 ) WE have to keep in mind the definition of culpable homicide, which reads as follows:"299. Whoever causes death by doing an act with. the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. " ( 116 ) NOW, it would be seen that in order to fall within the ambit of culpable homicide which is not murder, as defined in Exception 4 of section 300 of the indian Penal Code four (4) tests have to be satisfied viz. (1) it was a sudden fight, (2) there was no premeditation, (3) the act was done in the heat of passion and (4) the assailant had not taken any undue advantage or, acted in a depraved manner. ( 117 ) IN order to, fix the responsibility in respect of Exception 4 of section 300 of the Indian Penal Code it is not relevant as to what were the number of wounds; but, what is important is that the occurrence must have taken place suddenly and in an unpremeditated manner without the offender taking any undue advantage or having acted in a cruel manner and it has to further be established that the quarrel took place in the heat of moment, obviously the exception 4 of section 300 of the Indian Penal Code would be available to him (See: Surinder Kumar vs. Union Territory, Chandigarh, AIR 1989 SC 1094 ). ( 118 ) BUT that where a person during the course of a sudden fight without any premeditation and may be in the heat of passion took undue advantage and acted in a cruel manner in using a deadly weapon on an unarmed victim the offence fell within the definition of murder. This position is clarified in the ratio of the decision of the Supreme Court in Kikar Singh vs. State of Rajasthan, air 1993 SC 2426 . This position is clarified in the ratio of the decision of the Supreme Court in Kikar Singh vs. State of Rajasthan, air 1993 SC 2426 . ( 119 ) FROM the decision of Kikar Singh vs. State of Rajasthan (supra) the position becomes absolutely clear that where the accused does an act with the intention of causing death or causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death then culpable homicide would amount to murder. ( 120 ) IN the instant case we find that the appellant No. 4 aimed specifically at the chest of the deceased and the said blow was found to be sufficient in the ordinary course of nature to cause death by the Autopsy Surgeon (P. W. 15 ). There is a specific direction of the assault particularly intended by the appellant no. 4. As such, the said offence cannot be brought within the purview of clause "thirdly" of section 300, Indian Penal Code. Had it been a case where there was no specific intendment by the assailant in causing the injury the case would have fallen within the purview of clause "thirdly" of section 300 of the Indian penal Code as found by the Supreme Court in Chavda Jivanji Chelaji and Ors. vs. State of Gujarat, 2004 SCC (Cri) 437. ( 121 ) A plain reading of the evidence shows that in a very stable and static fashion the appellant No. 4 dealt the blow on the chest of the victim. In other words, there was a specific direction with a particular intention and the gravity and thrust of the injury was such that it was sufficient to cause death in ordinary course of nature. Accordingly, it would be a fallacy if we succumb to the submission of Shri Dastoor to alter the charge from section 302 of the Indian penal Code to section 304 Part-II of the Indian Penal Code as it was a single blow dealt by the appellant No. 4. Accordingly, it would be a fallacy if we succumb to the submission of Shri Dastoor to alter the charge from section 302 of the Indian penal Code to section 304 Part-II of the Indian Penal Code as it was a single blow dealt by the appellant No. 4. ( 122 ) IN Hukam Chand vs. State of Haryana, 2002 (8) SCC 421 , the Supreme court held that even if there was a single blow on the vital part of the body and such blow was caused by the appellant, who was armed, which was sufficient in the ordinary course of nature to cause death, the case squarely falls within section 302 of the Indian Penal Code. ( 123 ) WE have the very high authority of the Supreme Court in Virsa Singh vs. State of Punjab, AIR 1958 SC 465 where Vivian Bose, J. speaking for the bench (Jafer Imam, P. B. Gajendragadkar [as the learned Chief Justice of India then was] and Vivian Bose, JJ.) held:" (12) To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300 "thirdly" : first, it must establish, quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. (13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300 "thirdly". It does not matter that there was no intention to cause death. (13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two ). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. " ( 124 ) THE celebrated decision of Virsa Singh vs. State of Punjab (supra) is perhaps a locus classicus. ( 125 ) SIMILARLY, in Suraj Bhan vs. State of Haryana, AIR 2003 SC 785 again the Supreme Court clarified the said position : "9. Learned counsel then argued that since the appellant has dealt only a single blow, the offence it at all, cannot be the one falling under section 302, ipc or at the most, it would come under section 304, Part-II, IPC since there is absolutely no material to show that the appellant had any knowledge that he would be causing an imminent death of the deceased. In this regard we have examined the medical evidence and the manner in which the assault in question has taken place. The doctor has opined that the injury was caused in such a manner as to cause the death of the deceased which on dissection found by the doctor, had caused a fracture of the left parietal bone causing extra-dural haemotoma. The doctor has opined that the injury was caused in such a manner as to cause the death of the deceased which on dissection found by the doctor, had caused a fracture of the left parietal bone causing extra-dural haemotoma. The doctor has opined that the death was due to shock and haemorrhage and as a result of the head injury which was sufficient to cause death in the ordinary course of nature. We are of the opinion that the appellant must be attributed with the knowledge that when he used a lathi forcefully on the head of a person, he was likely to cause death of said the person, the prosecution has also proved that this appellant had the intention to kill the deceased, therefore, we have no hesitation in rejecting the argument of learned counsel on this count also. ( 126 ) THE decision referred to by Shri Dastoor in Sukhdev Singh vs. Delhi state (Govt. of NOT of Delhi) (supra), in our opinion, is discernible and has little application in the present context. The Supreme Court was dealing with an appeal in Sukhdev Singh's case (supra) where the appellant was the P. S. O. of the Municipal Councillor and in course of an altercation, followed by a scuffle between the appellant and the deceased with regard to parking of a three-wheeler of the deceased, the appellant took out a pistol and fired at the deceased and the conviction of the appellant was altered to one under section 304, Part-II of the Indian Penal Code. ( 127 ) AS such we feel the said decision of Sukhdev Singh vs. Delhi State [govt. of NCT of Delhi] (supra) is quite inapplicable. On the contrary the decision cited by Shri Sengupta in Narayanan Satheesan alias Baboo vs. State of Kerala, 1977 SCC (Cri) 578 is on the point. ( 128 ) AS such, we find no force in the submission of Shri Dastoor in this regard and overrule the same. ( 129 ) ONCE we have decided the fate of the appellant No. 4 simpliciter in respect of the charge of section 302 of the Indian Penal Code this now leads us to the appeal of appellant Nos. 1, 2 and 3. They have been fastened with the principal charge of section 302 of the Indian Penal Code with the aid of section 34 of the Indian Penal Code. 1, 2 and 3. They have been fastened with the principal charge of section 302 of the Indian Penal Code with the aid of section 34 of the Indian Penal Code. To have a wholesome grasp over their individual role we have catapulated their overt acts in the following chart: role of the Accused/appellants. PW. 1 (Elder Brother of deceased)P. W. 2 (Wife of the deceased)P. W. 4 (Mother of the deceased)PW6 (Father of the deceased)Accused/ Appellant No. 1 1. Altercation. 2. Assaulted deceased with fists and blows. 1. Assaulted with fists and blows. 1. Jumped on the deceased and assaulted him. 1. Assaulted severely with fists and blows. Accused/ Appellant No. 2 1. Altercation. 2. Embraced deceased from behind. 1. Assaulted with with fists and blows. 1. Jumped on the deceased and assaulted him. 2. Assaulted deceased severely with fists and blows. 1. Assaulted severely with fists and blows. Accused/ Appellant No. 3. 1. Called deceased from house. 2. Altercation. 1. Called deceased from house. 1. Called deceased from house. 1. Called deceased from house. 3. Assaulted deceased with fists and blows. 2. Assaulted with fists and blows. 2. Jumped on the deceased and assaulted him. 2. Assaulted severely with fists and blows. Accused/ Appellant No. 4. 1. Altercation 1. Assaulted with fists and blows. 1. Gave a threat. 1. Stabbed on deceased. 2. Jumped on the the deceased and assaulted him. 2. Stabbed on deceased. 2. Stabbed on deceased. 3. Also assaulted her. 3. Stabbed on deceased. ( 130 ) GLEANING through the chart if we have to accept the evidence of P. W. 1 then there is no escape for the appellant No. 2 as he can be easily fixed with the main charge of section 302 of the Indian Penal Code with the aid of section 34 of the Indian Penal Code since he embraced the deceased from behind while the appellant No. 4 struck the fatal blow. Nothing better could have been required to incriminate the appellant No. 2. ( 131 ) BUT, since we find that this piece of evidence has not been spoken by the other eye-witnesses we exclude the same from our consideration. ( 132 ) BEFORE appreciating the overt acts, attributed against the appellant nos. 1, 2 and 3, as seen from the above Chart, it would be necessary to see the impact of section 34 of the Indian Penal Code. ( 132 ) BEFORE appreciating the overt acts, attributed against the appellant nos. 1, 2 and 3, as seen from the above Chart, it would be necessary to see the impact of section 34 of the Indian Penal Code. ( 133 ) WHETHER the appellants could be fastened with the principle of common intention as understood within the impact of section 34 of the Indian Penal code and be found guilty of the principal charge has to be examined in some details in the light of the evidence on record. ( 134 ) SECTION 34 of the Indian Penal Code does not create a substantive offence but after all it is only a Rule of Evidence. It is now well-settled over the years that the provision of this section meets with the eventuality whether in a given case it is difficult to distinguish between the acts of the individual members of a group of accused or to pin-point exactly what part was taken by each of them in furtherance of the common intention of all. ( 135 ) THE purpose behind this provision, which the Law Makers in their wisdom had incorporated in the Statute Book is to find all the accused as deemed guilty as the presence of accomplices provides encouragement, support and cover to the other accused who is actually committing the main offence. ( 136 ) IN order to form an opinion with regard to the application of the principle of common intention in respect of the accused who is liable to be held guilty for act done by others it has to be established: 1. There was common intention in the sense of a pre-arranged plan between them, and 2. The accused sought to be so implicated had participated in some manner in the act constituting the offence. 3. Although there is a question of preconcert. Such intention can develop on the spot coinstantii. It is always difficult to decipher such intention. ( 137 ) WE find from the Chart that the appellant Nos. The accused sought to be so implicated had participated in some manner in the act constituting the offence. 3. Although there is a question of preconcert. Such intention can develop on the spot coinstantii. It is always difficult to decipher such intention. ( 137 ) WE find from the Chart that the appellant Nos. 1, 2 and 3 shared the common intention to perpetuate the assault ie, by fists and blows on the deceased and in furtherance thereof each of them played their assigned role; though separately, sometimes similar sometimes divert; ultimately in concert with each other and the sum-total of the circumstances gathered from the incriminated fact show that the entire pack of the appellant Nos. 1,2 and 3 shared the common intention to assault the deceased with fists and blows. ( 138 ) WE have to halt. ( 139 ) THERE is a gap in the evidence, which cannot conclusively prove that the appellant Nos. 1, 2 and 3 shared the common intention with the appellant no. 4, who stabbed the deceased to death. ( 140 ) FORENSIC dissection of the overt act attributed to the appellant Nos. 1, 2 and 3 shows their individual role in dealing with fists and blows on the deceased; but, it would be quite difficult to link them with sharing the common intention with the appellant No. 4 so far as dealing with the fatal blow was concerned. We feel it little difficult to bring the appellant Nos. 1, 2 and 3 within the square application of section 34 of the Indian Penal Code alongside the appellant No. 4 to link them with the principal charge of section 302 of the Indian Penal Code. ( 141 ) BUT, however, we feel no difficulty in finding the appellant Nos. 1, 2 and 3 guilty in respect of the offence of section 323 of the Indian Penal Code; even if no formal charge was framed against them. But, as they were charged under section 302/34, Indian Penal Code and we find it difficult to convict them with the principal charge of section 302 of the Indian Penal Code with the aid of section 34 of the Indian Penal Code, section 323 of the Indian Penal Code being a lesser offence, we feel it appropriate to convict them in respect of the said charge. ( 142 ) LASTLY, the point urged by Shri Dastoor that whilst the appellant Nos. 1, 2 and 3 were included with the aid of section 34 of the Indian Penal Code in respect of the principal charge of section 302 of the Indian Penal Code. But, however, the appellant No. 4 was found guilty in respect of the charge of section 324 of the Indian Penal Code simpliciter and not with the aid of section 34 of the Indian Penal Code. ( 143 ) WE from our appreciation of the ocular evidence found that the appellant nos. 1, 2 and 3 did not share the common intention of appellant No. 4 to cause the death of deceased Bablu, however, during the melee while P. W. 2 sought to intercept the appellant No. 4 during the course of the assault along with her in-laws the appellant No. 4 struck on her right hand. It was the individual act of the said appellant and not in concert with his accomplices. It was not only an individual act of the said appellant but also it was segregated and isolated action of the appellant No. 4 not being shared by the other appellants. ( 144 ) TO wrap up we find: a. The conviction of the appellant No. 4 in respect of the charge of section 302 of the Indian Penal Code is confirmed and the sentence of imprisonment for life is also confirmed. B. The appellant Nos. 1, 2 and 3 are acquitted of the charge of section 302/34 of the Indian Penal Code. C. But, they are, however, found guilty of the offence of section 323/34 of the indian Penal Code and are directed to sentence to suffer rigorous imprisonment for one year each. D. Conviction of the appellant No. 4 in respect of the charge of section 324 of the Indian Penal Code and sentence of rigorous imprisonment for two years is also affirmed. ( 145 ) APPEAL accordingly stands disposed of. ( 146 ) ALL the appellants, who are on bail, are directed to surrender to their bail bonds, which stand cancelled. Appeal disposed of.