JUDGMENT A.H. Saikia, J. 1. Heard Mr. S. Chakraborty, learned Counsel for the Appellant. Also heard Mr. D. Sarkar, learned P.P. appearing for the State of Tripura. 2. The legality and validity of conviction of the Appellant under Section 302, IPC and resultant sentence to undergo rigorous imprisonment (for short, 'the R.I') for life and a fine of Rs. 100/- in default to undergo another period of R.I. for one month handed down by the learned Sessions Judge, North Tripura Kailashar on 27.6.97 in Sessions Trial No. 3 (NT)/K/97 has been questioned in the instant Criminal Appeal. 3. Necessary facts in short compass may be recapitulated. The P.W.-15, Gopal Sinha, Officer-In-Charge, Fatikroy Police Station at about 5.40 a.m. on 15.9.96 when he went to Kumarghat Hospital on being informed by P.W.-13, Chandra Kumar Roy about the occurrence of the instant incident, recorded the statement, which was treated as an FIR, of P.W.-1, Shri Manik Das. Sri Das, set up by the prosecution as the informant, stated that at about 2/2.30 a.m. in the night of 15.9.96 on hearing an alarm call coming from his own house, he woke up with a view to observe as what the matter was and he along with his wife, P.W.-5, Smti Sabitri Das proceeded from his own house and saw a girl of their locality namely Dipali Chakraborty, P.W.-14 calling for one Smti Madhabi Das, P.W.2, asking her to come out and see Babul Das (the deceased). Then he and his wife came and asked Dipali about what did happen, then she asked them to come and see. On going there, they saw Babul was lying with bleeding injury inside a bush beneath a Jam tree standing 10/12 cubits south of Madhabi's house. He was groaning and his intestine came out from the stomach. After seeing such condition of Babul, he called the people of the locality. When he asked Babul, he said that Sajal, the Appellant, dealt a dagger blow. In the meantime, he sent some persons to Natunbazar for bringing a vehicle. According to him, the Appellant stabbed Babul Das to death about the affair relating to a girl. Babul died on the way to the hospital. 4. On the basis of the said statement which was scribed by P.W.-15 as stated by P.W.-1, the police started investigation and arrested the Appellant on 4.10.96. 5. According to him, the Appellant stabbed Babul Das to death about the affair relating to a girl. Babul died on the way to the hospital. 4. On the basis of the said statement which was scribed by P.W.-15 as stated by P.W.-1, the police started investigation and arrested the Appellant on 4.10.96. 5. On completion of the investigation, the police charge-sheeted the Appellant under the above-mentioned Section and he was sent to trial. 6. Before the trial court i.e. the Court of Sessions to which the case was committed, the prosecution in order to bring home the aforesaid charge examined as many as 16 witnesses including P.W. 10, the Doctor who conducted autopsy on the dead body of the deceased Babul Das and P.W. 16, the Investigating Officer (for short, 'the I.O.'). Prosecution also proved various documents including inquest report, seizure list, etc. as Ext. P.-2, P.-3 respectively. 7. The Appellant was examined under Section 313 Code of Criminal Procedure wherein he took the plea of alibi and pleaded not guilty to the charge and claimed to be tried. 8. The learned Sessions Judge upon appreciation of the material evidence on record and upon hearing the learned Counsel for the parties, came to the finding that the prosecution successfully proved the case against the Appellant beyond reasonable doubt and convicted and sentenced him accordingly as indicated above. 9. Challenging the impugned conviction and sentence, Mr. Chakraborty, learned Counsel for the Appellant has forcefully argued that the learned trial Court committed a manifest error in law and on facts while appreciating and weighing the evidence adduced by the prosecution. The learned Judge misread and mis-interpreted the testimony of P.W.-14 who was projected by the prosecution as the sole eye witnesses. Referring to her testimony, it is contended by learned Counsel that in her evidence, she was categorical to the extent that she saw both the Appellant and the deceased fighting on the back side of her house each other free hand. When she intervened to stop them, the deceased pushed her aside as a result of which she fell down on the ground and when she managed to stand up, she saw Babul leaving the place pressing his hand on his abdomen and Sajal, the Appellant, also followed him. 10. When she intervened to stop them, the deceased pushed her aside as a result of which she fell down on the ground and when she managed to stand up, she saw Babul leaving the place pressing his hand on his abdomen and Sajal, the Appellant, also followed him. 10. According the learned Counsel, this piece of evidence would clearly go to show that the Appellant did not hit the deceased by any weapon like dagger. 11. As regards the dying declaration of Babul Das, the deceased the learned Counsel has contended that P.W.-1 Manik Das, P.W.-2 Smti Madhabi Das, P.W.-5 Smti Sabitri Das, P.W.-6 Smti Usha Rani Das the mother of the deceased, P.W.-7 Swapan Das, the brother of the deceased, P.W.-9 Nani Gopal Das, the father of the deceased, all are the close relatives of the deceased and as such they falsely claimed that the dying declaration to the extent that the Appellant assaulted him by dagger, was made by the deceased to them. But if the testimony of those interested witnesses are deciphered, it would reveal that the witnesses are uncorroborative and inconsistent in their deposition and those are not sufficient to prove the so-called dying declaration. 12. He has precisely drawn our attention to the evidence of P.Ws.-1, 6 and 9 who deposed that Babul told them that the Appellant assaulted and stabbed him by dagger, when P.Ws.-2, 5 and 7 categorically testified that Babul told them that the Appellant assaulted him without mentioning any weapon like dagger. 13. He has also contended that the weapon i.e. dagger in question, as prosecution tried to use the same as weapon to commit murder of the deceased, was not seized. Even no attempt was made by the I.O. to recover the said weapon. 14. In support of his submission he has invited our attention to the deposition of P.W-16, I.O. who in cross categorically testified that he did not find the weapon by which the injury was caused though he searched the surroundings of place of occurrence. In chief, this witness also stated that he raided the house of the Appellant in the same village but he was not found in the house; but nowhere it was mentioned that he searched his house for recovery of weapon i.e. dagger in question. 15. In chief, this witness also stated that he raided the house of the Appellant in the same village but he was not found in the house; but nowhere it was mentioned that he searched his house for recovery of weapon i.e. dagger in question. 15. In view of those apparent anomalies in the investigation by the I.O. as well as the glaring discrepancies and contradictions arise in the evidence of the witnesses, more particularly, P.W.-16 Dipali Chakraborty, the sole eye witness, the instant conviction cannot be sustained and accordingly Appellant is liable to be acquitted. 16. Seeking confirmation of the impugned conviction and sentence as well as justifying the finding of the learned Sessions Judge, Mr. Sarkar, learned P.P. has addressed the Court basically on four points; namely, (i) P.W. 14, the sole eye witness, explicitly deposed that she saw both the Appellant and the deceased fighting each other and Babul pressing his abdomen left the place of occurrence followed by the Appellant and as such the evidence of P.W. 14 was very much credible, cogent and trustworthy for which the same was accepted by the trial Court to rope the Appellant in the offence under Section302 IPC, (ii) all the witnesses i.e. P.Ws. 1, 2, 5, 6, 7 and 9 were specific in their testimony that deceased Babul Das made a dying declaration in their presence asserting that the Appellant assaulted him by a dagger, (iii) the evidence of P.Ws.-1, 2, 5, 6, 7, 9 and 12 Bimal Dutta, though they were the relatives of the deceased, is found to be credible and consistent and the same cannot be brushed aside merely because they all related to the deceased and the interested witnesses and (iv) non recovery of dagger has not materially affected substratum of the prosecution case which already stands established by cogent and reliable evidence. 17. We have meticulously scanned the evidence of all the witnesses including the P.W. 14, the sole eye witness, P.W.-10, the Doctor and P.W.-16, the I.O. 18. Judging the deposition of P.W.-14, Dipali Chakraborty in its proper perspective, it is found that according to her both the Appellant and the deceased were fighting each other near her house in the fateful night with free hand. She did not mention that the Appellant was being armed with a dagger. Judging the deposition of P.W.-14, Dipali Chakraborty in its proper perspective, it is found that according to her both the Appellant and the deceased were fighting each other near her house in the fateful night with free hand. She did not mention that the Appellant was being armed with a dagger. She simply said that the Appellant pushed her aside for which she fell down on the ground. When she stood up she saw Babul leaving the place pressing his hand on the abdomen and the Appellant also followed him. She went to state that at that time she noticed that the deceased Babul left his three-battery torch which was lying on the ground. After picking up the torch when she followed the way they left coming out side towards her house, she found that they already disappeared. Then she went to the house of P.W.-2, Madhabi Das to call her and on that moment she discovered Babul in between the house of Madhabi Das, P.W-2 and Sanjoy Das, P.W.-8 in a jungle on the side of the way. His groaning sound attracted her to that place. Babul Das was lying there with his intestine exposed with wound of his abdomen and there was bleeding but she did not see the Appellant near the place. 19. According to P.W.-14, in the presence of P.Ws.-1, 2, 5, 6 and 9 Babul Das told them that the Appellant had caused injury to the deceased by his own dagger. In her cross, she reinforced her statement made in chief. However, she clearly stated that she first saw Babul groaning in the jungle and then got closer to him to see his condition. Thereafter only she called those witnesses. She asserted that condition of Babul was very serious and he was not in a position to speak very well. Nowhere in her evidence, this witness did mention that the Appellant was armed with dagger or the same was used by the Appellant to assault the deceased. However, the fact remains that as a result of the assault, the deceased suffered multiple injuries which resulted in his death. We do not find any valid or overwhelming reason to disbelieve this Sole eye-witness who is an independent witness. Her testimony inspires the confidence and is creditworthy and convincing. 20. However, the fact remains that as a result of the assault, the deceased suffered multiple injuries which resulted in his death. We do not find any valid or overwhelming reason to disbelieve this Sole eye-witness who is an independent witness. Her testimony inspires the confidence and is creditworthy and convincing. 20. Coming to the question of dying declaration, it transpires that one set of witnesses i.e. P.Ws.-1, 6 and 9 testified that the deceased made a dying declaration to them saying that the Appellant assaulted him by dagger and the other set i.e. P.Ws.-2, 5 and 7 asserted that the deceased Babul told them in his injured condition on being asked that the Appellant assaulted him, but this set of witnesses did not mention about any weapon by which assault was made. In our opinion, these are only minor discrepancies because in the deposition of P.W. 14, it is seen that intestines of the deceased came out of his abdomen which also corroborated with the medical evidence. 21. On close perusal of the post mortem report and the deposition of P.W.-10, the Doctor, it is found that the following three injuries were inflicted on the person of the deceased. ...One stab injury on the middle part of the upper abdoem (sic) which is known as Epigastic region 2" longitudinal slit on the anterior abdominal wall. (2) Stab injury close to vertebrael column at the lower end of left scapula 4" x 1 1/2". (3) Right side of back 2" to the right of midle in 4" x 1 1/2. According to the Doctor, such injury could be caused by sharp piercing weapon like dagger and stomach and small intestines were pierced. Both stomach and small intestines came from the abdominal injury. Cause of death was severe hemorrhac shock and neorhogenic shock caused the above injuries. 22. Taking into account the injuries as found in the Doctor's evidence above mentioned and the deposition of the above witnesses before whom the deceased made a dying declaration, this Court has no hesitation to hold that those injuries were caused by the Appellant. 23. Insofar as the plea for rejection of the evidence of interested witnesses is concerned, we do find that the deposition of those witnesses are consistent, corroborative and trustworthy and merely because they are interested witnesses being relative of the deceased, the same cannot be brushed aside and ignored. 24. 23. Insofar as the plea for rejection of the evidence of interested witnesses is concerned, we do find that the deposition of those witnesses are consistent, corroborative and trustworthy and merely because they are interested witnesses being relative of the deceased, the same cannot be brushed aside and ignored. 24. In Bhargavan v. State of Kerala reported in (2004) 12 SCC 414 and Rizan v. State of Chattisgarh reported in (2003) 2 SCC 661 the Apex Court in paragraphs 6 and 7 therein respectively has held that relationship is not a factor to affect the credibility of a witness. Foundation has to be laid if plea of false implication is made and then in such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and creditable. 25. In the case at hand, we have scrutinized more carefully the evidence of those interested witnesses to find out if it is based on truth and accordingly we have found the same to be acceptable and it seems to inspire confidence in our mind and in view of the same, it cannot be discarded totally merely on the ground of variation or infirmity or omission in the context of mentioning about the dagger by one set of witnesses when other set of witnesses did not mention anything about any weapon, though all of them in chorus stated that Babul Das told them that he was assaulted by the Appellant. 26. To answer the argument advanced by the learned Counsel for the Appellant to the effect that non-recovery of dagger is fatal to the prosecution, we are of the considered view that the failure to recover the dagger from the accused/Appellant cannot be a ground to exonerate the Appellant from the charge, more so, when participation of the Appellant in the crime is unfolded by the ocular account of the occurrence given by the eye witness, P.W.-14 and the dying declaration made by the deceased before the witnesses, as mentioned above, whose evidence has been found to be trustworthy and unimpeachable. In order to arrive at this finding we are guided by the authority of the Apex Court pronounced in cases of Krishna Mochi v. State of Bihar reported in (2002) 6 SCC 81 and Krishna Gope v. State of Bihar reported in (2003) 10 SCC 45 . 27. In order to arrive at this finding we are guided by the authority of the Apex Court pronounced in cases of Krishna Mochi v. State of Bihar reported in (2002) 6 SCC 81 and Krishna Gope v. State of Bihar reported in (2003) 10 SCC 45 . 27. In the backdrop of the testimony of the witnesses above mentioned as well as consequential findings arrived at, as noticed above, let us examine as to whether conviction of the Appellant under Section 302 IPC is justified. From the deposition of P.W.-14, the sole eye witness, it is seen that the saw both the Appellant and the deceased were fighting each other free hand without any weapon. In other words, she did not see any weapon like dagger, as claimed by the prosecution, by which the Appellant struck stab injuries on the person of the deceased, as is evident from the medical evidence of P.W.-10. On the other hand, though we have accepted the deposition of P.W.-14, the sole eye witness and the dying declaration of the deceased so made to the witnesses above mentioned, in our opinion, the prosecution failed to prove that the Appellant had the intention of causing death to the deceased. 28. It is settled that the intention of the accused prevailing at the time of assault determines the applicability of the relevant provision whether it would be Section 302 IPC or Section 304 Part II IPC. See Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175 . In the instant case, taking into account the manner and mode of assault as reflected from the evidence of P.W.-14, we are of the firm view that it would be appropriate to convict the Appellant under Section 304 Part II I.P.C. but not under Section 302 I.P.C. 29. Keeping in mind the fact that the incident in question took place as far back as on 1996 and by this time the Appellant have served almost 9 years of R.I., it is felt that substantial justice has been done to the Appellant in the present case and accordingly offence under Section 302 IPC is scaled down to Section 304 Pt. II IPC and the sentence of R.I. mentioned above already undergone appears to be sufficient in the facts and circumstances of the case and the same would meet the ends of justice. It is ordered accordingly. II IPC and the sentence of R.I. mentioned above already undergone appears to be sufficient in the facts and circumstances of the case and the same would meet the ends of justice. It is ordered accordingly. The Appellant shall be set at liberty forthwith, if he is not required in any other case. 30. For the reasons, observations indicated above, this appeal stands allowed to the extent indicated hereinabove. 31. Send down the records immediately. Appeal allowed