P. N. SINHA, J. ( 1 ) THIS appeal by the appellant is assailing the Judgment and order of conviction passed by the learned Special cum Additional Sessions Judge, Co-ochbehar sentencing him to suffer imprisonment for life and to pay fine of Rs. 1000/-in default to suffer R. I. for one month for the offence under Section 302 of the Indian penal-Code (in short I. P. C. ). ( 2 ) THE prosecution case, in short, is that on 5th July, 2001 Sushil Barman, father of informant and Gour Chandra Barman (younger brother-in-law of informant) were cutting jute in a field in front of Atialdanga bsf camp. At about 8. 30/9. 00 a. m. the accused Sudhin Barman came there to thejute field and he first tried to assault Gour barman with a 'beki' i. e. a kind of 'dao' i. e. sharp cutting weapon but missed it and Gour barman ran away to a safer distance. Thereafter, the accused Sudhin Barman assaulted sushil Barman with the 'beki' and he raised alarm receiving blows given by the accused with 'beki' and he fell down on the ground and expired. Receiving the news, the informant Manik Barman rushed to the place of occurrence and tried to take away his father to hospital but on the way he found his father dead. Manik Barman lodged the FIR (Ext. 3) before O. C. , Dinhata P. S. at 12. 35 hours and on the basis of it Dinhata P. S. Case No. 123 dated 5-7-2001 under Section 302 of the I. P. C. was stated against the accused appellant. After completing investigation the Investigating Officer (in short I. O.) submitted chargesheet against the accused under Section 302 of the I. P. C. The trial that followed ended in conviction and sentence of the appellant as mentioned earlier and hence this appeal. ( 3 ) THE prosecution examined 12 witnesses in all to prove its case namely, P. W. 1 Mongli Barman (wife of deceased), P. W. 2 naren Barman (son-in-law, of deceased), P. W. 3 Deben Barman, P. W. 4 Sibendra Nath barman, P. W. 5 Gobinda Barman, P. W. 6 dr. ( 3 ) THE prosecution examined 12 witnesses in all to prove its case namely, P. W. 1 Mongli Barman (wife of deceased), P. W. 2 naren Barman (son-in-law, of deceased), P. W. 3 Deben Barman, P. W. 4 Sibendra Nath barman, P. W. 5 Gobinda Barman, P. W. 6 dr. Amal Basak (post mortem surgeon), P. W. 7 Suresh Chandra Roy (constable), P. W. 8 biswanath Bhattacharya (Judicial Magistrate), p. W. 9 Sahadeb Chandra Roy, P. W. 10 praveen Pradhan, P. W. 11 Gour Barman (another son-in-law of deceased) and p. w. 12 Balmiki Lohar. ( 4 ) OUT of the aforesaid witnesses the only eye witness of the incident is P. W. 11 Gour barman. P. W. 1 is a post occurrence witness who came to place of occurrence immediately after incident hearing hue and cry and heard about the incident from P. W. 11. P. W. 3 also came to place of occurrence hearing the hue and cry but he declined to state about hearing of incident from P. W. 11 relating to involvement of the accused and was declared a hostile witness. P. W. 4 is the scribe of FIR who wrote it out according to instruction of Manik Barman. P. W. 2 and P. W. 5 came to the house of Sushi 1 barman, the deceased, after his dead body was brought to his courtyard from the jute field and P. W. 2 heard about the incident from p. W. 11. P. W. 5 did not support the prosecution case relating to hearing of incident from P. W. 11 and involvement of the accused in the incident and was declared a hostile witness. ( 5 ) P. W. 6 is the autopsy surgeon who gave his opinion after holding post mortem examination on the dead body of Sushil barman. P. W. 7 is the constable who carried the dead body to the morgue for post mortem examination and thereafter produced the wearing apparel namely, 'gamcha' i. e. napkin and the chappal of the accused to the I, O. who subsequently seized the same, P. W. 8 is the Judicial Magistrate who recorded the statement of witness Gour Barman under Section 164 of the Cr. P. C. P. W. 9 is the S. I. of Police who received the information of the incident and arrested the accused and seized the offending weapon from the Jute field of Atialdanga as shown by the accused and seized the same by preparing a seizure list (Ext. 8 ). The 'beki dao' i. e. the offending weapon when produced in court was marked material Ext. III. ( 6 ) P. W. 10 is another police officer who investigated the case and after completing investigation submitted chargesheet. P. W. 12 is Assistant Sub-Inspector of Police who produced G. D. entry No. 95 dated 5-7-2001 which was written by P. W. 10 Praveen pradhan. The said G. D. Entry was made after receiving Information about the incident over phone and thereafter the FIR was received and specific case was started. ( 7 ) BEFORE we enter into the merit of the appeal and points of attack on behalf of the appellant against the Judgment of conviction and sentence let us discuss the nature of evidence that came before the Court during trial. P. W. 1, the wife of deceased Sushil barman in her evidence stated that her son manik Barman, son-in-law Gour Barman and husband were cutting jute plants near the BSF camp at Atialdanga which was about 10/12 bighas away. The jute field belonged to the accused but her husband was cultivating the same as 'adhiar' i. e. bargadar. After cutting jute plants her husband and son came to home to take meal and after taking meal her husband went to the jute field but her son did not go and hewent elsewhere. Hearing hue and cry she went to the jute field and found that her husband Sushil Barman was lying with severe injuries with profuse bleeding. Her son-in-law gour Barman was there in the jute field and she learnt from Gour Barman that the accused Sudhin Barman suddenly came there and assaulted her husband with "beki and caused murder of her husband. Her husband was carried on shoulder by her son-in-law and others and when he was brought to house he was dead. ( 8 ) HER cross examination reveals that her son-in-law Gour Barman resides at baniadaha which is seven miles away from her house. She received the information of incident first from a small boy but she could not tell the name of the said boy. ( 8 ) HER cross examination reveals that her son-in-law Gour Barman resides at baniadaha which is seven miles away from her house. She received the information of incident first from a small boy but she could not tell the name of the said boy. After hearing the incident and seeing the condition of her husband she became senseless. Police also came there. She failed to remember whether she stated to I. O. that her son also went to the Jute field to cut jute plants with her husband. ( 9 ) P. W. 2 gives us the story through his evidence that hearing the news he came to his father-in-law's house and saw his dead body and noticed severe injuries on his person with bleeding. His younger brother-in-law i. e. another son-in-law of Sushil Barman stated to him that while he and deceased were cutting the jute plants the accused came there and gave blows of 'beki' on Sushil Barman. He was a witness of the inquest and the inquest report was marked ext. 1. He was a witness of seizure of the napkin and hawai chappal of deceased. ( 10 ) IN his cross examination he stated that he went to work at zero point i. e. Bangladesh Border and hearing the news of incident when he came to house of his father-in-law the police did not come there. The Jute field was Just in front of the BSF camp and height of the jute plants was about 5'/7' feets. He denied the defence suggestion that at the time of incident deceased was not wearing napkin and hawai chappal. ( 11 ) P. W. 3 in his evidence stated that at the time of incident deceased was cutting jute plants in the jute field belonging to the accused and he was feeding grass to his cows by the side of the said jute field. He came to his house and then went elsewhere at a distance and he heard that Sushil Barman was murdered. Receiving the news he came to the jute field and found the deceased lying on jute field with severe injuries on his chest, neck and abdomen. He declined to state as to who was the person who assaulted Sushil barman and for this reason he was declared a hostile witness. Receiving the news he came to the jute field and found the deceased lying on jute field with severe injuries on his chest, neck and abdomen. He declined to state as to who was the person who assaulted Sushil barman and for this reason he was declared a hostile witness. In cross examination by defence he stated that the jute land was purchased by mother's sister of accused sudhin Barman in the name of Sudhin. He stated that he calls the accused 'paga' as he sometimes stays in bamboo bush and sometimes roams indefinitely leaving his house. He denied the defence suggestion that he did not come to jute field and did not see deceased lying there with bleeding injuries on chest, abdomen etc. ( 12 ) P. W. 4 stated that he heard that the accused murdered Sushil Barman. He scribed the FIR as per instruction of Manik barman. ( 13 ) P. W. 5 in his evidence stated that hearing the news of incident he came to the house of deceased Sushil Barman and learnt there that accused Sudhin Barman murdered him. He was also declared hostile witness as his statement before I. O. recorded under Section 161 Cr. P. C. was different which he did not state as substantive evidence during his evidence. ( 14 ) P. W. 6 is the autopsy surgeon who held post mortem examination on the body of deceased Sushil Barman on 6-7-2001. He found the following injuries on the body of sushil Barman: (1) One linear abrasion on the front of neck 3" inch In length; (2) One sharp incised wound on the left side of anterior part of chest 5" inch x inch x 1" inch. Pleura is incised. Left lung incised. Left pleural cavity contain blood; (3) One sharp cutting wound on the anterior part of left side of abdomen measuring 6" inches x " inch x 1 " inches. The wound has opened up the abdominal cavity in its upper part Injuring the intestine, abdominal cavity contain blood; (4) In small intestine incisional wound in two sides. ( 15 ) HE opined that death was due to shock and haemorrhage from the above stated injuries which were ante mortem and homicidal in nature. The aforesaid injuries may be caused due to assault by sharp cutting weapon and he further opined that those injuries were sufficient to cause death. ( 15 ) HE opined that death was due to shock and haemorrhage from the above stated injuries which were ante mortem and homicidal in nature. The aforesaid injuries may be caused due to assault by sharp cutting weapon and he further opined that those injuries were sufficient to cause death. In cross examination he stated that he did not mention in the post mortem report about the hours before which death was caused. He did not mention age of the injuries in the post mortem report. ( 16 ) P. W. 8, the Judicial Magistrate on 19-7-2001 recorded the statement of witness gour Barman under Section 164 of Cr. P. C. and the witness was produced before him by constable No. 922 Goutam Barman. The 164 statement of the witness Gour Barman was marked Ext. 7. ( 17 ) P. W. 9 in his evidence stated that on 7-7-2001 he received the information about apprehension of accused and he went there and arrested the accused Sudhin Barman. He recovered the offending weapon from the jute field as shown by the accused. He seized the said weapon by preparing a seizure list which was marked Ext. 8. The 'beki dao' seized by him was identified by him in Court (material Ext. III ). The label attached with the 'beki dao' was also with his signature and it was written by him. In cross examination he stated that there was no mention in the seizure list that the 'beki dao' was seized from inside the Jute field. In our opinion, the statement is not correct as in the body of the seizure list we find clear mention that the offending weapon was recovered from the jute field. He did not prepare the sketch map of the place from where he seized the offending weapon. He did not mention in the seizure list whether the 'beki dao' was stained with blood. He stated that he did not record statement of the accused leading to the recovery. ( 18 ) P. W. 10 is the I. O. of this case and his evidence reveala that he was entrusted to investigate the case. He visited the place of occurrence, examined the witnesses, prepared inquest after inspecting dead body and also prepared sketch map of place of occurrence. ( 18 ) P. W. 10 is the I. O. of this case and his evidence reveala that he was entrusted to investigate the case. He visited the place of occurrence, examined the witnesses, prepared inquest after inspecting dead body and also prepared sketch map of place of occurrence. He made seizure of blood stained earth, dry earth, one pair of slipper i. e. chappal of deceased by preparing a. seizure list. Later on he seized the wearing 'gamcha' i. e. napkin of deceased. He also seized post mortem blood of deceased in a small glass tube. He forwarded witness Gour Barman before the Magistrate for recording his statement under Section 164 Cr. P. C. He also sent the necessary articles to FSL for examination and report and received FSL report along with report of serologists. ( 19 ) IN his cross examination he stated that first he received one R. T. message containing information of murder at Atialdanga which he entered in G. D. entry No. 95 dated 5-7-2001 (Ext. 11 ). On the basis of said G. D. He came to place of occurrence at 11. 35 hours and received the written complaint /fir at 12. 35 hours. He did riot seize the document of title concerning the jute field and also did not seize any bargadar certificate. He did not seize any jute plant from the jute field. He denied the defence suggestion that he did not examine P. W. 1 mongli Barman and did not record her statement under Section 161 Cr. P. C. It appears from his evidence that P. W. 2 did not state to him that he heard from Gour Barman about assault on Sushil Burman by the accused with a 'beki'. ( 20 ) P. W. 11, the only eye witness of this case in his evidence stated that on the date of incident he and his father-in-law were cutting jute plants in a field in front of BSF camp. At that time accused Sudhin Barman came there with a 'beki' and gave blow on his father-in-law. He tried to catch the accused but the accused attempted to assault him and then he went away to a distance of 20/25 cubits. From the said distance he saw that the accused gave blow after blow with the said 'beki' on his father-in-law. He tried to catch the accused but the accused attempted to assault him and then he went away to a distance of 20/25 cubits. From the said distance he saw that the accused gave blow after blow with the said 'beki' on his father-in-law. His father-in-law fell down on the ground with severe injuries and with profuse bleeding. The police station was informed over phone from the BSF camp and police came. Manik barman, his brother-in-law submitted written complaint. His father-in-law Sushil Barman was wearing a 'gamcha' i. e. napkin and pair of slipper at the time of cutting jute plants. He stated the matter both to police as well as to the Magistrate. He was also witness of seizure of blood stained earth, dry earth and slipper of deceased from place of occurrence. His brother-in-law Manik barman is staying at Delhi. He identified the napkin and pair of slipper of his father-in-law which are material Exts. I and IV respectively. He also identified the 'beki' which was used by accused in assaulting his father-in-law (material Ext. III ). ( 21 ) IN his cross examination he revealed that the jute plant were then about 6'/7' feet in height. His father-in-law cultivated the jute as 'adhiar and the land was covering about 7/8 cottahs. The BSF camp was to the south of the jute field at a distance of about 50 cubits. The staff of the BSF informed the police station over telephone. No bsf man came to the place of occurrence but one security of the BSF came to place of occurrence. He could not say whether the accused is also called as 'pagla' in the locality. He clearly stated in cross examination that he saw giving of blows by 'beki' on his father-in-law by the accused. He stated that when he carried his father-in-law on his shoulder his pant and shirt were stained with blood but police did not seize his pant and shirt. He was about 10 cubits distance from his father-in-law in the field where they were cuttingjute plants. The jute plants were not very dense and those were with normal density. He took away his injured father-in-law to the courtyard and the courtyard also was stained with blood. Police came to place of occurrence at about 11. 30 a. m. on that date. The jute plants were not very dense and those were with normal density. He took away his injured father-in-law to the courtyard and the courtyard also was stained with blood. Police came to place of occurrence at about 11. 30 a. m. on that date. He denied the defence suggestion that he was not cutting jute plant with his father-in-law and that he did not see the incident and that the accused did not assault his father-in-law with 'beki dao'. ( 22 ) MR. Biplab Mitra, the learned senior counsel on behalf of the appellant submitted that the place of occurrence was a jute field, but the I. O. did not seize any jute plant to prove that the place of occurrence was jute field. The complainant who submitted the FIR was not examined and from evidence it transpired that panchayat member also came later on, but the said panchayat member was not examined as a witness in Court. The I. O. also did not seize earth, plant etc. from the jute field and these defects have gave a blow to the prosecution case and the foundation of prosecution case has become doubtful. ( 23 ) WE are unable to agree with the views of Mr. Mitra, the learned advocate for appellant. From evidence of P. W. 1 and P. W. 11 it is clear that the complainant Manik barman resides at Delhi. On the date of incident he was in his house but subsequently he again went away to Delhi. Non-examination of panchayat member is not fatal as it is quality of evidence that requires consideration and not the quantity of witnesses. The I. O. seized blood stained earth, dry earth and one pair of slipper i. e. hawai chappal of deceased on 5-7-2001 from place of occurrence by preparing a seizure list marked as Ext. 2/1. It is not correct that there was no seizure of earth from the place of occurrence. Non-seizure of jute plant in our opinion is not at all vital or fatal in this case when all the witnesses even the hostile witnesses stated that the incident took place on the jute field in front of BSF camp. ( 24 ) MR. Mitra next contended that the fir was lodged on 5-7-2001 but it was sent to Court before the learned Magistrate on 8-7-2001. ( 24 ) MR. Mitra next contended that the fir was lodged on 5-7-2001 but it was sent to Court before the learned Magistrate on 8-7-2001. No explanation has been given for the delay in sending FIR before the learned magistrate and this delay clearly establishes that the accused has been falsely implicated in this case. Fact of murder of Sushil barman is undisputed but there was no cogent evidence to establish that appellant was the murderer and it gets support for the delay in sending FIR before the learned Magistrate and during such his name was planted. ( 25 ) WE are not convinced with this submission of Mr. Mitra and in this case delay in reaching the FIR before learned Magistrate is riot at all fatal. The incident was on 5-7-2001 at about 8. 30 to 9 a. m. and the fir was lodged on the very same day at 12. 35 hours at village Atialdanga and it was received at the police station at 2. 15 p. m. On 5-7-2001 by seizure list (Ext. 2/1) the i. O. seized blood stained earth, dry earth and one pair of slipper of deceased from place of occurrence in presence of witnesses, and P. W. 2 and P. W. 11 were witnesses. He also made inquest on 5-7-2001 at 1. 15 p. m. in presence of witnesses P. W. 2 and P. W. 11. Another witness in both seizure and inquest was FIR maker Manik Barman who could not be examined as he went away to Delhi. There was no possibility of planting the name of accused or false implication of accused in this case. P. W. 11 was the eye witness of the incident and before arrival of police from p. W. 11 other witnesses whose evidence are admissible as res gestiae under Section 6 of the Evidence Act learnt from P. W. 11 about involvement of accused in the incident of murder of Sushil Barman. Sometimes due to procedural lapses it takes time to reach fir before the learned Magistrate which includes lack of sense of police officers to place the FIR before the learned Magistrate. The negligence of the police officer to place the fir before the learned Magistrate before 8-7-2001 cannot be regarded as serious defect to throw the prosecution case out of court. The negligence of the police officer to place the fir before the learned Magistrate before 8-7-2001 cannot be regarded as serious defect to throw the prosecution case out of court. In view of the aforementioned circumstances we are of opinion that in this case the FIR did not lose its authenticity. The decision placed before us by Mr. Mitra in the facts and circumstances of the present case is not applicable as we find that in this case delay in sending FIR to the learned magistrate was not at all fatal. As there was no possibility of any false implication of the accused in this case the mere delay in sending the FIR to Magistrate is not fatal in this case. The Supreme Court in State of Jammu and Kashmir v. Mohan Singh reported in 2006 Cri LJ 1691 held that, "it is well settled that mere delay in sending the first information report to a Magistrate cannot be a ground to throw out prosecution case if the evidence adduced is otherwise found credible and trustworthy. ( 26 ) MR. Mitra submitted that P. W. 1 and other witnesses. cannot be termed as 'by slanders' and their evidence is not admissible as res gestiae under Section 6 of the evidence Act because none of them heard about the incident from the alleged eye witness P. W. 11. ( 27 ) WE are unable to agree with the views of Mr. Mitra as scrutinising the evidence we find that P. W. 1 after receiving the news from a boy rushed to the jute field and there she found her son-in-law Gour Barman (P. W. 11) and she learnt from P. W. 11 that the accused assaulted her husband repeatedly by 'beki dao' causing serious injuries on the chest and abdomen of her husband. She found her husband with serious bleeding injuries lying on the jute field. From the cross examination of I. O. it did not transpire that P. W. 1 did not hear about the incident from P. W. 11. P. W. 3 also came to the place of occurrence and saw deceased lying with serious bleeding injuries on chest and abdomen. She found her husband with serious bleeding injuries lying on the jute field. From the cross examination of I. O. it did not transpire that P. W. 1 did not hear about the incident from P. W. 11. P. W. 3 also came to the place of occurrence and saw deceased lying with serious bleeding injuries on chest and abdomen. For reasons unknown to us he did not divulge that he heard from P. W. 11 that accused caused the murder, but his evidence regarding injuries of deceased and lying of deceased on jute field clearly establishes that prosecution case was reliable and trustworthy. P. W. 2 and P. W. 5 came to the house of the deceased and heard about the incident and P. W. 2 stated that from Gour barman he learnt that accused asaulted his father-in-law. Of course, evidence of I. O. (P. W. 10) reveals that P. W. 2 did not state to him in his 161 statement that he heard about the incident from P. W. 11. In spite of that, it remains an established fact that soon after the incident P. W. 2 and also the P. W. 5 came to the house of deceased and found the deceased lying with severe injuries on his chest and abdomen with bleeding. P. W. 1's evidence is easily admissible under section 6 of the Evidence Act as res gestiae as immediately after incident she heard from p. W. 11 that accused caused such injuries on the person of her husband. Evidence of other witnesses also establishes the serious injuries of deceased and their evidence also establishes that the incident took place on the jute field. The evidence of P. W. 1 and P. W. 11 with the corroboration of the other witnesses relating to injuries of deceased and place of occurrence proves the prosecution case beyond all reasonable doubts showing that the appellant was the person who gave the 'beki dao' blows on deceased. ( 28 ) MR. Mitra next contended that in this case the entire prosecution case rests on the sole eye witness of P. W. 11 but his evidence is not believable at all. ( 28 ) MR. Mitra next contended that in this case the entire prosecution case rests on the sole eye witness of P. W. 11 but his evidence is not believable at all. From evidence it transpires that out of fear P. W. 11 went to a safer distance of about 20/25 cubits and from such a distance inside the jute field with jute plants reaching height of 6/7 feet it was not possible for P. W. 11 to see who assaulted the deceased causing his murder. Besides that, there was another flaw on the part of prosecution as this witness was examined by the I. O. 13 days after the incident and no explanation was given for the delay in examining this witness. That P. W. 11 was not present at place of occurrence becomes more clear as his wearing apparel which were stained with blood were not seized by the I. O. P. W. 11 in evidence stated that on his shoulder he brought his father-in-law to his house and his wearing apparels were stained with blood. His evidence as well as evidence of I. O. reveals that wearing apparels of P. W. 11 were not seized. It proves that P. W. 11 was not present in the jute field at the time of incident and he did not see anything and his presence at place of occurrence is covered with shadows of doubt and such a witness cannot be believed and conviction cannot be based on such evidence of a witness. In support of his contention Mr. Mitra cited the decisions in State of Orissa v. Mr. Brahmananda Nanda reported in AIR 1976 SC 2488 : (1976 Cri LJ 1985) and Vijaybhai Bhanabhai Patel v. Navanitbhai Nathubhai Patel reported in 2004 SCC (Cri) 2032 : (2004 Cri LJ 3832 ). ( 29 ) MR. Chatterjee on behalf of the State submitted that there is no ground at all to disbelieve P. W. 11 who is the only eye witness of this case and he was cutting jute plants with his father-in-law. The seizure of 'beki dao' from place of occurrence as shown by the accused is admissible in evidence under Section 8 of the Evidence Act even if it is not admissible under Section 27 of the act. The seizure of 'beki dao' from place of occurrence as shown by the accused is admissible in evidence under Section 8 of the Evidence Act even if it is not admissible under Section 27 of the act. The accused came very stealthily through the tall jute plants and suddenly attacked the deceased with a big dao, that is, 'beki dao' and gave blows on the vital parts of the body of deceased. Delay of I. 0. in examining P. W. 11 and recording his statement under Section 161 of Cr. P. C. is not at all fatal in this case. In support of his contention Mr. Chatterjee cited the decisions in Jagdish v. State of Madhya Pradesh reported 1992 Cri LJ 981, State of Karnataka v. Rajan reported in 1994 Cri LJ 1042, Dr. Krishna Pal v. State of U. P. reported in AIR 1996 SC 733 : (1996 Cri LJ 1134), Ranbir v. State of Punjab reported in AIR 1973 SC 1409 : (1973 Cri LJ 1120) and Karnel Singh v. State of M. P. reported in 1995 AIR SCW 3644 : 1995 (6) JT (SC) 437. ( 30 ) AFTER considering the submissions of the learned advocates for the parties and closely scrutinising the evidence and materials on record we find no ground at all to disbelieve the evidence of P. W. 11. Evidence of P. W. 1 and P. W. 11 clearly proves that on 5-7-2001 P. W. 11 accompanied by his father-in-law were cutting jute plants in jute field near BSF carnp at village Atialdanga. Around 9 a. m. the accused very secretly and stealthily within the jute plants reached the place where the deceased and P. W. 11 were cutting jute plants. It appears from evidence that he tried to assault P. W. 11 first, but he was able to avert the attack and went to a safer distance of 20'/25' feet. Evidence of P. W. 11 reveals that jute plants no doubt reached height of 6'/7' ft. , but plants were not thick and dense and as such it was clearly visible from a distance of 20'/25' feet. P. W. 11 saw that the accused with a 'beki dao' assaulted his father-in-law repeatedly and thereafter the accused fled away. Evidence of P. W. 11 reveals that jute plants no doubt reached height of 6'/7' ft. , but plants were not thick and dense and as such it was clearly visible from a distance of 20'/25' feet. P. W. 11 saw that the accused with a 'beki dao' assaulted his father-in-law repeatedly and thereafter the accused fled away. Raising a cry for help his father-in-law fell down on the jute field and he came to his father-in-law and found severe injuries on vital parts of body of his father-in-law. He raised the alarm and people assembled and P. W. 1 also reached there. Thereafter he carried away his father-in-law on his shoulder to his residence and by this time the deceased succumbed to his injuries. On 5-7-2001 from place of occurrence blood stained earth, dry earth and chappals of deceased were seized by a seizure list in which P. W. 11 was a witness. P. W. 11 was a witness of inquest also. The 'beki dao' was seized from the jute field as shown by the accused. The i. O. did not record statement of accused leading to recovery. But this conduct of accused showing the offending weapon or recovering offending weapon from the jute field is admissible under Section 8 of the evidence Act. ( 31 ) BESIDES the ocular version we cannot remain oblivious of the aforesaid circumstantial evidence and facts of inquest, seizure of earth, chappal of deceased, recovery of offending weapon etc. Delay in examining a witness is not always fatal. There was no cross examination by the defence to I. O. as to why there was delay in examining P. W. 11 when in fact we cannot: deny presence of P. W. 11 on 5-7-2001 at place of occurrence as it is clear and transparent like the rays of sun from inquest report (Ext. 1/1)and seizure list marked as Ext. 2/1 in which p. W. 11 was a witness. P. W. 11 withstood the cross examination and there was no lacuna or defect in his cross examination which can impair value of his evidence and we find no ground at all discard his evidence. When his evidence is trustworthy and we do not find any defect or lacuna in his evidence the mere delay by I. O. to record his statement under Section 161 Cr. P. C. cannot be a ground to disbelieve his evidence. When his evidence is trustworthy and we do not find any defect or lacuna in his evidence the mere delay by I. O. to record his statement under Section 161 Cr. P. C. cannot be a ground to disbelieve his evidence. The decisions cited by Mr. Mitra are not properly applicable in this case. On the contrary, the decisions in Ramesh v. State of m. P. reported in 2000 SCC (Cri) 206 : (1999 cri LJ 4603) and Sunil Kumar v. State of rajasthan reported in 2005 SCC (Cri) 1230 : (2005 Cri LJ 1402) are apposite as the supreme Court observed that delay in examining witness is not always fatal. The supreme Court also in State of U. P. v. Satish reported in 2005 AIR SCW 905 : (2005 Cri lj 1428) held that delay of examination of a witness is not fatal when I. O. was not questioned on aspect of delay. ( 32 ) IN this case, we find that P. W. 11 is a reliable and trustworthy witness and there is no ground to disbelieve his evidence. It is well settled that conviction can be based on the evidence of single witness if the Court finds that the said witness is reliable and trustworthy. In this case the quality of evidence is to be considered and considering the quality of evidence of P. W. 11 we find that his evidence alone is sufficient to prove the prosecution case. The Supreme court in catena of decisions held that conviction can be based on evidence of sole witness if the Court finds that evidence of such witness is reliable and trustworthy (See. Kartick Malhar v. State of Bihar, (1996) 1 scc 614 : (1996 Cri LJ 889), Jagdish Prasad v. State of M. P. , AIR 1994 SC 1251 : (1994 cri LJ 1106), Guli Chand v. State of rajasthan, AIR 1974 SC 276 : (1974 Cri LJ 331) and Chittar Lal v. State of Rajasthan, 2003 AIR SCW 3466 : (2003 Cri LJ 3548 ). ( 33 ) MR. Mitra finally contended that, the post mortem report does not show time of death and if prosecution fails to make clear the time of death the prosecution case is bound to suffer and the accused is entitled to its benefit. Mr. ( 33 ) MR. Mitra finally contended that, the post mortem report does not show time of death and if prosecution fails to make clear the time of death the prosecution case is bound to suffer and the accused is entitled to its benefit. Mr. Mitra contended that from the post mortem report it appears that during post mortem examination the autopsy surgeon found that stomach of the deceased was empty. P. W. 1 stated that her husband, her son and son-in-law went to field for cutting jute plants. After cutting jute plants her husband and son came to house and they took meal and thereafter her husband again went to the jute field when the incident took place. If the deceased went to the jute field after taking meal during post mortem examination the doctor was expected to found undigested food. The empty stomach of deceased as found by the doctor during post mortem examination clearly proves that time of death is uncertain. When time of death is uncertain the accused cannot be held responsible for the murder of deceased and the prosecution implicated the accused falsely. The accused is entitled to benefit of doubt. In support of his contention Mr. Mitra cited the decisions in Moti v. State of U. P. reported in 2003 Cri LJ 1694, State of punjab v. Daljit Singh reported in 2004 SCC (Cri) 1776 and State of Uttar Pradesh v. Ashok Kumar reported in AIR 1979 SC 874 : (1979 Cri LJ 905 ).- ( 34 ) MR. Chatterjee for the State submitted that P. W. 1 was an illiterate village lady and by the word 'meal" she perhaps wanted to indicate refreshment and meal here does not prove lunch at noon. The incident took place at morning and so question of taking meal does not arise. Labourers generally go to the field at morning after taking breakfast and deceased also went to the field at early morning taking some breakfast which were totally digested due to the labour given by him in the jute field. So, time of death is not uncertain and when there is clear ocular version of P. W. 11 the medical evidence relating to time of death can be ignored. So, time of death is not uncertain and when there is clear ocular version of P. W. 11 the medical evidence relating to time of death can be ignored. ( 35 ) AFTER considering the submissions made by the learned advocates for the parties over this point concerning time of death and perusing the decisions cited by Mr. Mitra we are unable to agree with the views of Mr. Mitra. We, of course, admit tire principle of law laid down by the Supreme Court that if time of death is uncertain its benefit must be given to the accused, we also agree with the views of the Supreme Court in the above stated decisions that if the deceased takes some food just before his death it must be reflected from post mortem report and stomach must contain at least some undigested food. Facts of the reported decision in our opinion are different from the facts and circumstances of the present case. In State of uttar Pradesh v. Ashok Kumar (1979 Cri LJ 905) (supra) the deceased had taken tea and samosas around 12 o'clock in the night and the incident took place at about 12. 30 a. m. Concerning that fact the Supreme Court stated that if the deceased had taken two samosas and soon thereafter the incident occurred the post mortem would have revealed undigested samosas. But the post mortem report showing empty stomach clearly indicates that time of death was not as mentioned in the FIR and time of death was different and possibility of falsely implicating the accused cannot be ruled out. In the said case as we find, the incident took place at rnid night and the two eye witnesses namely P. Ws. 1 and 2 saw the firing from a distance of almost 150 yards. At night from such a distance it was very difficult to identify the accused. In the present case, the incident took place at broad day light and possibility of false implication of accused is impossible and nil as it appears from evidence and circumstances. ( 36 ) IN Moti v. State of U. P. (2003 Cri LJ 1694) (supra) the post mortem report revealed that entire stomach of deceased including both intestines were empty. The incident allegedly took place around 9. 30 p. m. and according to witnesses the deceased had taken mealjust before the incident. ( 36 ) IN Moti v. State of U. P. (2003 Cri LJ 1694) (supra) the post mortem report revealed that entire stomach of deceased including both intestines were empty. The incident allegedly took place around 9. 30 p. m. and according to witnesses the deceased had taken mealjust before the incident. For this reason the Supreme Court observed that there was serious doubt as to time of incident and presence of eye-witnesses at the time of incident. In this reported decision also the Supreme Court found that there was no proper light in the place where the incident took place and it was not possible for the witnesses to identify the accused who gave the fatal blow. We have already observed that in the present case the incident took place at broad day light between 8. 30 to 9 a. m. and accordingly question of poor light for the identification of accused does not arise. ( 37 ) IN State of Punjab v. Daljil Singh (supra) also at the time of post mortem examination the stomach of the deceased was found empty and accordingly the Supreme court found that time of death is doubtful and observed that the death of the deceased occurred much later than what the prosecution projected as the time of death. In the reported decision besides this point there were other infirmities of the prosecution case as there was inordinate delay in filing the complaint. There was defence alibi also which was duly weighed by the Supreme court and the Supreme Court held that this was also a circumstance to be taken into consideration. ( 38 ) IN view of the discussion in the present case the time of death is not disputed at all and the post mortem report does not come to the aid of the appellant. We find no ground at all to disbelieve the presence of P. W. 11 at the place of occurrence and he was cutting jute plants along with his father-in-law, the deceased and he saw the entire incident. No question was specifically put to the post mortem doctor relating to empty stomach of deceased. Only question put to the autopsy surgeon relating to time of death in our opinion is not sufficient. P. W. 1 was an illiterate rustic village woman. No question was specifically put to the post mortem doctor relating to empty stomach of deceased. Only question put to the autopsy surgeon relating to time of death in our opinion is not sufficient. P. W. 1 was an illiterate rustic village woman. She confused herself relating to time of taking the refreshment by her husband at the time of going to jute field. There is no evidence before us that deceased, P. W. 11 and son of deceased went to jute field for cutting jute plants. All the witnesses including P. W. 11 stated that deceased and P. W. 11 were cutting jute plants. P. W. 11 did not state that manik Barman, the FIR maker and son of deceased also came to the jute field for cutting jute plants. In the FIR it was not mentioned that informant Manik Barman also went to cut jute plants. Being an illiterate lady P. W. 1 confused herself and made a wrong statement relating to return back of her husband to home and to take meal and thereafter to go to the jute field again. Evidence of P. W. 11 reveals that since morning he and his father-in-law were cutting jute plants and P. W. 11 did not say about temporary departure of his father-in-law from the field for his house to take breakfast or refreshment. It is well-known that the labourers at the time of going to field at early morning generally take some refreshment and later on their wives carry their meal to the field. Incident took place within 9. 00 a. m. and it was not at all a time for taking meal and so qusetion of deceased coming back to house for meal does not arise. After carefully scrutinising the evidence of P. W. 1 and p. W. 11 we are clearly of opinion that evidence of p. W. 11 is to be believed and deceased did not come to his house from field for taking breakfast. It is well-settled that when there is contradiction between ocular and medical evidence, the medical evidence is not to be given primacy over ocular evidence. P. W. 1 did not state the time when deceased left house or when he took the meal as came out from her mouth. Evidence of the eye-witness (P. W. 11) does not prove temporary departure of deceased from field towards his house. P. W. 1 did not state the time when deceased left house or when he took the meal as came out from her mouth. Evidence of the eye-witness (P. W. 11) does not prove temporary departure of deceased from field towards his house. So it is unsafe to rely on evidence of P. W. 1 to assess the time of alleged meal and the time of Incident. The written complaint/fir (Ext. 3) on the other hand gives a time which shows that at least from 6. 00 a. m. , the deceased and P. W. 11 were cutting jute plants. Any breakfast taken by deceased before going to jute field was digested by the time of incident for his physical exercise in jute field. It establishes that at very early morning deceased left house taking breakfast which was digested by the time of incident due to his labours given in jute field. Where ocular evidence is cogent, reliable and credible, medical evidence to the contrary cannot corrode the evidentiary value of former. ( 39 ) THE appreciation of ocular version of witnesses, the documents and the medical evidence clearly proves that there was no dispute concerning time of death. The breakfast taken by the deceased at early morning was disgested due to the labour given by him in the field while he was cuttingjute plants. There is no confusion at all relating to time of death and there is no question of falsely implicating the accused in this case. Evidence of P. W. 11 is reliable, credible and trustworthy and there was no scope to falsely implicate the accused as the incident took place between 8. 30 to 9 a. m. on 5-7-01 and fir was lodged at 12. 35 hours on the same day. Before that one information was R. T. was also sent to the police station concerning the murder which was recorded vide general diary No. . Q5, dated 5-7-01 at 10. 45 hours (Ext. 13 ). ( 40 ) FAILURE of I. O. to seize jute plant from jute field and to seize wearing apparels of p. W. 11 can be regarded as laches or negligence of I. O. which in other terra can be described as defective investigation. Where there is consistent evidence oi' the eye-witness and the other surrounding circumstances, this defect in investigation being minor, cannot be a ground cf acquittai. Where there is consistent evidence oi' the eye-witness and the other surrounding circumstances, this defect in investigation being minor, cannot be a ground cf acquittai. The supreme Court in several decisions has observed that defective investigation cannot be the sole ground of acquittal of accused if the prosecution case was established from evidence and materials on record, (See dhanraj Singh v. State of Punjab. 2004 (3)AICLR (SC) 353 : (2004 Cri LJ 1807) and karnel Singh v. State of M. P. . (1995) 5 SCC 518 : 1995 AICLR (SC) 162 : (1995 Cri LJ 4173) ). ( 41 ) IN view of the discussion made above, we find that the prosecution was able to bring home the charge under Section 302 of the I. P. C. against the appellant beyond all reasonable doubts. The appellant came very secretly and stealthily through the jute plants and gave severe blows on vital parts of body of the deceased with the 'beki dao' which resulted into death of the deceased sushil Barman very soon after the assault. There was clear indication of murder of deceased and the finding of the learned trial court convicting the appellant guilty under section 302 of the I. P. C. requires no Interference. ( 42 ) ACCUSED is not entitled to the advantage of Section 84, I. P. C. There was no cogent evidence and consistent cross-examination to establish that at the time of causing incident accused was a man of unsound mind. Only suggestion to one witness and answer of the witness that accused is called 'pagal' is not sufficient to attract the benefit of Section 84, I. P. C. in favour of accused. ( 43 ) WE find that the learned trial Court directed that period of detention is to be set off under Section 428 of Cr. P. C. which in our opinion is not permissible unless such order is passed by the appropriate authority under Section 432 or Section 433 of the cr. P. C. (See Decision of Constitution Bench of Supreme Court in Bhagirth v. Delhi administration, AIR 1985 SC 1050 ). Accordingly, the direction passed by the trial Court for set off is modified to that extent. In view of our discussion made above the appeal fails and is dismissed. P. C. (See Decision of Constitution Bench of Supreme Court in Bhagirth v. Delhi administration, AIR 1985 SC 1050 ). Accordingly, the direction passed by the trial Court for set off is modified to that extent. In view of our discussion made above the appeal fails and is dismissed. ( 44 ) CRIMINAL Section is directed to send down the lower Court records along with copy of judgment and order to the trial Court for information and necessary action. Appeal dismissed.