Judgment :- GIRISH CHANDRA GUPTA, J (1) THIS appeal is directed against a judgment and order dated 29th August 2002 passed by the learned Additional Sessions Judge, 1st Court, Jalpaiguri, in Sessions Trial no. 11 of 1999 arising out of Sessions Case No. 168 of 1997 convicting the appellant under section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life as also to pay a fine of Rs. 5000/-, in default to undergo further imprisonment for a period of one year. Briefly stated the facts and circumstances of the case are as follows:-Ratan and Ganesh are the two sons of the deceased couple Madhav and kananbala. Ganesh lent a sum of Rs. 20/- or 30/- to Bibhison (P. W. 6) which the latter did not repay. Ganesh in order to recover his money stealthily took a goat belonging to bibhison and sold the same in the market. Bibhison protested this act of Ganesh whereupon Madhav, father of Ganesh, according to the evidence of the P. W. 6 promised to compensate the loss. The accused Bidhan and five others who were no way connected with this transaction made this an excuse for assaulting Ganesh which was naturally resented by the parents of Ganesh. The case of the prosecution is that the appellant accompanied by the other accused persons armed with deadly weapons retaliated and killed both the parents of Ganesh namely Madhav and Kananbala on 26th september 1994 at about 9 P. M. The appellant along with five others were charged under sections 148,149 and 302 IPC. The appellant was convicted. The five others were acquitted. (2) MR. Biplab Mitra, learned Advocate, appearing for the appellant, advanced the following submissions:- 1) the fact that the name of the appellant was not disclosed to the P. Ws. 4 and 9 goes to show that the evidence of the eyewitnesses is open to serious doubt. He added that the fact that the P. Ws. 6 and 7 did not hear about the assailants is also a pointer to show that the evidence of the so-called eyewitnesses cannot be relied upon. We have not been impressed by this submission of Mr. Mitra for the following reasons:- a) P. W. 6 Bibhison is the borrower and the P. W. 7 is his mother. 6 and 7 did not hear about the assailants is also a pointer to show that the evidence of the so-called eyewitnesses cannot be relied upon. We have not been impressed by this submission of Mr. Mitra for the following reasons:- a) P. W. 6 Bibhison is the borrower and the P. W. 7 is his mother. The accused persons, of whom the appellant is one, with an ulterior motive made a common cause which even remotely did not touch them. Bibhison (P. W. 6) was satisfied with the promise made by the deceased Madhav that he would compensate the loss suffered by him arising out of his goat having been sold by Ganesh. Neither Bibhison (P. W. 6) nor his mother Uttambala Roy (P. W. 7) were concerned with the quarrel picked up by the accused persons. It is, therefore, natural for them not to know as to who had capitalised the incident in order to find an excuse to pick up a quarrel with Ganesh which eventually led to assassination of both his parents. b) Neither the P. W. 4 nor the P. W. 9 claimed to be the eyewitnesses of the incident. The written complaint was lodged within three hours from the occurrence of the incident. Both the P. Ws. 4 and 9 admitted that the written complaint was lodged by ratan, elder son of the deceased couple, on the way to taking the deceased Madhav to hospital. Mr. Mitra is banking on the following sentence in the evidence of P. W. 4 "they did not state to me who assaulted him (Madhav)" and the following sentence uttered by the P. W. 9 "i did not hear the accompanying persons as to who murdered madhav and his wife" whereas he admitted that he was informed about the incident. Neither of these two witnesses were asked as to whether they had tried to know the name of the murderer. Sight cannot be lost of the fact that at that point of time everybody including the P. Ws.4 and 9 were mainly concerned to see the fatally wounded Madhav hospitalised. Both the P. Ws. 4 and 9 admitted that on the way to the hospital police was informed and the written complaint was lodged by Ratan. There is nothing on the record even to suggest that the names of the accused were spelt out after any deliberation. Both the P. Ws. 4 and 9 admitted that on the way to the hospital police was informed and the written complaint was lodged by Ratan. There is nothing on the record even to suggest that the names of the accused were spelt out after any deliberation. There is no chance of any concoction or fabrication. We are in the circumstances of the view that the fact one of them did not know who had killed the husband and the other did not know who had killed the husband and the wife does not really make the case of the prosecution weak. 2) The second submission advanced by Mr. Mitra is that there are three several versions emerging from the eyewitnesses as regards the incident which according to him are in conflict with each other which are follows:-i) After Madhav was hospitalised he made a dying declaration recorded by the p. W. 18, Deputy Magistrate, which has been marked Ext. 7 and reads as follows:-"i am M. C. Roy. My fathers name is Bhognath Roy. Yesterday night at about 8. 30 P. M. one Manik Roy, s/o Hemeswor Roy hit my youngest son. I tried to resist him. Then one Bidhan Roy, younger brother of Manik roy, hit me with a ballam in my abdomen. They used to quarrel with me before also. There were many people with him like Sibu Roy, Bhodo Roy. I have nothing more to say. My full name is Madhab Chandra Roy of Mondalghat. " P. W. 1 Ratan, de facto complainant, deposed as follows:"on the day of occurrence in the evening myself, my father Madhab Ch. Roy, my maternal uncle Adhar Ch. Panwar, my mother Kananbala Roy, my wife Jashoda Roy and my brother Ganesh Roy were present in our house. At that time Bidhan Roy, Shibu Roy, Amiya Roy, Abinash Roy, Subhas roy and Manik Roy entered into the courtyard of our house and called our father. On hearing their call we all came out of our house. My mother had a lantern and a torch in the hand of my father. These persons abused us all in most filthy languages. Bidhan Roy had a spear in his hand. Other persons had lathi in their hands. There was altercation between themselves and ourselves. Bidhan Roy hit my mother on her back by that spear. My mother had a lantern and a torch in the hand of my father. These persons abused us all in most filthy languages. Bidhan Roy had a spear in his hand. Other persons had lathi in their hands. There was altercation between themselves and ourselves. Bidhan Roy hit my mother on her back by that spear. My mother fell down with bleeding injuries and died on the spot. There was further altercation amongst us with them. Bidhan again hit my father on his belly by that spear. I was also hit by lathi on my leg. We all fled in our room after taking my injured father. Thereafter the accd. persons decamped from the place. " (3) P. W. 8 deposed as follows:- "madhab and Kananbala were murdered on 26. 9. 84 at about 8/8. 30 P. M. I was present at the time and place of commission of murder. I saw quarrel between Madhab and his wife Kananbala with those of the accd. persons (the witness. names the accd. persons clearly), at the time of occurrence. Bidhan had a spear in his hand and others had lathis. This quarrel was occurred in the middle between the house of Bidhan and madhab. I heard that the quarrel was relating to a goat. Altercation started between them. Thereafter Bidhan hit Madhab Roy by the spear on his belly. Madhab being injured was being taken by his wife, the mother of ratan named Kananbala to their house. At that time Bidhan hit kananbala by the spear from her behind on her back. Then myself and ratan tried to nurse Madhab by tying a piece of cloth on a piece of cloth. On returning at the P. O. I found that Kananbala was lying dead there. " P. W. 10 deposed as follows:-"bidhan hit Madhab with the spear on his belly. Then Adhar (myself), ratan and Kanan took the injured Madhab to his room. Thereafter bidhan hit Kanan with the spear on his back. Lastly Sibu hit me with lathi on my head by the side of my left ear. I fled away out of fear and returned back after sometime. On my return I found Kanan was lying dead on the ground where paddy thrashed. " (4) MR. Mitra submitted that according to the P. Ws. Lastly Sibu hit me with lathi on my head by the side of my left ear. I fled away out of fear and returned back after sometime. On my return I found Kanan was lying dead on the ground where paddy thrashed. " (4) MR. Mitra submitted that according to the P. Ws. 8 and 10 the husband was assaulted first and then was the wife assaulted whereas according the P. W. 1 his mother was first assaulted and the second person to be assaulted was his father. Mr. Mitra commented that the apparent conflict between the evidence of the eyewitnesses cast a serious doubt on the truthfulness of the evidence of the eyewitnesses. He added that the dying declaration, quoted above, goes to suggest that the incident occurred when the deceased Madhab tried to resist the assault upon his son Ganesh whereas case of the p. W. 1 is that the appellant accompanied by the other accused persons raided the house of the victim, armed with lethal weapons. They entered the courtyard and asked the deceased Madhab to come out. As regards the first inconsistency pointed out by Mr. Mitra, it may be pointed out that there is no disagreement between the witnesses that Bidhan dealt the deadly blow upon the couple. Whether the husband was assaulted first or the wife was assaulted first is not really important when both of them were killed in the same transaction. We therefore are unable to view the evidence of the P. Ws. 1,8 and 10 with any amount of suspicion. The dying declaration of the deceased goes to establish that it is Bidhan who dealt the deadly blow upon him. We therefore have no doubt in our mind about the identity of the assailant. The incident stemmed from the fact that Ganesh was assaulted by the accused persons. Madhab had resented the assault and that sparked off the larger incident which culminated in the death of the couple. The written complaint filed within three hours of the incident, before there was any scope for any deliberation or concoction corroborates the evidence of the P. W. 1 which on its turn corroborates the dying declaration. The evidence of the P. Ws. 8 and 10 materially corroborates the evidence of P. W. 1. The minor discrepancies do no touch the story in the main. The evidence of the P. Ws. 8 and 10 materially corroborates the evidence of P. W. 1. The minor discrepancies do no touch the story in the main. Reference in this regard may be made to the judgment in the case of Leela Ram vs. State of Haryana reported in 1999 (9) SCC 525 wherein the following views were expressed by the Apex Court. "be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U. P. v. M. K. Anthony. In para 10 of the Report, this Court observed: "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. " (5) MR. Mitra in support of his aforesaid submission relied upon a judgment in the case of Jagir Singh vs. State of Delhi reported in AIR 1975 SC 1400 . He read paragraphs 7,8 and 9 wherein various loopholes in the case of the prosecution were discussed and Their Lordships reached the conclusion that "these circumstances cast grave doubt on the story of the prosecution and it is difficult to accept that the attack on Harnek Singh took place in the manner alleged by the prosecution and the appellant was responsible for the same". The circumstances pointed out by Mr. Mitra in the present case, we have demonstrated, do not case grave or any doubt as regards identity of the assailant or the manner in which the victims were killed. Next judgment cited by Mr. Mitra is in the case of Shivaji vs. State of Maharashtra reported in AIR 1989 SC 1762 . That was a case where the wife of the deceased did not disclose the name of the assailant of her husband until the 3rd day from the date of incident. In the present case the written complaint was lodged within three hours from the occurrence of the incident. The judgment therefore does not assist him. Lastly Mr. Mitra cited the judgment in the case of Shaikh Bakshu vs. State of maharashtra reported in 2008 (1) SCC (Cri) 679. In the present case the written complaint was lodged within three hours from the occurrence of the incident. The judgment therefore does not assist him. Lastly Mr. Mitra cited the judgment in the case of Shaikh Bakshu vs. State of maharashtra reported in 2008 (1) SCC (Cri) 679. In that case there were two dying declarations: Ext. 26 and Ext. 31. Ext. 26 was admittedly recorded after Ext. 31. There was no explanation as to the necessity for recording a second dying declaration. The contents of the dying declaration also appeared to be contrary to the admitted facts. The deceased in that case according to the case of the defence had suffered an accidental death by burn within 8 days of her marriage which according to the prosecution was a case of homicidal death. It is in that perspective that the dying declaration was disbelieved. We, therefore, are unable to view this evidence with any amount of suspicion. No other or further submission was made. The appeal is in the circumstances dismissed. The appellant was enlarged on bail by an order dated 26th March 2003. His bail bond is cancelled. He is directed to surrender at once and to serve out the sentence. Notice in that regard is also given through the Counsel appearing before us. The learned Trial Court is directed to take the appellant in custody at once and report back compliance. Lower Court Records with a copy of this judgment be sent down to the concerned learned Trial Court forthwith for information and necessary action.