JUDGMENT Sengupta, J. 1. THIS appeal is directed against the judgement and sentence passed by the learned Sessions Judge dated 18th September, 2009 whereby and whereunder the appellant has been convicted and sentenced under Section 302 of Indian Penal Code for imprisonment of life subject to setting off his period of detention as already been undergone by him and also imposed fine of Rs. 60,000/- in default he shall undergo rigorous imprisonment for another three years. 2. ON or about 1st February, 2001, one George Thomas made a complaint to the Dundaspoint Police Station narrating as follows : The said complainant was residing with his parents in the government quarter at Saithan Khari and studying in Senior Secondary School, Ferrargunj in Class IX. As his mother Smti Bhagyam was not well for 4-5 days so his brother-in-law Basant Bhagwar and his wife were staying with her to take care of his mother. ON 1st February, 2001, at about 8.30 night, his brother-in-law came to his house with bunch of bananas when he was going to one Sameera's house and told that he would come back late. So the complainant and members of his family switched on the light of varandha and slept. At about 11.20 one Christopher son of Phooljar, one of the neighbour, came and knocked the main door several times. When they opened the door Christopher informed that his brother-in-law was killed by Herman Toppo (the appellant) with a dagger and ran away from the spot. Thereafter, he along with member of his family came out and witnessed that his brother-in-law was lying in the jungle bali upside down fully stained with blood near his neighbour Smti Remna Kerkitt's hen shed. He was lying on the grass close to the hen shed and his neck and right hand are injured badly by some sharp weapon. He then took the said victim to the hospital. Thereafter he called Manoj, his bother-in-law's younger brother and informed about the matter. Then they reached the spot by jeep and thereafter that the said victim was carried by the said jeep to the Community Health Centre, Bambooflat for treatment where the doctor examined his brother-in-law and declared dead. On receipt of the aforesaid Fardbayan (complaint) on 2nd February, 2001 at about 0110 hours lodged an FIR. Then they reached the spot by jeep and thereafter that the said victim was carried by the said jeep to the Community Health Centre, Bambooflat for treatment where the doctor examined his brother-in-law and declared dead. On receipt of the aforesaid Fardbayan (complaint) on 2nd February, 2001 at about 0110 hours lodged an FIR. After completion of the investigation, the inquiring officer filed report in the final form and commitment was done and the learned Sessions Judge framed the charge arraigning the appellant herein for committing offence punishable under Section 302, IPC. The prosecution examined as many as sixteen witnesses to support the charge. However, no one was examined on behalf of the defence. From the trend of the cross-examination and answers to the questions put under Section 311, Cr.P.C, it appears that the defence denied the charges pleading innocence. 3. THE learned Trial Judge, after analyzing evidence adduced by the prosecution and considering the material evidence and the post-mortem report and other report found the appellant guilty. Out of sixteen witnesses of the prosecution, it appears that one Revenu Kerketta appears to be eye witness. However during the trial it appears that P.W 2 Khristopher Bara, PW-4 M. Subramaniyam were treated as witnesses akin to eye witness of the incident. 4. MR. Tabraiz appearing for the appellant submits that there has been no reliable evidence to record conviction as has been erroneously done by the learned Sessions Judge. He while drawing our attention to the evidence of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 submits that if the evidence are read very carefully it would appear that there was no proof beyond reasonable doubt that the appellant could be held guilty. He submits that the testimony of P.W.2, P.W.3 and P.W.4 who are alleged to be eye witnesses should not be believed at all as from their own evidence in the cross-examination it will appear that they could not possibly see the incident which took place in the midnight. In their cross-examination they have categorically stated that as per their daily routine they were asleep at the time of occurrence. If their evidence are excluded then the evidence of other persons have no relevance. In their cross-examination they have categorically stated that as per their daily routine they were asleep at the time of occurrence. If their evidence are excluded then the evidence of other persons have no relevance. At the highest, if by the evidence of P.W.1, P.W.5, P.W.6 it goes on to prove that they have seen the appellant holding a "dao", was running away from the place of incident, but this itself is not a proof to record conviction. That apart, there was no evidence either circumstantial or otherwise to hold the appellant guilty for the offence charged. Mr. Mandal learned Public Prosecutor, appearing for the respondent submits that the learned Trial Judge has correctly analyzed the evidence of all the witnesses. He submits that if the evidence of P.W.2, P.W.3 and P.W.4 are read minutely and conjointly it would appear that it is no one except the appellant who has done away with the victim Basant. He further submits that from the evidence of P.W.1 (George Thomas) who happens to be the brother-in-law of the victim has proved that the appellant after being arrested by the police and on being interrogated in his presence on the road made statements before amongst other him with regard to discovery of offending weapon "Dao" and his wearing apparels. He himself handed over the wearing apparels and the offending weapon to the police. His wearing apparels, namely, banyan and the pant which were seized in his presence were blood stained and on the medical examination it was found that the blood stained with the wearing apparels and dao was, the same blood of group as it could be found by the medical examination of the blood stained earth as well as the blood stained wearing apparels of the victim. 5. THIS evidence in the cross-examination was not dented at all. P.W.3 has categorically proved that she herself had seen the appellant assaulting through the window. Actually there has been no specific cross- examination nor any suggestion that she did not see the appellant-accused. 6. MOREOVER, the medical analysis report with regard to the blood and valid postmortem report corroborates the fact that no person other than the appellant was responsible. Motive behind to kill the said Basant was his enmity and/or animosity with the deceased who had a quarrel with the appellant over the issue of abusing his deaf and dumb maternal uncle. 6. MOREOVER, the medical analysis report with regard to the blood and valid postmortem report corroborates the fact that no person other than the appellant was responsible. Motive behind to kill the said Basant was his enmity and/or animosity with the deceased who had a quarrel with the appellant over the issue of abusing his deaf and dumb maternal uncle. The other witnesses viz. PWs have proved that both of them picked up a quarrel and they exchanges mutually abusive language. His motive was to retaliate the insult and assault made by the victim. The learned Trial Judge has taken a great pain to scrutinize everything. Under the circumstances this well written judgement should not be interfered with by this Court. 7. WE have heard the respective contention of the learned Counsel for the parties. Now the point which had fallen for consideration is as to whether the learned Trial Judge has recorded conviction of the appellant based on legally acceptable evidence or not. 8. ADMITTEDLY the I.O. was not available when the trial was started as he had passed away by that time. So his evidence could not be had. In our view, the evidence of the IO would have been a material as corroboration of the fact of discovery of the offending weapon and also the fact of handing over of the same by the appellant himself to the police and also wearing apparels worn by the appellant at the time of the occurrence. If there are other evidence on this score in the record we think that absence of evidence of the I.O. is not fatal to this proceeding for conviction. The main thrust of the defence is that the learned Trial Judge has erroneously believed and accepted the evidence of so called eye witness. We therefore carefully read the evidence of P.W.1, P.W.2, P.W. 3 and P.W.4. 9. P.W.1, in our view, in this case has proved that Basant Bhagwad was lying on the Ballis just beside the Murgi Jhopri (a chicken shed) and he was lying in pool of blood. He noticed several injuries on his right hand and on his right cheek just at the joint of jaws. Thereafter he along with the brother of the deceased Manoj Bhagwad took the victim to the hospital by a jeep driven by one Mr. Ali to remove the victim to the Bambooflat Hospital. He noticed several injuries on his right hand and on his right cheek just at the joint of jaws. Thereafter he along with the brother of the deceased Manoj Bhagwad took the victim to the hospital by a jeep driven by one Mr. Ali to remove the victim to the Bambooflat Hospital. In his presence the doctor declared him death. He went to lodge complaint to the Bambooflat police station at the first instance and on being advised by the police officer he lodged complaint as stated hereinabove with the Dundaspoint Police Station. His complaint was treated as FIR and he also proved the FIR. He has also proved that accused on being arrested and being interrogated by police in his presence on the road handed over offending weapon and his wearing apparels. Those were seized in his presence and in the seizure list his signature was there. He has also proved the, signature of other witnesses in the said seizure list. He has also stated that accused also made a statement before the IO in his presence. So he has also subscribed his signature to the statement recorded by IO. The other witness in whose presence accused made a statement before the police was also signed. Police found that the said wearing apparels were blood stained and he also noticed that wearing apparels namely the banyan and pant were blood stained and was also the offending weapon. At the time of his examination he could identify the offending weapon and also other material evidences. It appears from his cross-examination his evidence in examination in chief could not be demolished at all. Therefore his evidence is having a great weight to conclude that the said offending weapon was used for killing the said person and the wearing apparels of the appellant were also handed over. 10. FROM the evidence of P.W.2 (Kristopher Bara) we find that he had heard a noise about knocking of a glass of the window adjoining to their quarter. Out of curiosity when he was peeping through the window he saw appellant/accused was running away in front of their house. He also heard voice of Rabunu Kerketta saying "why you are quarreling with each other". Later on he saw that the accused was fleeing away. He could identify the accused in the street light. Out of curiosity when he was peeping through the window he saw appellant/accused was running away in front of their house. He also heard voice of Rabunu Kerketta saying "why you are quarreling with each other". Later on he saw that the accused was fleeing away. He could identify the accused in the street light. He saw the accused at that time wearing a banyan and a full pant but he was unable to say the colours of the said banyan and pant. At the time of giving evidence he could identify the wearing apparels of the accused which he wore on the date of incident. He also identified the Mat. Ext.-IV, namely, the banyan and also the pant Mat. Ext-V. He testified that he went to the place of occurrence when the deceased was lying in the injured condition near the house of Rabuna Kerketta. He noticed the several injuries marked on various portion of the body of the said deceased. In the cross-examination it appears that defence wanted the Court to disbelieve the evidence that as per his daily routine he was not expected to remain awaken as he has gone to sleep by the time. However, suggestion of his evidence has been denied. 11. THE evidence of P.W.3 (Revenu Kerketta) in whose presence the body of the deceased could be found is very material. She had stated that the incident happened on 1st February, 2001 at about 11.30 p.m. and she was then sleeping inside the room. She heard shrieks of a person and thereafter she woke up and out of curiosity she peeped through the window and found that the accused was assaulting the deceased Basant Bhagwar, with "dao". She raised a voice by saying who was fighting there and hearing her voice the accused fled away from the spot. At the time of incident the accused wore white colour banyan and a black pant. In her cross- examination no suggestion has been put that she had not seen the appellant assaulting the victim and in fact there has been no cross-examination specifically on the point. In the cross-examination it was sought to be established that she could not see the occurrence, for, as per daily routine she was sleeping. In her examination-in-chief she had specifically stated that she had fallen asleep but having heard the shriek noise she woke up and it is quite possible. In the cross-examination it was sought to be established that she could not see the occurrence, for, as per daily routine she was sleeping. In her examination-in-chief she had specifically stated that she had fallen asleep but having heard the shriek noise she woke up and it is quite possible. 12. AS we have noticed that no specific cross-examination was made nor any suggestion was given therefore the evidence of the said P.W.3 has to be accepted and the learned Trial Judge, in our view, has correctly accepted her evidence because it is settled position in law that when no suggestion was put and no cross-examination on that point then the version of the prosecution or the testimony given by the eye witness are deemed to have been accepted. This proposition of law has been well settled long time back by Division Bench judgement of this Court reported in AIR 1961 Calcutta 359. The paragraph 10 of the said report is very useful guidance to come to the aforesaid conclusion. The said paragraph is set out hereunder:- "The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the Houses of Lords that this much a Counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks, no question with regard to this, then he must be taken to accept the plaintiffs account in its entirety. If he asks, no question with regard to this, then he must be taken to accept the plaintiffs account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated". The evidence of P.W.4 (M. Subramaniam) is also has got importance. Therefore, we need to see what Subramaniam has said. He has deposed that street light was illuminating from the electric post which is just close to the place of occurrence and in the street light he saw that the accused namely appellant armed with a "dao" on his hand was fleeing away towards road. He had testified that at that time appellant-accused wore a white banyan and a black pant. Therefore, he has proved the appellant was fleeing away with the dao. Hence, this evidence has ample corroboration with the testimony of the eye witness P.W.3. 13. THE evidence of P.W.5 (Manoj Bhagwat) is relevant regarding the motive of committing such offence. P.W.6 (Berna Kindo) knew about the motive. Berna Kindo, the mother of the victim has deposed that there was an altercation between the appellant and the said victim in the evening while they were engaged in slashing of paddy in the house of one Somra. She has deposed that on hearing their loud voice she went to the house of Somra and after pacifying both of them she tried to resolve the dispute between the accused and her son. She thereafter brought her son namely the victim to her house. She has deposed that thereafter at about 8 p.m. the victim left her house to visit his ailing mother-in-law taking few bananas. Thereafter about 11 p.m. she got the news of murder from George Thomas (PW 1) and Kristopher (PW 2). She went to the said place of occurrence and her son was taken to hospital by a jeep driven and owned by one Mr. M.K. All (PW 8). PW 8 (Mr. M.K Ali) was also examined and he has proved to corroborate the factum of carrying the said victim to the hospital. 14. P-W.9 (Anand Kumar Kindo) has proved the motive behind committing murder. M.K. All (PW 8). PW 8 (Mr. M.K Ali) was also examined and he has proved to corroborate the factum of carrying the said victim to the hospital. 14. P-W.9 (Anand Kumar Kindo) has proved the motive behind committing murder. In his evidence he had said that the appellant as well as the victim both were engaged in thrashing paddy as labourers in the house of Suman Toppo of Shaitan Khari. While they were working there was exchange of hot words and they quarreled with each other. He heard the victims Basant saying to the appellant as to why the appellant had abused his maternal uncle and over that issue the quarrel ensued. The mother of Basant, Verna Kindo (P.W.6) proved this fact as she was also engaged as labourer in thrashing field. She has also proved that after the thrashing of paddy all of them came to the house of Somra to take dinner. As they completed their dinner she found the victim to come again at the house of Somra. Thereafter at about 8.30 p.m. they started quarreling over the issue of abusing his maternal uncle with filthy languages. However, the said victim was taken away from that place. From the evidence of the Medical Officer Dr. Amitava De (PW 10), who conducted the post mortem examination it has been established that the said victim succumbed to the said injury and in fact there has been no challenge in the cross-examination of the said report. 15. AS we have already recorded that there has been no evidence adduced by the appellant, on analysis of the evidence as aforesaid it is difficult to disbelieve the testimony of the eye witnesses (PW 3). It is true that there is no statement recorded by the I.O. of the eye witness P.W.3, but, her evidence is very natural and categorical in the Court. She has been fully supported by other witnesses namely P.W.2, P.W.4 and P.W.6. 16. UNDER the circumstances we are unable to accept the contention of Mr. Tabraiz that there has been no proof beyond reasonable doubt that the appellant has committed murder, as alleged. Mr. Mandal has rightly pointed out that when the evidence of eye witness, may be a singular is clear and cogent it is just lawful to record conviction relying thereon. UNDER the circumstances we are unable to accept the contention of Mr. Tabraiz that there has been no proof beyond reasonable doubt that the appellant has committed murder, as alleged. Mr. Mandal has rightly pointed out that when the evidence of eye witness, may be a singular is clear and cogent it is just lawful to record conviction relying thereon. The offending weapon which was used for inflicting injuries was recovered and the material exhibits proved the fact that it is the appellant who alone was involved in the killing. This would be apparent from the medical report that the blood found in the wearing apparels of the deceased and also on the earth where body was lying and also the blood found on the wearing apparels of the appellant are the same blood group. UNDER the circumstances the defence has not put forward to offer any explanation as to why the banyan and pant which were collected from him by the I.O. got blood stained. No explanation was offered whose blood could possibly stained the wearing apparels of the accused. It is within the specific knowledge of the appellant to explain that why the blood stained and whose blood stained, his wearing apparels. When this explanation is not forthcoming the irresistible conclusion is that at the time of the killing his wearing apparels and also "dao" got stained with victim's blood. UNDER those circumstances we think that the recording conviction of the learned Trial Judge is absolutely perfect and has been able to find out truth beyond reasonable doubt. Hence we affirm the judgment of the learned Sessions Judge and also sentence and we dismiss the appeal.