Judgment : ASHIM KUMAR BANERJEE, J On March 27, 1998 at about 10.30 a.m. Kanai Das victim along with two masons Shyama Kuda and Napla Pahadia was digging the plinth of a building on a land adjacent to their house. Suddenly Sonali Das @ Furi Das the appellant above named stabbed Kanai Das on his back with a sharp knife. Kanai started screaming and fainted in pain. He was rushed to Mansayer Hospital where the Doctor declared him dead. P.W. 1, 2 and 3 being the relatives of Kanai witnessed the incident. It was also alleged that the neighbours being PW 8 and 9 also witnessed the incident. However, they denied having witnessed the same, during trial and they were declared hostile. Police arrested Furi and charged her for the offence committed, inter alia, under Section 302 of the Indian Penal Code. Furi pleaded not guilty and opted to be tried. Altogether 13 witnesses were examined. PW 1, 2 and 3 were relatives of the victim. PW 1 Radheyshyam Das was the brother of victim. He made the written complaint to the Police which was registered at the local Police Station at 11.55 hours which was about 11 kilometers away from the place of occurrence. According to Radheyshyam, the incident occurred at about 10 a.m. when they were constructing a house on an open land in front of their existing dwelling house. Nepal Pahadia and Swapan Koda were assisting Radheyshyam and Kanai. Furi raised objection. Suddenly Furi brought a sharp knife and stabbed Kanai at his back. He rushed to the Primary Health Centre where doctor declared him dead. Radheyshyam informed Dubrajpur Police Station and submitted written complaint. Police came and prepared the inquest report over the dead body. Radheyshyam witnessed the inquest. In crossexamination, Radheyshyam could not specify the particulars of the disputed land on which the construction was going on. He, however, stated that the land was on the Southern side of their existing dwelling house. They reached the Police Station at about 11 – 11.30 am. The complaint was written by his son where he put his signature as also narrated the incident to the Officer-in-Charge (Daraga Babu). He was, however, not sure where Kanai breathed his last. The seizure list was prepared in their house. Radheyshyam signed the same. On recall, Radheyshyam identified the knife having wooden handle being material Exhibit No.1. The complaint was written by his son where he put his signature as also narrated the incident to the Officer-in-Charge (Daraga Babu). He was, however, not sure where Kanai breathed his last. The seizure list was prepared in their house. Radheyshyam signed the same. On recall, Radheyshyam identified the knife having wooden handle being material Exhibit No.1. Banamali was the son of PW 1 and the nephew of the unfortunate victim. He almost corroborated what his father had stated in his deposition. In addition, he stated that after Furi had attacked Kanai he had uttered “save me save me”. In cross-examination, Banamali stated that a quarrel had taken place in between Furi and Kanai. Furi brought a knife from her house. Banamali arranged for a cart by which Kanai was taken to the Primary Health Center. They ultimately reached the Police Station at about 11.30 a.m. and waited there for 10 minutes and then narrated the incident. Smt. Manu Das PW 3 was the wife of PW 1 and sister-in-law of the unfortunate victim. She also corroborated PW 1 and 2 on the happening of the incident on the dreadful event. She also supported her son PW 2 with regard to quarrel between Furi and Kanai as well as injury caused by Furi through knife. According to Manu, 20/25 persons assembled at the place of occurrence. Nepal was tendered for cross-examination as PW 4. Shyama also deposed as PW 5. Shyama supported the issue of quarrel as stated by the PW 2 and 3 and then denied having any knowledge of the incident. He was declared hostile. In cross-examination, he denied of having stated to the Police that Furi had caused injury to Kanai by knife. Megnath Das PW 6 was also tendered for cross-examination. Megnath stated that he knew Radheyshyam, Banamali and Kanai. There was strained relationship between the brothers over the property. He, however, did not have any knowledge of dispute between Furi and Radheyshyam. Shila Das PW 7 was the mother of deceased Kanai. She also corroborated other witnesses discussed above on the happening of the incident. In cross-examination she, however, stated that there had been an assembly of 10/12 persons. Manik Das PW 8 was declared hostile after he had stated that the knife had been recovered from the possession of Furi. That day he came to know that Kanai was murdered by Furi. In cross-examination she, however, stated that there had been an assembly of 10/12 persons. Manik Das PW 8 was declared hostile after he had stated that the knife had been recovered from the possession of Furi. That day he came to know that Kanai was murdered by Furi. He, however, did not throw further light on the incident. During cross-examination, he admitted having stated to the Police that Furi handed over the knife from her possession being the knife that “caused murder” of Kanai. He also admitted having stated to the Police that a dispute had arisen between Kanai and Furi over construction. He identified Furi on the dock. He, however, contended that he did not personally see the occurrence and stated so on the basis of hear say. Rampada Das PW 9 was a post occurrence witness. Upon being informed by the widow of the victim, he rushed to the spot and brought a trecker to take the injured up to the Bus stand and then to the Police Station and Primary Health Centre where the doctor declared him dead. He also identified Furi. During cross-examination, Ramapada stated that many persons had assembled at the place of occurrence when he had reached there. According to him, they reached the Police Station at about 9.30/10 a.m. which was 10 kilometers away from their house. PW 10 was a doctor of the Primary Health Centre who attended the victim and declared him dead. According to him, the victim had one deep insized wound on the back of the chest with profuse bleeding. PW 11, the Autopsy Surgeon proved his post mortem report. According to him, the death was caused due to profound shock and extensive haemorrhage which was homicidal and ante mortem in nature. He also opined that the injury caused by knife from back could also cause death of the victim. PW 13 was the Investigating Officer. We are constrained to say that he conducted the investigation in a most perfunctory manner. We are amazed to see that when the witnesses consistently stated that they had narrated the incident to the Investigating Officer the Investigating Officer during his cross-examination denied of having any statement made by the witnesses referred to above. This also included independent witnesses including hostile witnesses as discussed above. We are amazed to see that when the witnesses consistently stated that they had narrated the incident to the Investigating Officer the Investigating Officer during his cross-examination denied of having any statement made by the witnesses referred to above. This also included independent witnesses including hostile witnesses as discussed above. We also find that neither he seized the blood stained wearing apparel and sent them for forensic examination nor put the knife in a sealed cover. His evidence is hardly of any assistance to us. PW 13 was another police officer who submitted the chargesheet after perusal of the records. During her cross-examination under Section 313 of the Criminal Procedure Code, the accused categorically denied having killed the victim. She said “no, I did not kill”. On the strength of the evidence so discussed above and the reaction of the accused, the learned Additional Sessions Judge, Second Court, Birbhum, Suri, vide his judgment and order dated September 21/24, 2001 held the accused guilty of the offence and sentenced her for life coupled with a fine of Rs. 3000/- and in default to suffer rigorous imprisonment for six months. Perusal of the judgment of the Learned Additional Sessions Judge we find that the learned Judge heavily relied on the eye-witnesses including the relative witnesses. According to the Learned Judge, from the evidence of the witnesses who witnessed the incident as also the medical officer and police officer it was amply proved that Furi dealt only one blow on the back of Kanai and his left lungs was grossly lacerated. Kanai became sense-less and he was declared dead at the Health Centre where he was taken approximately 1/1 ½ hours after the incident. Learned Judge also observed that no suggestion came from the defence that the accused was not involved in the crime. According to the learned Judge, the witnesses strongly corroborated each other on the happening of the incident. Hence, the accused was held guilty and was convicted accordingly. Thus, this appeal. Mr. Avik Datta, learned counsel appearing for the appellant has contended as follows: (i). The investigation was conducted in most perfunctory manner as would appear from the evidence of the Investigating Officer. (ii). There was material anomaly on the unfolding of the narrative by the prosecution witnesses. PW 1, 2 and 3 being relatives of the victim were highly interested and their evidence should be discarded. (iii). The investigation was conducted in most perfunctory manner as would appear from the evidence of the Investigating Officer. (ii). There was material anomaly on the unfolding of the narrative by the prosecution witnesses. PW 1, 2 and 3 being relatives of the victim were highly interested and their evidence should be discarded. (iii). It was not clear from the evidence how people assembled at the place of occurrence. The topography of the actual place of occurrence was confusing. There was discrepancy as to the actual timing when the relatives rushed to the police station to inform about the incident. (iv). The learned Judge put jumbled up questions to the accused which vitiated the trial. (v). Nothing came out as “motive” for which the alleged commission of offence could be done by the appellant. Ms. Minoti Gomes, learned counsel appearing for the prosecution, while opposing the appellant, contends that whether the questions were properly put to the accused under Section 313 of the Indian Penal Code it is to be seen whether the accused understood the same or not. Once the accused understood the question and answered the same in most unambiguous way it could not be said to be jumbled up. On the issue of anomaly with regard place of occurrence or the timings, Ms. Gomes contends that from the chronological evidence it would appear that the incident might have occurred in the late part of the morning at 10/10.30 a.m. They ultimately rushed to the Police Station and Primary Health Centre which took 1/1 ½ hours. Ultimately the FIR was registered at about 11.55 a.m as we find from the record. So the timing stated by the PW 9 might be due to his misconception and could not have any material effect on the ultimate result of the trial. On the issue of commission of crime by the accused and the motive behind it, Ms. Gomes contends that the witnesses referred to a land dispute. It further appears from the evidence that Furi brought a knife. It was 12/13 inches in length. The Autopsy Surgeon also suggests that it could cause death even if the victim was stabbed from the back. Considering such aspect, it could not be said that it was a sudden fight within the meaning of under Section 300 of the Indian Penal Code. It was 12/13 inches in length. The Autopsy Surgeon also suggests that it could cause death even if the victim was stabbed from the back. Considering such aspect, it could not be said that it was a sudden fight within the meaning of under Section 300 of the Indian Penal Code. “Explanation” empowering the court to book the accused under Section 304 Part I or Part II. In this regard, she relied on two Apex Court decisions reported in 2007 (1) SCC (Cri.) 500 (Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of A.P. and 2002 SCC (Cri.) 736 (Bhagwan Singh and Ors. Vs. State of Madhya Pradesh). While replying to the argument made by Ms. Gomes, Mr. Datta has reiterated that considering the material omissions on the part of the Investigative Agency in having the wearing apparel chemically examined or having the knife properly kept in a sealed cover, it would not be proper to sign the judgment and order of conviction. We have considered the rival contentions. We have carefully examined the evidence. Sum total of the evidence would depict a clear picture where accused being involved in a quarrel with the victim, attacked him with a knife having 12/13 inches in length and stabbed from the back. We also find that the force so applied by the accused was such that it could hit the lungs of the deceased victim which lacerated the lungs resulting profuse bleeding. In our view, such force would only depict the preconceived notion of the accused. It could not be termed as a “sudden act in a sudden fight”. There was dispute over the plot on land of which the victim and his family members were determined to construct a house and the accused was determined to stop the same. With such pre-conceived notion the accused hit the victim with such force which could not come within the four corners of the exceptions stipulated in Section 300 and/or the Explanations given thereunder attracting a lesser punishment under Section 304. In this regard, we may refer to paragraph 29 of the decision in the case of Pulicherla Nagaraju @ Nagaraja Reddy (supra) where the Apex Court interpreted the sections referred to above while deciding a case on the offence committed under Section 302. In this regard, we may refer to paragraph 29 of the decision in the case of Pulicherla Nagaraju @ Nagaraja Reddy (supra) where the Apex Court interpreted the sections referred to above while deciding a case on the offence committed under Section 302. For our benefit the paragraph is quoted below:- “Therefore, the court should proceed to decide the pivotal question of intention, with case and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of as fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murde3r punishable under section 302. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murde3r punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: i) nature of the weapon used; ii) Whether the weapon was carried by the accused or was picked up from the spot; iii) whether the blow is aimed at a vital part of the body; iv) the amount of force employed in causing injury; v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; vi) whether the incident occurs by chance or whether there was any pre-meditation; vii)whether there was any prior enmity or whether the deceased was a stranger; viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; ix) whether it was in the heat of passion; x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circu8mstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” Thus, we find as follows:- (i). Victim starts constructing house being assisted by his brothers and masons. (ii). Furi comes and objects. (iii). Furi brings a knife and hits the victim on his back. (iv). Victim falls down and becomes senseless. (v). Victim is declared dead by the Health Centre doctor. If we take those incidents chronologically we would have no room for doubt in the involvement of the accused. Even if we find that the Investigating Officer did not conduct the investigation in the way and manner it ought to have been, most clear and unambiguous evidence of the other prosecution witnesses would lead us to an irresistible conclusion that it was the accused and accused only who could commit the crime. Even if we find that the Investigating Officer did not conduct the investigation in the way and manner it ought to have been, most clear and unambiguous evidence of the other prosecution witnesses would lead us to an irresistible conclusion that it was the accused and accused only who could commit the crime. Merely because of sheer negligence on the part of Investigating Officer if we discharge the accused and acquit her from all the charges ignoring the evidence all other prosecution witnesses, which certainly have inspired our confidence, it would be grave injustice. We are unhesitatingly of the opinion that it was Furi only who committed crime. The learned Additional Sessions Judge approached the problem in a right direction and we do not find any scope of interference. The appeal fails and is hereby dismissed. The appellant is on bail. Her bail is cancelled. She is directed to surrender to the court below for suffering sentence in default the sureties are directed to produce her before the court below for the purpose mentioned above. Let a copy of this judgment be sent down to the court below for information and necessary steps to be taken in this regard. It is abundantly made clear that in case the appellant does not surrender before the court below or the sureties are not able to produce her before the court below necessary warrant of arrest may be issued by the learned trial court ensuring apprehension of the appellant for the purpose of serving out the sentence. Urgent xerox certified copy will be given to the parties, if applied for. I agree.