JUDGMENT: KALIDAS MUKHERJEE, J. 1. This appeal is directed against the judgment of conviction and sentence passed by learned Sessions Judge, 5th Bench, City Sessions Court, Calcutta in Sessions Trial No. 1, July, 2002 arising out of Sessions Case No. 56 of 2002 sentencing the accused to suffer imprisonment for life and to pay a fine of Rs.2,000/- in default to suffer RI for two months under Section 302/34 of the Indian Penal Code. The learned Judge, however, acquitted the accused person of the charges under Section 307/34 of the Indian Penal Code. 2. The case of the prosecution, in short, is that one Butan Kahar lodged the F.I.R. alleging that on 11.7.2001 at about 8.20 p.m. the incident took place. The informant is a ‘darwan’ of M/S. Aadarsh Enterprise at 18, Amratala Street, Kolkata – 700 007 under Burrabazar Police Station. When he sat in front of the said premises from the evening, he heard sounds of firing and saw one pedestrian, all on a sudden, to fall down on the road due to such firing. The injured sustained bleeding injuries on his chest. The informant also found that two other persons also sustained bleeding injuries and were lying on the ground. The miscreants were of middle age group and medium complexion and they were 4/5 in number and they fled away therefrom being armed with firearms and ‘bhojali’. Police came to the spot. The informant came to know the second victim as Mahesh Gupta of P-120 of CIT Road, Kolkata and third victim as Mahesh Sharma of Belur, Howrah. The informant also came to learn from them that the name of the first victim was Lakshmi Narayan Rathi of 17/1A, Shibtala Street, Kolkata – 700 007. Police took the injured persons to the hospital in the van accompanied by a few local people. Lakshmi Narayan Rathi was declared dead at the Medical College & Hospital and the other two were admitted in the same hospital for treatment. The informant has also stated that he would be able to identify miscreants. The Burrabazar Case No. 167 dated 12.7.2001 was started and after completion of investigation the charge sheet was submitted against the appellant. 3. The learned trial Judge framed charges against the accused/appellant Md. Rashid Alam @ Gabbar under Sections 302/34 and 307/34 of the Indian Penal Code. The informant has also stated that he would be able to identify miscreants. The Burrabazar Case No. 167 dated 12.7.2001 was started and after completion of investigation the charge sheet was submitted against the appellant. 3. The learned trial Judge framed charges against the accused/appellant Md. Rashid Alam @ Gabbar under Sections 302/34 and 307/34 of the Indian Penal Code. The charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 4. Mr. Imam appearing for the appellant submits that there is difference with regard to the injuries as noted in the inquest report and the injuries found by the Autopsy Surgeon at the time of holding post mortem examination. Mr. Imam submits that as per inquest report there was injury on the forehead and the P.W. 7 and P.W. 8 have stated that the appellant fired from the front side aiming at the forehead, but, the Autopsy Surgeon has said in his cross-examination that the entry point of the gunshot injury was on the occipital region and the exit point was on the forehead; that apart P.W. 10 has stated that there was injury on the chest. It is contended that the informant Butan Kahar, although, said that he would be able to identify the miscreants, was not placed in the T.I. parade for identification. Mr. Imam contends that as to the evidence of the alleged eyewitnesses, namely, P.W. 7 & P.W. 8 there are marked discrepancies and, as such, their testimony cannot be relied upon. It is submitted that some P.Ws have stated that the miscreants had revolver and some other (P.W. 10) stated that one of the miscreants was carrying a big gun. Mr. Imam submits that the Autopsy Surgeon did not find any injury on the chest, although, from the evidence of the witnesses it would appear that the victim suffered injury on his chest. It is submitted that the informant was neither placed in the T.I. parade nor he identified the accused at the time of trial in Court. 5. Mr. Imam submits that the injured Mahesh Sharma was not examined by the prosecution. Mr. Imam submits that P.W. 5 Sandip Rathi, son of the deceased, did not state anything against the appellant and he was declared hostile by the prosecution. 5. Mr. Imam submits that the injured Mahesh Sharma was not examined by the prosecution. Mr. Imam submits that P.W. 5 Sandip Rathi, son of the deceased, did not state anything against the appellant and he was declared hostile by the prosecution. It is contended that during trial the photograph and the wearing apparels of the deceased were not even shown to the P.W. 5. It is contended that P.W. 6, that is, the injured Mahesh Gupta, did not state anything against the accused person. Mr. Imam contends that there was discrepancy with regard to the time of holding T.I. parade as appearing in the evidence of the learned Magistrate (P.W. 9) and the witness (P.W. 8) who attended the T.I. parade. 6. Mr. Imam submits that the T.I. parade was held long after the arrest of the accused persons and, as such, the report of the learned Magistrate holding T.I. parade and the identification made by the witnesses cannot have any evidentiary value, especially, of the fact that the accused stated before the learned Magistrate that he was shown to the witness beforehand. Mr. Imam further contends that the photograph of the accused was published much earlier and there was scope of the accused being shown to the witnesses prior to the holding of T.I. parade. Mr. Imam contends that the seizure witnesses were not examined. 7. Mr. Imam has drawn our attention to the contradiction between the evidence of the I.O. and other witnesses. Mr. Imam contends that the learned Trial Judge did not properly examine the accused under Section 313 Cr.P.C. Mr. Imam has referred to and cited the decisions reported in 1983 SCC (Cri.) 49(1) [Soni Vs. State of Uttar Pradesh]; (2010)1 SCC 1039 [State of Andhra Pradesh Vs. Sayyaad Siraj Mohammed and others]; (2003)10 SCC 670 [Maruti Rama Naik Vs. State of Maharashtra]; 1980 Cr.L.J. 1298 [Purshottam and another Vs. State of Madhya Pradesh]. 8. Mr. Mahato appearing for the State submits that there is the evidence of eye witnesses, namely, P.W. 7 & P.W. 8 which, if believed by the Court as truthful, it would be sufficient to warrant conviction of the accused person. Mr. Mahato contends that it is the quality and not the quantity which is to be considered by the Court. As regards the discrepancy with regard to the time of holding T.I. parade, Mr. Mr. Mahato contends that it is the quality and not the quantity which is to be considered by the Court. As regards the discrepancy with regard to the time of holding T.I. parade, Mr. Mahato submits that slight discrepancies cannot render the prosecution case doubtful and would not vitiate the prosecution case in any way. 9. Mr. Mahato contends that the report of the learned Magistrate in holding T.I. parade is not substantial, but, corroborative piece of evidence. It is contended that when there is trustworthy ocular evidence, the corroborative evidence of T.I. parade is not even necessary. Mr. Mahato submits that as against question No. 5 of the statement of the accused under Section 313 Cr.P.C., the accused admitted that he was placed in the T.I. parade and the alleged showing of the accused to the witnesses beforehand is of no importance. 10. Mr. Mahato contends that since there is ocular evidence, the delay in holding T.I. parade would not be fatal to the prosecution case. Mr. Mahato submits that the accused was shown arrested in this case and as regards the photograph of the accused published in the newspaper, there is no evidence to show that P.W. 7 & P.W. 8 saw the photograph before the holding of T.I. parade. As regards the difference in the location of injury on the person of the deceased, Mr. Mahato submits that the Autopsy Surgeon was not a ballistic expert and it was not possible for him to say that the point of entry of bullet was in the occipital region and the exit point was in the forehead. Mr. Mahato submits that this discrepancy between inquest report, evidence of P.W. 7, P.W. 8 and the evidence of the Doctor, would not in any way be fatal to the prosecution case, inasmuch as, it is established from the evidence on record that Lakshmi Narayan Rathi sustained bullet injuries on his head and thereafter succumbed to the injuries. Mr. Mahato submits that from the evidence to P.W. 7 & P.W. 8 who are the natural witnesses, it is clear that the appellant fired at Lakshmi Narayan Rathi from the front side and thereby the victim sustained gunshot injury on his head which resulted in his death. 11. Mr. Mahato has referred to and cited the decisions reported in 2007 (2) SCC (Cri.) 626 [Ramjee Rai and others Vs. 11. Mr. Mahato has referred to and cited the decisions reported in 2007 (2) SCC (Cri.) 626 [Ramjee Rai and others Vs. State of Bihar] (paragraphs 26, 27 & 35). 12. The learned Trial Judge after considering the materials on record passed the impugned judgment holding that the charge under Section 307/34 I.P.C. could not be proved by the prosecution and acquitted the accused of the said charge. The learned Judge while convicting the accused under Section 302/34 I.P.C. held that the Lakshmi Narayan Rathi died due to bullet injury and the accused Rashid Alam @ Gabbar pointed the revolver on the forehead of Lakshmi Narayan babu and fired. The learned Judge placed reliance on the evidence of P.W. 7 & P.W. 8 being the independent witnesses and held that there was no reason to disbelieve their testimony. The learned Judge observed that the witnesses identified the accused Gabbar in the T.I. parade. The learned Judge while placing reliance on the report of the learned Magistrate holding T.I. parade observed that there was no irregularity in holding the said T.I. parade and held that there was direct and cogent evidence against accused Rashid Alam @ Gabbar who caused the death of the victim Lakshmi Narayan Rathi by opening fire from the revolver. The learned Judge also considered the opinion of the Doctor who stated that the death was due to effects of gunshot injuries being ante-mortem and homicidal in nature. The learned Judge ultimately convicted the accused/appellant under Section 302/34 I.P.C. and recorded the sentence as stated above. 13. P.W. 1 is the police officer who upon a requisition of O.C. Burrabazar went to the P.O. for taking photographs. 14. P.W. 2 is another police officer who prepared a rough sketch map of the premises concerned. 15. P.W. 3 is the Doctor who held post mortem examination on the dead body of Lakshmi Narayan Rathi and opined that the death was due to the effects of gunshot injuries as noted being ante-mortem and homicidal in nature. He has also stated that the injuries were sufficient to cause death in ordinary course of nature. 16. 15. P.W. 3 is the Doctor who held post mortem examination on the dead body of Lakshmi Narayan Rathi and opined that the death was due to the effects of gunshot injuries as noted being ante-mortem and homicidal in nature. He has also stated that the injuries were sufficient to cause death in ordinary course of nature. 16. P.W. 4 is the son of the deceased who has stated that on 11.7.2001 at about 8.00 p.m. he received a phone call at his residence that his father was shot dead and accordingly he went to the hospital and found the dead body of his father. 17. P.W. 5 is another son of the deceased who also stated that on receiving a phone call he went to the Medical College & Hospital and found the dead body of his father having sustained bullet injuries. This witness was, however, declared hostile by the prosecution. 18. P.W. 6 has the electrical business at Ezra Street and on 11.7.2001 at about 7.30 p.m. while he was going to his house with Lakshmi Narayan Rathi and reached Burrabazar on Armanian Street, a bullet was fired and it hit on his left ear and as a result he sustained bullet injuries. He has stated that after a month he came to know that his companion Lakshmi Narayan Rathi died having sustained bullet injuries. 19. P.W. 7 & P.W. 8 are said to be the two eyewitnesses of the incident. 20. P.W. 7 Shankar Shaw has stated that when he was selling ‘Bhelpuri’ between 8.30 p.m. and 9.00 p.m. he found that 4/5 persons were running from his opposite direction and at that time one Lakshmi Narayan babu with another person were proceeding by his side. It is in his evidence that out of 4/5 persons one uttered towards Lakshmibabu asking him as to why he did not know Gabbar and did not make payment; thereafter Gabbar whom he knew from before brought out a revolver from his pocket and pointed the same at the forehead of Lakshmibabu and fired, as a result of which Lakshmibabu fell down. He has also stated that the person who accompanied Lakshmibabu tried to resist other persons and Gabbar then told him “Mukesh you also did not make any payment”. At that time the P.W. 7 fled away. He has also stated that the person who accompanied Lakshmibabu tried to resist other persons and Gabbar then told him “Mukesh you also did not make any payment”. At that time the P.W. 7 fled away. In the cross-examination he stated that he has been selling ‘Bhelpuri’ for the last three years and used to sell the same at the crossing of Amratalla street. He has stated that he is required to give ‘tollas’ to the police as well as to the accused person. In the cross-examination he has stated that police took him to the jail for identification of suspect and before going to jail he told the police that he knew Gabbar by face and not by name. It is in his cross-examination that he never visited Lalbazar to identify the accused. 21. P.W. 8 Ramgopal Roy has stated that he is a seller of ‘Fuchka’ at Burrabazar, Amratolla Street. It is in his evidence that Gabbar caught hold of Lakshmi Babu by saying as to whether Lakshmi Babu knew him or not and why he did not make payment and thereafter Gabbar fired at Lakshmibabu who fell down. It is also in his evidence that Gabbar told the other person saying as to why he did not make payment and Gabbar also fired at the said person. He has stated that there was commotion and all the persons including himself fled away leaving the shop out of fear. He has stated that after one week he was taken to jail for identification of the suspect and he identified Gabbar in the T.I. parade inside the jail. It is in his cross-examination that he has been selling ‘Fuchka’ for the last 10 years. It is in his cross-examination that after getting the summons he went straightway to the jail to attend the T.I. parade. In the cross-examination he has further stated that he was not tutored by anybody else as to what he deposed in the Court. 22. From the cross-examination of these two witnesses, namely, P.W. 7 & P.W. 8 we find that P.W. 7 used to sell ‘Bhelpuri’ and P.W. 8 was the ‘Fuchka’ seller for some years. It is also clear from the evidence of these two witnesses that Gabbar fired from his revolver from the front side of Lakshmibabu aiming at his forehead. Nothing has been elicited in the cross-examination of these P.Ws. It is also clear from the evidence of these two witnesses that Gabbar fired from his revolver from the front side of Lakshmibabu aiming at his forehead. Nothing has been elicited in the cross-examination of these P.Ws. which would cast any shadow of doubt on their testimony. 23. Mr. Imam has drawn our attention to the time of holding T.I. parade. P.W. 8 has stated that he identified the suspect and thereafter left the jail at about 3.30/4.00 p.m. whereas the learned Magistrate (P.W. 9) has stated that he held T.I. parade inside the jail from 4.00 p.m. to 5.00 p.m. We are of the considered view that this minor discrepancy with regard to the time of holding T.I. parade does not raise any shadow of doubt as to the factum of holding T.I. parade. 24. As to the identification of the suspect at the time of T.I. parade it is in the evidence of learned Magistrate (P.W. 9) that the T.I. parade was held observing all the formalities. The report of T.I. parade was marked exhibit 8/1. It appears therefrom that witness Ramgopal Rai identified the suspect saying that the suspect fired from a pistol and witness Shankar Shaw identified the suspect by putting his hand on the shoulder of the suspect. As to the identification it is in the cross-examination of P.W. 8 that on receipt of summons he went straightway to jail for identification of the suspect and he was not tutored by anybody else as to what he stated there. P.W. 7 has stated in cross-examination that he never visited Lalbazar to identify the accused. On this point Mr. Imam has drawn our attention to the fact that in the report of T.I. Parade, the learned Magistrate noted that the suspect was shown to the witnesses while in police custody. But from the cross-examination of the P.Ws as discussed above it is clear that there is nothing to show that the suspect was earlier shown to the witness. Such contention of Mr. Imam is not acceptable. 25. P.W. 10 who used to work in the office of the Aadarsh Enterprise at 18, Amratalla Street has stated that he heard the sounds of firing and looked through the window and found three persons having sustained injuries. Such contention of Mr. Imam is not acceptable. 25. P.W. 10 who used to work in the office of the Aadarsh Enterprise at 18, Amratalla Street has stated that he heard the sounds of firing and looked through the window and found three persons having sustained injuries. P.W. 10 has also stated that he found 3 /4 other persons having ‘bhojali’ and gun in their hands and they fled away. He has stated that he saw them a little distance away and the miscreants were wearing pant and shirt and they were aged about 25/26 years of age. He has stated that one of the miscreants was carrying a big gun. 26. P.W. 11 is the Executive Magistrate who held inquest over the dead body. 27. P.W. 12 & P.W. 13 are the medical officers who examined the two other injured persons. 28. P.W. 14 & P.W. 15 are the police officers. 29. As to the injuries on the person of the deceased, Mr. Imam submits that there was discrepancy as noted by the learned Executive Magistrate holding the inquest and the Autopsy Surgeon who held the post mortem examination. P.W. 3 is the Autopsy Surgeon who held post mortem examination and noted the injuries as follows:- “1. Abrasion 1 inch X 1 inch over the left side of forehead just left to midline and 2” above the medial end of left eyebrow. 2. Abrasion 0.5” X 0.4” over left side of the forehead 0.5” left to midline and 1” above to the left eyebrow. 3. Abrasion 0.6” X 0.5” over left side of upper lip 0.2” outside the mucocutaneous junction. 4. Abrasion 0.3” X 0.2” over the left side of nose lateral to tip of nose. 5. One gunshot wound of entrance measuring 0.8” X 0.6” present over the right side of occipital region with abraded, contused, blackend margins with singeing of the scalp hairs surrounding it but without any evidence of tattooing with evidence of post-mortem incised extension of the wound 2.4” X 1.2” at the upper aspect (11 O’clock to 1 O’clock position) and 0.3” X 0.1” at its lower aspect (6 O’clock position) placed just right to midline just above the external occipital protuberance 54.5” above right heel from the lower most aspect of the wound and 5” from the vault of skull from the upper most aspect of the wound. On dissection and tracing the track of wound, it is seen that the gunshot wound of entrance was communicating with the track underneath while the post-mortem incised extensions were subcutaneous tissue and muscle deep the track of the gunshot wound was as follows:- It was seen to have pierced the skin subcutaneous tissue, posterior neck muscles closed to their attachments with the occipital bone to enter into the cranial cavity by piercing scalp and occipital bone underneath by making a hole 0.8” X 0.3” with punched in margin at the external table and levelled in margin at the inner table then have pierced through meninges underlying and right occipital lobe through and through to come out on the inner aspect of right cerebral lobe then have pierced into the left cerebral hemisphere and come out by piercing the left frontal lobe 0.2” left to midline and then have pierced the meninges and the overline frontal bone by producing a hole 1.2” X 0.4” with punched out margin on the inner table and levelled out margin on the outer table with wound of exit measuring 1.4” X 0.6” over medial aspect of left eyebrow 0.2” left to midline 58” from the left heel and 4” from the vault. The track of the wound was directed from behind forwards, a little upwards, and right to left. 6. One bruise 2” X 1½” over left upper eyelid. 7. On dissection a haematoma in the soft tissues of the scalp 6” X 3” over occipital and adjoining parietal areas. 8. One fissured fracture 4” long present over the left parietal bone starting the labdoid suture of left side found on dissection. 9. One extra-dural haemotoma 6” X 5” over occipital lobes of brain and on either side with tearing of respective meninges. 10. One sub-dural haemotoma 8” X 5” over right occipital and parietal lobes of brain. 11. One sub-dural haemotoma 4” X 3” over left frontal lobe of brain. The gunshot wounds of entrance and exit and other injuries were red in colour and showed evidences of vital reaction except the post-mortem incised extensions of wounds. The bruise and haematomas were red in colour. The fractured sites showed evidences of extravasation of blood in the surrounding soft tissues. No other injury, either revealed or concealed, could be detected even after careful dissection and examination even under a handlens.” 30. The bruise and haematomas were red in colour. The fractured sites showed evidences of extravasation of blood in the surrounding soft tissues. No other injury, either revealed or concealed, could be detected even after careful dissection and examination even under a handlens.” 30. The doctor opined that the injuries were sufficient to cause death in ordinary course of nature and it was a close range shot within a metre (approximately). In the cross-examination he stated that one gunshot injury caused 11 wounds; out of this five external wounds, wounds of entrance were on the occipital region. He has stated that the entry point was on the occipital region and the exit point was on the forehead and all the 11 wounds were on the head portion. He has also stated that he was not aware of the force of the bullet as he was not a ballistic expert. 31. P.W. 11 the learned Executive Magistrate who held the inquest noted the following injuries: “1. Deep hole injury was found on lower part of forehead above nose. 2. Large deep hole injury was found on back side of lower part of head and 3. Two large abrasions were on left side forehead.” 32. The contention of Mr. Imam is that from the evidence of P.W. 7 & P.W. 8 it would appear that the appellant allegedly fired from the front side aiming at the forehead of the deceased, but, according to the Autopsy Surgeon (P.W. 3) the entry point of bullet was in the occipital region and the exit point was in the forehead. Mr. Imam contends that if the entry point of bullet was in the occipital region then the prosecution case of firing from the front side aiming at the forehead of the deceased cannot be believed. On this point the Autopsy Surgeon (P.W. 3) has stated in cross-examination that he was not a ballistic expert and he could not say about the force of the bullet. It is to be borne in mind that the desire to survive is an instinct and the deceased might have turned with the reflex action when the appellant opened fire from his revolver and in the process the bullet hit him in the occipital region, although the witnesses stated that Gabbar fired from the front side. It is to be borne in mind that the desire to survive is an instinct and the deceased might have turned with the reflex action when the appellant opened fire from his revolver and in the process the bullet hit him in the occipital region, although the witnesses stated that Gabbar fired from the front side. It is clear from the evidence of the Autopsy Surgeon that the deceased sustained 11 gunshot injuries and the prosecution case of firing from the revolver finds corroboration from the evidence of Autopsy Surgeon (P.W. 3).P.W. 3 stated that it was a close range shot from about a metre. Mr. Imam has cited the case of Purushottam and another Vs. State of Andhra Pradesh (Supra) to show that when there is discrepancy between ocular version and the medical evidence, the medical opinion should be preferred. We find that the discrepancy as pointed out by Mr. Imam does not in any way cast any shadow of doubt on the veracity of the prosecution case. We are of the considered view that the ocular evidence of sustaining gunshot injury finds corroboration from the evidence of the Autopsy Surgeon (P.W. 3). The decision cited by Mr. Imam does not lend any support to his contention. The evidence of P.W. 7 and P.W. 8 is cogent, worthy of credence and unimpeachable which coupled with the evidence of Autopsy Surgeon (P.W. 3) are sufficient to warrant conviction of the appellant. 33. Mr. Imam has cited the case of State of Andhra Pradesh Vs. Sayyaad Siraj Mohammed and others (Supra) wherein it has been held that as the witness was taken to central jail to show the accused persons to him before the Test Identification Parade was conducted, the order of acquittal was upheld. Mr. Imam has cited the case of Soni Vs. State of Uttar Pradesh (Supra) where the delay of 42 days rendered the identification in the T.I. parade doubtful. We have already discussed that P.W. 7 and P.W. 8 have stated that after receiving the summons they went straightway to the jail for the purpose of attending the T.I. parade. P.W. 7 in his cross-examination has made it clear that he never visited Lalbazar to identify the accused and he denied the suggestion that Gabbar was shown to him beforehand. P.W. 7 in his cross-examination has made it clear that he never visited Lalbazar to identify the accused and he denied the suggestion that Gabbar was shown to him beforehand. From the case records it further appears that the accused was already in custody in connection with other case and on the prayer of I.O. this accused was shown arrested in this case and thereafter the T.I. parade was held and, therefore, the delay in holding the T.I. parade did not vitiate the identification in any way. The witnesses remained uninfluenced from any corner and there is nothing to disbelieve the identification made by the witnesses in the T.I. parade. The decisions cited by Mr. Imam will not come in the aid of his contentions in the facts and circumstances of the case. 34. Mr. Imam submits that the examination of the accused under Section 313 was not properly done. On perusal of the statement of the accused under Section 313 Cr.P.C. we find that it was properly done and the accused after understanding each question gave the answer. 35. Considering the materials on record and after giving the anxious consideration to the submissions made by Mr. Imam and Mr. Mahato we are of the considered view that the learned Trial Judge was justified in passing the impugned judgment. There is no scope of interference with the findings of the learned Trial Judge. The impugned judgment passed by the learned Trial Judge is affirmed. In the result the appeal fails and the same stands dismissed. 36. Let a copy of this judgment be sent to the concerned Correctional Home where the appellant is now serving out sentence. 37. Let a copy of this judgment along with the L.C.R. be sent down to the learned Trial Court immediately. 38. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible. I agree.