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2011 DIGILAW 101 (ORI)

Kasia Kasinath Behera v. State of Orissa

2011-02-15

B.K.NAYAK, PRADIP MOHANTY

body2011
JUDGMENT B. K. NAYAK, J. (1) BOTH the Criminal Appeal and the Government Appeal arise out of the judgment and order dated 12-1-1999 passed by the Second Additional Sessions Judge, Cuttack in S.T. Case No. 545 of 1996 (6/97). Four accused persons were tried in the aforesaid sessions case being charged under Sections 302/34 of the IPC. By the impugned judgment, the trial Court acquitted the respondents in the Government Appeal of the charges and convicted only Kasia alias Kasinath Behera, the sole appellant in the criminal appeal, under Section 302 of the IPC and sentenced him to imprisonment for life. Since both the appeals arise out of one and the same judgment, they were heard together and are being disposed of by this common judgment. (2) SHORN of unnecessary details the prosecution case is that the accused persons were in the habit of teasing the women folk of Muslim Basti during evening hours. On the date of occurrence i.e., 20-5-1996 at about 7.30 p.m. the informant, Sk. Kausara (P.W. 1) along with Abid Khan (P.W. 2), Sk. Habib (P.W. 3) and Sk. Okil (the deceased) of Sutahat came across the accused persons standing on the street and asked them as to why they were teasing and passing comments to the women folk for which a quarrel ensued between them. In course of the quarrel accused-Bata alias Batia Behera asked accused-Kasia (appellant in the Criminal Appeal) to bring a knife whereupon the latter went to his house, which is situated nearby, and came with a knife and while the other accused persons held the deceased on the road, accused Kasia stabbed him by means of the knife. Seeing the assault on the deceased when the informant was trying to escape accused-Kasia also attacked him and caused injuries. Thereafter, all the accused persons fled away from the spot. The deceased was taken to the hospital in a rickshaw by P.Ws. 1 and 2. On arrival in the hospital, the doctor declared him dead. The S.I. of Cantonment Police Station (P.W. 7) on getting information from some source proceeded to the spot and then to the hospital where the informant lodged the FIR scribed by one Sk. Ayas. The FIR was immediately sent to the Police Station where P.W 11 received the same, registered a case and took up investigation. The S.I. of Cantonment Police Station (P.W. 7) on getting information from some source proceeded to the spot and then to the hospital where the informant lodged the FIR scribed by one Sk. Ayas. The FIR was immediately sent to the Police Station where P.W 11 received the same, registered a case and took up investigation. He issued requisition for the Scientific Team, visited the spot and on the next day morning examined witnesses, effected seizure of wearing apparels of the deceased and of certain materials collected by the Scientific Officer from the spot, arrested some of the accused persons and on 12-6-1996 handed over charge of investigation to his successor in office (P.W. 12), who prepared sketch map on visiting the spot, re-examined the witnesses and on completion of investigation submitted charge-sheet. The plea of the accused persons is one of denial of their involvement in the alleged occurrence. Further in his statement under Section 313, Cr. P.C. accused-Bata alias Batia took the plea that he being a very old man the question of hurling comments along with his accused sons-Kasia and Bhasia to the women folk does not arise and that he was not present on the site at the time of occurrence. At the relevant time, he was sitting in the shop of Damia situated in Darjisahi and while present there he saw a Muslim boy having injuries being taken in a rickshaw and learnt that the injuries were sustained by the boy due to fight between two groups. The plea of the other accused persons, as seen from their statements under Section 313, Cr. P.C. is that on 20-5-1996 at about 6.00 p.m. while accused-Kasia and Bhasia were standing at the School Chhak two Muslim boys came in a bicycle and dashed against them for which there was an altercation between them. The two boys then left the spot giving threats that they would see them. Thereafter, accused-Pramod, who is a resident of Meriabazar, left for his house and accused-Kasia and Bhasia while returning to their house were attacked by some persons on the road in darkness and during such scuffle the deceased accidentally received stab injury dealt by somebody from his group and because of the previous quarrel of the same evening accused Kasia and Bhasia and their father have been falsely implicated. (3) IN order to establish its case the prosecution examined 14 witnesses. (3) IN order to establish its case the prosecution examined 14 witnesses. P.W. 1 is the informant and P.Ws. 2 and 3, who are said to be companions of the informant and the deceased, are eye-witness to the occurrence. P.W. 4 is a witness to the recovery of the knife given by accused Bhasia which was seized under Ext. 2. P.W. 5 is the scribe of the FIR. P.W. 6 is a witness to the inquest. P.W. 7 was the S.I. of Police of Cantonment Police Station on the relevant say who on getting information about certain disturbance at Sutahat proceeded to the spot and from there to the hospital along with A.S.I. of police (P.W. 10) and having found the deceased at the hospital he informed the matter to the Superintendent of Police and the I.I.C. of the Police Station over phone. He received the FIR at the hospital, forwarded the same to the Police Station, took up preliminary investigation, held inquest over the dead body and sent it for post-mortem examination. He also examined the informant and thereafter handed over charge of investigation to the I.I.C. (P.W. 11). P.W. 8 is the A.S.I., who collected nail clippings of accused Bhasia and produced the same before the I.I.C. P.W. 9 is the Scientific Officer. P.W. 10 is another A.S.I. of police, who accompanied accused Batia, Kasinath and Pramod to S.C.B. Medical College and Hospital, Cuttack on the requisition of the I.I.C. and received the nail clippings of those accused persons, which were collected by the doctor as per requisition and produced the same before the I.I.C. for seizure. P.W. 12 is the LLC, who took over charge of investigation from P.W. 11. P.W. 13 is the doctor who conducted autopsy over the dead body of the deceased and also examined the weapon of offence. P.W. 14 is the doctor, who examined accused-Kasia and Pramod on police requisition. The defense examined three witnesses. (4) ON consideration of the evidence, the trial Court came to hold that accused-Kasia alias Kasinath stabbed the deceased by a knife and caused his death and accordingly, it found him guilty under Section 302 of the IPC and convicted and sentenced him thereunder. The defense examined three witnesses. (4) ON consideration of the evidence, the trial Court came to hold that accused-Kasia alias Kasinath stabbed the deceased by a knife and caused his death and accordingly, it found him guilty under Section 302 of the IPC and convicted and sentenced him thereunder. However, taking into consideration some laches in investigation and inconsistencies and contradictions in the evidence of prosecution witnesses and keeping in view that the occurrence took place out of a quarrel and scuffle and that the other accused persons were wholly unarmed and had not shared the criminal intention of accused Kasia it found them not guilty and accordingly acquitted them. The learned counsel for appellant-Kasia alias Kasinath contends that the prosecution must be held to have failed to prove the charge against appellant-Kasia for the following infirmities : (i) the prosecution has presented a concocted story and the defence plea is more probable as revealed from the evidence and materials on record and for non-explanation of injuries on some of the accused persons. (ii) there are inconsistencies and contradictions in the evidence of interested ocular witnesses. (iii) the prosecution is guilty of suppression of the first FIR, which was lodged by P.W. 3 at the Police Station, and, therefore, the subsequent FIR (Ext. 1) must be held to be a concoction after due deliberation, which makes the prosecution story suspect. (iv) Non-examination of any independent witness of the locality makes the prosecution story suspect. It is the further alternative submission of the learned counsel for the appellant that even if it is held that the appellant caused the death of the deceased, his act may at best come within the ambit of Section 304 of the IPC and not under Section 302 of the IPC. (5) MR. S. Nayak, the learned Additional Government Advocate while supporting the trial Court judgment with regard to conviction of appellant-Kasia, has further submitted that the order of acquittal of the other three accused persons (respondents in the Government Appeal) is vitiated in view of the clear, cogent and consistent evidence of the eye-witnesses about the involvement of the respondents in the offence concerned. He further submits that there is no credible evidence with regard to the defence plea and that defective investigation or laches and negligence on the part of the Investigating Officers will not be a ground to disbelieve the prosecution case, which is otherwise proved by clear and cogent evidence. (6) THERE is no denial of the fact that the deceased, Sk. Okil died a homicidal death which is otherwise proved through medical evidence of P.W. 13, who conducted the postmortem examination. As per the evidence of P.W. 13 the deceased sustained one stab wound over the left side chest wall below the clavicle situated 1.5 cm. below the mid of the left clavicle and 3.5 cms left to the midline and 8 cms above the left nipple. The spindle shaped wound of the size 2.75 cm. x 1 cm. had sharp cut margin. On dissection it was found that corresponding to the stab wound there was extravasation of blood in the chest wall and intercostal muscle over an area of 6 cm. x 5 cm. The wound pierced through the first intercostal space of left side and had cut the upper border of the second rib and had entered into the chest cavity in between medial margin of upper lobe of the left lung causing perforated injury of size 0.5 x 0.2 cm on the left pulmonary vein which had led to collection of extravasated clotted blood inside the pericardial sac. THERE was also collection of fluid and clotted blood in the left side thoracic cavity. The left lung had collapsed. Besides the stab wound, P.W. 13 also found two abrasions and two contusions over the cheek, mandible and neck. The injuries were ante-mortem in nature. The stab wound was homicidal in nature and could cause death in ordinary course of nature. The death was due to haemorrhage and shock as a result of injury to vital organs like lungs and great vessel. We have carefully perused the evidence on record. The informant examined as P.W. 1, who is an eye-withness, has stated that on 20-5-1996 at about 7.30 p.m. while he along with P.Ws. The death was due to haemorrhage and shock as a result of injury to vital organs like lungs and great vessel. We have carefully perused the evidence on record. The informant examined as P.W. 1, who is an eye-withness, has stated that on 20-5-1996 at about 7.30 p.m. while he along with P.Ws. 2 and 3 and the deceased were going on the road, saw the accused persons and asked them as to why they were passing comments to the ladies of their Sahi (street), as a result of which a quarrel ensued between the informant's group and accused group. In course of the scuffle, on the instigation of accused-Batia Behera, accused-Kasia brought a knife from his house and stabbed the deceased while the other accused persons were holding him flat on the road. When P.W. 1 tried to rescue the deceased, accused-Kasia also dealt knife blows to him causing injuries on his left arm and shoulder. Thereafter, the accused persons fled away from the spot. It is further stated by P.W. 1 that he along with P.W. 2 carried the deceased in a rickshaw to S.C.B. Medical College and Hospital where the doctor declared him dead. While they were in the Hospital, the S.I. of Police of Cantonment Police Station (P.W. 7) arrived there and P.W. 1 got an FIR scribe by his brother Sk. Ayas (P.W. 5) and gave to P.W. 7. He has proved the FIR (Ext. 1) and his signature, Ext. 1/1. Lodging of the FIR by P.W. 1 at the S.C.B. Medical College and Hospital has also been proved by P.W 7, who has further stated that on receipt of Ext. 1 he sent the same to the I.I.C. of Cantonment Police Station for registration of the case and since the FIR disclosed a cognizable case, he took up preliminary investigation. The FIR, Ext. 1 has also been proved by P.W. 5, who had scribed the same on the dictation of P.W. 1. (7) EVIDENCE of P.Ws. 2 and 3 with regard to the occurrence is almost similar to the evidence of P.W. 1. Additionally, P.W. 3 has stated that while P.Ws. 1 and 2 carried the deceased to the hospital, he (P.W. 3) came to his house. (7) EVIDENCE of P.Ws. 2 and 3 with regard to the occurrence is almost similar to the evidence of P.W. 1. Additionally, P.W. 3 has stated that while P.Ws. 1 and 2 carried the deceased to the hospital, he (P.W. 3) came to his house. P.W. 7 has further stated in his evidence that on 21-5-1996 at about 7.30 a.m. he held inquest over the dead body of the deceased and thereafter sent the same for post-mortem examination vide the dead body chalan through constable-B.N. Bhoi. He has proved the inquest report, Ext. 3 and the dead body chalan, Ext. 4. P.W. 6 is an independent witness to the inquest that was conducted by P.W. 7 in the next morning of the occurrence. P.W. 8, the A.S.I, of Cantonment Police Station, has stated that on 27-5-1996 at about 11.45 a.m. as per order of the I.I.C. (P.W. 11), he escorted accused-Bhaskar Behera, who was arrested on that day, to the S.C.B. Medical College and Hospital with requisition to the FMT Department where Dr. Mohanty collected the nail clippings of accused-Bhaskar and handed over to him in a packet which on production by him was seized by P.W. 11 under the seizure list (Ext. 5). P.W. 9 is the Scientific Officer of District Forensic Science Laboratory. As per his evidence, he visited the spot of 21-5-1996 on the requisition of the I.O. (P.W. 11) and found two blood patches on the pitch road, i.e., the spot in front of the house of Bithika Patnaik and Manmohan Patnaik. He collected the saline extract of the blood stains by gauze cloth and marked them as Exts. A, A/1 and B and B/l. He also took photographs of the spot which along with negatives have been marked as Exts. 7, 7/1 and 7/2. He also prepared a report, Ext. 6 and handed over the same to the I.O. In his cross-examination he has however stated and he has not mentioned the distance of the house of Bithika Patnaik from Darjisahi Chhak. 7, 7/1 and 7/2. He also prepared a report, Ext. 6 and handed over the same to the I.O. In his cross-examination he has however stated and he has not mentioned the distance of the house of Bithika Patnaik from Darjisahi Chhak. P.W. 10 is the A.S.I, of Police, who has stated that on 21-5-1996 being directed by the I.O. (P.W. 11) he accompanied accused-Bata Behera, Kasinath Behera and Pramod Mohanty to the FMT Department of the S.C.B. Medical College and Hospital for collection of nail clippings and on the way accused-Kasinath and Pramod Mohanty were medically examined by the doctor of City Hospital as they were complaining pain in their body. After collection of nail clippings at S.C.B. Medical College and Hospital by the doctor, the same were kept in three packets which he brought and produced before the LLC, who seized the same vide seizure list, Ext. 10. P.W. 14, the doctor of City Hospital states that on police requisition he examined accused-Kasinath Behera and found one contusion of 1" diameter on the second left costochdondral space which might have been caused by hard and blunt object. The age of the injury was within six hours. P.W. 14 reserved opinion awaiting X-ray examination of the injury. The injury report has been proved as Ext. 24. On the same day P.W. 14 also examined accused-Pramod Kumar Mohanty and found one contusion of 1" diameter over right mandible and one scratch of Vi" diameter 2" below the left elbow, caused by hard and blunt object. The injuries were simple in nature and had been caused within six hours. The injury report has been proved as Ext. 25. In his cross-examination P.W. 14 has denied the suggestion that the injuries on both the accused persons were of 12 hours old. (8) P.W. 11, the I.O. has stated in his evidence that on 20-5-1996 while he was availing leave got telephonic message from the S.P., Cuttack about the murder having taken place within the jurisdictiuon of Cantonment Police Station and, therefore, he resumed duty at 9.00 p.m. and then received the FIR (Ext. 1) which had been sent by P.W. 7 from the S.C.B. Medical College and Hospital. On receipt of the FIR, he registered the case and directed constable, P.M. Bhoi to guard the dead body at the hospital till the same was carried for post-mortem examination. 1) which had been sent by P.W. 7 from the S.C.B. Medical College and Hospital. On receipt of the FIR, he registered the case and directed constable, P.M. Bhoi to guard the dead body at the hospital till the same was carried for post-mortem examination. He then immediately arrived at the hospital and directed P.W. 7 to arrange for post-mortem examination of the body. Before going to the hospital he had gone to the spot and made arrangement for guarding the spot. He also issued requisition (Ext. 11) for the Scientific Team for inspection of the spot. During investigation P.W. 11 examined witnesses, on 21-5-1996 he arrested accused-Bata Behera, Kasia Behera and Pramod Mohanty and seized the wearing apparels under the seizure lists, Exts. 12, 13 and 14 and sent the accused persons for their medical examination, blood grouping and collection of nail clippings. After post-mortem examination, he seized the wearing apparels of the deceased under the seizure list, Ext. 16. His testimony further reveals that on 27-5-1996 at 10.20 a.m. he arrested accused-Bhaskar Behera, who made a statement to the effect that he has kept the knife, by which accused-Kasia assaulted the deceased, inside the thatched roof of their house and gave recovery of the said knife which has been identified as M.O.I. The statement of accused-Bhasia alias Bhaskar has been proved by P.W. 11 as well as P.W. 4, an independent witness, being marked as Ext. 2. The original of the seizure list in respect of seizure of the knife having been lost, the carbon copy thereof with the signature of accused-Bhasia on the said copy has been marked as Exts. 26 and 26/1 respectively. P.W. 13, the doctor has also given her opinion in her report Ext. 23 and also in her evidence that the stab wound on the body of the deceased was possible by M.O.I. She had examined the said weapon on the requisition of the subsequent I.O., P.W. 12. Since P.W. 11 had not prepared any spot map, P.W. 12 visited the spot after taking over charge of investigation, prepared the sketch map, Ext. 18, re-examined some witnesses and sent M.O.I. and other seized materials to SFSL with the forwarding letter of the S.D.J.M. Learned counsel for the appellant has drawn the attention of the Court to some of the inconsistencies and contradictions in the prosecution evidence. 18, re-examined some witnesses and sent M.O.I. and other seized materials to SFSL with the forwarding letter of the S.D.J.M. Learned counsel for the appellant has drawn the attention of the Court to some of the inconsistencies and contradictions in the prosecution evidence. It is seen that with regard to the complicity of Bata alias Batia Behera, P.W. 2 stated in his examination-in-chief that in course of quarrel and tussle accused-Bata asked accused-Kasia to bring a knife from the house. During cross-examination though he denied the defence suggestion that he did not so state before the I.O. (P.W. 11), the evidence of the I.O. in paragraph 8 reveals that in fact P.W. 2 did not make such a statement before him. Further, P.W. 1 in his evidence did not implicate accused-Bata to have held the deceased along with the other accused persons when accused-Kasia assaulted the deceased by knife. Coupled with such contradictions and inconsistencies, the evidence of D. W. 2 reveals that during the evening of the date of occurrence two boys coming from the side of Sutahat in a bicycle caused accident to accused-Bhasia and there was a tussle between them. D.W. 2 and some others intervened and separated them whereafter accused-Bhasia, Kasia and Pramod left for their houses and those two boys left saying "Raha Raha Ame Dekhinebu", meaning thereby, "wait, we will see you". Thereafter, D.W. 2 came to the shop of Arakshita Maharana at Darjisahi Chhak. During his presence there, accused-Bata came from Sutahat side and sat in the nearby shop of one Damodar Moharana. While both of them were there, they heard some shout from the side of the lane and D.W. 1 thought that some drunkard might be shouting. Thereafter he found that two Muslim boys came running and took a rickshaw from the Chhak and soon thereafter they brought one boy having injury in that rickshaw. There was altogether 8 to 10 Muslim boys. Thereafter, D.W. 2 and accused-Bata came back to their houses. However, D.W. 2 is silent about the defence story that sometime after the accident caused by the two boys again they came back with some others and attempted to assault accused-Kasia and in the process, accidentally in darkness, the deceased received the stab injury. Thereafter, D.W. 2 and accused-Bata came back to their houses. However, D.W. 2 is silent about the defence story that sometime after the accident caused by the two boys again they came back with some others and attempted to assault accused-Kasia and in the process, accidentally in darkness, the deceased received the stab injury. On the contrary, in his cross-examination in paragraph 8 he has stated that he does not know if some persons had come to the house of Kasia and Bhasia to attack them. The evidence of D.W. 2 though excludes the presence of accused-Bata on the scene of the occurrence; it is of no worth in regard to proof of the defence plea. The contradictions and inconsistencies in the evidence of the P.Ws, as seen above, coupled with the evidence of D.W. 2 make it clear that the eye-witnesses have given an exaggerated version for implicating accused-Bata, who has probably not participated in the alleged crime. We are, therefore, of the view that the trial Court has rightly acquitted accused-Bata Behera. (9) IN proof of the defence plea suggestions were given to P.Ws. 1, 2 and 3 in their cross-examination which they have denied. Besides, the defence plea was also sought to be proved through D.W. 3-Dibakar Behera, who is none other than another brother of accused-Kasia and Bhasia. He has admitted in his cross-examination that no person had come to their house having knife in order to attack Kasia and Bhasia. This admission has proved to be a boomerang and dealt a death blow to the defence story and proved it false. (10) ANOTHER discrepancy in the prosecution evidence is with regard to the question whether accused-Kasia assaulted the deceased by taking his position on the left side or right side of the deceased. There is no dispute that the deceased sustained stab injury on the left side of his chest. This has been consistently stated by P.Ws. 1, 2 and 3 which is also supported by medical evidence. However, while P.W. 1 said that accused-Kasia standing on the left side of the deceased dealt a knife blow on the chest of the deceased, P.W. 2 has stated that Kasia gave the knife blow on the left chest of the deceased sitting to the right of the deceased. This discrepancy in the evidence of P.Ws. However, while P.W. 1 said that accused-Kasia standing on the left side of the deceased dealt a knife blow on the chest of the deceased, P.W. 2 has stated that Kasia gave the knife blow on the left chest of the deceased sitting to the right of the deceased. This discrepancy in the evidence of P.Ws. 1 and 2 as to the position of accused-Kasia while he dealt the knife blow is not a material one and much emphasis shall not be laid on the same as it will not be a ground to disbelieve the ocular testimony of the P.Ws. with respect to the material aspect of the prosecution case that accused-Kasia dealt the knife blow on the left side chest of the deceased. The learned counsel referring to the aforesaid inconsistencies and contradictions submits that the evidence being neither wholly reliable nor wholly unreliable it is necessary for the Court to look for corroboration in material particulars by direct or circumstantial evidence as has been held by the Apex Court in Valivelu Thevar v. The State of Madras; AIR 1956 SC 614 . There is no dispute over the proposition laid down in the aforesaid case. It is seen from the testimony of P.Ws. 1, 2 and 3 that their evidence is cogent and reliable with respect to material particulars though there is some discrepancy or contradiction and little exaggeration. In this respect we may aptly refer to the decision of the Apex Court in Mallappa Siddappa Alakanur v. State of Karnataka, (2009) 14 SCC 748 : ( AIR 2009 SC 2959 ) where it has been held that contradictions, inconsistencies and exaggerations or minor variance in the evidence do not make the prosecution case doubtful. On the other hand, they lend credibility to the prosecution version. It is contended on behalf of appellant-Kasia that two of the accused persons, Kasia and Bhasia sustained injuries in course of the occurrence and the prosecution has failed to explain such injuries and, therefore, the prosecution case must be viewed with suspicion. It appears from the evidence of P.W. 11 that he arrested accused Bata, Kasia and Pramod Mohanty between 10.00 a.m. and 11.00 a.m. on the next day of occurrence, i.e., on 21-5-1996 and thereafter sent them for their medical examination blood grouping, etc. under a requisition. It appears from the evidence of P.W. 11 that he arrested accused Bata, Kasia and Pramod Mohanty between 10.00 a.m. and 11.00 a.m. on the next day of occurrence, i.e., on 21-5-1996 and thereafter sent them for their medical examination blood grouping, etc. under a requisition. P.W. 14, the doctor of City Hospital examined accused-Kasia and Pramod on such police requisition and found one contusion of 1" diameter on the second left costochdondral space on the person of Kasia caused by hard and blunt object. He also found one contusion 1" diameter over right mandible and one scratch 1/2 diameter 2" below the left elbow of accused Pramod Mohanty caused by hard and blunt object. The injuries were simple in nature and it is the specific opinion of P.W. 14 that the injuries were caused within six hours prior to his examination. In his cross-examination he had denied the suggestion that the injuries were of 12 hours old. The injury reports have been marked as Exts. 24 and 25. This evidence clearly suggests that the injuries on the person of accused-Kasia and Pramod were sustained in the following morning of day of occurrence and not during course of occurrence. Therefore, it was not the bounden duty of the prosecution to explain such injuries. Even otherwise, the nature of injuries being simple, the prosecution is not bound to explain them as has been held by the Apex Court in the case of Sucha Singh v. State of Punjab, 2003 (26) OCR (SC) 297 : ( AIR 2003 SC 3617 ). (11) THE next argument of the learned counsel for the appellant is that the first FIR lodged by P.W. 3 having been suppressed an inference should be drawn that the prosecution case is suspicious. In this connection he relies on the decision of the Apex Court in the case of Sevi (2) Koodakkal Karian v. State of Tamil Nadu, 1981 Cri LJ 736 : ( AIR 1981 SC 1230 ) and also a decision of this Court in Balgopal Panda v. State, 70 (1990) CLT 1 : (1990 Cri U 1848). On going through those decisions, it is found that suppression of the first FIR was held to be a ground to suspect the prosecution case as there were other grave suspicious features and there was no trustworthy evidence with regard to the prosecution allegation. On going through those decisions, it is found that suppression of the first FIR was held to be a ground to suspect the prosecution case as there were other grave suspicious features and there was no trustworthy evidence with regard to the prosecution allegation. In the instant case, P.W. 3 in his cross-examination has stated that from the place of occurrence he went to his Sahi and within 10 to 15 minutes thereafter went to Cantonment Police Station and informed the matter to the police which was reduced to writing and the police obtained his signature in writing. P.Ws. 7 and 11, however, denied the lodging of FIR by P.W. 3. P.W. 3 also does not indicate which police personnel reduced his information to writing and obtained his signature. Even if for the sake of argument it is accepted that P.W. 3 lodged the information, he cannot be said to have given any different version as he has fully supported the prosecution case as alleged in the FIR (Ext. 1) lodged by P.W. 1 and his evidence is consistent with that of P.Ws. 1 and 2 about the manner in which the occurrence took place. It is seen that the substratum of the prosecution case has been proved by ocular evidence of P.Ws. 1, 2 and 3 and, therefore, assuming that initially an information was reported by P.W. 3, the non-production of the same does not vitiate the prosecution. In a similar circumstance, the Apex Court in the case of Patil Hari Meghi v. State of Gujarat, AIR 1983 SC 488 : (1983 Cri LJ 826) held that non-production of the First Information, which did not contain the names of two of the accused persons, would not be a ground to suspect the prosecution case when the FIR that was proved was lodged within an hour or two of the occurrence and the prosecution case stood proved by ocular evidence. In the circumstances, the contention of the learned counsel for the appellant carries no force. (12) THE other contention of the learned counsel for appellant-Bhasia is that no independent witness has been examined and that P.Ws. 1, 2 and 3 being interested witnesses their evidence should not be believed. It is the consistent evidence of P.Ws. In the circumstances, the contention of the learned counsel for the appellant carries no force. (12) THE other contention of the learned counsel for appellant-Bhasia is that no independent witness has been examined and that P.Ws. 1, 2 and 3 being interested witnesses their evidence should not be believed. It is the consistent evidence of P.Ws. 1, 2 and 3 that they along with the deceased were coming on the road from Sutahat side when they happened to see the accused persons on the road at the place of occurrence and on their asking as to why the accused persons were passing comments to women folk of the Sahi a scuffle ensued in course of which accused-Kasia stabbed the deceased. Nothing has been brought out in their cross-examination to doubt their veracity with regard to their presence on the scene of occurrence, as P.Ws. 1 and 2 are the persons, who immediately carried the deceased in a rickshaw to the hospital from the spot. THEre is no evidence that there was any prior enmity between the witnesses and the accused persons so that the witnesses would intend to become revengeful and falsely implicate them in a case. It is also the consistent evidence of P.Ws. 1, 2 and 3 that after stabbing the deceased, accused Kasia also assaulted P.W. 1, who sustained injury on his shoulder. P.W. 1 states in his evidence that he was treated at the hospital which is also supported by P.W. 11, though the latter has failed to issue injury requisition to the doctor in order to ascertain the nature of injuries sustained by P.W. 1. In the circumstances, merely because P.Ws. 1, 2 and 3 belong to a particular community, to which the deceased belonged, they cannot be branded as interested witnesses. P.W. 11 has stated in his evidence that from the locality he examined Bithika Patnaik and Pyarimohan Patnaik and contacted Kiranabala Nayak and Rabi Mohapatra and S. S. Duttaray and he examined no other person. There is no suggestion by the defence that these persons have seen the occurrence and given a different version of the same. Non-examination of any passers by who might have witnessed the occurrence is of no consequence as it is common experience that outsiders normally do not come forward to report before the police about any crime which they have witnessed. Non-examination of any passers by who might have witnessed the occurrence is of no consequence as it is common experience that outsiders normally do not come forward to report before the police about any crime which they have witnessed. In the circustmances, non-examination of any independent witness is of no consequence. Of course, there are some laches on the part of the investigating agency but that will not be a ground to reject the prosecution case, which is otherwise proved through the testimony of ocular witnesses corroborated by the medical evidence and the recovery of the weapon of offence, M.O.I. which has been identified by the witnesses in Court. It is the consistent view of the Apex Court that if the Court is convinced that the testimony of occurrence witnesses is true, it can accept the same even if the role of the I.O. is suspicious or the investigation is defective, as has been held in Visveswaran v. State Rep. by S.D.M., (2003) 26 OCR (SC) 878 : ( AIR 2003 SC 2471 ) and State of Karnataka v. K. Yarappa Reddy, 1999 (4) Crimes 171 (SC) : AIR 2000 SC 185 . (13) ON careful scrutiny of the entire gamut of evidence on record, we are satisfied that it is accused Kasia, who dealt a blow by knife" to the chest of the deceased that proved fatal and caused his instantaneous death. Accused Bhasia and accused Pramod Mohanty were fully unarmed nad had not expected or foreseen that the informant party including the deceased would pass by them on the road and a quarrel would ultimately ensue during the course of which co-accused-Kasia would deal a knife blow to the deceased. In such circumstances, they cannot be said to have shared the intention of accused-Kasia to cause the death of the deceased. The prosecution version that they were holding the deceased only to facilitate accused-Kasia to stab him cannot be believed. In such circumstances, we are in agreement with the view of the trial court that accused Bata, Bhasia and Pramod are not guilty of any offence and their acquittal is justified. The prosecution version that they were holding the deceased only to facilitate accused-Kasia to stab him cannot be believed. In such circumstances, we are in agreement with the view of the trial court that accused Bata, Bhasia and Pramod are not guilty of any offence and their acquittal is justified. (14) IT is seen that accused-Kasia has dealt a single blow by knife to the deceased that caused his death and the occurrence took place in course of a quarrel because of the protest raised by the informant group that the accused persons were passing comments to their women folk. There appears to be no premeditation on the part of accused-Kasia to cause to death. However, considering the weapon used, the impact of the knife blow and that the knife blow was given by him with sufficent force on the vital part like left side chest that cut through the upper lobe of the left lung and the left pulmonary vein, it must be held that he intended to cause the death of the deceased. In the circumstances, appellant-Bhasia Behera must be held guilty under the first part of Section 304 of the IPC and not under Section 302 of the IPC. Accordingly, we set aside his conviction and sentence under Section 302 of the IPC and substitute the same with conviction under Section 304, Part-I and sentence him to undergo R.I. for ten years and to pay a fine of Rs. 5,000/-, in default to undergo further R.I. for six months thereunder. So far as the Government Appeal is concerned, the same has no merit as we find no infirmity in the order of acquittal of the respondents therein. Accordingly, the Criminal Appeal is partly allowed to the extent indicated above and the Government Appeal is dismissed. PRADIP MOHANTY, J.:- 22. I agree. Order accordingly.