JUDGMENT P.K. Saikia, J. 1. In this appeal, the judgment dated 11.6.10 passed by the learned Sessions Judge, North Tripura, Kailashahar, in case No. ST. (NT/K) 27 of 2009 convicting the accused-appellants under Section 304 Part-1 read with Section 34 of the Indian Penal Code (for short 'the IPC) and sentencing them to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 25,000/- each in default R.I. for further period of 2 years, has been challenged. The facts and circumstances necessary for disposal of the present appeal in short are that on 14.07.2008 at about 9 p.m. one Sudhangshu Shill, since deceased, as usual, was returning home from market. When he reached a place near Naba Jagriti Club of South Kacharghat area, the accused-appellant Shri Pannalal asked him to come down to him. On being so called, he got down from his bicycle and proceeded towards the accused-appellant Shri Pannalal. Other accused-appellants were also with accused Pannalal at that rime. 2. The moments he reached them, accused-appellants demanded him money so that they could purchase wine with it. The deceased did not agree to such demand for which accused-appellants started assaulting him. Some of them also stabbed him from behind. Injuring the deceased, accused-appellants left the place of occurrence leaving him at the place aforesaid. One Rickshaw puller then arrived there, met the injured and took him to RGM hospital for treatment. 3. However, on 15.07.2008, in the morning, Sudhangshu Shil succumbed to his injuries for which the mother of the deceased Sudhangshu Shil lodged an FIR with the Police with Kailashahar Police Station requesting the later to take action against the culprits in accordance with law. On the basis of such an FIR, Police registered a case and started investigating the same. 4. On completion of the investigation, police submitted charge sheet under Section 302 read with Section 34 of IPC against as many as six persons including one Shiben Dhar and forwarded them to the Court to stand their trial. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, hence, in due course, the case was committed to the Court of Sessions at Kailashahar. 5. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, hence, in due course, the case was committed to the Court of Sessions at Kailashahar. 5. On the commitment of the case and after hearing the parties, Learned Sessions Judge, Kailashahar, framed charge under 302 IPC read with Section 34 of IPC and charge, so framed, on being read over and explained to the accused-appellants, they pleaded not guilty and claimed to be tried. In the course of trial, the prosecution has examined as many as 15 witnesses including the IO and the Medical Officer. 6. The statement of accused persons under Section 313 Cr. P.C. were also recorded, accused plea was of total denial They, however, did not adduce any evidence on being required. The learned trial Court on the conclusion of the trial, held accused/appellants and one Shiben Dhar guilty of an offence punishable under Section 304 Part-I read with Section 34 IPC and convicted them accordingly and sentenced them to punishment as aforesaid. 7. It is that judgment which has been assailed herein in the appeal on the grounds more than one. Here, it is worth noting that the accused-convict Shiben Dhar did not prefer any appeal against the judgment aforesaid and now, he has been undergoing punishment, imposed upon him. 8. The learned counsel for accused-appellants, now, contends that the judgment of the trial Court is unsustainable in law since learned trial Court committed several errors of extremely serious nature in recording a verdict of guilt under Section 304-P-I read with Section 34 of the IPC against accused/ appellants. The alleged infirmities which visited the judgment, impugned, are:- (i) Dying declarations, reportedly made to the various witnesses, are not worthy of reliance as they contradict one another on material points; (ii) the prosecution premised its case on the testimonies of relatives of deceased to the total exclusion of neutral as well as natural witnesses and (iii) despite there being no evidence to show that incident in question was committed in prosecution of common intention of accused-appellants as well as one Shiben Dhar, the learned trial Court convicted all the accused persons of offence under Section 304-P-1 IPC on invoking provisions recorded in Section 34 IPC. (iv) Shri. Pradip Sabdakar was one of the most important witnesses in the case under consideration. He turned hostile. (iv) Shri. Pradip Sabdakar was one of the most important witnesses in the case under consideration. He turned hostile. Turning hostile to the prosecution itself, in the facts and circumstances of the present case, makes the entire prosecution case doubtful. 9. But all these important but significant infirmities were overlooked by the learned trial Court and came to the finding as aforesaid. The learned counsel for the accused-appellant has therefore urged this Court to set aside the judgment impugned on acquitting accused-appellants of the offence they are held guilty of. In support of the argument, advanced by learned counsel for accused/appellants reliance is placed on the following decisions: AIR 2011 SC 2501 : AIR 2011 SC 173 : AIR 2011 SC 1592 : AIR 2010 SC 1158 : (1973) 2 SCC 793 , 808 : (2010) 1 GLR 599 : (2010) 2 GLR 1 : AIR 2011 SC 200 : (2005) 9 SCC 765 : (1997) 7 SCC 156 : AIR 2009 SC 1487 : (2010) I GLR 219 : (2003) 6 SCC 4430 : (2006) 3 SCC 161 :(2010) 3 GLR 502 : (2005) 9 SCC 765 , 237 : (2000) 8 SCC 740 : (2004) 3 GLR 482 : (2002) 7 SCC 543 and (2011) 3 GLJ 532. 10. On the other hand, the learned Special PP appearing for the State contends that none of the allegations levelled against the judgment, impugned, has any leg to stand on and as such, objections, raised, are premised more on conjecture and fiction than on facts. According to the learned special PP, learned trial Court took enormous pains to discuss the materials on record in proper prospective having an eye to laws which hold the field. He has, therefore, urged this Court to affirm the judgment of the trial Court instead. The learned Special PP in order to bolster of his argument submitted the following decisions for the perusal of the Court. 2007 Cr. L.J. 1458 : AIR 1976 SC 1766 : AIR 2000 SC 210 : AIR 2003 SC 2859 and (2002) 6 SCC 81 . 11. I have carefully gone through the evidence on record having regard to the arguments advanced by the learned counsel for the parties. However, before we could address the arguments advanced by the learned counsel for the parties, I find it necessary to have a look into the evidence on record. 12. 11. I have carefully gone through the evidence on record having regard to the arguments advanced by the learned counsel for the parties. However, before we could address the arguments advanced by the learned counsel for the parties, I find it necessary to have a look into the evidence on record. 12. I have found that none witnessed the incident under consideration The prosecution has therefore founded its case basically on dying declarations. On perusal of the record, I have found that alleged dying declaration was made to Smt. Joymati Shil (P.W. 1), Smt. Khela Shil (P.W.2), Smt. Rinki Gope (P.W.3), Sri Binoy Kanti Shil @ Laru (P.W. 4), Sri Bhibash Nath, (P.W.9), Sri Gouranga Charan Shil (P.W.12), Sri Babul Gope (P.W.13). Being so, let me first see the testimonies of those P.Ws. 13. P.W. 1 Smt. Joymati Shil, the informant of this case has stated that on 14.07.08 at about 10:00 pm one Panna Lal Sharma informed her over phone that her son Sudhangshu got injured seriously and had been shifted to hospital at Kailashahar. Being so informed, she rushed to the hospital along with Rinki Gope and Babul Gope and found her son in the hospital in an injured condition. He was conscious at that moment. The injury which he sustained on his person seemed to have been caused by sharp weapon. 14. Her son told her that while he was returning home from market at about 8:30 pm, and when he reached the place of occurrence, Panna Lal met him and asked him to go to the shop of one Shiben Dhar. On arriving at the shop of Shiben Dhar, he found Padma Dhar, Gour Dhar, Padan Dhar and Mani Dey. Shiben Dhar was also there at that time. They asked him to give them money to purchase some alcoholic beverages. Her son, however, refused to give the money. 15. On his refusal, all accused persons including Panna Lal started beating him with fists and blows. But then, the accused Shiben Dhar hit him on his back with a dagger for which he collapsed on the ground and requested accused persons to take him to hospital for treatment. However, accused persons without paying heed to his request left the place of occurrence. One Rickshaw Puller arrived there at that time and took him to hospital. Next day in the morning, her son succumbed to the injuries. However, accused persons without paying heed to his request left the place of occurrence. One Rickshaw Puller arrived there at that time and took him to hospital. Next day in the morning, her son succumbed to the injuries. On his death, she lodged an FIR vide Ext. P/1. 16. In her cross examination, she has stated that her son worked as Linemen in Telephone Exchange Department and that Mani and Panna were the friends of her son. The suggestion that her son was in an unconscious state when she met him at hospital and the suggestion that accused persons aforesaid did not assault her son on the night of 14.07.08 were denied by P.W. 1. 17. P.W. 2 Smti. Khola Shill, a housewife deposes that on the fateful night at about 10:00 pm Babul Gope informed her that P.W. 1 requested her to go to hospital as the son of P.W. 1 was lying in hospital in an injured condition. Being the neighbour of the P.W. 1, she went to hospital and found two stabbed wounds on the back of Sudhangshu Shil. She was told by the deceased that while he was returning home, Mam and Panna Lal met him in front of the shop of one Gour. They called him to the shop where he found Gour, Padma, Shiben, Padan. 18. All those six persons then asked him to give them money to purchase alcohol. Such a demand was refused by the deceased for which all of them started assaulting him with fists and blows. However, it was accused Shiben Dhar who stabbed him on his back with a dagger twice. Being so attacked, he fell down on the ground and collapsed. In her cross examination, she has stated that while she was there at hospital, Doctor also visited the patient. 19. P.W. 3 Smti. Rinki Gope is the sister-in-law of the deceased. On 14.07.08 at about 9:30 pm, Joymati (P.W. 1) told her that she came to know from Panna Lal over phone that her son had already been hospitalised as he sustained wound. Coming to know about her brother-in-law being injured, she along with Joymati rushed to hospital. Her brother Babul Gope too went to hospital soon thereafter. On arriving at hospital, they found the son of P.W. 1 in an injured condition. 20. But they found him in a conscious state. Coming to know about her brother-in-law being injured, she along with Joymati rushed to hospital. Her brother Babul Gope too went to hospital soon thereafter. On arriving at hospital, they found the son of P.W. 1 in an injured condition. 20. But they found him in a conscious state. He told them that on the night in question when he arrived at the place of occurrence accused Panna Lal called him to the shop of Shiben Dhar. On arriving there, he found accused Shiben, Gour, Padma, Padan and Mani at such place. They asked him to give them some money, As he refused to pay them money, all the six persons assaulted him with fists and blows but it was accused Shiben Dhar who gave him two blows with dagger on his back. 21. Being so injured, he collapsed on the ground and sometime later, a Rickshaw Puller came there and took him to hospital. When the deceased was making a statement as to how he got injured, witnesses Babul Gope, Joymati were also present there. In her cross examination, she has stated that the accused persons asked the deceased to give them money so that they could purchase alcohol with it. 22. P.W. 4 Sri Mrinmoy Kanti Shil deposes that Joymati is his sister. One day, the wife of deceased informed him over phone that Sudhangshu got injured and was being hospitalised. On getting such information, he rushed to hospital and found his nephew there in an injured condition. His nephew told him that while he was returning home, accused Panna Lal met him at the place of occurrence which is situated just in front of the shop of accused Shiben. He also found there accused Gour, Padma, Padan, Mani, Shiben and Panna. 23. All of them asked him to give them some money so that they can purchase alcohol, however, he refused for which all accused persons started beating him by fists and blows but it was accused Shiben who stabbed him on his back with a dagger for which he collapsed on the ground, A Rickshaw Puller, thereafter, took him to hospital. 24. In his cross examination, he is found saying that there are many shops at the place of occurrence and that he did not inform the Police about the incident on the night in question. 24. In his cross examination, he is found saying that there are many shops at the place of occurrence and that he did not inform the Police about the incident on the night in question. The suggestion that Sudhangshu Shil was not in a conscious state when he met him at the hospital on the night of 14.07.08 was denied by P.W. 4. 25. P.W. 9 Sri Bibash Nath is an employee of RMG Hospital, Kailashwar. According to him, on 14.07.08, he was working at RMG Hospital. Sudhangshu Shil, since deceased, came to the emergency ward of the hospital at about 9:30 pm. As he was known to him, he enquired him as to what had happened to him. In reply to such enquiry, the injured had told him that while he was returning home, the accused Panna Lal met him near Naba Jagriti Club. He also found Gour, Padma, Padan, Mani and Shiben at such place. 26. All those boys then asked him to give some money so that they could purchase liquor. As the injured refused to pay such money, all accused persons started assaulting him with fists and blows The accused Panna Lal then administered a blow with a dagger on his back. Soon thereafter, the accused Panna Lal instigated Shiben Dhar to strike the victim once again. Being so instigated, the accused Shiben planted second dagger blow on the back of the aforesaid person. 27. Sudhangshu, since deceased, was brought to hospital by a Rickshaw Puller. Next day, he came to know that Sudhangshu has died. In his cross examination, he denied the suggestion that he did not tell the Police that the accused Panna Lal instigated the accused Shiben to give the victim second dagger blow on his back, that he did not talk to the victim on the night in question and that he gave evidence against accused persons falsely and without there being any rhyme and reason. 28. So, situated, let us consider the evidence of the P.W. 10 Dr. Keshab Sen Laskar, the Medical Officer who attended the deceased on the night in question when the deceased sustained wound on his back. He is also the doctor who conducted the post mortem examination on the body of the deceased next day i.e. on 15.07.2008. 29. 28. So, situated, let us consider the evidence of the P.W. 10 Dr. Keshab Sen Laskar, the Medical Officer who attended the deceased on the night in question when the deceased sustained wound on his back. He is also the doctor who conducted the post mortem examination on the body of the deceased next day i.e. on 15.07.2008. 29. According to him, when he examined Sudhangshu Shil at RGM hospital, on 14.07.2008, he was in a conscious state of mind. In fact he did not anticipated that he would die. On 15.07.2008, he conducted post mortem examination on his body and found one sharp cut wound measuring 1 1/2" x 1 1/2" x abdominal cavity depth, placed over back right side. 2. Abrasion 1/2" x 1/2", over the left lumber region (back). 30. It was penetrating injury which bifurcated the right kidney. He opined that the cause of death was due to hemorrhagic shock caused by injury to the right kidney and death was homicidal in nature. Ext. 3 is the post mortem report, he prepared in connection with death of aforesaid person. In his cross-examination, he admitted that he did not refer the patient to other hospital. It is also his evidence that he did not inform the police about the alleged incident. 31. The other witnesses whose testimonies are yet to be reproduced are P.W 5, P.W 6, P.W 7, P.W 8, P.W 11, P.W 14 and P.W 15. P.W 5, Sri Samiran Deb is the scribe. According to him, on 15.07.2008 in the morning at about 5 p.m. he wrote the FIR (Ext. P.1) on being required by P.W 1 Smt. Joymati Shil. In his cross-examination, he admitted that he cannot recollect if the informant told her that Siben Dhar had stabbed her son. 32. P.W 6 Sri Bijendra Chakraborty, deposes that he heard the incident from others. P.W. 8 Sri Nilimesh Pal deposed that on 15.07.2008, he found the mother of the deceased weeping in her shop and came to know from her that her son was murdered by Siben Dhar. 33. P.W 11 Sri Apu Ghosh, deposes that he came to know from the informant that her son has been murdered by Shiben Dhar and five other accused persons. About 15 days after the alleged incident, police came to their village taking Shiben Dhar with them. 33. P.W 11 Sri Apu Ghosh, deposes that he came to know from the informant that her son has been murdered by Shiben Dhar and five other accused persons. About 15 days after the alleged incident, police came to their village taking Shiben Dhar with them. P.W. 11 along with the said police party and the accused Shiben Dhar went to the house of accused Shiben Dhar. 34. Shiben Dhar took a dagger from the north side of a pond which was situated in the compound of the accused person. Dagger was about 1 foot in length. Police seized the dagger on the strength of seizure list (Ext. P2). In his cross-examination, he stated that the pond was in open area. 35. P.W.7 Sri Pradip Sabdakar, deposes that he knew the deceased. On the fateful night at about 10:30 p.m., as he arrived a place near the shop of accused Shiben Dhar, the accused Padma and Padhan called him and asked him to take the injured to his house. However, the deceased asked him to take him to hospital instead. Accordingly, he took the victim to hospital. He also saw a bandage on the back of the deceased. 36. When he enquired the accused Pana Lal as why the deceased had a bandage on his back, he told him that the deceased suffered an injury on his back. Accordingly, he took the injured to hospital. As soon as they arrived at hospital, the deceased dropped down on the ground. On the next day, he came to know that he succumbed to his injuries. He also came to know that Shiben Dhar had hit and injured the deceased on the previous night. He was declared hostile. 37. P.W. 14 Sri Bidhu Bhusan Das is the IO of this case. According to him, on 15.07.08 he was posted as O/C of Kailashahar PS. On that day, he received an FIR from P.W. 1. On the basis of such an FIR, Kailashahar P.S. case No. 129 of 2008 was registered and he himself took up the investigation. During the course of investigation, he visited the place of occurrence, conducted inquest on the dead body and prepared a report in that connection (Ext. P.3). 38. As the investigation proceeds, he sent the dead body to hospital for post mortem examination. During the course of investigation, he visited the place of occurrence, conducted inquest on the dead body and prepared a report in that connection (Ext. P.3). 38. As the investigation proceeds, he sent the dead body to hospital for post mortem examination. He also seized the wearing apparels of the deceased on the strength of seizure list in Exhibit P.2 series, examined the witnesses, arrested accused persons including Shiben Dhar who went underground soon after the alleged incident and on the basis of statement made to him by accused Shiben Dhar, he recovered a dagger which was concealed in a pond in the premises of accused Shiben Dhar. 39. According to P.W. 14 the accused also made a confessional statement before him as well as before the Magistrate during the course of investigation. The statement which the accused had made while he was in custody and on the basis of which police subsequently recovered the dagger was, proved as Exbt. PA. He also seized the dagger (material object 1) on the strength of Exhibit P.2 series. During the course of investigation, he also recorded the statement of witness Pradip Sabdakar which was proved as Ext. P.5. 40. In his cross-examination, he stated that the dagger which was recovered from the pond was not kept In a sealed cover, that there were many shops at the place of occurrence, that Babul Gope did not tell him that Panna Lal caught the deceased from behind, that he prepared two sketch maps of the place of occurrence and that in 2nd sketch map, the residence of Sti Paritosh Pal which was in the vicinity of the place of occurrence was not shown. 41. A bare perusal of evidence on record reveals that this case is entirely based on dying declarations reportedly made before number of persons who are examined herein these case witnesses from the prosecution side. Being so, it needs to be seen if such dying declarations are worthy of reliance. Law relating to dying declaration is well settled. 42. There is catena of decisions on this point. However, without multiplying those decisions, we can gainfully peruse the decision of Hon'ble Supreme Court rendered in the case of Salim Gulab Pathan Vs. State of Maharashtra reported in (2012) 6 SCC 606 which held as follows:- 18. In Atbir v. Govt. Law relating to dying declaration is well settled. 42. There is catena of decisions on this point. However, without multiplying those decisions, we can gainfully peruse the decision of Hon'ble Supreme Court rendered in the case of Salim Gulab Pathan Vs. State of Maharashtra reported in (2012) 6 SCC 606 which held as follows:- 18. In Atbir v. Govt. (NCT of Delhi) after an elaborate consideration of several decisions of this Court, the following propositions have been laid down with regard to the admissibility of a dying declaration: (i) Dying declaration can be the sole basis of conviction if it inspires full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of turoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is brief statement, it is not be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. 43. Similar view has been rendered by our own High Court, in the of the State of Assam Vs. Abinash Dutta reported in 1982 Cri. LJ 400, wherein it was held as follows:- 13. The law relating to dying declaration is well settled by now. 43. Similar view has been rendered by our own High Court, in the of the State of Assam Vs. Abinash Dutta reported in 1982 Cri. LJ 400, wherein it was held as follows:- 13. The law relating to dying declaration is well settled by now. It is found to be true, to ascertain which close scrutiny is required, it can be acted upon without any corroboration. That has been the consistent opinion of the Supreme Court since the decision of Khusal Rao v. State of Bombay 1958 Cri. LJ 106, which was affirmed by a Bench of five Judges in Tarachand v. State of Maharashtra [1962] 2 SCR 775: Thus the contrary view expressed in Ram Nam v. State of Madh Pra AIR 1953 SC 420 stands overruled, See Kusa v. State of Orissa 1980 Cri. LJ 408. 44. So situated, let me first focus my attention on the dying declarations aforesaid. The P.W. 1 Smt. Joymati Shil, the mother of the deceased, is found saying in her evidence that when she met her son at hospital on the fateful night, he told her that as he arrived at the place of occurrence on way home, accused Panna Lal stopped him at such place and asked him to go to the shop of Shiben Dhar. As he reached a place near the aforesaid shop, all six accused persons demanded him to pay them money to enable them to purchase wine with it. 45. As he refused to pay the money as demanded by accused persons, all of them started assaulting him with fists and blows. However, it was accused Shiben Dhar who planted a blow with a dagger on his back for which he fell down on the ground. But he requested the accused persons to inform his mother about such incident. 46. All other P.Ws., particularly P.W. 4, P.W.12 and P.W.13, before whom the deceased reportedly made statements in nature of dying declarations, rendered an account of the incident in question which amazingly match with the account made by P.W. 1 on the point dying declaration, so made to her by the deceased before his death. The evidence rendered by P.W. 1, P.W. 4, P.W. 12 and P.W. 13, coupled with evidence tendered by other P.Ws. clearly establish that on the fateful night, the deceased made a statement in the nature of dying declarations. 47. The evidence rendered by P.W. 1, P.W. 4, P.W. 12 and P.W. 13, coupled with evidence tendered by other P.Ws. clearly establish that on the fateful night, the deceased made a statement in the nature of dying declarations. 47. On my further perusal of the evidence of those P.Ws., particularly, P.W. 1, P.W. 4, P.W. 12 and P.W. 13, I have found that their evidence on the point of dying declarations are found to be cogent and consistent on all the material points and such evidence clearly demonstrates that on the night in question all accused persons assaulted the deceased at the place of occurrence with fists and blows. But it was accused Shiben Dhar who gave him fatal blow on his back. 48. In this context, it may be stated that the P.W. 2, P.W. 3 and P.W. 9 too claim that they heard the deceased making statements in the nature of dying declarations. However, the evidence they rendered on the point of such dying declarations is found to be somewhat different; from the other P.Ws., for, these three P.Ws. also depose that they heard the deceased telling them that accused Shri Shiben Dhar planted two dagger blows on the back of the deceased although all other P.Ws. very clearly state that accused Shri Shiben Dhar stabbed once on the back of the deceased on the night in question. 49. Not only that, P.W.9 even went a step further to claim that the accused Shiben Dhar planted the second blow on the back of the deceased on being instigated by accused Panna Lal though none of the other P.Ws. rendering evidence on dying declarations uttered any word about accused Shiben Dhar planting 2nd dagger blow on the back of deceased on the instigation of accused Panna Lal. 50. Banking on those inconsistencies, the learned counsel for accused/appellants has, now, argued that such inconsistencies are not only the proof of the P.W. 2, P.W. 3 and P.W. 9 being untruthful but these are also the evidence of other P.Ws. being equally unreliable and as such, learned defence counsel urges this Court not to place any reliance on the prosecution case based on dying declarations. Now, the question _______ is ________can we uphold the argument, so put forward by learned defence counsel? 51. being equally unreliable and as such, learned defence counsel urges this Court not to place any reliance on the prosecution case based on dying declarations. Now, the question _______ is ________can we uphold the argument, so put forward by learned defence counsel? 51. My dispassionate: answer to such a query is a clear 'NO', for, by now, I have found that there is unquestionable evidence to show that accused Shri Shiben Dhar planted only one dagger blow on the back of the deceased on the night of 14.07.08. Such evidence has found unfettered corroboration from the evidence rendered by the doctor who attended the victim on the night in question and who conducted the post mortem examination on the dead body on 15.07.2008 as well. 52. In his evidence, Doctor very clearly states that he found only sharp cut wound on the back of the deceased though he found one abrasion of smaller size too on his back. I do not notice any reliable evidence on record to entertain a view that such an abrasion was caused by dagger only. Thus, I have found no difficulty in holding that the claim of these three witnesses that accused Shiben Dhar planted a second dagger blow on the back of the deceased on the night aforesaid does not have any element of truth in it. 53. In so far the claim of the P.W. 9 that accused Shri Shiben Dhar gave the deceased 2nd dagger blow on being instigated by accused Pannalal is concerned, it may be stated that I have already found that there is no evidence at all to show that accused Shiben Dhar administered a 2nd blow with a dagger on any of the body part of the deceased. In the face of such a revelation, the claim of the P.W. 9 that accused Shiben Dhar administered 2nd dagger blow on the instigation of accused Panna Lal is found to be equally away from the truth. 54. Some other factors have again reinforced the above decision of mine. As confirmed by the IO (P.W. 14), P.W. 9, during the course of investigation did not inform him that accused Shiben Dhar gave the deceased 2nd dagger blow on being instigated by accused Pannalal. This clearly shows that P.W. 9 makes such a vital statement for the first time before the Court during trial only. As confirmed by the IO (P.W. 14), P.W. 9, during the course of investigation did not inform him that accused Shiben Dhar gave the deceased 2nd dagger blow on being instigated by accused Pannalal. This clearly shows that P.W. 9 makes such a vital statement for the first time before the Court during trial only. The non disclosure of such vital information to the Police during investigation takes such an omission on the part of P.W. 9 within the purview of the term 'contradiction' as contemplated in Section 162 Cr. P.C. 55. Here, it may be stated that it is not a proposition of law that a statement which comes within the purview of the term 'contradiction' makes the whole testimony of witness unreliable quite automatically. It can be used for discrediting only the portion of evidence contradicted. Therefore, the other part of evidence of the witness, whose evidence, so stands contradicted in part, may still be to be considered and may, still, be relied on. But such an exercise needs to be done in the light of other materials found available on record. 56. I have already found that the claim of the P.W. 2 and P.W. 3 that accused Shiben Dhar gave the deceased a 2nd dagger blow and the claim of P.W. 9 that accused Shiben Dhar administered the 2nd blow on being instigated by accused Pannalal are found to be untruthful ones. Now, the question -is -should Court reject the entire evidence of P.W. 2, P.W. 3 and P.W. 9 for their rendering evidence which is not wholly truthful? 57. On scanning their evidence, I have found that the evidence of each of those three witnesses has two parts. One part of their evidence is found to be truthful one-since-same are found to be in total conformity with the evidence of other P.Ws. What is important to note is that the truthful portion of the evidence of those three P.Ws. can also be segregated from the rest which is found to be laced with falsehood and that too, without damaging the credibility of the truthful portion. 58. What is important to note is that the truthful portion of the evidence of those three P.Ws. can also be segregated from the rest which is found to be laced with falsehood and that too, without damaging the credibility of the truthful portion. 58. It has been held by the Courts again and again that when the evidence of witness(s) is found to be the admixture of truth and falsehood, then truthful part can still be utilised in considering the dispute in question if the truthful portion can be segregated from the rest of the evidence and if same can done without destroying the intrinsic implication of the truthful part of such evidence. Testimonies of P.W. 2, P.W. 3 and P.W. 9, as stated above, clearly withstand the test, so laid down by the Courts. 59. Thus, the testimonies of PW 2, PW 3 and PW 9 which are found to be truthful on the main again lend more and more assurance as to the correctness to the dying declarations reproduced before this Court by PW 1, PW 4, PW 12 and PW 13. These revelations also adequately answer the contention of the learned counsel for appellants that the prosecution case is required to be thrown away for these PWs not being found consistent on the point of dying declarations aforesaid. 60. Learned counsel for accused/appellants has further contended that there is no medical evidence to show that the deceased was in a position to make a declaration in the nature of dying declarations. Quite contrary to it, there is evidence; in the form of testimony of the P.W. 7 (who admittedly took the injured to hospital in his rickshaw a little after the alleged incident) to show that the deceased collapsed on reaching the hospital. This is, according to appellants, an emphatic testimony to the fact that the deceased slipped to swoon long before the other P.Ws. met him at hospital. 61. Advancing an argument to fortify such an allegation, learned counsel for accused/appellants urges this Court not to place any reliance on any of the dying declarations laid bare before the Court by P.Ws. during trial. I have found that such an argument, premised more on fiction than on facts. It is true that P.W. 7 does depose: that when he arrived at hospital taking the injured in his rickshaw, the injured almost collapsed. 62. during trial. I have found that such an argument, premised more on fiction than on facts. It is true that P.W. 7 does depose: that when he arrived at hospital taking the injured in his rickshaw, the injured almost collapsed. 62. However, his evidence cannot be read in isolation brushing aside other well proved facts on record which have emerged from the testimonies of other principal witnesses. It is more so, when prosecution got P.W. 7 declared hostile to it. I have already found that there is overwhelming evidence on record to show that the deceased remained mentally fit long after he met his fate at the place of occurrence on the night in question. 63. Equally important, the Doctor who attended him at hospital found him in a state of health that he did not even anticipate that the deceased would die so early. These are prolific testimony to the fact that deceased was in a fit condition to make dying declarations when the witnesses aforesaid met him at hospital on the night of 14.07.2008. Thus, the allegation, mount on this count, could cause no harm to the prosecution case. 64. In the context of the credibility of a witness who is declared hostile, it may be stated that it is a settled law that declaring a witness hostile does not mean that his entire evidence is to be washed away. Rather it has been repeatedly held that despite a witness being declared hostile, his testimony may still be considered and acted upon if some portion of the evidence is found truthful. In other words, his entire evidence need not be discarded as desired by prosecution side. 65. On a closure reading of the evidence of P.W. 7, who is declared hostile, I have found that that such a witness did not tell the whole truth before the Court. But then, his evidence that on the fateful night, he found appellants as well as accused Shiben Dhar at the place of occurrence, that he found deceased with a bandage on his back, and that, as desired by the deceased, he took him to hospital are found to be the testimony totally in conformity with the evidence, rendered by other P.Ws. 66. 66. Being so, part of the testimony of P.W. 7 is found truthful and such truthful testimony of the P.W. 7 can very well be acted upon in ascertaining the guilt or otherwise of accused/appellants. On considering evidence of P.W. 7, in the light of other evidence on record, I have found that truthful portion of evidence of such a witness instead of damaging the prosecution case confirms more and more the correctness of case under consideration. 67. The defence has also referred me to some other contradictions, inconsistencies in the testimonies rendered by P.Ws. I have found that there are some contradictions/inconsistencies in the testimonies rendered by P.Ws. But it must be stated that those inconsistencies occurred, not on the main, but on the peripheral aspects of the prosecution case and presence of such infirmities, instead of making the prosecution case doubtful, makes witnesses more and more reliable. 68. Coming to the allegation that prosecution side confines its case only to the witnesses who are related to the deceased excluding all neutral and impartial witnesses, I have found that such allegation too is without any basis whatsoever. On the perusal of the record, it is found that some of the witnesses, such as, P.W. 9 are no way related to the deceased or his family. 69. These besides, there is no evidence on record to show that any persons who are not related to deceased or his family and who witnessed the incident in question was not shown as witness in the case under consideration. Being so, I have no hesitation in coming to the conclusion that this allegation too is totally unequal to the task of derailing the prosecution case. 70. Prosecution has also placed reliance on the alleged disclosure statement. According to prosecution, Police recovered the weapon of offence on the basis of disclosure statement rendered by accused Shiben Dhar when he was in police custody. However, on perusal of the record, I have found that no such disclosure statement exists. 71. Thus, as been done by learned Trial Court, I too find no difficulty in concluding that the claim of recovery of weapon of offence at the behest of accused Shiben Dhar from a place where it was allegedly concealed remains far from being established. But then, there is copious and emphatic evidence to show that the dagger (Mat. 71. Thus, as been done by learned Trial Court, I too find no difficulty in concluding that the claim of recovery of weapon of offence at the behest of accused Shiben Dhar from a place where it was allegedly concealed remains far from being established. But then, there is copious and emphatic evidence to show that the dagger (Mat. Object 1) was recovered from the pond of one Shri Nani Gopal of Kacharghat. 72. Again, there is evidence to show that Mat. Object dagger was recovered from the pond of Shri Nani Gopal of Kacharghat in presence of very many witnesses including Shri Apu Ghosh (P.W. 11) on being retrieved by accused Shiben Dhar. Retrieving of a dagger from the pond aforesaid with help of accused Shiben Dhar, however lends more creditability to the prosecution case under scrutiny. 73. Now, the question is can we hold all accused/appellants guilty of offence under Section 304 Pt. I IPC (an offence which is already held: to have been committed by accused Shiben Dhar) on invoking the provisions incorporated in Section 34 IPC? The learned Trial Court answered the question in affirmative on holding that all accused persons are vicariously liable for the offence actually committed by accused Shiben Dhar. 74. Here, it needs to be stated that Section 34 IPC recognizes the principles of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another with whom he shared common intention. It is a rule of evidence and does not create substantive offence. 75. A common intention presupposes prior concert, which requires a pre-arranged plan of accused persons participating in an offence. Such pre-concert or pre-planning may occur on the spot or during the course of commission of offence but the crucial test is that such plan must proceed the act constituting an offence. The existence of common intention is a question of fact and can be gathered from the genesis and nature of quarrel. 76. Further more, nature of weapons, used in commission of the offence, nature of wounds and targeted body parts of the victim, conduct of accused, persons before and after the incident in question would also help the Court in ascertaining the existence of common intention among the participating accused persons. 76. Further more, nature of weapons, used in commission of the offence, nature of wounds and targeted body parts of the victim, conduct of accused, persons before and after the incident in question would also help the Court in ascertaining the existence of common intention among the participating accused persons. In that connection, we can profitably peruse the decision of the Hon'ble Supreme Court in the case of Balbir Singh & Ors. Vs. State of Punjab & Ors., reported in (2005) 9 SCC 299 . 77. In the case Balbir Singh (supra), accused/appellant wanted to teach a lesson to deceased since he had purchased a plot of land which appellants had expected to inherit from the owner thereof and in that process one of the appellants 'S' caught hold of deceased so as to enable the other appellants to assault the deceased. 78. Appellant 'S' also gave a fatal blow with wooden stick causing fracture of ribs which pierced his lung tissues resulting his death. The trial Court convicted accused/appellant their number being four of offence under Section 302 read with 34 IPC. On appeal, High Court affirmed the conviction. 79. On the above facts, Hon'ble Supreme Court held as follows:- On careful analysis of the prosecution evidence and the role played by each one of the appellants, we are of the view that the evidence does not show that these appellants shared a common intention to cause the death of the deceased. However, appellant Sikandar Singh caused injuries on deceased Tara Singh which proved to be fatal at the end. The act committed by Sikandar Singh would come within the offence punishable under Section 304 Part I IPC as he could be attributed with the knowledge that the injury caused by him is likely to cause death. The grievous injuries caused by other appellants, namely, Gora Singh and Balbir Singh, would fall within the mischief of Section 326 IPC. 80. In the case of Chaturbhuj Pandit & Ors. Vs. State of Bihar (Now Jharkhand) reported in (2005) 12 SCC 300, Hon'ble Supreme Court expressed similar view. In the case of Chaturbhuj Pandit & Ors. (supra), four appellants came to the house of informant with a view to demolish boundary wall which according to them -was encroachment on their land. Protest having been raised, one of the appellants 'S' set the roof of a thatched house on fire. 81. In the case of Chaturbhuj Pandit & Ors. (supra), four appellants came to the house of informant with a view to demolish boundary wall which according to them -was encroachment on their land. Protest having been raised, one of the appellants 'S' set the roof of a thatched house on fire. 81. It was held that on those facts, it cannot be inferred that all the appellants shared the common intention of setting roof of the informant house on fire. It was, therefore, held that setting roof of the house on fire is the individual act of the appellant 'S' for which he alone, and none else, was liable to be convicted under Section 436 of IPC. 82. Coming back to our case, I have found that on the materials on record, it cannot be said that accused/appellants and accused Shiben Dhar shared a common intention to inflict murderous assault on the deceased. Rather, on the materials on record, it can safely be concluded that herein, there was no prior meeting of minds among those appellants and accused Shiben Dhar to conduct lethal assault on the deceased. Their intention was very clear. It was to assault the deceased since they got angry for deceased's refusal to pay them money. 83. The fact that accused/appellants met the deceased at the place of occurrence all of a sudden, the fact that there was no record of previous enmity between the deceased and appellants and the fact that, there was absolutely no evidence on record to show that accused/appellants were aware of accused Shiben Dhar having a dagger with him on the night in question doubly affirm that main intention of accused/appellants was not to kill him but to assault him, and that too, with fists and blows only. 84. Pertinent it is to mention here that there is irrefutable evidence to show that some of accused/appellants felt remorse for what they had done to the deceased on the night in question and such a state of affairs is found evident from the fact that they asked the P.W. 7 to take the injured Shill to his house and that they also alerted the family members of the deceased about his sustaining injury. These again speak loud and clear that accused/appellants did not intend to kill the deceased who happened to be their friend as well. 85. These again speak loud and clear that accused/appellants did not intend to kill the deceased who happened to be their friend as well. 85. The accused/appellants, therefore, cannot be held responsible for individual act of accused Shiben Dhar which he did on his own accord without the knowledge or consent of accused/appellants. I am, therefore, of the view that accused/appellants cannot be held guilty of offence under Section 304 Pt. I IPC on invoking the provisions of Section 34 IPC. 86. I have already found that all accused/appellants assaulted the deceased on the night aforesaid causing pain to him. Thus, each of the accused/appellants was responsible for committing offence under Section 323 IPC. Being so, instead of convicting them under Section 304 Pt. 1 IPC read with Section 34 IPC, they are to be convicted of offence under Section 323 IPC. 87. In the result, each of accused/appellants stands convicted under Section 323 IPC and each of them is sentenced to suffer RI for one year for offence under Section 323 IPC and the fine of Rs. 2000/- each in default RI for another 15 days. Needless to say that the period in detention is to be set off against sentences, imposed. 88. Consequently, the appeal is partly allowed and the judgment, impugned stands modified accordingly. 89. Return the LCR. 90. In view of the provision prescribed by Section 357(A) Cr. P.C., the victim or his/her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake or brevity and in the light of our discussions, made in Criminal Appeal No. 93(J)/2005 (disposed on 22.12.2011), with regard to the victim compensation as provided by Section 357(A) Cr. P.C., we make the following directions:- (A) As an interim measure an amount of Rs. 50,000/- shall be deposited by the State Government with the District Legal Services Authority of Kailashahar District, North Tripura within a period of two months from date of receipt of the copy of the judgment. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependents), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependents), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation. (B) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Service Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. (C) It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there, is no dependent(s) or that the dependants) of the deceased/victim does not required any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/- without delay, in favour of the State Government. Let a copy of this judgment and order be furnished to learned Spl. Public Prosecutor, Tripura and the Chief Secretary to the Govt. of Tripura as well as to the State Legal Services Authority, Tripura for doing their needful as indicated above.