JUDGMENT Girish Chandra Gupta, J. 1. ON 16th October, 2000, a written complaint was lodged at 13.15 hrs. by Hasan Jamadar, alleging that at about 11.30 hrs. while the complainant and others were taking tea at the stall of Farman Gazi, four persons viz Jaharul Hq. @ Baro Mia, his younger brother Azizul Sk Dafadar also known as Choto Mia, Bablu Molla and Ayub Molla came to the aforesaid tea stall. Baro Mia drew a knife from the shop of Pagla Gazi; held the same at the neck of Kalam and threatened to murder him. The persons present at the tea stall including the complainant caught the knife. Baramia in the circumstances dropped the knife and took out instead a pipegun from his waist. Saukat, who was sitting by the side of the said Kalam sought to escape. He was shot at and he died at the spot. Kalam also sought to escape. Chotomia and the said Ayub chased him. He was caught and shot at by the said Ayub. Seeing the incident Roshan Jamadar ran for life. Chotomia shot a bullet targeting him. He as a result was injured. Thereafter all the four accused persons left the place of occurrence. They also took along the motor cycle of the victim Soukat. Kalam died on the way to hospital. A charge sheet was filed by the police against all the four accused persons under section 302 and 379 read with section 34 of the Indian Penal Code. The accused Baramia and the accused Ayub continued to abscond. The case was as such split up and the trial could proceed only against the accused Chotamia and Bablu Sk. for offences punishable under sections 302, 379, 307, 411 read with section 34 of the Indian Penal Code, which culminated in an order of conviction against the accused Chotamia of all the aforesaid charges but the accused Bablu Sk. was acquitted altogether by a judgment dated 27th May, 2004 passed by the learned Additional Sessions Judge, 5th Court, North 24 Parganas, Barasat. By an order dated 29th May, 2004, the convict Chotamia was sentenced to rigorous imprisonment for three years as also to pay fine of Rs. 1,000/- in default to suffer further simple imprisonment for a month for the offence punishable under section 379 of the Indian Penal Code. By an order dated 29th May, 2004, the convict Chotamia was sentenced to rigorous imprisonment for three years as also to pay fine of Rs. 1,000/- in default to suffer further simple imprisonment for a month for the offence punishable under section 379 of the Indian Penal Code. He was also sentenced to rigorous imprisonment for three years as also to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for a month for the offence punishable under section 411 of the Indian Penal Code. He was sentenced to imprisonment for life as also to pay a fine of Rs. 5,000/- in default to suffer further simple imprisonment for 5 months for the offence punishable under section 302 of the Indian Penal Code and identical punishment was also awarded for the offence punishable under section 307 of the Indian Penal Code. All the sentences were however directed to run concurrently. The said Chotamia preferred the aforesaid appeal being CRA No. 438 of 2004. 2. DURING the pendency of the aforesaid appeal, the accused Boramia and the accused Ayub were caught and tried and both were convicted by a judgment dated 22nd September, 2008 for the offence punishable under section 302 and 307 and read with section 34 of the IPC. By an order dated 23rd September, 2008 they were both sentenced to imprisonment for life for the offence punishable under section 302 read with section 34 of the Indian Penal Code. No separate sentence for the offence punishable under section 307 read with section 34 of the Indian Penal Code was however passed. The convict Ayub Ali has preferred the aforesaid appeal registered as CRA No. 711 of 2008 and the convict Baramia has preferred the aforesaid appeal registered as CRA 733 of 2008 against the judgment and order dated 22nd September, 2008 and 23rd September, 2008 respectively. This is how three appeals have come up before us arising out of the same transaction. 3. THE trial was held in two parts. THE first part of the trial ended in 2004 and the second part of the trial ended in 2008. Therefore, for convenience we shall hereinafter refer to the conviction made in 2004 as the first part and the conviction made in 2008 as the second part. 28 witnesses were examined in the first part. 28 witnesses were also examined in the second part. Therefore, for convenience we shall hereinafter refer to the conviction made in 2004 as the first part and the conviction made in 2008 as the second part. 28 witnesses were examined in the first part. 28 witnesses were also examined in the second part. However, P.W.20 Barkat Koyal and P.W.27 Abdul Masud Molla examined in the first part were not examined in the second part. THE said Barkat Koyal relatively was an insignificant witnesses. He merely deposed he had a motor cycle repairing shop and one Sahajuddin Molla had given a motor cycle to him for repairing. THE said Abdul Masud Molla was a seizure list witness. THE rest 26 witnesses, examined in the first part, were also examined in the second part. Two witnesses namely Harendra nath Saha (P.W.22) and Sailan Kr. Mondal (P.W.24) both official witnesses were" examined in the second part who had not been examined earlier. This is how the tally of the witnesses remained at 28 in both parts of the trial. 4. AT the hearing of the appeals the appellant Chotamia was represented by Mr. Singh (CRA No. 438 of 2004), the appellant Baramia was represented by Mr. Mukherjee (CRA No. 733 of 2008) and the appellant Ayub Ali Molla was represented by Mr. Sanyal (CRA No. 711 of 2008). 5. MR. Singh besides assailing the credibility of the witnesses, which we shall deal with at the time of assessing the evidence on the record, submitted that the examination of the appellant Chotamia under section 313 of the Indian Penal Code was perfunctorily made. The circumstances taken into account for the purpose of convicting the appellant Chotamia were not put to him specifically and therefore those circumstances cannot be relied upon for the purpose of upholding the conviction of the appellant Chotamia. He in support of his submission relied upon the judgment in the case of Lallu Manjhi and another v. State of Jharkhand reported in 2003 SCC (Crl) 544. He in particular relied upon paragraph 14 wherein following views were taken: "Incidentally, it may also be stated that the manner in which the trial court has recorded the statements of the accused persons under section 313 Cr.PC is far from satisfactory. The entire prosecution case running into very many details has been summed up into just 5 questions asked to each of the accused persons. The entire prosecution case running into very many details has been summed up into just 5 questions asked to each of the accused persons. It is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the tacriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording the conviction of the accused persons." 6. THE second judgment relied upon by him was in the case of Naval Kishore Singh v. State of Bihar reported in 2004 SCC (Crl.) 1967 and he relied upon paragraph 5 of the judgment specifically which reads as follows: "Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining the accused under section 313 Cr,PC our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. THE first question was whether he heard the statement of the wit lesses and the second question was that the evidence given by the witnesses showed that he committed the murder of the deceased and whether he had to say anything in defence. THE questioning of the accused under section 313 Cr.PC was done in the most unsatisfactory manner. Under section 313 Cr.PC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. THE trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and lie section 313 examination shall not be carried out as empty formality. THE trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and lie section 313 examination shall not be carried out as empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence." 7. THE third judgment relied upon by him in support of his submission was in the case of Shaikh Maqsood v. State of Maharastra reported in E.Cr. N 2009 (3) 649 (SC)=2009 AIR SCW 4308. He relied on paragraph 9 of the judgment which reads as follows : 'THE importance of observing faithfully and fairly the provisions of section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. THE questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand." 8. THE fourth and the last judgment relied upon by him is in the case of State of Punjab v. Hart Singh and Others reported in E.Cr.N 2009 (4) (SC) 1175 for the proposition that the circumstances about which the accused was not asked to explain, cannot be used against him. 9. IT can however be pointed out that considering the law laid down earlier by the Supreme Court as also in the case of State of Punjab v. Hari Singh (supra) we offered to examine the appellant represented by Mr. 9. IT can however be pointed out that considering the law laid down earlier by the Supreme Court as also in the case of State of Punjab v. Hari Singh (supra) we offered to examine the appellant represented by Mr. Singh as also the other appellants if they so desired under section 313 of the Code of Criminal Procedure so that appropriate opportunity is afforded to explain the circumstances appearing against them. But the learned Counsel including Mr. Singh were not agreeable to accept this offer. 10. MR. Sanyal, learned Advocate representing the appellant Ayub Ali (CRA No. 733 of 2008) besides assailing the credibility of the witnesses submitted that the entire case has been cooked up by the police seeking to falsely implicate the accused persons and in particular his client the appellant Ayub Ali. He added that the fact that the names of the assailants were not indicated in the inquest report is a pointer to show that the identity of the assailant was settled at a leisure which has nothing to do with the reality. 11. MR. Mukhjerjee, learned Advocate appearing for the appellant Baramia (CRA No. 438 of 2004) besides assailing the credibility of the witnesses made the following submissions: (a) In the second part of the trial the witnesses for the prosecution could not have been examined-in-chief afresh. The procedure adopted by the learned trial Court obviously at the instance of the prosecution, according to him afforded an opportunity to fill up the lacuna and therefore the entire trial in the second part was vitiated. He submitted that a departure had been made in the case of the examination of S.I. Guruprasad Chatterjee the I.O. in this case. He, it would appear, was not examined-in-chief in the second part of the trial and his earlier examination-in-chief was adopted. According to MR. Mukherjee the same procedure should have been adopted in the case of the witnesses who had earlier been examined in the first part of the trial. (b) Drawing our attention to the charge framed by the learned trial Court he submitted that the charge against the accused Choto Mia and Bablu Sk. tried in the first part amongst others was that they had murdered Saukat Molla and Kalam and had injured Raushan and committed theft of the motor cycle. (b) Drawing our attention to the charge framed by the learned trial Court he submitted that the charge against the accused Choto Mia and Bablu Sk. tried in the first part amongst others was that they had murdered Saukat Molla and Kalam and had injured Raushan and committed theft of the motor cycle. The selfsame charge was also levied in the second part against Ayub Molla and Baro Mia. He submitted that it is not indicated in the charge framed in the first part that the said Choto Mia and Bablu had committed the aforesaid offences along with either Ayub or Baro Mia. Therefore according to him the second part of the trial against both Baro Mia and Ayub for the selfsame offence was incompetent. (c) The written complaint was lodged at 14.30 hrs. whereas the inquest was done at 14.25 hrs. The inquest report signed by the witnesses did not contain the names of the assailants which is a pointer to show that the identity of the assailants was not known and subsequently a plan was chalked out to implicate the accused persons falsely and on that basis the written complaint was lodged purportedly at 14.30 hrs. But the diaries appear to have been made two hours thereafter which were not produced in Court which also go to show that the entire story was a cooked up affair which has further been proved by the fact that the written complaint was seen by the local Magistrate after a week from the date of the incident. (d) His last point was that the examination under section 313 was perfunctorily done. The evidence taken into account was not put to the appellant Baro Miyan. As to the meaning of the expression "evidence" he relied upon section 3 of the Evidence Act. According to him there is a serious lacuna in the trial and therefore the conviction cannot be maintained. He however was not agreeable to accept the offer given by the Court to examine the appellant Baro Mia or the appellants as a whole under section 313 of the Code of Criminal Procedure in all the three appeals afresh by the High Court. 12. THEREFORE the following points arise for consideration. a) Whether the appellants were falsely implicated due to political rivalry with the active connivance of the police? 12. THEREFORE the following points arise for consideration. a) Whether the appellants were falsely implicated due to political rivalry with the active connivance of the police? b) Whether the procedure adopted by the trial Court, in the second part of the trial, of examining the witnesses in-chief de novo vitiated the trial? c) Whether the charge framed in the Second part of the trial was misleading and the appellants did not have adequate notice of the case which they were required to meet and the consequence thereof? d) Whether the lacuna if any in the examination under section 313 of the Code of Criminal Procedure shall preclude the Court from taking into account the evidence on the record? e) Whether there is adequate evidence on the record to uphold the judgments of the trial Court considering the fact that the inquest report did not contain names of the accused persons and the apparent anomaly which suggests that the investigation was started before the FIR was lodged and the omission to produce the general diaries at the trial. 13. THE first and the fifth point are closely connected with each other. They are also important questions of fact. We therefore propose to examine them first. 14. RAUSHAN Jamadar is an injured witness. He was PW 6 in the first part of the trial and PW 3 in the second part of the trial. In the first part of the trial he deposed as follows:- "On 16.10.2000 at about 11 hrs. at the tea shop of Kurman Gazi at Boyarmari More both Saukat and Kalam were killed. I was sitting in the tea shop wherein Kalam and Saukat were sitting. Boro Miyan, Ayub and Choto Miyan who is present in the Court (identified) came. Ayub at once shot Saukat. At that time Kalam ran away. Ayub alone chased Kalam and shot Kalam. I sustained small injury below the right eye. I at once ran away." 15. DURING second part of the trial he deposed as follows:- "I knew Hasan Jamadar, Saukat and Kalam. Saukat and kalam were murdered on 16.10.2000 at about 11/11.30 am. At that time I was drinking tea at the tea stall of Kurban Gazi. I along with Saukat, Liakat, Kalam, Hasan Jamadar, Amir Ali Jamadar and others were present at P.O. At that time 3 persons namely Bablu, Choto Mia and Ayub came on motor cycle. Saukat and kalam were murdered on 16.10.2000 at about 11/11.30 am. At that time I was drinking tea at the tea stall of Kurban Gazi. I along with Saukat, Liakat, Kalam, Hasan Jamadar, Amir Ali Jamadar and others were present at P.O. At that time 3 persons namely Bablu, Choto Mia and Ayub came on motor cycle. Within 2/3 minutes Boro Mia also came there near Boyarmari in front of tea stall. Thereafter accused Boro Mia abused in filthy languages. Thereafter Boro Mia went to the tea stall of Pagla Gazi Thereafter Boro Mia took a sharp knife from the tea stall of Pagla Gazi and thereafter he uttered that he would murder Kalam. Then Amir All snatched the knife from Boro Mia. Then Boro Mia shot Saukat by pipe gun and then and then he died on spot. Thereafter Kalam fled away. Ayub Ali Molla, Choto Mia chased Kalam and thereafter Ayub shot Kalam and thereafter Choto Mia, Boro Mia, Ayub fled away with the motor cycle of Saukat. At that time we tried to shift Kalam, but on the way to hospital he died. Boro Mia and Ayub Molla are present in Court today. (identified)." 16. COMMENTING upon the deposition of Raushan Jamadar Mr. Singh appearing for Choto Mia contended that the witness in the first part was silent as regards the role of the appellant Choto Mia. Any improvement made subsequently could not affect him. Mr. Mukherjee contended that at the second stage during his cross-examination the witness deposed that he had during the first part of the trial deposed truly. But upon comparison of the evidence adduced by him it would appear that he has interchanged the role of the accused Ayub and the accused Baro Mia. Mr. Sanyal contended that the witness kept changing his version and therefore no reliance can be placed upon him. 17. ROSHAN Jamadar (P.W.6 and P.W.3) is admittedly an injured witness. Therefore his evidence has an added evidentiary value. In the first stage of the trial he had deposed in the year 2004 and in the second stage of the trial he deposed in the year 2008. In the first stage the witness deposed that all the three appellants had come together therefore presence of all the appellants at the P.O. was already indicated. In the first stage of the trial he had deposed in the year 2004 and in the second stage of the trial he deposed in the year 2008. In the first stage the witness deposed that all the three appellants had come together therefore presence of all the appellants at the P.O. was already indicated. In the first stage he deposed that Ayub had shot Saukat and he also had chased Kalam. But in the second stage he deposed that Boro Miya had shot Saukat and both Ayub and Chota Miya chased Kalam. If the defence wanted to discredit the witness, he should have been confronted under sections 145 and 155 of the Evidence Act with his earlier evidence recorded in the first stage. His clarification should have been sought for which the defence did not do. Reference in this regard may be made to the case of Naba Kumar Das v. Rudra Narayan a judgment of the Privy Council reported in Volume-28, Calcutta Weekly Notes 589 wherein the following view was taken: There is another objection which their Lordships think fatal to the entries in the rent-roll being relied on as evidence which could outweigh the direct testimony of the witnesses who say that the stipulated eight part had not been adequately cleared by April 1906. Mr. Sunder went into the witness box and stated that he had seen the property and, as the result, had advised that, as he had found that the clearing stipulated for had not been performed, the Government should resume the property leased, as was actually done. Nothing was put to him in his cross-examination about the rent-roll or the entries in it. If, as was suggested at the Bar, this was because the documents were tendered by the Government, a Defendant at the trial, as part of its case, only after Sunder had been in the box, an application might have been made to recall him for further cross-examination. There is, however, no suggestion that there was any such application. Sunder was not even cross-examined on the alleged perfunctory character of his inspection. The learned subordinate Judge relied largely on the circumstance that he did not measure. But he was not bound to measure. His evidence was that he could see and saw that the proper quantity of land had not been cleared. Sunder was not even cross-examined on the alleged perfunctory character of his inspection. The learned subordinate Judge relied largely on the circumstance that he did not measure. But he was not bound to measure. His evidence was that he could see and saw that the proper quantity of land had not been cleared. If this statement was challenged it should have been challenged by cross-examination directed to the impracticability of forming a judgment by mere inspection, even with the aid of glasses, as to the proportion of area cleared." 18. P.W.7 Golam Molla, an eyewitness, during the first of the trial deposed as follows:- "On 29th Ashwin about 2 years ago at about 11 hrs in the morning on my way back after selling rice while I was having tea at the tea shop where the occurrence of firing took place. There were some people inclusive of my co-villagers Kalam and Saukat who were addressed by me as maternal uncle. I found Boro Miyan who is not present to bring out a knife and place the same at the neck of Kalam. There was scuffling. Boro Miyan brought out a machine and shot saukat. At that time Kalam gave a run. The accused Choto Miyan who is present here (identified) and Ayub chased Kalam and shot Kalam. Both Choto Miyan and Ayub shot Kalam." 19. DURING the second part of the trial he again was the PW 7. He deposed, inter alia. as follows: "I take rice from my home and sell it in Malancha. I have once deposed earlier in this case. The occurrence took place at "Bayar Mari" at about 11 am some 5-6 years ago. I halted on my way back after having sold the rice at Malancha for taking tea. At that time three persons namely "Chota Miyan, Bara Miyan" came there by motor cycle. Kalam and Sawkat were known to me. They were taking tea inside the shop at that time. Some other villagers were also present there. Bara Miyan took out a knife which he place on the neck of Kalam. Ayub took out a machine and shot Sawkat with it. Sawkat fell down and died as a consequence. Kalam then rushed away suddenly. But the three culprits i.e. Chota Miyan, Bara Miyan and Ayub also rushed and caught hold of him and shot him. Bara Miyan took out a knife which he place on the neck of Kalam. Ayub took out a machine and shot Sawkat with it. Sawkat fell down and died as a consequence. Kalam then rushed away suddenly. But the three culprits i.e. Chota Miyan, Bara Miyan and Ayub also rushed and caught hold of him and shot him. Bara Miyan and Ayub are present inside the Court's lock up (identified). The occurrence took place before my eyes. The accused persons fled away carrying the motor cycle of Swakat with them. The police thereafter arrived at the spot and held inquest over the dead body of Sawkat. This is my signature on the inquest report and the carbon process (ext. 9/2)". 20. MR. Singh assailing the evidence of the PW 7 submitted that according to this witness Baro Mia had shot Saukat and Ayub had chased and shot Kalam. He contended that only one gun shot injury was found in the head of Kalam. Therefore two or more gun shot injuries could not have been inflicted. MR. Mukherjee contended that the version of the P.W. 7 at the earlier part of the trial was contradicted by the I.O (P.W.25) who during his cross-examination admitted that "P.W. 8 Golam Molla did not state to me that he found Boro Miyan to bring out knife and placing the same on the neck of Kalam and there was scuffling and Boro Miyan brought out a machine and shot at Saukat or Kalam ran away and Chote Miyan and Ayub chased kalam and shot at him or both Chote Miyan and Ayub shot at Kalam". 21. GULAM Molla (P.W. 7) at the first stage deposed that Boro Miya had shot Saukat. Choto Miya and Ayub chased Kalam and shot at him. During the second stage he deposed that Ayub had shot Saukat and all the three appellants chased Kalam and shot at him. Mr. Singh's contention that only one gun shot injury was found and therefore all the appellants or more than one of them could not have shot at Kalam has not impressed us. Two or three or even more shots may have been made of which one had hit the victim Kalam. The omission pointed out by Mr. Mukherjee relates to the version of the witness during the first stage of the trial when Mr. Mukherjee's client was. not in the dock. Two or three or even more shots may have been made of which one had hit the victim Kalam. The omission pointed out by Mr. Mukherjee relates to the version of the witness during the first stage of the trial when Mr. Mukherjee's client was. not in the dock. That omission, it is not his case also applies to the deposition of the witness during the second stage of the trial. Moreover what is important is the fact that at both the stages of the trial the witnesses involved all the three appellants in the crime. 22. AMIR Ali Jamadar is the PW 8 in the first part of the trial and P.W. 4 in the second part of the trial. During first part he deposed as follows:- "On 16.10.2000 at about 11 hrs at Boyarmari at a tea shop while I was sitting at a tea shop. Kalam and Saukat were sitting in the tea shop on the other side of the road. There were some other people in the said shop. I found Ayub along with two persons came by a motor cycle. They went to the tea shop of Kurman where Kalam and Saukat were sitting. Ayub who was acquainted with me shot Saukat When Saukat was shot I ran away." 23. DURING the second part of the trial he deposed as follows:- "I knew Saukat and Kalam. They were murdered at Boyarmari on 16.10.2000 at about 11 a.m. At that time I was present at the tea stall of another. Kalam and Saukat were sitting at the tea stall of Kurban Gazi then. I saw that Ayub and two others whom I do not know came on motor cycle near the road and Ayub took pistol and shot Saukat and thereafter I fled away. I heard later that Kalam also died. Ayub is present in Court today (identified)." 24. MR. Sanyal appearing for the appellant Ayub drew our attention to the deposition of the Officer-in-charge (PW 28) in the first part of the trial wherein he deposed that- "I prepared a seizure list dt. 14.12.2001 which bears my signature. The said seizure list is marked Exbt. 8/2. Ayub is present in Court today (identified)." 24. MR. Sanyal appearing for the appellant Ayub drew our attention to the deposition of the Officer-in-charge (PW 28) in the first part of the trial wherein he deposed that- "I prepared a seizure list dt. 14.12.2001 which bears my signature. The said seizure list is marked Exbt. 8/2. This seizure list was prepared as because accused Choto Miya @ Azizul Haque was in P.C at the relevant time and lead to his statement that one Yahama motor cycle being No. RXG black (color) was recovered from his house. I mentioned its chassis No. as 968/L 5027723 and engine No. T.C.O/027723 and it was prepared by me in presence of the witnesses. The accused person Choto Miya also put his signature in it. This vehicle belonged to Saukat Ali (with objection). Saukat Ali was murdered in this case. Chote Miya confessed to us that Saukat and Kalam were murdered by accused Choto Miya and his associates and they stolen away the motor cycle of Saukat and from the hidden place of accused Choto Miya a motor cycle of Saukat was recovered as per instruction of accused Choto Miya and the witness stated to me that recovered motor cycle belonged to Saukat and he also stated that he put his signature in that seizure list by which a motor cycle Yamaha RXG (Black Color) being chassis No.9681 L/5027723 and Engine No. TCO-027723 and the witness also stated to me that Saukat was murdered by someone and he fled away on that very motor cycle." 25. MR. Sanyal contended that in view of the aforesaid deposition of the PW 28 the question of the appellant Ayub being connected with this murder does not arise. This submission is an over simplification of the matter. The confession, irrespective of its evidentiary value, is that Chotamia and his associates killed the victims. The statement suggests participation by others which may include Ayub. 26. MR. Singh contended that the evidence of the PW 8 indicated above did not involve the appellant Choto Mia. MR. Mukherjee did not advance any submission with regard to the evidence of this witness. The contention of MR. Singh is not acceptable because the evidence of the witness is that Ayub was accompanied by two others. These two may include both Chotamia and Baramia. 27. MR. Mukherjee did not advance any submission with regard to the evidence of this witness. The contention of MR. Singh is not acceptable because the evidence of the witness is that Ayub was accompanied by two others. These two may include both Chotamia and Baramia. 27. SAMSER Gazi is the PW 16 in the first part of the trial and he is PW 11 in the second part of the trial. During first part he turned hostile. His deposition however was as follows:- " I have whole sell fish business at Boayarmari More. I was acquainted with Saukat and Kalam. On 16.10.2000 some time before the forenoon when 1 arrived at Boyarmari. I learnt from people that Kalam and Saukat was murdered. (At this stage the prosecution is permitted to cross examine the witness). (The witness appears to have become nervous and does not look at the accused) Cross-examination by the prosecution Not a fact that I told to the I.O. that I heard the sound of firing and then Ayub and Choto Miyan to chase Kalam and to shot Kalam. Not a fact that I told to the I.O. that Saukat was killed by Boro Miyan. I did not make any statement to the I.O. Not a fact that I have suppressed the truth." 28. DURING the second part he deposed as follows:- "I know the place called Boyarmari which is near my house. I often visit that place. Saukat and Kalam were known to me. They were murdered on 16.10.2000 at about 10/11 am. I was present with them in a tea shop at that time along with Saukat, Kalam, Hasan, Rausan and 7/8 others. At that time Boro Miya threatened to kill Kalam by placing a knife on his neck when the other persons intervened and saved him. A little later Saukat fell down after being shot with a bullet, but I did not see who shot at him. Kalam immediately ran away from them. Choto Miya, Ayub chased him. Thereafter a sound of two gun fired later on and Kalam subsequently died there. Boro Miya, Ayub, Choto Miya and Bablu had come to the tea shop by two motor cycles so far as I can remember. On seeing the occurrence I fled away from the scene but returned there when other villagers also collected there. Thereafter a sound of two gun fired later on and Kalam subsequently died there. Boro Miya, Ayub, Choto Miya and Bablu had come to the tea shop by two motor cycles so far as I can remember. On seeing the occurrence I fled away from the scene but returned there when other villagers also collected there. I was questioned by the police in the night and gave my statement to them. I have given evidence in this case earlier, but did not state all the facts on account of fear (objected to). Boro Miya, Ayub are present in Court today (identified)." 29. MR. Singh did not advance any submission. Criticising the evidence of this witness MR. Sanyal submitted that the evidence given during the two stages of the trial if compared would show that the same is unreliable. MR. Mukherjee drew our attention to the following part of his evidence during cross-examination. "It is correct that I am deposing falsely under police fear and under pressure of certain C.P.(I).M as well as Congress leaders." 30. THIS part of the evidence drawn to our notice by Mr. Mukherjee may not have been correctly recorded because the following portion of his deposition also during cross-examination gives us such an impression. Possibly the intended word 'incorrect' has gone down as 'correct'. "It is incorrect that my statement that Boro Miya had tried to kill Kalam by placing a knife on his neck is false, or that it was given by me on instruction of certain party people. It is incorrect that Boro Miya, Choto Miya, Ayub and Bably had not come there by two motor cycle or that such statement was falsely given by me on instruction of certain political leaders and under police intimidation." 31. AT the first stage the witness had turned hostile. The learned Trial Court has recorded the demeanor of the witness from which it appears that the witness was nervous and did not even dare look at the accused persons. This might explain why did the witness become hostile at the first stage. During the second stage of his evidence he also deposed that out of fear he did not disclose all the facts on the earlier occasion which we have quoted above. This might explain why did the witness become hostile at the first stage. During the second stage of his evidence he also deposed that out of fear he did not disclose all the facts on the earlier occasion which we have quoted above. According to him all the three appellants had come together; Boro Miya placed a knife on the neck of the victim Kalam; Saukat fell down being shot by a bullet but he did not see who had shot the fire. Kalam took to his heels when the appellants Choto Miya and Ayub chased him and he heard two shots of fire which killed Kalam. 32. RASHID Jamadar is P.W.21 in the first part of the trial and P.W. 13 in the second part of the trial. During the first part he deposed as follows: "I used to work in that tea stall nearly 3 years ago one day at about 10.00 am. Kalam and Saukat placed order for tea. As there was not tea at bat time in our stall I brought the same from the neighbouring tea stall for them. Ayub, Boro Miyan and Chotta Miya and another person whom 1 do not know caught Kalam, but Kalam somehow fied away. At that time Chhota Miya and Ayub Chased Kalam. At that time Kalam died. We rushed to the spot and found him dead. Chota Miya is present on dock. (identified). I can identify Ayub and Boro Miyan. I was examined by the I.O I am an illiterate person." 33. DURING the second part he deposed as follows: "On the relevant date they were inside out tea shop along with Rausan, Hasan Khora, Amir Ali, Siddique, myself and others. It was 11 a.m. when Saukat and Kalam were having tea Choto Miya, Ayub, Boro Miya and Bablu arrived there on two motor cycles. Boro Miya had a scuffle with kalam over some issue. At that time Saukat fled away from there. He was then shot by Ayub from his pistol. Kalam then tried to flee away. Choto Miya and Ayub chased him carrying pistol with them. Some time later the sound of two gun shot was heard. I fled away from there on seeing Saukat lying down. I did not see what happened to Kalam at that time. Later I heard that he also died. I was examined by the Police. Choto Miya and Ayub chased him carrying pistol with them. Some time later the sound of two gun shot was heard. I fled away from there on seeing Saukat lying down. I did not see what happened to Kalam at that time. Later I heard that he also died. I was examined by the Police. Ayub and Boro Miya are present in Court (identified)." 34. MR. Mukherjee contended that the evidence in the first part is inconsistent with the evidence in the second part and therefore not reliable. The same was the submission of MR. Singh and MR. Sanyal. 35. THERE may be some inconsistency in the matter of details but in substance the witness had during the first stage deposed that all the three appellants took part in the crime. He added some details during the second stage but he was not confronted with his earlier deposition. 36. SAFI Ali is P.W.22 in the first part and the P.W.8 in the second part. In the first part he deposed as follows: "On 16.10.2000 at about 10-10.30 a.m. At that time I was sitting in the tea stall of Kurban Gazi by the side of Boyarmari More. Kalam and Saukat were taking tea at that time. At that time Boro Miyan, Chota Miyan, Ayub and another person whom I do not know appeared there and had conversation with Kalam and Saukat Ayub suddenly shot saukat on his head. Saukat fell down. Ayub then chased Kalam who was running away. Chota Miyan followed them. Thereafter I heard firing of two bullets. I rushed to the P.O. and found Kalam lying there with injuries. Subsequently Kalam died. Chota Miyan is present here (identified). I can identify Boro Miyan." 37. IN the second part he deposed as follows: "On 16.10.2000 at about 10-10.30 a.m. At that time I was sitting in the tea stall of Kurban Gazi by the side of Boyarmari More. Kalam and Saukat were taking tea at that time. At that time Boro Miya. Choto Miya, Ayub and another person whom I do not know appeared there and had conversation with Kalam and Saukat Ayub suddenly shot Saukat on his head. Saukat fell down. Ayub then chased Kalam who was running away. Choto Miya followed them Thereafter I heard firing of two bullets. I rushed to the P.O. and found Kalam lying there with injuries. Subsequently Kalam died. Saukat fell down. Ayub then chased Kalam who was running away. Choto Miya followed them Thereafter I heard firing of two bullets. I rushed to the P.O. and found Kalam lying there with injuries. Subsequently Kalam died. Thereafter Boro Miya, Choto Miya, Ayub and another man whom I could not identify fled away with them by the motor cycle of Saukat. Boro Miya and Ayub are present inside the Court's Lock-up." 38. MR. Mukherjee drew our attention to the evidence of Sri Guruparasad Chatterjee I.O. who was examined as P.W.25 in the first part. He deposed as follows:- "P.W.22 Safi Ali stated to me that he heard that Ayub suddenly shot Saukat on his head. But he did not state to me that Ayub chased Kalam or Chote Miyan followed Kalam who was running away or Chote Miyan followed them." 39. THE omission brought to our notice by Mr. Mukherjee cannot in any event efface the fact that this witness had seen all the appellants at the P.O and that they had conversed with the victims. Mr. Sanyal contended that according to the I.O. the witness had not disclosed that he had personally seen the occurrence. This is a tricky answer obtained from the I.O. (Guruprasad Chatterjee). This answer of the I.O. can only be used provided it can be shown that Safi Ali had in his examination under section 161 Cr.PC told the I.O. that he personally had not seen the occurrence. No such thing was shown to us. Therefore, this answer relied upon by Mr. Sanyal appearing to have been given by the I.O is not of any assistance whatsoever. 40. BASED on the statement made by the accused Chota Miya while he was in the custody, P.W.28 recovered the motor cycle of the deceased Swakat. P.W.28 deposed in that regard as follows: "I prepared a seizure list dt. 14.12.2001 which bears my signature. The said seizure list is marked Exbt.-8/2. This seizure list was prepared as because accused Choto Miya @ Azizul Haque was in P.C. at the relevant time and lead to this statement that one Yahama motor cycle being no RXG, black (colour) was recovered from his house. I mentioned it's chesis No. as 968/L 5027723 and engine No. T.C.O/027723 and it was prepared by me in presence of the witnesses. The accd. person Choto Miya also put his signature in it. I mentioned it's chesis No. as 968/L 5027723 and engine No. T.C.O/027723 and it was prepared by me in presence of the witnesses. The accd. person Choto Miya also put his signature in it. This vehicle belonged to Saukat Ali (with objection). Saukat Ali was murdered in this case." 41. MR. Singh, learned Counsel appearing for the accused Chotamia submitted that the P.W.28 did not ascertain the ownership of the vehicle allegedly recovered by him nor does the seizure list contain the signature of the Sub-Divisional Judicial Magistrate. He in that regard drew our attention to the following part of the evidence of the P.W.28- "I did not seize any document in support of ownership of the said vehicle in question. I did not prepare any sketch map in respect of alleged P.O. from where motor cycle was recovered or that there was no existence of such motor cycle at the point of time. Not a fact that we showed a motor cycle which was already seized and it was kept in police station. It is fact that there is no official seal in the seizure list dated 14.12.2001. There is no signature of SDJM, Basirhat in the said seizure list. Not a fact that later on it was manufactured for the purpose of this case." 42. MR. Sanyal and MR Mukherjee did not make any submission with regard to the evidence of this witness. 43. WE are unable to accept this submission of Mr. Singh. The question is not whether Saukat was the owner of the vehicle. The question is whether Saukat was in possession and using the vehicle. Raushan (PW 6 and 3) and Golam (P.W.7)have both deposed that the appellants at the time of their departure from the scene of occurrence took away the vehicle of the deceased Saukat. The vehicle was recovered from the house of the appellant Choto Miya on the basis of disclosure made by him to the P.W.28. The appellant Choto Miya has also signed the seizure list. When this fact was put to the appellant Choto Miya during 313 Cr.PC his answer was that he had been falsely implicated. He did not deny the fact that the motor cycle of Saukat was recovered from his house on the basis of disclosure made by him. 44. The appellant Choto Miya has also signed the seizure list. When this fact was put to the appellant Choto Miya during 313 Cr.PC his answer was that he had been falsely implicated. He did not deny the fact that the motor cycle of Saukat was recovered from his house on the basis of disclosure made by him. 44. RADHESHYAM Hazra is an official witness he was P.W. 19 in the first stage and P.W.26 in the second stage. He deposed during the first stage as follows: " On 16.10.2000 at about 11 hrs while I was posted Boyar Mari police camp as volunteer of WBNVF. On hearing sound of firing, I along with the other volunteer and (illegible) Armed Police Constable rushed to Boyer Mari More and found one dead body and one injured person lying. After return with the dead body by trekker from the people I learnt Bara Mia, Choto Mia and two other shot and ran away. (The objection raised by the learned Advocate for the defence is rejected.) 45. DURING the second stage his earlier evidence was adopted but further cross-examination was declined. 46. SIMILARLY, Jeevan Krishna Das is an official witness. He was P.W. 18 during the first part of the trial and P.W.20 during the second part of the trial. During the first part he deposed as follows: "On 16.10.2000 while I was posted at Boyer Mari Police camp as volunteer of WBNVF at about 10.30 hrs/11.00 a.m. I heard sound of firing and hue and cry. I along with another volunteer Radheshyam Hazra and one constable of the District Armed Police Bappa rushed there. We found one named Soukat lying dead in front of a tea shop and on the other side of the road near a tubewell one named Kalam was lying in injured condition. He was then alive. I along another took Kalam by a treaker for going to hospital but in the way Kalam died. So we returned with the dead body. The people assembled (illegible) there said that Chhoto Mia, Bara Miya, Ayub and another shot Kalam and Sowkat (The objection raised by the learned Advocate for the defence is rejected). 47. He was then alive. I along another took Kalam by a treaker for going to hospital but in the way Kalam died. So we returned with the dead body. The people assembled (illegible) there said that Chhoto Mia, Bara Miya, Ayub and another shot Kalam and Sowkat (The objection raised by the learned Advocate for the defence is rejected). 47. DURING the second part he deposed as follows: " On 16.10.2000 I was posted at Boyarmari Police Camp as volunteer of W.B.N.V.F. Saukat and Kalam were having tea in a tea shop when we heard two sounds in our camp on account of which I along with two colleagues went to the spot. The sounds heard by me appears to be of revolver fire. The other two who accompanied were volunteer Radheshyam Hazra and another constable Bappa. On reaching there we saw the dead body of Saukat lying in front of tea shop. He appeared to have been killed by shooting. Some distance away Kalam was lying near a tube-well situated next to a pond on the Eastern side of the road. He was also shot at but alive when we saw him. I along with my colleagues and the persons gathered there then brought him to the edge of the road and stopped a passing trekker by which we took him towards the hospital. But on the way we showed him to a local Doctor at Mathbari. On examining Kalam the said Doctor declared him dead, on account of which we did not go to the hospital. We learnt from the local persons that Boro Miya, Choto Miya, Bachhu and another had indulged in occurrence involving shooting of the victims." 48. WE enquired of the learned Counsel appearing for the appellant as to why the evidence of these two witnesses namely Radhyashyam Hazra and Jeevan Krishna Das could not be taken into consideration as part of the same transaction under section 6 of the Evidence Act. 49. MR. Mukherjee contended that section 6 of the Evidence Act will not be attracted because they did not disclose the names of the person who had supplied the information. He also drew our attention to that part of the deposition of the I.O. Guruprasad Chatterjee wherein he deposed that "P.W.18 Jeevan Krishna Das did not state to me that Boro Miyan, Ayub and another shot at Kalam. He also drew our attention to that part of the deposition of the I.O. Guruprasad Chatterjee wherein he deposed that "P.W.18 Jeevan Krishna Das did not state to me that Boro Miyan, Ayub and another shot at Kalam. P.W.19, Radheshyam did not state to me from whom he came to know that Boro Miyanm Chota Miyan and two others shot and ran away". 50. BOTH the witnesses deposed that they had shortly after the incident ascertained from the by standers that the victims were killed by the appellants and another. The evidence as to what was ascertained from the bystanders is relevant under section 6 of the Evidence Act. Reference in this regard may be made by the following statutory illustration: Illustrations "A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact." 51. THE omission brought to our notice by Mr. Mukherjee does not in our view take away the evidentiary value of the evidence of these two witnesses. According to the I.O. Jeevan Krishna Das did not tell him that Baro Miya, Ayub and another shot at Kalam. It is not the evidence of Jeevan Krishna Das that Baro Miya, Ayub and another shot at Kalam. His evidence on the contrary is that the people who had assembled there told that Choto Miya, Boro Miya, Ayub and another had shot the victim. Radhyasham Hazra (P.W. 19) deposed in court that he learnt from the local persons. Therefore the question of furnishing their names did not arise. What is further significant is the fact that the witness Radhyashyam Hazra was not even cross-examined on behalf of Baramia and Ayub. We are not suggesting that the evidence of the witnesses Radhyasham Hazra and Jeevan Krishna Das by itself is enough to hold the appellants guilty. But this evidence is relevant under section 6 of the Evidence Act and cannot be brushed aside. 52. DR.. Roy, P.W. 17 in the first stage and the P.W. 19 in the second stage is the autopsy surgeon. He conducted post mortem examination on the mortal remains of both Kalam and Swakat. He deposed that both the victims suffered injuries "would be caused by shooting closely." 53. MR. 52. DR.. Roy, P.W. 17 in the first stage and the P.W. 19 in the second stage is the autopsy surgeon. He conducted post mortem examination on the mortal remains of both Kalam and Swakat. He deposed that both the victims suffered injuries "would be caused by shooting closely." 53. MR. Singh submitted that Dr. Roy during the first part of the trial admitted during cross-examination that in a case of gun shot injury opinion of a ballistic expert is necessary whereas at the second stage of the trial, during cross-examination he deposed that a ballistic report was not necessary and that the range from which the victim was shot could be determined from the post mortem report. MR. Singh contended that the evidence of this witness is uncertain and therefore cannot be relied upon. MR. Mukherjee and Sanyal did not advance any submission with regard to this part of the evidence. 54. NEITHER in the first stage nor in the second stage did the witness depose that a report or opinion of a ballistic expert is necessary to determine whether the shot was fired from a close range. In the first stage he was asked whether ballistic expert's opinion is required he said 'yes'. In the second stage when he was asked whether ballistic expert's opinion was necessary, he answered 'no'. For what purpose was the opinion of a ballistic expert required was not disclosed by him either at the first stage or at the second stage. The defence did not seek for any clarification by confronting the witness with his earlier answer. We cannot also see why a professional person cannot change his opinion after 4 years on a given subject. Opinions are necessarily dependent upon the information collected by an individual on the subject. The more informed a person is maturer shall be the opinion. 55. THE evidence of the witnesses to the incident including the evidence pertaining to the character of res gestae and the evidence of the autopsy surgeon have been noticed above. We also have noticed objection of the learned Counsel to the evidence adduced by the witnesses discussed above. We also have indicated the objection to such submissions of the learned advocates for the appellants. 56. THE question however remains whether the three appellants before us in a joint venture killed the victims Saukat and Kalam and injured the witness Roushan. 57. We also have indicated the objection to such submissions of the learned advocates for the appellants. 56. THE question however remains whether the three appellants before us in a joint venture killed the victims Saukat and Kalam and injured the witness Roushan. 57. THE trial was held in two parts. During the first part of the trial the appellant Baramia and the appellant Ayub were not on the dock. During the second part of the trial the appellant Chotomia was not on the dock. THE splitting up was necessitated because Baramia and Ayub continued to abscond. 58. WE propose to tabulate the evidence after removing chaff from the grain against each of the appellants adduced by each of the witnesses to the incident discussed above, which according to us is as follows against the appellant. Baro Mia 59. FROM the deposition of Roshan Jamadar (P.W. 6 in the first part and P.W.3 in the second part of the trial) we can safely infer the fact that Baramia accompanied by Chotamia and Ayub reached the place of occurrence. Baramia abused the victims and one of them shot Saukat and injured the witness Raushan. 60. FROM the deposition of Gulam Ali (P.W. 7 at both the stages of the trial) we can safely infer that all three appellants participated in the crime. 61. FROM the deposition of Amir Ali (P.W.8 in the first part and P.W.4 in the second part of the trial), who was not acquainted with Baramia and Chotamia, we can safely infer that Ayub had reached the P.O accompanied by two persons and shot Saukat. The fact, that Ayub was accompanied by two persons, lends support to the evidence of the witnesses Roshan Jamadar and Gulam Ali. 62. FROM the deposition of Samser Gazi (P.W. 16 in the first part and P.W. 11 in the second part of the trial) participation of Baramia can safely be inferred. 63. FROM the deposition of Rashid Jamadar (P.W.21 at the first stage and P.W. 13 in the second stage of the trial) besides participation by all the three appellants the fact that Baramia had scuffled with Kalam can safely be inferred. 64. FROM the deposition of Safi Ali, (P.W.22) in the first stage and P.W.8 in the second stage of the trial) it can safely be inferred that all the appellants had participated. Baramia in particular had conversed with the victim Kalam. 64. FROM the deposition of Safi Ali, (P.W.22) in the first stage and P.W.8 in the second stage of the trial) it can safely be inferred that all the appellants had participated. Baramia in particular had conversed with the victim Kalam. 65. RADHYASHYAM Hazra, (P.W. 19) in the first part and P.W.26 in the second part of the trial) deposed that he learnt immediately after the incident that Baramia and Chotamia and two other had shot the victims. His evidence during the second stage of the trial was adopted but cross-examination was declined. 66. JEEVAN Krishna Das another official witnesses, P.W.18 during the first part and P.W.20 during the second part of the trial, deposed that he learnt immediately after the incident that Baramia, Chotamia, Ayub and another had shot the victims. 67. THE evidence is as follows against appellant. Chota Mia 68. ROSHAN Jamadar during the first part of the trial deposed that all the three appellants had reached the P.O. During the second part of the trial whatever he deposed cannot be taken into account against Chotamia. However the evidence given by ROSHAN Jamadar during the second part is corroborated by the evidence given by Gulam Ali (P.W. 7) during the first part of the trial stating that Chotamia had chased the victim Kalam- Gulam Ali added during the first part itself that Chotamia had shot Kalam. During the second part Gulam Ali deposed that all the three appellants had chased and shot Kalam. 69. THE witness Amir Ali, who was not acquainted with Baramia and Chotamia deposed that Ayub had come accompanied with two others. THE witness Rashid Jamadar during both the parts of the trial deposed that Chotamia had chased Kalam. THE witness Safi Ali during both the parts of the trial deposed that Chotamia had chased Kalam. Both Radhyashyam and Jeevan Krishna the official witnesses deposed that immediately after the incident they had learnt about the involvement of the appellant Chotamia. 70. THE evidence is as follows against the appellant: Ayub 71. AS regards him Roshan Jamadar deposed that he had shot one of the victims besides participating in the entire activity. The witness Gulam Ali can safely be said to have corroborated the aforesaid evidence of Roshan Jamadar. The witness Amir Ali during both the stages of the trial deposed that the appellant Ayub had shot Saukat. AS regards him Roshan Jamadar deposed that he had shot one of the victims besides participating in the entire activity. The witness Gulam Ali can safely be said to have corroborated the aforesaid evidence of Roshan Jamadar. The witness Amir Ali during both the stages of the trial deposed that the appellant Ayub had shot Saukat. The witness Samser during the second part deposed that Ayub had chased Kalam. The witness Rashid Jamadar during the first part deposed that Ayub had chased Kalam. During the second part he deposed that Ayub had chased Kalam and had also shot Saukat. Safi Ali deposed that Ayub had shot Saukat and also chased kalam. Radhyashyam the official witness deposed during the first part that Baramia, Chotamia and two others were learnt to have committed the crime whereas Jevan krishna Das and another official witnesses deposed that he learnt immediately after the incident that Ayub, Baramia and Chotamia had shot the victims. During the second part though he gave the number of the assailants but was unable to recollect the names of the accused persons and in particular the name of the appellant Ayub. 72. FROM the aforesaid tabulation of the filtered evidence of witnesses the fact that all the three appellants arrived at the P.O. with the common intention of killing the victims and the fact that each participated in the crime can hardly be doubted. The autopsy surgeon has confirmed that both the victims died of bullet injury. 73. IN order to make one liable for murder in a joint criminal venture it is not necessary that he must have triggered the gun. It is enough if it can be shown that he facilitated the crime. Reference in this regard may be made to the judgment in the case of Rcmaswami v. State of Tamil Nadu reported in AIR 1976 SC 2027 wherein the following view was expressed. 'The contention is fallacious and cannot be accepted. Section 34 is to be read along with the preceding section 33 which makes it clear that the "act" spoken of in section 34 includes a series of acts as a single act. It follows that the words 'when a criminal act is done by several persons' in section 34, may be construed to mean 'when criminal acts are done by several persons'. It follows that the words 'when a criminal act is done by several persons' in section 34, may be construed to mean 'when criminal acts are done by several persons'. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an 'act' as much as his co-participants actually committing the planned crime. IN the case of an offence involving physical violence, however, it is essential for the application of section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the 'criminal act'. The essence of section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. IN the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented P.W. 1 from going to the relief of the deceased. Section 34 was therefore fully attracted and under the circumstances A-2 was equally responsible for the murder of the deceased. Under these circumstances we think the High Court was justified in convicting A-2 for the offence of murder of Kaliya perumal with the aid of section 34 of the Penal Code. There was absolutely no difficulty in maintaining the convictions of A-3 and A-4 for the murder of Kaliyaperumal with the aid of section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of the body. IN the case of A-2 also it is quite legitimate to hold that he had shared the common intention of A-3 and A-4 in the commission of the murder of Kaliyaperumal." 74. IN the case of A-2 also it is quite legitimate to hold that he had shared the common intention of A-3 and A-4 in the commission of the murder of Kaliyaperumal." 74. FROM the evidence of the witnesses discussed above it is difficult to hold that the evidence as a whole lacks a ring of truth. Sight cannot also be lost of the fact that the appellants were the terrors of the area which is borne out by the fact that the learned trial Judge while recording the evidence of Samser Gaji, (P.W. 16) in the first part of the trial has observed that the witness was nervous and was not looking at the accused Chotamia and the accused Bablu who were on the trial at that stage. Reference in this regard may be made to the judgment in the case of State of U.P. v. M.K.Anthony reported in 1985 (1) SCC 505 . Their Lordships in paragraph 10 opined as follows:- "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal dual between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness nor whose evidence appears to us trustworthy and credible." 75. THE Same view was echoed by the Apex Court in the judgment in the case of State of U.P. v. Ana Singh reported in 1988 SCC 1998. Their Lordships in paragraph 13 and 15 opined as follows:- "Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigtion of crimes. THE public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. THE Privy Council had an occasion to observe this. In Bankim Chander v. Matagini, 24 Cal WN 626. : (AIR 1919 PC 157), the Privy Council had this to say (at p. 628) (of Cal WN): (at p. 158 of AIR): That in Indian litigation it is not safe to assume that a case must be false if some of the evidence In support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back a good case by false or exaggerated evidence." 76. WE already have discussed the evidence of I.O., P.W.28 who recovered the motor cycle of the victim Saukat from the house of the appellant Chotamia on the basis of statement made by him while in custody. The aforesaid discovery can safely be made the basis of the presumption that the appellant Chotamia committed the murder. WE are not to be understood to have held that the other appellants did not commit the murder. The aforesaid discovery can safely be made the basis of the presumption that the appellant Chotamia committed the murder. WE are not to be understood to have held that the other appellants did not commit the murder. Reference in this regard may be made to the Judgment in the case of Mukund @ Kundii Mishra and Anr. v. State of Madhya Pradesh reported in JT 1997 (5) SC 134. Their Lordships in paragraph 9 opined as follows: "Mr. Jain, appearing for the appellant, firstly contended that the prosecution failed to establish that any incriminating article was recovered from the respective houses of the appellants, far less, that it was stolen at the time of the murders. WE are not impressed by this contention of Mr. Jain for on perusal of the record we find that both the Courts below have discussed in details the entire evidence adduced by the prosecution and given cogent and convincing reasons for accepting the same. Having gone through the evidence we are constrained to say that no other reasonable view of it could have been taken. Mr. Jain next submitted that even if it was assumed that the articles stolen from the house of Dubeys were recovered from the appellants it could at best be said that they committed the offence under section 411 IPC but not the offences for which they stood convicted. WE do not find any substance in this submission of Mr. Jain also. If in a given case as the present-one the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In drawing the above conclusion we have drawn sustenance from the judgment of this in Gulab Chand v. State of M.P. 1995 (3) SCC 574 =JT 1995 (5) SC 373. WE hasten to add that the other incriminating circumstances detailed earlier reinforce the above conclusions, rightly drawn by the Courts below. WE therefore find no hesitation in upholding the convictions as recorded by the trial Court and affirmed by the High Court." 77. WE hasten to add that the other incriminating circumstances detailed earlier reinforce the above conclusions, rightly drawn by the Courts below. WE therefore find no hesitation in upholding the convictions as recorded by the trial Court and affirmed by the High Court." 77. THE learned Counsel for all the three appellants devoted their energy in finding out inconsistencies in the evidence of the witnesses as regards individual role of the appellants which we already have discussed above. But they have not been able to create any doubt in our mind as regards involvement of any of these appellants or that the murders might have been committed by any one other than the appellants. As regards inconsistencies the Apex Court in the case of Ramni v. State of Madhya Pradesh reported in AIR 1999 SCC 3544 opined that "But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." Speaking on the subject of doubt their Lordships in the case of State of Punjab v. Karnail Singh reported in 2003 (11) SCC 271 in paragraph 12 opined as follows: "Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh). THE prosecution is not required to meet any and every hypothesis put forward by the accused (See Stateof U.P. v. Ashok Kumar Srivastava.) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it artificial ; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admin).] Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per viscound Simon in Stirland v. Director of Public Prosecution quotes in State of U.P. v. Anil Singh, SCC p. 692, Para 17.) Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than the truth. (See: Shivaji Sahabrao Babade v. State of Maharashtra, State of U.P. v. Krishna Gopal and Gangadhar Behera v. State of Orissa.) 78. CLOSELY connected with this issue is the third submission of Mr. Mukherjee noted above which in substance is that the timing of the written complaint, inquest etc. leaves enough doubt as regards truth of the case of the prosecution. This submission, in our view, is without substance. The officer-in-charge Guruprasad Chatterjee (P.W.25 and 28 respectively) was also the I.O in this case. It would appear from his deposition that he was accompanied by S.I. S. Mondal. It would also appear from his cross- examination at the second stage of the trial that he started the investigation at 2.30 pm. on 16th October, 2000. From the formal F.I.R. it would appear that the place of occurrence is at a distance of 20 km. from the police station. He received information about the incident at about 13.15 hrs.. He appears to have reached the place of occurrence at about 14.25 hrs. Reaching the place of occurrence he received the written complaint from the de facto complainant Hasan Jamadar. There is an indication in his examination-in-chief during the first part of the trial that he went through the written complaint and thereafter forwarded the same to the duty officer to commence a case. The S.I. S.Mondal held the inquest. From the inquest report it would appear that the police party reached the P.O. at 14.25 hrs.. That does not mean that the inquest report itself was prepared at 14.25 hrs. That is only a narration of the activity of the Police. The S.I. S.Mondal held the inquest. From the inquest report it would appear that the police party reached the P.O. at 14.25 hrs.. That does not mean that the inquest report itself was prepared at 14.25 hrs. That is only a narration of the activity of the Police. It would appear from the formal complaint that after the information was received at 13.15 hrs. a G.D. entry No. 436 was made. A subsequent G.D entry No. 438 at 16.05 hrs. was also made. The G.D. Entry No. 438 obviously was made immediately after the case was started as would appear from ext. 1/2. Therefore the requirement of section 154 (1) Cr.PC was duly complied with. As regards the absence of the names of the assailants in the inquest report it can be pointed out that before the inquest report was prepared the written complaint had already been lodged containing the names of the assailants. The written complaint was received by the I.O Guruprasad Chatterjee and he was accompanied by S.I.S. Mondal who prepared the inquest report. Both of them had gone through the same. Therefore repeating the names of the assailants was by no means required. What is significant is that in the inquest report it has been indicated as to the information received from the witnesses as to how did the incident take place. It is, therefore, not possible to entertain any doubt as regards the truthfulness of the case of the prosecution, based on the so called discrepancy pointed out by Mr. Mukherjee. G.D. entry Nos. 436 and 438 were not exhibited because no suggestion was given to the I.O that they had been withheld. The Apex Court in the case of Amar Singh v. Balwinder Singh and Others reported in 2003 (2) SCC 518 in paragraphs 12 and 13 opined as follows:- "The scope and purpose of section 174 Cr.PC was explained by this Court in Pedda Narayana v. State of A.P. and it will be useful to reproduce the Same: The proceedings under section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is therefore not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Khujji v. State of MP (AIR para 8) this Court, after placing reliance upon the abovequoted decision, rejected the contention raised on behalf of the accused that the evidence of eyewitnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time. In Shakila Khader v. Nausheer Coma (AIR para 5) it was held that an inquest under section 174 Cr.PC is concerned with establishing the cause of the death only. The High Court was, therefore, clearly in error in holding that as the facts about the occurrence were not mentioned in the inquest report, it would show that at least by the time the report was prepared the investigating officer was not sure of the facts of the case." 79. THE mere fact that the formal FIR was signed by the Magistrate almost a week after the incident does not militate against the case of the prosecution either. For a very long time the accused persons were not arrested. There was as such no urgency in the matter. 80. BASED on the aforesaid discussion the issue No. 1 is answered in the negative and the issue No.5 is answered in the affirmative. 81. THE issue No.2 is a question of law. Mr. Mukherjee contended that the same witnesses could not have been examined-in-chief during the second stage of the trial and should merely have been presented for cross- examination. According to him examination-in-chief of those witnesses afresh afforded an opportunity to the prosecution to fill up the lacuna or loopholes. This submission of Mr. Mukherjee is not acceptable for more than one reason. According to him examination-in-chief of those witnesses afresh afforded an opportunity to the prosecution to fill up the lacuna or loopholes. This submission of Mr. Mukherjee is not acceptable for more than one reason. (a) He did not draw our attention that any objection was raised with regard to the procedure adopted by the learned Trial Court. (b) THE procedure adopted by the learned Trial Court was in consonance with section 273 of the Code of Criminal Procedure which reads as follows: "Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader." 82. THE only other provisions which may have some application to the facts of the case is section 299 of the Code of Criminal Procedure which reads as follows: "(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try (or commit for trial) such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India." 83. IT would appear that the deposition of the witnesses taken in the absence of the accused may be given in evidence provided the deponent is dead or incapable of giving evidence or his presence cannot be procured without an amount of delay or expenses or inconvenience which is unreasonable. These conditions obviously did not apply to the case. The procedure for offering the witnesses for cross-examination after framing of the charge has been laid down in section 246 Cr.P.C. in respect of warrant cases instituted other wise than on police report. But even in those cases the witnesses are examined-in-chief under section 244 of the Code of Criminal Procedure in the presence of the accused. Court cannot as a matter of fact rely upon any evidence taken in the absence of the accused except in the cases indicated in section 299 of the Code of Criminal Procedure. Therefore, the learned trial Court followed the correct procedure in permitting examination-in-chief de novo. If the witnesses improved their case it was open to the defence to impeach their credit by resorting to the procedure laid down in section 145 and 155 of the Evidence Act. If the defence omitted to do so the value of the evidence would depend upon the quality thereof. 84. THE Second issue is therefore answered in the negative. 85. THE third issue is again an attempt to wriggle out of a well proved case. Mr. Mukherjee did not disclose that a failure of Justice was occasioned due to the defect pointed out by him in the charge framed by the learned Trial Court. THE accused knew fully well that the case of the prosecution was that 4 persons including the appellants were charged with the murder of Kalam, Saukat and an attempt to commit murder of witnesses Roshan and theft of the motor cycle belonging to the victim Saukat which was recovered from the house of accused Chotamia. THE accused Chotamia and Bablu had been tried during the first part of the trial and the rest of the accused were tried during the second part of the trial. Any error or omission or irregularity including any mis-joinder of charge is curable unless it has occasioned a failure of justice under section 464 of the Code of Criminal Procedure. 86. WE therefore, find no substance in the submission of Mr. Any error or omission or irregularity including any mis-joinder of charge is curable unless it has occasioned a failure of justice under section 464 of the Code of Criminal Procedure. 86. WE therefore, find no substance in the submission of Mr. Mukherjee and the third issued is answered in the negative. 87. THE fourth issue is equally without any substance. We already have indicated above that we had offered an opportunity to examine the appellants under section 313 Cr.PC but the learned Counsel for the appellants were not agreeable to this course being adopted. We as such are unable to find that the appellants did not get an opportunity to offer explanation against the circumstances proved against them. THE fourth issue is therefore answered in the negative. 88. THE fifth issue was answered along with the first issue. All the three appeals in the circumstances failed and are dismissed. 89. THE appellants in all the three appeals are directed to forthwith surrender to serve out the sentence awarded by the learned trial Court. THE learned trial court is directed to take coercive measures if the appellants fail to surrender within a month from date. 90. LOWER Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action. Urgent Xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance for all formalities. Appeals dismissed