JUDGMENT S.C. Das, J.:- Briefly stated the fact of the case brought on record is that Sima Sukla Baidya (victim of the alleged occurrence), D/o Sushendra Sukla Baidya, younger brother of Khagendra Sukla Baidya (the informant), had illicit affairs with Mithan Sukla Baidya (elder brother of the accused-appellant Litan Sukla Baidya), S/o Dhirendra Sukla Baidya, were residents of same locality of village Samrurpar, P.S. Kailashahar. Sima Sukla Baidya got pregnant because of her illicit premarital physical relation with Mithan and on that issue there was quarrel and case counter case between the two families. Sima Sukla Baidya delivered a child but the proposal to marry her was turned down and so the relationship got bitter between the families. On 21.07.2010, a Wednesday, in the morning altercation and quarrel taken place between the members of the two families. It is alleged that following the altercation and quarrel on 21.07.2010 at about 4-30/5-00 p.m. the accused appellant Litan Sukla Baidya armed with a 'bati dao' in hand along with accused Sanchita Sukla Baidya, Anita Sukla Baidya, Rupa Sukla Baidya and Rita Sukla Baidya all armed with 'lathi' trespassed in the house of Khagendra Sukla Baidya and his brother Sushendera Sukla Baidya and the accused-appellant Litan Sukla Baidya struck blow with 'bati dao' on the head of Sushendra Sukla Baidya causing injury. Khagendra Sukla Baidya (P.W. 1) with a view to protect Sushendra and to prevent Litan from further assault went to the spot and at that time, Litan and other accused persons tried to assault Khagendra Sukla Baidya but Khagendra was saved by his brother Amarendra Sukla Baidya (P.W. 2). In the meantime, Sima Sukla Baidya, the deceased came to the spot to protect her father Sushendra and at that time, the accused appellant Litan Sukla Baidya dealt multiple 'bati dao' blows on the head and neck of Sima and as a result, Sima suffered severe cut injuries and died on the spot. Rasendra Sukla Baidya, a dumb person (P.W. 16), brother of Khagendra and Sushendra with a spade in hand chased the accused persons and the accused persons fled away. Rasendra Sukla Baidya, a dumb person (P.W. 16), brother of Khagendra and Sushendra with a spade in hand chased the accused persons and the accused persons fled away. Police was informed and Khagendra Sukla Baidya (P.W. 1) lodged an FIR and accordingly, Kailashahar P.S. Case No. 141 of 2010 under Sections 447/302 read with Section 34of IPC was registered against the FIR named 5(five) accused persons and after investigation charge-sheet was filed against all the accused persons for commission of offence punishable under Sections 447 and 302read with Section 34 of IPC. Cognizance was taken on the basis of police report and after commitment of the case to the Court of Sessions, learned Sessions Judge on 08.11.2011 framed charges against accused-appellant and 3(three) other accused for commission of offence punishable under Section 447read with Section 34 of IPC and under Section 302 read with Section 34 of IPC to which the accused persons including the accused-appellant pleaded not guilty and claimed to be tried. 2. In course of trial, prosecution examined 18 witnesses. Out of them P.Ws. 1, 2, 3 and 16 are the eye witnesses of the occurrence. P.W. 1 is the maker of the FIR. P.W. 2 is the brother of P.W. 1 and both of them are uncle of the deceased Sima. P.W. 3 is the mother of the deceased Sima and P.W. 16 is another uncle of deceased Sima. P.Ws. 6 and 7 are the brothers of the deceased Sima and they were away from the house at the time of alleged occurrence. P.Ws. 4, 5, 8, 10, 13 and 14 are all neighbours of the accused-appellant and the victim and out of them P.Ws. 4 and 5 are the witnesses to the seizure of Exhibit M.O. 1 the 'bati dao' which is said to be the weapon of offence, seized from the hut of the accused-appellant. P.W. 10 is the seizure witness of wearing apparels of the victim and P.W. 12 is the seizure witness of wearing apparel of the accused (Exhibit M.O. 2). P.W. 8 was declared hostile by the prosecution and his previous statement was marked as Exhibit-7. P.Ws. 15 and 18 are the medical officers who conducted Post-mortem examination over the dead body. P.W. 17 is the I.O. of the case. 3. The accused-appellant adduced no defence evidence. P.W. 8 was declared hostile by the prosecution and his previous statement was marked as Exhibit-7. P.Ws. 15 and 18 are the medical officers who conducted Post-mortem examination over the dead body. P.W. 17 is the I.O. of the case. 3. The accused-appellant adduced no defence evidence. At the time of cross examination of the prosecution witnesses, it is suggested on behalf of the accused-appellant that Sushendra Sukla Baidya, father of Sima and Rasendra Sukla Baidha (P.W. 16), uncle of Sima, forcefully took the accused-appellant Litan into their house while he was returning from hospital and at that time Rasendra assaulted Litan with a spade causing 5/6 injuries. Sima rushed to save Litan from the attack of Rasendra and at that time Rasendra hit her on her face and neck and as a result she died. It is also the case of the defence that in the morning Sushendra Sukla Baidya, father of Sima, assaulted mother of accused Litan causing injuries and she was hospitalized. In course of his examination under Section 313 Cr.P.C., the accused Litan has stated that his mother was in hospital and he was going to hospital with a pillow. On the way Sushendra Sukla Baidya and other family members dragged him in their house and assaulted him throwing him in a ditch. He suffered injury. It was about 4-30 p.m. at that time. Rashendra Sukla Baidya hit him by a spade. He has not seen who assaulted Sima. 4. The trial Court found the accused-appellant guilty of committing offence punishable under Section 447and 304 Part-I of IPC and sentenced him to suffer R.I. for 7(seven) years and to pay a fine of Rs. 5000/- in default of payment of fine to suffer S.I. for 6(six) months for commission of offence punishable under Section 304 Part-I of IPC and also sentenced him and other accused persons under Section 447 of IPC to pay a fine of Rs. 500/- each in default to payment to suffer S.I. for one month. 5. Having felt aggrieved, the present appeal is filed under Section 374 of Cr.P.C. 6. Heard learned counsel Mr. H.K. Bhowmik for the appellant and learned P.P., Mr. A. Ghosh for the State-respondent. 7. It is submitted by Mr. Bhowmik learned counsel of the appellant that admittedly there was bitter relation between the two families on the issue of Sima's pregnancy. Having felt aggrieved, the present appeal is filed under Section 374 of Cr.P.C. 6. Heard learned counsel Mr. H.K. Bhowmik for the appellant and learned P.P., Mr. A. Ghosh for the State-respondent. 7. It is submitted by Mr. Bhowmik learned counsel of the appellant that admittedly there was bitter relation between the two families on the issue of Sima's pregnancy. It is admitted by the prosecution witnesses that from the morning, quarrel started and mother of Litan was assaulted by Sushendra, father of Sima. It is the case of the prosecution that Litan dealt 'bati dao' blows on the head of Sushendra causing injury but neither any injury report of Sushendra has been placed on record nor Sushendra has been examined by the prosecution. For non examination of Sushendra, adverse inference should be drawn against the prosecution. It is also submitted by learned counsel Mr. Bhowmik that P.W. 16 is a dumb person and he has been examined by I.O. through a dumb expert whereas the dumb expert has not been examined. The defence case that Rasendra might have assaulted Sima causing the injury has been supported by P.W. 8, who was declared hostile and in the facts and circumstances of the case that Rasendra might have inflicted blows by spade on the head of Sima causing the injury cannot be ruled out. He has also submitted that all the witnesses are interested witnesses and so their evidence is liable to be disbelieved. The prosecution case as a whole is doubtful and in the facts and circumstances of the case, the defence case may be accepted and the accused may be given the benefit of doubt. 8. Learned P.P., on the other hand, has submitted that the prosecution case has been proved by the oral evidence of P.Ws. 1, 2, 3 and 16. The incident occurred in broad day light in the house of the witnesses and so they are natural witnesses to the occurrence and they cannot be termed as interested witnesses. Except suggestion there is nothing to show that P.W. 16 struck spade blows on Sima causing injury. P.W. 8 was gained over by the accused and he made a false statement which is evident in the facts and circumstances of the case. Except suggestion there is nothing to show that P.W. 16 struck spade blows on Sima causing injury. P.W. 8 was gained over by the accused and he made a false statement which is evident in the facts and circumstances of the case. Since there is no supporting evidence of P.W. 8 that Rasendra might have inflicted the blows on Sima, the defence story is not believable at all. The trial Court taken into account the facts and circumstances of the case of bitter relation between the two families and fact of assault and counter assault and therefore arrived at a finding of guilt under Section 304 Part-I of IPC. Since the prosecution case has been proved, this Court need not interfere in the finding of the trial Court. 9. The incident occurred on 21.07.2010 in the house of the informant Khagendra Sukla Baidya at about 4-30 p.m. is not disputed. Sima Sikla Baidya died a homicidal death because of severe cut injuries on her head and neck is also not disputed. P.Ws. 15 and 18, the medical officers while conducting post mortem examination over the dead body found the following three injuries on the person of the deceased:- 1. Incised wound over vault of the scalp 4" x ¼" ante mortem. 2. Incised wound over nape of neck 2" x 1" x 1" ante mortem. 3. Incised wound over left side of the neck involving neck muscles and great vessels of neck. Ante mortem in nature. They opined that the cause of death was shock due to multiple haemorrhage following injury to great vessels of neck. 10. P.Ws. 1, 2, 3 and 16 made consistent statements about the occurrence. According to the witnesses the accused with a 'bati dao' in hand and other accused persons with lathies in hand trespassed in the house of the victim and at first accused Litan had assaulted Sushendra to which P.W. 1 went to protect him when the accused persons also made attempt to assault P.W. 1. At that time P.W. 2 arrived there and saved P.W. 1. In the moment the deceased Sima Sukla Baidya came out of hut to protect her father and at that time Litan Sukla Baidya, the accused-appellant dealt repeated 'bati dao' blows on head and neck of Sima causing the injuries and Sima died in the spot in the courtyard. The evidence of P.Ws. In the moment the deceased Sima Sukla Baidya came out of hut to protect her father and at that time Litan Sukla Baidya, the accused-appellant dealt repeated 'bati dao' blows on head and neck of Sima causing the injuries and Sima died in the spot in the courtyard. The evidence of P.Ws. 1, 2, 3 and 16 has not been shaken in any manner in the cross examination. Prosecution witnesses further stated that Sima Sukla Baidya had love affairs with the elder brother of the accused Litan namely Mithan and Sima became pregnant because of illicit relation. They insisted for marriage between Sima and Mithan but it was not materialized. Relationship between the two families on the issue gone bitter and there was case and counter case on the issue. It is also admitted by the prosecution witnesses that on the issue there was quarrel between them in the morning. P.W. 1 in cross examination admitted that Sushendra had beaten mother of Litan Sukla Baidya in the morning and his mother was hospitalized. As already stated earlier, suggestion was put to P.W. 1 that Sushendra and his brother Rasendra (P.W. 16) dragged Litan inside their house when he was returning from hospital and Rasendra assaulted Litan by spade causing 5/6 injuries. Sima rushed there to save Litan from the attack of Rasendra and at that time Rasendra hit Sima with the spade causing injuries and she died. While the above suggestion was put to P.W. 1, the accused in his examination under Section 313, Cr.P.C. stated different story that his mother was in hospital and he was going to hospital with a pillow and on the way Sushendra Sukla Baidya and his other members of the family took him in their house and assaulted him throwing him in a ditch. It was about 4-30 p.m. He suffered injury. Rasendra hit him by a spade. He has not seen who assaulted Sima. 11. It is an admitted fact that the incident occurred inside the house premises of the victim. According to the accused he was dragged inside the house by Sushendra and Rasendra and thereafter Rasendra struck repeated spade blows causing injury in his person. In cross examination of P.W. 1 it was suggested that he was returning from hospital but in his statement under Section 313 of Cr.P.C., he stated that he was on way to hospital with a pillow. In cross examination of P.W. 1 it was suggested that he was returning from hospital but in his statement under Section 313 of Cr.P.C., he stated that he was on way to hospital with a pillow. Further in the suggestion put to P.W. 1 it was stated that Sima rushed to the spot to save Litan from the attack of Rasendra and at that time Rasendra hit spade blows on Sima as a result, Sima died. But in his statement under Section 313, Cr.P.C. he stated that he has not seen who assaulted Sima. Such contradictory stand of the accused made the defence story totally unreliable and it strengthened the prosecution case that the accused appellant along with others trespassed in the house of the accused and the accused dealt 'bati dao' blows on Sima causing injuries as a result of which she died. 12. The statement of the accused made while examination under Section 313, Cr.P.C. is not an evidence but such statement may be taken into consideration while evidence on record is appreciated either in favour or against the accused. Sub Section (4) of Section 313 Cr.P.C. clearly prescribes that the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 13. Burden of proof no doubt lies on the prosecution. The prosecution discharged its burden by examining the eye witnesses. The accused-appellant has taken the plea at the time of cross examination of P.W. 1 that P.W. 16 inflicted the injury on the person of Sima, but in his own statement under Section 313Cr.P.C., the accused stated nothing in support of what he suggested during cross examination of P.W. 1, rather stated that he has not seen Sima at that time. This is no doubt a serious incriminating circumstance and an adverse inference must be drawn against the accused appellant. 14. The submission of learned counsel Mr. Bhowmik that Sushendra has not been examined, has been explained by the prosecution. P.W. 1 in his deposition stated that Sushendra was half mad at the time of occurrence and after death of Sima he turned into full mad and not in a position to come before the Court. 14. The submission of learned counsel Mr. Bhowmik that Sushendra has not been examined, has been explained by the prosecution. P.W. 1 in his deposition stated that Sushendra was half mad at the time of occurrence and after death of Sima he turned into full mad and not in a position to come before the Court. This statement of P.W. 1 has not been disputed by the defence. So the prosecution brought a reasonable explanation about non examination of Sushendra in the case. P.W. 3 also stated that her husband was half mad and after death of their daughter, he speaks continuously. This statement also was not disputed by the defence. So, I find no merit in the submission of learned counsel Mr. Bhowmik that examination of Sushendra has been purposely withheld by the prosecution. Rasendra (P.W. 16) is a dumb person. I.O. has recorded his statement. How I.O. has recorded his statement is not at all material to be considered while appreciating the evidence of that witness. As I find the Sessions Judge recorded the statement of P.W. 16 through a dumb expert and so there is nothing to raise any suspicion in respect of recording of evidence of P.W. 16. Non examination of the dumb expert is of no consequences. P.W. 8, the only hostile witness stated that he went to the house of the victim and found her lying dead. He stated in his examination in chief that mother of Sima told him that her daughter was killed by Rasendra Sukla Baidya (P.W. 16). He was declared hostile by the prosecution and was cross examined. His previous statement recorded by I.O. which has been proved as Exhibit 6 and Exhibit-7 is quite contrary to what he stated in examination in chief. No question was put to P.W. 3 that she told any witness including P.W. 8 that Rasendra killed Sima. There is no other iota of evidence to support the statement of P.W. 8 that Rasendra killed Sima. P.W. 8 therefore appears to be a gained over witness and he made false statement before the Court. The argument of learned counsel Mr. Bhowmik that P.Ws. 1, 2, 3 and 16 are the interested witnesses is not tenable. They are relatives of the deceased. A relative witness and interested witness have lot of difference. P.W. 8 therefore appears to be a gained over witness and he made false statement before the Court. The argument of learned counsel Mr. Bhowmik that P.Ws. 1, 2, 3 and 16 are the interested witnesses is not tenable. They are relatives of the deceased. A relative witness and interested witness have lot of difference. The incident occurred in the house of witnesses in broad day light in their presence. So they are natural witness of the occurrence. They cannot be termed as interested witnesses in the facts and circumstances of the case. An interested witness is that witness who will gain something giving false statement against the accused. Here, I find nothing to support the submission of learned counsel, Mr. Bhowmik. 15. The trial Court having considered the strain relation between the two families and having considered the evidence on record, arrived at a finding that the accused-appellant committed offence punishable under Section 304 part-I of IPC which is not challenged by the prosecution. In the given facts and circumstances of the case, I am of considered opinion that the trial Court arrived at an appropriate finding in respect of guilt of the accused-appellant and the punishment has also been imposed, commensurate to the gravity of the offence and hence, I find nothing to interfere in the judgment and order of conviction and sentence passed by the Court below. 16. The appeal, therefore, stands dismissed. Send back the L.C. records along with the copy of this judgment.