JUDGMENT Samapti Chatterjee, J. (1) The instant appeal is directed against the Judgment and Order of conviction passed in Session Trial No.28(7)2006 by the learned Additional District & Sessions Judge, Fast Track Court V, Malda on 15th November, 2006 and 16th November, 2006 convicting the appellant/petitioner under Section 302 of the Indian Penal Code. He is also sentenced to suffer rigorous imprisonment for life and pay a fine of Rs.5000/- and in default to suffer rigorous imprisonment for two years. (2) Put in a short frame, the prosecution case is as follows :- On 19th January, 2006 Md. Asraf Ali, the defacto complainant lodged a written complaint before the Inspector-in-Charge, P.S.-Kaliachak to the effect that at about 18:30 hours on the road at Sujapur, Biswaspara in front of house of Asarul Sardar within P.S.-Kaliachak District-Malda the accused person Md. Nurjaman committed murder of his father Md. Ansar Sk. with a “Hasua” following the dispute of family matter. On the basis of the such written complaint being G.R. Case No.129 of 2006 Kaliachak P.S. Case No. 15 of 2006 dated 19th January 2006 was registered at 19:55 hours under Section 302 of the Indian Penal Code. After completion of the investigation charge-sheet was submitted against the accused person under Section 302 of the Indian Penal Code. Thereafter the case was placed for trial before the learned Additional District and Session Judge, Fast Track Court –V, Malda who framed charge under Section 302 of the Indian Penal Code against the present appellant and after conclusion of the trial he held the appellant guilty and convicted him as aforesaid. (3) The prosecution examined as may as 15 witnesses in this regard. (a) P.W.1, Md Asraf Ali is the defacto complainant of this case. He is the brother of the accused Md. Nurjaman. (b) P.W.2 Munaf Sk. is the cousin brother of the deceased Md. Ansur Sk and eye witness of the case. (c) P.W.3 Nura Bibi is the resident of Sujapur Biswas para. (d) P.W.4 Tahera Bibi is the resident of Sujapur Biswas Para. (e) P.W.5 Masidur Rahaman is the law clerks of Malda Court. (f) P.W.6 Baharu Sk is a resident of Sujapur Biswas Para. (g) P.W.7 A.S.I Arun Shome is the witness of the case. (h) P.W.8 Moti Sk is a resident of Sujapur Hindu Para. (i) P.W.9 Ajijul @ Luttu Sk is the eye witness of that case. (e) P.W.5 Masidur Rahaman is the law clerks of Malda Court. (f) P.W.6 Baharu Sk is a resident of Sujapur Biswas Para. (g) P.W.7 A.S.I Arun Shome is the witness of the case. (h) P.W.8 Moti Sk is a resident of Sujapur Hindu Para. (i) P.W.9 Ajijul @ Luttu Sk is the eye witness of that case. (j) P.W.10 Dr. Debnath Sarkar held the post mortem examination over the dead body of deceased Md. Ansur Sk. (k) P.W.11 Akram Sk is the brother of the deceased Md. Ansur Sk. (l) P.W.12 Asura Bewa is the mother of the accused Kajjaban and the wife of the deceased Md. Ansur Sk. (m) P.W.13 Constable No.546 Nirendra Chandra Moulick brought the dead body of the deceased Md. Ansur Sk to the hospital. (n) P.W.14 Adla Sk brought the dead body of the deceased Md. Ansur Sk with Constable Nirendra Chandra Moulick. (o) P.W.15 S.I Debobrata Chakraborty is the Investigating Officer of this case. (4) Thus, it is apparent that the prosecution relied on evidence of three eye witnesses of the incident being P.W.2, P.W.8 and P.W.9 to show that the accused assaulted his father on that date of incident at the place of occurrence when the deceased was talking with P.W.2, P.W.8 and P.W.9 regarding construction work and at that point of time accused came there from his house with a “Hasua” and assaulted the deceased twice on his chest and leg with that “Hasua” and due to the said assault the deceased expired there. Beside that the prosecution also relied on the post mortem report which says that the death was caused due to the effect of the ante mortem injuries. (5) We have heard Mr. P.S. Bhattacharyya learned Counsel appearing on behalf of the appellant while the respondent/state has been represented by the learned Counsel Ms. Suman Sehanabis. (6) Learned Counsel for the appellant Mr. P.S. Bhattacharyya has taken us through the oral testimonies of P.W.1, P.W.2, P.W.5, P.W.8, P.W.9, P.W.10, P.W.15 (P.W.4 , P.W.6 were declared hostile and P.W.12 was partly declared hostile). (7) Learned Advocate Mr. P.S. Bhattacharyya also pointed out some variation/contradiction from the evidence by those PWs and also highlighted several infirmities in the prosecution case which in broad are as follows:- (a) That P.W.4, P.W.6 and partly P.W.12 did not at all support the prosecution case and they were declared hostile by the prosecution. (7) Learned Advocate Mr. P.S. Bhattacharyya also pointed out some variation/contradiction from the evidence by those PWs and also highlighted several infirmities in the prosecution case which in broad are as follows:- (a) That P.W.4, P.W.6 and partly P.W.12 did not at all support the prosecution case and they were declared hostile by the prosecution. (b) P.W.2, P.W.8 and P.W.9 are not the actual eye witnesses but claimed to be eye witnesses. (c) In Inquest Report it is stated that one injury is found but they stated two injuries found in the body of the deceased (d) So called eye witnesses stated in their deposition that they did not make any hue and cry after seeing the incident. (e) The P.W.10, autopsy surgeon in his cross-examination stated that death may be either suicidal or accidental in nature. (f) P.W.10 also stated in his cross examination that above injuries may be inflicted on 18th January 2006 on the deceased but the incident occurred on 19th January 2006. (g) P.W.10 further deposed that his Post Mortem report does not specifically mention due to which injury the deceased expired. (h) P.W.10 further deposed that the injuries as per his Post Mortem report may be caused by another sharp cutting pointed weapon other than “Hasua”. (i) P.W.10 in his examination in chief stated that as per his Post Mortem report injuries may be caused by that “Hasua”(Mat. Exbt.1) but he further deposed that as per his opinion cause of death was due to effect of ante mortem injuries. (j) P.W.10 also stated in his cross examination that two injuries as per his post mortem report may be caused by two separate weapons or objects. (k) In F.I.R, Hasua was not mentioned by P.W.1. (l) Nothing was mentioned regarding eye witnesses in the complaint. (m) Inquest report also did not mention regarding “Hasua” or any eye witnesses. (n) P.W.2 Munaf Sk stated in his deposition that he took “Hasua” from the appellant but name of the Munaf Sk was not mentioned in the F.I.R. (o) P.W.1 deposed that Munaf took the “Hasua” from Nurjaman and gave it to the police and police seized the same and P.W.1 put his signature on the seizure list. (n) P.W.2 Munaf Sk stated in his deposition that he took “Hasua” from the appellant but name of the Munaf Sk was not mentioned in the F.I.R. (o) P.W.1 deposed that Munaf took the “Hasua” from Nurjaman and gave it to the police and police seized the same and P.W.1 put his signature on the seizure list. (p) Family dispute was there between the deceased and the accused as the accused has given one room by the deceased but accused demanded another room from his father (deceased) but the deceased (father) did not give accused another room. (q) P.W.1 deposed that he did not hand over any “Hasua” to the police. (r) The examination report of the blood group of the deceased and blood group of the stains on the offending weapon could not be determined. (8) Summing up the aforesaid contention learned Counsel concluded that the prosecution has hopelessly failed to establish the charge brought against the appellant and thus the conviction cannot be sustained. Therefore, he is entitled to an order of acquittal by setting aside the impugned Judgment and Order. (9) On the other hand learned Advocate Ms. Sumon Sehanabis supporting the prosecution case, submitted that the principle ground on which the defence has assailed the Judgment and Order of conviction is without any substance and merits for consideration. According to the learned prosecution counsel the impugned Judgment is well contained and well reasoned. This, deserves no interference. Her contention may be summerised in the following manner. (a) There was an on going family dispute regarding allotments of accommodation though one room was allotted to the accused by the deceased (father) but since another room was not allotted in favour of the accused therefore, the accused murdered the deceased (father) on 19th January, 2006 which proved the intention and the motive. (b) In presence of all three eye witnesses the incident had occurred. (c) Munaf Sk one of the eye witnesses gave instruction to the P.W.1 at the time of lodging complaint. (d) Though the Inquest Report mentioned one injury but Post Mortem report mentioned two injuries on the person of the deceased. (e) All three eye witnesses such as P.W.2, P.W.8 and P.W.9 mentioned in their depositions regarding two injuries one on the left chest of the deceased and one on the leg of the deceased. (d) Though the Inquest Report mentioned one injury but Post Mortem report mentioned two injuries on the person of the deceased. (e) All three eye witnesses such as P.W.2, P.W.8 and P.W.9 mentioned in their depositions regarding two injuries one on the left chest of the deceased and one on the leg of the deceased. (f) Regarding description of wearing apparels of the deceased is completely corroborating with the description given by the P.W.2 in his deposition. (g) P.W.10 Doctor and three eye witnesses deposed regarding two injuries. (h) The Investigating Officer (P.W.15) deposed that “hasua” was handed over to the police by the P.W.1. (i) P.W.9 Luttu Sk is an independent eye witness of this case and he deposed that about 8/9 months ago at about 18/18:30 hours when he was returning to home with P.W.8 they saw that P.W.2 and deceased were gossiping at the place of occurrence and seeing him (P.W.9) the deceased told the P.W.2 that his mason had come and he (P.W.9) told the P.W.2 that at the time of construction work he would be able to manage the place for working. At that time the accused person came with a “Hasua” from his house and assaulted his father with that “Hasua” on the chest and being assaulted the deceased came behind the P.W.9 and then the accused person again assaulted the deceased with that “Hausa” over the head of P.W.9 and the deceased expired on that place and the learned Defence lawyer did not asked the I.O in cross examination as to whether the P.W.9 made all the above statement before him under Section 161 Cr.P.C. earlier and no contradiction had been taken between the statements of P.W.9 also before the Court and the police under Section 161 Cr.P.C.. (j) F.I.R maker P.W.1 is not an eye witness. (10) Learned Counsel for the state on the point of minor contradiction and inconsistencies referred to and relied on one Apex Court decision reported in (2011) 2 CLJ Page 2162 Para 25 which is set out as follows; Para 25-“In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility”. Therefore, more marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaboration of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to the discredited.” (11) Learned Counsel for the State on the point of delay of few hours in lodging the F.I.R also referred to and relied on the Apex Court decision reported in AIR 2012 SC 2488 Para 30 which is set out as follows: Para 30-“It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the court is satisfied, then the case of the prosecution cannot fail on this ground alone”. (12) Therefore, according to the learned Counsel appearing for the state, the prosecution has well succeeded in proving the case against the appellant beyond all reasonable doubt and the learned Trial Court have rightly convicted the appellant and learned Counsel for the state also insisted upon dismissal of appeal. (12) Therefore, according to the learned Counsel appearing for the state, the prosecution has well succeeded in proving the case against the appellant beyond all reasonable doubt and the learned Trial Court have rightly convicted the appellant and learned Counsel for the state also insisted upon dismissal of appeal. (13) We have given our anxious and thoughtful considerations to the rival submission of the parties in the light of the decision placed. We have also very carefully scrutinized the oral and documentary evidence. (14) Now coming to the prosecution case we find that the three eye witnesses namely P.W.2, P.W.8 and P.W.9 are the main witnesses of the prosecution case. (a) P.W.2 deposed that about 8 months ago at about 18:30 hours on Thursday when he was returning from his house and at that time he saw Ansur Sk and Ansur asked him whether he appointed any mason. At that time Nurjaman came from his house with a hasua and hit by the said “Hasua” on the left side of the chest of Ansur Sk. Being assaulted Ansur Sk fell on the ground. Then accused Nurjaman again assaulted with “Hasua” on the leg of Ansur Sk. Then he caught Nurjaman and took away the “Hasua” from his hand forcibly and after being assaulted Ansur Sk expired on that place. He told the incident thereafter to the police and other villagers. In his cross examination P.W.2 further stated that after the incident, the persons of the adjoining houses came to the place of occurrence. On that very date of the incident he did not go to the P.S. He further stated that he did not take Ansur Sk to the hospital after the incident. None followed Nurjaman when he fled away from the place of occurrence after the incident and none shouted at that time. He further stated that at the time of the incident Ansur Sk wore one punjabi, sweater and one sando genji and one ‘lungi’. He cannot say the colour of the said ‘lungi’. (b) P.W.8 in his deposition stated that Ansur Sk is the father of Kajjaban. Ansur Sk has been murdered by Kajjaban about eight months ago during winter. On the date of the incident himself along with Luttu mistri returning home at about 18:30 hours. At that time Munaf Sk was gossiping with Ansur Sk over construction of a room. (b) P.W.8 in his deposition stated that Ansur Sk is the father of Kajjaban. Ansur Sk has been murdered by Kajjaban about eight months ago during winter. On the date of the incident himself along with Luttu mistri returning home at about 18:30 hours. At that time Munaf Sk was gossiping with Ansur Sk over construction of a room. Ansur Sk was asking Munaf Sk for making arrangement for construction of this room by mistri. At that time Kajjaban came with a hasua and assaulted his father Ansur Sk with the hasua on his throat. Being assaulted Ansur Sk went behind Luttu mistri. Then Kajjaban hit Ansur sk with the hasua on his right leg over the head of Luttu mistri. Then Munaf Sk caught Kajjaban and snatched his hasua. Then Kajjaban fled away from the place. Ansur fell down on the ground being assaulted and he went to Bishu more to bring one rickshaw. At Bishu More he told the persons present there about the incident. Then police came at the place of occurrence. This is that “Hasua” by which Kajjaban assaulted his father (Hasua already exhibited). Police asked him about the incident and he told him the incident. On his cross examination P.W.8 further stated that as per order of Asraf Ali, he has come to the Court today for his deposition. He does not know how to treat the patient. He saw Ansur Sk to struggle in pain after being assaulted. P.W.8 Himself and Munaf Sk did not take Ansur Sk to the hospital for treatment. After the incident Kajjaban fled away towards the Bishu more. There were many persons at Bishu More on that date at about 18:30/19:00 hours. When Kajjaban fled away from the place of occurrence he did not shout and did not chase him. There are many houses around the place of occurrence. Asraul, Sekdil and others have their houses by the side of the place of occurrence. The house of Kajjaban is at the west of the place of occurrence. (c) P.W.9 in his deposition stated that Ansur Sk is the father of Kajjaban. About 8/9 months ago at about 18:00/18:30 hours Kajjaban murdered his father Ansur sk. Before the incident P.W.9 himself along with Moti Sk were returning to their homes. He saw Munaf and Ansur Sk to gossip near the transformer meter at Biswas Para. (c) P.W.9 in his deposition stated that Ansur Sk is the father of Kajjaban. About 8/9 months ago at about 18:00/18:30 hours Kajjaban murdered his father Ansur sk. Before the incident P.W.9 himself along with Moti Sk were returning to their homes. He saw Munaf and Ansur Sk to gossip near the transformer meter at Biswas Para. Seeing him Ansur Sk told Munaf Sk that his mason had come and he told Munaf Sk that at the time of construction work he would be able to manage the place for working. Then during this time Kajjaban came from his house with a hasua and assaulted his father with the hasua on his chest. Being assaulted Ansur Sk came behind him. Again Kajjaban assaulted his father with the hasua over head. He further stated that he cannot remember on which side of the chest Ansur Sk got injury due to assault with the hasua by Kajjaban because he become perplexed at that time after seeing the incident. In his cross examination he stated that on the date of his examination fixed by the Court, he attended the court but he was not examined as Asraf Ali was not present. (d) P.W.10 the Autopsy Surgeon in his examination-in-chief has stated that on examination he found sharp cut wound with hemorrhage and smooth regular margin. Fusi form in shape measuring 4 inches x lump deep over upper part of left side of the chest below left collar bone in front. Sharp cut wound with hemorrhage and with regular margin measuring 1 x ¼ inch x 1/6 inch below right knee in front side. On dissection he found all organs were pale and sharp cut wound with hemorrhage over second rib of the left side of chest in full depth and collar bone laterally partly. Sharp cut wound with hemorrhage over lung measuring 1 ½ inch x ½ inch over left lung and the left plural cavity there was massive collection of blood with sharp cut wound over left plural. He also found rigor mortis. As per his report, time of death was with 48 hours from the time of his examination. The injuries as per his post mortem report may be caused by this hasua (Mat Exbt. 1). As per his opinion cause of death was due to effect of ante mortem injuries as stated above. He also found rigor mortis. As per his report, time of death was with 48 hours from the time of his examination. The injuries as per his post mortem report may be caused by this hasua (Mat Exbt. 1). As per his opinion cause of death was due to effect of ante mortem injuries as stated above. As per his report injuries were cause by hard and sharp cutting and pointed object. This original Post mortem report was written and signed by him. This post mortem report is marked as Exbt.3. In his cross examination the doctor stated that no copy of FIR was sent to him at the time of holding post mortem examination. As per his observation, the death may be suicidal or accidental. As per his post mortem report, duration of injuries was within four days of death. The above injuries may be inflicted on 18.01.2006 on the deceased. His Post mortem report does not specifically mention for which injury the deceased expired. The injuries as per his post mortem report may be caused by any sharp cutting pointed weapon other than hasua. (15) We find in the cross examination of P.W.2, P.W.8 and P.W.9 that there are no material omissions or contradictions in respect of the fact that accused assaulted the deceased on 19th January, 2006 with “Hasua” but from the deposition of P.W.10 it is not specific or ascertained that death was caused or might have occurred by the abovementioned injuries. (16) We find surprisingly enough P.W.2, P.W.8 and P.W.9 were not give any suggestion that they did not at all see any incident or that no such incident took place at all. (17) Further interesting and noticeable fact is that no suggestion or any question was asked in cross examination of P.W.2, P.W.8 and P.W.9 from the defence side that they deposed as instructed by P.W.1. (18) Therefore, we find that it is proved that accused assaulted the deceased with “Hasua” on 19th January, 2006 but from the deposition of P.W.10 and from the post mortem report and blood report it is not ascertained/determined that death of the deceased was caused due to injury made by the accused. (19) P.W.10 in his cross examination deposed that his post mortem report does not specifically mention for which injury the deceased expired. (19) P.W.10 in his cross examination deposed that his post mortem report does not specifically mention for which injury the deceased expired. He further stated in his cross examination that injury as per his post mortem report may be caused by any sharp cutting pointed weapon other than “Hasua” . P.W.10 also in his cross examination deposed that two injuries as per his post mortem report may be caused two separate weapons or objects. (20) P.W.1 in his depositions stated that deceased was his father. On 19.1.2006 his father was murdered. Munaf Sk told him that his brother Nurjaman murdered his father. At the time of the incident he was in the Bishu More. One Moti came there to hire one rickshaw. Moti told him that his father was murdered by Nurjaman. Then he came in front of the house of Asraul Nadaf at Biswas Para and saw the dead body of his father there. He saw bleeding injury on the left chest of his father and he heard that he was murdered with a ‘Hasua”. This written complaint was written as per the instruction of Munaf Sk. Police came and held inquest over the dead body of his father in his presence and he signed on the inquest report. This is his signature in the carbon copy of the inquest report. Munaf and others showed the place of occurrence to the police. Munaf took the hasua from Njurhaman and gave it to the police and police seized the same and he signed on the S.L (identified the signature). This “Hasua” was seized by the police in his presence marked as Mat. Exbt.1. He further stated that before the incident his father gave one room to his younger brother and then the accused person also demanded another room from his father and as his father did not give him the room, the accused person murdered him. In his cross examination he stated that he did not hand over any “Hasua to the police where the I.O and other witnesses stated that he (P.W.1) handed over the “Hasua” to the police. He further stated in his cross examination that after seeing the dead body of his father he was mentally shocked and he could not state anything to anybody and at that time as per order of the police he signed on the papers. He further stated in his cross examination that after seeing the dead body of his father he was mentally shocked and he could not state anything to anybody and at that time as per order of the police he signed on the papers. (21) Considering the abovementioned discussion we come to the findings that with some motive the accused injured the deceased on 19th January 2006 at about 18:30 hours, as the accused was not allotted second room by the deceased. Therefore, it is proved that the accused assaulted the deceased with the intention to cause bodily injury as is likely to cause death of the deceased, having regard to the nature of injuries sustained by the victim. (22) We find that Inquest report stated one injury but the post mortem report stated two injuries on the person of the deceased. (23) We therefore have no hesitation to hold that the prosecution has not been fully able to prove the charge punishable under Section 302 of the Indian Penal Code against the accused but the charge punishable under Section 304 (Part I) of the Indian Penal Code should be imposed against the accused for committing culpable homicide not amounting to murder. Therefore we held that the accused found guilty of the offence punishable under Section 304 (Part I) of the Indian Penal Code as there was intention to cause death. (24) The appeal thus stands partly allowed. (25) The appellant is convicted under Section 304 (Part I) of the Indian Penal Code. (26) The accused person namely Md. Nurjaman Sk or Kajjaban Sk is convicted under Section 304 (Part I) of the Indian Penal Code sentenced to suffer rigorous imprisonment for 10 (ten) years . (27) Let the period of detention under gone by the convict if any, during investigation, enquiry or trial and pending appeal of this case be set off against the term of imprisonment as per Section 428 of the Cr.P.C.