JUDGMENT : Sankar Acharyya, J. This appeal is directed against the judgment dated 15.9.2009 with order of conviction under Section 302, Indian Penal Code (in short I.P.C.) and sentence of rigorous imprisonment for life and to pay a fine of Rs. 3000/- and in default of payment of fine simple imprisonment for three months further. Said impugned judgment has been delivered by learned Additional Sessions Judge, 4th Fast Track Court, Malda in Sessions Case No. 376/07 corresponding to Sessions Trial No. 8/08. 2. The Trial Court framed charge under Section 302, Indian Penal Code (in short I.P.C.) against accused Md. Mortuja alias Dulal Momin charging him that he committed murder to Md. Ibrahim Sk on 31.8.2007 at about 7:30 p.m. at Kaliachawk Chowringhee Road beside New Bharat Bastralaya within P.S. Kaliachawk, District Malda. 3. During trial, the respondent state as prosecution examined as many as 18 witnesses namely Inspector Sagore Chandra Saha as PW 1, de facto complaint Md. Khurshed Ali as PW 2, Md. Hasimuddin (brother of PW 2) as PW 3, Md. Araul Islam as PW 4, Montu Sk as PW 5, Abul Sk as PW 6, Jamu Sk as PW 7, Jahangir Alam (son of PW 2) as PW 8, Md. Zulmat Hossain (son in law of PW 2) as PW 9, Samim Rehana (wife of PW 9) as PW 10, Mohalin Sk as PW 11, Md. Abdul Quddus (nephew of PW 2) as PW 12, Manjur Momin as PW 13, Dr. Debnath Sarkar (autopsy surgeon) as PW 14, A.S.I. Satyabrata Bhattacharya as PW 15, A.S.I. Haradhan Deb as PW 16, S.I. Debobrata Chakraborty as PW 17 and S.I. Narayan Chandra Das as PW 18. 4. In addition to the oral evidence some documentary evidence has also been adduced by the prosecution during trial, seized articles have been marked material exhibits, accused appellant was examined under Section 313, Code of Criminal Procedure (in short Cr.P.C.). After hearing arguments the impugned judgment of conviction and sentence has been delivered by the learned Judge in the Trial Court. 5. The case of the prosecution which was under trial in the Court below is in substance that on 31.08.2007 at 8:45 p.m. PW 2 lodged written First Information Report (in short FIR) at Kaliachawk P.S. to the effect that his son Md. 5. The case of the prosecution which was under trial in the Court below is in substance that on 31.08.2007 at 8:45 p.m. PW 2 lodged written First Information Report (in short FIR) at Kaliachawk P.S. to the effect that his son Md. Ibrabim aged about 17 years was stabbed by a knife by the accused (appellant herein) on the left side of his (Ibrahim's) chest and on different parts of the body on 31.08.2007 at about 7:30 p.m. at Kaliachawk Chowringhee More near the New Bharat Bastralaya causing his fatal injuries. He was removed towards Silampur hospital but on the way he died. PW 7, PW 8 and several others saw the occurrence of assault by accused on Md. Ibrahim. They apprehended the accused and handed over him to police with the incriminating knife. PW 3 also accompanied the victim at the time of removing from place of occurrence (in short P.O.) towards hospital. On interrogation of PW 8 the victim told that accused Mortuja was accompanied by some others also. 6. Defence of the accused appellant as appears from the trend of cross-examination of PWs and his answers during his examination under Section 313, Code of Criminal Procedure is denial of the charge against the accused. His specific defence is that the victim himself assaulted the accused by 'Chaku' (knife) and witnessing that fact the victim was chased by public at large and he was assaulted by public causing his injuries and this case has been filed by the inmates and relatives of the alleged victim Ibrahim falsely against the accused. 7. During investigation the Investigating Police Officer (in short I.O.) visited the place of occurrence and drew rough sketch map with index of the topography, held inquest over the dead body of Ibrahim, examined available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure, seized the incriminating knife, blood stained earth and plain earth from the place of occurrence, wearing apparels of the deceased victim and of PW 7 and PW 8 and of accused under separate seizure lists. I.O. sent the seized blood-stained articles for chemical analysis and obtained report. He also collected finger print of accused and the same along-with the seized knife sent for report of finger print expert and collected report. After completion of investigation I.O. submitted charge-sheet against the accused. Point for decision 8. I.O. sent the seized blood-stained articles for chemical analysis and obtained report. He also collected finger print of accused and the same along-with the seized knife sent for report of finger print expert and collected report. After completion of investigation I.O. submitted charge-sheet against the accused. Point for decision 8. Is the impugned judgment with orders of conviction and sentence liable to be set aside. Findings 9. Learned Judge in the Trial Court has discussed the evidence on record in the impugned judgment. Sitting in this Court of appeal we like to re-appreciate independently the evidence to consider whether miscarriage of justice has been caused by impugned judgment. 10. Before taking the evidence under our consideration it is mentioned that contending inter alia in the petition of appeal the appellant has contended that learned Judge in the Trial Court has failed to appreciate the evidence on record with material discrepancies in the depositions of witnesses of prosecution. It is also contended that inadmissible evidence has been taken into consideration, material witnesses PW 4, PW 5, PW 6 PW 11 and PW 13 were declared hostile and perfunctory investigation as done by the investigating Police Officer (in short I.O.) which were not considered in the impugned judgment. Appellant has claimed that miscarriage of justice has been caused by the impugned judgment and the orders of conviction and sentence are liable to be set aside. 11. Among the eighteen witnesses of the prosecution PW 4, PW 5, PW 6, PW 11 and PW 13 have been declared hostile. 12. PW 4 is owner of tailoring shop named and styled as 'M/s G.K. Tailor' at Kaliachawk Chouringhee crossing. In his examination-in-chief he claimed that he did not know Md. Ibrahim Sk. (victim) and Md. Mortuja Momin alias Dulal (accused-appellant). He also denied his knowledge about anything about this case. In the next sentence he admitted that he was examined by the Police regarding the incident of murder of Sk. Ibrahim and he stated to Police what he knew about this case. He claimed that he told the Police that at the relevant time he was not present in his shop and he was in another shop and he did not know anything about murder. He was cross-examined by learned P.P. in charge for the prosecution. Ibrahim and he stated to Police what he knew about this case. He claimed that he told the Police that at the relevant time he was not present in his shop and he was in another shop and he did not know anything about murder. He was cross-examined by learned P.P. in charge for the prosecution. During such cross-examination he has stated that at the relevant time of the incident of murder he was in the 'Beauty Bastralaya' which is situated just opposite to the shop of PW 4. According to PW 4, there were two employees Mantu Sk. (PW 5) and Abul Sk. (PW 6). He has admitted that he stated to the Police that at about 7:30 p.m. he heard some shouting and coming to his shop he heard that one Mortuja Momin killed Md. Ibrahim Sk. of Nayabasti by a 'chaku' (knife) in front of the shop of PW 4 and that the date of incident was 31.08.07. During his cross-examination by the Defence he denied the suggestion that he did not make any statement to the Police. During cross-examination by prosecution he denied his statements before police regarding his witnessing pool of blood was lying on the ground in front of his shop. 13. PW 5 is an employee in the shop of PW 4. This PW 5 denied the statements recorded by police in his name but he has admitted that he was examined by police and his statement was recorded. His positive evidence is that he was working inside 'M/s G.K. Tailors' and suddenly he heard some shouting was coming out of the shop and he saw that there was some 'Gandogole' (dispute) and thereafter, PW 5 closed down the shutter and fled away through the place of 'Gandogole'. He also stated that PW 6 was also working with PW 5 at the relevant time and PW 6 fled away before PW 5. 14. Excepting his employment with PW 5 under PW 4 in 'M/s G.K. Tailors', the PW 6 denied everything as his earlier statements before police. 15. PW 11 has stated in substance that Ibrahim Sk. of Nayabasti was murdered and that 8-10 days before the incident of murder there was a dispute between PW 11 and accused-appellant about monetary matter when the accused-appellant slapped the PW 11 and at that time several persons assembled there. 16. 15. PW 11 has stated in substance that Ibrahim Sk. of Nayabasti was murdered and that 8-10 days before the incident of murder there was a dispute between PW 11 and accused-appellant about monetary matter when the accused-appellant slapped the PW 11 and at that time several persons assembled there. 16. PW 13 has stated that Md. Mortuja alias Dulal (appellant) belong to their village but he cannot say whether he (appellant) was present in Court at the time of his deposition because PW 13 did not know him and he knew nothing about the case. During his examination-in-chief his evidence discloses about altercation between appellant and Mahalin (PW 11) regarding payment of some money. At that time PW 13 identified the appellant in Court. Obviously, this PW 13 was reasonably declared hostile. Be that as it may, his evidence neither supports the prosecution nor it supports the Defence case. 17. PW 1 is Police Inspector of Kaliachawk Police Station (in short P.S.). On 31.08.07 he received written complaint from PW 2 and started Kaliachawk P.S. Case No. 274/07 dated 31.08.07 under Section 302/34 of the Indian Penal Code. He has proved the formal First Information Report (in short FIR) as exhibit-1 and his endorsement on the written complaint as exhibit-2. His cross-examination has been declined. Exhibit-1 and exhibit-2 speak about receiving the complaint against the accused-appellant on 31.08.07 at 8:45 p.m. 18. PW 2 is the author of the written complaint. He has proved the same as exhibit-2/1. He is the father of the victim Md. Ibrahim. It is the evidence of PW 2, in substance corroborated by exhibit-2/1, that this PW 2 is not eye-witness of the occurrence but PW 7, PW 8 and many others witnessed the incident of assault on Md. Ibrahim (victim) by the accused appellant with knife and that the accused-appellant was caught red handed with the incriminating knife and handed over to police by them. Thereafter, the victim was being shifted to hospital and on the way, on interrogation he (Ibrahim) stated that some others were also with the accused appellant during the incident and Ibrahim died on the way to hospital. PW 2 went to hospital from P.S. and found dead body with stab injury of his son Ibrahim there. According to him, inquest was done by police over the dead body of the victim in his presence. PW 2 went to hospital from P.S. and found dead body with stab injury of his son Ibrahim there. According to him, inquest was done by police over the dead body of the victim in his presence. He has proved carbon impression of his signature on the inquest report as exhibit-3 as a witness to the inquest. Subsequently, police seized blood stained wearing apparels of PW 8 from the house of PW 2 and also seized blood stained wearing apparels of PW 7 from the house of PW 7 in presence of PW 2. The PW 2 has proved his signature on the seizure list relating to seizure of blood stained wearing apparels of PW 7 which has been marked as exhibit-4. According to PW 2, the wearing apparels of PW 7 and PW 8 became stained with blood when they were escorting the victim to hospital by a taxi from the P.O. 19. From his cross-examination by Defence it reveals that in hospital PW 2 met PW 3, PW 7, PW 8, PW 9, PW 10 and others. PW 2 went to P.S. alone. He has stated during cross-examination, "Not a fact I did not state in FIR as to wherefrom I came to know about the murder of said Ibrahim. Not a fact that I did not state in FIR that Jahangir and Jamu told me that they saw the incident of murder". It is true that FIR (exhibit-2/1) does not speak of positive statement of PW 2 there as suggested in the negative way during cross-examination and PW 2 denied such suggestions making it positive which is a minor contradiction. Interestingly, PW 2 has not made any statement in his examination-in-chief also that Jahangir (PW 8) and Jamu (PW 7) told him that they saw the incident of murder. Yet, denying such fact suggestion was put to PW 2 during cross-examination which has been denied by PW 2 making it positive. Strictly speaking, such positive answer of PW 2 fills up lacuna of prosecution at the instance of Defence by way of cross-examination by which it may be inferred that PW 2 gathered knowledge from PW 7 and PW 8 about the incident of murder of Ibrahim (victim) by Md. Mortuja Momin alias Dulal (accused appellant). PW 2 has not stated about dying declaration made by victim as alleged in exhibit-2/1. Mortuja Momin alias Dulal (accused appellant). PW 2 has not stated about dying declaration made by victim as alleged in exhibit-2/1. In the eye of law exhibit-2/1 is a corroborative piece of evidence. PW 2 is author of exhibit-2/1. When PW 2 is silent about such dying declaration in his oral testimony then exhibit-2/1 regarding dying declaration cannot be considered as an important substantive evidence. However, on other points his evidence could not be shaken in cross-examination. 20. PW 3 is brother of PW 2. He is not an eye-witness of the incident but he has claimed himself as post-occurrence witness. According to PW 3, he was in a tea-stall at Kaliachawk Chowringhee crossing where he heard from someone that son of PW 2 was stabbed by a knife. This statement is 'hearsay' under Section 60 of the Evidence Act. His direct evidence is that he rushed to the P.O. and witnessed that police caught the appellant when a knife was in the hand of appellant. At that time he found that PW 7, PW 8, PW 12 and 2/3 others were boarding the victim Ibrahim Sk in a taxi when there was profuse bleeding from left chest of the victim. Police seized the knife upon preparation of a seizure list in which PW 3 signed. His said signature has been marked exhibit-5. Police also obtained his signatures on some labels. He also accompanied PW 7, PW 8 and the victim on the taxi towards hospital. He has also stated that on his query on the way Ibrahim (victim) told him that Momin (appellant) assaulted him (Ibrahim) by knife on his chest though he (Ibrahim) did not say anything to Dulal (appellant). This portion of evidence of PW 3 has been claimed by prosecution as 'dying declaration' of the victim. PW 3 is also witness of inquest over the dead body of Ibrahim held by police at hospital. His signature on the inquest report has been marked exhibit-3/1. Then they went to P.S. and therefrom to the place of occurrence where police seized blood stained earth and plain earth from the P.O. in presence of PW 3 and his signature on the seizure list has been marked exhibit-6. At P.S. police seized blood stained wearing apparels of the appellant in presence of PW 3 and signature of PW 3 on that seizure list has been marked exhibit-7. At P.S. police seized blood stained wearing apparels of the appellant in presence of PW 3 and signature of PW 3 on that seizure list has been marked exhibit-7. Corroborating PW 11 this PW 3 has stated about a quarrel between PW 11 and the appellant on monetary issue about 10/12 days before the incident of this case. PW 3 has added at page 3 that Javed Sk. is uncle of PW 11 and at the time of such quarrel said Javed Sk. who is also a village 'sardar' (leader) reached there and he had scuffling with appellant. In the evening of that date Javed being accompanied by Ibrahim (victim) went to the house of appellant. The PW 3 has identified the seized knife as the incriminating knife which has been marked Mat. exhibit-I. During cross-examination of PW 3, there was no seal or label on Mat. exhibit-I. After a series of irrelevant questions for testing the veracity of PW 3 on question to PW 3 he has stated that when he went to the P.O. he found that Dulal (appellant) was caught by police and 'chaku' (knife) was in the hand of police. In course of hearing this appeal said statement of PW 3 has been claimed by appellant's side as contradiction but since the case of the prosecution is that the appellant was caught red-hand with knife and handed over to police such contradiction is treated as minor contradiction and does not destroy the very root of prosecution case. In the remaining part of the cross-examination of PW 3 major contradiction has not been established even by preponderance of probability to disbelieve the PW 3 outright. His witnessing seizure of knife, blood stained and plain earth and wearing apparels of appellant and inquest over dead body of Ibrahim are corroborated by documentary evidence adduced by prosecution. However, a shadow of doubt is cast upon his statement regarding 'dying declaration' of the victim because he has stated in page 2 of his deposition that on his query Ibrahim (victim) told him that the appellant assaulted the victim by knife on his chest though he (victim) did not say anything to appellant. In exhibit-2/1 the PW 2 has stated that on query the victim told PW 8 that some others were also present with the appellant. In exhibit-2/1 the PW 2 has stated that on query the victim told PW 8 that some others were also present with the appellant. There is no whispering in exhibit-2/1 regarding any query by PW 3 to victim on the way to hospital. Although at the time of recording evidence in Court the PW 7 and PW 8 tried to corroborate PW 3 about query of PW 3 to the victim about name of victim's assailant but PW 7 and PW 8 did not make such statement before the Investigating Police Officer (PW 17) as appears from cross-examination of PW 17. In summing up, we are not satisfied to hold that prosecution has been able to prove beyond reasonable doubt that on query of PW 3, the victim made 'dying declaration' on the way to hospital. We hold that alleged 'dying declaration' is neither 'proved' nor 'disproved' but it is 'not proved'. If for the sake of arguments without forming our opinion such statement of PW 3 is considered as untrue then also his remaining evidence cannot be considered as false following the principle that 'falsus in uno, falsus omnibus' is not applicable in India. 21. PW 7 is an independent witness of prosecution. This PW 7 Jamu Sk. is an eye-witness of the occurrence as per his deposition. According to PW 7, on the date of occurrence in the evening he along-with PW 8 Jahangir (elder brother of the victim) were taking tea from a hawker at 'Machh Patti' near Kaliachawk Chowringhee crossing at about 7:00-7:30 p.m. Suddenly, they heard a loud shouting and found that 2-3 persons ran away through the side of ticket counter of bus near the said crossing. PW 7 and PW 8 rushed to the shop of 'G.K. Tailor' and saw the appellant was assaulting Ibrahim (victim) by a knife and then Ibrahim fell down due to assault. Appellant tried to flee away but somehow PW 7, PW 8 and some other persons caught hold the appellant with knife in his hand. Public started assaulting the appellant. Two police personnel who were in traffic duty at Chowringhee crossing came to the spot and they caught hold the appellant with knife in his hand. Then a taxi was arranged, for shifting Ibrahim to hospital, with the help of local people. PW 3 reached there. Public started assaulting the appellant. Two police personnel who were in traffic duty at Chowringhee crossing came to the spot and they caught hold the appellant with knife in his hand. Then a taxi was arranged, for shifting Ibrahim to hospital, with the help of local people. PW 3 reached there. Taking the victim, the PW 7, PW 8 and PW 3 started therefrom by the taxi towards hospital. PW 7 has stated about 'dying declaration' of the victim but in order to avoid repletion that part of his evidence is not taken up for discussion. PW 7 has stated that on the way, Ibrahim Sk. died in the taxi. Ibrahim was taken to kaliachawk hospital where he was declared dead. Then, PW 7 came to P.S. He found PW 2 and PW 3 present there. Some other villagers also came to P.S. Then PW 7 returned home from P.S. After two days police being accompanied by PW 2 and PW 12 went to the house of PW 7. Police seized blood stained wearing apparels of PW 7 under a seizure list. PW 7 has identified his wearing apparels which were blood stained at the time of lifting injured Ibrahim on taxi. Said seized wearing apparels have been marked Mat. exhibit-II. During cross-examination no seal or label was found on Mat. exhibit-II. PW 7 has denied any concoction about Mat. exhibit-II. During cross-examination he has not suppressed or denied his friendship with PW 8 and the fact that PW 8 and PW 7 assaulted the appellant which makes the PW 7 a truthful and trustworthy witness. This PW 7 boldly stood with credibility to establish the truth at the time of his cross-examination leaving no room for doubting him. It is very much pertinent to say that although friendship between PW 7 and PW 8 is admitted but there no smell of animosity of PW 7 against the accused or the PW 7 has been proved as interested to see the appellant punished without any fault on the part of the appellant. 22. It is very much pertinent to say that although friendship between PW 7 and PW 8 is admitted but there no smell of animosity of PW 7 against the accused or the PW 7 has been proved as interested to see the appellant punished without any fault on the part of the appellant. 22. At the time of hearing learned counsel for the appellant has cited a decision of the Supreme Court of India in the case of Maruti Rama Naik v. State of Maharashtra reported in 2004 Supreme Court Cases (Cri) 958 and has advanced arguments that the conduct of PW 7 is against normal human being and he is not reliable as a trustworthy witness. According to him this PW 7 claims that he went to the P.O. hearing noise, he witnessed incident of assault on the victim, he (PW 7) along-with PW 8 and others apprehended the appellant red-hand and handed over the appellant to police, then went with PW 8, PW 3 and the victim hospital where the victim was declared dead and then PW 7 went to P.S. but thereafter instead of accompanying the PW 3, PW 8 and PW 2 (father of victim) he went back his home. His returning home has been pointed out as unnatural. In our view, such conduct of PW 7 cannot be treated as conduct against normal course of human nature because it is not expected that under such situation it would be the conduct of most of the persons in the society to remain present at P.S. when victim's father, brother, uncle and other co-villagers remained present near the victim. In our view, such conduct of PW 7 cannot be treated as conduct against normal course of human nature because it is not expected that under such situation it would be the conduct of most of the persons in the society to remain present at P.S. when victim's father, brother, uncle and other co-villagers remained present near the victim. In the case discussed in 2004 SCC (Cri) 958 conduct of PW 4 of that case was considered as unnatural because said witness was a relative of the victim of that case and on his way to factory he witnessed the incident of assault on victim but instead of informing the incident in the house of any of his relatives and of making any effort to get any help to shift the injured to hospital and without informing anybody or to police about the incident he went to bus stand, took a bus and went to his factory, worked for a while there, took leave from factory and went back home but did not bother to find out from anybody about the fate of the victims nor he having witnessed the incident. Such unnatural conduct does not appear in the evidence of PW 7 in the case under our consideration. As such, the ratio of reported case is distinguishable from this case. In the instant case we have no hesitation to rely upon the evidence of PW 7 as disinterested trustworthy witness. Said decision reported in 2004 SCC (Cri) 958 does not fortify the arguments on behalf of appellant. 23. Corroborating the PW 7, the PW 8 has deposed to prove the occurrence. PW 8 is a witness of seizure of the incriminating knife from possession of appellant under a seizure list where PW 8 signed (exhibit-5/1). PW 8 has also stated that returning to P.S. he found PW 2 and others present there and thereafter, PW 2 lodged FIR at P.S. PW 8 is a witness of seizure of blood stained wearing apparels of the appellant at P.S. by police under a seizure list where PW 8 signed (exhibit-7/1) as a witness. They came to hospital from P.S. again where police held inquest over the dead body of Ibrahim and prepared inquest report. They came to hospital from P.S. again where police held inquest over the dead body of Ibrahim and prepared inquest report. Then PW 8 and others accompanied by police went to the P.O. where police seized blood stained mud and plain mud under a seizure list on which PW 8 signed (exhibit-6/1). Then PW 8 returned home. After two days police went to their house and seized blood stained wearing apparels under a seizure list on which PW 8 signed (exhibit-8). He identified his seized wearing apparels which were stained with blood at the time of shifting Ibrabim to hospital from P.O, by taxi. Said wearing apparels have been marked Mat. exhibit-V. PW 8 identified the Mat. exhibit-I as the incriminating knife. He has identified the seized blood stained wearing apparels of the appellant which have been collectively marked Mat. exhibit-III. He also identified the seized blood stained and plain mud which has been marked Mat. exhibit-IV. Blood stained wearing apparels of the victim have been identified by PW 7 and the same collectively has been marked Mat. exhibit-VI. During his cross-examination nothing remarkable has come to the picture to invite a shadow of doubt on his substantive evidence excepting his claim about 'dying declaration' of the victim as discussed earlier. 24. Learned counsel for the appellant has cited the decisions of the Supreme Court of India in the cases of Arun Bhanudas Pawar v. State of Maharashtra reported in (2009) 1 SCC (Cri) 112, Sujoy Sen alias Sujoy Kumar Sen v. State of West Bengal reported in (2007) 6 SCC 32 and Ram Kumar Pande v. The State of Madhya Pradesh reported in AIR 1975 SC 1026 . He has argued that the prosecution relied upon PW 7 and PW 8 as star witnesses but said two witnesses did not disclose the name of the appellant as assailant of the victim at the first instance and for that reason PW 3 tried to make out a story of dying declaration by the victim on the way to hospital when PW 3 came to learn the name of appellant as assailant of victim. According to him, this circumstance draws a doubt about evidence of PW 7, PW 8 and PW 3 against the appellant. On going through the cited decisions it appears that said three cases were based on circumstantial evidence having no direct evidence of eye-witness of alleged occurrences. According to him, this circumstance draws a doubt about evidence of PW 7, PW 8 and PW 3 against the appellant. On going through the cited decisions it appears that said three cases were based on circumstantial evidence having no direct evidence of eye-witness of alleged occurrences. It is the settled principle that each case has its independent features separate from other cases and each case should be decided on its own merits. This case under our consideration is based upon direct evidence of apprehending the accused appellant red handed with incriminating knife and PW 7 and PW 8 have deposed in the same tune that they saw the incident of stabbing the victim by accused appellant and they caught the appellant with the help of others. In the mean time two police personnel who were in traffic duty near the P.O. reached the P.O and the apprehended accused was handed over to them. Such circumstance is absent in the cited decisions. When it is evident from depositions of PW 7, PW 8 and PW 3 that PW 3 reached the place of occurrence (P.O.) immediately after the incident of stabbing the victim and he saw the apprehended appellant with incriminating knife in presence of police personnel then it has not much importance as to whether PW 7 and PW 8 told the PW 3 at that point of time that they saw this appellant stabbed the victim and then they with help of others caught the appellant with incriminating knife. In the case reported in AIR 1975 SC 1026 there was a case of dying declaration by the victim before the PW 8 Joginder Singh to whom FIR levelled as sole eye-witness but during trial he did not claim himself as eye-witness and claimed that he was witness of dying declaration of the victim which was not believed in the decision. In this case before us we also do not rely upon dying declaration of victim as stated by PW 3. Excluding that part also we find sufficient direct evidence from PW 7 and PW 8 to believe the prosecution case against appellant. In this case under our consideration admittedly, the informant (PW 2) is not eyewitness of any incident relating to assault by appellant to victim. In this case no break of link in circumstances is established even by preponderance of probability. In this case under our consideration admittedly, the informant (PW 2) is not eyewitness of any incident relating to assault by appellant to victim. In this case no break of link in circumstances is established even by preponderance of probability. The cited case reported in (2007) 6 SCC 32 is distinguishable from this case and the ratio does not fortify the appellant in this case. In this case we have carefully considered the evidence of PW 3 regarding plea of oral dying declaration with care and caution. The decision reported in (2009) 1 SCC (Cri) 112 does not improve the defence to disbelieve the whole prosecution case. 25. PW 9 is son in law of PW 2. He witnessed the seizure of wearing apparels of PW 8. His signature on seizure list has been marked exhibit-8/1. He has stated about his knowledge about a dispute between appellant and village headman Javed to which a protest was raised by some persons including Ibrahim in the house of appellant about seven days prior to the date of Ibrahim's murder at which the appellant became angry. PW 9 came to learn it from his wife (PW 10). 26. PW 10 has stated that she found the appellant in his house in furious eye and attitude a few days prior to the occurrence of this case which was not normal and returning home she narrated that incident to PW 9. 27. Considering evidence of PW 9, PW 10 and PW 11 together prior enmity between the appellant and victim does not appear to us as obvious. In a criminal trial 'mens rea' may not be apparent but may remain in reality. As such, in the instant case though prosecution tried to prove 'mens rea' during trial but we hold that the said proof is not beyond reasonable doubt. However, absence of sufficient direct evidence of 'mens rea' does not take away the whole prosecution case with direct, positive and trustworthy evidence. 28. PW 12 who is a cousin of the victim is a post-occurrence witness. Hearing noise he went to the place and found PW 7, PW 8 and others were lifting injured Ibrahim in a taxi when he also saw police caught hold the appellant there. Police prepared a seizure list in respect of seizure of a knife from appellant and PW 12 signed (exhibit-5/2) on the seizure list. Hearing noise he went to the place and found PW 7, PW 8 and others were lifting injured Ibrahim in a taxi when he also saw police caught hold the appellant there. Police prepared a seizure list in respect of seizure of a knife from appellant and PW 12 signed (exhibit-5/2) on the seizure list. Ibrahim was taken to Kaliachawk hospital. PW 12 went there by his motor cycle and found Ibrahim dead. From hospital PW 12 went to P.S. and signed some documents relating to death of Ibrahim and returned to hospital. Inquest over dead body of Ibrahim was held in presence of PW 12 and he signed (exhibit-3/2) the inquest report. They again went to P.O. and witnessed seizure of blood stained earth and plain earth by police under a seizure list where he signed (exhibit-6/2). He also witnessed seizure of blood stained wearing apparels of Jahangir and signed (exhibit-8/2) the seizure list. He is also witness of seizure of blood stained wearing apparels of PW 7 and he signed (exhibit-4/2) the seizure list. Although, this PW 12 is cousin of the victim nothing has come out during his cross-examination to disbelieve him. 29. PW 14 is the autopsy surgeon who held post Mortem examination over the dead body of Md. Ibrahim Sk. on 01.09.07 at Malda District Hospital. On examination he found sharp-cut wounds with hemorrhage and smooth margin over (a) front left side of chest medially and vertically level with nipple measuring 1¼"X ½" viscera deep (b) upper part of left bottom laterally measuring ½" X ¼" X ¼" and (c) upper part of left thigh over back measuring ¾"X ½" X ¼". On dissection over the dead body the PW 14 found all organs were pale, sharp-cut wounds over 4th and 5th ribs adjacent to sternum over side of chest over front measuring 1¼" X ?"X full depth, over pericardium measuring 1¼" X ¼" X full depth and pericardial sac containing blood in fair amount and over heart measuring 1¼"X ¼" X cavity deep. According to his opinion, the injuries were ante mortem and homicidal in nature casual by hard and sharp cutting pointed weapon and the death was caused due to the effect of said ante mortem injuries. He has opined that chest injuries were sufficient to cause death in the ordinary course of nature. According to his opinion, the injuries were ante mortem and homicidal in nature casual by hard and sharp cutting pointed weapon and the death was caused due to the effect of said ante mortem injuries. He has opined that chest injuries were sufficient to cause death in the ordinary course of nature. At the time of recording his evidence the seized knife (Mat. exhibit-I) was shown to him seeking his opinion and he opined that the injuries might have been caused by that weapon. During his cross-examination he stated that the chest injury may be caused due to fall on any sharp cutting weapon and that at the time of Post Mortem examination no knife was shown to him seeking his opinion. This PW 14 has proved the Post Mortem report as exhibit-9 during his examination-in-chief which corroborates PW 14. 30. Learned counsel for the appellant has relied upon two decisions of the Supreme Court of India in the cases of Niranjan Panja v. State of West Bengal reported in (2010) 3 SCC (Cri) 177 and of Varun Chaudhary v. State of Rajasthan reported in (2012) 1 SCC (Cri) 616. He has argued that at the time of post mortem examination over the dead body of the victim the seized knife was not shown to PW 14 which creates a serious doubt as to the alleged recovery of Mat. exhibit-I. He has further argued that during trial, learned Judge did not show the Mat. exhibit-I for explanation by the accused appellant and therefore, the alleged recovery of Mat. exhibit-I from the possession of accused may not be considered as true. We agree that the I.O. should have produced the Mat. exhibit-I during post mortem examination over dead body of the victim before PW 14 for his opinion as to whether the injuries found on the dead body might have been caused by the Mat. exhibit-I knife or not. It is a defect on the part of the I.O. but it is not sufficient to disbelieve the whole case of prosecution. Significantly, we have noticed that although at the time of post mortem examination the Mat. exhibit-I was not shown to the PW 14 but it was shown to PW 14 at the time of recording his evidence when he opined in support of the claim of prosecution. It appears from the depositions of witness that the Mat. Significantly, we have noticed that although at the time of post mortem examination the Mat. exhibit-I was not shown to the PW 14 but it was shown to PW 14 at the time of recording his evidence when he opined in support of the claim of prosecution. It appears from the depositions of witness that the Mat. exhibit-I was produced in Court time and again during trial in presence of accused appellant but during examination of accused under Section 313, Code of Criminal Procedure learned trial Judge failed to show Mat. exhibit-I to the accused. In the case reported in (2010) 3 SCC (Cri) 177 the doctor was not given opportunity to see Mat. exhibit-I for forming his opinion while in this case on seeing Mat. exhibit-I the PW 14 expressed his opinion that the injuries of the victim might have been caused by Mat. exhibit-I. As such, the decision of (2010) 3 SCC 177 does not lead us to disbelieve the seizure of Mat. exhibit-I that is the incriminating knife which was recovered from accused appellant just after the stabbing the victim by accused appellant. Had there been production of Mat. exhibit-I before PW 14 during post mortem examination the prosecution case would be made more strong. In our view, the decision reported in (2012) 1 SCC (Cri) 616 is also distinguishable from this case. In the reported case the recovered weapon was neither produced in Court nor it was shown to the accused at any point of time. Here, the Mat. exhibit-I was repeatedly produced in Court and identified by witnesses as the incriminating weapon. Omission of learned Trial Judge to show the weapon to accused at the time of examination under Section 313, Code of Criminal Procedure cannot vitiate the trial when against series of questions by Court to accused relating to Mat. exhibit-I knife the accused never expressed his intention to see it. It is significant to note that in the last but third question during examination of accused under Section 313, Code of Criminal Procedure learned Trial Judge asked the accused to explain the circumstance that police seized on blood stained knife and other blood stained materials as Alamat but the accused replied that he had no explanation. Under such materials the omission of learned Judge cannot be said as fatal for prosecution case. 31. Under such materials the omission of learned Judge cannot be said as fatal for prosecution case. 31. The PW 15 was A.S.I. of Police on duty at Chowringhee more at Kaliachawk. At about 7:00-7:30 p.m. he along-with another A.S.I. Haradhan Deb (PW 16) and others heard noise and rushed to that place. They found that some persons were assaulting a boy and then PW 15 arrested the boy who is accused appellant as they came to learn that this appellant caused hurt to Md. Ibrahim by knife. At the time of arrest the appellant was holding the knife and PW 15 seized that knife preparing seizure list in presence of witnesses. The seizure list has been proved by PW 15 as exhibit-5/3. Since the appellant was manhandled he was taken to Kaliachawk hospital by police and he was given first aid and treatment in hospital. PW 15 brought the appellant to Kaliachawk Police Station and handed over him with seizure list and seized knife there. At the P.S. wearing apparels of appellant were seized under a seizure list on which PW 15 signed (exhibit-7/2) as witness. He also went to P.O. with the Investigating Police Officer and witnessed seizure of blood stained mud and plain mud upon a seizure list on which PW 15 signed (exhibit-6/3). PW 15 identified the Mat. exhibit-I as the knife which he seized from the appellant. During his cross-examination he stated that after seizure he labelled Mat. exhibit-I but at the time of recording his evidence there was no label on the knife. Significantly, Mat. exhibit-I has been identified by this PW 15 and all witnesses of seizure of the knife have also identified the knife (Mat. exhibit-I) and as such, even in the absence of label affixed on the knife it cannot brush aside the reliable evidence on record regarding seizure of the knife by PW 15 from the appellant. It is in the deposition of PW 15 recorded during his cross-examination that he seized the knife on being produced by Md. Abdul Kuddus, Md. Jahangir Alam and Md. Hasimuddin. It appears from the seizure list (exhibit-5/3) that in the last part of the sentence it has also been mentioned, "which was recovered from accd. Md. Mortuja @ Dulal Momin S/o Reajuddin @ Raihan Momin of Maruyabadi P.S. Kaliachawk District Malda". Significantly, said three above named persons are witnesses in the seizure list. Jahangir Alam and Md. Hasimuddin. It appears from the seizure list (exhibit-5/3) that in the last part of the sentence it has also been mentioned, "which was recovered from accd. Md. Mortuja @ Dulal Momin S/o Reajuddin @ Raihan Momin of Maruyabadi P.S. Kaliachawk District Malda". Significantly, said three above named persons are witnesses in the seizure list. As such, there is no doubt that the knife was recovered from appellant and not from the witnesses of seizure list. 32. PW 16 is A.S.I. Haradhan Deb and he was on duty at Kaliachawk Chowringhee crossing at the time of occurrence and hearing noise he rushed with PW 15 to the P.O. He has also deposed in the same tune of PW 15 regarding arrest of the accused appellant and seizure of blood stained knife from the accused appellant and taking the appellant to hospital where he got first aid and treatment. Corroborating PW 15 he has also stated that they returned to P.S. from hospital where the accused with seized article was produced and then wearing apparels of accused were seized at P.S. under a seizure list where PW 16 signed (exhibit-7/3). This PW 16 is also witness of seizure of blood stained mud and plain mud from the P.O. by the I.O. under a seizure list where also PW 16 signed (exhibit-6/4). During his cross-examination nothing has established contrary to his examination-in-chief. 33. PW 17 is the first Investigating Officer. He has stated in substance that he examined the accused and seized his blood stained wearing apparels under a seizure list (exhibit-7/4). PW 17 also examined PW 15 and PW 16 who produced the accused and other witnesses at P.S., held inquest over the dead body of Ibrahim (victim) and prepared report (exhibit-3/3). He forwarded the dead body for Post Mortem examination in hospital, visited the place of occurrence, drew rough sketch map with index (exhibit-11) of the P.O. and its surroundings, seized blood stained and plain earth from the P.O. under a seizure list (exhibit-6/5), forwarded the accused to the Court. He also seized blood stained wearing apparels of the deceased Ibrahim and blood sample of Ibrahim collected by autopsy surgeon under a seizure list (exhibit-12), seized blood stained wearing apparels of PW 8 and PW 7 under two separate seizure lists (exhibit-8/3 and 4/3 respectively). He also seized blood stained wearing apparels of the deceased Ibrahim and blood sample of Ibrahim collected by autopsy surgeon under a seizure list (exhibit-12), seized blood stained wearing apparels of PW 8 and PW 7 under two separate seizure lists (exhibit-8/3 and 4/3 respectively). Since at the time of arrest the accused was found injured due to manhandling by public he was admitted in Malda Sadar hospital at the instance of PW 17 on 01.09.07 and the accused was discharged from hospital on 08.09.07 (Discharge Certificate has been marked exhibit-14). PW 17 obtained finger print of accused under order of learned Chief Judicial Magistrate (in short C.J.M.), Malda. PW 17 sent that specimen finger print and seized knife for report of finger print expert and collected report of expert (exhibit-16). He also sent blood stained earth and wearing apparels and plain earth for F.S.L. examination but before collection of the report and after collecting Post Mortem report (exhibit-9) PW 17 submitted charge-sheet against accused under Section 302, Indian Penal Code with prayer for submitting supplementary charge-sheet after receiving F.S.L. report. Subsequently, PW 18 collected F.S.L. report and submitted supplementary charge-sheet against accused. During cross-examination PW 17 has stated in substance that before starting the case at P.S. one U.D. Case No. 14 dated 31.08.07 was started at Kaliachawk P.S. by PW 1 in connection with death of Ibrahim. Excepting Post Mortem report nothing was found in the case diary of said U.D. case. It reveals from cross-examination of PW 17 that PW 3 did not state before PW 17 that PW 3 found the Police caught hold of accused who had a knife in his hand and PW 3 found stab injury on the left chest of Ibrahim and PW 3 found profuse bleeding from said injury and he did not state about presence of Abdul Kuddus and PW 7 and PW 8 did not state about dying declaration of Ibrahim on interrogation of PW 3 and PW 9 did not state before PW 17 that PW 10 stated before PW 9 about her witnessing furious condition of accused and PW 10 did not state before PW 17 that she noticed the accused was starring at her continuously in furious eye and attitude in the house of accused before 6-7 days of occurrence. On recall by prosecution the PW 17 stated in substance that the U.D. Case No. 14/07 dated 31.08.07 was filed (dropped) on 05.12.07 as specific case at P.S. relating death of same person was started. It also reveals from his evidence that on the basis of report of the Abhijit Dasgupta the U.D. case was started at P.S. on 31.08.07 at 08:15 p.m. on 31.08.07. Copy of U.D. case register has been marked exhibit-15. During cross-examination of PW 17 he failed to give explanation of causing delay in reporting about specific case in U.D. case. 34. In the case relating to inquest report (exhibit-3/1) we only rely upon the statements made therein to the extent they relate to what the Investigating Officer saw and found which are admissible in evidence in the eye of law and we do not rely upon the portion which is inadmissible under Section 162 of the Code of Criminal Procedure. We also do not rely upon the first information report as a substantive piece of evidence and it has been used in this case for the purpose of corroboration or contradiction only. As such, we follow the principles of law discussed in the case of George and others v. State of Kerala reported in AIR 1998 SC 1376 which has been cited by learned Advocate for the appellant. Even on following the principles of law discussed in that decision of the Supreme Court of India we are not in a position to disbelieve the prosecution case. As such, said decision does not improve the case of the accused-appellant. 35. Exhibit-15 speaks that Dr. Abhijit Dasgupta examined the body of Ibrahim on production at B.P.H.C. and found him brought dead with history of stab injury at Chowringhee More and he reported it promptly to Kaliachawk P.S. Said information was received at P.S. at 8:15 p.m. Exhibit-2 (complaint) was lodged by PW 2 at P.S. at 8:15 p.m. on the same date. There is no contradiction between exhibit-2 and exhibit-6 on material point of death of Ibrahim due to stab injury at Chowringhee More. 36. It appears from exhibit-16 that Mat. exhibit-I (knife) of this case with specimen finger print were returned from Director, Finger Print Bureau, C.I.D., West Bengal on the ground that the Mat. exhibit-I does not bear a few ridge details worth attempting comparison. 36. It appears from exhibit-16 that Mat. exhibit-I (knife) of this case with specimen finger print were returned from Director, Finger Print Bureau, C.I.D., West Bengal on the ground that the Mat. exhibit-I does not bear a few ridge details worth attempting comparison. Thus, it is not a flaw on the part of Investigating Police Officer. 37. Exhibit-14 relates to injury on right thigh of the accused-appellant and his treatment in hospital and discharge therefrom. There is sufficient oral evidence on record about manhandling of the accused by public after apprehending him red handed with incriminating knife immediately after his causing stab injury to the victim Ibrahim. It is sufficient explanation on the part of state prosecution relating to injury of accused. We accept the explanation as a very common phenomenon although we do not encourage such manhandling as proper. 38. Exhibit-13 speaks that the seized blood stained articles were examined in Forensic Science Laboratory, Government of West Bengal and on examination the scrapings of seized knife (blade and handle) could not be determined because the same were found disintegrated. But all the seized wearing apparels of accused appellant, victim Ibrahim, PW 7 Jamu Sk. and PW 8 Jahangir and the blood sample collected at the time of Post Mortem examination over the dead body of Ibrahim were containing human blood but the same were not sufficient for comparison or group detection. 39. Exhibit-12 relates to seizure of wearing apparels of the deceased and his blood sample which was collected by autopsy surgeon as proved by PW 17. Exhibit-11 is a clear picture of the place of occurrence on a passage in front of the shops including 'G.K. Tailors' within a shopping complex near Kaliachawk crossing. Issuing exhibit-10 dead body of the victim was sent to District Hospital, Malda by PW 17. Exhibit-9 is Post Mortem examination report which fully corroborates PW 14. Exhibit-8/3 speaks about seizure of blood stained wearing apparels of PW 8. Exhibit-7/4 relates to seizure of blood stained wearing apparels of the accused, exhibit-6/5 speaks about seizure of blood stained earth and plain earth from the P.O., exhibit-5/3 corroborates seizure of blood stained knife at P.O. as recovered from the accused, exhibit-4/3 is a document of seizure of blood stained wearing apparels of PW 7, exhibit-3/3 is inquest report over the dead body of Md. Ibrahim which corroborates PW 14, PW 17 and exhibit-9, and exhibit-2/1 is the written complaint lodged by PW 2 at Kaliachawk P.S. which has been treated as FIR as per exhibit-1. 40. On going through the evidence on record we do not find major fault in the investigation works for which the investigation may be said as perfunctory. Excepting the matters already discussed in this judgment about 'dying declaration' of the victim and alleged prior inimical relationship between victim and accused we do not find any major discrepancy to disbelieve the major allegation against accused-appellant regarding his causing stab injury to victim Ibrahim resulting his death and arrest of the accused red hand with the incriminating knife and also the incident of manhandling the accused by public for which he was medically treated in hospital at the instance of police. 41. On re-appreciation of the evidence on record independently we do not find error in appreciation of evidence by the Trial Court in the impugned judgment in substance. There is no material on record to label the observations of the impugned judgment as perverse or to say that the Trial Judge became biased against the appellant at the time of passing the impugned judgment. Therefore, in our view, no miscarriage of justice has been caused by passing the impugned judgment of consideration and sentence under Section 302 of the Indian Penal Code against the appellant. 42. In view of the discussions made above we find and hold that during trial, the State prosecution proved the case against the accused-appellant beyond shadow of reasonable doubt. Consequently, the appellant has been rightly convicted and sentenced of the charge under Section 302 of the Indian Penal Code in the impugned judgment for which the impugned judgment deserves confirmation by us instead of setting aside the same. This point for decision is answered in the negative. We confirm the impugned judgment of conviction and sentence of the appellant and dismiss this appeal. 43. A copy of this judgment along-with LCR be sent to the Trial Court for information. Urgent Photostat certified copy, if applied for, be supplied to the parties or their advocates observing all legal formalities. Aniruddha Bose, J. - I agree.