JUDGMENT : SANKAR ACHARYYA, J. Initially this appeal was preferred by five appellants namely Biplab Karmakar @ Dilla, Tapan Karmakar, Sushanta Karmakar, Smt. Usha Karmakar and Dwigen Karmakar. During pendency of this appeal Dwigen Karmakar had passed away. Other four appellants are detained in correctional home. This appeal has been directed against the judgment dated 04.05.2007 with orders of conviction dated 04.05.2007 and sentence dated 05.05.2007 (hereinafter called as impugned judgment) of imprisonment for life and fine of Rs.3000/- each in default to suffer rigorous imprisonment for six months against above named five appellants passed by learned Sessions Judge, Cooch Behar under Section 302/34 of the Indian Penal Code (in short I.P.C.) in Sessions Trial No. 7 (9) 05 corresponding to Sessions Case No. 94 of 2005. The case which was tried in the Court of learned Sessions Judge was originated at Tufanganj police station (in short P.S.) on receiving a written information of Bablu Sutradhar on 26.01.2003 at 7:35 p.m. against six accused persons including one Samir Karmakar and above named five appellants. After completion of investigation police submitted charge-sheet against all the six FIR named accused persons under Section 302/34, I.P.C. Since accused Samir Karmakar was absconding the case against him was filed under order dated 30.09.2004 passed by learned Sub-Divisional Judicial Magistrate, Tufanganj and thereafter the case was committed to the Court of learned sessions Judge. The case was not tried against said Samir Karmakar and keeping pending the case against him the case was tried against the rest five accused persons. After full trial the impugned judgment of conviction and sentence was passed against five appellants. Prosecution case as per first information report (in short FIR) is that since 2/3 years before 26.01.2003 love affairs cropped up between informant’s brother Sushanta Sutradhar and Manika @ Mani Karmakar daughter of Prabhat @ Prabhu Karmakar. Taking advantage of it Manika’s aunt (father’s sister) Smt. Usha Karmakar (appellant herein) used to take money from Sushanta very often. On that issue salish (village meeting for amicable settlement) took place. After such salish dispute started between Sushanta and accused persons. Accused persons frequently frightened Sushanta. Taking advantage of it Manika’s aunt (father’s sister) Smt. Usha Karmakar (appellant herein) used to take money from Sushanta very often. On that issue salish (village meeting for amicable settlement) took place. After such salish dispute started between Sushanta and accused persons. Accused persons frequently frightened Sushanta. On 26.01.2003 at about 4:00 p.m. while Sushanta was going towards the town from his house the accused persons forcibly restrained him near house of accused persons on kacha road on the bank of a pond and appellant Biplab @ Dilla Karmakar stabbed with a knife on the back of Sushanta. Receiving bleeding injury Sushanta fell down. Thereafter, Someswar Biswas, Sunil Roy and Netai Dhar lifted Sushanta on a rickshaw van and were taking him to Tufanganj hospital. On their way the informant Bablu Sutradhar met them and joining with them took Sushanta to Tufanganj hospital. Within a short time Sushanta succumbed to his injuries in hospital. On the basis of said written information Tufanganj P.S. case No. 05/2003 dated 26.01.2003 was registered and the case was investigated by the then officer-in-charge of that P.S. who is hereinafter described as I.O. (investigating police officer) in this judgment. One unnatural death (U.D.) case being No. 10/03 was also registered relating to death of Sushanta Sutradhar. In connection with that U.D. case inquest over the dead body of Sushanta Sutradhar was held, dead body was sent through chalan for post mortem examination and post mortem over that dead body was held. Relating to Tufanganj P.S. Case No. 05/2003 the I.O. visited the place of occurrence (in short P.O.) drew sketch map of P.O. examined available witnesses and recorded their statements under Section 161, Cr.P.C., seized blood stained earth, and control earth and one pair chappal on 26.01.2003 under a seizure list , collected injury report and in-patient record of the victim from hospital, also collected inquest report and post mortem report, seized post mortem blood and wearing apparels of the deceased under a separate seizure list on 27.01.2003 and seized sample blood of the deceased under a separate seizure list dated 28.01.2003, recovered incriminating knife and one blood stained shirt on 28.01.2003 under an another seizure list and got the seized knife and other blood stained articles examined by Forensic Science Laboratory (FSL) during investigation as claimed by prosecution. During trial, prosecution examined fourteen witnesses namely, Bablu Sutradhar (PW 1), Ananda Seal (PW 2), Asish Kumar Paul (PW 3), Netai Dhar (PW 4), Parimal Karmakar (PW 5), Sunil Roy (PW 6), Sujit Karmakar @ Buro (PW 7), Dr. Arijit Das (PW 8), Someswar Biswas (PW 9), N.V.F. 34285 Rabindra Nath Sarkar (PW 10), Kishore Kumar Paul (PW 11), Manik Seal (PW 12), Dr. Santosh Kumar Mitra (PW 13), and the I.O.- S.I. – Jaydev Ghosh (PW 14). In addition to oral evidence of said 14 PWs prosecution also adduced the written information (FIR) as exhibit- 1, signature of PW 1 and PW 11 and PW 14 on exhibit- 1 as exhibits 1/1, 1/2, and 1/3, formal FIR as exhibit- 1/4, signature of PW 1 on inquest report as exhibit- 2, inquest report as exhibit- 2/1, signature of PW 2 and PW3 on seizure list dated 26.01.2003 as exhibits 3 and 3/1, seizure list dated 26.01.2003 as exhibit- 3/2, injury report as exhibit- 4, record of in-patient as exhibit- 5, signature of PW 10 on dead body chalan as exhibit- 6, the dead body chalan as exhibit- 6/1, signature of PW 10 on seizure list dated 27.01.2003 as exhibit- 7, seizure list dated 27.01.2003 as exhibit- 7/1, signature of PW 10 on seizure list dated 28.01.2003 as exhibit- 8, seizure list dated 28.01.2003 as exhibit- 8/1, signature of PW 12 on another seizure list dated 28.01.2003 as exhibit- 9, said seizure list dated 28.10.2003 as exhibit- 9/1, post mortem report as exhibit- 10, sketch map with index as exhibit- 11 and FSL report as exhibit- 12. Prosecution also produced the seized knife as Mat. exhibit- I, blood stained shirt of Biplab Karmakar (appellant) as Mat. exhibit- II, signature of PW 12 on label affixed to Mat. exhibit- II as Mat. exhibit- II/1 and signature of PW 12 on label pasted on Mat. exhibit- I as Mat. exhibit- I/1. Accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) and they did not adduce any evidence. Defence case of the accused persons as disclosed during trial is denial of the prosecution case and plea of innocence of the accused persons. exhibit- I as Mat. exhibit- I/1. Accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) and they did not adduce any evidence. Defence case of the accused persons as disclosed during trial is denial of the prosecution case and plea of innocence of the accused persons. In the impugned judgment learned Sessions Judge discussed the evidence on record and held five accused persons who were facing trial guilty of the charge under Section 302/34, I.P.C. In the petition of appeal the impugned judgment has been assailed on different grounds. Inter alia, the appellants have contended that the learned Judge failed to consider the infirmities in the prosecution evidence and that learned Judge erred in finding that the FIR was filed promptly with finding that telephonic information cannot be considered as FIR. Appellants have also assailed the finding of learned Sessions Judge to the effect that the prosecution is not bound to prove the motive of any offence in a criminal case in as much as the motive, if any, is known only to the deceased himself and also the accused and may not be known to others as erroneous. Finding of learned Sessions Judge in respect of recovery of knife and use of the same in the incident of murder and use of the same in the incident of murder has also been challenged claiming the findings erroneous. They have prayed for setting aside the impugned judgment and for their acquittal. We may re-appreciate the materials brought on record during trial in order to ascertain whether miscarriage of justice has been caused in the findings of the trial Court holding the appellants guilty of the charge under Section 302/34, I.P.C. in the impugned judgment. PW 1 is the informant of this case. He is brother of the victim Sushanta Sutradhar. He is not eye-witness of the alleged incident of assault on the victim. He stated that Sunil Roy (PW 6) reported the incident to him. He also claimed that on the way to hospital the victim told him the names of accused persons stating that five accused persons namely Usha Karmakar, Dwigen Karmakar, Tapan Karmakar, Sushanta Karmakar and Chelti Karmakar caught hold of him and Dilla Karmakar stabbed him with a knife. The victim was taken to Tufanganj hospital and subsequently he succumbed to his injuries at hospital. The victim was taken to Tufanganj hospital and subsequently he succumbed to his injuries at hospital. In the FIR also PW 1 did not claim himself as eye-witness of assault on the victim. Contents of FIR (exhibit-1) is not contradictory to PW 1 but it does not corroborate or contradict PW 1 on the point of dying declaration of the victim on the way to hospital. PW 6 corroborated PW 1 stating that he reported the incident to PW 1 going to his house. During cross-examination PW 1 stated that getting information he alonwith PW 6 Sunil, PW 4 Netai Dhar and PW 12 Manik Seal proceeded to the place of occurrence. On arrival there PW 1 found the victim was lying on the road alone but he was conscious. PW 1, PW 4 or PW 6 took the victim on a rickshaw van and went towards hospital. During cross-examination he could not say whether the victim was conscious at the time of their arrival at hospital. It reveals from exhibits 1 and 1/4 that the FIR was lodged at police station (in short P.S.) by PW 1 on 26.01.2003 at 7:35 p.m. alleging the occurrence took place on 26.01.2003 at 4:00 p.m. at Subhash Pally under P.S. Tufanganj. Appellant Usha Karmakar is the wife and appellants Tapan Karmakar, Sushanta Karmakar and absconding accused Samir karmakar are sons of deceased appellant Dwigen Karmakar. Appellant Biplab @ Dilla Karmakar is son of Gokul Karmakar. Inquest report (exhibit- 2/1) was prepared on 26.01.2002 at 5:50 p.m. in connection with Tufanganj P.S. U.D. Case No. 10/2003 dated 26.01.2003 which was started on the basis of information given by PW 8. Dr. Arijit Das of Tufanganj S.D. hospital to P.S. In the inquest report PW 1, PW 6 and two others signed as witnesses. As per contents of the inquest report it reveals that it was learnt from witnesses that being accompanied with his friends appellant Biplab Karmakar @ Dilla stabbed Sushanta Sutradhar on 26.01.2003 at around 4:00 p.m. Investigation of the U.D. case was closed at 7:35 p.m. on that date. In fact, after the death of Sushanta Karmakar (victim) police of Tufanganj P.S. recorded first in inquest report the preliminary cause of death expressed by PW 1 and PW 6. In fact, after the death of Sushanta Karmakar (victim) police of Tufanganj P.S. recorded first in inquest report the preliminary cause of death expressed by PW 1 and PW 6. It may be presumed that at that time excepting the name of appellant Biplab Karmakar @ Dilla no other name was mentioned by PW 1 or PW 6 as persons took part in stabbing the victim although it was stated that friends of Biplab @ Dilla accompanied him. It may also be believed that PW 1 and PW 6 accompanied the victim to Tufanganj hospital. Prosecution does not claim the PW 1 or PW 6 as eye-witness of the occurrence. Although during cross-examination PW 1 sated in substance that getting information of the occurrence from PW 6 he (PW 1) alongwith PW 4, PW 6 and PW 12 went to the P.O. but PW 12 did not corroborate it. The FIR does not speak about any dying declaration made by victim but PW 1, PW 4 and PW 6 stated that the victim made dying declaration before them. In the impugned judgment learned Sessions Judge observed, “It is therefore, seems to me that the prosecution witnesses tried to make exaggeration and improvement in incorporating the story of dying declaration by the deceased though by such exaggeration the prosecution case will not be damaged. In the circumstances, I am in view that the story of alleged dying declaration is not at all reliable”. We do not find any reason to disagree with such finding of learned Sessions Judge. In the inquest report there is no whispering about any love affairs between the victim Sushanta Sutradhar and one Manika @ Mani Karmakar and ‘salish’ in that matter. FIR speaks inimical relationship between accused persons and the victim on such issue of love affairs and ‘salish’. Further allegation in FIR is that frequently accused persons used to frighten Sushanta Sutradhar (victim). The author of FIR is PW 1. He did not state in his depositon about any incident of frightening the victim by any accused during life time of victim. There is no iota of evidence that during life time Sushanta Sutradhar made complaint against any accused before police or panchayat authority alleging any incident of frightening or threating him by any accused on the issue of his affairs/acquaintance with Manika @ Mani or alleged ‘salish’. There is no iota of evidence that during life time Sushanta Sutradhar made complaint against any accused before police or panchayat authority alleging any incident of frightening or threating him by any accused on the issue of his affairs/acquaintance with Manika @ Mani or alleged ‘salish’. Prosecution did not examine said Manika Karmakar @ Mani as a witness. Although prosecution claimed through witnesses that ‘salish’ took place under intervention of panchayat but no panchayat member was examined as witness. Nobody among the witnesses of prosecution could say name of any person who attended alleged ‘salish’ and what was the decision of that ‘salish’. Having considered the evidence of prosecution in its entirety and not by isolated scrutiny, we are of the view that the evidence of prosecution is not sufficient to prove beyond reasonable doubt that due to love affairs between the victim and Manika Karmakar @ Mani and ‘salish’ on that issue the accused persons were annoyed and became inimical against the victim for which there was a prearranged plan of the accused persons on the basis of their prior meeting of minds to commit murder to the victim. We like to mention here that barring one (appellant Biplab @ Dilla Karmakar) all other accused persons belong to same family of Dwigen Karmakar (since deceased). Learned counsel for the appellants cited a decision of the Hon’ble Supreme Court of India in the case of Mohan Singh and Another Vs. State of Punjab reported in AIR 1963 Supreme Court 174 and advanced his arguments that in the case under appeal all accused persons cannot be roped together using Section 34 of the Indian Penal Code. He took us to paragraph- 13 of that judgment where the Hon’ble Apex Court held, “Common intention denotes action-in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed cases to which S.34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by S. 34 is different from the same intention or similar intention. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by S. 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. Emperor, 72 Ind App 148: ( AIR 1945 PC 118 ), common intention within the meaning of S. 34 implies a pre-arranged plan, and to convict the accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case”. We have discussed some evidence of prosecution adduced during trial. Now we shall discuss the evidence of eye-witnesses of the occurrence and other evidence on record. For better understanding we like to mention the topography of the place of occurrence (P.O.) as reveals from exhibit- 11 first. As per exhibit- 11 the P.O is on western portion of a road stretching north to south and said place is at the adjoining east of a pond. There are dwelling houses towards west of the P.O. intervened by that pond and a pathway at the west of that pond. There are two dwelling houses and two temples of Goddess ‘kali’ and Goddess ‘Manasha’ towards east and north east of the P.O. road and there is a ‘Durga’ temple towards north of the P.O. beside the road. In between said ‘Durga’ temple and the P.O. there is meeting point of a path with the road on which P.O. exits and said path runs towards west beside the aforesaid pond and then the path runs towards south taking a curve in the north-west corner point of that pond. PW 2 is an eye-witness of the alleged incident. He stated that he was standing in front of ‘Durga’ temple at about 3:00 p.m. on the fateful day. He says a verbal altercation between Sushanta Sutradhar (victim) and Dilla Karmakar @ Biplab Karmakar and others was going on. The altercation stopped. After some time Sushanta Sutradhar being accompanied by a boy went towards the house of that boy and after some time Sushanta was returning from the house of that boy. He says a verbal altercation between Sushanta Sutradhar (victim) and Dilla Karmakar @ Biplab Karmakar and others was going on. The altercation stopped. After some time Sushanta Sutradhar being accompanied by a boy went towards the house of that boy and after some time Sushanta was returning from the house of that boy. Then in front of the house of Dwigen Karmakar Sushanta Sutradhar was attacked by five accused Dwigen, Usha, Tapan, Sushanta and Samir. Dilla Karmakar @ Biplab rushed with a knife to the P.O. and stabbed twice on the back of Sushanta Sutradhar with that knife. Witnessing such incident PW 2 went to a nearby house and therefrom reported the incident to police over phone. Then the victim was removed to the hospital in a rickshaw van. PW 2 found blood was coming out from the back of Sushanta Sutradhar. Soon after, Asish Pal (PW 3), Parimal Karmakar (PW 5) and many others assembled at the P.O. During cross-examination PW 2 stated about his knowledge regarding love affairs between Manika and victim Sushanta for long time stating that Sushanta and he were almost of same age but he was not friend of Sushanta Sutradhar. He further stated that over phone he had stated about the incident of stabbing and also about the initial altercation between Sushanta Sutradhar and the accused party. PW 2 made the phone call to police station from the house of Subal Mandal. The I.O. (PW 14) admitted during his cross-examination that prior to institution of the case he received telephonic information with regard to the occurrence. He failed to say whether any G.D. entry was made on the basis of that telephonic information. He narrated the telephonic information as one telephonic information was received from Subhash Pally area that some persons were beating one Subrata Sutradhar and also stabbed him. According to PW 2, information over telephone was given by him to P.S. naming Sushanta Sutradhar as the victim but PW 14 mentioned the name of the victim as Subrata Sutradhar as per telephonic information. According to PW 2, information over telephone was given by him to P.S. naming Sushanta Sutradhar as the victim but PW 14 mentioned the name of the victim as Subrata Sutradhar as per telephonic information. Learned counsel for the appellants argued that said information ought to have been registered as FIR at P.S. under Section 154 (1) of the Cr.P.C. Section 154 (1) reads as:- “Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf”. According to the evidence of PW 2 and PW 14 it does not transpire that PW 2 disclosed his identity over phone to police. Since the information was given over phone without disclosing name of informant, even if it would be reduced to writing at P.S. signature of the informant could not be obtained, verifying correctness of the writing of information at P.S. Therefore, we are not satisfied to accept the aforesaid argument of appellants’ side on the point of recording FIR as such information did not satisfy the requirements of Section 154 (1), Cr.P.C. However, we are of the opinion that such information should be recorded in G.D.E. book of the P.S. under Regulation 377 (B) of the Police Regulations of Bengal, 1943. PW 3 also claimed himself as eye-witness of the occurrence. According to him, on 26.01.2003 at about 4:30 p.m. he was sitting in front of ‘Durga’ temple. He found Sushanta Sutradhar was coming in front of PW 3 after dropping a person in his house. He also found that all the six accused persons (named) attacked Sushanta Sutradhar and caught hold of him and suddenly Biplab Karmakar stabbed Sushanta Sutradhar twice on his back. Sushanta (victim) fell down groaning in pain. PW 3 started shouting and rushed to the house of PW 1. Then the victim was lifted on a rickshaw van and taken to hospital. Sushanta (victim) fell down groaning in pain. PW 3 started shouting and rushed to the house of PW 1. Then the victim was lifted on a rickshaw van and taken to hospital. The incident took place in front of house of appellant Usha Karmakar at a distance of 25/30 cubits from the place where PW 3 was standing. At the time of incident PW 5, PW 12 and PW 2 were present beside PW 3. During cross-examination PW 3 stated about presence of about 15 persons in front of ‘Durga’ temple and all those persons proceeded towards the P.O. He also stated that PW 1 came to the spot after 1/1 ½ minute. PW 3 failed to say the name of the boy who was dropped in his house by victim before the occurrence. He stated about his friendship with PW 2 and PW 12. PW 4 claimed himself as post occurrence witness. On 26.01.2003 at about 4:00-4:30 p.m. he was proceeding towards market. On his way he found Sushanta Sutradhar with profuse bleeding injury was groaning in pain and was lying by the side of the bank of a tank at Subhash Pally. Then PW 1, PW 5, PW 6, PW 3 and PW 2 lifted Sushanta Sutradhar on a rickshaw van for taking him to hospital. On the way to hospital on being asked Sushanta Sutradhar told that he was assaulted by Usha Karmakar and Dilla. During cross-examination nothing revealed to disbelieve his witnessing the victim with profuse bleeding injury and groaning in pain lying beside the bank of a pond and their lifting the victim on rickshaw van and taking to hospital. PW 5 is another eye-witness of alleged occurrence. He stated that he was sitting in front of ‘Durga’ temple on 26.01.2003 at about 4/4:30 p.m. He found Usha, Dwigen, Tapan and Chelti caught hold of Sushanta Sutradhar. Suddenly, Dilla Karmakar came to the P.O. and stabbed Sushanta Sutradhar on his back and belly with a knife. Witnessing it he (PW 5) left the spot. Before the incident PW 5 was present with PW 2, PW 4 and many others at the ‘Durga’ temple at a distance of 20/30 cubits from the P.O. The incident took place in front of the house of Usha Karmakar just on the ‘Kacha’ portion by the side of the bank of a pond. Before the incident PW 5 was present with PW 2, PW 4 and many others at the ‘Durga’ temple at a distance of 20/30 cubits from the P.O. The incident took place in front of the house of Usha Karmakar just on the ‘Kacha’ portion by the side of the bank of a pond. During cross-examination he stated that he did not go to the spot. There are some contradiction in the depositions of PW 4 and PW 5, PW 4 claims himself as post occurrence witness and he stated the name of PW 5 also as lifted Sushanta Sutradhar on rickshaw van for taking him to hospital but PW 5 stated that before the incident PW 4 was also with him at ‘Durga’ temple wherefrom PW 5 witnessed the occurrence and that PW 5 did not go to the spot. PW 6 is not eye-witness of the alleged occurrence. PW 6 stated that he was standing in front of road of Subhash Pally in between 4:00 p.m. to 5:00 p.m. on 26.01.2003. he heard hue and cry. He witnessed running of people. He heard from those persons that Sushanta Sutradhar was stabbed. Then PW 6 reported to PW 1 going to his house. Therefrom PW 1 and PW 6 ran towards the spot. PW 6 was accompanied by PW 5, PW 12, one Nemai and other villagers. Coming near Sushanta Sutradhar PW 6 put off his ‘ganjee’ (Vest) on seeing bleeding of Sushanta and pressed with the ‘ganjee’ on injury of Sushanta. On his interrogation Sushanta made dying declaration. Some villagers lifted Sushanta on a van. He alongwith PW 4 accompanied Sushanta to hospital. During cross-examination PW 6 stated that he came back to the P.O. alone from the house of PW 1 and found 80/90 persons assembled at the P.O. PW 7 is hostile witness of prosecution. However, PW 7 stated that on 26.01.2003 Sushanta Sutradhar died. On that date at about 4:00/4:30 p.m. he was standing in front of his house. He found one incident of assault (marpit) was going on in front of house of Usha Karmakar. Sushanta was caught hold by Usha and her family members and her nephew (vasta) Biplab Karmakar. On seeing it he went inside his room. PW 7 was cross-examined by prosecution and defence. He found one incident of assault (marpit) was going on in front of house of Usha Karmakar. Sushanta was caught hold by Usha and her family members and her nephew (vasta) Biplab Karmakar. On seeing it he went inside his room. PW 7 was cross-examined by prosecution and defence. During his cross-examination on behalf of prosecution he admitted his earlier statement made before police to the effect that there was a love affair between Sushanta and daughter of Pravat Karmakar and that Manika was not willing to marry Sushanta and that a ‘salish’ was made on that issue and the matter was settled and that over that issue frequent quarrel took place between Sushanta and family members of Manika and Usha Karmakar and that when Sushanta was proceeding towards his own house from house of PW 7 then Usha, her husband and three sons obstructed the way of Sushanta and started assaulting him and that Usha shouted calling Biplab and Biplab came out with a knife from his house and started to stab Sushanta. During cross-examination on behalf of accused persons PW 7 stated that he used to work under PW 1 and his house is close to the house of PW 1 and he saw the incident on his way to the house of PW 1 from his house. He also stated that he heard about the incident subsequently which he narrated involving accused persons. Totality of his evidence does not appear to us convincing. PW 8 examined and treated the victim at Tufanganj S.D. Hospital for the injuries of Sushanta Sutradhar on 26.01.2003. he proved the injury report (exhibit- 4). On that date at 5:05 p.m. Sushanta Sutradhar died in that hospital due to cardio respiratory failure in case of haemorrhagic shock. PW 8 also proved indoor patient paper (Exhibit- 5). During cross-examination PW 8 stated that the patient was brought and identified by Sunil Roy (PW 6). When the patient was brought to hospital the patient was in dying condition and unable to speak. He reported the matter to police station directly. There is nothing in his evidence to suggest the cause of death of Sushanta Sutradhar was other than the injuries found on the persons of the patient. PW 9 is a person of Debagram, P.S. Baxirhat which is five miles away from Subhash Pally. He did not know any person of village Subhash Pally. There is nothing in his evidence to suggest the cause of death of Sushanta Sutradhar was other than the injuries found on the persons of the patient. PW 9 is a person of Debagram, P.S. Baxirhat which is five miles away from Subhash Pally. He did not know any person of village Subhash Pally. On 26.10.2003 he went to the house of one Gopi Das at Subhash Pally for fixing a marriage negotiation. House of Gopi Das is situated on the northern side corner of a tank. PW 9 heard a hue and cry which was coming from western bank of the pond while they were discussing about the proposal of marriage sitting in the ‘angina’ (courtyard) of the house. Hearing shout sitting in the ‘angina’ he came out from that house and witnessed two boys wearing ‘chadar’ (wrapper) came and caught hold of Sushanta Sutradhar and one person stabbed on the back of Sushanta Sutradhar. Sushanta fell down by the side of the tank and the road. After 10/15 minutes he went to the spot from North West corner of the pond and found blood was coming from the mouth of Sushanta Sutradhar. PW 9 raised hue and cry and hearing it some neighbouring persons rushed to the spot. His deposition speaks a third case. PW 9 identified accused Sushanta Karmakar (appellant) and Biplab Karmakar (appellant) as assailants of Sushanta Sutradhar. We are not satisfied to give much importance to his evidence treating him a chance witness. PW 10 is a NVF and was attached to Tufanganj P.S. on 26.01.2003. He escorted the dead body of Sushanta Sutradhar from Tufanganj P.S. to M.J.N. hospital, Cooch Behar for post mortem examination and after post mortem examination he brought the wearing apparels of the deceased and the same were seized by I.O. on 27.01.2003 (exhibits 7 and 7/1). Although PW 10 stated that post mortem was done on 26.01.2003 but the autopsy surgeon (PW 13) and post mortem report speak that post mortem was done on 27.01.2003. PW 11 is a practising advocate of Tufanganj Court. He scribed the FIR (exhibit-1 ) under dictation of PW 1. PW 12 is another eye-witness of the alleged occurrence as claimed by prosecution. He stated that on 26.01.2003 he was sitting in front of ‘Durga’ temple. PW 11 is a practising advocate of Tufanganj Court. He scribed the FIR (exhibit-1 ) under dictation of PW 1. PW 12 is another eye-witness of the alleged occurrence as claimed by prosecution. He stated that on 26.01.2003 he was sitting in front of ‘Durga’ temple. He found Sushanta Karmakar (appellant), Usha Karmakar (appellant), Dwigen Karmakar (appellant, since deceased), Tapan Karmakar (appellant) and Subir karmakar @ Chelti caught hold of Sushanta Sutradhar and jostling and pushing him in front of house of Usha. Suddenly Biplab Karmakar (appellant) rushed to the P.O. and stabbed Sushanta Karmakar (possibly said name has been mistakenly mentioned instead of Sushanta Sutradhar) on his back causing bleeding injuries. Thereafter, PW 1, PW 4, PW 6 and many others took Sushanta Sutradhar to hospital. This PW 12 is a witness of seizure of incriminating knife and a shirt by PW 14 from bush situated behind the house of appellant Tapan karmakar. He identified the seized knife and seized shirt stating that appellant Biplab karmakar had worn that shirt. Firstly he uttered the name Subir Karmakar @ Chelti but subsequently he stated Samir Karmakar @ Chelti (said name is undisputed). In exhibit- 1 name of Samir Karmakar has been written as one of the accused persons. During cross-examination he stated that so long he had seen the incident excepting Usha Karmakar and Dwigen Karmakar all other assailants went away and that Sushanta Sutradhar fell down in front of house of Usha Karmakar and that on seeing this mother of PW 12 took PW 12 to their house and on that date PW 12 did not come out of their house. PW 13 held post mortem examination on the corpse of Sushanta Sutradhar. He described the injuries of the deceased and opined that due to shock and haemorrhage following the injuries which were ante mortem and homicidal in nature. The post mortem report was proved (exhibit- 10) by PW 13. Cross-examination of PW 13 was declined. Exhibit- 10 corroborates PW 8 and PW 13. According to PW 13, the injuries of the deceased were caused by sharp cutting weapon. PW 14 is the I.O. He stated about the acts of investigation done by him. The post mortem report was proved (exhibit- 10) by PW 13. Cross-examination of PW 13 was declined. Exhibit- 10 corroborates PW 8 and PW 13. According to PW 13, the injuries of the deceased were caused by sharp cutting weapon. PW 14 is the I.O. He stated about the acts of investigation done by him. During cross-examination he stated about contradiction between earlier statements of PW 4 and PW 6 recorded by PW14 under Section 161, Cr.P.C. and their depositions recorded during trial, relating to alleged dying declaration of the victim. During examination of accused persons the appellant Biplab Karmakar admitted his relation with Mallika (possibly name is Manika) Karmakar. Usha Karmakar stated about their far relation with Mallika (Manika). She stated that the occurrence took place not in front of her house but at a little bit distance. However, none of the accused persons denied homicidal death of Sushanta Sutradhar on 26.01.2003. PW 2, PW 3, PW 5, PW 9 and PW 12 were examined as eyewitnesses of the occurrence. During trial nothing came out to suggest anybody out of said five witnesses was interested with the prosecution case or inimical to any accused. PW 2, PW 3, PW 5 and PW 12 have claimed that they witnessed the occurrence from ‘Durga’ temple. Exhibit- 11 does not show any obstruction between said temple and the P.O. Undisputedly, said temple is 25/30 cubits away from the P.O. It is not the evidence of PW 2, PW 5 and PW 12 that accused Biplab Karmakar came to the P.O. with other accused persons. Said Biplab is also not a member in the family of other accused persons. There is no evidence that prior to the occurrence there was any concert for any act between Biplab Karmakar and other accused persons. It is not the evidence of any eye-witness that excepting Biplab Karmakar any other accused was armed with any weapon. Having considered the totality of evidence of five eye-witnesses we are of the opinion that PW 9 is a chance witness but other four eye-witnesses PW 2, PW 3, PW 5 and PW 12 cannot be disbelieved in to to. We are not unmindful that there are some minor discrepancies in the account of said eye-witnesses. Having considered the totality of evidence of five eye-witnesses we are of the opinion that PW 9 is a chance witness but other four eye-witnesses PW 2, PW 3, PW 5 and PW 12 cannot be disbelieved in to to. We are not unmindful that there are some minor discrepancies in the account of said eye-witnesses. In our opinion, such minor discrepancies are natural in a case when it is projected not through any technical mechanism but through human process after considerable passage of time. Different witnesses may visualize an incident taking notice of facts from different angles unless they are tutored in a class room for giving evidence in Court. Taking into consideration the evidence on record we find reason to believe and we believe that in the afternoon of 26th January, 2003, while the victim Sushanta Sutradhar was proceeding on his way through the P.O near the house of accused Usha Karmakar then Usha Karmakar, her husband Dwigen karmakar and three sons Tapan Karmakar, Sushanta Karmakar and Samir Karmakar @ Chelti (absconding) wrongfully restrained him but they did not assault Sushanta Sutradhar. Subsequently, Biplab Karmakar appeared with a knife there and stabbed Sushanta Karmakar on his back voluntarily which caused his death in hospital. We also believe that the incriminating weapon and a shirt worn by Biplab during occurrence as claimed were recovered by the I.O. (PW 14) during investigation as proved by PW 12, PW 14 and exhibit- 9/1. We find absence of link between two acts of wrongful restrain by five accused and stabbing by accused Biplab Karmakar. Exhibit12 is the FSL report regarding examination of seized knife, shirt, sample blood (collected during post mortem examination), seized blood stained earth of the P.O. On examination blood group of sample blood could be ascertained as Group- A but only it could be ascertained that human blood was found on all those articles and group of said blood on other articles could not be ascertained as reveals from exhibit-12. Considering the totality of facts circumstances and evidence on record we find corroboration to the prosecution case in exhibit- 12. Considering the totality of facts circumstances and evidence on record we find corroboration to the prosecution case in exhibit- 12. We hereby make it clear that in our view, prosecution successfully proved beyond shadow of doubt that on 26.01.2003 in the afternoon between 4:00 p.m. and 4:30 p.m. one incident of wrongful restraint of the victim by five accused persons all belonging to same family occurred and simultaneously, another incident of stabbing the victim on his back with knife by accused Biplab Karmakar occurred at the place of occurrence. Prosecution failed to adduce sufficient evidence to make a link between said two incidents to establish the happening of two incidents are not different but of a single act. In the impugned judgment learned Sessions Judge could not segregate the two incidents from one another and as such it requires modification in the light of observations made in this judgment. In summing up, we find and hold that prosecution successfully proved that appellant Biplab Karmakar committed the murder of victim. Sushanta Sutradhar but extending the benefit of doubt we hold that prosecution failed to establish the common intention of other appellants in committing the murder of the victim with the aid of Section 34 of the Indian Penal Code. However, prosecution has been able to prove beyond reasonable doubt that appellants Usha Karmakar, Tapan Karmakar and Sushanta Karmakar committed wrongful restraint to victim Sushanta Sutradhar in the afternoon of 26.01.2003. As a result, appellant Biplab Karmakar is found guilty of the charge under Section 302 of the I.P.C. and findings of his conviction and sentence made by learned Sessions Judge in the impugned judgment to that effect is upheld and confirmed. Appellants Usha Karmakar, Tapan Karmakar and Sushanta karmakar are found guilty of the offence punishable under Section 341 of the Indian Penal Code and accordingly convicted and sentenced to simple imprisonment of one month. Their conviction and sentence under Section 302/34, I.P.C. is set aside. The impugned judgment with orders of conviction and sentence is modified to that extent. In consequence, the appeal is allowed in part. No order as to costs is passed. The impugned judgment of conviction and sentence is modified. Appellant Usha Karmakar, Tapan Karmakar and Sushanta Karmakar are detained in judicial custody for much more than one month and their sentence of simple imprisonment for one month is set off. In consequence, the appeal is allowed in part. No order as to costs is passed. The impugned judgment of conviction and sentence is modified. Appellant Usha Karmakar, Tapan Karmakar and Sushanta Karmakar are detained in judicial custody for much more than one month and their sentence of simple imprisonment for one month is set off. Let them be released forthwith from this case as their sentence has already been executed if their detention is not wanted in any other case. Copy of this judgment alongwith LCR be sent to the trial Court form department. Urgent Photostat certified copy of this judgment, if applied for be given to the parties or their advocates on record in compliance with usual formalities. I agree.