JUDGMENT : Sankar Acharyya, J. Three appellants Sankar Roy, Bapi Roy and Mahadeb Halder have jointly filed this appeal challenging the judgment and orders dated 28.8.2010 and 29.6.2010 of conviction and sentence under Section 302/34 of the Indian Penal Code passed by learned Additional Sessions Judge, Special Court, Dakshin Dinajpur at Balurghat in Sessions Case No. 14 of 2010. Appellants have assailed the impugned judgment from various angles. In order to bring home the charge of common intention under Section 34 of the Indian Penal Code (in short I.P.C.), the prosecution has to establish by evidence whether direct or circumstantial, that there was a plan or a meeting of minds of all the accused persons to commit the offence for which they are charged, be it pre-arranged or at the spur of moment; but it must be necessarily be before the commission of the crime. Evidence is examination-in-chief and cross-examination both and not only the examination-in-chief. In a criminal trial, quality of testimony of vital witnesses is to be tested with great caution. Unexplained delay in lodging FIR is fatal for the prosecution in a criminal trial. In a criminal trial when two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused is acceptable. Referring to the said principles learned Advocate for the appellants have submitted before us that in the impugned judgment those golden principles were not followed by learned Additional Sessions Judge, during trial. He has pointed out portions of evidence of different witnesses to establish contradiction and exaggeration. He has also argued about some flaws on the part of investigating officer as fatal. He has claimed for setting aside the impugned judgment of conviction and sentence of the appellants and for acquittal of the appellants. According to the arguments advanced by learned Advocate for the state respondent defective investigation, if any, and delay if any, in lodging FIR cannot be the only grounds for acquittal of accused in a criminal trial if prosecution case is otherwise proved by cogent evidence. Scanning the evidence on record, he does not admit any unreasonable inordinate delay in lodging FIR in the instant case. Scanning the evidence on record, he does not admit any unreasonable inordinate delay in lodging FIR in the instant case. He has also claimed that taking into account the evidence of witnesses as a whole learned Additional Sessions Judge has rightly considered the role played by accused persons in the alleged occurrence and has rightly passed the impugned judgment of conviction and sentence. According to him, the role played by the appellants jointly in committing the crime complained of is sufficient to prove their motive, plan and prior meeting of minds. He has submitted for dismissal of this appeal and confirmation of the impugned judgment. Going through the impugned judgment we are not satisfied, to believe that learned Additional Sessions Judge considered only the examination-in-chief of prosecution witnesses (PWs) excluding cross-examination. Prosecution case as alleged in the first information report (in short FIR), lodged by Arun Mali ( PW 1) is that his elder brother Narottam Mali was engaged in electrical work in the house of Ramen Mardi of Dighi – Para on 17.01.2009 at about 7:30 p.m. when appellants called him out. Narottam came out and reached the road. Appellants assaulted him by sharp weapon on his chest. He raised alarm. Neighbouring people rushed to the spot. Malati Tudu (PW 3) and Uttam Mali (PW 2) gave information to PW 1 and Narottam’s wife Sova Mali (PW 2). Getting such information they rushed to the place of occurrence (in short P.O) and found Narottam was lying with his bleeding injury. On interrogation Narottam narrated that appellants called him out from house of Ramen Mardi and struck him by sharp weapon. Then PW 1 and other neighbouring people removed Narottam to Balurghat Sadar Hospital and admitted him there. He died in hospital. Written FIR has been marked exhibit- 2. Inquest over the dead body of Narottam Mali was held by A.S.I. Dhanurdhar Barman (PW 9) at Balurghat Sadar Hospital on 18.01.2009 between 10:30 a.m. to 11:30 a.m. on the basis of an information given on 17.01.2009 by the Ward-Master of that hospital about the death which was registered as U.D. Case No. 12/09 dated 17.01.2009 at Balurghat Police Station. Said inquest report has been marked as exhibit- 1/1. As per inquest report one injury on chest and one injury on the waist of the deceased were found. Said inquest report has been marked as exhibit- 1/1. As per inquest report one injury on chest and one injury on the waist of the deceased were found. At the time of holding inquest it revealed from the statements of witnesses that on 17.01.2009 at noon the victim had an altercation with appellant Sankar Roy. In the evening on that date at about 7:30 p.m. all the three appellants called Narottam out from the house of Ramen Mardi and struck him on chest by a sharp weapon and fled away. Narottam raised voice. His relatives and neighbouring persons came and removed him to hospital by an ambulance for treatment and he died in hospital. As per exhibit- 1/1, the PW 1, PW 7 and one Goutam Mandal are the witnesses of inquest. Formal FIR has been marked exhibit- 6. Prosecution has claimed that during investigation PW 3 made statement under Section 164 of the Code of Criminal Procedure which has been marked exhibit- 3. Carbon copy of Post-Mortem report relating to the dead body of Narottam Mali has been proved by Dr. Nityananda Dutta (PW 11) and it has been marked exhibit- 4. During investigation the investigating police officer (in short I.O.) S.I. – Amitava Das (PW 12) drew rough sketch map of the P.O. and its vicinity and prepared index which have been collectively marked exhibit- 5. During trial, prosecution examined twelve witnesses namely Arun Mali (PW 1), Sova Mali (PW 2), Malati Tudu (PW 3), Bharati Mardi (PW 4), Mithun Das (PW 5), Shyamal Dutta (PW 6), Uttam Mali (PW 7), Ganesh Debnath (PW 8), A.S.I. – Dhanurdhar Barman (PW 9), Malay Kanti Chowdhury (PW 10), Dr. Nityananda Dutta (PW 11) and S.I. – Amitava Das (PW 12). Appellants as accused were examined under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.). They did not adduce any evidence during trial. Prosecution claimed PW 3, PW 4 and PW 7 are eye-witnesses of the alleged occurrence. Nityananda Dutta (PW 11) and S.I. – Amitava Das (PW 12). Appellants as accused were examined under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.). They did not adduce any evidence during trial. Prosecution claimed PW 3, PW 4 and PW 7 are eye-witnesses of the alleged occurrence. PW 1, PW 2, PW 5, PW 6 and PW 8 are post-occurrence witnesses, PW 9 investigated the U.D Case, PW 10 wrote the FIR (complaint) under instruction of PW 1, PW 11 held post mortem examination over the dead body of Narottam Mali and PW 12 investigated the case as I.O. Among said twelve witnesses the PW 5 was declared hostile at the instance of prosecution and he was cross-examined by prosecution and defence. Appellants declined to cross-examine PW 8. Other witnesses were cross-examined on behalf of the appellants. Since all the witnesses of prosecution are considered by us as vital witnesses we like to give our anxious consideration with care and caution to their evidence in this case with charge of murder with common intention of the appellants. Unchallenged evidence of PW 8 speaks that the victim was brother in law of PW 8 and the victim was murdered on 17.01.2009 at about 7:30 p.m. at Adibasi para (locality of aboriginals). PW 1 informed the PW 8 over telephone about the murder. PW 8 went to the spot but found that the victim was already removed to hospital from that place. From this evidence we have no hesitation to hold and therefore, we hold that Narottam Mali was murdered in the evening of 17.01.2009 and said incident was informed by PW 1 to PW 8 over telephone and soon after getting such information PW 8 went to Adibasi Para but victim had been removed to hospital from the P.O. before PW 8 reached there. The incident of Narottam’s death in hospital was reported by Ward-Master of the hospital to Balurghat P.S. in the night of 17.01.2009 as appears from evidence of PW 9 read with exhibit- 1/1 which was prepared between 10:30 a.m. to 11:30 a.m. on 18.01.2009. It may be inferred from said evidence that police of Balurghat P.S. caused delay in holding inquest over the dead body for more than ten hours even after getting information of unnatural death of Narottam Mali. It may be inferred from said evidence that police of Balurghat P.S. caused delay in holding inquest over the dead body for more than ten hours even after getting information of unnatural death of Narottam Mali. At the time of inquest the cause of death of Narottam was divulged first before police according to the attending circumstances. As per exhibit- 2 and 6 the FIR was lodged by PW 1 at Balurghat P.S. on 18.01.2009 at 11:25 a.m. the PW 1 is one of the witnesses of inquest. PW 9 has stated that at the time of holding inquest, the witnesses were present there (vide cross-examination at page- 2). Learned Advocate for the appellants has raised a question for determination as to how it was possible for PW 1 to lodge the FIR at P.S. at 11:25 a.m. after witnessing inquest between 10:30 a.m. to 11:30 a.m. the distance between Balurghat hospital and Balurghat P.S. is not directly evident here. However, it is evident from deposition (cross-examination) of PW 1 that 5/7 minutes time was spent to go to hospital by ambulance via the road beside Court and P.S. and half an hour time is needed to come to P.S. from hospital on foot. According to cross-examination of PW 10, he wrote the petition of complaint (FIR) at Balurghat Court premises taking about half an hour time. He denied the suggestion that it was subsequently written and it is antedated. He was not asked as to when he wrote the FIR. PW 1 was also not asked as to how and when he went to Court or P.S. for lodging FIR. In our view, cumulative effect of the evidence on record does not establish any major discrepancy as pointed out by learned Advocate for the appellants regarding impossibility of lodging FIR at the mentioned time or to label the FIR as ante-timed as suggested to PW 1 and PW 10. Ignoring minor discrepancy we believe that there was no foul-play in mentioning the time of lodging FIR. We like to mention here that during cross-examination PW 1 stated that on the next day (i.e. 18.01.2009) he went to P.S. but neither he was asked nor he stated as to whether he narrated the incidents to police at that time. Had there been affirmative statement then question might have been raised against the reality of the FIR. We like to mention here that during cross-examination PW 1 stated that on the next day (i.e. 18.01.2009) he went to P.S. but neither he was asked nor he stated as to whether he narrated the incidents to police at that time. Had there been affirmative statement then question might have been raised against the reality of the FIR. Learned Advocate for the appellants has relied upon two decisions of the Hon’ble Apex Court in the cases of Krishnan @ Ramaswamy and Others Vs. State of Tamil Nadu reported in (2014) 6 Supreme 618 (at para 23) and of A. Shankar Vs. State of Karnataka reported in (2011) 4 Supreme 354 (at para 15) in support of his arguments relating to unexplained delay in lodging FIR. Going through the exhibits 2 and 6 we find that there was about 15 hours delay in lodging the FIR. PW 1 is the informant. He was not asked during examination in chief or cross-examination to explain that delay. Our sight is not lost to the fact that P.S. is only 2 k.m. away from the P.O. and evidence of PW 1 that they went to hospital via the road beside P.S. by ambulance and they returned home from hospital and PW 1 went to P.S. on the following morning at 6:00 a.m. but FIR was lodged at 11:25 a.m. In our view, said delay may be treated as fatal for the prosecution if the evidence regarding the alleged incident and involvement of appellants in committing the crime is found not very strong. The cited decisions of the Hon’ble Apex Court also do not speak that only due to unexplained delayed FIR the whole prosecution case should be disbelieved or even in case of existence of strong positive evidence also an allegation of heinous crime should be thrown away for delayed FIR. Relying upon the settled principle of law discussed in paragraph 25 in the case law Umakant and Another Vs. State of Chhatisgarh reported in 2014 (6) Supreme 655 at page 663 which has been cited by learned Advocate for the appellants are inclined to follow the guideline that “The burden of proof in criminal law is beyond all reasonable doubt. Relying upon the settled principle of law discussed in paragraph 25 in the case law Umakant and Another Vs. State of Chhatisgarh reported in 2014 (6) Supreme 655 at page 663 which has been cited by learned Advocate for the appellants are inclined to follow the guideline that “The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted”, we like to consider the case. We like to discuss on evidence of PW 5 who is hostile witness of prosecution first before discussion on remaining witnesses. During his examination-in-chief he stated that he does not know Arun Mali (PW 1), Sova Mali (PW 2) and Narottam Mali (victim) and he denied his knowledge about any murder took place before about one year of 25.05.2010. During cross-examination by prosecution he admitted that one evening about a year before his deposition on 25.05.2010 he found one person lying on the road at Adibasi – Para with bleeding injury on his person and he was groaning in pain. He denied some statements regarding bleeding injury on chest of Narottam Mali and Narottam’s statement about the cause of his injury as recorded by PW 12 under Section 161 of the Code of Criminal Procedure. However, he admitted that he made statement to the I.O. (PW 12) that Munna and he (PW 5) took Narottam to Srijani club on a cycle rickshaw and thereafter he took him (victim) to the hospital by the ambulance of that club. He also stated in deposition that house of Narottam is 10/15 minutes walk from his house and the houses of accused persons is 10 minutes walk from his house. His further statement is that accused Bapi and Shankar are known to him from before. During his cross-examination on behalf of appellants he has confirmed that Munna and he took the injured from the place where he was lying, to Srijani club on a cycle rickshaw and thereafter took him to Balurghat hospital by ambulance of Srijani club. His further statement is that accused Bapi and Shankar are known to him from before. During his cross-examination on behalf of appellants he has confirmed that Munna and he took the injured from the place where he was lying, to Srijani club on a cycle rickshaw and thereafter took him to Balurghat hospital by ambulance of Srijani club. He stated that there was no electric light at the place. In summing up his evidence it reveals that he knew Narottam Mali and he saw Narottam was lying injured although he tried to deny it firstly and he accompanied injured Narottam removing him from P.O. to hospital firstly by cycle rickshaw and then by ambulance of Srijani club. He saw and identified Narottam Mali in that evening although there was no electric light at the place. PW 6 is driver of the ambulance of Srijani club. He took one injured to Balurghat hospital. He did not look at the patient and he could not say wherefrom the injured was taken to the club premises. According to him, Munna and PW 5 brought the injured to the club premises and except PW 5, Munna, injured and PW 6 none else was in the ambulance as stated by PW 6 during cross-examination. Undisputedly, on 17.01.2009 in the evening at about 7:30 p.m. Narottam Mali was murdered at Adibasi Para (vide deposition of PW 8). It is proved by PW 9 and exhibit 1/1 that inquest over the dead body of Narottam Mali was done by PW 9 at Balurghat hospital on 18.01.2009. PW 9 found one injury on chest and one injury on waist of Narottam. Corroborating said facts PW 11 deposed during trial as autopsy surgeon. Chest injury (according to PW 9 and other witnesses) of Narottam was described as injury on upper abdomen by PW 11. Exhibit- 11 corroborates PW 11. It was opined by PW 11 that the death was due to the effects of the injuries described in exhibit- 4 and that the injuries were ante-mortem and homicidal in nature and that such injuries could be caused by long sharp cutting weapon like big knife or Bhojali (dagger) etc. During cross-examination he opined that at the time of assault the deceased was in standing position which corroborates the prosecution case. During cross-examination he opined that at the time of assault the deceased was in standing position which corroborates the prosecution case. PW 11 also stated about possibility that after receiving the first injury on the frontal side, even in lying condition he could have sustained the second injury while trying to turn aside due to pain of the first injury. Totality of his evidence does not say anything fatal to the case of the prosecution. In view of above discussions it is established that Narottam Mali died at Balurghat hospital due to homicidal death as a result of his injuries sustained at Adibasi Para and before removal of injured Narottam from the P.O. towards hospital PW 5 saw him at the P.O., PW 6 carried Narottam by ambulance from Srijani club to Balurghat hospital and Narottam had been removed to hospital before PW 8 reached to P.O. The I.O. claimed that PW 5 (hostile witness) told him that at the P.O. Narottam told him that Shankar Halder, Mahadeb and Bapi Roy called him out from house of Ramen and that Bapi Roy gave him Bhojali blow in his chest and Ramen’s wife (PW 3) and his brother’s wife (PW 4) told that they saw the occurrence but PW 5 denied his such earlier statement before I.O. PW 3 and PW 4 are the most vital witnesses of prosecution. Both of them have claimed that they are eye-witnesses of the occurrence. PW 3 is wife of Ramen Mardi and they live at Adibasi Para. Victim Narottam Mali had frequent visiting terms in their house. PW 3 has claimed that Narottam was a friend of her husband Ramen. Appellants claimed that Narottam had illicit relation with PW 3 which was not liked by Ramen or their neighbouring people. PW 3 made statement before learned Judicial Magistrate under Section 164 of the Code of Criminal Procedure (exhibit- 3). According to PW 3 and PW 4 the incident of assault on Narottam took place on the road in front of the house of Ramen Mardi and PW 3 but appellants do not admit it. According to PW 3, on the date of occurrence Narottam brought cooked mutton to the house of PW 3 and on that issue a quarrel took place at noon in that house between appellant Sankar Roy and Narottam. Again at about 6:00 p.m. Narottam went to that house. According to PW 3, on the date of occurrence Narottam brought cooked mutton to the house of PW 3 and on that issue a quarrel took place at noon in that house between appellant Sankar Roy and Narottam. Again at about 6:00 p.m. Narottam went to that house. At about 7:30 p.m. all the three appellants called Narottam out of the house and at the pucca road in front of the house appellants Sankar and Mahadeb caught hold hands of Narottam and another appellant Bapi Roy inflicted knife blow below the chest of Narottam when Narottam lost his sense. PW 4 is sister in law (husband’s brother’s wife) of PW 3 and both of them saw that incident. They informed the incident to Narottam’s wife (PW 2) and thereafter PW 1 and PW 2 came to the place of occurrence and removed Narottam therefrom. During cross-examination PW 3 stated that in the night of occurrence police took PW 3 and PW 4 to P.S. and police officer told that in case of their giving evidence they would be let off to which PW 1 agreed. PW 3 and PW 4 were kept at P.S. for two nights. Thereafter they came to court and made statement before learned Magistrate on the following date. Nothing was asked on behalf of appellants to I.O. (PW 12) about taking PW 3 and PW 4 to P.S. or keeping them there for two nights. It was not even suggested during cross-examination to PW 3 or PW 12 that police made any request or compulsion on PW 3 or PW 4 for making any untrue statement in evidence of PW 3 and PW 4. During cross-examination PW 3 was suggested that she did not state before the Magistrate or before the I.O. that accused persons had called Narottam out of the house of PW 3 or that Sankar and Mahadeb had caught hold of his (Narottam’s) hands and that Bharati (PW 4) had also eye-witnessed the occurrence. PW 3 denied such suggestions. It reveals from the exhibit- 3 that PW 3 uttered the surname of appellants Sankar and Bapi as Mahanta instead of Roy. However, she stated before learned Magistrate that Bapi called Narottam out from the house and Narottam came to the road from house (of PW 3). PW 3 denied such suggestions. It reveals from the exhibit- 3 that PW 3 uttered the surname of appellants Sankar and Bapi as Mahanta instead of Roy. However, she stated before learned Magistrate that Bapi called Narottam out from the house and Narottam came to the road from house (of PW 3). Considering the totality of the evidence of PW 3 we cannot hold that PW 3 might not had seen the occurrence. In substance her evidence is corroborated by exhibit-3 which was recorded by learned Magistrate a day after the date of occurrence. There is no major contradiction between PW 3 and exhibit-3. PW 12 stated that PW 3 stated before him that Narottam used to go their house to take country liquor. PW 3 denied it in her evidence. However, she admitted Narottam’s visiting term in their house. Unchallenged part of evidence of PW 3 proves that on the date of occurrence at noon there was a quarrel in their house between appellant Sankar Roy and the victim Narottam and Narottam again came to that house at about 6:00 p.m. However, the PW 3 proved exhibit-3 as her previous statement before learned Magistrate recorded in Court under Section 164 of the Code of Criminal Procedure. In exhibit-3 the PW 3 stated in substance that in the evening all the three appellants went to the house of PW 3 and appellant Bapi called Narottam at which Narottam went out of the house of PW 3 when appellant Bapi assaulted Narottam with a big knife on his belly which was seen by PW 3 coming out from house hearing shout and then Narottam fell down when all appellants took to their heel. In connection with her said statement recorded in exhibit-3 nothing was asked to her during cross-examination on behalf of appellants. It is not the law that a witness cannot say any relevant fact in deposition unless such statement was made before I.O. at the time of examination under Section 161 of Cr. P.C. In case of omission to make any statement before I.O. which is made in deposition is to be considered as to whether it is omission or contradiction. Unless there is diction there cannot be contradiction. P.C. In case of omission to make any statement before I.O. which is made in deposition is to be considered as to whether it is omission or contradiction. Unless there is diction there cannot be contradiction. Here omission of PW 3 is to mention before I.O. that accused Sankar and Mahadeb caught hold of hands of Narottam and Bapi assaulted Narottam with knife or sharp weapon is not contradicted by any evidence on record. As such, it cannot be said that any diction was hit by contradiction due to omission of PW 3 to make verbatim statement before I.O. We may point out a contradiction here as illustration that PW 3 stated before I.O. that Narottam used to go to their house to take country liquor but during cross-examination PW 3 stated that she did not state to the I.O. that Narottam used to go to their house to take country liquor. This is clear contradiction as there is diction in statement made before I.O. which was contradicted by her during cross-examination. But in our view such contradiction is not fatal as we follow the principle that ‘falsus in uno falsus omnibus’ is not ordinarily applicable in India. Totality of evidence of PW 3 read with exhibit- 3 leads us to believe that PW 3 is a disinterested and trustworthy witness. From the said evidence and deposition of PW 12 we find evidence in support of appellants’ taking active part in committing the fatal injury to Narottam Mali on 17.01.2009 at about 7:30 p.m. on the road in front of the house of PW 3 at Adibasi Para. Appellants have pointed out the omissions of PW 3 in making certain statements before I.O. to impress upon this Court to believe that PW 3 did not make true statement alleging involvement of the appellants in the alleged crime. We like to mention that had there been no statement of PW 3 before PW 12 or before learned Magistrate implicating any of the appellants but she had given evidence against the appellants in her deposition it would have been treated as contradiction or exaggeration or embellishment or inconsistency or improvements in view of the decision of the Hon’ble Supreme Court of India in the case of Hasan Murtza Vs. State of Haryana reported in 2002 SCC (Cri) 498 which has been referred to by learned counsel for the appellants. State of Haryana reported in 2002 SCC (Cri) 498 which has been referred to by learned counsel for the appellants. In view of our discussions made above we find that the ratio of the said reported decision is not applicable in this case to disbelieve PW 3. Here we find no reason to doubt presence of PW 3 in the scene of occurrence. There is not even any smell of enmity between PW 3 and any of the appellants to cast any shadow of doubt that PW 3 might have made false implication to the appellants. Reading simultaneously the depositions of PW 3, PW 12 and the exhibit- 3 we find evidence of quarrel between victim and appellant Sankar in the noon of the date of occurrence at the house of PW 3 and again return of said Sankar accompanied by other two appellants Bapi and Mahadeb in the evening to that house before the incident of assault on Narottam by appellant Bapi Roy in presence of other two appellants on the road in front of the house of PW 3. It is sufficient to establish plan or meeting of minds of all the three appellants and their common intention for committing the crime. The facts discussed in the decision of the Hon’ble Apex Court in the case of Alil Mollah and Anr Vs. State of West Bengal reported in 1996 SCC (Cri) 1028 relied by learned counsel for appellants is totally dissimilar to the instant case for which we are constrained to hold that said decision does not fortify the appellants in this case. Regarding common intention learned advocate for the appellants relied upon the decision in the case of State of Punjab Vs. Bakhshish Singh and Ors. reported in (2008) 17 SCC 411 . We like to reiterate that in this case quarrel took place first between victim and appellant Sankar at the noon in the house of PW 3 and in the noon all the three appellants including Sankar came to that house together, called the victim out and on victim’s going out he was assaulted with sharp weapon by appellant Bapi in presence of Sankar and Mahadeb. Even for the sake of arguments if we do not believe the evidence of PW 3 that Sankar and Mahadeb caught hold of hands of victim Narottam and at that time Bapi assaulted Narottam with sharp weapon as deposed in substance by PW 3 then also presence of appellants Sankar and Mahadeb with Bapi at the time of the incidents is sufficient to prove their common intention and to attract the provisions under Section 34 of the Indian Penal Code against them. Therefore, the cited decision of the case reported in (2008) 17 SCC 411 also does not improve the case of appellants. Another case of Sripathi and others Vs. State of Karnataka decided by the Hon’ble Apex Court reported in (2009) 11 SCC 460 has also been relied on by learned counsel for the appellants on the point of applicability of Section 34 of the Indian Penal Code against accused Sankar and Mahadeb. The said reported case might have been applied for raising doubt regarding involvement of Sankar and Mahadeb or Bapi and Mahadeb if there would not be quarrel between Sankar and victim at the noon on the incident of inflicting injury to Narottam would be caused by Sankar instead of appellant Bapi in the evening. In this case the pre-meditation of all the appellants for committing the crime is well-founded from the circumstances which was absent in the reported case of Sripathi and others. We have made detailed discussion about common intention of all the three appellant accused persons. We like to reiterate that appellant Sankar had quarrel with victim at the noon on the very date of occurrence and therefore, animosity of Sankar with the deceased is established here. We like to add that appellants Bapi and Sankar both are sons of Khagendra Nath Roy as appears from exhibit-6 which has been proved by PW 12 by his re-examination. It is significant to note that it is evident that quarrel took place between Sankar and victim and Sankar’s brother Bapi caused the fatal injury of victim in presence of Sankar and Mahadeb. Considering said aspects we are also not satisfied to hold that following the decision of the Hon’ble Apex Court in the case of Munnilal Vs. It is significant to note that it is evident that quarrel took place between Sankar and victim and Sankar’s brother Bapi caused the fatal injury of victim in presence of Sankar and Mahadeb. Considering said aspects we are also not satisfied to hold that following the decision of the Hon’ble Apex Court in the case of Munnilal Vs. State of M.P. reported in 2009 (1) Supreme 328 , which also has been cited by learned counsel for the appellants in this appeal, any of the three appellants may be exempted from the liability on the ground of lack of common intention under Section 34 of the Indian Penal Code. PW 4 also stated about quarrel between appellant Sankar and the victim at noon and victim Narottam again went to the house of PW 3 and PW 4 in the evening and thereafter, appellants Mahadeb and Bapi called Narottam and witnessed that Mahadeb and Sankar caught hold of hands of Narottam and Bapi assaulted by knife blow to Narottam below his chest. During cross- examination of the I.O. (PW 12) he stated that he examined PW 4 on 18.01.2009. But he was not asked about any statement of PW 4 made in her deposition to confront her. As such, it may be presumed that PW 4 made statement before PW 12 in the same tune of her examination-in-chief although PW 4 stated that she was not examined by police. The PW 4 stood with credibility during cross-examination. From the totality of her evidence we are convinced that PW 3 and PW 4 saw appellants Sankar and Mahadeb caught hold of hands of victim Narottam when appellant Bapi gave fatal blow to Narottam with sharp weapon on his vital organ of the body. During cross-examination of PW 4 attempt was made on behalf of the appellants to establish that out of fear of police evidence was given by PW 4 but the witness turned down any such possibility. Attempt was also made on behalf of appellants during cross-examination of PW 4 to establish that neighbouring persons would not like visit of Narottam in the house of PW 3 and they had quarrel with Narottam due to that reason but it is disproved by negative answer of PW 4. Attempt was also made on behalf of appellants during cross-examination of PW 4 to establish that neighbouring persons would not like visit of Narottam in the house of PW 3 and they had quarrel with Narottam due to that reason but it is disproved by negative answer of PW 4. Her positive statements corroborating prosecution case and evidence of PW 3 on material points were denied by appellants putting suggestions but nothing favourable to appellants was established. We think it necessary to reiterate for giving emphasis that it is well-proved by PW 4 that PW 3 and PW 4 saw appellants Sankar and Mahadeb caught hold of hands of Narottam when appellant Bapi gave fatal blow by sharp weapon below the chest of Narottam for which he succumbed in hospital. PW 4 left no room to disbelieve her. Her evidence is so strong that none of the decisions cited on behalf of appellants becomes helpful to fortify the appellants. PW 3 and PW 4 are disinterested and independent witnesses of prosecution. PW 7 is younger brother of victim Narottam Mali. According to PW 7, on 17.01.2009 at about 7:30 p.m. on his way from work he heard shouts and went to the spot where he found Narottam was lying in injured condition at Adibasi Para in front of the house of Ramen Tudu (Mentioned this name instead of Ramen Mardi). He went to the victim and asked him about the incident when Narottam told that Sankar and Mahadeb caught hold of his hands and Bapi assaulted him giving knife blow below his chest. On being informed by PW 3, PW 4 and PW 7 the PW 1 and PW 2 came to the P.O. and Narottam narrated the incident to them also. Victim was removed to hospital by ambulance and he succumbed to injury there. Police held inquest over the dead body in hospital on the next day. From the cross-examination of I.O. (PW 12) it appears that this PW 7 did not make any statement before I.O. to the effect that on his interrogation or on interrogation by PW 1 and PW 2 the victim narrated the incident. We are not unmindful that the two eyewitnesses PW 3 and PW 4 stated in substance that receiving injury below the chest Narottam fell down and lost sense. We are not unmindful that the two eyewitnesses PW 3 and PW 4 stated in substance that receiving injury below the chest Narottam fell down and lost sense. Considering the said circumstances and evidence we are satisfied to accept arguments advanced by learned counsel for the appellants raising doubt against prosecution claim of dying declaration of the victim Narottam Mali either before PW 1 or PW 2 or PW 7. PW 1 is another brother of the victim Narottam Mali. According to PW 1, he was informed about the incident. PW 1 and PW 2 went to the P.O. and found Narottam was lying injured in front of the gate of Ramen Mardi. PW 1 tried to lift the victim when the victim told that accused Mahadeb Haldar and Sankar Roy had caught hold of his hands and Bapi Roy had inflicted injury on the upper part of his belly with sharp cutting weapon. At that time he was restless. PW 2 had also heard what the victim had said. The victim was taken by them to Balurghat hospital by the ambulance of Srijani Sangha. Within 10/15 minutes of admission in hospital the victim succumbed. PW 3 told the PW 1 that on the date of occurrence accused Sankar Roy had a quarrel with victim Narottam at about 2:00/2:30 p.m. at Adibasi Para. PW 1 is a witness of inquest over the dead body held by police when PW 1 narrated the facts. During cross-examination PW 1 stated nothing against the prosecution case. However, in FIR PW 1 stated about oral dying declaration made by the victim implicating the appellants as responsible in causing injury of the victim. In our view, only the oral dying declaration made by the victim as alleged in FIR and in deposition of PW 1 is neither ‘proved’ nor ‘disproved’ but ‘not proved’ in the light of our foregoing discussions following the principle that when two views are possible on the evidence adduced in the case, one pointing to the guilt of accused and the other towards his innocence the view favourable to the accused is acceptable as observed in paragraph 25 of the judgment of the Hon’ble Apex Court in the case of Umakant and Another Vs. State of Chhatisgarh reported in 2014 (6) Supreme 655 . State of Chhatisgarh reported in 2014 (6) Supreme 655 . Said principle cannot be applied in the matter of allegation or imputation made by appellants that Narottam had illicit relation with PW 3 for which quarrel took place between Narottam and persons of Adibasi Para in the absence of any iota of evidence in favour of appellants. We like to mention that such allegation is based on surmise of appellants only. Surmise cannot take place of proof. Surmise and evidence cannot be taken side by side for comparison regarding possibility. In the same analogy evidence of PW 2 is also not considered as sufficient to prove oral dying declaration of the victim. Significantly this PW 2 also did not state about victim’s dying declaration before the I.O. (PW 12). Her evidence is corroborative to PW 3 in the matter of quarrel between Sankar (appellant no. 1) and Narottam on the date of occurrence at noon. During cross-examination PW 2 stated that on the date of occurrence police went to their house and she stated everything to police regarding the incident and PW 1 handed over a writing to police at that time. This evidence does not get any support in evidence of other witnesses including PW 1 and PW 12. As such, said evidence is not sufficient to disbelieve the whole case of prosecution even by preponderance of probability. In conclusion, we find and hold that prosecution was successful during trial to prove its case against all the three appellants beyond all reasonable doubt. The decision of learned Additional Sessions Judge convicting and sentencing the appellants under Section 302/34 of the Indian Penal Code cannot be set aside. As a result, this appeal fails and dismissed. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties or their engaged advocates on record observing all legal formalities. L.C.R. along with copy of this judgment be sent to trial Court. I agree.