JUDGMENT : Sankar Acharyya, J. 1. An old criminal appeal relating to homicidal death of Atul Debnath (victim) which occurred about thirty years back is under our consideration. The case was initiated on 10.10.1987 at Tufanganj police station (in short P.S.) at 8:30 p.m. recording the incident of murder which occurred at about 7:00 p.m. of that date at village Mansai which is 11 km. away from P.S. as reported against the appellant orally by Lalit Mohan Debnath, since deceased, the father of the victim and was reduced to writing by the then officer-in-charge (PW 12) of that P.S., under Section 154, Code of Criminal Procedure (in short Cr.P.C.). The case was investigated by PW 13 and then by PW 17 of Tufanganj P.S. and the investigation was ended in submitting charge-sheet under Section 302, Indian Penal Code (in short I.P.C.) against the accused appellant. 2. The appellant remains on bail under an order dated 8.11.2005 passed by a coordinate Bench in this appeal. In the trial Court in Sessions Trial No. 1 (10) 95 corresponding to Sessions Case No. 99/91 leaned Sessions Judge, Cooch Behar in his judgment dated 28.8.2000 convicted the accused appellant of the charge under Section 302, I.P.C. and on 29.8.2000 sentenced the accused appellant to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/- in default of payment of fine amount to suffer further rigorous imprisonment for six months. Challenging the said judgment of conviction and sentence this appeal has been preferred by the appellant. 3. Moot question for our determination is whether the said judgment (hereinafter called as impugned judgment) is liable to be set aside or to be sustained. 4. The case which was under trial before the learned Sessions Judge in short is that the accused appellant is son of sister of victim’s mother in law. There was an amicable understanding between victim’s father in law Mayna Debnath alias Kalicharan Debnath since deceased and appellant’s father Jiten Debnath that one ‘Gab’ tree and one ‘Pawa’ tree which were standing on the land of victim’s father in law would be taken by appellant’s father. The victim, being son-in-law of Mayna Debnath used to look after landed property of his father in law. He sold out those trees at which the appellant became annoyed and dispute cropped up between them. The victim, being son-in-law of Mayna Debnath used to look after landed property of his father in law. He sold out those trees at which the appellant became annoyed and dispute cropped up between them. On that issue, a ‘salish’ was scheduled for an amicable settlement in the house of victim’s father in law Mayna Debnath and the father of appellant called the father of victim from village of victim’s father to that house on 10.10.1987 in the evening and accordingly victim’s father Lalit Mohan Debnath came to the house of victim’s father in law. In the courtyard of that house the victim came covering his body with a white wrapper and on his call the victim also came there where the victims’ father, father in law, the appellant and Kamakshya Debanth (PW 1) remained present. Then the appellant went therefrom for a while pretending his going on nature’s call and returned to that courtyard. The appellant assaulted the victim with a sharp cutting weapon on his throat causing profuse bleeding and fled away with his weapon therefrom. Victim Atul Chandra Debnath fell down and died on the spot. After the said occurrence the appellant had consumed poison and in hospital his stomach was washed. 5. During investigation PW 13 held inquest over the dead body of the victim and prepared inquest report (exhibit-2), seized some articles from the spot including one wrapper and one letter, claiming that the wrapper and the letter were left by accused appellant there, under a seizure list (exhibit-3), seized the blood stained wearing apparels of the victim and one old blood stained sari which was pressed on the wound by victim’s father just after the occurrence under an another seizure list (exhibit-4), took snaps of the dead body of the victim and seized the photographs under an another seizure list (exhibit-5), sent the dead body for post mortem examination issuing dead body challan (exhibit-6), arranged for post mortem examination of the dead body and collected report (exhibit-9), drew rough sketch map of the place of occurrence (in short P.O.) and prepared index (exhibit-8), arranged for recording statements under Section 164, Cr.P.C. of PW 1 Kamakshya Debnath (exhibit-10) and of PW 2 Dinesh Debnath (exhibit-1). During trial prosecution examined seventeen witnesses of whom three witnesses PW 1 Kamakshya Debnath, PW 8 Jagadish Chandra Das and PW 10 Jagadish Barman were declared hostile and cross-examined by prosecution and defence both sides. PW 12 recorded the FIR (exhibit-7). 6. Defence of the accused appellant was outright denial of the prosecution case and his special defence is his alibi that at the material time he remained in hospital due to illness (vide suggestion put during cross-examination to PW 5 Haridas Barman and PW 7 Kalpana Debnath). 7. It is undisputed fact that Atul Chandra Debnath was murdered on 10.10.1987 at about 7:00 p.m. in the courtyard of the house of his father in law Mayna Debnath at village Mansai. According to prosecution case, at the time of murder the victim, the appellant, victim’s father Lalit Mohan Debnath, victim’s father in law Mayna Debnath and PW 1 Kamakshya Debnath remained present at the courtyard of the house of Mayna Debnath where the murder was committed by the appellant. Among those persons the victim, his father and father in law are not alive. PW 1 Kamakshya Debnath turned hostile. In his evidence he exposed himself as post occurrence witness of the incident of murder and he did not make any allegation against the accused appellant although he made statement before learned Judicial Magistrate under Section 164, Cr.P.C. (exhibit-10) after three days of the occurrence that in his presence the appellant committed murder to Atul Chandra Debnath and after the incident of murder he accompanied the victim’s father Lalit Mohan Debnath, since deceased, to Tufanganj police station. During trial he neither admitted nor denied his making statement before learned Magistrate. 8. It is undisputed fact that the victim Atul Chandra Debnath used to live in the house of his father in law Mayna Debnath as domestic son-in-law and he used to look after the property of his old parents in law. PW 4 Shefali Debnath is his mother-in-law and PW 7 Kalpana Debnath is his wife. His father-in-law Mayna Debnath died before trial of the case. At the relevant time of occurrence PW 4 and PW 7 were present in their house. PW 4 is sister of appellant’s mother. No reason has been suggested to PW 4 as to why she deposed against the appellant alleging the commission of murder of her son-in-law. His father-in-law Mayna Debnath died before trial of the case. At the relevant time of occurrence PW 4 and PW 7 were present in their house. PW 4 is sister of appellant’s mother. No reason has been suggested to PW 4 as to why she deposed against the appellant alleging the commission of murder of her son-in-law. She stated in substance that the appellant hit on the neck of her son-in-law by sharp cutting weapon causing his profuse bleeding injury and death. During her cross-examination she admitted the suggestion that at the material time being tired she was sleeping in her bed. Hearing hue and cry she woke up and rushed to the place of occurrence and found profuse bleeding injury on the neck of Atul. She is not considered as eye-witness of the scene of committing murder by appellant. From the evidence of PW 7 it appears to us that when the appellant assaulted Atul she was in kitchen of their house and hearing hue and cry she came out from the kitchen and found profuse bleeding on the neck of her husband. Be it noted that as per unchallenged exhibit- 8 sketch map of the P.O. the kitchen is situated just beside the P.O. According to her evidence immediately after assaulting Atul the appellant left the place of occurrence and she chased behind him but he fled away and when she returned back she found her husband was lying dead. During cross-examination she stated in substance that coming out from kitchen she found her husband was completely restless with profuse bleeding injury on the neck of her husband and she tried to nurse him and supplied her saree to her father in law to stop the bleeding of her husband. She described the circumstances prevailed before the incident of assault on her husband as “one day there was a proposal of salish at my father’s house. In that salish my father-in-law was also called. My husband, Kamakshya Debnath, my father in law and the accused were sitting and they were discussing over the issue. My father in law committed that the consideration money of the trees would be returned to the accused. But the accused did not agree”. This is her direct evidence under Section 60 of the Evidence Act. She stood with credibility during cross-examination in that matter. My father in law committed that the consideration money of the trees would be returned to the accused. But the accused did not agree”. This is her direct evidence under Section 60 of the Evidence Act. She stood with credibility during cross-examination in that matter. As such, it is sufficiently proved by PW 7 that she saw the appellant present at the place of occurrence just before the incident of assault on her husband and she also saw the appellant to disappear from the place of occurrence just after her husband’s receiving fatal injury. There is no explanation of the appellant as to why his near relations aunt (PW 4) and cousin sister (PW 7) made such serious allegation of murder against him. It is ordinary course of human conduct not to rope in an innocent person who is a near relation sparing the real culprit of murder of their near and dear. Having considered all the above aspects we do not accept the arguments advanced on behalf of the appellants that the presence of the appellant during the incident of murder at the place of occurrence is doubtful. 9. Learned counsel for the appellant argued before us that as per oral testimony there was only one stroke on the neck of the victim but as per the post mortem doctor PW 14, there were two strokes on both sides of the neck of the deceased. In this connection it may be noted that in our view none of the examined witnesses barring hostile witness PW 1 is eye-witness of the incident of assault on the victim but from the evidence of post occurrence witnesses it is evident that the assailant of the victim is only appellant and none else. Since the offending weapon could not be recovered the shape of the incriminating weapon is unknown to us. Therefore, it is not clear as to whether the assailant of the victim gave two blows with the sharp cutting weapon on the neck of the victim or due to peculiar shape of a weapon two injuries on the neck of the victim was caused by assailant’s single blow with the weapon on the neck of the victim. However, there is no missing link in the established circumstances to suggest that the appellant may not be the assailant of the victim. However, there is no missing link in the established circumstances to suggest that the appellant may not be the assailant of the victim. It will not be out of place to mention here that the only eye-witness who is alive has turned hostile but we find some vital circumstances from his past and present conduct which go in favour of prosecution. PW 1 stated in his deposition “I do not remember if I gave statement (u/s 164, Cr.P.C.) before the learned Magistrate at Tufanganj”. Exhibit- 10 bears signature of PW 1. In the deposition sheet also PW 1 signed. With bare eyes on comparison it is crystal clear that said signatures were put by same person. Under Section 80 of the Evidence Act it shall be presumed that the exhibit 10 is genuine and the statements made by PW 1 therein are true and it was duly recorded. Exhibit 7 (FIR) has been proved by PW 12 and it corroborates exhibit- 10. As such, the deposition of hostile witness PW 1 screening himself from the scene of the incident of murder to the victim by the appellant is not acceptable. Circumstances in a chain strongly suggest only possibility that in presence of PW 1 the appellant hacked the victim to death by sharp weapon on 10.10.1987 in the evening at about 7:00 p.m. in the courtyard of the house of victim’s father in law Mayna Debnath. 10. Learned counsel for the appellant argued that learned Trial Judge based his judgment of conviction and sentence on the depositions of interested witnesses PW 4 and PW 7 although there are vital and material contradiction in their depositions. Considering that arguments we have gone through the evidence of PW 4 and PW 7 with due care and caution. Separating the grains from the chaff in respect of their evidence we do not consider PW 4 and PW 7 as eye-witnesses of the incident of assault but at the same time we find and hold that none of the said witnesses has falsely implicated the appellant as author of the crime as discussed in the preceding paragraph of this judgment. In our opinion the PW 4 and PW 7 are intrinsically reliable and inherently probable witnesses of the alleged crime. It is true that the victim is husband of PW 7 and son in law of PW 4. In our opinion the PW 4 and PW 7 are intrinsically reliable and inherently probable witnesses of the alleged crime. It is true that the victim is husband of PW 7 and son in law of PW 4. Similarly it is also true that the appellant is sister’s son of PW 4 and cousin brother of PW 7. In the matter of acceptability of evidence of PW 4 and PW 7 we are satisfied with the arguments advanced on behalf of the State that their evidence is very much relevant under Section 7 of the Evidence Act. 11. Since the informant Lalit Mohan Debnath could not be examined as a witness due to his death his statement recorded in FIR under Section 154(1), Cr.P.C. as proved by PW 12 who wrote it under dictation of informant, the entries made by PW 12 in exhibit7 are relevant facts and the statements made by the informant therein are also relevant facts under Section 33 of the Evidence Act. The exhibit-7 speaks about relationship between informant, victim and the appellant which is relevant under Section 32(5) of the Evidence Act. In exhibit-7 the dispute between the victim and the appellant over trees and arrangement of amicable solution (salish) over such dispute in the house of victim’s father in law was described which constitute the motive of the appellant. Said facts are relevant under Section 8 of the Evidence Act and it corroborates PW 4 and PW 7. Exhibit- 7 goes against the accused appellant. 12. PW 2, PW 3 and PW 5 are co-villagers of appellant. There is no iota of evidence to suggest any dispute or ill-feeling between said witnesses and the appellant. No intimacy of said witnesses with the victim’s family is also established. As such, they are disinterested witnesses. According to PW 2, victim’s father and father-in-law (both are dead now) told that the appellant committed the murder. Said direct evidence of his hearing needs no corroboration. During cross-examination PW 2 could not be shaken on such core version of PW 2. 13. According to PW 3, hearing hue and cry he went to the spot when Atul’s wife (PW 7), father-in-law (since deceased) and others were crying by saying that Anil (appellant) killed Atul (victim) and went away. He found bleeding injury on the neck of Atul. 13. According to PW 3, hearing hue and cry he went to the spot when Atul’s wife (PW 7), father-in-law (since deceased) and others were crying by saying that Anil (appellant) killed Atul (victim) and went away. He found bleeding injury on the neck of Atul. His said evidence against the appellant is attracted by the principle of res gestae and relevant under Section 6 of the Evidence Act as argued by learned counsel for the State. Nothing came out during cross-examination of PW 3 to disbelieve him. 14. PW 5 heard a sound which followed cry of somebody and immediately he went to the house of Mayna Debnath and found Atul lying with profuse bleeding injury and Atul’s father was trying to stop the bleeding by pressing a piece of cloth on his neck. He further stated that being asked by him Atul’s father told him that Anil (appellant) committed the murder of Atul. PW 5 further stated that Anil went to his house and took some poisonous article and he was removed to the hospital for washing poison from his stomach. During cross-examination he stood with credibility to establish his version as true. 15. PW 6 is a Home Guard of Tufanganj P.S. He witnessed the seizure of the wearing apparels of the victim. His examination is redundant in view of the provisions of Section 100(5) of the Cr.P.C. 16. PW 8 is a hostile witness of prosecution. This witness stated that one Haridas Barman (PW 5) informed him that the appellant committed murder to Mayna Babu’s son in law. During his cross-examination seized letter was shown to him for proving that it was written by the appellant but he did not say as to whether it was written by appellant. During his cross-examination on behalf of appellant he failed to say the exact time when PW 5 gave him the information. He stated that he stayed at the P.O. for about half an hour and he saw the deceased’s wife (PW 7) was weeping. In fact, his evidence does not affect the prosecution case. 17. PW 9 is another Home Guard of Tufanganj P.S. He is a witness of seizure of some photographs of the dead body. His examination is also unnecessary under Section 100(5), Cr.P.C. 18. PW 10 is another hostile witness of prosecution. In fact, his evidence does not affect the prosecution case. 17. PW 9 is another Home Guard of Tufanganj P.S. He is a witness of seizure of some photographs of the dead body. His examination is also unnecessary under Section 100(5), Cr.P.C. 18. PW 10 is another hostile witness of prosecution. Although it is proved from his evidence that hearing hue and cry he went to the house of Mayna Debnath and reaching there he saw Mayna’s son in law with bleeding injuries lying on the ground but he did not say anything against the appellant. 19. PW 11 was constable of Tufanganj P.S. He escorted the dead body of Atul Debnath from place of occurrence to Cooch Behar morgue for post mortem examination and after post mortem examination he carried the wearing apparels of the deceased from morgue to Tufanganj P.S. which were seized at P.S. 20. PW 14 held post mortem examination over the dead body of Atul Debnath and opined in substance that the death was homicidal in nature due to the ante-mortem injuries found on the dead body which might have been caused by sharp cutting weapon like dagger and the said injuries are sufficient to cause death of a person. 21. PW 15 is another witness of seizure like PW 9. PW 16 is a photographer of Tufanganj. He took snaps of the dead body at village Mansai at the instance of police. He proved the photographs with negative films which were marked Mat. exhibit. 22. PW 17 conducted the last part of investigation and submitted charge-sheet. 23. At the time of hearing learned counsel for the appellant pointed out some minor discrepancies which appear in the depositions of witnesses of the prosecution but after due consideration we are of the opinion that such discrepancies do not touch the root of the prosecution case. It is significant to note that the witnesses were examined long after more than twelve years of the date of occurrence. The discrepancies which have been pointed out are in no way contradiction against any diction and said discrepancies are not unnatural specially when the witnesses were examined about an incident which occurred more than twelve years before their examination in witness box. 24. Learned counsel for the appellant cited a decision of the Hon’ble Supreme Court in the case of Ravulappalli Kondaiah and others Vs. 24. Learned counsel for the appellant cited a decision of the Hon’ble Supreme Court in the case of Ravulappalli Kondaiah and others Vs. State of Andhra Pradesh reported in AIR 1975 SC 216 in support of his arguments that PW 4 and PW 7 are interested witnesses and they should not be believed. This case under our consideration is dissimilar in facts to the cited case. PW 1 and PW 4 of the cited case cannot be said to be on the row where PW 4 and PW 7 of the instant case are. Here if we consider the relationship between victim and said PW 4 and PW 7 as criterion of interested status of those witnesses they should also be treated as interested to the defence case due to their close relation with the appellant and absence of any special reason of roping the appellant falsely in the case. We like to reiterate that in the instant case no reason has been assigned from the side of the appellant as to why PW 4 and PW 7 would try to rope the appellant falsely in a murder case. 25. Learned counsel for the appellant cited another decision of the Hon’ble Supreme Court in the case of Sangili alias Sanganathan Vs. State of Tamil Nadu reported in (2015) 1 C CR LR (SC) 269 in support of his arguments that the chain of circumstances in this case is not complete. In the cited case motive of the accused to kill the victim was not proved by cogent evidence. But in the case under our consideration excluding hearsay evidence of some of the PWs we find strong direct evidence in depositions of PW 4, PW 5 and PW 7 to prove dispute between appellant and victim on the issue of a ‘pawa’ tree and relating to that dispute a salish (meeting for amicable settlement) was scheduled to be held in the house of Mayna Debnath on the date and time of occurrence. Be it noted that the victim was murdered at that place. It is sufficiently evident from the deposition of PW 7 that in the salish her husband (victim), Kamakshya Debnath (PW 1), her father in law (informant) and accused (cousin of PW 7) were sitting and they were discussing over the issue. In her cross-examination she stated that the talk continued for one hour. It is sufficiently evident from the deposition of PW 7 that in the salish her husband (victim), Kamakshya Debnath (PW 1), her father in law (informant) and accused (cousin of PW 7) were sitting and they were discussing over the issue. In her cross-examination she stated that the talk continued for one hour. Her evidence about last seeing the victim together with the appellant soon before the death of the victim is very much convincing. Such a circumstance was absent in the cited case of Sangili alias Sanganathan (supra). Disappearance of the appellant just after the incident of hacking the victim from the P.O. is also proved in the instant case by PW 7 beyond reasonable doubt and soon after that Atul (victim) succumbed to his injuries on the spot. Although PW 1 turned hostile but his earlier statement (exhibit-10) recorded under Section 10 corroborates the prosecution case. The FIR (exhibit-7) also corroborates the mens rea and actus rea for the murder of Atul Debnath against the appellant. In our opinion a complete chain of circumstances suggesting the appellant only and none else guilty of murder of Atul Debnath is formed in this case. As such the ratio of the decision of the case of Sangili alias Sanganathan (Supra) does not fortify the appellant in this appeal. 26. Learned counsel for the appellant pointed out that statutory caution was not given to the accused appellant before examining him under Section 313, Cr.P.C. and so the appellant deserves the benefit in the case. He cited a decision of this High Court in the case of Harka Bahadur Rai Vs The State of West Bengal reported in 2003 C Cr LR (Cal) 1346. In the said decision Hon’ble judges pointed out series of defects in examining the accused under Section 313, Cr.P.C. In the case on our hands the only defect has been pointed out that before putting questions to him relating to the evidence adduced by prosecution the accused was not warned or cautioned that he would not be liable to punishment if he would refuse to answer the questions or would give false answers to them but in case of his giving answers to the questions of trial Court the same might have been taken into consideration in the trial against him also. In our plain reading of the Section 313, Cr.P.C. such a warning or caution by Court to the accused cannot be said as obligatory for the Court. However, it is general practice of giving such caution by trial Court to the accused before putting him questions on the basis of incriminating evidence against him. The discussions made in the case of Harka Bahadur Rai (Supra) do not speak that every error or omission in examining the accused under Section 313, Cr.P.C. vitiates the trial. In the case under our consideration the appellant was questioned separately about each material circumstance which was intended to be used against him and questions were fairly formed in such a manner that an ignorant person would also be able to appreciate and understand. In our considered opinion the cited case of Harka Bahadur Rai (Supra) does not improve the case of the appellant. 27. Having considered the facts, circumstances and evidence recorded during trial we find and hold that prosecution successfully proved its case beyond reasonable doubt against the accused appellant. The accused appellant hopelessly failed to prove his alibi that at the material time of the incident of murder of Atul Debnath the appellant was in hospital for his illness. We are satisfied to concur with the decision of learned Sessions Judge, Cooch Behar holding the accused appellant guilty of the charge of murder under Section 302, I.P.C. Accordingly, the impugned judgment is sustained and this appeal fails and dismissed. The order granting bail to the appellant is hereby recalled. Appellant is directed to surrender before learned Chief Judicial Magistrate, Cooch Behar forthwith for his serving out the remaining part of his sentence. Chief Judicial Magistrate, Cooch Behar is directed to ensure production of the appellant forthwith before the leaned Sessions Judge, Cooch Behar giving necessary direction to sureties with caution that in case of their failure to produce the appellant in Court within fifteen days hereof entire bail amounts of the sureties will be forfeited in a proceeding under Section 446, Cr.P.C. in that Court and said amount will be realised in accordance with law and in such a case the production of the appellant shall be ensured issuing warrant of arrest. After surrender/production of the appellant before learned Chief Judicial Magistrate the appellant shall be forwarded to the Court of learned Sessions Judge, Cooch Behar and therefrom he shall be sent to correctional home to serve out the remaining part of his sentence. 28. A copy of this judgment alongwith LCR be sent to the trial Court. 29. A separate copy of this judgment be sent to learned Chief Judicial Magistrate, Cooch Behar for compliance. 30. 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 : Aniruddha Bose, J.