JUDGMENT : SANKAR ACHARYYA, J. 1. This appeal has been preferred by two appellants Kamala @ Rahim Ali Sk. (A-1) and Md. Kayum Ali Sk. @ Julfikar (A-2) against the judgment of conviction dated 12.01.2005 and order of sentence dated 13.01.2005 to suffer rigorous imprisonment for life and to pay fine of Rs.2000/- each in default of payment of fine amount to suffer simple imprisonment for six months of the charge under Section 302/34, Indian Penal Code (in short I.P.C.) passed by learned Additional Sessions Judge, 5th Fast Track Court, Alipore, South 24 Parganas in Sessions Trial No. 6 (2) 2004 arising out of Sessions Case No. 102 (7) 03. 2. In the trial Court, out of three accused persons one Bhola @ Ichaque Sk. remained absconding and did not face the trial. His case was splitted up and the two appellants of this appeal faced the trial and after full trial they were convicted and sentenced under Section 302/34, I.P.C. 3. During pendency of this appeal A-2 claimed that at the time of alleged occurrence he was a juvenile. On his prayer for determination of his age under the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rules framed thereunder an enquiry was held by the trial Court under order passed in this appeal. After enquiry report was submitted with finding that Md. Kayum Ali Sk. @ Julfikar was major by age on the date of occurrence being the 22nd October, 2002. Subsequent to receipt of such report the application being CRAN 2012 of 2009 of A-2 for determination of age of the A-2 was not pressed and dismissed on 28.08.2015. 4. Both the appellants are detained in correctional home as convicts. 5. Inter-alia, in the petition of appeal, the appellants have assailed the judgment under appeal (hereinafter called as impugned judgment) that learned Judge in the trial Court failed to appreciate the flaws appearing in the depositions of the witnesses examined by prosecution during trial and accepted the evidence of prosecution mechanically. 5. Inter-alia, in the petition of appeal, the appellants have assailed the judgment under appeal (hereinafter called as impugned judgment) that learned Judge in the trial Court failed to appreciate the flaws appearing in the depositions of the witnesses examined by prosecution during trial and accepted the evidence of prosecution mechanically. At the time of hearing learned counsel for the appellants pointed out certain portions of depositions of witnesses of prosecution claiming that the witnesses contradicted the prosecution story and that the case against the appellants was not proved beyond reasonable doubt for which the impugned judgment is liable to be set aside and the appellants deserve acquittal of the charge framed against them in the trial Court. 6. In the impugned judgment the trial Court believed that prosecution successfully proved its case beyond reasonable doubt on the basis of evidence adduced by prosecution and accordingly convicted and sentenced to the appellants under Section 302/34, I.P.C. 7. The case of the prosecution which was under trial in the Court below in substance is that on 22.10.2012 in the evening between 7:30 p.m. to 7:45 p.m. Md. Yasin Ali Sardar took tea from a tea-stall of Iman Ali Molla (PW 3) and went for drinking the tea to the bank of river. While he was drinking tea there the appellants and the absconding accused jointly assaulted him with sharp cutting weapons and committed murder to him beheading his body. Then the assailants went away towards hospital more. The absconding accused and A- 1 are two brothers and A- 2 is son of the absconding accused. They killed the victim out of previous grudge. 8. Said incident was reported at Basanti police station in the same night of occurrence at 2:05 a.m. of 23.10.2002 by Motiar Mandal (PW 4) lodging written information (exhibit-1) which was written by Abul Kasem Sardar (PW 1). On the basis of said information at police station A.S.I. Sushil Kuamr Pal (PW 10) registered Basanti P.S. Case No. 86 (10) 02 dated 23.10.2002 under Section 302/34, I.P.C. and drew up formal FIR (exhibit-5). 9. PW 14 sub-inspector Alok Kumar Ghosh held investigation of the case. On the basis of said information at police station A.S.I. Sushil Kuamr Pal (PW 10) registered Basanti P.S. Case No. 86 (10) 02 dated 23.10.2002 under Section 302/34, I.P.C. and drew up formal FIR (exhibit-5). 9. PW 14 sub-inspector Alok Kumar Ghosh held investigation of the case. He claimed that during investigation he visited the place of occurrence (in short P.O.) in the night of alleged occurrence of murder, prepared rough sketch map with index (exhibit-8) of the P.O., made search for recovery of incriminating weapons but did not find, held inquest over the dead body of the victim Yasin Ali Sardar and prepared inquest report (exhibit-2/3), forwarded the dead body issuing challan (exhibit-9) for post mortem (P.M.) examination, seized blood stained earth and control earth form the P.O. under a seizure list (exhibit-3/2), issued requisition (exhibit-10) for handing over the dead body to the brother of the victim after post mortem examination, collected post mortem report (exhibit-7), examined witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure (in short Cr.P.C.), held raid for arresting accused persons but his attempt failed as they were absconding since the date of occurrence but subsequently he could arrest the two appellants and obtained them under police custody under order of learned Sub-Divisional Judicial Magistrate, Alipore. During investigation, PW 14 also seized wearing apparels of the deceased and viscera of the deceased under a seizure list (exhibit-6/1), recorded statements of two appellants/accused persons (exhibit-13) leading to discovery of incriminating weapons, recovered the incriminating weapons (mat. exhibits – I series) on the basis of statements of accused appellants under a seizure list (exhibit-4/1), prepared labels and pasted with Mat. exhibit-I series weapons, sent the recovered weapons to Forensic Science Laboratory for examination and collected report (exhibit-11), made prayer before learned Sub-Divisional Judicial Magistrate, Alipore for recording confessional statement of accused appellants under Section 164, Cr.P.C. at the time of their production in Court form police custody submitting forwarding report (exhibit-12) and after completion of investigation submitted charge-sheet against the three accused persons. 10. During trial, prosecution examined fourteen witnesses. Among them two witnesses namely Eman Ali Molla (PW 3) and Razzak Hossain Molla (PW 9) were declared hostile at the instance of prosecution. 10. During trial, prosecution examined fourteen witnesses. Among them two witnesses namely Eman Ali Molla (PW 3) and Razzak Hossain Molla (PW 9) were declared hostile at the instance of prosecution. Four witnesses namely, Hafijur Rahman Sardar (PW 5) is son of the deceased, Moktar Ali Sardar (PW 6) is brother of the deceased, Saheb Ali Sardar (PW 7) is another brother of the deceased and Sarbana Bibi (PW 8) is the wife of the deceased. Other witnesses are not related to the deceased. A.S.I. Sushil Kumar Pal received the written information lodged by PW 4 at Basanti police station and registered the FIR at P.S. and drew up formal FIR, Dr. P.B. Das (PW 12) held post mortem examination over the dead body and prepared post mortem report, officer-incharge of Basanti P.S. Mainak Banerjee (PW 13) endorsed the case for investigation by PW 14 and sub-inspector Alok Kumar Ghosh is the investigating police officer (in short I.O.). Other four witnesses namely, Abul Kasem Sardar (PW 1), Jaman Molla (PW 2), Matiar Rahman (PW 3) and Abdul Mannan Gazi (PW 11) were examined by prosecution as disinterested independent witnesses. Prosecution produced the above named two hostile witnesses also as independent witnesses but during trial prosecution claimed that they became interested in favour of accused/appellants as they turned hostile to the prosecution case. 11. Learned counsel for the appellants argued that the prosecution relied on the deposition of PW 2, PW 5, PW 6, PW 7, PW 8 and PW 11 for proving the case against the appellants but on simultaneous reading of their depositions and deposition of PW 14 (I.O.) contradiction on material points between depositions of said witnesses and their earlier statements made under Section 161, Cr.P.C. before PW 14 it is established that the prosecution case is doubtful. Learned counsel for the State did not agree with such arguments and he claimed that there is no contradiction on material point of the incident of murder of Yasin Ali Sardar caused by the appellants and the absconded accused in the fateful evening. In worst case, according to his arguments, discrepancy, if any in earlier statement of a witness recorded under Section 161, Cr.P.C. and deposition of that witness recorded in Court, is a result of omission. 12. In worst case, according to his arguments, discrepancy, if any in earlier statement of a witness recorded under Section 161, Cr.P.C. and deposition of that witness recorded in Court, is a result of omission. 12. We have perused the depositions to which our attention has been drawn by learned counsel for the appellants to find out whether there is really any contradiction as claimed or there is omission of the witnesses in making statements before the PW 14 as they stated in their depositions. It is needless to say that omission and contradiction are different. But in appropriate case omission may also be considered as contradiction following the statutory explanation to the provisions of Section 162 of the Code of Criminal Procedure, 1973. There is no straightjacket formula for treating any statement of a witness is contradictory to his earlier statement or not in view of the provisions laid down in Sections 161 and 162 of the Cr.P.C. read with Section 145 of the Evidence Act. We set out the said statutory provisions hereunder. Section 161, Cr.P.C. – “Examination of witnesses by police- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records”. Section 162, Cr.P.C. – “Statements to police not to be signed: Use of statements in evidence. Section 162, Cr.P.C. – “Statements to police not to be signed: Use of statements in evidence. – (1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. Explanation – An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact”. Section 145, Evidence Act.- “Cross-examination as to previous statements in writing. – A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts, of it which are to be used for the purpose of contradicting him”. 13. 13. Law does not claim verbatim reproduction of earlier statement in deposition of a witness who is appearing in witness box. It also cannot be expected by exercise of common prudence that a person will state verbatim in his deposition in Court which he stated earlier. Question of contradiction or omission is a question of fact and is to be determined from totality of the evidence of such witness and attending circumstances. Settled principle of law is that each case should be decided on its own merits. PW 2 Jamal Molla stated, “.....while I was going through the road towards my elder brother’s house, beside the bank of river and I found three persons were coming, they were coming from the river bank side, towards hospital more, three persons were Bhola, Kamala and Kayum and I found a sharp cutting weapons in the hands of the three persons and thereafter when I came to the spot that is bank of the river at Simultala, I found the dead body of Yashin Sardar who was lying and his head was separated from his shoulder”. He also stated, “Motihar Ali, Iman Ali, Moktar Hussain and the son of deceased Yashir Ali, that is Hafijul, were present there and the son of Yashir Ali weeping on the dead body of his father. They stated and reported me that Bhola, Kamala and Kayum had committed murder of Yashir Sardar”. 14. During his cross-examination no specific question was asked to him challenging his claim that he found three persons Bhola, Kamala (A-1), and Kayum (A-2) were coming with sharp cutting weapons in their hands from the river bank side towards hospital more and PW 2 found the dead body of Yashin Sardar who was lying and his head was separated from shoulder. He answered affirmative to the suggestions that he made statement before the I.O. (PW 14) that he was going towards his elder brother’s residence situated at river bank and that he saw Motihar Molla (PW 4), Iman Ali Molla (PW 3) and Hafijul (PW 5) and that Hafijul was weeping on dead body of his father and that Motihar (PW 4) and others stated by shouting that the three accused persons of the case were fleeing away after committing murder of Yashin Ali Sardar. Such suggestions were given to the PW 2 as if the I.O. (PW 14) recorded such statements of PW 2 in the affirmative although there was no such recording by PW 14 as appears from the deposition of PW 14. It is significant to note that PW 2 was examined prior to examination of PW 3, PW 4, PW 5 and PW 6. As such, it cannot be said that contradicting his earlier statements he tried to strengthen the version of which may be treated as embellishment for the purpose of strengthening the depositions of said witnesses. The PW 14 was not asked during cross-examination as to whether he asked PW 2 during examination under Section 161, Cr.P.C. if PW 2 saw any living person present in the place of occurrence and if so what was being done by them at the relevant time. In that view of the matter we are satisfied to believe that the statements which were made in the deposition of PW 2 although not made at the time of his examination relating to presence of PW 3, PW 4, PW 5 and PW 6 near the dead body of the victim when PW 2 reached at the place is omission on the part of PW 2 to state before PW 14 and not contradiction. This PW 2 stated before PW 14 that hearing the shout he came to the spot and found the accused was fleeing away as appears from the deposition of PW 14. Considering the totality of evidence of PW 2 read with evidence of PW 14 we find reason to believe and therefore, we believe that PW 2 heard shouting and hearing the shout he went to the place of occurrence and on his way he saw the accused persons with sharp cutting weapons in their hands were going towards hospital more and on arrival at the place of occurrence (P.O.) PW 2 found the beheaded body of the victim where the victim’s son was weeping. We do not find major discrepancy against that core version of PW 2. We also do not find reason to disbelieve that Motihar Ali (PW 4), Iman Ali (PW 3), Moktar Hossain (PW 6) and Hafijul (PW 5) told PW 2 that accused persons committed murder to Yashin Ali Sardar. 15. PW 3 Iman Ali Molla is hostile witness of the prosecution. We also do not find reason to disbelieve that Motihar Ali (PW 4), Iman Ali (PW 3), Moktar Hossain (PW 6) and Hafijul (PW 5) told PW 2 that accused persons committed murder to Yashin Ali Sardar. 15. PW 3 Iman Ali Molla is hostile witness of the prosecution. Law does not demand total rejection of hostile witness. According to the prosecution case, the victim took the tea from the stall of PW 3 and went to drink it at the bank of the river where he was murdered. PW 3 stated that he has a tea stall at Shimultala at river bank side. On 30.03.2004 he stated in his deposition that about one year and five months back Yashin Ali Sardar was murdered and that at that time Yashin Sardar (victim) and Motihar (PW 4) went to his tea stall and took tea and then Yashin Sardar went towards river side to take (drink) tea sitting there and Motihar was taking (drinking) tea in front of his (PW 3’s) tea stall. PW 3 heard hue and cry from river bank side and he went to the river bank side where he saw the dead body of Yashin Ali Sardar was lying there on a pool of blood. He also witnessed the inquest over the dead body of the victim. The above evidence of PW 3 remains unchallenged. During his cross-examination on behalf of prosecution with permission of Court he could not say whether he stated before police that he saw the three accused persons were striking on the body of Yashin Ali Sardar with ‘Nepala’. The I.O. (PW 14) stated that PW 3 made such statement during his examination under Section 161, Cr.P.C. No question was put to PW 14 controverting statement of PW 3. In summing up the evidence of PW 3 read with PW 14 it reveals that although prosecution produced the PW 3 as eye-witness of the incident of murder but PW 3 claimed himself as witness of the incident of victim’s taking tea from his tea stall and victims’ going to river side for drinking tea before the incident of murder and of his (PW 3’s) hearing of shouting and his arrival at the P.O. when he saw the dead body of the victim was lying in a pool of blood. In deposition PW 3 did not make any statement implicating the accused persons with the crime which is in contradiction to his earlier statement recorded by PW 14 who has proved that PW 3 stated that he saw the accused persons were striking the victim with ‘Nepala’. It is established that PW 3 contradicted his earlier statement and that deviation in his deposition from his statement recorded under Section 161, Cr.P.C. is not omission but it is contradiction. Learned counsel for the appellants drew our attention to the statement of PW 3 made during his cross-examination on behalf of appellants that there was no electricity in the area of his tea stall. Having gone through the entire deposition of PW 3 it appears that said witness did not state that the place of occurrence was dark at the relevant time. Rather, he stated that he went to the river bank side and saw the dead body of Yashin Ali Sardar was lying on a pool of blood and his such witnessing remains unchallenged. As such, his statement to which our attention was drawn does not inspire us to make any finding against the prosecution case. From the totality of evidence of PW 3 we are satisfied to hold that during trial, the prosecution very rightly declared the PW 3 as hostile witness. 16. PW 4 Matiar Rahman Mandal is independent star witness of the prosecution. According to PW 4, in the fateful evening this witness was taking tea in the tea stall of PW 3 which was corroborated by unchallenged evidence of PW 3. In the same tune of PW 3 this PW 4 stated that at that time Yashin Sardar took tea from the shop of PW 3 and took a seat near the river bank for taking (drinking) tea and then PW 4 heard hue and cry of Yashin Ali Sardar (victim). PW 4 stated that at that time son of the deceased named Hafiz Ali Sardar (sometimes named him as Hafijul Sardar) (PW 5) came to the shop of PW 3 to take tiffin. During crossexamination he stated that he stated to police that Hafiz Ali Sardar came to the shop of PW 3 to take tiffin at the relevant point of time admitting a leading question. Said answer was not controverted at the time of cross-examination of PW 14. During crossexamination he stated that he stated to police that Hafiz Ali Sardar came to the shop of PW 3 to take tiffin at the relevant point of time admitting a leading question. Said answer was not controverted at the time of cross-examination of PW 14. As such we believe that at the relevant time PW 5 came to the shop of PW 3 for taking tiffin. When PW 4 rushed to the P.O. he saw PW 5 and victim’s brother Moktar (PW 6) present there and also saw the accused persons were causing hurt to the victim with deadly weapons and they also slited the head of Yashin Ali Sardar from the shoulder and the headless body was lying on the river bank and was throwing his hands and legs on pain and the accused persons fled away from the spot towards hospital more. PW 5 was weeping on seeing the dead body of his father. According to PW 4, hearing hue and cry Jamal Molla (PW 2) and many others came to the spot and after sometimes while PW 4 was proceeding towards his home he met Abdul Mannan Gazi (PW 11) and he narrated the incident to him. During cross-examination on being asked PW 4 stated that he told the police about weeping of PW 5 on the dead body of his father and that he (PW 4) saw PW 6 in the spot after the incident but he did not state before police that he narrated the incident to PW 11. Nothing contrary to it reveals from deposition of PW 14. PW 4 has stated in substance that he made those statements before police although he did not mention the same in FIR. Be it noted that this PW 4 lodged FIR which was registered at P.S. by PW 10. It was stated by PW 4 that under his dictation the FIR was written by PW 1. This PW 4 is witness of inquest held by PW 14 and seizure of blood stained earth and control earth done by PW 14. During cross-examination PW 4 stated that he did not go to Basanti P.S. and that PW 6 reported the matter at first to police camp named Amjhola camp and that police of Basanti P.S. came to the spot at about 1:30-2:00 a.m. But PW 10 said otherwise. During cross-examination PW 4 stated that he did not go to Basanti P.S. and that PW 6 reported the matter at first to police camp named Amjhola camp and that police of Basanti P.S. came to the spot at about 1:30-2:00 a.m. But PW 10 said otherwise. According to his deposition, he received one written complaint from PW 4 at Basanti P.S. and formal FIR (exhibit-5) was drawn by him. PW 10 put his endorsement (exhibit-1/2) on the written complaint of PW 4. As such, PW 10 contradicted PW 4. PW 10 also recorded GDE (exhibit-8) at P.S. to that effect. He is retired assistant sub-inspector of police. It comes to our notice that in exhibit 1/2, PW 10 did not mention that he received the complaint from PW 4 although he noted “Received on 23.10.02 dated 23.10.02 u/s 302/34 I.P.C.” PW 10 deposed in Court on 01.06.2004. in connection with this matter the I,O. (PW 14) was cross-examined and he stated, “I know that the information of the incident was sent to the police camp”. He also stated, “The information was received by Basanti P.S. at about 2:10 a.m. on 23.10.2002 and I reached at P.O. at 3:45 a.m. on that date I left the P.O. at 17:15 hours”. It indicates that PW 4 did not go to Basanti P.S. in person but his complaint was sent to police camp which was subsequently received at Basanti P.S. on 23.10.2002 when it was registered as FIR at P.S. and PW 14 took up the investigation of the case. It goes to support the version of PW 4 that under his dictation, PW 1 wrote the complaint but PW 4 did not go to Basanti P.S. and Yasin’s brother reported the matter at first to the police camp. Having considered the relevant evidence we do not disbelieve the PW 4 and we are not satisfied to give much emphasis to the evidence of the retired official witness PW 10 which is contradictory to the evidence of PW 4. Learned arguing counsel for the appellants pointed out that no police personnel of Amjhola police camp was examined by I.O. to prove that information of the incident was received by that police camp. We find flaw of prosecution on the point but such flaw does not impress upon us to hold the PW 4 doubtful. Learned arguing counsel for the appellants pointed out that no police personnel of Amjhola police camp was examined by I.O. to prove that information of the incident was received by that police camp. We find flaw of prosecution on the point but such flaw does not impress upon us to hold the PW 4 doubtful. This PW 4 had faced a lengthy cross-examination but he did not give even a single answer which may make the prosecution case against the accused persons doubtful. He was asked about topography of the locality of the place of occurrence and his answers are corroborated by the sketch map with index (exhibit-8/1) which was prepared by PW 14 during investigation. He was asked about the description of the dead body of Yashin Ali Sardar and his answers are corroborated by the inquest report (exhibit-2/3) which was prepared by PW 14 during investigation and PW 4 signed as a witness of inquest. From the totality of the deposition of PW 4 we believed that he is an independent trustworthy eye witness of the incident of murder to Yashin Ali Sardar. Minor discrepancies like time of arrival of police etc. do not affect the very root of the prosecution case and ignored. Learned counsel for the appellants pointed out that although PW 4 claimed himself as eyewitness of the incident but he stated that he did not chase the accused persons which is unusual. We cannot accept this argument because PW 4 gave explanation in the same breath that he did not chase the accused persons as they were armed with deadly weapons. In our opinion, such reaction of PW 4 is very much normal for an independent eye-witness of a ghastly murder beheading the victim by three armed miscreants. 17. Learned counsel for the appellants submitted that although prosecution relied on PW 5 as eye-witness of the incident of murder but in fact he is a chance witness and he arrived at the P.O. after the occurrence. It has also been argued that it is not believable that PW 5 came to the shop of PW 3 walking 20/25 minutes from Kathalberia village for taking tiffin of his private tutor although there are similar shops at Kathalberia. We have already discussed the evidence of PW 4 in respect of presence of PW 5 before arrival of PW 4 at the place of occurrence. We have already discussed the evidence of PW 4 in respect of presence of PW 5 before arrival of PW 4 at the place of occurrence. We are not convinced after going through the evidence of PW 5, PW 14 and PW 4 that presence of PW 5 at the time of occurrence on the spot is not believable or improbable. We find no plausible explanation as to why this tender aged boy would falsely implicate the accused persons as authors of the incident of his father’s assassination. During cross-examination the PW 5 could not be shaken from his core version that he saw the accused persons hacked his father to death. It is not the case of the appellants that PW 5 deposed with after-thought concocted story for the first time in witness box or that he did not make such statements before the I.O. at the initial stage of investigation of the case. 18. Although the prosecution has claimed that PW 6 is an another eye-witness of the occurrence appellants have alleged that PW 6 is a post occurrence witness. In this matter learned counsel for the State has drawn our attention to the unchallenged evidence of hostile witness PW 3 undisputedly who has tea stall near the P.O. According to deposition of PW 3 the victim and PW 6 went to his tea stall and took tea from him and the victim went with the tea towards river side and PW 6 was taking tea in front of his tea stall and then PW 3 heard hue and cry and going to the spot he witnessed the dead body of the victim. PW 6 stated that he and son of Yasin Ali Sardar and Motiar Rahman Mandal (PW 4) raised shouting and at that time the accused persons slitted the head of Yashin Ali Sardar from his body and fled away towards hospital more. During cross-examination of PW 6 and PW 14 it transpired that PW 6 did not state before I.O. that Motiar Rahman Mandal (PW 4) also raised shouting. But his evidence to the effect that PW 5 and he (PW 6) raised shouting and at that time accused persons slitted the head from the body of the victim and they fled away towards hospital more is not a new story introduced by him in the witness box. But his evidence to the effect that PW 5 and he (PW 6) raised shouting and at that time accused persons slitted the head from the body of the victim and they fled away towards hospital more is not a new story introduced by him in the witness box. It transpires from his cross-examination that if a persons sits in front of shop of PW 3 the P.O. will be visible to him. PW 3 stated that PW 6 was taking tea in front of his tea stall and that evidence remains unchallenged. It is the argument of learned counsel for the appellants that since PW 6 is a brother of the victim the PW 6 would have tried to resist the murderers of the victim if PW 6 would have remained present at the time of occurrence and in the absence of such reaction of PW 6 it should be believed that he did not see the incident and that he is post occurrence witness. We cannot accept this analogy. Learned counsel for the appellants also pointed out that he reported the incident at Amjhola police camp. We find corroboration of such statement in the evidence of PW 4 and PW 14. The PW 6 stated that police came from Amjhola camp at 12:00 in the night. We do not find corroboration of such evidence. We reiterate that it is flaw on the part of prosecution in not examining any witness of Amjhola police camp relating to giving information of incident by PW 6 there. However, such discrepancy does not appear to us fatal for the prosecution case. Arguments of learned counsel for the appellants relating to seizure of offending weapons will be discussed later in this judgment. 19. Regarding motive of the crime learned counsel for the appellants has drawn our attention to deposition of PW 8 who is the wife of the victim. This PW 8 is a post occurrence witness. She denied that there were criminal cases against her husband in reply to a leading question during her cross-examination. Although the appellants claimed that there was criminal case against the victim but no positive evidence was adduced by them to substantiate such plea. If for the sake of arguments if we believe that he was accused in criminal cases then also the defence of the appellants would not be improved by itself. Although the appellants claimed that there was criminal case against the victim but no positive evidence was adduced by them to substantiate such plea. If for the sake of arguments if we believe that he was accused in criminal cases then also the defence of the appellants would not be improved by itself. PW 8 stated that she had visiting terms in the house of appellants and they also used to visit the house of victim. Her such evidence is not enough to believe that the accused persons had no motive to kill the victim. It is the settled position that in each case motive of crime may not be proved and that if commission of an offence by accused is proved by cogent evidence then proof of motive is inconsequential. During trial it was a defence of the appellants that they were falsely implicated in the case due to political rivalry. Such suggestion was put to PW 4, PW 6 and PW 7 but said witnesses denied it. PW 6 stated during cross-examination that he (PW 6), his brother (victim) and accused persons belonged to the same political party. PW 4 admitted that the accused persons are supporters of C.P.I. (M) party. PW 4 is a supporter of Congress Party. PW 4 also stated he had no talking terms with Yasin Ali Sardar (victim). As such we find no cogent reason to doubt that the appellants might have been falsely implicated out of political rivalry. In our view the PW 8 ruled out any possibility of falsely implicating the accused persons stating about reciprocal visiting terms in the houses of appellants and PW 8 as well as the victim. 20. PW 9 is another hostile witness of prosecution. It reveals from his deposition that he saw the dead body of the victim at the P.O. and that the victim was taking tea sitting on the river bank when PW 9 was sitting on his boat at ferry ghat. Hearing hue and cry he came to the P.O. and saw the dead body of the victim. However, he did not say anything against the appellants. 21. PW 11 is a post occurrence witness. Hearing hue and cry he came to the P.O. and saw the dead body of the victim. However, he did not say anything against the appellants. 21. PW 11 is a post occurrence witness. In his deposition he claimed that while he was going to his brother’s house the PW 4 met with him hurriedly and reported that the three accused persons committed murder of Yasin Ali Sardar but in fact he did not describe verbatim it in that way before the I.O. as appears from evidence of PW 14. According to PW 14 this PW 11 stated before him that he heard from PW 4 that the three accused persons had committed murder of Yasin Ali Sardar. In our view it is neither contradiction nor it is an embellishment. Moreover, according to PW 4, while he started to return home from P.O. he met PW 11 on his way and on his asking PW 4 narrated the incident. It is corroboration to PW 11. 22. PW 12 Dr. P.B. Das held post mortem (P.M.) examination over the dead body of the victim Yasin Ali Sardar. On examination he found five abrasion wounds and one non-signed wound in between two lips – cut through and through measuring 7” x 5” x bone deep – cut through and through skin – both ramus of mandible through and through, both maxilla through and through – occipital bone lower part cut through and through – skin cervical vertebra cut through and through – spinal cord and through and through and the head portion is separated from the neck. The head portion completely freeded with the body portion and both the parts are of same and one. He opined that the death was caused due to the effect of cut throat and cut injuries and the same are ante mortem and homicidal in nature and the injuries were sufficient to cause death of the deceased Yasin Ali Sardar. He was shown the seized weapons (Mat. exhibit-I) and he opined that said weapons might have been used to cause those injuries of the deceased. During his cross-examination he stated that he could ascertain that the head was separated from the body by single stroke. He was shown the seized weapons (Mat. exhibit-I) and he opined that said weapons might have been used to cause those injuries of the deceased. During his cross-examination he stated that he could ascertain that the head was separated from the body by single stroke. He also stated that in order to separate the head of a person from his body by a single stroke to be held within a very small distance that is two to three feet. According to PW 12, there might be every possibility if separated the head from the body of a person by a single stroke then to have injury of other persons if stood beside the person assassinated and there is also possibility of staining of blood in the surrounding areas and cloths of the persons beside the person assassinated. However, PW 12 ultimately stated that he cannot say particularly, but it may be caused, that the single weapon was used for slitting the head of the deceased from his body by a single stroke. Drawing our attention to the evidence of PW 12 it has been argued on behalf of appellants that alleged eye-witnesses stated that all the three accused persons assaulted the victim with sharp cutting weapons and the prosecution claimed that three incriminating weapons with blood stains were recovered and seized but PW 12 found injuries over the dead body which were caused by single stroke and as such, the evidence of alleged eye-witnesses cannot be believed. Having gone through the deposition of PW 12 we do not find that he ruled out possibility of causing the injuries of the deceased by more than a single person using multiple weapons. If for the sake of arguments we believe that PW 12 opined that the injuries of the deceased were caused by single stroke with single weapon and there is conflict between ocular evidence and medical evidence then according to settled position of law ocular evidence shall prevail. Therefore, on the basis of deposition in the form of opinion of PW 12 the ocular evidence of eye-witnesses of the incident of ghastly murder cannot be disbelieved. 23. Inquest report was prepared and proved by I.O. (PW 14) and it was confirmed by witnesses of inquest including hostile witnesses PW 3 and PW 9. Therefore, on the basis of deposition in the form of opinion of PW 12 the ocular evidence of eye-witnesses of the incident of ghastly murder cannot be disbelieved. 23. Inquest report was prepared and proved by I.O. (PW 14) and it was confirmed by witnesses of inquest including hostile witnesses PW 3 and PW 9. The description of the injuries in dead body of Yasin Ali Sardar as mentioned in inquest report (exhibit-2/3) is corroborated by the P.M. report (exhibit-7) in substance. The wearing apparels of the deceased were seized by PW 14 by virtue of exhibit-6/1 which also corroborates the inquest report. In the translated copy of inquest report the time of death of the victim was erroneously mentioned as 2:30 p.m. although it appears from the original exhibited inquest report that said time was mentioned as 7:30 p.m. In the inquest report names of accused persons were recorded as authors of the crime of the murder as per statements of the witnesses of inquest. 24. Learned counsel for the appellants has challenged the prosecution’s claim of recovery and seizure of offending weapons at the instance of the appellants during investigation held by PW 14 on the basis of statements of appellants leading to discovery. Learned Additional Public Prosecutor for the State canvassed his arguments that during trial it has been duly proved that during police custody the appellants made statement (exhibit-13) leading to discovery as proved by PW 14 and on the basis of exhibit-13 the appellants went to the house of absconding accused Bhola @ Ichaque Sk. and his son appellant no. 2 with police personnels including PW 14 and the witnesses of seizure who deposed as PW 6 and PW 7 the appellants produced the offending weapons which were seized by PW 14 by virtue of exhibit-4/1. Exhibits 13 and 4/1 and PW 14 cumulatively is the evidence in support of the arguments advanced on behalf of the State. PW 6 and PW 7 also deposed claiming that they were called by police and they accompanied police and both the appellants to the house of accused Bhola and that the appellants entered into the house and brought one nylon bag containing one ‘nepala’ and two choppers which were seized and labelled by police under a seizure list in their presence. Said weapons were produced during trial and on identification of the same by PW 6 those were marked Mat. exhibit-I series. As per aforesaid evidence the seizure was made between 11:05 a.m. to 11:35 a.m. PW 6 and PW 7 are the brothers of the victim Yasin Ali Molla. It was claimed by PW 14 that he tried to collect the local witnesses and when he visited to the dwelling house at village Shimultala there was no male member and that the female members did not agree to accompany police to the house of accused and that when he (PW 14) requested the other members of the road for accompanying police they refused but PW 6 and PW 7 agreed. PW 6 and PW 7 did not corroborate such statements of PW 14. According to them local witnesses were available but police did not call anybody of those persons and nobody was also called by police from the houses nearby the house of accused Bhola. PW 7 stated that he did not enter into the room of Bhola. He also stated that police did not search PW 6 and PW 7 at the time of entering into the room of Bhola and did not ask them to search police. But PW 14 said otherwise. According to PW 14, said witnesses PW 6 and PW 7 also went to the house of appellant no. 2 with PW 14 when PW 14 was searched by said witnesses and said witnesses were also searched and then the accused persons were also searched but nothing was found on search. Although there is no material contradiction on the substantial matter of bringing out the Mat. exhibit-I series weapons in a nylon bag by the appellants and of seizure and labelling of the same by PW 14 the above mentioned contradiction in the evidence of PW 14 and the two brothers (PW 6 and PW 7) of the victim we are not fully convinced about transparency in holding the seizure of the Mat. exhibit-I series. Therefore, extending the benefit of doubt in favour of appellants relating to proof of seizure we like to exclude that matter of prosecution from our favourable consideration. exhibit-I series. Therefore, extending the benefit of doubt in favour of appellants relating to proof of seizure we like to exclude that matter of prosecution from our favourable consideration. Consequently, the result of FSL report (exhibit-11 series) regarding examination of the weapons is also excluded from our discussion on the ground that the prosecution claim of seizure of offending weapons on the basis of statement of appellants leading to discovery is neither ‘proved’ nor ‘disproved’ but ‘not proved’. 25. By exclusion of evidence from our consideration following principle of separating grain from chaff relating to seizure of offending weapon itself cannot wipe out the convincing ocular evidence with the medical evidence adduced by prosecution during trial as discussed in the earlier part of this judgment. The circumstances which are prominent as established during trial also form a complete chain to suggest only the fact that both the appellants took active part in committing the murder of Yasin Ali Sardar on 22.01.2005 in the evening at about 7:30 p.m. on the river bank at Shimultala. 26. Last but not the least it is noted here that learned counsel for the appellants argued that examination of the appellants under Section 313, Cr.P.C. was not proper and in the impugned judgment the trial Judge did not consider the denial of appellants the claim of prosecution regarding statements of appellants leading to recovery of offending weapons and recovery of such offending weapons at the instance of appellants. On careful consideration we are not satisfied to hold that there was any substantial defect or error in examining the accused persons under Section 313, Cr.P.C. during trial. We like to mention that even if the denial of appellants as submitted be considered as true then also prosecution case cannot be said as not proved beyond reasonable doubt. 27. In summing up, we find and hold that in the impugned judgment the appellants have been rightly convicted and sentenced of the charge under Section 302/34, I.P.C. As a result, this appeal is dismissed. 28. A copy of this judgment alongwith LCR be sent to the trial Court. 29. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record in compliance of usual formalities. I agree.