JUDGMENT : KISHORE KUMAR MANDAL, J. 1. Both the appeals arise out of S.T. No. 218 of 2010/23 of 2012, thus, they have been listed and heard together. 2. Appellant Dharmnath Giri (Cr. Appeal (DB) No. 9 of 2013) is the father of the appellant Sunil Giri (Cr. Appeal (DB) No. 60 of 2013). Both of them were charged under Sections 302/34, 307/34 and 341 IPC. The learned Adhoc Addl. Sessions Judge-II, Gopalganj held appellant Dharmnath Giri guilty under Section 307/34 IPC and 341 IPC whereas appellant Sunil Giri was held guilty under Sections 302, 307/34 and 341 IPC. For the proved charges, appellant Dharmnath Giri was sentenced to undergo R.I. for 05 years with fine having default clause. He was also sentenced to undergo S.I. for one month under section 341 IPC. Appellant Sunil Giri was sentenced to undergo R.I. for life with fine having default clause under Section 302 IPC, R.I. for 05 years with fine having default clause under Section 307/34 IPC and R.I. for 02 months under Section 341 IPC. The sentences so imposed on them were directed to run concurrently. 3. The prosecution case, as unfolded in the fardbeyan of Harkesh Giri (P.W.-3) recorded on 21.12.2009 at 11.30 a.m. at the Sadar Hospital, Gopalganj, in brief, is that on the morning of 21.12.2009 at about 8 a.m., owing to land dispute, appellant Sunil Giri and his father appellant Dharmnath Giri came at the darwaja of the deceased Banka Giri and without any rhyme and reason started abusing. Suddenly, appellant Sunil Giri who had carried knife with him, inflicted a knife blow in the abdomen of the father of the appellant. On receiving knife injury, he fell down. The informant came to his rescue whereafter appellant Sunil Giri also inflicted knife blow on him in his abdomen. Thereafter when the granddaughter of the deceased namely Bindu Kumari (P.W.-1) came to rescue them, it is alleged that appellant Dharmnath Giri assaulted her on head with lathi. On hulla, the villagers arrived and the injureds were carried to hospital in course whereof the deceased succumbed to the injury. The fardbeyan was recorded by Sri Chandra, S.I. which was forwarded to the Vishambherpur Police Station and formal F.I.R. i.e. Vishambherpur P.S. Case No. 59 of 2009 (Ext.-5) was drawn which ignited investigation. On hulla, the villagers arrived and the injureds were carried to hospital in course whereof the deceased succumbed to the injury. The fardbeyan was recorded by Sri Chandra, S.I. which was forwarded to the Vishambherpur Police Station and formal F.I.R. i.e. Vishambherpur P.S. Case No. 59 of 2009 (Ext.-5) was drawn which ignited investigation. The I.O. (P.W.-8) visited the hospital and prepared the death inquest report (Ext.-6) which was signed by P.W.-4 Anil Kumar Giri and one Manoj Giri at 11.45 hrs on 21.12.2009. The dead body was dispatched for post mortem examination. P.W.-8 thereafter recorded the statement of witnesses including the injureds either on the same day or on the following day, inspected the place of occurrence i.e. the soling road in front of the darwaja and on receipt of the post-mortem report (Ext.-6) and the injury reports of P.W.-3 (informant) and P.W.-1 (Bindu Kumari) (Exts. 7 and 7/1) and finding the accusations true, filed the charge sheet against the appellants where on cognizance was taken on 5.4.2010 and the case was later committed to the Court of Sessions on 09.04.2010. After commitment, the learned Sessions Judge framed charges under sections 341, 307 and 302/34 of the Indian Penal Code which was read over and explained to the appellants to which they abjured the guilt and claimed to be tried. The case thereafter came on the file of the learned Trial Judge for disposal. 4. In order to prove the charges beyond reasonable doubt, the prosecution examined as many as 09 witnesses out of whom P.W.-1, 2, 3, 4, 5 and 7 claimed to have witnessed the occurrence. The learned Trial Court has also found them eye witnesses to the occurrence. P.W.-6 Dr. Sunil Kumar Ram held autopsy on the cadaver of the deceased on 21.12.2009 at 1.30 p.m. and proved the post mortem report (Ext.3). P.W.-8 is the Investigating officer of the case who is also the S.H.O. of Vishambherpur Police Station. P.W.-9 Dr. Jamshed Ahmed examined the injury sustained in course of the occurrence by P.W.-1 Bindu Kumari and the informant (P.W.-3) and submitted the injury reports. On conclusion of the prosecution case, statement of appellants under Section 313 Cr.P.C. was recorded. The defence did not adduce any evidence oral or documentary. P.W.-9 Dr. Jamshed Ahmed examined the injury sustained in course of the occurrence by P.W.-1 Bindu Kumari and the informant (P.W.-3) and submitted the injury reports. On conclusion of the prosecution case, statement of appellants under Section 313 Cr.P.C. was recorded. The defence did not adduce any evidence oral or documentary. On a consideration of the evidence adduced at the trial, the learned Trial Court, finding the testimonies of the eye witnesses consistent, cogent and reliable, convicted and sentenced the appellants in the manner noted above. 5. We have heard Mr. R.K. Bharat for the two appellants and Mr. Satya Narayan Prasad, APP for the State. 6. It has been urged on behalf of the appellants that the prosecution has not been able to prove the place of occurrence, the manner of occurrence as well as the complicity of the appellants in the crime beyond shadow of reasonable doubts. There are vital contradictions in the evidence adduced by the prosecution on these aspects. He has, however, not challenged the factum of the homicidal death of the deceased on the relevant date and time. It has further been submitted that all witnesses are closely related and are thus interested witnesses. No independent witness has been produced to corroborate the prosecution case as presented at the trial. The informant has made discernible improvement in his deposition to suit the findings of the doctor in the post mortem report. The manner of occurrence has been changed insofar as involvement of Dharmnath Giri in the crime is concerned. He also drew our attention to the injury sustained by P.W.- 1 which the prosecution has attributed to the appellant Dharmnath Giri in order to submit that in the attending facts of the case, the conviction of the appellant Dharmnath Giri under Section 307/34 IPC would not be sustainable in law. P.W.-1 received simple/superficial injury. There is no allegation of repeat of assault on her. Alternatively, it has been argued on behalf of the appellant Sunil Giri that the salient features distinctly appearing through the evidence of the prosecution would not justify his conviction under section 302 IPC but under section 304 IPC. 7. The learned APP, conversely, submitted that the present one is a full proof case. All eye witnesses have consistently stated about the place of occurrence, the manner of occurrence and the complicity of the two appellants in the crime. 7. The learned APP, conversely, submitted that the present one is a full proof case. All eye witnesses have consistently stated about the place of occurrence, the manner of occurrence and the complicity of the two appellants in the crime. No material contradiction even worth the name has been drawn or elicited in course of their cross-examination. What the appellants harp on, are minor omissions which are bound to occur in ordinary course as they were deposing in Court after long time. 8. Before we proceed to consider the evidence in the light of the submissions advanced on behalf of the appellants and the State, we would first examine the findings of the doctor (P.W.-6) in the post mortem examination (Ext.-3). The post mortem examination was conducted on 21.12.2009 at 1.30 p.m. and found the following ante mortem injuries:- “Both eyes closed, mouth partially opened, bandage over left little and index finger. Stitch wound 3” left little finger. Small coils on small intestine comes out from wound over abdominal wall. Superficial abrasion over scrotem. Incised wound 2”X 1” X penetrating abdominal wall and cavity deep over epigastarighon region. On dissection-skull-maninges and brain in tact-trachea-NAD Chest Bony case intact hemotohrax present. Lungs pale and intact Heart- penetrating wound – ½” X ¼” X cavity deep. Right side of heart in communication with abdominal wound and wound in the difram size- 1” X ½”. Abdomen:- Abdomen cavity full of blood. All visceras pale intact. Small and large gut fluid and gases present. Urinary bladder full. Time elapsed since death within 24 hours. Cause of death:- Due to hemorrhage and shock caused by above mentioned injuries as a result of sharp cutting weapon. Above mentioned injuries sufficient to cause death in ordinary course of nature.” 9. We would now revert to the death inquest report (Ext.-6) wherein the Police Officer, conducting the death inquest proceeding, found injury in the abdomen of the deceased caused by knife. Considering the above, it can safely be concluded that the deceased received knife injury in his abdomen which resulted in his death. The doctor also found the cause of death due to haemorrhage and shock caused by the injuries caused by sharp cutting weapon which were sufficient in ordinary course to cause death. 10. P.W.-3 is the son of the deceased and the informant of the case. The doctor also found the cause of death due to haemorrhage and shock caused by the injuries caused by sharp cutting weapon which were sufficient in ordinary course to cause death. 10. P.W.-3 is the son of the deceased and the informant of the case. In his examination-in-chief, he has stated that the two appellants, on the relevant date and time of occurrence, came at the darwaja of the informant and started hurling abuses which brought the deceased at the darwaja to forbade them from doing so. Enraged thereby, the appellant Dharmnath Giri caught hold of the deceased from behind and thereafter the appellant Sunil Giri who was carrying knife in his hand gave one knife blow in his abdomen. When the informant and his niece (P.W.-3) came to the rescue the deceased, appellant Sunil Giri also gave one knife blow in abdomen of the informant. The niece (P.W.-1) was assaulted by the appellant Dharmnath Giri on her head. Two injureds were carried to the hospital where in course of treatment, the father of the informant died. It has been submitted by the appellants that there is contradiction in the evidence of the informant. In the fardbeyan, he has stated that the deceased died on way to hospital whereas in his examination-in-chief, he has deposed that the deceased died in course of treatment. We do not find any substance in the said criticism. This is a mere omission not polluting the testimony of the witness. P.Ws.-4 and 7 have also similarly claimed to have witnessed the occurrence as deposed by the P.W.-3. Both of them had also accompanied the informant and the injureds to the hospital. P.W.-4 appears to be a distant relative of both the parties whereas P.W.-7 is a neighbour and patidar of the informant. Before we discuss further their evidence, it would be pertinent to note here that both parties are agnates. We find from the record that the common ancestor of both the parties is Ram Surat Giri. The deceased is full brother of the appellant Dharmnath Giri. The witnesses are thus also related to the appellants. We have carefully perused the entire evidence of P.Ws.-4 and 7. They have supported the prosecution case as unfolded at the trial. These witnesses have also stated that the victim was brought to the hospital where, on examination by the doctor, he was declared dead. The witnesses are thus also related to the appellants. We have carefully perused the entire evidence of P.Ws.-4 and 7. They have supported the prosecution case as unfolded at the trial. These witnesses have also stated that the victim was brought to the hospital where, on examination by the doctor, he was declared dead. The contention of the appellants that the informant has substantially deviated from his fardbeyan does not appear to us well grounded. After all, the F.I.R. is not the encyclopedia. The purpose of lodging the F.I.R. is to give first version of the prosecution case and thereby ignite investigation. We also do not lose sight of the fact that in the occurrence, not only his father had received grievous injury in his abdomen but he too and his niece had also received injuries. In the present case, there is another eye witness to the occurrence who too received injury in course thereof. She is P.W.-1. The evidence of the witness who has also suffered injury in course of the occurrence assumes greater importance. His presence at the scene of occurrence becomes explicit. Keeping in mind the aforesaid, we perused her entire evidence and find that she too is very consistent in narrating the time, place and manner of occurrence which caused fatal injury to the deceased besides causing injury to her and the informant (P.W.-3). Except few suggestions given to her, nothing substantial has been elicited in her cross-examination to discredit her deposition. P.W.-2 Malti Giri is the daughter-in-law of the deceased. In her examination-in-chief, she has narrated the prosecution case consistent with the evidence of P.W.-3 Harkesh Giri (informant) and P.W.-5 Mintu Kumari (the two injureds) She has, however, added that the appellant Dharmnath Giri was given lathi in his hand by one Poonam Kumari which he used to assault P.W.-1 on head. In her cross-examination, she has stated that on receiving injury, the blood had oozed out from the wound of the deceased and had smeared his cloth and fell on the ground as well. Harping thereon, it has been argued on behalf of the appellants that the I.O., on inspection of the place of occurrence which is the soling road in front of the house of the deceased, did not find stains of blood. Harping thereon, it has been argued on behalf of the appellants that the I.O., on inspection of the place of occurrence which is the soling road in front of the house of the deceased, did not find stains of blood. Drawing our attention to the inquest report (Ext.-2) wherein the Police Officer has recorded that the deceased was found wearing white dhoti and kurta. He has, however, not recorded presence of blood on the cloth. In our view, it may be an omission on the part of the Police Officer who drew up the inquest report immediately after the victim was declared dead at the hospital. We do not find from the inquest report that the Police Officer did not find any blood stain mark on the cloths worn by the deceased. We find so as there is consistent ocular account given by almost all the eye witnesses that the deceased was inflicted knife blow in his abdomen exposing his small intestine which caused bleeding. The doctor also found the same. In face of the above, non-recording of presence or otherwise of blood stain marks on the cloth of the deceased and/or non-finding of the blood on the soling road by the I.O. would not cut much ice. We would reiterate here that the defence, in course of the cross-examination of these eye witnesses, did not extract any material contradiction creating doubt to disbelieve their testimonies. There is apparently no reason for the witnesses to falsely rope the appellants acceptable to the Court. 11. It has also been submitted that if the land dispute was going on from before, there was no immediate cause of action on the part of the appellants to commit the crime. We find the immediate cause of occurrence from the evidence of P.W.-5. She has stated in her examination-in-chief that prior to the occurrence, there was a quarrel between the wives of the deceased and the appellant Dharmnath Giri (the two sisters-in-law) over the pasting of cow dung on the land. The same must have been reported to the appellant who, enraged thereby, came to the darwaja of the deceased and started abusing. It is also to be noted here that the appellant Sunil Giri had arrived with a knife in his hand. He had the motive and intention to commit the crime. 12. The same must have been reported to the appellant who, enraged thereby, came to the darwaja of the deceased and started abusing. It is also to be noted here that the appellant Sunil Giri had arrived with a knife in his hand. He had the motive and intention to commit the crime. 12. On a consideration of the evidence adduced by the prosecution, we have no doubt in our mind that on the alleged date and time of occurrence, the two appellants came on the darwaja of the deceased and started abusing whereon the deceased came out from his house on the soling road where, in course of verbal duo, the appellant Sunil Giri, who had come armed with knife, inflicted the knife blow in the abdomen of the deceased which ultimately proved fatal. 13. It has been argued on behalf of the appellants that considering the evidence on record, the conviction of the appellant Dharmnath Giri under section 307/34 IPC would not be sustainable in law. In this connection, our attention has been drawn to the injury report of P.W.-1 prepared and proved by P.W.-9. P.W.-9 found solitary injury of the following description on her head:- “One lacerated wound on the right frontal area of the head 2” X ½” X scalp deep It is caused by hard blunt object and simple in nature” 14. We have found from the prosecution evidence that the appellant Dharmnath Giri did not repeat assault on head. The circumstances, attending to the case, persuade us to believe that he had no intention to cause death of P.W.-1. The nature of injury found on her person by P.W.-9 gives credence to our conclusion. Viewed thus, we are satisfied that in the light of the evidence adduced by the prosecution at the trial, the conviction of appellant Dharmnath Giri under Section 307/34 IPC would not be sustainable in law. His conviction is altered from Section 307/34 to Section 323 IPC. 15. So far as conviction of appellant Sunil Giri under Section 307/34 IPC is concerned, we find from the evidence of P.W.-9 (the doctor) who examined the informant (P.W.-3) that the following injuries were found on his person :- “1. Incised wound 2” X ½” X skin deep and, 2. 1” X ½” X skin deep on the left lumber region. 3. swelling right thumb. Injury No. 1 x-ray advice. Incised wound 2” X ½” X skin deep and, 2. 1” X ½” X skin deep on the left lumber region. 3. swelling right thumb. Injury No. 1 x-ray advice. Injury No. 2 simple in nature and caused by hard and blunt substance. For injury No. 1 opinion reserve and caused sharp cutting weapon” Almost all P.Ws., in course of their deposition, have stated that the informant, in course of his treatment, had to remain in hospital for more than 21 days. The injuries sustained by him were on vital part. Appellant Sunil Giri had come duly armed with knife. The first blow was given to the deceased which the doctor found sufficient in ordinary course of nature to cause death and when the informant intervened, he inflicted another knife blow on the lateral region which is vital part of the body. Intention to cause death or an attempt to cause death is to be gathered from the proved facts and circumstances of the case. The allegation levelled against the appellant Sunil Giri and proved at the trial lead us to hold that he had the requisite intention to cause death of the informant too when he tried to intervene and save his father. His conviction under Section 307/34 IPC is sustained. 16. In the light of the discussions made above, we dismiss the appeal preferred by the appellant Sunil Giri (Cr. Appeal (DB) No. 60 of 2013) and the appeal preferred by the appellant Dharmnath Giri (Cr. Appeal (DB) No. 9 of 2013) is allowed in part. The conviction of appellant Dharmnath Giri under Section 307/34 IPC is set aside and he is held guilty under Section 323 IPC and is sentenced to undergo R.I. for the period already undergone by him. He (Dharmnath Giri) is stated to be on bail. He shall be discharged from the liability of bail bonds. Sanjay Kumar, J. – I agree.