JUDGMENT : Shivakant Prasad, J. Instant appeal is directed against the judgment and order of conviction and sentence dated 8th and 9th August, 2007 passed by the Additional District and Sessions Judge, Jangipur, Murshidabad, in Sessions Trial No. 7(3) of 2003 arising out of Sessions Serial No. 10/2003 convicting the appellant to suffer imprisonment for life and to pay fine with default clause for the charge punishable under Section 302 of the Indian Penal Code. 2. The brief facts leading to the instant appeal is that on 29.08.2002 at about 2 p.m. the incident took place when the husband of the defacto complainant, Chatu Sk, was returning home after taking bath from a road side tube well, an altercation was going on between Hossain Sk and his wife. The deceased told the accused/appellant not to take such altercation then the accused Hossain ran at him and he tried to flee away but Hossain, the accused, chased him upto the trijunction in front of the house of the defacto complainant and gave a blow with a 'Kati' on the chest of the deceased, as a result, he instantly died at the spot. 3. Written complaint was lodged with the Sagardighi Police Station on 29th August, 2002 at 14-45 hours as Sagardighi P.S. Case No. 93 of 2002 dated 29.08.2002 under Section 304 I.P.C. and the case was started. 4. On usual investigation the I.O. submitted the charge-sheet under Section 302 of the I.P.C. against the accused/appellant. The case was committed to the Court of Sessions and learned Sessions Judge after taking cognisance under Section 193 of the Cr.P.C. transferred the case to the Court of Additional Sessions Judge, Jangipur. 5. The Trial started with framing of charge on 10th March, 2003 which was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. Thereafter, the prosecution examined as well as 13 witnesses to substantiate the charge under Section 302 IPC levelled against the accused/appellant. On closure of the prosecution evidence, the learned Judge examined the accused under Section 313 of the Cr.P.C. to which he pleaded ignorance but declined to adduce any evidence in his defence. 6. The defence as emerges from the trend of the cross-examination of the prosecution witnesses and the statement of the accused/appellant is one of the denial of charge levelled against the accused appellant. 6. The defence as emerges from the trend of the cross-examination of the prosecution witnesses and the statement of the accused/appellant is one of the denial of charge levelled against the accused appellant. The learned Judge on hearing the prosecution and defence witnesses held the accused guilty of offence punishable under Section 302 IPC by the impugned order and judgment dated 8th August, 2007. 7. Thereafter, the accused/appellant was sent to the correctional home for his reflection in segregation on the question of sentence under provision of Section 235(2) of the Cr.P.C. The accused appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/- in default rigorous imprisonment for one year for the offence under Section 302 I.P.C. after hearing him on the question of sentence itself, setting off the pre-trial detention undergone by the accused/appellant under Section 403 of the Cr.P.C. 8. Now the point for consideration is whether the prosecution has been able to substantiate the charge levelled against the accused appellant beyond reasonable shadow of doubt and whether the impugned judgment is legally and factually tenable on the touch stone of the evidence on record. 9. We are, thus, called upon to critically examine the evidence deposed by the prosecution witnesses. P.W. 1, the defacto complainant is the widow of the deceased who has stated on oath that at the relevant point of time when her husband, Chatu Sk was returning home after taking bath an altercation was going on in between accused Hossain Sk and his mother. Her husband told them not to make such altercation and after changing his wearing apparel again he came out from house while Hossain Sk came and told him with hurling abusing language "Sala Abar Ghure Eli" and gave a blow to her husband with a 'chheni' at the trijunction in front of their house, as a result of which her husband died at the spot being so assaulted. 10. P.W.1 lodged a written complaint which was scribed by one Yasin Sk, P.W.6 who has corroborated the fact of having written the complaint on being instructed by P.W.1, proved as Exihibit-3. 11. P.W.6 is also a witness to inquest on the dead body and seizure list in respect of wearing apparel of the injured persons. 10. P.W.1 lodged a written complaint which was scribed by one Yasin Sk, P.W.6 who has corroborated the fact of having written the complaint on being instructed by P.W.1, proved as Exihibit-3. 11. P.W.6 is also a witness to inquest on the dead body and seizure list in respect of wearing apparel of the injured persons. Inquest over the dead body was held in connection with the Sagardighi P.S. Case No. 93 of 2002 dated 29th August, 2002 under Section 304 I.P.C. wherein the I.O. observed as follows: "It is evident from the primary enquiry that on 29.8.02 at about 2 p.m. Deceased Chatu Sk was returning home after taking bath from a road side tube well at that time Hossain Sk was quarrelling with his wife in a bad manner for which Chatu Sk restrained Hossain not to make quarrel. Having been restrained Hossain chased at Chatu with kati in his hand and struck a blow with the 'Kati' on the Chest of Chatu. Soon after receipt of injury Chatu fell down on the road and died there." 12. I.O. also prepared a sketch map of the place of occurrence and inquest report which had been proved by the I.O. as Exhibit-10. The dead body was sent to the Jangipur S.D. Hospital for post-mortem by the I.O. The accused was arrested by him and produced before the learned S.D.J.M. 13. Some of the prosecution witnesses were also injured having received simple injuries which were collected by the I.O., P.W.11. 14. Sri Dilip Kumar Hazra, P.W.9 was posted as O.C., Sagardighi Police Station who had received the complaint on 29th August, 2002 and drew up formal FIR, Exhibit-4, and the I.O. P.W.11 was endorsed for the investigation. 15. P.W.2, Susanta Das is an eye-witness and injured person. According to him, on last 12th bhadra one year back at about 2/2-30 p.m. the incident of murder happened in front of the house of P.W.1 on the trijunction and he saw the incident. According to him, since about two hours prior to the incident of murder of Chatu an altercation was going on amongst accused Hossain, his mother and his wife in the house of Hossain. According to him, since about two hours prior to the incident of murder of Chatu an altercation was going on amongst accused Hossain, his mother and his wife in the house of Hossain. During such altercation mother of Hossain called neighbours with loud voice and 2/3 boys had been to the house of Hossain and asked Hossain not to make such altercation while Hossain assaulted them with a big 'Pasli'. Those boys who sustained injuries were Hareram and Nurkashim. They sustained injuries about one and half hours prior to the incident of murder of Chatu. After hearing hue and cry, this witness had rushed to the spot and the accused Hossain gave a blow by Pasli on him and he started running towards west and took shelter in the house of Ananda. 16. On this point, learned Counsel for the appellant/accused has pointed out that there are contradictory statements made by P.W.2. Though he had been examined by the doctor but there was none to identify the witness to the doctor. We observe that in unequivocal term, P.W.2 has stated on oath, during cross-examination, that he saw the accused Hossain to cause murder of Chatu and this piece of evidence stood un-controverted. 17. Therefore, the credence can be placed on the evidence of P.W.2 who corroborated the oral testimony of the P.W.1. 18. Loharam Sheikh, P.W.3 though has stated that Chatu was murdered on trijunction near his house but when he went to the place of occurrence he saw the dead body of Chatu surrounded by his mother and another woman of their village. According to him, just prior to the incident an altercation was going on amongst accused Hossain and his mother and wife. Objection being raised by three of their villagers namely Hareram, Nurkshim and Sushanta, they were assaulted by the accused Hossain by Kati sustaining little injuries. His evidence to the extent that Chatu after taking bath returned home and after changing his wearing apparels came out from his house to see the altercation which was going on amongst Hossain, his mother and his wife, when accused assaulted the deceased with a Kati as a result, Chatu died at the spot. 19. P.W.3 is a witness to inquest report and the seizure list of the wearing apparels of the deceased and the injured. 20. 19. P.W.3 is a witness to inquest report and the seizure list of the wearing apparels of the deceased and the injured. 20. We do not find any contradictory statement in the oral testimony of this witness. 21. Sisir Das, P.W.4 has stated that he heard about the incident and on his arrival at the spot he saw the dead body of Chatu. He heard from P.W.1 that Chatu was murdered by accused Hossain. To this effect, his hearsay evidence finds corroboration by P.W.1 as the person from whom he learnt about the incident who corroborated the prosecution case. The FIR absolutely got corroborated by its maker. 22. Hareram Das, P.W.5, is an injured person and an eye witness to the incident. He has stated that on the relevant date at about 12-30 p.m. an altercation was going on in between accused Hossain and his mother. He tried to stop them, while accused Hossain gave him 2/3 blows by Kati. He sustained little injuries. Sushanta and Nurkasim were also injured by the accused Hossain when they had forbidden the accused Hossain not to go on altercation with his mother. 23. Such oral testimony of P.W.5 does find corroboration with that of other eye witnesses to the occurrence. There is no doubt that contradiction as taken in the defence in cross-examination to the extent that after the incident of murder was committed about 2 hours he came to the spot and while he arrived at the spot he saw Chatu was lying dead on the four-corner. 24. Therefore, the incident of murder of Chatu can be believed and found corroboration in general term with other prosecution witnesses. Yasin Sk, P.W.6 who wrote the complaint at the instruction of P.W.1 which finds corroboration by its maker. Noor Kashem, P.W.7 has also deposed as under: "At the relevant time I was returning back after taking bath while an altercation was going on in the house of accused Hossain amongst the inmates of his family. The mother of Hossain shouting as " " and myself went there, while Hossain asked me to leave that place and gave me a blow with a Kati. I came to learn thereafter that prior to me he also attempted to assault other two persons also. The mother of Hossain shouting as " " and myself went there, while Hossain asked me to leave that place and gave me a blow with a Kati. I came to learn thereafter that prior to me he also attempted to assault other two persons also. It was then about 2 p.m. while accused attempted to assault me with a Kati I started to flee away and stood at about 8/10 cubits away while I found that accused gave a blow with a kati to Chatu and being so assaulted Chatu started to flee away, but fell down on the trijunction. Many persons assembled there then and instantly Chatu died." 25. He then pointed out in the cross-examination that he had made such a statement before the I.O. regarding the incident. 26. Learned Counsel for the appellant submits that charge under Section 324 IPC was not framed by the learned Judge since no evidence of assault inflicted on so called injured. We do not agree with such submission because Dr. Bikash Sardar, P.W.12, has proved the fact of simple injury on the person of Sushanta Das, Hareram Das and Nur Kashem Sk. when he examined them at Sagardighi Rural Hospital on 30.08.2002. We are of the view that framing of charge under Section 324 IPC does not arise when injury on injured was simple in nature. That apart, the Trial Judge framed the appellant for major charge under Section 302 IPC. 27. The constable 1401, Tapan Kumar Chattaraj, P.W.8, was posted at the police station who took the dead body of Chatu to Jangipur Hospital Morgue after the inquest was held. 28. P.W.10, Dr. Asit Kumar Majumder, on was posted Jangipur Sub-Divisional Hospital held autopsy of the dead body of Chatu Sk., Male, 40 years, at Jangipur Sub-Divisional Hospital in connection with Sagardighi P.S. Case No. 93/2002 dated 29.8.02 and on examination of the dead body he found as follows: "One sharp deep cutting injury extended from left pluby to the 4th rib and the left chest and bone and cutting down left pluby and 1st, 2nd and 3rd rib with injury of the chest was muscle and injury of the left lung, upper part of the heart. Blood accumulate in the chest cavity. Injury dailing on the both end. Stomach is distended with partial digested good. Small intestine also distended with found smelling gas. Blood accumulate in the chest cavity. Injury dailing on the both end. Stomach is distended with partial digested good. Small intestine also distended with found smelling gas. The deceased was average built, stout and good health, black complexion with black hair, rigor mortise was present on the lower leg." 29. In the opinion of autopsy surgeon the cause of death was due to shock and haemorrhage by a sharp and deep cutting injury ante-mortem and homicidal in nature which proves that the deceased Chatu Sk. died due to the fatal blow given by the accused/appellant at the chest by a sharp cutting weapon called 'Kati'. 30. P.W.11, S.I. Paresh Nath Chatterjee, the I.O. who conducted the investigation by holding inquest of the dead body, sending the dead body to the autopsy surgeon for post-mortem who collected the injuries report, Ext.-11 and post-mortem report, Ext.-5. He seized a lungi of one of the injured and also the wearing apparel of the deceased under the seizure list as Exhibit-6 and 7 respectively. He had also seized blood stained earth and controlled earth from the place of occurrence under seizure list Ext.9. I.O. also prepared rough sketch map of the place of occurrence with its explanatory index prepared as Ext.10. 31. It is true that there is certain defect in the investigation which the I.O. has admitted saying that he did not send the seized blood stained and controlled earth and wearing apparel of the deceased to forensic laboratory for chemical examination. 32. P.W.12, Dr. Bikash Sardar, was posted at Sagardighi Rural Hospital as Medical Officer and on 30th August, 2002 he had examined three persons namely, Sushanta Das with mild laceration on right thigh, Hareram Das with mild cut injury on right hand and Nur Kashem Sk. with mild cut injury on back and all those injuries were simple in nature as per his report Ext.11. 33. Of course, there is no note in the injury report as to how the patients received those injuries and did not take any signature of the patients in the injury report. 34. To our view the injury report Ext.11 finds corroboration by those witnesses who were present in the place of occurrence to forbid the accused/appellant from making altercation with his mother and wife. 35. 34. To our view the injury report Ext.11 finds corroboration by those witnesses who were present in the place of occurrence to forbid the accused/appellant from making altercation with his mother and wife. 35. Sushil Kumar Das, P.W.13 though has stated that accused Hossain committed murder of Chatu by assaulting him with Kati but he is not an eye witness to the occurrence save and except signing the seizure list as a witness. 36. Our attention is invited to the statement of the accused made before the learned Trial Court while examined under Section 313 of the Cr.P.C., which reads as follows: "Q. Do you say any thing? A. There was a love affairs between Raisuddin and Dhana Bibi. The said affairs was exposed by Chatur and Arror. One day in the month of April/01 at about 4.30 P.M. Raisuddin was passing by our house after exposing the matter of love affairs. Thereafter Arror and Chatu came and told me that Raisuddin is kept in my house but I said that I did not hide him then Arror hit me Wit a Kati on the lower part of my lip. On getting the hit of Kati I started to flee away and the blow made by Arror hit on the left side of the ne of Chatur and he died. The case has been initiated by Arror in order to save himself. Arroer is the nephew of Chatur Dhanabibi is the niece of Chatur. I am innocent." 37. By adverting to the said statement, learned Counsel for appellant wants to take a defensive plea to create doubt in the prosecution case. 38. It is evident from the ocular testimony of prosecution witnesses that the accused Hossain had inflicted one single blow by a Kati which fell on the chest of the deceased Chatu. The autopsy surgeon though has not mentioned in his post-mortem report about the nature of the weapon used by the assailant but it is clear therefrom that the injury inflicted on the deceased is sufficient to cause death which according to his opinion, the death was homicidal, ante-mortem in nature. 39. Learned Counsel for the appellant has argued in the same line of the argument advanced before the learned Trial Court that the accused was injured by Arror with a Kati on the lower part of the accused. 39. Learned Counsel for the appellant has argued in the same line of the argument advanced before the learned Trial Court that the accused was injured by Arror with a Kati on the lower part of the accused. On getting the hit of Kati the accused started to flee away and the blow was given by Arror on the left side of the neck of Chatur and he died. 40. We are unable to accept such contention of learned Counsel for the appellant as there was no such defence plea taken at the earliest point of time and even suggested during trial. Had this been the fact, the accused/appellant could have made such statement before the I.O. and the learned Judicial Magistrate under Section 164 Cr.P.C., which could be considered to be the first defensive statement on the part of the accused appellant. But such statement has been made only after the closure of the evidence and on conclusion of the trial to take only defensive plea. 41. Undoubtedly, we have observed that there is no defect in the investigation. The defect in the investigation ipso facto is not a ground to take the defence for acquittal of the accused inasmuch as, the prosecution case gets corroborated by the ocular version of the eye witnesses and the injured who will never leave out a culprit and falsely implicate an innocent person. 42. The law is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, resulting in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. 43. This is what, the observation made by the Hon'ble Apex Court in C. Muniappan & Ors. v. State of Tamil Nadu reported in 2010(9) SCC 567 . 44. 43. This is what, the observation made by the Hon'ble Apex Court in C. Muniappan & Ors. v. State of Tamil Nadu reported in 2010(9) SCC 567 . 44. We have anxiously considered the evidence of the prosecution witnesses in the foregoing paragraph which are in general term in corroboration with the prosecution case of the crime committed by the accused appellant. Therefore, insofar as the finding of the guilty of the appellant accused is concerned we do not find any fault with it and we, accordingly, affirm the order of conviction for the appellant committed crime of inflicting fatal injury on the person of the deceased who succumbed death instantly. 45. Now we are confined to the impugned order of sentence by which the appellant was handed over with punishment to suffer life imprisonment. 46. The learned trial Judge in his wisdom was of the view that it was a case of premeditated crime of murder, the accused appellant was sentenced to suffer life imprisonment for life with fine and default clause. 47. In this regard, learned Counsel for the appellant has referred to the decisions reported in (2013) 11 SCC 719 [Attar Singh v. State of Maharashtra] and (2015) 11 SCC 283 [Bivash Chandra Debnath @ Bivash & Ors. v. State of West Bengal]. 48. In Attar Singh's case, the appellant had not indulged in preplanning the incident in any manner so as to eliminate his wife by killing her. The daughter of the accused and deceased had deposed that there were heated exchanges of words between the couple on the date of incident and the appellant-accused heaped abuses on his wife and then picked up a wooden log in a fit of anger by which he hit the deceased on her head and she bled profusely which led to her death because the appellant was nurturing a grudge against his wife suspecting her character. 49. 49. In these circumstances, the Hon'ble Apex Court was pleased to scale down the sentence from Section 302 to Section 304 Part (I) IPC with observation that the conviction and sentence of the appellant might not be sustainable under Section 302 IPC, it could not also be scaled down to Section 304 Part II IPC but was of the view that the appellant is fit to be convicted and sentenced under Section 304 Part I IPC in view of the evidence on record, the surrounding circumstances and the factual scenario in which the incident occurred and, accordingly, the sentence under Section 302 was set aside and converted to Section 304 Part I IPC. 50. In Bivash Chandra Debnath's case (supra) it was a case of sudden fight between the appellants and the deceased and there was no premeditation on the part of the appellants to commit the murder, the Hon'ble Apex Court was of the view that it was a fit case to hold that the offence committed by the appellants was not punishable under Section 302 IPC, but under Section 304 Part I IPC and the conviction was awarded under Section 304 Part I IPC. 51. Taking cue from the facts and circumstances of the cited decisions and having regard to the evidence on record on the fact that the weapon like Kati or Pasli are available in general in every villager's house and the accused having had given a single blow by Kati on the chest of the deceased over the trivial matter on the hit of anger when the deceased had forbidden the appellant not to make altercation with his mother and wife, it can safely be held that there was no pre-planned and pre-meditated crime of murder committed by the appellant. 52. We, therefore, are of the view that the facts and circumstances of the instant case as emerged from the prosecution evidence would invariably fall within the exception 4 to Section 300 of the IPC. We, accordingly, set aside the conviction and sentence for charge under Section 302 IPC instead, modify and alter the charge punishable under Section 302 IPC to one under Section 304 Part I IPC and sentence him to suffer imprisonment for the period already undergone by him since he is in incarceration in jail for about fifteen years. 53. The appeal is accordingly disposed of. 53. The appeal is accordingly disposed of. Let lower court records together with a judgment be sent down to the learned court below forthwith for necessary action. 54. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.