JUDGMENT : MD. MUMTAZ KHAN, J. 1. This appeal has been preferred by the appellant assailing the judgment and order of conviction dated January 10, 2007 and sentence dated January 11, 2007 passed by the learned Sessions Judge, Purulia in Sessions Trail No. 9 of 2006 arising out of Sessions Case No. 322 of 2006 convicting and sentencing him to suffer rigorous imprisonment and to pay a fine of Rs.5000/- in default to suffer rigorous imprisonment for one year for commission of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC). 2. The prosecution case, in brief, is as follows:- P.W.1’s daughter Rani Tudu, the victim got married to the appellant, a co-villager. Appellant used to work as labourer at Dhanbad where the victim was also staying with the appellant. Two weeks ago appellant came back to the village from Dhanbad along with the victim. After spending some time there, on 14th Ashar 1412 B.S. corresponding to June 29, 2005 appellant left for Dhanbad along with the victim. P.W.1 in order to see them off up to the bus stand at Sirkabad also accompanied. They were proceeding on foot. After some time on reaching at Baklapani Palashi Jungle there was an altercation between the appellant and the victim. When P.W.1 intervened, appellant slapped her. Thereafter, appellant killed the victim by pressing her neck. Due to fear P.W.1 returned back to the house and reported the incident to her son (P.W.6). P.W.6 then rushed to Arsha P.S. and reported the incident verbally to the officer-in-charge of the P.S. (P.W.7) 16.05 hrs. 3. P.W.7 after reducing the verbal complaint of P.W.6 started Arsha P.S. Case No. 23 dated June 29, 2005 under Section 302 IPC against the appellant and took up investigation of the case. 4. On the same day at 17.35 hours, P.W.7 held inquest over the dead body of the victim at the place of occurrence in presence of P.W.1, P.W.2 and P.W.6. The name of the appellant as assailant surfaced during inquest. After inquest P.W.7 sent the dead body to Purulia Sadar Hospital for postmortem examination. 5. 4. On the same day at 17.35 hours, P.W.7 held inquest over the dead body of the victim at the place of occurrence in presence of P.W.1, P.W.2 and P.W.6. The name of the appellant as assailant surfaced during inquest. After inquest P.W.7 sent the dead body to Purulia Sadar Hospital for postmortem examination. 5. On June 30, 2005 at 3.30 P.M., P.W.4 conducted postmortem examination over the dead body of the victim and during postmortem examination he found one continuous ligature mark in breadth placed over middle of the neck below the thyroid cartilage and scattered abrasions over upper part of chest and opined that death was due to asphyxia as a result of strangulation which was ante-mortem and homicide in nature. 6. Thereafter, on completion of investigation a charge sheet was submitted accordingly against the appellant under Section 302/201 IPC. 7. On September 6, 2006 charge under Section 302 IPC only was framed against the appellant and after he denied his involvement in the commission of the offence, trial commenced. 8. Prosecution in order to prove the case examined 7 witnesses and also produced and proved the FIR, seizure list, rough sketch map with index, inquest report, PM report etc and thereafter on completion of trial after examining the appellant under Section 313 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C. passed the impugned judgment. 9. Mr. P.S. Bhattacharyya, learned advocate appearing for the appellant submitted that the impugned judgment and order of conviction and sentence is not sustainable in law as there was a delay in lodging the FIR, doubt with regard to the authenticity FIR being scribed by the investigating officer, contradiction in between oral testimony and medical report with regard to the cause of death and absence of any motive in causing death of the victim. Alternatively, it was submitted by Mr. Bhattacharyya, that the offence at best can come under the provisions of Section 304 Part- I of the Indian Penal Code. 10. Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State submitted that P.W.1, mother of the victim is an illiterate lady and she is the witness to the occurrence and after witnessing the occurrence she came back on foot. 10. Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State submitted that P.W.1, mother of the victim is an illiterate lady and she is the witness to the occurrence and after witnessing the occurrence she came back on foot. After witnessing the death of her daughter and reporting the incident to her son who then went to the P.S. and lodged the FIR and as such, there was a slight delay in lodging the FIR which is not fatal for the prosecution case. According to Mr. Roy Chowdhury, the evidence of P.W.1 remain unshaken during cross-examination and the prosecution has been able to prove the charge against the appellant and this is the case of causing death of the victim lady and there was no scope of scaling down the sentence. 11. We have considered the submissions of the learned advocates appearing for the respective parties and gone through the materials on record including evidence and documents to consider the propriety of the impugned judgment passed by the learned trial judge. 12. It is evident from the P.M. report (Ext.1) and the evidence of the autopsy surgeon (P.W.4) that on June 30, 2006 during postmortem examination over the dead body of the victim Rani Tudu he found one continuous ligature mark in breadth placed over middle of the neck below the thyroid cartilage and scattered abrasions over upper part of chest. On dissection, he found that huge amount of blood-clots were present beneath the subcutaneous tissues of neck and upper part of chest, sterno mastoid muscles over both sides were grossly lacerated and both carotid vessels were lacerated, fracture of cornu of thyroid cartilage present, the larynx and trachea were lacerated, hyoid bone was intact and opined that death was due to asphyxia as a result of strangulation which was ante mortem and homicidal in nature. According to doctor, asphyxia might be caused by strangulation by a rope of a portion of a sari. Defence did not dispute or deny the injuries found by the doctor on the person of the deceased and the cause of her death. So, from the above it is apparent that death of the victim occurred due to asphyxia/suffocation. 13. According to doctor, asphyxia might be caused by strangulation by a rope of a portion of a sari. Defence did not dispute or deny the injuries found by the doctor on the person of the deceased and the cause of her death. So, from the above it is apparent that death of the victim occurred due to asphyxia/suffocation. 13. Learned court below took into consideration the evidence of P.W.1, P.W.2 and P.W.6 besides the evidence of the autopsy surgeon (P.W.4) and the investigating officer (P.W.7) to arrive at the conclusion that the prosecution has been able to bring home charge under section 302 IPC against the appellant beyond all reasonable doubts and accordingly convicted him. 14. P.W.1 is the mother of the victim. She is an illiterate village lady and an eye witness to the incident. She has vividly narrated the entire incident leading to death of her daughter. It has come out from her that her daughter was married to the appellant and it was their love marriage. Appellant used to work at Dhanbad as day labourer. Some time in the month of Ashar 1412 B.S. appellant and his daughter came to their house from Dhanbad. On the relevant date of incident (14th Ashar 1412 B.S. corresponding to the English Calendar month June 29, 2005) her daughter and the appellant set out from her house to avail a bus at Sirkabad for going to Dhanbad. She also accompanied them in order to see them off to the bus stand. They were proceeding on foot. When they reached at Patlapani Palashi Jungle some altercation took place between the appellant and the victim. Appellant then slapped the victim and started throttling her. When she resisted, appellant also slapped her and thereafter killed her daughter by throttling. She rushed back to her house and reported the incident to her son (P.W.6) who then went to Arsha Police Station and reported the incident there. She was cross-examined by the defence at length but nothing came out contrary to her statements-in-chief. During cross-examination she clearly stated that on 14th Ashar appellant and her daughter were going to Sirkabad to avail a bus for going to Dhanbad. She admitted that due to slap by the appellant she became terrified and fled away there from and reported the incident to her son. During cross-examination she clearly stated that on 14th Ashar appellant and her daughter were going to Sirkabad to avail a bus for going to Dhanbad. She admitted that due to slap by the appellant she became terrified and fled away there from and reported the incident to her son. She withstood the rigor of cross-examination with courage and her testimony could not be impeached by the defence in regard to the genesis of the incident. 15. The above statements of P.W.1 also found corroboration from her son, P.W.6 and husband P.W.2. P.W.6 has specifically stated that on the relevant date his mother (P.W.1) reported to him at the house that his sister Rani Tudu was dead being throttled by the appellant. Accordingly, on receipt of such information he went to the place of occurrence and saw the dead body of his sister. He then went to the P.S. and reported the incident there which was reduced into writing and he put his LTI thereon. He also deposed that police accompanied him to the place of occurrence where the dead body of his sister was lying and the inquest over the dead body was made in his presence and he put his LTI thereon. 16. He identified the appellant in course of examination before the court. He was also cross-examined by the defence but nothing came out contrary to his statements-in-chief. His evidence appears to be credible and trustworthy. 17. P.W.2, father of the victim has also deposed that on the relevant date his wife informed the fact of the death of his daughter. He further deposed that his wife (P.W.1) accompanied his daughter and the appellant who were going to board a bus for Dhanbad and his wife (P.W.1) after returning back reported to him that his daughter was murdered by the appellant. He identified the appellant, to be the husband of his deceased daughter. He was also cross-examination by the defence and during cross-examination he clearly stated that on the day of incident both he and his son (P.W.6) were in the house. His evidence also remained unshaken. 18. P.W.3, a co-villager, turned hostile. He identified the appellant, to be the husband of his deceased daughter. He was also cross-examination by the defence and during cross-examination he clearly stated that on the day of incident both he and his son (P.W.6) were in the house. His evidence also remained unshaken. 18. P.W.3, a co-villager, turned hostile. On being challenged by the prosecution he even went on to deny that during investigation he stated to the I.O. that there was exchange of words between the victim and the appellant near Baklapani Jungle and appellant assaulted the victim and after assaulting appellant put the sari on the neck of the victim and killed her though P.W.7, the investigating officer, has clearly stated he narrated all these to him during investigation. Interestingly, P.W.7 was not challenged by the defence that he did not examine P.W.3 during investigation and he did not say anything to him. So, there was no reason to disbelieve P.W.7. This shows P.W.3 has not revealed the truth before the court. 19. Thus, we find that the above evidence of P.W1, P.W.2 and P.W.6 also find corroboration from the medical evidence. Though P.W.2 and P.W.6 are not the witnesses to the occurrence but their prime source of information about the incident was P.W.1 which she herself has corroborated. They were also cross-examined at length but nothing came out contrary to their statements-in-chief. From the trend of cross- examination it appears that save and except the plea of false implication nothing was brought on record to support the same. In the absence of any cogent evidence on record showing any enmity or ill feeling there appears no reason why P.W.1, mother, would shield the actual culprit and implicate her son-in-law/appellant. It is evident from the evidence of above witnesses that they had fully corroborated the prosecution case and their statements-in-chief remained unshaken during cross-examination and nothing was brought on record to discredit them and as such there was no reason to discard their evidences. 20. P.W.3 turned hostile. But, that will in no way affect the oral testimony of the eye witness. P.W.7 is the officer in charge of Arsha P.S. who on receipt by the oral complaint of P.W.6 reduced the same into writing and registered the case by drawing of the formal FIR (Ext.2) and took up investigation of the case. 20. P.W.3 turned hostile. But, that will in no way affect the oral testimony of the eye witness. P.W.7 is the officer in charge of Arsha P.S. who on receipt by the oral complaint of P.W.6 reduced the same into writing and registered the case by drawing of the formal FIR (Ext.2) and took up investigation of the case. According to him during investigation, he visited the place of occurrence, drew rough sketch map with index (Ext.3), held inquest over the dead body of the deceased in presence of the witnesses and prepared a report (Ext.4), sent the dead body to Purulia Sadar Hospital for post mortem examination and collected the post mortem report, seized the wearing apparel of the deceased by a seizure list (Ext.5), examined available witnesses and thereafter completion of investigation submitted charge sheet. Interestingly, he was not challenged by the defence that he did not examine P.W.3 during examination and he did not say anything to him nor he examined any other witnesses nor made inquest over the dead body of the victim in presence of witnesses. 21. Evidently, death of the victim was due to suffocating/choking of her breath. As per Chamber’s 21st Century Dictionary, ‘throttle’ meansto kill by choking or strangling while ‘strangle’ means- to kill by squeezing the throat with the hands or, a cord etc. Nowhere, P.W.1 has said that victim was throttled by the appellant by pressing her neck with bare hands. Interestingly, even the I.O. during inquest found marks of strangulation on the neck of the victim but even then he opined after observing the dead body that the deceased has been killed by throttling. P.W.4, the doctor opined that the asphyxia he noted might be caused by strangulation by a rope or a portion of a saree. P.W.3 though turned hostile but during investigation he stated to the I.O. that the appellant put saree on the neck of the victim and killed her by fastening. So, the omission to mention the use of saree in the FIR or in the evidence of P.W.1 for suffocating the victim to death will not go to the root of the case and cannot be a ground for disbelieving the prosecution case. So, the omission to mention the use of saree in the FIR or in the evidence of P.W.1 for suffocating the victim to death will not go to the root of the case and cannot be a ground for disbelieving the prosecution case. We find that the complainant (P.W.6) was not the witness to the occurrence but he gathered his knowledge about the incident of death of his sister from his mother (P.W.1), also an illiterate village lady. He had merely set the law in motion by lodging the F.I.R. Though, we find that FIR as also the evidence of P.W.1 is very clear about the date, time and place of occurrence of the incident and involvement of the appellant in the commission of the said offence. Testimony of eye witness can not be thrown out merely on the ground of alleged inconsistency between it and medical evidence. 22. After considering the lower court’s record, we do not find any substance in the submissions made on behalf of the appellant that there was contradiction in between the medical evidence and oral evidence which goes to the root of the case. 23. Regarding delay in lodging the FIR and it’s authenticity on being scribed by the I.O., we find that the case was initiated on the same day at 16.45 hrs. on basis of the verbal statements of P.W.6. P.W.6 being illiterate, his verbal statement was reduced into writing by the then officer-in-charge of the P.S. (P.W.7). There was nothing unusual in reducing the verbal statements of P.W.1 into writing by the I.O., officerin-charge of the P.S. Moreover, no such suggestion was even put by the defence to either P.W.6 or P.W.7 questioning authenticity in recording the verbal statements of P.W.6. 24. According to the settled principle of law delay in lodging FIR is not necessarily fatal to the case of the prosecution and the court has to consider the effect of such delay taking into consideration the facts and circumstances of the case in the light of the totality of evidences. Incident took place at about 8 A.M. at Baklapani Palash Jungle. Incident took place at about 8 A.M. at Baklapani Palash Jungle. As evident from the F.I.R (Ext.2), place of occurrence is about k.m. from Tanashi village and 15 k.m. south of Arsha P.S. According to P.W.6, after getting information about the incident from his mother he went to the place of occurrence and found the dead body of his sister and then went to the P.S. and reported the incident there. P.W.1 returned back from the place of occurrence on foot. Considering the facts and circumstances in totality, we are of the opinion that the time gap in between the occurrence of incident and lodging of complaint to the police was not unreasonable. Therefore, the impugned judgment need not require our interference on the above ground. 25. With regard to the absence of motive, we do not find any substance in the contention of the learned Advocate for the appellant in view of the ocular evidence. Absence of motive does not disprove a murder charge. It is well settled that when ocular testimony is available to prove the murder charge against the accused person the question of motive becomes more or less academic. A crime can take place even without premeditation or pre-planning in the context of a particular situation, on the spur of the moment. 26. Therefore, our interference with the impugned judgment is not required on the above ground. 27. The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I or Part II, IPC, as raised by the learned Advocate for the appellant. 28. In the case in our hand we find that at first altercation took place between the appellant and the victim. Appellant then slapped the victim and began to press her neck. When the victim’s mother (P.W.1) intervened, appellant also slapped her and then choked the victim to death. During postmortem examination doctor found one continuous ligature mark in breadth placed over middle of the neck below the thyroid cartilage and scattered abrasions over upper part of chest. Appellant then slapped the victim and began to press her neck. When the victim’s mother (P.W.1) intervened, appellant also slapped her and then choked the victim to death. During postmortem examination doctor found one continuous ligature mark in breadth placed over middle of the neck below the thyroid cartilage and scattered abrasions over upper part of chest. On dissection, he found huge amount of blood-clots were present beneath the subcutaneous tissues of neck and upper part of chest, sterno mastoid muscles over both sides were grossly lacerated and both carotid vessels were lacerated, fracture of cornu of thyroid cartilage present, the larynx and trachea were lacerated and opined that death was due to asphyxia as a result of strangulation which was ante mortem and homicide in nature. After the incident appellant fled away from the scene. So, the intention was clear to cause death. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 302 IPC against the appellant. Taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment does not require our interference on the above grounds in view of the settled proposition of law as discussed herein above. 29. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant. 30. Copy of this judgment along with the lower court records be sent down to the trial court for information and necessary action. 31. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. 32. Jay Sengupta, J. : I agree.