JUDGMENT : Shree Chandrashekhar, J. Adityapur (RIT) P.S Case No. 12 of 2003 was lodged on 10.01.2003 against Chhotu, Suchit and Chandu under section 302/34 of the Penal Code, 1860 (in short, IPC). 2. In his fardbeyan which was recorded on 10.01.2003 around 18 : 00 PM at Tata Main Hospital, Ward No. 2B, Bed No. 4, Mantu Jha has stated that in the afternoon at about 14 : 00 PM he left home for duty and at 14 : 20 PM when he reached Road No. 14 on RIT Main Road, he saw his nephew Pankaj Jha coming from Road No. 16. He was bringing his niece Simi from school and when he reached at the crossing of Road No. 10 and Road No. 11, Chhotu, Suchit and Chandu waylaid and assaulted him. Chhotu gave him a fist blow, Chandu assaulted with danda and Suchit struck a sharp pointed iron rod into his chest and then fled away through the by-lane between Road No. 10 and Road No. 11. Pankaj Jha somehow drove away towards home on the motorcycle. The informant has also ran towards his house and when he reached there found him fallen unconscious at the door of his house. With the help of Baikunth Choudhary, Dubey Jee and Singh Jee he has brought him at Tata Main Hospital (TMH) but after about half an hour he succumbed to the injury. After the investigation a charge-sheet was submitted against Pawan Kumar Sharma @ Barka, Rajendra Kumar Swarnkar @ Raj Kumar @ Pintu and Sumit Kumar Upadhyay, the appellant, and they have faced the trial on the charge under section 302/34 IPC. During the trial the prosecution has examined nine witnesses to prove the charge under section 302/34 IPC framed against them. Dr. Lalan Choudhary who has conducted autopsy over the dead-body of Pankaj Jha has found one penetrating wound with abdominal cavity over the left lower part of the chest. 3. The learned 1st Additional Session Judge, Seraikella-Kharsawan has held that the statement of Pankaj Jha before his sister and mother is the dying declaration and non-examination of Simi and the Investigating Officer has not caused prejudice to the accused. 3. The learned 1st Additional Session Judge, Seraikella-Kharsawan has held that the statement of Pankaj Jha before his sister and mother is the dying declaration and non-examination of Simi and the Investigating Officer has not caused prejudice to the accused. The involvement of Rajendra Kumar Swarnkar and Pawan Kumar Sharma was not established in the trial, however, the learned trial Judge has found that the charge against Sumit Kumar Upadhyay for causing death of Pankaj Jha has been proved by the prosecution. Accordingly, the appellant has been convicted and sentenced to R.I for life and a fine of Rs. 5,000/- under section 302/34 IPC. 4. PW-1 is the brother of Pankaj Jha. On 10.01.2003 he was at Manoharpur and when he came back home after work he received a phone call at 17 : 00 PM that his brother has been injured by a sword. He came to Adityapur and his mother informed him that his brother had told her that Sumit of Road No. 13 had injured him with a sword. After saying this, his mother became unconscious but after she regained consciousness she told him that his brother came at the gate, asked for water and told her that Sumit of Road No. 13 has injured him and then he became unconscious. PW-2 is the maternal uncle of Pankaj Jha-he is the informant. In the Court he has denied that he has seen any assault on him, but he has spoken about the occurrence. He has seen him coming on a motorcycle with his niece, he was injured and going towards his house. He brought him to Tata Main Hospital where he died after about half an hour. He has admitted that he has signed the inquest report and handed over the purcha (chit of paper) to the police on which name of three persons was written. He has also identified his signature on the seizure memo of purcha. PW-3 is the neighbor of Pankaj Jha. In the afternoon of 10.01.2003 he was at home and he has seen Pankaj Jha coming home on a motorcycle with his niece. He has deposed in the Court that he saw Pankaj Jha falling on the ground and at that time he was pressing his left chest with hand. He rushed to his house but by the time he reached there his parents had attended him. He has deposed in the Court that he saw Pankaj Jha falling on the ground and at that time he was pressing his left chest with hand. He rushed to his house but by the time he reached there his parents had attended him. In his cross-examination he has stated that he has seen Pankaj Jha unconscious and that his neighbors Satendra Singh and Baikunth Choudhary came there after him. PW-4 has flatly refused to say anything about the occurrence and professed that he does not know Pankaj Jha. From his cross-examination by the prosecution it appears that during the investigation he had stated before the police that the accused persons on the pretext that their scooter had run out of fuel left the scooter and sword at his house after the occurrence. But during his cross-examination by the prosecution, PW-4 has denied that on 10.01.2003 Rajendra, Pawan and Sumit came to his house and parked a scooter bearing no. BR16D-9626 at the gate and on the pretext that it has ran out of fuel asked him to keep the scooter in his house. He has denied his acquaintance with Rajendra and stated that it is not true that Rajendra is a student of Cooperative College where he was also studying and due to his friendship with him he kept the scooter in his house. He has also denied that Pawan had asked him to conceal the blood-stained sword and that he had admitted that to take revenge for the quarrel in the college Pankaj Jha was assaulted with the sword. He has also denied that any sword was seized from his house by the police, however, he has identified his signature on the seizure list and admitted that before signing a paper it is necessary to read the contents thereon. He has stated that he was made to sign on a plain paper and when he asked the police (Daroga Ji) why he needed to sign on a plain paper he scolded him. PW-5, Smt. Kanchan Jha is the sister of the deceased. She has deposed in the Court that at about 14 : 00 PM his brother came home with Simi and shouted for water. He told her that Sumit has assaulted him with bhalla and at that time two persons were also with him. PW-5, Smt. Kanchan Jha is the sister of the deceased. She has deposed in the Court that at about 14 : 00 PM his brother came home with Simi and shouted for water. He told her that Sumit has assaulted him with bhalla and at that time two persons were also with him. She has seen injury on her brother and stated that her brother was taken to Tata Main Hospital for treatment. She has stated that she does not know why the incident has happened. In the cross-examination she has stated that her statement was recorded by the police on the same night and that after the incident her mother became ill and at times she would become unconscious. She has stated that when her brother came home and asked for water he was wearing a blue jeans and a multi-coloured check shirt. Presumably on a suggestion by the defence that Pankaj Jha was unconscious when he fell at the gate of his house, she has remained firm to her earlier stand and stated that her brother asked for water and he was not unconscious when he fell at the gate. She has reiterated in her cross-examination that her mother was seating near the gate when her brother came there in injured condition. PW-6 is the mother of Pankaj Jha. She has deposed in the Court that at about 14 : 00 PM on 10.01.2003 she was seating outside her house. Her son came home and asked (shouted) for water. He told her that Sumit of Road No. 13 has assaulted him with dagger . At that time her grand child was also with her son. Her son fell on the ground and thereafter she also became unconsciousness. About one hour thereafter when she regained conscious she was told that her son had died. She has stated that she does not know Sumit, but she has asserted that her son told her that Sumit who was accompanied by two boys has assaulted him and fled away on a scooter. In her cross-examination she has stated that after the incident she would become unconscious intermittently. She has seen injury on the left side of the chest of her son. PW-8 is a neighbor who has flatly denied in the Court that any paper lying in front of the house of Pankaj Jha was seized by the police. In her cross-examination she has stated that after the incident she would become unconscious intermittently. She has seen injury on the left side of the chest of her son. PW-8 is a neighbor who has flatly denied in the Court that any paper lying in front of the house of Pankaj Jha was seized by the police. PW-9 is also a seizure witness but in his cross-examination he has stated that no recovery was effected in his presence. 5. PW-1, PW-2, PW-5 and PW-6 are closely related to Pankaj Jha and their testimony has been challenged on the ground that they are interested witnesses and not truthful. 6. There is no bar in law in examining the family members, friends or any other person as witness. The law on the point is well settled that the testimony of relative witnesses cannot be disbelieved on the ground of relationship. 7. In Masalti v. State of U.P., AIR 1965 SC 202 the Hon'ble Supreme Court has observed thus: “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. …………… The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 8. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 8. In Mano Dutt v. State of U.P, (2012) 4 SCC 79 the Hon'ble Supreme Court has observed that:“besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party.” 9. The evidence of FW-1, PW-2 and PW-3 corroborates the prosecution story. PW-2 and PW-3 have reached at the house of Pankaj Jha after he reached there and asked water. They have stated in the Court that when they reached at the house of Pankaj Jha they found him unconscious. Their statements at the trial would fall within the ambit of section 157 of the Evidence Act. The former statement by a witness at or about the time when the incident took place becomes usable under section 157 of the Evidence Act having corroborative value. Such a statement has probative value if such statement has been made without delay, however, if there was delay in making such statement its utility would be restricted to confront the maker. In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 the Hon'ble Supreme Court has observed that there can be no hard and fast rule about the “at or about” condition in section 157. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction. From the evidence of PW-2 and PW-3 two things are established; Pankaj Jha was injured and within minutes he reached home, fell near the gate and became unconscious. PW-1 goes one step ahead and says that his mother told him that Sumit of Road No. 13 has assaulted his brother. From the evidence of PW-2 and PW-3 two things are established; Pankaj Jha was injured and within minutes he reached home, fell near the gate and became unconscious. PW-1 goes one step ahead and says that his mother told him that Sumit of Road No. 13 has assaulted his brother. In his cross-examination, he has admitted that he did not state before the police that when he received a telephonic message he was informed that his brother has been assaulted with a sword. It appears that he was confronted with his former statement under section 161 Cr.P.C wherein he has not said before the police that his mother had informed him that Sumit of Road No. 13 had injured his brother with sword, however, in the Court he has remained firm to his stand and stated that he has made such statement before the police. His statement recorded under section 161 Cr.P.C cannot be proved because the Investigating Officer has not been examined during the trial and for a moment we would proceed on the premise that PW-1 did not make such statements before the police, but merely because a witness has failed to state something before the police his statement in the Court cannot be discarded. By the time his statement was recorded by the police his mother, sister and maternal uncle had given their statements to the police implicating the appellant in the occurrence and therefore he may not have stated those facts which were known to the police. A witness may not say everything about the occurrence before the police or in the Court and he may give exaggerated version of the occurrence, but, it is not every inconsistency, omission or exaggeration which would amount to contradiction. In Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186 the Hon'ble Supreme Court has observed as under: “9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility………..Merely because on the evidence a different view is available to be taken, that cannot be a ground to upset the acquittal.” 10. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility………..Merely because on the evidence a different view is available to be taken, that cannot be a ground to upset the acquittal.” 10. PW-4 has stated that his statement was recorded under the threat by the police and he was forced to sign on a plain paper in the police station, however, he has admitted that he did not inform the Magistrate that the police had taken his signature on a plain paper. He has also admitted that after reading the contents of his statement recorded under section 164 Cr.P.C and after finding the same correct he has put his signature. PW-2 and PW-4 have turned hostile and primarily for this reason the learned Sessions Judge has recorded the order of acquittal for Rajendra Kumar Swarnkar and Pawan Kumar Sharma. We do not approve some of the reasons given by the learned trial Judge and there is no State appeal or revision preferred by the informant and, therefore, we are not inclined to re-open the matter. It was sheer negligence and callous approach of the investigating officer that he did not produce the material witnesses and that was the primary reason why at the trial there was no material on record against these two accused persons. The learned trial Judge has also remained a mute spectator and did not call them as Court witness. Rajendra Kumar Swarnkar and Pawan Kumar Sharma were not named in the First Information Report nonetheless they were sent up for trial. It is thus apparent that during the investigation witnesses must have disclosed their complicity in the crime, still, they were not produced during the trial. 11. On many occasions we have observed that if a witness has not supported the prosecution on an issue he is declared hostile, but without any remark in the deposition or the order-sheet indicating on which issue he was declared hostile. 11. On many occasions we have observed that if a witness has not supported the prosecution on an issue he is declared hostile, but without any remark in the deposition or the order-sheet indicating on which issue he was declared hostile. The procedure adopted by the trial Courts in simply writing that the witness has been declared hostile at the request of the prosecution has created confusion in many cases and many a times the trial Judge has also fallen into error and not taken note of a part of the evidence of a hostile witness which supports the prosecution's case. It is trite that evidence of a hostile witness is not excluded from consideration altogether and the prosecution can rely upon a portion of his evidence which supports its case. The statement of PW-4 was recorded under section 164 Cr.P.C and in the Court he has affirmed that after having understood the contents of his statement he has put his signature on the statement and in the cross-examination by the prosecution he has admitted that he did not inform the Magistrate who was recording his statement under section 164 Cr.P.C that he was giving statement under coercion and threat by the police. His evidence in the Court of course does not support the prosecution and his statement under section 164 Cr.P.C not being a substantive evidence cannot be used against the appellant, but then, the Court could always look into his statement under section 161 Cr.P.C as well as under section 164 Cr.P.C to seek support to the tentative opinion it has formed. PW-4 is a seizure witness and in the Court he has affirmed that he has put his signature on the seizure memo. Though he has stated in the Court that the police got his signature on plain papers but at the same time he has also admitted that without reading the contents thereon he would not have signed the document. His statement that under threat he has signed the plain papers is not sufficient to disbelieve and discard the evidence on seizure of the scooter and the blood-stained sword the accused persons had left in his house. His statement that under threat he has signed the plain papers is not sufficient to disbelieve and discard the evidence on seizure of the scooter and the blood-stained sword the accused persons had left in his house. The seizure memo was prepared by the investigating officer and, therefore, his contemporaneous act along with PW-4 being a seizure witness would come in aid of the prosecution to prove the charge against the appellant [refer, Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 ]. 12. The main thrust of the argument raised on behalf of the appellant is on identification. The learned counsel for the appellant would submit that PW-6 has admitted that she did not know Sumit and for a moment assuming that Pankaj Jha told her that Sumit of Road No. 13 has injured him that would not necessarily mean that the assailant was Sumit Kumar Upadhyay and, moreover, it is not established that the appellant is the only Sumit who lives in Road No. 13. 13. The truthfulness of a person whose words are spoken by another person cannot be tested by cross-examination and therefore his words spoken by another person is not considered the best evidence - the rule against the admission of hear-say is fundamental. But there are exceptions to the rule of hear-say. Section 32 of the Indian Evidence Act provides that statement of relevant fact by a person who is dead or cannot be found, etc., is relevant. The dying declaration can be written or oral and any statement made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, which relates to cause of death is a relevant fact and admissible in evidence. Sub-section (1) to section 32 of the Indian Evidence Act explains that it is not necessary that at the time when statements considered relevant under section 32 of the Act are made the person who has made such statement was under the expectation of death. Sub-section (1) to section 32 of the Indian Evidence Act explains that it is not necessary that at the time when statements considered relevant under section 32 of the Act are made the person who has made such statement was under the expectation of death. It further provides that not only the statement relating to the cause of death but also any of the circumstances of the transaction which resulted in the death is a relevant fact in a case in which the cause of that person's death comes into question. 14. The statement of Pankaj Jha made before P.W-5 and PW-6 relates to cause of his death. It is admissible in evidence under section 32(1) and section 6 of the Evidence Act, as well. 15. The purpose of incorporating section 6 in the Evidence Act is to complete the missing links in the chain of evidence tendered by the prosecution. The rule of res gestae roughly speaking is an exception to the general rule that hear-say evidence is not admissible. The rational behind section 6 which makes certain statement or the fact admissible in evidence is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. 16. In Black Law Dictionary res gestae is described as under: “(Latin:‘things done’) The events at issue, or other events contemporaneous with them. In evidence law, words and statements about the res gestae are usually admissible under a hearsay exception (such as present sense impression or excited utterance).” 17. Pankaj Jha has revealed name of his assaulter to his v, mother and sister soon after he was assaulted by the appellant - within minutes. There was no long gap of time, it was contemporaneous and the utterances were interwoven to the fact in issue - that is, cause of death. 18. Notwithstanding the informant turning hostile in the trial on identification of the appellant, he is an eye-witness and named the appellant as accused in his evidence. He has admitted that he has seen his nephew coming on a motorcycle with his niece and he had gone towards his house pressing his injury and on reaching home he become unconscious. 18. Notwithstanding the informant turning hostile in the trial on identification of the appellant, he is an eye-witness and named the appellant as accused in his evidence. He has admitted that he has seen his nephew coming on a motorcycle with his niece and he had gone towards his house pressing his injury and on reaching home he become unconscious. He has been declared hostile on the point of identification of the appellant as the assailant, of Pankaj Jha, but a closer look at his evidence, particularly his statement in the cross-examination by the prosecution, would confirm that he has stated about complicity of the appellant in the occurrence. For some reason he has tried to help the accused, however, his statement in paragraph no. 3 of his deposition is sufficient to hold that he is an eye-witness and he has seen assault upon his nephew by the appellant. In paragraph no. 3 of his deposition, he has stated that he was quite perturbed and he has given name of Chhotu and Chandu along with Sumit because of parcha Though, in the Court he has stated that he has not seen anybody assaulting Pankaj Jha, but from his above evidence it is quite clear that he has named the appellant as accused. 19. The appellant was not known to the mother and sister of Pankaj Jha and therefore any question of animosity or strained relationship between them would not arise. The informant seems to be knowing the appellant as would appear from the fardbeyan. His evidence in the Court also implicates him and the defence has not suggested that he was on inimical terms with the appellant. In the trial he has not supported the prosecution on identification of the appellant but he would give a narration of the incident which he had seen in the afternoon of 10.01.2003 while standing at Road No. 14 of RIT Main Road. Pankaj Jha has identified the assailant by name and his place of residence and it is true that there can be another person with the same name residing in Road No. 13, but no such suggestion was put forth by the defence during the trial. Pankaj Jha has identified the assailant by name and his place of residence and it is true that there can be another person with the same name residing in Road No. 13, but no such suggestion was put forth by the defence during the trial. PW-5 and PW-6 have truthfully admitted in the Court that they did not know Sumit who is the assailant of Pankaj Jha, but there is no reason to think that the appellant has been falsely implicated in this case. PW-4 has not supported the prosecution but from his statement recorded under section 161 Cr.P.C with which he was confronted during cross-examination by the prosecution it would appear that the appellant and Pankaj Jha were studying in the same college and in the past there was an altercation between them. The appellant was known to him and in fact it is nobody's case that the deceased was not knowing him. Where identity of the accused was not an issue raised by the defence in the trial and it was not suggested to the prosecution witnesses that there may be another person carrying the same name, the evidence on identification of the accused by name must be considered conclusive - no such suggestion was given to PW-5 and PW-6. 20. The next contention of the appellant is that Pankaj Jha did not make any statement before his mother and sister. To bring home this point, the learned counsel for the appellant has heavily relied on the evidence of PW-2 and PW-3 who have deposed in the Court that they saw Pankaj Jha unconscious at the gate of his house. 21. The case of the prosecution hinges mainly on the dying declaration of Pankaj Jha. A dying declaration is an important piece of evidence which is made admissible on the principle of necessity. The philosophy in law for admitting a dying declaration as a valid piece of evidence springs from the Latin maxim Nemo moriturus praesumitur mentire - that no one would meet the Maker with a lie in the mouth. The shadow of impending death by itself is a guarantee of truth of the statement made by the person regarding the causes and circumstances leading to his death. The shadow of impending death by itself is a guarantee of truth of the statement made by the person regarding the causes and circumstances leading to his death. Mathew Arnold has said that:“truth sits upon the lips of a dying man” and Shakespeare has written in Richard II : where words are scarce, They are seldom spent in vain; They breathe the truth, That breathe their words in pain”. 22. PW-5 and PW-6 are the witnesses on the point of dying declaration of Pankaj Jha. PW-5 has stated that she was present in Quarter No. 6 at Road No. 16 on the day of occurrence. At about 14 : 00 PM her mother was sitting outside and around the same time her brother came there with Simi and asked for water. PW-6 has also stated that at around 14 : 00 PM her son came home and fell near the gate. At that time she was sitting outside her house. PW-5 and PW-6 both have deposed in the Court that Pankaj Jha told them that Sumit of Road No. 13 has injured him with bhalla and at that time two other persons were also with him. In the ordinary course the family members are expected to ask the victim the name of the assailant at the first opportunity and if the victim was in the position to communicate, it is reasonably expected that he would give the name of the assailant if he had recognized him. Pankaj Jha had suffered serious injury and he died within an hour after he was assaulted by the appellant. After reaching home and talking to his mother and sister he has become unconscious. The duration of talk as would appear from the testimony of PW-5 and PW-6 was very short and within few minutes Pankaj Jha has become unconscious. The doctor has stated that after receiving an injury as was inflicted on Pankaj Jha one can drive motorcycle and such injury may not bring instant death of an injured person. In paragraph no. 19 of the cross-examination he has stated that within 5 to 10 minutes a person may become unconscious after receiving the kind of injury which was sustained by Pankaj Jha. In paragraph no. 19 of the cross-examination he has stated that within 5 to 10 minutes a person may become unconscious after receiving the kind of injury which was sustained by Pankaj Jha. In view of the statement of the doctor in his cross-examination by the defence that on receiving an injury of the nature as suffered by Pankaj Jha one can remain conscious for about 5 to 10 minutes, there is no reason to disbelieve the evidence of PW-5 and PW-6 that Pankaj Jha has revealed the name of his assailant before he became unconscious. As can be gathered from the materials on record the place of occurrence and the house of Pankaj Jha are nearby. It is evident from the evidence of the informant who has stated that he has ran to the house of his nephew when he found him in injured condition on the crossing of Road No. 14. Pankaj Jha had sustained grievous injury and somehow he could reach home and disclosed the name of his assailant. 23. Mr. A.K. Das, the learned counsel for the appellant has contended that the discrepancy in describing the weapon of assault by the prosecution witnesses and statement of the doctor that there would be profuse bleeding from the injury of Pankaj Jha are sufficient to hold that Pankaj Jha did not make a dying declaration. 24. The first thing that has to be always remembered in a criminal trial is that the medical evidence is a corroborative piece of evidence for the prosecution and except in very few cases in which the medical evidence would show that the manner of occurrence and the injury caused as the prosecution has tried to project were not possible, the ultimate result must be guided by the ocular evidence. In Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 it was observed as under: “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. In Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 it was observed as under: “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.” 25. In his cross-examination, PW-7 has stated that Pankaj Jha had suffered grievous injury and due to such injury profuse bleeding would have occurred, but PW-5 and PW-6 have seen little blood oozing out of the injury of Pankaj Jha. Regarding the weapon PW-1 says sword, PW-5 dagger and bhalla and in the fardbeyan the weapon is described as a sharp-edged iron rod, but such varied description of the weapon would not make much difference to the prosecution story. It is common knowledge that dagger, bhalla and sword are all sharp-edged pointed weapon. PW-7, Dr. Lalan Choudhary who was posted as Assistant Professor in the Department of Forensic Medicine, MGM, Jamshedpur has conducted the autopsy over the dead body of Pankaj Jha. He has found one penetrating wound of size of “3 cm × 1.5 cm”, with deep abdominal cavity over the left lower part of the chest - about 6.5 cm below the left nipple. He has rendered an opinion that the death of Pankaj Jha was caused due to hemorrhage and shock resulting from the penetrating wound caused to him by a sharp-edged pointed weapon and in his estimation the time elapsed since death was about 18-24 hours from the postmortem examination. He has rendered an opinion that the death of Pankaj Jha was caused due to hemorrhage and shock resulting from the penetrating wound caused to him by a sharp-edged pointed weapon and in his estimation the time elapsed since death was about 18-24 hours from the postmortem examination. In Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657 the Hon'ble Supreme Court has observed that while appreciating the evidence the Court has to take into consideration whether the contradiction and omissions had been of such magnitude that they may materially affect the trial and minor contradiction, inconsistency, embellishment or improvement on trivial matter without affecting the core of the prosecution should not be made a ground to reject the evidence of a witness in its entirety. PW-5 and PW-6 who are not the eye-witnesses have specifically stated that Pankaj Jha told them that Sumit has injured him with a dagger, which is also a sharp-edged pointed weapon. It was the month of January, so Pankaj Jha must have been wearing thick winter cloths that would soak the blood. Apparently, nothing turns on it that PW-5 and PW-6 have seen little blood on Pankaj Jha when he reached home. We do not find any discrepancy regarding the weapon of assault or any other contradiction about the nature of injury suffered by Pankaj Jha. 26. An accused can be convicted solely on the basis of a dying declaration and a singular dying declaration without any corroboration by other independent evidence is sufficient to record conviction, if it is found that the dying declaration is free from embellishment and inspires confidence of the Court. In Paniben (Smt) v. State of Gujarat, (1992) 2 SCC 474 the Hon'ble Supreme Court has held that a dying declaration is entitled to great weight and once the Court is satisfied that the declaration is true and voluntary, it could base conviction without corroboration. It has been held that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence and not a rule of law. 27. The dying declaration of Pankaj Jha is free from embellishment and there is no suspicious circumstance to suggest any tutoring. 27. The dying declaration of Pankaj Jha is free from embellishment and there is no suspicious circumstance to suggest any tutoring. The evidence of PW-5 and PW-6 is of sterling quality and they are truthful and reliable witnesses. Their admission that they had no acquaintances with Sumit would rule out any possibility of false implication of the appellant in this case. He is a resident of the locality and known to PW-2 by name and face, particularly as brother of Chhotu. The identity of the appellant as the one who has struck a fatal blow in the abdomen of Pankaj Jha has been clearly established during the trial. 28. A plea was raised that a charge-sheet was filed against entirely a different set of accused persons who were not named in the First Information Report and the appellant has been sent up for trial only because he carries the name Sumit. There may be a goof up insofar as Chandu and Chhotu are concerned and the reason for this appears to be a chit of paper given to PW-2 by a boy in which name of these two persons were also written, but there is no doubt on complicity of the appellant in the crime. A First Information Report has limited utility in a criminal case and it is well-settled that it may not contain name of all the accused persons and one or more accused named in the First Information Report may not be sent up for trial. Next, it was contended that the prosecution has failed to impute motive to the appellant for assaulting Pankaj Jha and we find that except PW-4 who has spoken about an altercation between the appellant and Pankaj v, Jha in the college where the appellant had assaulted Pankaj Jha to take revenge, there is no other material on record on this issue. The statement of PW-4 under section 161 Cr.P.C not being a substantive evidence cannot be used against the appellant and therefore there is no evidence regarding motive for the crime. But then, motive is not a determinant factor in a criminal case and absence of motive in face of clear and cogent ocular evidence would not shake the foundation of the prosecution case. But then, motive is not a determinant factor in a criminal case and absence of motive in face of clear and cogent ocular evidence would not shake the foundation of the prosecution case. The significance of motive in a criminal trial cannot be undermined but at the same time it cannot be elevated to the status of a fundamental factor for recording conviction or acquittal of the accused. 29. In Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238 the Hon'ble Supreme Court has observed as under: “17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer thus: “But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.” Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant. In Atley v. State of U.P. it was held: “That is true; and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion.” In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution.” 30. The effect of non-examination of the investigating officer in the trial has engaged judicial attention unempteen times and it is quite settled that failure of the prosecution to examine the investigating officer would not ipso facto vitiate the trial. The evidence of the investigating officer is largely not substantive evidence, but it is important for the prosecution and the defence in equal measures. To demonstrate omission, exaggeration and contradiction in the testimony of a prosecution witness in terms of proviso to section 162(2) Cr.P.C read with section 145 of the Evidence Act, the defence would be handicapped if the investigating officer does not come to the witness box. However, to say that in every case non-examination of the investigating officer would cause prejudice to the accused would be unreasonable and an unrealistic approach. In a situation where a witness denies to have or have not made a statement before the investigating officer, denial or admission of the investigating officer about his statement is not always relevant to exclude a part of the statement of a witness made in the Court. It is for the Court to decide whether omission or exaggeration in the statement of a witness in the Court would amount to contradiction and what would be the effect of such contradiction on the prosecution case. 31. In the present case, there is very little on the issue of prejudice to the appellant and even excluding a part of the statements of PW-1, PW-5 and PW-6 which according to the defence were improvements made by them in the Court, what remains on record is sufficient to hold the appellant guilty under section 302 IPC. 32. The next issue is whether a single blow by the appellant to Pankaj Jha would make him liable under section 302 IPC or 304 Part I IPC. 32. The next issue is whether a single blow by the appellant to Pankaj Jha would make him liable under section 302 IPC or 304 Part I IPC. The intention of an accused can be gathered from the manner of occurrence, the nature of injury, the weapon used and whether the injury was on vital or non-vital part of the body. In Mahesh Balmiki alias Munna v. State of Madhya Pradesh, (2000) 1 SCC 319 the Hon'ble Supreme Court has held that in some cases a single blow may entail conviction under section 302 IPC, in some cases under section 304 IPC and in some other cases under section 326 IPC. Therefore, the question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. On applicability of Exception-4 to section 300 IPC, in Babulal Sahu v. State of Chhattisgarh, (2011) 14 SCC 399 the Hon'ble Supreme Court has observed that; “6……A bare reading of this provision would indicate that it refers to certain specific ingredients which have to be kept in mind before it can be taken as applicable. The last two points that are relevant are that the offender should not have taken undue advantage of his position or acted in a cruel or unusual manner. We find that these conditions are not satisfied in this case”. In Hawa Singh v. State of Haryana, (2009) 3 SCC 411 the Hon'ble Supreme Court has observed that; “14……..This is very clear from the wording of the exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel but here, the accused party, being deadly armed, came with the intention of teaching Man Singh a lesson and in furtherance of that, one of them, Hawa Singh, hit Man Singh on the head with a sword, an attack with a deadly weapon on the vital part of the body and that proved to be a fatal blow. Therefore, Exception 4 to Section 300 has no application to the facts of the present case.” 33. Therefore, Exception 4 to Section 300 has no application to the facts of the present case.” 33. The doctor has found one penetrating wound with deep abdominal cavity over the left lower part of the chest and has rendered an opinion that the death of Pankaj Jha was caused due to hemorrhage and shock resulting from the penetrating wound On dissection he has found the left upper border of eighth rib and seventh intercostal pierced to the extent of 2.5 cm to 6 cm; spleen, stomach and liver were pierced through and through and; left side of diaphragm was pierced. The damage caused by any injury could not have been more than this. 34. The evidence of the doctor that Pankaj Jha has suffered a penetrating wound in the abdomen and the extent of injury would clearly establish intention of the appellant to cause his death. The ingredients of Exception-4 to section 300 IPC are absent in this case and even assuming that clause Firstly of section 300 is not attracted, a knowledge that his act was so imminently dangerous that it must in all probability would cause death must be imputed to the appellant and while so, clause Fourthly to section 300 is squarely attracted in this case. 35. In view of the aforesaid discussions, we find no merit in this criminal appeal and, accordingly, Criminal Appeal (DB) No. 841 of 2012 is dismissed. 36. Let the lower-Court records be sent to the Court concerned forthwith. 37. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.