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2025 DIGILAW 1587 (GAU)

Bipul Dey v. State of Assam

2025-09-15

ANJAN MONI KALITA, MICHAEL ZOTHANKHUMA

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JUDGMENT : M. Zothankhuma, J 1. Heard Mr. Z. Kamar, learned Senior Counsel for the accused appellant no.1, Mr. A. Ahmed , learned counsel for the accused appellant nos.2 & 3 and Mr. M. Biswas, learned counsel for the accused appellant no.4. Also heard Ms. A. Begum, learned Additional Public Prosecutor the respondent no.1 and Mr. A.K. Bhuyan, learned counsel for the respondent no.2. 2. This appeal challenges the judgment dated 28.08.2009 passed by the Court of the Additional District & Sessions Judge, Hojai in S.C. Case No.59/2015, by which the appellants have been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.50,000/-, in default simple imprisonment for 6 (six) months. 3. The prosecution case in brief is that one Pappu Dey (PW-13) had called up at 8:00 p.m on 14.10.2013 to the Lanka Police Station, Hojai informing the police that his neighbour Bipul Dey, i.e. appellant no.1, had hacked the informant’s elder brother Pinaki Dey on his neck and abdomen with a sharp weapon, thereby injuring him grievously. Further, though the informant’s injured brother had been taken to Lanka Hospital, the Doctors therein had referred Pinaki Dey to HAMM Hospital at Hojai for better treatment. Accordingly, on the basis of the mobile call made by PW-13, Lanka P.S. G.D.E No.349 dated 14.10.2013 was registered. 4. Thereafter FIR dated 14.10.2013 was lodged by PW-13 at around 11:00 p.m stating that at around 6:30 p.m. on 14.10.2013, when his elder brother Sri Pinaki Dey was sitting on his two wheeler at the rear gate of the house of PW- 13, the appellant nos.2, 3 & 4, Achinta Dey, Krishna Dey, Pranab Asish Dutta @ Munna Dutta had surrounded Pinaki Dey, while appellant no.1 Bipul Dey had slashed Pinaki Dey’s back and neck with an intention to kill him. Pinaki Dey was then taken in a grievously injured state to Lanka hospital, wherein the Doctors referred him to HAMM Hospital. It also stated that while being taken there, Pinaki Dey narrated the entire incident to PW-13. After reaching HAMM hospital, the informant’s elder brother Pinaki Dey expired. 5. Consequent to the above, the police registered Lanka P.S. Case No.346/2013 dated 14.10.2013 under Section 302 /34 IPC. After completing the investigation, the I.O. submitted a charge-sheet, on finding a prima facie case under Section 302 /34 IPC against the appellants. After reaching HAMM hospital, the informant’s elder brother Pinaki Dey expired. 5. Consequent to the above, the police registered Lanka P.S. Case No.346/2013 dated 14.10.2013 under Section 302 /34 IPC. After completing the investigation, the I.O. submitted a charge-sheet, on finding a prima facie case under Section 302 /34 IPC against the appellants. Thereafter charge was framed against the appellants under Section 302 /34 IPC, to which the appellants pleaded not guilty and claimed to be tried. 6. The learned Trial Court thereafter examined 15 prosecution witnesses and 4 defence witnesses. Out of the 15 prosecution witnesses, there were 7 eyewitnesses, who are PW-3, PW-4, PW-5, PW-7, PW-9, PW-10 & PW-11. There were also 3 prosecution witnesses, who gave evidence to the effect that the deceased had named the appellants as the perpetrators of the crime, in his oral dying declaration. They are PW-6, PW-8 and PW-13. 7. The learned Trial Court after examining the appellants under Section 313 Cr.P.C, in which the appellants made a blanket denial regarding their involvement in the death of Pinaki Dey, came to a finding that the appellants were guilty of having committed an offence under Section 302 IPC. The learned Trial Court convicted all the 4 appellants under Section 302 IPC and sentenced them, as indicated above. 8. The evidence of the eyewitnesses is to the effect that while the appellant nos.2, 3 & 4 held both the hands of the deceased Pinaki Dey, the appellant no.1 Bipul Dey stabbed the neck and chest of the deceased with a sharp weapon. The deceased was then taken to Lanka Hospital, from where he was referred to HAMM Hospital as his injury was serious. However, the deceased died in HAMM Hospital. 9. Mr. Z. Kamar, learned Senior Counsel for the appellant no.1 submits that the appellants have not been convicted by the learned Trial Court under Section 34 IPC and as such, questions the conviction of all the four appellants under Section 302 IPC simpliciter, without making a mention of Section 34 IPC. He submits that as the appellants were not convicted under Section 302 /34 IPC, but only under Section 302 IPC, though Charge had been framed under Section 302 /34 IPC, the conviction cannot stand, as the question of death in furtherance of the common intention of all the appellants has not been made out. 10. Mr. He submits that as the appellants were not convicted under Section 302 /34 IPC, but only under Section 302 IPC, though Charge had been framed under Section 302 /34 IPC, the conviction cannot stand, as the question of death in furtherance of the common intention of all the appellants has not been made out. 10. Mr. Z. Kamar also questions the framing of Charge against the appellants under Section 302 /34 IPC, while the Form used by the learned Trial Court during framing of Charge states “Charge with one Head”. 11. The learned Senior Counsel for the appellant no.1 submits that when a G.D Entry had been registered, vide Lanka P.S. G.D.E No.349 dated 14.10.2013 at 8:00 p.m and the police had started the investigation on the basis of the G.D. Entry, the same ought to be treated as an FIR. On the other hand, contents of the FIR which had been submitted 3 hours later by the same person, is different from the contents in the G.D. Entry. 12. The learned Senior Counsel for the appellant no.1 submits that while the evidence of the prosecution witnesses were to the effect that the deceased had been stabbed in the neck and back of his body, the Doctor’s report and evidence did not find any injury on the back of the deceased. 13. The learned Senior Counsel for the appellant no.1 further submits that there could not have been any oral dying declaration made by the deceased, in view of the fact that the vein in his neck was cut and blood was coming out. Further, though PW-6 had stated in his examination-in-chief that the deceased had named the appellant nos.2, 3 & 4 as the persons who held him, while the said appellant no.1 had stabbed him, PW-6 in his cross-examination had stated that the deceased did not say anything while being taken to Lanka Hospital. He further submits that the evidence of the Investigating Officer (PW-14) is to the effect that the informant PW-13 stated that the deceased had become senseless while being taken to the hospital. He submits that a senseless person cannot give any dying declaration. He also submits that the dying declaration theory is only an afterthought and it had never actually happened. He also submits that dying declaration is a weak piece of evidence and cannot be relied on for convicting the appellants. 14. He submits that a senseless person cannot give any dying declaration. He also submits that the dying declaration theory is only an afterthought and it had never actually happened. He also submits that dying declaration is a weak piece of evidence and cannot be relied on for convicting the appellants. 14. The learned Senior Counsel for the appellant no.1 further submits that there was no recovery of the weapon as the attackers had fled. He also submits that as per the sketch map of the place of occurrence and the neighbourhood, the residents of the houses that were on the left and right of the place of occurrence were not made prosecution witnesses, which implied that the prosecution witnesses withheld material evidence. He also submits that there was a discrepancy with regard to where the incident took place, inasmuch as, the evidence of WP-3 is to the effect that the incident took place in front of their gateway, while the informant/PW-13 in his FIR, who was the husband of PW-3, had stated that the incident took place at the rear gate of his house. 15. Mr. M. Biswas, learned counsel for the appellant no.4, i.e. Pranab Asish Dutta @ Munna submits that the appellant no.4 was never identified by the prosecution witnesses. He submits that no Test Identification Parade (TIP) was held by any of the prosecution witnesses and neither was there any Dock Identification of the appellants at the time of recording of evidence of the prosecution witnesses. He submits that in the case of Tukesh Singh & Others vs. State of Chhattisgarh , reported in 2025 SCC OnLIne SC 1110, the Supreme Court has held that the eyewitnesses must identify the accused sitting in the dock, as the same accused whom they saw committing the crime. In a case where the eyewitnesses did not know the accused before the incident, a TIP is necessary. If it is not held and if the evidence of the eyewitness is recorded after a few years, the identification of such an accused by the eyewitness in the Court becomes vulnerable to the charge of not being reliable. Identification of the accused sitting in the Court by the eyewitness is of utmost importance. If it is not held and if the evidence of the eyewitness is recorded after a few years, the identification of such an accused by the eyewitness in the Court becomes vulnerable to the charge of not being reliable. Identification of the accused sitting in the Court by the eyewitness is of utmost importance. He also submits that in terms of the judgment of the Supreme Court in the case of Ramkishan Mithanlal Sharma vs. State of Bombay reported in (1954) 2 SCC 516, the Supreme Court has held that the identifier may point out by his finger or touch the person identified by either nodding his head or making signs or gestures, which are tantamount to identifying that the particular person has been identified as the person who committed the offence. He also relies upon the judgment of the Supreme Court in the case of Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) reported in (2010) 6 SCC 1 , wherein it has been held that dock identification is a substantive piece of evidence. Therefore, even where no TIP is conducted, no prejudice can be caused to the case of the Prosecution, if dock identification is done. He however submits that no dock identification was done in the present case. 16. The learned counsel for the appellant no.4 further submits that the evidence of the appellants was taken by the learned Trial Court under Section 315 Cr.P.C and in the cross-examination of the four appellants, which was done on the same day, no question was put to the appellant no.4 as to whether he knew the prosecution witnesses. On the other hand, the three other appellants, i.e. appellant nos.1, 2 & 3 were asked questions as to whether they knew the prosecution witnesses. He submits that this was done, only because the eyewitnesses could not identify the appellant no.4 and vice versa. 17. The learned counsel for the appellant no.4 further submits that there are inherent contradictions/inconsistencies in the evidence of the prosecution witnesses. In this context, he submits that the evidence of PW-3 is to the effect that she had taken the deceased to hospital. On the other hand, PW-4 had stated that PW-10 and PW-6 had taken the deceased to hospital, without making any mention that PW-3 had taken the deceased to hospital. In this context, he submits that the evidence of PW-3 is to the effect that she had taken the deceased to hospital. On the other hand, PW-4 had stated that PW-10 and PW-6 had taken the deceased to hospital, without making any mention that PW-3 had taken the deceased to hospital. The evidence of PW-5, on the other hand was that PW-6 and one Tapas had taken the deceased to hospital. Thus, it was not clear as to who had taken the deceased to hospital, keeping in view the discrepancies made in the testimony of PW-3, PW-4 and PW-5. 18. The learned counsel for the appellant no.4 further submits that the evidence of prosecution witnesses, who are also eyewitnesses, i.e. PW-3, PW-4, PW-5, PW-7, PW-9, PW-10 & PW-11 does not show that they were in the place of occurrence at the time of incident, though their evidence is to the effect that they had all seen the crime being committed. This inconsistency in the evidence of the eyewitnesses implies that the evidence of the witnesses are fabricated and cannot be relied upon. He also submits that a perusal of the sketch-map, read with the evidence of the witnesses, clearly shows that there has been fabrication of evidence. He submits that no weapon was recovered and that the witnesses were not sure as to what weapon had been used for the assault, despite PW-3 being only 10 feet away from the assault. 19. The learned counsel for the appellant no.4 further submits that though the evidence of PW-4 is to the effect that there were around 50 people gathered at the place of occurrence after the incident, PW-4 could identify only PW-5, PW-7 and PW-11. Further, the evidence of PW-10 and PW-11 was to the effect that the assault on the deceased was on the neck and belly. However, there was no injury on the belly of the deceased. He also submits that no motive or intention has been attributed to the appellants for the alleged assault on the deceased. Further, the evidence of PW-10 and PW-11 was to the effect that the assault on the deceased was on the neck and belly. However, there was no injury on the belly of the deceased. He also submits that no motive or intention has been attributed to the appellants for the alleged assault on the deceased. He further submits that though the witnesses have stated that the weapon used was a sharp and pointed weapon, the Post Mortem examination report showed the wounds of the deceased to be lacerated wounds, which could not have been inflicted by a sharp and pointed weapon in terms of the decision of the Supreme Court in the case of Ganga Prasad vs. State of U.P , reported in (1987) 2 SCC 232 which states at paragraph-3 as follows : “(3) It could not be doubted that the injuries in the nature of lacerated wound or contusion could not be caused by an impact of a sharpedged weapon on the human body. Such injuries are only possible by the use of a hard and blunt object. May be that the spade was the instrument of an offence but it might have been used in a manner in which the hard and blunt part of it came in contact with the body of the injured person. In view of the nature of injuries sustained on the complainant the conviction of the appellant under S. 326 INDIAN PENAL CODE could not be sustained. At best he could be convicted for an offence under S. 325 IPC. Along with the special leave petition an application for compounding has also been filed and the matter has been compounded by the complainant. An offence under S. 325 is compoundable with the permission of the court.” Further, Chapter-24 : Injuries by Mechanical Violence in “A Textbook of Medical Jurisprudence and Toxicology” written by J.P. Modi on lacerated wounds states that :- “Lacerated wounds are tears or splits produced by blows from blunt objects and missiles, by violent falls on hard projecting surfaces, by machinery and railway accidents, by the wheels of a vehicle causing a grinding compression by their weight resulting in avulsion of the skin. They can also be caused by the claws, teeth or horns of animals and by projecting nails, or by over stretching of the skin over broken bones, These wounds do not generally correspond in shape or size to the weapon producing them. Their edges are torn, jagged, irregular and swollen or contused. The tissues are torn and the skin beyond the seat of injury is ecchymosed and the underlying bones are likely to be fractured, while the internal organs may be injured.” 20. The learned counsel for the appellant no.4 further submits that when there is a discrepancy in the evidence of the prosecution witnesses, it was incumbent on the prosecution to establish motive for the assault on the deceased. However, the same was not done in the present case. In support of his submission that the Prosecution was to establish motive for the crime, he has relied upon the judgment of the Supreme Court in the case of State of Uttar Pradesh Prasad vs. Rajvir , reported in (2007) 15 SCC 545 , wherein it has held as follows : “.......There is no dispute as to the legal position that in the absence of motive; or the alleged motive having not been established; an accused cannot be convicted if the prosecution is successful in establishing the crime said to have been committed by an accused by other evidence. At any rate, a doubt definitely arose in the case in hand as to what was the reason or motive for the respondent to commit the murder of the deceased. In State of U.P. v. Hari Prasad & Ors. [ 1974(3) SCC 673 ], this Court dealing with the aspect of motive has stated thus : "This is not to say that even if the witnesses are truthful, the prosecution must fail for the reason that the motive of the crime is difficult to find. For the matter of that, it is never incumbent on the prosecution to prove the motive for the crime. And often times, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive. But, if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive." …………” 21. And often times, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive. But, if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive." …………” 21. The learned counsel for the appellant no.4 further submits that besides no motive being shown by the prosecution, no common intention had been proved vis-à-vis the appellant nos.2, 3 & 4 and the appellant no.1. There is nothing to show that there was any common intention to kill the deceased, so as to enable the learned Trial Court to have convicted the appellant no.4 under Section 302 /34 IPC. He submits that in the case of Ramashish Yadav & Others vs. State of Bihar, reported in (1999) 8 SCC 555 , the Supreme Court had held that the accused in that case, who had held the deceased while the other accused had dealt blows on the deceased by a gandasa, the same did not attract Section 302 /34 IPC. He submits that when the facts of the case are similar, inasmuch as, the appellant nos.2, 3 & 4, who are alleged to have caught hold of the deceased, while the appellant no.1 had inflicted the injuries on the neck and chest of the deceased, the common intention to kill the deceased could not be proved. 22. The learned counsel for the appellant no.4 further submits that the evidence of PW-3 is to the effect that the informant (PW-13) was the brother of the father-in-law of PW-3, though the husband of PW-3 who is PW-13, is supposedly the brother of the deceased. He also submits that the evidence of PW-7 is to the effect that when he appeared at the place of occurrence, the appellants had already fled from the place of occurrence. Further, the evidence of PW-3 is to the effect that the appellant no.1 was Biju Dey, while in the cross- examination, PW-3 stated that the appellant no.1 was Bipul. He accordingly submits that the discrepancies in the evidence of the witnesses are at variance with each other and gives rise to an inference that all the Prosecution evidence are fabricated. 23. He accordingly submits that the discrepancies in the evidence of the witnesses are at variance with each other and gives rise to an inference that all the Prosecution evidence are fabricated. 23. The learned counsel for the appellant no.4 submits that the appellant no.4 in his evidence had taken the alibi that he could not have been involved in the crime, as he had an injury on his leg due to which he could not walk. As such, he could not have been at the place of occurrence when the incident occurred. 24. Mr. A. Ahmed, learned counsel for the respondent Nos.2 & 3 submits that the FIR was lodged on 14.10.2013 at 11:00 p.m by PW-13, i.e. 4 hours after the incident. However, the police had arrived at the place of occurrence at 7:30 p.m, as per the admission made by PW-14 (I.O.), while the G.D. entry had been recorded at around 8:00 p.m, on the basis of the information received from PW- 13. He submits that in view of the above, the G.D. entry would have to be treated as the FIR. He also submits that in the G.D. entry, the appellants’ names were not disclosed as assailants by the informant, while in the FIR, the appellants’ names had been disclosed as the assailants. 25. The counsel for the respondent Nos.2 & 3 submits that there are discrepancies and contradictions amongst the eye witnesses, inasmuch as, PW-3 had stated that the appellants had fled away when they saw her and that she had taken the deceased to Lanka Hospital for treatment. However, the evidence of PW-4 is to the effect that PW-6 & PW-10 took the deceased to the hospital. In her cross-examination, PW-3 stated that she was alone at the place of occurrence. PW-4, on the other hand, had stated that though there were around 50 people gathered at the place of occurrence, he could remember the names of only PWs-5, 7 & 11. He submits that the evidence of PW-5 shows that PW-3 was not present at the place of occurrence, at the time the incident had occurred. Further, in the alternative, in view of the testimony of PW-3, the other eye witnesses, i.e PWs- 7, 9 & 10 could not have been present at the place of occurrence, at the time the incident occurred. 26. Further, in the alternative, in view of the testimony of PW-3, the other eye witnesses, i.e PWs- 7, 9 & 10 could not have been present at the place of occurrence, at the time the incident occurred. 26. The learned counsel for the respondent Nos.2 & 3 further submits that there was a delay of approximately 4 hours in filing the FIR, which was fatal to the case of the prosecution. In this regard, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Rajeevan & Anr. Vs. State of Kerala, reported in (2003) 3 SCC 355 27. He also submits that there is nothing to show as to what kind of treatment was given to the deceased at Lanka Hospital and as to whether proper treatment had been given to him. He also submits that the evidence of the prosecution witnesses is binding on the prosecution, if the said witness is not declared hostile. In this regard, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Raja Ram Vs. State of Rajasthan reported in (2005) 5 SCC 272 . He also submits that the appellants could not have been convicted under Section 302 IPC simpliciter and the conviction of the appellants would have to be set aside, in the absence of common intention under Section 34 of the IPC, as only one amongst the appellants had been seen stabbing the deceased. In this regard, he has relied upon the judgment of the Supreme Court in the case of Jai Bhagwan & Ors. Vs. State of Haryana, reported in AIR 1999 SC 1083 . He also submits that the evidence of the prosecution witnesses is to the effect that PWs 2, 3 & 4 were holding the hands of the deceased behind his back, while the appellant No.1 Bipul Dey had stabbed the victim with a sharp weapon, which, in the said circumstances, was not sufficient to draw the conclusion that there was a shared common intention to kill the deceased. Further, the evidence of PW-10 is to the effect that the appellant No.1 Bipul Dey had come alone on a bike. Further, the evidence of PW-10 is to the effect that the appellant No.1 Bipul Dey had come alone on a bike. In support of his submission that a case of common intention had not been made out, the learned counsel has relied upon the judgment of the Supreme Court in the case of Suresh Sukharam Nangare Vs State of Maharashtra reported in (2012) 9 SCC 249 . 28. The learned Additional PP, Assam and Mr. A.K. Bhuyan, learned counsel for the respondent no. 2 submit that there being 7 (seven) eye witnesses to the crime in question, wherein, the appellant nos. 2, 3 & 4 held the hands of the deceased while the appellant No.1 stabbed the deceased, shows that there was a common intention in killing the deceased. They submit that the testimony of the prosecution witnesses corroborated each others evidence, which shows that the joint action of the appellants led to the death of the deceased. They also submit that there was evidence on record to show that there was a dispute between the appellants and the deceased, inasmuch as, Pw-4 in his evidence has stated that the appellants Achintya and Pranab Asish Dutta came to his shop around 10 p.m. on the date of occurrence stating that Papu and the deceased Pinaki should be on alert. Though the deceased Pinaki was informed about the same, Pinaki was caught by the appellant nos.2, 3 & 4, i.e. Achintya, Krishna and Pranab Asish from behind and the appellant Bipul Dey hacked/stabbed the neck and chest of the deceased with a sharp weapon. The counsels for the respondents submit that beside there being prior enmity and active participation of all the appellants in killing the deceased, the medical evidence corroborated the fact that the deceased had died due to the injuries inflicted upon him by the appellant no.1. They also submit that the evidence of PW-6 and PW-13 show that the dying declaration had been made by the deceased to PW-6 and PW-13, naming the appellants as the persons who had assaulted him. They also submit that the investigation had started on the basis of the GD entry and the FIR has been filed later on. They also submit that the evidence of PW-6 and PW-13 show that the dying declaration had been made by the deceased to PW-6 and PW-13, naming the appellants as the persons who had assaulted him. They also submit that the investigation had started on the basis of the GD entry and the FIR has been filed later on. They further submit that when the charge had been framed against the appellants under section 302/34 IPC, the un-intentional error by the learned trial Court in not mentioning section 34 IPC at the time of convicting the appellants, did not cause any prejudice to the appellants, as their act came within the provisions of section 302/34 IPC, the common intention of the appellants to kill the deceased having been proved by their actions. 29. The learned counsels for the respondents submit that though there are minor discrepancies in the evidence of the witnesses, there is nothing to show that the appellants had not caused the death of the deceased. 30. We have heard the learned counsels for the parties and have gone through the materials/evidence on record. 31. At the outset, we would like to clarify the 3 discrepancies mentioned by the Counsel for the respondent, regarding (i) whether PW-13 was the brother of the father-in-law of the PW-3, or the husband of PW-3, (ii) whether the evidence of PW-7 was to the effect that the appellants had already fled when he arrived at the place of occurrence and (iii) whether the appellant no. 1 had two names, i.e. Biju and Bipul. The three discrepancies given by the counsel for the appellant no.4 has been verified with the original records and it has been found that there has been a mistake committed by the Translator, not only at the time of translation of the Assamese language, but also in spelling the correct name of the appellant no.1. The name of the appellant no.1 is Bipul Dey and nowhere in the original records does it show that the appellant no.1 is Biju Dey. Further, the evidence of PW-7 which is recorded in the Paper Book, is to the effect that “the accused persons had already fled therefrom”, is not a correct translation of the original version, wherein it had said that the accused persons had fled immediately. Further, the evidence of PW-7 which is recorded in the Paper Book, is to the effect that “the accused persons had already fled therefrom”, is not a correct translation of the original version, wherein it had said that the accused persons had fled immediately. Further, the original records show that the deceased was not the brother of the PW-3’ father-in-law, but he was the brother of the husband of the PW-3. Thus, these mistakes that have occurred in the Paper book have been made by the Registry of this Court and as such, there is no fabrication of records on the basis of these three mistakes committed by the Registry in the Paper Book. 32. The evidence of the prosecution witnesses goes to show that there were 7 (seven) eyewitnesses. The evidence of the eyewitnesses show that while the appellant nos. 2, 3 & 4 were holding the deceased, the appellant no. 1 Bipul Dey stabbed the neck and chest of the deceased with a sharp weapon. The said act was witnessed by PW-3, PW-4, PW-5, PW-7, PW-9, PW-10 & PW-11. PWs -6, 8 & 13 had also given evidence to the effect that the deceased had made a dying declaration, naming the 4 (four) appellants as the perpetrators of the crime. The above being said, the learned trial Court has based its conviction of the appellants under section 302 IPC, only on the basis of the evidence of the eye witnesses and not on the dying declaration. 33. The submissions made by the learned counsels for the appellants shows that they have made a challenge to the impugned judgement on various grounds, which are as follows :- (i) TIP and Dock identification of the appellants had not been done by the prosecution witnesses. (ii) As the evidence of the Doctor (PW-1) was to the effect that there was deep clean cut lacerations in the neck and chest of the deceased, the evidence of the eye witnesses which was to the effect that the injuries had been caused by the appellant no. 1 with a sharp weapon, could not be accepted, due to the fact that lacerated wounds could be caused only by tears or splits produced by blunt objects and missiles and not by sharp weapons. 1 with a sharp weapon, could not be accepted, due to the fact that lacerated wounds could be caused only by tears or splits produced by blunt objects and missiles and not by sharp weapons. (iii) There was discrepancy in the evidence of the prosecution witnesses regarding the place of stabbing of the deceased, inasmuch as, PWs- 10 and 11 had stated that the deceased had been stabbed in the neck and belly, though the injury was in the neck and chest of the deceased, as per the evidence of the other eyewitnesses and the Doctor. (iv) There was discrepancy in the place of occurrence, keeping in view the evidence of PW-3 who stated that the incident occurred in the front of the gate, while her husband, PW-13, stated that the incident occurred in the front of the rear gate. (v) No motive had been established by the prosecution, for the appellants to have assaulted the deceased and that the appellants could not have been convicted in the absence of any motive. (vi) There was discrepancy in the evidence of the prosecution witnesses, regarding the presence of all the eyewitnesses at the relevant time when the incident occurred. (vii) PW-3 cannot be said to be a reliable witness, as she had stated that she had taken the deceased to Lanka hospital for treatment, though PW-4 had stated that PWs -6 & 10 had taken the deceased to the hospital and had not made a mention of PW-3. (viii) The alleged dying declaration of the deceased could not be a ground for convicting the appellants under Section 302 IPC. (ix) That there was no common intention amongst the 4 appellants for attracting the provisions of Section 302 of the IPC read with Section 34 of the IPC. (x) That the learned trial Court could not have convicted all the appellants under Section 302 IPC simpliciter, when the charge had been framed against the appellants under Section 302 /34 IPC and when there was nothing to show that the appellant No. 2, 3 & 4 had stabbed or caused any injury to the deceased by any weapon. (xi) That the appellants had the alibi that though they knew the eyewitnesses, they were not present at the place of occurrence when the incident had occurred. 34. (xi) That the appellants had the alibi that though they knew the eyewitnesses, they were not present at the place of occurrence when the incident had occurred. 34. In the case of Tukesh Singh (supra), Ramkishan Mithanlal Sharma (Supra) and Sidhartha Vashisht alias Manu Sharma (Supra), the Hon’ble Supreme Court has held that identification of an accused sitting in the Court/Dock by an eyewitness is of utmost importance and is a substantive piece of evidence. PWs-3, 4, 5, 7, 9, 10 & 11 have stated in their evidence that they knew the accused persons. Further, all the appellants had been named by the eyewitnesses in their testimonies, as the persons who had caused the death of the deceased. The 7 eyewitnesses mentioned above stated that appellant Nos. 2, 3 & 4 had grabbed hold of the hands of the deceased behind his back, while appellant No.1 hacked the deceased with a sharp weapon. As the appellants have been identified by all the eyewitnesses in the Court, there is no question of there being any wrong identification of the assailants of the deceased. Further, when the appellants were known to the eyewitness, there was no requirement of having a TIP. Thus, in the view of this Court, the eyewitnesses had identified the appellants in the Dock, as the persons who had all played a role in the assault on the deceased. 35. The evidence of PW-1, who is the Doctor, is to the effect that she had done the post-mortem examination of the deceased on 15.10.2013, on the basis of a police requisition arising out of Lanka P.S. Case No.364/2013. The wounds that she found on the body of the deceased were as follows:- “2. Wounds, Position, Character: 1) Deep clean cut laceration around 15 cm. in length lying transversely at the root of neck-front side. 2) Deep clean cut laceration around 20 cm. lying obliquely in left side of chest wall.” In the opinion of the Doctor, the cause of death was due to loss of vitals as a result of cardio-respiratory failure due to injuries sustained. 36. in length lying transversely at the root of neck-front side. 2) Deep clean cut laceration around 20 cm. lying obliquely in left side of chest wall.” In the opinion of the Doctor, the cause of death was due to loss of vitals as a result of cardio-respiratory failure due to injuries sustained. 36. Though the counsels for the appellants have tried to make out a case that when there is laceration of a deep clean cut wound, the same could not be caused by a sharp edged weapon, the fact that the weapon was not recovered, does not take away the fact that the eye witnesses had seen the appellant No.1 stabbing the neck and chest of the deceased with a sharp weapon. It could be a fact that the sharp weapon that was seen may not have been actually sharp and could have been blunt or dull in reality. The same however does not take away the fact that the cut was deep and clean. Thus, just because the wounds were lacerated, the same does not take away the fact that the eye witnesses, i.e. PWs-3, 4, 5, 7 & 9 had seen the appellant No.1 stabbing the neck and chest of the deceased. Though PWs-10 & 11 had stated that they saw the appellant no.1 stab the neck and belly of the deceased, we are of the view that the discrepancy with regard to the testimony of PWs-10 & 11 seeing the stabbing being made on the neck and belly of the deceased, is not fatal to the case of the prosecution, as minor discrepancies on the exact place of stabbing would depend upon the angle and distance from which a particular eyewitness sees the act. Thus, there is no prejudice caused when the exact place of the stab wounds is not mentioned. 37. With regard to the alleged discrepancy in the place of occurrence of the incident, in terms of the evidence of PWs-3 & 13, wherein PW-3 had stated that the incident had taken place in front of her gateway, while the evidence of her husband, PW-13, was to the effect that the incident had taken place in front of the rear gate of their house, the fact remains that the incident had occurred in front of a gateway. Just because PW-3 had not clarified in her evidence whether the gate that she referred to was on the rear side or on the front side of the house, does not take away the fact that the incident had occurred in front of a gate of the house. There appears to have been 2 gates to the house, one in the rear and one in the front. This could have been clarified, if the appellants had cross-examined the witnesses. The appellants not having done the same, the evidence of PW-3 & PW-13, in our view, does not appear to be contradictory. As such, it cannot be said that there was any discrepancy in the place of occurrence, only because of the non-mentioning by PW-3, whether the incident had occurred towards the rear gate or the front gate of the house. 38. Another issue to be decided is whether any motive had been established by the prosecution for the appellants to have assaulted the deceased. Though there is nothing established in the evidence, as to what could be the motive for the assault on the deceased by the appellants, there appeared to be some enmity, as PW-7 had stated that though he did not hear of any altercation between the appellants and the deceased, the appellant no.1 Bipul Dey had asked the deceased why he had assaulted his brother and father. Further, PW-4 had stated that the appellants Achintya and Pranak/Asish Dutta came to his shop on the date of occurrence stating that Papu and Pinaki should be on alert. The eye witnesses subsequently saw the appellant nos.2, 3 & 4 holding the deceased. The appellant no.1 then stabbed the neck and chest of the deceased with a weapon. The Supreme Court in the case of Sheo Shankar Singh Vs. State of Jharkhand & Anr., reported in (2011) 3 SCC 654 , has held that the importance of motive recedes into the background, when there is an eye witness account of a crime. In the present case, there were 7 eye witnesses, who had seen the assault on the deceased and as such, the failure of the prosecution to establish the motive does not take away the fact that an assault had been made on the deceased by the appellants. In the present case, there were 7 eye witnesses, who had seen the assault on the deceased and as such, the failure of the prosecution to establish the motive does not take away the fact that an assault had been made on the deceased by the appellants. In the present case, the action of the appellants show that they had intended to cause serious harm to the deceased, by acting in tandem with each other, in furtherance of a common intention. 39. The appellants’ case is that there was discrepancy in the evidence of the witnesses, inasmuch as, PW-3, in her cross-examination had stated that she was alone at the place of occurrence, while PW-4 had stated that there were around 50 people gathered at the place of occurrence, though he could recognize only PWs-5, 7 & 11. Further, the evidence of PW-5 did not show that PW-3 was present at the place of occurrence. The discrepancies in the evidence of the eyewitnesses, with regard to whether people were present at the place of occurrence would have to be considered in a practical manner. PW-3 was close to the place of occurrence and as it was a bit dark at the time of the occurrence, i.e around 6:30 p.m, she may not have seen others, who could have been behind her or hidden from her view, by the other residences and shops that were close by. Remember the incident occurred near her gate. Similarly, the evidence of PW-4 does not mean that PW-3 was not present at the place of occurrence, only because PW-4 could recognize only PWs-5, 7 & 11 out of approximately 50 people at the place of occurrence. Same is the issue with the evidence of the other eyewitnesses with regard to which eyewitnesses might have been at the place of occurrence at the relevant point of time. It is quite possible for a person not to recognize all the people that are there at a certain place, at a certain point of time, amongst many people. Just because the names of the persons, who were there at the place of occurrence around dusk was beyond the recognition or comprehension of one of the eyewitnesses, does not mean that the other persons/witnesses were not present at the place of occurrence. Just because the names of the persons, who were there at the place of occurrence around dusk was beyond the recognition or comprehension of one of the eyewitnesses, does not mean that the other persons/witnesses were not present at the place of occurrence. Further, depending upon the position where a particular person is at a particular point of time, vis-à-vis, the place of occurrence, the said person could have a perception that he or she was alone at that relevant point of time, though the same may not be true. On considering the above facts, this Court is of the view that the discrepancy in the evidence of the prosecution witnesses regarding which eye witnesses were there at the relevant point of time and the inability to recognize the eyewitnesses amongst a number of people at the place of occurrence, in our view, does not go to the root of the matter, as these are minor discrepancies. 40. In the case of Leela Ram Vs. State of Haryana & Anr., reported in (1999) 9 SCC 525 , the Hon’ble Supreme Court has held as follows:- “Although the High Court is within its jurisdiction as the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of the witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. (Para 9) One hardly comes across a witness whose evidence does not contain some exaggeration or embellishment sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.(Para 12)” 41. In the case of Mritunjoy Biswas Vs. Pranab , reported in (2013) 12 SCC 796, the Hon’ble Supreme Court held that minor contradictions, inconsistencies or insignificant embellishments that do not affect the core of prosecution case should not be taken to be a ground to reject the prosecution evidence. Evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is unbelievable and cannot be accepted by the test of prudence, then it may create a dent in the prosecution case. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. However, when there is no material omission, it cannot be said that the High Court erred in disregarding the minor immaterial omissions or discrepancy. 42. As can be seen from the decisions of the Supreme Court in the above cases, minor discrepancies or contradictions or inconsistencies that do not affect the core of the prosecution case can be overlooked and the same should not be a ground to reject the prosecution evidence. As such, just because all the eyewitness did not see and/or could not name the other eyewitnesses, who were present at the time of the occurrence at the relevant point of time, does not mean that the eyewitnesses were not present at the time the incident had occurred and that their testimonies should be discarded. 43. With regard to the alibi made by the appellants in their evidence as DWs- 1 to 4, that they were not present at the place of occurrence at the time the incident occurred, the evidence of the eyewitnesses having seen them contradicts their alibi. It is also not denied by any of the appellants in their evidence that they knew the eyewitnesses. The question is whether the alibi of the appellants is believable and sustainable. It is also not denied by any of the appellants in their evidence that they knew the eyewitnesses. The question is whether the alibi of the appellants is believable and sustainable. In the case of Binay Kumar Singh Vs. State of Bihar , reported in (1997) 1 SCC 283 , the Supreme has held that strict proof is required for establishing the plea of alibi. In the present case, 7 eyewitnesses have identified the appellants as the perpetrator of the crime against the deceased and keeping the above in view, we are unable to accept the alibi of the appellants that they were not present at the scene of the crime. 44. With regard to whether the dying declaration made by the deceased to PWs-6 & 8 could be the basis for convicting the appellants under Section 302 /34 of the IPC, we find that the learned Trial Court had not relied upon the alleged confessional statement made by the deceased for convicting the appellants. As such, we are not inclined to go into this issue in this appeal. 45. In the case of Baban Shankar Daphal & Ors. Vs. The State of Maharashtra, Criminal Appeal No.1675/2015 , the Hon’ble Supreme Court in it’s judgment dated 22.01.2025, held that conviction can be based upon the version put forth by the eye witnesses and the medical evidence must be considered only for the purpose of corroboration of the ocular evidence. It further held that minor inconsistencies in witness testimony should not overshadow the truth of their statements. Para 32 of the above judgment states as follows:- 32. It has been consistently laid down by this court that once there is a version of eyewitness and the same inspires confidence of the court it will be sufficient to prove the guilt of the accused. A profitable reference can be made to the decision of this Court in the case of Pruthviraj Jayantibhai Vanol vs Dinesh Dayabhai Vala and Ors. , (2022) 18 SCC 683 , wherein it was laid down that: “17. Ocular evidence is considered the best evidence unless there are reasons to doubt it. The evidence of PW-2 and PW-10 is unimpeachable. A profitable reference can be made to the decision of this Court in the case of Pruthviraj Jayantibhai Vanol vs Dinesh Dayabhai Vala and Ors. , (2022) 18 SCC 683 , wherein it was laid down that: “17. Ocular evidence is considered the best evidence unless there are reasons to doubt it. The evidence of PW-2 and PW-10 is unimpeachable. It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. ” (Emphasis supplied).” 46. In the present case, the G.D. Entry had been recorded sometime around 8 p.m on 14.10.2013 and the investigation had started on the basis of the G.D. Entry. The FIR was filed 3 hours later. Though the names of the appellants were apparently not mentioned in the G.D. Entry recorded at 8 p.m., the names of the appellants were mentioned in the FIR submitted 3 hours later. Though it has been held in numerous judgments of the Hon’ble Supreme Court that delay in lodging the FIR can often result in embellishments, which is a creature of an afterthought, we do not find that there has been any embellishment or that there has been a coloured, exaggerated or concocted story in the FIR regarding the occurrence of the assault on the deceased, keeping in view the evidence of the 7 eye witnesses. Further, just because the appellants were not named in the G.D. Entry, does not mean that they cannot be tried for the offence under Section 302 /34 IPC. In the case of Kallu Nat alias Mayank Kumar Nagar vs. State of U.P. & Another, SLP (Criminal) No.10010/2025, the Supreme Court has held that once the Court takes cognizance of the offence (not of the offender), it becomes the Court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police, some others are also involved in the commission of the crime, it is the Court's duty to summon them to stand trial along with those already named, since summoning them would only be part of the process of taking cognizance. In the present case, the appellants having been named as the perpetrators of the crime in the FIR and charge-sheet, the absence of their names in the G.D. Entry does not effect the Prosecution case. 47. The next issue to be decided is with regard to whether the learned Trial Court could have convicted the appellant Nos.2, 3 & 4 under Section 302 of the IPC simpliciter, keeping in view the fact that the injury, which caused the death of the deceased, had been inflicted upon the deceased by the appellant No.1, who had stabbed the victim with a weapon. The records show that charges had been framed against all the 4 appellants under Section 302 /34 of the IPC and the learned Trial Court, after considering the evidence, came to a finding that the appellant Nos.2, 3 & 4 caught hold of the hands of the deceased from behind, allowing the appellant No.1, Bipul Dey, to hack the neck and chest to stomach of the deceased with a sharp weapon. The learned Trial Court held that "All the accused persons at the time of occurrence concertedly acted in perpetration of alleged offence and thus, it qualifies their common intention. The act of accused persons was so imminent that victim was hacked to death with a sharp weapon by A-1 with the assistance of other co-accused A-2, A-3 and A-4 who caught hold of the hands of the victim Pinaki Dey from behind which rendered the victim defenseless which proves their common intention….." The learned Trial Court, thus, held that the same attracted the penal provisions under Section 302 and 34 of the IPC. However, while convicting the appellants, the learned Trial Court inadvertently failed to make a mention of Section 34 of the IPC in the impugned judgment. 48. In the case of Jai Bhagwan & Others (supra), the Hon’ble Supreme Court held that to apply Section 34 of the IPC there should be two or more accused and two factors must be established- (i) common intention and (ii) participation of the accused in the commission of an offence. It also held in para 10 as follows:- “10. To apply Section 34 , IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. It also held in para 10 as follows:- “10. To apply Section 34 , IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case.” The above judgment has been followed by the Supreme Court in a subsequent case also, i.e Suresh Sakharam Nangare Vs. State of Maharashtra, reported in (2012) 9 SCC 249 . 49. The issue to be decided is whether the participation of the appellant Nos.2, 3 & 4 in holding the hands of the deceased, thereby rendering him powerless/helpless, which allowed the appellant No.1 to stab the deceased, amounted to them acting in furtherance of their common intention to kill/murder the deceased. Further, if the above was sufficient to convict the appellant Nos.2, 3 & 4 under Section 302 of the IPC read with Section 34 of the IPC. Thus, the question is whether there was a common intention, to kill/murder, especially when the appellant Nos.2, 3 & 4 were not assaulting the deceased. 50. The evidence of PW-10 in his cross-examination is that he did not see the appellant Nos.2, 3 & 4 having any weapon in their hands, nor did he see them hurting the deceased. The deceased, who came from the opposite direction was assaulted by the appellant No.1, while the appellant Nos.2, 3 & 4 were holding the hands of the deceased behind his back. The evidence of all the eye witnesses are quite similar, inasmuch as, they have all stated that appellant Nos.2, 3 & 4 were holding the hands of the deceased from behind, while the appellant No.1 assaulted the deceased with a weapon. Thereafter, the appellants fled from the place of occurrence till they were apprehended. The evidence of all the eye witnesses are quite similar, inasmuch as, they have all stated that appellant Nos.2, 3 & 4 were holding the hands of the deceased from behind, while the appellant No.1 assaulted the deceased with a weapon. Thereafter, the appellants fled from the place of occurrence till they were apprehended. The above facts, read with the threat/warning issued by the appellant nos.2 & 4 to the deceased through PW-4, in our view, show that there was a common intention to kill the deceased. If it was the intention of the appellants to only cause some minor injuries to the deceased, all the appellants could have jointly thrashed the deceased. However, the very act of the appellant Nos.2, 3 & 4 in holding the hands of the deceased behind his back and making him powerless/helpless, allowed the appellant No.1 to stab the victim on his neck and chest. The same restricted any retaliation or defensive action on the part of the deceased. As there had been a plan to ensure that the deceased could not retaliate from any action that was to be undertaken by the appellant no.1, we are of the view that there was a predetermined plan to act in tandem by the appellants towards the deceased. The plan worked and the same led to a loss of life, due to the use of a weapon by the appellant No.1, in stabbing the vital parts of the body of the deceased, such as, the neck and chest. We are accordingly of the view that there was a common intention on the part of all the appellants to murder the deceased. 51. Though the learned Trial Court had made a finding to that effect that all the appellants had concertedly acted in perpetration of the offence which proved their common intention, the learned Trial Court had inadvertently forgotten to insert Section 34 IPC in the impugned judgment, while convicting the appellants under Section 302 IPC. The absence of Section 34 while convicting the appellants under Section 302 IPC, in our view is as an inadvertent error and the same does not vitiate the impugned order of sentence, as the learned Trial Court had found that there was a common intention on the part of the appellants to cause the death of the deceased. The absence of Section 34 while convicting the appellants under Section 302 IPC, in our view is as an inadvertent error and the same does not vitiate the impugned order of sentence, as the learned Trial Court had found that there was a common intention on the part of the appellants to cause the death of the deceased. As we are also of the view that all the appellants acted in furtherance of their common intention to kill the deceased, no benefit can go to the appellants, only because of an inadvertent error committed by the learned Trial Court, in not mentioning Section 34 IPC, while convicting the appellants under Section 302 IPC. Consequently, we hold that the prosecution has made out a case for conviction of the appellants under Section 302 /34 IPC, as has been the finding of the learned Trial Court. The appellants are accordingly found guilty and convicted under Section 302 /34 IPC. As we do not find any grounds to interfere with the impugned judgment, the appeal is accordingly dismissed. 52. Send back the T.C.R.