Page No.# 1/26 GAHC010265332023 2026:GAU-AS:8775- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J)/131/2023 MD. MAINUL HOQUE R/O- VILL.- BHAKAT GAON, P.S. AND DIST. NAGAON, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM – B E F O R E – HON’BLE MR. JUSTICE NELSON SAILO HON’BLE MR. JUSTICE RAJESH MAZUMDAR For the Appellant : Mr. M H Laskar, Advocate and Amicus Curiae. For the Respondent No. 1 : Mr. R.R.Kaushik, APP Page No.# 2/26 Date on which judgment is reserved : 03.06.2026 Date of pronouncement of judgment : 17.06.2026 Whether the pronouncement is of the operative part of the judgment? : Not applicable. Whether the full judgment has been pronounced? : Yes. JUDGEMENT AND ORDER(CAV) (Rajesh Mazumdar, J) This appeal has been preferred assailing the judgment dated 09.05.2023, passed by the learned Sessions Judge, Nagaon, in Sessions (T-1) Case No.03(N)/2014, by which the appellant has been convicted under Section 302 IPC to undergo Rigorous Imprisonment for life and to pay a fine of ₹10,000, in default, to suffer Simple Imprisonment for another six months. The appellant had spent 1251 days in custody till the date of judgment by the learned Trial Court. Incidents leading to the conviction: 2. An investigation was initiated on the death of one Jamaluddin, which was reported as an unnatural death on 2.11.2012. The formal FIR was lodged by the Page No.# 3/26 brother of the deceased on 4.11.2012, to the effect that on 2.11.2012, at around 6:30 p.m., the two named accused had called the elder brother of the informant to settle a domestic dispute. When he went there, the accused no. 2 ordered the accused no. 1 to finish off the elder brother of the informant, whereupon the accused no. 1 struck the victim on his head with a bamboo stick, knocking him to the ground. It was stated that although the witness had taken him to the Nagoan Civil Hospital, the victim was declared to have been “brought dead”. The delay in the FIR was explained by referring to the autopsy conducted and the burial procedures. 3. The investigation resulted in Charge Sheet no. 65 of 2013, prepared on 31.01.2013. The present appellant had been put up as an accused to be sent up for trial, while the other accused named in the FIR had not been put up for trial. The learned Trial Court framed the following charge against the present appellant on 20.03.2014: “That you, on 2.11.12 at around 6:30 PM at Bhakatgaon, committed murder, intentionally causing the death of Jamaluddin.” 4. The accused pleaded not guilty and claimed to be tried. During the trial, the Prosecution examined 10 witnesses, and the Defence did not adduce any evidence. During his statement recorded under the provisions of Section 313 of the Cr.P.C., the accused stated that he was not present at the place of occurrence and that he is innocent. EVIDENCE LED: Page No.# 4/26 5. PW-1 was the informant in the matter, and he stated that he knew the accused. He stated that the deceased was his own brother and the occurrence took place about three years ago at about 6:30 PM on the day. He stated that while he was returning home from the market, he heard commotion coming from the house of the accused as well as the deceased, whose houses were situated adjacent to one another. When he rushed to the house of the deceased, he saw the deceased lying in the courtyard and many people were gathered there. He came to know from the family members of the deceased and other people gathered that the accused had assaulted the deceased with a lathi on his head. By the time he reached, his brother had already expired, and he was taken to the BP Civil Hospital, Nagaon, where the doctor declared him dead. Accordingly, he had lodged the FIR. In his cross-examination, he stated that his son-in-law, Rustom Ali, wrote the FIR, and he did not know where the FIR was written. He did not know the contents of the FIR, and the FIR had not been read over to him. Also, he did not accompany the dead body to the hospital. When he reached the courtyard of Jamaluddin, it was evening, and many people were gathered there. 6. PW-2 is the son of the deceased, and he stated that he knew the accused person, who belonged to the same village and that the informant was his paternal uncle. He stated that the occurrence had taken place about three years ago at about 6:30 PM. On the date of the occurrence, a ‘Bichar’ was held in the house of the accused, and his father was called upon to appear in that Bichar. Page No.# 5/26 Accordingly, his father went to the house of the accused, and he also went after his father. When his father arrived at the courtyard of the accused, he attacked the victim and assaulted the head of the victim with the lathi made of bamboo, and as a result, his father fell on the ground. Just then, he arrived at the spot, and the accused fled away from there. At that time, there was some gathering in the courtyard of the accused. He carried his father to the Civil Hospital by boarding in a tempo, accompanied by Ramjan Ali, Rustom Ali and some others. On arriving at the hospital, the victim was declared to have been brought dead. After conducting the post-mortem, the dead body was handed over to them, and subsequently, the paternal uncle lodged the FIR before the police in connection with the incident. 7. PW-3 knew the accused, and he also knew the informant, who was the younger brother of the deceased. He stated that the incident took place in the year 2012 at about 6.30 to 7 PM and that at the time of the occurrence, he was present in the house of the deceased. The elder brother of the accused had called the witness and the victim to their house to intervene regarding a dispute that had occurred among the brothers. This witness had accompanied the victim and the PW no.2 to the house of the accused, and when they reached there, the accused asked as to why they were there and in reply, the victim asked the accused the reason for the quarrel with his brothers. Being furious, the accused gave a blow on the head of the victim with a bamboo stick. The victim fell on Page No.# 6/26 the ground and sustained an injury to his head. Accordingly, the witness, along with PW no.2 and PW no.4, took the injured victim to the Nagaon Civil Hospital. At the Civil Hospital, the doctor examined the victim and declared him dead. 8. PW-4 is the son-in-law of the deceased. He stated that on the date of the occurrence, he was present in the house of the victim and just then, he heard somebody raising hulla in the nearby house of the accused. He rushed to the house of the accused, and when he reached there, he saw the accused giving a blow on the head of the victim with a bamboo stick. On being assaulted, the victim fell on the ground, and he saw blood oozing out from the ears, nose, and head of the victim. He stated that many people had gathered at the place of occurrence, and he and another person took the victim to the Civil Hospital by boarding a tempo. After arriving at the civil Hospital, the doctors examined the victim and declared him to have been brought dead. In his cross-examination, He stated that he found around 20 to 25 people at the house of the accused when the occurrence took place, but he could not remember the names of the people who had gathered there. 9. PW-5 was a resident of the same village who knew the accused, the informant and the victim. He stated that the occurrence took place about two years ago, and he was not at home. He had heard that there was some quarrel between the deceased and somebody, and in the course of the quarrel, the victim was killed. He did not hear the name of the person who killed the victim. He was accordingly declared hostile and was cross-examined both by the Page No.# 7/26 Prosecution and the Defence. 10. PW-6 had stated that in the evening of the incident, he was returning home from the daily market when he heard a commotion at the house of the accused. When he saw the victim, who was being brought by people from the accused house, holding him in support, he heard from people that the accused had assaulted the victim. People fetched a tempo to take him to the hospital, but the victim had died on the way before he reached the hospital. In cross- examination, he stated that the victim had died because of a fight in connection with the son of the elder brother of the accused. 11. PW-7, a relative of the accused and the informant, stated that he was not at home at the time of the incident, and in the evening, when he came home, he learnt that the accused had killed the victim. He did not know how the incident happened. 12. The Doctor, who conducted the autopsy, was examined as PW-8. In his evidence, he stated that there was a scalp hematoma about 12 cm in diameter over the right parietal bone of the victim, as well as a fracture. There was bleeding from the nose and the right ear. The membrane was torn over the right parietal lobe, and contusion was present in the right parietal bone and the spinal cord. He described the injuries as antemortem in nature, and the approximate time of death was less than 24 hours from the postmortem examination. In his opinion, the cause of death was due to brain injury. As a result of injuries, sustained injury was sufficient to cause death. Page No.# 8/26 13. PW-9 was the Assistant Sub-Inspector of Police, who was on duty at the Civil Hospital, when the victim was brought in dead to the hospital, and he was asked for follow-up action. As it was night, he had kept the dead body in the morgue. The next day, he intimated to the officer in charge of the Nagaon Police Station over the telephone, who instructed him to perform an inquest over the dead body. He had conducted the inquest over the dead body in the presence of witnesses, namely Ramzan Ali and Naser Ali. Thereafter, he had sent the dead body for post-mortem examination. 14. PW-10 was posted as the in-charge of the Haiborgaon TOP under Nagaon Police Station at the time of the incident. He had received an FIR lodged by the PW no. 1. Upon receipt of the FIR, he had made a GD Entry and forwarded the same to the Nagaon Police Station for registration. He identified the signatures and stated that one SI Chakradhar Roy was assigned to investigate the case. He stated that the Investigating Officer of the case was his colleague in the Haiborgaon TOP, and the investigation was conducted by the said Chakradhar Roy, who was then paralyzed and therefore unable to come to depose before the court. He identified the signatures of Chakradhar Roy on the exhibited documents. He stated that Roy had visited the place of occurrence, drew the sketch map, recorded statements of the witnesses and collected the Post-mortem report. He arrested the accused on 14.11.2012. STATEMENT OF ACCUSED UNDER SECTION 313, Cr.P.C Page No.# 9/26 15. On completion of the Prosecution evidence, the accused was examined under the provisions of section 313 of the CrPC on 16.02.2023. The case of the defence was that he was not present in the house, and he was on his way from his brother's house and had come to the place of occurrence only upon hearing the hue and cry. He stated that he was innocent. He refused to adduce defence evidence. The arguments were thereafter heard, and the judgment was reserved on 23.03.2023 and 29.04.2023, and the same was delivered on 09.05.2023. Reasoning and conclusion of Learned Trial Court: 16. The learned Sessions Judge was of the view that PW no.1 did not see the occurrence. In his cross-examination, he had identified the PW no.2, PW no.3, PW no.4 and two others, namely, Sultan Ali and Tahed Ali. Besides, the female members of the house of the deceased told him that the accused had caused the death of the victim. The learned Sessions Judge was therefore of the view that the fact that PW no.1 heard from the people present there, that the accused assaulted the deceased, is relevant under section 6 of the Indian Evidence Act as it forms part of res gestae. 17. The learned Trial Court found that since the PW no.1 had referred to the PW no.3 as the person who had taken the victim to the hospital, PW no.3 was present at the time of the occurrence, and he was a vital witness. The learned Sessions Judge noticed that the PW no.3 had also deposed that he was present there when the deceased had been called to settle a dispute between the Page No.# 10/26 accused and his brother, and he had accompanied the deceased and the son of the deceased to the house of the accused. The PW no.3 had deposed that he heard the accused ask, as to why they had come to his house, and when the deceased asked him not to quarrel with his brother Jalil, the accused got furious. PW no.3 had stated that he, along with PW no.2, PW no.4 and the son- in-law of the deceased, had taken the deceased to the hospital, where he was declared to have been brought dead. 18. The Learned Trial Court also found from the evidence of PW no.2 and PW no.3 that the deceased reached the house of the accused and the accused gave a blow on the head of the deceased with a bamboo lathi. The deceased had gone to the house of the accused to intervene in a dispute between the accused and his brother, and therefore, there was no dispute of any kind between the accused and the deceased. The deceased had done nothing to provoke the accused. However, the accused assaulted him on the head, which is a vital part of the body, with a lathi with such force that his parietal bone got fractured. The statement of PW no.2 and PW no.3, regarding the attack on the deceased on his head, was supported by medical evidence and the evidence of PW2 and PW3 was not shaken in their cross-examinations. 19. The learned Sessions Judge discarded the submissions regarding discrepancies in the evidence of PW no.2 and PW no.3 to the extent that the PW no.2 did not state before the police that the accused fled away after committing the offence, that the occurrence took place at 6:30 PM, etc., and Page No.# 11/26 that, PW no.3 did not state before the police that he was present in the house of the deceased, and the elder brother of the accused, Jalil, had called the deceased to his house to intervene in a quarrel with the accused; that both of them went to his house and that when the accused asked the deceased as to why he had come to his house, the deceased enquired about the reason of the quarrel. 20. The learned Trial Court was of the view that all discrepancies in the statement of witnesses made before the police as well as in the court are not fatal for the prosecution, if the same do not shake the very backbone of the Prosecution case. The learned Trial Court had further observed that the court is required to come to a conclusion regarding the acceptance of evidence only after exercising caution and care. The court observed that the Maxim falsus in Uno, falsus in omnibus is not applicable to India when the credibility of the witness is not shaken, even if some part of his evidence is not found to be true. 21. The discrepancy sought to be relied upon by the defence had been dealt with in detail by the learned Trial Court at paragraphs 22 and 23 of the judgment. From the evidence of PW-2, PW-3 and PW-4, the learned Trial Court found it proved beyond a reasonable doubt that the accused had assaulted the deceased on the head with a bamboo stick and as a result, the deceased fell on the ground and died instantly. All the witnesses deposed similarly. 22. The defence had also tried to raise the plea that the witnesses are relatives of the deceased and hence their evidence could not have been relied Page No.# 12/26 upon. The submission was, however, rejected by the learned Trial Court by observing the difference between a Related Witness and an interested witness. The learned Trial Court found that merely because the PW2, PW3 and PW4 had been found to be relatives of the deceased, the same would not make them interested witnesses. 23. The plea raised by the defence regarding the delay in lodging the FIR had also been rejected by the Trial Court, since it found that the reason for the delay had been explained in the FIR as well as in the evidence itself, that the delay was caused as it took some time for funeral after conducting the Post Mortem examination and that a delay of 52 (fifty-two) hours in the context of facts and circumstances of the case is not fatal for the Prosecution. 24. The learned Trial Court, therefore, found it to be proved beyond reasonable doubt that the accused was the sole perpetrator of the crime and he was guilty of committing an offence punishable under section 302 of the IPC. Accordingly, he was held guilty, and after hearing the accused on the point of sentence, the accused was sentenced to suffer Rigorous Imprisonment for life and to pay a fine of ₹10,000, in default, to suffer Simple Imprisonment for another six months. SUBMISSIONS FOR APPEALLANT: 25. The submissions made on behalf of the appellant in this appeal do not vary much in substance from the submissions already placed before the learned Page No.# 13/26 Trial Court. The learned Amicus appearing for the appellant has submitted that there was an inconsistency between the evidence of PW2, PW3, and PW4. Therefore, their evidence ought not to have been relied upon by the court to convict the appellant. The learned Counsel has submitted that although the PW3 had stated that he was present at the house of the deceased at the time of the occurrence, neither PW2 nor PW4, who had also claimed to be present at the victim’s house, referred to the presence of PW3 at the house of the victim. The learned Counsel has submitted that such an omission would strike at the reliability of the aforesaid witnesses, requiring the learned Trial Court to reject the evidence given by the witnesses, and the conclusion of guilt of the accused could not have been arrived at in the manner it has been done. The learned counsel for the appellant has submitted that PW2 and PW4 had also given contradictory evidence regarding the persons who had accompanied them to the hospital along with the deceased. The learned Amicus had submitted that the reliance placed by the learned Trial Court on the corroborative value of the evidence of PW3 was erroneous since his presence at the scene of the occurrence was doubtful. He has submitted that, in such a situation, it was binding upon the prosecution to have brought in independent witnesses to support the veracity of the evidence led by PW 2, PW3 and PW 4. The learned Amicus had also submitted that the learned Trial Court had committed an error in overlooking the delay in the lodging of the FIR, and that Page No.# 14/26 the delay should have been held to be fatal to the prosecution's case when, admittedly, the civil hospital was near the police station. Finally, the learned Amicus had submitted that the learned Trial Court had committed an error when the accused appellant had been convicted for committing an offence under Section 302, IPC. He has submitted that even assuming without admitting that the accused had caused the death of the victim, the conviction ought to have been one under the provisions of Section 304 Part-I. He has submitted that the fact that there was no previous enmity between the victim and the deceased and the fact that only a single blow had been dealt with a bamboo stick, which is commonly found in village homesteads and was not a weapon as such, were ignored by the learned Trial Court, leading to the erroneous conviction. He has submitted that the learned Trial Court failed to appreciate that, in the absence of any intention or preparation, a single strike in the heat of the moment, without any premeditation, and with a stick would not be sufficient to bring it within the realm of 302, IPC. He has accordingly prayed for acquittal of the appellant on the ground that the prosecution was not able to prove the charges beyond reasonable doubt, and in the alternative, has submitted that the conviction of the petitioner be modified to one under the provisions of Section 304 IPC, with appropriate modification to the sentence imposed. He has relied upon the following judgments in support of his submissions: 1. Hem Raj and others versus State of Haryana and others, Page No.# 15/26 reported in (2005) 10 SCC 614, wherein it was held that the absence of explanation by prosecution for failure to examine independent and material witnesses would assume importance when evidence of the alleged eye witnesses raises a serious doubt about their presence at the time of occurrence. 2. In Sunny @ Santosh Dharmu Bhosale v. The State of Maharashtra, reported in 2024 INSC 878, wherein it was held that unintentional homicide is not murder under Section 302 of IPC (Section 103(1) of BNS, 2023). SUBMISSIONS OF THE LEARNED APP: 26. The learned APP, Mr. R.R. Kaushik, has supported the decision of the learned Trial Court. The learned APP has submitted that the accused, during the recording of his statement under Section 313. Cr.P.C. had stated that he was not at the place of occurrence, but the defence had not adduced any evidence/alibi in support of his contention. He has submitted that when the prosecution had brought in evidence to prove both his presence and his act of striking the victim, the onus shifted on him to lead evidence to the contrary. He has further submitted that the minor discrepancies in the evidence led by the eyewitness would not be fatal to the case of the prosecution. He has further submitted that the learned Trial Court did not commit any error in holding that the delay in lodging the FIR was adequately explained in the FIR, and has further submitted that the delay in the present case in lodging the FIR would be wholly Page No.# 16/26 inconsequential in determining the guilt or otherwise of the accused. He has relied upon the following judgments in support of his submissions: 1. M. Nageswara Reddy vs. State of Andhra Pradesh, reported in (2022) 5 SCC 791; where it was held that “16. Having gone through the deposition of the relevant witnesses/eye-witnesses/injured eye-witnesses, we are of the opinion that there are no major/material contradictions in the deposition of the eye-witnesses and injured eye-witnesses. All are consistent insofar as accused Nos. 1 to 3 are concerned. As observed hereinabove, PW-6 has identified Accused Nos. 1 to 3. The High Court has observed that PW-1, PW-3 and PW-5 were planted witnesses merely on the ground that they were all interested witnesses being relatives of the deceased. Merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on the aforesaid ground. Therefore, in the facts and circumstances of the case, the High Court has materially erred in discarding the deposition/evidence of PW-1, PW-3, PW-5 and PW-6 and even PW-7.” 1. Om Pal & Ors Versus, State of U.P. (Now State of Uttarakhand), reported in 2025 INSC 1262, “ OCULAR EVIDENCE 33. The present case before us is not the one based on circumstantial evidence, but is based on ocular evidence. Time and again this Court has held that ocular evidence is the best evidence unless there are reasons to doubt it. MOTIVE 42. Motive although is a relevant factor in all criminal cases, it, however, is not a sine qua non for establishing the guilt of the accused persons. Motive even in a case which rests on an eyewitness account, lends strength to the prosecution’s case and fortify the Court in its ultimate conclusion. Thus, the fact of motive has to be seen in the light of the other cogent evidence available. Page No.# 17/26 DELAY IN FILING OF FIR IS NOT FATAL TO THE CASE OF THE PROSECUTION 46. The issue of delay in the filing of the FIR from the side of the complainant came up during the hearing. It was argued that the cross FIR was lodged on 23.05.1988 which is after three days of the incident. Thus, according to them, the second FIR was merely an afterthought of the first FIR which was lodged by the appellants. This contention has been dealt by both the Courts below holding that the delay was well explained by PW-1, who is the son of deceased Dile Ram. It is a settled position that delay in filing of the FIR cannot be considered to be fatal to the case of the prosecution when there is direct evidence and when the delay in filing the FIR is well explained. NON- RECOVERY OF THE WEAPONS IS NOT FATAL TO THE CASE OF THE PROSECUTION 49. Another contention raised by the appellants was that the weapons used during the incident were never recovered from the site. However, this Court has many a times reiterated that non-recovery of the weapons cannot be considered fatal to the case of the prosecution if there is consistent medical and ocular evidence.” 3. Hariprasad @ Kishan Sahu Versus State of Chhattisgarh reported in (2024) 2 SCC 557, where at paragraph 9 and 10, the Apex Court held: “9. It cannot be gainsaid that the First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced during the course of the trial. The object of insisting upon prompt lodging of the report to the police in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as names of the eye witnesses present at the scene of occurrence 2 [ Thulia Kali vs. The State of Tamil Nadu; 1972 (3) SCC 393]. It is also an equally settled legal position that the receipt and Page No.# 18/26 recording of information report by the police is not a condition precedent to set into motion a criminal investigation 3 [ The King Emperor vs. Khawaja Nazir Ahmad; AIR 1945 PC 18]. The First Information Report under Section 154 of Cr.PC, as such, could not be treated as a substantive piece of evidence. It can only be used to corroborate or contradict the informant’s evidence in the Court. As held by three-Judge Bench of this Court 4 [ Apren Joseph alias current Kunjukunju & Ors. Vs. State of Kerela; 1973 (3) SCC 114], FIR is very useful if recorded before there is time and opportunity to embellish, or before the informant’s memory fades. Undue or unreasonable delay in lodging the FIR, therefore, may give rise to suspicion which put the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. 10. Of course, the delay in lodging an FIR by itself cannot be regarded as the sufficient ground to draw an adverse inference against the prosecution case, nor could it be treated as fatal to the case of prosecution. The Court has to ascertain the causes for the delay, having regard to the facts and circumstances of the case. If the causes are not attributable to any effort to concoct a version, mere delay by itself would not be fatal to the case of prosecution.” 4. Laxmibai (dead) through LRs versus Bhagwanthbuva (dead) through LRs. (C.A. No.-002058-002058 / 2003 decided on : 29- 01-2013) where it was held “30. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each Page No.# 19/26 witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced, do not carry any weight. (Vide: Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; Jagdish Prasad v. State of M.P. AIR 1994 SC 1251; Sunil Kumar v. State Govt. of NCT of Delhi AIR 2004 SC 552; Namdeo v. State of Maharashtra AIR 2007 SC (Supp) 100; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR201O SC 3638; Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Kishan Chand v. State of Haryana JT 2013( 1) SC 222). 5. Sadayappan @ Ganesan Versus State, Represented By Inspector of Police, reported in (2019) 9 SCC 257, where it was held; “12. With respect to the deposition of PWs 1, 2, 3, 4 and 6 which firmly establish the prosecution version, the learned counsel for the appellant contended that they are interrelated and interested witnesses, thus, making their evidence unreliable. 13. Criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. [See: Sudhakar v. State, (2018) 5 SCC 435” ANALYSIS 27. We have given anxious consideration to the submissions made on behalf of the appellant and also the submissions of the learned APP. The Trial Court Records have been perused, and the applicability of the judgments cited by the Page No.# 20/26 learned counsel has been tested in the context of the facts of the present case. 28. PW2 and PW4 had stated that they were present at the house of the victim when he had gone to the house of the accused and his brother, upon being asked to do so by the brother of the accused. These witnesses did not refer to the presence of the PW3 in the house of the victim, though PW3 had stated that he was present there. PW 2 and PW 4, i.e. the son and the son-in- law of the victim, had omitted to state the presence of PW 3. This omission, in our considered view, does not dim the evidence of any of the aforesaid witnesses as regards the description of the incidents which led to the death of the victim. The statement of the PW3 regarding the manner in which the victim had met his death did not waver, and rather, as correctly held by the learned Trial Court, the description stood fortified by the statements of PW 2 and PW 4. These witnesses have not been shown to be ‘interested witnesses’, as recognized in law, and the mere fact that two of these witnesses were related to the victim cannot be grounds enough for this Court to discard their ocular evidence. In Leela Ram (D) through Duli Chand v. State of Haryana & Anr, reported in (1999) Supp. 3 S.C.R 435, the Supreme Court held 9. Be it noted that the High Court is within its jurisdiction, being the first appellate court to re- appraise the evidence, but the discrepancies found in the ocular account of two witnesses, unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is 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 Page No.# 21/26 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 therefor should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony2. In paragraph 10 of the report, this Court observed : “While appreciating the evidence of a witnesses, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.” 10. In a very recent decision in Criminal Appeal No. 61 of 1999 (Rammi alias Rameshwar v. State of Madhya Pradesh3), with Criminal Appeal No. 33 of 1999 (Bhura alias Sajjan Kumar v. State of Madhya Pradesh4), this Court observed : “When eye-witnesses is examined at length it is quite possible for him to make Page No.# 22/26 some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny”. This Court further observed : “It is common practice in trial Courts to make out contradictions from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below : “155. Impeaching credit of witness: The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him....... (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.” A former statement, though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be “contradicted” would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it intended to “contradict” the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous Page No.# 23/26 statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e. to “contradict” the witness. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh and Anr. v. State of U.P., AIR 1959 SC 1012).” Since PW2, PW3 and PW4 are not interested witnesses, the submission of the learned amicus that their evidence had to be corroborated by evidence of “independent witnesses” does not find favor with this Court. 29. The second limb of the argument put forth by the learned amicus that the delay in lodging the FIR would be fatal to the case of the prosecution has to be considered in the light of the then prevailing circumstances. The victim was not involved in any quarrel with the accused and had gone to the house of the accused to participate in a meeting to settle disputes between two brothers on the request of the elder brother of the accused. On him reaching the spot, he was engaged by the accused in questions as to why he had come, and moments later, a lethal blow was struck on him. Efforts to take the victim to a hospital followed, and on his being declared to have been brought dead, the body was kept in the morgue and on the next day, it was subjected to post-mortem examination. After the rituals related to burial had been performed, the FIR was lodged. The death had occurred on the 2nd of November at 6.30 pm, in the evening, and the FIR was lodged on the 4th of November 2011 at 10.30 am, and the cause of the delay was stated in the FIR itself. We find ourselves in Page No.# 24/26 agreement with the view adopted by the learned Trial Court that the delay, which was about 56 hours from the time of occurrence, in the present case, would not be fatal to the case of the prosecution. This Court cannot lose sight of the fact that the incident had occurred in a village in the wintery month of November amongst rustic villagers. Therefore, we do not find force in the submission of the learned amicus that the learned Trial Court had not appreciated the delay in the present case in its true perspective. In this regard, we find strength on the reliance is placed by the learned APP on the case of Om Pal & Ors (supra) where the Trial Court found that the rushing of the victim to the hospital to save his life instead of first going to the Police station was a satisfactory explanation for the delay in making the complaint and the same view was affirmed by the High Court. 30. We find merit in the third limb of the submission projected by the learned amicus, to the extent that the act of the accused would deserve a conviction under Section 304, IPC and not under Section 302, IPC. The basic facts proved by the Prosecution, that the victim had gone to participate in a meeting to bring a settlement between the accused and his brother, indicate that the accused was already in a fit of anger and this is also evidenced by the proved fact that the accused had questioned the victim, when he had arrived at his courtyard by asking why he had come and what could he do. It is also evident from the PWs that the victim had asked the accused as to why he was fighting with his brother, and at that moment, the accused had struck him with a bamboo stick. Page No.# 25/26 It is not in the evidence of any of the PWs that the appellant had picked up a quarrel or that he had procured a stick to attack the victim. There is also nothing on record to indicate enmity between the victim and the accused or that the accused had any reason to premeditate his action or intend either death or fatal injury to the victim. He had struck the victim at the spur of the moment. Having struck the single blow, the accused had, as per evidence, fled from the place of occurrence, and there is no evidence to show that he took undue advantage or had acted in brutality. In the case of Ghapoo Yadav v State of M.P., reported in AIR 2003 SC 1620, the Apex Court held that, where the injuries sustained by the deceased were in the course of a sudden quarrel, without premeditation and without cruel intent, the conviction was altered from under Section 302 IPC to Section 304 (Part I) of IPC. 31. In view of the conclusions arrived at, we set aside the conviction of the appellant under Section 302 of the IPC and convert the same to a conviction under Section 304 of the IPC. Consequently, we also modify the sentence awarded to the appellant and require him to suffer RI for a period of 10 years, and to pay a fine of ₹10,000, in default, to suffer Simple Imprisonment for another six months. Appellant shall be entitled to set off the period already undergone in custody. 32. Registry to send back the Trial Court records along with copies of this order to all concerned. Page No.# 26/26 33. Both APP and learned amicus had rendered valuable assistance. Learned Amicus shall be entitled to his remuneration as per the prevailing notification. 34. Criminal appeal accordingly is disposed of. JUDGE JUDGE Comparing Assistant