JUDGMENT I.A. Ansari, J. 1. By the impugned judgment and order, dated 15.09.1999, passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 29/96, the accused-Appellants stand convicted under Sections 304Part-II and 342 of the Indian Penal Code and each of them stands sentenced to suffer, for their conviction under Section 304 Part-II IPC, rigorous imprisonment for 4 years with fine of Rs. 2,000/- and, in default of payment of fine, to undergo rigorous imprisonment for a further period of three months and to undergo, for their conviction under Section 342 IPC, rigorous imprisonment for three months, both the sentences having been directed to run concurrently with further direction that the fine, if realized, be paid to the widow and the mother of deceased Manindra Biswas. 2. The material facts and various stages giving rise to the present appeal, may, in brief, be set out as follows: The present five accused-Appellants alongwith two more persons, namely, Ruhidas Biswas and Amulya Biswas, were tried in the Court of learned Sessions Judge, Morigaon, on the charges framed against them under Sections342 and 304 Part-II read with Section 34 of the IPC, the case of the prosecution being, briefly stated, thus: On 24-03-1994, at about 4 pm, while Munindra Biswas was returning home from Gerua Bazaar, all the said seven accused persons waylaid him, took him to their house and assaulted him there not only by hand, but also by 'thora' (i.e., a piece of bamboo used for husking paddy). When the mother and wife of Munindra (since deceased) went to the house of the accused persons and requested them to let Munindra go home, they too were assaulted by the accused. After mercilessly assaulting him, the accused kept Munindra Biswas confined within their house for the night and it was only the next morning that Munindra Biswas was, on being released by the accused, taken to Morigaon Civil Hospital; but he succumbed to his injuries there. Following Munindra's death, his brother, lodged an Ejahar, on 25-03-1994, with the police. Treating this Ejahar as the First Information Report, Laharighat Police Station Case No. 29/1994 was registered against the said seven accused persons under Sections 143 /341 /342 /354 /323 /302 IPC and, on completion of investigation, police laid charge-sheet against the accused accordingly. 3. Following Munindra's death, his brother, lodged an Ejahar, on 25-03-1994, with the police. Treating this Ejahar as the First Information Report, Laharighat Police Station Case No. 29/1994 was registered against the said seven accused persons under Sections 143 /341 /342 /354 /323 /302 IPC and, on completion of investigation, police laid charge-sheet against the accused accordingly. 3. During trial, as indicated above, charges under Section 342 and 302 read with Section 34 of the IPC were framed against the said seven accused persons; but all of them pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 10 witnesses. The accused were, then, examined under Section 313 Code of Criminal Procedure and in their examination aforementioned, the accused denied that they had committed the offences alleged to have been committed by them, the case of the defence being, in brief, thus: It was the deceased Munindra Biswas, who had come to the house of the accused, assaulted and injured there accused Amulya Biswas (since acquitted) and seriously injured him. The defence too adduced evidence by examining two witnesses. 5. Having found accused Ruhidas Biswas and Amulya Biswas not guilty of the charges framed against them, the learned trial Court acquitted them of the said charges under benefit of doubt. Having, however, found the present accused-Appellants guilty of the charges framed against them under Sections 304 (Part-II) and 342 of the IPC, the learned trial Court convicted them accordingly and passed sentences against them as mentioned hereinabove. Aggrieved by their conviction and sentences passed against them, the accussed-Appellants are before this Court with the help of their present appeal. 6. I have heard Mr. J M Choudhury, learned Senior Counsel, for the accused-Appellants, and Mr. BS. Sinha, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, what is of utmost importance to note is that according to the postmortem report (Ext 2), on conducting postmortem examination over the dead body of Manindra Biswas, the doctor found as follows: (1) Skin around the left eye is blackish in colour. (2) Sub-conjunctive haemorrhage present on the left eye. (3) 3 nos of small abrasion present on the left elbow posteriorly. Thorax : Right lung and left lung - congested. Heart contains blood both chambers. Abdomen: Abdomen is distended. Peritoneum: Congested. A small rent is present in the peritoneum. Peritoneum cavity is full of bloody liquid. (2) Sub-conjunctive haemorrhage present on the left eye. (3) 3 nos of small abrasion present on the left elbow posteriorly. Thorax : Right lung and left lung - congested. Heart contains blood both chambers. Abdomen: Abdomen is distended. Peritoneum: Congested. A small rent is present in the peritoneum. Peritoneum cavity is full of bloody liquid. Mouth, Pharynx, oesophagus: Mouth closed. Others NAD. Stomach: Stomach is dilated, contains digested materials and gases. Small intestine: was congested. Intestines are dilated. Contains digested food materials and gases. Mesentary is ruptured in one place along its attachment to the small intestine. Large intestine contains liquid, stool and gases. Cranium and spinal cord.: Swelling present on the right temporo parietal region. A zent is present in the aponeurosis of the scalp below the swelling - size 2.5 cm x 1.5 cm. Bladder: empty. More detail description: There was blood stain on the left nostril. Stool was present on the anus. External injuries were ante mortem in nature. 8. In the opinion of the doctor, who had conducted the said post mortem examination, the cause of the death was shock due to internal haemorrhage as a result of rupture of mesentary by blunt object. 9. The findings of the autopsy have not been in dispute. The post mortem examination reveal, as indicated hereinabove, rupture of mesentary and it was as a result of internal haemorrhage caused by the rupture of mesentary that the said deceased met with his death. From the post mortem examination conduced over the said dead body, it also surfaces that though the skin of the left eye appeared blackish, there was no injury mark on or near the eyes. 10. Bearing in mind that no serious external injury was found on the said dead body except the three number of small abrasions on the left elbow, let me, now, turn to the evidence of the alleged eye witnesses to the occurrence. 11. Let me, first, consider the evidence of PW1 (Golapi Biswas), widow of deceased Manindra Biswas. 10. Bearing in mind that no serious external injury was found on the said dead body except the three number of small abrasions on the left elbow, let me, now, turn to the evidence of the alleged eye witnesses to the occurrence. 11. Let me, first, consider the evidence of PW1 (Golapi Biswas), widow of deceased Manindra Biswas. According to her evidence, on the day of the occurrence, at about 4 p.m., while her husband was returning home from the bazaar, accused Mahadev Biswas called her husband to his house and, on hearing hullah, when she went to house of accused Mahadev Biswas with her mother-in-law, she saw accused Mahadev, Gauranga, Prannath, Babulal, Rajendra, Ruhidas and Amulya assaulting her husband by tying his hands and legs and when she and her mother-in-law tried to save Munindra Biswas, the accused assaulted them too, and thereafter, the accused took Manindra to a river, dipped him in the water, brought him back to their house and assaulted him again and after keeping her husband confined within their house for the whole night, they released him, in the morning, whereupon her husband was taken to Morigaon Civil Hospital, where he died. Broadly in tune with the evidence so given by PW 1 is the evidence of PW 2 (Saratbasi Biswas), mother-in-law of PW 1. 12. What is, however, important to note is that though PWs 1 and 2 implicated Amulya too as an assailant and denied that any injury was seen by them on the head of Amulya, the Investigating Officer has confirmed that according to the statements of these two witnesses, recorded during the investigation, it was, in fact, Manindra, who had proceeded towards the house of accused Mahadev and when these two persons (i.e. PWs 1 and 2) tried to bring Manindra back to his house, he refused to come back home and went to the house of the accused and assaulted Amulya on his head with an oar. 13. In the face of the previous statements of PWs 1 and 2, as indicated hereinabove, it is clear that these two witnesses have made substantial improvements on their previous statements and that their evidence suffer from suppression of material facts. 13. In the face of the previous statements of PWs 1 and 2, as indicated hereinabove, it is clear that these two witnesses have made substantial improvements on their previous statements and that their evidence suffer from suppression of material facts. The impression that the evidence of these two witnesses suffer from exaggeration too is clear from the fact that though PW 1 claims that accused Prannath and Ruhidas assaulted her and also her mother-in-law (i.e. PW 2) and caused fracture of their hands, no such statement was made by them before the police and no corroborate evidence exists in this regard. It is, therefore, clear that the evidence of these two witnesses cannot be readily relied upon. 14. Noticing what have been indicated hereinabove, when I proceed further and come to the evidence of PW3 (Jogendra Biswas), I find that according to his evidence, on being informed by his brother, Debendra, that there was a quarrel between Munindra, on the one hand, and accused Mahadev and Ors., on the other, he came to the courtyard of accused Mahadev and saw accused Mahadev, Gauranga, Rajendra, Babulal, Ruhidas, Prannath and Amulya assaulting Munindra. It is also asserted by PW 3 that he saw accused Prannath assaulting Munindra with 'thora' (i.e., apiece of bamboo, which is used for husking of paddy) and other accused assaulting Munindra with sticks. It is in the evidence of PW 3 that all the accused kept Munindra confined to their house and left him in the next morning, whereupon Munindra was taken away to hospital, where he died. The evidence of PW 4 (Dhiren Biswas) is largely same as the evidence of PW 3. 15. What is, however, of immense importance to note is that according to the evidence of PW 1 (i.e. widow of deceased Munindra), Jogen and Dhiren (i.e. PWs 3 and 4 respectively) came to accused Mahadev's house about an hour-and-a-half after Munindra had already been assaulted by accused Mahadev and other accused persons. When, in the light of the evidence of PW 1 (i.e. the widow of the said deceased), the evidence of PWs 3 and 4 are considered, it becomes transparent that their evidence given to the effect that they had seen the accused aforementioned assaulting Munindra are utterly false and cannot be believed at all. 16. When, in the light of the evidence of PW 1 (i.e. the widow of the said deceased), the evidence of PWs 3 and 4 are considered, it becomes transparent that their evidence given to the effect that they had seen the accused aforementioned assaulting Munindra are utterly false and cannot be believed at all. 16. I notice that according to the evidence of PW5 (Hirabai Biswas), while she was going by the road, she saw the accused dragging Munindra to their house and assaulting him. This piece of evidence of PW 5 goes wholly contrary to the previous statements of PWs 1 and 2 (i.e. the widow and the mother-in-law of the deceased respectively) inasmuch as according to the previous statements of PWs 1 and 2, as already indicated hereinabove, it was Munindra, who had, despite attempts having been made by PWs 1 and 2 to stop him, gone to the house of the accused and not that the accused had dragged Munindra to their house. The previsions statements of PWs 1 and 2 further indicates, as already pointed out above, that not only that Munindra went to the house of the accused, but that he also assaulted and injured there accused Amulya (since acquitted). In short, thus, in the light of the evidence of PWs 1 and 2, as discussed hereinbefore, the evidence of PW 5 that she had seen Munindra being dragged by the accused to their house is wholly unsafe to place reliance upon. 17. Coupled with the above, what is, now, of paramount importance to note is that apart from the fact that the evidence of PWs 1,2, 3, 4 and 5 suffer from exaggeration, several twists and turns and also substantial improvements, their evidence is completely belied by the findings of the post mortem examination inasmuch as the post mortem examination reveals, as already indicated hereinabove, only three small abrasions on the posterior portion of the left elbow of the said deceased. Had the description of the occurrence given by the prosecution witnesses been true, there would have been multiple injuries and serious wounds on Munindra's dead body. No such injury was, however, detected at the post mortem examination. 18. Let me, now, turn to the evidence of PW 8 (Basanti Biswas). Had the description of the occurrence given by the prosecution witnesses been true, there would have been multiple injuries and serious wounds on Munindra's dead body. No such injury was, however, detected at the post mortem examination. 18. Let me, now, turn to the evidence of PW 8 (Basanti Biswas). This witness's evidence is that on the day of the occurrence, at about 3 p.m., Munindra went to the house of accused Mahadev in drunken state and picked up quarrel with accused Mahadev, whereupon accused Mahadev asked Munindra to go back as he was drunken and pushed Munindra out of his (accused Mahadev's) house, but Munindra went back to the house of accused Mahadev and, again, accused Mahadev pushed Munindra out of his house, but Munindra went, once again, to the house of accused Mahadev and assaulted there accused Amulya (since acquitted) on his head with an oar. The blow, so given, on Amulya's head started bleeding, whereupon accused Mahadev snatched away the oar. PW8 has also deposed that Munindra, then, picked up a plough, but as he was drunk, he was unable to hold the same and fell down, but he, again, attempted to lift the plough, but again failed; and while Minindra was, thus making attempts after attempts, in his drunken state, to lift the plough, the handle of the plough fell on Munindra's abdomen and at that point of time, accused Mahadev gave 2/3 slaps on Munindra, accused Rajendra assaulted Munindra with a stick and tied Munindra with a rope. 19. Close on the heels of the evidence of PW 8, PW 6 has deposed that on being informed by Munindra's brother that the accused had kept confined Munindra, he went to the house of accused Mahadev and found Munindra lying in injured condition there and though he asked the accused to release Munindra, accused Mahadev refused to do so and it was only on the next day mat accused Mahadev released Munindra, he was taken to hospital, but died there. 20. When the evidence of PW 8 is considered carefully, it is found that according to her evidence, Munindra and his whole family used to reside at the house of PW 8 and she had no enmity with Munindra or with his family. Therefore, there is no reason for PW 8 to give a false version of the occurrence. 20. When the evidence of PW 8 is considered carefully, it is found that according to her evidence, Munindra and his whole family used to reside at the house of PW 8 and she had no enmity with Munindra or with his family. Therefore, there is no reason for PW 8 to give a false version of the occurrence. This apart, the prosecution did not declare PW 8 hostile and did not cross-examine her. Apart from the fact that her evidence has remained unshaken, her evidence receives credible corroboration from the medical evidence on record. 21. Though it is true that if an eye witnesses account of an occurrence is believed, the inconsistency of the ocular evidence with the medical evidence cannot be made a ground for rejecting the ocular evidence, the fact remains that the present one is a case, where the evidence adduced by the prosecution unfolds two distinct and separate versions of the occurrence and while the Version of the occurrence, given by the PW 8, has remained unshaken and is corroborated by the medical evidence on record, the version of the occurrence, projected by PWs 1, 2, 3, 4 and 5, are full of inconsistencies and their evidence do not receive any support from the medical evidence on record. In a case of the present nature, it is impossible to rely implicitly on the evidence of PWs 1, 2, 3, 4 and 5 and reject evidence of PW 8, particularly, when PW 8 has withstood the test of cross-examination at the hands of the defence and her evidence receives, if I may reiterate, credible corroboration from the medical evidence on record. 22. Imperative it is, now, to point out that PW6 is also an independent witness and his evidence clearly indicates that Munindra was found lying injured at the house of accused Mahadev and the accused aforementioned did not allow any one to take away injured Munindra. The fact that Munindra was kept confined at the house of accused Mahadev, thus, stands proved. This apart, on a microscopic scrutiny of the evidence given by prosecution witnesses, I notice that the defence, nowhere, denied, at the trial, that Munindra had been kept confined, on the night of the occurrence, at the house of accused Mahadev. The fact that Munindra was kept confined at the house of accused Mahadev, thus, stands proved. This apart, on a microscopic scrutiny of the evidence given by prosecution witnesses, I notice that the defence, nowhere, denied, at the trial, that Munindra had been kept confined, on the night of the occurrence, at the house of accused Mahadev. It is in the face of such proven facts that one has to determine as to what offences, if any, the accused have committed. 23. While considering the above aspect of the case, what cannot be ignored is that the evidence of PW 8 shows that the handle of the plough fell, accidentlly, on the abdomen of Munindra, while Munindra was, admittedly, trying, in his drunken state, to lift the plough intending to use the same as a weapon of assault, but unable to do so, because of his highly drunken state. In such circumstances, the possibility of rupture of mesentery having been caused by the fall of plough on Munindra's abdomen cannot be confidently ruled out. The accused-Appellants cannot, therefore, be held responsible for causing the injury, which, eventually, led to Munindra's death. Situated thus, it is clear that no offence under Section 304 Part-II IPC can be said to have been made out against the accused-Appellants. 24. For a moment, this Court did consider, if, in the face of the proven facts, the accused Appellants deserve to be convicted under Section 304A IPC; but on account of the fact that Munindra did not suffer from any visible injury, which could have resulted to his death, it was quite possible that the accused-Appellants did not really know how serious was the condition of Munindra and/or that Munindra was so serious that he needed prompt medical treatment. It cannot, therefore, be held that the act of the accused-Appellants, while keeping Munindra confined within their house, was so rash and negligent, which warrant their conviction for an offence under Section 304A IPC. 25. It has, however, surfaced, as already pointed out above, beyond all reasonable doubt, that injured Munindra had been kept confined at the house of the accused-Appellants during the entire night of the occurrence despite repeated request for release made by the members of his family and their other co-villagers. 25. It has, however, surfaced, as already pointed out above, beyond all reasonable doubt, that injured Munindra had been kept confined at the house of the accused-Appellants during the entire night of the occurrence despite repeated request for release made by the members of his family and their other co-villagers. In the face of such cogent and convincing evidence on record, the conviction of the accused-Appellants under Section 342 IPC cannot be said to be illegal or unfounded. 26. What crystallizes from the above discussion is that while no offence under Section 304 Part II IPC is proved to have been committed by the accused-Appellants, they have been proved, beyond all reasonable doubt, to have committed the offence under Section304Part-II IPC. For the conclusions so reached, while the conviction of the accused-Appellants under Section 304 Part-II IPC cannot be sustained, there is no reason to interfere with their conviction under Section 342 IPC. 27. The question, however, is as to what sentence, if any, ought to have been passed against the accused-Appellants. In view of the fact that this case has been pending for the last more than 12 years, I am of the view that it will be in the interest of justice if the accused-Appellants are, now, sentenced to suffer the period of imprisonment, which they have already undergone, but be made to pay a fine of Rs. 1,000/- each. 28. In the result and for the reasons discussed above, this appeal partly succeeds. While the conviction of the accused-Appellants under Section 304 Part-II IPC and the sentence passed against them, in this regard, are hereby set aside, their conviction under Section 342 IPC is maintained. For the offence, so committed, the accused-Appellants are sentenced to imprisonment for the period already undergone; but they shall be liable to pay fine of Rs. 1,000/- each and, in default of payment of fine, suffer rigorous imprisonment for a period of 15 (fifteen) days. In accordance with the directions given by the learned trial Court, the fine, so imposed, shall, if realized, be paid to the widow and the mother of the said deceased. 29. With the above observations and directions modifying the sentence passed against the accused-Appellants, this appeal shall stand disposed of. 30. Let the LCRs be sent back.