Judgement ASHIM KUMAR BANERJEE, J :- In the village Dignagar, Durlavpara under Police Station Kotwali in the district of Nadia on the day of Dol Yatra in 1985, one Radharani Durlav was killed by a group of persons whereas his husband was injured along with his son Subas. The trouble cropped up as one person in the name of Naru had a love affair with his neighbour Arati. On this issue there had been altercations between two groups. Another villager Haju assaulted Arati. The accused chased Haju when Haju took shelter in the house of Shibani. The accused thought that Haju took shelter in the house of Tarapada and Radharani. They entered the house of Tarapada and Radharani. They dragged Radharani from her room and assaulted both of them. Radharani succumbed to injury and died at the Hospital on the next day. Tarapada, however, managed to save himself. He was treated in Saktinagar Hospital. In the process the accused also assaulted Subhas being the son of Tarapada and Radharani on their way back. They also assaulted Narayan. One Subal Durlav lodged an FIR on March 7, 1985 stating that at about 3 p.m. Srinath Durlav, Jharu Durlav, Sukesh Durlav, Badal Durlav (Petkata), Balaram Durlav (Boro) and other five persons had attacked Tarapada's house being armed with sharp weapons and had seriously injured Tarapada, Radharani, Subhas, Narayan and others. All of them were admitted in Saktinagar Hospital in an unconscious state. Radharani died on the next day at about 10 a.m in Saktinagar Hospital. Altogether eight persons were charged for the offence. Out of them Badal Durlav alias Boro Badal died before facing trial. Tapan Biswas, Sribash Durlav alias Srinath Durlav, Kama Durlav, Jharu Durlav, Sukesh Durlav, Chandra Durlav, Gopal Durlav were charge sheeted. Balaram was, however, left out the reason, however, is not known to us. Altogether eighteen witnesses were examined by the prosecution whereas the defence examined two witnesses. The learned Session Judge held Kama, Jharu and Srinath responsible for death of Radharani. The learned Judge also convicted Jharu under Section 326 of the Indian Penal Code. Kama, Sukesh, Gopal, Jharu and Chandra were also convicted under Section 148 of the Indian Penal Code. The learned Session Judge, however, acquitted Tapan from all the charges. 2. Hence, this appeal. 3. Mr. The learned Judge also convicted Jharu under Section 326 of the Indian Penal Code. Kama, Sukesh, Gopal, Jharu and Chandra were also convicted under Section 148 of the Indian Penal Code. The learned Session Judge, however, acquitted Tapan from all the charges. 2. Hence, this appeal. 3. Mr. Debabrata Roy, learned counsel appearing for the appellants being all six convicts contended as follows :- (i) There had been contradiction on the issue with regard to time of death. (ii) No sketch map was prepared and/or produced during trial. (iii) It was alleged by the prosecution that the victim was hit by Chhipda (chopper) whereas such weapon was neither recovered nor produced during trial. (iv) Bed Head Ticket of the victim Radharani was not produced during trial. (v) There had been contradiction with regard to medical evidence as the injury did not tally as per the medical evidence and the inquest report. (vi) There had been considerable delay in lodging the F.I.R. (vii) The F.I.R. was contrary to the deposition and/or the charge framed by the prosecution. (viii) Some of the villagers being the material witnesses were not at all examined Haju was examined by the Police, he was, however, not called during the trial to adduce evidence. (ix) Definite charge with regard to the cause of death was not brought. 4. To support his contention Mr. Roy relied on the following decisions :- Preposition of LawCitationA.Necessary ingredient to convict the accused under Section 1481989, Supreme Court Cases (Criminal) Page, 585 (1989 Cri LJ 1485) (State of U.P v. Madan Mohan and Ors)1994, Criminal Law Journal, Page 1385 (1994 Cri LJ 1385) (Sri Niwas v Ram Bharosey and Ors)2008, Volume VIII, Supreme Court Cases, Page 395 (Latu Mahato and Anr v State of Bihar (Now Jharkhand)B.Contradiction with regard to medical evidence.1981, Supreme Court Cases (Criminal), Page 638 (1981 Cri LJ 998) (Mohar Singh and Ors v State of Punjab)C.Delay in lodging FIR1976, Volume-IV, Supreme Court Cases, Page 355 (1976 Cri LJ 1883) (Ishwar Singh v State of U.P)D.Contradiction and/or anomaly in evidence2005, Volume-II, Calcutta Criminal Law Reporter, Page-616 (Paltu Sheikh and Ors. v. The State of West Bengal)E.Version improved during evidence2003, Supreme Court Cases (Criminal), Page 596 : (2003 Cri LJ 910) (Vimal Suresh Kamble v. Chaluverapmake Apal SP and Anr.)F.Framing of charge - the charge must be definite1989; Calcutta Criminal Law Reporter (Supreme Court), Page- 155 : (1989 Cri LJ 2074) (Shivaji Dayanu Patil v. State of Maharashtra. G.Non-examination of the vital witnesses2005, Volume-II, Calcutta Criminal Law Reporter, Page 616 (Paltu Sheikh and Ors. v. The State of West Bengal) 5. While opposing the appeal Ms. Minoti Ghomes, learned advocate appearing for the State contended that on analysis of the evidence it would be ex facie clear that the charge brought against the accused were proved by unimpeachable evidence. The Session Judge after appropriate analysis of the said evidence held them guilty of the offence and convicted them accordingly. Hence, no interference was called for by the Court of appeal. 6. We have independently examined the evidence and our analysis reveals as follows :- Subal (PW-1) :- He saw Jharu and Srinath assaulting Subhas in front of the house of Balaram. Jharu assaulted Subhas with Lathi on his head, back and leg. He saw persons coming out from the house of Tarapada with weapons like Lathi, Da, Hensua etc. He recognised Balaram, Badal (Baro) and Karna amongst them. They were twelve in number. He also saw Tarapada and Radharani sustaining bleeding injury and they became unconscious. He accompanied Tarapada and Radharani to, the hospital. As per the direction of the Police he wrote complaint through Ganapati as he did not know how to read and write. After Ganapati had written the complaint he put his thumb impression on the complaint. He identified the accused being Jharu, Srinath, Baro Badal and Karna. In cross-examination he gave vivid description of the house of Tarapada. He also gave a brief idea of what had happened on the Dol Ceremony day. He deposed that in the house of Tarapada he had found Tarapada and Radharani lying in injured condition having profused bleeding. He, however, did not see any one in the house. He raised alarm to attract the notice of other villagers. Initially the injured were given first-aid by the members of the family belonging to Dasu. He brought one rickshaw van and took the injured to the hospital. He, however, did not see any one in the house. He raised alarm to attract the notice of other villagers. Initially the injured were given first-aid by the members of the family belonging to Dasu. He brought one rickshaw van and took the injured to the hospital. He was distantly related to Tarapada as the daughter of his sister-in-law was married to the son of Tarapada. However, such marriage took place after the incident. He did not meet the Police officials after lodging the complaint. When Police went to the house of Tarapada he was present. He identified the spot where the injured were lying. He denied the allegation that he belonged to CPIM party. He pleaded his ignorance with regard to the political following of the accused. His evidence-in-chief with regard to the incident could not be shaken in cross-examination. On a plain reading of the evidence it would appear that he was a non-interested witness. Tarapada (PW-2) :- Tarapada in his cross-examination corroborated almost what was said by Subal. In addition he deposed that he saw Haju running towards the house of Shibani, his next door neighbour. Srinath enquired about Haju. They were running with Lathi, iron rod, chhipda, arrow, fala etc. When Tarapada told them that Haju did not enter his house Karna confronted. Karna dragged Radharani from the house and brought her to the courtyard and thereafter Baro Badal assaulted with iron rod. Karna started assaulting her with iron rod. Thereafter, Srinath, Jharu, Sukesh started assaulting Tarapada. Jharu hit Tarapada on his head as also his left ear with chhipda. Sukesh struck him with Lathi on his head. Srinath assaulted him with iron rod. Petkata Badal, Baro Badal supervised the assault. They became unconscious and regained consciousness at about 04.00 a.m. His son also regained consciousness in hospital. He could not see Subhas in the hospital. He, however, heard that both Subhas and Narayan were also assaulted by the Sukesh, Jharu and Srinath. He identified the accused on the dock. The incident occurred as a retaliation to the assault on Arati. He also narrated how Radharani was assaulted . At the time of incident his son was not present in the house. He also did not see any other person except the accused persons at the time of assault. Tarapada also could not be shaken during cross-examination. The incident occurred as a retaliation to the assault on Arati. He also narrated how Radharani was assaulted . At the time of incident his son was not present in the house. He also did not see any other person except the accused persons at the time of assault. Tarapada also could not be shaken during cross-examination. He consistently deposed narrating the incident of assault by the accused. Dasu (PW-3) :- Dasu was taking meal at his house. He came out hearing the alarm of Radharani that she was being killed. He saw Balaram assaulting Radharani with iron rod on her head. Tarapada and Subhas were also assaulted. He, however, did not see who assaulted them. At that stage Dasu was declared hostile. In cross-examination by the prosecution he denied having any enmity with Tarapada. His son Narayan was also assaulted. He deposed, "I will not say as to who assaulted him (Narayan)". Narayan (PW-4) :- Narayan was assaulted near dighi by Balaram arid Jharu. He, however, did not witness the incident at the house of Tarapada. Middle finger of his right hand was substantially damaged because of the assault by Jharu. Subhas (PW-5) : Subhas was the son of Tarapada and Radharani. He was not in his house. After hearing the alarm he rushed to his house and saw Srinath assaulting his mother with a lathi. Jharu with iron rod, Kama with iron rod. As a result his mother fell down on the ground. He saw Sukumar assaulting her with iron rod. He saw Baro Badal assaulting Tarapada with iron rod. He identified the accused on the dock. He rushed to the house of Balaram to take shelter. Srinath and Jharu assaulted him in front of the door of Balaram. Srinath assaulted him with lathi, Jharu assaulted him with iron rod. He also could not be shaken during cross-examination. Suprava (PW-6) :- Suprava alias Putul corroborated the incident of assault on Subhas. She deposed that Subhas asked for help from her. However, becoming nervous she fled away. Sabita (PW-7) :- Another witness Sabita was also declared hostile. She, however, deposed that she saw Balaram coming out after assaulting Radharani Madhusudan (PW 8) :- Madhusudan was also declared hostile after he named Balaram only seeing him returning from the house of Tarapada with lathi in his hand. Dr. Modak (PW-9) :- PW-9 treated the victim at the hospital. Sabita (PW-7) :- Another witness Sabita was also declared hostile. She, however, deposed that she saw Balaram coming out after assaulting Radharani Madhusudan (PW 8) :- Madhusudan was also declared hostile after he named Balaram only seeing him returning from the house of Tarapada with lathi in his hand. Dr. Modak (PW-9) :- PW-9 treated the victim at the hospital. He gave brief description of the injuries. He, however, deposed that no recording was made as to the names of the assailants in the medical report. Dr. Niharendu Deb (PW-13) :- Dr. Deb proved the postmortem report prepared by Dr. M. Sarkar who had died by the time when trial took place. Jiban Kumar Nandi (PW-18) :- This witness was the Investigating Officer. He gave brief note of the investigation and the resuit. Other Witnesses :- Other prosecution witnesses were not material. All the accused in reply to the question put to them under Section 313 of the Code of Criminal Procedure denied the charges and wanted to face the trial. Altogether two witnesses were produced by the defence. Sambhu Charan Ghosh (DW-1) :- Sambhu Charan Ghosh saw many persons on the road in between the house of Radharani and Shib Mandir. He saw persons throwing brick bats. On seeing the same he returned to his house. Dukhiram (DW-2) :- He saw many persons playing colour on the fateful day. After sometime assault took place. He saw throwing of brick bats. He fled away from the place. In cross-examination he deposed that incident occurred due to love affair between Arati and Naru. On analysis of the aforesaid evidence it is clear that the evidence of eye witnesses as well as victims Tarapada, Subhas and Narayan proved the incident. The said witnesses corroborated each other. Mr. Ray tried to distinguish the evidence by pointing out the anomalies which in our view were minor in nature. Naru had love affair with Arati. Haju assaulted Arati. As a retaliation the accused wanted to assault Haju. Haju could save himself by hiding in the house of Shibani. The accused thought that Haju took shelter in the house of Tarapada and Radharani. When Tarapada and Radharani denied they assaulted both of them. Radharani succumbed to the injury at the hospital. Mr. Haju assaulted Arati. As a retaliation the accused wanted to assault Haju. Haju could save himself by hiding in the house of Shibani. The accused thought that Haju took shelter in the house of Tarapada and Radharani. When Tarapada and Radharani denied they assaulted both of them. Radharani succumbed to the injury at the hospital. Mr. Ray contended that Tarapada deposed that they became unconscious and regained consciousness at 04.00 a.m. on the next day whereas the Doctor deposed that when he had examined the victims they had been conscious. This discrepancy, in our view, is immaterial. The fact that Radharani was assaulted by the accused was proved by the eye witnesses. The eye witnesses as well as the victims could not be shaken in evidence, at least in case of Subal and Tarapada. Tarapada himself sustained injury. With regard to assault on Subhas and Narayan that occurred outside the house the incident was proved by the victims as well as Putul in base of Subhas. Mr. Ray also tried to put emphasis on the post mortem report that the injury caused to the victim was due to sharp weapon whereas the prosecution witnesses referred to blunt weapon being lathi and iron rod. In our view, medical report cannot be conclusive proof and in any event cannot demolish the evidence of the eye witnesses who could not be shaken during cross-examination. 7. Lot of comments was made by Mr. Roy on delayed filing of the FIR. The incident occurred in the afternoon of March 7, 1985. The injured were taken to the hospital. One of them died on the next day morning at the hospital i.e. on March 8, 1985. The complaint was lodged in the night of March 7, 1985. The incident occurred at about 3 O'clock in the afternoon whereas the complaint was received by the Police at about 9 O'clock in the night. Hence, the FIR was lodged six hours after the incident. Considering the facts and circumstances we do not find any delay in lodging of the FIR. Hence, the decisions cited on this issue do not have any application. 8. Mr. Roy also contended that Haju being a material witness was not called. Haju was chased by the accused. He took shelter in the house of Shibani. He did not witness the incident of assault. Hence, he could not be a material witness. Hence, the decisions cited on this issue do not have any application. 8. Mr. Roy also contended that Haju being a material witness was not called. Haju was chased by the accused. He took shelter in the house of Shibani. He did not witness the incident of assault. Hence, he could not be a material witness. In any event it is the prerogative of the prosecution through whom they would prove the incident. Once the incident is proved implicating the accused being involved therein plea of non-production of any other witness would have no consequence. 9. The learned Session Judge dealt with each and every aspect of the matter after carefully examining the evidence brought before him. On analysis of the evidence the learned Session Judge acquitted Tapan in absence of any evidence against him. Learned Judge convicted Karna, Jharu and Srinath under Section 302 of the Indian Penal Code for killing Radharani. The learned Judge separately convicted Jharu under Section 326 of the Indian Penal Code and Karna Sukesh, Gopal, Srinath, Jharu and Chandu under Section 148 of the Indian Penal Code. We do not find any scope of interference. 10. The appeal fails and is hereby dismissed. 11. The bail bonds are cancelled. Accused are directed to surrender before the Court below. In default, sureties are directed to produce the accused in court. 12. Let the lower Court records be sent down along with a copy of the judgment. 13. Urgent xerox certified copy will be given to the parties, if applied for. 14. TAPAS KUMAR GIRI, J :- I agree. Appeal dismissed.