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2008 DIGILAW 831 (CAL)

Baidyanath Roy v. STATE OF WEST BENGAL

2008-08-18

ASHIM KUMAR BANERJEE, TAPAS KUMAR GIRI

body2008
Judgment :- ASHIM KUMAR BANERJEE, J. (1) FACTS: 1. Appellants cultivated paddy on a land belonging to Late A. B. A. Gani Khan chowdhury. On Saturday being November 11, 1983 at about 10. 30 A. M. the appellants were harvesting paddy from the said land when Kalipada Roy along with Chera Roy, bhanu Roy, Paltu Roy, Biji Roy, Deben Roy and Karpul Chandra Roy proceeded towards the land in order to harvest the paddy. Baidhynath and others obstructed them armed with sticks, farsa, arrows and other weapons. As a result there had been a free fight between two groups. According to prosecution Kalipada Group being over powered by Baidyanath group left the place for fear of life without harvesting paddy. At about 5.30 P. M. on the same day when Deben was coming from the hut he was assaulted by baidyanath and others. One Santu Roy saw the incident and immediately informed kalipada and others who immediately reached the place of occurrence. Kalipada tried to save his son Deben. He was unsuc-cessful. Both Kalipada and Deben sustained multiple injuries and died on the spot. According to prosecution complaint was lodged by Karpul at Police Station Tapan on November 12, 1983 which was received by the police Station at about 16. 45 hours. The same was sent to the Magistrate and received by the Chief Judicial Magistrate, Balurghat on November 14, 1983. Police arrested baidyanath and others being the appellants above named. They pleaded not guilty of the offence and faced trial. 2. Prosecution produced altogether nineteen witnesses including the family members of Kalipada and Deben. The appellants did not produce any defence witness. They were, however, examined by the magistrate under Section 313 of the Code of criminal Procedure. During such examination they deposed that incident started in the noon in connection with the harvesting of paddy. Baidyanath cultivated the paddy whereas the other group being Kalipada and others came to forcibly harvest the same. Baidyanath Group resisted. As a result there was a scuffle between them. The appellants also sustained injury. The appellants also admitted that they were constrained to beat kalipada Group to save their life and thereafter they flee from the place after "receipt of hurt". They, however, denied occurrence of any subsequent incident in the evening as alleged by the prosecution. Baidyanath Group resisted. As a result there was a scuffle between them. The appellants also sustained injury. The appellants also admitted that they were constrained to beat kalipada Group to save their life and thereafter they flee from the place after "receipt of hurt". They, however, denied occurrence of any subsequent incident in the evening as alleged by the prosecution. The learned judge held all the accused/appellants guilty of the offence, convicted them under Section 302 read with Section 34 of the Indian penal Code and sentenced them to suffer rigorous imprisonment for life coupled with a fine of Rs. 500. 00 each and in default to suffer rigorous imprisonment for six months. Hence, this appeal by the appellant/convicts. One of the accused Lokenath was, however, acquitted from the charges. (2) CONTENTION OF THE APPELLANTS: 2.1 Mr. Y. J. Dastoor learned counsel appearing for the appellants contended before us that the prosecution miserably failed to prove that there had been a second incident in the evening of November 11, 1983. First incident, however, was admitted by both sides. Both the groups took the land as a khas land which later on transpired as land belonging to Late A. B. A. Gani Khan chowdhury. There had been a free fight in between two groups. As a result both sides sustained injuries causing two casualties. Since there was a free fight until and unless the responsibility was fixed through unimpeachable evidence no one could be convicted under Section 302. Mr. Dastoor took us to the deposition of the prosecution witnesses as well as the deposition of the appellants/convicts in course of examination made under Section 313 of the Code of criminal Procedure to establish that there was no concrete evidence to implicate the appellants so that the Court could come to conclusion that they were responsible for the murder of Kalipada and Deben. He ultimately prayed for acquittal of the appellant/ convicts. 2.2 In support of his contention Mr. Das cited the following decisions. :- (i) 1975, Volume - III, Supreme Court cases, Page 815 : (1975 Cri LJ 870) (Ram kumar Pandey v. State of Madhya Pradesh) (ii) 1975, Supreme Court Cases (Criminal), Page 601 : (1975 Cri LJ 1734) (Balaka singh and Ors. 2.2 In support of his contention Mr. Das cited the following decisions. :- (i) 1975, Volume - III, Supreme Court cases, Page 815 : (1975 Cri LJ 870) (Ram kumar Pandey v. State of Madhya Pradesh) (ii) 1975, Supreme Court Cases (Criminal), Page 601 : (1975 Cri LJ 1734) (Balaka singh and Ors. v. The State of Punjab) (iii) 1976, Volume - IV, Supreme Court cases, Page 355 : (1976 Cri LJ 1883) (Ishwar singh v. State of U. P.) (iv) All India Reporter, 1976, Supreme court, Page 2263 : (1976 Cri LJ 1736) (Lakshmi Singh and Ors. v. State of Bihar) (v) All India Reporter, 1976, Supreme court, Page 1924 : (1976 Cri LJ 1521) (Subhash and Anr. v. State of U. P.) (vi) All India Reporter, 1988, Supreme court, Page 1158 : (1988 Cri LJ 1154) (Awadhesh and Anr. v. State of Madhya pradesh) (vii) All India Reporter, 1980, Supreme court, Page 1873 : (1980 Cri LJ 1298) (Purshottam and Anr. v. State of Madhya pradesh) (viii) All India Reporter, 1994, Supreme court, Page 1539 : (1994 Cri LJ 1385) (Sri niwas v. Ram Bharosey and Ors.) (ix) 1994, Volume - V, Supreme Court cases, Page 188 : (1995 Cri LJ 457) (Meharaj singh v. State of U. P.) (3) CONTENTION OF THE PROSECUTION 3.1. Mr. Tapan Dutta Gupta, learned counsel appearing for the prosecution while opposing the appeal contended that the trial was conducted after about four years of the incident. Hence, it was not possible for the witnesses to remember each and every details of the incident. Mere discrepancy in evidence per se did not vitiate the proceeding once the murder was proved through the available evidence. He also contended that the evidence of the eye witnesses coupled with medical evidence that came out in evidence conclusively proved that the victims were murdered. The involvement of the appellants were also proved through eye witnesses. Hence, the learned Judge rightly held the appellants guilty of the offence and sentenced them appropriately. He prayed for dismissal of the appeal. 3.2. In support of his contention Mr. Dutta gupta cited the following decision :- (i) 1993, Criminal Law Journal, Page 1656 : (1993 AIR SCW 1656) (Jarnail Singh and Anr. v. State of Haryana) (ii) 1996 All India Reporter, Supreme court, Page 3265 : (1996 Cri LJ 2528) (Ram sanjiwan Singh and Ors. He prayed for dismissal of the appeal. 3.2. In support of his contention Mr. Dutta gupta cited the following decision :- (i) 1993, Criminal Law Journal, Page 1656 : (1993 AIR SCW 1656) (Jarnail Singh and Anr. v. State of Haryana) (ii) 1996 All India Reporter, Supreme court, Page 3265 : (1996 Cri LJ 2528) (Ram sanjiwan Singh and Ors. v. State of Bihar) (iii) 1997, All India Reporter, Supreme court, Page 364 : (1996 Cri LJ 4438) (Darshan Singh and Ors. v. State of Haryana) (iv) 2000, Cal Criminal Law Reporter (Supreme Court)Page 469 : (2000 Cri LJ 4047) (State of West Bengal v. Mir Mohammad omar and Ors.) (v) 2001, Volume - IV, All India Criminal law Reporter, Page 361: (2001 Cri LJ 4708) (Munshi Prasad and Ors. v. State of Bihar) (vi) 2002, Criminal Law Journal, Page 581 : ( AIR 2002 SC 291 ) Brij Lal v. State of haryana) (vii) 2003 Cri LJ Page 2011 : ( AIR 2003 sc 1243 ) (State of U. P. v. Rasid and Ors.) (4) EVIDENCE: let us first analyse the evidence subject wise. 4. 1 FIR: 4.1.1. Lot of arguments were made on the discrepancy of lodging of the FIR. Incident admittedly occurred on November 11, 1983. According to the prosecution the incident happened at about 17. 30 hours on the road near the school whereas according to the defence the incident occurred in the morning on the paddy field. We would deliberate on the happening of the incident and the timing thereof little later. On perusal of the written complaint it appears that the same was lodged by Karpul on the next day i. e. November 12, 1983 which was received by the Police Station at about 16. 15 hours on the said day. The same was despatched from the Police Station on the next day i. e. on november 13, 1983 at about 8. 00 hours and received by the office of the Chief Judicial magistrate, Balurghat on the following day i. e. on November 14, 1983. 4.1.2. Karpul in his deposition stated that he lodged the FIR at the Police Station on saturday (November 12, 1983). According to Karpul after lodging of the FIR the Officer- in-Charge visited the place of occurrence. He reported everything to the Officer-in- Charge and then he reduced it into writing. The statement was read over to him. 4.1.2. Karpul in his deposition stated that he lodged the FIR at the Police Station on saturday (November 12, 1983). According to Karpul after lodging of the FIR the Officer- in-Charge visited the place of occurrence. He reported everything to the Officer-in- Charge and then he reduced it into writing. The statement was read over to him. He put thumb impression on his statement. 4.1.3. Another witness Chera Roy being pw-2 deposed that he along with Karpul was present when the Police Officer visited the place of occurrence. The Investigating officer recorded the statement as well as the statements of some CPM partymen. Karpul put his thumb impression on the statement. Statement was prepared as per his version. It also contained the version of the CPM partymen present at that time. 4.1.4. Biswanath Das being PW-3 in his deposition stated that one Pramod chakraborty was sent to the Police Station. He was an eye witness. He was, however, not told to describe the incident in detail. He deposed that the statement of Karpul was not taken in his presence. He also deposed that the Police Officer was there from 11.00 A.M. to 3.00 P. M. However, Karpul was not at all present at that time. 4.1.5. The concerned Police Officer being pw-15 stated that at about 4. 15 P. M. while. he was in the Police Station he received the statement recorded by the Officer-in- Charge. He filled up the form of FIR and started the Police Case No. 6 dated November 12, 1983. According to him, the Officer-in-Charge forwarded the FIR at 2. 05 P. M. and he received the same on the same day at 4. 15 P. M. 4.1.6. PW-16 being the Officer-in-Charge deposed that at about 10. 35 hours on November 12, 1983 he received a written information from one Dhirendra Bhattacharjee a local CPIM leader and on receipt of such information he went to the place of occurrence at about 13. 45 hours on November 12, 1983. According to him, he recorded the statement of Karpul, read over and explained the same to Karpul when Karpul put his thumb impression. He identified the recorded statement. He also deposed that he reached the place of occurrence at about a5 P. M. He started writing the statement at about 2. 05 P. M. and completed the same at 3. According to him, he recorded the statement of Karpul, read over and explained the same to Karpul when Karpul put his thumb impression. He identified the recorded statement. He also deposed that he reached the place of occurrence at about a5 P. M. He started writing the statement at about 2. 05 P. M. and completed the same at 3. 05 P. M. He admitted that there had been a mistake to the extent that the statement was shown to have been forwarded at 2.05 P. M. 4.1.7. Mr. Dastoor contended that the written complaint could not have been prepared within one hour and could not have been sent to the Police Station by 4. 15 P. M. as the Police Station was about 30 KM away from the place of occurrence. Mr. Dastoor also contended that the written communication received by the Officer-in-Charge from one Dhiren Bhattacharjee was not produced in evidence. According to him the FIR was anti- dated. 4.2. INCIDENT:4. 2. 1 According to prosecution there had been two incidents, one in the morning and other in the afternoon whereas according to the defence as submitted through Mr. Dastoor there had been a single incident in the morning on the paddy field. The defence did not examine any witness. The defence case would appear from the deposition of the Baidyanath one of the accused being the appellant No. 1. The statement of baidyanath so recorded by the learned judge is quoted below:-"the incident occurred in the noon in connection with the harvesting of paddy. Paddy was sown by me in the land. They came to harvest the paddy forcibly. They were prevented from cutting away the paddy. They did not care and harvest some paddy. They did not care for the prohibition. There was a scuffle with them and then they hurt us with sticks and spears. Then we beat them for fear of life. They also did so. On receipt of the hurt we leave the place. " 4.2.2. Another accused Harihar stated as follows :-"the incident started in the noon in connection with the harvesting of paddy. Baidyanath sowed the paddy and they came to reap the same forcibly. Then they were prohibited from reaping yet they reaped some paddy. They ignored the prohibition. There was a scuffle with them. Then they hurt us with sticks and spears. Another accused Harihar stated as follows :-"the incident started in the noon in connection with the harvesting of paddy. Baidyanath sowed the paddy and they came to reap the same forcibly. Then they were prohibited from reaping yet they reaped some paddy. They ignored the prohibition. There was a scuffle with them. Then they hurt us with sticks and spears. Then for fear of life we beat them and they also did so. We constrained to beat then to save our life. On receipt of hurt we flew from that place. " 4.2.3. As per the prosecution the first incident occurred in the morning on the paddy field. As the victim group was overpowered by the appellants they left the place. In the evening when Deben was coming from the hut he was assaulted by the appellants. Santu informed the members of the family. They rushed to the place. Kalipada tried to save Deben. Both of them sustained injury and ultimately succumbed to death. 4.2.4. Mr. Dastoor pointed out discrepancy in the evidence as according to him deben went to the hut without any money. Hence, his purpose for visiting the hut was not clear. More over the hut was near to the alleged place of occurrence and it would be hard to believe that none except the members of the victim family could watch the incident. Mr. Dastoor further contended that bsf camp was nearby. BSF people also visited the spot as per the prosecution witnesses. None of the BSF personnel was examined by the prosecution. Hence, it could well be inferred that there had been no incident at all in the evening. (5) OUR VIEW: 5.1 Basic procedure in a criminal trial as consistently held by the Apex Court as well as by the High Courts is to find out whether occurrence of crime is proved unimpeach-ably and if so, whether the accused could only be held responsible for the commission of the crime without any suspicion in the mind of the court. Mere discrepancy in evidence or any anomaly thereof which fails to create any suspicion in the mind of the court is not at all relevant to adjudicate a trial. 5.2. If we leave aside the prosecution case so came out in evidence and solely rely on the statements of the accused we would find that the appellants cultivated on a land not belonging to them. 5.2. If we leave aside the prosecution case so came out in evidence and solely rely on the statements of the accused we would find that the appellants cultivated on a land not belonging to them. The victim group also committed illegality by using force to harvest the paddy so cultivated by the appellant group. As per the statement of the accused there was a free fight. Both groups were armed with weapons. Fulu Roy did not offer any explanation in his examination conducted under Section 313 of Code of criminal Procedure. All the other accused followed suit except Harihar and baidyanath. Both of them categorically admitted that they beat the victim group to save their life and on receipt of hurt they flee from that place. Significant to note, no complaint was made by the appellants as against the victim group in the Police Station. They admitted that they assaulted the victims. Kalipada and Deben died on the spot after being assaulted by the appellants. They succumbed to the Injury and died. The admission on the part of the Harihar and baidhynath coupled with corroboration by the prosecution witnesses is sufficient enough to hold them guilty of the offence. Kalipada and Deben died after sustaining injury. Their injuries were the causes of death as opined by the Doctor who held postmortem examination. 5.3. Mr. Dastoor tried to contend that when there was a free fight each one would be responsible for his individual act. If we consider the backdrop on admitted facts we would find that there had been two groups involved in the incident being the appellant group and the victim group. Against the victim group no complaint was lodged by the appellants. Hence, their plea of private defence in absence of a complaint duly lodged by them and in absence of adequate evidence in support thereof has no relevance at all. Section 34 of the Indian Penal Code provides that when a criminal act is done by several persons in furtherance of common intention each one would be liable for that act in the same manner as if it was done by him alone. Each one involved in the incident had a common intention to resist harvesting of paddy by the victim group. However, they used weapons and caused injury to the victims which caused them instant death. Each one involved in the incident had a common intention to resist harvesting of paddy by the victim group. However, they used weapons and caused injury to the victims which caused them instant death. That, in our view, could not be termed as a private defence. It is true that the victim group wanted to harvest the paddy forceably. It is also true that the appellant group cultivated the paddy on a land belonging to someone else. There is one more significant fact which came out from the statement of the accused quoted supra. According to the appellants, victim group assaulted them with sticks and spheres. They, however, did not sustain any major injury. Hence, they should not have caused injury to the other group that too with weapons which had caused instant death to the victims. 5.4. Lot of arguments were made on the discrepancy of the evidence on the issue of participation of Fulu Roy in the incident. According to Jarda being PW-5 Fulu cut the throat of his father by sharp cutting instrument. PW-6, Sarodabala another daughter of Kalipada corroborated the statement of jarda. PW-2 Chera, the son-in-law of kalipada deposed that Fulu killed his father-in-law by means of Chopper. 5. 5 The trial was conducted after about four years of the incident. It was difficult for the witnesses to remember each minute details after so many years, more so, because of the reason that the incident occurred when more than 10/12 persons belonged to both the groups were involved in the incident. From the post-mortem examination we find that Deben sustained injury on his neck and his throat was cut. Kalipada also sustained injury of sharp weapon on his chest. Such minor discrepancy in the evidence, in our view, cannot absolve the accused from their liability, more so, when they themselves admitted the incident of assaulting the victim group. On perusal of the postmortem report and the evidence of the Doctor we feel it difficult to believe the story of private defence. Both victims sustained so many injuries including injuries caused by sharp weapons resulting deep wounds. No prudent man would cause so many injuries to the victim as and by way of private defence. 5.6. Let us examine the case from another angle. Even if we give sufficient waltage to what Mr. Both victims sustained so many injuries including injuries caused by sharp weapons resulting deep wounds. No prudent man would cause so many injuries to the victim as and by way of private defence. 5.6. Let us examine the case from another angle. Even if we give sufficient waltage to what Mr. Dastoor contended we would find that there had been discrepancy with regard to the lodging of the FIR as to the timing. There had been discrepancy on the number of incidents as to whether there had been a single incident or an incident subsequent to the morning incident. This may cause reasonable suspicion in the mind of the court, if we weigh the suspicion with the admission of the appellants which came out in their examination under Section 313 of the code of Criminal Procedure we would find that such suspicion, if any, would have no relevance in coming to a positive conclusion that the accused were responsible for the crime. 5.7. On a sum total we find that the accused admitted that there had been a scuffle. Accused admitted that both the groups had a common intention. The victim group wanted to harvest the paddy forceably. Appellant group wanted to resist them. So both groups had a distinctive common intention. According to the accused, they also assaulted the victim group and thereafter they flee away from the place of occurrence. Admittedly they did not lodge any complaint to the Police Station on the incident. Admittedly Kalipada and Deben succumbed to the injuries. Hence, mere discrepancy in evidence either with regard to the lodging of the complaint/fir or on the happening of the incident or on any other score so discussed above does not create any suspicion in our mind before holding the accused guilty of the offence. It is true that neither dhiren nor the BSF personnel were produced as witness. It is cardinal principle that the prosecution is free to chose its own witness. In case they are able to prove the incident through the available witnesses mere non-production of the other witnesses would not vitiate the proceeding or the result. Comments were made to the effect that there was no independent witness to corroborate the prosecution case. It is the quality of the evidence and not the quantity which decides the result of the trial. Comments were made to the effect that there was no independent witness to corroborate the prosecution case. It is the quality of the evidence and not the quantity which decides the result of the trial. The prosecution witnesses corroborated each other on the incident as analysed by the learned Judge in detail in the judgment and order impugned. 5.8. Comments were made that semi-digested food were found on the stomach of the victims. Hence, it would suggest that the incident occurred in the morning when the victim group went for harvesting after taking their breakfast. Much would not turn on that so long other available evidence un-impeachably proved the prosecution case. Santu Roy was not a member of the family. He saw the accused person assaulting deben. He was first person to report the incident to the members of the family. He, however, made a departure in course of his examination that he heard a shouting from behind while he was coming from hut. He rushed to the house of Kalipada and informed them that Deben was being assaulted. However, PWs-1, 2, 5 and 6 corroborated each other on the incident which happened after they reached the spot on being informed by Santu. Nothing came out in evidence that the witness had any animosity with the accused persons save and except the incident for which we could doubt the veracity of their statements. On a close reading of the judgment we find that each and every deposition of the witnesses have been thoroughly analysed by the learned judge before corning to a conclusion. 5.9. The learned Judge discarded the contention of the appellants that due to hut (sic) day the incident could have been witnessed by many others non-interested persons. The learned Judge observed, "but from our experience we know that very few persons are daring to oppose assault or murder on the highway. The security of human life in these days is very feeble and being afraid of life and property and political pressure a few persons come forward to speak the truth in court". We fully agree with the learned Judge on this score. 5.10. On the private defence the learned judge observed as follows :-"now, how far this right of private defence of the accused persons be accepted giving due regard to the facts and circumstances of the case. We fully agree with the learned Judge on this score. 5.10. On the private defence the learned judge observed as follows :-"now, how far this right of private defence of the accused persons be accepted giving due regard to the facts and circumstances of the case. In this case, we found there are four direct eye witnesses and we also found five witnesses who heard about the incident immediately after the occurrence and all of them stated that the incident of murders happened in the afternoon and they saw the dead bodies just before the evening. " we respectfully agree with the learned judge. (6) OUR VIEW ON THE APPLICATION OF the PRECEDENTS CITED : 6.1. ANOMALY WITH REGARD TO LODGING OF FIR: on the issue of anomaly with regard to the lodging of FIR as well as the delay Mr. Dastoor relied on the decision of the Apex court in the case of Balaka Singh (1975 Cri lj 1734) (supra) and Iswar Singh (1976 Cri lj 1883) (supra). In Balaka the Apex Court considered the inconsistent evidence with regard to the exact timing of lodging of the fir and ultimately came to the conclusion that names of four innocent persons were subsequently inserted. In the case of Iswar singh (supra) the Apex Court considered the fact that no explanation was offered about extraordinary delay in sending the report to the Magistrate. In the instant case according to the prosecution incident occurred in the evening of November 11. The Police went to the spot on the next day in the afternoon being a Saturday and the Chief Judicial Magistrate received the same on Monday being november 14. It is true that there are discrepancies in evidence with regard to the lodging of the FIR. We, however, feel that nothing much would turn having regard to the facts and circumstances as discussed by us hereinbefore. 6.2. FIR- SUPPRESSION OF MATERIAL fact: mr. Dastoor also contended that if there was any suppression of material fact in the fir adverse inference should be drawn as against the prosecution on that score. In this regard he relied on the Apex Court decision in Ram Kumar Pandey (1975 Crrlj 870) (supra). In the said case the father of the victim lodged the FIR. He, however, did not mention that his daughters had seen the appellants assaulting the victim. In this regard he relied on the Apex Court decision in Ram Kumar Pandey (1975 Crrlj 870) (supra). In the said case the father of the victim lodged the FIR. He, however, did not mention that his daughters had seen the appellants assaulting the victim. Omission of such material fact in the FIR affected the probabilities of the case according to the apex Court. Relying on the said decision Mr. Dastoor contended that assault by Fulu was not stated in the FIR. We have already held that it was a free fight between two groups. The name of Fulu did appear in the FIR. Mere omission of the said fact by Karpul did not vitiate the ultimate conclusion so arrived by the learned Judge as well as by us. The complaint was lodged informing the Police about the incident. The incident was narrated in detail as we find from the FIR. On a combined analysis of the evidence we do not find any major departure on that score. Hence, we do not find any application of the ratio in the case of Ram Kumar Pandey (supra) in the instant case. 6.3. FORENSIC EXAMINATION - MEDICAL EVIDENCE -SEMI-DIGESTED FOOD and ITS EFFECT ON THE DECISION : 6. 3. 1 Mr. Dastoor cited the Apex Court decision in the case of Lakshmi Singh (1976 cri LJ 1736) (supra) to support his contention that the blood-stained earth where the dead bodies were found, was not examined. This factor was considered by the Apex Court to examine the defence version. In the instant case the accused admitted that they had assaulted the victim and then flee from the place. Hence, non-examination of the blood stained earth where the dead body was found lying did not change the ultimate finding of the Court. 6.3.2. Mr. Dastoor also relied on Meharaj singh (1995 Cri LJ 457) (supra) where the apex Court had occasion to consider the effect of semi-digested food in the stomach of the victim. In the said case the Apex Court also considered the nature of the injury to come to a positive conclusion. 6.3.3. Mr. Dastoor cited the Apex Court decision in the case of Srinivas (1994 Cri LJ 1385) (supra) on the issue of medical evidence. We, however, do not find any anomaly in the medical evidence. On the issue of cutting of throat of Kalipada by Fulu we have already deliberated. 6.3.3. Mr. Dastoor cited the Apex Court decision in the case of Srinivas (1994 Cri LJ 1385) (supra) on the issue of medical evidence. We, however, do not find any anomaly in the medical evidence. On the issue of cutting of throat of Kalipada by Fulu we have already deliberated. 6.3.4. Mr. Dastoor cited the Apex Court decision in the case of Subhas and Anr. (1976 cri LJ 1521) (supra) on the issue of discrepancy with regard to the timing of the incident. He contended that since semi digested food was found in the stomach of the victim the incident could not have occurred at 5.30 P. M. in the evening. Noting came out in evidence as to when the victims took meal on that day. No suggestion was given on that score. It, however, came out in the evidence that the victim group used to take their meal at about 12. 00 noon. It would not be safe to conclude on the issue merely on the basis of fact that the victim died within one or two hours of taking meal and as such the incident must have happened at the time as per the defence version. In this regard we may refer to the latest decision of the Apex Court in the case of State of U. P. v. Rashid and ors. (2003 Cri LJ 2011) (supra) cited by Mr. Dutta Gupta. The Supreme Court in paragraph 16 thereof observed that when there is acceptable oral evidence of the eye witnesses with regard to the timing of the incident High Court erred in entering into the exercise of calculation based on principles which had no foundation in evidence. Pertinent to note, the High Court placed reliance on the fact that as per medical evidence presence of semi-digested food in the stomach of the deceased should be a deciding factor. The Apex Court observed that presence of semi-digested food in the stomach of the deceased is not an absolute proof of the fact that the deceased must have died before the day break 6.3.5. Mr. Dastoor cited the decision in the case of Purusattam (1980 Cri LJ 1298) (supra). The Apex Court in the said case considered the medical evidence and disbelieved the prosecution witness as according to the court such evidence was inherently improbable. We do not find any scope to apply the ratio in the instant case. Mr. Dastoor cited the decision in the case of Purusattam (1980 Cri LJ 1298) (supra). The Apex Court in the said case considered the medical evidence and disbelieved the prosecution witness as according to the court such evidence was inherently improbable. We do not find any scope to apply the ratio in the instant case. 6.4 INTERESTED WITNESS/ RELATIVES: 6.4.1. Mr. Dastoor lastly cited the decision in the case of Awadesh (1988 Cri LJ 1154) (supra). In this case the Apex Court had occasion to consider the delay in lodging the FIR. The Apex Court ultimately held that since the names of the assailants were unknown the FIR was lodged after deliberation. The prosecution witness deposed that the appellants were running away with weapons and they had recognised them. The apex Court disbelieved such evidence as they were not the local people and they were close relatives of the deceased. Hence, their presence at the scene of occurrence was highly doubtful. 6.4.2. Mr. Dastoor put emphasis on the fact that the BSF personnel, the CPIM leader, dhiren Bhattacharjee, another eye witness promod Chakraborty were not examined by the prosecution. As observed by us hereinbefore, the prosecution is free to decide who should be their witness. It is not the quantity but the quality of evidence which matters. In this regard we may refer to the decision of Jarnail Singh (1993 Cri LJ 1656) (supra). The Division Bench of the Punjab and haryana High Court rejected the contention that the eye witnesses being the members of the family only some independent evidence was required. The Apex Court rejected such contention by observing the same as traditional and conventional arguments of the defence 6. 4. 3 In the case of Munsi Prasad (2001 cri LJ 4708) (supra) the Apex Court observed "technicality ought not to weigh the course of justice- if the court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case". (7) CONCLUSION : 7.1. In our view, there is sufficient evidence to hold that the accused were solely responsible for the incident causing death to Kalipada and Deben and they were killed by none else other than the accused. (7) CONCLUSION : 7.1. In our view, there is sufficient evidence to hold that the accused were solely responsible for the incident causing death to Kalipada and Deben and they were killed by none else other than the accused. The learned Judge held all of them guilty except lokenath and sentenced them for rigorous imprisonment for life coupled with a fine of Rs.500. 00 in default to suffer a further imprisonment for six months. We do not find any scope of interference on that score. 7.2. Appeal thus fails and is hereby dismissed. The order of conviction and sentence passed against the appellants is hereby confirmed. 7.3. Appellants are on bail. We cancel their bail bonds with immediate effect. They are directed to surrender before the Trial Court within 15 (fifteen) days from this order failing which the Trial Court shall take necessary steps for their apprehension and for sending them to prison to suffer the imprisonment. 7.4. Send lower Court Record along with the copy of the judgment to the Trial Court for information and for taking appropriate action in the light of direction contained in this judgment. 7.5. Urgent xerox certified copy will be given to the parties, if applied for. Appeal dismissed.