JUDGMENT ASHIM KUMAR BANERJEE, J. 1. ON the outset may we record our strong displeasure for disappearance of vital records from the file it appears that the investigation records (4th and 5th file) including the statements of various witnesses made before the police under Section 161 of the Criminal Procedure Code are not available on the record. We are not sure as to whether those were lost during trial or during pendency of the appeal. However, we find that at the time of submission of the charge sheet those records were produced before the Court below. We are not sure whether there had been any foul play or not at least such apprehension cannot be brushed aside. 2. ONE Satya Charan Nath, being PW-1, made a written complaint with Tehatta Police Station on December 1, 1983 to the effect that his brother in-law Ganesh Nath purchased some land at Chhatina Manza for the village Garibpur from one Ananta Sikdar. Ganesh harvested baro paddy on the said land. The adjacent land owner being the appellant above named tried to dig for the purpose of making a drain through the land of Ganesh so that water could be flown to the land of the appellant. Ganesh informed Ajit Nath, Dulal Nath and Kartick Nath all sons of Panhuman Nath and Basudeb Nath and sought their help. Ajit, Dulal, Kartick and Basudeb rushed to the spot and found appellant along with his two brothers Sunil and Jamini as also others were digging and were trying to make out a drain through the land of Ganesh. Altercation took place, the appellant along with his companions attacked the other team with Tangi, Spear, Ramdao, Bow and Arrow, Lathi etc. The other group tried to flee away when they were chased. Ajit could not escape. He was assaulted along with Dulal, Kartick, Panhuman and Basudeb. Ajit died on the spot and other received injury and got them selves treated at the hospital. The incident was reported to have occurred at 8:30 a.m. On the said day the police started a case and arrested all the FIR named persons including the appellants. The police submitted charge sheet to thirty accused. Charges were framed under Section 147, 148, 149, 302 and 447 of the Indian Penal Code. The accused pleaded innocent and faced trial. 3. ALTOGETHER nine witnesses were examined by the prosecution. The police submitted charge sheet to thirty accused. Charges were framed under Section 147, 148, 149, 302 and 447 of the Indian Penal Code. The accused pleaded innocent and faced trial. 3. ALTOGETHER nine witnesses were examined by the prosecution. The doctor who did the postmortem was called by the Court as a Court witness. The accused however did not adduce any evidence. On perusal of the evidence it appears that Satya, PW-1 more or less corroborated what he had stated in the complaint. He narrated in detail the incident. According to him he also sustained injury and waited on the road side for about half an hour before he went for medical treatment. According to him, accused had chased them towards south and encircled them on the land of Jiten Nath where Ajit received injury and died on this spot. Kartick lost four fingers which were chopped off by the blow of Ramdao. Basu received blow of Ramdao on his right hand wrist. He also deposed that after the incident they carried the dead body to the land of Naba Kumar in order to provide shed of trees. He also deposed that the Police Officer came to the place of occurrence on being informed that a murder had been committed and Police Officer has written down his complaint. The injured persons including the victim were carried by police vehicle. PW-2 was another brother Kartick. He almost corroborated Satya, in addition, he deposed that of late Basu and Ganesh crossed the floor and involved themselves with the accused. He however got the information in Court on the day when he deposed. PW-3 was the son of Satya who more or less corroborated his father and uncle, in addition, he deposed that he gone away towards south on the village pathway and sat down in the shed of the trees for about half an hour. Dulal another brother of the victim family deposed that they were living in a separate mess. He also corroborated his other brothers and the nephew; in addition, he stated that they took meal in the morning on the said day whereas his nephew Panchanan deposed that on that day they could not take their meal. PW-5 and 6 were the Police Officers deposed that they went to the spot after being informed by one Kishori Pramanick that there had been some trouble. PW-5 and 6 were the Police Officers deposed that they went to the spot after being informed by one Kishori Pramanick that there had been some trouble. PW-7 was the Police Driver. PW-8 was the Investigating Officer. 4. IN another case PW-9 was the attendant at the Public Health Centre. PW-10 was the Constable who carried the dead body for post mortem examination. The post mortem doctor being the Court's witness took the injuries caused to the victim. He also deposed that undigested rice was found in the stomach of Ajit. The learned Judge of the Court below considering the evidence so discussed above held Bibhas Deb, Sambhu Ghosh and Sadananda guilty of the offence and convicted a sentence for life under Section 302 read with Section 149 of the INdian Penal Code. The other accused were acquitted from all the charges and were set at liberty. The other convicts were also sentenced to pay a fine of Rs.1000/- each and, in default, to suffer rigorous imprisonment for two years, Appearing for the appellants Mr. Y. Dastoor contended as followed: i) There had been serious discrepancies on the place of occurrence as well as time of occurrence. ii) The medical records pertaining to the treatment given to the injured persons were not entered in evidence. iii) The evidence of the Autopsy Surgeon demolished the prosecution case so made out was PW-2 and PW-3. iv) An injury report statement made before the police by the witnesses under Section 161 of the Criminal Procedure Code was not available. Hence, the defence could not confront the witnesses. v) The charge-sheeted witnesses were not examined. Dulal, Basu and Ganesh were not produced. vi) The incident occurred in the morning. No independent witnesses being the villagers and/or adjacent land owners were not examined. vii) The prosecution story so made out by the prosecution witnesses was improbable. viii) The blood stained earth and control earth were not examined. ix) The conduct of the victim and/or the injured persons would demolish the prosecution story. While elaborating his argument Mr. Dastoor contended that PW...deposed that they removed the dead body from the land of Jiten to the land of Naba Kumar only to give shed whereas they did not take any step for immediate medical aid to the injured persons who were alive. While elaborating his argument Mr. Dastoor contended that PW...deposed that they removed the dead body from the land of Jiten to the land of Naba Kumar only to give shed whereas they did not take any step for immediate medical aid to the injured persons who were alive. This story was corroborated more over neither Jiten nor Naba Kumar was examined either by the police or at the time of trial. The entire incident occurred at the instruction of Ganesh who sought help from the victim family. Ganesh was not examined. Witnesses deposed that they all came together and then came to know in Court that Ganesh had crossed the floor. Such story was improbable. Mr. Dastoor further contended that in absence of examination of Dulal, Basu and Ganesh, Naba Kumar and Jiten it would be safe to come to a definite conclusion that the appellants were guilty of the offence when there was no independent eyewitness examined by the prosecution. 5. MR. Dastoor further commented that there had been wide discrepancies between the prosecution witnesses. The nephew said that they could not take meal on that day whereas PW...said that they had their meal in the morning. The subsequent evidence was nothing but an after-thought to cover up the post mortem report where the doctor found undigested rice in the stomach of the dead person. He further contended that the contradiction which the defence was entitled to take from the prosecution witness by confronting them with this statement made by them before the police under Section 161 could not be done in absence of the said statements being available on the record. 6. ON the time he contended that the doctor deposed that the rigor mortis had passed when he had conducted the post mortem. If such statement is considered then the time of the incident so spelt out by the prosecution witnesses would be belied. He further contended that the blood stained earth and control earth were not seized, those were not examined. Seizure list was not produced. The FIR did not mention about the shifting of the dead body. These discrepancies, according to Mr. Dastoor were fatal and benefit of doubt must go to the appellants on the conduct of the injured persons. Mr. He further contended that the blood stained earth and control earth were not seized, those were not examined. Seizure list was not produced. The FIR did not mention about the shifting of the dead body. These discrepancies, according to Mr. Dastoor were fatal and benefit of doubt must go to the appellants on the conduct of the injured persons. Mr. Dastoor contended that it was highly improbable that the injured persons would not get themselves medically treated and would keep themselves busy with the dead body to give shed. He further contended that inquest did not mention the name of the accused and the complaint made by the PW-1 was nothing but an after thought He further contended that the police had reached the spot upon getting an information from Kishori who was not examined by the police. There had been a B.S.F. Camp in the said village. The B.S.F. personnel was not consulted. The inquest witnesses were not tendered. The doctor from the Primary Health Centre who treated the injured was not examined. According to him, those witnesses were vital who could unfold the narrative when the prosecution failed to unfold the narrative through the vital witnesses. Adverse inference must be drawn against them. In support of his contention Mr. Dastoor relied on the following decisions: i) 1972, Volume-III, Supreme Court Cases, Page-393 (Thulia Kali Vs. The State of Tamil Nadu ii) 1973, Volume-I, Supreme Court Cases, Page-490 (Sahaj Ram and Others - Vs. The State of Uttar Pradesh) iii) 1974, Volume-IV, Supreme Court Cases, Page-193 (Sawal Das Vs. State of Bihar) iv) 1975, Volume-III, Supreme Court Cases, Page-815 (Ram Kumar Pandey Vs. State of Madhya Pradesh) v) 1975, Volume-IV, Supreme Court Cases, Page-497 (Ram Narain Singh Vs. State of Punjab) vi) 1975, Supreme Court Cases (Criminal), Page-601 (Balaka Singh and Others Vs. The State of Punjab) vii) 1976, Volume - IV, Supreme Court Cases, Page-394 (Lakshmi Singh and Others Vs. State of Bihar) viii) 1976 Volume-IV, Supreme Court Cases, Page-355 (Ishwar Singh Vs.State of Uttar Pradesh) ix) All India Reporter, 1976, Supreme Court, Page-1924 (Subhash and another Vs. State of Uttar Pradesh) x) 1983, Volume-II, Supreme Court Cases, Page-21 (Babu and OthersVs. State of Uttar Pradesh) xi) 2003, Supreme Court Cases (Criminal) Page-1052 (Tarun alias Gautam Mukerjee Vs. State of West Bengal) xii) 2007, Volume-III, Supreme Court Cases (Criminal), Page-47 (Sujoy Sen alias Sujoy Kr. Sen Vs. State of Uttar Pradesh) x) 1983, Volume-II, Supreme Court Cases, Page-21 (Babu and OthersVs. State of Uttar Pradesh) xi) 2003, Supreme Court Cases (Criminal) Page-1052 (Tarun alias Gautam Mukerjee Vs. State of West Bengal) xii) 2007, Volume-III, Supreme Court Cases (Criminal), Page-47 (Sujoy Sen alias Sujoy Kr. Sen Vs. State of West Bengal) As we have observed at the outset, this case was conducted by the prosecution in most slipshod manner at the same time we feel, however sufficient materials are already available on record to come to a definite conclusion that accused were guilty of the offence. Such infirmities would not be fatal. The incident occurred in the morning. PW-1 categorically described the incident in his complaint. He was consistent while deposing before the Court below. The other prosecution witnesses corroborated him and they could not be shaken during cross- examination. Lot of comments were made on the non-availability of the statements made under 161. Copies were circulated amongst the accused at the time of charge sheet. If such statements were not available on the record at the time of trial the defence could utilise their copy to get contradiction. This contention, in our view, is nothing but a ploy to confuse the issue. 7. ON the undigested rice we feel that such discrepancy in the statement being minor did not and could not upset the core issue. The victim was killed in the incident. Whether he was fasting or not is not must material considering the facts and circumstances. Similarly, the evidence of the Autopsy Surgeon do not leave to any inference that the death could not have occurred at the expected time so stated by the prosecution witnesses. The doctor stated in his evidence that had there been riger mortis he would have mentioned it. He however did not categorically show that riger mortis had passed. With regard to shifting of dead body from the place of occurrence we do not find any scope to give any importance on the said issue. On being informed police went to this spot and found the injured person and dead body. The PW-1 later on mentioned the written complaint which was treated as FIR. It is well settled principle of law that FIR need not detail the incident. It was nothing but a first hand information given to the investigating agency so that they could start investigation into the crime. The PW-1 later on mentioned the written complaint which was treated as FIR. It is well settled principle of law that FIR need not detail the incident. It was nothing but a first hand information given to the investigating agency so that they could start investigation into the crime. It is true that no independent witness could be found to support prosecution case. However the prosecution witnesses being the persons involved in the incident and sustained injury deposed to support the prosecution case. They corroborated each other barring a few minor discrepancies which could not raise any doubt in the mind of the Court to upset the conviction. 8. IN the case of Babu and Others (Supra), the Apex Court discussed the prosecution case and found it improbable and while doing so the Apex Court relied on the medical evidence. It is well settled that medical evidence is nothing but an opinion which cannot, in any way, upset the ocular evidence. On the issue of vital witnesses not being examined. Mr. Dastoor relied on the decision in the case of Sawal Das (Supra). We do not find any scope of disagreement on the well settled principle of law that witness ......to the unfolding of narratives must of course be called by the prosecution irrespective of the fact that the result and effect of their testimony. We know that prosecution is free to decide who would be called to adduce evidence. Once the witnesses so called to adduce evidence proves the prosecution case beyond reasonable doubt. The prosecution is entitled to pay for conviction of the accused. 9. ON the 161 statements Mr. Dastoor relied upon the decision in the case of Tarun alias Gautam Mukherjee (Supra). In the said case there had been contradiction in the testimony of the prosecution witness. The Apex Court set aside the conviction. In the instant case as we have already observed the defence could utilise their copies of the 161 statements and they had in fact put question to the said effect to the prosecution witnesses. They were however unsuccessful not getting a contradiction from the witnesses. The decision in the case of Sujoy Sen (Supra) was cited wherein the Apex Court observed that discrepancy in FIR ......a major one would be fettered. 10. WE have already discussed that the discrepancy so highlighted by Mr. They were however unsuccessful not getting a contradiction from the witnesses. The decision in the case of Sujoy Sen (Supra) was cited wherein the Apex Court observed that discrepancy in FIR ......a major one would be fettered. 10. WE have already discussed that the discrepancy so highlighted by Mr. Dastoor were minor in nature and in any way did not and couldnotupset the positive case made out by the prosecution resulting in the conviction of the appellants. The decision in the case of Ram Kumar Pendey (Supra) was cited to support the contention that the blood stained earth and the controlled earth were not seized and sent for chemical examination. The death was proved through post morten. The death was homicidal in nature. The injury caused to the victim as well as the other injured persons were proved through ocular evidence. It is for the prosecution to proceed in their own way. Once they are unsuccessful in proving the incident and once it is proved that the accused are guilty of the offence their conviction is a natural consequence. There is no special or rigid formula as to how the investigative agency would proceed to investigate into the crime and how the prosecution would prosecute the accused during the trial. The basic concept is that investigative agency must bring home the charges as against the accused after the through investigation and such charges are proved at the trial through the prosecution witnesses and/or the evidence so laid therefore. In the case before us prosecution in our View was able to bring home the charges and there was ample evidence to come to a definite conclusion holding the three appellants guilty of the offence. We do not find any scope of interference on that score. The appeal fails and is, hereby, dismissed. The appellants are now on bail. There Bail-bonds / Surety Bonds are cancelled. They are directed to surrender before the Court of learned Trial Judge within seven days from the date of receipt of the Lower Court Records by the learned Trial Judge, to serve out the remaining part of their sentences as awarded by the learned Trial Judge, failing which the learned Trial Judge must take appropriate steps in this regard. Urgent Xerox certified copy will be given to the parties, if applied for. Urgent Xerox certified copy will be given to the parties, if applied for. Let the Lower Court Records along with a copy of this judgment be sent down at once to the concerned learned Trial Judge for information and necessary action. Urgent Xerox certified copy will be given to the parties, if applied for.