Judgment : ASHIM KUMAR BANERJEE.J: 1. FACTS: - This case relates to a most unfortunate incident where on a trifle issue the victim had to pay heavy cost by losing his life. The victim was a resident of Jagatdal. He was working as Income Tax Inspector at the relevant time. His son Debabrata Majumder, PW-1 as well as complainant was nineteen years of age. On May 21, 2001 at about 7.00 p.m. a person of the same locality (Sudhir) was found committing nuisance in the open drain in front of the house of the victim. Victim protested, an altercation took place between the victim and the concerned person. On the next day at about 11.30 a.m. the nephew of the said person, Bishnu Sarker came to the victim’s house and threatened him. The victim said, he did not do anything wrong. He agreed to “sort it out”. At 6.00 p.m. in the evening on the same day Madhai Sarker, brother of Bishnu Sarker called the complainant to the slab near the drain and started beating him. The victim was about to go to the market. He intervened and tried to save the complainant. Madhai then left the complainant and started beating the victim with fists and blows. Bishnu was standing beside and instigating him. Complainant cried for help. The local people rushed to the place and took the victim to Kalyani Hospital where the victim succumbed to the injury shortly. Complainant lodged a complaint on the same day with the local Police Station. The Police conducted the inquest and arrested both the accused. The Inquest Report supported the complaint. The officer however recorded that Shyamlendu Majumder the victim, fell on the ground and was hit by an unbroken brick lying beside the road. The Post Mortem Report suggests that the death was unnatural, anti mortem and homicidal in nature. Five injuries were found which includes injury at the occipital region of the scalp. The accused pleaded not guilty and opted to be tried. 2. PROSECUTION EVIDENCE:- PW-1 (Debabrato Mazumder):- PW-1 deposed that Bisnu and Madhai started assaulting him at random with fists and blows. When his father tried to save him the persons pounced upon him. Both of them assaulted Shyamlendu Mazumder with fists and blow and hit his father on the head with brick more than once. 2. PROSECUTION EVIDENCE:- PW-1 (Debabrato Mazumder):- PW-1 deposed that Bisnu and Madhai started assaulting him at random with fists and blows. When his father tried to save him the persons pounced upon him. Both of them assaulted Shyamlendu Mazumder with fists and blow and hit his father on the head with brick more than once. There had been injuries on eyes, nose and other parts of the face causing bleeding. Bisnupada was a business man whereas Madhai was a part-time worker in a factory. The complainant, for the first time, disclosed the name of the person being the villain of the peace Sudhir Sarkar who had committed nuicence on the day prior to the incident. According to him, when his father protested Sudhir abused him. Sudhir was uncle of Bisnu and Madhai. He deposed that his father was in standing position when his neck was pressed by the accused and the accused person assaulted him with the help of brick applied to his head, nose, face and other parts of the body. In cross-examination he admitted that he did not mention in the complaint that Bisnu assaulted him or his father or they pressed his father’s neck or that brick was used to hit his father. He also did not mention the name of Sudhir in the FIR. He deposed, “I failed to give the details due to my mental condition” PW-2 (Dipali Mazumder):- The witness was the widow of the unfortunate victim and mother of PW-1. She corroborated PW-1 and added that she was called by Chaya Banerjee, her sister in-law who was then sitting in the balcony of the house. Both of them went to the spot and tried to save the victim but failed. Bisnu was watching the incident from a distance. The witness along with her companion raised alarm when the victim came to the spot. He asked Madhai to refrain from assaulting PW-2. Madhai and Bisnu then attacked the victim conjointly by fists and blows at random on his face, nose and various parts of his upper body. Both of them used a brick to cause injury on his head. One did catch hold of the victim and the other inflicted the brick blow. She also referred to the earlier incident relating to Sudhir as also the subsequent threatening given by Bisnu. She identified both the accused on dock. Both of them used a brick to cause injury on his head. One did catch hold of the victim and the other inflicted the brick blow. She also referred to the earlier incident relating to Sudhir as also the subsequent threatening given by Bisnu. She identified both the accused on dock. She deposed that she had narrated the incident in detail to the Investigating Officer but was not aware of whether the Investigating Officer had written each and every detail spoken by her. PW-3 (Samir Mazumder):- The witness was the cousin brother of PW-1 and nephew of the victim. He corroborated PW-1 and 2 on the incident. PW-4 (Bimal Mazumdar):- Bimal was the uncle of PW-1 and brother of the victim. He also corroborated the other witnesses on the incident. PW-5 (Chaya Banerjee) :- She was the sister of the victim, she watched the incident from the balcony and then came to the spot to save the PW-1 but failed. She also narrated the incident how the victim had been assaulted by the accused. She accompanied the victim in the ambulance. PW-6 (Tapan Kumar Chowdhury) :- He was a neighbour and feigned ignorance about the incident. He was declared hostile. He deposed that he did not know how the victim had died. PW-7 (Swati Banerjee) :- She was the Investigating Officer. She prepared the Inquest Report. PW-8 (Sudhansu Biswas) :- He was the Assistant Sub-Inspector of Police at Jagatdal Police Station. He received the written complaint from PW-1 and registered the same as P.S. Case No.120 dated May 22, 2001, under Section 304/34 of the Indian Penal Code. PW-9 (Tapan Dey) :- He was the Ward Master of the hospital where the victim was treated. PW-10 (Dr. R. Alam) :- Dr. Alam conducted the Post Mortem Examination. He supported his report. According to him, there were five injuries on the scalp, eye-brow, occipital region of the scalp, wrist and left middle finger. According to him, the death was anti-mortem and homicidal in nature caused by the above injuries. He opined that the brick bat blow might cause some of the injuries found on the person of the deceased. Initially the Post Mortem was conducted by a doctor who happened to be the father in-law of the victim. It was reexamined by PW-10. According to him, death was due to injuries sustained by the victim. He opined that the brick bat blow might cause some of the injuries found on the person of the deceased. Initially the Post Mortem was conducted by a doctor who happened to be the father in-law of the victim. It was reexamined by PW-10. According to him, death was due to injuries sustained by the victim. PW-11 (Biswanath Ghosh) :- He was the Sub-Inspector of Police working at Jagatdal Police Station. He was entrusted with the investigation on June 11, 2001 when he took up the charge of investigation. He collected the Post Mortem Report and submitted charge-sheet. PW-12 (Nepal Sarkar) :- He was a police constable. He escorted the dead body for Post Mortem Examination. PW-13 (Subit Kumar Roy) :- He was a Sub-Inspector who conducted the initial examination. He narrated in detail about the investigation conducted by him prior to June 11, 2001. 3. DEFENCE WITNESS :- DW-1 (Pravat Kumar Paria) :- Defence Witness being DW-1, Pravat Kumar Paria, was an employee of Tyre Corporation of India. The witness produced the Attendance Register to show that on May 22, 2001 Bisnu Sarkar was working at the factory between 2 a.m. to 9.30 p.m. In cross-examination Mr. Paria deposed that Bisnupada was working as a labour under a labour contractor Mrinal Sarkar. Mrinal was not an employee of Tyre Corporation. It was his (Mrinal) responsibility to maintain the attendance of his employees. N.S.L. Card was not required to be punched. If any labour intended to quit he would have to collect the card and meet the Production Officer. He also deposed that the time of departure was not noted in the register. He also deposed that the Attendance Register did not mention the timing of the shift. 4. JUDGMENT :- Considering the evidence so adduced and discussed above, the learned Additional Sessions Judge, Fast Track (5th) Court, North 24-Parganas held both the accused guilty of the offence, convicted and sentenced them under Section 304 read with Section 34 of the Indian Penal Code. Both of them were to suffer rigorous imprisonment for ten years with a fine of Rs.5000/-ach and, in default, to suffer further imprisonment for one year each. 5. APPEAL :- Being aggrieved and dissatisfied with the judgment and order of the learned Additional Sessions Judge, Fast Track Court, and the appellants preferred the instant appeal which was heard by us on the above mentioned dates. 6. 5. APPEAL :- Being aggrieved and dissatisfied with the judgment and order of the learned Additional Sessions Judge, Fast Track Court, and the appellants preferred the instant appeal which was heard by us on the above mentioned dates. 6. CONTENTION OF THE APPELLANT:- Mr. Sourav chatterjee, learned counsel appearing for the appellant placed the deposition of the witnesses. Mr. Chatterjee contended that PW-1 was not consistent with his complaint. He did not mention the alleged overt act of Bishnupada in the complaint. He also did not mention the use of brick in the FIR. Hence, his evidence was not trustworthy. Mr. Joymalya Bagchi, learned counsel also appearing for the appellants contended that Bishnupada did not have any intention to kill the victim, at least nothing transpired in evidence. According to Mr. Bagchi, even if this Court would rely on the evidence of the prosecution witnesses at best Bishnupada could be charged with the offence of sharing the common intention to cause an assault to the victim. There was neither any instigation nor any overt act, as deposed by the witnesses. According to Mr. Bagchi, the Post Mortem Report did not support the case of the prosecution so brought out through oral evidence. The ingredients of Sub-section 304 were conspicuously absent according to him. Appearing for Madhai, Mr. Bagchi contended that in case this Court would rely on the evidence of the prosecution so came out during trial Madhai could be convicted under Section 304, Part-II and not Part-I as there had been no pre-conceived notion to attack the victim and the incident had happened on the spur of the moment. In case this Court would uphold the conviction the quantum of sentence be reduced considering Part-II of Section 304 of the Indian Penal Code. In support of his contention, Mr. In case this Court would uphold the conviction the quantum of sentence be reduced considering Part-II of Section 304 of the Indian Penal Code. In support of his contention, Mr. Bagchi relied on the following decisions:- i) 1981 Volume-IV Supreme Court Cases Page-245 (Kulwant Rai –VS- State of Punjab) ii) 1983 Volume-II Supreme Court Cases Page-342 (Jagtar Singh –VS- State of Punjab) iii) 1990 (Supplementary) Supreme Court Cases Page-291 (Hem Raj –VS- State of Delhi Administration) iv) 1993 Supreme Court Cases (Criminal) Page-1023 (Pularu –VS- State of Madhya Pradesh) v) 1999 Supreme Court Cases (Criminal) Page-74 (Ajay Sharma –VS- State of Rajasthan) vi) 2005 Volume-XIII Supreme Court Cases Page-422 (Abani K. Debnath and Another – VS- State of Tripura) vii) 2007 Volume-XV Supreme Court Cases Page-567 (Hanmantu Nagappa Joglekar – VS- State of Maharashtra and Others) viii) All India Reporter 2009 Supreme Court Page-1522 (Nagaraja –VS- State of Karnataka) Mr. Bagchi relied on the fifth, seventh and eighth decisions referred to above, to support his contention that appellant no.1 should be dealt with leniently as he did not have any active role. The other decisions were cited by Mr. Bagchi to support his contention that since the incident occurred on the spur of the moment the Court should take a lenient approach and treat the case as an offence under Section 304 Part-II and not Part-I. 7. CONTENTION OF THE PROSECUTION: Appearing for the State, the learned Public Prosecutor Shri Ashimesh Goswami contended that the case so projected by Mr. Bagchi did not have any support from the evidence. According to Mr. Goswami, the incident occurred on May 21, 2001 when Sudhir committed nuisance in front of the house of the victim. When he was told not to do such nuisance he abused the victim. The appellant no.1, as and by way of retaliation, came next day morning and threatened the victim with dire consequence. They did not stop. In the evening the appellant no.1 again came and this time with appellant no.2 and started beating PW-1. When victim tried to dissuade them the appellants pounced upon him and caused severe injury. The victim succumbed to such injury within one hour. Such heinous crime would deserve appropriate punishment. According to Mr. Goswami, the appellants should have been tried under Section 302, however the Court below framed the charge under Section 304 and convicted them accordingly. When victim tried to dissuade them the appellants pounced upon him and caused severe injury. The victim succumbed to such injury within one hour. Such heinous crime would deserve appropriate punishment. According to Mr. Goswami, the appellants should have been tried under Section 302, however the Court below framed the charge under Section 304 and convicted them accordingly. Hence, there was no scope for reduction of the sentence. Mr. Goswami further added that the incident of May 21 followed by the morning and evening incidents of May 22 would show that there had been a pre-determined notion of the appellants to cause grievous assault to the victim and his son. Hence, Part-II of Section 304 would have no application. With regard to injury, Mr. Goswami contended that from the Post Mortem Report it would appear that the force so applied by the appellants and the veracity of the same made the injury grievous and led to casualty. The alibi taken by appellant no.1 failed as would appear from analysis of evidence. According to Mr. Goswami, the medical evidence would show that there had been more than one blow which would prove the vindictive attitude of the appellants. In support of his contention Mr. Goswami cited a Privy Council decision in the case of Barendra Kumar Ghosh –VS- Emperor reported in All India Reporter 1925 Privy Council Page-1 and the Supreme Court decision in the case of Vaijayanti –VS- State of Maharashtra reported in 2006 Volume-I Supreme Court Cases (Criminal) Page-790 Mr. Sourav Chatterjee, learned counsel appearing for the appellant, in reply, contended that the alleged blows mentioned in the Post Mortem Report did not suggest the cause of the death. Moreover the totality of the evidence would show that the unfortunate incident occurred on a trifle issue on the spur of the moment. According to Mr. Chatterjee, brick was a chance weapon. It did not come out in evidence that the appellant came with any weapon. Hence, the pre-conceived notion as argued by the Public Prosecutor had no basis. 8. OUR VIEW:- We have considered the rival contentions of the parties. If we look back we would find that a boy of nineteen years watched his father being assaulted and within one hour his father succumbed to the injury. Hence, the pre-conceived notion as argued by the Public Prosecutor had no basis. 8. OUR VIEW:- We have considered the rival contentions of the parties. If we look back we would find that a boy of nineteen years watched his father being assaulted and within one hour his father succumbed to the injury. Hence, his mental condition would be in such a situation that it would not be possible for him to give each and every minute detail in the FIR lodged on the same day. During his cross-examination at the trial he admitted that he had been shattered and as such could not give details of the incident in the FIR. It is well settled principle of law that each and every minute detail need not be given in the FIR. Two things are important according to us, the FIR must contain the material particulars of the incident so that the Investigating Officer could act upon the same, and, the contents of the FIR are not inconsistent with the subsequent statements of the prosecution witnesses. The evidence of the prosecution must be consistent with the FIR. The prosecution witnesses would however be at liberty to give further details to clarify and/or explain the situation to the Court so as to apprise the Court to get a complete picture of what had happened at the time of the unfortunate incident. We are thus unable to accept Mr. Chatterjee’s contention that PW-1 was not consistent. With regard to the submission of Mr. Bagchi, we are of the view, had the incident been occurred on May 21 when the altercation had taken place between the victim and Sudhir we would have accepted Mr. Bagchi’s contention that the appellants did not have any pre-conceived notion. We cannot brush aside the glaring fact that the incident of May 21, involved the victim and Sudhir only. The appellants were no where in the picture. The morning incident of May 22 involved appellant no.1 and the victim. Appellant no.2 came in the evening incident on being brought by the appellant no.1. Hence, the appellants came to assault the victim and his son and such fact was proved by their conduct so surfaced in evidence. The appellants were no where in the picture. The morning incident of May 22 involved appellant no.1 and the victim. Appellant no.2 came in the evening incident on being brought by the appellant no.1. Hence, the appellants came to assault the victim and his son and such fact was proved by their conduct so surfaced in evidence. On the overt act of Bishnu, we are of the view that it was not unusual that PW-1 would not mention each and every minute details in the FIR lodged within a few hours of his father’s death. PW-1 categorically deposed that both the appellants took active part in the assault. He was corroborated by PW-2, 3, 4 and 5. The use of brick was consistently brought by PW-1, 2, 3, 4 and 5. Their evidence was supported by the Post Mortem doctor being PW-10. DW-1 was an employee of Tyre Corporation. He admitted that the attendance of casual workers including Bishnu was being maintained by Mrinal, the labour contractor, the company had nothing to do with such recording. Moreover, he deposed that the departure time was not noted in the Attendance Register. Hence, it was not unusual that the appellant no.1 might have left earlier and was very much present at the time of happening of the incident. Hence, the alibi taken by the appellant no.1 was belied by the evidence of DW-1 himself. Even if we accept Mr. Bagchi’s contention that Bishnu was watching the incident from a distance, his very presence at the place of occurrence being preceded by the morning incident of threat coupled with his non-action to desist Madhai, is sufficient enough to plug him in under Section 34. In this regard we rely on the decision in the case of Barendra Kumar Ghosh –VS- Emperor (Supra). We do not find any scope of showing any lenient attitude towards the appellant no.1. 9. RESULT:- The appeal fails and is hereby dismissed. 10. DIRECTION:- The appellants are now on bail. Their Bail-bond / Surety Bond is cancelled. They are directed to surrender before the Court of learned Trial Judge within two weeks from the date of receipt of the Lower Court Records by the learned Trial Judge, to serve out the remaining part of their sentence as awarded by the learned Trial Judge, failing which the learned Trial Judge must take appropriate steps in this regard. They are directed to surrender before the Court of learned Trial Judge within two weeks from the date of receipt of the Lower Court Records by the learned Trial Judge, to serve out the remaining part of their sentence as awarded by the learned Trial Judge, failing which the learned Trial Judge must take appropriate steps in this regard. Let a copy of this judgment along with Lower Court Records be sent down at once. Urgent xerox certified copy will be given to the parties, if applied for. I agree.