JUDGMENT : Siddhartha Chattopadhyay, J. 1. Doubting the correctness of the judgment and order of conviction dated 29.04.2010 and 30.04.2010 passed by the learned Additional District and Sessions Judge, 5th Fast Track Court, Malda in Sessions Trial Court 60 (9)/07 arising out of Sessions Case No. 248/07, the appellants have come before this Court, ventilating their grievances, that the learned Trial Court failed to appreciate the evidence, legal and factual aspects in its proper perspectives. 2. Before we advert to the grievances of the appellants, which are mirror image of what was argued before the trial court, it would be wise to traverse through the relevant facts and events. Therefore, the scenario of the case has to have narration. Basis for setting the law into motion is the written complaint lodged by the defacto complainant disclosing that there was a dispute regarding stealing of a female cow by and between the parties. On 18.11.1999 at or about 8.00 a.m. a quarrel took place between Santana Sarkar, wife of the younger brother of the defacto complainant and Sushila Das, wife of Sunil Das, near a village-well. When they were abusing filthy language upon Santana Sarkar, the victim protested to their such activities and the accused persons then attacked the victim with lathi, hasua, spear etc. To save himself from the clutches of the accused/appellants the victim took to his heels towards ‘Adibasi Para’. The accused persons chased him and mercilessly began to assault him. As a result, he succumbed to his injuries on his way to hospital, he breathed his last. Ventilating this ill-episode, the defacto complainant lodged the F.I.R. and set the law into motion. 3. Pursuant to the charge-sheet submitted by the Investigating Officer, the accused persons were put in trial. Charges were framed against them and the same were read over and explained to the accused/appellants to which they pleaded not guilty and claimed to be tried. 4. It further appears from the impugned judgment itself that the learned trial court had recorded the evidence of prosecution witnesses, examined the accused/appellants under Section 313 Cr.P.C. and after hearing argument at length he has made a thread bare discussion in his judgment and accordingly he has convicted the accused/appellants. The finding of the trial court is under challenge here. It further appears from the impugned judgment itself that the learned trial court had recorded the evidence of prosecution witnesses, examined the accused/appellants under Section 313 Cr.P.C. and after hearing argument at length he has made a thread bare discussion in his judgment and accordingly he has convicted the accused/appellants. The finding of the trial court is under challenge here. According to the appellants there was no eye-witness and so called eye-witnesses, as claimed by the prosecution, actually had not seen the occurrence. According to them, those witnesses came after the incident took place. They also contended that there was previous animosity between the parties which caused the defacto complainant to lodge a false case against them. It was also contended by the accused appellant that the learned trial court failed to appreciate the evidence of the prosecution witnesses and had it been correctly appreciated in that case acquittal would be the only answer. 5. Since the witnesses are the eyes and ears of justice, so we should have a look upon their evidence. P.W. 1 in his evidence has categorically stated there were sixteen accused persons and out of them. The accused Badlu Das, Gobinda Das, Shyamal Das, Sunil Das, Haripada Das, Jatin Das, Swapan Das, Rajen Das, Babu Das, Tenga Das and Hemanta Das came to the spot being armed with axe, ballam, hasua and started to assault Basudeb. Then Basudeb was fleeing away towards the house of Bajan Tudu. The said accused/appellants chased him and assaulted him there. On hearing the hue and cry the defacto-complainant and his men also chased the accused persons and then the accused persons fled away. The victim was taken to Malda Sadar Hospital, and he breathed his last. In course of cross-examination, he has stated about the place of occurrence by saying that there are houses of Khoka Barman, Heden Barman, Binanda Barman near the indara (well). He has specifically stated that his house is at a distance of chase 20 cubits from the indara (well). The P.O. is situated at a distance of about 60 cubits from the indara (well). If we look his evidence with F.I.R. it can be easily felt that place of occurrence starts from the well where from the female folk of that village used to fetch water and up to the place where the victim was assaulted by the accused persons. If we look his evidence with F.I.R. it can be easily felt that place of occurrence starts from the well where from the female folk of that village used to fetch water and up to the place where the victim was assaulted by the accused persons. It appears from evidence that the accused persons chased the victim towards ‘Adibasi Para’ near the house of Bajan Tudu. The defence has asked P.W. 1 about the distance from Bamangola Police Station to their house and distance from their house to Malda Sadar Hospital. According to P.W. 1 distance from their village to Bamangola is about 20 kilometres and Malda Sadar Hospital is at a distance of 70 kilometres. He has given a further classification that if anybody wants to go to Bamangola Police Station from his village, then he has to drop at ‘Pakua’ and then to proceed to the opposite side of Malda Town. He has further stated that before going to hospital they had gone to Bamangola Police Station. In course of cross-examination, he had categorically stated that another counter case has been filed against them by the present accused persons but in course of cross-examination he remained firm and made a statement that there was a quarrel between the female folk and at that time there was jostling and scuffling. 6. P.W. 2 in his evidence has corroborated that women folk gave a blame upon them that they had sold the cow. Thereafter, the accused persons started to assault the wife of his son. Basudeb (victim) raised protest and then the accused Badlu Das, Gobinda Das, Rajen Das, Shyamal Das, Haripada Das, Putu Das, Swapan Das, Hemanta Das and others came there being armed with axe, ballam, hasua and began to assault her son Basudeb. The victim Basudeb was taken to Malda Sadar Hospital where he was declared dead. She has given a specific statement that at the time of occurrence she was standing in front of her house. In course of cross-examination she admitted that her vision of eyes is not sufficient. Referring this part of her such evidence, learned Defence Counsel wanted to show that this octogenarian lady could not see the occurrence. But we are in respectful disagreement with such argument on the ground that the incident took place in November 1999 and that unlettered rustic lady had deposed in the month of November 2009. Referring this part of her such evidence, learned Defence Counsel wanted to show that this octogenarian lady could not see the occurrence. But we are in respectful disagreement with such argument on the ground that the incident took place in November 1999 and that unlettered rustic lady had deposed in the month of November 2009. Therefore, when she lost her vision that was not specifically asked and naturally she did not have the scope to explain. She has admitted that she did not see by which the victim was carried to the hospital. Referring such part of her evidence, defence also wanted to create a smog over our eyes. But we are not impressed regarding such argument on the ground that in her evidence in chief she has stated that she had seen the occurrence by standing in front of her house. The victim was assaulted at Adibasi Para and from there the victim was taken to hospital. So her evidence remains unshaken. In her evidence in chief she never stated that she had gone to Adibasi Para when her son was lying in a pool of blood nor she accompanied the victim towards the hospital. In course of cross examination, she has stated that police came to the place of occurrence after half an hour from the occurrence. Referring this part learned Counsel appearing on behalf of the defence argued that she is not reliable witness because if the police visited the place within half an hour in that case an F.I.R. must be there. It is perhaps needless to say that evidence has to be considered in its entirety and not on isolation basis. This apart an octogenarian unlettered lady came before the trial court long after ten years from the date of incident and naturally some sort of discrepancy may be there. It is not expected that such unlettered lady would say everything in detail as if a video tape is played on a screen. 7. P.W. 3 has corroborated almost in the same tone and tune. In her evidence she has stated that Shyamal, Badlu, Gobinda, Dodun, Sunil, Rajen, Tenga, Bablu, Haripada, Puchu Das @ Jotin, Khoka Das @ Swapan Das came to the spot with axe, ballam, hasua etc., and chased the victim and assaulted him. The victim fell down on the ground and then the accused/appellants started to assault him. In her evidence she has stated that Shyamal, Badlu, Gobinda, Dodun, Sunil, Rajen, Tenga, Bablu, Haripada, Puchu Das @ Jotin, Khoka Das @ Swapan Das came to the spot with axe, ballam, hasua etc., and chased the victim and assaulted him. The victim fell down on the ground and then the accused/appellants started to assault him. The victim was taken to Malda Sadar Hospital where he died. This witness is also a rustic and unlettered lady. She was not cross-examined on the relevant part of the commission of offence. Mainly suggestions were given to her that no such occurrence took place and that the accused persons did not assault victim and she denied the said suggestions. 8. P.W. 4 is declared hostile by the prosecution. His evidence is totally insignificant. 9. P.W. 5 in his evidence has stated that he found Badlu Das, Bablu Das, Gobinda Das, Shyamal Das, Swapan Das, and others fleeing away with weapon. He has specifically named five persons who were with arms and others fled away. He did not say specifically the names of the other accused persons. In course of cross-examination he could not recollect in which side he actually found the injury. But he is very categorical in saying that the injury was caused by axe and measurement was about two inches. He noticed only one such injury. Referring his such part of evidence (along with the post mortem report) learned Counsel on behalf of the appellants contended that post mortem report speaks that there were six injuries. So, according to him, evidence of this P.W. 5 is not creditworthy. We are in respectful disagreement with the learned Counsel on the ground that this witness has mentioned the measurement of one injury, which exactly tallies with the post mortem. He was not asked about the measurement of other injuries. 10. Evidence of P.W. 6, is totally insignificant. 11. Evidence of P.W. 7, speaks that he has put his signature in the inquest report and it was nearly to his house. From his evidence (where his address is recorded) it transpires that he resides within the jurisdiction of Bamongola Police Station. But the inquest report speaks that it was done in the morgue of Malda Sadar Hospital. So he is not a truthful witness. 12. P.W. 8, has stated that he put his signature in the inquest report at the hospital. From his evidence (where his address is recorded) it transpires that he resides within the jurisdiction of Bamongola Police Station. But the inquest report speaks that it was done in the morgue of Malda Sadar Hospital. So he is not a truthful witness. 12. P.W. 8, has stated that he put his signature in the inquest report at the hospital. His evidence can be relied on the ground that dead body is kept in the morgue of that hospital. 13. P.W. 9, is declared hostile by the prosecution. In his evidence, he has stated that hearing the hue and cry he went to the house of Bajan Tudu and found the victim, who was killed. He has stated that he was examined by the police. He was cross-examined at length by the prosecution and he had denied the suggestions which were given to him. 14. P.W. 10, had conducted the inquest report. He has proved it. He has also proved the dead body challan by which the body was sent for post mortem examination. In course of cross-examination, he failed to recollect who has informed about the said unnatural death case. 15. P.W. 11, is the Sub-Inspector of Police. He had received the written complaint from the defacto complainant and treated the same as F.I.R. He has put his signature in the formal F.I.R. and endorsed the case to S.I. Kajal Chandra Das. In course of cross-examination, the defence could not gain anything. 16. P.W. 12, is the autopsy surgeon. He had conducted the post mortem examination and had found following injuries: 1. Abrasion ½" x ½" at right cheek. 2. ½" x ¼" at posterior aspect of left elbow (abrasion). 3. Abrasion ½" x ½" at posterior aspect of right elbow. 4. Oblique incised wound 2" x 1" x bone deep at fight side of frontal region scalp. 5. Oblique incised wound measuring 1" x ½" x muscle deep at right parital region of scalp. 6. Oblique incised wound measuring 2" x 1" x bone deep at left parital region of scalp. He also found haemorrhage in cranial cavity. He opined that death was due to the effect of injury as mentioned in the post mortem report. In cross-examination he has specifically stated that injury No. 2 and injury No. 3 i.e. abrasion may be caused by falling from a hard substance. He also found haemorrhage in cranial cavity. He opined that death was due to the effect of injury as mentioned in the post mortem report. In cross-examination he has specifically stated that injury No. 2 and injury No. 3 i.e. abrasion may be caused by falling from a hard substance. He also opined that injuries as reflected, in injury No. 4, 5, and 6 in the post mortem report, may be caused by different weapons. His evidence is creditworthy on the ground as per prosecution case different weapons were used such as lathi, ballam, spear and hasua. He has also given a clarification that there is no specific rule about the nature of injury in respect of a heavy weapon, because it depends upon the striking force and the portion which comes in touch with the surface of the body of a person. On perusal of entire evidence we are of the view that the death was caused due to such injury. 17. Investigating Officer of this case died before the recording of evidence. Naturally the prosecution could not get any help from the Investigating Officer. Be that as it may the investigation speaks that it was done meticulously and simply because Investigating Officer is dead and the defence could not get the opportunity to cross-examine can never be the passport of acquittal. Most of the eye-witnesses in their evidence have stated that they were examined by the Investigating Officer. One person, who had stated that he was not examined by the police, had been declared hostile. Now we are to consider out of 12 persons who are the real assailants and the individual role played by them, because out of 16 accused persons, learned trial court has already acquitted four female accused persons from this case. There is no appeal preferred by the prosecution against those acquitted persons. 18. After considering the evidence P.W. 1, P.W. 2, P.W. 3 we find that names of Badlu Das, Gobinda Das, Shyamal Das, Haripada Das, Rajen Das, Hemanta Das, are the common names. P.W. 2 had mentioned names of 8 accused persons specifically and further stated that others fled away. Be that as it may, in any case involvement of these accused persons cannot be ruled out. Post mortem report speaks that six injuries was there in his person. By which weapon they have individually assaulted the victim is not there. P.W. 2 had mentioned names of 8 accused persons specifically and further stated that others fled away. Be that as it may, in any case involvement of these accused persons cannot be ruled out. Post mortem report speaks that six injuries was there in his person. By which weapon they have individually assaulted the victim is not there. It is also not possible for the eye-witness to see which are the weapons individually used by Badlu, Gobinda, Shyamal, Haripada, Rajen and Hemanta because such incident took place on the spur of a moment. On a meticulous scanning of the Principal witnesses, we find that the convict/appellant Badlu Das, Gobinda Das, Shyamal Das, Haripada Das, Rajen Das and Hemanta Das are the assailants and they took active role in the commission of offence. 19. Now we are to consider the points of law and decisions cited by the rival parties to come to a conclusion if the above named appellants are guilty or not and if they are found guilty, under what section they may be punished. 20. Learned Counsel appearing on behalf of the appellant had relied on the decision reported in AIR 1976 SC 2263 (Lakshmi Singh and Others vs. State of Bihar), AIR 1976 SC 2566 (Musakhan and Others vs. State of Maharashtra), 1975 SCC (Cri) 750 (Puran vs. State of Rajasthan) and contended that factual aspects of those cases are similar to this case and accordingly the ratio laid down in those judgments can be applied, so far as Section 149 of I.P.C. is concerned. As against this learned Counsel appearing on behalf of the state has cited decisions reported in Masalti vs. State of U.P. AIR 1965 (SC) 202 (Larger Bench), Ramachandran vs. State of Kerala, 2011 (11) SCC 257. On perusal of the aforesaid judgments relied on by the respective parties it appears to us that in case of free fight, unless it was shown that a particular accused had caused a particular injury he could not be convicted under Section 149 of I.P.C. We may be permitted to interpret the expression ‘in prosecution of common object.’ The expression as appearing in Section 149 of I.P.C. has to be strictly construed as equivalent to ‘in order to attain the common object.’ It should be immediately connected with the common object by virtue of the nature of the object. If from the facts and circumstances of the case it becomes clear that the appellant was one of the persons, who had injured the victim but there is no evidence as to the nature of the injury caused by him individually in that case conviction under Section 149 of I.P.C. is not sustainable. We may be permitted to make a distinction between Section 34 and Section 149 of I.P.C. Section 34 deals with doing of separate acts similar or diverse the several persons, if all are done in furtherance of common intention each person shall be then liable for the result of them all as if it had been done by himself. There is thin distinction between ‘object’ and ‘intention’ though their object may be common, the intention of several members may differ and they have a certain resemblance and to some extent overlap but Section 149 of I.P.C. can never be at any rate relegate Section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts. Thus there is a clear distinction between the provisions of Sections 34 and 149 I.P.C. The Principal element in Section 34 is the common intention to commit a crime. In such a situation Section 34 provides that each one of them would be liable for that crime. But in regard to Section 149 of I.P.C. there is no such common intention. If the offence is committed by the person or group of persons in the prosecution of the common object of the unlawful assembly and as a member of that assembly he knows which is likely to be committed in prosecution of the common object and in that case every member of the unlawful assembly would be guilty of that offence. Therefore, in our humble view Section 149 of I.P.C. is not applicable in this case, as the factual scenario and involvement of the accused persons in the commission of crime are quite different. 21. Learned Counsel appearing on behalf of the appellant had made a bolstered submission that the defence could not get the opportunity to examine the Investigating Officer. It is true they did not get such opportunity. Nobody can be blamed for that. The said Investigating Officer is no more in the world. 21. Learned Counsel appearing on behalf of the appellant had made a bolstered submission that the defence could not get the opportunity to examine the Investigating Officer. It is true they did not get such opportunity. Nobody can be blamed for that. The said Investigating Officer is no more in the world. But it appears from the charge-sheet that the Investigating Officer had recorded the statement of the witnesses under Section 161 Cr.P.C. collected the inquest report, collected the post mortem report, and thereafter had submitted charge-sheet. Save and except one Principal witness nobody has stated that he was not examined by the Investigating Officer on relevant facts. Therefore, scope of contradiction was not there. Not only that in view of the decision reported in Shayamal Ghosh vs. State of West Bengal, 2012 (7) SCC 646 , even if there is remissness on the part of the Investigating Officer that can never be construed as with a passport of acquittal. When there is ocular manifestation of the crime supported by the medical evidence, minor laches on the part of the Investigating Officer is certainly inconsequential. 22. Referring some part of the evidence learned Counsel appearing on behalf of the appellant argued that P.W. 1 has stated that he deposed before the Court for the first time. According to him this evidence is not acceptable. There is no legal canon that a witness cannot say something which he has not stated to the Investigating Officer. Prosecution has relied on the decision reported in Alamgir vs. State (NCT of Delhi), 2003 (1) SCC 21 . 23. It was argued that there is no independent witness. That theory of discarding interested witnesses evidence has been deprecated for the last 63 years. In Dalip Singh vs. State of Punjab, AIR 1953 SC 364 , our Hon’ble Apex Court held that “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless witness the cause, such an enmity against the accused to wish to implicate him falsely. Ordinarily the close relation would be the last to screen the real culprit and falsely implicate an innocent person.” Doctrine of rejecting the evidence of interested witnesses is dangerous one. If we apply the said theory in all cases, administration of criminal justice would come to a dead stop. Ordinarily the close relation would be the last to screen the real culprit and falsely implicate an innocent person.” Doctrine of rejecting the evidence of interested witnesses is dangerous one. If we apply the said theory in all cases, administration of criminal justice would come to a dead stop. The pertinent thing is evidence has to be sifted with great care and caution. An attempt has to be made to in terms of felicitous metaphor to separate the grain from the chaff, truth from false-hood. Practically this is neither a rule of law nor a rule of prudence but a rule of caution. Minor variations and contradictions must be there when truth is projected through human process. More often than not memory betrays, fades and becomes dimmer due to passage of time. These factors come within the normal discrepancies. It does not corrode the credibility of a case. 24. A witness is not expected to cause a photographic memory and to recall the minutest detail of an incident. It is not as if a video tape is replayed on the mental screen. Besides that, in such cases witness could not anticipate the occurrence which has an element of surprise. That apart, in some occasions a witness is liable to be overawed by the Court atmosphere piercing cross-examination coated with artful advocacy made by counsel. These are all the relevant factors to be kept in mind at the time of appreciation of evidence. 25. It was also agitated by the learned defence Counsel that F.I.R. was lodged after one day from the time of occurrence. At the time of taking the victim towards hospital they have intimated the police regarding the incident. According to the learned defence Counsel obviously that was the first information before the police and that F.I.R. has not been produced. But this argument is not tenable in view of the fact what the information they had given to the police or at all given and what police had done could be stated only by the Investigating Officer, who is no more in the world. After the inquest report and post mortem is done, written complaint was submitted before the police station and on the basis of such written compliant, investigation was initiated. There is no hard and fast rule that the F.I.R. has to be lodged within a stipulated period. After the inquest report and post mortem is done, written complaint was submitted before the police station and on the basis of such written compliant, investigation was initiated. There is no hard and fast rule that the F.I.R. has to be lodged within a stipulated period. Belated F.I.R. is viewed with suspicion because chance of embellishment is there. There are catena of decisions that belated F.I.R. does not ipso facto means a false one. There was a counter blast of this case and that F.I.R. was lodged before initiation of this F.I.R. Rejection on the ground of delay is not the rule of law. 26. Ld. defence Counsel has bolstered up his submission and argued that the accused persons deserve acquittal under the canopy of benefit of doubt. It is very difficult to define the term ‘benefit of doubt.’ It would be an auto-limitation if one ventures to define it. Hon’ble Apex Court held in a decision reported 1990 SCC Criminal 151 that ‘exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punishing an innocent.’ Doubt would be called reasonable if they are free from zest for abstract speculation. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. When there is ocular manifestation of the crime, there is hardly any scope to set the accused scot free under the canopy of benefit of doubt. 27. On proper analysis of the evidence and the background facts projected by the prosecution clearly establishes that the incident took place over hurling of filthy languages upon the wife of the deceased’s brother. The origin of the incident was due to missing of a calf (female cow). Blame vs. counter blame was there regarding missing/stealing of the cow. When the victim came as a saviour, there was a mutual fight and scuffling. Thereafter, the victim was assaulted in the course of a sudden quarrel. Absence of pre-mediation was there. The present accused appellant also lodged the F.I.R. against the defacto complainant and others prior to the death of the victim. The weapon used are the weapons, which are easily available in almost all the houses of Rural Bengal. Spear, hasua, axe are available in that locality. Absence of pre-mediation was there. The present accused appellant also lodged the F.I.R. against the defacto complainant and others prior to the death of the victim. The weapon used are the weapons, which are easily available in almost all the houses of Rural Bengal. Spear, hasua, axe are available in that locality. In such circumstances, this Division Bench should consider the exception Clause (1) read with exception Clause (4) of Section 300 of IPC. A conjoint reading of aforesaid exceptions cover acts done in a sudden fight, absence of pre-meditation, total deprivation of self-control. Provocation and heat of passion sometimes overlaps sober reason and motivates them to do such offence, which they would not otherwise do. When a fight takes place all of a sudden, it implies mutual provocation and blows on each side. In such cases ‘badge of whole blame’ cannot be affixed on one side. There may be instances that one of them starts it but it would not have seen the light of the day if the other side had not aggravated it by his own conduct. In such circumstances, it is difficult to assess the proportionate contribution of rival parties in the commission of offence. Fight is not defined in the penal code but from our ordinary prudence we may be permitted to say that it takes at least two to make a fight. Exception Clause (4) read with of exception Clause (1) can be invoked under the following circumstances i.e. : (1) Sudden fight. (2) Without pre-mediation. (3) Fight must result in death of one party. (4) Total deprivation of self-control. (5) Offence is committed under the heat of passion. 28. On the basis of such analogical deduction we find that here the incident was held under heat of passion. There was no scope of being cooled down to verbal altercation at the very inception. Having regard to the circumstance of its commission, we find it fit to convict the appellants under Section 304 Part-II of IPC in lieu of Section 302 of IPC. Ingredients of Section 149 of I.P.C. i.e. ‘in prosecution of common object’ is missing in this case and so we are not inclined to hold the appellants guilty under Section 149 of I.P.C. as well as under Section 148 of I.P.C. The accused/appellants had been participating in this legal battle nearly more than 17 years. Ingredients of Section 149 of I.P.C. i.e. ‘in prosecution of common object’ is missing in this case and so we are not inclined to hold the appellants guilty under Section 149 of I.P.C. as well as under Section 148 of I.P.C. The accused/appellants had been participating in this legal battle nearly more than 17 years. Considering all these aspects, we think that the appellants namely Badlu Das, Gobinda Das, Shyamal Das, Haripada Das, Rajen Das and Hemanta Das be sentenced to suffer rigorous imprisonment for 7 years each and to fine of Rs.1,000/- each in default to suffer imprisonment for six months for the offence under Section 304 Part-II of I.P.C. In our view this will certainly meet the demand of justice. The convict/ appellants are hereby directed to surrender, within a month from this date, before the learned trial court for serving out their sentences failing which the learned trial court shall take necessary steps for execution of the order of this Court in accordance with law. The period of detention already undergone shall be set off accordingly. Both the sentences shall run concurrently. Jail Authority is hereby directed to release the convicts/appellants after serving out their sentences as mentioned above, if they are not liable to be detained in connection with other cases, if any. Other six appellants are found not guilty and they are acquitted on benefit of doubt. 29. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. I agree – Debasish Kar Gupta and Siddhartha Chattopadhyay, JJ.