JUDGMENT : Ashim Kumar Roy, J. 1. On December 16, 2005 at around 2:00 P.M. the victim Sankar Ghosh along with his mother Mamata Ghosh (PW/1) was returning from field after their day’s work. While they were approaching towards their house, 10 miscreants, namely, Swapan Ghosh, s/o Kalipada Ghosh Mantu Ghosh, s/o Sushanta Ghosh, Hari Ghosh, s/o Meghnath Ghosh, Bapi Ghosh, s/o Srifal Ghosh, Khokhan Ghosh, s/o Sahadeb Ghosh, Shakto Ghosh, s/o Sahadeb Ghosh, Gora Ghosh, s/o Nityan Ghosh, Sona Ghosh, s/o Joydeb Gjhosh, Banamali Ghosh, s/o Shibu Ghosh, Kalipada Ghosh, s/o Late Netai Ghosh, being armed with various deadly weapons, surrounded them from all sides. Then out of previous grudges, they pounced upon them and the victim was, indiscriminately assaulted with sharp cutting weapons and killed. In the meanwhile, being attracted by the alarm for help raised by his mother (PW/1), his brother (PW/5), wife of the victim (PW/4) and many villagers rushed to the spot and the accused persons fled away. 2. Following the aforesaid incident, PW/1, Mamata Ghosh lodged an FIR with the Dhubulia Police Station and a specific case was registered. The police after completion of investigation submitted charge-sheet against all the above FIR named accused, showing Kalipada Ghosh, Swapan Ghosh and Krishna Ghosh @ Bapi absconding. When the Court before which the charge-sheet was submitted filed the case (vide order passed by the learned Chief Judicial Magistrate, Krishnanagar, Nadia on 05.06.2006) committed the case to the Court of Sessions for trial of seven accused persons, who were available before it and that gave rise to Sessions Case No. 36(8)06. Then the case was transferred for trial to the Court of the learned Additional Sessions Judge, 2nd Court, Nadia and Sessions Trial No. I (IX) 06 was registered. In connection with the said trial on September 5, 2006 charge under Sections 302/34 of the Indian Penal Code was framed against the seven accused persons, namely, Sonatan Ghosh, Hari Ghosh, Sakti Ghosh, Gora Ghosh, Khokon Ghosh, Mantu Ghosh and Banamali Ghosh. Subsequently, after his arrest, the accused, Kalipada Ghosh was produced before the trial Court and was tagged in the said trial and against him charge for selfsame offence was framed on November 21, 2006. 3. Subsequently, after his arrest, the accused, Kalipada Ghosh was produced before the trial Court and was tagged in the said trial and against him charge for selfsame offence was framed on November 21, 2006. 3. Finally, in the said trial all the eight accused persons were found guilty for having committed offence punishable under Sections 302/34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each with default clause and it was further directed that if the fine amount be realised then 50% of the sum be remitted to the wife of the deceased, namely, Radha Rani Ghosh. 4. Against their conviction the appellants preferred appeal before this court in two sets being C.R.A. No. 358 of 2007 and C.R.A. No. 373 of 2007. 5. The two absconding accused, Krishna Ghosh @ Bapi and Swapan Ghosh were also arrested shortly thereafter and their case was also committed to the Court of Sessions and after transfer for trial and disposal, the same gave rise to Sessions Trial Case No. II (July) 07. 6. In the said trial also both the accused persons were found guilty for having committed offence punishable under Sections 302/34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- with default clause. 7. It be noted that in the second trial all the witnesses were examined and cross-examined de novo except two formal witnesses, namely, PW/8, Sirish Pal, who removed the dead body to the morgue and PW/12, Sanjay Bhattacharjee, who brought the G.D. Entry Book before the Trial Court for its admission as documentary evidence. Both of them were police constables attached to the concerned police station at the material time. 8. All the three appeals were taken up for hearing together since all were arising out of the selfsame incident. 9. Mr. Sandipan Ganguly appeared in all the three appeals except for the appellant, Gora Ghosh in C.R.A. No. 373 of 2007, who was represented by Srimanta Kabir. Whereas in all three appeals State was represented by Ms. Sreyashee Biswas. 10. The case of the prosecution that the victim suffered a homicidal death due to the ante mortem injuries found in his person, per, autopsy surgeon (PW/7) Dr. Whereas in all three appeals State was represented by Ms. Sreyashee Biswas. 10. The case of the prosecution that the victim suffered a homicidal death due to the ante mortem injuries found in his person, per, autopsy surgeon (PW/7) Dr. Ajit Kumar Biswas (PW/9 in the second trial) has not been disputed from the side of the appellants either before the Trial Court or before us. 11. We have also on our own gone through the evidence of the Autopsy Surgeon, Dr. Ajit Biswas and the post mortem report Exbt. 4 and considering the nature and site of the injuries found by the Autopsy Surgeon in the corpse, we have no reason to take a different stand. 12. Before, considering this appeal on merits, it be noted that earlier a plea of juvenility was raised by the appellant Gora Ghosh and on January 15, 2015 his case was remanded back to the Trial Court for ascertaining his age on the date of the incident. The enquiry report has been received and we find that the Court has come to a conclusion that on the date of the incident the appellant, Gora Ghosh was below the age of 18 years and therefore, a juvenile in conflict with law. The finding of the Trial Court has not been disputed by the counsel for the State, Ms. Sreyashee Biswas, and on our appreciation, such findings deserved no interference. 13. On perusal of the evidence on records, we find that the case of the prosecution rest essentially on the ocular account of assault. The key witnesses were, Mamata Ghosh and Milan Ghosh, mother and brother of the deceased Sankar Ghosh, they were examined as PW/1 and PW/5 in the first trial and in the next trial as PW/1 and PW/3 respectively and partly on the evidence of the wife of the deceased Radharani Ghosh examined as PW/4 at the first trial and as PW/2 in the second trial of two other convicts, who were subsequently arrested. 14. 14. The learned counsel for the appellants vehemently thrashed credibility of the PW/1 Mamata Ghosh and submitted the said witness in her evidence claimed, when on being assaulted by the accused persons, her son victim Sankar fell down on the ground, she embraced him and her wearing apparels were smeared with blood and as she tried to resist the miscreants she was pushed by them and felling down on the field, she sustained injuries but neither her blood stained wearing apparels were seized and sent to FSL nor her injury report was produced during the trial and exhibited. According to him these infirmities clearly indicate that she was not present at the spot at the time of occurrence. It was then contended according to the said witness (PW/1), the place of occurrence was surrounded by many houses and being attracted by the alarm raised by her, many villagers rushed to the spot but neither any inhabitant nor any villager was examined during the trial, except the interested witnesses, the mother, brother and wife of the victim. It was his further contention, the appellant’s house was, a long way off from the place of occurrence and therefore it was never possible, for her, to be attracted by such alarm raised by Radha Rani Ghosh (PW/4), who at that time was at their home and thus her (PW/4) evidence that on being attracted by the alarm raised by her mother-in-law (PW/1), while she (PW/4) was rushing towards the place of occurrence she found the appellants fleeing away, was pure embellishment. According to him, equally Milan Ghosh (PW/5) the brother of the victim was completely untrustworthy. He vehemently contended, it was against all normal human conduct and more particularly, of a blood relation of the victim, here his brother by full blood, to silently watch assault on his brother by the miscreants, without doing anything to save his life. He further submitted at the time of inquest all the three eye witnesses to the occurrence PW/1, PW/4 and PW/5 were present but only they named six appellants, viz., Swapan Ghosh, Mantu Ghosh, Gora Ghosh, Khokhan Ghosh, Shakti Ghosh and Sona Ghosh and not the rest four. He added that PW/1 in the FIR never mentioned about the presence of PW/4 and PW/5 at the time of occurrence and she was contradicted in this regard during her cross-examination. He added that PW/1 in the FIR never mentioned about the presence of PW/4 and PW/5 at the time of occurrence and she was contradicted in this regard during her cross-examination. He then vehemently urged this shows none of the witnesses was present, when the victim was killed. He further pointed out referring to the evidence of PW/1 that the victim, who was an accused in a case of murder of one Mantu Ghosh of their village, might have been killed by his opponent. He lastly contended that the ocular account of assault was completely belied by the medical evidence. He submitted according to both PW/1 and PW/5 at the time of incident the victim was surrounded by 10 miscreants armed with various deadly weapons and was indiscriminately assaulted but during post mortem all the injuries were found on a particular portion of the dead body and no offending weapon was seized. 15. On the other hand, the learned counsel for the State vehemently opposed this appeal. She submitted that the prosecution case based on the evidence of eye witnesses and those eye witnesses being the close relations of the victim, have no reasons to screen the real offenders and falsely implicate the appellant for killing their dearest and nearest one. She further submitted that PW/1 and PW/5 both vividly described how the victim was assaulted by the appellants and their evidence could not be shaken during their extensive cross-examination. She submitted, merely because the PW/5 did not intervene, that is no ground to disbelieve him, when it was his case, out of fear he backed out. She further submitted non-seizure of blood stained wearing apparels of the PW/1 is a lapse on the part of the investigating officer of the case but for that the prosecution case cannot be disbelieved. She contended that it was the evidence of the eye witnesses that the victim was surrounded from all sides and was assaulted but none of the witnesses claimed that each one of them dealt blow and no blow was missed. She contended that soon after the incident the police arrived at the spot and to the police the mother of the victim PW/1 lodged the FIR, where she disclosed the participation of each of the appellants. According to her no case is made out which may justify this court to interfere with the order of conviction and sentence. 16. She contended that soon after the incident the police arrived at the spot and to the police the mother of the victim PW/1 lodged the FIR, where she disclosed the participation of each of the appellants. According to her no case is made out which may justify this court to interfere with the order of conviction and sentence. 16. Heard the learned counsel appearing on behalf of the parties. Considered their respective submissions. Perused the evidence on record. 17. In our considered opinion if the blood stained wearing apparels of Mamata Ghosh (PW/1) would have been seized that would certainly strengthen the prosecution case and non-seizure is at best, certainly a lapse on the part of the Investigating Officer of the case but that by itself, would not justify us either to disbelieve the PW/1 or to discard the prosecution case and to grant an acquittal to the appellant. Law in this regard is long settled and for us it would be enough to refer a decision of a three Judges’ bench in the case of Hema v. State, through Inspector of Police, Madras, (2013) 3 SCR 1. 18. Similarly, non-production of injury report of Mamata Ghosh (PW/1) cannot have any adverse impact on the prosecution case. On a close scrutiny of the evidence of PW/1 in the first trial we find, she only claimed that she was pushed by the accused persons, while tried to guard her son. She never claimed due to such push she fell on the ground and sustained injuries. It is pertinent to note the defence has not taken any contradiction with reference to her case in the FIR. It is also long settled by catena of decisions of the Apex Court that FIR is not a substantive piece of evidence and can be used only to contradict or corroborate the maker thereof. In this regard, it is to be noted in the second trial during her cross-examination by the defence she disclosed due to her fall on the ground being pushed by the accused persons she sustained no injuries. In her further cross-examination, when she was confronted with reference to the FIR, she admitted that she did not disclose that she suffered no injuries, in the FIR. In fact, she was never confronted by the defence that in the FIR she disclosed that she was injured by fall. In her further cross-examination, when she was confronted with reference to the FIR, she admitted that she did not disclose that she suffered no injuries, in the FIR. In fact, she was never confronted by the defence that in the FIR she disclosed that she was injured by fall. Therefore, when it is not the case of the prosecution she sustained any injuries in the incident, non-production of medical report is of no consequences and can safely be ignored. 19. A tremendous effort has been made by the learned counsel of the appellant to crash the presence of Milan Ghosh (PW/5 in the first trial and PW/3 in the next), the brother of the victim at the scene of occurrence. It was his contention if he was actually present, why then he did not intervene to resist the appellants and save the life of his brother. Not only that the witness in his evidence disclosed since the appellants were armed with sharp cutting weapons, out of fear he could not do anything, in our opinion, in the circumstances when the victim was attacked by 10 miscreants all armed with deadly weapons, it cannot be said to be unnatural, on the part of the unarmed PW/5 to intervene. Furthermore, there is no set rule as to how a person will react in such a situation and it entirely depends on the extent and nature of fear generated in the mind of such person and his courage. Merely because PW/5 did not act in the manner, as according to the learned advocate of the appellant would have been natural would not per se be a ground to disbelieve him. The presence of both the PW/1 and the PW/4 was supported by two independent witnesses, covillagers Dilip Ghosh and Hridoy Ghosh (examined as PW/2 and PW/6 in the first trial and as PW/6 and PW/4 in the next trial), who arrived at the spot being attracted by the alarm raised by the PW/1. It appears from the evidence on record that within half-an-hour police arrived at the spot, when a written complaint was handed over to them by the PW/1 and in the said complaint, she disclosed the entire incident, time, place and the assailants by whom her son was assaulted and her presence. It appears from the evidence on record that within half-an-hour police arrived at the spot, when a written complaint was handed over to them by the PW/1 and in the said complaint, she disclosed the entire incident, time, place and the assailants by whom her son was assaulted and her presence. Not only police was informed and FIR was lodged with utter promptitude but the broad picture and features of the facts concerning the crime was presented in the FIR. Both PW/1 and PW/4 were cross-examined at length but nothing could be elicited that may shatter their credibility nor could have been contradicted with reference to their statement made to the police during investigation on material particulars. 20. Now, coming to the evidence of Radharani Pal, the wife of the deceased (examined in the first trial as PW/4 and in the next as PW/2), we find at the time of occurrence she was at their house and according to her being attracted by the hue and cry of her mother-in-law, when she was rushing towards the field from where such cry was coming, she found 10 persons were fleeing away from the spot and able to recognise 4 of the appellants, Swapan Ghosh, Khokon Ghosh, Mantu Ghosh and Kalipada Ghosh. Defence never challenged her such evidence, nor even suggested that from her house it was not possible to be attracted by any hue and cry if raised from the place of occurrence even at the top of the voice. Defence has also not been able to get her presence disputed by two independent witnesses, PW/2 and PW/6. It is pertinent to note that PW/4 although claimed to have seen 10 miscreants to flee away from the place of occurrence but claimed to have recognised only 4 of them, which certainly creates confidence in our minds about her truthfulness. If she was planted by the prosecution then in that case nothing precluded to get all the 10 appellants named by her. It is true the presence of both Radharani Ghosh (PW/4) and Milan Ghosh (PW/5) was not mentioned in the First Information Report and on that score PW/1 the maker of the FIR was contradicted by the defence. If she was planted by the prosecution then in that case nothing precluded to get all the 10 appellants named by her. It is true the presence of both Radharani Ghosh (PW/4) and Milan Ghosh (PW/5) was not mentioned in the First Information Report and on that score PW/1 the maker of the FIR was contradicted by the defence. However, omission to mention the details of the witnesses present or soon arrived at the spot at the scene of occurrence by itself is no ground to doubt their evidence and their credibility is not lost. Such omission undoubtedly has some relevance and the court is to see whether such omission touches the root of the prosecution case. [Bhagaban Singh and Others v. State of M.P. JT 2002 (3) SC 387; Chittarlal v. State of Rajasthan, 2003 AIR SCW 3466; State of Madhya Pradesh v. Mansingh and Others, (2003) 6 Supreme 202 ; State of Madhya Pradesh v. Dharkole, AIR 2005 SC 44 ; Narpal Singh v. State of Haryana, AIR 1977 SC 1066 ]. 21. In the case at hand, the maker of the FIR, Mamata Ghosh (PW/1), was the mother of the victim Shankar. It is a case, where just half an hour back before the lodging of the FIR, her son was brutally killed in her presence. In such background while disclosing the broad pictures and features of the crime in the FIR, any omission to refer the name of the witnesses and also to mention on being pushed by the appellants she fell on the ground and sustained injuries, is of no consequence, more particularly when both the eye-witnesses, the maker of the FIR (PW/1) and her son (PW/5) are found to be otherwise credible on being tested in the touchstone of rigorous cross-examination. 22. The learned counsel for the appellant pointed out that in the inquest report only the name of the six appellants were mentioned and it was submitted that when inquest was held, the PW/1, PW/4 and PW/5 were present and PW/5 scribed as a witness and that creates doubt as to the authenticity of involvement of the remaining four. We, however, found the inquest was held by Ashis Kumar Dutta, PW/10 in the first trial and PW/8 in the next. We, however, found the inquest was held by Ashis Kumar Dutta, PW/10 in the first trial and PW/8 in the next. Although from him it was emerged that at the time of inquest PW/1, PW/4 and PW/5 were present but the name of Krishna Ghosh and Kalipada Ghosh was not mentioned but before examination of the Investigating Officer of the case the inquest witness or the witness present at the time of inquest was not confronted with reference to that. The PW/1, PW/4 and PW/5 were no less than the most closed relations of the victim, who were his mother, brother and wife and therefore, it is beyond our comprehension why they should falsely implicate the innocent person screening the real offenders. Merely because they are the relations of the victim that cannot be a ground to reject their evidence as interested witnesses, when defence has not been able to make out any case as to how they were interested. If the relations intend to get the culprits who are liable for killing their close relations, punished, they cannot be said to be interested witnesses. So far as, the question of non-examination of the persons residing in and around the place of occurrence or arrived at the spot being attracted by the alarm raised by the PW/1, we must say to prove its case it is not necessary for the prosecution to multiply the number of witnesses. It is not the quantity but the quality of the evidence that only counts. Moreover, on the cross-examination by the defence it came out that the victim was an accused in the case of murder of one Mantu Ghosh of the same village. Therefore, in the above situation it would be difficult for the Investigating Agency to get further witnesses. 23. Much has been argued about the alleged inconsistency between the ocular account of assault and medical evidence. This is well settled ordinarily, the value of medical evidence is only corroborative. It only proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. It only proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. [Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174 and Rangnath Sham Rao Dhar v. State of Maharashtra, (2009) 4 SCC 33 ]. 24. It further be noted the Apex Court has consistently taken the view unless the oral evidence is totally irreconcilable with the medical evidence it has the primacy. [State of U.P. v. Hari Chand, (2009) 13 SCC 542 and Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 ]. 25. According to the eye-witnesses to the occurrence the victim was encircled by total 10 miscreants and was attacked and assaulted. It is not their evidence that each one of them dealt blows. In a situation like this it is quite possible some of the blows might have missed the targets. The post mortem doctor was not however, cross-examined on this score. Now, on considering the ocular account of assault with the medical evidence it cannot be said that the ocular account is totally irreconcilable with the medical evidence. 26. Having regard to the fact the case of the prosecution is based on the evidence of the eye-witnesses to the occurrence and they being the close relations of the victim must not have any motive to screen the real offender and when the evidence of those eye-witnesses could not be shaken in their lengthy cross-examination coupled with the fact that FIR was lodged within a very short time naming the appellants as the assailants of the victim and there was no major contradictions on materials and vital facts of the prosecution case, in our opinion, the trial court was fully justified to convict the appellants. 27. 27. In the result the order of conviction and sentence imposed against, Kalipada Ghosh, Banamali Ghosh, Sanatan Ghosh and Hari Ghosh (appellants in CRA No. 358 of 2007), Srikrishna Ghosh @ Bapi and Swapan Ghosh (appellants in CRA No. 559 of 2011) and Khokhan Ghosh, Sakti Ghosh, Mantu Ghosh (appellants in CRA No. 373 of 2007), except Gora Ghosh, who is also one of the appellants in CRA No. 373 of 2007, stands upheld and their appeals stand dismissed. 28. So far as the appellant Gora Ghosh in CRA No. 373 of 2007 is concerned, he having been found to be below the age of 18 years on the date of occurrence in an enquiry held by the court below pursuant to the order passed by a co-ordinate bench of this court, he is a juvenile in conflict with law in terms of the provisions of section 2(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and therefore even if he is found to be guilty of committing any offence, neither he can be imprisoned for any term or committed to prison in default of payment of fine as provided in section 16 of the said Act. Accordingly, the sentence imposed against him is quashed. 29. This court has been informed that the appellant Gora Ghosh was detained in jail for a period which is more than the maximum period for which a “juvenile in conflict with law” may be confined in a special home. Accordingly it is directed if he is still in custody and not wanted in connection with any other case, if instituted after he crossed the age of 18 years, he shall at once be released from the jail. His appeal stands allowed. 30. Office is directed to send down the lower court record at once along with a copy of the judgment. Urgent Photostat certified copy of this judgment be given to the parties, if applied for, as early as possible. Appeal partly allowed. I agree – Ishan Chandra Das, J.