JUDGMENT : 1. The instant appeal has been preferred by the appellants against the judgment and order dated 11th July, 2001 and 12th July, 2007 passed by the learned Additional Sessions Judge, 6th Court, Alipore, South 24-Parganas in Sessions Trial no. 2(2) of 1999, convicting the appellants for commission of offence under Section 304 Part-11/34 of the Indian Penal Code and sentencing the appellant nos. 1 to 4 to suffer rigorous imprisonment for 6 years and to pay a fine of Rs. 1,000/- each; in default simple imprisonment for one month and considering the age of the appellant no.5, he was sentenced to suffer rigorous imprisonment for 4 years and to pay a fine of Rs. 1000/-; in default simple imprisonment for one month. 2. The prosecution case in brief is that on 10th May, 1996 at 9.15 hours one Nanda Dulal Halder, son of late Haran Chandra Halder of Chaitanyapur Police Station lodged a written complaint alleging that on 9th May, 1996 at 17.30 hours out of some previous grudge Panchu Halder, Monoranjan Halder, Bikash Halder, Pankaj Halder, Tarun Bhowmick and some one or two others were assembled in front of the house of the complainant with iron rod, lathi, brick bats etc. and started abusing them saying that Dulal Halder deposed against them before the Court and in favour of Prafulla Kansari. Their elder brother Dulal Halder told them that they did not at all make their deposition against them. A hot altercation took place over this issue. 3. In the meanwhile, they jointly with lathi, rod etc. started to beat his elder brother Dulal. When Dulal fell down on the ground, another brother Sahadeb Halder came in rescue of him and they also assaulted him badly on his head and body. Seeing the arrival of the neighbours they fled away. The complainant and his neighbour removed his unconscious elder brother Dulal to Nimpith Hospital and seriously injured Sahadeb Halder to Mathurapur Rural Hospital for treatment. The Medical Officer of Nimpith Hospital, P.S. Joynagar attended his elder brother Dulal and declared him dead. The Medical Officer of Mathurapur Rural Hospital transferred his another brother Sahadeb Halder to S.D. Hospital, Diamond Harbour and seeing his serious condition the Medical Officer of S.D. Hospital, Diamond Harbour also transferred him to M.R. Bangur Hospital, where he was under treatment. 4. The Medical Officer of Mathurapur Rural Hospital transferred his another brother Sahadeb Halder to S.D. Hospital, Diamond Harbour and seeing his serious condition the Medical Officer of S.D. Hospital, Diamond Harbour also transferred him to M.R. Bangur Hospital, where he was under treatment. 4. On the basis of the written complaint, a criminal case, being G.R. Case no. 490 of 1996 arising out of Mandirbazar Police Station Case no. 27 dated 10th May, 1996 was started under Sections 147/148/149/326/304/506 of the Indian Penal Code against the accused persons and charges were framed against the accused persons under Sections 302/323/34 of the Indian Penal Code. The said charges were read over and explained to the accused persons and they pleaded not guilty and claimed to be tried. 5. Mr. Milan Mukherjee, learned senior counsel appearing on behalf of the appellants submitted that the incident took place on 9th May, 1996 at 17.30 hours and on the next day at about 9.15 hours First Information Report was lodged, but the delay in lodging FIR was not properly explained and the same do not seem to have received by the Court before 17th May, 1996. He further submitted that from the evidence of prosecution witnesses it appears that when the victim was taken to Nimpath Rural Hospital at Joynagar, where he was pronounced as brought dead, it is also evident that one private doctor prescribed one injection to the victim. Therefore, it can be presumed that the victim Dulal was alive at the time of incident. He also argued that the inquest report, which was necessary for unnatural death, was not brought on record, though the UD case was registered at Joynagar Police Station. The inquest report was part of the UD case, but it was not exhibited. He further submitted that the incident occurred on the public place in front of many people, but no independent witness was examined by the prosecution to prove the alleged incident. The learned Court below failed to consider in appreciating the prosecution evidence of P.W. 12, who stated that he did not seize any blood stained cloths and did not prepare any sketch map at the time of investigation. The learned Court below failed to consider that Sahadeb Halder, brother of the victim, who was also injured, was not examined by the Investigating Officer and the medical documents regarding his treatment were neither seized nor exhibited. The learned Court below failed to consider that Sahadeb Halder, brother of the victim, who was also injured, was not examined by the Investigating Officer and the medical documents regarding his treatment were neither seized nor exhibited. Even the doctors, who examined the injured victim Sahadeb Halder, were not examined. 6. In support of his submissions, Mr. Mukherjee has relied on decisions of the Hon’ble Supreme Court in the case of Vigender – vs State of Delhi reported in (1997) 6 SCC 171 and Mohinder Singh –vs- State reported in AIR 1953 SC 415 , which speak about the reason for which the trial Judge ought not to have allowed the prosecution to prove the post-mortem report, is that it was not the original report but only a carbon copy thereof and that too, not certified. Under Section 64 of the Evidence Act documents must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the port mortem report did not come within the purview of any of the clauses of Section 65, it was not admissible on this score also. He has also relied on a decision of this Hon’ble Court in the case of Rebati Baidya & Ors. –vs- The State of West Bengal reported in 2014 C.Cr.L.R. (Cal) 171, regarding delay in sending F.I.R. and non-production of inquest report fails the prosecution case. 7. Mr. Manjit Singh, learned advocate for the appellant no.1 support the submissions of Mr. Mukherjee and submits that if one sees the post mortem report, it can be seen that no specific name was stated in U.D. case, as the post mortem examination took place on 11th May, 1996 at about 2.30 p.m., i.e. after 45 hours of death and as the body had already started decomposing, the finding of external injury was medically not possible. 8. Learned counsel for the appellants prayed that the appeal may be allowed by setting aside the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 6th Court, Alipore, South 24-Parganas. 9. Learned advocate for the State submitted that from the evidence of witnesses it appears that a number of miscreants assaulted with lathi, iron rod, brickbat and blows fell at random on various parts of the deceased Dulal and injured Sahadeb. 9. Learned advocate for the State submitted that from the evidence of witnesses it appears that a number of miscreants assaulted with lathi, iron rod, brickbat and blows fell at random on various parts of the deceased Dulal and injured Sahadeb. The post mortem report shows the injuries comprised of abrasions, bruises, fracture and one lacerated injury were almost all over the body of the deceased Dulal. He further submitted that the learned Judge has rightly passed the order of conviction under Section 304 Part II/34 of the Indian Penal Code because the assaults were serious in nature and the accused persons had knowledge that the assaults might cause death. The accused persons are responsible for the murder of Dulal in furtherance of their common intention. Therefore, he prayed for dismissal of the appeal by upholding the sentence imposed upon the appellants. 10. Learned advocate for the de facto complainant prayed to be heard. Such prayer was allowed. Learned advocate submitted that the prosecution secured the conviction of the appellants by substantially proving the guilt of the accused persons beyond all reasonable doubts on the basis of the version of the eye witnesses, namely P.W.1, P.W.3, P.W.4, P.W.5, P.W.7 and P.W.11 along with the documentary evidence being the post mortem report, which had duly been proved by P.W.9 in course of trial. From the evidence of P.W.9 it is evident that the death of the victim had occurred due to serious injuries noted by him. He further submitted that the inquest report was not a substantive piece of evidence and non-production of the same could not be treated as a fatal blow to the prosecution case. The appellants could not raise any question regarding genuineness of the post mortem report at the time of hearing of the appeal on the ground that at the time of trial, carbon copy of the post mortem report was exhibited, as no question was raised regarding genuineness by the defence in course of trial. He has also submitted that the Investigating Officer had never made any endeavour to seize the medical documents pertaining to treatment of P.W.7. It is evident that though P.W.11 wanted to show the police the blood stained apparels in their house, but the police did not want to see the same. From cross-examination of P.W.12 it appears that he did not ask for any blood stained apparels. It is evident that though P.W.11 wanted to show the police the blood stained apparels in their house, but the police did not want to see the same. From cross-examination of P.W.12 it appears that he did not ask for any blood stained apparels. It is settled principle of law that defective investigation cannot be a ground for washing away the unimpeachable version of the eyewitnesses and other corroborative evidence tendered by the prosecution in course of trial. Lastly, he has submitted that the appellants had a common intention to cause death of the victim by causing bodily injuries knowing that those injuries would cause death of Dulal Halder and therefore, the learned Judge has rightly convicted the appellants under Sections 304 Part II/34 of the Indian Penal Code. 11. Heard learned advocates for the parties and perused the impugned judgment. 12. The prosecution examined as many as 13 witnesses to prove its case. 13. P.W.1, Nanda Dulal Halder, brother of the victim Dulal Halder deposed in his evidence that on 9th May, 1996 at about 5.30 p.m., when he was inside his house, his elder brother Dulal Halder went to open their grocery shop situated adjoining to their house. Thereafter, he found some people abusing. He instructed his wife to see what was happening outside. He found from a distance that the accused Panchu Halder, Monoranjan Halder, Bikash Halder, Pankaj Halder and Tarun Bhowmick, whom he identified on dock, were assaulting his elder brother Dulal with lathi, iron rod, wooden bar and brick bats. He rushed to rescue of his elder brother when his wife intervened and she proceeded to rescue his elder brother, but the accused Panchu pushed her down. His neighbours Tapan Bhanja and Reba Bhanja came to rescue of his elder brother and tried to prevent the accused persons from assaulting him. He further stated that when his younger brother Sahadeb Halder was returning home, the accused Bikash Halder threw a brickbat, which hit on his head. He fell unconscious and Bikash then snatched the wooden bar from the accused Panchu and attempted to assault but Tapan Bhanja prevented him from assaulting. Dulal was found lying unconscious and Sahadeb was bleeding from his head. The incident took place in presence of Bimal Baidya, Bantul Kayal, Tapan Bhanja and others. They took Dulal and Sahadeb to Nimpith hospital and Mathurapur hospital respectively. Dulal was found lying unconscious and Sahadeb was bleeding from his head. The incident took place in presence of Bimal Baidya, Bantul Kayal, Tapan Bhanja and others. They took Dulal and Sahadeb to Nimpith hospital and Mathurapur hospital respectively. At about 9/9.30 p.m. he visited Nimpith hospital when Dulal was declared dead. He then went to Joynagar Police Station and he was advised to inform the matter to Mandirbazar Police Station. He stayed at the house of his cousin brother at Joynagar for that night. On the following morning he had been to Mandirbazar P.S. and lodged a written complaint, which was marked as Ext.1. 14. During cross-examination P.W.1 stated that he found Bikash first hitting Dulal with wooden bar and he fell by the side of the wall of the house of Bhanjas. Then all the accused persons assaulted Dulal for about one minute. The accused Panchu had a wooden bar, the accused Tarun possessed iron rod, the accused Monoranjan had a bamboo stick in his hand and the accused Pankaj had a brickbat. P.W.1 stated that all the accused persons assaulted all over the body of Dulal, but he could not give the details of the exact positions on which Dulal was assaulted. 15. P.W. 2 was declared as hostile by the prosecution. 16. P.W.3, Batul Chandra Kayal deposed that on the relevant date when he was proceeding towards the shop of Dulal with a view to purchasing bidi, he found the accused persons whom he identified on dock, were assaulting Dulal Halder with iron rod, lathi, khil and brickbat. Dulal fell unconscious on the ground. The accused Pankaj threw a brickbat, which hit on his head and he suffered bleeding injury. 17. During cross-examination P.W.3 stated that Dulal was being assaulted by the accused persons standing in front of him. 18. P.W.4, Bharati Halder deposed that she heard from inside the house that the accused Pankaj Halder whom she identified on dock saying to his elder brother-in-law as to why he gave evidence in favour of Prafulla Kansari. When she came out of the house, the accused Panchu Halder, Monoranjan Halder, Bikash Halder and Tarun Bhowmick dragged away her vasur, Dulal from their entrance gate. Her husband tried to rush to the place but she prevented him. When she came out of the house, the accused Panchu Halder, Monoranjan Halder, Bikash Halder and Tarun Bhowmick dragged away her vasur, Dulal from their entrance gate. Her husband tried to rush to the place but she prevented him. She also deposed that the accused persons assaulted Dulal by lathi, wooden bar, iron rod and brickbat and Dulal fell unconscious. At that time, her brother-in-law Sahadeb Halder appeared and Panchu hit him with a piece of brick on his head for which he suffered bleeding injury. Thereafter, in presence of Bantul Kayal, Bimal Baidya, Tapan Bhanja, Reba Bhanja and Balai Halder, Dulal was removed to Nimpith hospital being accompanied by his wife, son, sister and other neighbours and her husband and other neighbours removed Sahadeb to Nimpith hospital and subsequently, she came to know that Dulal died. 19. P.W.5 also corroborated the evidence of P.W. 1, 3 and 4 regarding assault on Dulal and Sahadeb. P.W. 5 deposed that all the accused persons being armed with lathi, khil, iron rod assaulted Dulal at random while accusing him as to why he had given evidence in favour of Prafulla Kansari. They also assaulted Sahadeb who tried to rescue Dulal. 20. P.W.6, Balai Halder also corroborated the evidence of P.W.1, 3, 4 and 5 regarding date, place and time of occurrence. He stated that the accused persons assaulted Dulal with the help of iron rod, lathi, wooden bar, piece of brick for which he sustained bleeding injury and fell unconscious. Sahadeb was also injured and the villagers took Dulal to Nimpith hospital and they took Sahadeb to Mathurapur hospital. 21. P.W.7, Sahadeb Halder deposed in his evidence that on 9th May, 1996 at about 5.30 p.m. he was returning home with cycle van. He noticed some disturbance in front of his house and he rushed to the place of occurrence, where he found that the accused persons were assaulting his elder brother, Dulal with lathi, khil and iron rod. As he reached within 2&1/2 cubits from his elder brother, the accused Bikash Halder hurled one piece of brick which hit on his head. He fell unconscious and regained senses 8/10 days thereafter when he found himself lying in P.G. hospital. He heard that his elder brother Dulal had expired. 22. As he reached within 2&1/2 cubits from his elder brother, the accused Bikash Halder hurled one piece of brick which hit on his head. He fell unconscious and regained senses 8/10 days thereafter when he found himself lying in P.G. hospital. He heard that his elder brother Dulal had expired. 22. P.W.8, Medical Officer of Nimpith hospital, who examined Dulal Halder and found several injuries, i.e. there was swelling and purring all over the left half of the chest particularly prominent on the lower part; there are multiple abrasions on the lower part of lateral chest wall; there was small abrasion over the right elbow joint. His report was marked as ext.2. 23. P.W.9, Medical Officer on Training Reserve attached to Forensic and State Medicine, Department Medical College, Calcutta stated that on 11th May, 1996 he held post mortem examination over the dead body of Dulal Chandra Halder and found the following injuries: 1. One abrasion 1&1/2” x 1” over back of right elbow joint. 2. One abrasion 2”x1” over postaro lateral aspect of left elbow joint. 3. One abrasion 1”x1/2” over back of left forearm 2” below the left elbow joint. 4. One bruise 6”x4” over left side of the back ½” left to midline and 1” below the inferior angle of left scapula. 5. One bruise 5”x3” in muscle over left side of the front of chest 1” left to midline and 1&1/2” below the medial end of left clavicle. 6. Cominuted fracture of second to 8th ribs on left side over mid clavicular line. 7. One lacerated injury of spleen 2”x1/2” into spnenic tissue over lateral surface of spleen. Abdominal cavity contained 200 m.l. of clotted and liquid blood. 24. According to him, the death of the victim was caused due to the effect of injuries as described above antemortem in nature. His report was marked as ext.3. 25. P.W.10, Assistant Sub-Inspector of Mandirbazar Police Station deposed that he drew up the F.I.R. on the basis of written complaint lodged by Nanda Dulal Halder. He made his endorsement on the written complaint, which was marked as ext.1/1. 26. P.W.11 also deposed that on the relevant date and time the accused persons assaulted Dulal and his brother Sahadeb. He tried to rescue them but could not succeed. He took Sahadeb to Mathurapur hospital but for proper treatment Sahadeb was sent to Diamond Harbour hospital. He made his endorsement on the written complaint, which was marked as ext.1/1. 26. P.W.11 also deposed that on the relevant date and time the accused persons assaulted Dulal and his brother Sahadeb. He tried to rescue them but could not succeed. He took Sahadeb to Mathurapur hospital but for proper treatment Sahadeb was sent to Diamond Harbour hospital. Thereafter, from Diamond Harbour hospital he took Sahadeb to Bhangore hospital. He identified all the accused persons on dock. 27. P.W.12, Bikash Sardar, Sub-Inspector of Police stated in his evidence that on 10th May, 1996 he remained posted at Mandirbazar Police Station. The then Officer-in-Charge of Mandirbazar Police Station endorsed him the case no. 27 dated 10th May, 1996 under section 147/148/149/326/304/506 of the Indian Penal Code for investigation. During investigation he visited the place of occurrence and he held raid in the houses of the accused persons. He examined the witnesses under section 161 of the Code of Criminal Procedure. 28. P.W.13, Sub-Inspector of Police, at present posted at Behala Police Station stated that on 10th May, 1996 he remained in Mandirbazar Police Station as Officer-in-Charge and started investigation. During investigation he arrested the accused Monoranjan Halder and recorded the statement of Sahadeb Halder and collected the post mortem report of Dulal Chandra Halder. He submitted charge sheet against the accused persons. 29. On scrutiny of the evidence on record I find that the accused/appellants assaulted with lathi, wooden bar, iron rod, brickbat and blows fell at random on various parts of the body of the deceased Dulal. The evidence discloses the injuries comprised of abrasions, bruises, fracture etc. The plea of defence was that the fatal blow was due to an accidental fall on the edge of brick built road or on the ground after stumbling against the root of a tree. Such serious injuries negate the plea of accidental fall. Fracture of so many ribs by an accidental fall is absurd. I find that the presence of all the appellants being armed with lathi and other weapons has been consistently deposed by the eye witnesses, as I find it difficult to ignore the presence of P.W.1, P.W.3 and P.W.4 at the place of occurrence. That apart, the evidence of eyewitnesses, P.W.5 and P.W.6 is clear and convincing and is also supported by the medical evidence of P.W.8 and P.W.9. That apart, the evidence of eyewitnesses, P.W.5 and P.W.6 is clear and convincing and is also supported by the medical evidence of P.W.8 and P.W.9. The evidence of the above witnesses remained unshaken in cross-examination and there is no conflict between ocular version and medical evidence, as aforesaid in the instant case. 30. In view of the aforesaid facts, reference to Vigender –vs- State of Delhi (supra) and Mohinder Singh –vs- State (supra) is not apposite. It was held in the said judgments that under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the post mortem report being a public document and the carbon copy of which is proved by P.W.9, the post mortem doctor, it falls within the purview of Section 65 of the Evidence Act and was admissible on this score alone. The attending facts and circumstances of this case including the injuries found by the doctor P.W.8 corroborate the manner and course which led to the death of the victim Dulal. In the case of Rebati Baidya (supra) acquittal was recorded for faulty investigation, but in this case there is no conflict between ocular version and medical evidence unlike the cited decision. Hence, the said authority is distinguishable on facts from the instant case. 31. Accordingly, I uphold the conviction and sentence imposed on the appellants. The appeal is accordingly dismissed. 32. In the event, the appellants are not in custody, their bail bonds shall be cancelled and they shall be taken into custody to serve out the sentence in accordance with law. 33. The applications, being CRAN 2008 of 2018 and CRAN 2133 of 2018, are accordingly disposed of. 34. The period of detention suffered by the appellants during investigation, enquiry or trial shall be set off against the substantive sentence imposed upon them under Section 428 of the Code of Criminal Procedure. 35. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 36. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.