JUDGMENT : JOYMALYA BAGCHI, J. 1. At the outset learned Counsel appearing for the appellants submits that appellant no. 2 has expired. Death certificate is placed on record. Hence, the appeal abates so far as the appellant no. 2 is concerned. 2. The appeal is directed against the judgment and order dated 20.01.2015 and 21.01.2015 passed by the learned Additional District & Sessions Judge, Baruipur, South 24 Parganas in Sessions Case No. 41(08)2006 (Sessions Trial No. 11(11)2006) convicting the appellants for commission of offence punishable under Sections 323/304(1)/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for ten years each and to pay fine of Rs. 10,000/- each, in default, to suffer further simple imprisonment for ten months more each for the offence punishable under Sections 304(1)/34 of the Indian Penal Code and to suffer simple imprisonment for one year each and to pay a fine of Rs. 1,000/- each, in default, to suffer simple imprisonment for one month more each for the offence punishable under Sections 323/34 of the Indian Penal Code; both the sentences to run concurrently. 3. The prosecution case as alleged against the appellants is to the effect that on 25.11.2005 at 10.30p.m. the appellants being armed with a bamboo rod, brick etc. attacked the house of one Bablu Nayek in a drunken condition. Tirthankar Ghosh and Bapan Nayek (P.W. 7), father of the Bablu Nayek, informed Champa @ Sukumar Kayal about the incident. On the next day at about 8.00a.m. an altercation ensued at the shop of Champa Kayal over such incident. At that time, the appellants mercilessly beat Bapan Nayek and Tirthankar Ghosh with stick, bamboo, chopper, rod etc. Bapan Nayek was hit on the head and was treated at Baruipur Gramin Hospital. Due to assault Tirthankar Ghosh expired. On the written complaint of Partha Ghosh (PW1), Baruipur Police Station Case No. 283(11)2005 dated 26.11.2005 under Sections 325/304/34 of the Indian Penal Code was registered for investigation against the appellants. In conclusion of investigation, charge-sheet was filed against the appellants and the case, being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional District & Sessions Judge, Baruipur, South 24-Parganas for trial and disposal. 4. Charges were framed under Sections 323/304/34 of the Indian Penal Code against the appellants. In conclusion of investigation, charge-sheet was filed against the appellants and the case, being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional District & Sessions Judge, Baruipur, South 24-Parganas for trial and disposal. 4. Charges were framed under Sections 323/304/34 of the Indian Penal Code against the appellants. Prosecution examined 21 witnesses and exhibited a number of documents in support of its case. Defence of the appellants was one of innocence and false implication. 5. In conclusion of trial, learned Trial Judge by judgment and order dated 20.01.2015 and 21.01.2015 convicted and sentenced the appellants, as aforesaid. 6. Mr. Chattopadhyay, learned Counsel appearing for the appellants submits that the prosecution evidence is unreliable and does not establish the case against the appellants beyond doubt. Eye-witnesses (P.Ws 2 and 7) were not examined during investigation and disclosed the names of the appellants for the first time in Court. It is also argued that no name of the appellants had transpired at M.R. Bangur Hospital as would appear from the deposition of P.W. 12 who treated the injured witness (P.W. 7) at the hospital. Hence the appeal is liable to be allowed. 7. On the other hand, Mr. Ahmed, learned Counsel appearing for the State, submits that evidence of P.W. 7, injured witness, is corroborated by P.W. 2, an eye-witness. Ocular version of the said witnesses is corroborated by medical evidence of P.W. 12 and P.W 18 (Post-mortem doctor). Names of the appellants transpired in the F.I.R. which was recorded shortly after the incident ruling out any possibility of false implication. Hence, the appeal is liable to be dismissed. 8. I have gone through the evidence on record. 9. P.W 1, Partha Ghosh, is the informant and brother of the deceased, Tirthankar Ghosh. He was informed about the incident by a friend. He went to the hospital and saw his brother lying unconscious. He deposed that on the night of 25.11.2005 there was a quarrel between the elder brother-in-law of a friend of Tirthankar and the appellants. On the following day his brother has gone to a tea stall to take tea along with his friends. He heard an altercation took place in the hospital between his brother and the accused persons. The accused persons assaulted his brother and Bapan, a friend of his brother. On the following day his brother has gone to a tea stall to take tea along with his friends. He heard an altercation took place in the hospital between his brother and the accused persons. The accused persons assaulted his brother and Bapan, a friend of his brother. Doctor at Baruipur Sub Divisional Hospital referred the injured persons to M.R. Bangur Hospital. Tirthankar died in the way. He proved his signature on the written complaint lodged by him. 10. P.W.5, Bablu Ghosh, is the scribe of the First Information Report. He proved the written complaint, Ext.1. 11. P.W.2, Putul Sardar is the sister of Bapan Nayek (P.W.7), the injured witness. She deposed that Tirthankar Ghosh was a friend of Bapan. On 26th December, 2005 in the morning she had alighted from an auto-rickshaw at hospital more. She saw a scuffle going on. She noticed Champa assaulting her brother Bapan on the head with a bamboo. Boto assaulted Tirthankar on the shoulder with an iron rod. She went to Baruipur Police Station but police refused to listen to her. She identified the accused persons in Court. 12. In cross-examination, she admitted that she has stated that facts for the first time in Court. 13. P.W.7, Bapan Nayek deposed that the incident occurred on 26th November, 2005 at around 8.00/8.30 A.M. He and Tirthankar were going to their place of work. They met Boto in front of the tea stall of Champa. He asked Boto why he had kicked at their door. Boto disputed such fact. Thereupon, Boto, Champa, Moko and Rinku took out bamboo and rod from the tea stall of Champa and assaulted them with those weapons. Both of them were admitted at Baruipur S. D. Hospital. Tirthankar expired. 14. In cross-examination, he stated that he has deposed about the incident for the first time in Court. While he was in hospital he was conscious. He did not have any talk with the Doctor and had not stated anything to him. 15. P.W.12, Dr. Sudipta Brahma is a Doctor who was posted at Baruipur S. D. Hospital at the material point of time. On 26th November, 2005, he examined Bapan Nayek and Tirthankar Ghosh. Bapan Nayek had been brought to the hospital at 9.00 A.M. on 26th November, 2005 by some unidentified persons with a history of assault by bamboo, rod etc. He was conscious and co-operative. On 26th November, 2005, he examined Bapan Nayek and Tirthankar Ghosh. Bapan Nayek had been brought to the hospital at 9.00 A.M. on 26th November, 2005 by some unidentified persons with a history of assault by bamboo, rod etc. He was conscious and co-operative. On examination, he found 2 c.m. lacerated injury over the left side of the scalp and superficial injury over lateral surface of left foot. He proved his medical report, Ext.3. Tirthankar was restless. He found 1 c.m. cut injury over the lateral side of left eye brow. He found lacerated injury on the middle of the occipital region. The patient had suffered head injury. The patient was referred to M. R. Bangur Hospital. He proved the medical report, Ext.4. He prepared the injury report of Bapan Nayek. He was not admitted in the hospital. Patient did not state to him who assaulted him. He had not asked the patient who had assaulted him. 16. P.W.11, Dr. Sonali Datta was the general duty Medical Officer attached to Baruipur Hospital. She deposed that Tirthankar Ghosh was admitted in the hospital with a history of physical assault with trauma. Patient was referred to M. R. Bangur Hospital but unfortunately expired. She gave information to Officer-in-charge, Baruipur Police Station. She proved her report, Ext.2. 17. P.W.18, Dr. Tapan Kumar Roy, is the Post Mortem Doctor who held post mortem examination over the dead body of Tirthankar Ghosh. He proved the post mortem report, Ext.8. Death as per his opinion was due to the effects of injuries, homicidal and ante mortem in nature. 18. P.W.14, A.S.I., Rajkumar Dhar received the written complaint from P.W.1 and drew up the formal First Information Report, Ext.6. 19. P.W.15, Balai Adhikari, a Home Guard attached to the said police station took the dead body of the victim to morgue under a challan, Ext.7/1. 20. P.W.16, Bijoy Singh, P.W.17, Tarak Nath Dey and P.W.19, Sanjoy Chakraborty were declared hostile and cross-examined with regard to their previous statements to the police. 21. P.W.21, Ramkrishna Majumdar is the Investigating Office of the case. He visited the place of occurrence, examined witnesses, prepared rough sketch map with index and sent the dead body for post mortem examination. He collected post mortem report, seized the wearing apparels of the deceased under a seizure list and submitted charge sheet. 22. 21. P.W.21, Ramkrishna Majumdar is the Investigating Office of the case. He visited the place of occurrence, examined witnesses, prepared rough sketch map with index and sent the dead body for post mortem examination. He collected post mortem report, seized the wearing apparels of the deceased under a seizure list and submitted charge sheet. 22. In cross-examination, he stated that he did not find blood stains at the place of occurrence which is a crowded area. He did not seize the offending weapons. 23. Other witnesses namely, P.Ws.3,4,6,8,10 & 13 examined by the prosecution are reported witnesses with regard to the incident and did not have personal knowledge of the incident. 24. From the aforesaid evidence on record it appears that P.W.7 is the most vital witness. He was with the victim, Tirthankar at the time of occurrence. He deposed that on 26th November, 2005 around 8.00/8.30 A.M. they were going to their place of work. They met Boto Kayal in front of the tea stall of Champa. An altercation ensued between the said witness and Boto Kayal. At that time, the appellants took out bamboo and rod from the tea stall of Champa and assaulted the victim as well as the said witness. Both of them were injured and admitted to Baruipur S. D. Hospital where the victim expired. Evidence of P.W.7 finds corroboration from the deposition of P.W.2, the sister of Bapan Nayek. On the fateful morning, she had alighted from an auto-rickshaw in front of Baruipur S. D. Hospital and saw a scuffle. She saw Champa assaulting Bapan Nayek, P.W.7 with a bamboo on the head while Boto assaulted Tirthankar on the shoulder with an iron rod. She, however, did not speak of the presence of the other appellants viz., Rinku and Moko. Both the injured witnesses were medically treated at Baruipur S. D. Hospital by P.W.12. He proved the injury report of Bapan nayek, Ext.3 as well as that of Tirthankar Ghosh, Ext.4. Tirthankar Ghosh expired in the said hospital and such information (Ext.2) was communicated to the police from the hospital by P.W.11. Post mortem conducted over the body of Tirthankar by P.W.18 shows that he died due to the effects of injuries which were homicidal and ante mortem in nature. Evidence of P.Ws.2 and 7 have been criticised on the ground that they were not interrogated by the police during investigation. Post mortem conducted over the body of Tirthankar by P.W.18 shows that he died due to the effects of injuries which were homicidal and ante mortem in nature. Evidence of P.Ws.2 and 7 have been criticised on the ground that they were not interrogated by the police during investigation. It has also been submitted that the names of the miscreants were not stated before P.W.12 at the hospital. 25. I have given my anxious consideration to the aforesaid issues raised on behalf of the appellants. Investigation in the instant case leaves much to be desired. From the evidence of P.W.21, Investigating Officer, it appears that he conducted the investigation in a perfunctory manner and did not take photographs of the place of occurrence. He also did not make any effort to seize the offending weapons. Police had been intimated of the incident from the hospital by P.W.11. After seeing the incident, PW2 rushed to the police station but the police did not listen to her. It is trite law that remissness in investigation would not affect the veracity of prosecution case if the evidences of witnesses are otherwise credible. 26. I am of the view that it was the bounden duty of the investigating officer to examine the injured witness, P.W.7. He has failed to perform such duty although. However, such failure or remissness would not detract him from relying on the version of a witness who was injured in the course of same transaction which resulted in the death of the victim. However, in order to obviate any possibility of exaggeration, I have sought to sift the prosecution evidence and accept such portion of the evidence of P.W.7, the injured witness which find corroboration from the deposition of another eye witness viz., P.W.2. When the versions of the aforesaid witnesses are seen in juxtaposition, roles of Champa and Boto Kayal in the assault of the victim and P.W.7 are clearly established. However, in the light of the fact that roles of Moko and Rinku as deposed by P.W.7 is not corroborated by another eye witness, I am inclined to extend the benefit of doubt to them. However, in the light of the fact that roles of Moko and Rinku as deposed by P.W.7 is not corroborated by another eye witness, I am inclined to extend the benefit of doubt to them. Failure to name the miscreants in the medical records is of little consequence as it has been admitted both by P.W.12, the treating Doctor as well as the injured witness P.W.7 that the latter had not been interviewed by the said Doctor with regard to the persons who had caused the injuries. 27. Hence, I am not impressed by the submission of the learned Counsel appearing for the appellants that failure to name the appellants in the medical papers affects the credibility of the prosecution case. 28. On the other hand, First Information Report was registered immediately after the incident naming the appellants which ruled out any possibility of false implication. Although names of Moko and Rinku are stated in the First Information Report, I have chosen to extend the benefit of doubt to the said appellants as the de-facto complainant is a reported witness and their roles have not been corroborated by P.W.2, an eye witness. 29. In the light of the aforesaid discussion, I uphold the conviction of appellant No.1, Champa @ Sukumar Kayal and appellant no.3, Boto Kayal @ Batu Kayal. Conviction of appellant no.2, Moko @ Moro @ Mantu Kayal and appellant no.4, Rinku @ Ashis Kayal @ Ais Kayal are set aside. 30. Coming to the issue of sentence imposed on the appellant nos.1 and 3, I find from the evidence on record that Champa had assaulted P.W.7 with a lathi while Boto Kayal had assaulted the deceased with an iron rod on the shoulder. 31. In view of the extent of participation of the appellant nos.1 & 3 in the assault of the deceased, while upholding the sentences imposed on the appellant no.3, Boto Kayal @ Batu Kayal, I choose to modify the sentence imposed upon the appellant no.1, Champa @ Sukumar Kayal on the charge under Sections 304 (Part-I)/34 of the Indian Penal Code and direct that he shall suffer rigorous imprisonment for eight years and to pay fine of Rs. 10,000/-, in default to suffer simple imprisonment for ten months more on such score. Sentence imposed on the said appellant for the charge under Section 323 of the Indian Penal Code shall remain unchanged. 10,000/-, in default to suffer simple imprisonment for ten months more on such score. Sentence imposed on the said appellant for the charge under Section 323 of the Indian Penal Code shall remain unchanged. All the sentences shall run concurrently. 32. Accordingly, the appeal is allowed in part. 33. Period of detention suffered by the appellant nos.1 and 3 during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 34. Appellant no.4, Rinku @ Ashis Kayal @ Ais Kayal shall be discharged, if not wanted in any case, upon execution of a bond to the satisfaction of the trial court in terms of Section 437A of the Code of Criminal Procedure forthwith which shall remain in force for a period of six months. 35. Copy of the judgment along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance. 36. Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis. 37. I agree.