JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order dated 19.03.2013 and 20.03.2013 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Rampurhat, Birbhum in connection with Sessions Case No. 118 of 2010 [ Sessions Trial No.12 (3)/11 ] convicting the appellants for commission of offence punishable under Sections 302/34/120B of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/- each, in default, to suffer further rigorous imprisonment for one year more for commission of offence punishable under Sections 302/34/120B of the Indian Penal Code. 2. The prosecution case as alleged against the appellants is to the effect that on 26.5.2010 around 1.00 P.M., Bipad Mal returned to the cowshed with his cow and plough after working in his agricultural field. At that time, an altercation ensued between Bipad Mal on the one hand and Bharat Mal (appellant) and Paresh Mal on the other hand over the issue of a drain. The aforesaid persons started beating Bipad Mal with fists and blows. At that time, Bharat Mal and Milani Mal brought a sword and a knife from their house and gave the weapons to the aforesaid persons and instigated them to murder Bipad Mal. Mahadeb Mal, father of Bharat and Paresh, also instigated them to kill Bipad Mal. Thereupon, Bharat and Paresh hit Bipad Mal on different parts of his body resulting in bleeding injuries. As a result, Bipad Mal died at the spot. Bharat and Paresh ran away from the place of occurrence with their weapons. Mahadeb Mal and Milani Mal were surrounded by the villagers and apprehended by police. On the written complaint of P.W.1, Bharati Mal, sister-in-law of the victim, First Information Report was registered as Murarai Police Station Case No.124 of 2010 dated 26.5.2010 under Sections 302/120B of the Indian Penal Code against Bharat Mal, Paresh Mal, Milani Mal and Mahadeb Mal. In the course of investigation, Bharat Mal and Paresh Mal were arrested and offending weapons were recovered. In conclusion of investigation, charge sheet was filed against the appellants, Mahadeb Mal and Paresh Mal. Mahadeb Mal died prior to commitment of the case. Upon commitment, charges were framed against the appellants and Paresh Mal for commission of offences punishable under Sections 302/34/120B of the Indian Penal Code. In the course of trial, Paresh Mal absconded. In conclusion of investigation, charge sheet was filed against the appellants, Mahadeb Mal and Paresh Mal. Mahadeb Mal died prior to commitment of the case. Upon commitment, charges were framed against the appellants and Paresh Mal for commission of offences punishable under Sections 302/34/120B of the Indian Penal Code. In the course of trial, Paresh Mal absconded. Prosecution examined ten witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 19.03.2013 and 20.03.2013 convicted and sentenced the appellants, as aforesaid. 3. Nobody appears on behalf of the appellants. Ms. Trina Mitra, learned Advocate is requested to assist this Court as Amicus Curiae. 4. Ms. Mitra submits that the incident occurred in the course of a sudden quarrel and the appellants had no intention to commit the crime. The role of appellant No.2, viz., Milani Mal has not been stated by the independent eye witnesses viz., P.Ws.2 and 3. Even P.W.8, scribe of the First Information Report has not deposed against her in Court. There is contradictions in the evidence of P.Ws.1 and 7 with regard to the role of appellant no.2 vis- -vis the First Information Report. Accordingly, the appellants may be acquitted. 5. Ms. Sreyashee Biswas, Learned Counsel appearing for the State submits that the evidence of the eye witnesses viz., P.Ws.1, 2, 3, 5 and 7 clearly establish the prosecution case against the appellants. Medical evidence of P.W.8 corroborates their ocular version. Hence, the appeal is liable to be dismissed. 6. P.W.1, Bharati Mal, is the sister-in-law of the victim and the informant in the instant case. She deposed that the incident occurred at around 12.00/1.00 P.M. Her debar was cleaning the drain after returning from the field. At that time, Bharat Mal and Paresh Mal abused him in a filthy language. Milani Mal took one hasua and sword and handed over to Paresh Mal and Bharat Mal and instigated them to kill Bipad Mal. Mahadeb Mal also instigated Paresh and Bharat to murder Bipad Mal. Paresh assaulted Bipad Mal on the back with a sword. Bharat held him. Thereafter, both of them assaulted the victim with their weapons. The witness was also threatened. The victim succumbed at the spot due to injuries. The accused persons left the spot with their weapons. Mahadeb Mal also instigated Paresh and Bharat to murder Bipad Mal. Paresh assaulted Bipad Mal on the back with a sword. Bharat held him. Thereafter, both of them assaulted the victim with their weapons. The witness was also threatened. The victim succumbed at the spot due to injuries. The accused persons left the spot with their weapons. The villagers caught Milani Mal and Mahadeb Mal at the spot. She lodged written complaint at Murarai Police Station. Sisir Mal, P.W.8 wrote the complaint as per her instruction. She proved her L.T.I. on the complaint. Rita Mal, P.W.7, her daughter has substantially corroborated her deposition. 7. P.W.2, Ful Kumar Mal and P.W.3, Gadadhar Mal are independent witnesses of the incident. They deposed that hearing a hue and cry, they had come out from their house and saw Bharat Mal and Paresh Mal assaulting Bipad Mal with a sword and hasua. 8. P.W.3 was also a signatory to the inquest report prepared by the police. 9. P.W.4, Ranjit Mal and P.W.5, Sanjit Mal are the sons of P.W.1. 10. P.W.4 is a reported witness. He deposed that her mother, P.W.1 narrated the incident to him. He corroborated the evidence of P.W.1. 11. P.W.5, however, claimed that he saw the assault on his uncle by Paresh and Bharat with a sword and hasua. He was a signatory to the inquest report. He claimed that her mother stated that Milani Mal had handed over the weapons to the accused persons. 12. P.W.8, Sisir Mal is the scribe of the F.I.R. He deposed that while Bipad Mal was cleaning the drain, at that time the accused persons raised objection and there was a hot altercation between them and Bipad Mal. Subsequently, Paresh and Bharat assaulted Bipad Mal with a sword and hasua. As a result, he died. He proved the written complaint, Ext.4/1 and his signature thereon, Ext.4/2. 13. P.W.9, Dr. S. Poddar is the Autopsy Surgeon who found the following injuries on the body of the victim. "1. One cut injury measuring 3"x 1" x bonedeep placed in vertical direction over left side of forehead. 2. One cut injury measuring 3"x 1/2" x bonedeep placed over middle of forehead in vertical direction. 3. One cut injury in oblique direction over face measuring 4"x 1/2" x bonedeep starting at a point being upper end lie at medial end of right eyebrow. 2. One cut injury measuring 3"x 1/2" x bonedeep placed over middle of forehead in vertical direction. 3. One cut injury in oblique direction over face measuring 4"x 1/2" x bonedeep starting at a point being upper end lie at medial end of right eyebrow. Then bridge of nose, lowerlid and end at left maxillary prominence. 4. One large and deep cut injury measuring about 14"long 3"wide and oral cavity deep starting at left angle of mouth, mandible bone and ends at nap of neck. On its way it cuts oral cavity with tongue, mandible bone, neck muscles, carotid vessels, nerves and cervical vertebree. 5. One cut injury measuring 4"x 1/2" x bone deep placed in oblique direction over left parietal region of skull. 6. One cut injury measuring 4"x 3" x bonedeep over lateral side of left shoulder joint in oblique direction. 7. One deep cut injury over middle of right arm measuring 4"x 2"x bone marrow deep in horizontal direction. 8. One cut injury measuring 5"x 2"x bonedeep over dorsal aspect of left elbow joint in oblique direction. 9. One cut injury over dorsal aspect of left forearm near wrist joint in oblique direction measuring 2"x 1"x muscle deep. 10. One deep cut injury over anterio medial aspect of right thigh in horizontal direction. 11. One cut injury in horizontal direction over left knee joint measuring 4"x 1"x joint cavity deep. 12. One cut injury over lateral side of left ankle joint measuring 4"x1"x joint cavity deep. 13. One cut injury in horizontal direction over anterior aspect of right ankle joint measuring 4"x3"x joint cavity deep. 14. Subdural intracranial haemorrhage." 14. He deposed that the death was due to multiple cut injuries which are ante mortem and homicidal in nature. He proved the post mortem report (Ext.6). 15. P.W.10, S.I., Mojammel Mondal is the Investigating Officer of the instant case. He came to the spot and prepared the inquest report, Ext.1/4. He prepared draft sketch map with index, Ext.7 and 7/1 respectively. He send the body of the victim for post mortem examination. He arrested Mahadeb Mal and Milani Mal and forwarded them to Court. Subsequently, he arrested Bharat Mal and Paresh Mal. He seized the offending weapons, a sword and hasua under a seizure list, Ext.3/2. He collected the post mortem report. He send the body of the victim for post mortem examination. He arrested Mahadeb Mal and Milani Mal and forwarded them to Court. Subsequently, he arrested Bharat Mal and Paresh Mal. He seized the offending weapons, a sword and hasua under a seizure list, Ext.3/2. He collected the post mortem report. He proved the statements of Bharat Mal and Paresh Mal leading to the recovery of the offending weapons. He identified the wearing apparels of the victim. He submitted charge sheet. 16. From the evidence on record, it appears that on the date of occurrence i.e. 26.5.2010 around 1.00 P.M. Bipad Mal had returned from his agricultural field and was cleaning a drain. At that time, an altercation ensued between him on the one hand and Bharat Mal and Paresh Mal on the other hand. Bipad Mal was assaulted by the aforesaid persons. Thereafter, Bharat and Paresh assaulted the victim with a sword and hasua resulting in numerous bleeding injuries and ultimate death of the victim. It is alleged that Milani Mal had supplied the weapons to the accused persons viz., Bharat and Paresh and had instigated them to commit the murder. 17. I have analysed the evidence on record. Role of Bharat Mal and Paresh Mal in assaulting the victim to death has been established through the ocular version of P.Ws.1, 2, 3, 5 and 7. Ocular evidence of the aforesaid witnesses is corroborated by the sharp cutting injuries noted by P.W.9, Autopsy Surgeon. P.W.9 has deposed that the death of the victim was due to the aforesaid injuries, ante mortem and homicidal in nature. Keeping in mind the extensive number of injuries caused on the vital parts of the body of the victim, I am unable to accept the contention of the learned amicus curiae that Bharat Mal and Paresh Mal (absconding accused) did not have the intention to murder the victim. 18. Hence, I do not find any illegality in the conviction recorded against the appellant no.1, Bharat Mal. 19. Coming to the role of the appellant no.2, Milani Mal, I find that there is no evidence that she had assaulted the victim. It is, however, alleged that she had supplied the weapons and instigated Bharat and Paresh to murder the victim. Evidence of the relation witnesses, P.Ws.1 and 7 in this regard is not corroborated by the independent eye witnesses P.Ws.2 and 3. It is, however, alleged that she had supplied the weapons and instigated Bharat and Paresh to murder the victim. Evidence of the relation witnesses, P.Ws.1 and 7 in this regard is not corroborated by the independent eye witnesses P.Ws.2 and 3. None of these independent witnesses deposed that it was Milani Mal who had supplied the weapons to the appellant No.1. Furthermore, P.W.5 also did not witness the role of Milani Mal. It has been argued that the role of Milani Mal had been reflected at the earliest opportunity in the First Information Report and, therefore, versions of P.Ws.1 and 7 in that regard ought to be accepted. 20. I am, however, unable to accept such contention in the light of the deposition of P.W.8, the scribe. In his deposition, P.W.8 did not refer to the role of Milani Mal in supplying weapons to Bharat and Paresh to assault the victim. Hence, there is contradiction in the genesis of the incident as narrated by P.W.8, the scribe, in Court and its narration in the complaint drafted by him. 21. In the light of the discrepancy in the deposition of P.W.8, the scribe of the F.I.R. and the F.I.R. itself, Ext.4/1 and the fact that the independent witnesses do not speak of the role of Milani Mal in supplying the weapons to the other accused persons, I am of the opinion the possibility of the relation witnesses, namely, P.W.s 1, 4, 5 and 7 falsely implicating Milani Mal, a family member of the principal accuseds viz., Bharat Mal and Paresh Mal cannot be ruled out. Accordingly, I am inclined to extend the benefit of doubt to the said appellant No.2 Milani Mal. 22. In the light of the aforesaid discussion, conviction and sentence of the appellant no.1, Bharat Mal is upheld and conviction and sentence of the appellant no.2 Milani Mal is set aside. 23. Accordingly, the appeal is allowed in part. 24. Period of detention suffered by the appellant no.1 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. 25. The appellant no.2, Milani Mal shall be discharged, if not wanted in any case, upon execution of a bond in terms of Section 437A of the Code of Criminal Procedure forthwith which shall remain in force for a period of six months. 25. The appellant no.2, Milani Mal shall be discharged, if not wanted in any case, upon execution of a bond in terms of Section 437A of the Code of Criminal Procedure forthwith which shall remain in force for a period of six months. 26. Copy of the judgment along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance. 27. I record my appreciation for the able assistance rendered by Ms. Trina Mitra, learned Advocate appearing as amicus curiae in disposing of the appeal. 28. Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis. I agree.