JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 30th January, 2016/1st February, 2016 passed by the learned Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur in Sessions Case No. 10 (August) 2007 [Sessions Trial No. 08(01) 2008] convicting the appellants for commission of offence punishable under Sections 148/304 Part-I/149 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/- each, in default, to suffer simple imprisonment for three months more for the offence punishable under Section 148 IPC and to suffer rigorous imprisonment for ten years and to pay fine of Rs.3,000/ each, in default, to suffer simple imprisonment for six months more for the offence punishable under Sections 304 Part-I/149 IPC; both the sentences to run concurrently. 2. The prosecution case as alleged against the appellants is to the effect that the appellants and other accused persons being armed with deadly weapons attacked Khudiram Dhara (PW1) and his brother namely, Badal Chandra Dhara (PW6) while they were cultivating the landed property of Menaka Barman (since deceased). Sushil Ch. Dhara, son of Badal and his wife namely, Radharani Dhara (PW5) were also cultivating the field. Chandan Kumar Barman and Rabindra Nath Barman @ Rabindra Nath Barman namely, appellant nos.6 & 7 respectively assaulted Sushil with a ballam. Badal was assaulted by Khokan Barman and Kanak Kanti Barman namely, appellant nos.4 & 5 respectively with shabal while Krishan Kumar Barman and Tapan Barman namely, appellant nos.2 & 3 respectively assaulted Radharani with a hasua. All the accused persons assaulted them with lathi. As a result of assault, the aforesaid persons suffered injuries. Injured persons were initially treated at Khejurberia BPHC. Therafter, Badal and Sushil were removed to Tamluk S.D. Hospital. Badal was admitted in the said hospital while Sushil was referred to Ekbalpore Nursing Home for treatment. Unfortunately, Sushil succumbed to his injuries on 2nd December, 1998 in the Nursing Home. In the meantime, FIR was lodged by Khudiram at the police station against the appellants and other accused persons. In conclusion of investigation, charge-sheet was filed and charges were framed against the appellants. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In the meantime, FIR was lodged by Khudiram at the police station against the appellants and other accused persons. In conclusion of investigation, charge-sheet was filed and charges were framed against the appellants. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. It was specifically contended that PW1 could not be a Bargadar of the land. On the other hand, one of the appellants namely, Tapan Barman (appellant no.3) had suffered injuries in the course of the incident. Defence examined two medical witnesses to prove the injuries on the appellant no.3 namely, Tapan Barman. Upon analysis of the evidence on record, the trial Judge by the impugned judgment and order dated 30th January, 2016/1st February, 2016 convicted and sentenced the appellants, as aforesaid. 3. Pw1, 5 & 6 are the injured witnesses in the present case. 4. Pw1, Khudiram Dhara deposed he was a bargadar in respect of the plot in question. He along with his family members were tilling the land on 8th Agrahayan, 1405 B.S. at 2:00 P.M. At that time, appellants and other accused persons came in a body armed with deadly weapons like ballam, sabal, iron-rod and lathi etc. Chandan Kumar Barman and Rabindra Nath Barman hit on the head of Sushil with a ballam. Khokan Barman and Kanak Kanti Barman hit Badal with a shabal. Tapan Barman and Krishna Kumar Barman hit Radharani with a hasua. All accused persons also hit them with lathi. PW1 and others were treated at Khejurberia hospital. Badal Dhara and Sushil Dhara were referred to Tamluk hospital from Khejurberia BPHC. As the condition of Sushil was precarious, he was referred to Kolkata for better treatment. Eight days later Sushil died in a nursing home at Kolkata. P.W.1 lodged written complaint which was written by Murari Maity, an advocate. He proved the written complaint. 5. In cross-examination, he admitted Menoka Barman, who had accompanied the appellants to the spot is the owner of the plot in question. 6. Pw6 (Badal Chandra Dhara) and his wife namely, Radharani Dhara (PW5) had corroborated the evidence of the de-facto complainant. 7. Pw2 (Kanan Dhara), wife of Khudiram Dhara and PW4 (Ramkrishna Dhara), son of Khudiram were also present and corroborated the evidence of the de-facto complainant. 8. 6. Pw6 (Badal Chandra Dhara) and his wife namely, Radharani Dhara (PW5) had corroborated the evidence of the de-facto complainant. 7. Pw2 (Kanan Dhara), wife of Khudiram Dhara and PW4 (Ramkrishna Dhara), son of Khudiram were also present and corroborated the evidence of the de-facto complainant. 8. Pw3, Minoti Dhara, a relation of PW1 and PW7, Birendra Nath Manna, an independent witness came to the spot after the occurrence and heard the incident from Khudiram. PW7 took the injured persons to hospital. 9. Learned senior advocate appearing for the appellants has criticised the evidence of these witnesses on the several grounds. 10. No document of bargadarship of PW1 has been placed on record. Genesis of the incident as narrated by the prosecution witnesses is untrue as they failed to explain the injuries on one of the appellants namely, Tapan Barman (appellant no.3). It is further submitted that no punctured injury caused by ballam, a pointed weapon, was found in the body of Sushil (the deceased) by the post mortem doctor. 11. I have tested the aforesaid submissions in the light of the evidence on record. PW1 stated that he was the bargadar of the land. No doubt document of bargadarship has not been placed. However, evidence on record clearly shows that PW1 and his brother Badal (PW6) were in settled position of the land and cultivating the same. Appellants along with the owner of the land, Menoka Barman being armed with deadly weapons attacked PW1 and PW6 and caused deadly injuries on them. Ocular version with regard to the nature of injuries suffered by the prosecution witnesses namely, PW1, 5 & 6 and the deceased Sushil Dhara finds corroboration from the medical evidence on record. 12. Pw13, Dr. Pranabesh Ch. De examined the injured witnesses at Khejurberia BPHC. He found a lacerated bleeding injury measuring 2 x x 1/3 on occipital and parietal region of the head of Khudiram Dhara. He found similar lacerated injury measuring 2 X X on the left parietal region of the head of Radharani as well as lacerated bleeding injuries on her right temporal region of the head and right forearm. On Badal Dhara, the doctor found a lacerated bleeding injury on the right parietal region of the head. He suspected fracture of the left shoulder joint and left little finger. Badal was referred to Tamluk hospital for better treatment. On Badal Dhara, the doctor found a lacerated bleeding injury on the right parietal region of the head. He suspected fracture of the left shoulder joint and left little finger. Badal was referred to Tamluk hospital for better treatment. Sushil Dhara was also examined by the doctor. He noted lacerated bleeding injury measuring 2 X X on the middle of the parietal region of his head. The patient was restless and vomiting and was also referred to Tamluk hospital. 13. In cross-examination, he admitted he did not find incised or sharp cutting injuries on the victims. 14. Pw10, Tridibesh Banerjee treated Badal and Sushil at Tamluk S.D. Hospital. He found scalp injuries and injury on the left shoulder with fracture of femural head on Badal. Badal was admitted in the hospital and discharged on 11th December, 1998. He proved his treatment sheet and bed-head ticket. 15. Pw15, Dr. Goutam Das and PW16, Dr. Siddhartha Purakayestha are doctors attached to Ekbalpur nursing home. They deposed Sushil Dhara had been admitted to the said hospital and expired on 2nd December, 1998. Post mortem report of Sudhil Dhara (Ext.18) was proved on admission. 16. Medical evidence on record, therefore, leaves no doubt in one s mind that the injured eyewitnesses namely, PW1, 5 & 6 along with the deceased Sushil Dhara had suffered injuries on their head and other parts of the body. As a result of such assault, Badal suffered head injury and fracture of femoral head. He was admitted at Tamluk S. D. Hospital. Condition of Sushil was worse and he had to be shifted to Ekbalpore Nursing Home for better treatment where he expired on 2nd December, 1998. 17. It has been argued that no puncture or sharp cutting injury was found on the head of Sushil. Hence, nature of assault by ballam, a pointed weapon, as narrated by the injured witnesses is not proved. 18. I am unable to accept such contention. The appellants had come in a body armed with various weapons including ballam, sabal, hasua etc. and attacked Sushil. PW1, 5 & 6 were also assaulted in the course of the incident. From the evidence of PW13 and post mortem report (Ext.18), it appears that Sushil Dhara suffered injuries on the left fronto parietal region of his head. Post mortem doctor had opined that death was due to effect of such injuries. 19. and attacked Sushil. PW1, 5 & 6 were also assaulted in the course of the incident. From the evidence of PW13 and post mortem report (Ext.18), it appears that Sushil Dhara suffered injuries on the left fronto parietal region of his head. Post mortem doctor had opined that death was due to effect of such injuries. 19. Assessing the evidence of the eye witnesses vis- -vis the medical opinion, it appears that Sushil was assaulted on the head and suffered injuries. Consequentially, he died. There may be some confusion with regard to the nature of weapon used by the assailants which, in my opinion, is understandable as the witnesses themselves were being mercilessly beaten up and was unable to identify the exact nature of weapon or the manner in which such weapon was used. It is trite law that ocular version of a witness, if convincing, would prevail over opinion evidence of medical personnel(See Mallapa Siddappa Alakanur & Ors. v. State of Karnataka, 2009 14 SCC 748 , para 21). It is only when the opinion of a doctor wholly renders the version of an ocular witness patently absurd or inherently improbable would a Court come to a conclusion that the dichotomy between the two is so irreconcilable that such prosecution case ought to fail(See Thaman Kumar v. State (UT of Chandigarh), 2003 6 SCC 380 , para 16). 20. In the present case the witnesses unequivocally stated that Sushil was hit on the head by Chandan Kumar Barman and Rabindra Nath Barman. Medical evidence of PW13 and postmortem report (Ext.18) categorically show injury on the head of Sushil which resulted in his death. 21. Under such circumstances, I am inclined to hold that the ocular and medical evidence in the present case are substantially corroborative of one another and do not give rise to such an irreconcilable and contradictory state of affairs so that one would be inclined to discard the evidence of an injured witness relating to the incident. 22. Finally with regard to the submission that the injury on the appellant namely, Tapan Barman has not been explained, I note that the injury on his person is simple in nature. Failure to explain minor injuries suffered by an accused in the course of the incident would not affect the inherent truthfulness of injured witnesses. 22. Finally with regard to the submission that the injury on the appellant namely, Tapan Barman has not been explained, I note that the injury on his person is simple in nature. Failure to explain minor injuries suffered by an accused in the course of the incident would not affect the inherent truthfulness of injured witnesses. However, as the prosecution has failed to prove documents of bargadarship of PW1 and the injuries suffered by one of the accused persons in the course of incident, I am inclined to hold that the prosecution case of the appellants of forming an unlawful assembly and assaulting the injured witnesses pursuant to the common object of killing them have not been proved beyond doubt. On the other hand, the narration of the injured witnesses when viewed against the injuries suffered by the accused persons give an impression of free a fight between two groups resulting in injuries on PW1, 5 & 6 and deceased Sushil on the one hand and Tapan Barman on the other hand. It is trite law constructive liability under section 149 IPC is not attracted in a free fight [3] . Accordingly, the appellants would be liable for their individual acts and not be constructively liable for the acts of others. Although I am convinced that the appellant nos. 6 and 7 had assaulted Sushil Dhara resulting in his death as depicted by PWs 1, 5 & 6, I am unwilling to foist constructive liability upon the appellant nos.1 to 5 with regard to the roles of the said appellants, namely, appellants 6 and 7, in the death of Sushil. It may be pertinent to note that the appellants had not been put on trial with regard to the assault perpetrated by them upon P.W.s 1, 5 or 6. 23. In view of the aforesaid analysis of fact and law, I am inclined to hold that the appellant nos.6 and 7 namely, Chandan Kumar Barman and Rabindra Nath Barman @ Rabinda Nath Barman who had assaulted Sushil Dhara resulting in his death are liable for committing culpable homicide not amounting to murder. 24. Since the incident occurred in the course of a free fight in which one of the appellants namely, Tapan Barman had suffered injuries, I am unwilling to invoke the principle of culpable liability vis- -vis other appellants namely, appellant nos. 1 to 5 herein. 24. Since the incident occurred in the course of a free fight in which one of the appellants namely, Tapan Barman had suffered injuries, I am unwilling to invoke the principle of culpable liability vis- -vis other appellants namely, appellant nos. 1 to 5 herein. Hence, I am inclined to acquit them of the charges levelled against them. 25. Accordingly, in the light of the aforesaid discussion, I hold the appellant nos.6 and 7 guilty for commission of offence punishable under Section 304 Part I IPC read with Section 34 IPC and confirm the sentence imposed upon them by the trial court on such score. 26. However, appellant nos.1 to 5 herein are acquitted of the charges levelled against them. 27. The appeal is partly allowed. 28. Period of detention, if any, undergone by the appellant nos. 6 & 7 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. 29. Appellant nos. 1 to 5 herein shall be forthwith released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure. 30. Lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 31. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. 32. I agree. 3 See State of Haryana v. Chandvir & Ors., 1996 8 SCC 678 , Pundalik Mahadu Bhane & Ors. v. State of Maharashtra, 1997 7 SCC 567 , Ananta Kathod Pawar & Ors. v. State of Maharashtra, 1997 11 SCC 564 .