JUDGMENT Joymalya Bagchi, J. - Nobody appears for the appellant. Ms. Roy, empanelled with High Court Legal Services Authority is requested to represent the appellant. Secretary, High Court Legal Services Authority shall regularize her service. 2. Appellant has assailed judgment and order dated 30th August, 2017 and 31st August, 2017 passed by learned Additional Sessions Judge, Kalna, Burdwan, in Sessions Trial No. 08/2013 arising out of Sessions Case No. 63/12 convicting the appellant for commission of offence punishable under Section 304 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to suffer simple imprisonment for six months more. 3. Prosecution case as alleged against the appellant is to the effect that on 01.10.2011 at 9 p.m. the deceased (Basudeb Santra) accompanied the appellant to his farmhouse to attend a feast at Dharmadanga. In the course of the feast, an altercation took place between the appellant and the deceased. In the course of altercation appellant hit the deceased with a tangi on the neck and back. Thereafter, he threatened others and fled away from the spot. Victim was taken to Kalna Sub-Divisional Hospital and thereafter to Burdwan Medical College and Hospital for better treatment. Written complaint was lodged by Sulata Santra (P.W. 1) against the appellant at police station resulting in registration of Kalna P.S. Case No. 239 of 2011 dated 2.10.2011 under Sections 341/326 of the Indian Penal Code. Victim subsequently died on 05.10.2011. Inquest and post-mortem were held over the body of the victim. Appellant was arrested and charge-sheet was filed against him. Charges were framed under Sections 341/304 of the Indian Penal Code. 4. In course of trial, prosecution examined 11 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In the course of his examination under Section 313 Cr.P.C. appellant contended he had objected to rowdy and drunken behavior of some persons at Dharmadanga. As a result, he was assaulted and taken to hospital. Thereafter, he was arrested. He however did not examine any witness to probabilise such defence. 5. In conclusion of trial, the trial judge by the impugned judgment and order dated 30th August, 2017 and 31st August, 2017 convicted and sentenced the appellant, as aforesaid. 6. Ms. As a result, he was assaulted and taken to hospital. Thereafter, he was arrested. He however did not examine any witness to probabilise such defence. 5. In conclusion of trial, the trial judge by the impugned judgment and order dated 30th August, 2017 and 31st August, 2017 convicted and sentenced the appellant, as aforesaid. 6. Ms. Roy, learned advocate appearing for the appellant, argues that the place of occurrence has not been proved. Neither any wearing apparel of the deceased nor bloodstained earth were seized. Seizure of weapon of offence, that is, tangi is not supported by independent witnesses. No statement of the accused leading to discovery under Section 27 of the Evidence Act has also been exhibited. Evidence of so- called eye-witnesses P.Ws. 2 to 5 suffer from various contradictions and inconsistencies. Hence, the appellant is entitled to an order of acquittal. Without prejudice to the aforesaid submissions, it is contended sentence imposed on the appellant is too severe. 7. Mr. Partha Pratim Das with Ms. Amita Gaur, learned Counsels appearing for the State relies on the evidence of the eye witnesses P.Ws. 2 to 5 and submit the prosecution case has been proved beyond doubt. Medical evidence on record i.e. injury report, Exhibit 3, bed head tickets Exhibits 11 and 12 and post mortem report, Exhibit 7 corroborate the ocular versions of the eye witnesses. On the showing of the appellant, tangi was recovered. Hence, the appeal may be dismissed. 8. P.Ws. 2 to 5 are the eye witnesses to the incident. P.Ws. 2 and 5 had accompanied the appellant and deceased Basudeb Santra to the picnic. P.W. 2, Meghnath Mondal stated a feast was held in the mango orchard of the appellant. At the feast, an altercation ensued between the appellant and the deceased. Appellant physically assaulted the deceased and thereafter brought a tangi and chopped him on his right shoulder and back. Out of fear, P.W. 2 did not resist. Basudeb was taken to Kalna hospital. 9. P.W. 5, Haradhan Mondal @ Chal was also present at the picnic. He corroborated the evidence of P.W. 2. He further stated hearing hue and cry a next door neighbour viz., Ananta Mondal (P.W. 4) arrived at the spot. 10. P.W. 3, Biswajit Mondal and P.W. 4, Ananta Mondal are neighbouring witnesses. Basudeb was taken to Kalna hospital. 9. P.W. 5, Haradhan Mondal @ Chal was also present at the picnic. He corroborated the evidence of P.W. 2. He further stated hearing hue and cry a next door neighbour viz., Ananta Mondal (P.W. 4) arrived at the spot. 10. P.W. 3, Biswajit Mondal and P.W. 4, Ananta Mondal are neighbouring witnesses. P.W. 3 deposed at 9/9.15 p.m. hearing hue and cry he came to the spot and saw the appellant kicking at the abdomen of the victim. Thereafter, he chopped on the back of the victim with a tangi. When they tried to resist, the appellant ran after Ananta Mondal. P.W. 3 scribed the first information report lodged by the wife of the deceased, P.W. 1. 11. In cross-examination, the witness stated he cannot say whether the appellant sustained injuries or not. 12. P.W. 4, Ananta Mondal deposed around 9.30 p.m. he heard hue and cry from the orchard of the appellant. He rushed to the spot and saw the appellant chopping Basudeb with tangi. The appellant then chased him with a tangi. He put Basudeb in a rickshaw van and took him to hospital. On the way, Basudeb stated there was a quarrel when the appellant had assaulted him with a tangi which he had brought from his house. 13. P.W. 1, Sulata Santra is the wife of the deceased. Though she claimed to be an eye witness, on reading her statement in the first information report, it appears that she is a post occurrence witness. Immediately after the incident, she had lodged complaint. 14. P.W. 10, Debasis Sarkar is the post mortem doctor who found sharp cutting injuries on the neck as well as right infra scapular area of the deceased in addition to abrasions and scars. He opined death was due to the effect of the injuries which were ante mortem in nature with a history of assault by tangi. He proved the post mortem report, Exhibit 7. 15. P.W.11, Prabir Kumar Sarkar (Investigating Officer) collected the injury report of the deceased, Exhibit 3 as well as the bed head tickets of Kalna S. D. Hospital and Burdwan Hospital, Exhibits 11 and 12. 16. From the aforesaid evidence on record, it appears deceased Basudeb had accompanied the appellant to attend a feast in a mango orchard belonging to the appellant. P.Ws. 2 and 5 were present during the feast. 16. From the aforesaid evidence on record, it appears deceased Basudeb had accompanied the appellant to attend a feast in a mango orchard belonging to the appellant. P.Ws. 2 and 5 were present during the feast. A quarrel ensued between them. In course of the quarrel, appellant assaulted the deceased and struck him with tangi blows on the neck and back. As a result, deceased suffered bleeding injuries and was hospitalized. After four days he succumbed to his injuries. Hearing hue and cry, neighbours (P.Ws. 3 and 4) also came to the spot and witnessed the assault upon the deceased. 17. Ms. Roy submits the evidence of the so-called eye-witnesses suffer from embellishments and contradictions. None of them tried to save the deceased. Although the deceased suffered sharp cutting injuries, neither his wearing apparels nor blood stained earth were seized and produced in Court. 18. I have gone through the evidence of the aforesaid eye witnesses. Gist of the prosecution case with regard to altercation between the appellant and the deceased in the course of feast and thereafter assault by the appellant with tangi on the deceased has been consistently stated by the said eye witnesses. Slight variation in the description of the incident by these witnesses, in fact, lends credence to their versions. It is common knowledge ability to recollect and reproduce events vary from person to person. It is absurd to expect a parrot like representation of an incident by all the witnesses. Presence of the witnesses at the place of occurrence is proved. Two of them i.e. P.Ws. 2 and 5 attended the picnic while P.Ws. 3 and 4 are neighbouring witnesses who upon hearing hue and cry rushed to the spot and saw the incident. Contention on behalf of the appellant that the witnesses did not try to resist is also unfounded. The witnesses stated that the appellant had threatened them and in fact chased P.W. 4 with tangi. Out of fear they were unable to resist. Hence, I am of the opinion that P.Ws. 2 to 5 were present at the place of occurrence and saw the incident. They are truthful witnesses and the prosecution case is proved through them. 19. Ocular versions of P.Ws. 2 to 5 is corroborated by the injury report, Exhibit 3 as well as the bed head tickets, Exhibits 11 and 12 seized by the investigating officer. 2 to 5 were present at the place of occurrence and saw the incident. They are truthful witnesses and the prosecution case is proved through them. 19. Ocular versions of P.Ws. 2 to 5 is corroborated by the injury report, Exhibit 3 as well as the bed head tickets, Exhibits 11 and 12 seized by the investigating officer. Post mortem doctor (P.W. 10) also noted incised sharp cutting injury on the neck and the shoulder of the deceased in addition to abrasions and scars. The medical evidence on record support the ocular versions of the eye-witnesses, P.Ws.2 to 5. 20. Ms. Roy contended though victim was alive for about four days, no dying declaration was recorded. P.W. 4 claimed on the way to hospital, victim stated in the course of quarrel appellant had gone back to his house, brought a tangi and assaulted him. It is contended other witnesses have not corroborated the oral dying declaration. 21. I have considered the injury report as well as the bed head tickets exhibited in the instant case. Bed head ticket shows noting of history of assault by tangi as stated by the patient. This endorsement supports the version of P.W. 4 that the victim was conscious and in a position to speak. 22. Ms. Roy also contended the appellant had suffered injuries and was treated at Kalna Hospital. The arrest memo (Exhibit 10) shows injuries on the body of the appellant. Prosecution has not explained such injuries casting doubt with regard to the unfolding of the prosecution case. It is true the arrest-cum-inspection memo (Exhibit 10) shows swelling and other injuries over the body of the appellant. Injury-slip at Kalna S. D. Hospital also shows appellant was treated in the hospital along with the deceased. The aforesaid evidence gives an impression appellant had also received injuries. In course of his examination under Section 313 of the Code of Criminal Procedure appellant contended he had protested against rowdy drunken behaviour in the locality and was assaulted. He did not lead defence evidence to probabilise such defence. On the other hand, prosecution witnesses state there was a quarrel between the appellant and Basudeb. It is possible in course of quarrel, appellant had also received injuries. Hence, it is incorrect to state the circumstances coming out from the evidence of eye-witnesses do not explain the injuries received by the appellant. 23. On the other hand, prosecution witnesses state there was a quarrel between the appellant and Basudeb. It is possible in course of quarrel, appellant had also received injuries. Hence, it is incorrect to state the circumstances coming out from the evidence of eye-witnesses do not explain the injuries received by the appellant. 23. In the light of the aforesaid discussion, I am of the opinion evidence of the eye witnesses viz., P.Ws. 2 to 5 are cogent, convincing and supported by medical evidence. In this backdrop, defects in investigation, that is, failure of the investigating officer to seize wearing apparels of the deceased or blood stained earth from the place of occurrence does not erode the truthfulness of the prosecution case. 24. I have not given much importance to the seizure of the tangi on the showing of the appellant as such circumstance has not been proved through independent evidence. Leading statement of the appellant has also not been exhibited. However, as the prosecution case is squarely proved through the version of the eye-witnesses and medical evidence on record, I uphold the conviction of the appellant. 25. Coming to the issue of sentence, I note maximum sentence of life imprisonment has been imposed on the appellant. Appellant does not have any criminal antecedent. Incident occurred in course of a sudden quarrel between the appellant and the deceased. Appellant also suffered injuries on his body and the victim died four days after the incident. Whether the appellant went back to his residence and brought the tangi is not supported by all the eye witnesses. 26. Under such circumstances, balancing the aggravating and mitigating factors of the case, I am inclined to modify the sentence imposed upon the appellant and I direct that he shall suffer rigorous imprisonment for ten years and pay fine of Rs. 5,000/-, in default, to suffer simple imprisonment for six months more. 27. With the aforesaid modification as to sentence, the appeal is disposed of. 28. In view of disposal of appeal, connected applications, if any, are also disposed of. 29. Period of detention suffered by the appellant 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. 30. 28. In view of disposal of appeal, connected applications, if any, are also disposed of. 29. Period of detention suffered by the appellant 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. 30. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 31. I record my appreciation for the able assistance rendered by Mrs. Manasi Roy, learned Advocate as amicus curiae in disposing of the appeal. 32. Photostat certified copy of this judgment, if applied for, shall be made available to the appellants upon completion of all formalities. 33. I agree.