ORDER
K.N. Saikia, J.
1. Appellants Sambhu Bora and Tarun Bora, father and son, appeal from the judgment convicting them Under Section 302/34,1.P.C. and sentencing each of them to rigorous imprisonment for life.
2. On a written F.I.R. lodged at Kanpur Police Station by Tileswar Hira (P.W, 2) stating that on 8-9-74 at about 7 A.M. while his father, Puran Singh Hira, was ploughing the appellant Sambhu Bora and his eldest son assaulted him with dao and six other persons assaulted him with lathis and daos, registering a case, the 2nd Officer of the Police Station (P.W. 10) investigated it, held inquest over the dead body of Puran Hira, sent it for post-mortem examination and arrested the accused-appellants; and his successor submitted the charge sheet. Committed to Sessions, the appellants were charged Under Section 302/34,I.P.C to which they pleaded not guilty. At the trial the prosecution examined 10 witnesses including the Doctor and the Investigating Officer. When examined Under Section 313, Cr. P.C. the appellants denied their guilt. The trial Court having convicted the appellants, mainly on the basis of the evidence of P. Ws. 4, 5 and 7, who claimed to be eye witnesses, they now appeal.
3. The death of Puran Hira is not in dispute nor is it challenged by the defence. The only question, therefore, is whether the appellants or any of them caused the death. Mr. A. K. Bhattacharjee, the learned Counsel for the appellant, submits, inter alia, that there is wide discrepancy between the inquest report and the post-mortem report; that the eye witnesses are interested and chance witnesses and they did not see the occurrence; that the dying declaration is not credible; that the evidence of the eye witnesses is materially discrepant; that there is no information leading to the discovery of dao; that the F.I.R. is vague and there is no mention of eye witnesses and the dying declaration; that the prosecution tried to embellish their case so that the case mentioned in the F.I.R. differs from that stated before the police, and from that given before the Court; and lastly that the appellants can be said to have exercised their right of private defence of property and the case therefore would not be Under Section 302 and may be Under Section 304,1.P.C.
4. Mr. G. K. Bhattacharjee, the learned Public Prosecutor, submits that the occurrence having taken place in broad day light in open field in the morning, there is nothing to doubt the evidence of the eye witnesses; and that the rrriwor discrepancies do not affect the substratum of the prosecution case and the trial Court has rightly convicted the appellants.
5. To appreciate the rival contentions we may first examine the medical evidence.P.W. 1, Dr. M. C. Borgohain, S.D.M. & H.O. of Nowgong Civil Hospital performed the autopsy on the cadaver of Puran Singh Hira on 9-9-74 at 11 A.M. and found the following injuries, which, according to him, were all ante-mortem:
External
1. One incised wound at the level of right ear up to corner of right eye across right cheek – 3″ in length X 1/2″ in breadth X bone cut mandible & maxila.
2. Incised wound over right parietal bone 1″ in length & bone cut underneath.
3. Another incised wound on the left parietal bone 2″ in length X bone deep.
4. One big incised wound on the back of neck on the right side 4″ X 2″ X bone deep vertibrae also cut 1/2″ “-
5. Incised wound on right shoulder 4″ X 1″ X deep clavicle cut.
6. Near the above wound there is another wound 2″ X 1″.
7. Lower part of buttock incised wound 4″ X 1″ X 1″.
8. Left arm incised wound3″ X 1″ X l”.
9. Left thumb completely severed at the root.
10. Left forearm incised wound 5″ X 1/2″ X 1/2″.
11. One piece of bone on left parietal is nearly chopped up – 1/2″ X 1/2
Internal
Heart empty. Stomach empty. Other organs healthy”. In his opinion death was due to shock and haemorrhage as a result of the injuries sustained; and that injury No. 4, if remained unattended, might alone cause death of a person.
5A. On a perusal of the inquest report and the postmortem report we find that inquest was held over the part of the left hand thumb finger of the deceased Puran Singh Hira, which was severed and not over the dead body of the deceased. Injury No. 9 in the post-mortem report shows that the left thumb completely severed at the root. There is therefore, no discrepancy between the two. As regards the injuries on the other parts of the body are concerned, the injured was given first aid at the Bagalajan State Dispensary but the Doctor was not examined. P.W. 10, 2nd Officer of Kampur P.S., said that he could not examined the Doctor as he was not available. To our mind this will also not throw any doubt on what is stated in the post-mortem report and deposed to by the Doctor on oath. The Doctor clearly stated that all the injuries were ante-mortem. We, therefore, entertain no doubt that the injuries were ante-mortem. Looking at the genesis we find a land dispute between the deceased Puran Hira and the appellant Sambhu Hira. Puran’s son, Tileswar (P.W. 2) said that there was a land dispute between his father and the accused persons. That land was possessed by them since long. According to P.W. 4, Paniram Hira, when he met Puran, his maternal uncle, the latter asked him to accompany him as his land was going to be cultivated and dispossessed by Sambhu and his son and others. He further said that Puran told Sambhu that he was ready to pay the amount of the consideration money of his purchased land so that he could retain his possession there. Sambhu disagreed and said that he would not return the land when he has purchased the same. Altercation then started between Puran and Sambhu. P.W. 5, Dulairam Hira, saw Sambhu going down from the Railway line to the field of Puran Hira and trying to yoke his ploughs for cultivation. Puran also went there and caught hold of the ploughs of Sambhu and it took about 10 minutes in such sort of altercation and pushing and pulling. Paniram also told the I.O. that Puran went to the disputed land from the place where they were fishing and that after about 15 minutes Sambhu went to the place of occurrence and then altercation started. Thus there is no doubt that there was a land dispute. It is, of course, not clear as to what was the nature of the rights claimed. It is, however, clear that it was Puran who was retaining possession of the land and it was Sambhu who was trying to dispossess him and cultivate the same by whatever right he had. In the sketch map the place of occurrence is shown as ‘Ka’ which stands within the description given by the witnesses. However, though P.W. 10 said that he found blood marks, neither he collected any sample of blood nor did he collect any blood stained earth for chemical examination. He categorically stated that he found marks of blood at the place of occurrence. Although he mentioned the same in the diary, he had not shown the same in the sketch map and he did not collect any earth from the place of occurrence for chemical examination. We have, therefore, no doubt that the place of occurrence has been proved by the prosecution.
6. As regards the description of the occurrence, P.W. 2 Tileswar Hira is not an eye witness. We may examine whether P.Ws. 4, 5 and 7 could have seen the occurrence. According to Panjram Hira, P.W. 4, he was going for fishing in the drain by the side of the Railway line with Bhadreswar at 6.30 A.M. and on his way he met Puran, his maternal uncle, who asked him (P.W. 4) to accompany to the place of occurrence. However, Paniram did not state before the I.O. that he met Puran, Sambhu and others near the Railway line, but stated that he went to the disputed land from the place where they were fishing and that after about 15 minutes Sambhu went to the place of occurrence and then the altercation started. Bhadreswar was neither examined by the I.O. nor before the Court. P.W. 7, Bholua Hira, claimed that he was ploughing his field nearby and his wife helping him. His field was about one furlong away from that of Puran. He found Puran on one side and Sambhu and Tarun along with 5/6 persons on the other side altercating amongst themselves. He saw from his field Sambhu and Tarun assaulting Purarj, In cross-examination he said that between his field and that of puran 5/6 persons were ploughing their fields. They were Ramesh, Khabar, Mikir, Dulai etc. Only Dulai was examined as P.W. 5 and others were not examined. However, Dulai did not mention about the presence of Bholua Hira. Bholua was examined as P.W. 7. Before the Court he said that he was not examined by the I.O. In; fact Bholua stated before the I.O. that he was informed at 7.30 A.M. at his house by his brother Paniram about the occurrence. Bholua’s becoming an eye witness to the occurrence is, therefore, incredible and his evidence, has, therefore to be discarded. Paniram also stated that after he reported the incident to the family of Puran he took a wooden plank from the house and came to the place of occurrence. There he found Tileswar, Dulai Hira, Bholua Hira and wife of Bholua Hira.. Even it be so, Bholua could not be an eye witness to the occurrence. According to Dulai when Sambhu assaulted Puran then he tried to assault Paniram also. Paniram was chased by Sambhu but Paniram ran away towards the village. But before the I.O. Dulia did not mention about Paniram’s presence at the place of occurrence. The fact that Dulairam did not mention the presence of Paniram before the 1,0., makes the presence of Paniram doubtful. However, we may examine their evidence. P.W. 6, Mineswar Bora, claimed that from the P. W.D. road he saw Sambhu with a dao in hand and Tarun having a spade in his hand coming towards the P. W.D. road along with six other persons and he noticed both Tarun and Sambhu having marks of blood on their persons. He then started towards his house when he found Paniram coming running from the side of the Railway line. On being asked by him Paniram reported to him what had happened. Mineswar did not state before the I.O. that he met Sambhu, Tarun and others being armed with weapons and having blood marks on their persons. He also did not state before the I.O. that on being asked by him Puran reported to him that he was assaulted by Sambhu and Tarun. This part of Mineswar’s evidence, therefore, is not credible. P.W. 2, Tileswar Hira, on the other hand deposed that at 7.30 A.M. he started from his house through the track and reached their paddy field near the Railway track. On his way he found Sambhu and Tarun proceeding towards their house along with six other persons and that he saw a dao in the hand of Sambhu and a spade in the hand of Tarun. The other six persons had also iron rods, lathis etc. in their hands. These persons crossed him and went towards their house. Reaching the paddy field about 2/3 nals off from the Railway track Tileswar found his father lying with many cut injuries on his person and many persons assembled there amongst whom Paniram Hira, Dulai Hira and others were there; but before the I.O. he did not mention about his seeing Sambhu and Tarun but instead stated that when he reached the place of occurrence then several persons also reached there. He did not mention that he reported the matter to Paniram or Dulai or Bholua.
7. Next we may examine how the eye witnesses claimed to have seen the occurrence. The evidence of P.W. 5 is that while ploughing he heard some hulla on the Railway lines and then he went towards that place leaving aside his ploughs and saw an altercation going on between Puran Hira on one side and Sambhu and his son Tarun on the other side. Some other persons were also there.Then he found Sambhu coming down from the Rly. line, going to the field of Puran Hira, and trying to yoke his ploughs for cultivation. Puran also went there and caught hold of the ploughs of Sambhu. It took about 10 minutes in such sort of altercation and pushing and pulling. Sambhu had a dao in his hand and Tarun had a spade. There were five other persons whose name the witness did not know. One person amongst those five caught hold of the neck of Puran and pushed him on the back side and asked Sambhu by calling ‘Bhagin’ as to what he was seeing till then and as soon as called by that person, Sambhu gave a dao blow on the left fore-arm and gave another dao blow on the left side of his head and face. Accused Tarun also gave spade blows on the head of Puran. Other persons also assaulted Puran, but by whom and what weapon the witness could not say. Puran fell down on the ground. Paniram was standing by the side of Puran and that when Puran was assaulted then Sambhu tried to assault Paniram also. Paniram was chased by Sambhu but Paniram ran away towards village. Then accused Sambhu and Tarun, along with their associates, left the place towards their home. Bholua and his wife who were ploughing in the nearby field, came to -the place of occurrence where Puran was lying injured. Thereafter Paniram returned with a plank and Puran’s son Tileswar also arrived there and he reported the incident to Tileswar. When asked by Tileswar as to what had happened to him, Puran said that he was assaulted by Sambhu, Tarun and others, The fact that Paniram was running to bring the plank also indicates that he must have seen the occurrence, otherwise what was the necessity of his running home to bring a plank. According to his account the altercation started right on the Railway line itself. When he and Puran were proceeding west he found Tarun, Sambhu and six other unknown persons going towards the field of Puran being armed with daos, spade, lathis etc. They met them face to face within the Railway line. Then Puran said to Sambhu that he was ready to pay the amount of the consideration money of his purchased land so that he could retain his possession. Sambhu disagreed and said that he would not return the land when he had purchased the same. Altercation started there between Puran and Sambhu. Then both of them came down from the Railway line and went to Puran’s land. In the meantime the persons accompanying Sambhu, tried to cultivate the land by putting yoke. Puran then asked Paniram to unyoke. As soon as he tried to do so one person, whose name he did not know, resisted and by catching hold of his hands. On turning towards Puran, Paniram found Sambhu giving a dao blow on Puran’s head and somebody was catching hold of Puran. When Puran left the bullock Sambhu gave another dao blow on the side of his face. Sambhu tried to give another blow which was tried to be averted by Puran and as such his thumb was severed. Puran then embraced Sambhu and tried to resist him but Tarun son of Sambhu, started beating Puran and another person also assaulted Puran by iron stick. Puran fell down on the ground and the assailants then tried to chase him and he fled away from the place and reached Puran’s house. Tileswar’s evidence is that when he arrived at the paddy field he found his father lying with many cut injuries on his person and many persons assembled there. Amongst them were Paniram and Dulai.
8. About the wooden plank, P.W. 2 speaks of improvised strature. Paniram claimed to have taken a wooden plank from the house and came to the place of occurrence. Paniram with others brought Puran to his house on their shoulders over that wooden plank. Dulairam corroborates Paniram in this regard. So also P.W. 6 and P.W. 7. This has not been challenged by the defence. So we hold that Puran was carried to his home on the wooden planlc brought by Paniram.
9. The dying declaration was held to be doubtful by the trial Court. Tileswar’s evidence is that after Puran was brought home, on being asked by him his injured father reported to him that Sambhu and Tarun along with six persons had cut him and those six persons had also assaulted him. P.W. 5, Dulairam, Stated that when Paniram returned with a plank Tileswar asked Puran as to what had happened to him and Puran said that he was assaulted by Sambhu, Tarun and others. According to P.W. 6, Mineswar, he went to call in a doctor and after the Doctor came Puran made a declaration before the Doctor also that he was assaulted by Sambhu and Tarun. Puran died after sometime. Mineswar, however, admitted that it was not written in the F.I.R. that on being asked by him and Tileswar Puran reported that he was assaulted by Sambhu and Tarun. He did not ask Tileswar to give the name of Paniram in the ejahar. According to P.W. 10 Paniram did not state before him that Puran being asked by Tileswar reported the incident to him. Mineswar also did not state before the 1.0. that on being asked by him Puran reported to him that he was assaulted by Sambhu and Tarun. Admittedly, the dying declaration was not mentioned in the F.I.R. which was lodged by Tileswar after about four hours of the occurrence. According to the Doctor, after receipt of all those injuries the injured, in his opinion, might have survived for 10-30 minutes only. If the dying declaration was really made before Tileswar, in all probability it would have been mentioned in the F.I.R. The Doctor of Bagalajan State Dispensary was not examined. Applying Ram Kumar Pande v. State of M.P. and Manik Malakar v. State of Assam 1976 Cri LJ 1921 we hold that the dying declaration was correctly held to be doubtful by the trial Court. We discard the dying declaration.
10. Material Ext. 3 is the dao about two feet in length with a wooden handle, seized by P.W. 10 from inside the house of appellant Sambhu Bora and produced by him. It was stated to have had blood like marks but it was not sent for chemical examination. No statement is shown to have led to this discovery. It will not, therefore, be admissible Under Section 27 of the Evidence Act.
11. The crucial question, therefore, is whether the evidence of P. Ws. 4 and 5 can be believed and conviction can be founded thereon. Mr. Bhattacharjee’s contention that P.Ws. 4 and 5 are chance and interested witnesses is not tenable. P.W. 5 was ploughing in his own field and P.W. 4 was fishing in a nulla nereby. In Bahal Singh v. State of Haryana , at para 10 of the judgment it has been held that if by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically opposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. In Guli Chand v. State of Rajasthan , it has been held that the testimony of a chance witness although not necessarily false, is proverbially unsafe. Mere fact that a witness is a relation of a victim is not sufficient to discard his testimony. In deed, it was held in Daiip Singh v. State of Punjab that : “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth”.
12. No enmity or grudge has been alleged on the part of P.W. 4 against the appellants. It is not denied that there was a drain where Paniram was allegedly fishing with Bhadreswar. No relationship with the deceased has been imputed on the part of Dulairam nor is it denied that Dulairam had his own paddy field where he was ploughing, Considering that the occurrence happened in a rural agricultural setting, it cannot be said that P.W. 4 could not have gone there for fishing and P.W. 5 could not have gone there for ploughing his own field. Under these circumstances it would be rather difficult to discard the evidence of P.Ws. 4 and 5 on the ground of their being chance witnesses and interested witnesses. Considering the fact that the occurrence took place in open paddy field during the ploughing hours in the morning we consider P.W. 5 as a natural witness; so also we do not find any material to doubt the presence of P.W. 4 for fishing at the nulla. The evidence of P.Ws. 4 and 5 are mutually corroborative in material particulars. The minor discrepancies, to our mind, are not material and do not affect the substratum of the prosecution case. Applying (Ram Avtar Rai v. State of U.P.) we hold that it is not possible to reject the evidence of P.Ws. 4 and 5 altogether on account of the minor discrepancies. More so, when death of Puran has not been denied and no alternative hypothesis has sprung up from the evidence on record.
13. Mr. Bhattacharjee submits that other 5/6 persons who attacked Puran with iron rods could have inflicted the fatal blow, namely, injury No. 4. However, on scrutiny of the medical evidence we do not find any particular injury which could have been caused by iron rod. It is for this reason that 5/6 other persons were not even charge-sheeted and the appellants were charged Under Section 302/34, I.P.C. This, in our mind, would not affect the prosecution case and lessen the liability on the part of the appellants, for causing the injuries to Puran.
14. We may consider the question of the nature of participation of the appellants in the occurrence and the question of common intention to cause those injuries. From the F. I. R. and evidence of P.Ws. 4 and 5 we find that while Sambhu’s name was mentioned in the F.I.R., Tarun’s name was not mentioned. One was referred to as Sambhu’s “elder son”. There was mention of dao but there was no mention of cutting by spade. P.W. 4 deposed that after several dao blows were inflicted by Sambhu on Puran’s person the latter embraced the former with a view to resist, but then Tarun started ‘beating’ Puran. In his examination-in-chief he did not mention about the spade. He did not state before the I.O. that Tarun hit Puran with a spade. In his cross-examination P.W. 4 said that Tarun assaulted Puran “by means of a spade”. P.W. 5 deposed in chief that Tarun had a spade and he gave a spade blow on Puran’s head; and in cross examination he said that it was with the sharp edge of the spade. Before the I.O. he said that Tarun hit Puran with the blunt side of the spade. Apart from these discrepancies, in the injury report all the wounds are described as incised wounds. A hit with the blunt side of a spade could not have caused an incised wound. Nor is there any injury which could have been caused by mere beating. None of the injuries can, therefore, be attributed to a beating or spade blow with its blunt side. The Doctor had not stated any incised wound to have been caused by sharp edge of a spade. We, therefore, cannot attribute any of the incised wounds to a spade blow by Tarun. Again, while in the F.I.R. the “elder son of Sambhu” was implicated, P.W. 4 in Court referred as “Tarun, son of Sambhu” and identified Tarun in the dock. He did not call him “elder son” of Sambhu. P.W. 5 also did not call Tarun “elder son of Sambhu. From the statement Under Section 313, Cr. R.C. it is not clear whether Tarun was the elder son of Sambhu. Of course, P.Ws. 4 and 5 were not specifically cross-examined on this point. No spade was seized.
15. As Tarun has been charged with the aid of Section 34, I.P.C, that section can be used against him to make him liable for the offence Under Section 302 read with Section 34 only if his participation with common intention was established. (See Gupteshwar Nath Ojha v. State of Bihar dt. 17-3-86 – para 10). Common intention is a question of fact; it is subjective but can be inferred from circumstances. Tarun accompanied his father for ploughing the field. It is not shown that he participated in such a way as to prove that he had developed a common intention to cause Puran’s death. See Maqsoodan v. State of U.P. . Mere presence with his father would not be enough as was held in Ghanshyam v. State of U.P. ; and , Aher v. State of Gujarat. The trial Court did not consider this question elaborately. Common intention could be formed at the spur of the moment and in course of the occurrence. However, Tarun’s very presence, at any rate his participation with common intention to cause death of Puran, is rendered reasonably doubtful. His identification at the dock by P.W. 4 is not reliable. If he was present and participating, there was no reason why his name could not be mentioned and why there should have been material discrepancies as to the weapon used by him and the way it was used. There was no corroboration at all in this regard from the medical evidence, except the remote possibility of any of the incised wounds having been caused by the sharp side of a spade which was also not seized. The formation of common intention to kill has not been precisely proved. A spade is an ordinary agricultural implement and no other motive can be imputed for carrying it. We, therefore, give Tarun the benefit of reasonable doubt and set aside his conviction and sentence and acquit him of the charge. He shall be set at liberty forthwith.
16. In Lok Pal Singh v. State of M.P. 1985 (Supp) SCC 76 : 1985 Cri LJ 1134 acquittal of a co-accused whose participation in the murder was doubted by the High Court was upheld by the Supreme Court. In case of Sambhu we find the evidence to be clear, convincing and corroborative, both by ocular as also by medical evidence. He inflicted multiple injuries on vital parts in a cruel manner so as to cause almost instantaneous death of Puran. Injury No. 4 itself was fatal. Under the facts and circumstances of the case, though charged Under Section 302/34, no prejudice will be caused to Sambhu if he is alone convicted without aid of Section 34 as Tarun’s participation has not been proved beyond reasonable doubt.
17. The next question is what offence was thereby committed by Sambhu ? As was ruled in Jaspal Singh v. State of Punjab 1986 1 SVLR (Cr) 46 : 1986 Cri LJ 488 (SC) (Dt. 3-2-86), the intention of a person causing the injuries has to be gathered from a careful examination of all facts and circumstances of each given case, in the instant case considering that a dangerous weapon like a dao was used by Sambhu to inflict multiple injuries on vital parts of the body including injury No. 4, the intention to cause death can easily be inferred. However, as we have noticed, there was a dispute about the land which was admittedly purchased by Sambhu thereby acquiring right thereto which he wanted to assert and defend. Even Puran was aware of the purchase and he only proposed to return the consideration money, to which Sambhu did not agree. Puran physically tried to prevent ploughing of the land. There was pulling and pushing for about 10/15 minutes. We, therefore, hold that Sambhu acted in the exercise in good faith of the right of private defence of property, but he exceeded the power given to him by law and caused the death of Puran against whom he was exercising such right without premeditation and without any intention of doing mors harm than was necessary for the purpose of such defence; and thus he committed culpable homicide not amounting to murder punishable Under Section 304, Part I, I.P.C. We accordingly set aside Sambhu’s conviction and sentence Under Section 302/34, I.P.C. and instead convict him Under Section 304, Part I, I.P.C. As regards the sentence for the ends of justice and crime prevention we sentence him to rigorous imprisonment for (5) five years and a fine of Rs. 200/- (Rupees two hundred), in default to further rigorous imprisonment for one month. He shall be entitled to set off Under Section 428, Cr. P.C. The appellant Sambhu is on bail. He shall surrender to his bail bond to serve out the remaining part of his sentence.
18. In the result the appeal of Tarun is allowed and that of Sambhu is dismissed subject to modification as indicated above.
S.N. Phukan, J.
19. I agree.