K.N. Saikia, J.
1. The appellant Moirangthem Chaoba Singh, aged about 19 years and Moirangthem Gojendra Singh, aged about 17 years have been convicted, the former under Section 326/34 I.P.C. and sentenced to 1 1/2 years' R. I and the latter under Section 326 I.P.C. and sentenced to 2 years' R. I.
2. The evident facts are that Ningthoujam Budhi Singh (P. W. 2) lodged information with the O/C. Moirang Police Station on 2-9-1973 stating that his brother Ningthoujam Lakpa Singh was lying unconscious and likely to die as the two appellants attempted to murder him with a dagger (Louri Thangchou) that morning at 7-00 a. m., being so informed by Khoiron Amusana Singh (P. W, 5). Moirang Police Station registered the case in F.I.R. 113 (8) 73 Under Section 307/34 I.P.C. and P. W. 7 Maibam Biramangol Singh took up investigation, reached the place of occurrence at 10-40 a. m. Prior to this, A. S. I. Babudhon Singh, who registered the case had already submitted injury form to the Medical Officer, in-charge of Moirang Primary Health Centre, where the injured Lakpa Singh had been admitted for treatment. Biremangol Singh, arrivinig at the place of occurrence found blood stain, one spade near the blood stain and a paddy field to the north east of the blood stain at a distance of about 40 feet. He collected some blood stained earth and grass; examined some persons, but could not arrest the accused appellants as they absented from their home. But he arrested them later when they surrendered on 4-10-1973. The in jured Lakpa Singh being unable to speak could be examined only on 24-9-1973. The charge sheet was submitted on 23-10-1973.
3. At the Session, both were charged under Section 307/34 I.P.C. and the appellant Gojendra Singh was separately charged under Section 307 I.P.C. to which both pleaded not guilty. At the trial, prosecution examined 9, while the defence examined two witnesses.
4. The injured Lakpa Singh, examining himself as P. W. 6, deposed that on that morning at about 6-00 or 7-00 a. m., he proceeded towards Khongjaingamba Chine for tethering two cows on the said hill and while he was doing so on its slope, the two appellants and their father Ibomacha Singh, who were working in their paddy field towards the north at a distance of about 130'. shouted to him nod to tether the cattle there. Lakpa Singh told them that he would keen the cattle tethered there within the forest land and would keep watch upon them and immediately, the two appellants. Gojendra Singh with a Thangjou in hand, rushed towards him and while Chaoba Singh caught-hold of him, Gojendra Singh assaulted him on the left side of his head with the said Thangjou and receiving the blow he immediately ran for a distance around the hill slope and then fell down on the ground. While so running he received another blow on his back and could not say by whom; and he lost his senses which he regained only in the General Hospital at Lamphelpat. In cross-examination, he admitted that the paddy field was in the possession of the accused and that there was also an ingkhol to the west of the said Lou, which was also in the cultivating possession of the accused-appellants and that the distance between the eastern end of the paddy field and that of the ingkhol would be about 130. He also admitted that he fell down at a place inside the ingkhol, which would be about 40' away from its eastern end. When he arrived at the place for tethering he found the accused Gojendra Singh about to plough the ingkhol portion with a buffalo and the accused Chaoba Singh was working with a spade in the ingkhol towards the west of the accused Gojendra Singh. He said that the place of tethering was within the forest area, but denied that no cattle was allowed to graze there.
5. The defence version as appearing from the trend of cross-examination, the two defence witnesses and the statement of the accused-persons under Section 313 Cr. P.C. is that Chaoba Singh and Gojendra Singh were working in their field when they saw 6 heads of cattle belonging to Lakpa Singh and Babu Singh (P. W. 3) grazing in south-eastern portion of their paddy field. Gojendra Singh went there but was chased by Lakpa Singh, with a Dao in hand and he aimed a blow at the head of Gojendra Singh which missed and the latter caught-hold of the Dao and there ensued a struggle between the two and Gojendra Singh caught-hold of the Dao and gave a thrust to Lakpa Singh who fell on the ground with the Dao, injuring himself on his head, wherefrom both the appellants fled away, Chaoba Singh did not go to the place with him.
6. P. W. 5 Khoirom Amusana Singh, who informed P. W. 2, the informant, was declared hostile as he gave a go-by to his version before Police. P. w. 3 Babu Singh is cousin of Lakpa Singh and his version was belied by the place of occurrence.
7. P. W. 8 Irom Ibopishak Singn, Medical Officer in charge of Moirang Primary Health Centre, examined Lakpa Singh on 2-9-1973 at 8-20 a. m, and found the following injuries:
1. One cut injury on the left side of the head starting from the occipital up to the frontal aspect of the head about 1/2' above the ear. Size 5 1/3' x 1' x ' the injury was grievous in nature caused by sharp weapon.
Injury No. 2 Size 1/2' x 1/4' x 1/4' on the left side of the back and it was simple in nature caused by sharp weapon.
According to him the patient had profuse bleeding and was absolutely unconscious and after giving first-aid emergency treatment, was sent to the General Hospital, Lamphelpat. According to him injury No. 1 was caused by a sharp weapon like Dao (Manipuri Thangjou); and that the injury No. 2 might be produced by the spade Ext. M.O. 1. The injury No. 1 might cause permanent disfiguration of head and that the injury No. 2 might be caused by force against a sharp substance and the chance of the injured receiving injury No. 1 when he was thrown away with force with a Dao in hand was remote. He admitted that the depth, and other dimensions, of the injury No. 1 stated by him was on rough criterion. P. W. 9 Dr. H. Lalmohon Singh Surgeon of the General Hospital, Lamphelpat, deposed from the records that Lakpa Singh wag examined at; the Moirang Primary Health Centre at 8-30 a.m.; that the patient was unconscious and was having haematomesies (vomiting of blood); pulse was absent blood pressure was 46 by ml. So after preliminary examination, the patient was sent to the General Hospital at 9-30 a.m. and was received at its Casualty Department at 1-20 p.m., which recorded, pulse very feeble, thready, B. P. not recordable and patient in a state of shock. The patient left hospital on 1-10-1973 against the medical advice when he had not completely recovered. The injury was grievous according to the history record. Having been caused by a heavy cutting instrument and without proper medical aid the injury was sufficient enough to cause death.
8. P. W. 7 stated that there was a paddy field to the north east of the place of blood stain at a distance of about 40'. The paddy field was covered with blossoming paddy plants, but he did not notice any damage having been done to the paddy plants. He found two pairs of cows grazing on the hill slope about 60 feet away from the place of the blood stain towards the south. They were found tethered.
9. From the above evidence on record, there can be no doubt that the injury to Lakpa Singh was caused by Gojendra Singh, who admitted to the extent of having given a thrust to Lakpa Singh, who fell down, admittedly at a place inside the ingkhol which would be about 40' away from its eastern end. Lakpa Singh admits that the accused persons were working in their ingkhol portion, Gojendra Singh ploughing with a buffalo and Chaoba Singh working with a spade. P. W. 7 found the spade near the blood stain. It, therefore, appears that Lakpa Singh happened to fall away from the place where he was tethering his cows. The defence version of his having chased Gojendra Singh is, therefore, probabili-sed. Another point to be noted is that Gojendra Singh and Chaoba Singh, who were 17 and 19 years respectively ori September, 1974 were only l6 and 18 years in September; 1973; while Lakpa Singh was 25 years in 1974 and so 24 years in 1973. Under such circumstances, Lakpa Singh's chasing Gojendra Singh was naturally probable. Even so considering the nature of the injury inflicted which, as the Doctor opined, could not be caused by fall, it could not be said that the injury was caused in self-defence. There was no question of protection of property or life. The Thangjou itself was not seized; No Thangjou was found by the I. O.
10. Mr. N. Kerani Singh, the learned Counsel for the appellants submit that they having been charged under Section 307/34 I.P.C. and Gojendra Singh, under Section 307 I.P.C. separately, the conviction of Chaoba Singh under Section 326/34 I.P.C. and Gojendra Singh under Section 326 I.P.C is illegal, inasmuch as, Section 326 I.P.C. cannot be said to be a minor offence vis-a-vis Section 307 I.P.C.
11. Counsel relies on a single Bench decision in , Parma v. State, where it has been held that the offence under Section 326 is not a minor offence in respect of an offence under Section 307 and that it cannot be said that any person charged with an offence under Section 307 I.P.C. can be convicted under Section 326 by virtue of Section 238(1) Cr. P.C. (1898).
12. The question whether a person charged under Section 307 I.P.C. can be convicted under Section 326 I.P.C. seems no longer to be res integra. Under Section 221(1) Cr. P.C., if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences. Under Sub-section (2) of the same section, if in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. In Bejoy Chand Patra v. State of West Bengal : 1952CriLJ644 , relying on AIR 1925 PC 130 : 1925-26 Cri LJ 1059, and the provisions of Sections 236 and. 237 of the old Code,. it has been held on the facts of that case that it was open to the Sessions Judge to charge the appellant alternatively, under Sections 307 and 326, Penal Code. The case therefore clearly fell under Section 237, Cr. P.C., and the appellant's conviction under Section 326, Penal Code, was proper even in the absence of a charge. In Begu v. Emperor AIR 1925 PC 130, where the accused were charged under Section 302 and on evidence they were found to be guilty of an offence under Section 201(causing the evidence of crime to disappear) and so were convicfed under the latter section, it was held that that conviction wag proper. In Bhupenflra 'Singh v. State of Madhya Pradesh, : 1981CriLJ751 , their Lordships of the Supreme Court having regard to all the circumstances of the case, the trivial nature of the quarrel, the circumstances leading to the commission of the offence, the fact that the injured and the accused were all young students studying in college and keeping in view the nature of injury, were of the opinion that the learned Additional Sessions Judge was right in convicting the appellant for an offence under Section 324 and Section 324 read with Section 149, I.P.C, and accordingly the conviction under Section 307/149 I.P.C. was altered to one under Section 324 I.P.C. it Shek Idris's case (1939) 43 Cal WN 782, it was held that though the accused was charged with attempt to murder, he could be convicted of grievous hurt. In Gangabishan's case (1937) 38 Cri LJ 442 (Nag), it was held that though the charge was for attempt to murder, he could be convicted of hurt, In view of the above decisions, the decision in , is doubtful. The submission is accordingly rejected.
13. Counsel further submits that common intention for the purpose of Section 34 was not proved. This submission is found to be of substance. Excepting the statement that Chaoba Singh held Lakpa Singh and Gojendra Singh inflicted the injury there is no other evidence to show the formation of any common intention. Admittedly, the accused were working in their field wherefrom they saw their paddy being damaged by cattle. The blood stain having been found inside the ingkhol, the statement that Chaoba Singh and Gojendra Singh rushed towards Lakpa Singh to his tethering place has been belied and as such no common intention has been proved. The conviction of Chaoba Singh is, therefore, to be set aside. As regards the sentence of Gojendra Singh, considering the fact that he was a boy of 16 years at the time of occurrence, a school student, who was ploughing his own ingkhol and acted without premeditation; and the fact that nearly a decade has expired, ends of justice may not require that he be again sent to Jail. He was in custody for 21 days and the ends of justice may be met if his sentence is reduced to the period already undergone, and I reduce it accordingly.
14. In the result, the appeal of Moirangthem Chaoba Singh is allowed and that of Moirangthem Gojendra Singh is dismissed subject to modification of the sentence as above. The appellants are on bail. Their bail bonds are cancelled.