Baharul Islam, J.
1. The appellant Mazidar Rahman was convicted in Sessions Case No. 12(D)/72 by the Sessions Judge, Goalpara, Under Section 302 of the Penal Code and sentenced to imprisonment for life.
2. The prosecution case is that in the morning hours of 23rd April, 1970, the appellant together with Hamid Master, Didar Sheikh, Siraj Sheikh, Altaf, Amir Sheikh, Jokimuddin and some other persons went to the field of Nurul Sheikh (P. W. 7). Amir started damaging the paddy grown on his land by P. W. 7. P. W. 7 protested but to no effect. He then went home and informed his father (Jitu Hazi P. W. 2) and his brothers Harmuz (P. W. 11) and Naser. On arrival at the place of occurrence, Jitu found his son Mir Box (deceased) in his field. Bhula, Sattar (P. W. 12), Abdul Kalam and Omar Ali (P. W. 13) were ploughing in the field. Jitu protested against the act of Amir damaging the paddy seedlings but to no effect On the contrary, accused Hamid Master ordered assault whereat Amir and Siraj brought out some weapons kept concealed in the nearby field and handed them over to the accused persons Seeing the accused persons thus armed, Jitu and his party took to their heels, but no sooner had they reached Mir Box's land, than Altaf assaulted Mir Box with a lathi to which a ballam was fitted. Mir Box entreated not to kill Hamid Master again ordered further assault when the appellant pierced Mir Box with a ballam on his left chest. Seeing the assault on Mir Box, his brother Nurul (P. W. 7.) came forward for his rescue, but he himself was assaulted by some of the accused persons. A lathi blow was also given to Harmuz (P. W. 11) who was proceeding to help Nurul, Mir Box fell down in the adjacent land belonging to Sonaulla and died. Nurul also fell down near Mir Box. Many persons then collected on the spot when the accused persons left the place of occurrence.
3. P. W. 2, Jitu Hazi, lodged a written information at Bandihana Police Out Post at about 9-30 A. M., which was ultimately registered at South Salmara Police Station, within the jurisdiction of which the occurrence had taken place. Police registered a case and after investigation submitted charge-sheet. against thirteen accused persons including the appellant.
4. A first class Magistrate at Dhubri, after preliminary enquiry, committed the appellant and 8 other persons, namely, Abdul Hamid, Altaf, Sirajul, Sattar, Kader, Didar Ali, Amir and Jakimuddin to the Court of Session to stand their trial Under Sections 147/323/324/302/149 of the Penal Code, and discharged the remaining four.
5. In the Court of Session all the aforesaid accused persons were charged Under Section 302 read with Section 149 of the Penal Code as well as Under Sections 148 and 324/149 of the Code. In addition, accused Didar Ali was charged Under Section 323 of the Penal Code, and the appellant was substantively charged Under Section 302 of the Penal Code for 'intentionally causing the death of Mir Box.
6. The accused persons pleaded not guilty to the charges. The learned Sessions Judge, after trial, acquitted all accused persons of the charges Under Sections 148, 324/149 and 302/149 and Didar of the charge Under Section 323, but convicted and sentenced the appellant as stated above.
7. Shri D. N. Choudhury, learned Counsel appearing for the appellant, first submits that the conviction of the appellant Under Section 302 of the Penal Code is not warranted by the evidence on record.
8. P. Ws. 2, 7, 11, 12 and 13 are the alleged eye witnesses to the occurrence. The evidence of P. W. 2, Jitu Hazi, is that on the date of occurrence, his son, Nurul (P. W. 7), informed him that Hamid Master and others were damaging the seedlings of Ahu paddy grown by him (Nurul) on his land. Then his sons, Nurul, Harmuj and Naser and he himself went to the field. Arriving at the place, they found the appellant as well as the other accused persons numbering altogether about 10 to 15 on the field. Amir was damaging the seedlings. The witness protested. The accused persons did not pay any heed to the protests. On the contrary, Hamid Master ordered assault when accused Amir and Siraj brought out fallas and lathis which had been kept concealed in the adjacent land to the south of the place of occurrence. The witness further deposes that Mir Box was standing in his land while Bhula. Sattar Ali (P. W. 12), Abdul Kalam and Omar Ali (P. W. 13) were ploughing on the land to the north of the land of Nurul, intervened by some khas land. Seeing the accused persons being armed with weapons. P. W. 2 and his sons ran to the land of Mir Box and asked Mir Box also to leave the place. Immediately then the accused Altaf assaulted Mir Box with a lathi A ballam was attached to the lathi. In terror and panic, Mir Box entreated Altaf not to kill him when accused Hamid Master ordered further assault. The appellant then pierced Mir Box with a falla on the left chest. Seeing this, Nurul (P. W. 7) came forward when he was also assaulted by accused Siraj, Didar, Sattar, Kedar and Omar, Mir Box ran a little distance and fell on the nearby land and died. Harmuz (P. W. 11) advanced towards Nurul when he was also assaulted by Didar. Nurul fell down near Mir Box.
P. Ws. 7, 11, 12 and 13 corroborate the evidence of P. W. 2 and support the prosecution case.
9. Dr. A C. Dey, Sub-Divisional Medical and Health Officer, Dhubri, Civil Hospital (P. W. 4 before the Magistrate), held the post-mortem examination on the dead body of Mir Box. He found two injuries on the dead body : One was a punctured wound 3'X1'X41/2' on the left fourth inter costal space just lateral to the sturnum directing forward, backward and laterally causing injuries to the lung and heart. The left plura and the left lung were injured. The injury on the lung measured 1/2'X3/4'. The pericardium was injured. Dr. Dey found the heart punctured on the left ventricle. The injury measured 3/4'X1/4'. According to him death was due to shock and hemorrhage sustained.
The second injury was found on the upper part of the right side of the back. it was an abrasion 1/2'X1/4'.
10. It appears from the medical evidence that the injury on the back was a mere abrasion of 1/2' X 1/4'. The only other injury, namely, the injury on the chest must have, therefore, been the cause of the immediate death of the injured, Mir Box. The medical evidence fully corroborates the evidence of the witnesses, P. Ws. 2, 7, 11, 12 and 13, referred to above.
11. Mr. Choudhury submits that the evidence of the above witnesses should not be believed, in as much as, he submits, they have departed from the prosecution story set out in the F. I. R. His submission is that in the F. I. R. it was stated that the appellant hit Mir Box in the chest with a 'fala'. When on receipt of the blow he fell down the remaining accused persons finished off Mir Box's life by clubbing with lathis. His submission is that the above witnesses in their evidence in Court have given a go-bye to the second part of the prosecution story, namely, that 'the remaining accused persons finished off Mir Box's life by clubbing with lathis.' The law is well-settled that the First Information Report is not substantive evidence. It is only for the purpose of corroboration or contradiction of the maker of the report. P. W. 2, who lodged the F. I. R., was not confronted with the allegations made in the F. I. R. namely, 'the remaining accused persons finished off Mir Box's life by clubbing with lathis'. Be that as it may, that part of the prosecution case is not proved, and the alleged indiscriminate assault on Mir Box by the other accused remains unestablished. From the above, however, it does not follow that the evidence of the eye-witnesses should be disbelieved in toto, for, the doctrine of falsus in uno falsus in omnibus is not applicable in India.
12. Learned Counsel then submits that the eye witnesses should be disbelieved inasmuch as all of them are related to the deceased, when other disinterested persons, namely, Bhula, Abdul Kalam, Nabu, Harej, Gani, Aktaar, Nubu and Rahman were not examined. Relationship does not disqualify a person to be a competent witness. There may be cases in which such a witness is the only possible, natural and most dependable witness, despite the relationship. Although P. Ws. 2, 7, 11,12 and 13 were related to the deceased, in this case they were the eye witnesses and most natural witnesses. Of them, P. Ws. 7 and 11 themselves received injuries. The persons mentioned by leariaed counsel were not eye witnesses of the occurrence ; nor is there any evidence to show that they were disinterested. P. W. 2 in his evidence has stated that Bhula, Sattar AH, Abdul Kalam and Omar Ali were ploughing in the nearby field at the time of the occurrence. Of them, Omar and Sattar have been examined as P. Ws. 13 and 12, respectively. They support the prosecution case. Mr. Choudhury submits that witness No. 12, 'Md. Abdul Sattar Mia' is not 'Sattar Ali'. No question was put to P. W. 2 whether Sattar Ali and Md. Abdul Sattar Mia was one person or not ; nor it was suggested that those were two different persons. In our opinion 'Sattar Ali' and 'Md. Abdul Sattar Mia' is one and the same person. When two out of the 4 ploughmen have been examined by the prosecution, it would have been a mere duplication to examine the other two. On the contrary, it has not been shown that Bhula and Abdul Kalam were disinterested persons.
With regard to the non-examination of Nabu and Harmuz, the evidence of P. W. 11 is that they came to the place of occurrence after hearing the outcries. There is nothing on record to show that they were eye-witnesses. The evidence of P. W. 11 further shows that the land of Nurul where the occurrence took place was not visible from the land on which Harmuz and Nabu were working, as their field was intervened by the houses of Jakurnuddin and Khabir. Similarly the evidence of P. W. 2 shows that Gani, Akbar, Ainul, Nur Bax and Rahman came to the place of occurrence after hearing alarms. It appears that they came to the place of occurrence after the occurrence was over and that they were not eye witnesses.
13. What is necessary, and is expected of the prosecution, is that it should produce before the Court the best evidence available. Even if there be a large number of eye witnesses, equally interested or disinterested in the prosecution, the prosecution may not examine all the witnesses. But if some eye-witnesses who appear to be disinterested and more dependable, are not examined, the Investigating Officer should be asked to explain as to why such witnesses have been withheld, and the explanation given by him has to be considered by the Court. If the explanation is unsatisfactory, only then, adverse inference may be drawn against the prosecution. In the instant case no such questions were put to the Investigating Officer.
14. The appellant, in support of his contention, has cited a decision of the Supreme Court reported in : 1976CriLJ1736 , in which it has been observed :
Where all the witnesses enter into a conspiracy to implicate five innocent persons in a murder case, then the back-bone of the prosecution is broken, and it would be difficult for the court to rely on such evidence to convict a single accused, particularly when the prosecution does not give any explanation for the grievous end other serious injuries on the person of Dasrath Singh. This is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case.
The above decision has no bearing to the facts of the present case. Here P. Ws. 2, 7, 11, 12 and 13 are eye-witnesses ; there is no conspiracy and 'the case of indiscriminate assaults by the acquitted accused as mentioned in the F. I. R., can be, and has been disengaged without damaging the case against the appellant, from the case against the appellant.
15. The next submission of learned Counsel is that the sketch map (Ext. 6) has not been prepared in accordance with Rule 194 of the Assam Police Manual. The relevant portion of Rule 194 is in the following terms,
194. Maps required in heinous oases.--
(a) in the following heinous cases map or a plan or, if required by circumstances, both will always accompany the charge sheet :
(ii) Highway or mail robbery.
(iii) Dacoity or extensive burglary or theft.
(iv) Riot involving grievous hurt or culpable homicide or damage to property.
(b) The map should be drawn to a suitable scale which should be marked on it. It will show all particulars likely to be of use to the Court, such as, the place of occurrence, the surrounding rooms of houses, the houses of the witnesses etc., with their relative, positions and distances. The number of the case and the name of the accused should be given at the top and the map should be signed at the foot by the draftsman who should be produced as a witness at the trial to prove the map evidence being adduced to show who pointed out to him the various places marked on it,
(c) Maps to be of value must be prepared as early in the investigation as possible. Particulars derived from witnesses questioned on the spot should not be noted on the body of the map but on a separate sheet of paper annexed to the map as an index thereto, the places indicated being lettered or numbered on the map for reference.
(d) ... ... ...
It appears from Ext. 6 that the scale to which the map was drawn has not been shown. All the other requisites enjoined by Rule 194 have been complied with. In the instant case the occurrence took place on a paddy field. There is no evidence on record to show that there were any houses near the place of occurrence. Necessarily, therefore such houses could not possibly be shown. The purpose of the sketch map is primarily to assist the court in understanding and appreciating the oral evidence on record. If it is not in accordance with Rule 194, it may detract from its value, but it cannot be said to be inadmissible. That apart, in the instant case, even if Ex. 6 be ruled out, it does not affect the prosecution evidence adduced. The submission of learned Counsel has no merit.
16. The last submission of learned Counsel is that in the instant case the accused persons had the right of private defence and the prosecution has not been able to show that the right was exceeded and even if the right was exceeded it would be a case Under Section 304 and not Under Section 302.
Section 299 of the Penal Code defines 'culpable homicide'. Section 300 classifies homicides into two categories : culpable homicide amounting to murder and culpable homicide which do not amount to murder. The homicides of the second category have been mentioned in the 'Exceptions' annexed to Section 300. The relevant Exception as referred to by the appellant, is 'Exception 2' to Section 300. It is as follows :
Exception 2. Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and cause the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
The instant case, in our opinion, is not covered by Exception 2, The evidence shows that the homicide was premeditated. The evidence of all the eye wintesses is that weapons had been concealed from before in an adjacent field and that deceased Mir Box and his brothers were unarmed ; that they had only goading sticks in their hands. It is common knowledge that villagers in going to tend cattle or in going to field with their bullocks, use goading sticks. These are thin sticks used to goad cattle. They are not dangerous weapons. Further, there is no evidence on record to show that even with these goading sticks, either Mir Box or any of the P. Ws. caused or even attempted to cause, any injury to the appellant or to any of the other accused persons. The law is well-settled that when an accused takes the plea of the right of private defence the burden is on him to establish the existence of the right of private defence, although he need not prove the existence of such right beyond reasonable doubt. Once it is established that there is the existence of the right of private defence the burden shifts to the prosecution to prove that such right has been exceeded.
17. In the instant case the appellant had no right of private defence of his person. There is no evidence to show that there was any apprehension, far less apprehension of death or grievous hurt to the appellant or any of his party. Learned Counsel, relying on the finding of the Sessions Judge, namely that the prosecution has failed to prove that the land on which the occurrence took place was in possession of Mir Box, submits that the land was in possession of the appellant and his party. Although, it cannot be held that the land was in possession of the appellant and his party, assuming for the sake of argument that the appellant and his pary were in possession of the land, the appellant had the right of private defence of property only.
Section 103 of the Penal Code provides (material portion only) :
103. When the right of private defence of property extends to causing death. -- The right of private defence of properly extends, under the restrictions mentioned in Section 99 to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions herein enumerated namely,--. ... ...
Fourthly.-- Theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
So the availability and extent of the right of private defence of property is subject to the restrictions mentioned in Section 99. the relevant portion of which may be quoted :
99. Acts against which there is no right of private defence.--. ... ...
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Para 3 of Section 99 clinches the point. In the instant case even if the appellant and his party were in possession of the land in dispute and Mir Box trespassed into the land, the appellant had no right of private defence inasmuch as he had time to have recourse to the protection of public authorities.
In the circumstances we hold that the appellant had no right of private defence at all.
18. Learned Counsel in support of his contention has cited a decision of the Supreme Court reported in : 1973CriLJ677 . In the above case the Supreme Court considered the commencement and continuance of the right of private defence of the body. We have already held that there was no right of private defence of the body in this case, Section 102, I. P. C. has no application to the facts of the case. The decision cited is of no assistance to the appellant.
19. In the result the appeal fails and is dismissed
N. Ibotombi Singh, J.
20. I agree.