P.S. Shah, J.
1. The four accused who have been found guilty by the Addl. Sessions Judge, Raigad for offences under section 302 read with section 34 and under section 324 read with section 34 of the Indian Penal Code have preferred this appeal challenging their conviction. Accused Nos. 1 to 3, Laxman, Eknath and Bhau are the sons of accused No. 4, Rama, who is the brother of P.W. 3 Namdeo. Deceased Hiraji and P.W. 2 Kashinath are the sons of Namdeo. P.W. 5 Pasabai is the wife of Namdeo and P.W. 6 Hirabai is the widow of Hiraji. The third son of Namdeo is Madhukar and Madhukar's wife is Tarabai. Thus there are two families. One of which is headed by accused No. 4 Rama and the other headed by P.W. 3 Namdeo. They all are the residents of village Manivali in District Raigad. The houses of the family of the accused and that of the aforesaid prosecution witnesses and the deceased are adjacent to each other. The map (Exh. 6) provides a clear picture of the house of Namdeo which consists of three portions. Portion 'A' to the north is the old house where he tethers his cattle and portion 'B' to the south of portion 'A' is the newly constructed house where the family of Namdeo resides. The cattle shed is also used by Namdeo for sleeping at night. Between these portions lies an open space having a breadth of about 34 feet. The evidence shows that all this property consisting of portions 'A' and 'B' together with the open space in between belongs to Namdeo. The sketch read with the panchanama of the scene of offence shows that at the time of the incident a wooden cot was placed near the eastern wall of the oti in front of the newly constructed portion 'B'. It is the common ground before us that for quite some time prior to the date of the incident which took place on April 5,1980, disputes about the open place between portions 'A' and 'B' between the two families had arisen. It appears that Namdeo refused to give a share in the open space to accused No. 4 Rama or to allow him to erect a structure in this open space. It is the case of the prosecution that this enmity motivated the four accused to commit the offence. It is the case of the prosecution that on the date of the incident in the morning Namdeo, Kashinath, Hiraji, Pasabai and other member of the family went to their field for agricultural operation and returned in the evening at about 6 p.m After their arrival, Namdeo was seen murmuring that the four accused were giving abuses to him and complaining as to why they were doing so. Kashinath and Hiraji, therefore, brought Namdeo inside the new house possibly to avoid any trouble thereafter, Namdeo and Hiraji had their meals in the new house. After taking meals Namdeo went to the old house i.e. the cattle shed for sleeping and Hiraji went outside on the newly constructed oti and sat on the wooden cot kept there, Kashinath was then taking his meals near the door in between the inner room and the front oti. Since it was night time there was a chimney burning in the inner room of the new house and a lantern burning on the oti of the new house. There was also a chimney burring in the old house where Namdeo was sitting on the wooden cot and smoking beedi. At that time the inmates of the new house heard the cries of Namdeo coming from the direction of the old house. Pasabai, Hirabai and Tarabai came out on the oti of the new house and Kashinath was near the door taking his meals. It is alleged that at that time the four accused armed with weapons were seen coming towards the new house. Accused No. 1 was armed with a sword accused No. 2 was armed with a spear, accused No. 3 was armed with an axe and accused No. 4 was armed with a stick. It is alleged that accused No. 4 Rama told his sons to hold Namdeo and kill him. Thereupon, accused No. 2 assaulted Namdeo with a spear which landed on his left wrist. Thereafter, Namdeo fled from the old house and started going by the eastern side of the courtyard towards Neral. After assaulting Namdeo the four accused turned their attention to the inmates of the new house. Accused No. 1 gave a blow with the sword on Hiraji who was then sitting on the wooden cot on the oti and dragged him in courtyard. Seeing this, Kashinath rushed towards Hiraji and snatched away the sword from the accused No. 1 While snatching away the sword from accused No. 1 he sustained an injury to his right middle finger due to the blade of the sword. Pasabai and Hirabai fell on Hiraji to protect him from further assault and in the process Hirabai also sustained injury. Hiraji felt unconscious in the courtyard. Thereafter all the accused left the place leaving the weapons carried by them at the scene of offence. Kashinath lodged the first information report at report at Neral Police Station at about 10.45 p.m. S.I. Paranje then immediately visited the scene of offence and arrested accused Nos. 2 and 3 on that very night and accused Nos. 1 and 4 later. It may be mentioned that accused No. 2 also lodged a complaint at the Police Station on that very night at about 11.30 p.m.
2. The death of Hiraji was almost instantaneous. The evidence of his wife shows that he must have died within 5/10 minutes of the incident. The postmortem examination over the dead body of Hiraji was conducted by P.W. 4 Dr. Wankhade. His evidence shows that Hiraji had sustained five external injuries. Two of them were incised wounds, two were abrasions and one was a contusion. The injuries were---
1. Incised wound over neck left side 11/2 'above the clavicle bone transverse, 2' x 1/2' muscle deep.'
2. Abrasion over left deltoid area at shoulder tip transverse linear 21/2' in length.
3. Abrasion over left shoulder 1' below the injury No. 2 transverse 21/2' x 1/2.'
4. Incised wound over right hand at the base of thumb vantreraly transverse 1/2' in length, skin deep.
5. C.L.W. over right shoulder, anteriorily, vertical 3/4'x 1/4' skin deep.
3. In the internal examination he found that the left apical plura was cut and big haematoma seen in left plural cavity. He also noticed that the arch of aorta is cut from the above downward injury half inch in length. According to Wankhade the two internal injuries were corresponding to external injury No. 1 which in his opinion was sufficient in the ordinary course of nature to cause death.
4. At the trial the prosecution principally relied on the evidence of the four eye witnesses P.W. 2 Kashinath, P.W. 3 Namdeo P.W. 5 Pasabai and P.W. 6 Hirabai. The defence of the accused was one of total denial. The learned Judge found the evidence of the four eye witnesses reliable and trustworthy. He held all the four accused responsible for the murder of Hiraji and for the injuries sustained by Namdeo. In the result, he convicted all the four accused under section 302 read with section 34 of the Indian Penal Code and sentenced each one of them suffer imprisonment for life. He also convicted them under section 324 read with section 34 of the Indian Penal Code for the injuries of Namdeo and sentenced them to suffer rigorous imprisonment for one month and to pay a fine of Rs. 100/- in default to suffer seven days rigorous imprisonment. All the accused were acquitted of the minor charges under sections 504 and 452 read with section 34 of the Indian Penal Code.
5. The prosecution case finds full support in the testimony of the four eye witnesses. The evidence of Namdeo shows that the relations between his family and the family of accused No. 4 were strained since he refused to give the open space to accused No. 4 to enable his sons to construct a new house for themselves. In his evidence he has stated that because of the strained relations the accused used to abuse and threaten him and in that connection he had made an application on April 2, 1980, to the Gram Panchayat to settle the quarrel between him and accused No. 4. This evidence of Namdeo is borne out by the application which is brought on record . According to Namdeo, on the date of the incident he returned home with the other members of his family from the land at about 6 p.m. After his arrival his daughter Bhima told him that the accused persons abused them saying that they would demolish their new house and threatened them. On being thus told by his daughter, he asked the accused as to why they were abused them though in the partition respective shares were allotted to each one of them. Thereafter his sons Hiraji and Kashinath came to him and requested him to keep quiet and brought him to the new house. After taking meals he went to the old house of the cattle shed for sleeping as usual. He then sat on the wooden cot kept outside the cattle shed and started smoking beedi. Just then the four accused armed with weapons viz. accused No. 1 armed with a sword, accused No. 2 armed with a spear, accused No. 3 armed with an axe and accused No. 4 armed with a stick came there. Accused No. 4 told his sons to hold and kill him and then accused No. 2 assaulted him with a spear and while warding off the blow it landed on his left wrist. He then left the old house and started going by the eastern side of the courtyard towards Neral. When he reached Bhirdoli on way to Neral, his son Kashinath joined him. Kashinath then narrated the whole incident to him. Thereafter, they arranged for bullock cart and both of them proceeded to Neral Police Station. It would thus appear that so far as Namdeo is concerned, he has not witnessed the assault on Hiraji. It appears that in order to save himself from further attack and lodge a complaint he started going in the direction of Neral. The incident which took place after Namdeo left is narrated by P.W. 2 Kashinath, P.W. 5 Pasabai and P.W. 6 Hirabai. Kashinath's evidence shows that while he was taking his meals near the door in between the oti and the inner part of the new house, his brother Hiraji was seating on the wooden cot on the oti. According to this witness, accused No. 1 gave a blow with a sword on the neck of Hiraji and then accused No. 1 dragged Hiraji in courtyard. On seeing this he rushed towards Hiraji and accused No. 1 and snatched away the sword from him and in the process his right middle finger was injured due to the blade of the sword. According to him, at that time accused Nos. 2 to 4 had held Hiraji with their hands. All the woman folk of the family then rushed towards Hiraji and fell on him to save him from further attack and thereafter all the accused ran away. Thereafter, he went to the old house to see his father and since he was not found there he started going towards Neral Police Station. On his way he met his father in the village Bhirdoli and arranged for a bullock cart for going to Neral Police Station and lodged the first information report. The story narrated by Kashinath finds substantial corroboration in the evidence of a Kasabai and Hirabai. It is also seen that the evidence of Kashinath substantially accords with the contents of the first information report lodged by him on that very night. It was urged by Mr. Pradhan that the evidence of these eye witnesses is highly discrepant and unreliable and moreover the prosecution has failed to examine other independent witnesses who must have witnessed the incident. He also submitted that the prosecution has failed to explain the injuries on the persons of accused Nos. 2 and 3 and under these circumstances the case of the defence that at the time of the incident a quarrel took place between Namdeo and Hiraji on one hand and accused Nos. 2 and 3 on the other hand in that scuffle Hiraji and accused Nos. 2 and 3 sustained the injuries appears to be highly probable. Mr. Pradhan also pointed out some discrepancies in the evidence of these witnesses. For instance, while in the first information report it is said that Hiraji was assaulted with a Suri (long knife) in their evidence the witnesses have emphatically maintained that the assault was by a sword. Mr. Pradhan also submitted that the witnesses must not have even identified the assailants and the accused have been falsely implicated on account of enemity. In this connection he pointed out that though at the trial all the witnesses have referred to the lantern and the chimney, their police statements are silent on this point. Lastly, it was submitted that viewed in the background of the extent of the injuries caused to accused Nos. 2 and 3 the genesis of the original incident is not put forth by the prosecution and in its absence it is not possible to say as to who is the aggressor. Hence, the accused are entitled to benefit of doubt.
6. It cannot be disputed and indeed it is not disputed before us that the incident took place in the open space between the two houses of Namdeo's family. The panchanama of the scene of offence clearly shows that blood was seen on the oti portion of the new house and also just outside the old house. The incident admittedly took place at about 8 p.m. The accused had no business to go to the house property which belongs to the family of Namdeo. It is clear that some of them and in any event accused No. 1 was armed with a deadly weapon. The medical evidence shows that Hiraji had sustained a fatal incised injury on his neck. He had also sustained two incised wounds and one confused wound. This clearly shows that he was assaulted with a sharp edged weapon at the time of the incident. Namdeo's evidence that he had sustained an injury is also supported by the medical evidence. Since the incident took place in front of the house of Namdeo's family the members of his family are the most natural witnesses. It was night time and it is not likely that the neighbours might have witnessed the assault. No adverse inference against the prosecution can be drawn in the circumstances of the case for not examining either independent witnesses. As mentioned above, a detailed first information report was lodged at the Police Station within about two hours of the incident. The cross-examination of these four eye witnesses has not brought out any material worth the name which would discredit their testimony. The presence of the four accused at the scene of offence is clearly established by the testimony of these four eye witnesses. The parties are closely related and there is no question of mistaken identity in this case. It was night time and there is bound to be some light in the house. The evidence clearly shows that there was a lantern and a chimney in the new house and also a chimney in the oti house. The witnesses, therefore, would be able to identify the four accused.
Now, it is true that accused Nos. 2 and 3 also sustained injuries at the time of the incident as is evidenced by the medical certificate issued by Dr. Joshi who examined them on the night of the incident. Dr. Joshi who examined accused Nos. 2 and 3 found one incised wound each on the person of accused Nos. 2 and 3. Accused No. 2 had an incised wound on the right leg lower 2/3rd 1'x1/2' bone deep and accused No. 3 had an incised wound on the right shoulder oblique 3'x1' bone deep. These injuries are quite minor as compared to the fatal injury inflicted on Hiraji. Having regard to the fact that the incident took place at the premises of the victims the members of the family of Namdeo have a right of private defence while the accused could not claim such a right nor are the accused entitled to raise the plea that the injuries on the person of the accused rightly relied on the decision of the Supreme Court in Sone Lal v. State U.P., : 1981CriLJ1027 , where the facts found were (1) that the accused who were the aggressors ; (2) that the occurrence took place in the land in front of the house of P.W. 1 was in possession thereof ; (3) P.W. 1 and exercised that right. On these facts it was held by the Supreme Court that-
'Aggressors, even if they receive injuries from the victims of their aggression cannot have the right of private defence nor are they entitled to contend that the prosecution had failed to explain the injuries on the accused.'
7. In the present case the evidence clearly establishes that the deceased and the other family members of the complainant were in their house at the time of the incident and some of them were taking their food while others were relaxing just outside the house in the open space as the villagers are ordinarily doing in summer time. The evidence clearly establishes that accused No. 1 was armed with a sword. It is true that in the first information report and the statements recorded by the police the weapon of offence and was seized at the time of the panchanama at the scene of offence. There is, therefore, no doubt that this weapon i.e., sword was used at the time of the commission of the offence. Under the circumstances no importance can be attached to these discrepancies as to the description of the weapon. The accused cannot be heard to say that their injuries were unexplained since they were aggressors and atleast one of them i.e., accused No. 1 was armed with a deadly weapon like a sword. The evidence clearly shows that it was accused No. 1 who gave a blow with a sword on the neck of Hiraji. The medical evidence shows that this injury was sufficient in the ordinary course of nature to cause death. The evidence further shows that it was accused No. 1 who dragged Hiraji in the courtyard. Accused No. 1 is, therefore, clearly liable under section 302 of the Indian Penal Code. The question is whether all the accused could be said too have the common intention to commit the murder of Hiraji as held by the learned trial Judge. Namdeo has stated in his evidence that all the four accused were armed with weapons and accused No. 4 told his sons i.e., accused Nos. 1 to 3 to hold and kill Namdeo and thereupon accused No. 2 assaulted Namdeo with a spear. If the intention of all the accused was to kill Namdeo and if all of them were armed with deadly weapons, it is rather improbable that the accused persons would have allowed Namdeo to escape without further attack. Now, it is the case of Kashinath that after accused No. 1 dragged Hiraji in the courtyard accused Nos. 2 to 4 held Hiraji with their hands. If accused Nos. 2 to 4 had shared a common intention with accused No. 1 to kill Hiraji one would have expected them to use their weapons, but instead the only part attributed to them is that they had held Hiraji with their hands. It is, therefore, doubtful as to whether accused Nos. 2 to 4 shared a common intention with accused No. 1 to kill Hiraji. It would, however, be said in the circumstances of the case that they had shared a common intention to cause grievous hurt to Hiraji and would be guilty under section 324, read with section 34 of the Indian Penal Code.
8. In the result, the appeal is partly allowed. The conviction of accused No. 1 under section 302 read with section 34 of the Indian Penal Code is set aside and instead he is convicted simplicitor under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life. The conviction and sentence of accused Nos. 2 and 4 under section 302 read with section 34 of the Indian Penal Code is set aside and they are convicted under section 324, read with section 34 of the Indian Penal Code for the injuries caused to Hiraji and sentenced to imprisonment already undergone. The conviction and sentence under section 324 read with section 34 of the Indian Penal Code for the injuries caused to Namdeo are maintained. The order of the trial Court that the substantive sentences to run concurrently is also maintained. Since accused Nos. 2 to 4 have already suffered imprisonment for over six months, they are directed to be set at liberty forthwith, unless required in some other case.