SAMBHU BORA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Appellants Sambhu Bora and Tarun Bora, father and son, appeal from the judgment convicting them under S.302/34, I.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 S. 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 S.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 S.302 and may be under S.304, I. P. C.