JUDGMENT Mukul Gopal Mukherjee, J. : The present appeal is directed against an order of conviction under s. 302 read with s. 34 of the Indian Penal Code and sentence of imprisonment for life, passed on each of the appellants by Sri Murari Mohan Mallik Sessions Judge, Bankura on 13.8.1986, in Sessions Trial No. 1 of December 1985/Sessions Case No. 5 of November, 1985. 2. Appellant No. 1 Ashoke Ghosh, appellant No. 3 Asit Ghosh and Appellant No.4 Ashish Ghosh are the there sons of appellant No.2 Pravakar Ghosh. All four of them were arraigned on a charge of committing murder by intentionally causing the death of Sankar Ghosh who happened to be the younger brother of appellant No. 2 and the uncle of the appellant Nos. 1, 3, and 4, in furtherance of the common 'intention of them all, on 20th August 1983 at Lohagarh More within PS. Chhatna in the district of Bankura. 3. In the FIR lodged at Chhatna PS, at 10-30 A.M. on 30th August 1983 by PW1, Chandan Ghosh of Ghosergram, 7 kilometres from the place of occurrence, it was given out specifically that while he and his father Sankar were sitting at about 9 a.m. in their grocery shop at Lohagarh More and while his father was discussing with Damu Majhi (PW12) and Mihiraj Roy (PW 3) regarding the sale of a land by his uncle Pravakar two years back, his cousin Ashish Ghosh, son of Pravakar who was present, intervened. His uncle Pravakar Ghosh also reached there and made protest against his father's (Sankar) observations and an altercation ensued between them but thereafter they left. At about 9-30 a.m. Pravakar came back armed with Tangi and each of his three sons Ashoke Ghose, Asit Ghosh and Ashish Ghosh were also armed with "Kencha". They surrounded his father (Sankar) in front of their shop. His father Sankar tried to run away out of fear. Then Pravakar assaulted his father on his chin Tangl in his hand and Ashoke and Asit assaulted his father with Kenchas. His father received injury on his right and left ribs and also under the right shoulder on the back and his father fell down with bleeding injury. The first informant Chandan Ghosh and Uday Ghosh (PW15) etc. tried to catch hold of them but the accused persons ran away. His father received injury on his right and left ribs and also under the right shoulder on the back and his father fell down with bleeding injury. The first informant Chandan Ghosh and Uday Ghosh (PW15) etc. tried to catch hold of them but the accused persons ran away. Ashoke Ghosh also got an injury on his hand by Pravakar's Tangi while running hurriedly and also got injury on parts of his body by' their Kenchas. His father (Sankar) died before getting any medical help. It was the version given out by PW1 Chandan Ghosh that those four accused have killed his father in a pre-planned way. When the incident took place Hari Ghosh, Uday Ghosh etc. were present there and -they saw the incident. On the basis of FIR, police took up investigation. PW16 Sub-Inspector Asit Chakrabarty visited the place of occurrence at Lohagarh More and held the inquest over the deed body. He seized some blood stained earth from the place and also some controlled earth and bloodstained cloth and napkin of the deceased. He sent the dead body to the Morgue at Bankura for holding post-mortem examination. He examine9 witnesses Uday Ghosh, Tarapada Ghosh, Sasanka Ghosh and Hari Ghosp and then went to Ghosergram, the place of residence of the accused persons in search of them and for tracing out the weapons used for committing 'he offence. He searched the house of Pravakar Ghosh but could not recover any weapon. He found Ashoke Ghosh, on FIR named accused and arrested him and found some injuries on his person and sent him to hospita1 for treatment through an Assistant Sub-Inspector of Police. He left Ghosergram at 7 A.M. on' 31.8.83. On 14.9.83 the 10 came to know about the release: of Ashoke' Ghosh from Hospital and accordingly forwarded him to Court on 15.9.83. He came to know that the other three accused persons had surrendered in Court. PW7 (Dr. J.N. Dey) Lecturer, Department of Forensic of State Medicine and Bankura Hospital held the post-mortem examination around 3 P.M. on 30.8.83. He found the following. injuries on the person of the deceased: 1. One incised wound 1' x 1½" muscle deep placed more or less transversely over the upper and outer part of right scapular region, 6" away from midline of back. 2. He found the following. injuries on the person of the deceased: 1. One incised wound 1' x 1½" muscle deep placed more or less transversely over the upper and outer part of right scapular region, 6" away from midline of back. 2. One incised would 3/4" x 1/2" placed obliquely over the right side of chin 1/4" to the right of midline of front 3. One abrasion 1" x 1/2" placed obliquely over the upper part of the sternal region. 4. One abrasion 11/2" x 1/2" placed obliquely over the lower part of the left side of chest, ¼ to, the left of midline. 5. One abrasion 11/2" x 2" placed obliquely over the upper part' of the right pectoral region, 2" to the right of midline. 6. One linear abrasion 11/2" long placed obliquely over the upper most part of right pectoral region. 7. One linear incised wound skin deep 11/2" long placed obliquely in the upper part of the thinner eminence close to the root of right thumb. 8. One incised penetrating wound 3" x 1" on right chest cavity placed obliquely over midpart or right lateral chest wall the wound was 4" away and 11/2" below the level of right nipple and also 81/2" to the right of midline of front of chest. 4. Death according to his opinion was due to the effect of thoracoabdominal injuries (Injury No.8) which was antemortem and homicidal in nature. According to him, injury No. 8 might be caused by a sharp-pointed weapon like kencha or ballam. The incised wounds might also be caused by tangis. Abrasion might be caused either by fall or by hit by lathi and not by ballam. According to him injury No. 8 was sufficient to cause death in the ordinary course of nature. The investigation was later on conducted by PW17 (Amarendra Nath Tewari), OC., Chhatna Police Station. He prepared a sketch map of the place of occurrence with index. He recorded the statement of witnesses Mihiraj Roy and Mahadev Ghosh on 13.2.84. On 3.4.84 he collected the injury report of Ashoke Ghosh from Bankura P.S. On 5.5.84 he collected further opinion of the Autopsy Surgeon from his office. He also examined Damu Majhi (PW12) and Dharani Ghosh and recorded their statements. On 24.8.84 he recorded statements of witnesses Narayan Mandai (PW 5) and Tarapada Ghosh. On 3.4.84 he collected the injury report of Ashoke Ghosh from Bankura P.S. On 5.5.84 he collected further opinion of the Autopsy Surgeon from his office. He also examined Damu Majhi (PW12) and Dharani Ghosh and recorded their statements. On 24.8.84 he recorded statements of witnesses Narayan Mandai (PW 5) and Tarapada Ghosh. On 6.11.84 he recorded the statements of Sasanka Ghosh and Anita Ghosh (PW11). On 1.5.85, present the seized blood stained earth and lungi and napkin to Forensic State Laboratory but he did not receive back the report. After completion of investigation he submitted charge sheet on 23.8.85 against all the four persons under s. 302/34 IPC., who thereafter were placed on trial to meet a charge under s. 302/:34 IPC. to which they pleaded not guilty. The drfence inter alia was that the incident did not happen in the manner as alleged and that the accused appellants exercised their right of private defence of person and property when Sankar wanted to forcibly dismantle their newly: built wooden construction of a chala and physically tried to assault Pravakar. 5. At the trial 17 prosecution witnesses were examined. One defence witness Dr. Gouri Sankar Mahapatra (who was at the relevant time posted in the Emergency Department of Bankura Sammilani Medical, Coliege and Hospital) was examined as DW1 to prove the injuries on the accused appellant Ashoke Ghosh. 6. PW1 Chandan Ghosh, the son of the deceased Sankar Ghosh deposed inter alia to the effect that on the day of occurrence he and his father were sitting in their grocery shop at Lohagarh More near the bus stand. Their village Ghosergram was at a distant of 6/7 minutes walk from their place of business. Mihiraj had a tea stall under the chala of their shop. Damu Majhi was also present in the tea stall. His father (Sankar) was then having a discussicn with Mihiraj and Damu Majhi about a piece of land when Ashis Ghosh came there. Pravakar also came immediately thereafter. Ashis and Pravakar then had an altercation with his father. Mihiraj and others tried to pacify them. Thereafter Pravakar and Ashis went back. Within half an hour, Provakar came there with a Tangi along with his three: sons Asit, Ashoke and Ashis, each having a Kencha in their hands. Coming there, they surrounded his father who wanted to leave the spot. Mihiraj and others tried to pacify them. Thereafter Pravakar and Ashis went back. Within half an hour, Provakar came there with a Tangi along with his three: sons Asit, Ashoke and Ashis, each having a Kencha in their hands. Coming there, they surrounded his father who wanted to leave the spot. Pravakar assaulted his father with a Tangi on the side of the cheek. Asit, Ashoke and Ashis assaulted his father with kenchas. While his father fell down, Pravakar and his sons tried to run away. He was then standing by the side of his father. While they were trying to run away, Pravakar and Ashoke having been entangled, fell down and as a result Ashoke got injury on his left arm by a Kencha. His father was profusely bleeding from the injuries and though he tried to take his father to some doctor, his father expired within a very short time. Mihiraj Roy (PW 9), Naran Mandai (PW 5) Anita Ghosh (PW11) saw the incident. Sankar Ghosh, his maternal uncle was going to their house and he got down from bus and with him he went to the police station where he narrated the occurrence on recording the FIR. In cross-examination he stated that his younger sister Anita was given in marriage after the [death of his father, about one year from the date of death of his father. His maternal uncle Sasanka lived in village Salboni which is about 7 miles away from their village. His maternal uncle (PW 2) Sasanka came in front pf their shop by bus and within 15/ 20 minutes of his maternal uncle's arrival at the bus stop, they started for Chhatna Police Station. His elder brother Mahadev was at Lohagore More. The house of his father, and his uncle Pravakarand Lahur are within the same compound though they are now separate. Pravakar Babu and his sons were making a wooden structure adjacent to their room and were making a chala. Because of the sale of a land by Pravakar including water passage, they suffered prejudicially in getting Water in their land. His Jethamashai (uncle) Lahur also faced similar irrigation difficulties. His father did not bring any action against Pravakar for selling his share of the land. He admitted that in the FIR he gave the time of occurrence approximately by guess. His Jethamashai (uncle) Lahur also faced similar irrigation difficulties. His father did not bring any action against Pravakar for selling his share of the land. He admitted that in the FIR he gave the time of occurrence approximately by guess. When police came back from their village Ashoke Ghosh was them and Police took Ashoke on a jeep and left the place. 6n months after the date of occurrence, the police examined him. Police did not come in between the period of their first coming their shop and his examination and in between the period he did not also visit the thana. Accused Pravakar had some jostling and pushing and he tried to assault with kencha and other weapons. He admitted that he told the name of Asl1is to the 10 while recording FIR. He named the persons who saw the assault on his father. In the FIR he also told that Pravakar and Ashoke fell down being entangled in their legs while fleeing away. The accused persons surrounded their father in the chala and then assaulted his father. They began to assault his father with tangi and kencha at random. Pravakar assaulted his father on the right side of the cheek by a tangi with medium force. The fala of the tangi was 8" inches. The other accused persons assaulted his father or other parts of the body with kencha. He was standing at a distance of 1/2 cubits away when his father was being assaulted. His father's body was pierced with kenchas at different places. He denied in cross-examination that they raised objection when the accused persons were preparing varandah of the structure adjacent to their shop saying that the construction was harming them. He denied the suggestion that his father came in front of their construction and picked and threw down the structure and kicked on the chest of Pravakar. He admitted that his father maintained much better physical strength than that of his Jethamosai (uncle Pravakar). Batali and other cutting instruments were there for preparing the chala of his jethamosai. There were pieces of wood there. Ashish rushed towards his father with a piece of wood when his father was assaulting Pravakar. He denied the defence suggestion that his father was assaulting Pravakar when Ashish began to assault on his father (Shankar) with a piece of wood. There were pieces of wood there. Ashish rushed towards his father with a piece of wood when his father was assaulting Pravakar. He denied the defence suggestion that his father was assaulting Pravakar when Ashish began to assault on his father (Shankar) with a piece of wood. There was a further suggestion of the defence to him which was of course denied by him to the effect that Ashish assaulted Sankar with a piece of wood, when (PW 1) brought 'a ballam from inside the shop and made it over to his father (Shankar) and that he took a piece of wood from the wooden logs lying there and that a fight began between him on the one hand and Ashish and Asit on the other with pieces of wood and that Ashoke had a small axe in his hand and that his father (Shankar) attacked Ashoke with the ballam supplied by PW1. The other suggestion was that Ashoke was then hurling axe at his father. That his father (Shankar) was then attacking Ashoke with ballam also refuted. The other defence suggestion was that as a result of his father attempting to pierce the chest of Ashoke, he assaulted the left arm of Ashoke or that by this attempt, Ashoke's' axe fell down and then Ashoke tried to run away and them :his father (Shankar) threw his ball am towards Ashoke which struck Ashoke on his waist and Ashoke then took out the sharp and of the spear and penetrated it on the waist and Shankar then took up that axe to kill Ashoke anp when he made attempt to do that, Ashoke in order to save his life, ass~ulted his father (Shankar) with that ballam. PW 2 Sasanka Ghosh, the maternal uncle PW 1 (Chandan) deposed inter alia to the effect that he got down or the way at the bus stop at Lohagora More, at about 10 a.m. Getting down: from the bus he saw an assembly of men in front of the shop of his Jamaibabu (elder sister's husband) and there he found his Jamaibabu Sankar lying dead. Chandan Ghosh (PW1) came to him and told that Pravakar and his three sons Ashoke, Ashis and Asit had killed his father. Pravakar Ghosh had a Tangi and Ashis, Ashoke and Asit were armed with Kenchas. Chandan Ghosh (PW1) came to him and told that Pravakar and his three sons Ashoke, Ashis and Asit had killed his father. Pravakar Ghosh had a Tangi and Ashis, Ashoke and Asit were armed with Kenchas. He then accompanied PW 1 Chandan to Chantna Station where he narrated the occurrence to the Daroga Babu and it was recorded as FIR. He was a witness to the seizure of a blood stained lungi and one blood stained napkin and some blood stained earth and some control earth from the spot by the 10. 7. PW 3 Mihiraj Roy's narration of the incident slightly departed from the version as given by PW 1 (Chandan). According to him it was at about 7.30/8 a.m. when he was sitting in the tea stall, the witness PW 12, Damu Majhi and Shankar being there, Damu made a query from Shankar about cultivation, in respect of their land at Majhipara, Shankar replied that his elder brother had sold the land including water passage, as a result whereof, his land could not be cultivated. Ashis was standing nearby. Asish intervened by saying as to how it concerned Damu when Pravakar had sold away, his land. Pravakar also came after some time and there followed an altercation. PW 5 Naran Garai, and PW 12 Damu Majhi and he himself intervened and forbade them from quarrelling. Naran had a betal gumti, south of the chala. After sometime Ashoke, Ashis came there and Pravakar also came there. Ashoke, Ashis and Asit were armed with Kenchas, and Pravakar had a Tangi in his hand. Sankar was then sitting in the chala. They abused Sankar and this prompted Sankar to came out. Sankar tried to escape but the accused persons entangled and assuated him with Kenchas. According to this witness, PW 11 Anita Ghosh, the youngest daughter of victim Sankar, Naran Chandra Mandai (PW 5) Chandan (PW 1) alone with the deponent were present there. Before encircling of Sankar by the accused persons, there was pushing with hands. He saw the accused persons i when they reached the place with weapons in their hands. He told the police that Pravakar came with Tangi. He admitted that he was present at the stall till about 7.00 p.m. 5/6 months after, the police interrogated him though he was in the village after the occurrence. He also saw Chandan during the intervening period. He told the police that Pravakar came with Tangi. He admitted that he was present at the stall till about 7.00 p.m. 5/6 months after, the police interrogated him though he was in the village after the occurrence. He also saw Chandan during the intervening period. Contrary to PW 7, he gave out that Pravakar and his sons did not do anything in that ghar which they proposed to construct. 8. PW 5 Naran Chandra Mandai was the owner of a betal shop near the bus stop where Shankar had also a grocery shop, the distance being 20/22 cubits. At about 8-30 a.m. on that day he was in his shop. While opening his shop he found there was an altercation going on between Ashis and Provakar on one side and Shankar on the other. He intervened and pacified them along with Hari Ghosh. Hari Ghosh was however dead. After sometime Ashoke, Ashis and Asit and Pravakar came and tried to assault Shankar. They had 'ball am" in their hands and assaulted Shankar Ashoke, Asit and Ashis had ballam in their hands while Pravakar had a Tangi in his hand. Chandan (PW1). Sankar's youngest daughter Anita (PW11), Mihiraj (PW 3) and Hari (since deceased) along with him saw the occurrence. He admitted that even after the incident, he used to meet Chandan (PW 1). He was in his shop even for one year since after the incident but during this period he did not see police personnel. From the morning of the day of the occurrence, Pravakar and his three sons were brining woods for preparing their ghar by the side of the Chala. They stretched pieces of woods in the place of their ghar. There were instruments for cutting wood which were also brought at that place, which included batal, bamboo and axe etc. and an altercation took place within a period bf 2/5 minutes. When Shankar was being encircled and assaulted, he was in his shop. The fight took place on the pitched road in the side of his shop. Sankar Ghosh was brought to the conversation on being encircled.• Shankar Ghosh fell down on the pitched road after being assaulted and he moved towards his shop and there he fell down in front of his shop. The fight took place on the pitched road in the side of his shop. Sankar Ghosh was brought to the conversation on being encircled.• Shankar Ghosh fell down on the pitched road after being assaulted and he moved towards his shop and there he fell down in front of his shop. Curiously enough this witness deposed to the effect that only one of the accused persons assaulted Shankar and others did not, but this is belied by the medical evidence on record. He admitted that he was not interrogated by police for a pretty long time. 9. PW 6 (Dharani Ghosh) who was the son of Lahur Ghosh (brother of Sankar and Pravakar). deposed inter alia to the effect that he came to the shop of Shankar Ghosh at about 7-30 a.m. while going towards their Chaser Bari (place of cultivation). Shankar asked him as to whether he would cultivate the land of Kararbad. Asis and Pravakar were then bringing pieces of woods. Shankar then remarked as to how he could cultivate the land. Then followed an altercation between Ashis and Pravakar on the one hand and Sankar on the other, which altercation was however, pacified and he then went to his own field which was at a distance of about half a kilometre away from Lohagarh More. It was 9/10 a.m. that he came to know that his uncle died and immediately he 'came to Lohagarh More. 10. PW 10 (Tarapada Ghosh) was another son of Lahur Chandra Ghosh, the brother of victim Shankar and the appellant Pravakar. His son informed him that his uncle created disturbance and hearing this, he proceeded to Lohagarh More and on his way he met Pravakar and his three sons who had ballams in their hands and nothing else. He also met PW 1 Chandan at Lohagorh More. He reported to him that Pravakar had gandogol (disturbance) with Sankar Ghosh and he asked him to report the occurrence at Jhantipahari Bazar. He then ascertained that Sankar had already died and there were ballam injuries on his person. Without asking anything more, as to who caused the injuries, he proceeded to Jhantipahari Bazar where he informed Mahadeb about the occurrence. When he reached Lohagorh More, he saw Chandan and none else. 11. He then ascertained that Sankar had already died and there were ballam injuries on his person. Without asking anything more, as to who caused the injuries, he proceeded to Jhantipahari Bazar where he informed Mahadeb about the occurrence. When he reached Lohagorh More, he saw Chandan and none else. 11. PW 11 (Anita Ghosh) the youngest daughter of the deceased Shankar Ghosh deposed inter alia that at about 7-30 a.m. while she was alone in the house, she heard Ashis saying to Asit and Ashoke to take out the weapons for assaulting their uncle Shankar. Asit, Ashis and Ashoke then came out with Kenchas and Tangi. Seeing this, she followed them to Lohagore More. Reaching there she told her father to run away and her father actually tried to run away but before he could go away, the accused came. Pravakar was also there. Pravsakar had a tangi and Ashoke, Asit and Ashis had kenchas in their hands. All of them surrounded her father and killed him. Her father tried to run away but he could not. They assaulted her father with Kencha and Tangi. Her brother Chandan Ghosh (PW 1) Hari Ghosh (since dead) Mihiraj Roy (PW 3) and Narayan Mandai (PW 5) saw the occurrence. She could not say if the members of the house of Lahur Ghosh had also heard it while Asis asked Ashoke and Asit to take out weapons. She did not see any people of their village when she was coming to Lohagore More on that day. They were at distance of 20/25 cubits from Asit, Ashis and Ashoke when she was coming to Lohagore More on that day along with them. When Pravakar and his three sons surrounded her father, she was outside the chala at a distance of less than one cubit from the chala, where they surrounded her father and began to assault him and her father fell down having been assaulted and became unconscious. She saw her father leaning against the southern wall when she did not see her father move backwards. When the police came Hari, Uday and Mihiraj wiere not present. 12. PW 12 (Damu Majhi) testified to the effect that he was called by the B.D.O. to remain present at Lohagore More for supply of seeds by the said office. He was witness to the altercation between Ashis Ghosh and Sankar Ghosh over the land. When the police came Hari, Uday and Mihiraj wiere not present. 12. PW 12 (Damu Majhi) testified to the effect that he was called by the B.D.O. to remain present at Lohagore More for supply of seeds by the said office. He was witness to the altercation between Ashis Ghosh and Sankar Ghosh over the land. While an altercation was going on, he left accompanied by Krishi Prajuktisahayak. PW13 (Rabi Mandi) was a witness to the effect that Pravakar Ghosh sold his one-third, share to them by a deed and they constructed a house on that purchased land contiguous to the road and because of the construction by them, the passage of water to Sankar's land was blocked. He thus proved the enmity between Pravakar and Sankar. PW 14 (Aloknath Bandopadhyay) was a dead writer. He testified about the deed of Pravakar being written by his assistant Sasanka Choudhury in his Sherista. PW 15 (Uday Ghosh) who was an alleged eye-witness however, turned hostile and gave out that though he had a hotel at Lohagorh More and knew about a row as a result of altercation between the Pravakar and Sankar and pushing was going on, when he went there, Sankar entered his shop room and Pravakar remained sitting and his sons went away and he also went back to his house. Thereafter, when he came, he saw Sankar was already lying dead in front of his shop under the chala. He did not see any marpit (fight). He admitted that when he was examined by I.O in connection with the case on the very day of the occurrence but he denied having given out to the I.O any news about altercation between Sankar and Pravakar over the land and thereafter Provakar coming back with his three sons and his three sons - having one kencha each in their hands and then Provakar's sons assaultingSankar with these weapons. In cross-examination by the defence he admitted that many people assembled when the altercation between Shankar and Pravakar was taking place. Even when the police took the dead body, he was present. It stands evident that this witness did not support the prosecution even though he was a material witness to the crime. DW 1 Dr. In cross-examination by the defence he admitted that many people assembled when the altercation between Shankar and Pravakar was taking place. Even when the police took the dead body, he was present. It stands evident that this witness did not support the prosecution even though he was a material witness to the crime. DW 1 Dr. Gouri Sankar Mahapatra who examined accused Ashqke Ghosh at 1.20 P.M. deposed inter alia that Ashoke made a statement to him about being assaulted by Shankar Ghosh at about 9 a.m. He found one penetrating injury over his left buttock. The margin of the injury was lacerated; l' x l' in dimension. Another injury was also found on his person which was grossly lacerated and an irregular injury over the posterior aspect of the: lower part of the left arm and left elbow. He found such injuries to be bleeding injuries. He found that the injuries on Ashoke Ghosh were possible with spear. There was no mention about depth of the injury No.1. It was not possible for him to say from the injury report either as to the length or as the width or even depth of the injury NO.1. Both injuries were minor wounds and it was unlikely that they could be caused by fall on rough substance. None of the injuries were on vital parts of the body and injuries might 'also be self-inflicted. The bleeding, according to his estimation could continue up to 15 minutes approximately from the time of origin of the injuries he found, but bleeding could continue even beyond 15 minutes, if vains and arteries were injured. Such injuries, he found possible, if jostling among several persons took place, while the victim was trying to run away and he fell down and came in contact with a spear. 13. The learned Trial Judge on a sifting of the entire evidence on record ignored the apparent discrepancies of the evidence given out by the prosecution witnesses. He found that even though, according to the evidence of PW 1, Pravakar made only one assault on the cheek of the deceased Shankar with Tangi, there were two other incised wounds on the person of the deceased and such incised wounds; were quite possible if the deceased was struck with the sharp edges of kencha or ballam. He found that even though, according to the evidence of PW 1, Pravakar made only one assault on the cheek of the deceased Shankar with Tangi, there were two other incised wounds on the person of the deceased and such incised wounds; were quite possible if the deceased was struck with the sharp edges of kencha or ballam. The defence story of assault by Sankar on Ashoke appeared to him to be difficult to be accepted. He found the testimony of PW 5 about only one person assaulting deceased totally unacceptable, since medical evidence on record given by PW 7 Dr. J.N. Dey was otherwise. Even though the names of Anita (PW11) and Naran Mandal (PW 5) were absent in the FIR as witnesses and such witnesses were examined after a long spell to the by the 10, the testimony of PWs. 1, 3, and 5 was accepted by him as of natural and probable eye-witnesses in this case, even though PW1, 3 and 5 have not given a consistent picture as to the exact place of assault and according to the defence, the place I of occurrence was in front of structure just by the side of the grocery shop of Sankar, The learned Trial Judge was of view that there was apparently no dispute that the deceased Sankar was done to death by assaults on him by the accused and the inconsistency as to the exact place of assault could not have the effect of disbelieving the prosecution case. A few errors here and there with regard to the place of assault in the deposition of witnesses, would not materially bring out any chance in the prosecution version as given out in the FIR and as stated by witnesses. Regarding the place of occurrence, considering the totality of the entire evidence, the learned Trial Judge came to a positive finding that the complicity of the accused persons was proved beyond any shade of reasonable doubt. He ruled out the possibility of the IO manufacturing the FIR and other documents in collusion with PW 1 Chandan. Regarding the place of occurrence, considering the totality of the entire evidence, the learned Trial Judge came to a positive finding that the complicity of the accused persons was proved beyond any shade of reasonable doubt. He ruled out the possibility of the IO manufacturing the FIR and other documents in collusion with PW 1 Chandan. The learned Trial Judge accepted the credibility of the version of Anita (PW 11) as regards Asis asking his brothers to come out with weapons and her testimony that she followed them to Lohagarh More appeared to him to be creditworthy even though according to the estimate of the Trial Judge, her statement about the time ought not to have been viewed with any seriousness. The learned Trial Judge also ruled out the right of private defence either of person or of property and came to clear verdict that even though there were injuries on the person of Ashoke, the injuries were sufficiently explained which did not support the defence story that these were caused by deceased Sankar with spear. He disbelieved the defence case that Ashoke in order to save his life from imminent danger assaulted Sankar with spear. It was evident that the stroke caused by injury No. 8 resulted in the death of Sankar. The learned Trial Judge on the other hand held that the said injury NO.8 was caused from a close distance as was evident from the evidence of PW 7 Dr. J.N. Dey. Since the wound was found to be directed from above, downwards lightly forward and middle ward, Sankar was not only assaulted from a close distance but that while he was so assaulted, then he was not in a standing position. Even though PW 10 Tarapada Ghosh gave out that he saw the accused persons with ballam in their hands and the fourth ballam was argued by the defence to be the ballam of Sankar, the learned Trial Judge found the prosecution case of Pravakar armed with Tangi to be accepted and he ruled out the testimony of PW10. Tarapada Ghosh as an ordinary mistake, when there ware evidence galore that the three brothers Ashoke, Asit and Asis had kenchas in their hands. Accordingly the learned Judge passed the order of conviction under section 302/34 IPC and sentenced all four of the accused persons to imprisonment for life. 14. Mr. Tarapada Ghosh as an ordinary mistake, when there ware evidence galore that the three brothers Ashoke, Asit and Asis had kenchas in their hands. Accordingly the learned Judge passed the order of conviction under section 302/34 IPC and sentenced all four of the accused persons to imprisonment for life. 14. Mr. Murari Mohan Das appearing on behalf of the accused appellants drew out attention to the fact that PWs 3, 5 and 11 were examined by the IO. aftar a long lapse of time which made their credibility doubtful. Mihiraj Ray was named in the FIR as a witness but he was examined by the police on 13.2.84, and PW 5 Narayan Chandra Mandai was examined on 24.8.84. There might be a plausible explanation on the delayed examination of Anita on 10.11.84, since she was married off and being a marriageable daughter, she did not want to get herself involved as a witness to a case of murder of her father. Even though there was a delayed examination of these witnesses, we do not brush aside their testimony to the incredible as the final court of facts. Uday Ghosh PW 15 indeed turned out to be hostile and other witness to the crime, Hari Ghosh whose name was in the FIR, was dead. PW 5 Narayan Chandra Mondal even though spoke about the complicity of the accused persons, especially with regard to all four of them coming to assault Sankar, gave out that the three brothers had ballams in their hands and Pravakar had a tangi in his hand.. However Narayan Mandai's version was that only one of them assaulted Sankar and others did not, which story however did not find any support from the medical evidence on record which spoke about four incised injuries on the person of Sankar along with very many abrasions on his body. PW 3 Mihiraj Roy supported PW 1 as regards the participation by each of the accused in the crime and the three brothers coming with kenchas, but then as we found from the FIR itself lodged by PW 1, there was no role ascribed to Asis regarding his participation in crime and it was merely given out that Ashoke and Asit assaulted Shankar with kenchas and Pravakar assaulted Sankar on his chin with a tangi in his hand. 15. 15. In view of there being wide discrepancies as regards the exact situation of assault, we cannot rule out altogether the possibility of Sankar threatening the demolition of the wooden structure of Pravakar which was being built up by him and his sons adjacent to the grocery of Sankar. The evidence as to right of private defence, as was pointed out by very many leading decisions on the point, cannot be weighed in golden scale. Arrogating ourselves to the perspective of prudent men, if we find that there was any real occasion whatsoever for the appellants resorting to right of private defence of their property, we have to hold as well in the facts and circumstances of the case that the accused persons far exceeded the said right by a attacking their uncle who was unarmed in a brutal manner as they did which is manifest enough from the medical evidence on record. We are conscious of the testimony of PW 1 who said in his cross-examination that Asis rushed towards his father (Sankar) 'with a piece of wood when his father (Sankar) was assaulting Pravakar. We could not specifically assess as to how the assault on Sankar did original except from the injuries inflicted by Ashoke, Asit and Pravakar and if Asis really attacked Shankar with a piece of wood, there having already been a kencha in his hand, we cannot possibly believe that he was really armed with a kencha at all. There being no specific role ascribed to him in FIR as to assault by him and his presence being only at the time of the first altercation half an hour before the actual incident, even though there is no direct participation by Asis, we would only be constrained to hold that he had no common intention to join his other brothers' and his father in assaulting Sankar to such an extent so as to cause culpable homicide either amounting or not amounting, as the case may be, ultimately to murder. The only evidence to connect Asis with prior concert with his brothers Ashoke and Asit is the testimony of PW 11 Anita and there not having been any whisper about her presence in the FIR given out by PW 1 Chandan and her own testimony being inconsistent about there being no other person present in their house, when Asis asked his brothers to come out with arms, we rule out altogether that she, despite being a marriageable and grown up daughter would really be running along with her cousins keeping a distance of 20/25 cubits, to the place of business of her father at Lohagorh More. In that context we find that Asis, even though he assaulted Sankar while Pravakar himself was attacked by' Sankar, committed really no offence his acts being otherwise protected by the right of private defence of person, which entitled him, which he did, to protect his own father Pravakar and his prior concert with his father and brothers with an intent to murder his uncle Sankar, being ruled out altogether. As regards Pravakar, we find that he hit Sankar with a tangi brought by his sons Asit and Ashoke and the tangi injury was testified to by PW 7 (Dr. J.N. Dey) manifestly causing an injury on the chin. He is indeed responsible for his own act and even though he acted in conjunction his two sons Asit and Ashoke, despite there was an injury on Ashoke himself which was not on a vital part of the body, we are of the firm view that Pravakar joined his two sons Asit and Ashoke in a common intention to assault Shankar. Ashoke's and Asit's complicity in causing several incised wounds by kencha on Sankar has been proved beyond reasonable doubt and even though we found that "shoke had an injury which had been sufficiently explained by the prosecution, we can safely hold that Pravakar, Ashoke, Asit really exceeded their right of private defence of person and property in having assaulted Sankar with knowledge as was sufficient in the ordinary course of nature to have caused death. We hold in such circumstance that the appellants, Ashoke Ghosh, Asis Ghosh and Pravakar Ghosh guilty under s. 304 Part I read with 34 IPC. and we think that the ends of justice will be sufficiently met, if all three of them, are sentenced to RI. We hold in such circumstance that the appellants, Ashoke Ghosh, Asis Ghosh and Pravakar Ghosh guilty under s. 304 Part I read with 34 IPC. and we think that the ends of justice will be sufficiently met, if all three of them, are sentenced to RI. for 7 years along with a fine of Rs. 2000 each in default RI. for two more years. The appellant Asis Ghosh is however entitled to the benefit of a reasonable doubt and he is acquitted accordingly. In the "result the appeal stands allowed in part, the conviction of the appellants Ashoke Ghosh, Pravakar Ghosh and Asit Ghosh stand modified to one under s. 304 Part I read with s. 34 IPC. and each of them is sentenced to Rigorous Imprisonment for 7 years along with fine of rupees 2000/- each in default RI. for to years more. The amount of fine, if realized will go to heirs of late Sankar Ghosh as compensation. The accused Asis Ghosh is however, acquitted of the charges under s. 302/34 IPC and we find him also not answerable to the offence under s. 304 Part I s. 34 IPC either. Let Asis Ghosh be set at liberty forthwith. Gitesh Ranjan Bhattacharjee, J.: agree. Appeal allowed in part.