JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 30.4.2013 and 2.5.2013 passed by learned Additional Sessions Judge, 5th Court, Krishnanagar, Nadia, in Sessions Trial No.II (June) 2011 arising out of Sessions Case No.95(3)2011 convicting the appellants, namely, Kalachand Biswas and Bhagabat Biswas alias Sarkar, for commission of offences punishable under sections 302/34 of the Indian Penal Code (for short ‘I.P.C.’) and sentencing them to suffer imprisonment for life each and to pay a fine of Rs.3000/- each, in default to suffer further rigorous imprisonment for one year each. 2. The prosecution case as alleged against the appellants is to the effect that Jitendra Nath Biswas (the victim) threw a stone at the house of Rajkumar Biswas and a quarrel ensued between the family of Jitendra and the appellants. Thereafter, the appellants assaulted Jitendra on the head and as a result he suffered bleeding injuries. He was shifted to Shantipur State General hospital, then to J.N.M. hospital, Kalyani and was finally transferred to N.R.S. Medical College and Hospital. Over the issue, Nandarani Biswas (P.W.1) lodged witted complaint at Shantipur police station resulting in registration of Shantipur P.S. Case No.584/10 dated 28.11.2010 under sections 326/307/34 of I.P.C. On 29.11.2010 the victim died and section 302 of I.P.C. was added to the array of offences. In conclusion of investigation, charge-sheet was filed against the appellants and the case was committed to the Court of Sessions and was transferred to the Court of learned Additional Sessions Judge, 5th Court, Krishnanagar, Nadia, for trial and disposal. Charge was framed under sections 302/34 of I.P.C. against the appellants. They pleaded not guilty and claimed to be tried. It was the specific defence of the appellants that Jitendra had assaulted Kalachand on the head and as a result he was hospitalized. The aforesaid assault on Kalachand was suppressed by the prosecution and a false case implicating the appellants for the murder of Jitendra has been set up. In support of such defence appellants examined four witnesses including Kalachand himself as D.W.3. 3. After analysis of evidence on record the trial Judge by judgment and order dated 30.4.2013 and 2.5.2013 convicted and sentenced the appellants, as aforesaid. 4. Mr. Dastoor, learned senior advocate with Mr. Majumdar, learned advocate, argued that the prosecution has not truthfully disclosed the sequence of events leading to the death of the victim. 3. After analysis of evidence on record the trial Judge by judgment and order dated 30.4.2013 and 2.5.2013 convicted and sentenced the appellants, as aforesaid. 4. Mr. Dastoor, learned senior advocate with Mr. Majumdar, learned advocate, argued that the prosecution has not truthfully disclosed the sequence of events leading to the death of the victim. Prosecution witnesses have intentionally suppressed injury suffered by Kalachand and other circumstances leading to his death. Prosecution evidence is, therefore, untruthful and cannot form the basis of the conviction. It was also argued that prosecution has failed to explain the injuries on Kalachand which had been sustained in the course of the incident and the prosecution case ought to be thrown out on such score alone. The investigating officer (P.W.18) was also entrusted to investigate the criminal case registered by the daughter of Kalachand over such issue but remained silent with regard to materials collected during such investigation. Manner and course of assault on Jitendra as narrated by the prosecution witnesses is not consistent with the number of injuries found on him by the postmortem doctor (P.W.17). Hence, the prosecution case has not been proved beyond reasonable doubt. He relied on Lakshmi Singh and Others versus State of Bihar, (1976) SCC (Cri) 671, in support of his contention. 5. On the other hand, Mr. Sur, learned Additional Public Prosecutor along with Mr. Mahata appearing on behalf of the State submitted that the evidence of the eye-witnesses, namely, P.W.s 2, 3, 5 and 8 are corroborated by the medical evidence (P.W.17). All the aforesaid eye-witnesses stated that the appellants assaulted the victim on the head and the postmortem doctor (P.W.17) also found head injuries on the victim resulting in his death. Injury on Kalachand is minor and presumably proceeded the incident and does not militate against the truthfulness of the eyewitnesses with regard to the assault on the victim thereafter. Hence, the appeal is liable to be dismissed. 6. Let me consider the rival submissions in the light of the evidence on record. 7. P.W.1, Nandarani Biswas is the mother of the victim and informant in the instant case. She stated that one year and half months ago around 11.00-11.30 in the night the appellants came to their house and knocked the door. When they opened the door they dragged out her son, Jitendra and Kalachand struck him on the head with a wooded ‘batam’. She stated that one year and half months ago around 11.00-11.30 in the night the appellants came to their house and knocked the door. When they opened the door they dragged out her son, Jitendra and Kalachand struck him on the head with a wooded ‘batam’. Jitendra fell down. Bhagabat then assaulted him with an axe. He sustained severe head injuries with profuse bleeding. Brain matter came out from his head. Bharati, Sannyasi and Shibani were also present at the spot. Jitendra was shifted to Shantipur State General hospital in a trolley van of Khokan Sardar. Then he was referred to N.R.S. Medical College and Hospital, Kolkata. Jitendra succumbed to his injuries in that hospital three days later. She lodged written complaint at Shantipur police station. One Rumi Ghosh scribed the complaint as per her dictation. She put her L.T.I. thereon. There was delay in lodging F.I.R. as they were busy with the treatment of her son. The appellants were the next door neighbours and she could identify them with the help of electric light. In cross-examination, she stated that the wearing apparels of Jitendra were bloodstained. There was blood on the ground. She identified the bloodstains to the investigating officer. 8. P.W. 2, Mamata Das is the sister of the victim. She deposed that at the time of incident she was in the room of her mother. Suddenly she heard hue and cry and a knock on the door. Rajani switched on the light. They opened the door whereupon the appellants dragged Jitendra outside. Kalachand struck Jitendra with a wooden ‘batam’ of sal tree. Jitendra fell down with serious injuries. Bhagabat assaulted him with an axe on his head. He suffered severe injuries on his head and brain matter on his head came out with profuse bleeding. Sannyasi and Bharati also came to the place of occurrence. Jitendra was shifted to Shantipur State General hospital wherefrom he was transferred to N.R.S. Medical College and Hospital, Kolkata, where he died after three days. Her mother lodged written complaint. She could identify the accused persons with the help of electric light of their house. She proved the electric bill of their house for the months of September, October and November (Ext.1). In cross-examination, she stated that the house situated abutting the road without any fence or boundary. There is one step from the house to alight on the courtyard. She could identify the accused persons with the help of electric light of their house. She proved the electric bill of their house for the months of September, October and November (Ext.1). In cross-examination, she stated that the house situated abutting the road without any fence or boundary. There is one step from the house to alight on the courtyard. There was an incident of stone throwing about 8.00-9.00 p.m. on the date of the incident. Neighbours rushed to their house being attracted by hue and cry. The napkins used to tie the wounds of Jitendra were bloodstained. They identified on the ground to the investigating officer. It takes half an hour to reach Shantipur State General hospital. 9. P.W.8, Rajani Biswas is another sister of the victim, Jitendra. She deposed that on the date of the incident her mother Nandarani and sister Mamata were sleeping in one room. She was sleeping in her room while Jitendra was sleeping in another room. Jitendra had thrown a brickbat at the house of Kalachand and thereafter he was sleeping in the house. After sometime both the accused persons, namely, Kalachand and Bhagabat came to their house and called for Jitendra. On hearing their voice she woke up and switched on the light of the verandah. They opened the door and the accused persons dragged their brother to the courtyard. Sannyasi Biswas and Bharati Biswas came to the spot. Kalachand struck on the head of Jitendra with a wooden ‘batam’. Her brother fell down on the ground. Bhagabat also assaulted his brother with an axe. Her brother suffered severe bleeding injuries on his head and brain matter came out. Shibani Biswas and Bhajan Rajbanshi also came to the place of occurrence. Her brother was removed in a rickshaw van of Khokan Sardar to Shantipur State General hospital. He was unconscious at that time. Doctor referred him to N.R.S. Medical College and Hospital, Kolkata, for treatment. Her brother succumbed to his injuries in that hospital after two days. After twelve days police of Shantipur police station took Kalachand to his house and searched his house. She signed on the seizure list. Her husband also signed on the same. 10. P.W.5, Sannyasi Biswas deposed that the incident occurred one year and three months ago. He along with his wife was sleeping in the house. After twelve days police of Shantipur police station took Kalachand to his house and searched his house. She signed on the seizure list. Her husband also signed on the same. 10. P.W.5, Sannyasi Biswas deposed that the incident occurred one year and three months ago. He along with his wife was sleeping in the house. On hearing hue and cry they rushed to the spot and found Kalachand was assaulting his cousin, Jitendra with wooden ‘batam’ of sal tree. Bhagabat also assaulted on his head by an axe. Jitendra fell down with serious bleeding injuries on his head and brain matter had also come out. Ground was bloodstained. He could identify the accused persons with the help of electric light of the verandah. Neighbours also rushed to the spot. Jitendra was shifted to Shantipur State General hospital in a trolley van. He was referred to N.R.S. Medical College and Hospital, Kolkata, where he succumbed to his injuries three days later. Police held inquest over the dead body of Jitendra. He signed on the inquest report (Ext.2/1). In cross-examination he deposed that he took Jitendra by an ambulance from Shantipur State General hospital to N.R.S. Medical College and Hospital, Kolkata, at 1.00 a.m. in the night. 11. P.W.3, Bharati Biswas is the wife of Sannyasi Biswas (P.W.5). She had substantially corroborated P.W.5. 12. P.W.9, Khokan Sardar is the rickshaw puller who took Jitendra to Shantipur State General hospital. 13. P.W.10, Bhajan Rajbanshi and P.W.11, Mritunjoy Roy were the post-occurrence witnesses. They came to the house of the victim and found him lying in the courtyard with serious head injuries and profound bleeding. They were informed that Kalachand and Bhagabat had assaulted the victim. They shifted the victim to Shantipur State General hospital in a rickshaw van. Victim was referred to N.R.S. Medical College and Hospital, Kolkata. They took him to that hospital in an ambulance. Victim died after three days. 14. P.W.13, Rumi Ghosh scribed the written complaint as per dictation of P.W.1, Nandarani Biswas. She proved the written complaint (Ext.6/1). 15. P.W.15, A.S.I. Mozammal Hossain was attached to Shantipur police station. On 28.11.2010 he received the written complaint from P.W.1 and filled up formal F.I.R. (Ext.8). S.I. Jayanta Khan was entrusted with the investigation in the instant case. 16. P.W.16, S.I. Arabinda Roy was attached to Entally police station. She proved the written complaint (Ext.6/1). 15. P.W.15, A.S.I. Mozammal Hossain was attached to Shantipur police station. On 28.11.2010 he received the written complaint from P.W.1 and filled up formal F.I.R. (Ext.8). S.I. Jayanta Khan was entrusted with the investigation in the instant case. 16. P.W.16, S.I. Arabinda Roy was attached to Entally police station. On 30.11.2010 he went to the morgue of N.R.S. Medical College and Hospital and held inquest over the dead body of Jitendra Nath Biswas in connection with Entali P.S. U.D. Case No.1101 dated 30.11.2010. He proved the inquest report (Ext.2/2). 17. P.W.17, Dr. Rabindra Nath Karmakar is the postmortem doctor who conducted postmortem examination over the dead body of the victim Jitendra Nath Biswas. He found the following injuries:- 1. One abrasion measuring 2 ½” x 1” placed obliquely over left elbow joint. 2. One stitched up wound measuring ½” (one stitch) placed obliquely over left side of frontal region of scalp measuring ½” to the left of the mid line and ¼” below vault of skull. Upon dissection he noticed the following injuries:- 1. Extravasation of blood 14” x 12” diffused over whole of scalp. 2. Depressed commuted fracture 5” x 3” x both tables over left parietal bone. 3. One fissure fracture 2 ½” placed obliquely over left temporal bone extending from injury No. 2 of dissection. 4. One fissure fracture 1 ½” placed obliquely over left parietal bone extending from injury No. 2 of dissection. 5. One fissure fracture 3. 1” placed obliquely over both parietal bones extending from injury No. 2 of dissection. 6. One fissure fracture measuring 2” placed obliquely over left side of frontal bone extending from injury No. 2 of dissection. 7. One fissure fracture measuring 1 ½” placed obliquely over left side of frontal bone extending up to upper margin of left orbit extending from injury No. 2 of dissection. 8. One fissure fracture 1” placed more or less transversely over left supra orbital ridge between injury No. 6 dissection and injury No. 7 of dissection. 9. One fissure fracture 2” placed obliquely over left temporal bone extending from injury No. 2 of dissection. 10. Extradural haemorrhage 4” x 3” area over left fronto temporo parietal lobes of brain weighing 30 grams. 11. Subdural haemorrhage with blood clots all over both cerebral hemisphere of brain including its under surface. 12. 9. One fissure fracture 2” placed obliquely over left temporal bone extending from injury No. 2 of dissection. 10. Extradural haemorrhage 4” x 3” area over left fronto temporo parietal lobes of brain weighing 30 grams. 11. Subdural haemorrhage with blood clots all over both cerebral hemisphere of brain including its under surface. 12. One lacerated wound measuring 4” x 2 ½” x substance placed obliquely over left fronto temporo parietal lobes of brain. 13. Depressed comminuted fracture measuring 1 ½” x 1” x both tables over mid part of anterior cranial fossa. 14. Extravasation of blood 1” x ½” diffused over left upper eye-lid. 17. He opined that the death of the victim died due to effect of the head injuries which were ante-mortem in nature. He proved the postmortem report (Ext.9) P.W.18, S.I. Jayanta Khan is the investigating officer in the instant case. He visited the place of occurrence and drew rough sketch map with index (Ext.10). He examined the witnesses. P.W.1 showed him the place of occurrence. After the death of the victim he made prayer for adding section 302 of I.P.C. He conducted search in the residence of Kalachand and Bhagabat but could not recover any incriminating material. He prepared nil seizure lists (Exts. 4/2 and 3/2 respectively). He collected postmortem report. He received inquest report. Constable Dulal Chandra Biswas seized wearing apparels of the victim which were seized under a seizure list (Ext.7/2). He identified the said wearing apparels in Court. He filed charge-sheet. In cross-examination he stated that he did not collect medical prescription of the deceased from Shantipur State General hospital or J.N.M. hospital, Kalyani. He sent one constable of the police station to collect admission register of Jitendra Nath Biswas (Ext.A), wherein history of assault was briefly stated that Kalachand Biswas struck Jitendra Nath Biswas with a rod. 18. These are the witnesses examined on behalf of the prosecution. 19. Defence examined four witnesses including the appellant, Kalachand as D.W.3. 20. Joydeb Mondal was examined as D.W.1. He deposed that he was a rickshaw van puller and two years ago at around 11.00 p.m. neighbouring people and family members of Kalachand woke him up and took him to the house of Kalachand. He knew Jitendra Biswas. The house of Jitendra and Kalachand were intervened by five-six houses. 20. Joydeb Mondal was examined as D.W.1. He deposed that he was a rickshaw van puller and two years ago at around 11.00 p.m. neighbouring people and family members of Kalachand woke him up and took him to the house of Kalachand. He knew Jitendra Biswas. The house of Jitendra and Kalachand were intervened by five-six houses. People brought Kalachand on road and told him to take him to Shantipur State General hospital. Around 2.00 a.m. he reached in the hospital. Thereafter, doctor babu sent the injured to Krishnanagar hospital. He did not know who took the victim to Krishnanagar hospital. 21. D.W.2, Samir Sarkar deposed that he took Kalachand from Shantipur State General hospital to Krishnanagar hospital in a rickshaw van. In cross-examination he stated that Kalachand was his ‘jamaibabu’. Kalachand examined himself as D.W.3. He submitted the discharge certificate of Saktinanagar hospital (Ext.C). He lodged diary on the way to Saktinagar hospital. He deposed that he was admitted Saktinagar hospital. He proved the treatment sheet (Ext.E). He also proved the referral part of Shantipur State General hospital (Ext.F). In cross-examination, he stated that he told the medical officer that Jitendra Biswas assaulted him. 22. D.W.4, S.I. Manas Kumar Sarkar brought the general diary book and proved General Diary Entry No.1831 lodged at 23.55 hours. G.D. was lodged by Kalachand Biswas on 26.11.2010. 23. From the evidence on record it appears in the night of 26.11.2010 the victim Jitendra Nath Biswas suffered severe head injuries and was taken to Shantipur State General hospital and thereafter to N.R.S. Medical College and Hospital, Kolkata. He succumbed to his injuries three days later, that is, on 29.11.2010. Question is:- How did the victim suffer such injuries resulting in his death? While the prosecution would like me to believe that it was the appellants who came to the residence of the victim and after dragging him out to the courtyard mercilessly beat him on his head with a ‘batam’ of sal tree and axe resulting in such injuries, it is the defence version that the prosecution witnesses suppressed the genesis of the incident, more particularly the fact that the victim had gone to the house of Kalachand and had severely assaulted him on the head resulting in grave injury and hospitalization. 24. 24. Learned senior advocate for the appellant submitted that manner and course in which the incident occurred had been suppressed by the prosecution witnesses and they have failed to explain the injuries on Kalachand. It was also argued that the prosecution witnesses spoke of a single stroke dealt by each of the appellants on the head of the victim but innumerable injuries were found on his head rendering the ocular version improbable. On the other hand, defence witnesses probabilised the injury suffered by Kalachand on the fateful night at the hands of the victim, clearly discrediting the prosecution case. 25. Failure to explain grave injury suffered by an accused in appropriate cases may give a legitimate justification to disbelieve a prosecution case. However, in the event the injury is minor one or where the prosecution evidence is so dear and creditworthy that non-explanation of injury does not tarnish its probative value, such failure may not affect the prosecution case. In Lakshmi (supra), the Apex Court has succinctly laid down the proposition as follows:- “12. …cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 26. Similar view was expressed in Waman and Others versus State of Maharashtra, (2011) 3 SCC (Cri) 83:- “36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case.” 27. I have, therefore, made an endeavour to test the credibility of the prosecution witnesses on the anvil of the aforesaid legal proposition. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case.” 27. I have, therefore, made an endeavour to test the credibility of the prosecution witnesses on the anvil of the aforesaid legal proposition. Analysis of the evidence shows that on the fateful night Jitendra had come to the residence of Kalachand and had assaulted him. As a result, the latter suffered injury on his head. The aforesaid facts have been probabilised by the defence witnesses including the general diary (Ext.D) lodged by Kalachand himself as well as his treatment sheet (Ext.E) and discharge certificate (Ext.C) issued by Saktinagar hospital, Nadia, with regard to his treatment in the said hospital. These facts also find corroboration from the first information report lodged by Mamani Sarkar (not examined) and the deposition of P.W.s 2 and 8 that Jitendra had thrown stone at the house of Kalachand on that night. Even if the assault on Kalachand by Jitendra in the night of 26.11.2010 is believed, does it render the prosecution case wholly untrue or improbable? Perhaps not. In fact, it appears from the F.I.R. as well as the prosecution evidence, particularly that of the P.W.s 2 and 8, that Jitendra had prior to the incident gone to the residence of Kalachand and thrown stone at the house. The aforesaid evidence on record probabilises the fact that prior to the incident of assault on Jitendra the latter had gone to the residence of Kalachand and had assaulted the latter on his head. In order to protect himself from such act of aggression from Jitendra, Kalachand and his associate Bhagabat chased and assaulted him in his courtyard resulting in his death. In the backdrop of these circumstances, I, however, find it difficult to accept the prosecution version that womenfolk of the house had opened the door enabling Kalachand and Bhagabat to enter their house and drag out Jitendra therefrom. On the other hand, it appears that Kalachand along with Bhagabat in purported exercise of their right to private defence had attacked Jitendra and had assaulted him in front of his house. On the other hand, it appears that Kalachand along with Bhagabat in purported exercise of their right to private defence had attacked Jitendra and had assaulted him in front of his house. Such attack on Jitendra though prompted by an initial act of aggression on his part was no doubt disproportionate and the appellants had clearly exceeded their right to private defence by chasing the victim and brutally assaulting him in front of his house. It has been argued as Kalachand received severe injury on his head he could not have assaulted the victim, as alleged. I am unable to accept such contention. It would be clear from the evidence of Kalachand himself (D.W.3) that he was conscious and active even after the assault. It is his deposition that on the way to the hospital he lodged general diary at the local police station. Hence, it cannot be said that the injury suffered by Kalachand was of such nature that he was wholly incapacitated and was unable to participate in the subsequent assault on Jitendra. Finally, it has been argued that the name of Bhagabat has not been stated in the admission register maintained at Shantipur State General hospital (Ext.A). Evidence of all the eye-witnesses unequivocally spoke of conjoint assault by the appellants on the victim. I am unable to accept the argument of the senior advocate for the appellants that their ocular version is not borne out by the medical evidence. Reading the evidence of the eye-witnesses as a whole it appears that the appellants had conjointly assaulted the victim with a wooden ‘batam’ of sal tree and axe causing number of injuries on his head which is supported by the findings of the postmortem doctor (P.W.17). Hence, I am of the opinion that mere omission to record the name of the appellant Bhagabat in the admission register cannot be a ground for absolving him from culpability in this case. 28. Evidence on record, therefore, leads me to conclude that the appellants had chased and assaulted Jitendra after he had trespassed into the residence of Kalachand and assaulted him on that day. 28. Evidence on record, therefore, leads me to conclude that the appellants had chased and assaulted Jitendra after he had trespassed into the residence of Kalachand and assaulted him on that day. Although such acts of the appellants appear to have initially sprung from their desire to protect themselves but the manner in which they chased the victim upto his house and mercilessly assaulted him there leave no doubt in my mind that they had far exceeded their right to private defence. Hence, the conviction of the appellants may be altered from section 302/34 of I.P.C. to section 304(I)/34 of I.P.C. 29. Accordingly, the sentence imposed on the appellants is also reduced and they are directed to suffer rigorous imprisonment for ten years each and to pay a fine of Rs.3000/- each, in default to suffer further imprisonment for one year each. 30. The appeal is allowed to the aforesaid extent. 31. The period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure. 32. A copy of the judgment along with L.C.R. be sent down to the trial Court at once for necessary action. 33. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities. Ravi Krishan Kapur, J. : I agree.