JUDGMENT 1. 1. The three appellants, namely, Modu and his two sons Padam and Gopal, have been convicted by the Additional Sessions Judge, Baran, by his judgment dated March 17, 1973, for an offence punishable under section 302 and Section 323 I.P.C. both read with section 34, for having committed the murder of one Hiralal and for voluntarily causing hurt to Mangilal P.W.1, in furtherance of their common intention. They have all been sentenced to imprisonment for life. During the pendency of the appeal, the appellant Modu has died. 2. The case of the prosecution, in brief, is as follows: On 17-5-1972 at about 5 p.m., when the deceased Hiralal, who was a bandmaster, came to the house of the accused Padam who used to play a clarionet, and asked him to accompany the band party for playing music at the house of Devilal Khanger, he refused to do so. Thereupon, there was an exchange of abuses between the accused Modu and his two sons Padam and Gopal on the one hand, and the deceased Hiralal and his brother Mangilal on the other. After this altercation, the three accused went inside their house and came armed with Lathis, They assaulted the deceased Hiralal and his brother Mangilal, who sustained multiple injuries on their person. The first information report Ex. P. 2 was lodged by Mangilal P.W.1 at police station Atru, on the next day i.e., on 18-5-1972 at 8 a.m., naming the appellants along with two others to be the assailants. On 22-5-1972, the deceased Hiralal ultimately succumbed to his injuries. 3. Dr. Rajendra Verma P.W.8, who performed an autopsy on the dead-body of the deceased Hiralal found that the deceased had the following external injuries : 1. Lacerated wound 1/2 x ⅙" x 1/4" on back of left fore-arm. 2. Abrasion 1/2 x 1/4" below left knee Cap. 3. Abrasion 1" x 1/4" above left medial malleolus. 4. Lacerated wound 1/2 x ⅛' x ⅛" on back of scalp close on left ear. 5. Lacerated wound 11/4" x 1" x ⅙" in pinna of left ear. 6. Abrasion 11/2 x 1" on left parietal region. 7. Contusion 5" x 1" on front of fore-head transversely. 8. Contusion 6'x 1" on left side of face in front of left ear. 9. Contusion over whole of front of neck on left and right side 6'x3*. 10. Lacerated wound 11/4" x 1" x ⅙" in pinna of left ear. 6. Abrasion 11/2 x 1" on left parietal region. 7. Contusion 5" x 1" on front of fore-head transversely. 8. Contusion 6'x 1" on left side of face in front of left ear. 9. Contusion over whole of front of neck on left and right side 6'x3*. 10. Abrasion 11/2" x 11/4' on right arm. 11. Abrasion 1" x 1" on right thigh laterally in upper part. 12. Abrasion 3/4" x 1/2' below right knee cap. 13. Ecchymosis around both eyes upper lower eye-lids. 14. Haemotoma over whole of left side of face corresponding to injury No. 8. On dissection, he found the following internal injuries : 1. Fracture of frontal left parietal and temporal bone. 2. Membranes torned. Brain injured corresponding to fracture. Bleeding present. There was fracture of left anterior cramial fossa. In his opinion, the death of the deceased was caused due to shock and haemorrhage resulting from the skull injuries. 4. The appellants abjured their guilt and denied the commission of the offence. Their defence was that they acted in the right of private defence of their person inasmuch as the complainant's party i.e., the deceased Hiralal and his brother Mangilal and one Kedar, came armed with a hunter and Lathis to the house of the accused Modu and assaulted them with the hunter and Lathis. On being administered a beating, the appellants retaliated the assault to save themselves. 5. The learned Sessions Judge has held that the accused had not acted in exercise of their right of private defence and relying upon the testimony of P.W. 1 Mangilal, P.W. 5 Gopal, P.W. 4 Bhenrulal, P.W. 6 Santosh Pal and P.W. 13 Dr. Ram Ratan Nagori, held that the appellants committed the murder of the deceased Hiralal in furtherance of their common intention and accordingly convicted them for an offence punishable under section 302 read with section 34 I.P.C. 6. Two questions arise for consideration in the appeal, namely, (i) whether the appellants are guilty of having committed culpable homicide not amounting to murder punishable under section 304 LP.C. or of culpable homicide amounting to murder punishable under section 302 I.P.C. as held by the learned Sessions Judge, and (ii) whether there is any reliable and trustworthy evidence to sustain the conviction of the appellant Gopal. 7. 7. It appears from the testimony of P.W. 13 Dr. Ram Ratan and his compounder P.W. 6 Santosh Pal that while both of them were inside their dispensary, they heard of the commotion resulting from the fight: They stated that they watched the incident from a rear window and found that both the parties were armed with Lathis and they were assaulting each other. It is pointed out from the injury reports Ex. D 8 and Ex. 9 that the accused Modu and his son Padam, had both sustained multiple injuries on their person, It is further pointed out that the prosecution witnesses have not explained the presence of these injuries on the person of the. two accused and this, according to Shri Bhandari, learned counsel for the appellants, probablises the defence theory that the accused persons acted in right of private defence of their person. 8. There can be no doubt from the testimony of Dr. S. Datta, Medical Officer, Primary Health Centre, Atru, D.W.l, that on 18-5-1972, he examined the two accused Modu and Padam and found that they had injuries on their person. Accused Padam had a wound with suspected fracture of skull. It, therefore, appears that after the exchange of abuses, there was an altercation between both the parties and they belaboured each other with Lathis. It appears from the testimony of P.W. 6 Santosh Pal that Kedar, who was accompanying the deceased Hiralal, came armed with a hunter to the house of the accused Modu. They picked up a quarrel. This witness alleges that he hit accused Modu twice with the hunter. The injury report Ex. D. 9 shows two parallel linear contusions 3" x 1/2" over left posterior lateral aspect of the left chest of the accused Modu, which obviously were hunter-marks. 9. The testimony of the 5 witnesses, namely, Mangilal P.W. 1, Bhenrulal P.W. 4, Gopal P.W. 5, Santosh Pal P.W. 6 and Dr. Ram Ratan Nagori P.W. 13, clearly shows that the appellants Modu and Padam were the real aggressors. After heated altercation with the deceased Hiralal, they went inside their house and came armed with Lathis and started belabouring the deceased Hiralal and his brother Mangilal P.W.l. There is no reason to disbelieve these witnesses. They are natural witnesses and they have stood their cross-examination well. After heated altercation with the deceased Hiralal, they went inside their house and came armed with Lathis and started belabouring the deceased Hiralal and his brother Mangilal P.W.l. There is no reason to disbelieve these witnesses. They are natural witnesses and they have stood their cross-examination well. The contention that the appellants acted in the exercise of their right of private defence, cannot therefore be accepted. 10. From whichever angle the matter is viewed at. the accused Modu and Padam are clearly guilty of culpable homicide not amounting to murder punishable either under section 304 part 1 or under section 304 part 2 of the Indian Penal Code. Even assuming, the version of Santosh Pal P.W. 6 that Kedar, the companion of the deceased Hiralal, first struck the accused Modu with a hunter, be true, the accused Modu and Padatn clearly exceeded their right of private defence. There was no justification for them, whatever, to have inflicted such multiple injuries to the deceased Hiralal with Lathis. In that view, they would clearly be guilty under section 304 part 1 of the Indian Penal Code. 11. Alternatively, if the version of Santosh Pal P.W.6 cannot be acted upon inasmuch as the other eye-witnesses, namely, Mangilal P.W.l, Bhenrulal P.W.4, Gopal P.W. 5, do not support him. Their evidence shows that there was a sudden quarrel and the accused-appellant Modu and Padam assaulted the deceased Hiralal in the heat of the moment and they must be attributed with the requisite knowledge that the bodily injuries caused to the deceased Hiralal, were likely to cause his death. The evidence of Dr. Rajendra Verma P.W.8, shows that the deceased Hiralal was repeatedly struck on the head with a Lathi as many as 4 times. The blows were struck with such force that there were fractures of the skull resulting in injuries to the membranes of the brain causing severe haemorrhage and shock. Even though the accused persons sustained some injuries, there was no justification for making such a murderous assault on the deceased Hiralal. On that view, the accused would still be held guilty under section 304 part 2 of the Indian Penal Code. 12. On a consideration of the facts and circumstances of the case, we are inclined to think that the appellant Modu and Padam should be convicted under section 304 part 2 of the Indian Penal Code. 13. On that view, the accused would still be held guilty under section 304 part 2 of the Indian Penal Code. 12. On a consideration of the facts and circumstances of the case, we are inclined to think that the appellant Modu and Padam should be convicted under section 304 part 2 of the Indian Penal Code. 13. Next, the question is whether there is any evidence to sustain the conviction of appellant Gopal under sections 302 and 323 both read with section 34 of the Indian Penal Code. The version of Santosh Pal P. W. 6 is that the accused Gopal aiongwith the accused Modu and Padam, his father and brother respectively, rushed to their house and came back armed with Lathis. After the accused Modu had repeatedly struck the deceased Hiralal on the head with his Lathis, he fell down and thereafter, all the three accused continued the assault. None of the other witnesses, however, prove participation of the appellant Gopal in the assault. They have only made an omnibus statement alleging that these accused along with the co-accused Badri and Gopi assaulted the deceased Hiralal after he had fallen to the ground. It is not safe to act on such evidence of an inconclusive nature. The case of the accused Gopal is not different from that of the co-accused Badri and Gopi, who have been given the benefit of doubt by the learned Additional Sessions Judge. We find no reason to distinguish his case from theirs. We, accordingly, give to the appellant Gopal the benefit of doubt and acquit him of the charge under section 302 read with section 34 of the Indian Penal Code. 14. Accordingly, this appeal partly succeeds and is allowed. The conviction of the appellants Modu and Padam under section 302 read with section 34 I.P.C. is converted to one under section 304 part 2 of the Indian Penal Code and they are sentenced to 5 years rigorous imprisonment, but their conviction under section 323 read with section 34 is affirmed ; while the appeal of the appellant Gopal is allowed and he is acquitted of the charges under sections 302 and 323 read with section 34 of the Indian Penal Code. He is already on bail and he need not to surrender his bail-bonds which are hereby cancelled. *******