JUDGMENT - G.N. VAIDYA, J.:---The appellant (accused No. 1) and accused Nos. 2 to 4 in Sessions Case No. 1 of 1974, were prosecuted for causing the death of Sopan and injuries to his brother, complainant Nivrutti, P.W. 7, under sections 302 and 323 read with section 342 and section 109 of the Indian Penal Code, the learned Additional Sessions Judge, Latur by his judgment dated July 15, 1974 convicted the appellant under section 302 and sentenced him to imprisonment for life and convicted the accused Nos. 2 to 4 under section 325 read with section 34 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for two years, no separate sentence being passed against the accused under section 323 in respect of the incident between the accused on the one hand and Nivrutti and Sopan on the other, on June 24, 1973, at about 7 a.m. in Survey No. 44-A of Shekapurwardi in Udgir Taluka, on account of a dispute about the right of way claimed by Nivrutti and Sopan for which a civil litigation was pending. 2. Accused Nos. 2 to 4 have not challenged the convictions and sentence. The appellant above has filed the above appeal and challenged the convictions and sentences. Mr. K.A. Rane was appointed at the expense of the State Advocates for the appellant but it appears that the appellant has engaged Mr. R.M. Agarwal. At the hearing Mr. Rane was appearing but Mr. Agarwal was heard by us as he was the Advocate appointed by the accused. 3. Mr. Agarwal submitted that the learned Judge erred in convicting the accused No. 1, though there was no evidence apart from the evidence of Nivrutti to show that he had assailed Sopan before the Sopan pressed the testicles of the accused and as there was unimpeachable evidence of Dr. Shrinivas Mungikar that accused No. 1 had one lacerated wound 1 x 1/4 cm. on the left thumb and had tenderness in the scrotum, it was clear that Sopan pressed the testicles of the accused No. 1 and then accused No. 1 desperately defended himself with a small stick held by him giving a blow on the head of Sopan as a result of which Sopan died in the Hospital on 26-6-1973. on the left thumb and had tenderness in the scrotum, it was clear that Sopan pressed the testicles of the accused No. 1 and then accused No. 1 desperately defended himself with a small stick held by him giving a blow on the head of Sopan as a result of which Sopan died in the Hospital on 26-6-1973. In other words he argued that the accused No. 1 must be held to have caused the fatal head injury in the right of self-defence and he is therefore, entitled to be acquitted. 4. The learned Judge has fully set out the prosecution case and defence pleas and has further fully and fairly considered the evidence of the complainant Nivrutti and held that the accused were the aggressors. It is true that the only other witness Tukaram appears to have arrived on the scene when the accused were walking away after the incident in which Nivrutti was injured and Sopan collapsed after receiving the fatal head injury on the head at the hands of accused No. 1. Mr. Agarwal has taken as through the entire evidence on the record and we find no reason to differ from the view of the learned Judge that it was the accused who were the aggressors. For want of stenographer due to the High Court staff on strike, we find it unnecessary to repeat that the learned Judge has said in this connection with which we have no hesitation in agreeing. 5. Mr. Agarwal submitted that Nivrutti cannot be believed as according to him Tukaram was present from the beginning and the other four witnesses, dropped by the prosecution as not supporting the prosecution, were also present; and this is not established by the prosecution as Tukaram and the other witnesses did not support Nivrutti. He contended that Tukaram was not examined as witness and hence as he does not corroborate Nivrutti in this vital matter, it will be risky to rely on the word of Nivrutti and convict the accused. We reject this contention as the accused has practically admitted the incident though according to him the deceased and Nivrutti were aggressors. Accused Nos. 1, 2 and 4 had injuries as deposed to by Dr. Mungikar. We have anxiously considered the evidence of Nivrutti, who had lacerated injury on the forehead and contusion on the forcarm as stated by (P.W. 11), Dr. Bajrang. Accused Nos. 1, 2 and 4 had injuries as deposed to by Dr. Mungikar. We have anxiously considered the evidence of Nivrutti, who had lacerated injury on the forehead and contusion on the forcarm as stated by (P.W. 11), Dr. Bajrang. We, therefore, hold that it was the appellant and his companion who provoked Nivrtutti and Sopan to cause the injuries to accused Nos. 1, 2 and 4. 6. Nevertheless, we cannot agree with the learned Judge in brushing aside the injury to the scrotum deposed to by Dr. Mungikar and stated by the appellant. There can be no doubt that the prosecution is not able to prove that the accused No. 1 did not hit the deceased with an axe as rightly held by the learned Judge. But when Sopan pressed the testicles of the accused No. 1, he had a right to defend himself even in the course of the incident provoked by the accused to extricate himself by giving a blow with the small stick to Tukaram which the accused was holding. In exercising this right of self defence the accused exceeded his right in giving the fatal blow on the head of the deceased-Sopan. In the circumstances, the accused appellant could be convicted only under section 304 Part II read with section 300 I.P.C. 7. Mr. Barday, Public Prosecutor, submitted that it would be wrong to recognise the right of the accused No. 1 for self defence after the accused are held to be the aggressors; but the finding that the accused had a common intention only to cause hurt to the deceased and Nivrutti is not challenged by the State. Hence, even though the accused had provoked the deceased and Nivrutti, the deceased had no right to press the testicles of the accused No. 1 and when he did so the accused No. 1 had a right of self defence and it is clear that he gave the blow not with any intention to kill Sopan as contended by Mr. Barday but with the knowledge that the blow may be fatal and hence section 304 Part II will apply. 8. Mr. Barday wanted a heavy sentence even under the section 304 Part II. Mr. Barday but with the knowledge that the blow may be fatal and hence section 304 Part II will apply. 8. Mr. Barday wanted a heavy sentence even under the section 304 Part II. Mr. Agarwal pointed out that the accused No. 1 has been in custody since June 28,1973 and he had applied for releasing him as his mother is seriously ill and hence in view of the set off under section 428 Cri.P.C. and illness of his mother, the accused may be sentenced only to the sentence which he has duly undergone. We think the ends of justice in the case will be met if we accept the argument of Mr. Agarwal and sentence the accused to the period of imprisonment which he has already undergone and having regard to section 428 Cri.P.C. 9. In the result, the appeal is partly allowed by the modification of the conviction and sentence as stated above. The conviction and sentence passed by the Additional Sessions Judge, Latur, on July 15, 1974 under section 302 are set aside and instead the appellant-accused No. 1 is sentenced to suffer rigorous imprisonment for the period which he has already undergone till to day, and he is directed to be released and set at liberty as far as this case is concerned. Mr. Rane should be paid the fees as he was appointed and was ready to argue the matter. -----