JUDGMENT 1. 1. Accused Sunda, Balia, Chandra, Ganpat, Kishna, Ganga son of Jiwan, Hanuman, Padma, Murli, Ganga son of Kana and Barji were tried by the learned Additional Sessions Judge, Sikar in connection with an occurrence dated 3rd May, 1972 which took place in village Pujari-bas at Dhani Jamnasagar. Place of occurrence is situated within the territorial jurisdiction of police station Srimadhopur. The distance between the police station and the place of occurrence is half a mile. In this incident six persons on the side of the complainant, namely, Jodhraj (since deceased), Rameshwar, Jagdisb, Ramavtar, Jhunthalal and Mathura were injured. In the same incident accused Balia, Hanuman and Mst. Birji were also injured. Jddhraj was shifted at the hospital Srimadhopur for medical aid but in the way he succumbed to his injuries. The first information report of this occurrence Ex. P. 10, was recorded at the police station, Srimadhopur on the same day at 12.30 p. m. i. e. within 21/2 hours of the occurrence. This first information report was recorded on the basis of the written report Ex. P. 8 lodged by P. W.1 Ramavtar. Autopsy on the dead body of Jodhraj was performed by P. W. 16 Dr. Ramakant Purohit. The post-mortem report is Ex.P. 1. Dr. Ramakant noticed following external injuries on the dead body of Jodhraj: 1. Lacerated wound 11/2" x 1/2" x ⅓" on the right side of head 21/2" behind frontal eminence ; 2. Lacerated wound 2"x 1/2 x bone deep on the left side of head 1/2" behind frontal eminence, having antero posterior direction. 3. Lacerated wound 1/2" x 1/2" x ⅛" on the middle line of head 6" anterior to occipital protuberance. 4. Bruise on the upper left eye lid 1" x ⅓". 5. Haemctoma 3' x 2" on the left side of forehead. On opening the dead body he noticed depressed fracture on the left side of frontal bone. The membrance as well as the brain were also injured below that fracture and a lot of blood was present there. In his opinion the cause of death of Jodhraj was shock and haemorrhage caused by afore-mentioned injuries to the skull and brain. Dr. Ramakant P. W. 16 found that injury No. 2 was individually sufficient in the ordinary course of nature to cause death. In his opinion the cause of death of Jodhraj was shock and haemorrhage caused by afore-mentioned injuries to the skull and brain. Dr. Ramakant P. W. 16 found that injury No. 2 was individually sufficient in the ordinary course of nature to cause death. The police after usual investigation submitted challan against all the 9 accused persons in the court of Addl. Munsiff Magistrate, Neem-ka-thana who committed them to take them to the court of Additional Sessions Judge, Sikar. The accused pleaded not guilty to the charge and prosecution examined 21 witnesses In support of their case out of whom P. W. 1 Ramavtar, P. W. 2 Rameshwar, P. W. 8 Jhunthe Lal, P. W. 9 Mathura Prasad and P. W. 12 Jagduh are injured eye - witnesses of the occurrence. P. W. 3 Rameshwar Lal son of Tikuram, P.W. 4 Jagdish son of Kanhaiya Lal and P. W. 5 Radha Kishan are alleged to be independent eye-witnesses of the occurrence. All the accused denied their complicity in the crime. They further stated that the members of the complainant party assaulted them while throwing their sticks which were lying on the land. They examined two witnesses, namely, Dr. Mohan Singh, D. W. 1 and Ramkumar Compounder D. W. 2 in support of their plea, 2. The learned Additional Sessions Judge found the statements of P. W. 3 Ramehshwar and P. W. 5 Radha Kishan to be unreliable. He, however, held that in spite of minor contradictions appearing in the statements of the injured eye-witnesses, the substratum of their statement was reliable. He further held that the presence of the injured eye-witnesses on the scene of occurrence cannot be doubted. Placing reliance on their statements corroborated by the medical evidence, the learned Judge convicted and sentenced the accused-appellants as mentioned below : 1. Accused-appellant Balia - U/s 302 I.P.C. U/s 147, 323/149 I.P.C. Imprisonment for life one year's R. I. 2. Accused-appellants Chandra, Ganpat & Sunda U/s 302/34 I.P.C. U/s 147, 323/149 I.P.C. each sentenced to imprisonment for life. each sentenced to one year's R. I. 3. Accused-appellants Murli, Hanuman, Padma, Ganga s/o Kana, Ganga s/o Jiwan, Kishan and Smt. Barji. imprisonment under each count. U/s 147, 323 I.P.C. each sentenced to one year's rigorous All the sentences of the accused-appellants were ordered to run concurrently. 3. each sentenced to one year's R. I. 3. Accused-appellants Murli, Hanuman, Padma, Ganga s/o Kana, Ganga s/o Jiwan, Kishan and Smt. Barji. imprisonment under each count. U/s 147, 323 I.P.C. each sentenced to one year's rigorous All the sentences of the accused-appellants were ordered to run concurrently. 3. Controversy in this case has been reduced to a narrow compass and we are not required to deal in detail the prosecution evidence and all the circumstances brought forth on the record by the prosecution to prove their case, because the learned counsel appearing on behalf of the accused appellants, keeping in view the preponderance of prosecution evidence, has rightly submitted that there are no sufficient grounds to challenge the fact that the assault did take place in the manner and at the place alleged by the prosecution, and in that event Jodh Singh sustained injuries as a result of which he met his death. However, we have also looked into the relevant portion of the evidence and are satisfied that the prosecution has been able to bring home the guilt of the accused-appellant beyond any manner of reasonable doubt and the learned counsel has rightly discarded the defence evidence. 4. We have been taken through the evidence on record . We, however, see reason to differ from the view taken by the learned Additional Sessions Judge regarding the defence version of the case given by the accused in their statements recorded under section 342 Cr.P.C. that it could not be true. We agree with the learned Additional Sessions Judge that the accused did sustain injuries in the same course. Besides injury report, arrest memo of accused-appellant Balia also lends support to this. 5. No doubt the prosecution witnesses failed to explain the injuries sustained by the accused-. But the first information report of this occurrence was lodged within 2 hours. Besides that, in the first information report names of all the accused as well as the injured have been mentioned. It cannot be expected from village rustic like P. W. 1 Ramavtar that he will concoct such a well knit story with, in such a short time. Giving of first information report within short time with necessary details does lend considerable support to the prosecution case. It cannot be expected from village rustic like P. W. 1 Ramavtar that he will concoct such a well knit story with, in such a short time. Giving of first information report within short time with necessary details does lend considerable support to the prosecution case. It has come in the prosecution evidence that one of the accused was armed with a sharp edged weapon who inflicted injuries on the person of the deceased from the wrong side of the weapon. The quarrel arose all of a sudden on a trifling matter. The accused could not have expected that the deceased will come on the land and throw away these sticks. Wordy warfare did take place between the parties prior to the occurrence. Out of three injuries sustained by the deceased on the head, only one was found to be sufficient in the ordinary course of nature to cause death. Taking a conspectus of the. circumstances of the case, we are of the opinion that it is far more likely that the occurrence took place "without pre-meditation, in a sudden fight, in the heart of passion, without taking undue advantage or acting in any cruel manner". As such the offence committed by the appellants fall within the exception 4 to section 300 I.P.C. We have no hesitation in rejecting the contention put forward by the accused in their statements under section 342 Cr.P.C. that they acted in exercise of the right of private defence. Apart from the fact, that none of them took such a plea at an earliest stage, we find sufficient reason to hold that the trial court was correct in not giving them benefit of the right of self defence. The right of private defence can sometimes reasonably be inferred From the facts and circumstances revealed in the case even if not specifically set up. But in the instant case the existence of such a right against the deceased is actually repelled by the circumstances of the case. 6. The net result of the above discussion is that we set aside the conviction, and sentences awarded to accused Balia under section 302 I.P.C. and instead convict him under section 304 part I of the Indian Penal Code and sentence him to seven years rigorous imprisonment. The conviction and sentences awarded to him under section 147 and 323/149 I.P.C. are upheld. 7. The conviction and sentences awarded to him under section 147 and 323/149 I.P.C. are upheld. 7. The conviction and sentences awarded to accused-appellants Sunda, Chandra and Ganpat under section 302/34 I.P.C. are set aside and instead they are convicted under section 304 part 1/34 I.P.C. and each of them is sentenced to seven years' rigorous imprisonment. The conviction and sentences awarded to them under sections 147 and 323/149 I.P.C. are maintained. 8. The conviction of accused Kishna, Ganga son of Dhanna, Padma, Murli, Ganga son of Kana and Mst. Barji under section 323 and 147 I.P.C. are maintained. As regards sentence, it would be sufficient to say that the occurrence is of the year 1972 and we are in the year 1978. A period of six years has elapsed in between the commission of the offence and hearing of the appeal. Accused have remained in jail during trial nearly for a period of five months. Sending the appellants back to jail to serve the sentences after six years seems to us to be a bit harsh. It is unlikely to have any reformatory effect upon them. Harassment of criminal trial for a period of six years and the expenses which they must have incurred, in our opinion, can legitimately be taken into account when considering the question of sentence to be imposed by this Court at this point of time. To think it would be just and proper to reduce the sentence of the term of detention already undergone by them.Accused Krishna. Ganga son of Jiwan, Hanuman, Padma, Murli, Ganga son of Kana and Mst. Barji are on bail. They need not surrender to their bail bonds. 9. It is, however, made clear that the accused-appellants shall be entitled to the benefit of section 428 Cr.P.C. and the period of detention undergone by them during inquiry, investigation or trial shall be set off against the term of sentence awarded by this Court.The allowed is partly allowed as indicated above. *******