JUDGMENT 1. This Jail Appeal is directed against the judgment and orders dated, September 28, 1977, made by the learned Sessions Judge, Jhalawar, whereby the learned Judge convicted and sentenced the appellant, Kalu Lal, as under:- (i) Imprisonment for life and a fine of Rs. 5,000/- or, in default of payment of fine, further rigorous imprisonment for six months on the charge of murder of Raghunath, punishable under section 302 of the Indian Penal Code. (ii) Rigorous imprisonment for two years and a fine of Rs. 2,000/- or, in default of payment of fine, further imprisonment for three months on the charge of causing hurt with kulhari to Jamna Lal PW. 1, punishable under section 324 of Indian Penal Code. The two substantive sentences were ordered to run concurrently. 2. The case resulting in the conviction and sentence of the appellant as aforementioned was registered by the Aklere police on February 27, 1977, at 7.20 p.m. on the first information report lodged by Jamnalal P.W. 1. The report was to the effect that Jamna Lal and his father Raghunath deceased had gone out, as usual, into fields to graze their cows and goats earlier in the day on February 27, 1977. They took the animals to Modi ki Jhiri to water them. Kalu Lal, the appellant, was taking bath there. Raghunath requested Kalulal to interrupt his bath for a short-while, and in the meantime let him water the thirsty animals. Kalulal did not agree. Thereupon both of them began to quarrel and trade abuses. Kalulal struck a lathi blow to Raghunath in the course of this quarrel. Raghunath retaliated and struck a lathi blow to Kalu. Kalu threatened Raghunath that he would be taught a lesson within a short time. A little later, Kalu's brother, namely, Dhanna came from the village and began to abuse Raghunath. Simultanecously, Dhanna struck a lathi blow to Raghunath in the course of this quarrel. Kalu Lal picked up a kulhari and struck two or three 3 blows with its sharp side on the head of Raghunath. Jamnalal PW rushed forward to intercede and save his father. Kalu struck a kulhari blow on his right hand. Raghunath fell down on the spot as result of these injuries. A number of cow-herds, including Laxmi Narain, Chhotya Ram Prasad and Motilal, Bhairulal and Mohanlal, witnessed the occurrence. 3. Jamnalal PW rushed forward to intercede and save his father. Kalu struck a kulhari blow on his right hand. Raghunath fell down on the spot as result of these injuries. A number of cow-herds, including Laxmi Narain, Chhotya Ram Prasad and Motilal, Bhairulal and Mohanlal, witnessed the occurrence. 3. Sub-Inspector Ram Narain went to the scene of occurrence and saw the dead body of Raghunath lying there. The dead-body was sent for post-mortem. Ram Narain recorded the statements of the witnesses. On completion of the investigation, both Kalulal and Dhanna were sent up for enquiry preparatory to their commitment for trial under section 302, 303-34, 323 and 324 I.P.C. They were committed to the court of session to stand trial accordingly. 4. During the trial, the prosecution examined among others, Jamnalal, Chhotia, Laxminarain, Motilal, Ram Prasad, Bhairulal and Mohanlal as witnesses in support of its case. 5. In his statement under section 313 Cr. P. C. Kalulal pleaded that Raghunath had attacked his brother Dhanna, and that he had inflicted kulhari blows to Raghunath to save Dhannas life. Dhanna also took up a similar plea in defence. They produced two witnesses in defence. 6. The learned trial Judge held that Kalulal inflicted kulhari blows on the head of Raghunath with the intention of causing bodily injuries, that the injuries caused were sufficient in the ordinary course of nature to cause death of Raghunath and that he died as a result of these injuries. He further held that Kalulal had also caused bodily hurt to Jamnalal. As already stated, Kalulal was convicted and sentenced separately under sections 302 and 324 I.P.C. Dhanna was convicted and sentenced under section 323 I. P. C. for causing hurt to Raghunath. 7. We are concerned here only with the order of conviction and sentence passed against Kalulal, for it is only his appeal which we are dealing with now. 8. After going through the evidence produced by the prosecution itself, we find that though the prosecution has proved that Kalu caused the death of Raghunath by inflicting kulhari blows to him, yet the offence committed by him amounts to culpable homicide not amounting to murder, for he acted in good faith in the exercise of the right of private defence of the body of his brother Dhanna. It will be recalled that in his statement under section 313 Cr. It will be recalled that in his statement under section 313 Cr. P. C., Kalu stated that while he was taking bath at the jhiri, Raghunath deceased, who came there to water his cows, asked him in an overbearing manner to get aside and let him water his cows and that Raghunath also struck lathi blow to him. The other cowherds intervened and saved him from being injured further. A little later, Kalu's elder brother Dhanna, the co-accused arrived there and asked Raghunath as to why he had beaten Kalu. Raghunath challenged Dhanna with the remarks that he would deal with him in the same manner in which he had already dealt with Kalu and simultaneously struck successive lathi blows to him. Kalu further pleaded that it was then that he picked up a kulhari and struck blows to Raghunnath to save his brothers life. 9. The defence version, as stated above, finds support from the prosecution evidence. PW Jamna Lal, son of the deceased,who himself, suffered an injury in the course of this transaction addmitted in cross-examination that the occurrence started with his father snatching the bucket from the hands of Kalu accused and then giving a lathi blow to him. He further stated that Kalu had struck a lathi blow to his father in retaliation of the blow inflicted by his father. 10. PW Laxmi Narain, a child witness, 7 years of age, also admitted that the refusal of Kalu to stop his bath and make way for Raghunath's cattle to drink water from the Jhiri, Raghunath had thrown away Kalu's bucket. Of course, he did not admit that Raghunath was the first to struck the lathi blow. According to him, Raghunath struck the lathi blow to Kalu only after Kalu had alrady opened the attack with a lathi blow struck at Raghunath. He further stated that there after Kalu had sent for his elder brother Dhanna from the village, that, on arrival, Dhanna struck a lathi blow to Raghunath and that Kalu picked up kulhari from there and struck a number of blows with this weapon to Raghunath. 11. PW Chhotia too has admitted that on refusal of Kalu to step aside from the Jhiri Raghunath gave a lathi blow to him. 11. PW Chhotia too has admitted that on refusal of Kalu to step aside from the Jhiri Raghunath gave a lathi blow to him. It is significant to note that this witness has explained that there were two different compartments at the Jhiri, one for Raghunath deceased and the other for Kalu accused and that still Raghunath wanted Kalu to stop taking his bath at his compartment. 12. Similarly, PW Bhairulal stated that on refusal of Kalu to yield place at the jhiri to Raghunath, the latter struck two or three lathi blows to Kalu and that subsequently when Dhanna came and asked him as to why he had beaten his brother Kalu, Raghunath gave a lathi blow to Dhanna as well. He further stated that it was then that Dhanna had attacked Raghunath with a stick and Kalu had gone to Dhanna's help picking up a kulhari which was lying there and striking kulhari blows to Raghunath. 13. Sizing up the statements of these witnesses as a whole, we are convinced that Raghunath deceased was a man of aggressive nature and overbearing attitude, that he could not tolerate Kalu's refusal to stop taking bath at the Jhiri, at his bidding and that therefore he had given a beating to the young lad. It may be mentioned here that Kalu described his age as 16 although the learned trial Judge has estimated it to be about 20. Be that as it may, the fact remains that Kalu is a boy in his teens and that he was beaten by Raghunath deceased without rhyme or region. It is also a fact that when Kalu's elder brother Dhanna arrived and asked Raghunath as to why he had beaten Kalu, Raghunath gave a lathi blow to him. It was then that Dhanna inflicted lathi blows to Raghunath and Kalu struck him with a kulhari. All the witnesses admitted that Kalu had picked up a Kulhari which was already lying there. Thus there was hardly any pre-meditation in Kalu's attack on the deceased. He saw that his elder brother was under attack. He acted spontaneously in the spur of the moment in striking kulhari blows to the deceased, little realising that his brother could defend himself and therefore did not need his help at all. Thus there was hardly any pre-meditation in Kalu's attack on the deceased. He saw that his elder brother was under attack. He acted spontaneously in the spur of the moment in striking kulhari blows to the deceased, little realising that his brother could defend himself and therefore did not need his help at all. It is obvious that this young lad exceeded the right of private defence of the body of his brother in striking a number of kulhari blows on the head region of the deceased. Similarly, he was not justified in giving a kulhari blow to Jamnalal PW who tried to intervene and save his father. 14. For all these reasons, we partly allow this appeal, alter the conviction of Kalu from section 302 to section 304 Part I of the Indian Penal Code. His conviction under section 324 I.P.C. for causing hurt to Jamnalal PW is affirmed. Having regard to his age and the circumstances of the case, we would reduce his sentence under both the counts to the sentence of imprisonment already undergone by him. It will be seen that he has been in continuous detention in prison since his arrest in February, 1977. This much of detention in prison would serve the ends of justice. He shall, therefore, be released forthwith if not required to be detained in connection with any other case.Appeal partly allowed. *******