JUDGMENT P.N. Goel, J. 1. MINDHAI, Liladhar and Ram Prasad, real brothers inter se, residents of village Mandaiyan Jolpur, police station Patwai, district Rampur have been convicted under Section 304 read with Section 34 IPC. Mindhai and Liladhar have been sentenced to undergo R1 for 4 .years and a fine of Rs. 250/-. Ram Prasad has been sentenced to undergo RI for 2 years and a fine of Rs. 100/. 2. THE occurrence took place on 1-6-1976 a little after sun rise in village Jolpur. In this occurrence Ishwari, aged about 45 years, nephew of Vidhya Ram (PW 1) was assaulted. As a result of the injury received he died on the spot. Report of the occurrence was lodged verbally by Vidhya Ram at 8,30 A. M. at the police station, which is 5 miles away. R. S. Yadav, Station Officer (PW 6) entered upon investigation. On the date of occurrence at 5.50 P.M. Dr. B. R. Bhatnagar conducted postmortem examination on the dead body of Ishwari and found following antemortem injuries : (Injuries quoted-Editor). 3. INTERNAL examination indicated fracture of 6th, 7th and 8th ribs of the right side under injury no. (4). Pleura and right lung were lacerated. Right lung had a lacerated wound 2 cm. x 1/2 cm. % 1-1/2 cm. on its posterior surface under injury no, (4). 4. IN the year 1975, the Government had decided to give land for cultivation to landless labourers. In that connection Mitthan Lal Pradhan (P. W. 5) executed a Patta of some land Ex. Ka 2. on 29-12-1975 to Ishwari, The Lekhpal carved out the pieces of land from the main plots on a map, which were approved by the SDM. On 17-5-1976 Lohri Charan Lekhpal (PW 4) went to the spot and delivered possession. According to the prosecution, Ishwari was given possession on plot no. 372/2. It appears that the entire plot no. 372 was in actual cultivation of the appellants for the last about 7-8 years. Consequently, on 1-6-1976 the three appellants were ploughing the entire plot including the portion allotted to Ishwari. Ishwari, his uncle Vidhya Ram along with Zorawar, brother of Ishwari were on the Palej field of Zorawar. These persons saw the appellants ploughing the field. Consequently. 372 was in actual cultivation of the appellants for the last about 7-8 years. Consequently, on 1-6-1976 the three appellants were ploughing the entire plot including the portion allotted to Ishwari. Ishwari, his uncle Vidhya Ram along with Zorawar, brother of Ishwari were on the Palej field of Zorawar. These persons saw the appellants ploughing the field. Consequently. Ishwari proceeded to ask the appellants not to plough the land which had been allotted to him Vidya Ram and Zorawar continued to remain at the Palej field of Zoiawar. As soon as Ishwari reached the disputed field and asked the appellants not to cultivate, the appellants gave him abuses. Ram Prasad then grappled with Ishwari. It is said that Mindhai gave a blow on the head of Ishwari with a Kassi, a sharp edged weapon and Liladhar gave a lathi blow on his back. Thereafter all the three appellants ran away. It appears that during rainy season the plot in dispute goes under water. It comes out after the rainy season. There is sand in the disputed plot and the land around it. Therefore, there does not remain mend of the plot which go under water. 5. THE appellants did not admit to have assaulted Ishwari and asserted that they had been implicated on account of enmity. Precisely speaking there was no enmity between the appellants on one side, Ishwari, Vidhya Ram and the witnesses examined in the case from before the occurrence. 6. THE prosecution examined Vidhya Ram, Kara Lal and Balak Ram (PWs 1 to 3) as eye witnesses of the occurrence, besides Mitthan Lal Pradhan and Lohri Charan Lekhpal. The III Additional Sessions Judge Ram pur believed the evidence of the prosecution witnesses. He, however, observed "In any case even if the evidence of Vidhya Ram (PW 1) and Balak Ram (PW 3) is ignored there still remains the absolutely dis-interested, impartial and independent testimony of Ram Lal (PW 2) who was a natural witness of the occurrence," With regard to the nature of offence, the Addl. Sessions Judge observed, "In view of the circumstances that the accused were in actual possession of the land, and that even Kassi was used as a lathi, no intention to commit murder of the deceased can be inferred. Sessions Judge observed, "In view of the circumstances that the accused were in actual possession of the land, and that even Kassi was used as a lathi, no intention to commit murder of the deceased can be inferred. Otherwise also it was the deceased who provoked the accused to commit the crime and it was the deceased who was initially at fault in objecting to the ploughing of the land by the accused. If the deceased really put any obstruction in ploughing the land, the accused had a right of private defence to oust him out. Of course as already mentioned above in that case they must be held to have exceeded the right of private defence by using more force than was necessary to oust the deceased from the field. The offence, therefore, falls under Section 304 IPC and not under section 302 IPC." 7. LEARNED counsel for the parties have been heard and record has been examined with their assistance. 8. STATEMENT of Ram Lai shows that there used to be crop in the disputed land from before the date of occurrence. He has clearly seated that the Arhar crop had been harvested prior to the date of occurrence, that the said crop was sown by Mindhai appellant, that even before there used to be crop in the plot and that Mindhai used to sow the plot for the last 7 or 8 years and harvest its crop. It is thus evident that the appellants were in actual possession of the land from before the date of occurrence. It is undisputed that Mitthan Lal Pradhan gave Patta of a portion of plot no. 372 to Ishwari on 29-12-1975. It is then evident from the statement of Lohri Charan Lekhpal, that his predecessor had prepared a map showing the land to be given to landless labourens/allottees and that the said map was approved by the S.D.M. Lohri Charan lhen stated that he went to deliver possession to the allottees on 17-5-1976 and What he did deliver possession to ishwari on the said date. He has indicated the manner of delivery of possession in this way that heap of mud was placed on the four corners of the land. He has indicated the manner of delivery of possession in this way that heap of mud was placed on the four corners of the land. In cross-examination he stated that there was no mend between the land allotted to Ishwari and the field of the appellants and that after measurements on 17-5-76 amend wis constructed to demarcate the land of Ishwari from the land of the appellants This part of his statement is not correct. The Lekhpal did not prepare any record of the manner of delivery of possession Vidhya Ram did not mention in the report, nor he stated before the investigating officer that Ishwari had constructed mend of the land given to him, This clearly shows that in fact Ishwari had not constructed any mend of the land which was allotted to him. It is thus obvious that the Lekhpal gave symbolical possession of that land which was shown by his predecessor in a map. 9. IN view of the above, the appellants had gone to plough the disputed land. As the land was allotted to Ishwari he had a right to go to the land and ask the appellants not to plough it. Therefore, the learned Addl. Sessions Judge was not justified in saying that the deceased was initially at fault in objecting to the ploughing of the land by the appellants. 10. THE main question which arises is as to which of the appellants had actually assaulted Ishwari and whether a\l the three appellants are guilty of the offence punishable under Section 304 or under any other section of the Code. It is abundantly clear that It Its not a case of pre-planned assault. Jshwari happened to go to the hod and ask the appellants not to plough It. In this way It is a case of sudden occurrence, It appears that the appellants first of all gave abuses to Ishwari It also appears that Ishwari gave abuses to Ram Prasad (vide statement of Ram Lal). After the exchange of abuses Ram Prasad grappled with Ishwari. Thereafter Ishwari is said to have been assaulted by Mindhai and Liladhar. In these circumstances Section 34 IPC does not come into operation, and therefore, Ram Prasad cannot be convicted for any offence wIth the aid of section 34, 11. IT is now to be considered whether Mindhai assaulted Ishwari with a Kassi, a sharp edged weapon. Thereafter Ishwari is said to have been assaulted by Mindhai and Liladhar. In these circumstances Section 34 IPC does not come into operation, and therefore, Ram Prasad cannot be convicted for any offence wIth the aid of section 34, 11. IT is now to be considered whether Mindhai assaulted Ishwari with a Kassi, a sharp edged weapon. The appellants' counsel has urged that the presence of Balak Ram and Vidhya Ram at the time of occurrence is highly doubtful. Balak Ram has stated that he was at the palej field and that on hearing hue and cry he rushed. In cross-examination he clearly stated that he did not have any land near about the disputed land. He is an employee of the Hydel department as a Store Khallasi. He says that on the date of occurrence he was on leave and that he had coma to the village on one month's leave. In cross-examination he further stated that both parties were assaulting each other with fists and kicks. He stated that first of all there took place grappling between Ishwari on one side and the three appellants on the other side and that at the time of grappling there was Kassi in one hand of Mindhai and lathi in one hand of Liladhar. These facts have not been stated by any other prosecution witness, nor they find place in the first information report. Taking all these facts together it appears that Balak Ram had not seen the occurrence. The Additional Sessions Judge has referred to the above facts. He has observed : "No doubt no other witnesses stated so but it is quite probable that the earlier part of the scuffle as stated by him might not have been seen by the other witnesses, namely, Ram Lal " This observation is not correct because Ram Lal was nearest to the scene of occurrence and Balak Ram was at a more distance. Hence Ram Lal was the best person to see the entire occurrence. 12. WITH regard to Vidhya Ram he was also at a more distance than Ram Lal. He did not accompany Ishwari when the latter proceeded to ask the appellants not to plough the land. Vidhya Ram has stated in cross-examination that he heard exchange of abuses about 15 minutes after the going away of Ishwari from the Palej field of Zorawar. WITH regard to Vidhya Ram he was also at a more distance than Ram Lal. He did not accompany Ishwari when the latter proceeded to ask the appellants not to plough the land. Vidhya Ram has stated in cross-examination that he heard exchange of abuses about 15 minutes after the going away of Ishwari from the Palej field of Zorawar. Rami Lal was at his field which is to the east of the disputed land. Field of one Jiwaram intervenes the field of Ram Lal and the disputed land. According to Ram Lal, his field is about 100 steps from the scene of occurrence. Palej field of Zorawar is about 200 steps away from the field of Ram Lal. In this way it is evident that Vidhya Ram was at a sufficiently long distance from the place of occurrence. Therefore, it appears that he had not seen the entire occurrence. Two blows would have been caused in a very short time. Hence it appears that Vidhya Ram reached the scene of occurrence after Ishwari had been assaulted. There is, however, nothing to show that Vidhya Ram was not present even at the Palej field of Zorawar at the time of occurrence. Ram Lal was at 100 steps from the scene of occurrence. He saw the entire occurrence from his field. He is not interested in the deceased or Vidhya Ram, nor he is hostile to the appellants. Therefore, he can easily be termed as an independent and natural witness of the occurrence. 13. THE postmortem report does not indicate any injury caused by sharp edged weapon. According to the prosecution Mindhai gave only one blow to Ishwari with a Kassi. He gave this blow on the head of Ishwari. Therefore, in the natural course it will be presumed/expected that Mindhai must have assaulted Ishwari with the sharp edge of the Kassi. Vidhya Ram stated In chief examination that Mindhai assaulted Ishwari from the reverse side of the Kassi He did not state so in the first information report, nor he stated so before the investigating officer. Ram Lal stated in chief examination that Mindhai assaulted Ishwari with the reverse side of the Kassi. In cross-examination he asserted that he had told the investigating officer that Mindhai had assaulted Ishwari with the reverse side of the Kassi. Ram Lal stated in chief examination that Mindhai assaulted Ishwari with the reverse side of the Kassi. In cross-examination he asserted that he had told the investigating officer that Mindhai had assaulted Ishwari with the reverse side of the Kassi. His attention was drawn to his statement under Section 161 CrPC and then be stated that he could not say as to why the investigating officer had not written sot, It is thus apparent that Vidhya Ram and Ram Lal both are making improvements in their statements before the trial court. They did not disclose at the earliest opportunity that Mindhai assaulted Ishwari with the back side of the Kassi. 14. IN this connection it will be noticed that Ishwari had only two injuries- "(i) a lacerated wound and (ii) another a contusion. These two injuries could easily be caused by Liladhar with a lathi in the heat of the moment. The learned Additional Sessions Judge has dealt with this aspect of the matter and concluded "Either one blow from the Kassi from the blunt side and one blow from the lathi was received by the deceased or the blow from the Kassi missed the target and both the blows were received by lathi of Liladhar." It is thus vident that the learned Additional Sessions Judge has not expressed a definite opinion on the point. The learned State counsel urged that a sharp edged weapon can be used from its reverse side. He has placed reliance on two cases: "(1) Banwarl v. The State of Rajasthan, 1979 CrLJ 161-In this case there were 9 assailants. Most of them had lathis. Banwari appellant had a lathi. It was said that Banwari later on took a Barchhi. Shiv Prasad, an injured stated in cross-examination that the accused holding pharsis also caused injuries to him. It was observed, "But that does not mean that 'pharsis' were used from their sharp side. Injuries could have been caused from the reverse side of the 'pharsis'. We do not find any unnaturality in the statement on this point. Shiv Prasad, an injured stated in cross-examination that the accused holding pharsis also caused injuries to him. It was observed, "But that does not mean that 'pharsis' were used from their sharp side. Injuries could have been caused from the reverse side of the 'pharsis'. We do not find any unnaturality in the statement on this point. No doubt normally when a witness states that a 'pharsi' or an axe was used, there is no warrant for supposing; that what the witness means is that the blunt side of the weapon was used, but where as here the witnesses clarifies as to whether the sharp side or the blunt Hide of the weapon was used, there is no reason to doubt such a statement. Many a time 'pharsis' and spears are weilded as lathis." Reference was made to the case of Angnoo v. State, AIR 1971 SC 296 . "(2) Angnoo v. State of U. P., AIR 1971 SC 296 -In this case there were 10 assailants. Five of them had spears and the other five had Kantas. One Mahadeo received 27 injuries out of which 4 were blunt-weapon injuries. It was argued that a spear or a Kanta could not have caused contusion, bruises or depression on the bead. Therefore, the evidence of the eye-witnesses did not fully explain all the injuries received by Mahadeo. On these facts mentioned above, it was observed, "It appears to us that most of these witnesses arrived at the scene of occurrence after the attach had already started and were able to see only part of the incident, so that same blows must have been inflicted on Mahadeo before their arrival and some after their arrival. It may be that they failed to notice that some of the assailants were carrying lathis, or, more probably, some of the assailants used their- spears like lathis. They gave blows wielding spears as lathis rather than thrusting the spears every time. They may have done so even before some of the witnesses arrived. The use of a spear in such a manner will, not be very unnatural if a large number of persons surrounded one single man and try to beat him. In such a situation, it may be easier to wield the spear as a lathi than to try and thrust it at the person being attacked. The use of a spear in such a manner will, not be very unnatural if a large number of persons surrounded one single man and try to beat him. In such a situation, it may be easier to wield the spear as a lathi than to try and thrust it at the person being attacked. There is, therefore, in our opinion, no conflict at all between the medical evidence and the evidence given by the eye-witnesses." 15. THE observations in the two cases relied upon are not of help in the present case. Its reason is that the assailants were not many in number and that only one blow is said to have been caused by Mindhai with a Kassi. Therefore, in the normal course Mindhai would use the sharp edge of the Kassi first. Had there been many injuries on the person of Ishwari, some caused by sharp edge and some by blunt side, then it could be said that Mindhai had caused several injuries to Ishwari with Kassi. 16. IT will further be noticed that Ram Lal stated that he had told the investigating officer at the earliest opportunity that Mindhai had assaulted Ishwari with the reverse side of the Kassi. But this was not correct. Taking into consideration the manner of occurrence in the present case, it is extremely doubtful that Mindhai assaulted Ishwari with a Kassi It has been said above that Liladhar alone could have caused two injuries to Ishwari with a lathi in the heat of the moment. Therefore, benefit of doubt can be extended to Mindhai. 17. WITH regard to Liladhar, there is good evidence of Ram Lal that he had assaulted Ishwari with a lathi. 18. IT is now to be considered whather Liladhar is guilty of the offence punishable under Section 304 IPO or under Section 325 IPC. The occurrence took place suddenly. Ishwari reached the land in dispute and asked the appellants not to plough the land as it was allotted to him. There took place exchange of abuses. In the course of exchange of abuses Ram Prasad began to grapple with Ishwari. Then Liladhar gave two blows with a lathi. The occurrence took place suddenly. Ishwari reached the land in dispute and asked the appellants not to plough the land as it was allotted to him. There took place exchange of abuses. In the course of exchange of abuses Ram Prasad began to grapple with Ishwari. Then Liladhar gave two blows with a lathi. Lathi blow which fell on the head did not cause any fracture of the skull bones, nor it caused any damage to the brain the second lathi blow which fell on the back happened to cause fracture of the ribs. The ribs then lacerated the pleura and lung. Ordinarily back is not considered a vital part of the body. It is unfortunate that the blow on the back fell so severely that it caused fracture of three ribs. Instances are not lacking where lathi blows on the back do not cause any fracture of the ribs. As the ribs were fractured and they lacerated pleura and right lung, Ishwari died on the spot. In these circumstances Liladhar can more appropriately be guilty of the offence punishable under Section 325 IPC and not under Section 304 IPC. Looking to the manner of (occurrence and the injuries caused, the sentence of four years' R. I. under Section 325 IPC to Liladhar will meet the ends of justice. 19. IN the result, conviction and sentence of Mindhai and Ram Prasad under Section 304/34 IPC recorded by the II Additional Sessions Judge Rampur are set aside. They are acquitted in the case. They are on bail. They need not surrender. Their bail bonds are discharged. 20. APPEAL by Liladhar is dismissed in this way that his conviction under Section 304/34 IPC is altered to one under Section 325 IPC. He will undergo R I. for four years under this section. The sentence of fine of Rs 250/- awarded to him is dropped. Liladhar is on bail, Ha will surrender to serve out the sentence. Appeal dismissed.