JUDGMENT 1. - The appellants Manji and Nathu have been convicted of the offence under Section 325, read with Section 34, I.P.C., and each one of them has been sentenced to three years' rigorous imprisonment and a fine of Rs. 500/-, in default, to undergo three months' rigorous imprisonment each. Both these appellants and the appellant Homa have also been convicted for the offence under Sec 323, I.P.C., and each one of them has been sentenced to a fine of Rs. 300/-, in default of payment of fine, to undergo three months' simple imprisonment, each. The injured Bheema and Amra were awarded compensation of Rs. 300/- each, on depositing of the amount of fine. 2. Briefly stated, the prosecution case is that on 5-11-976, at about 10.00, a.m.. Dhula and his two sons Amra and Bheema were sitting on the 'Chabutari' of their house. The accused Rama came over there and told them as to why Chatra was not confined by them in their house, when he entered into their house. It is said that Chatra entered into 'the house of Dhula three days ago at about 12 in the night and was kept confined for some time and thereafter he was let off. On this issue some wrangle took place between Rama and Dhula and his sons. It is alleged that at that time the other accused persons numbering about eight, came armed 'lathis' and stones and belaboured Dhula, Amra and Bheema. The appellants Nathu, Manji and one Kalu inflicted 'lathi' blows on Dula, whereby he fell down from the 'Chabutari' and breathed his last. Bheema and Amra were also beat by all of the accused persons A written report or the occurrence was lodged by Bheema on 6-11-1976 at 11.00 a.m, at the police Station, Goverdhan Vilas, Udaipur. On this report case under Sections 147 and 323, I.P.C., was registered. Thereafter offence under Sec 304, I.P.C. was added. Spot investigation was conducted. Autopsy on the dead body of Dhula was got conducted. Amra and Bheema were got medically examined After completion of investigation, charge-sheet was presented against the nine accused persons. They were ultimately tried by the 'earned Sessions Judge, Udaipur. After recording the plea of not guilty at the trial their prosecution examined P.W. 1 Amra, injured, P.W.2 Bheema, P.W.3 Nathu, P.W.4 Another Amra son of Deva, P.W.5 Dr Tej Prakash, Medical Jurist, P.W.6 Dr. They were ultimately tried by the 'earned Sessions Judge, Udaipur. After recording the plea of not guilty at the trial their prosecution examined P.W. 1 Amra, injured, P.W.2 Bheema, P.W.3 Nathu, P.W.4 Another Amra son of Deva, P.W.5 Dr Tej Prakash, Medical Jurist, P.W.6 Dr. G.L. Dad, another Medical Jurist, P.W.7 Bhera, P.W.8 Udai Singh, Dr.S.P., P.W.9 Iqbal Mohammad, S.H O , and P.W.10 Ganesh Lal, H.C. Statement of the accused persons were recorded, in which they denied the prosecution case and stated that Dhula, Amra and Bheema were taking tea at their house When Rama passed by their house, he was called and was told that his brother Chatra had entered into their house. Why be has not taken care of, Thereupon Rama told him that take legal action he taken against him. There upon, scuffle took place. Laxmi raised an alarm, on which the other accused persons Kalu, Homa, Manji and Dhula were attracted to the scene of occurrence to defend Rama, but the accused persons were given beating. The deceased Dhula inflicted a 'lathi' blow on the head of Kalu. In the scuffle Dhula fell down, so he sustained injury by fall. The accused persons, in their defence. examined Khatra (D.W.1) 3. The learned Sessions Judge after hearing the arguments acquitted the accused persons of the offences under Sections 148, 304 and 304/149, I.P.C. He, however, convicted Manji, Nathu, appellants, and one Kalu under Section 325/34, I.P.C., and he also conflicted these three accused and one Homa for the offence under Section 323, I.P.C. and sentenced them as aforesaid. Kalu was, however, given benefit of prabation. Kalu has not of preferred any appeal. This appeal has been preferred by Manji, Nathu and Homa only. The other accused persons were acquitted. 4. I have heard Shri M.C. Bhandari, assisted by Shri Jitendra Surana, learned counsel for the accused-appellants, and Shri R.P. Dave, learned Public Prosecutor, for the State, and perused the record of the case carefully. 5. The learned counsel for the accused-appellants, submitted that the occurrence did not take place as alleged by the prosecution and in fact it took place in the manner, as alleged by the accused persons. It was Rama and Nathu, who came from different direction who were belaboured by the complainant party including the deceased Dhula, and when the accused persons attracted to the scene of occurrence. they were also given beating. It was Rama and Nathu, who came from different direction who were belaboured by the complainant party including the deceased Dhula, and when the accused persons attracted to the scene of occurrence. they were also given beating. The accused Kalu sustained injuries. One of the injuries was in the nature of diffuse swelling with tenderness over the right temporo parietal region. Homa also received one injury in the nature of abrasion on the right leg Kalu, Homa, Manji, Dhula son of Ganga Meena and Rama had also sustained injuries with stones, though at the time of medical examination no injury was detected. The accused persons have produced their injury reports Ex.D/1 to Ex D/5, prepared by Dr. Taj Prakash, Madical Jurist, and Dr. G.L. Dad, Medical Jurist. It was urged by the learned counsel for the appellants that when wrangle took place between Rama, on the one hand, and the deceased Dhula and his two sons, on the other hand, it is quite probable that at that time the complainant party must have resorted to violence and in defence of Rama and Nathu, the complainant party might have sustained some injuries.According to the learned counsel,it is a clear case where the accused party acted in exercise of right of private defence of their person. So far as the fatal injuries on the person of Dhula is concerned, this possibility cannot be ruled out that he might have sustained the head injury on account of fall. He submitted that there was no question of any intention on the part of the accused persons, as the genesis of the occurrence would go to indicate that there could be no common intention on their part. On alarm by Laxmi, the accused persons, other than Rama and Nathu. were attracted to the scene of occurrence, so the question of any common intention is compeltely ruled out. If the matter is viewed in the light, of contended by the learned counsel for the appellants, he urged, the appellants are entitled to acquittal and their convictions have been wrongly entered into. 6. The learned Public Prosecutor, for the State, on the other hand, supported the judgment of the learned trial judge and urged that the number and nature of injuries on the person of Dhula. Amra and Rheema go to indicate that the accused party was an aggressor party. 6. The learned Public Prosecutor, for the State, on the other hand, supported the judgment of the learned trial judge and urged that the number and nature of injuries on the person of Dhula. Amra and Rheema go to indicate that the accused party was an aggressor party. Amra sustained four bruises of sufficiently big dimensions and two abrasions. Bheema sustained one lacerated wound on occipitoparietal region of the scalp and four bruises on scapular region and lumbar region and right fore-arm of varying dimensions sufficiently in size and he also sustained one abrason. So far as the deceased Dhula is concerned, he had the following external injuries:- (1) Depression over vertex with lacerated wound 2 cm. x 1/2cm. x bone deep over vertex, with blood surrounded by abrasion 5 cm x 3 cm. in surrounding area dry blood present. (2) Abrasions (three) varying from 11/2cm x 1 cm to 2 cm x 1 cm. over fore-head, left side with dryserum scab. (3) Black eyes on both sides. According to the learned Public Prosecutor, the occurrence took place at the house of Dhula and there was no reason for Dhula and his sons to have resorted to violence and open an attack on Rama and Nathu. If they would have been the aggressor, the number and nature of the injuries on the person of the accused persons would have been different. So he submitted that the assailants of Dhola, namely, Nathu, Manji and Kalu, have been convicted only for the offence under Section 325/34, I.P C., in view of the fact that there was no intention of their part to cause such injuries as is likely to cause death nor any knowledge can be attributed to them for the injuries, which they may cause to Dhulla, may likely to result in his death. There are only two injuries on the person of Dhula and three accused persons have been named as his assailants and it is not known as to who is the author of the injury, which ultimately proved to be fatal, so considering these circumstances, the learned trial judge convicted these three accused persons of the offence under Section 325/34, I.P.C. These three accused persons along with Homa, have caused injuries to Amra as well as to to Bhima, so they have been convicted for the offence under Section 323, I P.C. It is this manner, the learned Public Prosecutor supported the judgment of the learned trial judge. 7. I have carefully considered the contentions advanced by both the sides. After careful consideration of the contentions and the record of the case I am of the opinion that the appellants Manji and Nathu have been rightly convicted of the offence under Section 325/34, I.P.C., and the appellants have also been rightly convicted of the offence under Section 323, I.P.C. I have perused the injury reports of Amra and Bhima and also the post-mortem report of the deceased Dhula on the complainant side and have also perused the injury reports of the accused persons namely, Kalu, Homa, Manji, Dhula and Rama. After perusal of these documents in the light of the statements of the two injured persons. I am firmly of the opinion that the accused Nathu, Manji and Kalu inflicted 'lathi' blows on the person of Dhula, Amra and Bheema and Home also joined them. But so far as the deceased Dhula is concerned, according to the statements of these witnesses, no injury was inflicted by him (Homa) on the person of Dhula. If the complainant party consisting of three persons, would have opened an attack, the accused party would have certainly sustained not only greater number of injuries, but their nature of injuries would have been of a different type instead of in the nature of complaining Pain of giving out history of hi ting by stones, The injuries on the person of the complainant party and the accused party, in my opinion, tell the complete tale as to which party was an aggressor party. The accused party had already been given the benefit of doubt in respect of the offences under Section 149, I.P.C., as admittedly the accused persons were not present at the scene of occurrence since its begin. It was only Rama, who came first followed by Nathu and thereafter the other accused persons appeared at the scene of occurrence. But thereafter so far as the Nathu, Manji and Kalu are concerned, when they inflicted lathi blows on Dhula and two others common intention can certainly be attributed to them that by yielding of 'lathi' blows, they would be causing grievious injury or injuries. I need not examine the question of commission of offence under Sec 304, Part I or Part II, I.P.C., read with Sec 34, I.P.C , as there is no State appeal. It is true that there are I only two injuries on the person of Dhula and the evidence is in respect of three accused persons Manji, Nathu and Kalu. Even one of them, may not the as ailant of Dhula, still constructively they can be liable for the offence under Section 325, I.P.C. Thus. I do not find any force in the submission of the learned counsel for the appellants that the accused persons acted in the exercise of the right of private defence of their person so they cannot be held liable for the offences under which they have been convicted I, therefore, hold that the appellants have been rightly convicted for the offences under which they have been convicted by the learned Sessions Judge. 8. The learned counsel for the appellants, however urged that the appellants, other than Homa, have remained in custody since 9-11-1976 till 30-7-1977, for more than eight months. He also pointed out that admittedly as per the prosecution case, the deceased Dhula fell from Chabutari. The gravity of the injury might have increased due to fall. The scuffle had taken place all of a sudden. So considering these circumstances, the sentence of the appellants Nathu and Manji may be reduced to the period of custody already suffered by them, so far as the offence under Section 325/34, I.P.C. is concerned 9. I have considered the question of sentence and, in my opinion, the submissions made by the learned counsel for the appellants, cannot be said to he without force. I have considered the question of sentence and, in my opinion, the submissions made by the learned counsel for the appellants, cannot be said to he without force. In may opinion, ends of justice would be served, in case the appellants Manji and Nathu are sentenced for the offence under Section 325/34, I.P.C., to the period of custody already suffered by them. But so far as the sentence of fine under Section 323, I.P.C., is concerned, in my opinion, sentence of fine awarded to the appellants should be maintained. 10. Accordingly the appeal is partly allowed. The convictions of the appellants are maintained. The sentences of the appellants Manji and Nathu for the offence under Section 325/24, I.P.C., is reduced to the period of custody already suffered by them. The sentence of line of Rs 300/- (three hundred), each of the three appellants for the offence under Section 323, I.P.C., is maintained In case the fine is not deposited, the appellants shall undergo two months' simple imprisonment. In case, the fine is deposited a sum of Rs 307/- each shall be paid to Antra son of Dhula and Bheema son of Dhula, Meenas, residents of village Kamli Amba, Tehsil Girwa, District Udaipur. 11. The learned counsel for the appellants prayed for three months' time for depositing the amount of fine. H twelve, two months' time is allowed. In case the fine is not deposited within the stipulated time, the Chief Judicial Magistrate, Udaipur, is directed to take the appellants in custody for serving out the sentence in default of payment of fine.Appeal partly allowed. *******