N. G. CHAUDHURI, JITENDRA NATH CHAUDHURI, JJ. ( 1 ) CRIMINAL Appeal No. 37 of 1984 is directed against the order of conviction of the appellant Momin Mondal under Sec. 304 of Part 2 I. P. C. and sentence of 4 years R. I. Passed by the learned Sessions Judge, Murshidabad in Sessions Trial No. 2 of November, 1977. The appellant along with 3 other accused (Mahasinmondal, Golam Mondal and Bhelu Mondal) who have since been acquitted, was charged under Section 302/34 IPC for committing the murder of Johoruddin Karikar on or about 23rd April, 1974 at Jitpore, P. S. Domkal in the district of Murshidabad. Only the present appellant was convicted at the said trial and sentenced as stated hereinbefore. The facts of the case are as follows: -jahuruddin Karikar, resident of Fakirabad under Domkal PS obtained 3 cottahs of land in plot No. 5023 by purchase to the south of his garden which is situated to the west of his homestead. The said 3 cottahs of land was settled to one Santo Bewa who gifted it to her grand-son, Nur Bux, and Jahiruddin purchased the same from Nur Bux. To the contiguous west of the said 3 cottahs of plot is the house of accused/appellant Momin Mondal, his son in law, and acquitted accused Bhelu Mondal is the 'khalato' brother of accused Momin. Immediately on his purchase, Jahiruddin made a khalian in the 3 cottahs of plot for thrashing paddy. The said 3 cottahs plot was surrounded by ails and fencing of jiala trees. On the 9th Baisakh, 1380 which was a Tuesday at about 7 or 7. 30 A. M. Jahiruddin along with his two munishes, Nur Islam and Ajahar, went and his son, Afajuddin Mondal went to that 3 cottah plot for the purpose of building a hut there. Ajahar and Afajuddin then fixed a bamboo pole on that land. Nur Islam and Jahuruddin were then cutting a jiala tree on the eastern side of that plot. In the meantime, Afahar and Afajuddin went to their house to bring the measurement of the hurt to be constructed which they prepared by putting knots in the rope. Afajuddin then returned and found that there was a golmul going on. In the meantime accused Momin Mondal, rushed to the place and he was declaring that he would not allow Jahuruddin to cut the jiala tree. Afajuddin then returned and found that there was a golmul going on. In the meantime accused Momin Mondal, rushed to the place and he was declaring that he would not allow Jahuruddin to cut the jiala tree. But, Jahuruddin replied as to why he would not cut his own tree. Then a big haichai was started. On hearing the row, Keramat, another son of Jahiruddin, Nakur Md. And Fakir Md. , came to that place. Then the acquitted accused Mohasin Mondal, with a fala and a hensue in his hands, the acquitted accused, Golam Mondal and Bhelu Mondal, being armed with lathis rushed to that place. Then the accused, Momin Mondal, took the fala from the hand of Mohasin and struck it on the right side of the abdomen which was the right side of the back of Jahiruddin. On being struck Jahiruddin fell down with bleeding injury on his person. Mohasin Mondal then brought the fala from the abdomen of Jahiruddin. Then the acquitted accused Bhelu Mondal and Golam Mondal then struck Afajuddin with lathis on the left side of his shoulder and back. After assaulting, all those persons fled away to their house. Then Afajuddin made arrangement for a bullock-cart to take his father to the hospital. But, when they carried his father to the bullock-cart and went a few steps, Jahiruddin on the land where the incident took place, Afajuddin rushed to Domkal P. S. and reported the whole incident to the police officer and recorded the FIR on 23. 4. 74 at about 8. 45 A. M. S. I. , Benoy Krishna Debnath, OC of Domkal PS, recorded the FIR on the statements of Afajuddin and started Domkal PS Case No. 16 dated 23. 4. 74 under Sections 324, 304/34 IPC and he himself took up investigation of the case. He immediately proceeded to the place of occurrence and reached Fakirabad at about 10. 30 AM. He found the dead body on plot No. 5023 and held inquest on the deadbody in presence of witnesses, and then sent the deadbody for post mortem examination to Berhampore morgue through constables Raman Roy and Baijnath Singh. He then prepared a sketch map of the place of occurrence with an index. He seized some blood stained each and controlled earth from the place where the deadbody was found lying. He prepared seizure list in carbon process. He then prepared a sketch map of the place of occurrence with an index. He seized some blood stained each and controlled earth from the place where the deadbody was found lying. He prepared seizure list in carbon process. On that date he examined Ajhar Sk, Nur Islam Sk, and Keramat Karigar. He then tried to examine the other witnesses, but none was found available on that date. He tried to apprehend all the accused persons but could not. He arrested only the acquitted accused, Mohasin Sk at the thana who had gone to the thana in the afternoon. He examained other witnesses subsequently. He seized the sale deed executed by Nur Bux in favour of Jahiruddin Karigar on 22. 5. 75 on production by the complainant Afajuddin and took charge of the same under seizure list. Thereafter, on completion of investigation, he submitted charge sheet against the accused person on 14. 7. 74. ( 2 ) THE defence of the accused persons, as gathered from the trend of cross examination of the prosecution witnesses and also the statement made under Sec. 313 Cr. PC, is that the accused persons are all innocent and have been falsely implicated in this case. The specific defence of accused Momin Mondal and Mohasin Mondal, is that Jahiruddin, Afajuddin, Keramat, Nur Islan and Ajahar on taking dao, axe, falas and lathis came to their land and attempted to raise a hut there, that both of them protested and told them that they would not allow the hut to be constructed on their own land, that then Jahiruddin told Nur Islam to cut the tree, that then they forbade Nur Islam, that then Afajuddin rush to the house and brought a fala and a hensue, that then Jahiruddin struck Momin with a lathi and Afajuddin threw the fala aiming at Momin. But, it accidentally hit Jahiruddin and he fell down and then Afajuddin rushed to Mohasin to assault him and Mahasin caught hold of the hensue, that there was scuffle as a result of which the hensue hit the forehead of Afajuddin. The specific defence of the acquitted accused Golam Mondal and Bhelu was that they were not present at the time of the alleged incident and they had been falsely implicated in this case. The specific defence of the acquitted accused Golam Mondal and Bhelu was that they were not present at the time of the alleged incident and they had been falsely implicated in this case. ( 3 ) IN order to bring home the charge against the accused person, the prosecution has examined P. W. 1 Afajuddin Karikar, P. W. 2 Nur Islam, P. W. 6 Fakir Md. , P. W. 7 Keramat Krikar another son of Jahiruddin, and P. W. 8 Nukur Md. , who according to the prosecution are the only eye witnesses of the occurrence. Of them PW 2 Nur Islam has been declared hostile by the prosecution, PW 3 Doctor P. K. Sen held the post mortem examination on the deadbody of Jahiruddin Mondal on 24. 4. 74 PW 4, Doctor Ajit Kr. Mondal examined the injuries of Afajuddin Mondal, PW 1 on 23. 4. 74 at about 11 am. PW 5 Ismail Haque is the seizure list witness. PW 9 Haradhan Dhar and PW 10 Keramatulla Biswas have been produced to prove the certified copy of the sale deed (Ext. 2), by which Jahiruddin Mondal purchased the 3 cottahs of land which was the place of incident according to the prosecution. PW. 11 Benoykr. Debnath is the investigating officer. ( 4 ) THE defenece has examined D. W. 1 Himangshu Mohan Das, now medical officer of Taraf Rasuipur Primary Health Centre, previously known as Domkal A. G. Hospital, who brought the injury report book and the Admission Register Book of the said hospital being called for by the court. D. W. 2, Ajit Kr. Mondal who is 4 has been also PW examined on behalf of the defence to prove that both Momin Mondal and Mohosin Mondal were examined for their injuries on 23. 4. 74 at Domkal A. G. Hospital and that accused Mohosin Mondal was admitted in the hospital and in the afternoon he was arrested by the police from the hospital. ( 5 ) ON behalf of the prosecution, rent receipts, certified copy of the sale deed, F. I. R. seizure lists, sketch map, khatian of the plot of dispute and the order sheets of the ld. Committing Magistrate are the documentary evidence exhibited in this case. On behalf of the defence, two C. S. khatians have been exhibited. ( 6 ) THE prosecution examined 11 witnesses. Committing Magistrate are the documentary evidence exhibited in this case. On behalf of the defence, two C. S. khatians have been exhibited. ( 6 ) THE prosecution examined 11 witnesses. Two witnesses were examined on behalf of the defence, as defence witnesses. ( 7 ) THE alleged eye witnesses to the occurrence are P. W. s 1, 6, 7 and 8. PWs 1 and 7 are the sons of the deceased. PWs 6 and 8 are related to each other as brothers and they were both passing through the road carrying fertiliser in a bullock cart when they came to have seen the incident. PW 2 (Nur Islam) was a munish, PW 1 was present at the time of incident. He was, however, declared hostile and cross-examined by the prosecution. PW 5 arrived after the occurrence and saw the victim lying dead and is a witness to the seizure by the police of blood stained and controlled earth from that place. PW 9 - a witness from the Registry Office at Berhampore produced the certified copy of the deed No. 9238 of 1966 registered on 2. 8. 66. PW 10 is the Deed Writer in question and deposed that Nur Bux executed the said deed in his presence and also deposed that Ext. 2 was a certified copy of the sale deed. Cross examination was declined of both PWs 9 and 10. PW 11 is the I. O. of this case. ( 8 ) MR. Roy, learned Advocate appearing for the appellant, has urged that there are unexplained injuries found on the appellant and the acquitted accused Mahasin Sk. And therefore, the incident did not happen in the manner as alleged by the prosecution. He submitted that in any event the question of private defence should be considered by the Court and that right, in his submission, has not been exceeded. He further submitted that the place of occurrence also had not been satisfactorily proved by the prosecution and owing to that infirmity; no reliance should be placed on the prosecution case. In support of his submission, Mr. Roy has relied on a number of decisions. They are as follows: -1) AIR 1972 SC 244 (Hira Rai vs. State of Bihar ). In support of his submission, Mr. Roy has relied on a number of decisions. They are as follows: -1) AIR 1972 SC 244 (Hira Rai vs. State of Bihar ). In this case, the Supreme Court held that on the facts of this case inasmuch as the deceased was not unarmed the right of private defence had not been exceeded. 2) AIR 1971 SC 1208 (Dominick Varkey vs. State of Kerala ). In this case, the Supreme Court held that the question of excess of the right of private defence was a question of fact in each case. 3) AIR 1971 S. C. 1213. It was held in this case by the Supreme Court that nonpossession of the disputed land does not make a party the aggressor. 4) 65 C. W. N. 808 (Sagar Ch. Laha Vs. The State ). In this case, a Division Bench of this Court held on the facts of that case that the learned trial Judge in not placing the provisions of Section 300, Exception 2, of the Indian Penal Code had failed to direct the Jury properly. 5) A. I. R. 1968 S. C. 702 (Munshiram Vs. Delhi Administration ). In this case, the Supreme Court held that the burden on the defence in proving a suggestion was not as high as on the prosecution and the same could be discharged by the defence by proving the suggestion on the preponderance of probability. In that case, in cross examination of the witnesses the question of private defence had been raised although the accused in his statement under Sec. 342 Cr. P. C. had not taken that view. 6) A. I. R. 1973 S. C. 473 (Deonarayan Vs. State of Uttar Pradesh ). It was held in this case by the Supreme Court that the right of self-defence was a preventive right and not a punitive one. 7) A. I. R. 1975 S. C. 2161 (Mohon Singh Vs. State of Punjab ). The Supreme Court in this case held "as in the case reported in A. I. R. 1968 S. C. 702 referred to above, that a plea of self defence does not have to be proved beyond reasonable doubt, but the preponderance of probabilities would do. 8) A. I. R. 1975 S. C. 2263. State of Punjab ). The Supreme Court in this case held "as in the case reported in A. I. R. 1968 S. C. 702 referred to above, that a plea of self defence does not have to be proved beyond reasonable doubt, but the preponderance of probabilities would do. 8) A. I. R. 1975 S. C. 2263. In this case, the Supreme Court has laid down the circumstances under which the prosecution is bound to explain injuries appearing on the person of the accused. ( 9 ) MR. Roy very fairly has also drawn my attention to the case reported in A. I. R. 1979 S. C. 1010. In this case, the Supreme Court after referring to its decision in A. I. R. 1976 S. C. 2263 has laid down in some detail the circumstances under which the prosecution may be called upon to explain very serious injury on the accused. ( 10 ) MR. Mukherji, learned Advocate on behalf of the State, has relied on the said decision reported in AIR 1979 S. C. 1010. He has further submitted that the place of occurrence was sufficiently identified in evidence and that even if the accused could be said to have acted in private defence, that right had been exceeded. ( 11 ) P. W. 3 (Dr. P. K. Sen) who was the Medical Officer of the Berhampur Hospital at the relevant time held the postmortem examination on the body of the victim, duly identified by two constables. He found the following injuries: - ( 12 ) ONE gaping wound 3" x 11/2" x abdominal cavity on the right side of the back just below the twelveth rib at the outer border of the sacro spinalish mussle. On exploration of the wound he found that it had cut through the mussle wall of the abdomen, right into the abdominal cavity, causing injuries to the peritoneum liver surface on its posterior aspect. The peritoneum cavity contained large quantity of clotted blood. The injury to the liver on its posterior surface of the right lobe was of the size of 11/2" to 1 and 3/4th" with depth of about 1". ( 13 ) IN this opinion, the death was due to the effect of the injury mentioned above which was anti mortem and homicidal in nature, and may cause death in the ordinary course of nature. ( 13 ) IN this opinion, the death was due to the effect of the injury mentioned above which was anti mortem and homicidal in nature, and may cause death in the ordinary course of nature. In his opinion, the injury could have been caused by a sharp pointed weapon like a 'fala'. ( 14 ) P. W. 4 (Dr. A. K. Mondal) has deposed that on 23. 4. 74, while he was the Medical Officer in the Domkal A. G. Hospital he examined at about 11 A. M. P. W. 1 and found one incised would 1" x 1/2 x scalp deep on the right parietal region and one swelling oval in shape on the left shoulder. The incised injury could have been caused by any sharp cutting weapon like a 'huasua', while the injury on the left shoulder could have been caused by any hard and blunt weapon like a lathi. ( 15 ) IN cross examination he was shown a certificate by the defence lawyer and he stated that on 23. 4. 74 he examined Mahasin Ali of Fakirabad, son of Momin Sk. On seeing the certificate shown by the defence lawyer, although he had no independent recollection, he stated that it was granted to Mahasin on 15. 11. 77. According to him, he found on Mahasin one incised wound 1 ?" x 1/8th" x mussle deep on the dorsal aspect of the left ring finger and an incised wound 1" x 1/8th inch x mussle on the medial part of the left index finger. The injuries were simple in nature and might have been caused by a sharp cutting weapon. He further deposed in cross examination that Mahasin was admitted in hospital and the police arrested Mahasin from the hospital. ( 16 ) ON recall by the prosecution, he stated that he was not posted at the Domcal A. G. Hospital on 15. 11. 77 when he granted the certificate shown by the defence lawyer. He also stated that he did not remember to have issued any injury report to the police in connection with this case. ( 17 ) WHILE he was examined as P. W. 2 he was not asked any question by either side as to whether he examined Momin Mondal on 23. 4. 74. He also stated that he did not remember to have issued any injury report to the police in connection with this case. ( 17 ) WHILE he was examined as P. W. 2 he was not asked any question by either side as to whether he examined Momin Mondal on 23. 4. 74. It was only when he was examined by the defence as D. W. 2 that this Doctor stated during examination in chief by the defence lawyer that he examined Momin Mondal in the hospital, in the Outdoor Department, on 23. 4. 74. D. W. 1 had produced the injury report book, and the Admission Register Book of the Domcal A. G. Hospital, of which he was the Medical Officer in December 1977 when he deposed. From this Hospital Record which had been produced by D. W. 1, D. W. 2 stated that on examining Momin Mondal in the Outdoor Department of the hospital on 23. 4. 74 he found a swelling, oval in shape, on the lateral aspect of the right arm and the patient had pain all over the body. On looking at the Injury Report book he further stated that on 23. 4. 74 at 9. 30 A. M. he examined Mahasin Sk. , son of Momin Sk. , of village Fakirabad, P. S. Domkal and found one incised wound 1 ?" x ?" x mussle deep on the dorsal aspect of the left middle finger, simple in nature which might be caused by some sharp cutting weapon, such as, a 'hasua'. The patient was admitted but was discharged from the hospital at 4 P. M. since he was arrested by the local police. In cross examination by the prosecution, he admitted that the injuries which he found on both Momin and Mahasin were simple injuries and may be called minor injuries. He denied the suggestion by the prosecution that he had manipulated these two injury reports of Momin and Mahasin. He also denied that he had falsely stated that Mahasin was arrested from the hospital by the local police. ( 18 ) P. W. 1 and P. W. 7 who are sons of the deceased have clearly described how the appellant struck the victim with a 'fala'. P. W. 1 lodged the F. I. R. at 8. 45 A. M. on 23. 4. 74, the incident having taken place at about 7. ( 18 ) P. W. 1 and P. W. 7 who are sons of the deceased have clearly described how the appellant struck the victim with a 'fala'. P. W. 1 lodged the F. I. R. at 8. 45 A. M. on 23. 4. 74, the incident having taken place at about 7. 30 A. M. on 23. 4. 74. The Police Station was at a distance of about 4 miles from the place of occurrence. The appellant is FIR named and the fact of the appellant causing a bleeding injury with a 'fala' on the victim is mentioned in the FIR. The evience of P. W. 1 is by and large corroborated by his FIR. The FIR was ldoged very shortly after the occurrence, leaving no time for concoction. P. W. 6 and P. W. 8 who are brothers and residents of Fakirabad have also corroborated the evidence of P. Ws. 1 and 7. Mr. Roy, learned Advocate for the appellant, had drawn our attention to the fact that although P. Ws. 6 and 8 are mentioned in the FIR they were examined by the I. O. in June, 1974, Fakiron 16. 6. 74 and Nakib on 25. 6. 74. Fakir and Nakib are P. Ws. 6 and 8 respectively. He has submitted that such delayed examination makes their evidence virtually worthless. Even if we discard the evidence of P. Ws. 6 and 8 till in view of the evidence of P. Ws. 1 and 7 there can be no doubt that the appellant caused the injury in question on the deceaeed. It has also to be borne in mind that P. W. 1 had already lodged the FIR at the police station naming the appellant as the assailant before P. W. 1 was examined by the Doctor (P. W. 4 ). The FIR was lodged at 8. 45 A. M. on 23. 4. 74 while P. W. 4 examined P. W. 1 at the hospital at about 11 A. M. on the same day. The fact that P. W. 4 has not noted any history of the injury from P. W. 1 is, therefore, of no consequence. The FIR was lodged at 8. 45 A. M. on 23. 4. 74 while P. W. 4 examined P. W. 1 at the hospital at about 11 A. M. on the same day. The fact that P. W. 4 has not noted any history of the injury from P. W. 1 is, therefore, of no consequence. In fact, P. W. 4 who subsequently again deposed as D. W. 2 has not described the cause or history of injury of any of the persons who he examined at the hospital, i. e. , P. W. 1, the appellant Momin, and the acquitted accused Mahasin. We have borne in mind the fact that P. Ws. 1 and 7 are the sons of the victim in assessing their evidence. In our view, the place of occurrence has been sufficiently proved as being within Plot No. 5023. Moreover, it is also the defence case that the incident took place within that plot. ( 19 ) IN his statement under Sec. 313 Cr. P. C. the appellant has stated as follows: -"jahiruddin, Afazuddin, Keramat, Ejahar and Nur Islam armed with banka, shovel, dah, lathi went to my land in my field to erect a hut. I then told them that I would not allow them to erect hut over my land. Then Jahiruddin asked Nur Islam to cut down the jeala tree and it was started. I resisted Nur Islam. He stood aside. Afazuddin rushed to his house and brought fala and hausua, Jahiruddin then struck me with lathi. Afazuddin throw fala towards me and that fala hit his father. Afazuddin gave blow to Mahasinwith hansua and as a result two fingers of Mahasin were cut. Mahasin caught hold of hansua and during tussle it hit on the forehead of Afazuddin. Q. There is further evidence that on the day of incident when Police went to your house to arrest you, you were not found out then. Later you warranted before the court. What have you to say? ans. I have some saying. Q. You have heard all the evidences. What have you to say more? ans. No. Q. Will you adduce evidence? ans. Yes. ( 20 ) THE investigating Officer (P. W. 11) has deposed that on 23. 4. 74 he tried to apprehend the appellant but could not find him. He again tried later but without any success. Q. You have heard all the evidences. What have you to say more? ans. No. Q. Will you adduce evidence? ans. Yes. ( 20 ) THE investigating Officer (P. W. 11) has deposed that on 23. 4. 74 he tried to apprehend the appellant but could not find him. He again tried later but without any success. Ultimately, the appellant surrendered in Court. The answers of the appellant in his examination under Sec. 313 Cr. P. C. with regard to the evidence of absconsion has already been noted above. Although he stated therein that he had something to say with regard to that he was not found when on the day of the incident the police went to his house to arrest him, ultimately he did not say anything on this score. ( 21 ) FROM the evidence it is clear that the incident took place in a portion of the land, the possession of which was in dispute between the parties. Consequently, the question of private defence of property does not arise. The learned trial Judge has held that the appellant exceeded his right of private defence of person and hence, convicted the appellant under Sec. 304 Part II I. P. C. presumably applying exception 2 of Sec. 302 I. P. C. he also held that on the evidence of the prosecution there was no doubt that the appellant struck the victim Jahiruddin suddenly and therefore, could not come to the conclusion that the acquitted accused shared any common intention with the appellant, particularly since none of them struck the victim. It was the appellant only who struck the victim. He further held that the presence of the acquitted accused at the place of occurrence to raise protest only against the construction of the house by the victim's party on the disputed land could not be ruled out. The learned trial Judge in coming to his conclusion that the appellant had exceeded his right of private defence of person placed reliance on the fact that it was not suggested that Jahiruddin had any sharp cutting weapon with him, nor was any such statement made by the appellant under Sec. 313 Cr. P. C. , and there was nothing to show that the appellant was under any threat or danger of being killed by the victim or even of receiving any grievous hurt at his heads. P. C. , and there was nothing to show that the appellant was under any threat or danger of being killed by the victim or even of receiving any grievous hurt at his heads. ( 22 ) THE injuries found on the appellant and the acquitted accused, Mahasin, were very minor injuries and the fact that the prosecution did not and could not put forth any explanation for the same is of no consequence in the light of the reliable evidence of both P. Ws. 1 and 7. Moreover, it is being has been held by the Supreme Court in AIR 1979 S. C. 1010 that before it becomes obligatory on the prosecution to explain the injuries on the accused, so as to satisfy the Court as to the circumstances under which the occurrence originated, two conditions must be satisfied: 1)that the injuries on the person of the accused must be very serious and severe and not superficial; 2)that it must be shown that those injuries must have been caused at the time of the occurrence in question. ( 23 ) IN the present case, although the second condition appears to be satisfied, the first condition is not. The injuries on the appellant and Mahasin were minor injuries. ( 24 ) THE learned trial Judge has rightly disbelieved the defence version of throwing of a 'fala' by P. W. 1 which accidentally hit the victim. The injury caused on the victim penetrated inside the peritonial cavity and the throwing of a 'fala' from a distance was not likely to cause such an injury. ( 25 ) ON a consideration of the evidence, in our view no case, either of private defence of property or of private defence of person, has been made out on the preponderance of probability by the defence. Under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code is upon the accused, and the Court shall presume the absence of such circumstances. The right of private defence falls within the chapter of general exceptions to the Indian Penal Code. This burden, of course, can be discharged by showing the preponderance of probabilities only. The right of private defence falls within the chapter of general exceptions to the Indian Penal Code. This burden, of course, can be discharged by showing the preponderance of probabilities only. In our view, the evidence in this case clearly brings the case within the ambit of Exception 4 to Sec. 300 I. P. C. Exception 4 and its explanation read as follows:"culpable homicide is not murder if it is committed without pre-mediation in a sudden fight in the hit passion upon a sudden quarrel and without the offenders' having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault. " ( 26 ) SINCE we find that exception 4 to Section 300 I. P. C. applies in the facts and circumstances of this case we uphold the conviction under Section 304 Part II I. P. C. , as in our view, the appellant did the act with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as was likely to cause death. ( 27 ) IN passing sentence the learned trial Judge has observed that the appellant is an old man and the case arises out of a land dispute. Almost seven years have elapsed since the date of the trial. In consideration of all these factors we reduce the period of rigorous imprisonment to thre years rigorous imprisonment. ( 28 ) THIS appeal fails and is dismissed, subject to the modification as to sentence indicated above. The appellant will immediately surrender to his bail bond and serve out the sentence imposed on him, subject to any set off to which he may be entitled under Sec. 428 Cr. P. C. N. G. Chaudhuri, J. I agree. Appeal dismissed. Sentenced modified.