JUDGMENT 1. - This appeal by accused Nand Lal and Bheru Lal is directed against the judgment of learned Additional Sessions Judge, Baran dated December 17, 1975 convicting them under section 302 IPC and to a sentence of imprisonment for life. Accused Ram Chandra was also convicted under section 323 IPC and to a sentence of one months' simple imprisonment and to pay a fine of Rs. 100/- but he did not file any appeal against his conviction and sentence. 2. Brief facts of the prosecution story are that one Mst. Kistoori D/o accused Dhanna and PW6 Kishan Lal worked as labourers in a Bidi factory at Baran. Though Mst. Kastoori was married but she had develop. ed illicit relations with Kishan Lal while working in the factory. Some person dropped a paeudonymous letter in the name of Nand lal, to accused Bheru Lal, who was the husband of Mst. Kistoori regarding the illicit relations between Mst. Kistoori and Kishan Lal. Thereafter, accused Bheru Lal came to Baran and met PW 6 Kishan Lal and made inquiries by showing him the letter Ex. 10. Kishan Lal denied the authorship of the letter and also its contents. Thereafter Bheru Lal s/o Dhanna Lal, who was the brother of Mst. Kistoori went to Bidi factory on November 18, 1974. Then Bheru Lal slapped Kishan Lal on his face and threatened Kisban Lal that he would be finished by 5 p.m. Thereafter, one Prem an associate of Kishan Lal in the factory at once left the place and went to inform the father of Kishan Lal that Bheru Lal had slapped Kishan Lal in the factory. The prosecution case further is that when Bheru Lal was returning back on his cycle from the factory, Badri, father of PW 6 Kishan Lal and Mohan s/o Kishan Lal's uncle stopped Bheru Lal in the way and reprimended him as to why he gave a slap to Kishan Lal. At that point of time other accused persons namely Ram Chandra, Deen Dayal, Dhanna Lal, Nand Lal-another Bheru Lal s/o Gauri Lal came on the scene of occurrence duly armed with lathi. The prosecution story further is that the accused persons started inflicting injuries on Badri and Mohan by lathis and when they fell down then accused Nand Lal took out a knife and inflicted an injury in the stomach of Badri. The prosecution story further is that the accused persons started inflicting injuries on Badri and Mohan by lathis and when they fell down then accused Nand Lal took out a knife and inflicted an injury in the stomach of Badri. Similarly, accused Bheru Lal s/o Dhanna Lal also took out a knife and inflicted an injury in the stomach of Mohan Lal. Jagannath PW 1 lodged an FIR Ex. P 1 at Police Station, Kotwali Baran on November 18, 1974 at 10.15 a.m. The police registered a case under section 307, 147, 307/149 and 326 IPC. The Station House Officer, Incharge Kotwali also recorded a dying declaration of Mohan vide Ex. P2. Mohan succumbed to the injuries before being taken to the hospital but Badri was taken to hospital and his injuries were examined by PW 14 Dr. Banshidhar Chaurasia. Badri also succumed to the injuries on November 20, 1974. Post mortem examination of Badri was conducted by. Dr. Kailash Chandra who found following external and and internal injuries: 1. Stab wound 11/2" x 3/4" x abdominal cavity directed down-ward forward and medially on the left side of the chest in the eighth space mid axillary line. 2. Lacerwed wound 11/2" x 1/2" x bone deep on the left parietal region antero posteriorly placed 11/4" lateral to the mid -line. 3. The police filed a challan against the accused persons, for offences under sections 302/149, 302, 323, 148 and 147 IPC. Learned Additional Session Judge, Baran, who tried the case, framed charges against all the accused persons. The accused persons denied the charges and claimed to be tried. The prosecution in support of its case examined 15 witnesses in all and the defence led 3 witnesses in support of its case. The learned Additional Sessions Judge acquitted accused Deen Dayal, Bheru Lal anal Dbarma for all the charges levelled against them while the remaining three accused persons namely Nand Lal, Behru Lal S/o Dhanna Lal and Ram Chandra have been convicted and sentenced as mentioned above. 4. We have heard Mr. A.K. Gupta for the accused Nand Lal and Bheru Lal and the learned Public Prosecutor. 5. Mr. Gupta, learned counsel for the defence, argued that even if the prosecution case is believed in toto, the act of accused-appellant falls within the exercise of the right of private defence of person and as such they have not committed any offence. A.K. Gupta for the accused Nand Lal and Bheru Lal and the learned Public Prosecutor. 5. Mr. Gupta, learned counsel for the defence, argued that even if the prosecution case is believed in toto, the act of accused-appellant falls within the exercise of the right of private defence of person and as such they have not committed any offence. It is submitted that even according to the prosecution case as stated by PW I Jagannath, PW 3 Amar Lal, PW 4 Madho Lal and PW 5 Nand Kishore, alleged eye witnesses it is proved that Bheru Lal s/o Dhanna Lal accused appellant, who was the brother of Mst. Kistoori was returning from factory after giving threatening to Kishan Lal. While in his way. he was intercepted by Badri and Mohan, %ho reprimanded the accused appellant for having given beating to Kishan Lal. Badri and Mohan also started beating the accused-appellant when Ram Chandra father of Nand Lal came on the spot to rescue him and also Nand Lal S/o Ram Chandra. Then Ram Chandra was given belting by lathis, as a result of which Ram Chandra received about 5 injuries which are proved by injury report Ex. P. 34. It is submitted that Bheru Lal accused-appellant aged about 17 years and Nand Lal accused-appellant aged about 19 years when saw Ram Chandra being beaten at the hands of the complainant party: then each one of these persons inflicted one injury by a knife to Badri and Mohan respectively. It is submitted that only one incised wound has been found on the body of Badri and Mohan in the post-mortem examination and this shows that the accused-appellant had no intention to cause death of either of these persons and had inflicted one knife blow in the exercise of right of private defence of the person of Ram Chandra. 6. On the other hand, it was submitted by the learned Public Prosecutor that it has come in the evidence of PW 5 Nand Kishore that Bheru Lal had gone inside the house and had brought the knife and had thereafter inflicted a knife blow in the stomach of Mohan. 6. On the other hand, it was submitted by the learned Public Prosecutor that it has come in the evidence of PW 5 Nand Kishore that Bheru Lal had gone inside the house and had brought the knife and had thereafter inflicted a knife blow in the stomach of Mohan. He supported the finding of learned Additional Sessions Judge in this regard and contended that the act was committed with deliberate intention of causing death and two persons have died as a result of incident and there was no question of the exercise of right of private defence of person in the facts and circumstances of the case. 7. We have given careful consideration to the arguments advanced by the learned counsel for the defence and the learned Public Prosecutor and have thoroughly perused the record. 8. All the eye witnesses of the occurrence namely PW 1, PW 3 and PW 4 except PW 5 have stated that the incident took place in the way outside the houses of the parties and they did not support the version given by PW 5 Nand Kishore that Bheru Lal had gone inside the house and brought the knife. According to these three witnesses PW 1 Jagannath, PW 3 Amar Lal and PW 4 Madho, Bheru Lal was returning back from the factory after giving a slap to Kishan Lal. He was intercepted by Badri and Mohan and thereafter the accused appellant Bheru Lal inflicted a knife blow in the stomach of Mohan and Nand Lal accused gave one knife blow in the stomach of Badri. It has been held established beyond any manner of doubt by Ex. P 34 itself that Ram Chandra accused-appellant had also received 5 injuries simple in nature by blunt weapons at the hands of the complainant party in the same incident. Ram Chandra was the father of Nand Lal accused-appellant and also related to Bheru Lal accused appellant. Each of the two accused appellant, who were 17 and 19 years of age at the time of the incident, took out a knife from their pocket and gave one blow only on Mohan and Badri. The above facts and circumstances and the nature of injuries found on the body of deceased Mohan and Badri shows that the accused-appellants had no intention to cause the death. The incident took place at the spur of the moment. The above facts and circumstances and the nature of injuries found on the body of deceased Mohan and Badri shows that the accused-appellants had no intention to cause the death. The incident took place at the spur of the moment. We are not prepared to believe the story of the prosecution as found proved by the Additional Sessions Judge that Bheru Lal had gone inside the house and had brought the knife from there and thereafter had inflicted a blow by the knife. Such case is not supported by the three eye witnesses PW 1 Jagannath, PW 3 Amer Lal and PW 4 Madho and the solitary statement of PW 5 Nand Kishore in this regard cannot be believed. Learned Additional Sessions Judge in this regard wrongly took support from the statement of DW 2. Bheru Lal Mali had stated that when an altercation took place between both the parties when he was working in his 'BARI', Bheru accused appellant was going on his bicycle. Badri inflicted a blow on Bheru by lathi on account of which Bheru Lai fell down from the bicycle. Thereafter, Bheru was caught hold by the hairs of head. Bheru got him released and then ran away inside his own house and thereafter the witness Bheru Lal Mali also went to his house. The learned Additional Sessions Judge was clearly wrong in taking a support from the above statement of DW 2 that Bheru Lal s/o Dhanna Lal accused-appellant had gone inside the house and had brought the knife from within the house and had thereafter inflicted a blow on deceased Mohan. 9. The facts as mentioned above clearly go to show that a right of private defence of person had arisen to the accused appellants but we further hold that the accused appellants had exceeded such right of private defence. The injuries Found on Ram Chandra are all simple in nature and by blunt weapon and it did not furnish any right to the accused-appellants to cause death of Mohan and Badri. However, as only one injury each was inflicted on the body of Mohan and Badri by accused-appellants Bheru Lal and Nand Lal respectively and they had not misused their right of private defence, they cannot be held guilty for offences under section 302 IPC. The I case, in our view, falls under section 304 part II IPC. 10. However, as only one injury each was inflicted on the body of Mohan and Badri by accused-appellants Bheru Lal and Nand Lal respectively and they had not misused their right of private defence, they cannot be held guilty for offences under section 302 IPC. The I case, in our view, falls under section 304 part II IPC. 10. Now considering the question of sentence, the accused-appellants Bheru Lal s/o Nand Lal and Dhanna Lal sic) Ram Chandra were of 17 and 19 years of age on the date of incident. They have already remained in jail for about 3 years and 8 months. They are scheduled caste persons and there were no motive or intention to commit the crime. The incident took place at the spur of the moment and without pre-meditation. In these facts and circumstances end of justice would meet if they are sentenced to the period of imprisonment already undergone by them. 11. In the result, we allow the appeal in part. The convictions of both the accused appellants under section 302 IPC is set aside and instead they are convicted under section 304 Part II IPC and are sentenced to imprisonment for the period already undergone by them. But the accused-appellants are on bail as such they need not surrender to the bail bonds. Their bail bonds are discharged.Appeal partly allowed. *******