JUDGMENT 1. 1. This appeal is directed against the judgment of the Sessions Judge, Jhalawar dated 4th November, 1981 in sessions case No. 77 of 1980 arising out of an incident which took place on 26th June, 1980 in which one Shri Dhanma sustained injuries as a result of which he died and Bajrang Lal P. W. 4, Smt. Pana Bai P. W. 12. Kishan Lal P. W. 1, Gopal P. W. 13 and Mohan Lal P. W. 11 sustained injuries. The five appellants before this court and one Kishan Lal who died during the course of trial, were prosecuted in respect of charges under sections 302/149, 324/149, and 323 I. P. C. Appellants Dhanna and Dudhiya were further charged with offence under section 147 I.P.C. The Sessions Judge convicted the appellant for the offences under sections 148, 302/149, 323/149 I. P. C. Appellant Dudhiya was convicted for the offences under sections 148, 302/149, 324/149 I. P. C. The other appellants, namely, Ramlal, Onkar and Dhulilal were convicted for the offences under section 147, 302/149, 323/149 and 323 I.P. C. 2. The case of the prosecution, as set out in the F. I. R. (Ex. P. 4) lodged by Bajrang P. W. 4 at police station Aklera on 26th June, 1980, at 12.20 P. M., was that the appellant Dudhiya Chamar was employed as a Mali with deceased Dhanna Lal and that he did not go for work since 24th June, 1980. On the date of incident at about 9.10 a.m. deceased Dhanna Lal was working in his field. Appellant Dudhiya along with his father, Onkar and his brother Dhulilal, passed by the field of Dhanna Lal and called Dudhiya. Thereupon all the three persons went near deceased Dhanna. Dhanna told Dudhiya the he had not come for work and, therefore, he just settle the account and return his money and thereupon an altercation I took place between them. On hearing the noise appellants Dhanna Lal and Ramlal and accused Kishan also arrived at the scene and asked as to why he had stopped Dudhiya and all of them said that the account should be settled.Thereafter appellant Dudhiya inflicted axe blows on the deceased. Bajrang Lal, Gopal, Kishan Lal and Madan Lal intervened and they were also assaulted. Smt. Phoola Bai came to the rescue of her father Dhanna and she was also assaulted with the axe. Bajrang Lal, Gopal, Kishan Lal and Madan Lal intervened and they were also assaulted. Smt. Phoola Bai came to the rescue of her father Dhanna and she was also assaulted with the axe. Dhanna died at the spot. On the basis of the aforesaid report, a case under sections 302, 324, 323, 147 and 149 I. P. C. was registered and after completing the investigation, the police filed the charge-sheet against six accused persons and they were committed for trial to the court of session. 3. The prosecution in support of its case examined Kishan Lal P.W. 1, Bajrang Lal P, W. 4, Prem Lal P. W. 6, Smt, Phoola Bai P. W. 10, Madan Lal P. W. 11, Smt. Panna Bai P. W. 12, Gopal P. W. 13 and Bajrang Lal P. W. 14 as the eye-witnesses of the occurrence. Prem P. W. 6 and Bajrang Lal P. W. 14 did not support the prosecution case. 4. Appellant Dudhiya in his statement recorded under section 313 Cr. PC. pleaded that he along with Onkar and Dhulialal were going on public way and that the deceased forcibly caught hold of him and took him to his field and there he was assaulted. Dudhiya has further stated that he was able to free himself and he ran towards the field of Mathura and that deceased came and caught him and Smt, Phoola Bai and Bajrang Lal gave a blow with an axe but he was able to avoid the said blow and it hit Dhanna deceased. Bajrang Lal gave another blow with the axe m and that too hit deceased Dhanna. Dudhiya has also stated that he had also used his Kulhari in self-defence which may have hit some persons. Dudhiya has further stated that he was kept as a bonded labourer by deceased Dhanna and that he did, not want to work with deceased Dhanna. The aforesaid (version of Dudhiya has been supported by appellants Onkar and Dhulia. The other two appellants, namely Dhanna and Ramlal have denied their presence. 5. Shri A. K. Gupta, the learned counsel for the appellants, has submitted that the defence version about the incident is more probable and that the injuries that have been sustained by deceased Dhanna and the complainant party were received during the exercise of right of private defence of appellant Dudhiya. 5. Shri A. K. Gupta, the learned counsel for the appellants, has submitted that the defence version about the incident is more probable and that the injuries that have been sustained by deceased Dhanna and the complainant party were received during the exercise of right of private defence of appellant Dudhiya. In support of his aforesaid submission, Shri Gupta has placed reliance on the injury reports Ex. D. 3 to D. 6 with regard to the injuries found on the persons of appellants Dudhiya, Dhulilal and Onkar and accused Kishanlal. The submission of Shri Gupta was that the aforesaid injuries cannot be regarded as minor or superficial in nature and that some of the injuries were sustained on vital parts of the body and that no explanation what-so-ever has been offered by the prosecution for the aforesaid injuries. In this connection Shri Gupta has also submitted that out of the eyewitnesses, examined by the prosecution, two independent witnesses, namely, P. W. 6 Prem and P.W. 14 Bajranglal, have not supported the prosecution case and the prosecution case rests entirely on the testimony of Kishna P. W. 1, Bajrang Lal P. W. 4, Smt. Phoola Bai P. W. 10, Madan Lal P. W. 11, Smt. Panna Bai P. W. 12, Gopal P. W. 13, who are all interested witnesses. In this connection Shri Gupta has also submitted that the defence case is also by the fact that the appellant Dudhiya was employed as bonded labourer with the deceased and on account of the failure on the part of the appellant to work with the deceased, the deceased was demanding money which he had advanced and a dispute had arisen between them on that account. 6. The learned Public Prosecutor has, on the other hand, submitted that reliance should be placed on the testimony of the eye-witnesses examined by the prosecution whose presence at the scene cannot be disputed in view of the fact that all of them have sustained injuries on their person and further that the failure on the part of the prosecution to explain the injuries found on the person of some of the accused persons can be a ground for rejecting the prosecution case with regard to the incident. The learned Public Prosecutor has also submitted that in view of the injuries found on the person of deceased Dhanna which resulted in his death, the appellants have been rightly held guilty of the offence punishable under section 302/149 I. P. C. and that the conviction of the appellant for the other offences relating to the injuries caused to other persons on the side of complainant does not call for interference by this court in appeal. 7. We have carefully perused the record. There is no dispute that an incident took place on the morning of 26th June, 1980 in the Bada of Mathura adjacent to the field of deceased Dhanna. In the said incident deceased Ghanna sustained injuries as a result of which he died and Kishan Lal P. W. 1, Bajranglal P. W. 4, Smt. Phoola Bai P. W. 10, Madan Lal P. W. 13 sustained injuries on the side of the complainant. The injury report, Ex. D. 3 to D. 6 which have been proved by Dr. Ramtsh Chand Dubey, P. W.9. show that accused Dudhiya, Kishan, Dhulilal and Onkar had injuries on their persons at the time when they were medically examined on 27th June, 1980 at 6 p.m. According to the aforesaid injury reports and the evidence of Dr. Ramesh Chand Dubey P. W. 9, the duration of the injuries was about 24 to 32 hours. Although most of the eye-witnesses examined by the prosecution have denied the presence of these injuries on the accused persons but Smt. Phoola Bai, has stated that during the course of the occurrence she had seen blood flowing from the head of accused Dudhiya. In view of the aforesaid injury reports and evidence of Dr. Ramesh Chand Dubey, P. W. 9 and Smt. Phoola Bai P. W. 10, it can be safely held that the injuries that were found on the person of accused Dudhiya, Kishan, Dhulilal and Onkar had been received during the course of the occurrence. In these circumstances it was the duty of the prosecution to offer an explanation as to how and in what circumstances the said injuries were sustained by the accused persons. The eye-witnesses examined by the prosecution, instead of offering an explanation for the said injuries have tried to deny the presence of these injuries. In these circumstances it was the duty of the prosecution to offer an explanation as to how and in what circumstances the said injuries were sustained by the accused persons. The eye-witnesses examined by the prosecution, instead of offering an explanation for the said injuries have tried to deny the presence of these injuries. The effect of non-explanation of injuries sustained by the accused at or about the time of the occurrence by the prosecution has been considered by the prosecution has been considered by the Supreme Court in Lakshmi Singh and others v. State of Bihar, AIR 1976 S.C. 2263 wherein it has been observed as under:- "It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inference:- 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. 3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." In the said case it has been further observed : "We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19, 1975 (Reported in AIR 1975 SC 1478 ) there may be cases where the non-explanation of the injuries by the prosecution may not effect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable, consistent and creditworthy, that, it far outweighs the effect of the omission on the part of the prosecution to explain the injuries." In the present case we have already pointed out that the witness who have supported the prosecution case, are all interested witnesses and the two independent witnesses that have been examined by the prosecution viz; Prem P. W. 6 and Bajrang Lal P. W. 14 have not supported the story of the prosecution. On the other hand Bajranglal P. W. 14 has supported the defence case. In these circumstances the omission on the part of the prosecution to explain the injuries found on the person of the accused persons assumes greater significance. 8. It may also be mentioned that according to the injury reports, accused Dudhiya had received a transverse lacerated wound 3/4" x 1/4" x 1/4" over the right eye-brow and a lacerated wound 2" x 1/2" x 1/2" over left parietal bone of head, accused Onkar had swelling 1" x 1" over right parietal bone of head. In addition to the aforesaid injuries, there were injuries on various other parts of the body of the accused. Taking into account the aforesaid injuries, it is not possible to hold that the injuries found on the person of the accused were minor and superficial in nature. If the aforesaid injuries are taken into consideration along with the fact that accused Dudhiya was bonded labourer of the deceased because admittedly he was employed as a labourer by the deceased and the deceased had advanced money to accused Dudhiya and the deceased was claiming refund of the money from accused Dudhiya after settling of account Dudhiya had failed to report for work, it appears to be more likely that Dhanna deceased stopped accused Dudhiya while he was passing by the field of the deceased and demanded money from him which he had advanced to him and this led to an altercation between the accused Dudhiya and the deceased. Admittedly, at that time Bajranglal P. W. 4 and Madan Lal P, W. 11, who are brothers of Dhanna, deceased, were working in their fields and Smt. Phoola, the daughter of the deceased was also present there. Admittedly, at that time Bajranglal P. W. 4 and Madan Lal P, W. 11, who are brothers of Dhanna, deceased, were working in their fields and Smt. Phoola, the daughter of the deceased was also present there. At that time accused Dhudiya was accompanied by accused Onkar and Dhulia. Since the number of persons on the complainant side was more and the complainant party was economically stronger than the accused it is more likely that accused Dudhiya was first assaulted by the complainant party and thereafter the other three accused persons, Dhanna, Ramlal and Kishan came to the rescue of accused Dudhiya, Onkar and Dhulia and they objected to the deceased keeping Dudhiya as a bonded labourer. In the circumstances it must be held that the injuries on the person of Dhanna deceased and Bajrang P. W. 4, Smt. Phoola Bai P. W. 12, Kishanlal P. W. 1, Madanlal P. W 11 and Gopal P. W. 13, were inflicted by the accused persons in the exercise of their right of private defence of person and it cannot be said that the accused persons formed an unlawful assembly for purposes of committing any crime. The conviction of the accused persons under sections 147, 148 and for the offences under sections 302, 324 and 323 I. P. C. with the aid of section 149 Cannot, therefore, be sustained and must be set aside. 9. The next question which arises for consideration is whether any of the accused persons can be said to have exceeded the right of private defence of person available to them and, if so, to what extent. In this connection it may be mentioned that according to the evidence of the prosecution witnesses, the injuries found on the person of deceased Dhanna were inflicted with an axe by appellant Dhanna and Dudhiya. According to the post-mortem report (Ex. P. 12) the deceased had the following injuries on his person- 1. Clean cut verticle, incised wound 21/4" x 1" x 1" over right shoulder (simple). 2. . Clean cut, Transverse incised wound 3" x 11/2" x 21/2" over left side of neck (grievous). 3. Clean cut, verticle incised wound 21/2" x 1" x 2" over mid of left Scapula (fracture of scapula) (grievous). 4. Clean cut, transverse incised wound 1" x 1/4" x 1/4" just below the left ear (simple). 5. 2. . Clean cut, Transverse incised wound 3" x 11/2" x 21/2" over left side of neck (grievous). 3. Clean cut, verticle incised wound 21/2" x 1" x 2" over mid of left Scapula (fracture of scapula) (grievous). 4. Clean cut, transverse incised wound 1" x 1/4" x 1/4" just below the left ear (simple). 5. Clean cut, verticle incised wound 1" x 1/2" x 1/4" over occipital bone of Head (simple). In the opinion of the Medical Officer Dr. Ramesh Chand Dubey P. W. 9, who had conducted the post-mortem examination, the cause of death was syncope due to excessive haemorrhage from wound of neck. This would show that injury No. 2 was the fatal injury. The eye-witnesses examined by the prosecution have attributed the aforesaid injury on the neck of the deceased to accused Dhanna. They have also attributed injury No. 1 on the right shoulder to accused Dhanna. The other injuries have been attributed to accused Dudhiya. 10. Taking into consideration the facts and circumstances of the case and the injuries inflicted by him cannot be said that accused Dudhiya has exceeded the right of private defence of person available to him. But in so far as accused Dhanna is concerned, we are of the opinion that he has exceeded the right of private defence of person that was available to him and taking into consideration the facts and circumstances of the case, we are of the opinion that offence punishable under section 304 Part II, I. P. C. is made out against accused Dhanna. On the question of sentence it has been submitted by Shri Gupta that according to accused Dhanna, he was 17 years old at the time of the occurrence. The Sessions Judge, while recording the statement of accused Dhanna under section 313 Cr. P. C. on 16th October, 1981 has mentioned his age as 22 years. This means that he was below 21 years of age on the date of the occurrence. Shri Gupta has also submitted that accused Dhanna is in jail since 27th June, 1980. Taking into consideration the facts and circumstance referred to above, we are of the opinion that the ends of justice would be served if accused Dhanna is sentenced to the period of imprisonment already undergone by him. 11. In the result the appeal is partly allowed. Taking into consideration the facts and circumstance referred to above, we are of the opinion that the ends of justice would be served if accused Dhanna is sentenced to the period of imprisonment already undergone by him. 11. In the result the appeal is partly allowed. The conviction and sentence imposed on appellants Onkar, Ramlal, Dhulilal and Dudhia are set aside and they are acquitted of the offences for which they have been convicted. Conviction and sentence of accused Dhanna for the offences under section 148, 302/149, 324 and 323/149 IPC are set aside and instead he is convicted for the offence punishable under section 304 Part II, IPC. and sentenced to the period of imprisonment already undergone by him. Accused-appellants Dhanna and Dudhiya are in jail. They may be released forthwith if not required in any other case. Accused-appellants Onkar, Ramlal and Dhuli Lal are on bail, They need not surrender. Their bail bonds shall stand cancelled. *******