JUDGMENT 1. The appellant Kalu Ram was convicted by the Sessions Judge, Bhilwara, u/s 302 I.P.C. and was sentenced to imprisonment for life by his judgment dated March 28, 1975. 2. The charge against the appellant was that he caused the death of Roop Lal by inflicting Kuladi blows on him on 8-7-74 at about 3.30 P. M. at a distance of about one furlong from the village Bhagudi-ka-Kuwa. 3. According to the prosecution the occurrence was witnessed by P. W. 3 Mangilal (30), P. W. 4 Kishanlal (35), P. W. 7 Modi Ram (12), P. W. 9 Shanker Lal (13) S/o Ram Lal, P. W. 13 Shanker Lal, S/o Ram Dass (15) and P. W. 15 Shanker Lal, S/o Mangi Lal (17). 4. The report of the occurrence was lodged by the uncle of the deceased Roop Lal, namely, Pokhar on 9-7-74 at 6.30 A. M. on which case u/s 302 I.P.C. was registered by the S H.O, P.W. 18 Yakub Khan. He visited the spot and conducted the spot investigation. Autopsy of the dead body was conducted. The accused was arrested on 10-7-74. On the information and at the instance of the accused blood stained clothes were recovered. Information Memo is Ex. P. 12 and the Recovery Memo is Ex. P. 13. After all usual investigation charge sheet was framed against the accused and the case was committed for trial to the court of Sessions Judge, for the offence u/s 302 I.P.C. The accused pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 18 witnesses. The statement of the accused was recorded in which he denied the prosecution case as alleged. He stated that the deceased extended threat to him. The deceased was armed with an axe and he wielded his axe inflicting blows on him which struck against his hands. Thereafter he snatched the axe from the hands of the deceased and wielded the axe all around. In this process axe was hit on the back of the deceased Roop Lal. But the deceased again-started snatching the axe from him. He, apprehending danger to his life, thereupon inflicted blows with axe on the lower limbs of the deceased. Thereafter he ran away from the spot throwing away the axe. His further version is that no witness was present at the scene of the occurrence. But the deceased again-started snatching the axe from him. He, apprehending danger to his life, thereupon inflicted blows with axe on the lower limbs of the deceased. Thereafter he ran away from the spot throwing away the axe. His further version is that no witness was present at the scene of the occurrence. The witnesses have deposed on account of enmity. He also stated that in an earlier incident blows were inflicted on him by knife by the deceased Roop Lal and in respect of that incident the case u/s 307 I.P.C. is going on. That day he escaped else he would have died in the earlier incident. The deceased Roop Lal was after his life and was roaming about for his life. 6. The learned Sessions Judge, after hearing arguments, relied on the ocular testimony. He, however, did not believe the evidence relating to dying declaration consisting of Pokhar P W.1, Mst. Bardi P.W. 2, wife of the deceased and Nathu P.W. 6, father of the deceased and convicted and sentenced the appellant, and hence these appeals have been preferred, one represented and another through the Jail. 7. We have heard Mr. Niranjan Gaur, learned counsel for the appellant and Mr. L. S. Udawat, learned Public Prosecutor for the State. 8. Mr. Niranjan Gaur, learned counsel for the appellant submitted that the ocular testimony of these witnesses has been wrongly believed by the learned Trial Judge. Their evidence has not been properly appreciated. The conduct of all these eye-witnesses defies their testimony. 9. According to the eye witnesses, except p.w. 4 Kishan Lal, they along with the deceased were returning after having a religious feast at Deoji-ka-Dewa. When they were at a distance of about a furl on from the village Bhagudi-ka-Kuwa the accused met them on the way. The deceased was having an axe and his four years old daughter was sitting on his shoulder. It is alleged that the accused expressed to Roop Lal that if he intends to kill him he may kill. Thereupon Roop Lal expressed that why should he kill. Thereafter the accused Kalu Ram snatched the axe from the hands of Roop Lal and inflicted an axe blow on the left limb of the deceased Roop Lal and he also exhorted to the witnesses to run way. Thereupon Roop Lal expressed that why should he kill. Thereafter the accused Kalu Ram snatched the axe from the hands of Roop Lal and inflicted an axe blow on the left limb of the deceased Roop Lal and he also exhorted to the witnesses to run way. There upon all the witnesses ran away from the spot and they did not even look back and they continued to flee from the spot. 10. Mr. Gaur submitted that in the cross-examination all the witnesses have stated that they did not narrate the occurrence to any one in the village nor they returned back to the injured nor took any care of him. Looking to this conduct of the witnesses, he urged that it would not be proper to rely on thirty testimony that they saw he accused snatching the axe and inflating a blow on the left limb of the deceased. The witnesses have even said that till their statements were recorded the incident was not narrated by them to any one. It is also strange that the witnesses saw only giving of one blow by the accused to the deceased. The witness Kishan Lal P.W. 4 has not been relied upon by the learned Trial Judge and according to Mr. Gaur rightly Kishan Lal stated that he saw the accused inflicting kulhadi blows on Roop Lal when he was lying on the ground. He did rush for rescuing him. One Rameshwar also came running behind him but the accused came running towards him and he gave a threat to him. Thereupon he returned back. Kishan Lal is aged about 35 years. According to him Rameshwar ran towards the village. In his cross-examination as well this witness has deposed about a similar conduct. As is adopted by the other witnesses. He too did not narrate the occurrence to any one nor he returned back to Roop Lal after the accused Kalu had left the scene of occurrence. He stated that he did not raise any alarm. According to him he continued to work in his field till sun set. Till his statement was recoded he did not narrate the occurrence to any one. According to him he did not see any witness at the spot. He also stated that he did not see the informant Pokhar as well. 11. Considering the above conduct Mr. According to him he continued to work in his field till sun set. Till his statement was recoded he did not narrate the occurrence to any one. According to him he did not see any witness at the spot. He also stated that he did not see the informant Pokhar as well. 11. Considering the above conduct Mr. Gaur urged that the eye witnesses are absolutely unreliable, their conduct being highly unnatural. 12. We find force in the above submission of the learned counsel for the appellant. Looking to the conduct of these witnesses it cannot be taken that they witnessed the occurrence. Their conduct appears to be highly unnatural. These witnesses belonged to the same village. Had he witnessed the occurrence they would have certainly raised an alarm. Their conduct would have been not to allow the accused to snatch the axe from the hands of the deceased or even if the axe has been snatched they would not have permitted him to continue to inflict as any as 26 blows on the deceased. Besides that their conduct in not narrating the matter to any one in the village, more particularly to the members of the family of Roop Lal, would show that they did not witness the occurrence at all. The conduct of the alleged eye witnesses, therefore, renders their testimony doubtful on the basis that their very presence becomes doubtful. 13. The evidence recorded in the dying declaration has not been believed by the learned Sessions Judge and in our opinion rightly. P.W. 1 is none else other than the uncle of the deceased. His source of information appears to be the deceased himself. As stated by him, according to him, he did not make any enquiry from these persons whose names were divulged by the deceased. In the First Information Report lodged by him it does not find mention as to why divulged the occurrence to him. This is the most material omission in the First Information Report. If the deceased had informed as to how the occurrence had taken place, as to who was the author of the injuries on his person and as to who had witnessed the occurrence as divulged by him. all these things would have been mentioned in the report Ex. P.1. This is the most material omission in the First Information Report. If the deceased had informed as to how the occurrence had taken place, as to who was the author of the injuries on his person and as to who had witnessed the occurrence as divulged by him. all these things would have been mentioned in the report Ex. P.1. The story which he has narrated at the trial while giving the statement does not find mention in the First Information Report. The name of Bardi as well as Nathu also does not find mention in the F.I.R. On account of all these material omissions the testimony of Bardi as well as Nathu in our opinion also stands discarded Bardi has stated that after the declaration as to the cause of death having been made by her husband, her uncle Pokhar P.W.1 had arrived and he also enquired from the deceased as to who had beat him and who was with him. The occurrence was also narrated by the deceased to her father-in-law, Nathu. In the First Information Report Pokhar simply stated that the accused has caused injuries to Roop Lal by inflicting axe blows and has killed him and the occurrence was witnessed by Kishan Lal P.W. 4 and Mangi Lal P.W. 5. How they came to know and what transpired when the deceased was lying in the injured condition has not been stated by him. A contradictory version has been given. 14. Nathu has not given the names of any other witness and Pokhar has given out the names of Mangiya S/o Shanker Lal and Shanker Das S/o Ram Das. Whereas Bardi has not given out the names. She has simply given out the names of two witnesses namely. Mangilal and Kishan. This discrepancy in the statements of these three witnesses further render the dying declaration incredible and untrustworthy. Thus no reliance can be placed on the evidence relating to dying declaration. 15. There is another evidence from the side of the prosecution. Despite that prosecution case can be examined in the light of the defence taken by the accused. On that basis it can be found as to whether any offence is made out against the accused. The accused has taken a plea of the right of private defence. 15. There is another evidence from the side of the prosecution. Despite that prosecution case can be examined in the light of the defence taken by the accused. On that basis it can be found as to whether any offence is made out against the accused. The accused has taken a plea of the right of private defence. According to him axe blows were inflicted on him by the deceased and thereafter he snatched the axe and started inflicting axe blows on the deceased and in that process resistance was continued to be put by the deceased in the manner of snatching the axe. So apprehending danger to his life he continued to inflict axe blows on the deceased. 16. From the side of the prosecution Dr. has expressed the opinion that the two injuries which were found on the person of the deceased could be sustained by him in the process of his snatching the axe from the deceased. Thus they may not be the result of actual assault. But in face of the statement of the accused the opinion evidence cannot be given much weight. More particularly when there is no other evidence from the side of the prosecution connecting the accused with the commission of the offence thereby finding that it was the accused who was the actual aggressor. 17. Thus in the circumstances there is no alternative except to accept the plea of the accused. But still the question would be as to was it legal and justified on the part of the accused to inflict blows on the deceased despite the fact that the axe was already snatched by him from the hands of the deceased. Even if it be taken that the deceased continued to put resistance and made efforts to snatch the axe from the hands of the accused apprehending that the accused could act in exercise of the right of self defence, still from the number and nature of injuries caused by the accused it can safely be stated that the accused exceeded the right of private defence of his person. The deceased has sustained as many as 26 injuries as stated by Dr. Rakesh, P.W. 8 who conducted the post-mortem examination on the dead body of the deceased. Some of the injuries he has described as pointed wounds and there were two incised wounds. The deceased has sustained as many as 26 injuries as stated by Dr. Rakesh, P.W. 8 who conducted the post-mortem examination on the dead body of the deceased. Some of the injuries he has described as pointed wounds and there were two incised wounds. The actual number of injuries were not 26 as enumerated by him but in fact there were more. Out of these injuries, injury Nos. 4, 9, 20 and 22, 24 and 25 were grievous injuries and the rest of the injuries were simple. According to Dr. Rakesh the deceased died due to excessive haemorrhage from wounds of the large blood vessels and shock Blood vessels were actually cut as a result of which there was excessive haemorrhage. It is true that the accused did not cause any grievous injury on the vital parts of the body but still looking to the number and nature of injuries it can definitely be said that he caused more harm than was necessary and it appears that he continued to inflict blows despite the injured having fallen on the ground. The restraint which was required on his part as is laid down in Section 99 of the I.P.C. was not adopted by him and it may be stated that he continued to indulge in inflicting blows on the lying injured Roop Lal. Although it can be said that the accused had no intention to cause the death but still it can be said that the accused intended to cause such bodily injuries as are likely to cause death. So the acts of the appellant, in our opinion, would fall within the mischief of Section 304 Part-1 I.P.C. as he exceeded his right of private defence. 18. Accordingly we hold him guilty of the offence u/s 304 Part-1 I.P.C. The appellant has remained in custody for a period of 4 years, one month and eight days. 19. Learned counsel for the appellant submitted that the sentence of the appellant was suspended on 16.8.78 and so it would not be just and proper to send the accused-appellant behind the bar after a lapse of more than seven years. In our opinion the period of custody would be inadequate as the quantum of sentence. The sentence of seven years would be adequate as the quantum of sentence. The sentence of seven years would be adequate. 20. Accordingly, the appeal is partly allowed. In our opinion the period of custody would be inadequate as the quantum of sentence. The sentence of seven years would be adequate as the quantum of sentence. The sentence of seven years would be adequate. 20. Accordingly, the appeal is partly allowed. The conviction and sentence of the appellant for the offence u/s 302 I.P.C. are set aside. The appellant Kalu Ram is, however, convicted of the offence u/s 304 Part-I and is sentenced to seven years rigorous imprisonment. The period of his custody during investigation, enquiry and trial shall be set off against his sentence. The appellant shall immediately surrender and learned Sessions Judge, Bhilwara, is further directed to effect arrest of the appellant to serve out the remaining sentence.Appeal partly allowed. *******