BEHERA, J. ( 1 ) THE three appellants stand convicted under section 302 read with section 34 of the Indian Penal Code (for short, the Codet) for having committed the murder of Pabitra Patel owing to previous land dispute between the parties by intentionally causing his death by, the use of dangerous instruments, such as, Kudalis and lathi, on November 10, 1978, at Kuturma - Tahabeldhipa in the district of Sundargarh, in furtherance of their common intention and have been sentenced to undergo rigorous imprisonment for a period of twelve years. ( 2 ) AS the sentence imposed on each of the appellants is illegal and on his conviction for the offence of murder, an accused is either to be sentenced to death or to undergo imprisonment for life and no lesser punishment can be imposed, this Court, at the stage of hearing the appeal, has issued notices to the appellants to show cause as to why the sentences passed against them should not be enhanced. The learned counsel for both the sides are agreed that in the revisional jurisdiction of this Court, this Court can enhance the sentences although it was open to the State to prefer an appeal under section 377 of the Code of Criminal Procedure. Surprisingly, the State has chosen not to prefer one A5 to the revisional jurisdiction of this Court in this regard, reference may be made to the cases- reported in Nadir Khan v. The State (Delhi Administration)1 Eknath Shankarrao Mukkawar v. State of Maharashtra2 and State v. Babaji Sahoo and another3. We are, indeed, surprised as to how the learned Sessions Judge has imposed a sentence lesser than imprisonment for life after convicting the three appellants in a case of murder in flagrant violation of the provisions made under section 302 of the Code. Such illegal and careless act on the part of a Sessions Judge betrays his ignorance of the sentencing schemes. ( 3 ) WE have heard the learned counsel for both the sides both on the merits of the appeal and on the question of enhancement of the sentences passed against the appellants. ( 4 ) IT is amply borne out from the ocular testimony and the medical evidence that the deceased had died a homicidal death. This part of the prosecution a case has not been challenged by the defence. ( 4 ) IT is amply borne out from the ocular testimony and the medical evidence that the deceased had died a homicidal death. This part of the prosecution a case has not been challenged by the defence. It would also be seen from the medical evidence that P. W. 5, the son of the deceased, did have some injuries on his person and so, too, the appellant Kumar Naik. This would give an indication of their presence on the spot and would probabilise the evidence of P. W. 5 that he had witnessed the occurrence. ( 5 ) P. WS. 5, 7 and 8 had been examined as the witnesses to the occurrence. Of them, P. Ws. 7 and 8 did not support the case of the prosecution for which they were put leading questions under section 154 of the Evidence Act and were confronted with some incriminating statements made in the course of investigation, which they, no doubt, denied to have made, but had duly been proved through the evidence of the Investigating Officer (P. W. 10 ). There can be no doubt that P. Ws. 7 and 8 had suppressed the truth at the trial by giving a go-by to the statements previously made by them under section 161 of the Code of Criminal Procedure. There thus remains for consideration only the evidence of P. W. 5 who is no other person than the son of the deceased and would thus be a highly interested person for a successful termination of the trial against the appellants and that of his mother (P. W. 6) who had seen the appellants returning from the side of the scene of occurrence with a Kudali and a lathi with them. ( 6 ) SPEAKING about the occurrence, P. W. 5 had testified thus: About one and a half years back in the month of Kartik, on a Friday, at 12 noon, the occurrence took place. On that day morning I along with my father holding two kudalis went to our ban for working in the red-pipper field. After finishing the work, we returned our borne. My father was holding both the Kudalis. By then on the nearby land, of the accused Rupan all the present three accused persons and some others were cutting paddy. When these accused persons saw my father, they chased, him shouting to kill. After finishing the work, we returned our borne. My father was holding both the Kudalis. By then on the nearby land, of the accused Rupan all the present three accused persons and some others were cutting paddy. When these accused persons saw my father, they chased, him shouting to kill. On the road, accused Kumar in the lathi (M. O. 1) gave blows on the head of my father by such blow, my father fell down with the small Kudalis and while he was being chased, the bigger Kudali fell down from his hands earlier. Thereafter, Bhakta the accused, caught hold of my father and the accused Rupan in the bigger Kudali (M. O. II) gave blows on the head of my father. He gave more than one blow. At that time I shouted when Bhakta accused and Kumar throttled me in their hands by which I sustained injuries. Thereafter, accused Rupan with the big Kudali (M. O. II) and the accused Kumar with the lathi (M. O. I) left the place. Then I shouted after which my mother arrived there. When the accused persons were assaulting my father Ratnakar Hota had seen it and then he ran away. I sent my brother to call other villagers and Sarpanch. My father was lying unconscious having bleeding injuries whom in a cot we carried to Lephripada P. S. and there from we tool him to the Lephripada Dispensary. Same day evening my faiher expired. Being the sole witness to the occurrence at the trial and regard being had to his relationship with the deceased and the fact of their land dispute with the party of the appellants his evidence requires very careful scrutiny before its acceptance and his evidence against the appellants should be of an unimpeachable character in order to be acted upon. ( 7 ) THE only act attributed to the appellant Bhakta by P. W. 5 is that this appellant caught hold of the deceased where after the appellant Rupan, by means of the Kudali (M. O. II) which had been carried by the deceased and had fallen from his hands gave blows on the head of the deceased and that thereafter the appellants Bhakta and Kumar had throttled P. W. 5. The only charge framed against the appellant Bhakta was one under section 302 read with section 34 of the Code for committing the murder of the deceased in furtherance of their common intention. No charge had been framed against the appellants for causing hurt to P. W. 5. ( 8 ) IT is important to keep in mind that in the first information report lodged by him, P. W. 5 had not stated that the appellant Bhakta had caught hold of his father. This cannot be taken to be an inconsequential omission and would amount to a material contradiction, as this was the only overt act attributed to the appellant Bhakta with regard to the assault on the person of the deceased. In the circumstances of the case, the non- mention of this part of the occurrence implicating the appellant Bhakta in the first information report lodged by P. W. 5 the sole witness to the occurrence assumes great importance and would certainly and vitally affect the bona fides of the prosecution case with regard to the complicity of the appellant Bhakta. In the absence of any evidence therefore, with regard to the complicity of this appellant at the time of the assault on the person of the deceased which bad resulted in his death, the evidence of P. W. 6 that he was one of the persons who had been returning in the company of other two appellants would not, by itself, point to his guilt. This appellant is, therefore, entitled to an acquittal. ( 9 ) ON his own showing, P. W. 5 bad come to the spot when the appellant Rupan was assaulting on the person of his father by means of M. O. II, while the latter was lying on the ground. In that event, he might not have been in a position to see the assault on the person of the deceased by the appellant Kumar. It is in evidence that the party of the deceased had taken two Kudalis one of which was. M. O. II with which the appellant Rupan had assaulted the deceased, as sought to be established by the prosecution. It is in evidence that the party of the deceased had taken two Kudalis one of which was. M. O. II with which the appellant Rupan had assaulted the deceased, as sought to be established by the prosecution. It is in the evidence of P. W. 3, a doctor, that be had examined the appellant Kumar at 4 P. M. on the day of occurrence and had noticed two lacerated wounds, a haematoma, two abrasions and a contusion on his person and two of the injuries were near the left eye. The evidence of P. W. 3 as to the presence of injuries on the person of the appellant Kumar Naik also finds support from the evidence of D. W. 1 who was attached as a doctor to the District Jail at Sundargarh. The facts and circumstances of the case would indicate that this appellant had sustained the injuries during the occurrence. The injuries on his person could not be said to be superficial in nature. The party of the deceased had been armed. The injuries on the person of Kumar could be caused by a hard and pointed blunt substance and by hard and rough substance. Thus the injuries could be caused by the blunt side of the Kudali. In the absence of clear and cogent evidence pointing to the conclusion that the appellants had gone to the land armed, it would be reasonable to assume, as bas been submitted at the Bar on behalf of the defence that the attack in all probability had started from the side of the deceased. In that event the two appellants Kumar and Rupan did have the right of private defence of their persons and if Kumar had dealt some blows to the person of the deceased in such circumstances before the deceased fell down and the Kudali (M. O. II) fell from his hands, it could not reasonably be said that the appellant Kumar had exceeded the right of private defence of his person or that of any of his companions. He would, therefore, be entitled to have an order of acquittal recorded in his favour. ( 10 ) THE case against the appellant Rupan. However stands on a different footing. He would, therefore, be entitled to have an order of acquittal recorded in his favour. ( 10 ) THE case against the appellant Rupan. However stands on a different footing. The evidence of P. W. 5 would clearly point to the conclusion that this appellant had assaulted the deceased even after the latter had fallen on the ground and was lying. The evidence of P. W. 5 is clear, cogent and consistent. He has implicated this appellant in the first information report and the medical evidence lends assurance to the evidence of P. W. 5. There is, in addition, the evidence of P. W. 6 that she had seen the appellants returning together. The evidence of P. W. 5 is not to be rejected merely because it could be, but had not been corroborated by any other evidence, as in a case of this nature, the prosecution cannot be rendered helpless because some persons, who were witnesses to the occurrence, had suppressed the truth at the trial. Reference has been made earlier in this judgment to this aspect. Nothing has been brought out in the cross-examination of P. W. 5 to discredit his testimony with regard to the assault on the person of the deceased by the appellant. Rupan by means of M. O. II after the former had fallen on the ground. ( 11 ) WHILE exercising the right of private defence of his person, this appellant Rupan had undoubtedly exceeded his right as he had continued to assault the deceased who was lying on the ground unarmed. Regard being had to the nature and the number of the injuries on the person of the deceased and the weapon used by the appellant Rupan. There could be no doubt that be had the intention of causing the death of the deceased and with that intention, had caused injuries sufficient in die ordinary course of nature to cause the death of the deceased. He would otherwise be liable for the commission of the offence of murder and his act would be culpable under section 302 of the Code hut for the fact that the had the right of private defence of his person which he had exceeded. This appellant is, therefore, liable to be convicted under section 304 Part I of the Code. ( 12 ) I n the result, the appeal is allowed in part. This appellant is, therefore, liable to be convicted under section 304 Part I of the Code. ( 12 ) I n the result, the appeal is allowed in part. The Order of conviction and sentences passed against the appellants Kumar Naik and Bhakta Pradhan are set aside. The order of conviction and sentence passed against the appellant Rupan Pradhan under section 34 of the Code are also set aside and in lieu thereof, he is convicted under section 304 Part I of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of ten years which would meet the ends of justice. The notices issued to the appellants for enhancement of their sentences are discharged. The appellants Bhakta Pradhan and Kumar Naik be set at liberty forthwith.