JUDGMENT 1. - This appeal is directed against the judgment and order dated 15-2-85 passed by the Addl. Sessions Judge, Baran convicting the appellant under section 302 IPC and sentencing him to life imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to undergo 5 years rigorous imprisonment. 2. Bansi Lal lodged a report on 22-9-83 at Police Station Atru at 7.30 a.m. According to this report, the occurrence took place on 22-9-83 at about 4 a.m. at the field known as Simlavala field. It has been alleged that Radha Kishan and Ramnath went to the field Simlavala along with bullocks in the early morning. The accused-appellant was also going towards his field which is near the field of the complainant party along with his bullocks. As the accused-appellant was passing through the fencing of the field adjoining to the field of the complainant he was stopped by Lal Chand deceased who was also present at the field at that time and told the accused-appellant that there was no passage for going towards his filed through the field of complainant but the accused was determined to go by that path. Due to this reason some dispute took place and the accused-appellant caused fatal knife injuries to Lal Chand. It was also alleged that a dispute was going on for the last one year with regard to this path. On this report a case under section 302 was registered. The accused was arrested on the same day at about 4.45 p.m. After completing the investigation the Police submitted challan against the accused-appellant under section 302 & 447 IPC. 3. The learned trial Court framed a charge against the accused under section 302 IPC. The accused pleaded not guilty and claimed trial. 4. The prosecution, in order to establish its case, has examined 11 witnesses. The accused had denied all the allegations made by the prosecution witnesses. He has examined one witness Dr. Sudershan Dutta to prove his injuries which were received by him. His contention was that Radha Kishan and Lal Chand quarreled with him. Radha Kishan inflicted a Parania blow on his head and Lal Chand a Nizula blow on his shoulder. He fell down on account of these injuries. Lal Chand sat on his stomach and inflicted another blow on his mouth. He tried to save himself. His contention was that Radha Kishan and Lal Chand quarreled with him. Radha Kishan inflicted a Parania blow on his head and Lal Chand a Nizula blow on his shoulder. He fell down on account of these injuries. Lal Chand sat on his stomach and inflicted another blow on his mouth. He tried to save himself. He lodged a report to this effect at the Police Station and his medical examination was done at the request of the Police. The injury was x-rayed. So his contention is that in self defence he had done this act. 5. We have perused the entrire prosecution evidence in detail and also gone through the post-mortem report of the deceased Lal Chand. The postmortem was Conducted by Dr. Sudershan Dutta PW 6. This doctor has also examined the injuries of accused-appellant Chittar Lal and his injury report is Ex. D 2. According to the statement of the doctor, he examined the accused at the request of the Police and he had advised for X-ray. The X-ray report has not been submitted in the Court and it is not known about the result of the X-ray. But it is clear from the statement of doctor Sudershan Dutta that the accused had also received injuries and he was medically examined on 29-9-83 at the Police request. 6. The occurrence has not been disputed. The learned counsel for the appellant has agreed that the incident had taken place. He has also admitted that injuries were also caused to Lal Chand which resulted in his death. The only argument advanced by the learned counsel for the accused is that accused caused the injuries in the right of private defence. It was argued that the appellant used to go through this path earlier also but on the date of occurrence he was stopped by the deceased Lal Chand. Lal Chand was aggressor in this occurrence and when accused found that he was unable to save himself he inflicted the injuries to him. So in the right of private-defence the accused caused injuries to Lalchand. It was also argued that the learned trial Court had failed to appreciate the evidence correctly. The appellant lodged a report at the Police Station prior to the report lodged by Bansi Lal, father of the deceased. So in the right of private-defence the accused caused injuries to Lalchand. It was also argued that the learned trial Court had failed to appreciate the evidence correctly. The appellant lodged a report at the Police Station prior to the report lodged by Bansi Lal, father of the deceased. The accused has injuries on his body which were examined by doctor Sudershan Dutta at the request of Police. How the accused received these injuries have not been explained by the prosecution. The eye-witness PW 1 Ramnath and PW 8 Radha Kishan are unreliable witnesses and the trial Court incorrectly placed the reliance on their statements. From the statement of PW 8 Radha Kishan, it is clear that when he reached at the Police Station along with Bansi Lal to lodge the report, the accused Chhittar Nath was present there. He has denied in his statement that Chhittar Nath had any injury on his body. But in the last line of the cross-examination he has admitted that when he was at the Police Station he saw Chhittar Nath sitting there and blood was coming from his mouth. Thus the eye-witness Radha Kishan PW 8 has admitted that Chhittar Nath had injury on his mouth. This witness has tried to give a false statement with regard to the injuries to the accused. This fact has been proved by the prosecution-witness Dr. Sudershan Dutta who examined the injuries of the accused, and that too on the Police request. So it is beyond doubt that the accused had received injuries during this occurrence. We are sorry to say that Radha Kishan PW 8 has tried to give a false statement in this aspect. 7. It was also argued that the FIR was lodged after delay and this FIR is anti-dated and anti-time. It was also argued that the FIR was submitted before the Judicial Magistrate with delay. The Court of Judicial Magistrate is only one furlong from the Police Station and the report could have been sent immediately. When the report was lodged on 22-9-83 at 7.30 am., it could have been sent to the Judicial Magistrate on that very day. But the FIR Ex. P 11 was sent on 23-9-83 at 3 p.m. This fact is clear from the endorsement made on the FIR Ex. P 11 by an Officer of the Court. When the report was lodged on 22-9-83 at 7.30 am., it could have been sent to the Judicial Magistrate on that very day. But the FIR Ex. P 11 was sent on 23-9-83 at 3 p.m. This fact is clear from the endorsement made on the FIR Ex. P 11 by an Officer of the Court. This endorsement has the mention that MJM is on leave and the report has been submitted by Bhanwar Singh FC No. 1978 at 3 pm. on 23-9-83. 8. It was also argued that there is no evidence on record to show that the injuries received by the deceased Lal Chand were sufficient in the ordinary course of nature to cause death. It was the duty of the prosecution to prove the injuries received by the deceased were sufficient in the ordinary course of nature to cause death and unless this fact is proved the accused cannot be convicted for the offence under section 302 IPC. As the prosecution has failed to prove this fact no case is made out under section 302 IPC. It was also argued that the occurrence took place suddenly without any premeditation. The accused-appellant was going to his field and while he was passing through the fencing the dispute took place suddenly. The accused-appellant had no intention to commit murder of Lal Chand. Suddenly a dispute took place in which accused received injuries and in his self-defence he inflicted injury to Lal Chand, who subsequently succumbed. Therefore, there was no intention, no premeditation and hence no case is made out under section 302 IPC. 9. The learned Public Prosecutor in reply to this argument supported the judgment of the trial Court and stated that there is no substance in this appeal. It was argued that the conviction and sentence of the appellant be maintained. 10. We have given our thoughtful consideration to the arguments advanced by both the learned counsel. We have minutely gone through the statement of prosecution witnesses. It is an admitted fact that the occurrence took place. It is also correct that from the very beginning the accused had taken the plea of self-defence. In this light we have considered the argument advanced by the learned counsel for the appellant and also the entire evidence. We have also perused the injuries received the accused and the medical report Ex. D24. It is also correct that from the very beginning the accused had taken the plea of self-defence. In this light we have considered the argument advanced by the learned counsel for the appellant and also the entire evidence. We have also perused the injuries received the accused and the medical report Ex. D24. It was the duty of the prosecution to put up before this Court the report of the X-ray. The S.H O. has admitted that the appellant was referred to the doctor for examination. He has admitted that when the accused was arrested he had injuries on his body and for this he was sent for medical examination. He was sent to Kota also for X-ray. There is no explanation as to why the X-ray report was not submitted. Anyway, it is clear that the accused had also received injuries in this dispute, but from the entire evidence, we are unable to agree with the argument of the learned counsel for the appellant with regard to theory of self-defence. It has not been proved by the accused that in his right of self-defence he inflicted these injuries. In this respect the statement of the witnesses PW 1 Ramnath and PW 8 Radha Kishan have been perused and it cannot be inferred that the accused inflicted the injuries in his self-defence. As such, there is no substance in the argument of self defence. We have perused the FIR. Ex. P11. This was lodged on 22-9-83 at 7.30 a m. and it was sent to the Judicial Magistrate on 23-9-83 at 3 p.m. Though there is delay in sending this F.I.R., but this delay has no adverse effect on the prosecution case. This delay is not fatal in the circumstances of this case. So the argument of the learned counsel with regard to delay in sending the F.I.R. too has no substance. 11. We have perused the statement of doctor Sudershan Dutta PW 6. He had conducted the post mortem on the dead body of the deceased Lalchand. He has described the injuries on his body and proved the post-mortem report. According to the doctor the cause of death is syncope due to excessive haemorrhage from injury to the vital organ lung. 11. We have perused the statement of doctor Sudershan Dutta PW 6. He had conducted the post mortem on the dead body of the deceased Lalchand. He has described the injuries on his body and proved the post-mortem report. According to the doctor the cause of death is syncope due to excessive haemorrhage from injury to the vital organ lung. The doctor has not stated in his statement that the injury received by the deceased, as mentioned in the post-mortem, was sufficient in the ordinary course of nature to cause death. It is a very important aspect to prove that the injury received by the deceased was sufficient in the ordinary course of nature to cause death. It was the duty of the prosecution to prove this fact. Mere proving the injuries and the postmortem report is not sufficient. It is unfortunate that the learned Public Prosecutor who conducted the trial in the lower Court has failed to appreciate this aspect. He has not asked a single question to the doctor to this effect that the injury caused to Lal chand was sufficient in the ordinary course of nature to cause death. Unless this fact is proved, the accused cannot be convicted for the offence under section 302 IPC. The learned counsel for the appellant has relied on the case of Jodh Singh v. the State of Raj., 1984 R C C. 383 . This case is of our own High Court decided by the Division Bench of this Court. In that case also the accused was tried for the offence under section 302 IPC and he was convicted for that offence. The doctor was also examined but he has not stated a single word that the injury in question was sufficient in the ordinaiy course of nature to cause death of Shambhu Singh. It was held that the accused, in the above facts and circumstances, cannot be convicted under section 302 IPC and only offence committed by him falls under section 326 IPC. 12. The case of Jodh Singh (supra) has bearing on the present case before us. In this case also the doctor has examined the injury of deceased Lal Chand and conducted the post mortem but he has not stated a single word that the injury were sufficient in the ordinary course of nature to cause death. 12. The case of Jodh Singh (supra) has bearing on the present case before us. In this case also the doctor has examined the injury of deceased Lal Chand and conducted the post mortem but he has not stated a single word that the injury were sufficient in the ordinary course of nature to cause death. Hence, the accused cannot be convicted for the offence under section 302 IPC and it is a clear case where the accused can be convicted under section 326 IPC because he has stab wounds by a knife. So case is made out only under Section 326 IPC. 13. As it was argued by the learned counsel for the appellant that the accused had no premeditation and had no intention to cause murder of Lalchand. When the appellant was passing alongwith his bullocks through the fencing adjacent to the field of the complainant the dispute took place suddenly and in that dispute accused also recieved injuries and he inflicted knife blow to Lal chand. Since, the dispute took place in a sudden fight the case under section 302 IPC is not made out. We agree with this argument. In that fight the accused also received injuries and he inflicted knife blow to Lal chand which caused his death. So there is no question of any intention of accused committing murder of Lal chand. 14. In view of our discussion made above and in the facts and circumstances of the case, we do not agree that the accused has the right of private defence. We are of this opinion that in the facts and circumstances of this case a case under section 302 IPC is not made out. A case under section 326 IPC is made out against the accused. It was brought to our notice that the accused had already been in jail for the last 31/2 years. 15. As a result, the appeal is partly accepted. The conviction of the accused under section 302 IPC is set aside and he is acquitted of this charge. He is, however, found guilty of the offence under section 326 IPC. The accused had already been in jail for about 31/2 years and in the circumstances of this case, we are of the opinion that the period of sentence already undergone by the accused would meet the end of the justice. He is, however, found guilty of the offence under section 326 IPC. The accused had already been in jail for about 31/2 years and in the circumstances of this case, we are of the opinion that the period of sentence already undergone by the accused would meet the end of the justice. Hence, for the offence under section 326 IPC., the accused is awarded the sentence of imprisonment already undergone by him. The accused be released forthwith, if not required in any other case.Appeal party accepted. *******