BHARGAVA, J.—These two appeals arise out of a common judgment dated 31.8.87 passed by the Additional Sessions Judge No.5, Jaipur City, Jaipur, convicting the accused-appellant Pramod Kumar Singh u/s 302 IPC and sentencing him to life imprisonment and a fine of Rs. 200/- only, while acquitting the non petitioners in Appeal No. 126/88. 2. Mahendra Singh (PW-2) lodged FIR (Ex. P 10) at the Police Station Manak Chowk, Jaipur, at 7.30 p m. on 31.12.1983, stating therein that in the evening on that day at about 6.30 p.m. Shakuntala Devi (PW-11) came and told that some quarrel was taking place at the house of Pinki, whereupon his brother Devendra went with her. After sometime, there was some noise that serious quarrel was taking place at the house of Pinki whereupon he and Vikram Singh went to the house of Pinki, and saw that the accused persons Rampal Singh, Pramod Kumar, Munna, Kanti, Naveen, Jai Shankar and Akhilesh who were carrying lathi, iron rod and knife, had surrounded his brother Devendra Singh and were giving him beating. They shouted as to what they were doing, whereupon Rampal Singh inflicted a lathi blow on the head of Vikram Singh. Several other persons had also collected there after hearing the noise. His" brother Devendra Singh fell down as a result of the injuries and when they saw him, he was found dead. Pinki and his mother had also seen the incident. It was further stated in the report that at the time when he reached the Police Station to lodge the report, Rampal Singh and Pramod Kumar who were present at the time of beating of his brother Devendra Singh, were sitting there at the Police Station. 3. On the basis of the aforesaid report, the police registered a case u/s 302 IPC. The police, after usual investigation, submitted a challan against the accused persons, numbering seven, in the court of Magistrate, who committed the case to the court of Sessions. Learned Sessions Judge, after trial, convicted and sentenced the accused-appellant as aforesaid whereas acquitted all other accused persons. Against the judgment of the trial court convicting Pramod Kumar Singh, D.B Criminal Appeal No. 352/87 has been filed and the State has also preferred D.B. Criminal Appeal No. 126/88 against the order of acquittal of six accused persons. 4. Learned Sessions Judge, after trial, convicted and sentenced the accused-appellant as aforesaid whereas acquitted all other accused persons. Against the judgment of the trial court convicting Pramod Kumar Singh, D.B Criminal Appeal No. 352/87 has been filed and the State has also preferred D.B. Criminal Appeal No. 126/88 against the order of acquittal of six accused persons. 4. We have heard learned counsel for the parties and have also perused the record of the case as also judgment of the trial court. 5. Prosecution has examined PW-1 Vimla Devi wife of PW-3 Radhey Shyam; PW-2 Mahendra Singh who had lodged the FIB, PW-3 Radhey Shyam, PW-4 Sunil Kumar @ Pinki, PW-11 Shakuntala and PW-13 Smt. Kamla wife of Sajjan Kumar as eye witnesses, out of which PW-1 Smt. Vimla Devi, PW-11 Shakuntala Devi and PW-13 Smt. Kamla have not supported the prosecution case and have been declared hostile. The prosecution has also placed reliance on the recovery of knife (Article-1), recovered vide recovery memo (Ex.P.20), on the basis of information (Ex.P.27) given by the accused Pramod Kumar Singh, as also on the report of the Forensic Science Laboratory (Ex.P.23) wherein the knife has been found to be having human blood of B group, which is also the blood group of the deceased. It may be noted that both recovery witnesses of Ex.P. 20, P.W-8 Satya Narain and PW-9 Gopal have been declared hostile. 6. It may be pertinent to note that accused Rampal Singh father of the accused-appellant Pramod Kumar Singh had also lodged FIR No.642/83 (Ex.D.l) at 7.20 p.m. on 31.12.83 at Police Station Manak Chowk, Jaipur, wherein he has mentioned that when he and his son Pramod Kumar Singh were going towards the house, Pinki and his 10-15 friends gave them beating. Pinki had inflicted a lathi blow on his head and his Mousa had inflicted a knife blow to his son Pramod Kumar Singh and that proper steps should be taken against the accused persons. 7. Dr. B.N. Gupta, who had conducted the autopsy of Devendra Singh has been examined as PW-6 and the post-mortem report of deceased Devendra Singh is Ex.P. 16. 8. Deceased Devendra Singh has been found to have received four incised wounds and six abrasions. 7. Dr. B.N. Gupta, who had conducted the autopsy of Devendra Singh has been examined as PW-6 and the post-mortem report of deceased Devendra Singh is Ex.P. 16. 8. Deceased Devendra Singh has been found to have received four incised wounds and six abrasions. The cause of death has been given as syncope brought about as a result of Injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No I is a stab wound 3-1/2" x 1-1/2" cm. Thoracic cavity deep, obliquely placed in 7th I.C. space front of Lt. side chest. The other three incised wounds are as under:- (1) Incised wound 1-1/4 x 1/2 cm x muscle deep on top of Lt. shoulder, obliquely placed, with clotted blood. (2) Incised wound 3 x 1 cm x muscle deep placed obliquely on antero lateral aspect Lt. arm upper 1/3 part with clotted blood. (3) Incised wound l-1/2 x 1/2 cm x muscle deep in Lt. axilla over posterior axillary fold with "clotted blood." 9. Vikram Singh had also received one stitched wound and one bruise. Accused appellant Pramod Kumar Singh received the following injuries vide Ex.D 4-A:- 1. Incised wound size 5-1/2 cm x 1 cm (in middle) bone deep placed obliquely on post, aspect. Rt. hand extending from root of left index going upwards laterally on band with 2 cm tail. Margins are clear cut, regular and well defined with dried clotted blood present over it. 2. Abrasion 3 x 1/4 cm post, aspect. Rt. hand obliquely placed, dried clotted blood. 3. Abrasion 3 x 1/4 cm Frammity placed on Rt. hand posterior laterally with dried clotted blood. 4. Abrasion 2 x 1/4 cm on Rt-. forearm laterally down l/3rd horizontally placed with dried clotted blood. 10. Rampal Singh, father of accused-appellant Pramod Kumar Singh also received the following injuries, vide Ex.D.5A:- 1. Abrasion 1/4 x 1/4 anterio medial aspect left fore-arm lower 1/3rd part with dry clotted blood. 2. Lacerated wound 4 x 1 cm x scalp tissue deep on the middle of Lt. hand obliquely placed with dry clotted blood. 3. Lacerated wound 3x1/2 cm x scalp tissue deep on anterior aspect of Lt. horizontal Trammuly placed with dry clotted blood. 11. Pramod Kumar Singh and Ram Pal Singh both were examined by PW-6 Dr. B.N.Gupta on 1.1.1984 at 12.30 p.m. 12. hand obliquely placed with dry clotted blood. 3. Lacerated wound 3x1/2 cm x scalp tissue deep on anterior aspect of Lt. horizontal Trammuly placed with dry clotted blood. 11. Pramod Kumar Singh and Ram Pal Singh both were examined by PW-6 Dr. B.N.Gupta on 1.1.1984 at 12.30 p.m. 12. PW-4 Suneel @ Pinki s/o Jagdish had also received the following injury vide Ex.P.29:- 1. Abrasion with dried clotted blood and surrounded with diffuse swelling and tenderness on post-lateral aspect of Rt. hand. Learned trial court has placed reliance on the testimony of PW-2 Mahendra Singh, PW-3 Radhey Shyam, and PW-4 Sunil Kumar. 13. Sunil Kumar @ Pinki (PW-4) has deposed that on 31.12.83, he and Bhaiya (younger brother) of accused Munna, were flying kite at 1.30 p.m. Bhaiya threw the kite down the roof whereupon he asked him to go and bring the kite which he had thrown. Thereupon, mother of Bhaiya told as to why he will go as he is not his servant. Mother of Bhaiya gave abuses to him. Thereupon his Mousi Vimla Devi (PW-1) came there and asked him to go to the shop. Mother of Munna told to bring Pappu Dada i.e. the accused appellant Pramod Kumar Singh. There-after, he went to his shop and he returned from the shop at about 6 or 6.30 p.m. and found, Pappu, Munna, Jai Shankar and Akhilesh sitting outside the house. They were having lathis in their hands. Munna had a hockey stick. Since he was carrying some articles, he therefore, went inside the house. After sometime, all the four accused persons named above, alongwith Rampal Singh, father of accused appellant Pramod Kumar Singh, Munna and Kanti came inside the house and asked that Pinki should be brought outside. My Mousi did not allow me to go out. Thereupon all the accused persons tried (to bring him out forcibly from the house. His Mousi resisted. Rampal Singh gave abuses to his Mousi and Munna gave a blow by leg into the stomach of his Mousi. Thereupon, Shakuntala (PW-11) went to the shop of Mousa of Sunil Kumar and informed him about the incident. Devendra Singh came there and asked Sunil Kumar as to what had happened. Pappu fold that let us first deal with Devendra Singh as he had come to rescue Sunil Kumar. Thereupon, Shakuntala (PW-11) went to the shop of Mousa of Sunil Kumar and informed him about the incident. Devendra Singh came there and asked Sunil Kumar as to what had happened. Pappu fold that let us first deal with Devendra Singh as he had come to rescue Sunil Kumar. Vikram Singh also came there and Rampal Singh inflicted a lathi blow on his head. Devendra Singh snatched the lathi from the hand of Kanti and inflicted a lathi blow on Rampal Singh. Thereafter, Kanti, Jai Shankar and Munna caught hold of Devendra Singh and Pappu (appellant) inflicted 4-5 knife blows to Devendra Singh, as a result, Devendra Singh fell down and the accused ran away, shouting that where was Pinki, let us kill him. Sunil (PW-4) was also given beating by Munna by a hockey stick, on his right hand. 14. This witness has been cross-examined at length and several contradictions have been brought on record. Ex.D.3 is bis statement recorded by the police u/s 161 Cr.P.C. 15. Mahendra Singh, who had lodged the FIR (Ex.P. 10) has been examined as (PW-2). He has deposed that on hearing that some quarrel had taken place at the house of Radhey Shyam (PW-3) and when PW-11 Shakuntala came to inform them, he alongwith Vikram Singh went on the spot. Rampal Singh had a lathi in his hand and Pramod Kumar Singh had a knife. Rampal Singh gave a lathi blow on the head of Vikram Singh and Pramod Kumar Singh, in anger, inflicted 4-5 knife blows to Devendra Singh, as a result of which, he fell down on the ground and denied. In cross-examination, he had admitted that there were several other persons of public present at the spot when Pramod Kumar Singh had inflicted knife blows to Devendra Singh. He has further admitted in his cross-examination that Pramod Kumar Singh and the deceased Devendra Singh were grappling with each other. He further asserted that his brother did not receive any other injury except the knife injury. He was unable to say as to from which side Pramod Kumar Singh inflicted, either from the back side or the front side. It is very significant that this witness did not mention in the FIR that Pramod Kumar Singh had inflicted the knife blows to the deceased Devendra Singh. 16. PW-3 Radhey Shyam is the Mousa of Pinki @ Sunil Kumar (PW-4). It is very significant that this witness did not mention in the FIR that Pramod Kumar Singh had inflicted the knife blows to the deceased Devendra Singh. 16. PW-3 Radhey Shyam is the Mousa of Pinki @ Sunil Kumar (PW-4). He has deposed that at about 6 p.m. on 31.12.1983, Pinki had returned to the house from his shop. After about ten minutes, PW-11 Shakuntala came to the shop and told that six or seven persons were beating Pinki. Thereupon, he asked Devendra to go and find out and to scold Pinki. When for 10-20 minutes Devendra Singh did not return, he thought that the quarrel had not subsided and so he alongwith Vikram Singh and Mahendra Singh went to the house and saw a knife in the hand of Pappu, hockey stick in the hand of Munna, a Danda in the hand of Ram Pal Singh and they were belabouring Devendra Singh and Pinki. Devendra told as to why they were creating hooliganism. Rampal Singh gave a stick blow on the head of Vikram Singh and told let us leave Pinki and kill his supporters. Thereupon, Devendra (deceased) in his defence inflicted a Danda blow on the head of Rampal Singh which infuriated the matter and Pappu inflicted 4-5 knife blows to Devendra Singh as a result of which, Devendra Singh fell down and died on the spot. 17. PW-1 Vimla Devi (PW-1) who is none else than the wife of PW-3 Radhey Shyam, and Mousi of Pinki has not supported the prosecution case fully. She has deposed about the earlier incident and has further stated that Shakuntala (PW-11) went to inform at the shop from where her husband Vikram Singh and Devendra Singh came and in the quarrel, Vikram Singh received injury on the head and when Devendra intervened, he also received knife injuries, but she did not see anybody inflicting knife blows to Devendra Singh, whereupon she was declared hostile and her statement recorded u/s 161 Cr.P.C. (Ex.D.9) was brought on record and she was contradicted by the same. 18. Similarly, PW-ll Shakuntala was a co-tenant in the same house along with PW-3 Radhey Shyam, and Ram Pal Singh and his family. 18. Similarly, PW-ll Shakuntala was a co-tenant in the same house along with PW-3 Radhey Shyam, and Ram Pal Singh and his family. She has also not supported the prosecution story as well, except the earlier incident, and thereafter, she has stated that she had gone to call the father of Pinki and thereafter, she did not see anything. She was also declared hostile. Her earlier state-ment recorded u/s 161 Cr.P.C. has been brought on record as Ex. D 6, wherein she had stated that when she returned after informing Radhey Shyam, the quarrel had finished and one person named Devendra Singh was lying dead. She has of course admitted in her cross-examination by the Public Prosecutor that Pappu had a knife in his hand. 19. PW-13 Smt. Kamla, who was also a co-tenant with Radheyshyam, has not supported the prosecution case and was declared hostile and her statement u/s 161 Cr.P.C. has been brought on record as Ex. P. 30. 20. Learned counsel for the accused-appellant has very vehemently argued that the prosecution has not examined Vikram Singh who was admittedly present at the time of incident as he had received the injuries during the incident (vide Ex.P. 17), and also that the prosecution has not examined any other independent witness of public who were admittedly present when the incident had occurred and therefore, an adverse inference should be drawn against the prosecution, and in this connection has placed reliance on 1981 RCC 198. 21. He has further submitted that Mahendra Singh (PW-2) cannot be termed to be an eye witness because he has not given any detail in FIR (Ex.P. 10). He has not even stated therein that it was the accused-appellant Pramod Kumar Singh who had inflicted the knife blows to Devendra and has only given a chain of omnibus statement that the accused persons be laboured Devendra Singh and has made improvement when he was examined in the court, and no reliance can be placed on his evidence, more so because he is interested witness being brother of the deceased Devendra Singh. 22. He has further submitted that PW-1 Smt. Vimla is also not an eye witness for the knife blows given to Devendra Singh by the accused-appellant Pramod Kumar Singh. Moreover, she has not been medically examined, though she had stated that she received injuries at the time of the incident. 23. 22. He has further submitted that PW-1 Smt. Vimla is also not an eye witness for the knife blows given to Devendra Singh by the accused-appellant Pramod Kumar Singh. Moreover, she has not been medically examined, though she had stated that she received injuries at the time of the incident. 23. Similarly, PW-3 Radhey Shyam cannot also be taken as an eye witness because his shop is at a distant place from his residence. One witness has stated that it is 3/4 km. and the other witness has deposed that it is 1/2 miles and that it takes about ten minutes to cover the distance. Moreover, his name has not been shown in the FIR as an eye witness. He did not accompany Devendra Singh and could not have witnessed inflicting of knife blows by the accused Pramod Kumar Singh, to Devendra Singh. 24. Learned counsel for the appellant has also submitted that even PW-4 Pinki should not be taken as an eye witness as his statement was recorded by the police after 3-4 days of the incident. He has stated, in his cross-examination, that he had hidden to save himself inside and so he could not see the actual inflicting of knife blows, by the accused appellant to Devendra Singh. He has further submitted that the prosecution has failed to explain the injuries received by the accused-persons and has placed reliance on Lakshmi Singh vs. State of Bihar (1). 25. Learned counsel for the appellant further submitted that the knife (Article-1) had not been shown to the doctor, nor any question was put to him whether she injuries received by Devendra Singh could be caused by that knife. Therefore, recovery of knife on the information of the accused-appellant, and the same having human blood of B group, is of no avail and in this connection, he has placed reliance on Ham Singh vs. State of U.P. (2). 26. Therefore, recovery of knife on the information of the accused-appellant, and the same having human blood of B group, is of no avail and in this connection, he has placed reliance on Ham Singh vs. State of U.P. (2). 26. He has further submitted that the prosecution has only proved that the blood group of the deceased was B positive, but the prosecution has failed to examine the blood group of the accused because in the present case, the accused-appellant had also received injuries by sharp edged weapon on his left palm and it may be that the injury might have been caused by the same knife which was used for inflicting injuries to the deceased and unless that possibility is eliminated, the mere fact that the group of the blood found on the knife tallied with that of the deceased, is of no consequence. 27. Learned counsel for the appellant has further submitted that it was Devendra Singh who had inflicted a lathi blow on the head of Rampal Singh father of the accused-appellant Pramod Kumar Singh, which is a vital part of the body and there was bleeding. Accused-appellant Pramod Kumar Singh got infuriated and because of sudden and grave provocation, he inflicted the knife blows to Devendra Singh and therefore, he cannot be convicted u/s 302 I.P.C., and in this connection he has placed reliance on 1987 R.C.C. 327. In the alternative, he has also submitted that since there was danger to the life of his father. Ram Pal Singh as Devendra Singh had inflicted the lathi blow on his head which is a vital part, as a result whereof, he started bleeding and the accused, in exercise of his right of private defence was fully justified in inflicting injuries to Devendra Singh, to prevent him from further inflicting blows to his father Rampal Singh. In this connection, he placed reliance on Ramchandra vs. State of Rajasthan (3). 28. We have given our thougnt full consideration to the whole matter. In our opinion, the prosecution has been able to prove that the incident happened in which Devendra Singh received knife blows and he died as a result of those injuries. We are also of the opinion that it was Devendra Singh who had inflicted the knife blow to the deceased. In our opinion, the prosecution has been able to prove that the incident happened in which Devendra Singh received knife blows and he died as a result of those injuries. We are also of the opinion that it was Devendra Singh who had inflicted the knife blow to the deceased. The only question that remains to be considered by us is as to whether the conviction of the appellant u/s 302 IPC should be maintained or he can claim right of private defence. The earlier incident at about 1.30 p m. was only for a very trifle matter, about throwing the kite on the ground from the roof, and thereafter, some altercation between Pinki on one side and brother of accused, on the other side, took place. The accused persons who are alleged to gathered there at about 6.30 p.m. could not have any intention or motive to kill the deceased. There was no conspiracy or pre meditation between them, to murder the deceased, as has been rightly held by the learned trial court. Their target was Pinki (PW-4) @ Sunil Kumar, and according to the prosecution case also, they were asking for Pinki only. We have seen the injury report (Ex. P. 29) of Pinki which shows that he had received only one abrasion on the right hand. It was only when Devendra Singh came on the spot and asked them as to what they were doing that some altercation took place between them and even if we take the prosecution story as fully correct, the accused party encircled Devendra and wanted to give him beating but Devendra Singh snatched the lathi and gave a blow on the head of Rampal Singh father of the accused-appellant Pramod Kumar Singh, and thereupon only, accused-appellant is said to have inflicted the knife blows to Devendra Singh, meaning thereby that if Devendra Singh had not inflicted a lathi blow on the head of Rampal Singh, the incident would not have taken place in the manner it had ultimately happened. The appellant having seen that Devendra Singh had inflicted a lathi blew on the head of Rampal Singh, his father, and seeing the blood coming out from the injury, it appears the accused appellant Pramod Kumar Singh lost his patience and out of sudden provocation, he inflicted the knife blows to Devendra Singh without weighing them in a golden scale. The appellant having seen that Devendra Singh had inflicted a lathi blew on the head of Rampal Singh, his father, and seeing the blood coming out from the injury, it appears the accused appellant Pramod Kumar Singh lost his patience and out of sudden provocation, he inflicted the knife blows to Devendra Singh without weighing them in a golden scale. Out of the four knife injuries received by Devendra Singh, three are of very superficial and minor nature, as has been mentioned in the earlier part of the judgment. It was only the stab wound on the stomach that proved fatal. 29. Thus, we are of the opinion that the accused appellant had a right of private defence and merely because father of the appellant did not receive any grievous injury or that no sharp edged weapon was used against him, it cannot be said that the right of private defence bad not arisen, to the accuse appellant. 30. The next question that we have to consider is as to whether the accused-appellant had exceeded the right of private defence. Devendra Singh was only an intervener and had come there only with a view to find out as to what was happening and to make the parties understand that they should not quarrel. He was empty handed and came all alone. Others only followed him and had arrived at the scene later. Therefore, Devendra Singh had no intention to give any beating or even inflicting any blow to the accused party, but he having found him encircled by the accused persons, he in his self defence inflicted the lathi blow on the head of Rampal Singh, which infuriated the accused appellant Pramod Kumar Singh to give beating to Devendra Singh by knife blows. There was no occasion for the appellant to have inflicted such a severe stab wound on the stomach of the deceased which proved fatal, on the spot. 31. Thus, holding that the accused appellant Pramod Kumar Singh had a right of private defence, but he exceeded the same, we are of the opinion that his conviction u/s 302 IPC cannot be maintained and has to be set aside but he is found guilty for the offence u/s 304-11 IPC and in the facts and circumstances of the case, we are of the opinion that a sentence of five years R. I. would meet the ends of justice. 32. In the result, this appeal No. 352/87 is partly allowed, conviction of the appellant Pramod Kumar Singh u/s 302 IPC recorded by the trial court is set aside, instead he is found guilty for the offence u/s 304-11 IPC and is sentenc-ed to five years R. I. The accused-appellant is in jail. He will serve the sentence awarded to him by this Court. 33. Appeal No. 126/88 filed by the State of Rajasthan is hereby rejected.