R.S. VERMA, J.—Appellant Chelia, along with co-accused Panchiya and Laliya were put up for the trial before the learned Sessions Judge, Jalore, for offences u/ss. 302, 302/34,452. 324/34 and 323 IPC, after due commitment. The learned Sessions Judge, after due trial and by judgment dated August 31 1982 convicted the appellant-Chelia of an offence u/s 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 200/- and in default to undergo one months rigorous imprisonment. He further convicted him for an offence u/s 447 I.P.C. and sentenced him to undergo three months simple imprisonment on this count. Both these substantive sentences were directed to run concurrently Co-accused Laliya was convicted of an offence u/ss 323 and 447 IPC however the other co-accused Panchiya was acquitted of the charges framed against him Aggrieved by his conviction and sentenced passed against him. Chelia has come in appeal. 2. Briefly stated, the prosecution story is, that on the day next to Holi, i.e. 10-3-82 deceased Sabiya had gone to ease himself in the jungle. At about 7.00 p.m. he was returning from the jungle and reached near the house situated in village Sikwara. Sabiya was seen crying and running towards his house. He was followed by the accused-appellant and his two co-accused Panchiya and Laliya. Laliya was armed with lathi, Panchiya was armed with a sword, while the appellant was armed with a dagger. The deceased entered his gwari, followed by the appellant and his companions. 3. PW 1 Nawa (Navia) is the brother of the deceased and had his gwari adjoining to the gwari of the deceased. PW 1 and his wife Smt. Jama saw the accused-appellant and his companions chasing the deceased. Likewise, PW 2 Laxmi, mother of the deceased, PW 3 Teepu, wife of the deceased also saw this. They were already present at the house of the accused at that time. 4. The prosecution story further is that the appellant and his companions opened an assault on the deceased with the result that Sabiya fell down on the ground. He tried to get up at which the appellant stabbed the deceased on the chest twice. Co-accused Panchiya dealt a blow from the sword at the deceased but Smt. Teepu intervened with the result that she received some injuries on her left hand. He tried to get up at which the appellant stabbed the deceased on the chest twice. Co-accused Panchiya dealt a blow from the sword at the deceased but Smt. Teepu intervened with the result that she received some injuries on her left hand. Smt. Laxmi also tried to intervene, at which Laliya gave lathi blows to her. Co-accused Panchiya was carrying a towel with him. After the assault the accused-appellant as also his companions made good their escape and while they were running, the towel of Panchiya got dropped in the gwari of the deceased. It is alleged that the eye witnesses present at the scene of the occurrence, raised an alarm, at which Jai Singh and Dhook Singh came there. Thereafter Naviya and his companions lifted Sabiya and took him to the angan of the, house of the deceased. Naviya narrated the incident to Jai Singh and Dhook Singh. He then left them with the body of the deceased, who had already succumbed to his injuries and went to one Dalla and got a report Ex P/l, scribed about the incident. With this report he proceeded on foot to Police station, Modra, which is at a distance of 6 kos (1.2 miles) from Seelwara. He presented this report to S.H.O., Modra, Shri Sajjan Singh, PW 12. Shri Sajjan Singh made some enquiry from Naviya and it was revealed that the appellant had delivered some iron sheets to Sabiya and on this account the appellant had been demanding Rs. 30/- from Sabiya. However, Sabiya refuted this demand and it was out of this grouse that the appellant and the co-accused persons made the aforesaid assault. Upon such information, Sajjan Singh registered a case u/ss. 302/34, 324 & 323 I.P.C. A formal FIR Ex. P/23 was drawn up in this regard and the same was forwarded to the court of Munsif and Judicial Magistrate, Bhinmal. 5. Sajjan Singh, after registering the case, proceeded to the spot and inspected the site. He saw a stream of blood going from the place of assault to the angan of the deceased (for a distance of 45 feet). He found blood spots at some places in the gwari. He also found a towel lying in the gwan and allegedly belonging to co-accused Panchiya. Shri Sajjan Singh drew a memo Ex. P. 2 with regard to this site inspection and also prepared a site plan Ex. He found blood spots at some places in the gwari. He also found a towel lying in the gwan and allegedly belonging to co-accused Panchiya. Shri Sajjan Singh drew a memo Ex. P. 2 with regard to this site inspection and also prepared a site plan Ex. P.3. He examined the dead-body of the deceased. He, inter-alia found two stab wounds on the chest of the deceased and also found that the shirt and baniyan of the deceased had received cuts at two places. He prepared a memo of this examination Ex. P/4. He recovered the towel lying on the spot and duly sealed the same. He also collected blood-stained soil as also control soil from the scene of the occurrence. He thereafter arranged for the post-mortem of the deceased. This post-mortem examination was conducted by Dr. Mohanlal Paniya, PW 7, who found following injuries on the body of the deceased :— "1. Incised wound 3/4 "1/4"x1/4" on the left thumb. Cutting of thumb nail was there. 2. Lacerated wound l-1/2"x l/3"x l/3" on the right parietal bone longitudinally. 3. Incised stab wound 3"x1/2"x 2-1/2" transversely on the epigastric region. 4. Incised stab wound 2"x1/4"x1-1/2" on the epigastric region transversely near injury No. 3." 6. On opening the body he found that 9th coastal cartilage was fractured near junction of sternum. There was rupture of right verticle lower part of size 1/2"xl/3"xl/3". The abdomen muscles were also found ruptured by him. There was also rupture of peritoneum canal which was full of fluid blood. He found two ruptures on the spleen one on the right lobe dorsal surface measuring 1-1/2x1"x3/4" and the other on left lobe anterior surface 3/4"x3/4"x1/2". In the opinion of the doctor the injuries were anti-mortem in nature. He opined that the deceased had died due to shock and haemorrhage caused due to rupture of liver and heart. According to him injury to liver has been caused by injury No 3 and rupture to heart had been caused by injury No. 4, and both the injuries were individually as well as collectively sufficient to cause death in the ordinary course of things. According to him, both these injuries could have been caused by a dagger. So far as external injury No. 2 was concerned, it was found to be simple and had been caused by blunt object. He prepared a post-mortem report Ex. P/8 in this regard. According to him, both these injuries could have been caused by a dagger. So far as external injury No. 2 was concerned, it was found to be simple and had been caused by blunt object. He prepared a post-mortem report Ex. P/8 in this regard. 7. The same day, he examined Smt. Teepu and found certain injuries on her person as mentioned in Ex. P. 9. Likewise, he also examined Smt. Laxmi and found certain injuries on her person as mentioned in Ex. P. 10. These injuries were simple. . 8. After the post-mortem examination, the Investigating Officer, recovered the wearing apparel of the deceased and he duly sealed them vide Ex. P/6. He, thereafter handed over the dead body to the next of kin of the deceased. 9. During the course of investigation the Investigating Officer recorded the statements of the various witnesses. He arrested accused Laliya and Panchiya on 15-3-82 vide Ex. P/14 and Ex. P/15 respectively. 10. The accused-appellant Cheliya was arrested on 11-3-82 vide Ex. P/12. His shirt and Dhoti had some blood-stains. He had certain injuries on his person. On 13-3-82 he volunteered information in respect of dagger, which is recorded in memo Ex. P. 12. In pursuance of this information a dagger was recovered at the instance of the accused on 13-3-82 vide Ex. P. 13. 11. On 17-3-82 accused Laliya gave him information in respect of a lathi which the Investigating Officer recovered vide Ex. P. 16 on 18-3-82. The information was recorded in the memo Ex. P. 19 on 17-3-82. On 17-3-82 itself Panchiya gave information with regard to a sword which was recorded in memo Ex. P/20. The sword was got recovered on 18-3-82 vide Ex. P/17. 12. Various sealed articles were sent to Forensic Laboratory, Jaipur and report Ex. P/22 was received in this regard. The report of the Serologist however, could not be produced before the trial court and has been placed on the record by the learned Public Prosecutor before us, on a direction given by us to him earlier. The origin of blood on the dagger and the pair of joot is could not be determined because blood stains on them had disintegrated. The clothes of the deceased were found stained with human blood. 13. Upon such investigation the accused appellant and his companions were put up for trial after due commitment as stated already. The origin of blood on the dagger and the pair of joot is could not be determined because blood stains on them had disintegrated. The clothes of the deceased were found stained with human blood. 13. Upon such investigation the accused appellant and his companions were put up for trial after due commitment as stated already. Learned Sessions Judge framed due charges against the accused-appellant and his companions. All of them pleaded not guilty and claimed trial. 14. At the trial the prosecution examined as many as 12 witnesses and also produced a number of documents. 15. Accused Panchiya and Laliya pleaded elibi and maintained that they had been wrongly implicated. The accused appellant Chelia came out with a story that on that day he had gone to participate in the local dance festival known as "Gair." This function had taken place at Mamaji-ka-than. Deceased Sabiya had also gone to Mamaji-ka-than. The case of the accused-appellant is that he used to sell liquor after obtaining it from the contractor. Likewise the deceased also used to sell liquor, after obtaining it from Rajabadari of village Raka. At the dance festival, deceased asked the accused appellant not to sell liquor, at which the accused-appellant asked the deceased not to engage in selling liquor. At this Sabiya threatened to beat him. Upon this, they had some sort of duel. The "Gair" festival ended at about quarter to 6 p.m. and the accused appellant started for his house. When he reached near the passage across the main gate of the house of the deceased, the deceased assaulted him with lathi, with the result that the fell down. The deceased had two lathi blows on his head from the back. After the accused-appellant fell down the deceased took out a daggar from the folds of his dhoti and he tried to cut the nose of the accused-appellant. The accused-appellant tried to foul the attempt of the deceased with the result that the blunt side of the dagger abraded his nose. There after both of them grappled * with each other with the result that Sabiyas dagger entered Sabiyas chest. Sabiya then got up and started, persum-ably for his house. No witness was examined in support of his defence. . 16. As stated already, learned trial Judge did not rely upon the prosecution evidence, so far as accused Panchiya is concerned. There after both of them grappled * with each other with the result that Sabiyas dagger entered Sabiyas chest. Sabiya then got up and started, persum-ably for his house. No witness was examined in support of his defence. . 16. As stated already, learned trial Judge did not rely upon the prosecution evidence, so far as accused Panchiya is concerned. He also discarded in part, the prosecution story so far as accused Laliya was concerned. He found him guilty only of offence u/ss 323 and 447 IPC and convicted and sentenced him as stated already. So far as accused-appellant is concerned, the learned trial Judge arrived at a finding that the accused-appellant had intentionally stabbed the deceased twice with a dagger and has caused his death and in doing so he had also unlawfully committed criminal trespass in the gwari of the deceased. He did not find the appellants version reliable. 17. In the present appeal, it is not disputed before us that deceased Sabiya died an unnatural death due to two stab wounds found on his body by Dr. Paniya. Though it is submitted that actually they might be the result of only one stab and might not have been two disting stabs as such. It is, however, submitted that the prosecution evidence is unworthy of credence. In this case, the accused-appellant did suffer various injuries on his person which have been proved by the defence. As many as 6 injuries had been found on his person. The prosecution witnesses have not offered any explanation of these injuries and hence the prosecution witnesses cannot be termed wholly reliable witnesses, particularly when even the trial Judge has not fully relied upon their evidence, as regards the other co-accused persons are concerned. It is submitted that in the circumstances of the case, it appears that the accused-appellant had been assaulted by the deceased and the accused-appellant might have acted in exercise of his right of private defence. The prosecution evidence has been criticised in this regard on a number of counts and we shall deal with this criticism presently. 18. Learned Public Prosecutor supports the conviction of the accused-appellant recorded by the learned trial Judge and submits that the prosecution witnesses are reliable and trustworthy. The prosecution evidence has been criticised in this regard on a number of counts and we shall deal with this criticism presently. 18. Learned Public Prosecutor supports the conviction of the accused-appellant recorded by the learned trial Judge and submits that the prosecution witnesses are reliable and trustworthy. It is submitted that prosecution witnesses were not bound to offer any explanation with regard to the injuries found on the person of the accused-appellant Cheliya, since the injuries were not very significant. He submits that in the circumstances of the case, there is no reason to discard the testimony of the eye witnesses whose presence on the spot cannot be doubted. The prosecution story is further supported by the fact that Naviya had lodged an FIR. promptly and without delay. The prosecution story also find support from the medical evidence. 19. The learned Public Prosecutor submits that the conviction of the accused-appellant for offence u/s 302 IPC is fully justified in the circumstances of the case and does not call for any intervention from this Court. 20. We have given our earnest consideration to the rival contentions advanced before us and have carefully perused the record. 21. One of the salient features of this case is that according to the prosecution, the deceased was returning from the jungle, after having eased himself. Normally, persons going out to the case themselves, carry some sort of utensil for taking water for cleaning themselves. It has not been shown to us that any utensil had been found at the scene of occurrence to corroborate the said theory. It is submitted that though no utensil was found on the spot yet the learned trial Judge did not attach due significance to this aspect of the case. We find some force in this contention. This circumstance by itself may not be of great importance, but when dealt with in context of other circumstances, it may assume a good deal of significance. We leave this matter at that. 22. In the present case, another salient feature is that when the accused-appellant was arrested a number of injuries were found on his person by the Investigating Officer. The Investigating Officer got the accused medically examined by Dr. We leave this matter at that. 22. In the present case, another salient feature is that when the accused-appellant was arrested a number of injuries were found on his person by the Investigating Officer. The Investigating Officer got the accused medically examined by Dr. Kapoor Choudhary, who found the following injuries on the person of the accused-appellant:— "(1) One lacerated wound 3.0cmx0.25cmx skin deep on the mid line of scalp, 15cm above the nasion, oblique, clotted blood presence. (2) One lacerated wound 1.5 c.m. x0.25 c.m. x skin deep on the Rt. parietal region, 7cm above left ear, oblique-clotted blood present. (3) One L. wound 0.5 cm x 0.5 cm on the nore. (4) One abrasion 0.5 cm x 0.5 cm on the lateral (Lt.) side of nose. (5) One linear abrasion of 8 cm on lateral side left leg (middle 1/3) (6) One abrasion 8 cm x 0.5 cm on lateral side of It. leg (lower 1 /3)." 23. Dr. Choudhary prepared a memo Ex. D. 7 in this regard, which was admitted by the Public Prosecutor, conducting the trial on 25-8-82. 24. A bare look at the injuries sustained by the accused-appellant goes to show that they cannot be termed insignificant or trivial. Two of the injuries had been found on the head, which is a vital portion of the body. One injury, a lacerated wound has been found on the nose. Beside this, an abrasion had also been found on the left side of the nose. It does not appear that these injuries could be self inflicted by the accused-appellant. The accused-appellant was examined on 12-3-82 at 12.30 p.m. and according to Ex. D. 7 the duration of injuries was within 72 hours. This goes to show that the injuries received by the accused-appellant were contemporaneous with the incident in which the deceased is said to have been stabbed. Non-explanation of the injuries on the person of the accused-appellant goes to show that the witnesses have not come out with a wholly true version. As human nature is, people are apt to exaggerate the role of the opponent and are further apt to minimise their own roles. Hence, the prosecution witnesses could not be expected to own that the deceased had assaulted the accused-appellant whereupon this tragic incident took place. As human nature is, people are apt to exaggerate the role of the opponent and are further apt to minimise their own roles. Hence, the prosecution witnesses could not be expected to own that the deceased had assaulted the accused-appellant whereupon this tragic incident took place. But in all probabilities, the truth appears to be that the deceased might have assaulted the accused-appellant with a stick and thereupon the accused-appellant must have inflicted the two stab wounds on the person of the deceased. 25. In case of such a nature, the evidence regarding motive assumes importance. The learned trial Judge has not accepted the motive set out by the prosecution. The statement of the accused has to be considered as any other material on record, in appreciating the prosecution evidence. Admittedly, the incident took place on the day next to Holi. In this part of Rajasthan, as also in other parts of this State, it is usual for people to indulge in festivities like "Gair". The explanation of the accused appellant that he used to sell liquor and the deceased also used to sell liquor, upon which some wordy duel might have taken place, cannot be discarded out right. 26. Here we would like to observe that the prosecution is required to prove its case beyond all reasonable doubt, while the burden on the accused is a little lighter. It would suffice if the accused shows that the story set up to him is probabilised, in the given circumstances. 27. This is true that all the eye witnesses deposed about two dagger blows by the accused-appellant having been inflicted on the body of the deceased. We have no hesitation in accepting this part of the prosecution story. But we are not prepared to believe the prosecution story that the accused, without any rhyme and reason, attacked the deceased with dagger. To our mind, the circumstances pointed out by the accused-appellant in his statement recorded u/s 313 Cr.P.C. probabiliscs the version of the defence that initially it was the deceased who had assaulted the accused-appellant with a stick. It must have been thereafter, that the accused-appellant must have stabbed the deceased on his chest twice, as alleged by the prosecution. It is in this context that absence of any utensil at the scene of occurrence which might have been used by the deceased for ablutions, assumes importance. 28. It must have been thereafter, that the accused-appellant must have stabbed the deceased on his chest twice, as alleged by the prosecution. It is in this context that absence of any utensil at the scene of occurrence which might have been used by the deceased for ablutions, assumes importance. 28. We have carefully gone through the testimony of the eye witnesses Nawa, Laxmi, Teepu and Jamna. All of them are close-relations of the deceased. We do not mean to say that evidence of these witnesses should be discarded only because they happen to be related to the deceased but we would like to emphasis that their evidence has to be accepted only with a pinch of salt and cannot be accepted in its totality, particularly when, even the learned trial Judge has not placed implicit reliance upon it. Hence, we are of the opinion that in this case the prosecution has failed to. prove that the incident took place in the manner as alleged by the prosecution. In all human portabilities, the incident must have taken place, partly in a way suggested by the accused-appellant. 29. Now we may come to the offence made out against the accused-appellant, in the aforesaid circumstances. In our opinion, the accused-appellant has clearly acceded his right of private defence of person. Both the wounds inflicted on the body of the deceased, were inflicted with sufficient force. Underneath one wound the inner cartilage had been cut and the heart had been pierced and under the other wound the liver had been ruptured. 30. This is true that the accused-appellant could not have been expected to weigh in golden scale, his right of private defence of person. But the aforesaid circumstances should go to show that the accused-appellant must have known that the injuries inflicted by him on the person of the deceased, were likely to cause the death of the deceased. In our opinion, even one blow was sufficient to disabled the deceased completely and there was no necessity for the accused-appellant to have stabbed him twice. The deceased was not armed with any deadly weapon. He was carrying only a small danda used for dance at the "Gair" festival. 31. In our opinion, charge u/s 302 I.P.C. has not been brought home to the accused-appellant beyond reasonable doubt. The deceased was not armed with any deadly weapon. He was carrying only a small danda used for dance at the "Gair" festival. 31. In our opinion, charge u/s 302 I.P.C. has not been brought home to the accused-appellant beyond reasonable doubt. To our mind, the accused-appellant in the aforesaid circumstances, can only be held guilty of an offence u/s 304 Part II I.P.C. 32. Now, we may consider the question of sentence to be awarded to the accused-appellant. He has been in custody since 11.3.82. He has, thus, remained in custody for a period of almost seven years. In our opinion, the sentence already undergone by the accused shall meet the end of justice. 33. No other point was urged before us. 34. In view of what we have stated above, this appeal is partly accepted. We set aside the conviction of the appellant Cheliya for offence u/s 302 I. P. C. and also set aside the sentence passed upon him for this offence by the learned Sessions Judge, Jalore. We, hereby, convict him of an offence u/s 304 Part II I.P.C. and sentence him to undergo imprisonment for the period for which he had already been in detention. He shall be released immediately, if not required in any other case.