ORDER : M.K. Mukherjee, J. 1. The three appellants herein along with three others were placed on trial before the learned Sessions Judge, Jabalpur to answer charges under Sections 148 and 302 read with Section 149 Indian Penal Code. The trial ended in an acquittal in their favour; and aggrieved thereby, the State preferred an appeal. The High Court disposed of the appeal by reversing the acquittal of the three appellants and convicting them under Sections 302/34 Indian Penal Code while upholding the acquittal of the other three. Hence this appeal. 2. According to the prosecution case, on 5-2-1982, at or about 9.15 p.m., when Mohd. Irfan (deceased) was sitting in front of the shop of Uttam Singh (PW 5), the three appellants came there armed with deadly weapons and started assaulting Mohd. Irfan. The other three accused persons (since acquitted) arrived at the scene of the occurrence within a few minutes and joined them in the assault. When Mohd. Suleman, father of Irfan came to his rescue, he was also assaulted. Immediately thereafter, Irfan was removed to the hospital where he succumbed to his injuries. A written report of the incident was given to the police by Sheikh Anwar (PW 3), a cousin of Irfan, whereupon a case was registered against the six accused. In the course of investigation of the case, the police arrested them and pursuant to statements made by some of them, certain bloodstained weapons were recovered. On completion of investigation, police submitted a charge-sheet and in due course, the case was committed to the Court of Session. 3. The appellants pleaded not guilty to the charges levelled against them and contended that they were falsely implicated. The appellant Mubbi took up a plea of right of private defence also. 4. To prove its case, the prosecution produced Sheikh Anwar (PW 3), Uttam Singh (PW 5), Pyara Sahib (PW 6), Suleman (PW 12), Abdul Samir (PW 13) and Feroze Khan (PW 14) as eyewitnesses. Of them, PW 3 and PW 13, however, turned hostile. On a perusal of the lengthy judgment of the trial court, we find that it has given a number of reasons to disbelieve the evidence of the four eyewitnesses who supported the prosecution case, some of which are not proper and justified. Of them, PW 3 and PW 13, however, turned hostile. On a perusal of the lengthy judgment of the trial court, we find that it has given a number of reasons to disbelieve the evidence of the four eyewitnesses who supported the prosecution case, some of which are not proper and justified. But, in our opinion, the principal reasons which weighed with the trial court for acquitting two of the appellants could not be said to be improper, much less, perverse. In acquitting the appellant Ramjan, the trial court laid much emphasis upon the fact that PW 3, who claimed to have seen the occurrence, did not ascribe any role whatsoever to him (Ramjan) in the murder of Irfan in the FIR that he lodged within one and a half hours of the incident. Similarly, the trial court observed, PW 3 did not implicate the appellant Nijju in the assault on Irfan even though the other witnesses did. In other words, according to the trial court, appellant Ramjan's name was not disclosed at the earliest available opportunity as a person who shared the common intention with the other accused to commit the murder of Irfan and the evidence of the eyewitnesses regarding participation of Nijju in the murder was contradictory. Since the above findings of the trial court were based on proper appreciation of the evidence, the High Court ought not to have, while sitting in judgment over an order of acquittal, reversed them merely because a different view of the evidence could be taken. 5. Coming now to the case of the appellant Mubbi, we are, however, unable to sustain all the findings of either of the learned courts below. The evidence of the eyewitnesses that Mubbi assaulted Irfan with a ballam (spear) on his chest which caused his death stands amply corroborated by that of Dr A.K. Yadu (PW 3) who held the post-mortem examination. This apart, ocular version of PW 3 in this regard stands corroborated by the FIR. The trial court, however, held that Mubbi had a right of private defence of his person and that he did not exceed the same while causing the death of Irfan. In drawing the latter conclusion, the trial court observed: "Keeping that act in view, it cannot be said that Mubbi exercised his right of private defence in excess of that which was actually required. In drawing the latter conclusion, the trial court observed: "Keeping that act in view, it cannot be said that Mubbi exercised his right of private defence in excess of that which was actually required. As I have already mentioned, Mubbi gave Irfan a knife blow on his thigh and even before that, Ajju had struck him with a rod." 6. In our considered view, the above finding is patently perverse inasmuch as there is not an iota of material on record to show that any person by the name of Ajju was present along with Irfan at the time of the incident and that the incident took place in the manner stated above except a suggestion put to the eyewitnesses which was denied by all of them. In that view of the matter, the High Court was fully justified in observing that merely because on behalf of the defence a suggestion was thrown during cross-examination of the witnesses and denied by them did not give rise to a positive inference that Ajju was present and that he must have participated in the alleged assault on Mubbi. 7. We are, however, unable to sustain the other observation of the High Court in this regard that the trial court conferred the right of private defence on Mubbi on fanciful imagination for evidence was led during trial to prove that in the course of the incident Mubbi also sustained three injuries, one of which was an incised wound on the right thigh and found to be profusely bleeding when Dr R.K. Gupta (PW 4) examined him on the fateful day at 10.20 a.m. and no explanation was offered by the prosecution for the same. Considering these facts and circumstances, we are in agreement with the trial court that the appellant Mubbi was entitled to exercise his right of private defence but we do not share its other view that he did not exceed the right of private defence having regard to the fact that he gave three successive blows with a spear on his chest and, that, according to the doctor, the injuries caused on the chest resulted in the death of Irfan. For the foregoing discussion, we set aside the conviction and sentence recorded against the appellants Nijju and Ramjan and acquit both of them; and alter the conviction of appellant Mubbi from one under Sections 302/34 Indian Penal Code to Section 304 (Part II) Indian Penal Code. 8. That brings us to the sentence to be imposed for the altered conviction of the appellant Mubbi. Since the incident took place, more than 14 years have elapsed and during this long period, he has gone through the ordeal of a protracted trial and the trauma of the conviction of the High Court. From the materials placed before us, we also find that he served imprisonment for more than three years after his conviction by the High Court and till his release on bail under orders of this Court. For all these considerations, we do not feel inclined at this distant point of time to send him behind the bars again. We, therefore, sentence him for the period already undergone. All the three appellants who are on bail, are discharged from their bail bonds. 9. The appeal is thus disposed of.