N. P. SINGH. J. ( 1 ) THE appellants were tried on the charge of the offences punishable under Sections 302/34 of the Indian Penal Code and 323/34 of the Indian Penal Code by the Sessions Judge. Bilaspur in Sessions Trial No. 50/90 for committing murder of Gandram in furtherance of their common intention and causing injuries to Galarabai and Chhedilal and they have been convicted and each of them have been sentenced to imprisonment for life and six months R. I. respectively. ( 2 ) BRIEFLY stated the prosecution case is that on 22-8-1989 in the morning Gandram (since deceased) along with his wife Galarabai (P. W. 4), brother Chhedilal (P. W. 6) and other family members had gone to his field Behrakhera for weeding out the grass and had placed the weeded grass on the ridge in between their field and the field of the appellants, which had damaged Ramtilla crop sown by the appellants. In the afternoon at about 5. 00 p. m. when the appellants went to their field and saw weeded grass kept on their Ramtilla crop they threw the weeded grass in the field of Gandram. That led to altercation between Gandram and the appellants. In the meanwhile the appellants Januram and Lalaram assaulted Gandram by means of lathi and appellant Mannuram assaulted him by means of kudri. When Galarabai and Chhedilal intervened, they were also assaulted by the appellants. Champabai. Remunbai (P. W. 5) and Kalabai (P. W. 7) who were in the field along with Gandram came running to their home and informed Topsingh (P. W. 1) son of Gandram about the incident. On this information Topsingh (P. W. 1) rushed to his field along with a cot and while he was carrying his father Gandram to the Police Station on the cot with his uncle, brother and Kotwar Bisahudas. Gandram died on the way. Thereafter they went to the Police Station where Topsingh (P. W. 1) lodged F. I. R. (Ex. P-1), which was recorded by Gandram Dhurbe (P. W. 14) and he registered a case under Sections 302 and 201 read with Section 34 of the Indian Penal Code against the appellants and investigation proceeded. On 23-8-1989 Gangaram Dhurbe prepared inquest report of the dead body of the deceased (Ex. P-2) and sent the dead body through Constable Bhagwat Prasad for postmortem examination. P. W. 15 Dr. On 23-8-1989 Gangaram Dhurbe prepared inquest report of the dead body of the deceased (Ex. P-2) and sent the dead body through Constable Bhagwat Prasad for postmortem examination. P. W. 15 Dr. N. S. Chandel held autopsy on the dead body of the deceased and P. W. 11 Dr. A. K. Sanyal examined Galarabai and Chhedilal. Dr. Chandel found the following injuries on the person of the deceased: (1) Lacerated wound over scalp right parietal region, posterior aspect size 8 cm. x 2 cm. x bone deep. Underlying bone was fractured. (2) Lacerated, wound right parietal region posterior and parallel to injury No. 1 size was 14 cm. x 3 cm. x bone deep. Bone was fractured. Injury Nos. 1 and 2 were covered with blood clot. (3) Lacerated wound present over pinna of right ear size 5 cm. x 1 cm. transversed to whole thick underlying cartilages fractured into small pieces. Margin of wound was very irregular, which showed that it was caused by multiple strokes. (4) Lacerated wound near tragur of left ear, transversely placed, size 1. 5 cm. x 1 cm. x 1 cm. (5) Lacerated wound on left forearm 8 cm, above the wrist on the ulner side, transversely placed size 3 cm. x 2 cm. x 1 cm. (6) Incised wound over left upper arm, posterior aspect and 6 cm. above the elbow, size 3 cm. x 1 cm. x 1 cm. (7) Incised wound parallel and posterior to injury No. 6 size was 4 cm. x 1. 5cm, x 1 cm. (8) Bruise was present over left deltoid region 14 cm, x 12 cm. blackish -in colour. (9) Bruise over left hand dorsal aspect and lateral half size was 8 cm. x 6 cm. blackish in colour. This injury was accompanied with fracture of upper third metacarpal bone of index finger. (10) Bruise around dorsal aspect of left wrist size 6 cm. x 4 cm. blackish in colour. (11) Bruise over right upper arm lateral aspect and middle. size 12 cm, x 4 cm. blackish in colour. (12) Incised wound with irregular margin was present over right upper arm startingfrom posterior aspect of elbow extending longitudinally to posterior aspect of upper arm. underlying bone (lower end of humerous) shows small bone chips cut ends of underlying muscles was showing contusion. Size of wound was 9 cm. x 3 cm. x 6 cm. blackish in colour. (12) Incised wound with irregular margin was present over right upper arm startingfrom posterior aspect of elbow extending longitudinally to posterior aspect of upper arm. underlying bone (lower end of humerous) shows small bone chips cut ends of underlying muscles was showing contusion. Size of wound was 9 cm. x 3 cm. x 6 cm. (13) Incised wound over right forearm two in number transversely situated, size of both, the injuries was 1 cm. x 1 cm, x 1/2 cm. (14) Lacerated wound over right hand just above index finger size was 3 cm. x 2 cm. x 1 cm. This injury was accompanied with underlying metacarpal bone. (15) Lacerated wound was present over right proximal inter phalanx joint of right index finger size was 1 cm, x 1/2 cm. xl/2 cm. (16) Bruise present over back of the right scapular chest size 18 cm. x 12 cm. inter scapular region size was 22 cm. X 16 cm. On dissection following internal injuries were found: (1) Over the skull: - Large haemotoma was present over right parietal and frontal region. Fracture of skull bone seen which stared from frontal bone just above the bridge of the nose, extending upwards and backwards to right parietal region. Fracture line was 18 cm. long. Extra dural haemotoma was seen. (2) Right parietal lobe was congested and membrane was also congested. (3) Inside the - stomach about 50 c. c. r. thick fluid was present. (4) Fracture of upper third left metacarpal confirmed. (5) Lower end of right humerus as chipped. (6) Fracture of right fourth metacarpal was confirmed. All the surroundings were covered with blood clots. Internal injury No. 1 described above corresponded to external injury Nos. 1 and 2. Internal injury No. 4 corresponded to external injury No. 10 and internal injury No. 5 corresponded to external injury No. 13. Internal injury No. 6 corresponded to external injury No. 15. In the opinion of the Doctor the injuries Nos. 1 and 2 were sufficient in ordinary course of nature to cause death of the deceased. The cause of death was due to head injury. The duration of death was within 24 hours from the time of postmortem examination. ( 3 ) GALARABAI and Chhedilal were referred to Dr. In the opinion of the Doctor the injuries Nos. 1 and 2 were sufficient in ordinary course of nature to cause death of the deceased. The cause of death was due to head injury. The duration of death was within 24 hours from the time of postmortem examination. ( 3 ) GALARABAI and Chhedilal were referred to Dr. A. K. Sanyal (P. W. 11) for their examination who found the following injuries on the person of Galarabai: (1) Lacerated wound on left temporal region 7 cm. above left ear, size 5 cm, x 1 cm, x deep to the bone. (2) Contusion on left deltoid region size 3 cm, x 2 cm. (3) Contusion present on the left gludial region, tenderness was present 5cm. x 2-1 /2cm. Lacerated wound and contusions were also found on the person of Chhedilal. The police after completing investigation submitted charge sheet against the appellants. ( 4 ) AFTER the cognizance the case was committed to the Court of Sessions for trial of the appellants. ( 5 ) THE prosecution examined in all 15 witnesses at the trial, out of whom P. W. 1 Topsingh, son of the decease-d is first informant. P. W. 2 Bisahudas is the Kotwar. P. W. 3 Anklaha is the hearsay witness. P. W. 4 Galarabai. P. W. 5 Remunbai. P. W. 6 Chhedilal. P. W. 7 Kalabai and P. W. 8 Jethiyabai are the eye-witnesses to the occurrence. P. W. 9 Dukhiram is a witness of seizure of blood stained earth lathi, axe, etc. P. W. 10 Ramadhar had prepared the map of the P. O. P. W. 11 Dr. A. K. Sanyal had examined the injured Galarabai and Chhedilal. P. W. 12 Godiram is hearsay witness. P. W. 13 B. L. Kehari. Sub-Inspector of Police Station Mungali had recorded the Rojnamcha Sanha No. 980 on the statement of appellant J anuram. P. W. 14 Gangaram Dhurbeis the 1. 0. of this case, he had recorded the F. I. R (Ex. P-I) on the basis of statement of Topsingh (P. W. 1 ). P. W. 15 Dr. N. S. Chandel had held autopsy on the dead body of the deceased and has proved postmortem report (Ex. P-18 ). ( 6 ) THE defence was that there was mutual fight between the prosecution and the appellants on account of damaging Ramtilla crop sown by the appellants on their ridge. P. W. 15 Dr. N. S. Chandel had held autopsy on the dead body of the deceased and has proved postmortem report (Ex. P-18 ). ( 6 ) THE defence was that there was mutual fight between the prosecution and the appellants on account of damaging Ramtilla crop sown by the appellants on their ridge. The appellants Januram and Mannuram had also sustained injuries and in the retaliation the appellants also assaulted the deceased and other members his family, In the meanwhile, the deceased Gandram fell on the spade and sustained incised injuries. The defence has also brought the injury report of appellants Mannuram and Jamuram as (Ex. D-5 J and (Ex. D-6) on record. ( 7 ) THE trial Court on consideration of the evidence convicted and sentenced the appellants in the manner mentioned aforesaid. ( 8 ) SHRI S. C. Datt, learned counsel for the appellants has contended that the appellant Januram had also lodged Rojnamcha Sanha at Police Station M:mgali (Ex. P-13) which was recorded by P. W. 13 Sub-Inspector B. L. Kehri for the same incident in which appellant Januram and Mannuram were injured and they were referred to the Doctor for the examination of their injuries. The occurrence as alleged took place suddenly without any pre-meditation. Therefore, the conviction and sentence of the appellants under Section 302/34 of the Indian Penal Code is not sustainable. He also placed reliance in the case of Jumman v. State of Punjab, wherein the Apex Court has held: Where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, it will not be correct to assume private defence for both sides. Such a case will be a case of sudden fight and conflict and has to be dealt with under Section 300 I. P. C. , Exception 4. ( 9 ) A sudden and mutual fight between the parties took place on account of damage caused to Ramtilla crop by the appellants. It is evident from (Ex. D-5) and (Ex. D-6) that, appellants Mannuram and Januram sustained injuries on their persons for which the Rojnamcha Sanha was lodged by appellant Januram. The prosecution has not explained the injuries on the person of the appellants. The prosecution has thus suppressed the genesis of the occurrence. It is evident from (Ex. D-5) and (Ex. D-6) that, appellants Mannuram and Januram sustained injuries on their persons for which the Rojnamcha Sanha was lodged by appellant Januram. The prosecution has not explained the injuries on the person of the appellants. The prosecution has thus suppressed the genesis of the occurrence. In view of the injuries found on the person of the two appellants, it cannot be said which party was the aggressor. ( 10 ) ACCORDING to the medical evidence of P. W. 15 Dr. Chandel, there were two lacerated wounds over parietal region and were lacerated wound on each of the left and right ears as also many other injuries on the hand and upper arms of the deceased, indicating that he was mercilessly beaten. There was haemotoma inside the skull and also fracture of the skull bone, besides other fractures, as has been detailed by Dr. Chandel in his report (Ex. P/18 ). It has been opined that injuries 1 and 2. i. e. , on the skull of the deceased, were sufficient in the ordinary course of nature to cause death. As against this, the appellants Mannuram and Januram had received simple injury of contusion on their arms. Clearly, therefore, even if the appellants had right of private defence as has been urged on their behalf, they had far exceeded it, in the circumstances of the case. In the foregoing facts and circumstances of the case and in view of the evidence on record, it appears that though the accused/appellants are not guilty for offence punishable u/s 302 of the I. P. C. , but having exceeded right of private defence and having intentionally inflicted injuries which were in the ordinary course of nature, sufficient to cause the death of deceased Gandram, they are liable for offence punishable u/s 304. Part-i r/w Section 34 of the I. P. C. and liable to be convicted and sentenced there for. There further conviction u/s 323 r/w Sec. 34 of the I. P. C. for having caused injuries to Galarabai and Chhedi also deserves to be confirmed, in view of the evidence on record. ii. Part-i r/w Section 34 of the I. P. C. and liable to be convicted and sentenced there for. There further conviction u/s 323 r/w Sec. 34 of the I. P. C. for having caused injuries to Galarabai and Chhedi also deserves to be confirmed, in view of the evidence on record. ii. Accordingly, the appeal is partly allowed, the conviction of the accused/appellants for offence punishable u/s 302 of the I. P. C. is converted into offence punishable u/ s 304 Part 1 r/w Sec. 34 of the I. P. C. and they are sentenced to undergo R. I. for io years there for. Their further conviction and sentence for offence punishable u/s 323 r/w Sec, 34 of the I. P. C. are maintained. Appeal allowed partly. .