JUDGMENT S.K. Kulshrestha, J. 1. Appellants have preferred this appeal against the judgment dated 18-12-1991 of the learned Second Additional Sessions Judge, Balaghat, in Sessions Trial No. 61 of 1991, by which each of the appellants has been convicted of offence under section 304, Part I, of the Indian Penal Code and sentenced to R.I. for seven years. 2. The appellants were tried for offences under sections 302 and 323 read with section 34 of the Indian Penal Code. The prosecution story, in brief, was that there was enmity between the appellants and the complainant. It was alleged that on 30-1-1991, there was a quarrel between appellants and Parvatbai in respect of the character of Kasturibai and in the evening at about 8.00 P.M., while the deceased Shivcharan and his wife were in their house, accused Parasram and Maniram came to their house and started criticising them, with the result, the deceased Shivcharan came out and asked them to behave properly. It is alleged that the appellant Maniram then gave a blow with lathi on his head and Shivcharan fell down. Appellants Sewakram and Gyaniram also joined him and assaulted Shivcharan with lathis. Santoribai (complainant) and her daughter Saganbai intervened to save Shivcharan but they were also beaten. Shivcharan became unconscious and was taken to the police station Katangi where report Ex. P-1 was lodged by Santoribai (P.W.1). The injured were forwarded to the Primary Health Centre, Katangi, where Dr. R.S. Sisodia examined the injuries of Shivcharan and in view of the nature of the injuries, referred him to the District Hospital, Balaghat. Shivcharan, however, succumbed to his injuries on 1-2-1991 while under treatment in the hospital. Intimation of the death of Shivcharan was sent to the police station, on the basis whereof a case of- death was registered vide Marg Ex. P-13 and after holding inquest, requisition for postmortem of the body was sent. Dr. R.P. Pandey (P.W.6) performed autopsy and gave report Ex. P-5. As per the opinion of the doctor, death was due to coma resulting from the extensive head injury which was ante-mortem and was sufficient to cause death. After completion of investigation, the accused were prosecuted. 3. The accused denied the charges and stated before the trial Court that they had not committed any offence. P-5. As per the opinion of the doctor, death was due to coma resulting from the extensive head injury which was ante-mortem and was sufficient to cause death. After completion of investigation, the accused were prosecuted. 3. The accused denied the charges and stated before the trial Court that they had not committed any offence. As per the defence of the appellants Sewakram and Gyaniram, they were not present at the place of occurrence on the date and time of the offence as they had gone out for work. The defence of the accused Parasram and Maniram was that on 30-1-1991 there was a quarrel between Parvatbai and Santoribai and enraged by the said quarrel, at about 8.00 P.M. on the same day, the deceased Shivcharan had come outside his house armed with a sword and had started abusing them. When he was asked to behave properly, he assaulted Parasram with sword and caused injury on his left hand. Santoribai and Saganbai also assaulted him and on seeing the commotion, Maniram came to intervene but Santoribai also assaulted him and gave blows with lathi on his head and back, of which report was made. It was further pointed out that Jagram, Babulal and Kunwar, all noticing that Parasram and Maniram were being belaboured, had intervened with sticks in their hand in order to save them. These appellants denied haying assaulted anyone. 4. The learned Additional Sessions Judge, although observed that the deceased Shivcharan had come out with a sharp weapon and caused injuries to Parasram while his wife Santoribai and Parvatbai, wife of accused Sewakram, were quarrelling and because-accused Parasram and Maniram were also abusing, he had assaulted accused Parasram, negatived the right of private defence on the ground that after the blow was given by Shivcharan, the apprehension ceased as there were no circumstances to suggest that Shivcharan had attempted or intended to cause any further injury to any of the accused. The learned Additional Sessions Judge, however, observed that since it was clear that the deceased Shivcharan had assaulted accused Parasram with sharp weapon in a trivial incident of quarrel between his wife and the wife of the accused Sewakram and the incident had suddenly developed without any premeditation, in a sudden fight in which the accused had not taken any undue advantage or acted in cruel or unusual manner, the act of the accused fell within exception 4 to section 300 of the Indian Penal Code and they were, thus, guilty of offence under section 304, Part I, Indian Penal Code and not of an offence of murder punishable under section 302 thereof. The learned trial Court, therefore, convicted each of the accused under section 304, Part I, Indian Penal Code and passed the sentence as stated above. 5. Learned counsel for the appellants has submitted that it is clear from the eye-witness account rendered through the testimony of Santoribai (P.W.1), Laxmibai (P.W.2), Saganbai (P.W.4) and Gendlal (P.W.7) that all the witnesses have modulated the prosecution story and have made meaningful improvements over the story which finds place in the F.I.R. with a view to suppress that the deceased Shivcharan alone was responsible for the incident as he was the one who had started the assault by causing injury to Parasram with a sword. The learned counsel has further pointed out that although the story in the F.I.R. was that the appellant Maniram had struck the first blow with lathi which had landed on the head of the deceased and the other appellants were stated to have jointed him later, the story developed in the Court, by these witnesses was that all of them had entered into the house of Shivcharan and conjointly assaulted him and caused various injuries. Learned counsel has further pointed out that even on the facts found proved by the learned trial Court, the accused could not have been denied the benefit of their having acted in exercise of their right of private defence and the conviction of the appellants was, therefore, unsustainable. 6. Learned counsel has further pointed out that even on the facts found proved by the learned trial Court, the accused could not have been denied the benefit of their having acted in exercise of their right of private defence and the conviction of the appellants was, therefore, unsustainable. 6. Learned counsel for the State has, on the other hand, pointed out that all the eye-witnesses have consistently stated that the appellants had conjointly entered in the house of the deceased, had belaboured him with lathis and caused several injuries and the injury on the head of the deceased was struck with such a grave force that there were multiple fractures beneath the head injury, as noticed by Dr. R.P. Pandey (P.W.6) and recorded in the postmortem report Ex. 5. Learned State counsel has, therefore, submitted that there are no circumstances which warrant any interference in the conviction recorded by the trial Court and the sentence passed against the appellants. 7. Before adverting to the facts and circumstances on record with regard to the plea of the accused Parasram and Maniram that they had acted in exercise of the right of private defence, it is necessary to see as to whether all the appellants had caused injuries to deceased Shivcharan or it was only appellant Maniram, as stated in the F.I.R., who assaulted with lathi and caused injury on his head. In this behalf, if the statement of Santoribai (P.W.1) in the F.I.R., with which she has been confronted in paragraph 12 of her deposition, is examined, it is clear that she had in the said report stated that Maniram was the one who had dealt the first blow which had landed on the head of the deceased. The learned counsel for the appellants has invited attention to the decision of the Supreme Court in Budhwa vs. State of M.P., AIR 1991 SC 4 in support of his contention that where a large number of persons participate in an incident and are said to have belaboured with their various weapons, if injuries are not found, the only logical conclusion could be that the statement with regard to the participation by such a large number was false. The relevant passage of the judgment reads as extracted below: But it cannot be forgotten that it is simpler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close cross-examination. Therefore, the nature of the injuries sustained by the victim assumes importance. The nature of the injury sustained in spite of the assertion of the concerted attack with lathis and tabbals by several assailants numbering over 15 renders the evidence doubtful about the participation of such a large number of persons. When the several blows with lathis and tabbals could produce only seven - injuries on the person of the deceased, Hanuwa, the necessary inference is that not more than seven persons might have participated in delivering the blows. Therefore, the presence of more than seven persons is doubtful. 8. In the present case, as per the prosecution case itself, the injuries sustained by the deceased were first examined by Dr. R.S. Sisodia (P.W.8). As per the statement of the doctor and the certificate Ex. P-6, the deceased had sustained a single contusion 5 Cm. x 51/2 Cm. over the left side of scalp on left parieto-occipital region, having been caused by hard and blunt object. Dr. Sisodia had also advised X-ray as bony injury was suspected and had referred the patient to the District Hospital, Balaghat, for admission and needful, as the injury, according to him, was dangerous to life. The autopsy surgeon Dr. R.P. Pandey (P.W.6), however, in external examination of the body had found two injuries on the head: one contusion on the left side of scalp, present in an area 4" x 5" and the other contusion 21/2" x 3" on right side of scalp in tempero frontal region and on that basis, Dr. Pandey has opined that there were two external injuries. Although Dr. Pandey has refuted the suggestion made by the defence that only single external injury was found on the head of the deceased, in view of the clear statement in the F.I.R. that Maniram had assaulted the deceased on the head and the deceased had thereafter fallen down, it is clear that only single injury had been caused on the head of the deceased and may be, the other injury was on account of fall. In any case, since only one injury was noticed by Dr. In any case, since only one injury was noticed by Dr. R.S. Sisodia (P.W.8), in view of a clear and categorical statement in the F.I.R. that single blow on the head was delivered by Maniram, the evidence of Dr. R.S. Sisodia is more compatible with the account rendered in the F.I.R. than the story developed at the trial. Since no other injury was found on the body of the deceased, it was clear that the evidence of the eye-witnesses, insofar as the same ascribes participation of other appellants in causing several injuries to Shivcharan with lathis, is not trust-worthy. 9. It is, therefore, to be seen in view of the above observation that only a single blow had been given to the deceased, whether the accused persons had acted in exercise of their right of private defence. The trial Court has given a positive finding that the deceased Shivcharan had assaulted Parasram with sharp weapon and it is also clear from the injury reports Ex. D-4 and D-5, as proved through Dr. Sisodia (P.W.8) that Parasram had an incised wound 3 Cm. x 1/2 Cm. x 1/2 Cm. on the upper 1/3rd on left fore-arm; an incised wound 4 Cm. x 11/2 Cm. x 11/2 Cm. on the back of left fore-arm; two abrasions and a lacerated wound and accused Maniram had a contusion 31/2 Cm. x 11/2 Cm. over right parietal region of head, but it has negatived the right on the ground that it has not been shown that the apprehension of any further assault by the deceased on the accused had continued or persisted to give rise to the exercise of the right. There can be no doubt that the injury caused to Parasram could have been caused only before the deceased was assaulted as the deceased had become inert after the blow had landed on his head and he had fallen down. The deceased, as per the version of the defence, had come out armed with sword and even the trial Court has observed that he had come out with sharp weapon with which he had caused injuries to Parasram, as recorded in Ex. D-4. There is nothing on record to suggest that after the said injuries were caused and before the accused had struck back, the deceased had been disarmed or otherwise rendered incapable of causing any further injury to the accused. D-4. There is nothing on record to suggest that after the said injuries were caused and before the accused had struck back, the deceased had been disarmed or otherwise rendered incapable of causing any further injury to the accused. Under these circumstances, it is difficult to subscribe to the view of the learned Additional Sessions Judge that the apprehension had come to an end and the accused were, therefore, not entitled to cause any injury. The fact that only a single blow was given and for that matter, even assuming that two blows had been given, does not indicate that the accused persons had in any manner exceeded the said right as it is necessary for a person to ensure that the assailant against whom he is exercising the right is completely over-powered or disabled so that he cannot cause harm apprehended from him. In my considered view, in the facts and circumstances of the present case, there was real apprehension in the mind of the accused of further harm being caused by the deceased who was armed with a sharp weapon and had already caused injuries to Parasram and accused Maniram was, therefore, quite within his right to prevent further harm. The act of the accused being in exercise of their right of private defence of body, the accused cannot be said to have committed any offence and deserve to be acquitted. 10. In the result, this appeal is allowed. The conviction of the appellants and the sentence passed against them is set aside and they are acquitted of the charge. Their bail bonds shall stand discharged.