Judgment (ORAL) V.M. Kanade, J.— The appell-ants and two others were charged for the offences under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code for having committed murder of Manoj Parate on 6-2-1993 at about 11.15 A.M. at Trimurti Nagar, Nagpur. The Sessions Court convicted the appellants herein under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for life and further directed them to pay fine of Rs. 1,000/each and in default to suffer further rigorous imprisonment for six months. The remaining two accused, viz. original accused No. 3 Morezhwar and accused No. 5 Babulal were acquitted of the offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code. The appellants herein were also acquitted of the offences under Sections 147 and 148 of the Indian Penal Code. The appellants are challenging the said judgment and order dated 21-6-1997 passed by the Additional Sessions Judge, Nagpur in Sessions Trial No. 176 of 1993. 2. The case of the prosecution is that one Dewaji Parate was running a bicycle repairing shop along with his sons Balchand. Prem and Manoj at Trimurti Nagar, Nagpur. In the year 1991, deceased Manoj had murdered Raju Narnaware, son of accused No. 3 Moreshwar Narna-ware. The said deceased Manoj was prosecuted alongwith Prem, Bhalchand, Dewaji and one Raju Suryabhan Chanekar. All the accused were acquitted by the Sessions Court sometime in January 1992 and since that time relations between accused No. 3 Moreshwar and Parate family had become strained. It is the further case of the prosecution that deceased Manoj Parate was to recover some amount from accused Manoj Gedam and Sujeet Gedam as both these accused had taken cycle on hire and had not paid the charges. It is the case of prosecution that said amount was demanded by deceased Manoj Parate and that there was quarrel between accused Manoj Gedam. Sujeet Gedam and deceased Manoj Parate and these two accused had threatened Manoj and even for that reason, relations between the two parties had become strained. 3. It is the case of prosecution that on the date of incident i.e., on 6-2-1993 at about 11.00 a.m., deceased Manoj Parate was in his Cycle Shop; his brother Prem and employee Raju were also present in the shop. 3. It is the case of prosecution that on the date of incident i.e., on 6-2-1993 at about 11.00 a.m., deceased Manoj Parate was in his Cycle Shop; his brother Prem and employee Raju were also present in the shop. Bhalchand, brother of deceased had gone to house which is situated at a short distance from the Cycle repairing shop to have his lunch and at that time, accused had come to the shop with sword, iron rod, sticks, knife and gupti and accused nos. 1 and 2 Manoj and Sujeet assaulted Manoj Parate by means of crow bar and stick respectively while the other accused had surrounded him so that nobody would intervene and as a result of the said assault. Manoj Parate succumbed to the said injuries and died. Manoj Parate was thereafter taken to hospital by all members of his family. However, he subsequently died in the hospital and on the next day complaint was filed in the Police Station. 4. By the time Manoj Parate was admitted in the hospital, Police had received information and they rushed to the scene of offence in a police jeep and they came to know about the assault and, therefore, went to the hospital. It is an admitted position that accused Manoj Gedam had also made a report at 12.10 hours which is later on proved as exhibit 2, to the effect that at about 11.00 a.m. on 6-3-1993 when he had sent his brother Sujeet to bring some spares, he was informed by two persons that Prem Parate and 2-3 persons were assaulting his brother and he immediately rushed and found those persons assaulting his brother by cycle chain and iron rod and he, therefore, rushed to the spot and tried to save his brother and during his scuffle he also received some injuries. It is further stated in his statement that Prem Parate went back to their house and returned with sword and assaulted him and he received injury on left leg and thereafter he gave blow to the deceased by iron rod on his head. The police recorded statements of witnesses and charge-sheet was filed against the accused and charge was framed against the accused under Section 302 read with Section 34 read with Sections 147 and 148 of the Indian Penal Code. The accused Bharat and Babulal were shown as absconding. The police recorded statements of witnesses and charge-sheet was filed against the accused and charge was framed against the accused under Section 302 read with Section 34 read with Sections 147 and 148 of the Indian Penal Code. The accused Bharat and Babulal were shown as absconding. However, accused Babulal came to be arrested on 15-6-1993 and supplementary charge-sheet was filed. Similarly, accused Bharat was absconding till 15-11-1995. The accused pleaded not guilty to the said charge and have raised defence of total denial. In their statement under Section 313 Cr.P.C. also they have raised the plea of total denial. However, accused Manoj, Sujeet and Babulal, appellants herein, have raised the defence that deceased Manoj Parate and witness had come to assault them and at that time Manoj received injuries because of the fall on the ground. It is also suggested that Manoj Parate gave a single blow to the deceased in self defence after he was assaulted by sword by the deceased. 5. The prosecution examined in all 24 witnesses to prove the case against the accused and P.W. 1 Balchand Parate. P.W. 2 Raju Chanekar, P.W. 5 Waman Sonkusare and P.W. 12 Dashrath Nimje were examined as eye witnesses to the assault on Manoj Parate. The prose-cution also examined father of the deceased. Dewaji and Tarabai - mother of the deceased. The prose-cution also examined panch wit-nesses - P.W. 4 Purushottam. P.W. 6 Yadav, P.W. 7 Shivkumar, P.W. 8 Suresh and P.W. 9 Sanjay on the point of discovery of weapons. Prose-cution also adduced medical evidence and for that purpose, examined P.W. 13 Dr. Pradeep Dikshit who conduc-ted post-mortem examination and also examined P.W. 18 Dr. Narayan Khobragade who had examined accused Manoj and accused Sujeet. Prosecution also examined P.W. 24 Dr. Jayant Karmakar who had treated Manoj at the Meyo Hospital. Rest of the witnesses are police officials who had taken part in the investigation of the crime. 6. The defence has not disputed spot panchanama (Exh. 36), inquest panchanama (Exh. 39), arrest pan-chanamas (Exhibits 43, 44, 45 and 46), requisition sent to C.M.O. Medi-cal College for medical examination of accused Sujeet Gedam dated 6-2-1993, requisition sent to C.M.O., Medical College Hospital. Nagpur who examined Manoj Gedam (Exh. 50), OPD Card of Manoj Gedam (Exh. 51(1) and OPD Card of Manoj Gedam dated 10-2-1993 (Exh. 53). 7. 36), inquest panchanama (Exh. 39), arrest pan-chanamas (Exhibits 43, 44, 45 and 46), requisition sent to C.M.O. Medi-cal College for medical examination of accused Sujeet Gedam dated 6-2-1993, requisition sent to C.M.O., Medical College Hospital. Nagpur who examined Manoj Gedam (Exh. 50), OPD Card of Manoj Gedam (Exh. 51(1) and OPD Card of Manoj Gedam dated 10-2-1993 (Exh. 53). 7. The Trial Court, on the basis of evidence adduced by the prosecution convicted the appellants herein under Section 302 read with Section 34 of the Indian Penal Code. The other two accused, viz. original accused No. 3 Moreshwar and origi-nal accused No. 5 Babulal were acquitted by the Trial Court. The appellants are challenging the judgment and order of the Trial Court in this appeal. 8. We have heard learned Advocate for appellant who has taken us through the entire evidence on record including the depositions and exhibits and also judgment and order of the Trial Court. We have also heard learned APP Mr. Mirza appearing on behalf of the State at length. 9. It is submitted by learned Advocate for appellants that from the evidence on record it has been established that deceased, his brothers and supporters were the real aggressors and that accused Manoj Gedam and his brothers Sujeet and Bharat and others were initially assaulted and that they had defended themselves and, therefore, they had exercised the right of private defence and thus, they had not committed an offence under Section 302 read with Section 34 of the Indian Penal Code. He submitted that from the evidence of the eye witnesses who have been examined by the prosecution, deceased Manoj Parate was given one single blow by accused Manoj Gedam and that this fact was also corroborated by medical evidence. He submits that it is an admitted position that appellant Manoj also had received injuries on his person. Similarly, the other accused had also received injuries and that they had lodged a report in the Police Station on 6-2-1993 which was prior in point of time to the report lodged by mother of deceased Manoj Parate which was lodged on the next day i.e., 7-2-1992. He submitted that said report lodged by complainant was given belatedly after much deliberation which created serious doubt about the veracity of the said statement. He submitted that said report lodged by complainant was given belatedly after much deliberation which created serious doubt about the veracity of the said statement. He submitted that the evidence of these eye witnesses could not be relied upon as the said evidence was not corroborated by the medical evidence. He submitted that these witnesses had stated that the accused had continuously assaulted them for 10-15 minutes which fact is not borne out by the medical evidence. He submitted that in the alternative, if the case of private defence is not accepted by the Court, the case of accused Manoj could at the most fall under Section 304, Part-I of the Indian Penal Code since it was a case of single blow which was given as a result of Manoj having exercised his right of private defence and, therefore at the most it could be said that Manoj had exceeded his right of private defence. He further submitted that sofar as the other two accused are concerned, accused Suraj and Bharat could not be said to have shared common intention of Manoj as it is the evidence of said alleged eye witnesses that they had assaulted with stick. He, therefore, submitted that sofar as these accused are concerned, their case would not fall under Section 302 read with Section 34 of the Indian Penal Code, but at the most it would fall under Section 323 of the Indian Penal Code. 10. Learned APP appearing on behalf of the State has strenuously opposed the submissions made by learned Advocate for appellants. He submitted that all the accused/appellants had come with common intention of committing murder of deceased Manoj Parate and that they had motive for killing said Manoj on account of previous enmity and also on account of said Manoj having murdered son of Moreshwar, original accused No. 3. It is submitted that medical evidence on record clearly showed that injury was caused to deceased Manoj on the vital part of his body was sufficient in the ordinary course of nature to cause death and that all the accused had intention to commit murder of deceased Manoj Parate. 11. We have perused the entire evidence recorded by the prosecution. It is submitted that medical evidence on record clearly showed that injury was caused to deceased Manoj on the vital part of his body was sufficient in the ordinary course of nature to cause death and that all the accused had intention to commit murder of deceased Manoj Parate. 11. We have perused the entire evidence recorded by the prosecution. After having considered the entire evidence, it is difficult to accept the submissions made by learned counsel appearing on behalf of appellants that appellant No. 1 Manoj had assaulted deceased Manoj Parate while exercising his right of private defence. P.W. 13 Dr. Pradeep Dikshit had performed post-mortem on the dead body of Manoj Parate P.W. 13 Dr. Dikshit in his deposition had stated that he had noticed the follo-wing injuries on the person of dece-ased Manoj, which are as follows :- “1. Abrasion over left forehead 3 c.m. left of midline 1 c.m. x 1 c.m. brownish red. 2. Abrasion over right thigh on outside 6 c.m. below anterior superior iliac spine 1 c.m. x 1 c.m. brownish red. 3. Abrasion over upper part of right shoulder 1/2 c.m. x 1/2 c.m. brownish red. 4. Contused abrasion over left parietalo eminence 1 c.m. x 1 c.m. brownish red.” He has further stated that on internal examination of head, he had noticed hematoma under skull, left front to parietal occipital region and about 200 ml. blood and blood clots were present. He deposed that the said injury was corresponding to external injury No. 4 mentioned in column No. 17 of the post-mortem report. In his evidence he has stated that he had also noticed a depressed fracture of vault underneath injury No. 4 of column No. 17 which was 3.5 cm x 8 cm obliquely placed with linear fracture line extending to occipital and temporal region 4 c.m. long each. Similarly, on examination of brain, he found extra dural hemorrhage underneath depressed fracture over left parieto temporal region. He has further given his opinion that injury No. 4 of column 17 with internal damage was sufficient to cause death in the ordinary course of nature. He has further opined that the iron bar which was recovered at the instance of accused could have caused death. Dr. Pradeep Dikshit (PW 13) has also identified iron crow bar as the same crow bar which was examined while giving report at exhibit 95. 12. He has further opined that the iron bar which was recovered at the instance of accused could have caused death. Dr. Pradeep Dikshit (PW 13) has also identified iron crow bar as the same crow bar which was examined while giving report at exhibit 95. 12. Sofar as evidence of eye witnesses are concerned, P.W. 1 Balchand in his evidence has clearly stated that Manoj Gedam was holding crow bar, accused Sujeet was holding a stick, accused Bharat was holding stick and accused Babulal Moreshwar and Sudhakar were instigating these accused. He has further stated that all these accused had assaulted Manoj and thereafter had fled away from the spot of incidence. In his cross-examination he stated that the appellants were assaulting his brother for about 10-15 minutes. Sofar as P.W. 2 Raju Chanekar is concerned, he has deposed in his evidence that the incident happened on 6-2-1993 at about 11.15 a.m. and that accused Manoj and Bharat had assaulted Manoj Parate with stick and crow bar respectively. This witness does not state that the other accused took any part in the said incident. This witness has also stated that the incident had taken place for a period of about 15-20 minutes. In his cross-examination a suggestion has been put to this witness that accused Manoj and Sujeet had also received the injuries. However, these suggestions are denied by the witness. Similarly, a suggestion has been put that this witness alongwith Dewaji Parate, Manoj Parate. Prem Parate, and Balchand Parate had assaulted Manoj Gedam and Sujeet Gedam by swords and crowbar. P.W. 3 Dewaji Parate, father of the deceased is not examined as eye witness, but a witness to corroborate the statements of other eye witnesses. He has stated that he came to know about the said assault from Prem who informed him that accused had attacked Manoj near their shop. He stated that he alongwith his wife had taken their injured son Manoj to the hospital and till he was in the hospital, no report was lodged with the police by any of them. In his cross-examination this witness has admitted that he was prosecuted by police for offence under Section 420 of the Indian Penal Code and for other offences and that he was acquitted in all cases and that he had never suffered any imprisonment. 13. In his cross-examination this witness has admitted that he was prosecuted by police for offence under Section 420 of the Indian Penal Code and for other offences and that he was acquitted in all cases and that he had never suffered any imprisonment. 13. The next eye witness who has been examined by the prosecu-tion is P.W. 12 Dashrath Nimje. He has stated in his deposition that on 6-2-1993 when he was returning home on a bicycle, he saw that accused Moreshwar, Sudhakar, Babulal, Manoj Gedam, Sujeet Gedam and Bharat Gedam came to the shop of Manoj Parate and Moreshwar, Sudhakar and Babulal surrounded the deceased Manoj Parate and accused Manoj, Sujeet and Bharat came from the back side of the shop and accused Manoj Gedam gave blow of iron crow bar on the head of Manoj Parate and after receiving the blow, Manoj Parate fell down and after he fell down, accused Bharat and Sujeet assaulted him by bamboo stick. He has further stated that accused Moreshwar, Sudhakar and Babulal were instigating them. 14. From the evidence of these three eye witnesses, one fact which specifically emerges is that accused No. 1 Manoj had given one blow to deceased Manoj Parate on his head with crow bar. This fact is also admitted by the defence which is evident from the suggestion made by the defence to P.W. 2 Raju. Second fact which is evident is that Sujeet and Bharat appear to have assaulted deceased by means of a stick after the first blow was given by accused No. 1 Manoj Gedam and after the deceased had fallen down and had become unconscious. In this background, it is firstly difficult to accept the submission of learned APP appearing on behalf of the State who has submitted that accused Sujeet and Bharat also shared the common intention along with Manoj Gedam and, therefore, they were equally guilty under Section 302 read with Section 34 of the Indian Penal Code. He submitted that even though accused Sujeet and Bharat were carrying stick, it was sufficient to hold that they are guilty under Section 302 read with Section 34 of the Indian Penal Code as they shared common intention. This submissions made by learned APP cannot be accepted. At the first instance, prosecution has not been in a position to squarely bring out the genesis of the offence. This submissions made by learned APP cannot be accepted. At the first instance, prosecution has not been in a position to squarely bring out the genesis of the offence. It is an admitted position that appellants herein had lodged report with the Police Station on the same day i.e., 6-2-1993 at about 12.30 a.m. It is also an admitted position that all the accused had suffered injuries which have been proved by the doctor who has examined accused which has been brought on record vide exhibits 48, 50, 51 and 53 and Dr. Khobragade has stated in his evidence as prosecution witness (PW 8) that he had examined accused Manoj Gedam and Sujeet Gedam at the instance of the police. Sofar as P.W. 1 Balchand is concerned, he has not attributed any role to accused Sujeet and has only taken the name of accused Manoj and Bharat. Sofar as PW 2 Raju Chanekar is concerned, he also has stated that accused Manoj and Bharat assaulted deceased Manoj Parate. Only PW 12 Dashrath has stated that accused Bharat and accused Sujeet had assaulted the deceased after he was assaulted by Manoj and after he became unconscious and had fallen on the ground. Under these circumstances, it cannot be said that accused Sujeet and accused Bharat can be held guilty for having committed offence under Section 302 read with Section 34 of the Indian Penal Code for having shared common intention of committing the murder of deceased Manoj Parate. In our view, therefore, sofar as accused Sujeet Gedam and accused Bharat Gedam are concerned, there is no evidence adduced by the prosecution to convict them under Section 302 read with Section 34 of the Indian Penal Code. However, the said evidence of P.W. 1 Balchand, P.W. 2 Raju and P.W. 12 Dashrath establishes that they had assaulted deceased Manoj by means of stick. There are no grievous injuries on the person of the deceased apart from injury No. 1 which was caused by virtue of blow given by Manoj Gedam with the help of crow bar. The other injuries are minor abrasions and, therefore, at the highest, original accused No. 2 Sujeet and original accused No. 4 Bharat can be said to be guilty for having committed an offence under Section 323 of the Indian Penal Code. 15. The other injuries are minor abrasions and, therefore, at the highest, original accused No. 2 Sujeet and original accused No. 4 Bharat can be said to be guilty for having committed an offence under Section 323 of the Indian Penal Code. 15. Sofar as accused No. 1 Manoj Gedam is concerned, there is clear evidence on record to show that he had given one fatal blow on the head of deceased by iron crow bar which had caused the death of deceased Manoj Parate. However, the other circumstances on record cannot be overlooked. Firstly, these accused persons had also suffered injuries though these injuries are not very serious injuries, yet these injuries will have to be taken into consideration especially when the defence has boldly come out with a case of exercising their right of private defence which is evident from the suggestion put to P.W. 2 Raju Chanekar in the cross-examination and also it can be inferred from the various circumstances, such as, the complaint which has been filed prior in point of time to the complaint filed by the present complainant. Thirdly, the fact that there was previous enmity between the two groups and that the son of original accused No. 3 Moreshwar was killed by deceased Manoj Parate and that all these complainants and their witnesses were accused in the commission of the said offence and who were acquitted only one month prior to the incident i.e., in January 1993 and thereafter this incident has taken place on 6-2-1993. Another fact which also cannot be overlooked is that father of deceased (P.W. 3 Dewaji) in his cross-examination has admitted that he was prosecuted by the police in at least 10-15 cases including the murder case for having murdered son of Moreshwar and that in all these cases said Dewaji has been acquitted. Under these circumstances, it is possible and probable that deceased and other witnesses may have initially started the fight in which present accused were injured and in retaliation the appellant No. 1 Manoj had given one blow on the head of deceased Manoj Parate. Thus, the possibility of a sudden fight and appellant Manoj retaliating after he was attacked cannot be ruled out. Thus, the possibility of a sudden fight and appellant Manoj retaliating after he was attacked cannot be ruled out. However, at the same time looking at the injuries suffered by deceased Manoj on his head which have been described hereinabove, in the evidence of doctor who performed the post-mortem, it cannot be said that appellant No. 1 Manoj had exercised his right of private defence. It is obvious that he has exceeded in his right of private defence and, therefore, it will have to be held that he is guilty of having inflicted the said injury which was likely in the ordinary course of nature to cause death. Under these circumstances, it will have to be held that the case of accused No. 1 would fall under Section 304, Part-I of the Indian Penal Code. The finding of the Trial court to that extent will have to be quashed and set aside and the offence will have to be altered from Section 302 to Section 304, Part-1 of the Indian Penal Code. Mr. Daga, learned Advocates for appellants has submitted on the point of sentence that appellant No. 1 Manoj has been in jail from 8-2-1993 to 11-5-1993 and thereafter he is in jail from 21-6-1997. He has submitted that during this period while he is in jail, he has suffered both mentally and physically and he had to be admitted in the hospital on various occasions and he had also suffered a nervous break-down as he had refused to take food or did not have conversation with anybody and was undergoing an acute form of depression. He has submitted that appellant No. 1 has no other criminal antecedents and under these circumstances, this Court may consider giving him light sentence. Learned APP on behalf of the State has vehemently opposed this submission, he submitted that the appellant has given one single blow on the head which has practically cracked the skull of the deceased and had resulted in instantaneous death. He submitted that maximum punish-ment should be awarded to appellant No. 1. Taking an overall view of the evidence on record and the peculiar circumstances under which the offence has been committed, we fell that the ends of justice would be met if the appellant No. 1 Manoj is sentenced to undergo rigorous imprisonment for a period of eight years. Sofar as original accused Nos. 2 and 4 viz. Taking an overall view of the evidence on record and the peculiar circumstances under which the offence has been committed, we fell that the ends of justice would be met if the appellant No. 1 Manoj is sentenced to undergo rigorous imprisonment for a period of eight years. Sofar as original accused Nos. 2 and 4 viz. appellant No. 2 and appellant No. 3 herein are concerned, they may be released on the sentence which they have already undergone which is more than to which they could be punished under Section 323 IPC. Accused Sujeet/appellant No. 2 was in jail from 14-3-1993 to 21-7-1997 while accused Bharat/appellant No. 3 herein is in jail from 16-1-1995 till today. It is clarified that the sentence which is undergone by appellant Manoj Gedam may be set off while calculating the sentence which is imposed upon him. 16. In the result, appeal is partly allowed. Judgment and order of the Sessions Court is set-aside and appellant No. 1 is sentenced to undergo imprisonment for a period of eight years and is convicted under Section 304, Part-I of the Indian Panel Code. Appellants 2 and 3 are convicted under Section 323 of the Indian Penal Code and are directed to be released on the basis of sentence which they have already undergone. Sofar as appellant No. 2 is concerned, he is on bail and his bail bonds stand cancelled. Appellant No. 3 be released forthwith if not required in any other case. Appeal allowed partly.