Judgment Shiva Kirti Singh and Mridula Mishra JJ. 1. Both the appeals arise out of same judgment whereby the trial Court has convicted appellants, Hajari Pasi and Salim Nadaf for offence under Section 302/34 of the IPC and sentenced to life imprisonment. 2. The prosecution case according to fard beyan of Ashok Jha (PW 8) recorded at Darbhanga Medical College Hospital on 18.2.1987 at 10.45 a.m. alleges that on 17.2.1987 at about 11.00 a.m. one Bhulla Pasi son of Hajari Pasi resident of village Mangarthu PS.Kamtoul, district Darbhanga came to meet deceased Sushil Jha at his house and informed him that he had selected a she buffalo for purchase by Sushil Jha. The deceased Sushil Jha took Rs. 5000/- from his home and proceeded with Bhulla Pasi. The informant also accompanied the deceased on his request. At about 12.30 p.m. all the three reached near house of Bhulla Pasi where two persons were taking toddy in a hut and on their request Sushil Jha also joined them in taking toddy. The informant claims to have sat at a distance of 20-25 yards and allegedly after 10 minutes two persons caught the informant and thereafter Hajari Pasi father of Bhulla Pasi and elder brother of Bhulla Pasi came with Tarchhebi Hasua (a sickle type instrument used for extracting toddy) they entered into the hut and alongwith Bhulla and two others who where present from before they began to assault Sushil, a cousin brother of the informant. The informant quickly ran away straight to his home and he informed his family members including his uncle Ram Chandra Jha PW-6, Maheshwar Jha (father of the deceased, PW-7. They alongwith some villagers proceeded for village Magarthu. In the way on the east of Tektarghat under a tree they found Sushil Jha in injured condition. They lifted him on a cot and brought him to Darbhanga Medical College Hospital where he died during treatment at about 2.30 a.m. 3. After investigation of consequent Kamtoul PS Case No. 9/87, PW-12, SI Bhola Prasad submitted charge-sheet against four persons out of which two accused died after framing of charges and only these two appellants faced the trial leading to their conviction as noticed above. 4. The prosecution in order to prove the charges under Section 302/34 of the IPC has examined altogether 12 witnesses. PW-1, Chalitar Sah has his house situated close to the place of occurrence. 4. The prosecution in order to prove the charges under Section 302/34 of the IPC has examined altogether 12 witnesses. PW-1, Chalitar Sah has his house situated close to the place of occurrence. He has claimed that the deceased in injured condition fell near his house at about 5.00 p.m. in the evening and disclosed" that he had been assaulted by Bhullar Pasi. This witness identified appellant, Salim Nadaf as Bhullar. He has further disclosed that he sent one Parmeshwar Sah to inform father of Sushil Jha and he alongwith some others carried Sushil Jha on a cot to Tektarghat where father of Sushil Jha arrived. He has also stated in cross-examination that he had learnt from mother of Hajari Pasi that revolver of Sushil Jha had fallen down which was picked up by servant of Hajari Pasi who gave it to Basudev Sah who in turn gave it to Jeewachh Jha who produced the same before the Sub Inspector of Police. PW-2, Basudeo Sah, has been tendered. PW-3, Ramdeo Sah, has claimed that he has a shop near the place of occurrence and on hearing hulla at about 4.00 p.m. on the date of occurrence he went to toddy shop. He saw that Sushil Jha (deceased) fired at Bhullar and Bhullar started assaulting Sushil Jha with Tarchhebi Hasua. Both sustained injuries and fell down. He identified appellant, Salim Nadaf as Bhullar. This witness on cross-examination has further stated that due to firing of revolver by Sushil Jha, Bhullar received firearm injury on chest and thereafter Bhullar started assaulting Sushil Jha. 5. PW-4, Jeewachh Jha, is formal and has proved his signature on seizure list in respect of revolver. PW-5, Md. Murtaza, has been declared hostile. 6. PW-6, Ram Chandra Jha, is uncle of deceased. PW-7, Maheshar Jha, is father of deceased.PW-8, as noticed earlier is the informant, Ashok Jha, a cousin of the deceased. PW-9, Dr. A.K. Mallick, has proved post mortem report. PW-10, Sattan Paswan, is Chaukidar who claims to have given information regarding assault upon Sushil Jha to the local police. He has also deposed that accused Salim Nadaf is Bhulla Pasi. PW-11, ASI, Jyotish Prasad recorded the fardbeyan at Darbhanga Medical College Hospital and he has proved the fardbeyan as well as inquest report prepared by him. PW-12, ASI Bhola Prasad Singh took charge of investigation after few days and submitted charge-sheet. He has also deposed that accused Salim Nadaf is Bhulla Pasi. PW-11, ASI, Jyotish Prasad recorded the fardbeyan at Darbhanga Medical College Hospital and he has proved the fardbeyan as well as inquest report prepared by him. PW-12, ASI Bhola Prasad Singh took charge of investigation after few days and submitted charge-sheet. The seven exhibits proved on behalf of prosecution include paragraphs 1 to 42 of the case diary, proved without objection by PW-12. No defence witness was examined but certified copy of FIR including fardbeyan of Kamtout PS Case No. 10/87 has been brought on record as Exhibit A. The Informant of the case is Salim Nadaf one of the appellants who has claimed in his fardbeyan that at about 4.00 p.m. of 17.2.1987 he was assaulted by Sushil Jha leading to firearm injury on his chest: 7. The informant, Ashok Jha PW-8 has claimed to have seen the occurrence from some distance. According to him, the occurrence took place at about 12.40 in the noon and the deceased Sushil Jha was assaulted by Hajari Pasi, his son Bhulla Pasi, elder son of Hajari Pasi and two unknown persons. He has not mentioned anything about loot of money in his fardbeyan nor he has given any reason or motive for the alleged occurrence. He has also not mentioned anything regarding Sushil Jha having a firearm or having caused firearm injury to anyone. Similar is the nature of deposition of PW-6, Ram Chandra Jha, an uncle of the informant and of deceased Sushil Jha. According to PW-6 when he met Sushil Jha in injured condition then Sushil Jha disclosed that he had been assaulted by Hajari Pasi, Bhullar, Bhore, Hasan, Kapileshwar and others, PW-7, Maheshwar Jha, who is father of the deceased has not supported the informant in respect of the claim that informant gave information of the occurrence to him at village home. He has disclosed that on the date of occurrence he had gone to Tektarghat to purchase medicines and when he reached Tektar station then Ashok Jha met him and informed him of the occurrence. He has also claimed that at Tektarghat he met Sushil Jha who disclosed the name of his assailants as Hajari Pasi, Bhore Pasi and Kapileshwar Pasi. He has claimed that alias name of Kapileshwar Pasi is Bhulla Pasi. 8. He has also claimed that at Tektarghat he met Sushil Jha who disclosed the name of his assailants as Hajari Pasi, Bhore Pasi and Kapileshwar Pasi. He has claimed that alias name of Kapileshwar Pasi is Bhulla Pasi. 8. There is no dispute that on the date of occurrence deceased Sushil Jha received sharp cut injuries and he was taken to Darbhanga Medical College Hospital for treatment where he died in course of treatment. In this case the prosecution has adduced two sets of witnesses who have given different version of the occurrence. According to statement of PWs 1 and 3 who are persons available near the place of occurrence, the occurrence took place at about 4 or 5 in the evening. PW-3 has claimed to be a eye- witness and according to him, Sushil Jha was assaulted by appellant Salim Nadaf with Tarchhebi Hasua because Sushil Jha had fired and caused injuries in the chest of Salim Nadaf. On the other hand, the version of the occurrence given by the informant and his relations PWs 6 and 7 is different. According to their version, the occurrence took place at about 12.40 noon and several persons caused injury to the deceased as disclosed by the informant and allegedly by the deceased himself. 9. Before considering the alleged oral dying declaration of the deceased it is relevant to notice that the Doctor has found 11 injuries on his person all caused by sharp cutting weapon. Two of the injuries were found to be grievous and in the opinion of the doctor if the injuries were not treated within 2 to 4 hours the injured was likely to die as a result of those injuries. PW-1, Chalitar Sah, has claimed that the deceased fell down near his house in injured condition and disclosed the name of his assailants as Bhullar Pasi. He has further stated that he saw the injured in unconscious state. That witness has claimed to have carried the injured to Tektarghat with the help of others. Considering the statement and opinion of the Doctor and the statement of PW-1 and PW-3 as noticed above, we do not find version of PWs 6, 7 and 8 reliable and are inclined to believe the version given by PW-1 as he is an independent witness and was available near the place of occurrence. Considering the statement and opinion of the Doctor and the statement of PW-1 and PW-3 as noticed above, we do not find version of PWs 6, 7 and 8 reliable and are inclined to believe the version given by PW-1 as he is an independent witness and was available near the place of occurrence. Thus, the only reliable oral dying declaration of the deceased appears to be disclosure made by PW-1 that the injured Sushil Jha (deceased) named Bhullar Pasi as his assailant and thereafter he became unconscious. 10. Further, on comparing the version of the occurrence disclosed by PW-3 and that given by the informant, we have no option but to accept the version given by PW-3 because PW-3 is independent and has a shop near the place of occurrence. The version given by PW-3 also explains what was claimed by appellant, Salim Nadaf in the criminal case lodged by him vide Exhibit-A. The time of occurrence given by PW-1, PW-3 also appears to be more probable because the injured reached Darbhanga Medical College Hospital in the night hours while still alive and died only during treatment. Had he received injuries in the noon at about 12.40 there was less likelihood of his reaching Darbhanga Medical College Hospital alive because according to the prosecution he was not treated anywhere and taken straight to the Darbhanga Medical College Hospital. 11. Thus, on careful examination of all the evidence available on record as well as relevant circumstances we are of the view that appellant, Hajari Pasi, cannot be held guilty of offence under Section 302/34 of the IPC. Accordingly, he is acquitted of the said charge. It appears that he is serving out sentence in jail. Hence he is directed to be released forthwith unless required in connection with any other criminal case. 12. So far as appellant, Salim Nadaf, is concerned, the material on record particularly statement of PWs 1, 3 as well as of chaukidar PW-10 and the defence of Salim Nadaf Vide Exhibit A leave no manner of doubt that Salim Nadaf was the person having alias name of Bhullr/Bhulla and in any case he has been sufficiently identified as the person who assaulted the deceased with Tarchhebi Hasua causing as many as 11 injuries, two of which were grievous and led to his death. However, the materials on record also disclose that Salim Nadaf, assaulted Sushil Jha (the deceased) when Sushil Jha fired and caused injury to him on his chest. In such circumstances assault by appellant Salim Nadaf must be held to be on account of grave and sudden provocation as well as in exercise of right of his private defence. The question is whether all the injuries inflicted by appellant, Salim Nadaf, on the deceased can be justified on ground of right of private defence or had he exceeded his right of private defence in flicting as many as 11 injuries by a sharp cutting weapon. The nature and number of injuries as well as the nature of weapon leads us to an opinion that appellant, Salim Nadaf, exceeded his right of private defence in causing such large number of sharp cut injuries. However, he had no intention to cause death of the deceased and hence, in the facts of the case, he can only be held guilty of offence under Section 304 Part II of the IPC. He is convicted accordingly. 13. So far as sentence against Salim Nadaf is concerned, it has been submitted that at the time of occurrence he was a young man and probably under influence of toddy he might have exceeded the limits of Private defence but since the occurrence took place in the year 1987 hence a lenient view may be taken in the matter. It appears that Salim Nadaf has spent about 1 year 10 days in custody including the custody during trial. Considering all the facts and circumstances, we are of the view that a rigorous imprisonment for a term of four years will serve the ends of the justice. Accordingly, appellant, Salim Nadaf, is sentenced to rigorous imprisonment for four years. His bail bonds shall be cancelled and he should be forwarded to custody to serve out the remaining sentence. 14. As a result, Criminal Appeal No. 151 of 2001 of Hajari Pasi is allowed whereas Criminal Appeal No. 164 of 2001 of Salim Nadaf, is allowed in part only as indicated above.