K. K. MISRA, J. ( 1 ) THIS criminal appeal has been preferred against the judgment and order dated 4. 2. 82 passed by shri D. G. Srivastava, Addl. Sessions Judge. Gyanpur, Varanasi, in Sessions Trial No. 43 of 1981 whereby he convicted the appellants Ram Lakhan, Raghunath and Vikrama under Sections 302/34,325/34 and 323/34 I. P. C. and sentenced each of them to undergo imprisonment for life, one years R. I. and 3 months R. I. under the respective counts. However, all the sentences were directed to run concurrently. ( 2 ) THE prosecution version as contained in the F. I. R. was that an altercation had taken place on the day of incident, i. e. , 31. 10. 1980 at about 7. 00 A. M. between Kalu Harijan (deceased), the father of the complainant Banafar and Ram Lakhan Harijan on account of uprooting of an Amola (mango sapling ). On the same day at about 1. 00 P. M. , the father of the complainant came to his house after ploughing the field and after taking his meal he came out of the house. At that time, his collaterals, namely, Ram Lakhan and Raghunath, sons of Banwari and Vikrama son of Ram lakhan Harijan, armed with Lathis came there and hurled abuses saying that he always used to uproot their Amola (mango saplings ). So saying, they began to assault Kalu with Lathies. On the cries raised by the deceased and his wife, the complainant and Dukhi son of Baul Harijan who were weaving Galaicha (carpet) at some distance at the house of Heera Harijan ran towards the place of occurrence. In the meantime, other villagers had also reached the place of occurrence. When they intervened and tried to pacify the assailants, they gave Lathi blows to him (informant banafar) and his mother also. The complainant also assaulted Ram Lakhan and Raghunath in his defence with Danda picked up from nearby. The father of the complainant had received many head injuries and he had become unconscious. The deceased succumbed to his injuries near gyanpur Hospital when he was being taken there by the complainant along with Dukhi and heera. ( 3 ) THE F. I. R. of the incident Ex. Ka. 1 was lodged by PW 1 Banafar, son of the deceased at 2. 50 p. M. on 31. 10. The deceased succumbed to his injuries near gyanpur Hospital when he was being taken there by the complainant along with Dukhi and heera. ( 3 ) THE F. I. R. of the incident Ex. Ka. 1 was lodged by PW 1 Banafar, son of the deceased at 2. 50 p. M. on 31. 10. 1980 at P. S. Gyanpur, situate at a distance of 3 kms from the place of occurrence. PW 4, Surendra Nath Rai, Station Officer, P. S. Gyanpur investigated the case. The inquest of the dead body of the deceased was conducted by him in Gyanpur Hospital and after completion of other papers, the dead body was sent for post mortem. He went to the place of occurrence and collected the blood stained and plain earth from there and kept it sealed in two containers. Site plan was prepared. He searched the house of the accused persons. He found blood stained lohbanda Lathi with bloodstains in the house of accused Raghunath. The same was taken in possession. ( 4 ) PW 7, Dr. J. S. Pawar conducted the post mortem examination on the dead body of the deceased on 1. 11. 80 at 10 A. M. He found that the deceased was aged about 65 years and about 1/2-3/4 day had passed since he died. He found the following ante mortem injuries on his person. 1. Lacerated wound 3 cms x 1 cm x bone on left side of head, 5 cm above the left eyebrow outer end. Linear fracture of parietal and temporal bone present under injury. 2. Lacerated wound 4 cm X 1 cm X bone on top bf head in horizontal direction. Linear fracture of right parietal and temporal bones, 5 cm under injury No. 2. 3. Lacerated wound 3 cm x 0. 5 cm x bone meeting injury No. 2 at right angle 8 cm above the root of nose in vertical direction. 4. Multiple abrasions in an area 1 cm x 0. 5 cm on the back of left elbow. ( 5 ) THE Doctor opined that the death had occurred due to coma as a result of injuries on head. He further found that the injuries sustained by the deceased were sufficient in ordinary course of nature to cause death. ( 6 ) PW 6 Dr. Narendra Kumar examined the injuries of Smt. Balni on 31. 10. 80 at 5. He further found that the injuries sustained by the deceased were sufficient in ordinary course of nature to cause death. ( 6 ) PW 6 Dr. Narendra Kumar examined the injuries of Smt. Balni on 31. 10. 80 at 5. 15 P. M. He found the following injuries on her person: 1. Diffused swelling on lower part of right forearm, marked bony tenderness over lower end of radius. Contusion 2 cms x 2 cms on dorsum of right wrist joint. Advised x-ray of right wrist. 2. Abrasion 1 cm x 1/2 cm on lower part of left forearm, outer side ( 7 ) PW 7 Dr. J. S. Pawar also examined the injuries of Smt. Balni wife of the deceased on 6. 11. 1980 and took X-ray of her right wrist. There was comminuted fracture in the lower end of radius ( 8 ) PW 6 Narendra Kumar also examined the injuries of the complainant Banafar on 31. 10. 80 at 5 p. M. and found the following injuries on his body: 1. Lacerated wound 7 cms x 1 cm x scalp deep on left side of scalp, 8 cms above left ear. 2. Lacerates wound 2 cms x 1 cm x skin deep on left side of forehead. 3. Abrasion on left forearm, 2 cm x 1/2 cm on lower part outer side. 4. Abrasion 2 cms. x 1/2 cm over right lateral condyle elbow. 5. Abrasion 2 cms x 1/4 cm on inner side of right great thumb. ( 9 ) PW 7 Dr. J. S. Pawar also examined the injuries of accused Ram Lakhan on 1. 11. 1980 at 3. 20 p. M. and he found the following injuries on his body: 1. Two inflamed overlapping lacerated wounds 5. 5 cms x 2 cm on right side of head, 10 cms above right ear with swelling all around. 2. Bluish bruise 2 cm x 1. 5 cm on the back of left forearm middle. 3. Two parallel bluish bruises in an area 12 cms x 7 cm on right leg upper part inner aspect with swelling. 4. Scabbed abrasion 1. 5 cm x 0. 25 cm on inner side of right knee. ( 10 ) THE doctor opined that all the injuries were simple about a day old and caused by blunt weapon. 3. Two parallel bluish bruises in an area 12 cms x 7 cm on right leg upper part inner aspect with swelling. 4. Scabbed abrasion 1. 5 cm x 0. 25 cm on inner side of right knee. ( 10 ) THE doctor opined that all the injuries were simple about a day old and caused by blunt weapon. ( 11 ) THE same Doctor examined the injuries of accused Raghu Nath on 1. 11. 1980 at 3. 10 P. M. and he found the following injuries on his person: 1. Inflammed lacerated wound 4 cm x 1 cm x scalp on right side of head, 10 cms above right eyebrow. 2. Bluish bruise 5 cm x 4 cm on the right side of face under right eye lower lid and surrounding area. 3. Bluish bruise 5 cm x 3 cm on left infra-scapular region of back with a firm black scabbed abrasion. ( 12 ) ACCORDING to the Doctor, all the injuries were simple, about day old and caused by blunt weapon. ( 13 ) IN support of the prosecution case, eight, witnesses were examined in all. PW 1 Banafar was the complaint and son of the deceased and an eyewitness of the occurrence and PW 2 Dukhi was also an eyewitness who was weaving carpet with P. W. 1 Banafar at the house of Heera. Other witnesses included Doctors, Investigating Officer and others of formal nature. ( 14 ) THE accused appellants in their statements recorded under Section 313 Cr. P. C. , denied the prosecution story and pleaded false implication. Ram Lakhan and Raghunath pleaded that the complainant side was the aggressor. Vikarma pleaded that he was not even present at the spot. One D. W. 1 Gama was examined to back the defence version. ( 15 ) THE trial court found the case set up against the accused appellants to be truthful and convicted and sentenced them as above. ( 16 ) WE have heard Sri S. P. Srivastava, counsel for the appellants and Sri S. S. Yadav, learned a. G. A. from the side of the State. ( 17 ) THE main ground of attack of the learned counsel for the appellants is that the complainant party was the aggressor and the accused persons caused injuries in self defence and this is fortified by the injuries sustained by the two accused Ram Lakhan and Raghunath. ( 17 ) THE main ground of attack of the learned counsel for the appellants is that the complainant party was the aggressor and the accused persons caused injuries in self defence and this is fortified by the injuries sustained by the two accused Ram Lakhan and Raghunath. He further submitted that the accused persons were entitled to right of private defence as they caused injuries to the complaint party in self-defence. ( 18 ) ON the other hand, it is contended by learned A. G. A. that the incident originated out of the uprooting of a mango sapling in regard to which a hot altercation had taken place in the morning before the present incident took place. In order to teach a lesson to the complainant party, the accused persons came at the house of complainant armed with Lathis and assaulted the deceased and others. ( 19 ) WE should relate here the gist of the deposition of the two eyewitnesses ( 20 ) PW 1 Banafar deposed that his father after ploughing the field, returned at his house at 12 oclock. He further deposed that he came to the house after weaving the Galaicha and after taking meal again went to weave the Galaicha at the residence of Heera which was situate at a distance of 1-1/2 furlong from his house. When he was weaving Galaicha he heard the cries of his mother and father that they were being beaten, making a call to save them. PW 2 Dukhi was also waving Galaicha there with him. He and Dukhi hearing the cries, rushed to the spot. They saw that three accused persons were assaulting his father and mother with Lathis. All the accused persons were armed with Lathis. When he objected, then all these accused assaulted him also. He then also plied Lathi on the accused in order to save himself and his parents. After the assault, the accused persons fled towards west. His father fell down due to injuries sustained by him and became unconscious. He took his father to the Hospital at Gyanpur and while he was in the way, his father succumbed to his injuries near Gyanpur Hospital. He and his mother are injured. The wrist of his mother was found fractured. His father and mother had fallen down hereafter also the accused persons continued to assault them. He took his father to the Hospital at Gyanpur and while he was in the way, his father succumbed to his injuries near Gyanpur Hospital. He and his mother are injured. The wrist of his mother was found fractured. His father and mother had fallen down hereafter also the accused persons continued to assault them. The accused Raghunath had given a kick to his mother due to which she had fallen down on the ground. He admitted that he plied two Lathi blows in defence which hit accused Ram Lakhan and Raghunath. He further admitted hat the accused Ram Lakhan and Raghunath had sustained injuries on the head and blood was oozing out of the injuries. But he emphatically denied the suggestion that his brother Moti had uprooted the mango sapling; that they attacked the accused Ram Lakhan and Raghunath with Lathi and that the accused person plied Lathi in their defence. ( 21 ) PW 2, Dukhi deposed that at about 1 P. M. on the date of incident, he was weaving Galaicha at the residence of Heera. When he heard the cries of the Kalu and his wife, he rushed to the spot with the informants version in material particulars. The injuries of the accused Ram Lakhan and raghunath stand explained by his testimony also. ( 22 ) AFTER going through the evidence on record, we are of the opinion that the submission of the learned counsel for the appellants is liable to be rejected and that of learned A. G. A. deserves to be accepted it is there in the F. I. R. first version of the prosecution) that an altercation had taken place between the accused and the deceased in the morning regarding uprooting of an Amola (mango sapling) and when the deceased came to his house after ploughing the field, the accused persons armed with Lathis came there and assaulted him and others. The contention of the learned counsel for the appellants that the complainant party was the aggressor is also belied from the fact that Smt. Balani, wife of the deceased had also sustained injuries in the incident. It is not expected of a village lady to follow her husband going to assault someone out of her house to a considerable distance, which according to defence, is supposed to be place of occurrence. It is not expected of a village lady to follow her husband going to assault someone out of her house to a considerable distance, which according to defence, is supposed to be place of occurrence. Merely from the fact that Smt. Balni was not examined at the trial, the prosecution story cannot be disbelieved. She had been medically examined and was found to have sustained two injuries. Looking to the standard and atmosphere of village folk, it was natural that a village lady was not expected to be examined at the trial but only her non-production at the trial does not make the prosecution case doubtful. The incident had taken place in front of the house of the complainant. While saving his parents, the complainant suffered injuries. He has sufficiently and truthfully explained the injuries of the accused. ( 23 ) RIGHT of private defence arises to those who in the face of imminent peril act in good faith and in no case can this right be conceded to justify an act of aggression. There is no private defence against private defence. Where the accused came to teach a lesson to their enemies and continued to attack the victims even after they fell down, there could be no right of private defence. Non-explanation of injuries on the person of the accused is a factor of great importance and this fact may induce the Court in judging the veracity of prosecution witnesses with considerable care. In a given case, may strengthen the plea of private defence set up by the accused or may create genuine doubt regarding the prosecution case. At the same time, it cannot be laid down as an invariable proposition of law that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand, prima facie, established and burden would shift on the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party. Where the accused had some trivial injuries on non-vital parts but the victim had suffered injuries on vital part, there is no right of private defence. Moreover, we find that the prosecution has completely explained the injuries sustained by the accused. Where the accused had some trivial injuries on non-vital parts but the victim had suffered injuries on vital part, there is no right of private defence. Moreover, we find that the prosecution has completely explained the injuries sustained by the accused. P. W 1 Banafar deposed in his evidence that when he reached his house hearing the cries, he saw that the accused were assaulting his parents with Lathis and when he objected to it the accused assaulted him also. Then he plied Lathi twice in self-defence and in defence of his parents. Similarly, PW 2 Dukhi deposed that the decked Kalu had fallen on the ground after sustaining injuries. The accused thereafter also assaulted the deceased and when Smt. Balni objected, accused Ram lakhan kicked her and she also fell down on the ground. Then the complainant Banafar gave two lathi blows to the accused Ram Lakhan and Raghunath in self-defence and in defence of his parents. Thus, it is amply proved from the evidence of the above two eyewitnesses that the accused sustained some minor injuries when the complainant caused two Lathi blows in defence. The incident took place out of the uprooting of an Amola. The accused persons were suspecting the complainant party for uprooting the sapling. An altercation in that regard had already taken place between the accused and the deceased in the morning and in order to teach a lesson to the deceased, the accused came to the house of the complainant and assaulted the deceased and others. From the above facts, it is clear that the accused were the aggressors and they had no right of private defence. ( 24 ) OTHERWISE also, nothing has been brought on record to show that the accused were falsely implicated in the case. There was no pre-existing enmity between the panics. All the eyewitnesses have given a consistent version of the incident and that corresponds to the injuries sustained by the deceased and two other injured on the prosecution side including an eyewitness. Although PW 1 Banafar is the son of the deceased but his evidence is fully corroborated by PW 2 Dukhi, who has sufficiently explained his presence at the place of incident. Thus, the prosecution has fully proved its case beyond any reasonable doubt. Although PW 1 Banafar is the son of the deceased but his evidence is fully corroborated by PW 2 Dukhi, who has sufficiently explained his presence at the place of incident. Thus, the prosecution has fully proved its case beyond any reasonable doubt. ( 25 ) LEARNED counsel for the appellants lastly submitted that all the injuries were caused by Lathis and, therefore, the intention to cause death cannot be inferred. He urged that the deceased was an old person and the accused persons were not armed with any deadly weapon and therefore, the conviction of the accused under Section 302 IPC cannot be sustained. ( 26 ) WE find force in the above submission of the learned counsel for the appellants. We think it proper to modify the conviction of the appellants to Section 304 Part II IPC read with Section 34 ipc instead of convicting them under Section 302 IPC read with Section 34 IPC. The conviction of the appellants under Sections 323 and 325 read with Section 34 IPC should be maintained. It will be in the interest of justice if the accused appellants are sentenced to five years R. I. and a fine of Rs. 5,000/ and in default of payment of fine to undergo a sentence of six months R. I. for the death of Kalu with the sentences on other counts as awarded by the trial court Excepting the sentence in default of payment of fine, the sentences of the appellants on all the counts should be directed to run concurrently. ( 27 ) WE finally order as under: the appeal is partly allowed. The conviction of the accused appellants Ram Lakhan. Raghunath and Vikrama is converted from Section 302 read with Section 34 I. P. C. to part II of Section 304 i. P. C. read with Section 34 I. P. C. with a sentence of 5 years R. I. and a fine of Rs. 5000/- to be paid by each of them. In default of payment of fine, each of them shall undergo six months further R. I. If the fine is realized, the same shall be paid as compensation to the wife of the deceased Kalu and in her absence, to the other immediate heir of the said Kalu. 5000/- to be paid by each of them. In default of payment of fine, each of them shall undergo six months further R. I. If the fine is realized, the same shall be paid as compensation to the wife of the deceased Kalu and in her absence, to the other immediate heir of the said Kalu. ( 28 ) THE conviction of the three accused appellants under Section 325/34 IPC and 323/34 IPC with sentences as awarded by the trial court are maintained. The substantive sentences of imprisonment shall run concurrently and that in default of payment of fine shall be undergone separately. ( 29 ) THE three accused appellants above named are on bail. The C. J. M. concerned shall cause them to be arrested and sent to jail to serve out the sentences. The compliance be reported within two months. ( 30 ) CERTIFY the judgment to the lower court. . .