JUDGMENT P. K. TRIPATHY, J. — Accused Siba Khatua being convicted for the offence punishable under Section 304 Part-II, I.P.C. and accused persons Kusa Khatua, Balabhadra Dehuri and Naba Khatua each having been convicted for the offence under Section 323, I.P.C. have preferred this Criminal Appeal as against the im¬pugned judgment delivered on 31.10.1987 in Sessions Trial Case No.38 of 1986 of the Court of Sessions Judge, Keonjhar. 2. The facts and circumstances leading to the aforesaid order of conviction is noted in brief in the following manner:- It reveals from the F.I.R. that informant Chandramani (P.W. No.1) and Gajendra (P.W. No.2) are brothers. Laxmidhar Samal (P.W. No.3) and Babulla (not examined) are the sons of Gajendra. The occurrence took place on 27.12.1985. That was a Friday. In the preceding Thursday night somebody pelted stones to the house of the sister of the informant. She reported it to P.W. No.3. They were suspecting accused Siba Khatua to be the person behind that mischief. Without naming anybody, P.W. No.3, in open street and in presence of accused Siba Khatua scolded the unknown culprit who pelted stones in the previous night. Because of that accused Siba Khatua picked up quarrel and chased P.W. No.3 to assault. In retaliation P.W. No.3 entered into his house and returned with a lathi. Because of that Siba Khatua left that spot and returned with the remaining accused persons (who were six in numbers). In the meantime, Babulla, the other son of P.W. No.2, went to the paddy field and intimated about the quarrel to P.W. No.2. On getting that information P.W. No.2 immediately rushed to the house. P.W. No.1 followed him a little after. P.W. No.2 and his two sons standing on one side and the accused persons standing on the other side were quarrelling and exchanging words. P.W. No.1 after his arrival at he spot, dissuaded the sons of P.W. No.2 to keep quiet. He also requested the accused persons not to continue with the quarrel. Without listening to that request, accused persons, being variously armed, attacked P.W. No.2 and his sons. In that process, as alleged, accused Kusa Khatua and Balabhadra Dehury inflicted lathi blows and caused injuries on P.W. No.2. In the process of dissuading accused persons P.W. No.1 was also assaulted by lathi by accused Naba Khatua. Without listening to that request, accused persons, being variously armed, attacked P.W. No.2 and his sons. In that process, as alleged, accused Kusa Khatua and Balabhadra Dehury inflicted lathi blows and caused injuries on P.W. No.2. In the process of dissuading accused persons P.W. No.1 was also assaulted by lathi by accused Naba Khatua. In the same process of dissuading both the parties from the quarrel Baidhar, the de¬ceased, was attacked by Siba Khatua who dealt blows by means of cycle chain causing severe bleeding injury. During the course of the occurrence accused Badan Dehuri was pelting stones at the informant parties. After such assault, on the aforesaid injured and deceased persons, accused persons left the place of occur¬rence. The injured were brought to the hospital and during treat¬ment, Baidhar succumbed to the injuries on the self-same day. The occurrence took place at about 10 A.M. on 27.12.1985 and on the same day, at about 2 P.M. P.W. No.1 verbally reported the matter at the Police Out Post and that was noted in the Station Diary vide Ext.3. Extract of the same was treated as the F.I.R. and marked Ext.3/3. On the same day the accused party also lodged a report and P. S. Case No.126 of 1985 corresponding to G.R. Case No.401 of 1985 was registered because some of the accused persons had sustained injuries. 3. On the basis of the aforesaid allegation, trial Court framed charges for the offences under Sections 147, 323/149 and 302/149, I.P.C. against all the accused persons. Separate charge was framed u/s. 323, I.P.C. against accused Kusa Khatua and Balabhadra Dehury for causing simple hurt to P.W. No.2 by use of lathi. Similarly, separate charge for the offence u/s 323, I.P.C. was framed against accused Naba Khatua for causing simple hurt to P.W. No.1 by use of lathi. Separate charge was also framed u/s 336, I.P.C. against accused Badan Dehuri for pelting stones and endangering lives of P.Ws. 1 and 2. Separate charge was also framed for the offence u/s 302, I.P.C. against accused Siba Khatua for causing murder of deceased Baidhar. 4. To substantiate the accusation prosecution examined as many as 11 witnesses, proved 18 exhibits and M. Os. I to VII, out of which M.O.I is the cycle chain and M.O.V a broken Bamboo lathi besides M.O.II a lathi. Separate charge was also framed for the offence u/s 302, I.P.C. against accused Siba Khatua for causing murder of deceased Baidhar. 4. To substantiate the accusation prosecution examined as many as 11 witnesses, proved 18 exhibits and M. Os. I to VII, out of which M.O.I is the cycle chain and M.O.V a broken Bamboo lathi besides M.O.II a lathi. Accused persons tendered no oral evidence but exhibited the injury reports of accused Siba Khatua (Ext.A/a), Nabanghana Khatua (Ext.B/a) and Kusa Khatua (Ext.C/a). 5. On assessment of evidence on record, the prosecution case and the defence plea, learned Sessions Judge recorded his findings and concluded that- Deceased Baidhar suffered a homicidal death due to the injury caused by accused Siba Khatua but that amounts to culpable homicide not amounting to murder. Accordingly, he acquitted the accused Siba Khatua from the charge under Section 302, I.P.C. but convicted under Section 304-Part-II I.P.C. For that conviction, he sentenced Siba Khatua to undergo R.I. for seven years. He also found that separate charge u/s. 323, I.P.C. had been proved against each of the accused persons Kusa Khatua, Balabhadra Dehury and Naba Khatua. He sentenced each of them to undergo R.I. for one year for such offence. He acquitted the accused Badan Dehuri from the charge u/s 336, I.P.C. He also acquitted all the accused persons from the charge u/ss 147, 323/149 and 302/149, I.P.C. 6. Mr. D. P. Dhal, learned counsel for the appellant argued that injuries on the accused persons remained unexplained by the prosecution witnesses, explanation by some of them that the accused persons sustained such injuries while scaling the fence is not supported by the F.I.R. or their statement under Section 161, Cr.P.C. Therefore, evidence of the P.Ws. who were interested party in the clash needed close scrutiny before accept¬ing the same. Accused persons in course of their trial not only denied to the allegation of assault alleged against them but also put forth their contention that they were the victim of the assault. Therefore, it is not a case of exercise of right of private defence but a case of group clash ruling out the possi¬bility of any intention or knowledge of the accused persons to commit any of the alleged crime as against the deceased or the P.Ws.1 and 2. Therefore, it is not a case of exercise of right of private defence but a case of group clash ruling out the possi¬bility of any intention or knowledge of the accused persons to commit any of the alleged crime as against the deceased or the P.Ws.1 and 2. The trial Court without understanding and appreci¬ating the case of the accused persons in that manner has wrongly convicted them. Accordingly, he argued to grant the benefit of doubt to the accused persons and to acquit them. 7. Mr. Aswini Kumar Mishra, learned Standing Counsel on the other hand advanced argument supporting to the reasoning as well as the findings recorded by the trial Court and prayed to dismiss the appeal. 8. P.Ws. 1 and 2 are the injured and eye-witnesses to the occurrence. P.W. No.3 being the son of P.W. No.2 is also an eye-witness to the occurrence. P.W. No.4, Gopal Khatua is the son of the deceased Baidhar Khatua. He has deposed as an eye-witness to the occurrence. Besides that P.W. No. 5, Binod Samal has been examined as an independent eye-witness to the occurrence. P.W. No.6 is a co-villager of the parties and he was a witness to seizure of the cycle chain, M.O.I. and a lathi under seizure list Exts. 1 and 2 respectively. P.W. No.7, Dr. Md. Salim Ansari was the Doctor who treated the injured persons and granted injury certificates Ext.4/1 in favour of the deceased, Ext.5/1 in favour of P.W. No.1, Ext.6/1 in favour of P.W. No.2, Ext.7/1 in favour of one Krushna Chandra Samal, Ext.A/a in favour of accused Siba Khatua, Ext.B/a in favour of accused Nabaghana Khatua and Ext.C/a in favour of accused Kusa Khatua. P.W. No.8, Dr. Sudhansu Sekhar Bal was the Doctor who conducted post mortem examination on the dead body of the deceased Baidhar on 28.12.1985 and proved the post mortem report Ext.8. He also examined the cycle chain, M.O.I. and provided his opinion report vide Ext.9/1. Out of the remaining three witnesses, P.W. No.9 is the contestable who escorted and identified the dead body. P.W. No.10 is the A.S.I. of Sainkul Out Post and P.W.11 is the Officer-in-Charge of Ra¬machandrapur Police Station. They have stated about the respec¬tive investigation conducted by each of them. 9. At the time of argument, large number of decisions were cited by the appellants but a few were placed before the Bench. P.W. No.10 is the A.S.I. of Sainkul Out Post and P.W.11 is the Officer-in-Charge of Ra¬machandrapur Police Station. They have stated about the respec¬tive investigation conducted by each of them. 9. At the time of argument, large number of decisions were cited by the appellants but a few were placed before the Bench. Before assessing the evidence vis-a-vis the contention of the parties, it is appropriate to place on record the aforesaid citations which was placed during the course of argument. 10. Appellants have relied on the cases of Periasami and Anr. v. State of Tamil Nadu, JT 1996 (8) S.C. 449 and State of U.P. v. Lakhmi, JT 1998 (1) SC 679 in support of the argument that even if the accused persons failed to take a specific de¬fence plea of right of private defence, but if the evidence on record makes out such a situation then notwithstanding absence of such plea the Court is not required to decline to consider such a plea. In Periasami (Supra) on distinguishable facts and circum¬stance the Apex Court found the suffering party to be the aggressor and, therefore, notwithstanding absence of a plea of mutual quarrel, the circumstance was considered to modify the conviction to culpable homicide not amounting to murder. In the case of State of U.P. (supra) also a similar decision was taken for modi¬fying the order of conviction to one of culpable homicide. Appellants have also relied on the case of Yogendra Morarji v. The State of Gujarat, AIR 1980 Supreme Court 660 in which the Apex Court has stated about the method in which the principle of right of private defence of body is to be assessed and appreciat¬ed. On a distinguishable facts and circumstance all the accused being surrounded and attacked by armed people. On a distinguishable facts and circumstance all the accused being surrounded and attacked by armed people. Their Lordships granted the benefit of culpable homicide by altering the charge from under Section 302, I.P.C. Appellants also relied on the cases of State of Orissa v. Sarat Chandra Puri 69 (1990) C.L.T. 341, Kanchansingh Dholaksingh Thakur v. State of Gujarat, AIR 1979 S.C. 1011 , Lakshmi Singh and others etc., v. State of Bihar, AIR 1976 S.C. 2263 and Krushna Podha and three others v. State of Orissa, (1992) 5 OCR-529 in support of the contention that when the injuries on the persons of the accused remain unexplained by the prosecution, then the version of the prosecution witness loses credibility and the benefit arising out of that circumstance should go in favour of the accused persons. On different facts and circumstances in each of the aforesaid citations, the authorities have propounded that when the injury is serious/grievous and not superficial, then prosecution is duty bound to explain the injury sustained by the accused and in the event of failure, the evidence of the prosecu¬tion witnesses should be assessed accordingly touching on their credibility. 11. Though the accused/appellants have not argued anything on the finding recorded by the trial Court relating to the homi¬cidal death of the deceased, yet that being the sine qua non to proceed with the charge be it under Section 302 or 304, I.P.C., therefore, this Court perused the evidence of P.W. Nos. 8 and 9 and finds that the deceased suffered a homicidal death because of the depressed injury on the left half of the frontal bone and compound fracture on the right frontal and parietal bones. In the injury report, Ext.4/1 P.W.No.7 only suspected about such frac¬tures and at the time of post mortem examination, P.W. No.8 after dissection found existence of such fractures. Occurrence took place at about 10 A.M. on 27.12.1985. Baidhar was admitted in the hospital and examined by P.W. No.7 at 1 P.M. when he was in unconscious condition and remained as such till his death. In other words, he had gone to coma. According to the evidence of P.W. No.7, Baidhar succumbed to the injuries within 2 to 3 hours after his admission in the hospital. Baidhar was admitted in the hospital and examined by P.W. No.7 at 1 P.M. when he was in unconscious condition and remained as such till his death. In other words, he had gone to coma. According to the evidence of P.W. No.7, Baidhar succumbed to the injuries within 2 to 3 hours after his admission in the hospital. P.W. No.8 has opined that injury found on the dead body of the deceased is possible by M.O.I and that the injury was ante mortem and the death was homicidal. Thus this Court reiterates the findings recorded by the trial Court that Baidhar suffered a homicidal death. 12. On perusal of the evidence on record it is seen that P.Ws. 1 to 5 are consistent in their evidence that accused Kusa and Balabhadra assaulted by means of lathi and caused bleeding lacerated injury on the right side fore head of P.W. No.2 and the evidence of P.W. No.7 and Ext.6/1 corroborates to that evidence. Such evidence also proved on record that accused Naba @ Nabaghan Khatua dealt lathi blow and caused lacerated bleeding injury on the forehead of P.W. No.1. That evidence finds ample corrobora¬tion from the evidence of P.W. No.7 and Ext.5/1. Evidence of the said witness together with the evidence of P.W. No.7 and the injury certificate Ext.4/1 so also the evidence of Dr. S. S. Bal (P.W. No.8) and the post mortem report, Ext.8 and the opinion report, Ext.9/1 prove on record about the injury dealt to the deceased Baidhar by accused Siba Khatua. As has been noted in the preceding paragraph, Baidhar suffered a homicidal death. Though the facts are so established, the accused persons claim right of private defence on the ground that the injured party was the aggressor and caused injury on their body vide the injury cer¬tificates Exts. A/a, B/a and C/a and, therefore, in exercise of right of private defence, if they inflicted injuries then that remains protected under Chapter-IV of the Penal Code vide Sec¬tions 81 and 97, I.P.C. 13. It appears from the evidence of P.W. Nos. 2,3 and 4 that at the time of occurrence after dealing blows accused per¬sons ran away from the spot and two of them jumped over a fence and fell down on the rocky surface. The injury as noted in Ext. It appears from the evidence of P.W. Nos. 2,3 and 4 that at the time of occurrence after dealing blows accused per¬sons ran away from the spot and two of them jumped over a fence and fell down on the rocky surface. The injury as noted in Ext. A/a is that accused Siba sustained three lacerated wounds on his left side skull and right region. Accused Naba sustained such ¬lacerated injury on the forehead and right side skull and accused Kusa sustained the injury of swelling of right arm and the injuries according to P.W. No.7 were simple in nature. P.W. No.7 has stated that the injury in Exts. A/a and B/a are possible by fall on rocky surface. Apart from that, no defence evidence was adduced nor any specific question was put to any of the prosecution witnesses as to who assaulted the said injured ac¬cused persons. Therefore, this case does not come within the purview of the ratio of adverse consequence for non-explaining the injury on the accused persons by the prosecution. Similarly, the plea of right of private defence of persons is conspicuously not made out. Mere proof of injury on the body of the accused persons does not ipso facto prove that they were attacked and assaulted by the informant party. In that context, the appellant referred to and relies on the evidence of P.W. No.4, son of the deceased, to state that the said witness has deposed that the informant party was also armed with lathi and challenged the accused persons. Even that evidence of P.W. No.4 does not make out a case of right of private defence in favour of the accused persons, because he further stated that at the time of occurrence P.W. No.2 stated to the accused persons that if they want to assault his son (P.W. No.3), then let them do so in his pres¬ence. Under such circumstance further evidence of P.W. No.4 that P.W. No.2 also threatened being armed with a lathi, became non-consequential to extend the right of private defence when admit¬tedly by that time accused persons were on the other side of the fence. On the other hand, it is the consistent evidence of the prosecution through P.Ws. 1 to 5 that the accused persons behaved and attacked as the aggressor and caused the injuries on P.Ws.1 and 2 and the deceased. On the other hand, it is the consistent evidence of the prosecution through P.Ws. 1 to 5 that the accused persons behaved and attacked as the aggressor and caused the injuries on P.Ws.1 and 2 and the deceased. For the reasons indicated above, the ratio cited on the aforesaid point are not found applicable in favour of the accused persons in this case. 14. It is the proved fact and circumstance from the evi¬dence of P.W. Nos.1 to 5 and not seriously disputed by the defence that deceased Baidhar was not a person belonging to the informant party. His presence at the spot is only to subside the confronta¬tion and to make a settlement between the parties. Therefore, the act of accused Siba in dealing a blow by the cycle-chain, which was so severe that it caused compound fracture of skull bones, sufficiently proves that accused Siba is guilty of culpable homicide. Trial Court has already recorded from the facts and evidence on record that such conduct of accused Siba does not amount to murder but punishable under Part-II of Section 304, I.P.C. After perusal of the evidence on record this Court does not find any illegality or perversity in such finding recorded by the trial Court. 15. For the reasons indicated above, this Court finds no merit in the argument of the appellant to interfere with the order of conviction. Be that as it may, the occurrence took place in the year 1985 and in the meantime a period of about one and half decade have already lapsed. The maximum punishment provided for the offence under Section 323, I.P.C. is imprisonment for one year or fine of Rs.1,000/- or with both. Regard being had to the facts and circumstances leading to the offence, this Court thinks it proper to modify the substantive sentence by imposing the sentence of fine only. Accordingly, for their conviction under Section 323, I.P.C., accused Kusa Khatua, Balabhadra Dehuri and Naba @ Nabaghan Khatua are each sentenced to pay a fine of Rs.1,000/- (rupees one thousand) and in default, to suffer rigor¬ous imprisonment for a period of three months. If the fine is paid, that shall stand forfeited to the State. So far as accused Siba Khatua is concerned, this Court reduces the substantive sentence to rigorous imprisonment for five years, as noted above, only because of considerable lapse of time in between. If the fine is paid, that shall stand forfeited to the State. So far as accused Siba Khatua is concerned, this Court reduces the substantive sentence to rigorous imprisonment for five years, as noted above, only because of considerable lapse of time in between. The Criminal Appeal is accordingly dismissed with modifica¬tion in sentence to the aforesaid extent. Crl. Appeal dismissed.