R. P. YADAV, J. ( 1 ) THIS Criminal Appeal is directed against the judgment and order dated 13th January, 1982 passed by I Additional Sessions Judge, Moradabad convicting and sentencing the appellants chokhey and Lakhan for life imprisonment under Section 302/34 I. P. C. and six months R. I. 323/34 I. P. C. Both the sentences have been directed to run concurrently. ( 2 ) PROSECUTION case as unfolded in its evidence is as follows. ( 3 ) COMPLAINANT Amar Singh (P. W. 1) and his brothers Net Ram- P. W. 3, Puran and their father bhonda (deceased) were all living separately in separate houses. To the west of the house of bhonda (deceased) is the house of Puran. The house of Bhonda (deceased) faces towards north. To the south of his house lies the Gher of accused appellant Chokhey. The water of the eaves (Olti) of the Chhapper of Bhonda has been falling towards south in the land of Gher of accused appellant Chokhey since last more than 25 years. The accused appellant Chokhey has constructed his Gher about two years back. He is said to have ( 4 ) STARTED constructing a wall adjacent to the house of Puran about two months before the incident, but the same was objected to by Puran. It was therefore, mutually agreed between them that accused appellant Chokhey will not raise the wall any further and the water of the eaves of the Bhondas (deceased) house would continue to fall towards the Ghar of accused appellant chokhey as before. ( 5 ) IT is alleged that on 5. 5. 1980 at about 7. 30 p. m. Bhonda (deceased) was sitting on the chabutra in front of the Bethak of the complainant Amar Singh-P. W. 1. Accused appellant chokhey went there and asked him (Bhonda) to remove his Chhappar himself as he was not willing to allow him to flow the water of the eaves (Olti) of his house in his Gher. Bhonda is said to have declined to accede to his suggestion, where upon some exchange of hot words took place between them. Enraged, accused appellant Chokhey went to the house of Bhonda. (deceased)and pulled down his Chappar. Bhonda (deceased) started abusing him, whereupon, he (Chokhey)along, with accused appellant Lakhan is said to have assaulted Bhonda (deceased) with lathi. Bhonda is said to have declined to accede to his suggestion, where upon some exchange of hot words took place between them. Enraged, accused appellant Chokhey went to the house of Bhonda. (deceased)and pulled down his Chappar. Bhonda (deceased) started abusing him, whereupon, he (Chokhey)along, with accused appellant Lakhan is said to have assaulted Bhonda (deceased) with lathi. It is also alleged that when Netram P. W. 3 and Smt. Hiro w/o Puran came to his rescue, they were also assaulted by the appellants and three other accused (who have been acquitted by the learned sessions Judge ). Hue and cries raised by them attracted the other witnesses including the complainant Amar Singhs mother Kishania, kalwa and Matru. It is also alleged that Netram p. W. 3 had weilded a Danda blow towards accused appellant Lakhan while his father was being assaulted by the accused appellants. Consequently, Lakhan, appellant had also sustained some injuries. ( 6 ) IT is also alleged that the accused appellants had intimidated the complainant Amar Singh (P. W. 1) on account of which, they could not go to the police station immediately. However, when the accused appellants left for the police station, complainant Amar Singh, along with his brother Netram-P. W. 3, mother Smt. Kishanya and father Bhonda (deceased)were going to the police station but his father Bhonda died while on way. They reached there at 2. 30 a. m. on 6. 5. 80 when report Ex. Ka-10 was recorded at the police station on the dictation of the complainant amar Singh (P. W. 1 ). Relevant entries were made in the G. D. registering a case under Section 147, 323 and 302 I. P. C. S. O. Shri Ram Vilas Vimal-P. W. 8 was present at the police station. He took the investigation himself interrogated the witnesses present there and deputed Sub-Inspector shri Ravindra Kumar (P. W. 2) for the arrest of the accused. Accused appellants Chokhey, Lakhan and one Tunda were arrested by him in the same night. S. O. Shri Ram Vilas Vimal - P. W. 8 held the inquest on the dead body in the morning at about 8 a. m. and prepared the inquest report Ext. Ka. 2. Dead body of Shri Bhonda was sent for post-mortem in sealed cover. ( 7 ) DR. S. O. Shri Ram Vilas Vimal - P. W. 8 held the inquest on the dead body in the morning at about 8 a. m. and prepared the inquest report Ext. Ka. 2. Dead body of Shri Bhonda was sent for post-mortem in sealed cover. ( 7 ) DR. M. C. Tripathi of District Hospital, Moradabad, conducted the post mortem examination on the dead body of the deceased on 7. 5. 80 at 3. 45 p. m. He found the following anti mortem injuries on the dead body. :1. Contusions 12 Cm x 7 Cm to 9 Cm x 4 Cm. 2. 5 cm apart from each other, on the right side of head, 7 Cm to 7. 5 Cm above right ear. 2. Contusion 13 Cm x 7 Cm over front of right side of throat extending upto the top of right shoulder. ( 8 ) IN the opinion of the doctor, the aforesaid injuries were caused by blunt object and death was as a result of shock and hemorrhage due to head injury. In his evidence, he stated that the death of the deceased might have taken place around 2 a. m. In the night of 5/6 May, 1980. ( 9 ) THE other two injured Netram and Smt. Hiro were medically examined by Dr. Y. C. Gupta on 6. 5. 80 at 10. 55 p. m. in the night. He had found the following injuries on their person :-Netram : 1) Traumatic swelling all around the left knee joint Complaint of pain in head. Smt. Hiro : 1. Complaint of pain in head 2. Abrasion 0. 5 Cm x 0. 25 Cm on the left side face 1 Cm away From the left angle of mouth. 3. Contusion 3 Cm. x 2 Cm. on the top of right shoulder joint. ( 10 ) IN the opinion of the doctor, the injuries were simple and caused by some hard and blunt object except injury No. 2 of Smt. Hiro which was due to friction against some hard object. ( 11 ) S. O. Shri Ramvilas-P. W. 8 inspected the spot and prepared site plan Ext. Ka. 16 and after completing the investigation, submitted charge sheet Ext. Ka-17 against the accused appellants and three others who were named in the First Information Report on 17. 5. 80. ( 11 ) S. O. Shri Ramvilas-P. W. 8 inspected the spot and prepared site plan Ext. Ka. 16 and after completing the investigation, submitted charge sheet Ext. Ka-17 against the accused appellants and three others who were named in the First Information Report on 17. 5. 80. ( 12 ) THE accused appellants denied the charge and set up a counter-version. According to them, accused appellant Lakhan was assaulted by the prosecution party, whereupon he, in exercise of his right of private defence, caused injuries to Bodha ( deceased) and others in respect of which he had lodged an F. I. R. (Ext. Ka-5) at 00. 45 a. m. on 6. 5. 80. ( 13 ) TOTAL five accused being charge sheeted, the learned Sessions Judge framed the charges under Section 147, 302/149, 323/149 I. P. C. ( 14 ) TO substantiate the charges, prosecution examined in all eight witnesses, two of them namely, complainant Amar Singh-P. W. 1 and P. W. 3 Netram gave an eye account of the incident, whereas, the remaining witnesses were more or less of formal nature. ( 15 ) THE accused appellants examined Dori Singh D. W. 1 to prove their counter version and also relied on the injury report Ex. Kha-1 of Sri Lakhan, appellant, who was medically examined on 7. 5. 80 at 12. 20 p. m. and the following injuries were found on his person :1)Lacerated wound 1/2 cm x 1/2 cm x scalp deep on the left side head 11 cm. above the left ear. 2) Contusion 4 cm x 2 cm on the upper aspect of left foot Bluish in colour. 3) Scabbed abrasion 1 Cm x 1 Cm. on the right medial malleollees, Brown scabs present. ( 16 ) ACCORDING to the opinion of the doctor, the injuries were simple in nature. Injury No. 1 and 2 were caused by some blunt object. Injury No. 3 by friction and their duration was between 1 to 2 days. ( 17 ) THE learned Sessions Judge found the prosecution case established against the appellants whereas participation of the other three accused was found doubtful by him. He, therefore, while acquitting the three other accused, convicted the appellants and sentenced them as aforesaid. ( 18 ) IT is against this order of conviction and sentence that the accused appellants have preferred the present appeal. He, therefore, while acquitting the three other accused, convicted the appellants and sentenced them as aforesaid. ( 18 ) IT is against this order of conviction and sentence that the accused appellants have preferred the present appeal. ( 19 ) WE have heard Shri, P. N. Misra, Senior Advocate, appearing for the appellants and Shri M. L. Shukla, AGA appearing for the State. ( 20 ) LEARNED counsel for the appellants did not advance any argument on the merits of the appeal. His sole submission is that on the facts found proved by the learned Additional Sessions Judge, it was a case of culpable homicide not amounting to murder punishable under Section 304 Part iind of the I. P. C. and not under Section 302 I. P. C. His further submission is that the occurrence took place all of a sudden without any premeditation or preplanning and that the accused appellants did neither intend to cause death of Shri Bhonda nor intended to cause such bodily injury as was likely to cause his death. He also pleaded for a lenient view in the matter of sentence. ( 21 ) IT would be significant to note that the accused appellants did not challenge the happening of the incident. They gave a counter version of the incident, which has been disbelieved by the learned Sessions Judge and in our opinion, he was right in doing so as we will indicate herein after. Prosecution had relied on the evidence of two witnesses namely P. W.-1 Amar singh-complainant and P. W. 3 Netram. According to their evidence, Shri Bhonda was present at the Chabutra when the appellant Chokhey went there and remonstrated him with a warning not to allow the flow of water of eaves (Olti) of his Chappar on the land of his Gher. Bhonday undeterred by his threats told him that water of his eves had been flowing there since last more than 25 years, it shall continue to fall as before. The evidence of both the witnesses further shows that on refusal of Shri Bhonday to stop flowing of its eaves water towards the Gher of the appellant, he got exasperated and pulled down his Chappar, whereupon, Bhonday started hurling abuses at him. The evidence of both the witnesses further shows that on refusal of Shri Bhonday to stop flowing of its eaves water towards the Gher of the appellant, he got exasperated and pulled down his Chappar, whereupon, Bhonday started hurling abuses at him. Appellant Chokhey and appellant Lakhan, who was also present there, gave lathi blows to Bhonday and when he sustained the lathi blows, Netram (P. W. 3) is said to have plied danda which hit Lakhan, the appellant. Both the witnesses have been subjected to a lengthy cros-examination, but they have been consistent on all material points. Their evidence finds full corroboration from the medical evidence and even in the cross-examination, they remained unshaken. There was some delay in lodging the F. I. R. but the same has been satisfactorily explained. The witnesses have also given sufficient explanation for the injuries of Lakhan, appellant. Although it is not the duty of the defence to prove the defence version by cogent and clinching evidence, yet it has to adduce some evidence in order to probabilise the defence theory. In the present case, the version set-up in the F. I. R. and the evidence given by D. W. 1 Dori Singh are quite contradictory to each other. In the report Exht. Ka-5 which was lodged by Lakhan singh, he had recited that complainant and his brother Netram- P. W. 3 had prevented him from constructing his wall in his own land, whereupon, the incident took place, where as, D. W. 1 Shri dori Singh has stated that the aforesaid complainant and Netram were trying to dismantle the wall of the appellant Chokhey, whereupon, the quarrel took place. These two versions could not be reconciled and it exposes the falsity of the defense case. Learned Sessions Judge, therefore, rightly disbelieved the defense version and we are in full agreement with him that the prosecution had proved its case against the present appellants beyond reasonable ray of doubt. The order of conviction recorded by the learned Sessions Judge does not call for any interference and the learned counsel for appellants had rightly not challenged the findings recorded by the learned Sessions Judge on the aforesaid points. The order of conviction recorded by the learned Sessions Judge does not call for any interference and the learned counsel for appellants had rightly not challenged the findings recorded by the learned Sessions Judge on the aforesaid points. ( 22 ) THE question that now needs to be considered is as to whether it is a case of culpable homicide not amounting to murder or a case of murder under Section 302 I. P. C. There was single injury on the head of the deceased. It was caused by lathi. It is proved that the accused appellants inflicted only two lathi blows on the deceased, one of which hit on the head of the deceased, which proved fatal. It appears that the appellants did not repeat the blow. It indicates about their intention that they never intended to cause his death or such bodily injury as was likely to cause death. The quarrel erupted all of a sudden and there is nothing to show that the accused appellants had any pre-planning to cause the death of deceased Bhonday. In the circumstances, we find that it is a case of culpable homicide not amounting to murder punishable under Section 304 Part-II read with Section 34 of I. P. C. ( 23 ) COMING to the question of sentence, we feel that the sentence of three years R. I. and a sum of rs. 2000/- as fine on each of the accused appellant would be sufficient to meet the ends of justice. No alteration in the sentence awarded for the offence under Section 323/34 I. P. C. is required. ( 24 ) THE appeal, therefore, deserves to be partly allowed and sentence modified accordingly. ( 25 ) THE appeal is partly allowed. The conviction of the appellants under Section 302/34 I. P. C. is altered to Section 304 read with Section 34 I. P. C. and each of the accused appellant is directed to undergo R. I. for a period of three years and to pay a fine of Rs. 2,000/ -. In the event of default to pay the fine, each of them shall undergo imprisonment for a further period of six months. The conviction and sentence awarded under Section 323/34 I. P. C. imposed on the appellants are affirmed. Sentences shall (SIC) Concurrently, Both the appellants are on bail. 2,000/ -. In the event of default to pay the fine, each of them shall undergo imprisonment for a further period of six months. The conviction and sentence awarded under Section 323/34 I. P. C. imposed on the appellants are affirmed. Sentences shall (SIC) Concurrently, Both the appellants are on bail. The Chief Judicial magistrate, Moradabad shall cause them to be taken into custody and sent to jail to serve-out the sentences awarded to them. ( 26 ) LET a copy of the judgment along with the record of the case be immediately transmitted to the Court below for compliance under intimation to this Court within two months from the date of its receipt. . .