( 1 ) BY this appeal, the appellant has challenged his conviction for offences punishable under sections 323 and 304 Part I of the Penal code and sentence of rigorous imprisonment for one month and fine of rupees one hundred and rigorous imprisonment for seven years and fine of rupees two thousand on each count imposed upon him by the learned 2nd Additional sessions Judge, Nagpur, in Sessions Case No. 275 of 1993 before him. ( 2 ) FACTS, which led to the appellants prosecution, are as under : on 8-10-1992, between 7. 30 and 8 p. m. , victim Manoj Gautam, his sister sunita, mother Vidya and brother Vinod were attending religious function-Arti of goddess Shardadevi, whose idol was installed at Village Bazargaon. Accused afsar Khan was also present there and was fiddling with the buttons of loudspeaker, causing annoyance to the persons present. When Manoj objected, a quarrel erupted and the accused rushed with the stick to beat Manoj. Sunita intervened and received the stick blow and was, therefore, was moved away by her relations. The accused went home and returned with the gupti (sword stick) and gave a blow by the sword stick on the neck of Manoj, causing a severe bleeding to Manoj which led to his death. Villagers chased the accused and caught him. The victim was taken to Primary Health Centre at Kondhali, where he was pronounced dead. On a report by victims father Shamrao, police registered an offence. Sunita was also referred for medical examination. In course of investigation, police seized the sword stick (gupti), which was discovered by the accused, recorded statements of witnesses and after completing investigation, charge-sheeted the accused for murder of Manoj and for causing injury to Sunita. ( 3 ) UPON commitment, the case was assigned to the learned 2nd Additional sessions Judge, Nagpur, who charged the appellant of the offence punishable under sections 323 and 304 Part 1 of the Penal Code. The accused pleaded not guilty and hence was put on trial. ( 4 ) IN its attempt to bring home the guilt of the accused, the prosecution examined in all 13 witnesses. In his defence, the accused examined PSI Bobde. The defence of the accused was that Manoj and Vinod were armed with axe and gupti respectively and were assaulting him. ( 4 ) IN its attempt to bring home the guilt of the accused, the prosecution examined in all 13 witnesses. In his defence, the accused examined PSI Bobde. The defence of the accused was that Manoj and Vinod were armed with axe and gupti respectively and were assaulting him. He had received injuries on his head, because of blows by blunt edge of axe given by Manoj. When Vinod was inflicting a blow by gupti, he ducked and the blow fell on Manoj, which led to death of Manoj. Upon consideration of evidence tendered in the light of defence raised, the learned Additional Sessions Judge convicted the appellant of offences punishable under sections 323 and 304 Part 1 of the Penal Code and sentenced him, as aforementioned. Aggrieved thereby, this appeal has been filed. ( 5 ) I have heard both the learned counsel for the appellant and the learned additional Public Prosecutor for the State. ( 6 ) THE learned counsel for the appellant pointed out from the notes of post mortem examination at Exhibit 22 that the victim had sustained only one stab injury over the neck. He submitted that the appellant had himself sustained injuries as mentioned in medical certificate at Exhibit 24. This certificate shows that the appellant had sustained three contusions. The learned counsel for the appellant submitted that none of the prosecution witnesses had explained as to how the appellant sustained these injuries. Investigating Officer PW 12 Pl meshram was categorical in para 12 of his deposition that the accused did not have any injuries. The learned counsel for the appellant, therefore, submitted that the prosecution was attempting to conceal the injuries sustained by the accused and hence the entire story was liable to be disbelieved. ( 7 ) RELYING on the decision of the Supreme Court in the case of Laskshmi singh and others etc. The learned counsel for the appellant, therefore, submitted that the prosecution was attempting to conceal the injuries sustained by the accused and hence the entire story was liable to be disbelieved. ( 7 ) RELYING on the decision of the Supreme Court in the case of Laskshmi singh and others etc. vs. State of Bihar, reported in AIR 1976 SC 2263 , the learned counsel for the appellant submitted that non-explanation of injuries sustained by the accused should lead to one of the three following inferences, as held by the Supreme Court: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. " the further observations of the Supreme Court in Lakshmi Singhs case, however, do not apply to the facts of the present case, since in this case there is no previous enmity between the victim and the accused. ( 8 ) THE learned counsel for the appellant submitted that PW 3 Mukund was supposed to be a panch on seizure of gupti vide Exhibit 40. However, he turned hostile. He stated in his cross-examination that an axe was seized under the seizure panchanama. ( 9 ) PW 1 Keshav was a panch on memorandum of seizure of weapon at the instance of the accused. He stated that he accompanied the police and the accused to a field. PSI Meshram had told them that a gupti was thrown in the field and that was to be searched out. However, instead of gupti, an axe was found, which was seized vide seizure panchanama Exhibit 36, This witness too was declared hostile by the prosecution. ( 10 ) THE learned counsel for the appellant submitted that though the two witnesses had not supported the prosecution, it was open to the accused to rely on their evidence. However, instead of gupti, an axe was found, which was seized vide seizure panchanama Exhibit 36, This witness too was declared hostile by the prosecution. ( 10 ) THE learned counsel for the appellant submitted that though the two witnesses had not supported the prosecution, it was open to the accused to rely on their evidence. For this purpose, he drew my attention to the decision of the supreme Court in the case of Mukhtiar Ahmed Ansari vs. State (N. C. T. of Delhi), reported in 2005 All MR (Cri) 1775 (SC ). In view of this decision, so long as it is not shown that the evidence of PW I Keshav and PW 3 Mukund has other infirmities, the evidence would have to be accepted. It may be seen from the cross-examination of PW 3 Mukund, at the instance of the accused, that the witness had stated that an axe was seized under the panchanama and it had stains of blood. ( 11 ) ON behalf of defence, PSI Bobde was examined as DW 1. He stated that he had filed a charge-sheet in the case along with the copies of case papers in the Court. He was shown carbon copy of seizure panchanama regarding an axe and admitted that this copy was supplied to the accused as well as to the prosecution along with charge-sheet. This carbon copy is at Exhibit 78. Upon cross-examination by the learned APP, the witness admitted that he had not seized any axe in this case. However, the fact that in the papers supplied to the prosecution and the defence, there is a mention of an axe, coupled with the versions of PW I Keshav and PW 3 Mukund that an axe was seized in their presence, would clearly show that the prosecution is trying to come out with something different than the case that was unfolded in the investigation. This would cast a shadow of doubt on the veracity of the prosecution versions. ( 12 ) THE learned counsel for the appellant submitted that in fact the incident occurred in the manner explained by the accused, namely that the victim and his brother armed with axe and gupti were assaulting the accused from front and back and when he ducked, the blow of gupti fell on Manoj, which led to his death. ( 12 ) THE learned counsel for the appellant submitted that in fact the incident occurred in the manner explained by the accused, namely that the victim and his brother armed with axe and gupti were assaulting the accused from front and back and when he ducked, the blow of gupti fell on Manoj, which led to his death. This defence makes it unnecessary to search for evidence about the presence of accused at the time of the incident and also about his engagement in the fight. His story that the two brothers were assaulting him and that because he ducked, the blow of one brother fell on the other, is too film-like to inspire confidence. ( 13 ) THE learned counsel for the appellant submitted that when it is the prosecution story that the appellant was chased and caught by the villagers, there is no question of his being able to conceal the weapon used in the commission of offence. Therefore, he assailed the evidence to show that his client had concealed the gupti. ( 14 ) THE learned counsel for the appellant next submitted that the injury on the person of the accused had not been explained, which was countered by the learned Additional Public Prosecutor, who pointed out that if the accused admits scuffle between him and Manoj, existence of injury on his person would not require any other explanation. All the same, it is incredible that PW 12 PI meshram categorically states that the accused did not have any injury on his person. ( 15 ) THE learned counsel for the appellant next submitted that considering the fact that the appellant was alone, whereas the victim was accompanied by whole of his family, even if it is taken that the victims family had been provoked by the actions of the appellant in fiddling with the buttons of the loudspeaker, it would be clear that the appellant was not the aggressor. Relying on the decision of the Supreme Court in the case of State of Rajasthan vs. Sughad Singh and others reported in 1994 Cri. LJ. 2188, the learned counsel for the appellant submitted that when the prosecution party were proved to be aggressors, it was imperative that the injuries sustained by the victim must have been received by him in exercise of right of private defence by the appellant. LJ. 2188, the learned counsel for the appellant submitted that when the prosecution party were proved to be aggressors, it was imperative that the injuries sustained by the victim must have been received by him in exercise of right of private defence by the appellant. The learned counsel, therefore, submitted that even if it is taken that the appellant is the author of injuries, which led to death of Manoj, such injuries must be taken to be inflicted in exercise of right of private defence. He submitted that, as held by the Supreme court in the case of Ram Swarup and others vs. State of Haryana, reported in 7993 Cri. LJ. 3540, in a bilateral clash, the onus was on prosecution to prove its case beyond reasonable doubt to satisfy the Court that the defence version disclosed by the accused was a probable version of the occurrence. Therefore, according to the learned counsel for the appellant, since his client had acted in exercise of right of private defence, he deserves acquittal. ( 16 ) THE learned Additional Public Prosecutor for the respondent/state submitted that the victim had met with death on account of stab wound over neck of 1. 2 cms x 1. 2 cms x 4 cms, which had cut carotid artery and jugular vein. The learned Additional Public Prosecutor submitted that whether the appellant was armed with a gupti or an axe would be irrelevant in the face of the fact that the appellant admits his presence at the spot and also engagement in a fight, since he raises the defence of unexplained injuries on his person. The learned APP submitted that considering the nature of injuries observed on the person of the victim, the learned Additional Sessions Judge had rightly concluded that though offence punishable under section 302 of the Penal Code was not established, the appellant was liable to be punished under section 304 Part I of the Penal Code. ( 17 ) WHILE the learned Trial Judge cannot be faulted for bringing down the gravity of offence from one punishable under section 302 of the Penal Code to offence punishable under section 304 Part I of the Penal Code, it may be seen that the offence may not fall under the First Part of section 304 of the Penal code. It would be difficult to attribute to the accused an act done with the intention of causing death of the victim or with the intention of causing such bodily injury as is likely to cause death. There was no previous enmity between the parties. The incident had taken place in a sudden flare. The appellant was alone, whereas the victim was supported by his family members. The appellant had sustained an injury, which has not been explained by the prosecution. In these circumstances, in course of a sudden fight, it would be unrealistic to expect that the appellant would aim his blows in a manner which would save him but merely disable the aggressor and not kill him. In course of a right, the blows are traded on the objects, which are not stationary but moving. Therefore, unless it was shown that the victim had been held by an accomplice of the accused and the blow of the accused was aimed at carotid artery or jugular vein of the victim, it would be improper to attribute the necessary intention to the appellant. Therefore, the learned Trial Judge oughtto have convicted the appellant of offence punishable under Part II of section 304 of the Penal Code, since by using a sharp weapon, the accused must be presumed to have the requisite knowledge that the act he was about to indulge in could lead to death of the victim. ( 18 ) THIS would take me to the question of conviction of the appellant for offence punishable under section 323 of the Penal Code for having caused injury to victim Sunita. This injury has been duly proved by the evidence of PW 8 sunita, who stated that she received a stick blow on the head and right hand and fell down. ( 19 ) PW 5 Dr. Dhawad has proved injuries sustained by Sunita vide injury certificate at Exhibit 45. Sunita was shown have sustained three contusions and a minor abrasion. In view of this, the conviction of the appellant for offence punishable under section 323 of the Penal Code has to be maintained. ( 20 ) THIS takes me to the question of sentence. As far as the sentence imposed for offence punishable under section 323 of the Penal Code is concerned, it does not call for any interference. In view of this, the conviction of the appellant for offence punishable under section 323 of the Penal Code has to be maintained. ( 20 ) THIS takes me to the question of sentence. As far as the sentence imposed for offence punishable under section 323 of the Penal Code is concerned, it does not call for any interference. After having converted the conviction of the appellant from offence punishable under section 304 Part I to that punishable under section 304 Part II of the Penal Code, it would have to be decided whether the sentence of rigorous imprisonment for seven years is justified in the circumstances. Relying on the decision of the Supreme Court in the case of Trilok Singh vs. State (Delhi Administration) reported in 1994 Cri. L. J. 639, the learned counsel for the appellant submitted that a sentence of rigorous imprisonment for two years would be adequate. In that case, apprehending danger, the accused had brought dagger from the house and inflicted sentence of injuries to the deceased exceeding his right of private defence. The accused too had lost an eye in the scuffle. In this context, the Supreme Court inflicted sentence of rigorous imprisonment for two years on the appellant. Considering the nature of injury sustained by the appellant in this case as also the nature of injury inflicted upon the victim, it would be appropriate if the sentence of rigorous imprisonment for seven years is reduced to that of rigorous imprisonment for five years with fine of Rs. 2,000/ -. In view of this, the following order is passed : ( 21 ) THE appeal is partly allowed. The conviction of the appellant for the offence punishable under section 323 of the Penal Code and the sentence imposed are maintained. The conviction of the appellant for the offence punishable under section 304 Part I of the Penal Code is converted to one under section 304 Part II of the penal Code and the sentence imposed is reduced from rigorous imprisonment for seven years to rigorous imprisonment for five years with fine of rupees two thousand, or in default rigorous imprisonment for three months. The period of detention in custody shall be set off against the substantive sentence. The appellant shall surrender to his bail within a period of four weeks. The period of detention in custody shall be set off against the substantive sentence. The appellant shall surrender to his bail within a period of four weeks. If the appellant does not surrender, the learned Additional Sessions Judge shall take steps to have the sentence executed. Appeal partly allowed.