Judgment PRASAD and AHMAD JJ. 1. The two appellants being aggrieved by their conviction and sentence by judgment and order dated 22nd November, 2002 passed by the Additional Sessions Judge, Fast Track Court No. IV, Darbhanga in Sessions Trial No. 131 of 1995 have preferred this appeal. By the said judgment appellant no. 1 Kameshwar Sharma has been found guilty of offence under Sections 302, 447 and 341 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, three months and one month respectively. Appellant No. 2 Bishundeo Sharma, by the said judgment has also been found guilty of offence under Section 323, 447 and 341 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months, three months and one month respectively. Sentences were directed to run concurrently. 2. Prosecution story according to the fardbeyan given by P.W. 6 Ram Kamal Sharma in the State Dispensary, Biraul before the Assistant Sub-Inspector of Police of Biraul Police Station on 21.7.1994 at 4.30 P.M. is that on the said date at about 8 A.M. appellant no. 1 Kameshwar Sharma was ploughing his field when informant and his father Dev Narayan Sharma went there and asked him to stop ploughing the field claiming the said field to be belonging to them. At this appellant no. 1 left ploughing the field; went to his house, brought a farsa and assaulted informants father from the blunt portion of the same on his head. According to the informant when he tried to save his father appellant no. 2 Bishundeo Sharma assaulted him by farsa causing injury on his head. Thereafter other accused persons (since acquitted) assaulted him and on alarm being raised according to the informant, witnesses and other villagers collected and saved the informant and his father. The motive of the occurrence, according to the informant, was ploughing of his field by the accused persons. 3. On the basis of the aforesaid information Biraul Police Station Case No. 96 of 1994 was registered under Sec. 147, 148, 447, 341, 323 and 324 of the Indian Penal Code. 4. According to the prosecution, the informant and his father after the assault were taken to State Dispensary where they were treated by P.W. 8 Dr. Tazuddin Ahmad, who referred injured Dev Narayan Sharma for treatment to Darbhanga Medical College & Hospital. 4. According to the prosecution, the informant and his father after the assault were taken to State Dispensary where they were treated by P.W. 8 Dr. Tazuddin Ahmad, who referred injured Dev Narayan Sharma for treatment to Darbhanga Medical College & Hospital. Said Dev Narayan Sharma died, which led to addition of Section 302 of the Indian Penal Code in the First Information Report. 5. Police after investigation submitted charge sheet and ultimately the two appellants herein, besides three other accused persons (since acquitted) were put on trial. 6. Appellants denied to have committed any offence and claimed to be tried. Their plea is denial simplicitor and from the trend of the cross-examination their defence further appear to be that they acted in right of private defence of their property. 7. Prosecution in support of its case had altogether examined nine witnesses, out of whom P.W. 2 Sita Ram Sao, P.W. 3 Mangali Devi, P.W. 4 Gangia Devi, P.W. 5 Lochan Sharma and P.W. 6 Ram Kamal Sharma claimed to be the eye witnesses to the occurrence. P.W. 1 Akhouri Ravindra Kishore is the Medical Officer who had conducted post mortem examination on the dead body of Dev Narayan Sharma, whereas P.W. 8 Dr. Tazuddin Ahmad is another Medical Officer who had examined the deceased and the informant at the first instance. P.W. 7 Mohammad Kalim is a formal witness and P.W. 9 Anil Kumar Srivastava is the Investigating Officer of the case. 8. Appellants in order to prove its case had also examined five witnesses, namely, Mahesh Yadav, Ram Bilash Mukhiya, Mohammad Raza, RamJishore Jha and Satya Narayan Kuar. 9. On appraisal of evidence, the learned Judge came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly held the appellants guilty as above. 10. P.W. 2 Sita Ram Sao is the co- villager whereas P.W. 3 Mangali Devi is the wife of the deceased. P.W. 4 Gangia Devi is the wife of P.W. 5 Lochan Sharma who happens to be the brother of the deceased. P.W. 6 Ram Kamal Sharma is the son of the deceased and inforfmant of the case. All of them claimed to be the eyewitnesses to the occurrence. P.W. 4 Gangia Devi is the wife of P.W. 5 Lochan Sharma who happens to be the brother of the deceased. P.W. 6 Ram Kamal Sharma is the son of the deceased and inforfmant of the case. All of them claimed to be the eyewitnesses to the occurrence. All the eyewitnesses have stated in their evidence that while appellant Kameshwar Sharma was ploughing the field, it was objected by the deceased and the informant, whereupon appellant no.1 Kameshwar Sharma went to his house, brought farsa and assaulted the deceased on his head by blunt portion of the farsa. There is consistent evidence of all the eye-witnesses that when informant tried to save his father he was assaulted by appellant No. 2 Bishundeo Sharma. Thereafter according to the witnesses both the injured were taken to Biraul State Dispensary where they were treated by P.W. 8 Dr. Tazuddin Ahmad. He found injury on the person of P.W. 6 Ram Kamal Sharma and seeing the condition of Dev Narayan Sharma referred him for treatment to Darbhanga Medical College & Hospital, where he died. P.W. 1 Akhoury Ravindra Kishore at the relevant time was posted as the Assistant Professor of Forensic medicine at Darbhanga Medical College & Hospital and had conducted post mortem examination on the dead body of Dev Narayan Sharma on 22.7.1994 at 1.15 P.M.. He found following ante mortem injuries on his person :- "(i) Right side of head was found bruised completely. Scalp tissues of right side was found infilterated with blood and blood clot. On removal of the scalp tissues on depressed fracture measuring 1 3/4" x 1/4" was present over right parietal bone. The right parietal and right temporal bone were found fractured. On opening the scalp cap a big extra dural haematoma was present and the right side of brain pressing the brain tissues." In the opinion of the doctor the death was due to concussion, haemorrhage and shock which had occurred within 12 to 24 hours from the time of the post mortem examination. 11 P.W. 7 Mohammad Kalim, as stated earlier, is a formal witness who had proved the injury report (Ext. 3 and 3/1) given by P.W. 8 Dr. Tazuddin Ahmad. P.W. 8 Dr. Tazuddin Ahmad at the relevant time was posted as Medical Officer, Incharge of Biraul State Dispensary and according to him on 21.7.1994 he examined Dev Narayan Sharma. 11 P.W. 7 Mohammad Kalim, as stated earlier, is a formal witness who had proved the injury report (Ext. 3 and 3/1) given by P.W. 8 Dr. Tazuddin Ahmad. P.W. 8 Dr. Tazuddin Ahmad at the relevant time was posted as Medical Officer, Incharge of Biraul State Dispensary and according to him on 21.7.1994 he examined Dev Narayan Sharma. He found swelling with haematoma on his head and referred him to Darbhanga Medical College & Hospital for further treatment. On the person of Raj Kamal Sharma he found lacerated wound of the size 1" x 2/10" x 1" skin deep on his head. 12. P.W. 9 Anil Kumar Srivastava at the relevant time was posted as Assistant Sub-Inspector of Police of Biraul Police Station, who had recorded the fardbeyan of the informant at the State Dispensary, Biraul and has proved the same. He had also investigated the case and during the course of investigation recorded the statement of the witnesses and ultimately submitted the charge-sheet. 13. D.W. 1 Mahesh Yadav has stated in his evidence that the field which was being ploughed by appellant No. 1 Kameshwar Sharma was in fact purchased by the deceased in 1994. D.W. 2 Ram Bilash Mukhiya has also stated about the purchase of the aforesaid land, so are the other witnesses. 14. The Court below on appraisal of evidence, oral and documentary, came to the conclusion that prosecution had proved its case beyond all reasonable doubt and it did not accept the case of right of private defence of property. 15. Mr. Abhay Kumar Singh No. 1, appearing on behalf of the appellants submits that even if the case of the prosecution is accepted in its entirety, no case under Sec. 302 of the Indian Penal Code is made out. 16. Mr. Lala Kaiiash Bihari Prasad, Additional Public Prosecutor, however appearing on behalf of the State submits that the part of the body which appellant No. 1 Kameshwar Sharma had chosen to assault and the force used for the purpose make it evident that appellant intended to cause death or at least such bodily injury, which was likely to cause death. He points out that merely the fact that the appellant no. 1 had given only one blow ipso facto shall not mean that he did not intend causing injury as is likely to cause death. 17. He points out that merely the fact that the appellant no. 1 had given only one blow ipso facto shall not mean that he did not intend causing injury as is likely to cause death. 17. Having appreciated the rival submission, we do not have the slightest hesitation in accepting the broad submission of Mr. Prasad that merely the fact that appellant no. 1 had given one blow, it has to be concluded that he did not had the intention to cause death. It is well settled that it is not the number of blows, which is decisive to as certain the intention of the appellant but the totality of the conduct during and after the incident. For that purpose one looks to the weapon used for commission of the crime, the part of the body chosen for assault and the force with which the weapon used to cause assault etc. However, in the facts of the present case, we are of the opinion that appellant no. 1 did not intend to cause death or such bodily injury which was likely to cause death. There is consistent evidence that appellant no. 1 was armed with farsa and according to the prosecution itself, he used the blunt side of the same. Further he had given only one blow. It is not the case of the prosecution that on account of some outside intervention, he did not make further assault. In our opinion, had appellant no. 1 intended to cause death he ought to have used the sharp portion of the farsa and further given repeated blows. In the background of the aforesaid facts, we are of the opinion that even if the case of the prosecution is accepted in its entirety, it cannot be said that appellant no. 1 either intended to cause death or such bodily injury as was likely to cause death. In that view of the matter, we are of the opinion that conviction of appellant No. 1 for offence under Section 302 of the Indian Penal Code is not fit to be sustained. However the allegation proved clearly brings out his act within the mischief of Sec. 304 Part II of the Indian Penal Code. 18. The view which we have taken find, support from the judgment of the Supreme Court in the case of Mohd. Shakeel Vs. However the allegation proved clearly brings out his act within the mischief of Sec. 304 Part II of the Indian Penal Code. 18. The view which we have taken find, support from the judgment of the Supreme Court in the case of Mohd. Shakeel Vs. State of Andhra Pradesh (2007)2 Supreme Court Cases (Cri) 44) wherein it has been held as follows :- "2. The appellant, along with accused Mohd. Isaq and Mohd. Siraj was tried and by judgment rendered by the trial Court, while the other two accused persons were acquitted, the appellant was convicted under Sec. 302 of the Indian Penal Code (for short "IPC) and sentenced to undergo imprisonment for life and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment for a period of six months. Against the order of acquittal, no appeal was preferred. On appeal being preferred by the appellant, the High Court confirmed the conviction. Hence, this appeal by special leave. 4. Coming now to the nature of offence, it may be stated that the appellant is said to have inflicted only one injury and he has also received injury. In the facts and circumstances, we are of the view that the High Court was not justified in confirming conviction of the appellant under Sec. 302 IPC rather he should have been convicted under Section 304 Part II IPC. It has been stated that the appellant is in custody since the year 1999. In our view, ends of justice would be met in case the appellant is awarded punishment under Section 304 Part II IPC for the period already undergone." 19. In our opinion the evidence on record do not make out any case either under Sec. 341 or 447 of the Indian Penal Code and, as such, we are of the opinion that conviction of both the appellants for the aforesaid offences is fit to be set aside. 20. So far as conviction of appellant no. 2 Bishundeo Sharma under Section 323 of the Indian Penal Code is concerned, all the eye-witnesses have stated that he caused injury on P.W. 6 Ram Kamal Sharma by farsa. P.W. 8 Dr. Tazuddin Ahmad has found such injury on his person. Thus the evidence of the eye-witnesses have been corroborated by the medical evidence. In that view of the matter, we are of the opinion that appellant no. P.W. 8 Dr. Tazuddin Ahmad has found such injury on his person. Thus the evidence of the eye-witnesses have been corroborated by the medical evidence. In that view of the matter, we are of the opinion that appellant no. 2 was rightly convicted for offence under Section 323 of the Indian Penal Code. 21. It is common ground that appellant no. 1 has remained in jail for about six years. Appellant no. 2 had also remained in jaii for few days. They have suffered the ordeal of trial as also appeal for more than a decade. In that view of the matter, we are of the opinion that the ends of justice shall be met, in case the sentence under Section 304 Part II of the Indian Penal Code so far as appellant no. 1 and that of appellant no. 2 under Sec. 323 of the Indian Penal Code is reduced to the period already undergone by them. 22. Accordingly, the appeal is allowed in part. Conviction of Appellant no. 1 under Section 302 of the Indian Penal Code is altered to under Sec. 304 Part II of the Indian Penal Code and sentenced for the period already undergone by him. Conviction of Appellant No. 2 under Sec. 323 of the Indian Penal Code is maintained and he is also sentenced for the period already undergone by him. 23. Their conviction and sentence under Sections 341 and 447 of the Indian Penal Code is set aside. 24. Appellant no. 1 Kameshwar Sharma is in jail, he shall be set at liberty forthwith unless required in any other case. Appellant no. 2 is on bail, he shall be discharged from the liability of the bail bonds.