JUDGMENT : [PER : S.R. DONGAONKAR,J.] Appellant Malu @ Wasudeo s/o Muka Borkar, impugns the Judgment of the learned Second Additional Sessions Judge, Bhandara in Sessions Trial No.12/1990, dated 9th May, 1991, convicting him for the offences punishable under section 302 and 326 of the Indian Penal Code and sentencing him to suffer Life Imprisonment and to pay fine of Rs.300/-, in default to suffer Rigorous Imprisonment for one year. 2] Facts leading to the prosecution of the appellant as alleged can be briefly stated thus. There was a dispute on Dhura between the father of deceased Rama Dayaram Borkar and the appellant. On 12.8.1989, between 2.00 to 3.00 p.m. at Shendurwafa, the deceased - Rama was in the field. He told the appellant that the said Dhura on which agricultural operations were going on; was a common Dhura. There was hot exchange of words between deceased Rama and appellant. It is alleged that appellant gave some blows on the head of the deceased Rama by means of Khatwa [agricultural implement]. It is alleged that this incident was seen by P.W. 4 Prabhu. When he saw this incident, he went near deceased Rama and the appellant left that place. Rama had fallen on the ground facing earth. P.W. Prabhu noticed injuries on the head of deceased - Rama. Thereafter, he kept his head resting on Dhura. One P.W.5 Lahanabai - was there. P.W. Prabhu asked her to give water to deceased Rama. He went to the house of Rama's father i.e. P.W. 1 Dayaram . He was not there, therefore, P.W. 4 Prabhu informed P.W. 3 Chandrabhaga - mother of the deceased about the incident. This was also heard by Rama's wife Vasantabai. Thereafter, P.W. 4 Prabhu, went to inform about the incident to other three brothers of deceased Rama. He brought bullocks and agricultural implements from the field to the house and he remained there. P.W. 1 Dayaram (the father of the deceased), after returning from Sakoli, came to know about the incident as his daughter-in-law P.W.2 Vasantabai was weeping. He was informed that the appellant had assaulted her husband by means of Khatwa. He then lodged report to the Police Station - Sakoli [Exhibit 35]. In the report, he had informed that on enquiry with the wife of the deceased i.e. his daughter-in-law, he got information that a person by name Malu / appellant had assaulted the deceased. He was informed that the appellant had assaulted her husband by means of Khatwa. He then lodged report to the Police Station - Sakoli [Exhibit 35]. In the report, he had informed that on enquiry with the wife of the deceased i.e. his daughter-in-law, he got information that a person by name Malu / appellant had assaulted the deceased. He had gone to the spot. He noticed his son Rama lying in the field of appellant Malu. His head was smeared with blood. He returned to the village, brought tractor and took Rama to the hospital. At that time offence under section 326 of the Indian Penal Code was registered. Rama was taken to the Cottage Hospital, Sakoli where he was examined by Dr. Khedikar. She had issued certificate regarding the injuries on his person - Exhibit 61. She had also given her opinion regarding the nature of the injuries. As the injuries were serious Rama was referred to the General Hospital, Bhandara and thereafter to the Government Medical College Hospital, at Nagpur. He, however, expired because of the said injuries in the night between 14.8.1989 & 15.8.1989. As the deceased had expired because of the injuries caused in the incident, the offence under section 302 of the Indian Penal Code was registered. The investigation was carried out by P.W. 12 P.S.I. Hatwar. During the investigation, prior to registration of offence under section 302 of the Indian Penal Code, he had prepared Spot Panchnama. He had also prepared memorandum - statement of the appellant as well as he seized of the incriminating instrument - Khatwa on his say. The relevant documents are at Exhibit 53, 54 and 55. He had also seized the clothes of the appellant as per Exhibit 56. Later on, postmortem examination on the dead body was performed by P.W. 13 Dr. Aniruddha Deuskar. Postmortem Notes prepared by him are at Exhibit 63. He had noticed external and internal injuries on the body of the deceased which are mentioned in the relevant columns of the Postmortem Notes. According to him, the injuries were caused on the vital part of the body i.e. brain and they were sufficient in the ordinary course of nature to cause death. During investigation, Investigating Officer had recorded statements of witnesses and after due investigation he had submitted the charge sheet in the court of Judicial Magistrate First Class, Sakoli. According to him, the injuries were caused on the vital part of the body i.e. brain and they were sufficient in the ordinary course of nature to cause death. During investigation, Investigating Officer had recorded statements of witnesses and after due investigation he had submitted the charge sheet in the court of Judicial Magistrate First Class, Sakoli. 3] Learned Judicial Magistrate First Class, Sakoli committed the case to the Court of Sessions, Bhandara, as the offence under section 302 of the Indian Penal Code was triable by the Court of Sessions. Learned Trial Judge framed charge for the offences under sections 326 and 302 of the Indian Penal Code. Same was explained to appellant. He claimed to be tried. During trial, the prosecution examined in all 13 witnesses. P.W.1 Dayaram Borkar, is the father of the deceased who had received information about the incident through P.W. 2 Vasantabai wife of the deceased and P.W. 3 Chandrabhagabai mother of the deceased, who lodged the report to the police station about the incident. P.W. 4 Prabhu is an eye witness to the incident who had informed about the incident to the family members of the deceased. P.W. 5 Lahanabai is the witness who was allegedly told by P.W.4 Prabhu regarding the assault on the deceased by the appellant and thereafter to give water to Rama. P.W. 6 Kevalram has been examined by the prosecution, who had been informed by P.W.4 Prabhu about the incident. According to him, he had found Rama lying in the water of the Bandhi, he had kept him on Dhura, he noticed injuries on the head of the deceased Rama. Thereafter, according to him, Rama was taken by Tractor to Sakoli. P.W. 7 Kashubai is a witness who had come to depose that the appellant went shouting that he had beaten Rama. P.W. 8 Prabhakar Shesh is the Special Judicial Magistrate who had recorded the statements of the witnesses under section 164 of the Criminal Procedure Code includig that of P.W. 4 Prabhu, P.W. 5 Lahanabai and P.W. 6 Kewalram. P.W. 9 Kevalram is Panch witness to the spot Panchnama so also he is witness to memorandum statement of the appellant as well as the seizure in consequence to the same. He is also witness to the seizure of the sample of earth from the spot of incident. P.W. 10 Vithal is witness to memorandum Panchnama. P.W. 9 Kevalram is Panch witness to the spot Panchnama so also he is witness to memorandum statement of the appellant as well as the seizure in consequence to the same. He is also witness to the seizure of the sample of earth from the spot of incident. P.W. 10 Vithal is witness to memorandum Panchnama. P.W. 11 P.H.C. Mishra is a witness who was at Police Station, Sakoli and Station Diary In-charge. He had registered the offence under section 326 of the Indian Penal Code on the report of the P.W.1 Dayaram as per crime No.107/1989. P.W. 12 P.S.I. Hatwar is the Investigating Officer. During investigation he had received the medical certificate of the deceased from Cottage Hospital, Sakoli, prepared by Doctor Khedikar. Later on, he had also received the Postmortem Notes of the deceased. He had submitted the charge sheet after due investigation. P.W. 13 Dr. Deuskar is Associate Professor of Forensic Medicine in Government Medical College, Hospital, Nagpur. He conducted autopsy on the dead body of deceased Rama. Postmortem Notes recorded by him are at Exhibit 63. He had mentioned the details of the external and internal injuries in the Postmortem Notes. According to him, the injuries were on vital part of the body such as brain and the same were sufficient to cause death in the ordinary course of nature. With this evidence on record, the prosecution sought to prove its case. 4] The appellant / accused has examined himself in defence. He has admitted that the incident had occurred, but according to him, at the relevant time he was clearing water channel of the agricultural field with the help of Khatwa. Rama came near him. He was armed with a sickle. He started abusing him and asserting that the boundaries of the agricultural lands were correct. The appellant told him not to quarrel and also advised to settle the dispute by amicable means by calling Panchas. However, he did not stop abusing. He wielded sickle at the appellant, though appellant tried to pacify him. Deceased threatened to kill him. He again wielded sickle at him, so the appellant waived his Khatwa to prevent assault and while revolving Khatwa, as Rama wanted to kill him, Rama suffered injuries. The appellant did not want to assault him nor to cause any fatal injuries to him intentionally or with knowledge. Deceased threatened to kill him. He again wielded sickle at him, so the appellant waived his Khatwa to prevent assault and while revolving Khatwa, as Rama wanted to kill him, Rama suffered injuries. The appellant did not want to assault him nor to cause any fatal injuries to him intentionally or with knowledge. According to him, he himself had gone to Police Station to lodge report and to say that deceased Rama was still in agricultural field and police should arrest him. According to him, at that time P.W.1 Dayaram Borkar came there, lodged report to the Police Station and the appellant was arrested. 5] The learned Trial Judge, having considered the evidence available on record came to the conclusion that the evidence of P.W. 4 Prabhu the alleged eye witness, is reliable and is supported by other evidence on record and materially corroborated by medical evidence, which is available on record. He also found that the case advanced that the appellant acted in exercise of his right of private defence, is not a fact that can be accepted. According to him, the appellant had an intention to kill the deceased. The act was brutal and grievous and the same was sufficient to cause death of the deceased in the ordinary course of nature. According to him, the defence of the appellant about exercise of right of private defence has not been properly established and therefore, he found the appellant guilty for the offences punishable under section 302 and 326 of the Indian Penal Code and sentenced him accordingly. 6] While challenging this judgment of conviction, the learned counsel for the appellant has taken us through the evidence led by the prosecution to contend that the same is riddled with several contradictions and improvements. There are several discrepancies in the evidence of the star witness P.W. 4 Prabhu alleged eye witness. According to him, as the statement of Prabhu which was recorded on 12.8.1989 was not supplied to the appellant, therefore, adverse inference has to be drawn against the prosecution case. Further according to him, Rama had come on bicycle and he was having a sickle, the same and rest of the articles were not seized from the spot by the Investigating Officer and thereafter, they are missing and therefore, adverse inference against the prosecution case has to be drawn. Further according to him, Rama had come on bicycle and he was having a sickle, the same and rest of the articles were not seized from the spot by the Investigating Officer and thereafter, they are missing and therefore, adverse inference against the prosecution case has to be drawn. He has also submitted that the evidence of other witnesses is not worthy of any credit. P.W. Lahanabai and Kewalram are tutored witnesses and there are material omissions in their evidence and as such they are unreliable. He has also pointed out that in the evidence of P.W. 4 Prabhu the name of the deceased is stated to be Rama Dayaram .Kapgate. in examination in chief. Whereas in the cross examination he stated the name of the father of the deceased as Dayaram Borkar. Further he has submitted that, this witness was reliable servant of Dayaram Borkar, he had confidence in him and therefore, he has deposed false in favour of the prosecution. He has also submitted that the dying declaration of the deceased was not recorded nor the doctor who had treated him was examined. Therefore, the prosecution case is untrustworthy. Further, according to him, deceased Rama was aggressor. He had tried to assault the appellant by sickle and while he was defending himself from the attack, so also when he was defending possession of the field, he waived his Khatawa and therefore, in the incident, the deceased suffered injuries which unfortunately caused his death. According to him, possession of sickle by the deceased was not unnatural and therefore, the defence theory has to be accepted. He has also pointed out the discrepancy in the conclusions of the C.A.'s report and the statements of the witnesses in the evidence. He specifically contended that no intention or motive is attributed to the appellant for commission of this offence and therefore, he is entitled for benefit of doubt. 7] Learned A.P.P. supported the judgment of the learned Trial Court by adopting the reasons recorded by the learned Trial Judge for coming to the conclusion of the guilt of the appellant. The parties have relied on certain authorities which would be discussed in the latter part of the judgment. 7] Learned A.P.P. supported the judgment of the learned Trial Court by adopting the reasons recorded by the learned Trial Judge for coming to the conclusion of the guilt of the appellant. The parties have relied on certain authorities which would be discussed in the latter part of the judgment. 8] Here is a peculiar case, wherein certain attacks have been levelled against the evidence led by the prosecution pointing out the discrepancies, omissions and improvements in the evidence, to contend that they are deposing false at the instance of the father of deceased. It is also tried to point out that there are reasons to believe that P.W. 4 Prabhu must be deposing false as he is admittedly reliable servant of P.W.1 Dayaram Borkar i.e. father of the deceased. He did not make any statement before the police immediately after the incident. It was tried to suggest that he was not at all a witness to the incident. Therefore, it was submitted that the reliance by the trial court on his evidence was totally unwarranted and therefore, conclusion reached by the learned trial court was totally incorrect. 9] Here is a case where the appellant has examined himself and he has contended that the deceased Rama has tried to assault the appellant by sickle. After altercation he waived his Khatawa, and he did not know whether the injuries were caused to him and therefore, he went to Police Station and asked the police to arrest Rama. In these circumstances, it is obvious that the accused did not deny that some incident in which deceased had suffered fatal injuries, had occurred. Therefore, whether the prosecution witnesses are deposing false or not, will be a matter which need not be considered. The question would only be whether the appellant has established his right to exercise private defence and whether he had exercised the same, in accordance with the established principles of law. It is in this context only the evidence of the prosecution witnesses needs to be seen and assessed. 10] P.W. 4 - Prabhu is categorical in saying that he had seen deceased having inflicted 2-3 blows of Khatwa on the deceased. He had also stated that Rama had fallen on the ground facing to earth and he noticed injuries on the head of the deceased Rama. 10] P.W. 4 - Prabhu is categorical in saying that he had seen deceased having inflicted 2-3 blows of Khatwa on the deceased. He had also stated that Rama had fallen on the ground facing to earth and he noticed injuries on the head of the deceased Rama. 11] At this stage, it is necessary to see the medical evidence on record. The relevant evidence of P.W. 13 Dr. Aniruddha Deuskar shows that following external injuries were noticed on the person of the deceased: External Injuries 1] There was stitched wound left temporal region 2. in length 2] Stitched wound left parietal region 4. in length. 3] Stitched wound left parietal occipital region 2 1/2. in length. 4] Contusion left pinna mid 1/3 anteriorly 2. x 1. 5] Abrasion left side chest later end of clavical 1. x 1/2. He also noticed following internal injury: .1] Hema toma scalp left side temporal parietal occipital and parietal right side. There was fracture vault of the skull depressed communated involving temporal parital left side extending into parietal right side. brain and meninges congested. there was extra dural with subdural hemmaroge corresponding to perito temporal left left and parito occipital left and parietal right side also at the base of brain.. 12] In his opinion, the death of the deceased was due to head injury. The said injuries can be caused by means of hard and blunt object, and that can be caused by Khatwa - Article -1 before the court and the same were on vital part of the body i.e. brain and that were sufficient to cause death in the ordinary course of nature. He has also stated in cross examination that the injuries were possible due to assault made by blunt side of such type of object and due to such weapon there would be immediate bleeding from the injuries sustained. 13] The date of incident is 12.8.1989. Deceased had died on 15.8.1989. It is true that there is some discrepancy regarding the seizure of Khatwa at the instance of the appellant, but as in his own evidence, the appellant has stated about the incident, it does not matter much. 14] The question, here would only be whether the contention of the defence that the appellant was justified in exercise of his right of private defence by causing such fatal injuries, can be accepted to hold him not guilty. 14] The question, here would only be whether the contention of the defence that the appellant was justified in exercise of his right of private defence by causing such fatal injuries, can be accepted to hold him not guilty. 15] In this regard no doubt dying declaration of the deceased was not recorded, so also the evidence of immediate medical examination of the deceased at Sakoli Hospital is not on record, fact remains that the deceased was taken to the Medical College Hospital at Nagpur, immediately after the incident and after postmortem, the relevant injuries were found on his person which were stated to be ante-mortem, that fact by itself will show that these fatal injuries were caused to him in the incident. There is nothing in cross examination of P.W. 13 Dr. Deuskar to show that he has any reason to depose false in this regard or that injuries were aggravated during his medical treatment. 16] The appellant in his evidence stated that he reported to police that Rama was still in his agricultural land and that they should arrest him i.e. Police should arrest him. It is difficult to believe that the deceased Rama must be in a position to walk or otherwise. Core of all the prosecution evidence clearly goes to show that the deceased was lying in the field and he was required to be carried in tractor. This version of defence is, therefore, far from acceptance. 17] There is nothing in the cross examination of the prosecution witnesses, to show that there was any possibility of deceased Rama being assaulted after appellant had left field for Police Station by somebody else . It goes without saying that the fact that the deceased had suffered these ante-mortem injuries at the time of incident at the instance of the appellant, has been established beyond reasonable doubts. 18] Learned counsel for the appellant has relied on the observations of the Apex Court in AIR 2006 SC 514 [Pratap Singh and another ..vs.. State of M.P.], wherein the Apex Court has held in paragraph 19 as under: . 19] The High Court, in our opinion, further committed an error in not drawing an adverse inference for non-examination of Shivrajsingh and Motiram. It was for the prosecution to prove its case. State of M.P.], wherein the Apex Court has held in paragraph 19 as under: . 19] The High Court, in our opinion, further committed an error in not drawing an adverse inference for non-examination of Shivrajsingh and Motiram. It was for the prosecution to prove its case. Even if in the First Information Report their names were not disclosed but if during investigation materials came to the notice of the Investigating Officer that apart from Mangal Singh two other witnesses had also witnessed the occurrence, he was duty bound to show the places where from they had witnessed the occurrence in the site plan prepared by him and also record their statements under Section 161 of the Code of Criminal Procedure. We do not see any reason as to why adverse inference should not have been drawn for non-filing of the said statements before the Court along with the charge sheet. We have noticed herein before the adverse remarks made as against the Investigating Officer.. According to him as the first statement of P.W. 4 - Prabhu is not available on record, genesis of the occurrence has been suppressed and therefore, prosecution case should be disbelieved. We have already pointed out above that in the peculiar circumstances of the case, the omissions, contradictions, improvements and discrepancies in the evidence led by the prosecution as regards the occurrence of the incident are immaterial and they can not be considered as sufficient to throw away the prosecution case in toto, in view of the evidence led by the appellant himself on oath. 19] The learned counsel for the appellant has further relied on the observations of this court in 1999(Supp) Bom C.R.983 [Nemichand Bakaram Patle & others ..vs.. State of Maharashtra, wherein it was observed by this court that when there is no satisfactory explanation about the inordinate delay in recording the statements of the prosecution witnesses is coming forth, the prosecution case can be disbelieved. Again in view of the evidence led by the appellant, on oath this contention as regards the rejecting the prosecution case, about occurrence of the incident can not be accepted. In this view of the matter, the other authorities referred by the learned counsel for the appellant i.e. AIR 1977 Cri.L.J. 238 [Namdeo Daulata Dhaygade and others ..vs.. State of Maharashtra], AIR 1989 SC 982 [Mahendra Singh ..vs.. In this view of the matter, the other authorities referred by the learned counsel for the appellant i.e. AIR 1977 Cri.L.J. 238 [Namdeo Daulata Dhaygade and others ..vs.. State of Maharashtra], AIR 1989 SC 982 [Mahendra Singh ..vs.. State of Rajasthan] and AIR 2004 SC 3559 [Shankarlal ..vs.. State of Rajasthan] are also not attracted. 20] Therefore, the material available on record, clearly goes to show that the injuries found on the person of the deceased were caused by Khatwa by the appellant. The learned counsel for the appellant has submitted that the appellant was exercising the right of private defence, which is available to him in protecting the possession of his property as well as to prevent danger to his life. Therefore, according to him, the instant case falls within the provisions of section 100 of the Indian Penal Code. 21] As against this, the learned A.P.P. for the state has submitted that as the appellant had intention to cause the death of the deceased, he has been rightly convicted under section 302 of the Indian Penal Code. 22] In this context the learned counsel for the appellant has relied on the observations of the Kerala High Court in 1987 Cri.L.J. 1715 [Chandrasekharan Adithripad ..vs.. State of Kerala], wherein it has been observed: .8- Even though the right of private defence is one which has to be proved by the accused, it is not necessary that such a specific plea should be taken or evidence adduced to substantiate the same. The accused will be entitled to rely on the prosecution evidence and circumstances themselves to substantiate his plea of private defence. Just like the prosecution, the accused is not expected to prove his defence beyond doubt. He can even rely on pre- ponderance of probabilities. In claiming the right of private defence he can even seek shelter under benefit of doubt. If the court feels genuine doubt regarding the correctness of the prosecution evidence in relation to the incident, benefit of that doubt also could be relied on by the accused in the plea of hi s private defence. In claiming the right of private defence he can even seek shelter under benefit of doubt. If the court feels genuine doubt regarding the correctness of the prosecution evidence in relation to the incident, benefit of that doubt also could be relied on by the accused in the plea of hi s private defence. If the court feels that the prosecution has not placed the entire materials as to how the incident took place, that lacuna on the part of the prosecution could very well be taken advantage of by the accused in order to contend that if the entire material were placed before court his plea of private defence would have been substantiated by the same.. He has also relied upon the observations of the Apex Court in 1976 Cri.L.J. 697 [Pratap ..vs.. State of Uttar Pradesh], wherein it was held that the accused can succeed in establishing by pre-ponderence of the probabilities that the deceased was within the striking distance, poised for imminent attack on the accused and when he had reasonable and immediate apprehension that he would suffer the death, or grievous hurt, he can be said to have exercised his right of private defence. He has also taken us through the observations of the Apex Court in 1973 Cri.L.J. 677 [Deo Narain ..vs.. State of U.P.] and AIR 1988 SC 83 [Laxman Sahu ..vs.. State of Orissa] to contend that right of private defence to entitle for assault is available to a person who is suddenly confronted with immediate necessity of confronting an impending danger. 23] As against this learned A.P.P. has relied upon the decision and of the Apex Court reported in (2005)13 Supreme Court Cases 347 [Jalaram ..vs.. State of Rajasthan] and (2006)9 Supreme Court Cases 678 [Raj Pal and others ..vs.. State of Haryana] to contend that the appellant has not proved that he had exercised the right of private defence so as to prevent danger to his life. According to him the plea of private defence can not be based o surmises and speculations. 24] It is not necessary to reiterate that whether the case as established is of exercise of right of private defence, within the scope of exception, has to be considered on the facts and circumstances available on record. Here is the case where the deceased had suffered the injuries as stated above. 24] It is not necessary to reiterate that whether the case as established is of exercise of right of private defence, within the scope of exception, has to be considered on the facts and circumstances available on record. Here is the case where the deceased had suffered the injuries as stated above. The accused, does not seem to have suffered any injuries. No doubt, he can exercise a right of private defence, if he has imminent danger to his life but it needs to be only to the extent to save himself. Considering the nature of the injuries, found on the person of the deceased, it goes without saying that the appellant had caused these injuries with Khatawa at least with knowledge, that such injuries would cause death though may not be with requisite intention. Even if it is assumed for a moment that the deceased wielded sickle at him, it is apparent that it must have been a threat only. It does not seem to be a threat of such nature that the deceased Rama was intending to cause death of the appellant or any grievous or fatal injury to him. It is possible that appellant might have received some apprehension. Considering all these circumstances of the case and the evidence available on record, after going through the same, with the assistance of the learned counsel, we are of the clear opinion that although the defence of the appellant can be accepted to some extent, it would only go to show that he has by way of preponderence of probabilities established that he had right to private defence, at the relevant time. However, it clearly seems that he had, without any sufficient cause exceeded the said right and therefore he has to be held guilty of the offence of the culpable homicide not amounting to murder. 25] Here is a case where considering the nature of the incident of attack by the appellant, it does not seem to be a case where the appellant had any intention to cause his death or any such fatal injury as likely to cause his death. However, his knowledge that such injury may cause his death, has to be presumed considering the result of his act. However, his knowledge that such injury may cause his death, has to be presumed considering the result of his act. The accused has to be presumed to have the knowledge for the possible consequence of his act and therefore, it is clear that on consideration of the evidence led by accused vis-a-vis the evidence available on record, pressed into service by the prosecution, particularly the medical evidence, it has to be held that the prosecution has established that the appellant has committed offence under section 304 Part II of the Indian Penal Code. Accordingly, this appeal would be required to be partly allowed. 26] Heard learned counsel for the appellant on the point of sentence. He has submitted that the appellant was aged about 35 years, at the time of the offence. He is facing the trial since 1990 i.e. for about 17 years. He although, has exercised his right of private defence, is found to have exceeded the same. In these circumstances, leniency should be shown to him. 27] As against this, learned A.P.P. for state has submitted that the appellant has used the agricultural implement for killing the deceased. Although specific intention is not proved on the basis of material on record, it is implied and therefore, maximum sentence should be awarded. 28] Taking over all view of the matter we are of the opinion that the following sentence would meet the ends of justice. Needless to add that the fact as to whether the offence under section 326 of the Indian Penal Code is established or not, needs no consideration in view of the above. 29] Hence the appeal is partly allowed. The conviction and sentence of the appellant for the offence punishable under section 302 & 326 of the Indian Penal Code are hereby set aside, instead, he is convicted for the offence punishable under section 304 Part-II of the Indian Penal Code and is sentenced to suffer Rigorous Imprisonment for seven years and to pay fine of Rs.1000/-, in default of payment of fine to suffer further Rigorous Imprisonment for six months. Period of under trial detention to be set off as against the substantive sentence, as per the provisions contained in section 428 of the Criminal Procedure Code. His bail bonds stand cancelled. Appellant to surrender within 15 days to serve the sentence. Period of under trial detention to be set off as against the substantive sentence, as per the provisions contained in section 428 of the Criminal Procedure Code. His bail bonds stand cancelled. Appellant to surrender within 15 days to serve the sentence. 30] Before parting with the case, it needs to be observed that in the present case, the appellant seems to have been arrested on 12.8.1989. At that time the offence under section 326 of the Indian Penal Code was registered against him. When the bail application was moved, on behalf of the appellant, the same was objected by the State. However, the learned Magistrate has found that the offence was triable by the court of Judicial Magistrate First Class and it was not punishable with death or imprisonment for life and therefore, as this was his first offence, he was released on bail. It is rather surprising that though State had mentioned in its say while opposing the bail application that the accused is not infirm, sick, or old person and punishment provided under section 326 of the Indian Penal Code is upto life imprisonment, he was released on bail immediately even when the deceased was undergoing treatment for fatal assault In fact he expired between the night of 14th & 15th of August. It also seems that bail granted was for offence under section 326 of the Indian Penal Code and not for the offence under section 302 of the Indian Penal Code, but still surprisingly, the appellant was not in custody during trial. The trial courts, therefore, need to take appropriate care.