JUDGMENT D.G.R. Patnaik, J. 1. The appellants were tried and convicted in Sessions Trial No. 205 of 1999 by the 3rd Addl. Sessions Judge, Palamau at Daltonganj, for the offences under Sections 304/34, 341, 504, 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Section 304/34 IPC and rigorous imprisonment for seven years under Section 307/34 IPC besides simple imprisonment for one month for each of the offences under Sections 341 and 504 of the Indian penal Code. Feeling aggrieved the appellants have preferred this appeal. Learned Counsel for the appellants informs that during the pendency of the appeal, appellant No. 3 Bisheshwar Bhuian was granted bail by order dated 25.6.2002, but subsequently he has died. No certificate of death or any report from the concerned police station has been received in this regard and as such, no order has been passed for abatement of the appeal against the said appellant No. 3 herein. 2. The case relates to the homicidal death of one Shankar Bhuian, brother of the informant Gopal Bhuian (PW6). The deceased had sustained injuries on account of assault made on him situated at village Rajhara, P.S. Patan, district Palamau, in the after noon of 3.9.1998 at 3.00 p.m. The case was registered on the basis of the fard beyan of the informant (PW6) recorded by the ASI B.K. Singh of Patan P.S. at the Primary Health Centre (PHC) Patan at 7.30 p.m. on 3.9.1998. The fard beyan of the informant declares that on 3.9.1998 at 3.00 p.m. he went to the house of his father situated nearby his own house. No sooner had he reached the accused/appellants. Bisheshwar Bhuian, Raj Kumar Bhuian and Chinta Bhuian arrived there, armed with gandasa and declared that the house and the adjacent paddy land belonged to them. The informant protested claiming that he and his father were in occupation of the house and the land since long and had even cultivated the land. The accused persons had however retaliated by giving out abuses and the accused Raj Kumar Bhuian gave a gandasa blow on the head of Shankar Bhuian, as a result of which the victim fell down on the ground with bleeding injuries and became unconscious. When the informant attempted to rescue his injured brother, the appellant Chinta Bhuian gave a gandasa blow on the informants head resulting in injuries on the head. When the informant attempted to rescue his injured brother, the appellant Chinta Bhuian gave a gandasa blow on the informants head resulting in injuries on the head. The third appellant Bisheshwar was exhorting the other two appellants to kill the informant. On alarms, the informants father and the villagers arrived there running and saved them. Thereafter, the injured Shankar Bhuian was taken to the nearby PHC for treatment of the injuries. The motive for assault is said to be the claim of the appellants of a piece of land measuring 11/2 acres which was in occupation of the informant and his family members since past 10 to 12 years. 3. The deceased Shankar Bhuian was referred to RMCH by the attending doctor at the Primary Health Centre, Patan. In course of his treatment at the RMCH, Shankar Bhuian died on 29.9.1998. The case was registered initially for offences under Sections 324/34, 341, 504, 307/34 of the Indian Penal Code and on the death of the injured Shankar Bhuian, offence under Section 302/34 was also added. 4. Pleading innocence and claiming that it was the informant party who, in fact, had provoked a quarrel and had caused serious injuries to the accused/appellants and for which counter case was also instituted against the informant party, the appellants have pleaded their false implicate in the case. At the trial nine witnesses were examined by the prosecution including the informant and the doctor who had prepared the injury report in respect of both the injured persons, the doctor who conducted post mortem examination on the dead body of the deceased and the investigating officer of the case. One witness was also examined on behalf of the defence in order to prove the FIR and the injury report pertaining to the counter case instituted by the accused Chinta Bhuian. 5. The trial court, on considering the evidence on record, had placed reliance on the testimony of the injured informant and finding support from the evidence of PWs 7, 8 and 9, had recorded its finding of guilt against all the three appellants for the afore mentioned offences and sentenced them accordingly. 5. The trial court, on considering the evidence on record, had placed reliance on the testimony of the injured informant and finding support from the evidence of PWs 7, 8 and 9, had recorded its finding of guilt against all the three appellants for the afore mentioned offences and sentenced them accordingly. The main ground on which the judgment of conviction and sentence of the appellants has been assailed is that the trial court has committed a serious error in failing to appreciate the evidence on record in proper perspective and, particularly, in failing to appreciate that it was a free fight between both sides and that it was the informant party who had given provocation and if in course of the scuffle, even if some injuries to any member of the informant party was caused at the hands of the appellants, it in itself could not constitute any offence, since it was an act in exercise of their right of private defence. Learned Counsel representing the appellants refers to Ext A, which is the FIR of the counter case and also to the injury report pertaining to the injuries sustained by the appellant Chinta Bhuian and Raj Kumar Bhuian and submits that since both the cases arise out of the same occurrence and instituted against both the parties and investigation was conducted by the same investigating officer, the trial court ought to have tried both the cases together in order to appreciate the facts in proper perspective. Even other wise, the trial court ought to have considered the facts and circumstances constituting the genesis of the occurrence on the basis of the statements contained in the FIR of the counter case and should have also discredited the prosecution case and statement of witnesses examined by the prosecution on the ground that the prosecution has failed to explain the injuries caused to the two accused persons. Learned Counsel adds further that even going by the circumstances placed by the prosecution, there was no intention on the part of the accused persons to commit murder of the deceased or the informant since there is no allegation of repetition of assault on any of them and the fact that the informant sustained injuries which were simple in nature, indicate clearly that the assault on him could not have been made with intention to kill the deceased and the informant or even to cause such bodily injuries knowing that it was likely to cause their death since the deceased, who though sustained single injury, had not suffered instant death. Rather, his death occurred after more than 26 days of the date of occurrence on account of the neglect on the part of the doctor who had treated him. Learned Counsel submits that in this view of the matter, the conviction for offences under Section 307/34 IPC is totally misconceived and not sustainable in law. Raising yet another controversy, learned Counsel submits that the very place of the occurrence has not been firmly established, in as much as while some of the witnesses claim that the place of occurrence is the house of the deceased, others claim that it was an open field and in absence of collection of any blood stained earth from the actual place of occurrence by the investigating officer, there is ambiguity in respect of the description of the place of occurrence. Learned Counsel adds that according to the defence, the place of occurrence was on the road and not within the house of the deceased or any paddy field adjacent to his house. 6. Refuting the grounds advanced by the learned Counsel for the appellants and defending the impugned judgment of conviction and sentence, learned Counsel for the State submits that the facts and circumstances which have been brought by the prosecution through the evidence on record clearly indicate that the deceased suffered homicidal death on account of the injury which he had sustained on his head which had eventually proved fatal. Learned Counsel adds further that the very fact that vital part of the body namely the head of the victim was selected for inflicting the injury and that too with a heavy sharp cutting weapon and the fact that the accused persons had arrived at the house of the deceased fully prepared, gives ample material to draw the inference that the assault was made with the intention of causing such bodily injuries knowingly that it was likely to cause death of the victim. Learned Counsel adds further that the contention of the appellant that the prosecution case should be disbelieved due to non explanation of the injuries found on the person of the accused appellants, is misconceived, firstly because the purported injuries to the accused persons were not caused in course of the same transaction and secondly, because going by the nature of the injuries, the same were simple and superfluous for which the prosecution had no obligation to offer any explanation. Learned Counsel adds further that the trial court has reasonably considered the circumstances and has recorded his findings of guilt against the accused appellants not for offence of murder, but for offence of culpable homicide not amounting to murder. 7. From perusal of the impugned judgment, it transpires that the trial court on considering the evidence on record had felt inclined to accept the testimony of PWs 3 and 4 as eye witness account and had not given much reliance on the testimony of PWs 1, 2 and 5 whose evidence is based on hearsay. However, the trial court had heavily relied on the testimony of the informant (PW6) considering the fact that he was one of the injured victims. The informant (PW6) in his deposition has reiterated the statement contained in his fard beyan. He confirms that on the date of the occurrence, he had gone to the house of his father. At that time, his brother Shankar Bhuian, Gopal Ram and Panchu Ram were also present. Shankar Ram came out of his house for drinking water at that time. All the three appellants arrived in front of the house of Shankar and began giving out abuses. They demanded that Shankar Bhuian and his family members should vacate the house which was in their occupation. Shankar Ram came out of his house for drinking water at that time. All the three appellants arrived in front of the house of Shankar and began giving out abuses. They demanded that Shankar Bhuian and his family members should vacate the house which was in their occupation. The informant party protested whereupon the appellant Raj Kumar Bhuian gave a gandasa blow on the head of Shankar Bhuian as a result of which he fell down on the ground sustaining bleeding injuries and became unconscious. The informant tried to pick up his injured brother, but he too was assaulted on his head by the appellant Chinta Bhuian with a gandasa. On his alarm, witnesses Babloo Ram, Gopal Ram, Triloki Bhuian and others arrived there whereupon the assailants fled away. The injured Shankar Ram was taken to the public health centre Patan. It was at the said hospital that the police had arrived and recorded the fard beyan of the informant. He was also treated for his injury on his head. The doctor at the hospital had advised to take the injured Shankar Bhuian to Hospital at Ranchi and thereafter the injured was taken and admitted to RMCH, Ranchi, where he died in course of treatment. He adds further that the police officer had visited RMCH also and had recorded statement of the injured Shankar Bhuian. He admits in his cross-examination that the accused/appellants had also instituted counter case against him and his family members. He explains that at the hospital, Shankar had regained consciousness and was able to speak. Though PWs 1, 2 and 5 have been claimed as hearsay witnesses on account of the fact that they had not yet arrived at the place of the occurrence hen the victim was assaulted, but each of these witnesses is consistent in his testimony that he had reached at the place of the occurrence almost immediately on hearing alarms and on their arrival at the place of occurrence, they saw both the deceased as well as the informant in injured condition and they had also seen the appellants fleeing away towards their house. The evidence of PWs 2 and 4 are also more or less similar. The evidence of PWs 2 and 4 are also more or less similar. These two witnesses appear to have indulged in certain improvements and exaggerations, but they also appear to have arrived at the place of the occurrence almost immediately after the occurrence and had seen the informant and his brother Shankar Bhuian lying injured and had seen head injuries on the persons of Shankar Bhuian and the informant. The evidence of these witnesses lend support to the prosecution case on two points, firstly, that the incident had occurred in front of the house of Shankar Bhuian and secondly that both Shankar Bhuian and the informant Gopal Bhuian had sustained head injuries. The injuries caused to Shankar Bhuian had rendered him unconscious. Referring to the place of occurrence, the FIR of the counter case (Ext. A) also confirms that the place of occurrence is an open land in front of the house of the informant Shankar Bhuian. There is therefore no ambiguity as regards the location of the place of the occurrence. Therefore, even if the investigating officer in course of inspection of the place of occurrence has not collected any blood stained earth from the place of the occurrence, this in itself does not lead to any anomaly in the description of the place of the occurrence. The fact that the informant and his brother Shankar Bhuian had sustained head injuries is confirmed also by the medical evidence of PW. 7 from whose evidence it appears that on 3.9.1998 while he was posted as Medical Officer at Patan State Dispensary, he had examined Shankar Bhuian and had found an incised wound 31/2" x 1/2" bone deep cut on left side of parietal bone. The injury was grievous in nature and caused by a sharp cutting weapon; He also found another incised would 6" x 1/4" x skin deep on front of chest, both sides though simple in nature, but caused by sharp cutting weapon. The injured was provided first aid and thereafter referred to the Sadar Hospital at Daltonganj. The age of the injury was assessed within six hours prior to his examination. Almost simultaneously, he had examined Gopal Bhuian and had found a wound 5"x 1/2" x bone deep on the right side of parietal bone. The injured was provided first aid and thereafter referred to the Sadar Hospital at Daltonganj. The age of the injury was assessed within six hours prior to his examination. Almost simultaneously, he had examined Gopal Bhuian and had found a wound 5"x 1/2" x bone deep on the right side of parietal bone. The injury was simple in nature, but caused by a sharp cutting weapon and age of the injury was found to be within six hours. It is apparent that the deceased was twice assaulted by sharp cutting weapon, as a result of which he sustained grievous injuries on his skull and another injury, though simple, but on the region of his chest. The evidence of PW8, Dr. Ajeet Kumar Chaudhary, who conducted the post mortem examination on the dead body of the deceased Shankar Bhuian on 3.9.1998 at RMCH, also confirms the presence of the wound measuring 20 cm long on the right frontal part of the occipital region of the head and there was a bonny gap underneath measuring 8 cm x 6 cm at right parietal bone through which brain matter was found protruded with infection of brain and presence of puss underneath. The cause of death of the deceased, in the opinion of the doctor was on account of head injury. The above evidence of the doctor amply demonstrates that the deceased Shankar Bhuian had died on account of the injury caused to him on his head. The investigating officer (PW9) has described the place of occurrence to be the courtyard of the house of the informant within village Rajhara, situated at a distance of 15kms from the Police Station. He claims that in his inspection of the place of the occurrence, he had found bloodstains on the earth, though he admits that he did not collect any blood stained earth. He further acknowledges that he had also investigated the case which was registered on the basis of the FIR lodged by the accused Chinta Bhuian and had submitted charge sheet in the counter case also and claimed to be arising out of the same occurrence. 8. The evidence of the informant (PW6) is amply corroborated by the oral evidence of the other witnesses and also by the medical evidence. 8. The evidence of the informant (PW6) is amply corroborated by the oral evidence of the other witnesses and also by the medical evidence. His presence at the place of the occurrence has been reasonably explained and above all, considering the fact that he had also sustained injury in course of the occurrence, his testimony inspires confidence and is dependable and worthy of placing reliance. From the entire facts and circumstances of the case, it appears that both sides had sustained injuries and two different cases were filed, each counter to the other, arising out of the same occurrence. The plea of right of private defence as advanced by the appellants needs however to be considered keeping in view the place of the occurrence and also the point as to which party was aggressor. From the evidence on record, it appears that the place of occurrence is in front of the house of the deceased Shankar Bhuian. This has also been acknowledged by the accused persons in their FIR of the counter case and has also been confirmed by the investigating officer. From the evidence of PW6, it transpires that all the three appellants, armed with gandasa, had arrived at the house of the deceased and made provocation by hurling filthy abuses against the members of the informant party and thereby inviting protest from the other side. The appellants had simultaneously launched assault, firstly on the deceased rendering him unconscious by a gandasa blow on his head and also injuries on his chest and had also assaulted the informant when he had tried to rescue his injured brother. It is, therefore, apparent that it was the accused/appellants who were the aggressors and that they had arrived at the house of the deceased fully armed with a common intention to assault the members of the family of the deceased. Referring to the injuries purported to have been sustained by the appellants Chinta Bhuian and Rajkumar Bhuian, it appears that each of them had sustained one injury, that too simple in nature, whereas the injuries inflicted upon the deceased were grievous and caused by a heavy sharp cutting weapon. The prosecution was therefore not obliged to explain the simple superficial injury which was later on found on the person of the accused appellants. The prosecution was therefore not obliged to explain the simple superficial injury which was later on found on the person of the accused appellants. Under such circumstances, the appellants cannot claim protection by claiming right of private defence for inflicting grievous injuries on the deceased. 9. However, from the facts and circumstances, it appears that the assault made by the appellants on the victim was preceded by verbal abuses and counter abuses prompting the accused appellants to launch the assault. The trial court has rightly inferred that the circumstances do not indicate that the assailants had any intention to commit murder of the deceased and that though the deceased succumbed to the head injury inflicted on him, the case falls under the category of culpable homicide not amounting to murder. Since the injury inflicted on the deceased is attributed to appellant Raj Kumar Bhuian, he is liable to be convicted for offence under Section 304 IPC even without the aid of Section 34 IPC. By the same logic that though the assailants had come prepared fully and armed with lethal weapons and indulged in assaulting the members of the informant family, but apparently, their intention was only to cause hurt and not to commit murder of the deceased or of the informant, the offence under Section 307 IPC is not made out against any of the appellants. As per evidence on record, appellant No. 2 Chinta Bhuian is the person who had inflicted the gandasa blow on the head of the informant, but in absence of any allegation of repetition of assault and on considering the fact that the injury caused was simple in nature, the appellant Chinta Bhuian is liable for offence under Section 324 IPC and not for the offence under Section 307 IPC. The third appellant Bisheshwar Bhuian is held liable for offence under Sections 324/34 and under Section 341 IPC. In absence of adequate evidence for offence under Section 504 IPC, conviction of the appellants for offence under Section 504 IPC is not sustainable. 10. For the reasons aforesaid, this appeal is accordingly, dismissed with partial modification. While the conviction for offence under Section 304 IPC as well as for offence under Section 341 IPC is sustained against the appellant No. 1 Raj Kumar Bhuian, the sentence imposed upon him is however reduced to ten years for offence under Section 304 IPC. 10. For the reasons aforesaid, this appeal is accordingly, dismissed with partial modification. While the conviction for offence under Section 304 IPC as well as for offence under Section 341 IPC is sustained against the appellant No. 1 Raj Kumar Bhuian, the sentence imposed upon him is however reduced to ten years for offence under Section 304 IPC. While the sentence of one month for offence under Section 341 IPC as imposed upon him is sustained, his conviction for offence under Section 307/34 IPC and for offence under Section 504 IPC and corresponding sentence as imposed upon him by the trial court is set aside. Likewise, the conviction and sentence for offence under Section 304 IPC against the appellant No. 2 Chinta Bhuian is set side. Instead, he is convicted for offence under Section 324 IPC and sentenced to imprisonment for three years. The sentence of one month for offence under Section 341 IPC as imposed upon him by the trial court is sustained. The conviction and sentence of the appellant No. 3 Bisheshwar Bhuian for offences under Sections 304/34 IPC and for offence under Section 307/34 IPC is set aside. Instead, he is convicted for offence under Section 324 IPC and sentenced to imprisonment for three years. His conviction and sentence for one month for offence under Section 341 IPC as imposed upon him by the trial court is sustained. R.R. Prasad, J. 11. I Agree