Judgment ( 1. ) THE appellants have preferred this appeal against the impugned judgment dated 19. 8. 1999 passed in S. T. No. 128/96 by learned Additional Sessions judge, Aagar, district Shajapur (M. P.), whereby convicted the appellants as under :- (i) Appellant Karan Singh has been convicted under Section 302 of the Indian Penal Code (for short "the IPC"), sentenced to RI for life and fine of Rs. 1,000/ -. He has also been convicted under Section 324/34 and sentenced to RI for six months. Substantive jail sentences of appellant Karan Singh shall run concurrently. (ii) Appellant Kalu Singh has been convicted under Section 324 of "the IPC", sentenced to RI for six months. (iii) Appellants Dule Singh and Chatar Singh have been convicted under Section 324/34 of "the IPC" and both have been sentenced to RI for six months. ( 2. ) ACCORDING to the prosecution case, 4 to 5 days prior to the date of incident i. e. on 5. 5. 1996 complainant PW-2 Shiv Singh fixed fencing on the embankment of his field. On 5. 5. 1996 complainant Shiv Singh was taking his she-buffalo in the morning at 10:00 A. M. , at that time he saw that appellant no. 2 Dule Singh was removing the fencing. Shiv Singh reached near the embankment and objected removal of fencing by Dule Singh, on which Dule Singh told him that fencing was not fixed after taking their consent, therefore, he would not allow the same. Dule singh continued to remove fencing and on objection raised by complainant Shiv singh (PW-2); he hurled filthy abuses in the name of mother and sister and also threatened him to kill. At this juncture appellant Karan Singh having handle of axe, Kalu Singh with Farsi, deceased-appellant Chatar Singh having Lathi reached in the field of the complainant PW-2 Shiv Singh and surrounded Shiv Singh. Appellant Kalu Singh dealt a Farsi blow causing injury on right cheek of Shiv singh; the wound started bleeding. Shiv Singh fell on the ground, thereafter Dule singh caused him injury on his left hand and shoulder by Lathi. Deceased appellant chatar Singh also used Lathi for assaulting complainant. Shiv Singh raised cry, on which his uncle deceased Bhagwan Singh, PW-3 Ramlal and mother PW-5 Ganga bai reached on the spot to save him. Shiv Singh fell on the ground, thereafter Dule singh caused him injury on his left hand and shoulder by Lathi. Deceased appellant chatar Singh also used Lathi for assaulting complainant. Shiv Singh raised cry, on which his uncle deceased Bhagwan Singh, PW-3 Ramlal and mother PW-5 Ganga bai reached on the spot to save him. PW-3 Ramlal caught hold of Kalu Singh but appellant Karan Singh successfully dealt a blow by handle of axe on the head of bhagwan Singh resulting into his fall in the field. After assault all the four, with their weapons, fled away towards their well. Bhagwan Singh was brought underneath the mango tree; he was dead. PW-2 Shiv Singh went to Police Station and lodged the report at 11:30 A. M. vide Ex. P/2, recorded by Station House Officer pw-10 Mahendra Singh Gaur. Shri Gaur reached on the spot and prepared inquest report Ex. P/5 of the dead body of Bhagwan Singh; he also effected the seizure of blood stained and controlled earth, bamboo stick, branches of Babool tree and blood stained stones from the spot through seizure memo Ex. P/3. He also prepared spot map Ex. P/15 and sent dead body for postmortem examination, which was conducted by PW-9 Dr. A. S. Khan. Postmortem report is Ex. P/14. Complainant pw-2 Shiv Singh was medically examined by PW-1 Dr. Sanjay Khandelwal, his mlc report is Ex. P/1. All the four accused persons were nabbed and on their disclosure statements, vide Ex. P/6 to P/9, the weapons of offence were seized through seizure memo Ex. P/18 to P/21. The seized weapons, clothes of deceased, blood stained and controlled earth, were sent for examination to Forensic Science laboratory. Forensic Science Laboratory report was filed in the Court, vide Ex. P/22. On axe, Farsi, blood stained earth, stone and clothes of deceased Bhagwan Singh, simple blood was found. Serologist report was also filed but exhibit was not marked on it; according to this report human blood was found on stone and clothes of the deceased, rest articles were not sufficient for test. On due investigation, charge sheet was filed against the four accused persons under section 302, 302/34, 324, 324/34, 294 and 506 Part-II of "the IPC". ( 3. ) APPELLANTS refuted the charges. On due investigation, charge sheet was filed against the four accused persons under section 302, 302/34, 324, 324/34, 294 and 506 Part-II of "the IPC". ( 3. ) APPELLANTS refuted the charges. The defence of deceased appellant Chatar Singh was of false implication; he was the guest of appellant Karan Singh and not residing in the village of other appellants and complainant party i. e. village Bhanpura, and the defence of other appellants was that appellant Dule Singh had gone to remove the fencing after taking permission from Parvat Singh, the father of Shiv singh, at that time he was assaulted by Shiv Singh, whereas according to Kalu Singh; he reached on the spot and tried to save his brother-appellant Dule Singh but he was caught by PW-3 Ramlal and he had not assaulted anybody. The defence of appellant no. 1 Karan Singh was that his son appellant Dule Singh was lying on the ground because of assault by complainant Shiv Singh and his son kalu Singh was caught by PW-3 Ramlal, at that juncture he saw deceased bhagwan Singh reaching on the spot by running having Lathi and was also tried to dealt a Lathi blow on the head of Kalu Singh. At that moment, in defence of his son Kalu Singh he dealt a solitary Lathi blow to Bhagwan Singh. Appellants examined DW-1 Prabhulal in their defence. The learned trial Court found the prosecution case proved, convicted the appellants as described herein-above. ( 4. ) LEARNED counsel for the appellants has submitted that appellants acted in right of private defence of their person and complainant was the aggressor, therefore, case of the appellants is fully covered by law of private defence. In alternative, he has also submitted that offence under Section 302 of "the IPC" would not be made out against the appellant Karan Singh because incident occurred all of a sudden and both the parties entered into free fight, in which solitary blow was given in a sudden quarrel by appellant Karan Singh causing injury to Bhagwan singh, therefore, appellant no. 1 Karan Singh would be liable for commission of offence under Section 304 Part-I of "the IPC". ( 5. 1 Karan Singh would be liable for commission of offence under Section 304 Part-I of "the IPC". ( 5. ) ON the other hand, learned counsel for the State has supported the impugned judgment and finding of the trial Court and also submitted that eyewitnesses and injured witness PW-2 Shiv Singh, the complainant, were not cross-examined by the defence pleading acting in right of private defence of their person. He has also submitted that fencing was fixed 4 to 5 days prior to the date of incident, therefore, appellant Dule Singh was not having any right to remove the same and proper course for him was to go and complain to the authority, if there was any kind of encroachment of his land. It is also submitted that none of the appellants have sustained even a single scratch on their person, they have also not lodged any report and also there is no medical evidence in their support, therefore, the defence taken by appellant Karan Singh, for the first time in his accused statement, was after thought and same is not spelled out from the material available on record. ( 6. ) HAVING heard the learned counsel for the parties and after perusing the evidence available on record, oral as well as documentary, we are of the considered view that no case of right of acting in private defence of their person is made out in favour of the appellants. Appellants have not sustained any injury in the said incident and they had also not lodged any report against encroachment of their land or any kind of attack made on Dule Singh by complainant Shiv Singh (PW-2), who sustained as many as five injuries on his person. He (Shiv Singh) was medically examined by PW-1 Dr. Sanjay Khandelwal, who proved his medical report Ex. P/1 and also described in the Court injuries found by him on the person of Shiv Singh. According to statement of Dr. Khandelwal, Shiv Singh suffered two incised injuries; one on right cheek and another on right eyebrow, rest three injuries were bruise on right shoulder, left shoulder and left side of the waist. Dr. Khandelwal, in cross-examination paragraph-4, clarified that injury no. 2 on right eyebrow was not incised wound but it was lacerated wound and injury no. Khandelwal, Shiv Singh suffered two incised injuries; one on right cheek and another on right eyebrow, rest three injuries were bruise on right shoulder, left shoulder and left side of the waist. Dr. Khandelwal, in cross-examination paragraph-4, clarified that injury no. 2 on right eyebrow was not incised wound but it was lacerated wound and injury no. 1 could be caused by sharp edged weapon, rest injuries could be caused by hard and blunt object. ( 7. ) ACCORDING to complainant-injured witness (PW-2) Shiv Singh, when he had seen appellant Dule Singh removing the fencing from his field; he reached over there and asked as to why he was removing the fencing, at which Dule Singh abused him filthily in the name of his mother and sister and also threatened him, immediately thereafter appellant Karan Singh and Kalu Singh reached over there having axe and Farsi. After their reaching, deceased-appellant Chatar Singh also reached on the spot having Lathi and they started assaulting him. Further say of this witness is that Kalu Singh caused him injury by Farsi on his right cheek and eyebrow, appellant Dule Singh assaulted him by Lathi causing injury on his waist and Chatar Singh also caused him injury by Lathi. Shiv Singh (PW-2) has also deposed that at his outcry PW-3 Ramlal and his mother PW-5 Ganga Bai reached on the spot and appellant Karan Singh dealt an axe blow on the head of Bhagwan singh resulting into his fall in the field, thereafter all the appellants started assaulting him. On intervention of Ramlal (PW-3) appellants ran away. Bhagwan Singh, in injured condition, was brought from the field and kept underneath the mango tree; he was dead, thereafter he along with Ramlal and Gokul Singh reached at Police station, Aagar and he lodged the report Ex. P/2. He admitted the contents of FIR and his thumb impression on FIR. In cross-examination paragraph-4 Shiv Singh (PW-2) has stated that when he objected removal of fencing by Dule Singh; Dule singh dealt him two Lathi blows, thereafter they grappled with each other. In the meanwhile appellant Kalu Singh reached there and assaulted him by Lathi, because of which he fell in the field. In paragraph-6, he has repeated the specific overt act, as stated in examination-in-chief and also stated that he could not see whether axe blow was caused by sharp side or blunt side. In the meanwhile appellant Kalu Singh reached there and assaulted him by Lathi, because of which he fell in the field. In paragraph-6, he has repeated the specific overt act, as stated in examination-in-chief and also stated that he could not see whether axe blow was caused by sharp side or blunt side. The statement of Shiv Singh regarding causing injury by all the four accused persons to deceased is nothing but an exaggeration because the autopsy surgeon had found only one injury on the skull caused by hard and blunt object and according to the FIR, lodged by this witness Shiv Singh, Karan Singh was having handle of the axe and not the axe, therefore, it is clear that in Court he has improved his version. PW-3 Ramlal, in cross-examination paragraph-4, has deposed that when Dule Singh was removing the fencing, (PW-2) Shiv Singh reached near him and assaulted him by rope, thereafter both grappled; at that juncture he and deceased Bhagwan Singh rushed towards the place of incident. They were sitting about 200 paces from the place of incident, whereas appellant Kalu Singh and Chatar Singh were sitting about 300 to 400 paces and Kalu Singh reached on the spot from different direction. They all reached on the spot from different-different directions. Appellant Kalu Singh was caught by him, at that moment he saw that deceased Bhagwan Singh was also having a small branch of "khakhra" tree at 4 to 5 cubit of him, at that moment Karan Singh having Lathi in his hand dealt a blow on the head of Bhagwan Singh and Bhagwan singh fell on the ground. PW-3 Ramlal has not been declared hostile by the prosecution and after cross-examination there is no re-examination of this witness by the prosecution, therefore, prosecution is bound by the statement of Ramlal. ( 8. ) PW-4 Gokul Singh has stated that fencing was fixed on their land and incident occurred in the field of Parvat Singh i. e. " father of PW-2 Shiv Singh. ( 8. ) PW-4 Gokul Singh has stated that fencing was fixed on their land and incident occurred in the field of Parvat Singh i. e. " father of PW-2 Shiv Singh. In cross-examination of Gokul Singh, it has come that fencing was fixed some 10 days prior to the date of incident and when Karan Singh made a complaint to Parvat Singh; Parvat Singh told him that they had fixed "bagar" (fencing) on their land and if they (accused party) are having any objection, they will remove the same and would get the demarcation of land from Patwari, thereafter the fencing would be fixed. In the light of the statement of PW-3 Ramlal, in cross-examination appellant no. 3 Dule Singh was not having any business to go and remove the fencing fixed before 10 days of the incident, if he had any grievance he could lodge a report with the Revenue Authority and get the land demarcated but he took the law in his hand and started demolishing the fencing. In view of the statement of Ramlal, in cross- examination, Dule Singh was given beating by rope by Pw-2 Shiv Singh, thereafter both grappled and members of both the families one after another reached on the spot and took part in the incident. In the said incident, they caused injuries to PW-2 Shiv Singh and also to Bhagwan Singh. As stated by Ramlal (PW-3); he caught appellant Kalu Singh and deceased Bhagwan singh was also having branch of "khakhra" tree and he was also running towards the place of incident, at that juncture Karan Singh gave a blow by Lathi. The overt act of Karan Singh causing injury on the head of Bhagwan Singh by Lathi is fully corroborated by medical evidence. PW-2 injured witness Shiv Singh has also stated that he was not able to say whether sharp side or blunt side of axe was used by the Karan Singh? In this situation the statement of Ramlal (PW-3) appears to be reliable, who has given complete picture of incident and specific overt act of both the parties. This is true that appellants have not sustained any injury but force was used by Shiv Singh (PW-2) as well as Ramlal (PW-3) by catching hold of Kalu Singh. Therefore, in the considered view of this Court the appellants would be liable for their individual act. This is true that appellants have not sustained any injury but force was used by Shiv Singh (PW-2) as well as Ramlal (PW-3) by catching hold of Kalu Singh. Therefore, in the considered view of this Court the appellants would be liable for their individual act. There is no evidence on record that they had pre-meeting of mind, pre-meditation and pre-plan for causing simple injury or any kind of injury to Shiv Singh (PW-2 ). The learned trial Court has convicted appellant Karan Singh under Section 302 of "the IPC" simplicitor. This also shows that appellants were not having any kind of common intention for causing injury, therefore, they would be liable for their individual act. As discussed herein-above, it is also clear that incident occurred all of a sudden and in a heat of passion, in a sudden quarrel, appellant Karan Singh gave a solitary Lathi blow causing injury on the head of deceased Bhagwan Singh, who succumbed to this injury. Autopsy surgeon PW-9 Dr. A. S. Khan found only one depressed lacerated wound on left temporal bone, no other external injury was seen by Dr. Khan on the person of deceased and it is also not a prosecution case that other accused persons had also assaulted the deceased except some exaggeration made by PW-2 Shiv Singh. On internal examination Dr. Khan found fracture of left parieto temporal bone and bones were divided in three pieces, out of which one piece pierced inside the brain, damaging brain membranes and brain matter came out of the fracture. The deceased died because of shock due to head injury. Dr. Khan proved postmortem report Ex. P/14. ( 9. ) THE defence of appellant Karan Singh that deceased Bhagwan Singh raised lathi for causing injury to appellant Kalu Singh is not substantiated by any suggestion given to prosecution eyewitnesses. This defence was taken by him for the first time in his accused statement and as discussed herein-above appellants had not sustained any injury and incident occurred in the field of complainant party, no report was lodged by the appellants regarding any grievance against complainant party. Under these circumstances in the considered opinion of this court appellant Karan Singh would not get any benefit of right of private defence of person of appellant no. 2 Kalu Singh. Since the incident occurred all of a sudden and appellant reached on the spot in piecemeal. Under these circumstances in the considered opinion of this court appellant Karan Singh would not get any benefit of right of private defence of person of appellant no. 2 Kalu Singh. Since the incident occurred all of a sudden and appellant reached on the spot in piecemeal. Appellant Karan Singh dealt a solitary blow in a heat of passion when he saw his son Dule Singh grappled with Shiv Singh and another son Kalu Singh caught by Ramlal (PW-3 ). Appellant Karan Singh had also not taken any undue advantage, therefore, his act of causing solitary blow on the head of deceased Bhagwan Singh would fall under Clause-4 of exception of Section 300 of "the IPC", punishable under Section 304 Part-I of "the IPC". ( 10. ) IN the result this appeal is allowed in part. Conviction and sentence of the appellant no. 1 Karan Singh under Section 302 and 324/34 of "the IPC" as well as conviction and sentence of appellant no. 3 Dule Singh under Section 324/34 of "the IPC" are hereby set aside, instead thereof appellant no. 1 Karan Singh is convicted under Section 304 Part-I of the IPC" and sentenced to RI for seven years and fine of Rs. 2,000/-; in default of payment of fine he shall suffer additional ri for three months. Conviction of appellant no. 2 Kalu Singh under Section 324 of "the IPC" is maintained but his sentenced is reduced to the period already undergone (113 days ). Appellant no. 3 Dule Singh is convicted under Section 323 of "the IPC" causing simple injury by Lathi to PW-2 Shiv Singh and sentenced to the period already undergone (113 days ). The appellants are on bail. Appellant no. l Karan Singh is directed to surrender himself before the trial Court on 30th january 2009 and trial Court is directed to send him to jail for undergoing remaining part of jail sentence. Bail bond and surety bond of appellant no. 2 Kalu Singh and appellant no. 3 Dule Singh stand discharged. On failure of appellant no. l Karan singh to appear on a given date before the trial Court, the trial Court is directed to take suitable action against him and his surety, under intimation to this Court. Appeal partly allowed.