JUDGMENT: P.R. BORKAR, J.:- 1. This is an appeal preferred by original accused Nos. 1 and 2 being aggrieved by the order of conviction and sentence passed by the learned Additional Sessions Judge, Amalner in Sessions Case No. 52 of 2004 decided on 25.07.2006, whereby appellant No.1 - Kailas is convicted of offence punishable under Section 302 of the I.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for six months; and accused No. 2 Chotu is convicted of offence punishable under Section 324 of the I.P.C. and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for three months. 2. The facts giving rise to this appeal may be stated as below:- On 02.09.2004 P.W.2-Pandurang Koli lodged complaint at Adavad Police Station, Tal. Chopda that he was residing at village Adavad with his wife Sindhubai (P.W.4) and children. At village Watar, Tal. Chopda his in-laws reside. On 01.09.2004 at about 5.00 to 6.00 p.m.Lotan Barku Koli had teased his son Samadhan and therefore his wife Sindhubai (P.W.4) went to question Lotan Barku Koli, who is admittedly younger brother of present appellants. At that time Lotan had abused and gave pushes to Sindhubai (P.W.4). Thereafter, P.W.4-Sindhubai went to Watar and complained her brothers. On 02.09.2004 at about 07.00 a.m. Bhagwan Mula Koli and P.W.3-Shivaji Mula Koli, who were brothers of P.W.4 - Sindhubai had come to the house of Pandurang Koli. Thereafter, said two persons along with P.W.2-Pandurang and his wife P.W.4-Sindhubai went to the house of accused. At that time, being enraged, appellant No.1 gave blows with an axe on the head of Bhagwan. Appellant No.2 Chotu gave blows with a stick on the head of P.W.2-Pandurang and Lotan who was juvenile offender had given blow with an axe to P.W.3-Shivaji on his hand and back. The appellants and juvenile offender Lotan also gave abuses and threats. Thereafter, Pandurang and others ran to the Police Station. Bhagwan was taken to the hospital. Accordingly, complaint was registered. It is further prosecution case that as a result of injuries, to Bhagwan, he died on same day i.e. 02.09.2004, in the hospital at Jalgaon where he was shifted for treatment. 3. The evidence against the appellants mainly consists of evidence of eye-witnesses. It is argued before us by Adv. Mrs. Accordingly, complaint was registered. It is further prosecution case that as a result of injuries, to Bhagwan, he died on same day i.e. 02.09.2004, in the hospital at Jalgaon where he was shifted for treatment. 3. The evidence against the appellants mainly consists of evidence of eye-witnesses. It is argued before us by Adv. Mrs. Jadhav that the case is clearly covered by right of private defence of body. The prosecution witnesses and the deceased were aggressors. They had caused injuries to the appellants and Lotan by going to their house and as such injured prosecution witnesses are facing counter case for committing offence under Section 325 of the I.P.C. and therefore both the appellants are entitled to acquittal. 4. P.W.2 Pandurang Koli examined at Exh.13, P.W.3-Shivaji Koli examined at Exh.15 and P.W.4-Sindhubai Koli examined at Exh.17 have stated that since juvenile offender Lotan had teased Samadhan, Sindhubai had gone to the house of Lotan to question him. At that time Sindhubai was beaten and abused and therefore Sindhubai complained about it to her brothers deceased Bhagwan and P.W.3-Shivaji. It is not disputed that on 02.09.2004 at about 7.00 a.m. P.W.2-Pandurang, P.W.4-Sindhubai and her brothers deceased Bhagwan and P.W.3-Shivaji went to the house of the appellants and Lotan at Adavad. According to prosecution case, they had gone for giving understanding and persuading the accused not to indulge in such things, but Appellants and Lotan abused them. 5. As per evidence of P.W.2-Pandurang Koli appellant No.1 - Kailas gave blow with an axe on the head of Bhagwan. Juvenile offender Lotan gave blow with an axe on hand and back of Dnyaneshwar and appellant No.2 Chotu gave stick blow on the head of Pandurang. Bhagwan was lying on the ground due to the axe blows. He sustained bleeding injuries on the head. Dnyaneshwar also sustained bleeding injuries and thereafter P.W.2-Pandurang went to Adavad Police Station and lodged complaint (Exh.14). Bhagwan was admitted in the Cottage Hospital, Adavad and then shifted to the Civil Hospital at Jalgaon, where he died on the same day. Pandurang said that he also took treatment in the Cottage Hospital, Adavad. P.W.2-Pandurang proved complaint lodged by him at Exh.14. It appears that he referred to P.W.3-Shivaji as Dnyaneshwar. 6. At Exh.15, P.W.3-Shivaji Koli stated that when they went to the house of the appellants, the appellants came out. Pandurang said that he also took treatment in the Cottage Hospital, Adavad. P.W.2-Pandurang proved complaint lodged by him at Exh.14. It appears that he referred to P.W.3-Shivaji as Dnyaneshwar. 6. At Exh.15, P.W.3-Shivaji Koli stated that when they went to the house of the appellants, the appellants came out. Both the appellants had axes and the juvenile offender was holding a stick. Appellant No.1-Kailas gave axe blow on the head of Bhagwan. Appellant No.2-Chotu gave stick blows on his back and and hand. Appellant No.2-Chotu also gave stick blow on the head of P.W.2-Pandurang. Deceased Bhagwan and P.W.3-Shivaji sustained bleeding injuries. They all went to the Police Station. Bhagwan was taken to the Police Station in a Police van and thereafter they were treated at Adavad Cottage Hospital. 7. P.W.3-Sindhubai Koli, at Exh. 17, stated that when they went to the house of the appellants, the appellants came out of their house. Appellant No.1-Kailash gave axe blow on the head of deceased Bhagwan. Juvenile offender gave blows on the back and hand of P.W.3-Shivaji. Appellant No.2-Chotu gave stick blow to her husband Pandurang on his head. Thereafter, Pandurang lodged complaint and Bhagwan was taken to the hospital from the spot in a Police van. 8. Thus, it is argued by Mrs. Jadhav for the appellants that as per prosecution case Sindhubai was aggrieved because her son Samadhan was teased and when she went to protest, she was abused and beaten and therefore she went to complain to her brothers deceased Bhagwan and P.W.3-Shivaji. On next day i.e. on 02.09.2004 P.W.4-Sindhubai returned to Adavad with her brothers Bhagwan & Shivaji and went to her house. Thereafter, all the three along with P.W.2-Pandurang went to the house of the appellants. So, this sequence shows that these prosecution witnesses and deceased Bhagwan had not only gone to give some understanding or express protest, but, in-fact, to teach a lesson to appellants and Lotan and as such they should be aggressors. Under the circumstances, it can not be believed that the prosecution witnesses were passive and the appellants were aggressors. 9. Mrs. Jadhav also drew our attention to the evidence of Dr. Birasadar (P.W.7) at Exh.31. Dr. Birasadar stated that on 02.09.2004, he examined Shivaji Koli and found following injuries. (1) CLW on right hand of size 3x2x1 cms. Bleeding present. (2) CLW over left scapular region of size 3x1x1 cms. Bleeding present. 9. Mrs. Jadhav also drew our attention to the evidence of Dr. Birasadar (P.W.7) at Exh.31. Dr. Birasadar stated that on 02.09.2004, he examined Shivaji Koli and found following injuries. (1) CLW on right hand of size 3x2x1 cms. Bleeding present. (2) CLW over left scapular region of size 3x1x1 cms. Bleeding present. The injuries were caused with sharp weapon. They were simple injuries caused within 1.40 hours (sic). Accordingly, he issued certificate Exh.32. On that day Dr. Birasadar also examined P.W.2-Pandurang and found one CLW on right side on frontal region of size 1 1/2 x 1/2 x 1/2 Cms. Bleeding present. It was caused with sharp weapon within two hours. The Doctor proved certificate at Exh.33. Dr. Birasadar stated in his cross-examination that on same day i.e. on 02.09.2004 he examined appellant No.1-Kailas, appellant No.2-Chotu and juvenile offender Lotan, on the basis of police memo. He stated that they were examined after he examined prosecution witness Shivaji and deceased Bhagwan. He further stated that he also issued injury certificates to both the appellants and the juvenile offender Lotan. According to him injuries to Shivaji were possible if a person runs with a sickle and suddenly falls on the garbage land and injury to Pandurang was possible if a person runs with a pipe or stick and suddenly falls on the garbage land. 10. P.W.7-Dr. Birasadar further stated that on 02.09.2004, he examined Bhagwan and found following three injuries. (1) Incise wound over frontal region of size 3x2x1 cms. (2) Incise wound over left occipital region of skull of size 4x2x1 cms. (3) Fracture of occipital bone of size 3x1x1 cms. on left side. The injuries were possible with sharp object. They were grievous injuries. He examined the patient at 8.30 a.m. and issued certificate at Exh.46. He stated that the injuries other than fracture injuries to Bhagwan were possible if a person running with sickle suddenly falls on garbage land. When three persons were injured, it is difficult to believe that all three would fall and sustain injuries. 11. Before we draw any conclusion, we may also refer to evidence of P.W.8-Dr. Sonawane, Medical Officer, Civil Hospital, Jalgaon, who had performed post-mortem examination on the dead body of Bhagwan. He stated that he found following injuries. (1) Sutured wound on scalp vertically 10 cm. x 1.5 x bone deep. (2) Sutured wound on scalp horizontal 15 cms. 11. Before we draw any conclusion, we may also refer to evidence of P.W.8-Dr. Sonawane, Medical Officer, Civil Hospital, Jalgaon, who had performed post-mortem examination on the dead body of Bhagwan. He stated that he found following injuries. (1) Sutured wound on scalp vertically 10 cm. x 1.5 x bone deep. (2) Sutured wound on scalp horizontal 15 cms. x 2 cms. x bone deep. (3) Fracture parietal bone left. (4) Fracture vertical and horizontal corresponding to suture line scalp (Head bone). (5) CLW over left deltoid region 5 cms x 2 cms. (5 sutures seen). It may be noted that only injury Nos.1,2 and 5 could be said to be external injuries. According to the Doctor they were antemortem. The injuries were sufficient in the ordinary course of nature to cause death. He proved endorsement Exh.42 made by Dr. Pankaj Vadila, on the letter in which it is stated that the Police made enquiries whether patient Bhagwan was in a condition to give statement. Said report Exh.42 shows that the patient was unconscious and the Doctor has made endorsement that the patient was unconscious. 12. It was suggested to all three eye witnesses that they were assailants. It is suggested that Bhagwan and Dnyaneshwar @ Shivaji were armed with sickle and Shivaji was armed with iron pipe and they had given blows to the appellants and Lotan and caused them injuries. It is further suggested that all these persons had beaten the persons who tried to separate. It was suggested that deceased Bhagwan sustained injuries on his person by falling on an agricultural implement and Pandurang and Dnyaneshwar sustained injuries by falling on the garbage land which was near to the house of the appellants. It is, however, denied by prosecution witnesses that the prosecution witnesses were aggressors and they had caused injuries to the appellants and juvenile offender Lotan. 13. In this case P.W.1 Shivdas Thakare, a panch witness, is examined at Exh.8. He stated that he was not knowing about the contents of the panchanamas on which his signatures were taken. Those panchanamas were of the attachment of the clothes of Shivaji (Exh.9) and panchanama of arrest of appellant No. 2-Chotu (Exh.10), in which is it is stated that appellant Chotu had injury on his right thumb. He stated that he was not knowing about the contents of the panchanamas on which his signatures were taken. Those panchanamas were of the attachment of the clothes of Shivaji (Exh.9) and panchanama of arrest of appellant No. 2-Chotu (Exh.10), in which is it is stated that appellant Chotu had injury on his right thumb. Panchanama Exh.11 is arrest panchanama of appellant No.1-Kailas and it is mentioned therein that he had sustained injuries on his head and finger of left hand. His clothes were also attached. At Exh.12 there is panchanama of attachment of clothes of deceased Bhagwan. In-fact, witness Shivdas Thakare has only identified his signatures on panchanamas. He has turned hostile and did not support the prosecution case regarding contents of panchanama and inspite of that panchanamas are accepted in evidence during deposition of this witness. However, the appellants want to rely on the arrest panchanamas of appellant Nos. 1 and 2 for showing that they were also injured. This is to corroborate admission of Dr. Birasadar in his cross-examination. 14. P.W.5-Jankiram Thakare is another panch who proved spot panchanama Exh.19 and panchanama of discovery of stick by appellant No.2 Chotu and discovery of an axe by appellant No.1 Kailas from their house. P.W.5-Jankiram stated that appellant No.1 Kailas gave statement that he would produce axe from his house and appellant No.2-Chotu gave statement that he would produce stick from his house. Accordingly memorandum panchanamas were prepared at Exh.20 and 22 respectively on 05.09.2004. On same day both the appellants took the Police to their house and produced an axe and a stick respectively. 15. In order to appreciate the defence, we may refer to various provisions of the I.P.C. regarding right of private defence of body. Section 96 lays down that nothing is an offence which is done in the exercise of right of private defence. In Section 99 same principle is laid down, namely, right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The relevant portion of Section 100 is as follows:- "S.100. In Section 99 same principle is laid down, namely, right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The relevant portion of Section 100 is as follows:- "S.100. The right of private defence of the body extends, under the restrictions mentioned in the last proceeding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First.-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Thirdly.- ..................... Fourthly.- ..................... Fifthly.- ...................... Sixthly.- ...................... Section 102 lays down that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as apprehension of danger to the body continues. Section 300 defines murder. Exception 2 as under:- "Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premediation, and without any intention of doing more harm than is necessary for the purpose of such defence." 16. In this case learned A.P.P. Mrs. Mane argued that the appellants did not prove the actual injuries caused to them. Merely relying on some vague admissions is not enough. It is not shown by positive evidence that the doctor found any serious injuries on the persons of the appellants or the juvenile offender Lotan, which were caused with some weapons like stick, axe, sickle or iron pipe. What is proved through admissions is that there were some injuries on the person of the appellants and juvenile offender Lotan. Perhaps some injuries might have been caused to them with fist and kick blows. On the other hand the injuries to prosecution witnesses as proved by Dr. What is proved through admissions is that there were some injuries on the person of the appellants and juvenile offender Lotan. Perhaps some injuries might have been caused to them with fist and kick blows. On the other hand the injuries to prosecution witnesses as proved by Dr. Birasadar show that weapon like axe and stick were used. The injuries to Bhagwan were as many as three and there were fractures. So, they were given with great force. Only intention could be to cause death. At least injuries to Bhagwan were caused intentionally and they were sufficient in the ordinary course of nature to cause death. In the case of Virsa Singh V/s. 465 State of Punjab, 1958 S.C.465, it is observed in para 12 & 13 as follows:- "(12) To put it shortly, the prosecution must prove the following facts before it can bring a case under S.300 "thirdly"; First, it must establish, quite objectively that a bodily injury is present; Secondly, the nature of the injuru must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. (13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S.300 "thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. ................" 17. Dr. Vinay Sonawane (P.W.8) has categorically stated that the injuries to Bhagwan were sufficient to cause death in the ordinary course of nature. Bhagwan was unconscious since he was injured. Bhagwan died on same day as a result of the injuries. There were fractures of skull and subdural haematoma. Dr. Birasadar’s evidence shows that incise wounds were caused on frontal side and left occipital region. A.P.P. Mrs. Mane argued that there was no justification for causing death of Bhagwan. It is not proved that there was reasonable apprehension that otherwise death of any of the appellants or juvenile offender Lotan would have been the consequence or that they had reasonable apprehension that the assault by the prosecution witnesses and deceased Bhagwan would have resulted in grievous hurt to any of them. So, in the facts and circumstances of the case, even if we accept that the prosecution injured witnesses and deceased Bhagwan were aggressors, accused No.1 Kailas who has caused death of Bhagwan in the exercise of right of private defence, has exceeded his right. 18. Several cases are cited by both sides. In the case of Jai Dev and Hari Singh V/s. State of Punjab, AIR 1963 S.C.612, in para 12 and 13, following observations are made:- "(12) ........................ In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious." (13) There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking adecisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room, for instance, long after the incident has taken place. That is why in some judicial decisions it has been observed that the means which a threatened person adopts or the force which he uses should not be weighed in golden scales. ........................" 19. The case of Gopal and others V/s. The State of Rajasthan, AIR 1972 S.C.1838 is cited. It is necessarily a case decided on its own facts and same principles are laid down. 20. The case of Babu Ram and Ors. V/s. State of Punjab, 2008 Cri.L.J.1651 is cited for proposition that where injuries on the person of accused are not examined, they assume more importance when witnesses examined are interested or inimical. However, in the case before the Supreme Court, injuries on the accused were simple but one injury on wife of the accused was grievous. In the facts of that case the accused could be said to have apprehended danger to his and wife’s life. However, in the case before the Supreme Court, injuries on the accused were simple but one injury on wife of the accused was grievous. In the facts of that case the accused could be said to have apprehended danger to his and wife’s life. Infliction of single injury by accused with cobblers instrument he was working with was in exercise of right of private defence. So that was the conclusion in the facts of that case. In the present case the number of injuries on the person of the accused person and their nature is not known. It is not proved that they were caused with some weapon or that the prosecution witnesses and deceased Bhagwan were armed with some weapons. Mere suggestions are not enough. No doubt in the evidence of I.O. A.P.I. Kurhade, it is brought on record in para 14 of his evidence that Crime No.37 of 2004 was registered against accused Bhagwan, Shivaji, Dnyaneshwar and Pandurang under Section 325 of the I.P.C. Both the appellants and juvenile offender were injured. He did not admit that Bhagwan had given sickle blow on the head of Kailas. In their statement under Section 313 of the Cr.P.C., the accused did not give any explanation whatsoever regarding injuries to Bhagwan and injured witnesses nor about injuries on their persons. In their statement under Section 313 of the Cr.P.C., there are answers in negative to all questions asked and no case of self-defence is made out. It is not stated by either of the appellants that injured witnesses and the deceased were armed with any weapon. So, the case cited is not applicable. 21. Another case cited is State of Rajasthan V/s. Madho and another, AIR 1991 S.C.1065. In that case injuries on the person of the accused were proved. They were not explained by the prosecution witnesses and therefore benefit of doubt was given to the accused. 22. In the case of Sukhadeo s/o. Bhiwaji Tumdam V/s. 1059 State of Maharashtra, 1997 CRI.L.J.1059, accused armed with dangerous weapon attacked two persons, one of whom died. Injuries sustained by the accused during incident relatively were of minor nature. It was held that the accused could not claim right of private defence. 23. 22. In the case of Sukhadeo s/o. Bhiwaji Tumdam V/s. 1059 State of Maharashtra, 1997 CRI.L.J.1059, accused armed with dangerous weapon attacked two persons, one of whom died. Injuries sustained by the accused during incident relatively were of minor nature. It was held that the accused could not claim right of private defence. 23. In the case of State of Karnataka V/s. Jinappa Payappa Kudachi and ors., 1993 Cri.L.J.3915, in para No.7 it is observed that in considering the question whether the accused exceeded the right of private defence, the Court has to consider the part played by the accused persons, gravity of the offences committed and the nature of the attack made by them. It is also observed in para 6 that the effect of non-explanation by the prosecution about the injuries on the accused persons depends on the facts and circumstances of each case. Normally, if there is such non-explanation, it may at the most give scope to argue that the accused had the right of private defence or in general that the prosecution evidence should be rejected as they have not come out with the whole truth particularly regarding the genesis of the occurrence. In this case the genesis of the incident is not denied. It is not denied that the injured prosecution witnesses and deceased Bhagwan had gone to the house of the appellants. So, we have to consider whether the appellants suffered any injuries and whether they were exercising the right of private defence and if so whether they exceeded the same. In the facts and circumstances of the case, considering totality of the circumstances, since it is not proved by sufficient evidence that there was reasonable apprehension of death or grievous hurt to any of the prosecution witnesses and in absence of evidence regarding injuries caused to the appellants or the juvenile offender Lotan, only inference is that appellant No.1 Kailas exceeded right of private defence and thus he committed offence under Section 304 Part I of the I.P.Code. 24. The case of Mohinder Pal Jolly V/s. State of Punjab, AIR 1979 S.C.577 is cited to show that the onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. 24. The case of Mohinder Pal Jolly V/s. State of Punjab, AIR 1979 S.C.577 is cited to show that the onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it, he can succeed in his plea if he is able to bring out material in the records of the case on the basis of the evidence of the prosecution witnesses or on the other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. In this case though the appellants could show from the prosecution evidence that they were exercising the right of private defence of person, they failed to prove that causing of fatal injuries to Bhagwan was justified in the circumstances of the case. In our opinion, in this case the appellant No.1 Kailas has exceeded right of private defence and has committed offence punishable under Section 304 Part I of the I.P.C. The case is covered by Clause thirdly and exception thirdly of Section 300 of the I.P.C. 25. The Trial Court convicted appellant No.1 Kailas of offence punishable under Section 302 of the I.P.C. It did not hold appellant No.2 Chotu guilty of offence under Section 302 r/w Section 34 of the I.P.C. Obviously, Section 34 of the I.P.C. was not brought in to operation and was not made applicable so far as intention to cause death is concerned. We agree with this finding that there was no common intention shared by all to cause death. In our opinion, the blows given by appellant No.1-Kailas on the head of deceased Bhagwan was his individual act and therefore, he would be alone liable for committing homicide. We agree with this finding that there was no common intention shared by all to cause death. In our opinion, the blows given by appellant No.1-Kailas on the head of deceased Bhagwan was his individual act and therefore, he would be alone liable for committing homicide. In this view of the matter, the conviction of appellant No.1-Kailas which is liable to be reduced from offence punishable under Section 302 to offence punishable under Section 304 Part I of the I.P.C. At the same time, we are of the opinion that since in the incident there were some injuries on the accused persons, the appellant No.2 was justified in causing simple hurt in exercise of his right of private defence and as such is entitled to acquittal of offence under Section 324 of the I.P.C. 26. In the result, we pass following order:- Criminal appeal is partly allowed. Appellant No.1 Kailas is acquitted of the offence punishable under section 302 of the Indian Penal Code and instead he is convicted for an offence punishable under Section 304 Part I of the Indian Penal Code and is sentenced to suffer R.I. for five years and to pay a fine of Rs.500/-, in default of payment of fine to undergo further R.I. for six months. Appellant No.1 Kailas will be entitled for set off as per Section 428 of the Code of Criminal Procedure. Appellant No.2 Chotu is acquitted of the offence punishable under section 324 of the Indian Penal Code. Accordingly, his conviction and sentence is quashed and set aside. Fine, if paid by appellant No.2 Chotu, be refunded to him. Appeal partly allowed.