JUDGMENT S.L. Kochar, J. 1. Both the aforesaid appeals are arising out of one and the same impugned judgment, hence same are taken up together and dispose of by this common judgment. 2. The appellants have filed their respective Criminal Appeals aggrieved of the impugned judgment and order dated 28-1-2000 passed by learned Addl. Sessions Judge, Ujjain in S.T. No. 246/1998 whereby convicted the appellants under Section 302/34 of the IPC, sentenced each appellant to undergo RI for life and fine of Rs. 300/-, in default of payment of fine to undergo further imprisonment of one month. The prosecution case as placed before the Trial Court in short runs as under: 3. Complainant Navin @ Nabbu and deceased Anil were returning back from the Dushera Maidan football ground on 2-8-1998 at 9-9.30 a.m. When they reached near Ghas Mandi, Anil while standing, started reading newspaper, at that moment, appellants Naresh, Mahesh (a) Kalu and Narayan reached over there having knife and started assaulting Anil. Naresh struck knife blow on left side of the chest near neck, on left rib bone and Narayan caused injury on right rib area. Appellant Naresh and Kalu also caused injury on left hand, thigh and left cheek of Anil. Anil fell on the ground and also cried for help on which all the three ran away, at that juncture, appellant Munnibai wife of Narayan and mother of Naresh and Kalu reached there and pelted stone which hit on right hand of deceased. Deceased Anil was taken on Hero Puch motor cycle by Navin (a) Nabbu (P.W. 5) and Mukesh (P.W. 17) to Civil Hospital, Ujjain, Dr. Ramesh Chandra Garg (P.W. 20) attended first in point of time and after examination, issued MLC Report (Exh. P-26). Anil was admitted and also operated. Documents of operation are Exh. P-5 and P-6 prepared by Dr. Harish Rathore (P.W. 3). Deceased was assaulted by appellants because of some quarrel took place in wrestling ground during earlier night. FIR (Exh. P-8) was lodged by Navin @ Nabbu (P.W. 5) in the police station. Anil died in the hospital in the same night and intimation to this effect (Exh. P-7) was sent by Dr. Harish Rathore (P.W. 3). Investigating Officer reached in the hospital and prepared inquest report (Exh. P-2) and sent the dead body for post-mortem examination which was performed by Dr. Yogendra Kumar Vyas (P.W. 16). Anil died in the hospital in the same night and intimation to this effect (Exh. P-7) was sent by Dr. Harish Rathore (P.W. 3). Investigating Officer reached in the hospital and prepared inquest report (Exh. P-2) and sent the dead body for post-mortem examination which was performed by Dr. Yogendra Kumar Vyas (P.W. 16). Post-mortem report is Exh. P-18. Spot map (Exh. P-9) was prepared and blood stained as well as controlled earth were also seized from the spot by Investigating Officer Shri Niranjansingh Jadon (P.W. 19). Appellants were nabbed and on their disclosure statements, weapons were seized. Clothes of the deceased and other articles were sent to FSL but it appears that report was not received till conclusion of trial. Investigating Officer recorded the statements of the relevant witnesses and on due investigation, filed charge-sheet against the appellants for commission of offence under Sections 302, 302/34 and 336 of the IPC. 4. Appellants denied their complicity with the offence and examined two Doctors in their defence. Appellant Naresh has stated in his accused statement under Section 313 of the Cr.PC that he was assaulted by Anil on his head by iron rod resulted into his fall and lot of crowd assembled there who took him to the police station. Learned Trial Court, after examining the prosecution and defence witnesses as well as hearing both the parties, convicted and sentenced the appellants as mentioned herein above. 5. Learned Counsel for appellants has submitted that appellant No. 1 Naresh sustained injury on his head, a lacerated wound caused by deceased Anil by iron rod/pipe. He was taken to the police station from the spot by the public and medically examined on the same day by Dr. Ramesh Chandra Garg (D.W. 1) and he was treated in jail ward by Dr. Ghanshyam (D.W. 2). According to Dr. Ghanshyam, injury sustained on head by Naresh was grievous in nature and he was admitted for five days. It is also contended that though prosecution witnesses admitted sustaining of injury by appellant Naresh in the same incident but they have failed to explain as to how and who caused this injury except Navin @ Nabbu (P.W. 5), therefore, appellant is entitled to get benefit of exception of the provisions as enumerated in Sections 96 to 100, acting in right of private defence of his own person. It is also argued that evidence against rest of the appellants Narayan, Mahesh @ Kalu and Munnibai is not sufficient to base conviction and they are entitled to get benefit of doubt. 6. On the other hand, learned Counsel for the State has supported the impugned judgment and finding arrived at by the learned Trial Court. 7. We have perused the entire record and finds substance in the arguments of learned Counsel for appellants. Prosecution has examined in all eight eye witnesses out of which learned Trial Court has placed reliance on testimony of Navin @ Nabbu (P.W. 5), Girish (P.W. 10), Rameshchand (P.W. 13) and Mukesh (P.W. 17). Learned Trial Court has sought corroboration to the testimony of these witnesses from the statements of Sumanbai (P.W. 7), Naresh (P.W. 9), Vijay (P.W. 11) and Rajaram (P.W. 12). Though, learned Trial Court has given positive finding that these witnesses were not the eye witnesses but they reached on the spot and received information that deceased was assaulted by the appellants. In our considered view, this statement of these witnesses cannot be relied upon even for corroboration because same is hit by law of hearsay evidence as provided in Section 60 of the Evidence Act. 8. It is worth to mention that aforesaid witnesses have not been declared hostile by the prosecution and Navin (P.W. 5) has admitted that deceased Anil dealt an iron rod blow causing injury on the head of appellant No. 1 Naresh. He has also stated that all the appellants except Munnibai were having knife and wielded the same, causing injury to deceased, whereas Sumanbai (P.W. 7) has deposed that only appellant Narayan was having knife and caused injury to deceased and appellant Naresh and Mahesh @ Kalu had caught hold of the deceased. Naresh (P.W. 9) has deposed that appellant Narayan was having pipe and appellant Naresh and Mahesh used knife for causing injury. Rameshchand (P.W. 13) has deposed that appellant Mahesh and Naresh were having knife and used the same in the incident. It is clear from the statements of these witnesses that they are contradicted each other about possession of weapon by individual appellants but all have stated that appellant Naresh was having knife and on this issue there is no contradiction between their case diary statements or with each other. 9. On perusal of the evidence of medical expert Dr. It is clear from the statements of these witnesses that they are contradicted each other about possession of weapon by individual appellants but all have stated that appellant Naresh was having knife and on this issue there is no contradiction between their case diary statements or with each other. 9. On perusal of the evidence of medical expert Dr. Harish Rathore (P.W. 3), Dr. Yogendra Kumar Vyas (P.W. 16) and Dr. Ramesh Chand Garg (P.W. 20), deceased had not suffered even a single scratch caused by hard, blunt or rough object. All the injuries found on the person of deceased were incised wounds caused by sharp edged weapons, therefore, there is direct conflict between medical evidence and ocular account give by some of the witnesses against appellant Narayan and Mahesh @ Kalu, therefore, in our opinion, all these three appellants are entitled to get benefit of doubt. 10. Looking to the number and nature of injuries found on the person of deceased Anil, it could not be possible for him to cause injury by iron rod after sustaining seven incised injury on different parts of the body out of which two injuries damaged to upper and lower lobe of right lung [See : Evidence of Dr. Yogendra Kumar Vyas (P.W. 16) - post-mortem report (Exh. P-18)]. In view of the positive admission by some of the eye-witnesses, appellant No. 1 Naresh sustained injury in the same incident and Navin (P.W. 5) has specifically stated that deceased Anil struck an iron rod on the head of appellant Naresh, then appellant Naresh was entitled to defend himself and if he used knife causing injuries to deceased that would come well within the purview of acting in right of private defence of his person but looking to the number and nature of injuries, the question would be whether he has exceeded his right of private defence or not? 11. It is clear from the medical evidence that appellant Naresh gave as many as seven knife injuries maximum on vital part of the body like head, chest and abdomen, and there was serious damage to the lung. Deceased died because of damage to vital organ and excessive bleeding in the same night. Deceased was having a weapon or object like iron rod, that rod must be more in length than the knife which was possessed by appellant Naresh. Deceased died because of damage to vital organ and excessive bleeding in the same night. Deceased was having a weapon or object like iron rod, that rod must be more in length than the knife which was possessed by appellant Naresh. Except one injury on the head, no other injury found on the person of appellant Naresh, shows that after receiving this injury, he did not allow the deceased to use second blow and he caused as many as seven blows which could not be necessary to disable and prevent the deceased from causing second blow, therefore, in our considered view, appellant Naresh had exceeded the right of private defence of his person. There is also one fact which is supporting this view that though appellant Naresh sustained lacerated wound on head and treating Doctor opined this injury as grievous in nature but without any data. No vital organ of Naresh was damaged, lacerated wound though was on the head but there was no fracture of head or damage to skull or internal organ of appellant Naresh. Therefore, merely by giving opinion that injury was grievous in nature it would not be grievous in nature and opinion of Doctor does not fit with the definition of grievous injury as envisaged under Section 320 of the IPC. 12. Consequently, Cr. Appeal No. 351/2000 is allowed in part. Conviction and sentence of all the appellants as passed by the learned Trial Court are hereby set aside and only appellant Naresh is convicted under Section 304-I of the IPC], commission of culpable homicide not amounting to murder, sentenced to RI for seven years with fine of Rs. 10,000/-, in default of payment of fine he shall suffer additional RI for two years. Cr. Appeal No. 251/2000 of Munnibai is fully allowed. Her conviction and sentence as passed by the learned Trial Court are hereby set aside. All the appellants are on bail. Appellant No. 1 Naresh is directed to appear before the Trial Court on 21st January, 2010 for serving out the remainder part of jail sentence and also to deposit the fine amount. On realisation of the fine amount, Rs. 8000/- (Rupees Eight thousand) be paid as compensation to the legal heirs of the deceased. Bail bond and surety bond furnished by other appellants stand cancelled. 13. Original judgment is kept in Cr. On realisation of the fine amount, Rs. 8000/- (Rupees Eight thousand) be paid as compensation to the legal heirs of the deceased. Bail bond and surety bond furnished by other appellants stand cancelled. 13. Original judgment is kept in Cr. Appeal No. 251/2000 and a copy whereof be placed in the record of connected Cr.A. No. 351/2000.