JUDGMENT : Surinder Singh, J. The appellant hereinafter to be referred as "the accused" was convicted by the learned trial Court in Sessions trial No. 36 of 2001/5 of 2004 decided on 16.10.2004, u/s 307 of the Indian Penal Code, whereby he was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 15,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. The whole amount of fine, if realized, is ordered to be paid to the injured PW5 Man Dass as compensation. 2. Admitted facts of the case are that PW5 Man Dass and the accused are residents of village Behana, falling in the jurisdiction of Police Station Balh, District Mandi. They had a dispute over a path. On 1.8.1999 at about 8.30 a.m. the accused was cutting the bushes over the path near the house of Man Dass aforesaid, adjoining to his own field. 3. It is alleged that while cutting the bushes over the path, Man Dass went to the spot and asked him not to cut the bushes. The accused inflicted a blow of Darat on his head, the blow had cut his cap and caused bleeding injury concavely on the left side of his head. The occurrence was witnessed by his grand-daughter PW1 Maya Devi who was with him. She raised alarm, on this PW2 Param Dev and PW3 Amar Singh came to the spot. Thereafter the injured was taken to the hospital and got medically examined by PW4 Dr. R.S. Dhatwalia. FIR was lodged on the statement Ext.PW10/A of PW2 Param Dev. On the medical examination, doctor noticed the following injuries on the person of Man Dass:- 1. There was one clean incised wound shown as A.B in the diagram, 7 long. 2 wide, bone deep, slightly concave with concavity looking upwards on the left side of scalp. There was profuse bleeding from the wound. The clothes were stained with blood and the patient was semi conscious. 2. One superficial abrasion 1 x .2 on the lateral surface of left ankle. There was no oozing of blood from the wound. Two duly filled x-ray forms for skull X-ray were handed over to the police. 4. Immediately, the patient was shown to surgeon and was admitted in the male surgical ward for expert management. 2. One superficial abrasion 1 x .2 on the lateral surface of left ankle. There was no oozing of blood from the wound. Two duly filled x-ray forms for skull X-ray were handed over to the police. 4. Immediately, the patient was shown to surgeon and was admitted in the male surgical ward for expert management. As per report of the x-ray department dated 2.8.1999 there was fracture of the right fronto parietal bones. The nature of injuries was described to be dangerous to life and grievous. The probable duration of the injury was described within 3 hours. The injury No. 1 was opined to have been caused with sharp edged weapon and injury No. 2 with blunt weapon. To this effect, he issued MLC Ext.PW4/A. Injury on the head was x-rayed by PW7 Dr. Jaya Vaidya, Radiologist. The injury was grievous and dangerous to life. (ii) PW8 Dr. Arun Sharma, Assistant Director, State Forensic Science Laboratory examined the Cap of the injured containing blood stains and one Darat being a case of Biology and Serology and as per report Ext.PW8/A, both contained the human blood, but the blood stains found on the Darat was not sufficient to make any definite opinion. (iii) PW12 Kali Dass Sharma, SHO, investigated the case. He visited the place of incident and prepared site plan Ext.PW12/A and took into possession a Cap Ext.P1 vide memo Ext.PW1/A. Blood stained wood was also taken into possession from the spot vide memo Ext.PW12/B, which was sealed. (iv) Accused was arrested on the same day and later vide order dated 19.8.1999, he was released on bail by the High Court. (v) During investigation, accused produced Darat Ext.P2. Its sketch Ext.PW2/B was prepared. It was sealed and taken into possession vide seizure memo Ext.PW2/A. 5. On completing the investigation, challan was presented in the Court for the trial of the accused u/s 307 of the Indian Penal Code. He was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. 6. To prove its case besides examining PW5 Man Dass, prosecution examined the eye witnesses PW1 Maya Devi, PW2 Param Dev, PW3 Amar Singh and also PW4 Dr. R.S. Dhatwalia, PW7 Dr. Jaya Vaidya, PW8 Dr. Arun Sharma, Assistant Director, State Forensic Science Laboratory, PW12 Kali Dass Sharma, Investigating Officer and also the other formal witnesses. 7. 6. To prove its case besides examining PW5 Man Dass, prosecution examined the eye witnesses PW1 Maya Devi, PW2 Param Dev, PW3 Amar Singh and also PW4 Dr. R.S. Dhatwalia, PW7 Dr. Jaya Vaidya, PW8 Dr. Arun Sharma, Assistant Director, State Forensic Science Laboratory, PW12 Kali Dass Sharma, Investigating Officer and also the other formal witnesses. 7. The accused was also examined u/s 313 of the Code of Criminal Procedure. He denied the circumstances, which were found attendance upon him. Though, he admitted that he was cutting the bushes with the Darat on the path/drain when said Man Dass, PW1 Maya Devi and one Roshan Lal came there and tried to snatch the aforesaid Darat from him qua, which he reported the matter to the police and alleged false implication. The trend of the cross-examination of the prosecution witnesses and the statements of defence witnesses show that some scuffle ensued between the injured and the accused, allegedly in the process of snatching the Darat which caused injuries on his head. 8. Accused was called upon to enter into his defence. He examined DW1 Puran Chand, regarding scuffle and also admitted the presence of PW1 Maya Devi grand-daughter of Man Dass. DW2 Ram Dass stated that the path in question was being used by the accused to approach his field since the time of his ancestors. DW3 Mahinder Singh stated that the accused was cutting bushes and a quarrel took place between accused, Man Dass, Param Dev and the children of the Man Dass. Since he was carrying the bag of Atta on his head, he left the place to his destination. 9. Learned trial Court disbelieved the defence raised and rejected testimonies of the defence witnesses, but while relying upon the statements of the prosecution witnesses with respect to the incident, accused was convicted and sentenced as aforesaid, hence this appeal. 10. Shri M.S. Guleria, learned counsel for the accused vehemently argued that the statement of the prosecution witnesses with respect to the incident cannot be believed at all because of material contradictions. He also referred to the statement of PW4 Dr. 10. Shri M.S. Guleria, learned counsel for the accused vehemently argued that the statement of the prosecution witnesses with respect to the incident cannot be believed at all because of material contradictions. He also referred to the statement of PW4 Dr. R.S. Dhatwalia and submitted that it is highly contradictory and did not reconcile with the occular version of the witnesses as he stated that there was an injury on the left side of the scalp whereas injury No. 2 was caused with blunt weapon, whereas, prosecution witnesses stated regarding giving of only one blow on the head on the left side with the Darat, thus the second injury on the right fronto parietal bones remained a mystery. He also pointed out the relevant portion of the statements of the witnesses to prove that there was a scuffle and in the process of snatching the Darat from the accused, Man Dass suffered an injury, therefore, the ingredients of offence punishable u/s 307 of the Indian Penal Code are not proved at all. 11. On the other hand, Shri A.K. Bansal, learned Additional Advocate General, duly assisted by Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further ventilated that the presence of the accused as also the witnesses of the prosecution are not denied by him. The scuffle as alleged is not proved. It is also argued that the statement of the injured which is duly supported by the eye witnesses and the medical evidence proves the case against the accused, therefore, no interference is called for. 12. I have given my thoughtful consideration to the rival contentions of the parties and have meticulously and carefully re-examined the evidence on record. 13. Statement of PW5 Man Dass an injured witness requires a consideration. He corroborated the case of the prosecution to the extent that the accused was cutting the bushes near his house. He went to the spot and asked the reasons for doing so. The accused inflicted a blow of Darat on his head which cut his Cap Ext.P1 and caused bleeding injury. He identified the weapon of offence i.e. Darat Ext.P2 to be the same by which the injury was caused. PW1 Maya Devi his grand-daughter was also present on the spot. She corroborated this version. She also stated that she raised alarm. The accused inflicted a blow of Darat on his head which cut his Cap Ext.P1 and caused bleeding injury. He identified the weapon of offence i.e. Darat Ext.P2 to be the same by which the injury was caused. PW1 Maya Devi his grand-daughter was also present on the spot. She corroborated this version. She also stated that she raised alarm. On this her uncle PW2 Param Dev along with PW3 Amar Singh, one Roshan Lal and some other persons also came there. They saw the accused running from the spot. 14. PW2 Param Dev stated that on hearing the cries, he rushed to the spot and saw that there was bleeding injury on the head of injured Man Dass. The accused was present there with a Darat in his hand. Later, on the same day, accused was arrested and Darat was taken into possession in his presence by the police vide seizure memo Ext.PW2/A, which was duly sealed after taking its sketch map Ext.PW2/B. During trial, he also identified the Darat Ext.P2 to be the same. PW3 Amar Singh has also made the similar version. 15. During hearing of the appeal before this Court, Cap Ext.P1 as well as Darat Ext.P2 both were ordered to be produced. On 4.1.2012, Cap and Darat aforesaid were produced as ordered by this Court on 29.12.2011. These items were unsealed. The Cap bears the angular concave cut which was through and through on one side, but the length as well as width of the Darat did not match with the sketch map Ext.PW2/B. Learned Deputy Advocate General sought time for clarification and on 10.1.2012, another Darat was produced, but it also did not match with the sketch map. Confronted with the above situation, the learned Deputy Advocate General on the instructions of the Officer, who produced the case property, submitted that the old building of the Police Station was renovated and the case property might have got intermingled in the Malkhana. Significantly the Darat Ext.P2 was produced during the trial, which was identified by the injured and the recovery witnesses and the accused also admitted that he was cutting the bushes with a Darat, therefore, the sharp edge injury 7 long and .2 in width is caused with a sharp edged weapon like Darat which fact has been corroborated by PW4 Dr. R.S. Dhatwalia. R.S. Dhatwalia. The cut on the Cap correspond to the sharp edge injury caused on the left side of the head of PW5 aforesaid which is slightly concave with concavity looking upwards on the left side of the scalp. Importantly, this injury was not opined to be grievous nor dangerous to life. Since the X-ray revealed a fracture of right fronto parietal bones which was neither bleeding nor noticed by the Doctor aforesaid, when he was clinically examined. It is this injury, which was opined to be grievous and dangerous to life. Neither the injured (PW5) nor any other witness stated about causing of this injury. When PW5 was brought to the hospital, he was semi-conscious as observed on his MLC. Neither the prosecution nor the defence explored in the cross-examination of the witnesses how it was caused; but on receiving injury No. 1 as aforesaid the injured must have a fall and this injury was counter cope. Further the injury on ankle corroborates this version. 16. The prosecution also did not produce the treatment record of the injured. The version given by the prosecution witnesses did not say what was the intervening circumstance nor the doctor stated whether the injury No. 1 which was the direct result of blow of Darat was enough to cause death in the ordinary course. Though, the Doctor over-ruled the possibility that it could be caused while snatching Darat, whereas, injury on right fronto-parietal bones where the front bone and parietal bone joins by sutures could be the result of a fall on sustaining sharp injury No. 1 on the left side of the head. 17. In the cross-examination of the injured PW5 Man Dass, PW1 Maya Devi and PW2 Param Dev, the accused had tried to probalise the defence of scuffle, whereas DW1 Puran Chand, DW2 Ram Dass, DW3 Mahinder Singh corroborated this version. DW2 speaks of old dispute over the path where the accused was cutting the bushes; to which PW5 Man Dass had objected to. 18. The evidence on record proves that a long dispute existed over the user of path adjacent to the field of the accused. The cutting of bushes caused annoyance to the injured, resulting into a scuffle between them. 18. The evidence on record proves that a long dispute existed over the user of path adjacent to the field of the accused. The cutting of bushes caused annoyance to the injured, resulting into a scuffle between them. The accused is proved to have dealt a blow of Darat on his head with the result injured must have fallen down and sustained injury No. 2 in his ankle and also the fracture of right fronto parietal bone which was a counter cope injury as already stated above. 19. There is nothing on record to show that the accused had intended to cause the murder of PW5 Man Dass rather he is proved to have exceeded the right of private defence. Therefore, the offence to which the accused could be convicted is u/s 308 and not 307 of the Indian Penal Code, as the accused has committed an offence with intention or knowledge under such circumstances that, if he by that act caused death would have been guilty of culpable homicide not amounting to murder. Therefore, the conviction of the accused is converted into Section 308 of the Indian Penal Code instead of Section 307. 20. Confronted with the above situation, learned counsel for the accused pleaded that having regard to the age of the accused, suddenness in which whole occurrence took place, the accused is not a previous convict coupled with the fact that the incident had taken place more than a decade, the accused by now well is settled with his family and also the period already undergone, a lenient view may be taken. 21. I have given my earnest consideration and having regard to the age of the accused and suddenness in which the whole occurrence took place, probablising the scuffle and exceeding the right of private defence, the hurt caused to PW5 Man Dass by such an act. Keeping in view all the factors, the accused is sentenced to undergo rigorous imprisonment for a period of six months maintaining the fine of Rs. .15,000/- and in default of payment of fine, to further undergo simple imprisonment for one month. In case the fine amount is realized/recovered, the whole of it shall be released to Man Dass as a compensation. Accused shall also be given the benefit of pretrial and during trial period already undergone. 22. .15,000/- and in default of payment of fine, to further undergo simple imprisonment for one month. In case the fine amount is realized/recovered, the whole of it shall be released to Man Dass as a compensation. Accused shall also be given the benefit of pretrial and during trial period already undergone. 22. The accused is hereby directed to surrender before the learned trial Court on 15th February, 2012, to serve out the sentence, failing which, learned trial Court shall take coercive steps to lodge him in the jail, in conformity with this judgment. 23. In view of the above, the appeal is partly allowed with the above modification in sentence as aforesaid. Matter stands disposed of. Send down the records.