JUDGMENT 1. - The instant appeal has been preferred by the appellant Paramjeet Singh against the judgment dated 24.4.1990 passed by the learned Sessions Judge, Sriganganagar in Sessions Case No. 122/1989, whereby the appellant was convicted and sentenced as below: Under Section 304 Part I, I.P.C. 5 Years' R.I. and to pay a fine of Rs. 2,000/- and in default of payment of fine to further undergo one year's R.I. 2. Succinctly stated the facts of the case are that one Jaskaran Singh appeared and submitted an oral report to the S.I I.O. Police Station Lalgarh Jatan, District Sriganganagar on 8.8.1988. It was alleged in the report that the F.I.R. informant's father Gurdev Singh was in possession of 14 bighas of land belonging to Sukhmahendra Singh in lieu of a mortgage. It was alleged that Sukhmahendra Singh, Jagrup Singh, Paramjeet Singh and others disrupted the water turn of the complainant party. The first informant's father registered a case against Jagrup Singh and Paramjeet Singh etc. Owing to the registration of the case, Paramjeet Singh and Jagrup Singh started bearing enmity with the complainant party. It was further mentioned in the oral report that the first informant's father had gone to Gurbachan Singh's house in the evening at about 6.30 for fetching vegetables. At about 7 O'clock the first informant claimed to have heard the cries of his father that he was being assaulted. The cries were coming from towards Paramjeet Singh's house. The first informant and his mother Mukhtiyar Kaur rushed towards Paramjeet Singh's house. When they reached near the lane, they saw that Paramjeet Singh, Jagrup Singh, Harnek Singh, Kaur Singh, Geja Singh and Kala Singh had surrounded his father in their open plot. Paramjeet Singh and Jagrup Singh were having Gandasies in their hands, Kaur Singh was having a Kapa in his hand, Kala Singh was having Sela in his hand, Geja Singh and Harnek Singh were having lathis in their hands. Paramjeet Singh gave a Gandasi blow on the head of Gurdev Singh. Jagrup Singh gave a Gandasi blow on the left side of Gurdev Singh due to which he started bleeding and fell down. As soon as he fell down, Kala Singh stabbed him on his abdomen with the Sela. Geja Singh and Harnek Singh also gave lathi blows to the deceased. Jagrup Singh gave a Gandasi blow on the left side of Gurdev Singh due to which he started bleeding and fell down. As soon as he fell down, Kala Singh stabbed him on his abdomen with the Sela. Geja Singh and Harnek Singh also gave lathi blows to the deceased. The first informant's mother ran and fell over his father on which the accused persons ran away from the scene of occurrence. In the meantime, Harbans Singh and Gurbachan Singh came there and thereafter, his father was lifted from the scene of occurrence and was brought home. He was boarded on to Harbans Singh's jeep and taken to Lalgarh Hospital. He was conscious till reaching the hospital but expired while undergoing treatment. It was also alleged that Paramjeet Singh and his companions constituted an unlawful assembly and killed his father. On the basis of this oral report, an F.I.R. No. 74/1988 was registered at the Police Station Lalgarh Jatan for the offences under Sections 302, 147, 148 and 149 I.P.C. and investigation commenced. At the conclusion of the investigation, the Investigating Officer proceeded to file a charge-sheet against the appellant Paramjeet Singh, Jagrup Singh, Harnek Singh, Angrez Singh, Kaur Singh and Kala singh for the offences under Sections 302, 147, 148, 149 I.P.C. At the trial, charges were framed against the accused for the offences under Sections 148, 302/149 I.P.C. An alternative charge for the offence under Section 302 simplicitor was also framed against the accused appellant, Jagrup Singh and Kala Singh. The accused Harnek Singh, Angrez Singh and Kaur Singh were also charged for the offence under Section 324 I.P.C. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 10 witnesses in support of its case. In the statements under Section 313 Cr.P.C., the accused Paramjeet Singh denied the prosecution allegations and took a specific plea of private defence. He stated that the deceased Gurdev Singh assaulted him and gave him 3-4 blows by Gandasi. The other accused simply denied the prosecution's allegations. 3. The learned trial Judge at the conclusion of the trial found that the prosecution evidence against the accused other than Paramjeet Singh was not reliable. He thus concluded that the prosecution failed to prove that the accused other than Paramjeet Singh participated in the incident by forming an unlawful assembly. The other accused simply denied the prosecution's allegations. 3. The learned trial Judge at the conclusion of the trial found that the prosecution evidence against the accused other than Paramjeet Singh was not reliable. He thus concluded that the prosecution failed to prove that the accused other than Paramjeet Singh participated in the incident by forming an unlawful assembly. Accordingly, he proceeded to acquit the accused apart from the appellant Paramjeet Singh from all the charges. However, he held that the appellant inflicted a solitary gandasi blow on the head of Gurdev Singh. The said blow resulted into subdural hemorrhage, ultimately resulting into the death of Gurdev Singh. Learned trial Judge brushed aside the defence theory of right of private defence taken by appellant Paramjeet Singh and accordingly, he proceeded to convict and sentence the appellant as stated above. Hence, this appeal. 4. Shri M.K. Garg learned counsel for the appellant urged that the prosecution was guilty of suppressing the actual genesis of the occurrence in the instant case. He contended that the testimony of the prosecution witnesses has been discarded qua the other five accused and thus, the conviction of the appellant alone for having caused the fatal blow to the deceased was uncalled for. He further urged that in the same incident, the appellant was caused two injuries by a sharp weapon out of which one was on his frontal bone. The prosecution offered no explanation for the injuries caused to the accused. He urged that the plea of right of private defence raised on behalf of the accused is fit to be accepted and thus the accused is entitled to an acquittal. 5. Per contra, learned Public Prosecutor and Shri S.S. Dhillon learned counsel for the complainant opposed the submissions advanced by the learned counsel for the appellant. They contended that the prosecution case is well substantiated and proved beyond all doubt by the reliable testimony of two eyewitnesses namely Mukhtiyar Kaur PW-2 and Jaskaran Singh PW-1. It was also argued that the deceased Gurdev Singh was himself admitted in the hospital while he was alive and he gave a dying declaration Ex.P-15 which was recorded by the Dr. Yogendra Pal PW-8 clearly implicating the appellant for the fatal blow. It was also argued that the deceased Gurdev Singh was himself admitted in the hospital while he was alive and he gave a dying declaration Ex.P-15 which was recorded by the Dr. Yogendra Pal PW-8 clearly implicating the appellant for the fatal blow. It was thus urged that the appellant has already been dealt with very leniently by the trial Judge by acquitting him from the offence under Section 302 I.P.C. and by sentencing him only for a term of five years for the offence under Section 304 Part-I I.P.C. It was contended that no interference is called for in the judgment of conviction recorded by the learned trial Court. 6. Heard and considered the arguments advanced at the bar perused the judgment impugned and the record. 7. Since the incident has not been disputed by the learned counsel for the appellant, the short controversy which this Court is called upon to decide is as to whether the plea taken on behalf of the appellant regarding he being entitled to the right of private defence is fit to be accepted or not. The appellant in his statement under Section 313 Cr.P.C. stated that he was carrying a Gandasi in his hand on the day of the occurrence. He stated that Gurdev Singh came across him in the evening in an inebriated condition. He was holding a Gandasi in his hand. The appellant specifically pleaded that Gurdev Singh caused him a Gandasi blow on the head. As the plea advanced on behalf of the appellant is of causing injuries in the exercise of right of private defence, the place of occurrence gains significance. The first informant in his F.I.R. mentioned that the occurrence took place in the complainant party's open plot. As per the site inspect plan Ex.P-22 prepared by the Investigating Officer, the incident took place in front of the house of the accused. The Investigating Officer admitted that Mukhtiyar Kaur's house (i.e. the house of the deceased and the first informant) was at a substantial distance from the place of the occurrence and thus, it was not shown in the site inspection plan. As per the testimony of Jaskaran Singh PW-1 and Mukhtiyar Kaur PW-2, both of them reached the scene of the occurrence after hearing the cries of the deceased that he was being assaulted. As per the testimony of Jaskaran Singh PW-1 and Mukhtiyar Kaur PW-2, both of them reached the scene of the occurrence after hearing the cries of the deceased that he was being assaulted. The sequence of events which is narrated in Ex.P-15 the dying declaration shows that the first injury was caused to the deceased by Paramjeet Singh. Thus, the witnesses PW-1 Jaskaran Singh and PW-2 Mukhtiyar Kaur must have reached the place of the occurrence after the deceased had been assaulted. 8. As per the Medical Officer PW-8 Dr. Yogendra Pal, who conducted the post mortem on the body of the deceased and prepared the post mortem Ex.P-17, there were as many as 5 injuries on the body of the deceased out of which 4 were incised wounds and one was an abrasion. The incised wound on the parietal region of the deceased did not result into any fracture underneath the injury. In the Column No. 2 of the post mortem report, where the condition of skull is described, it is not mentioned that any subdural hematoma was found under the parietal bone. The column refers to two injuries, one being an incised wound over the mid parietal region measuring 3.0 x .06 x 0.5 cm and the second injury being an abrasion over the prominent region of the mid occipital bone. As per the remarks of the Medical Officer regarding (he cause of death, the deceased expired as a result of subdural occipital hematoma resulting from injury. The specific case of the so-called eye-witnesses PW-1 Jaskaran and PW-2 Mukhtiyar Kaur and the narration in the dying declaration Ex.P-15 is that the accused gave the gandasi blow on the head of the deceased. It was not alleged in the testimony of both these witnesses or in the dying declaration Ex.P-15 is that the accused gave the gandasi blow on the head of the deceased. It was not alleged in the testimony of both these witnesses or in the dying declaration Ex.P-15 that the gandasi blow was caused by the reverse side. Admittedly, as per the dying declaration, the other accused persons are also alleged to have inflicted injuries to the deceased. However, the learned trial Judge discarded the prosecution case regarding the participation of the other accused in the incident. Admittedly, as per the dying declaration, the other accused persons are also alleged to have inflicted injuries to the deceased. However, the learned trial Judge discarded the prosecution case regarding the participation of the other accused in the incident. The only conclusion which can be drawn from the above factual scenario is that the appellant caused the solitary gandasi blow on the parietal region of the deceased, which resulted into a simple sharp injury. As opposed to this, the appellant himself received an incised wound on his frontal bone in the very same incident. His injury report was proved by Dr. Yogendra Pal PW-8 as Ex.D-4. The doctor in his sworn testimony clearly stated that the cause of death of the deceased Gurdev Singh was the subdural haematoma underneath the injury No. 5 which was an abrasion. Thus, the appellant cannot be held responsible for causing the fatal blow to the deceased. 9. Since, the origin of the occurrence is not very clear, this Court is of the opinion that the conviction of the appellant in this case for the offence under Section 304 Part-I I.P.C. cannot be sustained. Two reasons are apparent for drawing this conclusion; firstly the injury attributed to the appellant was not the fatal blow as has been discussed above and; secondly the prosecution did not explain the injuries received by the appellant in the same incident. In this background of the case, this Court feels that the appellant can at best be held guilty for having caused simple sharp weapon injury to the deceased. The claim of the appellant that the injury was caused in the exercise of the right of private defence does not appeal to this Court. The deceased was simply going from the Chowk in front of the house of the accused when the incident took place. The cause of grudge was with the accused because the deceased had dragged them into a litigation. Thus, there was no motive or reason for the deceased to have assaulted the accused party. Otherwise also, he was all alone at the time of the incident, whereas thy accused party were large in number. The accused in his statement under Section 313 Cr.P.C. stated that apprehending threat to his life, he gave 3-4 gandasi blows to the deceased. All the sharp injuries on the person of the deceased were simple in nature. Otherwise also, he was all alone at the time of the incident, whereas thy accused party were large in number. The accused in his statement under Section 313 Cr.P.C. stated that apprehending threat to his life, he gave 3-4 gandasi blows to the deceased. All the sharp injuries on the person of the deceased were simple in nature. Thus, the conviction of the appellant for the offence under Section 304 Part-I I.P.C. cannot be sustained. 10. Thus, the appeal succeeds in part. Whilst upholding the appellant's guilt as recorded by the trial judge, his conviction is altered from the offence under Section 304 Part-I I.P.C. to the offence under Section 324 I.P.C. The appellant remained in custody throughout the trial and thus, he has already suffered a substantial sentence for a period of two years i.e. from 16.8.1988 to 4.8.1990. More than nearly 25 years have lapsed since the incident took place. As such, the sentence of two years which the appellant has suffered is considered to be sufficient. Accordingly, the appeal is allowed in part and the conviction of the appellant as recorded by the trial Judge for the offence under Section 304 Part-I I.P.C. is altered to the offence under Section 324 I.P.C. The appellant is sentenced to the period already undergone by him for the said offence. The sentence of fine is set aside.Appeal partly allowed. *******