JUDGMENT : Sandeep Mehta, J. 1. The accused-appellant Soma has been convicted and sentenced as below vide judgment dated 25.09.1997 passed by the learned District & Sessions Judge, Doongarpur in Sessions Case No. 35/1997. Conviction for offence under Sections Sentences Default Sentences 326 I.P.C. 7 years RI with fine of Rs. 1,000/- 1 Year's R.I. 325 I.P.C. 3 Years' R.I. with fine of Rs. 500/- 1 Year's R.I. 341 I.P.C. One month's RI -- All substantive sentences awarded to the accused were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the accused-appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. The prosecution case emanates from the oral report submitted by Vajja (PW/8) recorded at the Police Station Ganeshpur, District Doongarpur to the ASI, Shri Kamla Shanker (PW/9), on the basis whereof, an FIR No. 27/1997 (Ex. P/5) was registered. As per the FIR, the complainant party and Soma (appellant herein) were indulged in a land related strife. On 25.02.1997 at about 8:00 p.m., the injured Shanker was proceeding from his field and on the way, he was accosted and assaulted by Soma who was armed with a sword. Due to the blow, which landed above the left ankle of the Shanker, his leg got chopped off Shanker fell down, whereafter, Soma, Amrit and Smt. Huraj, all rained indiscriminate blows on him with axe, sword and lathi, because of which he received a large number of injuries on his body. On hearing his cries, Vajja ran towards him and saved him. Haamji, Kaliya etc. also reached there. Shanker was taken to the Doongarpur Hospital in a jeep, from where he was referred to Shamlaji (Gujarat). Shanker was medically examined at the General Hospital, Doongarpur by Dr. Rakesh Verma (PW/1) who noticed the following injuries on his body:- 1. Abrasion at left side of lower jaw ad-measuring 3/4" X 1/8"; 2. Incised wound on left leg ad measuring 4" X 1/2" X bone deep; 3. Three Lacerated wounds on the right leg ad measuring; (i) 2½" X 1/2" X bone deep; (ii) 1¼" X 1/4" X muscle deep; (iii) 1" X 1/8" X muscle deep 4. Bluish bruise on left side of rib cage ad measuring 3" X 1/2"; 5. Bluish bruise on right side of chest ad measuring 4½" X 1/2"; 6. Three Lacerated wounds on the right leg ad measuring; (i) 2½" X 1/2" X bone deep; (ii) 1¼" X 1/4" X muscle deep; (iii) 1" X 1/8" X muscle deep 4. Bluish bruise on left side of rib cage ad measuring 3" X 1/2"; 5. Bluish bruise on right side of chest ad measuring 4½" X 1/2"; 6. Four bluish bruises on the Left side of upper back (i) 6" X 3/4"; (ii) 5" X 3/4" (iii) 4½" X 3/4" and (iv) 3" X 2" 7. Bluish bruise under right side of rib cage ad measuring 5" X 3/4" 4. The injury Nos. 1, 3, 4, 5, 6 & 7 were caused by blunt weapon and injury No. 2 was caused by sharp weapon. X-ray examination was conducted on the injuries of Shanker, as per which, the injuries Nos. 2, 3 and 6 were found to be grievous. 5. It may be stated here that the accused Soma also lodged a cross FIR No. 30/1997 (Ex. D/4) against the members of the complainant party. During investigation of this FIR, the injury report (Ex. D/6) of Soma was collected, as per which, he was found having a grievous injury on the left ulna bone. 6. After completion of the investigation, a charge sheet was filed against the appellant and the two co-accused persons Amrit and Smt. Huraj (Suraj) for the offences under Sections 307, 323, 341, 324/34 of the IPC. As the offence under Section 307 IPC was sessions triable, the case was committed to the Sessions Court, Doongarpur for trial. Charges were framed against all the three accused in the above terms. They pleaded not guilty and claimed trial. The prosecution examined as many as 9 witnesses to prove its case and exhibited 12 documents. Upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused denied the same and claimed to have been falsely implicated. A specific plea of private defence was taken by the accused Soma and Smt. Huraj. Two witnesses were examined in defence. At the conclusion of trial, the learned trial court proceeded to convict and sentence the appellant Soma as above, whereas, Smt. Huraj (Suraj) was acquitted of the charges and Amrit was extended the benefit of probation after holding him guilty under Section 325 of the IPC. 7. Two witnesses were examined in defence. At the conclusion of trial, the learned trial court proceeded to convict and sentence the appellant Soma as above, whereas, Smt. Huraj (Suraj) was acquitted of the charges and Amrit was extended the benefit of probation after holding him guilty under Section 325 of the IPC. 7. Shri Bhagat Dadhich, Advocate, representing the appellant urges that the prosecution is guilty of non explanation of the injuries suffered by the accused in the very same incident. He submitted that as a matter of fact, were caused to the injured Shanker in exercise of the right to private defence as the complainant party was the aggressor. Even if, it is assumed that the said right was exceeded, then the accused at best, can be held guilty for the offence under Section 324 IPC only. He has remained in custody for more than 2½ months. Shri Dadhich submits that as the incident took place way back in the year 1997, ends of justice would be served by toning down the conviction of the appellant to one under Section 324 IPC and reducing the sentences awarded to the period already undergone by him. 8. Per contra, Shri Mukesh Trivedi, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by appellant's counsel and urges that the appellant and the co-accused brutally assaulted the injured Shanker by dangerous weapons i.e., sword, lathi and axe and as such, the accused-appellant does not deserve any leniency on merit or on sentence and the appeal should be dismissed in toto. 9. I have given my thoughtful consideration to the arguments advanced at Bar, have gone through the material available on record and have threadbare re-appreciated the evidence led by the parties. 10. Shri Bhagat Dadhich, Advocate, representing the appellant fairly did not dispute the fact that the incident actually took place, wherein Shanker received injuries, which have been enumerated above. However, his contention was basically focused at the right of private defence being available to the accused-appellant. In this regard, I have perused the evidence of injured Shanker (PW/4); the Investigating Officer Shri Kamla Shanker, ASI (PW/9); the Medical Jurist Dr. Rakesh Verma (PW/1) and the evidence of the defence witnesses. It is clear from the material available on record that the injured Shanker was caused seven injuries, of which, three were opined to be grievous in nature. Rakesh Verma (PW/1) and the evidence of the defence witnesses. It is clear from the material available on record that the injured Shanker was caused seven injuries, of which, three were opined to be grievous in nature. Another accused Amrit found responsible for causing grievous injury by a blunt weapon to the injured Shanker was convicted for the offence under Section 325 IPC and was extended benefit of probation. The appellant allegedly inflicted a sword blow on the leg of the injured Shanker. Though, the injured claimed that his leg was chopped off by impact of the blow, but a perusal of the medical evidence as deposed by Dr. Rakesh Verma (PW/1) indicates otherwise and there is nothing which can satisfy the Court that the leg of the injured was actually chopped off. Thus, all that can be concluded is that the injured was caused a injury on the leg by a sharp weapon which is attributed to the appellant. For proving that the injury caused to Shanker was grievous, the prosecution was required to prove the X-Ray plates and the X-Ray reports by examining the Radiologist, but no such effort was made at the trial. The Medical Jurist Dr. Rakesh Verma (PW/1) did not claim in his evidence that he conducted the X-Ray examination of the injured or issued the X-Ray report. Therefore, the finding recorded by the trial court that the prosecution duly proved the fact that the injured Shanker received grievous injury on the leg is not based on any legal evidence. In addition thereto, this court is conscious of the fact that as per the injury report of the accused Soma (Ex. D/6), he was found suffering from a grievous injury on the left hand. A specific suggestion regarding the cross case (FIR No. 30/1997) was given to the injured Shanker, who admitted that the cross case was indeed registered against him. The Investigating Officer Shri Kamla Shanker (PW/9) also admitted that a charge sheet (Ex. D/5) was filed against Shanker in the cross case for the offences under Sections 447, 324, 325/34 IPC. The prosecution has offered no explanation whatsoever for the injuries caused to the injured-accused. 11. In this background and keeping in view the principals enunciated by the Hon'ble Supreme Court in the case of Laxshmi Singh Vs. D/5) was filed against Shanker in the cross case for the offences under Sections 447, 324, 325/34 IPC. The prosecution has offered no explanation whatsoever for the injuries caused to the injured-accused. 11. In this background and keeping in view the principals enunciated by the Hon'ble Supreme Court in the case of Laxshmi Singh Vs. State of Bihar reported in AIR 1976 SC 2263 , I am of the firm opinion that the accused-appellant deserves to be given the benefit of right to private defence. Albeit, he has exceeded the same. Thus, while affirming conviction of the appellant as recorded by the trial court, the offence alleged deserves to be toned down from Section 326 IPC to one under Section 324 IPC. The appellant has remained in custody for about 2½ months. The incident took place way back in the year 1997, thus, it would be a travesty of justice if the appellant is sent back to prison after almost after 30 years of the incident. 12. Thus, the appeal deserves to be and is hereby accepted in part. The conviction of the appellant as recorded by the trial court for the offence under Section 326 is altered to one under Section 324 IPC and he is sentenced to the period already under gone by him for the said offence, which is nearly 2½ months. The accused-appellant is on bail. His bail bonds are discharged. He need not surrender. 13. The appeal is partly allowed. Record be returned forthwith to the trial court.