Judgment ( 1. ) THIS appeal has been preferred against the judgment-dated 29-12-1993 passed by Additional Sessions Judge, gadarwara Distt. Narsinghpur in S. T. No. 255/1992 whereby the appellants were convicted and sentenced as under with the direction that the custodial sentences shall run concurrently :-Convicted under Section sentenced to 304 Part I read with S. 34 of the IPC undergo R. I. for 7 years and fine of Rs. 5000/- and in default, to suffer R. I. for 1 year. 326 read with S. 34 of the IPC undergo R. I. for 4 years and fine of Rs. 3000/- and in default to suffer R. I. for 7 months. ( 2. ) THE prosecution story, in short, may be narrated as under - (a) On 30-8-1992, at the time when the appellant No. 2 Hakam Khan (for short a2)was taking the cattle through the land in occupation of Hemraj (since deceased), a quarrel ensued that led to animosity between them. (b) On the following day i. e. 31-8-1992 only, at about 8 a. m. , while returning home from their fields, Hemraj and his nephew raja Bhaiya (PW 11) were jointly attacked by the appellants and co-accused Naseer, munni Bi, Sakina Bi, Kadori Bi, Mitthu, sheikh Ramjan, Sheikh Muddin and chamru alias Hasrat. The appellant No. 1 sheikh Sultan (for brevity al) and A2 were armed with axes and amongst their companions, Naseer was equipped with a knife; ramjan Mitthu were carrying lathies and the women named above were also having lathies like Kholias. To save themselves, both hemraj and Raja Bhaiya rushed towards the house of Chamru. But, pursuing them, the appellants and their associates were able to surround them in the courtyard of Chamru where they were brutally assaulted with the respective weapons. Sustaining injuries, hemraj died instantaneously whereas Raja bhaiya was rendered uncoriscious. (c) Upon information as to what was termed as the communal violence, the police force was deployed in the village. At the instance of one of the eyewitnesses namely dev Baksh (PW 9), ASI Deviprasad Pandey (PW 13) recorded the details of incident in the Dehati Nalishi (Ex. P-19) and, accordingly, registered a case, under Sections 147, 148, 307 and 302 read with S. 149, of the I. P. C. (d) The injured and unconscious Raja bhaiya was immediately sent to District hospital at Narsinghpur. Dr. P-19) and, accordingly, registered a case, under Sections 147, 148, 307 and 302 read with S. 149, of the I. P. C. (d) The injured and unconscious Raja bhaiya was immediately sent to District hospital at Narsinghpur. Dr. S. K. Maheshwari (PW 6), after a preliminary examination, admitted him to the hospital and, thereafter, he was referred to Medical College and hospital, Jabalpur for further examination and necessary treatment. (e) After inquest proceedings, dead body of Hemraj was sent for post-mortem. Autopsy Surgeon Dr. M. R. Khan (PW 7) opined that Hemrajs death was caused due to coma as a result of injury to the brain. (f) During investigation, ordinary as well as bloodstained earth collected from the spot, a piece of sari found tied on the head of Hemraj were seized and respective weapons were recovered from the possession of the appellants and the co-accused. The seized articles were forwarded to FSL, Sagar for forensic examination. ( 3. ) ON being charged with the offences punishable under Sections 147, 148, 302 and 307 read with S. 149 of the I. P. C. , the appellants abjured the guilt and pleaded false implication due to prevailing animosity. In their examination, under Section 313 of the Code of Criminal Procedure (for short the Code), they also submitted written statements to the following effect :- (i) On the previous day of the incident in question, while driving cattle to the grazing field, A2 noticed that Hemraj had obstructed their way by putting Jarenta (branches of thorny tree ). As he removed the obstruction, hemraj also picked up a quarrel with him. (ii) On the fateful day, while proceeding towards the house of co-accused Chamru, they were surrounded by Hemraj and Raja bhaiya who, being armed with lathis, were ready to beat them. To save themselves, they ran into the house. However, they were followed by Hemraj and Raja Bhaiya, who having trespassed into Chamrus house, jointly attacked them and in defence, they also inflicted injuries to Hemraj and Raja Bhaiya. ( 4. ) THE prosecution examined as many as 13 witnesses including Amol Singh (PW 1), Ram Shankar , (PW 2) and Dev Baksh (PW 9) whereas three witnesses namely Tikaram (DW 1), I. S. Patel (DW 2) and Jagdish (DW 3) were produced in defence. ( 5. ( 4. ) THE prosecution examined as many as 13 witnesses including Amol Singh (PW 1), Ram Shankar , (PW 2) and Dev Baksh (PW 9) whereas three witnesses namely Tikaram (DW 1), I. S. Patel (DW 2) and Jagdish (DW 3) were produced in defence. ( 5. ) ON a critical appraisal of the entire evidence on record and the probabilities in the light of the plea of right of private defence, learned trial Judge came to the conclusion that injuries found on the bodies of hemraj and Raja Bhaiya were attributable to the appellants only. Accordingly, he proceeded to acquit the other eight accused of the offences charged with. However, for the reasons recorded in paragraphs 42 to 46 of the impugned judgment, he further determined that the appellants had exceeded limits of the right of private defence. Both of them, therefore, convicted and sentenced as indicated hereinabove. ( 6. ) LEGALITY and propriety of the convictions under challenge have been assailed mainly on the following grounds :- (i) Even after holding that the evidence of so-called eyewitnesses viz. Amol Singh (PW 1), Ram Shankar (PW 2) and Dev Baksh (PW 9) was not reliable, learned trial Judge erred in placing reliance upon the testimony of raja Bhaiya, who was the most interested witness. (ii) The evidence of Raja Bhaiya was also not trustworthy due to the fact that his previous statement was not available for impeaching his credit. (iii) The first information report (Ex. P-20) was not forwarded to the Magistrate within a reasonable period. In response, learned Panel Lawyer, while inviting attention to the corresponding incriminating pieces of evidence, has submitted that the convictions in question are well-merited. ( 7. ) IN order to appreciate the merits of the rival contentions in proper perspective, it is necessary to first advert to the medical evidence available on record. ( 8. ) THE following were injuries noticed by dr. M. R. Khan (PW 7) on the body of Hemraj (i) Incised wound over frontal bone size 3" x 1/2" x bone deep, 21/2" above the left eyebrow. (ii) Incised wound on left parietal bone size 3" x 11/2" x communicating with brain cavity. . (iii) Incised wound on left ear size 1" x 1" x bone deep, cutting the right ear lobe and part of root of right ear. (ii) Incised wound on left parietal bone size 3" x 11/2" x communicating with brain cavity. . (iii) Incised wound on left ear size 1" x 1" x bone deep, cutting the right ear lobe and part of root of right ear. (iv) Incised wound on right side of face size 3/4" x 1/4" x 1/4". (v) Incised wound spindle shaped 3/4" x 3/4" connecting with the abdominal cavity 1 1/2" to umbilicus on left of abdominal. (vi) Bruise on left. shoulder and arm size 4" x 11/2", anterior aspect. (vii) Bruise on left shoulder and arm size 3" x 11/2", lateral aspect. ( 9. ) NO dispute was raised as to his opinion, as recorded in the post-mortem report (Ex. P-23) that death of Hemraj, as a result of injury to the brain, was homicidal in nature. ( 10. ) EXISTENCE of injuries on the person of Raja Bhaiya, as described in the report (Ex. P-22), was proved Dr. S. K. Maheshwari (PW 6 ). According to him, he had found that on 31-8-1992, Raja Bhaiya had sustained an incised wound measuring 12" x 1" with cutting of bone and brain matter on scalp over left frontal and parietal region and another incised wound measuring 1 1/2" x 1/4" x 1/4" on right hand over thenar eminence. In his opinion, the injuries were caused by hard and sharp cutting weapon and the injury on left frontal and parietal region was dangerous to life. ( 11. ) RAJA Bhaiya (PW 11) is the key witness. He substantially corroborated the prosecution version as against the appellants. His statement that both the appellants had assaulted him and his uncle Hemraj with axes was not subjected to a serious dispute. Even otherwise, his presence at the spot could not be doubted as, in the same transaction, he had also sustained grievous injuries. He candidly admitted that the incident resulting into death of Hemraj had taken place in the courtyard of Chamru, the grandfather of the appellants. The factum of a previous quarrel between Hemraj and a2 over the Bari (hedge of thorns) was also not denied by him. It also came in his evidence recorded on 22-9-1993 that he could regain consciousness only a month before. The factum of a previous quarrel between Hemraj and a2 over the Bari (hedge of thorns) was also not denied by him. It also came in his evidence recorded on 22-9-1993 that he could regain consciousness only a month before. In these circumstances, the grievance that his statement, that could be made to the police under Section 161 of the Code was not available, does not assume any significance as apparently no prejudice was caused to the defence. ( 12. ) THE testimony of Raja Bhaiya (PW-11) as an injured witness to the incident has its own efficacy and relevancy (Mohar v. State of U. P. , AIR 2002 SC 3279 ) : 2002 Cri lj 4310 (referred to ). Further, no motive to falsely implicate the appellants was alleged against him. His straight forward deposition drew ample support from the recovery of bloodstained earth from the place of occurrence. The infirmities in the statement of the first informant and the eyewitnesses also had no bearing on the credence of the testimony of Raja Bhaiya. ( 13. ) FROM the evidence of Tikaram (DW 1) Head Constable and Court Reader I. S. Patel (DW 2), it was clearly proved that the fir (Ex. P-20) recorded on 31-8-1992 was forwarded to the Magistrate on 3-9-1992. However, mere delay in dispatch of FIR to the Magistrate was not sufficient to throw out the prosecution case in its entirety simply because the veracity of the incident was not disputed. At the most, it could be taken as an infirmity in the investigation. ( 14. ) FOR these reasons, none of the contentions raised on behalf of the appellants against legality of the convictions deserves acceptance. ( 15. ) ADVERTING to the plea of right of private defence, it may be observed that the corresponding finding in absence of appeal by the State, has already attained finality. However, the fact of the matter is that none of the accused persons had received any injury. The presence of Hemraj and Raja bhaiya in the courtyard of Chamru, could only amount to criminal trespass. In such a situation, the appellants were not justified in causing death of Hemraj and injuries, one of which was dangerous to life, to Raja bhaiya by using axes. The presence of Hemraj and Raja bhaiya in the courtyard of Chamru, could only amount to criminal trespass. In such a situation, the appellants were not justified in causing death of Hemraj and injuries, one of which was dangerous to life, to Raja bhaiya by using axes. On these facts, learned trial Judge did not commit any illegality in holding that the appellants had exceeded the limits of the right of private defence. ( 16. ) TO sum up, even on a re-appreciation of the evidence on record, no interference would be called for with the findings of guilt recorded against the appellants. Their convictions, therefore, deserve to be affirmed as well-merited. However, taking into consideration the fact that more than 16 years has already elapsed after the unfortunate incident, the interest of justice would be met if the custodial sentences for the offences under Sections 304, Part I read with S. 34 and 326 read with S. 34 of the I. P. C. are reduced to 5 years and 3 years respectively. ( 17. ) CONSEQUENTLY, the appeal is partly allowed. The impugned convictions of the appellants for the offences under Sections 304, Part I. read with S. 34 and 326 read with S. 34 of the I. P. C. and the consequent sentence of fine are hereby affirmed but the term of custodial sentences are reduced from 7 years to 5 years and 4 years to 3 years respectively. The direction that the jail sentences shall run concurrently is also maintained. ( 18. ) THE appellants are on bail. They are directed to surrender to their bail bonds for undergoing remaining part of sentences. Appeal partly allowed. Order accordingly.