JUDGMENT

RANGANATH MISRA, J.:— This appeal by special leave is directed against the judgment of the Delhi High Court. The appellant along with others was put on trial for offences punishable under section 302/34 and S. 449/34, I.P.C. for having assaulted one Ranjit Singh who succumbed to the injuries. The learned trial Judge convicted the appellant under S. 302, I.P.C. and sentenced him to imprisonment for life while the co-accused were convicted for minor offences and sentenced to different terms of imprisonment. The appellant was also convicted for the offence under S. 449, I.P.C. and sentenced to two years rigorous imprisonment. On appeal the High Court while upholding the guilt of the appellant modified the conviction to one under S. 304, Part II, I.P.C. and sentenced him to rigorous imprisonment of 10 years and to pay a fine of Rs. 2,000/- with a default sentence of 11/2 years rigorous imprisonment. The High Court upheld the conviction and sentence for the offence under S. 449, I.P.C.The modified judgment of the Delhi High Court is assailed in this appeal.

2. The parties are close relations. One Mela Singh had two sons - Kirpal Singh and Ranjit Singh. The two brothers lived in adjacent houses in Chuna Mandi area of Delhi, and dispute existed between them in regard to division of property. Appellant Mohinder Singh is Kirpal Singhs son. The deceased was Ranjit Singh his uncle. The principal witnesses examined on the side of the prosecution are Shakuntala, P.W. 1, daughter of Ranjit Singh, her husband Gurbachan Singh, P.W. 2, and Harpal, son of Ranjit, P.W. 3.

3. P.W. 1, the informant alleged that on August 28,1972, she had come to the house of her father. She found that the accused persons who are Kirpal (now dead), appellant and other relations, came up to the roof of the Kitchen and hurled abuses at Ranjit. They also threw brickbats at them and ultimately came into the residential portion of Ranjit Singh armed and started assaulting Ranjit, P.W. 1 and also P.W. 3. It was Shakuntalas case that the appellant came armed with an iron rod and with it gave blows on Ranjits face and nose. When the son and the daughter intervened to protect their father they were also beaten up. Medical evidence showed that no iron rod was used and the blows on Ranjit were by Lathi. According to the post-mortem report internal injury corresponding to the injury on the forehead was the fatal blow. Medical examination of the deceased had not, however, indicated any external injury on the forehead, and the evidence given by the prosecution did not clearly indicate a blow on the forehead. In unfolding the prosecution case there was considerable discrepancy between the statements given to the police under S. 161 of the Code of Criminal Procedure and the evidence at the trial. The Courts below, however, accepted the explanation offered by the prosecution in regard to the shortcomings and accepted the prosecution case that the appellant had as a fact given the main blow to the deceased which caused his death.

4. The appellant who personally argued his appeal reiterated the contentions which had been raised in the Courts below. According to him the prosecution case should have been rejected outright in view of two different stories having been placed - one during investigation and the other at the trial. According to him he was not at the spot at all and in the evening of the date of occurrence the members of the family of the deceased had got drunk within their house and there was some incident.

5. We have given a patient hearing to the appellant and we have also heard Mr. Mahajan for. the Delhi Administration. It is true that there is considerable discrepancy and embellishment in regard to the instrument of assault. Similarly, the evidence in regard to the part of the, body of Ranjit on which assault was made is discrepant but having read the judgment of the two courts below and after hearing the appellant and counsel for the respondent, we are not in a p