JUDGMENT
P.S. Narayana, J.
1. A-2 Yeleti Venkat Reddy appellant as accused is the brother of the deceased Yeleti Upender Reddy. The accused was charged with Section 302 of the Indian Penal Code (for brevity ‘IPC’) in Sessions Case No.405 of 1995 on the file of Principal Sessions Judge, Nalgonda, and was convicted under Section 304-II IPC and sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs.100/- in default simple imprisonment for one week.
2. The case of the prosecution is that the accused is the brother of the deceased and they have got some agricultural land in Survey No.168 of Bopparam village and the said land was in dispute. It is the case of the prosecution that the deceased raised jowar crop during the year of occurrence. On 21-02-1995 at about 2.00 p.m. while Yeleti Vasantha along with her husband deceased-Upender Reddy were attending the agricultural operations, all of a sudden, accused came there with cartpeg and picked up quarrel with the deceased and beat the deceased on his head and other parts, causing severe injuries and the accused also beat P.W.1 and the deceased succumbed to injuries at Osmania General Hospital, Hyderabad on 27-02-1995 i.e., six days after incident. The incidence was witnessed by P.Ws.1, 2 and Sirikonda Saidulu and after completing investigation, the Circle Inspector of Police, Suryapet, filed charge sheet against the accused under Section 302 IPC. The prosecution had examined P.Ws.1 to 11 and Exs.P-1 to P-21 and M.Os.1 to 3 were also marked. Exs.D-1 to D-3 were marked on behalf of the defence and after recording findings, the learned Sessions arrived at a conclusion that the accused is guilty of offence under Section 304-I IPC. Hence, the present Criminal Appeal.
3. Sri C.Praveen Kumar, learned counsel representing the appellant-accused would contend that the learned Judge totally erred in convicting the appellant on a solitary testimony of P.W.1, which is a highly interested testimony and also a discarded testimony. The learned counsel also would contend that P.W.1 suppressed the genesis of attack and gave untrue version, which is clearly reflected from his evidence when compare with the medical evidence. The learned counsel also pointed out that in a light of the evidence of P.W.2 and also the material available on record there cannot be any doubt or controversy that the accused had raised the crop and the incidents have taken place when P.W.1 and deceased trespassed in to the said land and started cutting the crop and in the light of the Exs.D-1 to D-3, the right of the private defence was excercised to defend his person and property by the accused in permissible limits and hence, the appellant accused is entitled for an acquittal.
4. Per contra, the learned Additional Public Prosecutor would contend that the evidence of P.W.1 is clear and categorical and even from the suggestions put to P.W.1, the presence of P.W.1 at the scene of offence cannot be doubted in any way. Hence, the evidence of P.W.1 is definitely trustworthy and can be believed. The minor contradictions, if any in between the evidence of P.W.1 and the medical evidence, are not so serious so as to totally discard the evidence of P.W.1. The learned counsel also would submit that even if there is a dispute relating to a piece of agricultural land between the brothers, the accused an aggressor brother had exceeded his right of private defence in cause of such injuries on the person of the deceased which are resulted in the death of the deceased and hence the conviction and sentence imposed are just and proper. The learned Additional Public Prosecutor also had taken to this Court the findings recorded by the learned Judge in this regard.
5. Heard the counsel.
6. The main question in controversy between the parties is in relation to the exercise of right of private defence. No doubt certain submissions were made on the ground that there is some discrepancy between the medical evidence and the evidence of P.W.1 and in view of the same, the evidence of P.W.1 may have to be disbelieved.
7. It is pertinent to note that the incident is not in dispute. It is also pertinent to note that in view of the suggestions put to P.W.1, the presence of P.W.1 at the scene of offence also cannot be doubted in any way. From the evidence of P.W.8 and the evidence of P.W.9, the medical evidence is as hereunder:
“The prosecution examined P.W.8 Dr.G.Shankar. According to him he examined P.W.1 Yeleti Vasantha on 21-02-1995 and found the following injuries:
1. Contusion over right fore arm 10″ x 5″.
2. Linear contusion over left scapular 23″ x 4″.
3. Contusion over right knee 6″ x 6″.
4. Linear contusion over right shoulder 5″ x 2″.
He found that all the injuries are simple in nature and might have been caused with blunt object. He is said to have issued a certificate and the same appears to have been kept in the case diary. Subsequently it is produced. Ex.P-10 is the xerox copy of the certificate. Ex.P-11 is original. Hence, it is clear that the doctor has examined her and found the injuries on her body. He has also examined Upender Reddy and found the following injuries.
1. Cut injury over left elbow on anterior aspect 4″ x 1/2″ duration 6 to 12 hours.
2. Cut injury over lower part of neck on right side 6 cm. x 1/8 cm. x 1/8 cm. Duration is 6 to 12 hours.
3. Another cut injury below 2nd injury 2″ x 1/8″. Duration 6 to 12 hours.
4. Abrasion over left knee 3″ x 3″. Duration 6 to 12 hours.
5. Swelling over left knee with crepitous. Fracture Patella.
6. Abrasion over right knee 1″ x 1/2″. Duration is 6 to 12 hours.
7. Diformity of right fore arm on lower end. Fracture both bones right fore arm lower end.
8. Cut injury over right index finger 3″ x 1″ x 1/2″. Duration is 6 to 12 hours.
9. Cut injury over right little finger 2″ x 1/2″ x 1/2″. Duration is 6 to
12 hours.
10. Cut injury over vertex on anterior side 4″ x 1 1/2″ x 1″.
Duration is 6 to 12 hours.
11. Contusion over right shoulder 15″ x 5″ x 3″. Duration is 6 to 12 hours.
He found 11 injuries. He found cut injuries on the elbow and on right side two injuries. The doctor has opined that the injury can be caused with a weapon similar to M.O.1. On the same day he is said to have examined the accused and found the following injuries:
1. Abrasion over right leg 5″ x 5″.
2. Contusion over left calf muscle 1.5″ x 5″.
3. Laceration over the vertex 5″ x 2″ x 2″.
4. Laceration over the vertex beside injury No.3 4″ x 2″ x 2″.
He has found that the duration of the injuries is 6 to 12 hours. They can be caused with an object similar to cartpeg. If injuries are taken into consideration the possibility of usage of stick namely cartpeg cannot be ruled out. There was discrepancy in respect of actual discharge of the accused. P.W.8 states that the discharge certificate was issued on 22-02-1995 whereas the record Ex.D-1 and Ex.D-3 issued by doctor discloses that the accused had been discharged on 28-02-1995 as he had fell injuries. The said record cannot in any way falsify the evidence of P.W.8. In all probability he must have been discharged on 28-02-1995 since at one stage of his examination he admitted about the discharge on 28-02-1995. This shows the utter carelessness of the doctors in dealing with cases and records and nothing down the incorrect dates. P.W.9 Dr.G.M.Krishna Rao conducted Post Mortem over the dead body of Upender Reddy on 27-02-1995 at 10.30 A.M. He noticed the following external injuries.
1. Sutured lacerated injury 4 cm. Long in sagittal place over middle of frontal region of head.
2. Fracture of distal pjalangeal bones of Index, ring and little fingers of right hand.
3. Fracture of both bones of right fore arm in the lower one third.
4. Fracture of left patella.
5. Fracture of both bones of right leg below the knee.
6. A linear abrasion 5 cm. Long, transverse over right side of front of root of neck.
He has also found the internal injuries.
1. A contusion 3 cm. Diameter over right occipital region of head was found.
There was no external injury corresponding to this injury.
Subarachnoid haemorrhage 2 cm. In diameter over right occipital region of brain, connecting to internal injury No.1.
Skull was intact. Stomach is empty. Mucuous membrance is normal. No suspicious smell was there. No obnormalities in any other region. Heart is normal. There was no blood in heart. Liver was also normal. He has issued Ex.P-14 Certificate. Strangely he states that there is no corresponding external injury regarding the injury over right occipital region of head. According to him he found contusion 3 cm. Over right occipital region on head. He states that there is no external injury corresponding to this injury. He further asserts that internal injury can exist without corresponding external injury. He tries to give examples in cases of abdominal internal injuries. He forgets that the brain is covered by skull bones later scalp whereas abdominal wall will not be having bones except on its sides. In any view of the matter the reason given by him for applying the same principle to the head injuries cannot be valid unless there is a heavy blow on the head which cause bleeding inside the brain. The blow from backside also can cause injuries. This is a case where the injuries are said to have been caused on the head. In any view of the matter he found the injuries inside the brain and also he found that vessels supplying the blood to the brain were damaged resulting in bleeding.”
8. Ex.D-1 is the requisition, given by the Sub Inspector of Police to examine the accused dated 21-02-1995. Ex.D-2 is the Injury Certificate in respect of the accused dated 21-02-1995. Ex.D-3 is the Certificate issued by Medical Officer, Community Hospital, Suryapet. P.Ws.10 and 11 are the Investigating Officers namely Sub Inspector of Police and Circle Inspector of Police who have deposed in detail relating to the details of investigation.
9. P.W.1 is the wife of the deceased. P.W.3 is the mother of P.W.1. P.W.3 is no doubt deposed that her father and other brothers gave one acre of land to the deceased as he being the youngest. No doubt this witness deposed what she was informed about the incident being beaten and the other aspects.
10. P.W.2 deposed that the land of the deceased is by the side of his land and on the fateful day at about 2 P.M. when he was near his well, he heard some shouts from the land of the deceased and went there and both the deceased and accused were laying on the ground and P.W.1 was shouting for help and he gave water to the deceased and the accused. Laxmamma and Saidulu also came there and they have put the deceased on cot, which was there in the field of the farm servant of the accused, brought his cart and the accused was sent to the village. No doubt this witness was treated hostile.
11. As per the evidence of P.W.2, after the death of the father, the accused have raised the dispute as to how the deceased can cut the crop raised by him. The evidence of P.W.1 is clear and categorical. No doubt, at length, submissions were made to show that some minor discrepancies are there in the evidence of P.W.1 when compared to the medical evidence. P.W.1 deposed that the accused is the elder brother of her husband and they had gone to the land on the fateful day to cut the jowar crop. When they were working in the field, at about 1 P.M., the accused came with a cartpeg and picked up a quarrel with her husband and beat with cartpeg on right leg, left shoulder back and head and when she interfered to rescue her husband, the accused beat her with cartpeg on her left hand near elbow. This witness also deposed that she became angree and picked up a Chirra (small stick used for yoke of the cart) and hit on the fore head of accused. She made hue and cry and on hearing her cry, P.W.2, Yeleti Veera Reddy and Sirikonda Saidulu came and gave report. Ex.P-1 was prepared and submitted to police. She also deposed that the incident occurred at about 1 or 2 p.m. and report was given at 5.30 P.M. and the police sent her husband to the Government General Hospital, Suryapet. She accompanied to him and while under going treatment for injuries, her husband died six days later. P.W.1 also deposed that her brother Yasa Sanker Reddy went to Atmakur police station and informed about his death to police. Police conducted inquest. P.W.1 also deposed that previously accused has committed some offences in respect of his elder brother and accused went to jail and she further deposed that her husband worked hard at the house and hence, her husband was given one acre of land more in addition to his share. Later all the accused came out of jail on acquittal and after the death of her father-in-law/grand father which was seven months prior to the death of her husband, accused picked up quarrel with her husband regarding one acre of land and perpetrated the offence. P.W.1 also identified the weapon M.O.1 and the weapon used for the commission of offence. No doubt in cross-examination, this witness admitted that the land would be left as Beedu at some time and some time jowar crop will be grown. Before the death of her father-in-law, the said land was Beedu and P.W.1 also deposed that she did not mention in Ex.P-1 or before police that they raised jowar crop in the land and she also admitted that the dispute arose between them and the accused, relating to jowar crop only and it is also the evidence of P.W.1 that by the time Laxmamma and Saidulu came , her husband was lying with injuries.
12. When the presence of P.W.1 at the scene of offence cannot be doubted at all, the only question which may have to be appreciated is whether the incident happened in the morning as deposed by P.W.1 or otherwise and in the light of the evidence of P.W.1 and the other medical evidence available on record and also injuries on the person of the accused, in the facts and circumstances, can it be said that the accused exercised the right of private defence within the permissible limits or exceeded the right of private defence.
13. P.W.4 deposed that police conducted scene of offence Panchanama in his presence and in the presence of one Veeraiah in jawar land and he also deposed about Veeraiah and himself signing on Ex.P-4 Panchanama. P.W.5 deposed about the conduct of inquest by police in Osmania General Hospital and noticing injuries on the body and this witness also deposed about Ex.P-5 Inquest Report. This witness and other witnesses opining that the deceased died due to the injuries sustained by him.
14. P.W.6 deposed that one day Sub-Inspector of Police came to that village and sat in school. He called him and asked him to sign on a paper stating that he has to obtain signatures in connection with the arrest of the accused and he signed on a white paper and accused did not state any thing. Later the police had taken away the accused. However, this witness admits the signatures on Exs.P-6 and P-7. This witness was declared hostile. P.W.7 also was declared hostile since he deposed that the accused did not produce any object and also denied about accused making confession.
15. P.W.10 the Investigating Officer deposed that:
“Previously he worked as S.I. of police, Athmakur (S) P.S. from 11-01-1994 to 05-05-1995. He deposes that on 21-02-1995 at 1730 hrs., P.W.1 came to the police station and presented a written complaint. It is also in his evidence that he registered it as Ex.P-1 as Cr.No.5/95 U/Sec.324 IPC., as FIR. He also deposed about the examination and recording the statements of deceased and later sending them to hospital for treatment. He also deposes about the visiting the scene and conducting scene of offence panchanama. According to him the scene of offence is also called as Dongalavagu Chelka belonging to the deceased. He also deposes about one Shankar Reddy giving the death intimation orally. Thereafter the section of law was altered from Sec.324 IPC., to Sec.302 IPC., It is Ex.P-16. He further deposes about visiting Osmania General Hospital, Hyderabad and recording the statement of PW-1 and conducting inquest over the dead body of Upender Reddy in the presence of P.W.5 and another. He also deposes about the conduction of inquest and writing inquest report Ex.P-5. He also deposed that he arrested the accused on 27-03-1995 at about 600 hrs. and recovered M.O.1 stick on the strength of the confessional statement by the accused in presence of P.W.6 and P.W.7. It is also in his evidence that the accused led them to his well after confession and showed M.O.1 near the well. The well was found in the land of the accused and he further deposes that the accused himself produced M.O.1 from his kottam. It is also in his evidence that he forwarded the properties to the Forensic Science Laboratory, Hyderabad for examination under Ex.P-19 requisition. The letter of advice is Ex.P-20. The Director, Forensic Science Laboratory gave report Ex.P-21. According to him the C.I. of Police took over the investigation and laid the Charge Sheet.”
16. P.W.11 the Circle Inspector of Police deposed that:
“Previously he worked as Circle Inspector of police, Suryapet and also he further deposes that he had taken up investigation on 03-04-1995 from P.W.10. He further deposes that as the investigation is almost completed he has collected the documents and filed the charge sheet. He deposes that during the course of investigation, it is revealed that the accused received injuries in the scuffle with his brother. It is also in his evidence that report given by the accused was registered as Cr. No.5/95. He has not mentioned in the charge sheet that accused is the aggressor. His investigation revealed that the accused sustained head injuries in the scuffle. He has not made any attempt to explain the injuries found on the accused. The incident took place due to a dispute relating to a Jawar crop.
During the 313 Cr.P.C., examination, the accused has stated that he has raised Jawar crop. P.W.1 and the deceased came there in order to cut and take away the crop. Then he questioned as to why they were cutting the Jawar crop raised by him. Then he was beaten on the head. He further states Yeleti Vasantha beat him on his head and other parts of the body. It is also in his 313 Cr.P.C., examination that he went on a cart to the police station and presented a report and he was treated in the hospital for seven days and that old people retained the extent without giving a share. According to him, he beat on the legs with a small stick. It is also his version that police beat him and filed this case. He was detained for 12 days by tying to the cot. It is also his version that he raised jowar crop thinking that he could some portion to old people. He came when it was ripe within a month. Elders and Sarpanch told his brother not to cut the crop. He went and told him that he raised the crop and not to cut the crop both of them highhandedly came armed with cartpegs and beat him then he fell down. Laxmamma, Saidulu and Veeranna came, and gave water and removed him to Atmakur (S) P.S. Thereafter, the Sub Inspector of Police sent him to Suryapet Hospital. Sutures were put. He was in the hospital for seven days. Even before the injury is healed, the police came and tied him with chains and took him to the Station. Medicines were supplied. He is filing the Certificate issued by the doctor. According to him, he was detained till 28-02-1995.”
This is the evidence of the Investigating Officers P.Ws.10 and 11. The evidence of doctors P.Ws.8 and 9 who had examined P.W.1 and also her husband and conducted postmortem examination already had been referred to supra.
17. It is no doubt true that there is some controversy between these brothers relating to a piece of land and the actual possession of the said land also appears to be doubtful and it is needless to say that this is a civil dispute. As per the evidence of P.W.2, who was declared hostile, accused raised the crop. No doubt these all the findings recorded even by the learned Judge while appreciating the evidence on the record. No doubt in the course of scuffle, the accused also received some injuries. But the fact remains that the accused being aggrieved of the fact that the jowar crop in the land was being cut by the deceased P.W.1, had gone there, attacked the deceased and the deceased no doubt died after six days. Thus, the right of private defence is taken by the accused as defence to protect his crop in his property and in the course of such an attempt and in the course of scuffle, the deceased-brother of the accused sustained injuries and died after six days.
18. Reliance was placed on certain decisions that the private defence may have to be exercised only within permissible limits and not exceeding thereto.
1. NAGENDRA PAL SINGH v. STATE OF U.P.1
2. RAJESH KUMAR v. DHARMIR & OTHERS2
3. CHACKO AND OTHERS v. STATE OF KERALA3
4. SAVITHA KUMAR v. UNIOIN OF INDIA4 wherein, it was held that the plea of private defence need not be proved beyond reasonable doubt.
19. It is also no doubt true that the accused is not expected to weigh while exercising private defence in golden scale. In a case of private defence, the over all facts and circumstances may have to be appreciated to arrive at a conclusion whether the accused is an aggressor or whether the accused had exercised the right of private defence within permissible limits.
20. In NATHAN v. STATE OF MADRAS5 wherein it was held that:
“When the possession of the land was not with the prosecution witness and the objection raised by the accused party to harvesting of the crop by the prosecution witness and his men, was genuine the whole occurrence takes on a different aspect. It does not appear that the harvesting party was armed with any deadly weapons and there could not have been any fear of death or grievous hurt on the part of appellant and his party. Under Section 104 IPC their right therefore, was limited to the causing of any harm other than death. It should, therefore, be held that the accused though they were exercising the right of private defence of property had exceeded that right. The case would, therefore, fall under Exception 2 and Section 300 IPC and the offence committed by the appellant should be held to amount to culpable homicide not amounting to murder, as it was committed good faith of right of private defence of property but it exceeded the power given to him by law and caused the death of a person against whom he was exercising such right of defence. Hence, life imprisonment was awarded in the place of death sentence.”
21. In ONKARNATH SINGH v. STATE OF U.P.6 wherein it was held that:
“Harm inflicted in self defence must be no more than is legitimately necessary for the purpose of defence.”
22. In STATE OF U.P. v. RAM SWARUP7, the principles relating to the bodily injuries in proving the existence of circumstances for establishing right of private defence had been well discussed.
23. In HARI MEGHJI v. STATE OF GUJARAT8 wherein it was held that:
“There cannot be any question of exceeding the right of private defence where the accused causes more harm than it is necessary for the purpose of his defence.”
24. In DEO NARAIN v. STATE OF U.P.9 wherein it was held that:
“The right of private defence rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self defence.”
25. Reliance was also placed in KESHORAM v. STATE OF ASSAM10
26. Submissions, at length, were made that solitary testimony of P.W.1 cannot be relied upon, in V.THEVAR v. STATE OF MADRAS11 wherein it was held that:
“The contention that in a murder case, the Court should insist upon plurality of witnesses is much broadly stated. The Indian Legislature has not insisted on laying down that “no particular number of witnesses shall, in any case, be required for the proof of any fact” has enshrined the well recognized maxim that “Evidence has to be weighed and not counted.” It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases, which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of single witness only could be available in proof of the crime, would go unpunished. It here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints, which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, in case of sexual offences or of the testimony of an approver, both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.”
27. In LAXMAN SAHU v. STATE OF ORISSA12 wherein it was held that:
“The right of private defence is available one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent.”
28. Coming to the facts on hand relating to the ownership of the land as to whether the land had fallen to the share of the deceased Upendra Reddy or not? The evidence of P.W.1 and P.W.3 alone is available on record. As far as the aspect of possession of the land in relation to the raising of the crop is concerned, the evidence of P.W.2 is to the effect that the accused had raised the crop and when the deceased and P.W.1 were cutting the crop, he went there to object the same. But the evidence of P.W.1 is clear and categorical that the accused went there armed with M.O.1, beat the deceased with cartpeg and P.W.1 interfered and she was also beaten with cartpeg. Hence, the accused came to the spot armed with a cartpeg, picked up quarrel with the deceased and beat the deceased and also P.W.1 and caused serious injury, as can be seen from the medical evidence. Though there is some doubt relating to the owner-ship and possession and also in regard to who raised the crop, accused attacking the deceased and also P.W.1, may not fall, in the permissible limits of exercise of private defence and hence, in the facts and circumstances, this Court is of the considered opinion that the accused exceeded the private defence as can be seen from the medical evidence and also from the evidence of P.W.1. In this view of the matter, the findings recorded by the learned Judge in this regard are hereby confirmed.
29. However, taking over all facts into consideration, this Court is of the opinion that the fact remains that the deceased died after six days of the incident, wherein the accused also received certain injuries. In view of the same, it cannot be said that the offence would fall under Section 304-I IPC but the offence would fall under Section 304-II IPC. In administering the criminal justice, theory of reformation and the interest of society may be kept in view and balance may have to be maintained in this regard. If it is not clear about the possession of the piece of land, there appears to be some dispute relating to ownership of land between the brothers. It is needless to say that it is a civil dispute. But, however, in the light of the clear findings recorded by the learned Judge and also view expressed by this Court supra, this Court is of the considered opinion that the findings as such are to be confirmed except that the offence falls under Section 304-II IPC and accordingly, the conviction and sentence recorded under Section 304-I IPC are hereby set aside and the appellant-accused is convicted under Section 304-II IPC and the appellant-accused shall undergo rigorous imprisonment for a period of three and a half years and also to pay a fine of Rs.100/- in default simple imprisonment for one week. It is brought to the notice of this Court that the accused had been in judicial custody for sufficiently a long time and the said period has to be given set off.
30. Accordingly, the criminal appeal is partly allowed. The bail bonds of the accused shall stand cancelled. The accused shall serve the rest of the sentence. It is needless to say that accused is also entitled to set off, if any, in accordance with law.