JUDGMENT H.P. Asthana, J. - Saheb Singh has been convicted u/s 429 I.P.C. and has been sentenced to six months' rigorous imprisonment by the Temporary Sessions Judge, Aligarh. Mahabir and Ram Das have each been convicted u/s 324, I.P.C. and have been sentenced to eighteen months' rigorous imprisonment and Aram Singh has been convicted u/s 325, I.P.C. and sentenced to two years' rigorous imprisonment. They have filed the present appeal against their conviction and sentence. 2. It appears that there was a dispute between Teg Singh Ahir and some Thakurs over plot No. 389 of 20 bighas situated in village Sikandarpur in the district of Aligarh. The Ahirs had filed a suit against Girwar Singh and other Thakurs for ejectment but their suit was dismissed and at the time of the occurrence an appeal was pending against that decision. The case for the prosecution was that a day before the occurrence the Thakurs had ploughed this field and on the day of the occurrence the Ahirs went to plough it and had already ploughed and sown a major portion of it when the accused came there armed with guns spears and lathis and attacked them, that they shot dead the bullock of Girwar Singh Ahir which was being used for ploughing the field, that thereupon Girwar Singh complained to Bhikey that his bullock had been shot dead, that while Bhikey was proceeding towards the accused to protest against their wrongful act he was shot dead by Girwar Singh, that thereupon the Ahirs started running away when the accused Mahabir fired a shot with the result that Ram Singh fell down immediately after although the shot did not strike him and that after he had fallen down he was struck with spears and lathis by the accused and numerous injuries were caused to him and then the accused ran away. The report of the occurrence was made the same day on 17th July, 1950 at 11 a.m. in the morning about three hours of the occurrence at P.S. Dadon which is at a distance of seven miles to the east of the place of occurrence. This report was made by Teg Singh Ahir. The names of all the 20 accused were mentioned in this report. It was registered under Sections 148, 302 and 429 I.P.C. and also u/s 19(f) of the Arms Act. This report was made by Teg Singh Ahir. The names of all the 20 accused were mentioned in this report. It was registered under Sections 148, 302 and 429 I.P.C. and also u/s 19(f) of the Arms Act. Girwar, Chob Singh, Teg Singh, Chhattar and Ran Singh, who were all injured, were sent for medical examination. Bhikey who had died on the spot as a result of the gunshot injury was sent for post-mortem examination which was performed on 18th July, 1950. Girwar had 10 injuries on his person which were all abrasions of different dimensions. Chob Singh had two lacerated wounds on the right index finger. Teg Singh had a lacerated wound on the left side of back of head and a bruise on the left side on the back. Chhattar had a bruise and two lacerated wounds both of which were on the head. Ran Singh had 19 injuries on his person consisting of incised wounds, bruises, lacerated wounds and compound fracture of the lower end of the humerus bone. Bhikey who had died on the spot had three gun-shot wounds and one incised wound. As a result of the investigation 20 persons were sent up for trial under Sections 147, 302, 307, 326, 323 and 429 I.P.C. 3. The prosecution examined 24 witnesses in support of the case. The witnesses of the occurrence are mostly Ahirs who were present at the scene of the incident. 4. The accused Saheb Singh, Mahabir, Ram Das and Aram Singh pleaded alibi. They all stated that they had been falsely implicated on account of enmity. The case of Saheb Singh was that his field lay near the Chaupal of Bhikey and his cattle used to stray into it and he had to send them several times to the cattle pound and on account of it he has been falsely implicated. The case of Mahabir was that a litigation had been going on about the 20 bighawala field for the last 7 or 8 years and on account of enmity he had been falsely implicated in the case. The case of Ram Das was that his father had initiated a case against Bhikey and others and obtained their conviction and owing to this fact Bhikey and others had enmity against him and therefore falsely implicated him in the case. The case of Ram Das was that his father had initiated a case against Bhikey and others and obtained their conviction and owing to this fact Bhikey and others had enmity against him and therefore falsely implicated him in the case. Aram Singh stated that he had been falsely implicated on account of the claim u/s 180. 5. In all five witnesses were examined on behalf of the accused and they were Dr. Jagat Bihari Lal Mathur, Ahmad Ullah Khan Mukhtar, Dr. M.D. Bharadwaj, Captain Brij Raj Singh and Ramesh Chandra. The first was examined in order to prove a certain statement which had been made by Chob Singh, son of Murli, in a case u/s 180 of the U.P. Tenancy Act on 1st August, 1949. The statement which was proved by this witness was that the Court of Wards had executed a patta 4 1/2 or 6 (sic) years ago and that the Defendants were continuing in possession till that day. Ahmad Ullah Khan was examined in order to prove a certain plaint which had been filed in a case u/s 180 of the Tenancy Act. Dr. Bharadwaj proved the injuries on the persons of Nandan Singh, Ganga Singh and Ram Prasad who were also accused in this case but who were acquitted by the learned Sessions Judge. Captain Brij Raj Singh was examined in order to prove that on the day of the occurrence the accused Dalip was under his treatment and was suffering from typhoid. Dalip has also been acquitted in this case. Ramesh Chandra (D.W. 5) is a Typist at Aligarh. He was a witness on behalf of Nandan Singh and Ganga Singh accused. He was examined to prove a certain application which is said to have been made by Nandan Singh and Ganga Singh on the day of the occurrence. 6. The learned Sessions Judge after a consideration of the entire evidence on the record found that the case had been proved only against the four accused, viz. Saheb Singh, Mahabir, Ram Das and Aram Singh. He, therefore, convicted and sentenced them as stated above. He was not satisfied that the case against the remaining sixteen accused had been satisfactorily proved. He therefore acquitted them. 7. It was not disputed before me that there was litigation between the Ahirs and the Thakurs over plot No. 389 of 20 bighas. He, therefore, convicted and sentenced them as stated above. He was not satisfied that the case against the remaining sixteen accused had been satisfactorily proved. He therefore acquitted them. 7. It was not disputed before me that there was litigation between the Ahirs and the Thakurs over plot No. 389 of 20 bighas. It was also not disputed that the incident took place over this plot on 17th July, 1950 because the Ahirs who had no right to it and who were unsuccessful in the litigation had wrongfully ploughed it and thereby dispossessed the Thakurs who were held entitled to this plot. It was, however, disputed that the present Appellants had taken part in the incident. It was further argued that even if it was held that they had taken any part in the assault they did so in defence of their property and person and under no circumstances had they exceeded that right. 8. There is ample evidence on the record which has not been in any way rebutted on behalf of the accused that the Thakurs had been successful in the courts below regarding the land in dispute and at the time of the occurrence an appeal which had been filed on behalf of the Ahirs was pending. It also appears from the evidence as well as from the first information report that a day before the occurrence Nandan, Kammu and Bhullan, Thakurs had ploughed the field and that the next morning Teg Singh, Bhikey and other Ahirs ploughed it. After the Ahirs had ploughed the major portion of the field the accused came up armed with guns, spears and lathis and stood at a distance of about 30 or 40 paces from the field, that the accused Aram Singh asked the Ahirs not to plough the land, that the Ahirs did not comply with his wishes and said that they would leave the land only after they had finished ploughing it, and that thereupon the accused Aram Singh asked Saheb Singh to shoot them and then Saheb Singh fired his gun which hit the bullock of Girwar Singh and caused its death. Girwar then complained to his maternal uncle Bhikey that his bullock had been shot dead and thereupon Bhikey and some other persons proceeded towards the Thakurs with their Painas and lathis when Girwar Singh shot at Bhikey with his gun and Bhikey was hit and fell down dead on the spot. It further appears from the evidence that subsequently another shot was fired by Mahabir and Ran Singh as a result of the shock, felldown on the ground immediately after although the shot did not strike him and while he was lying on the ground he was speared and beaten with lathis by several accused as a result of which he received a number of injuries. 9. It was contended on behalf of the accused that they acted in defence of their propery which had been wrongfully taken possession of by the Ahi s that the bullock was hit only accidentally and even if it was deliberately shot at the object was not to kill the bullock but merely to terrify the Ahirs and make them run away from the field in question. It was also argued that after the bullock was killed Bhikey and others rushed with their lathis towards Saheb Singh and others in order to beat them and kill them and that whatever injuries were inflicted on these persons were inflicted in self-defence as it was apprehended that in case the gun and the lathis were not used they might be over powered and killed. 10. The first question for consideration which therefore arises is whether Saheb Singh accused was the person who had shot at the bullock and killed it and whether he did so in order to defend the property and whether his action was excepted u/s 104 I.P.C. 11. It appears from the evidence of nearly all the prosecution witnesses that it was Saheb Singh who shot at the bullock and killed it. This fact is also mentioned in the first information report which was made within a short time of occurrence. There is nothing on behalf of Saheb Singh to show that Teg Singh who made the first information report or the other prosecution witnesses who mentioned his name had any enmity with him and on that account they had falsely implicated him. It was not disputed that the bullock of the Ahirs was shot at and killed on the spot. There is nothing on behalf of Saheb Singh to show that Teg Singh who made the first information report or the other prosecution witnesses who mentioned his name had any enmity with him and on that account they had falsely implicated him. It was not disputed that the bullock of the Ahirs was shot at and killed on the spot. There can be no denying the fact that some one among the Thakur accused shot at the bullock and killed it. If it was not Saheb Singh but any other person there does not appear any satisfactory reason why the act of killing the bullock had been attributed to Saheb Singh. If there were any particular enmity between Saheb Singh and Teg Singh and the other prosecution witnesses who mentioned his name there could be some justification for the contention that it was because of this enmity that the wrongful act had been attributed to him. Learned Counsel for Saheb Singh relied on the statement of P.W. 4 Beni Ram Chowkidar who stated that he did not see any gun in the hand of Saheb Singh. It appears from a perusal of the statement of this witness that he reached the scene of the occurrence after the fight was over and when he reached there he saw one bullock lying dead and Bhikey also lying dead, that Ran Singh was lying injured on the ground and 60 or 70 Ahirs were standing on one side and 20 or 23 Thakurs were standing on the other side. It is possible that at the time he reached the place of the occurrence the gun was not in the hand of Saheb Singh and for that reason he stated that he did not see the gun in his hand. His statement, however, does not prove that at the time the bullock was shot at Saheb Singh had no gun with him or that he did not shoot it. There does not appear any satisfactory reason to disbelieve the evidence of a very large number of the presecution witnesses who were examined in the case. In my opinion there is satisfactory evidence on the record that it was Saheb Singh who shot at the bullock of Girwar Ahir and killed it on the spot. 12. There does not appear any satisfactory reason to disbelieve the evidence of a very large number of the presecution witnesses who were examined in the case. In my opinion there is satisfactory evidence on the record that it was Saheb Singh who shot at the bullock of Girwar Ahir and killed it on the spot. 12. The question which next arises is whether Saheb Singh was justified in his act and whether he should get the benefit of Section 104, I.P.C. This section runs as follows: If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrongdoer of any harm other than death. 13. It will appear from a perusal of the above section that the right which can be exercised by a person in defending his property against any of the offences mentioned in the section is subject to the restrictions contained in Section 99. The restrictions which are imposed by Section 99 are that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities and in any case the right of private defence does not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In view of these two restrictions it has to be considered whether the accused had no time to have recourse to the public authorities for their protection and whether Saheb Singh was justified in shooting the bullock and killing it. It appears from the evidence on the record that there was a litigation between the parties over the plot in question and an appeal was pending at the time of the occurrence. It also appears from the evidence that a day prior to the occurrence the Thakur accused had ploughed a portion of the plot, though there is nothing on the record to show that they had sown in the area ploughed by them. It also appears from the evidence that a day prior to the occurrence the Thakur accused had ploughed a portion of the plot, though there is nothing on the record to show that they had sown in the area ploughed by them. It further appears from the evidence that on the day of the occurrence the Ahirs went to the plot in dispute and had ploughed a major portion of it and some portion was still left for being ploughed when the occurrence took place, that the Thakurs came there armed with guns, spears and lathis and stood at a distance of 35 or 40 paces from the field in question and then asked the Ahirs to stop ploughing any more and leave the field and that when they refused Saheb Singh fired his gun towards the Ahirs and killed the bullock. It appears to me that the Thakurs had come prepared to punish the Ahirs for their wrongful act and it was with this object that the first shot was fired at by Saheb Singh in order to terrify the Ahirs and it killed one of their bullocks. I do not think that the Thakurs could not have recourse to the public authorities for their protection. The case would, of course, have been different if there were evidence on the record to show that the Thakurs had already sown the plot in question and the Ahirs had been reploughing the sown portion and damaging the crop. If at the time the Thakurs reached the field they had found that their crop was being damaged by the Ahirs then certainly they would have been entitled to protect it because if they had gone to the public authorities and complained about the wrongful act of the Ahirs their crop would have been destroyed in the meantime. I do not think that merely because the Thakurs had ploughed a small portion of the plot a day before and on the day of the occurrence the Ahirs had ploughed the major portion of it that would give them any right of private defence to the extent claimed by Thakur accused in respect of the plot. I do not think that merely because the Thakurs had ploughed a small portion of the plot a day before and on the day of the occurrence the Ahirs had ploughed the major portion of it that would give them any right of private defence to the extent claimed by Thakur accused in respect of the plot. The Thakur accused could have approached the public authorities and complained about the wrongful act of the Ahirs and they could have obtained possession over the plot which had been wrongfully taken possession of by the Ahirs and ploughed by them. I do not think that the Thakurs could have suffered any irreparable loss or damage if they would have proceeded legally. It is only in these cases where if immediate action is not taken the complainant would suffer irreparable loss that the complainant has got a right to defend the property and avoid the loss as provided in Section 104, I.P.C. I have also not been able to understand how the killing of the bullock would have been of any help in defending the property unless the object in killing the bullock was to frighten the Ahirs. It was argued on behalf of the Appellants that according to Section 104, I.P.C. they were entitled to inflict any harm on the wrong-doers other than death and in view of this provision the killing of the bullock which at the most would amount to mischief was permissible. In my opinion the harm which is intended in Section 104 should be of such a nature as should be helpful in defending the property and not of any other kind of harm. I have already said above that the Thakur accused could have had recourse to the public authorities when the Ahirs had wrongfully taken possession of their land and had ploughed it and in view of this fact Saheb Singh was not justified in shooting dead the bullock of Girwar Ahir. 14. I am, therefore, of the opinion that Saheb Singh has been rightly convicted u/s 429 I.P.C. 15. I now take up the case of the other three accused, viz. Mahabir, Ram Das and Aram Singh: 16. The evidence against Ram Das and Aram Singh is that the former speared Ran Singh after he had fallen down on the ground and the latter beat him with lathis. I now take up the case of the other three accused, viz. Mahabir, Ram Das and Aram Singh: 16. The evidence against Ram Das and Aram Singh is that the former speared Ran Singh after he had fallen down on the ground and the latter beat him with lathis. It will appear from the injury report of Ran Singh that he had as many as 19 injuries on his person. There was no justification for inflicting so many injuries on his person after he had fallen down. There can be no doubt that these two accused even if they had any right of defence they exceeded that right in inflicting injuries on Ran Singh after he had already fallen on the ground. Much reliance has been placed on the statement of P.W. 4 Beni Ram Chowkidar who said that he did not see Mahabir, Ram Das and Aram Singh in the crowd of the Thakurs. I have already discussed the evidence of this witness above and have pointed out that he reached the scene of the occurrence after the incident was over. According to his statement there were 60 or 70 Ahirs standing on one side and some 20 or 25 Thakurs on the other. It is possible that in this huge crowd he could not notice these accused. There is, however, no satisfactory reason why the names of these accused are mentioned in the first information report as well as in the evidence of the other prosecution witnesses. 17. It was argued on behalf of the Appellants that on their side Ganga Singh, Nandan Singh and Ram Prasad had received injuries which indicated that the Ahirs had attackd the Thakurs when Bhikey was shot dead and whatever injuries were caused on the side of the Ahirs were caused in the exercise of the right of self-defence. It appears from the injury reports of Ganga Singh, Nandan Singh and Ram Prasad that Ganga Singh had two contused wounds and one contusion; Nandan Singh had one abrasion on the right upper arm and one linear abrasion on the left shoulder and Ram Prasad had one contusion on the middle of the left side of the back. It may be that when Bhikey was shot dead by Girwar Singh the Ahirs who were ploughing the field got infuriated and proceeded towards the Thakurs to protest against their wrongful act. It may be that when Bhikey was shot dead by Girwar Singh the Ahirs who were ploughing the field got infuriated and proceeded towards the Thakurs to protest against their wrongful act. It also appears that the Ahirs had painas and lathis with them at that time. In view of the fact that the Thakurs were not justified in shooting the bullock the Ahirs had a cause of grievance against the Thakurs. Even if it is accepted that the Thakurs had a right to inflict injuries on the Ahirs when they proceeded towards them after the bullock was killed and Bhikey was shot dead they certainly had no right to inflict more injuries than were necessary in their self-defence. As has already been pointed out Ran Singh had already fallen down on the ground and it was therefore not necessary to beat him any further and cause him so many injuries. 18. I am, therefore of the opinion that Aram Singh and Ram Das exceeded the right of self-defence even if they had it and they have been rightly convicted. 19. As regards the accused Mahabir the only evidence against him is that he fired his gun towards Ran Singh. Ran Singh was not hit. He did not get any gun-shot injury. There is nothing on the record to show that besides Bhikey any person on the side of the Ahirs received any gun-shot injury. The learned Sessions Judge while discussing the case of this accused found him guilty u/s 324, I.P.C. for having caused hurt to Girwar Singh and Chob Singh by a gun. None of the injuries on Girwar Singh and Chob Singh is a gun-shot wound. Dr. Ghandi who was examined in order to prove the injury reports of these two persons did not say in his statement that any of the injuries on Girwar and Chob Singh had been caused by a gun. He stated that they were caused by some blunt object which in my opinion could not have included a gun. There is also nothing on the record to show that Mahabir took any part in the beating of Ran Singh. In the circumstances it is doubtful if Mahabir committed any offence u/s 324, I.P.C. 20. The result is that the appeal of Saheb Singh, Ram Das and Aram Singh is dismissed and their convictions and sentences are maintained. There is also nothing on the record to show that Mahabir took any part in the beating of Ran Singh. In the circumstances it is doubtful if Mahabir committed any offence u/s 324, I.P.C. 20. The result is that the appeal of Saheb Singh, Ram Das and Aram Singh is dismissed and their convictions and sentences are maintained. As they are on bail they shall surrender to it and serve out their sentences. The appeal of Mahabir is allowed. He too is on bail. He need not surrender. His bail bonds are cancelled. 21. Leave to appeal to the Supreme Court is refused.