Judgment :- 1. Accused 1 & 3 in Sessions Case 9 of 1962 on the file of the Sessions Judge of Ernakulam are the appellants. The first accused has been convicted under S.302 IPC., for the murder of Varkey and also under S.326 IPC., for causing grievous hurt to Pws.1 and 2. The third accused has been convicted under S.325 IPC., for having caused grievous hurt to deceased Varkey. There were two other accused in the case who were, charged with these offences read with S.34 IPC., but they were acquitted. 2. The facts of the case briefly stated are as follows: The accused and the deceased are neighbouring cultivators. Karimkulamchal nilam belonging to the accused lies to the south of a thodu which flows west to east as indicated in the plan Ex. P11. Immediately to the north of the thodu there is the Kundamkunnam road. The paddy field of the deceased Varkey lies to the north of the road. Accused 1 to 3 are brothers and the fourth accused is the son of one of their deceased brother. The prosecution case is that the water in the thodu was being taken by deceased Varkey through a water channel connecting his paddy field with the thodu. At that time the road was only upto the connecting water channel, but when the road was extended and Varkey found it difficult to get water to his paddy field, he constructed a tunnel underneath the road to allow water to flow from the thodu to his water channel. The tunnel, it is stated, was put up on the day previous to the date of the incident. After constructing the tunnel deceased Varkey put up a bund blocking the flow of water to the east so that water would flow through the tunnel. 3. On the morning of 26-11-61, Pws.1 and 2 and deceased Varkey had gone to the church. While they were returning from the church they saw that the bund had been demolished. So Varkey again reconstructed the embankment. After completing the work he went to the house of Pw. 2 and they were all sitting together having their coffee when they saw accused 1 to 4 proceeding towards the thodu. Seeing them going Pws.1, 2 and the deceased went towards the place. So Varkey again reconstructed the embankment. After completing the work he went to the house of Pw. 2 and they were all sitting together having their coffee when they saw accused 1 to 4 proceeding towards the thodu. Seeing them going Pws.1, 2 and the deceased went towards the place. When they reached there they found the first accused standing on the road and accused 2 to 4 engaged in demolishing the dam. Pws.1 and 2 and deceased Varkey pushed accused 2 to 4. Seeing this the first accused rushed up and stabbed Pws.1 and 2 with the knife which he had with him. Pws.1 and 2 sustained injuries on their abdomen. Seeing Pws.1 and 2 being stabbed deceased Varkey tried to interfere when the first accused inflicted a stab injury on him also. After getting the injury Pw.1 stepped on the nadavarambu and he was followed by deceased Varkey. While they were going the deceased was hit by a stone thrown by the third accused. Deceased then fell down. Pw. 2's wife, Pw. 3 reached there first. She was told by Pw. 2 as to what had happened. She saw the third accused throwing the stone at the deceased. Then Pw. 4 came to the place. Pw. 2 told him also that the first accused stabbed him and Pw.1 and that the deceased Varkey had fallen down on the bund with injuries. Pw. 4 rushed up, but by the time he reached the place Varkey had succumbed to his injuries. 4. Pws.1 and 2 had by then reached the tea shop of Pw. 5 and told what had happened. Pw. 4 reached there and made arrangements for taking Pws.1 and 2 to the Thodupuzha Government Hospital. They reached the hospital at 11-30 A. M. Pw. 12 the Assistant Surgeon examined Pws.1 and 2 and their certificates are Exs. P-12 and P. 13. Information was sent to the Thodupuzha Police Station. Pw. 14 the Sub-Inspector of Police on receipt of information proceeded to the hospital and recorded Ext. P1 from Pw. 1. A case was registered. On receipt of the express report Pw. 15 the Circle Inspector of Police proceeded to the scene of occurrence and took up the investigation. Inquest was held and after the inquest the body was sent for postmortem examination. Pw. 12 the Medical Officer conducted the autopsy and Ext. P.15 is the postmortem certificate. 1. A case was registered. On receipt of the express report Pw. 15 the Circle Inspector of Police proceeded to the scene of occurrence and took up the investigation. Inquest was held and after the inquest the body was sent for postmortem examination. Pw. 12 the Medical Officer conducted the autopsy and Ext. P.15 is the postmortem certificate. Pws.1 and 2 were removed to the Secondary Health Centre, Muvattupuzha for better treatment. Pw.1 was an in-patient in the hospital for 27 days and Pw. 2 was an in-patient in the hospital for 39 days when they were discharged cured. On 27-11-61 accused 1 to 4 surrendered before Pw. 14 when the first accused produced the bloodstained knife M.O.2 and it was taken into custody under a mahazar Ex-P7. Accused 1 and 2 had also some minor injuries and their certificates are Exts. P.16 and P17. 5. When questioned at the preliminary enquiry beyond merely denying the incident they did not say anything else. When questioned in the Sessions Court the first accused stated that on that day himself and accused 2 and 3 were in the house of the third accused, when they got information that the prosecution party had put up a dam across the thodu preventing water flowing into their paddy field. On prior occasions when deceased Varkey attempted to put up a dam in the thodu they had prevented the illegal act. Two days before the occurrence Pw. 2 and his sons had constructed a tunnel and put up a bund and finding that if the bund were allowed to remain their cultivation would be affected and they had cut open the bund and restored the thodu to its original position. When they heard that the prosecution party was again putting up the bund they went to the place to prevent their going so. While they were approaching they were pelted with stones. Deceased Varkey then felled him to the ground and when he attempted to get up deceased caught hold of his throat and attempted to throttle him, and apprehending danger to his life he took out his knife and waved it which hit the deceased. He admitted that Pws.1 and 2 were also present there and that Pw.1 pushed the second accused and Pw. He admitted that Pws.1 and 2 were also present there and that Pw.1 pushed the second accused and Pw. 2 pushed the third accused by their neck and when they were doing so he waved the knife at them also with the result that they were also injured. The third accused supported the case of the first accused. 6. It is not in dispute that Varkey died as a result of the injuries sustained by him. He sustained an incised wound on his left chest which had pierced into the pericardium and the right ventricle of the heart. The doctor was of opinion that it was an injury sufficient in the ordinary course of nature to cause death and the victim died almost instantaneously. Intention to cause death is, therefore, manifest. Injury No. 2 was a contused wound on the left side of his head and on dissection it was found that a portion of the skull was fractured. The doctor was of opinion that the injury could be caused by a stone throw, hitting that part of the head. Injury No. 3 was only a scrath on the left ankle. Pws.1 and 2 also sustained incised injuries on the abdomen which had penetrated into the abdominal cavity and they were in the hospital for more than 20 days during which period they were unable to pursue their ordinary avocations in life and the doctor has given his opinion that the injuries were grievous. 7. The first accused has practically admitted that it was he who had inflicted the injuries. So the crucial question for decision is under what circumstances the accused happened to inflict the injuries. The main eye witnesses to the occurrence are Pws.1 and 2. Pw.1 is the son of Pw. 2. He has deposed that the first accused was standing, on the road when the other accused were demolishing the bund, that they went there on seeing this and pushed the accused, then the first accused came running with a knife and stabbed them and when the deceased tried to interfere he was also stabbed. This version has been corroborated by Pw. 2. They have also stated that it was the third accused who threw the stone and caused the grievous injury on the deceased. We have carefully gone through their evidence and we do not find anything in their evidence to distrust their testimony. This version has been corroborated by Pw. 2. They have also stated that it was the third accused who threw the stone and caused the grievous injury on the deceased. We have carefully gone through their evidence and we do not find anything in their evidence to distrust their testimony. The mere fact that they happen to be related is no reason to reject their testimony, especially when they were admitted to be present at the place and they had sustained injuries as spoken to by them. The complaint given by Pw.1 is also fully in conformity with the prosecution evidence. The evidence of all these witnesses would negative the case of the accused that the act was done in the right of private defence. It is also significant that the first accused when questioned at the preliminary enquiry did not specifically put forward the case that any attempt was made to throttle him and that he had to use his knife in self defence. There is then the evidence of Pw. 3, mother. She was in her house when she saw persons collected at the thodu. She saw Pw. 2 going towards the south and proceeded to the place. When she was about to reach the place of incident she found the third accused throwing a stone at the deceased and the deceased falling down on the nadavaramba. An attempt was made to argue that she would not have seen anything, but she is definite that she saw the third accused throwing a stone which hit the deceased and his falling down. We find no reason to reject her evidence. If she was perjuring nothing prevented her from saying that she witnessed the entire incident. Pws. 4 and 5 were told by Pw. 2 at the scene itself as to what had taken place. The learned judge was, therefore, justified in accepting the evidence of Pws.1 to 3 and in holding that the incident happened in the manner spoken to by the prosecution witnesses and that the case of the deceased attempting to throttle the first accused is not true. Merely because the two accused had sustained some trivial injuries would not substantiate their case of self defence. 8. The next question is what is the offence that is committed by each of the accused. Merely because the two accused had sustained some trivial injuries would not substantiate their case of self defence. 8. The next question is what is the offence that is committed by each of the accused. The learned judge took the view that the accused went in order to vindicate their rights or supposed rights by unlawful means, that they ought to have gone to the authorities and relied on the case in Queen Empress v. Prag Dat (ILR. 20 All. 459) that each side was trying to get the better of the other and that in such a case it did not matter who was the aggressor and no question of private defence would arise and held that the first accused had no right of private defence and would be guilty of murder. On the facts appearing in this case there can be no doubt that the thodu had been in existence for a long time and were used by the accused for irrigating their paddy field. It cannot be seriously contended that putting up a bund by the prosecution party would definitely have the result of preventing the flow of water to their paddy field and would result in damaging their paddy crop. A contention was raised by the prosecution that the bund was used to he put up in previous years also. This is denied by the accused. It is strange that When Pw. 11 was examined no questions were asked to him about the existence of such a bund. The learned judge has observed that there is no evidence that by putting up the dam the entire water of the thodu would be taken by the prosecution party and there is no evidence that the dam is likely to be kept as a permanent structure. It is for the prosecution to prove that the act of putting up a bund would not in any way affect the cultivation of , the accused and that the bund was not intended to be a permanent structure. 9. The deprivation of water by putting up a bund across the water channel and thereby causing diminution of water supply to the accused would definitely be an offence of mischief under S.430 IPC. 9. The deprivation of water by putting up a bund across the water channel and thereby causing diminution of water supply to the accused would definitely be an offence of mischief under S.430 IPC. Under S.97 every person has a right, subject of course to the restrictions contained in S.99, to defend his property against any act which is an offence of mischief or an attempt to commit such an offence. If the accused had a legal right to prevent the dam being constructed by the deceased, they need not abandon the enjoyment of that legal right and run away to seek protection to the authorities. If a person who possesses the right of private defence in fact does no more than exercises it he commits no offence, but if he exceeds the right or in other words he kills another when in fact it was unnecessary, the man being unarmed, it would still be an offence, but something less than murder. In this case when the prosecution party was attempting to commit mischief by putting up the dam and when an attempt was made to stop it they were pushed aside, the accused had the right to use force against every one of them. 10. The accused were exercising their right in abating the nuisance caused by the dam across the thodu and when the prosecution party who had no right to erect a dam came and objected to their doing so and attacked them they had a right to defend themselves. But the right would extend to the voluntary causing of death only if the conditions mentioned in S.103 IPC., exist. The fourth clause of S.103 applies only when the act which amounts to a mischief is such as perse to cause a reasonable apprehension. It is not every act of criminal trespass or mischief which under Cl. (4) would give the extended right. Such right is confined in the case of simple mischief only when it is committed under circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such a right of private defence is not exercised. It is not every act of criminal trespass or mischief which under Cl. (4) would give the extended right. Such right is confined in the case of simple mischief only when it is committed under circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such a right of private defence is not exercised. When there are no such circumstances the right of private defence of property would be subject to the limitations contained in S.104 IPC., and it does not extend to the voluntary causing of death, but only to the voluntary causing to the wrong doer of any harm other than death. In causing death the right of private defence was exceeded and the act falls under exception 2 to S.300. It cannot be said that there was any pre-meditation or that there was any intention of doing more harm than is necessary for the purpose of defence. We, therefore, alter the conviction from S.302 IPC., to one under S.304 Part 1, IPC., and sentence the accused to rigorous imprisonment for seven years. His conviction and sentence under S.326 IPC., for causing injuries to Pws.1 and 2 are confirmed. 11. The third accused has been convicted under S.325 IPC., for having caused grievous hurt to the deceased by-throwing a stone at him. We have found that it was the third accused who caused the injury. The doctor's evidence shows that by the stone throw the fracture of the skull had been caused. It is, therefore, a grievous injury. To sustain a conviction for causing grievous hurt it must be shown that not only grievous hurt had been caused, but the accused intended or knew himself to be likely to cause grievous hurt. There is no evidence that the accused aimed at the deceased before throwing the stone. There is no evidence as to the size of the stone nor has the stone been produced in the case. Knowledge cannot be imputed from the mere fact that he had thrown a stone at the deceased. So, even though grievous hurt has actually been caused the third accused cannot legally be convicted under S.325 IPC., and he can be convicted only under S.323 IPC. His conviction is, therefore, altered to one under S.323 IPC. We cannot accept the plea of the third accused that a sentence of fine would meet the ends of justice. So, even though grievous hurt has actually been caused the third accused cannot legally be convicted under S.325 IPC., and he can be convicted only under S.323 IPC. His conviction is, therefore, altered to one under S.323 IPC. We cannot accept the plea of the third accused that a sentence of fine would meet the ends of justice. We sentence the third accused to rigorous imprisonment for three months. In the result, the first accused is convicted under S.304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for seven years and convicted under S.326 IPC., and sentenced to rigorous imprisonment for three years, the sentences to run concurrently, and the third accused is convicted under S.323 IPC., and sentenced to rigorous imprisonment for three months. With these modifications the appeal is dismissed.