JUDGMENT : G.K. Misra, J. - The Appellant has been convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. 2. The prosecution case may be stated in short. One Raya (a lady) had a son Matal (the deceased) and 2 delighters Nandi and Janai. Lakhan (p.w. 7) is the son of the deceased. Janai has 2 sons Lachhu and Bhaju. Jharia (the accused) is the brother's son of Nangu, hushalld of Janai. The disputed land originally belonged to Raya and Matal. Matal went to work as a labourer at Gorumahisani. Raya managed to cultivate the disputed land with the help of p.w. 7. Subsequently, p.w. 7 also went to Gorumahisani for work. The prosecution case is; that the deceased and p.w. 7 were in possession of the disputed land and sowed paddy in the year of occurrence. On 23-11-1965 at about 9 A.M. the deceased was sitting on the ridge of the field and was getting the crop cut through p.ws. 3, 4, 6 and 7. The accused came near the deceased and told him that the disputed land was not his father's land and he should not cut the crop thereform. Suddenly he gave a push to the deceased who fell down on the paddy field. Thereafter he brought out a knife from his pocket and indiscriminately assaulted the deceased, as a result of which the latter died instantaneously. The defence case is that after the deceased and p.w. 7 went to Gorumahisani for doing labour work, Raya found difficulty in doing cultivation work. She accordingly gifted the disputed land to her daughter Janai who, in her turn, transferred the same to her two sons. The accused, a cousin of Lachhu and Bhaju, was cultivating the disputed land. Thus the accused with his cousins had grown the crop. When the accused protested to the reaping of the crop by the deceased, the latter brought out a knife to stand the former. There was a struggle and in the process the deceased was injured and ultimately died. The accused therefore claims the right of private defence of person and property. The learned Sessions Judge held that, the death of the deceased was homicidal, and that the accused killed the deceased and was not protected by any right of private defence of person or property. 3. Mr. Mohanty does not assail the finding that the death was homicidal. The accused therefore claims the right of private defence of person and property. The learned Sessions Judge held that, the death of the deceased was homicidal, and that the accused killed the deceased and was not protected by any right of private defence of person or property. 3. Mr. Mohanty does not assail the finding that the death was homicidal. The Doctor (p.w. 5) found 3 stab injuries an the 3 injuries were grievous in nature and were likely to be caused by the knife (M.O. II). The injuries were ante mortem and each of the 3 external injuries with the internal injuries resulting therefrom was sufficient to cause death in the ordinary course of nature. The finding is unassailable on the aforesaid evidence. 4. The only question for consideration is whether the accused had any right of private defence of person or property. So far as the possession of the disputed land is concerned, the learned Sessions Judge has found, after thorough discussion, that the accused was in possession of the disputed land in the year of occurrence, and that he had cultivated and sown paddy on the disputed land along with Lachhu and Bhaju. On the aforesaid finding, which is not challenged, conclusion is is resistible that that the accused party was entitled to the crop. Clearly the deceased committed an offence of theft by cutting away the paddy with the help of p.ws. 3, 4, 6 and 7. 5. The evidence of p.ws. 3, 4, 6 and 7, who are eye-witness to the occurrence, is consistent that the accused came to the spot while the deceased was sitting on the ridge, gave him a push as a result of which he fell down and immediately thereafter the accused indiscriminately assaulted the deceased resulting in instantaneous death. The deceased did nothing to create any apprehension in the mind of the accused that either grievous hurt or death would be caused to the accused. On the aforesaid evidence the accused had absolutely no right of private defence of person, much less there was any scope for argument that it would extend to the causing of death u/s 100, Indian Penal Code. The real question for consideration is whether the accused was entitled to exercise right of private defence so as to cause death as prescribed in Section 103, Indian Penal Code. The real question for consideration is whether the accused was entitled to exercise right of private defence so as to cause death as prescribed in Section 103, Indian Penal Code. That Section, so far as relevant, lays down: The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: ... ... ... ... Fourthly-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. On the finding we have recorded, clearly the deceased committed an offence of theft. But on the evidence of the eyewitnesses p.ws. 3, 4, 6, and 7 it is clear that there were absolutely no circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence to the accused, if such right of private defence is not exercised. In fact, evidence is very clear that the deceased was disabled and defenseless, and even from the very start did nothing to create any apprehension in the mind of the accused. Section 103, 4th clause, has no application. The right of private defence of property does not therefore extend to the causing of death. 6. It is next contended by Mr. Mohanty that Exception 2 to Section 300, Indian Penal Code applies to this case and at best the Appellant is liable to be convicted u/s 304, Indian Penal Code. Exception 2 to Section 300, Indian Penal Code, runs thus: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm then is necessary for the purpose of such defence. In Section 52, Indian Penal Code, 'Good faith' has been defined. Nothing is said to be done or believed in good faith which is done or believed without due care and attention. In Section 52, Indian Penal Code, 'Good faith' has been defined. Nothing is said to be done or believed in good faith which is done or believed without due care and attention. The murderous attack on the deceased was done without due care and attention. The accused cannot be said to have acted in good faith. The deceased did not deserve the indiscriminate murderous attack by his act or conduct. Furthermore in order to take the benefit of the exception it is necessary to show that the act of the accused was without any intention of doing more harm then is necessary for the purpose of such defence. When the deceased was disabled and defenseless, the number of attacks on him definitely was with the intention of doing more harm then is necessary for ousting him from taking forcible possession of the disputed land. The Exception has accordingly no application. 7. The conviction is well founded. The appeal fails and is dismissed. Ray, J. 8. I agree. Final Result : Dismissed