JUDGMENT : Shiveshwar Prasad Sinha J. The appellant, though originally charged under Section 307 of the Indian Penal Code, as been convicted under Section 326 of that Code and has been sentenced to undergo rigorous imprisonment for five years. 2. The case, as disclosed in the first information report, is that, on the 8th July, 1966, the informant was ploughing his field in Bhadai Tand of village Gangpur, police station Gomia, district Hazaribagh. At about 9 a.m. the appellant, along with his father, Bandhan Sao, his nephew, Indarwa Teli, and his aunt, Mossammat Pandri, came there, and, on seeing the informant ploughing the land Mossammat Pandri challenged him and called upon the persons accompanying her to thrash the informant as best as they could. The further case is that, at the words of the said Mossammat Pandri, the father and the nephew of the appellant started assaulting the informant with lathis, and the appellant himself assaulted him with a pharsa, which, though aimed at his neck, fell on his left temporal region. The informant, however, admitted that this assault was on account of enmity relating to possession of land. 3. Although, as per the first information report the persons who took part in assaulting the informant, besides the appellant, were his father and the nephew also, yet no case was found against them and they were not put up for trial either. 4. The defence case is that the appellant's person was threatened with assault by the informant, and, therefore, he, in exercise of the right of private defence of person, had used the pharsa. The appellant further pleaded that he has the right to defend his property also which the informant was illegally ploughing Thus, in effect, the defence of the appellant was a defence of the right of private defence of person and property. 5. The trial court did not accept the defence case and, finding that the prosecution had established a charge under Section 326 of the Indian Penal Code against the appellant, convicted and sentenced him as aforesaid. 6. Mr. Arun Bihari Mathur, learned counsel appearing for the appellant, submitted that the trial court had erred in disbelieving the appellant's defence. According to Mr. 6. Mr. Arun Bihari Mathur, learned counsel appearing for the appellant, submitted that the trial court had erred in disbelieving the appellant's defence. According to Mr. Mathur, no offence had been committed by the appellant when he hit the informant with the pharsa, because he did so, in fact, in the exercise of his right of private defence not only of his property, but of his person also. Referring to the evidence of P.Ws. 4 and 5, specially to the deposition of P.W. 5, he submitted that the manner of the occurrence was that the informant, with another ploughman, started ploughing a plot of land over which, according to P.W. 5, the appellant was in cultivating possession from a very long time. On seeing the informant ploughing the land, the appellant asked the informant to stop ploughing, but the informant did not listen to it. There was exchange of hot words between them and then the appellant left that place and went back home from where he returned with a pharsa. Having returned with a pharsa, the appellant did not immediately attack the informant, but once again asked him to stop ploughing. The evidence, then, is that the informant started wielding his "Paina", and the appellant then assaulted him with the pharsa. Mr. Mathur further submitted, with reference to the evidence of P. W. 5. that the informant was actually wielding a "Tabla', which is a sharp cutting instrument, and it was only when the informant started wielding the "Tabla" that the appellant, finding no way out for the safety of his person gave a pharsa blow to the informant. It was, therefore, submitted that, since the informant was illegally ploughing the appellant's land, the appellant had a right to stop him from doing so, and, since the informant started wielding a weapon, may be "Tabla" or may be "Paina." against the appellant, he had the right to defend his body. Since it was in the course of defending the body that the appellant caused injury to the informant, it was submitted that the appellant had committed no offence and that he was fully protected in turns of Section 97 of the Indian Penal Code. 7. Since it was in the course of defending the body that the appellant caused injury to the informant, it was submitted that the appellant had committed no offence and that he was fully protected in turns of Section 97 of the Indian Penal Code. 7. Mr Lala Kailash Bihari Prasad appearing for the State, submitted that the appellant had no light of private defence in respect of his property, because by the ploughing of the land, even if that land did not belong to the informant, the land was not being impaired in any manner and the appellant had enough time to take recourse to the assistance of public authorities to defend his light over that land. It was submitted that the appellant had no right to take the law into his own hands for defending the property. He further submitted that the appellant had definitely exceeded his right of private defence of his body by hitting the informant with a pharsa when, on the evidence of the prosecution witnesses, it was clear that the weapon which the informant was wielding against the appellant was not such as to endanger his life or cause grievous hurt-it was only a "Paina", a stick used for driving bullocks. It was, therefore, submitted that, on the facts and in the circumstances of this case, no right of private defence of property or person being available to the appellant, the appeal ought to be dismissed. 8. In my opinion, the contention raised on behalf of the appellant is valid to the extent that the appellant, while causing the injury to the informant, had done so in the exercise of his right of private defence of his body. I would not go to the length of accepting the argument that the right to hit the informant was available to the appellant in exercise of his right to defend his property also. As submitted by Mr. Lala Kailash Bihari Prasad, the property was a piece of land and the ploughing of it by the informant did not impair its value so as to necessitate immediate action on the part of the appellant to remove the informant from the said place of land by causing injury to him. As submitted by Mr. Lala Kailash Bihari Prasad, the property was a piece of land and the ploughing of it by the informant did not impair its value so as to necessitate immediate action on the part of the appellant to remove the informant from the said place of land by causing injury to him. I, however, accept chat part of the argument on behalf of the appellant that the hitting of the informant by pharsa was in exercise of the right of private defence of body by the appellant. 9. Referring to the evidence of P.W. 1, who is the informant and the injured, I find that the occurrence was, in fact, a result of enmity over possession of properties. It appears that the appellant and the informant are cousins, the grand-father of the appellant and the grandfather of the informant being full brothers. According to the informant, there was a panchayati with regard to partition of the joint properties and all the plots of land were divided in equal shares between the informant and the appellant. According to the informant, the plot of land over which the occurrence took place fell in his share. According to the appellant, however there was no panchayati at all and that the plot of land over which the ploughing was being done was in his possession. As to whether at all partition was effected by the Panches has not been proved by the prosecution. It has been admitted by P.W. 1 that all the alleged panches were alive, and yet none had been examined to prove the case of panchayati for partition of the joint lands. Not even the batwara papers have been filed to prove partition of the joint lands. P. W. 5 has admitted in his cross-examination that the plot of land Over which the occurrence took place had been in cultivating possession of the appellant and his father from a very long time. I, therefore, think that the informant was, in fact, ploughing a plot of land over which he had no title or possession. As a corollary to this finding, I must further hold that the appellant had the right to ask the informant to stop ploughing that plot of land. I, therefore, think that the informant was, in fact, ploughing a plot of land over which he had no title or possession. As a corollary to this finding, I must further hold that the appellant had the right to ask the informant to stop ploughing that plot of land. The appellant had the right to defend his property, no doubt, but, since it was a plot of land, which could not be taken away from the earth, if the plot was being ploughed upon, the appellant could easily take recourse to the assistance of the public authorities. 10. The case, as it appears from the evidence of the prosecution witnesses, however, is that the appellant, after having asked the informant to stop ploughing the land, went home and fetched a pharsa. Returning to the place of occurred, he did not use the pharsa on the informant, but once again asked the informant to stop ploughing. One of the questions which was pointedly asked to P.W. 4 was regarding the action which the informant took on being asked to stop the ploughing. P.W.4 although denied having stated before the police that it was the informant who started wielding a "Tabla" (a sharp cutting instrument) and threatened the appellant and thereupon the appellant assaulted the informant with pharsa, the evidence of the investigating officer (P.W. 6) shows that P.W. 4 did state before him that it was the informant who started brandishing a "Tabla" first and then the appellant assaulted the informant with the pharsa. P.W.5, in his examination-in-chief, has clearly stated that the informant was wielding a "Tabla" and it was thereafter that the appellant gave the pharsa blow to the informant. In his cross examination, however, P.W. 5 stated that the informant had started wielding his "Paina" (a stick), and not "Tabla", but he has been consistent in saying that it was only after the informant started wielding a weapon against the appellant that the appellant assaulted the informant with the pharsa. 11. Now, learned counsel for the State has tried to stress upon the fact that, on the evidence of the prosecution witnesses, it could not be said that the informant was brandishing a "Tabla". According to him, all that could be said was that the informant was brandishing a "Paina". 11. Now, learned counsel for the State has tried to stress upon the fact that, on the evidence of the prosecution witnesses, it could not be said that the informant was brandishing a "Tabla". According to him, all that could be said was that the informant was brandishing a "Paina". Even if the informant had used a "Paina" on the appellant, it could not have caused a grievous injury and, as such, the appellant, by hitting the informant with the pharsa to ward off an injury to his body, exceeded his right of private defence. 12. I am not sure that, upon the evidence of the prosecution witnesses, it could be held that the informant was wielding only a "Paina', and not a Tabla." At least on the evidence of P.W's 4 and 5, it is more probable that the informant was wielding a "Tabla" against the appellant. That being so, the appellant would certainly be justified, in ORDER :to protect his body, to inflict a pharsa injury on the informant. But, even assuming that the informant was wielding only a "Paina" against the appellant, I do not think there is any law that, in ORDER :to ward off an attack, the warding off must be done by an instrument of the same nature by which the attack was made. A "Paina" could also cause a grievous injury, if it was hit hard on the head, or if pierced in the eyes. So, even assuming that the informant was wielding only a "Paina" against the appellant, I think, the circumstances was such that the appellant could not be held to have exceeded his right of private defence, if, in ORDER :to ward off that attack, he disabled the attacker, namely, the informant, by hitting him with a pharsa. Mr. Lala Kailash Bihari Prasad referred me to the injury on the appellant, which has been described by P.W. 3, to show that the nature of the injury was so simple that the informant could not have designed to inflict a grievous injury on the appellant. In my opinion, it is wholly irrelevant. The injury may be simple, but what has to be seen and examined, "or determining as to whether the right of private defence of body had been exceeded, was whether, in the particular circumstances, a person would naturally act in that way. 13. In my opinion, it is wholly irrelevant. The injury may be simple, but what has to be seen and examined, "or determining as to whether the right of private defence of body had been exceeded, was whether, in the particular circumstances, a person would naturally act in that way. 13. Here, it has been found that the informant was brandishing a weapon against the appellant and that, in fact the appellant had been hit by the informant. The appellant, in ORDER :to protect his body from injury, had of necessity to use the only weapon he had in his hand, and that weapon, according to the prosecution witness was a pharsa. In my opinion, on the facts and in the circumstances of the case, as appear from the evidence of the prosecution witnesses, the appellant did not exceed his right of private defence of body by hitting the informant with the pharsa. I must, therefore, hold that, although the appellant did hit the informant with the pharsa, yet, that being in exercise of his right of private defence of body, he cannot be deemed to have committed any offence of a punishable nature. 14. I, accordingly, allow the appeal, set aside the ORDER :of conviction and sentence passed against the appellant and acquit him. The appellant will now stand discharged from his bail bond. Appeal allowed.