LODHA, J.—The above two appeals arise out of the judgment of the learned Sessions Judge, Bharatpur dated 2-5-1970 by which he convicted Dhanna under sec. 302 of the Indian Penal Code and sentenced him to imprisonment for life. The co-accused Tota, Nasira, Juma, Subhan and Patri were, however acquitted of all the charges. Aggrieved by his conviction, Dhanni has filed appeal to this Court which has been registered as D. B. Criminal Appeal No. 337/70. So also dissatisfied with the order of acquittal passed in favour of the other five accused, the State has filed appeal and the same has been registered as D. B. Criminal Appeal No. 768/71. At this stage, we may mention that during the pendency of these appeals, Tota has died. Consequently, the appeal filed by the State against Tota has abated and we are, therefore, only concerned with the five accused, namely Dhanni, Nasira, Juma, Subhan and Patri. 2. There is field Khasra No. 476 called Bandhwala Khet situated in village Chulhera. This field originally belonged to Shivram. The prosecution case is that in Samwat 2025 Shivram sold away this field to Bholising P. W. 3 and the deceased Gabdu used to cultivate it as a tenant of Bholisingh. It appears that there was a dispute between Bholisingh on the one hand and the accused Tota on the other regarding the ownership and possession over this field. On 7th December, 1968 at about 9 in the morning, it is alleged by the prosecution that P. W. 2 Govind Singh and P. W. 5 Nathisingh, who are closely related to P. W. 5 Bholisingh inasmuch as Govind Singh is son of Bholisingh and Nathisingh is uncle of Bholisingh, went to the field in question with a bullock-cart for loading and bringing their share of fodder from Gabdu who actually cultivated the field. Gabdu used to reside in a neighbouring village Digcholi and Govindsingh went to bring him at the field. Gabdu also arrived at the field with a bullock-cart and Govindsingh and Nathisingh on the one hand and Gabdu on the other divided the heap of fodder lying in the field and started loading the same in their respective carts. At this stage, all the six accused came to the field. It is stated that Nasira, Subhana and Dhanni had pharsis whereas Tota, Patri and Juma had lathis. At this stage, all the six accused came to the field. It is stated that Nasira, Subhana and Dhanni had pharsis whereas Tota, Patri and Juma had lathis. It may also be mentioned here that Nasira, Juma, Subhan and Dhanni are the sons of Tota, whereas Patri was sympathiser of Tota. The prosecution story proceeds that Subhan caught hold of Gabdu by hand and stopped him from loading the cart with fodder, whereupon Govindsingh protested and got the hand of Gabdu released from Subhan. On this, it is alleged, Dhanni gave two blows with the pharsi he had in his hand on the head and leg of Gabdu and the rest of the accused also beat him after he had fallen to the ground. Hearing the noise, P. W. 4 Prahlad who was in his field nearby, came to the rescue of the complainants party, but Dhanni inflicted two blows with the pharsi on Prahlads head also. Seeing this, Govind Singh tried to run away, but Tota dealt a blow with a lathi on the left knee of Govind Singh and Tota, Dhanni, Subhan and Nasira also chased Govind Singh. It is then said that Juma and Patri gave blows with lathis to Nathi. At this time, P. W. 1 Balmukand was coming on a mare from the direction of the village and Govind Singh asked him to go back as a quarrel had taken place and saying so, Govind Singh ran towards the village, but Tota, Dhanni, Subhan and Nasira surrounded Balmukand and beat him with lathis and pharsis. Thereafter Govind Singh lodged a written first information report of the occurrence at Police Station Deeg situated at a distance of seven miles from village Chulhera at 4-30 p. m. That report has been placed on record and marked Ex. P-l. All the six accused were tried in due course by the learned Sessions Judge. 3. The defence of the accused, in short is that Shivram had sold the field in question 8 to 10 years before the occurrence to Tota who was in actual possession of the field in question on the date of the incident and that the complainants party had wrongfully come on the field to steal away the fodder lying there. All the accused have, however, denied having beaten any of the complainants. The accused also examined three witnesses in defence. 4. All the accused have, however, denied having beaten any of the complainants. The accused also examined three witnesses in defence. 4. Before we come to the contentions raised by learned counsel for the accused and the learned counsel for the State, we may point out that the fact that Gabdu died on account of the following injuries found on his person at the time of post-mortem examination has not been challenged before us. So also the fact that P.W. 1 Balmukand, P.W. 2 Govind Singh, P.W. 4 Prahlad and P.W. 5 Nathisingh were injured and the following injuries were found on their bodies at the time of their medical examination on 7-12-68 has not been called into question and, in our opinion, rightly so. We may, therefore, here reproduce the injuries found on the deceased as well as the injured— Deceased Gabdu—external injuries— 1. One extensive gaping incised wound 6" x 1" x 1" encircling the medial side of the left leg at its middle which had cut and fractured the left tibia and fibula into two and also severed the structure of the left leg. 2. One gaping incised wound 8" x 1/2" x brain deep over the left temporal parietal and left side of occipital bone, which had cut and fractured all the above bones. Internal injuries— 1. Left temporal bone was found cut and fractured. 2. Left parietal bone was found cut and fractured at its middle severing the middle meningeal artery on the left side forming a blood clot, which was seven inches in diameter. The clot was found lying over and adherent to the dura mater. Dura mater was also torn of the bone. Brain was found lacerated on the under surface of the temporal lobes. The internal injuries were the result of injury No.2. It has been further stated that injuries No. 1 and 2 were individually and collectively sufficient in the ordinary course of nature to cause death. P. W. 1 Balmukand (Injury Report Ex. P. 25) — 1. Lacerated wound oblique 1-1/4" x 1/2" x bone deep on the anterior aspect of right middle finger on first and second phalanx. 2. Lacerated wound oblique on the right side of the parietal bone 4-1/2" above the hairy margin of the back of neck. 3. Contusion mark oblique 1/2" x 1/2" on the outer aspect of right leg near the ankle joint. 4. 2. Lacerated wound oblique on the right side of the parietal bone 4-1/2" above the hairy margin of the back of neck. 3. Contusion mark oblique 1/2" x 1/2" on the outer aspect of right leg near the ankle joint. 4. Contusion mark oblique 7" x 2" on the right side of the back 2-1/2" below the scapula. 5. Contusion mark oblique 5" x 3/4" on the left side of the back from scapular region downwards. 6. Contusion mark oblique 1 J" x 1" on the right scapular region in the middle. 7. Contusion mark oblique 3/4" x 1/2" just below injury No. 6. 8. Contusion mark 2" x 1/2" oblique on the posterior aspect of right forearm 2-1/2" below the elbow joint. 9. Lacerated wound oblique 3/4" x 1/2" x skin deep on the outer aspect of left forearm just below the elbow. On X-ray examination the middle phalangeal joint of right middle finger was found to be dislocated. P.W. 2 Govind Singh (Injury Report Ex. P. 27)— 1. Contusion mark oblique 1" x 1" on the outer aspect of left leg in the middle. P. W. 4 Prahlad (Injury Report Ex. P. 24)— 1. Incised wound semi-circular in nature. The right ear is chopped off. Only the lobe portion is intact with a muscle tag wound bleeding 3-1/2" x 1-1/2" x bone deep. Grievous. 2. Lacerated wound 2-1/4" x 1/4" x 1/4" on right parietal occipital region 4" above the right ear. 3. Contused wound oblique with pealing of skin 1" x 1/4" on the posterior aspect of right forearm externally 1" below the wrist. 4. Contusion mark oblique 1/2" x 1/2" on the anterior aspect of right foot in the middle. 5. Contusion mark 3" x 1/4" on the posterior aspect of left forearm 1| below the elbow. P.W. Nathi Singh (Injury Report Ex. P. 26)— 1. Lacerated wound oblique swelling 1/2" x 1/4" on the posterior aspect of left forearm 2" below the wrist. 2. Contusion mark oblique 2-1/4" x 1-1/4" on the posterior aspect of right arm 5" below the elbow. On X-ray examination, the lower end of the left radius was found fractured. 5. The first point raised by learned counsel for the convict Dhanni is that the prosecution has failed to establish the possession of the complainants on the field in dispute. Contusion mark oblique 2-1/4" x 1-1/4" on the posterior aspect of right arm 5" below the elbow. On X-ray examination, the lower end of the left radius was found fractured. 5. The first point raised by learned counsel for the convict Dhanni is that the prosecution has failed to establish the possession of the complainants on the field in dispute. It has been argued that the dispute between Shivram and Tota bad been compromised and the right of Tota to the field in question had been recognised by a competent court. At this stage we may also mention that in the course of arguments, learned counsel wanted to put on record, though no formal application was made for the purpose, certain documents purporting to be evidence of compromise and the resultant order passed thereon between Shivram represented by his Mukhtaram Balmukand and Tota. It may be pointed out that the accused were prosecuted for the occurrence in question in the month of February, 1969 and the case was decided by the trial court on 2-5-1970. Well-nigh more than two years have passed since the matter has been pending in appeal, but at no stage so far any application was made on behalf of the accused for admission of additional evidence. It is noteworthy that the case remained part heard on 12th January, 1973 but even on that day no such request was made. We do not see any sufficient ground for taking on record any documents at this stage. We are further of opinion that by mere production of these documents, we cannot derive any assistance for arriving at a correct decision on the main point in dispute between the parties. The learned counsel is right in his criticism that the prosecution has not placed on record the sale-deed executed in favour of Bholisingh, nor other convincing documentary evidence that Bholisingh had got possession of the land in question from Shivram. But there is oral evidence of P. W. 3 Bholisingh that he had purchased the Khasra in question and one more Khasra in Samwat 2025 from Shivram and since the date of purchase he had been continuously in possession of the same. He has also stated that he had taken Gabdu as a partner in cultivation and that Tota accused was never in possession of the said fields. No cross-examination worth the name has been directed to this witness. He has also stated that he had taken Gabdu as a partner in cultivation and that Tota accused was never in possession of the said fields. No cross-examination worth the name has been directed to this witness. P.W. 1 Balmukand has stated that Shivram and Tota were litigating over the field in dispute and that he was conducting that case on behalf of Shivram as his Mukhtaram. But at the same time, he has deposed that Shivram executed a sale-deed of the land in question in favour of Bholisingh and we are constrained to point out that no cross-examination has been directed to this witness also on the point of possession. P. W. 18 Ramswaroop Patwari of the village has also appeared in evidence on behalf of the prosecution. He has stated that Shivram has been entered as the tenant in possession of the land in question from Samwat 2022 to 2024 and in Samwat 2025 Bholisingh came into possession of the land on the basis of the sale-deed executed in his favour. He has also produced a Khasra Girdawari of the field in question for Samwat 2025 in which mutation of the field in question has been made in favour of Bholisingh. The witness has no doubt stated in cross-examination that he himself never saw either of the parties actually cultivating this land. This is the main evidence regarding possession produced on behalf of the prosecution. None of the accused has asserted his possession on the field in question on the date of occurrence, nor have they stated that crop had been cultivated by them and the fodder belonged to them. All that the accused have stated in their statements under sec. 342 Cr.P.C. is that Shivram had sold the field in question to them 9 to 10 years ago and that Balmukand wanted to usurp the field from them. The defence witnesses produced by the accused have no doubt stated that Tota was in cultivatory possession of the land in question for 10 to 12 years and we cannot fail to point out that the counsel incharge of the prosecution failed to discharge his duty inasmuch as he allowed the defence witnesses to go uncross-examined. The defence witnesses produced by the accused have no doubt stated that Tota was in cultivatory possession of the land in question for 10 to 12 years and we cannot fail to point out that the counsel incharge of the prosecution failed to discharge his duty inasmuch as he allowed the defence witnesses to go uncross-examined. In the state of evidence on record, therefore, it is difficult to give a definite and positive finding that the complaints or for that matter the accused had actual possession of the field and any one of them was trespasser. But that by itself will, in our opinion, be no ground for exonerating the accused as, in our opinion, there was no justification for the accused to have acted in the manner in which they did, in case it is found that the accused or anyone of them were the real assailants. 6. So far as Dhanni is concerned, there is consistent evidence against him and this fact finds clear mention in the first information report also, that he came to the spot armed with a pharsi and after Subhan had caught the hand of Gabdu and Govind Singh had got the hand of Gabdu released, Dhanni gave two blows with the pharsi on the head and leg of the deceased Gabdu which resulted in his instantaneous death at the spot. To this effect are the statements of P.W. 2 Govind Singh, P.W. 3 Bholisingh, P.W. 4 Prahlad & P.W. 5 Nathi. The evidence given by these witnesses and the injuries described by them are fully corroborated by the medical evidence and we do not see any reason for taking a different view from the one taken by the learned Session Judge that Dhanni was responsible for. the injuries found on the person of Gabdu. 7. Learned counsel for Dhanni argued that Dhanni at the worst exceeded the right of private defence of property and in this connection, he relied upon S. 104 I.P.C. and submitted that the offence which was being committed by Gabdu was one of theft and criminal trespass and that gave right to Dhanni to voluntarily causing of any harm other than death. In the first place, it may be pointed out that the defence has not succeeded in showing that Gabdu had committed any theft or criminal trespass and, in any case, Dhanni along with other associates had come armed with a Pharsi and that in the facts and circumstances of the case, it cannot be said that Dhanni in exercising the right of private defence of property exceeded the power given to him by law and caused the death of Gabdu without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence. Gabdu was only a tenant of Bholisingh and it was at the instance of Bholisingh that he had come to the field and had started leading the fodder in the bullock-cart. It is also clear that Govind Singh son of Bholisingh came to the rescue of Gabdu as soon as the accused Subhan caught hold of his hands and raised a protest. There is nothing on record to show that thereafter Gabdu did anything so as to take away the fodder by force or to give an apprehension in the mind of Dhanni that he would cause any harm to him or to his property. In any view of the matter, it is clear from the nature of the injuries found on the person of Dhanni that it cannot be said that the assailants of Gabdu had no intention of causing more harm than was necessary. In this connection, reference may be made to Exception 2 to S. 300 I.P.C. which runs as under— "Exception 2 — 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 than is necessary for the purpose of such defence." Assuming for the sake of argument that Dhanni had some sort of right of defence of property, Exception 2 cannot be attracted in the present case. In Gurdatta Mal vs. The State of U. P.(l) it was found by their lordships that the deceased had no arms, whereas the appellants were fully armed with deadly weapons and that the deceased were cutting the crop under the protection of the police with their peaceful intention. The accused shot the deceased at close range without warning. Their lordships were pleased to hold that the accused who claimed the crop in the first instance did not approach the authorities for redress although they had time to do so, but attacked the deceased with guns and other dangerous weapons and, in the circumstances of the case, the accused could not rely upon their right of private defence. 8. In Jalal vs. King Emperor (2), it was observed that to claim the benefit of Exception 2 to sec. 300 the accused must show that they had no intention of doing more harm than is necessary. 9. Now, in the present case, a question arises : was it necessary for the accused Dhanni in the circumstances in which the accused and the complainants were placed to inflict severe blows at the vital part of the body of Gabdu immediately on coming to the field? The answer is clearly in "No". The accused Dhanni clearly acted in a cruel and unusual manner and his intention to cause more harm than was necessary has, to be inferred in the facts and circumstances of the case. There is no denying the fact that the case of the accused clearly fails under clause 2ndly to sec. 300 I. P. G. as the act was done clearly with the intention of causing such bodily injury as the offender knew to be likely to cause the death of Gabdu. It is even conceded by learned counsel for the convict that the offence can be taken out of the purview of S. 302 I.P.C. only if it is held that the case falls under Exception 2 to sec. 300 and that Dhanni had exceeded the right of private defence. Since we have come to the conclusion that the case of Dhanni does not fall under Exception 2 to sec. 300 I. P. G., he has rightly been held guilty under sec. 302 I.P.C. The conviction and sentence awarded to him by the Sessions Judge calls for no interference. 10. Since we have come to the conclusion that the case of Dhanni does not fall under Exception 2 to sec. 300 I. P. G., he has rightly been held guilty under sec. 302 I.P.C. The conviction and sentence awarded to him by the Sessions Judge calls for no interference. 10. Now, coming to the appeal filed by the State, there is force in the contention of learned counsel for the State that the lower court has exonerated all the other accused on the ground that there is discrepancy in the statement of Prahlad Ex. D. 1 which was recorded as a dying declaration. It is submitted that the evidence of witnesses other than Prahlad cannot be contradicted by the statement of Prahlad Ex. D. 1. We therefore cannot reject the case against the other accused on the ground relied upon by the learned Sessions Judge. No other argument has been given by the Sessions Judge for rejecting the prosecution case against all the rest of the accused. We may therefore deal with the case against the rest of the four accused Nasira, Subhan, Juma and Patri. P.W. 1 Balmukand states that Nasira and Subhan had inflicted injuries to him by Pharsis, but the medical evidence shows that there were no injuries by sharp weapon found on his person. Learned counsel for the State submits that these injuries may have been inflicted by the wrong side of the pharsi. We are not prepared to accept this explanation and are, therefore, not in a position to convict any of the accused for the injuries caused to Balmukand. The injuries to Govind Singh have been ascribed to Tota who has died during the pendency of these appeals and, therefore, no body can be punished for the injuries caused to Govind Singh. P. W. 5 Nathi has ascribed the injuries to Juma and Patri by lathi. Patri is said to have given the blow on the shoulder, but the medical evidence reveals no injury on the shoulder. Consequently, Patri also cannot be punished. Juma is alleged to have given a blow with a lathi to Nathi on his left hand and the evidence given by Nathi against Juma is corroborated by medical evidence inasmuch as an injury was found on the left hand of Nathi and the radius was found fractured on X-ray examination. Consequently, Patri also cannot be punished. Juma is alleged to have given a blow with a lathi to Nathi on his left hand and the evidence given by Nathi against Juma is corroborated by medical evidence inasmuch as an injury was found on the left hand of Nathi and the radius was found fractured on X-ray examination. Juma is therefore liable for causing a grievous hurt to Nathi by a blunt weapon and he is therefore liable to be convicted under sec. 325 I. P. C. Prahlad P. W. 4 states that Dhanni caused him injury by a pharsi on the ear. P. W. 22 Dr. D.P. Mishra has stated that a grievous injury was found caused by a sharp weapon on the right ear of Prahlad which was hanging down with a muscle tag. Dhanni is therefore also liable to be convicted u/s. 326 I.P.C. for causing grievous hurt to Prahlad by a sharp weapon. Thus, in the appeal filed by the State, the acquittals of Juma & Dhanni u/ss. 325 and 826 I.P.C. deserve to be set aside. 11. The net result of the foregoing discussion is that we dismiss the appeal No. 337/70 by Dhanni and uphold his conviction under sec. 302 I.P.C. and sentence of Life imprisonment passed thereunder. 12. We partially allow the appeal filed by the State No. 768/71 and set aside the acquittal of Jama under sec. 325 I. P. G. and that of Dhanni under sec. 323 I. P. G. We convict Jama under sec. 325 I. P. C. and sentence him to three years rigorous imprisonment. We also convict Dhanni under sec. 326 I. P. C. and sentence him to five years rigorous imprisonment. The substantive sentence awarded to Dhanni will run concurrently. 13. Juma is not present in the Court today. The District Magistrate. Bharatpur, is directed to get him arrested and to send him to Jail to undergo the sentences awarded to him. 14. Mr. R. S. Purohit prays for grant of leave to appeal to the Supreme Court on behalf of Dhanni and Juma. However, we do not consider it a fit case for grant of leave. The prayer in disallowed.