JUDGMENT 1. - All these three matters arise out the judgement dated 28th of May, 1971 whereby, the learned Sessions Judge, Jhunjhunu convicted Jhunha under section 304 part II, Indian Penal Code and sentenced him to one year rigorous imprisonment and a fine of Rs. 100/- and in default thereof to further undergo two months rigorous imprisonment. He was also convicted u/s 447 & 323 read with Section 34, Indian Penal Code & under each count awarded a sentence of Rs. 50/- as fine.In default of the payment of fine he was ordered to undergo one month imprisonment for each default Harilal, Mst. Hari Bai and Mst. Ram Pyari, who were also tried along with Jhuntha, were convicted for offences under section 447 and 323 read with section 34, Indian Penal Code and each one of them was sentenced to pay a fine of Rs. 50/- under each count. It was ordered that if the fine is not paid by the accused persons then they will undergo one month rigorous imprisonment for each default. Hathi, who was also a co-accused at the trial was, however, acquitted of the charges under sections 447, 148, 302 read with section 149 and 323 read with section 149 Indian Penal Code Jhuntha, Harilal. Mst. Harbai and Mst. Ram Pyari were also acquitted of the offences under sections 148 and 302 read with section 149 Indian Penal Code. The State has challenged the acquittal of the accused persons including Hathi for offences under sections 302 read with section 149 and 148 Indian Penal code by filing an Appeal No. 837 of 1971. In this appeal a prayer has been also made that in case the conviction of the accused persons is upheld under the offences for which they have been convicted by the trial court, then in that event the sentences awarded to the accused persons may be enhanced as the trial court has passed a very lenient sentences. Hemraj, who had lodged the first information report about this incident,has also filed a Revision Application (D.B. Criminal Revision No. 571 of 1971) praying for the enhancement of the sentence awarded to the accused persons Jhuntha and others, who have been convicted by the trial court, challenged their conviction by filing an appeal (S.B. Criminal Appeal No. 1029 of 1961). Hemraj, who had lodged the first information report about this incident,has also filed a Revision Application (D.B. Criminal Revision No. 571 of 1971) praying for the enhancement of the sentence awarded to the accused persons Jhuntha and others, who have been convicted by the trial court, challenged their conviction by filing an appeal (S.B. Criminal Appeal No. 1029 of 1961). Since all of them arise out of one judgement of the trial court, we propose to dispose them of by single order. 2. The complainant party and the accused persons, except Hathi, belong to one family.It appears,that a dispute was going on between the parties in respect of field Khasra No. 323 measuring 22 Bighas in village Sultana, Tehsil Khetri, District Jhunjhuhu. The parties claimed half share in the said field while the complainant party alleged that Shiv Narayan father of Jhuntha, was entitled to 7 Bighas of land in the dispute field. On 9th of July, 1970, the prosecution case is that when at about 8.00 a.m. Piru his grandson Hemraj (P.W.1), his son's wife Mst. Badami (P.W.2) were engaged in ploughing the disputed field the accused party came armed with lathis and Jallis to dispossess the complainant party from the field Piru deceased, who was engaged in ploughing the field, asked Jhuntha not to interfere in their possession. Thereupon, it is said that Jhuntha gave a lathi blow on his head resulting in a fatal injury. On receipt of that blow Piru fell down on the ground unconscious. Harilal accused tried to inflict an other blow on the head of Piru but that blow was awarded off by Piru by his hand thus he sustained an injury on the index finger of his right hand. When Hemraj and Mst. Badami saw Piru being belaboured by the accused party, they rushed to Piru to save and learned on the body of Piru, but it is said that the accused party did not deter from inflicting blows and injured both Badami and Hemraj by giving indiscriminate lathi belows to them. Then all the persons belonging to the accused party left the spot by saying they have done away with Piru who has already died and that the other two will also shortly succumb to the injuries. Then all the persons belonging to the accused party left the spot by saying they have done away with Piru who has already died and that the other two will also shortly succumb to the injuries. Villagers came to the spot and a cot was brought on which Piru was taken to the village from where after hiring a jeep he was shifted to the hospital situated at Singhana. Dr. Nawab Ali (P.W.6) attended the injuries immediately but he found the condition of Piru very serious. He then sent a letter (Ex. P.6) to the police Station, Singhana, but before the police could arrive at the hospital Piru breathed his last. Thereafter, Hemraj (P.W.1) went to the police station and lodged the first information report (Ex. P.2). Post mortem examination of the dead body of Piru was then done by Dr. Nawab Ali. He found two external injuries on the body of Piru (1) lacerated wound on the right occipital region 21/4" x 3" x 6" deep, and (2) Lacerated wound 7" x 1" x 1" on the back of middle inter phalangeal of the right index finger. Under injury No.1, on opening the body the doctor discovered a depressed fracture towards, the mid line, horizontally, on the right occipital protuberance of the skull, 31/2" above the upper border of right ear extending upto mid line with swelling 4" x 3" around this wound. He also discovered a subcutaneous haematoma underneath the swelling. According to the doctor, there was a profused bleeding from this wound. The death, according to the doctor, was caused due to the severe shock and haemorrhage and thereby the respiratory and circulatory system of the deceased failed. Injury No.1 was, according to the doctor, sufficient to cause death in the ordinary course of nature. 3. Mst. Badami was also produced for examination before Dr. Nawab Ali (P.W.6) & he found one lacerated wound 6" x 2" x 1" on the temporal region of scalp on right side and three minor bruises. Hemraj was also examined by Dr. Nawab Ali and 7 injures were noticed on his body which were simple in nature out of which one was a lacerated wound and two abrasions and four bruises. Mst. Harbai, a member of the accused party was also put up for medical examination before Dr. Hemraj was also examined by Dr. Nawab Ali and 7 injures were noticed on his body which were simple in nature out of which one was a lacerated wound and two abrasions and four bruises. Mst. Harbai, a member of the accused party was also put up for medical examination before Dr. Nawab Ali (P.W. 6) on that very day at about 6 p.m. She was found to have sustained one lacerated wound 11/2" x 2" x 3" on the temporal region of her scalp on right side 4" above the upper border of right ear and 31/2" above the right eye brow. This injury was, however, simple in nature and according to the doctor, it could be caused by a lathi. Injury report Ex. D.12 was prepared by the doctor for the injury of Mst. Harbai. According to the doctor, this injury was sustained by Mst. Harbai on her about the same time as those of Hemraj and Mst. Badami which shows that Mst. Harbai sustained the injury during the course of this incident. 4. After investigation, a challan against five persons,including Hathi and the four accused who have been convicted by the trial court, was put up in the court of the First Class Magistrate, Khetri for offences under sections 447, 148 & 302 read with section 149 Indian Penal Code. All the five persons after enquiry, were sent to the court of Sessions to stand their trial for the charges framed against them. 5. The prosecution examined two eye witnesses and placed reliance on document Ex. P.1 in support of the claim set up by the complainant party on the field in dispute. The defence also examined four witnesses and placed document Ex. D.1 to show that in the revenue records for the Samvat year 1999 the share of Shiv Narain was defined as 1/2 in the disputed field. 6. The learned trial Judge, after discussing the prosecution evidence and taking into consideration the defence set up and established by the accused persons, came to the conclusion that there was no hand of Hathi in this incident and, therefore, acquitted him of all the charges. 6. The learned trial Judge, after discussing the prosecution evidence and taking into consideration the defence set up and established by the accused persons, came to the conclusion that there was no hand of Hathi in this incident and, therefore, acquitted him of all the charges. The learned Judge held that Jhuntha was responsible for the fatal injury sustained by Piru on his head but he did not believe the prosecution case that the accused party came to the spot with a common object to kill Piru, and since Hathi was acquitted by the court the application of section 149 Indian Penal Code was ruled out by the court. Jhuntha was, however, convicted under section 304 Part II Indian Penal Code. The other three co-accused, namely, Harlal,Mst. Harbai and Mst. Ram Pyari were found guilty under sections 447 and 323 read with Section 34 Indian Penal Code. 7. We first take up the appeal field by the State. The statements of the eye witnesses, namely, Hemraj (P.W.1) and Mst. Badami (P.W.2) were read out to us. From the perusal of these statements, no doubt is left in our mind that force was used by the accused party and Jhuntha was the person who was responsible for inflicting head injury to Piru, but this fact by itself is not sufficient to fasten the guilty of murder on Jhuntha and other co-accused persons unless the entire story as set up by the prosecution is proved by these witnesses. We examined the statements of these two witnesses in the light of the defence set up by the accused persons. In their cross-examination this case was definitely put up by the defence to the witnesses that when Piru started ploughing the field Mst. Harbai stood in front of his plough & asked Piru not to cultivate that portion of the land which she claimed to be in her share. Thereupon according to the defence, Piru gave a lathi blow to Mst. Harbai and when Sugna saw Harbai being beaten by Piru, she immediately rushed to the place of occurrence and gave a lathi blow to Piru. Part of this defence version finds corroboration from the injury sustained by Mst. Harbai which has not been explained by the prosecution. Even today the prosecution is not in a position to say as to how Mst. Harbai sustained that injury. Part of this defence version finds corroboration from the injury sustained by Mst. Harbai which has not been explained by the prosecution. Even today the prosecution is not in a position to say as to how Mst. Harbai sustained that injury. From the medical evidence, it is proved by the prosecution itself that the injury sustained by Mst. Harbai must have been received by her during the course of the incident. The presence of this injury on the person of Mst. Harbai prohabilises the defence theory that on account of the dispute between the accused and the complainant party regarding the share in the disputed field Mst. Harbai wanted Piru not to plough that land which was claimed by the accused party as the land of their share. Ex. D.1 on which reliance has been placed by the trial court clearly establishes that Shiv Narain, father of Jhuntha, had half share in the land. It is no doubt that Sanwalram (P.W.3) has stated that there was partition between the four brothers, namely, Piru, Shivnarain, Jhaburam and Sanwal Ram in the Samvat year 1999 but this deposition gets contradicted by the documentary evidence relied upon by the defence, namely, Ex.D.1 which is the copy of the Misal Haqiyat of the Samvat year 1999 which shows that Shiv Narian was the equal share in the land in dispute. 8. Learned Public Prosecutor has urged that even though there was no partition, that portion of the land where Piru was carrying out the agricultural operations was under continuous cultivation of the complainant party. Even if this submission of the learned Public Prosecutor is accepted for the sake of argument, Piru, if his cultivation was objected to by Mst. Harbal, was not entitled to use force against her to justify the ploughing of that portion of the land. It is admitted that partition had not taken place by meters and bounds and the shares in the disputed land were not physically demarcated & therefore, in such circumstances it is difficult to hold that the member of the accused party, even if actually went to stop Piru to plough that portion of the land which was claimed by him as his own committed an act of trespass, as the possession of such a land jointly owned by both the parties could be claimed by any one of the parties as his land. In these circumstances, if Mst. Harbai offered resistance to Piru to cultivate the disputed portion of the land, she could not be removed therefrom by the use of the force. The only remedy available to the complainant party in such conditions was to approach the competent court to get the partition effected and obtain an injunction against the accused party to desist from interfering with possession of the complainant party. The prosecution has not come out with any explanation about the injury sustained by Mst. Harbai. It was all the more necessary to explain this injury of Harbai when the defence had put its version at the very outset of the prosecution when P.W. 1 Hemraj was examined that Mst. Harbai was given a lathi by Piru when she tried to stop Piru from ploughing the land at the time of the incident. This lacuna left by the prosecution makes the prosecution case very doubtful and even though Jhuntha is accepted to be the author of the injury which ultimately resulted in the death of Piru, it is difficult for us to hold Jhuntha guilty of an offence under section 302 read with section 149 Indian Penal code. 9. The common object of bringing an end to the life of Piru has not been proved by the prosecution evidence. Both these eye witnesses have, however, said that Hathi was standing at a distance of about 15 Pawandas from the place of occurrence to guard the intervention of villagers if they happened to come to the spot and they further stated that after the beating was over when these four accused persons left the scene of occurrence they told Hathi that they have done away the main apponent and the other two, who had sustained injuries at their hands, wound die shortly. This part of the prosecution story is conspicuously missing from the first version of the incident as related by Hemraj (P.W.1) while lodging the first information report. This part of the prosecution story is conspicuously missing from the first version of the incident as related by Hemraj (P.W.1) while lodging the first information report. This being an important omission, which creates a doubt about the existence of the common object of the accused party, we find it difficult to place any reliance on the testimony of the two eye-witnesses in respect of the part of the prosecution story that all the five persons went to the spot of occurrence to do away with Piru and it was in pursuance of this object that they told Hathi about doing away with the main enemy. In these circumstances, we are not inclined to accept the theory or the prosecution that all the accused persons went to the field and acted in pursuance of a common object to kill Piru. In this view of the matter, we cannot accept the prayer of the State that prosecution has succeeded in establishing a charge under section 302 read with section 149 Indian Penal code against the accused persons. 10. As regards, Hathi, we do not take a different view from what has been taken by the learned trial Judge after having gone through the statements of the prosecution witnesses carefully. In our opinion the acquittal of Hathi cannot successfully be challenged by the State. In this view of the matter, the appeal field by the State fails and is hereby dismissed. 11. In view of what we have said about the appeal of the State, the revision application filed by Hemraj becomes infructuous. Therefore, it also fails and is dismissed. 12. Now remain the appeal of the accused persons. We have elaborately dealt with this part of the case that the accused party was claiming half the share in the disputed land and that the land was not partitioned between the two brothers Shiv Narayan and Piru who were shown as joint Khatedars of that land in the samyat year 1999. unless the land was partitioned by metes and bounds, the doctrine of unity of possession of the land cannot be ruled out and if for one reason or the other one of the brother claims certain portion of the land to be in his share, then it cannot be said that he is totally unjustified to put up that type of claim. The only remedy for one who resists such claim is to make an approach to a competent court to get the specific share demarcated by claiming partition. The entire episode appears to have taken place because the accused party was claiming that portion of the land which was being ploughed by Piru as the land belonging to their share, and this unfortunate incident arose when such a claim was vigorously put forth by the complainant party. In these circumstances, the offence under section 447 Indian Penal code is not made out against the accused persons. 13. While judging the question of conviction of the accused-appellants it cannot be overlooked that one of the accused Mst. Harbai sustained injury during the course of this incident. That injury was received on a very vital part of the body, i.e. on the head, but she was fortunate that injury was simple. It is however, difficult to say as to at what stage such an injury was caused to Mst. Harbai by one of the persons belonging to the complainant party, but this possibility cannot altogether be ruled out that the incident must have started after the force was used by the complainant party against Mst. Harbai. In that event the accused persons could exercise the right of private defence and use force against the complainant party. It is true that the injury sustained by Piru was inflicted with considerable force, but as the Supreme Court has said it is difficult for a person using force in the exercise of his private defence to weight it in golden scales. Therefore, the possibility of using force by the accused persons in their self defence cannot totally be ruled out. In such circumstances, the conviction of the accused persons who caused hurt to the complainant party under section 304 Part II and section 323 read with section 34 Indian Penal Code cannot be sustained. 14. Before parting with case, we would, however, like to observe that the charge against the accused persons was framed under section 302 with the aid of section 149 Penal Code. The accused persons, therefore, cannot be convicted either for a charge under section 302 or for any lesser offence simpliciter. We have held above that the prosecution has failed to prove a case under section 302 read with section 149 Penal Code. The accused persons, therefore, cannot be convicted either for a charge under section 302 or for any lesser offence simpliciter. We have held above that the prosecution has failed to prove a case under section 302 read with section 149 Penal Code. In these circumstances, we cannot uphold the conviction of Jhuntha under section 304 Part II simpliciter as it is obviously illegal. In this connection we may refer to Lakhan Mahto and others v. State of Bihar, AIR 1966 SC 1742 , Nanak Chand v. State of Punjab, AIR 1955 SC 274 and Suraj Pal v. State of Uttar Pradesh, AIR 1955 SC 419 . 15. The result is that the appeal of the appellants (No. 1029 of 1971) succeeds. The accused appellants are acquitted of all the charges. The sentences awarded to each one of them by the trial court are set aside. Fine, if paid, shall be refunded to the appellants. *******