JUDGMENT 1. 1. This is an appeal from the judgment dated November 8, 1973, by which the learned Sessions Judge, Alwar convicted Saddiq (A. 1), Ishaq (A. 2), Ismail (A. 4), Jenkhan (A. 6), Samela (A. 7), Sardar (A. 8), Rahim Khan (A. II), Bakhtawar(A. 12) and Mehtab (A. 13), and sentenced them to various terms of imprisonment, the maximum sentence being imprisonment for life. 2. Briefly the prosecution case was that the relations between Parmal (deceased) and Kamal (P. W. 1), Hurmat (P. W. 2), and Basti (P. W. 3) were strained. In the year 1969 one Daud, brother of Saddiq (A. 1), was murdered. In that murder case the deceased, his brothers Kamal (P. W. J), Hurmat (P. W. 2) and Basti (P. W. 3), and one Jassail were arrayed as accused persons. They were acquitted on January 30, 1971. All the accused were members of one and the same family residing in the field, at some distance from the village Gher Banssai. On September 12, 1972, in the after-noon, some goats belonging to some of accused persons strayed into the field of Hurmat (P. W. 2) and destroyed the crops. Parmal and his brother Kamal droved away the goats. At that point of the time some of the accused went there and Parmal and Kamal questioned them as to why they had allowed the goats into their field. In that behalf there was an exchange of words between them. Thereafter the accused took away the goats to the houses. 3. In the evening at about 4 p.m. Parmal, Kamal (P.W. 1), Hurma (P. W. 2) and Basti (P. W. 3) left that field to go to the village. There were two foot-paths to go to the village. Usually the deceased and his brothers used to go in the foot path passing near the house of the accused Saddiq (A. 1). However, on that day they went in the foot-path near 'Purani Kothi', which foot-path was passing by the side of the field of the accused. When they came near the field, all the accused, according to the prosecution - the present appellants-alongwith four acquitted accused persons in furtherance of their common object to murder Parmal and his brothers attacked with sticks, 'Farsis', and axes. Kamal (P. W. I), Hurmat (P. W. 2) and Parmal sustained injuries. Parmal died at the spot. When they came near the field, all the accused, according to the prosecution - the present appellants-alongwith four acquitted accused persons in furtherance of their common object to murder Parmal and his brothers attacked with sticks, 'Farsis', and axes. Kamal (P. W. I), Hurmat (P. W. 2) and Parmal sustained injuries. Parmal died at the spot. Hurmat (P. W. 2) went to the Police Station, Tijara, at about 7 p. m. and lodged the report Ex. P. 1, regarding the occurrence. 4. The prosecution mainly relied upon the direct testimony of Kamal (P. W. 1), Hurmat (P. W. 2) and Basti (P. W. 3), and they also relied upon the evidence of an independent witness Hansmukh (P. W. 4). Hansmukh (P. W. 4), how ever, did not support the case of the prosecution. The learned trial Judge accepted the evidence of Kamal (P. W. 1), Hurmat (P. W. 2) and Basti (P. W. 3) and came to the conclusion that their evidence against the present appellants was reliable. So far as the other four accused were concerned, he came to the conclusion that there was no satisfactory evidence to hold that they were members of the unlawful assembly and that they in any way participated in the commission of the offence. 5. In this appeal, it is contended that the deceased and his brothers were usually going in the foot-path going near the house of the accused Saddiq (A. 1), but on that they they selected the way going near the field of the accused, obviously either to challenge the accused persons or to destroy the crops because of the incident their had happened at about 2 p. m. on that day. Therefore, it is contended that even if the evidence of Kamal (P. W. 1), Hurmat (P. W. 2) and Basti (P. W. 3) is accepted, taking into consideration the circumstances available in this case, Kamal (P. W. 1), Hurmat (P.W. 2) and Basti (P. W. 3) and the deceased Parmal, in all probability, must have gone there to attack the accused persons or to destroy the crops, and in those circumstances, the accused, in order to protect their property, might have retaliated and if that were so, they have not committed any offence. 6. The deceased Parmal and his brothers, instead of going on the usual foot-path, selected the other foot-path. 6. The deceased Parmal and his brothers, instead of going on the usual foot-path, selected the other foot-path. No reason has been ascribed why they selected that foot-path that evening. Taking into consideration the earlier incident it appears to us, that Permal and his brothers in all probability went to the field of the accused to challenge them as they had taken away the goats forcibly. That was the reason why Parmal and his brothers went that way. It is in evidence that two of the witness were armed with 'Jeli' and one of them with club. As to what exactly happened, prior to the attack on Permal and his brothers, the prosecution witnesses are silent. It appears to us that some quarrel must have arisen between Permal and his brothers, on the one hand, and some of the accused persons, on the other, who were, in the normal course, in their field in regard to the earlier incident. One of the accused has stated in his statement under section 342, Code of Criminal Procedure (old) that Parmal and his brothers came to his field and attempted to destroy the crops, and then a quarrel started. Three witnesses have been examined on behalf of the accused, who have supported the story of the accused, In that situation, if the accused persons, In order to protect their property, attacked Permal and his brothers, they were well with in their right of private defence of property. Looking to the injuries found on the deceased Parmal, it is manifest that the appellants beat him mercilessly causing number of injuries, although most of the injuries were lacerated or contused except one injury which was an incised injury. It is, therefore, clear that the assembly would not have been to murder Permal or his brothers. It is clear that the accused persons in exercise of their right of private defence of property attacked Permal and his brothers. We are of the view that they have inflicted more injuries then was necessary, therefore, the case of the appellants falls under section 304, Part I, Indian Penal Code. 7. It is clear that the accused persons in exercise of their right of private defence of property attacked Permal and his brothers. We are of the view that they have inflicted more injuries then was necessary, therefore, the case of the appellants falls under section 304, Part I, Indian Penal Code. 7. We, therefore, set aside the conviction and sentences passed against the appellants under section 302 read with section 149, Indian Penal Code, instead convict the appellants under section 304, Part-I, Indian Penal Code, and sentence Saddiq (A. 1), Ishaq (A. 2), Ismail (A. 4), Jen Khan (A. 6), Samel (A. 7), Sardar (A.8) and Mahtab (A. 13) to the period already undergone, which is about six years, as they have been in jail from November 14, 1972 till now. They shall be set at liberty forthwith. So far as Rahim, Khan (A. 11) and Bakhta war (A. 12) are concerned they have undergone some sentence and they are on bail. They must be now more than 80 years, therefore, we feel that the ends of justice will be met, if they are sentenced to the period already undergone. With the modification in sentences the appeal is dismissed. *******