JUDGMENT 1. - This appeal by accused-appellants Panni, Patre, Ramhet, Kanhaiya, Narain, Pooran, Mansingh and Arbo is directed against the judgment dated May 18, 1976 of the learned Sessions Judge, Bharatpur, whereby he convicted and sentenced accused Panni, Patre and Ramhet as under:- 1. Panni u/s 304 Part II IPC 5 years' R. I. and a fine of Rs. 500/-. u/s 326 I.P.C. 2 years' R. I. arid a fine of Rs. 300/-. u/s 324 I.P.C. 4 months' R. I. and a fine of Rs. 200/-. 2. Patre u/s 426 I.P.C. 2 years' R. I. and a fine of Rs. 300/-. u/s 324 I.P.C. 4 months' R. I. and a fine of Rs. 200/-. 3. Ramhet u/s 324 I.P.C. 4 months' R. I. and a fine of Rs. 200/-. The substantive sentences of imprisonment awarded to accused-appellants Panni and Patre were ordered to run concurrently. The rest of the accused-appellants were convicted under section 323 I.P.C., but instead of being sentenced to imprisonment, the benefit of Section 4 of the Probation of Offenders Act was extended to them. The remaining accused tried along with the accused-appellants were, however, acquitted of all the charges framed against them. The learned counsel appearing on behalf of the appellants has not pressed the appeal on behalf of appellants Nos. 4 to 8. As such now I am concerned with the appeal on behalf of appellants Nos. 1 to 3 namely, Panni, Patre and Ramhet. 2. The facts giving rise to this appeal are that on June 25, 1975 Hari Singh (since deceased), Pooran PW 1, Chandan Singh PW 2, Kamal Singh PW 3, PW 6 Rambabu and Om Prakash PW 7 were cultivating Khasra Nos. 3150 and 3151 with the help of a tractor. Nearly at 8 a.m. the accused 16 in number including the appellants Panni, Patre and Ramhet formed an unlawful assembly and after being armed with weapons went on the field to desist the members of the complainant party from cultivating the land. By exhibiting sufficient force the accused persons asked the members of the complainant party not to continue the trespass over the land. Gopal, the driver of the tractor, ran away from the scene of the occurrence with the tractor to save his own life. By exhibiting sufficient force the accused persons asked the members of the complainant party not to continue the trespass over the land. Gopal, the driver of the tractor, ran away from the scene of the occurrence with the tractor to save his own life. But as members of the complainant party did not oblige the accused by leaving the place, the accused persons inflicted injuries, it is alleged that during the course of this incident Hari Singh sustained three injuries as mentioned in the post-mortem report Ex. P/24, Pooran sustained 8 injuries as mentioned in injury report Ex. P/25 and Om Prakash sustained one injury. His injury report is P/26. Rambabu sustained one injury. His injury report is Ex. P/27 The prosecution case further is that the fatal blow to Hari Singh was caused by Panni and Patre and Ramhet inflicted grievous injury on the person of Hari Singh as well as on the person of Pooran. First Information Report of this occurrence was lodged by PW 5 Madan Lal at Police Station, Sewar on the same day at 10.30 a. m. The first information report is Ex. P/6. The injured persons were clinically examined by PW II Dr. Devi Lal Gupta and the postmortem on the dead body of Hari Singh was performed by the same doctor. The police after usual investigation submitted a challan against 16 persons in the Court of Judicial Magistrate, Bharatpur, who committed all of them to take their trial in the Court of Sessions Judge, Bharatpur. The accused persons pleaded not guilty to the charge and the prosecution examined 12 witnesses in support of their case, out of whom PW 1 Pooran, PW 6 Rambabu and PW 7 Om Prakash are the injured persons. PW 2 Chandan Smgh and PW 3 Kamal Singh are the eye witnesses of the occurrence. PW 11 Dr. Devi Lal Gupta was examined to prove the injury reports and the postmortem report. PW 12 Umashanker is the Patwari of Halqa Ikran, who was examined to prove the possession of the complainant on the date of the occurrence on the fields on which the incident took place. Khasra Girdawaries Ex. P/22 and Ex. P/23 were produced and proved on behalf of the prosecution. Ex. D/1 an application containing the admission of Pooran Singh PW 1 and Ex. D/2 a site plan prepared by the Girdawar and Ex. Khasra Girdawaries Ex. P/22 and Ex. P/23 were produced and proved on behalf of the prosecution. Ex. D/1 an application containing the admission of Pooran Singh PW 1 and Ex. D/2 a site plan prepared by the Girdawar and Ex. D/2 report of the Girdawar bearing the signatures of PW 1 Pooran were got exhibited through the same witness as defence documents. The accused persons denied their complicity in the crime and examined two witnesses namely, DW 1 Bbogi and CW Fattey. 3. The learned Sessions Judge taking into consideration the documentary evidence on record and the statements of PW 1 Pooran and PW 12 Umashanker Girdawar as well as certain admissions made by the prosecution witnesses in the cross-examination held that out of 9 bighas and 7 biswas of land the accused persons in cultivatory possession of 4 bighas and 9 biswas of land and the members of the complainant party did not have any right to cultivate the entire land on the date of the occurrence. They could have cultivated only 4 bighas and 18 biswas of land. On the basis of this finding the learned Judge held that the accused had the right of private defence of property. He further held that the members of the complainant party did not inflict any injuries on the person of the accused and as such on the proved facts of the case it could be held that they were unarmed and a murderous assault was made by the accused on unarmed persons, On the basis of the above findings he convicted and sentenced the appellants as mentioned above. As regards the rest of the accused the learned Judge found the prosecution evidence to be wavering and did not consider it safe to convict them. The convicted accused have come up in appeal. 4. The learned counsel appearing on behalf of the appellants has urged that the deceased Hiri Singh sustained two injuries on his head and as Panni appellant was assigned only one injury to Hari Singh on his head, it cannot be said with certainty that he was the person who inflicted the fatal blow and on the findings of the learned Sessions Judge he ought not to have been convicted under Section 304 Part II I.P.C. 5. There is no controversy between the parties that all the eye witnesses have assigned one injury to accused Panni on the head of Hari Singh (since deceased) and in view of this categorical statement of the witnesses the contention of the learned counsel appears to be correct. The conviction of accused Panni under Section 304 part if I.P.C. cannot be maintained. 6. Now remains the question as to under which section he should be convicted for inflicting injury on the person of Hari Singh. In order to bring home the offence under Section 326 I.P.C. to the appellant Panni for causing grievous hurt to Hari Singh it was essential for the prosecution to prove that the grievous hurt was caused by him. Since the medical evidence clearly disclosed that there were two injuries on the head of the deceased and there is no evidence as to which of the two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal and as such he cannot be convicted under Section 326 I.P.C. As it is a case of exceeding the right of self defence, the provisions of Sections 34 or 149 I.P.C. cannot be invoked to convict the accused. The conviction of accused Panni is converted from Section 304 part II and Section 326 I.P.C to Section 324 I.P.C. 7. As regards accused Patre and Ramhet the learned counsel appealing on behalf of the appellants urged that as the members of the complainant party were trespassers, the appellants had the right to cause any harm to the wrong doers other than death and the right of private defence of property commenced as soon as they trespassed on the land and it continued till the offenders continued on the scene of the occurrence in commission of the criminal trespass. It was further contended that no doubt it is the duty of the State to take care of persons and property of individual citizens, but it does not mean that a person suddenly call upon to face a criminal trespass should run away and protect himself. He is entitled to resist the trespassers and threw them out. It was further contended that no doubt it is the duty of the State to take care of persons and property of individual citizens, but it does not mean that a person suddenly call upon to face a criminal trespass should run away and protect himself. He is entitled to resist the trespassers and threw them out. When an individual citizen is faced with a danger to his property and immediate aid from the Stale agency is not available, the individual citizen is entitled to protect himself and his property. In support of this contention reliance was placed on Munshi Ram and others v. Delhi Administration, AIR 1968 SC 702 . 8. The learned Public Prosecutor, Mr. Khan, appearing on behalf of the State placing reliance on State v. Bhima Devraj and others, AIR 1956 Saurashtra 77 urged that the accused-appellants , no doubt, had a right of private defence of property on the findings of the trial Court and it continued so long as the offenders remained on the land in commission of the criminal trespass, but it cannot be said that when Pooran as a result of injuries sustained by him fell down in a helpless condition he remained as a trespasser on the land. Whatever intention he might have entertained at the time of entering into the field, it had disappeared and he continued on the field not because he intended to commit an offence, but because he was physically unable to get out and at that stage accused Patre and Ramhet bad no right to cause grievous injuries to him. 9. I find considerable merit in this line of reasoning. The right of self defence to property provided under Section 104 I.P.C. is subject to the provisions of Section 99 I.P.C. The necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. It is a right to defend not to vindicate. The exercise of right of private defence must never be indicative or malicious. There is no dispute between the parties on the point that none of the accused were injured during the course of this occurrence. It is a right to defend not to vindicate. The exercise of right of private defence must never be indicative or malicious. There is no dispute between the parties on the point that none of the accused were injured during the course of this occurrence. There is evidence on record that after sustaining three injuries Hari Singh was trying to run away. At that stage also beating was administered to him. There is no clear evidence about the reaction of the other victims of assault, but it Is but natural that when unarmed persons are faced with persons armed with lethal weapons, they do make some attempt to save themselves. Looking to the number of the injuries inflicted by the accused it can be inferred that either they must have been frightened or would have taken some steps to ward off the danger. It has come on the record that Pooran sustained 8 injuries out of which 4 were found to be by sharp edged weapons and there is definite evidence on record that two of the injuries caused, one each by Patre and Ramhet, were found to be grievous, la the proved circumstances of the case it can be safely said that the continued threat of commission of the criminal trespass by Pooran at least come to an end by the time he had received nearly six injuries. All the three witnesses have categorically stated that the two grievous hurts caused on the leg of Pooran by Patre and Ramhet were the last blows inflicted on his person. Thus the two accused can be held guilty of causing grievous hurt to Pooran. 10. I find considerable merit in the contention of the learned counsellor the appellants that in the life of a cultivator land plays a very important part and it cannot be expected from him that he should silently watch other persons trespassing hit field and not driving him out which may result into the starvation of his whole family. The accused persons are members of the Scheduled caste. The members of the complainant party belong to the effluent section of the society and inspite of their entreaties made by the accused when they refused to leave their land and desist from trespassing over it, the blood must have run high and the accused must have infuriated with rage. The accused persons are members of the Scheduled caste. The members of the complainant party belong to the effluent section of the society and inspite of their entreaties made by the accused when they refused to leave their land and desist from trespassing over it, the blood must have run high and the accused must have infuriated with rage. The accused persons were in settled possession of half of the land and suddenly they found the members of the complainant party trespassing and cultivating their land with a tractor. In such circumstances it can safely be said that the provocation was sudden and grave and as such the conviction of the accused-appellant Patre cannot be maintained under Section 326 and 324 I.P.C. his conviction is altered to Sections 335 and 334 I.P.C. The conviction of accused-appellant Ramhet is altered from Section 324 I.P.C. to 334 I.P.C. 11. The net result of the above discussion is that the appeal is partly allowed. The conviction of accused-appellant Panni is altered from Section 304 Part II and Section 326 I.P.C. to Section 334 I.P.C. He has already remained in jail for a period nearly two years and his sentence is reduced to the period already undergone by him.The conviction of accused Patre is altered from Sections 329 and 324 I.P.C. to Sections 335 and 334 I.P.C. and he is sentenced to the substantive period of sentence already undergone by him and a fine of Rs. 600/- is imposed upon him. In default of the payment of fine, he shall further sutler rigorous imprisonment for a period of four months.The conviction of accused-appellant Ramhet is altered from Section 324 I.P.C. to Section 334 I.P.C. and he is sentenced to the substantive period of sentence already undergone by him and a fine of Rs. 500/-. In default of the payment of fine, he shall further suffer rigorous imprisonment fora period of four months.Out of the fine realised an amount of Rs. 600/- would be paid to Pooran Singh. Two Months time is allowed to the appellants Patre and Ramhet for depositing the fine imposed in the trial Court.Accused-appellant Panni is in jail. He shall be released forthwith, if not required in any other case. *******