JUDGMENT 1. - The two criminal appeals listed above arise out of the same trial and can, therefore, be conveniently disposed of together. 2. Bachchu, Madan, and Hiralli the appellants in S. B. Criminal Appeal No. 256/73 and one Pooran were tried by the learned Sessions Judge, Bharatpur on the charges of criminal trespass into agricultural land of Kundan deceased and Manniram PW, murder of Kundan deceased and causing hurt to Reshma, Chameli and Dhaniram PWs, punishable under sections 447, 302, 302-34, 323 and 324 of the Indian Penal Code. By his judgment dated April 14, 1973, the learned Judge acquitted all the accused of the charges under sections 447, 302 and 302-34 of the Indian Penal Code. Pooran was acquitted completely. However, the appellants were convicted and sentenced as under:- I. Bachchu Rigorous imprisonment for 7 years under section 304 Part II of the Indian Penal Code. II. Madan (a) Rigorous imprisonment for four years under section 304 Part II I. P. C. (b) Rigorous imprisonment for one year and a fine of Rs. 300/-, or, in default further simple imprisonment for one year under section 324 of the Indian Penal Code. III. Hiralli (a) Rigorous imprisonment for a term of four years under section 304, part II, of the Indian Penal Code. (b) A fine of Rs. 200/- or, in default of payment of fine, simple imprisonment for six months under section 323 of the Indian Penal Code. 3. The case of the prosecution which resulted in the conviction and sentence of the accused persons as aforementioned may be shortly stated here. Mst. Reshma. PW.1. wife of Manni Ram, submitted a written complaint, Ex. P/1, to the S. H. O. of Police Station, Sayana on June 13, 1972, at 12-15 p.m. alleging that her husband and Kundan deceased on one side and the accused persons on the other were rival claimants to a piece of agricultural land situate in village Kemasi. She mentioned in this context that the said land has been the subject matter of litigation between the parties for a number of years. According to her, Kundan deceased and her husband, are entered in the revenue records as the cultivating Khatedars of that land. She mentioned that on June 13, 1972 at about 7 or 8 a. m. her husband, Kundan deceased Dhaniram, Chameli and she herself, had gone to plough that land. According to her, Kundan deceased and her husband, are entered in the revenue records as the cultivating Khatedars of that land. She mentioned that on June 13, 1972 at about 7 or 8 a. m. her husband, Kundan deceased Dhaniram, Chameli and she herself, had gone to plough that land. A little later accused Hiralli accompanied by his sons and co-accused Madan and Bachchu, Mst. Mehtabi, wife of Bachchu, Mst. Keki wife of Hiralli, Pooran, a resident of Mundera and an unknown person belonging to Parssa-ka-Nagla, arrived there armed with various weapons. She further mentioned in the complaint that Bachchu and Madan carried in their hands respectively a gupt and a knife' Hiralli and his other companions were armed with sticks. According to Reshma, they all shouted that the chairmans (this has reference to the cast of the members of the complainant party) would not yield unless they were finished. It is alleged that immediately after uttering this threat Hiralli and his companions mounted an assault on the members of the complainant party. Bachchu stabbed Kundan in the abdomen with his gupti Kundan fell down with his amentum coming out of his body. The other accused beat up the fallen man with their respective weapons. Reshma, Manni Ram and Chameli went forward to save Mundan from being injured further. The accused persons are alleged to have assaulted them a well and inflicted bodily hurt to them with their respective weapons. After committing the crime Hiralli and his companions went away from the disputed field. 4. On investigation the Bayana Police found that Mst. Mehtabi, Mst. Keki and the unnamed person belonging to Parsa-ka-Nagla had been falsely roped in by Reshma. They were therefore not sent up for trial. The police submitted a charge-sheet against Hiralli, Madan, Bachchu and Pooran for inquiry preparatory to their commitment for trial by the court of session. The learned Sessions Judge framed two charges against Bachchu, one for the murder of Kundan punishable under section 302 I. P. C. and the other for committing criminal trespass into the agricultural land comprised in field No. 227 in possession of Manni Ram and Kundan deceased punishable under section 447 of the Indian Penal Code. Hiralli, Madan and Pooran were charged under sections 302-34, 447, 323 and 324 of the Indian Penal Code. 5. As already stated Pooran was acquitted in to. Hiralli, Madan and Pooran were charged under sections 302-34, 447, 323 and 324 of the Indian Penal Code. 5. As already stated Pooran was acquitted in to. Even the other three accused were acquitted of the charges under sections 302, 302-34 and 447 of the Indian Penal Code. They were however, convicted and sentenced under sections 304 Part II read with section 34, 323 and 324 of the Indian Penal Code. 6. Bachchu, Madan and Hiralli have appealed from the order of conviction and sentenced passed against them. Their appeal has been registered as S. B. Criminal Appeal No. 256/73. The State of Rajasthan has on the other hand made a grievence of the order of acquittal passed in favour of Hiralli, Madan, Bachchu and Pooran in respect of the charges framed against them. It presented a petition of appeal which was registered as D. B Criminal Appeal No. 407/73 praying that the order of acquittal of Bachchu in respect of the charge under section 302 of the Indian Penal Code and of the other three accused in respect of the charge under section 302-34 of the Indian Penal Code, be reversed and instead they be convicted of the offences for which they were charged. 7. We would first take up the S. B. Criminal appeal No. 256/73. The first point which still falls for determination in this appeal is whether Kundan deceased and Manni Ram PW were the Khatedar tenants of the agricultural land comprised in field No. 227 and they were in possession of it as such at the material time. It may be mentioned at the out set that both the parties had been litigating about this land for a number of years before the occurrence and the litigation was still pending before the Board of Revenue at the time of the occurrence. Hiralli had filed a suit for declaration against Kundan deceased and Manni Ram PW that he is the khatedar tenant of this land and that the entry to the contrary in the Jamabandi is erroneous. The suit was dismissed by the trial court. In appeal by Hiralli the decree of dismissal was reversed by the Revenue Appellate Authority, who granted the decree of declaration as prayed. Kundan deceased and Manni Ram PW then challenged that in second appeal before the Board of Revenue. 8. The suit was dismissed by the trial court. In appeal by Hiralli the decree of dismissal was reversed by the Revenue Appellate Authority, who granted the decree of declaration as prayed. Kundan deceased and Manni Ram PW then challenged that in second appeal before the Board of Revenue. 8. It will thus be seen that title to this land is still in a state of flux. Of course, the judgment and decree of the Revenue Appellate Authority favours the accused party. Had the matter rested with that judgment and decree, there would be no difficulty in holding that Hiralli is the Khatedar tenant of this land. No such finding can however, be recorded until the Board of Revenue before which the appeal is pending pronounces itself on the controversy. 9. Under the circumstance the trial court was fully justified in recording a finding that the prosecution has failed to prove that Kundan deceased and Manni Ram PW were the Khatedar-tenants of the land in dispute at the material time. The said finding is therefore affirmed. The prosecution has produced some oral evidence in an attempt to prove that Kundan deceased and Manni Ram PW were in actual physical possession of this land at the relevant time. Such evidence consists of the statements of PWs. Reshma, Chameli, Manni Ram and Dhani Ram A careful perusal of their statements would however show that instead of holding that Kundan deceased and Manni Ram PW were in possession of this land, it would be more reasonable to hold that Hiralli accused was in possession thereof at the material time. All the four witnesses hid to admit that both Kharif and Rabi crops raised on this land in the agricultural year immediately preceding this occurrence had been harvested by Hiralli without any of the members of the complainant party raising any objection to it. Of course, these witnesses asserted that the said crops had been sown and raised by Kundan deceased and Manni Ram PW. This appears to be too fall a claim to be accepted. Had Kundan deceased and Manni Ram PW sown and raised the Kharif crop, which is said to have been forcibly harvested by Hiralli, they would not have sown and raised the Rai crop without first getting the matter settled through the authorities concerned. This appears to be too fall a claim to be accepted. Had Kundan deceased and Manni Ram PW sown and raised the Kharif crop, which is said to have been forcibly harvested by Hiralli, they would not have sown and raised the Rai crop without first getting the matter settled through the authorities concerned. It is admitted by all the four witnesses that the complainant party did not lodge any report etc. With any authority regarding the alleged forcible harvesting of their crop by Hiralli. This provides a strong indication that the said crop had been raised by Hiralli himself. The fact that Hiralli was allowed by them to harvest the Rabi crop without any let or hindrance further confirms that Hiralli had been in possession of this land during the agricultural year immediately preceding the occurrence. These witnesses further admitted that Haraili had lodged a complaint against Kundan deceased accusing him of theft of some crop from this land. Even the said complaint did not provoke Kundan deceased to make a counter complaint against Hiralli accusing him of the theft of the crop. 10. The prosecution has also examined Shivial patwari as one of its witnesses He testified that according to Khasra Girdawari Ex. P. 27 and Jamabandi Ex. P/28 Kundan deceased and Manni Ram PW were the recorded Kbatedar-tenants of this land. This evidence cannot be of much help. It will be recalled that Hira Lal accused challenged the correctness of the entries in these documents and was able to obtain a declaration from the Revenue Appellate Authority to the effect that he is Khatedar tenant of this land. The evidence of the Patwari therefore, does not help the case of the prosecution at all. 11. The prosecution has also failed to prove that Kundan deceased and other members of the complainant party arrived at the land in dispute before the arrival of the members of the accused party on the fateful morning of June 13, 1972. If we read the evidence of PW Devi Ram between the line, some indication would be available therefrom that the accused persons had arrived at the land indispute before the arrival there of the members of the complainant party on June 13, 1972 morning. If we read the evidence of PW Devi Ram between the line, some indication would be available therefrom that the accused persons had arrived at the land indispute before the arrival there of the members of the complainant party on June 13, 1972 morning. Devi Ram has testified that he saw the accused persons on their way to the land in dispute at about 7.30 a. m. He deposed that he heard the accused persons telling one Rahua that they were going to the land in dispute and that Rahua should advise the complainant party not to go there. For reasons best known to the prosecution, it has not chosen to examine Rahua as a witness in this case. We may, therefore, accept the evidence of Devi Ram PW and hold on that basis that the accused were imploring Rahua, apparently a sympathiser of the complainant party, to stop the members of the complainant party from going to the land in dispute. Had the members of the complainant party reached the land in dispute before the accused pet sons left the village to go there, the accused would not have asked Rahua to advise them to refrain from going there. In that case, they would have asked Rahua to go to the field and bring the members of the complainant party back from there. 12. PW Reshma in her anxiety to prove that physical possession of the land in dispute was with her husband and Kundan deceased on the day of occurrence, testified that before the arrival of the accused on the land in dispute, Kundan had already ploughed a good portion of it and that the other members of the complainant party including herself were busy spreading manure on it. This part of Reshma's evidence is falsified by the evidence of PWs Chameli, Manni Ram and Dhani Ram, who admitted that Kundan had not ploughed this land at all that morning and that he was only making preparations to plough it. The story regarding the members of the complainant party having been busy that morning in spreading manure on this land is also difficult, if not impossible, to believe. There is not an iota of evidence on the record to prove that the members of the complainant party had transported manure from their village to the land in dispute and deposited it there for being spread subsequently. There is not an iota of evidence on the record to prove that the members of the complainant party had transported manure from their village to the land in dispute and deposited it there for being spread subsequently. If Kundan deceased and Manni Ram PW had transported manure to this land, some evidence would have been produced to prove this fact and thus show that physical possession thereof was with the complainant party even prior to the day of occurrence Non availability of such evidence indicates that no manure etc. had ever been deposited by the complainant party on this land before the occurrence and that therefore there was no question of the members of the complainant party having commenced the work of spreading the manure on this land before or at the time of the occurrence. 13. A reference to the dying declaration, Ex. P/19, of Kundan deceased would also show that the physical possession of this land was not with him on the day of the occurrence. He complained in that statement that the members of the accused-party were not letting him plough this land. Had he been ploughing it during the Kharif and Rabi crops immediately preceding the occurrence, he would not have complained that they were not letting him plough it. Instead, he would have mentioned that he had ploughed this land and raised crops on it only to be deprived of those crops by the accused persons. 14. For all these reasons, it would be reasonable to hold that physical possessions of the land in dispute on the day of occurrence was with Hira Lal and his companions. 15. The prosecution evidence is also materially discrepant on the question as to how the trouble started. PW Reshma would have us believe that, immediately after their arrival, the accused threateningly challenged them and opened the attack with Hira Lal striking a lathi blow oh the back of Kundan deceased PWs Chameli and Manni Ram, on the other hand, would have us believe that Hira Lal opened the attack with a lathi blow struck on the head of Kundan deceased. Dhaniram PW has a third version to offer in that behalf. According to him, Hira Lal struck the first blow on the left shoulder of Kundan deceased. Dhaniram PW has a third version to offer in that behalf. According to him, Hira Lal struck the first blow on the left shoulder of Kundan deceased. The medical evidence falsified the evidence of these witnesses, for the doctor, who conducted the medico-legal examination of Kundan before his death, and the doctor, who conducted the post mortem, did not find any injury on his back, head and left shoulder. This would indicate that the transaction resulting in injuries to the members of the complainant party including the fatal injury to Kundan deceased did not take place in the manner alleged by the prosecution. 16. The defences version is that Hira Lal, who was in physical possession of the land in dispute was present at it along with his sons. Bachchu and Madan on June 13, 1971 morning, that Kundan deceased and other members of the complainant party committed criminal trespass into this land in an attempt to take its forcible possession and that in order to achieve their object Kundan deceased and his companions made an assault on the accused persons. They thus indirectly pleaded that they had inflicted injuries to the members of the complainant party in the exercise of their right of private defence of body and property. The learned trial Judge seems to be of the opinion that assuming that the accused had such a right of private defence, they inflicted more harm than was necessary to inflict. He also seems to think that the right of private defence was not available in this case, for the accused had enough time to have recourse to the protection of the public authorities. 17. We have carefully considered the opinion of the learned trial Judge and find ourselves unable to endorse it. It has been mentioned above that it would be reasonable to hold in the facts of this case that physical possession of this land was with the accused persons at end before the time of occurrence and that they had reached there before the arrival of the members of the complainant party on the fateful morning. In fact, the accused went to this land after duly warning one Rahusa that he should advise the members of the complainant party not to go there. In fact, the accused went to this land after duly warning one Rahusa that he should advise the members of the complainant party not to go there. It appears that the members of the complainant party were determined that morning to go to this land and seize its possession from the accused at any cost. An indication to this effect is available from the statement of PW Reshma who admitted in cross-examination that they had taken a do - or - die decision that morning not to give up this land. Sizing up the situation as a whole, we are satisfied that the accused persons had no time to have recourse to the protection of public authorities. The members of the complainant party entered the land in dispute in an attempt to drive out the accused from there. They inflicted as many as 12 injuries to Madan (see Ex. D. 14), 9 to Hira lal (see Ex. D. 16) and 2 to Bachchu (see Ex. 15). This would show that the accused were faced with criminal trespass into the land in their possession and assault on them by the members of the complainant party. Some of the injuries inflicted by the members of the complainant party to accused Madan and Hiralli were suspected to be involving fractures. Both of them had suffered injuries on the parietal and temporal regions. Under the circumstance the accused apprehended real and present danger to their life. Bachchu who inflicted the fatal blow to Kundan deceased must have been naturally anxious to strike a decisive blow to ward off the danger to their life and property. 18. We, therefore, hold that the accused did not exceed the right of private defence. Their appeal is accordingly allowed. The order of conviction and sentence passed by the learned trial Judge against them is, therefore, set aside. Instead, all the three accused persons are acquitted. They shall be released forth with, if they are or any of them is in custody. 19. This also disposes of the D. B. Criminal Appeal No. 407/73 filed by the State of Rajasthan against the order of acquittal passed in favour of the accused persons. The said appeal fails and is here by dismissed.All accused persons acquitted. *******