JUDGMENT 1. - The appellant Moola was convicted under section 304 Part II, Indian Penal Code, and was sentenced to seven years' rigorous imprisonment by the Additional Sessions Judge, Sirohi by his judgment dated 14th May, 1974. 2. The prosecution case, in brief is that on 12.6.1973 at about 11.30 a m., the appellant Moola along with five others formed an unlawful assembly with the object of forcibly taking possession of Arath Khetava' situated in village Nadia and in pursuance of that common object they caused injuries to the deceased Punma. It is said that on the day of occurrence Kheta and Jetha's son Vela were ploughing the land. Thereafter, Punma came and asked them not to plough the land. Thereupon the accused persons including Moola arrived at the scene of occurrence armed with 'lathis'. It is said that the appellant Moola inflicted a 'lathi' blow on the head of Punma, whereby he fell con and thereafter all the accused persons inflicted blows. The occurrence was Kheta by Naharsingh (FW 5) and Meghsingh (PW 14). both of them then went to the village. The informant Amra was sitting along with other persons. Amra was asked about the 'sarpanch'. The occurrence was narrated to Amra & Amra was asked to lodge the report Thereupon, Amra got the report written and he submitted the written report Ex P/2 at the Police Station, Pinowara. On this report case under sections 147, 148, 149 and 307, Indian Penal Code, was registered. Punma was got medically examined on the same day at 4.30, p m., but he succumbed to his injuries on the same day at about 9.30, p.m Thereupon the case was converted to section 302, IPC. After usual investigation charge sheet was presented against the six accused persons in the Court of the Munsif Magistrate, Abu Road, who conducted the committal inquiry and committed the accused persons to the court of Additional Sessions Judge, Sirohi. 3. The Additional Sessions Judge, Sirohi, charged the accused persons for offences under sections 148 and 302/149, Indian Penal Code The accused persons, however, pleaded not guilty to the charges and claimed to be tried. The prosecution in this case examined as many as fifteen witnesses. The statements of the accused persons were recorded. Moola, the appellant, stated that he along with Nopa, Kheta and Vela came from Arath Vav to Arath Khetwa from the usual entrance. The prosecution in this case examined as many as fifteen witnesses. The statements of the accused persons were recorded. Moola, the appellant, stated that he along with Nopa, Kheta and Vela came from Arath Vav to Arath Khetwa from the usual entrance. After ploughing the land for about an hour Punma arrived there and started hurling abuses and prevented ploughing. Thereupon, he requested not to obstruct ploughing, but he refused. Thereupon, he asked Kheta and Vela to resume the ploughing. Then Punma inflicted 'lathi' blow on his head, but he sustained no injury as he was wearing a turban and in self defence he and Nopa inflicted blows on Punma with Jewalas. No blows were inflicted after Punma fell down. He also produced Parcha Lagan of his Arath Ex. D/8. The accused persons examined two witnesses in defence. The learned Additional Sessions judge, alter hearing the arguments, acquitted the five accused persons, but convicted and sentenced the appellant Moola, as stated above. The learned Sessions Judge found that the accused persons were in possession of field in which the occurrence took place. He framed point No. 3 for determination as to whether the accused party or the complainant party was in possession of the field in dispute at the time of the incident ? This point was decided in favour of the accused party and he further found that at the time of incident the field was lying vacant and the accused persons were never dispossessed from this field. The prosecution case that the deceased had sown 'kura' crop in the disputed field, was found to be untrue. The learned trial judge further found that all the six accused persons participated in the beating of the deceased. However, be further found that the accused persons acted in exercise of their right of private defence of their property and they had the right of private defence of their person. Consequently, he held that there was no unlawful assembly. He further considered the question as to whether force used by the accused was justified, for which he found that it was not at all justified. Consequently, he held that there was no unlawful assembly. He further considered the question as to whether force used by the accused was justified, for which he found that it was not at all justified. Thereafter he considered the question as to who caused the fatal injury, as only that accused who is responsible for causing the fatal injury, can be held responsible for exceeding the right of private defence and while considering this question, observed that Moola inflicted a 'lathi' on the head of the deceased as a result of which he fell down. Injuries Nos. 8 and 9 were fractures on head and the medical opinion is that each of these injuries was individually sufficient to cause death in the ordinary course of nature, so on that basis the learned trial judge fastened the liability of causing the fatal injury to Moola and thereby he exceeded the right of private defence of person and property and he further stated that his act fails under section 304, Part 11, Indian Penal Code, because he must have known that the :injury is likely tocause the death though he may not have intended to cause the death. It is by this process of reasoning the learned trial judge found the appellant guilty of the offence under section 304 Part II, IPC. Aggrieved against his conviction and sentence Moola has preferred this appeal. 4. I have heard the learned counsel for the appellant and the learned Public Prosecutor, for the State. 5. The learned counsel for the appellant vehemently ,contented that the learned Additional Sessions,Judge has seriously erred in holding that the appellant was responsible for causing any fatal injury to the deceased Panma and thus, has seriously -erred in holding him guilty for the offence under section 304, Part II, Indian Penal Code, finding that the appellant exceeded the right of private defence of person and property. The learned counsel invited my attention to the Statements of the two eye witnesses Naharsingh (PW 5) and Meghsingh (PW 14) and urged that the process of reasoning which has been employed by the learned trial judge is faulty in as much as such a conclusion could not be arrived at that the author of any of the two fatal injuries is the appellant. He contended that on evidence it cannot be found that the deceased Punma, fell down as a result of the first blow, so necessarily that blow must be fatal and the injury must not be simple. He pointed out that the deceased had three injuries on his head, injuries Nos. 1, 8 and 9. Moola might have inflicted injury No i on head which is simple in nature. Further, there is inconsistency in the statement of Naharsirgh (P W 5, and Meghsingh (PW 14) as to the stage when,the deceased fell down. The statement of Meghsingh is inconsistent and contradicts the statement of Naharsingh. Meghsingh does not state that Punma fell down as result of first blow on the head caused by Moola. Rather he states that after 4.5 blows having been sustained by the deceased., the deceased fell down. The learned trial judge, did not make any reference to this statement of Meghsingh that Panma fell down don after receiving 4.5 'lathi' blows The finding arrived at by the learned trial Judge is thus vitiated when he holds that the deceased fed down as a result of the first blow on the head of the deceased, which must have beer a fatal blow. He urged that the finding of the learned trial Judge on the evidence of record, is not sustainable and it is doubtful as to who inflicted the fatal blow on the head of the deceased. As such, the accused is entitled to acquittal, as his case stands on the same footing as the case of the other accused persons. In any case the appellant is entitled to the benefit and doubt. 6. The learned Public Prosecutor could not successfully contend as to how this finding can be sustained that the appellant was the author if any of the two fatal blows, though he tried to support the conclusions arrived at by the learned Additional Sessions judge on the basis of the statement of Naharsingh (P W.5), who has stated that the appellant inflicted a blow on the head of the deceased from front side whereby the deceased fell down. So far as the other findings arrived at by the learned trial judge are concerned, they have not been challenged before me. 7. So far as the other findings arrived at by the learned trial judge are concerned, they have not been challenged before me. 7. Having heard both the sides, in my opinion, the most material question, which falls of consideration, is as to whether from the evidence on record it is proved beyond all reasonable doubt that the applicant exercised the right of private defence by causing any of the two fatal injuries on the head of the deceased ? The evidence on record consists of the two eye witnesses Nahar Singh (P.W.5) and Meghsingh (P W 14). Before dealing with their evidence it would be proper to notice the head injuries on the person of the deceased. They are as follows:- (1) Lacerated wound 3cm x 1/9cm x bone deep on the frontal region scalp. (8) Lacerated wound 4cm x 1 bone deep with compound fracture of occipital bone on occipital region scalp. (9) Simple linear fracture if orbital plate of frontal bone. For injuries Nos. 8 and 9 Dr B.S. Mathur, who conducted autopsy on the dead body, has stated that injuries Nos. 8 and 9 individually are sufficient in the ordinary course of nature to cause death. Injury No. 1 is simple in nature. The anatomy of injury N0. 1 is as 7 frontal region on scalp. There is no specific evidence on record that the appellant caused which particular injury, Out of the three head injuries. The statement of Naharsingh is only to this effected that the appellant gave a blow on the head of the deceased whereby he fell down and this blow was given from the front side of the deceased. Meghsingh does not support Naharsingh that the deceased fell down as a result of the first blew on the head by the appellant. On the other hand he states that the deceased fell down after receiving 4.5 injuries, though Meghsingh corroborates Naharsingh when he states that the appellant first inflicted a blow on the head of the deceased. The reasoning which has been employed by the learned trial judge does not appear to be sound to hold that the author of one the two fatal blows was the appellant. The reasoning which has been employed by the learned trial judge does not appear to be sound to hold that the author of one the two fatal blows was the appellant. The reasoning employed is that because the deceased fill down as a result of blow on the head so the nature of such a injury must necessarily he of such gravity whereby he could not withstand it and led to the falling down of the deceased. In view of the statement of Meghsingh this reasoning is not available as he has categorically stated that the deceased fell down only after sustaining of 4 5 blows. Apart from that the conclusion area ,ed at by the trial Judge that author of one of the two fatal blows is the appellant, is not sustainable, as injury No.1 is also on the head on its frontal region and it may be that the appellant may be responsible for causing injury No. 1 and not injuries Nos. 3 or 9. Causing of injury No. 8 may be ruled out, as its site is at occipital region, so necessarily this injury must have been inflicted from the back side and not from the front side. From this discussion of the evidence, in my opinion, it is not proved that the appellant as responsible for causing any of the fatal injuries on the person of the deceased and thereby exceeded the right of private defence. Thus, the basis on which conviction of the appellant is entered into goes away and it cannot be found that the appellant exceeded the right of private defence and guilty of the offence under section 304 Part II, I P.C. The question in of holding the appellant guilty of the offence under section 325, Indian Penal Code, as well does not arise, as there is no evidence to the effect that the appellant was responsible for causing any grievous hurt. 8. As a result of the forgoing discussion I hold that the prosecution has failed to prove beyond all reasonable doubt that the appellant exceeded the right of private defence, as such, his conviction under section 301, Part II, Indian Penal Code, cannot be sustained. In any view of matter the appellant is entitled to the benefit of doubt. 9. 8. As a result of the forgoing discussion I hold that the prosecution has failed to prove beyond all reasonable doubt that the appellant exceeded the right of private defence, as such, his conviction under section 301, Part II, Indian Penal Code, cannot be sustained. In any view of matter the appellant is entitled to the benefit of doubt. 9. Consequently, the appeal is allowed, the conviction and the sentence of the appellant Moola are set aside and the appellant is acquitted of the offence under section 304, Part II, I.P C. He is already on bail, so he need not surrender. His bail bonds are discharged.Appeal allowed. *******