JUDGMENT : S. Acharya, J. - This is an appeal u/s 378, Code of Criminal Procedure. 1973. 2. All the accused persons, Respondents in this appeal, were charged u/s 302/34, Indian Penal Code on the allegation that they in furtherance of their common intention committed murder of Srikanta Raj on the 27th November, 1973. 3. The prosecution case, in short is as follows: On 26-11-1973 the deceased and accused Krushna Sardar had some quarrel with each other relating to the boundary line between their courtyards. On the next morning, at about 7.30 or 8. a.m., the deceased started digging some pits near the courtyard of accused Krushna to put a fence thereon. On seeing this, accused Krushna challenged the action of the deceased, but the deceased did not desist from his illegal acts. Thereupon a quarrel ensued between them, and In course at that quarrel accused Krushna dealt a blow with the blunt side of his Katari (M.O.II) on the left hand palm of the deceased. The deceased then stood up, and by raising his craw bar (M.O.I) in his hand he proceeded towards accused Krushna who started receding back. At this time accused Girish Sardar (a young boy of 12 years), the younger brother of accused Krushna, came from behind the deceased and embraced him from behind. Sarada Bewa, the mother of accused Krushna and Girish, came to that place and snatched away the crowbar (M.O.I) from the deceased. At that time accused Krushna dealt another stroke with the blunt side of M.O.II on the neck of the deceased, as a result of which he fell down on the ground. Thereafter accused Krushna gave another blow on the head of the deceased. Thereafter all the three accused persons went away to their house with M. Os. I and II in their hands. After some time, the deceased succumbed to the injuries sustained by him in the said incident. Information of the occurrence was lodged at the police station on the same day, and after investigation and commitment proceeding the accused persons were tried for the aforesaid charge. The trial Court convicted only accused Krushna Sardar u/s 304. Part I. Indian Penal Code, and acquitted the other two accused persons on the finding that they did not share the common intention of accused Krushna to assault the deceased. 4. The trial Court convicted only accused Krushna Sardar u/s 304. Part I. Indian Penal Code, and acquitted the other two accused persons on the finding that they did not share the common intention of accused Krushna to assault the deceased. 4. The accused persons denied their complicity in the occurrence, and they merely stated that there was some land dispute between them and the deceased. 5. The acquittal of the accused persons of the charge u/s 302/.34, Indian Penal Code is challenged in this appeal. 6. On the post-mortem report Ext. 10, the inquest report Ext. 4/1, the evidence of the doctor P.W. 10. who conducted autopsy on the dead body, and other evidence on record, there is absolutely no doubt that the death of the deceased was homicidal. This is not challenged by the counsel for Respondents. 7. It is submitted by the learned Counsel for the State that the appreciation of the evidence on record by the Court below has been grossly incorrect and the finding of acquittal in favour of accused Girish and Sarada and the conviction of accused Krushna u/s 304 Part I, Indian Penal Code., instead of u/s 302 or 302/34, Indian Penal Code are incorrect, against the weight of the evidence on record, and based on illegal considerations. 8. P.Ws. 5 to 7 are the only eye witnesses to the occurrence. Mr. Patra, the learned Standing Counsel for the State, drew our attention only to the evidence of these three witnesses in his effort to show that the findings and conclusions are incorrect and illegal. P.W. 5 is the agnetic nephew of the deceased. P.W. 7 is the mother of P.W. 5. Admittedly, P.Ws. 5 and 7 were living jointly with the deceased. P.Ws. 5, 6 and 7 in their examination-in-chief have stated that on hearing a hullah near the place of occurrence they came out of their homes and saw that the deceased was digging some pits near the courtyard of the accused, and accused Krushna was rebuking him protesting against his said act. In course of the hot exchange of words between them on the above score accused krushna gave a blow with the blunt side of the Katari (M.O.II) in his hand on the left hand of the deceased. At this the deceased stood up and raised the crowbar (M.O.I) in his hand. In course of the hot exchange of words between them on the above score accused krushna gave a blow with the blunt side of the Katari (M.O.II) in his hand on the left hand of the deceased. At this the deceased stood up and raised the crowbar (M.O.I) in his hand. At this time accused Girish caught hold of the deceased from behind and accused Sarada snatched away the crowbar (M.O.I) from the hand of the deceased. At that time accused Krushna dealt another blow near the neck of the deceased with the blunt side of M.O.II. as a result of which the deceased fell down on the ground. Thereafter accused Krushna gave another blow with M.O.II on the head of the deceased. Thereafter all the accused persons went away from the place of occurrence to their house with M.Os.I and II. Within a short time thereafter the deceased died at the spot. 9. P.Ws. 5 and 7 have categorically admitted in their cross-examination that the deceased was digging the above-mentioned pits in the homestead area of accused Krushna. P.W. 9 has also stated that during investigation he found many pits on the homestead area of accused Krushna. So there is no doubt that the deceased had trespassed into the courtyard of the accused and was committing acts of mischief due to which the occurrence took place. P.Ws. 5, 6 and 7 have stated in their cross-examination that after the deceased received the first blow on his left hand from accused Krushna, he stood up and raised ('whirled', in their statement u/s 161. Code of Criminal Procedure) his crow bar M.O.I. in his hand and proceeded towards the accused. At this accused Krushna receded back facing the deceased. P.W. 5 in his cross-examination has stated that at that time accused Girish and his mother accused Sarada were standing at a distance of about 5-7 cubits from the place of occurrence. All the three witnesses, i.e. P.Ws. 5, 6 and 7, have consistently stated that when the deceased was proceeding towards accused Krushna and accused Krushna was receding back as stated above accused Girish came from behind and embraced the deceased from behind. At that time accused Sarada snatched away the crowbar (M.O.I.) from the hand of the deceased. P.W. 6 has stated that accused Sarada came out of her house and snatched away the crowbar from the deceased. At that time accused Sarada snatched away the crowbar (M.O.I.) from the hand of the deceased. P.W. 6 has stated that accused Sarada came out of her house and snatched away the crowbar from the deceased. The three eye-witnesses state that at the time the crowbar was snatched away from the hand of the deceased accused Krushna dealt the second blow near the neck of the deceased, and as ~ result of that the deceased fell down on the ground. Thereafter the third blow on the head of the deceased was given by accused Krushna. Their above statements in cross-examination furnish details about the occurrence, they are complementary to their statements in examination-in-chief and are no way inconsistent with the same. A reading of their evidence inspires confidence, and nothing has been elicited from them to discredit their version. Mr. Patra, the learned Counsel for the Appellant, could not successfully assail their evidence on any convincing ground. 10. On the evidence of P.Ws. 5, 6 and 7, it is established beyond reasonable doubt that in the morning of the date of occurrence, the deceased persisted in digging pits in the courtyard of the accused even inspite of the remonstrance of the accused to that effect. On that account a quarrel ensued between the two and in course of that quarrel accused Krushna at first deal to blow with the blunt side of his Katari on the left hand palm of the deceased. The deceased therefore stood up and raised his crowbar, or whirled the same and proceeded towards the accused. The deceased acted in that manner either for his own self defence or to assault accused Krushna Saradar with the crowbar. At that time accused Girish and his mother accused Sarada came to that place, and accused Girish caught hold of the deceased from behind with both his hands, and accused Sarada snatched away the crowbar, M.O.I. from the deceased. At that time Krushna gave another blow with the Katari, M.O.II on the neck of the deceased as a result of which he fell down at the spot. Thereafter accused Krushna with the Katari in his hand gave another blow on the head of the deceased. Soon thereafter all the three accused persons went away from that place to their house with M.Os I and II. After sometime the deceased died at the spot. Thereafter accused Krushna with the Katari in his hand gave another blow on the head of the deceased. Soon thereafter all the three accused persons went away from that place to their house with M.Os I and II. After sometime the deceased died at the spot. There is no material inconsistency in the evidence of the eye witnesses on the above facts. The Court below was perfectly justified in holding that on the testimony of the eye witnesses the above facts are established beyond reasonable doubt. 11. It is now to be seen if on the facts of this case the conviction of accuser! Krushna u/s 304 Part- I, Indian Penal Code and the acquittal of the other two accused persons is correct or not. We will at first take up the case of accused Krushna Sardar. On the facts established in this case, there is absolutely no doubt that this accused dealt three blows with the blunt side of M.O. II on the deceased. The first blow on the hand at the deceased was given in course of a quarrel between the two due to the insistent and persistent act of mischief committed by the deceased on the accused's land after he had trespassed into the courtyard of the accused. P.Ws. 5 and 7 have admitted in their cross-examination that the place where the deceased was digging pits belonged to accused Krushna and it was within the latter's courtyard. Therefore, the deceased bad committed criminal trespass and persisted in committing mischief on the land of the accused with a defiant and adamant attitude and did not reform from the same even inspite of the remonstrance of the accused. The persistent, defiant, adamant and illegal acts on the part at the deceased must have highly agitated the mind of the accused and as the deceased did not refrain from the same even inspite of the remonstrance of the accused be was, in exercise of his right of private defence of property, entitled to throw out the deceased out of his courtyard by applying reasonable force. So we cannot find fault With the accused for the first blow given by him under the said circumstances on the hand of the deceased causing only a lacerate wound of 21/2" x 1/4" x 1/2" on the left wrist joint of the deceased. So we cannot find fault With the accused for the first blow given by him under the said circumstances on the hand of the deceased causing only a lacerate wound of 21/2" x 1/4" x 1/2" on the left wrist joint of the deceased. The deceased on receiving the said first blow did not go away from the courtyard, but stood up and then raised or whirled his crowbar, which was in his hand, and proceeded towards the accused in that manner. This attitude of the deceased must have very much enraged and agitated the accused and caused grave apprehension in his mind that he would be attacked and assaulted by the deceased with the crowbar in his hand. This attitude and conduct of the deceased must have caused a reasonable apprehension in the mind of the accused that death or grievous hurt would be caused to him if he did not repeal such an attack by applying reasonable force. At that point of time accused Krushna had not only the right of private defence of his property but also had the right of private defence of his person. The law of private defence does not postulate that the person having that right should better run a way for safety if he apprehends any attack from the other side. In the facts and circumstances of this case, the law entitled accused Krushna to defend himself and his property from the attack of the trespasser by using necessary force against the latter. Under the said circumstances accused Krushna gave the second blow on the neck of the deceased below the left ear lobe. This blow was given with the blunt side of the Katari. From the evidence on record it is difficult to say definitely that by the time this second blow was inflicted, the crowbar in the hand of the deceased had already been snatched a way by accused Sarada. This Injury was not sufficient or likely to cause the death of the deceased. That being so and considering the facts and circumstances under which the said blow was given one cannot hold accused Krushna guilty of any offence for giving the slid blow on the deceased as it can be said that he was under the circumstances, justified in giving that blow in exercise of his right of private defence of person and property. The prosecution evidence is consistent that on receiving the aforesaid second blow the deceased tell Gown on the ground. By that time the crowbar had already been snatched away from his hand by accused Sarada, and so the deceased was Unarmed when he fell down on the ground. When the deceased was thus lying on the ground accused Krushna dealt the third blow on the head of the deceased with the blunt end of the Katari and caused the fatal injury on the deceased. When the deceased was lying on the ground in that injured condition, accused Krushna certainly had no reason to apprehend any further attack from the deceased, much less an attack enabling the protection afforded u/s 100, Indian Penal Code. So this accused at that time was not justified in giving such a fatal blow on the head of the deceased. The right of private defence of property, which the accused till then had due to the continuing criminal trespass on his land by the deceased, certainly did not entitle the accused at that point of time to give the fatal blow on the head of the deceased, as the circumstances at that point of time do not come within any of the provisions of Section 103, Indian Penal Code. Thus conclusion is irresistible that this accused exceeded his right of private defence of property and person by dealing the third blow on the head of the deceased, and so has to suffer the penalty of law on that account. While assessing his guilt allowance has to be given for his feelings and mental condition at the time when he dealt the said blow. He certainly was there in a very perplexed and agitated mood due to the criminal trespass, and persistent and defiant acts of mischief committed by the deceased on the accused's land. He was also under apprehension of grave danger to his person due to the threatened attack on him by the deceased with his crowbar. At that point of time it would be difficult for a young man of 14, faced with such a situation, to modulate his ways .and conduct as a sane and composed man. He was also under apprehension of grave danger to his person due to the threatened attack on him by the deceased with his crowbar. At that point of time it would be difficult for a young man of 14, faced with such a situation, to modulate his ways .and conduct as a sane and composed man. So though the accused dealt the fatal blow on the head of the deceased, In the facts and circumstances of this case, he cannot be held guilty for the offence of murder, but can appropriately be convicted u/s 304, Part-I, Indian Penal Code. On the above considerations, we hold accused Krushna guilty only for an offence u/s 304, Part-I, Indian Penal Code. The Court below has also held him guilty and convicted him for the said offence, but the reasons adopted by the Court below in arriving at that conclusion are absolutely erroneous in law. So the conviction of accused Krushna u/s 304. Part-I, Indian Penal Code is upheld on reasons different from those adopted by the Court below on this aspect. 12. It is now to be seen if the other two accused persons or any of them is liable to be convicted for the charge framed against them or for any other offence. It has been elicited from p w. 7 in cross-examination that when accused Krushna and the deceased were quarreling with each other and the deceased with the crowbar raised in his hand was proceeding towards accused Krushna who was receding backward, the persons standing nearby and accused Girish and his mother accused Sarada shouted at the accused and the deceased not to quarrel with each other. From their statement, it is evident that accused Girish and accused Sarada desired and intended that the quarrel between the deceased and accused Krushna should stop. Thus it cannot be said that Girish and Sarada shared the intention of accused Krushna in that occurrence. Moreover, P.W. 5 has categorically stated that when the deceased and accused Krushna were quarreling with each other each raising his weapons in his hand, accused Sarada was at a distance of about 5 to 7 cubits from them. P.W. 6 has stated that accused Sarada came out of her house and snatched away the crowbar from the deceased and then went away to her house with the crowbar in hand. P.W. 6 has stated that accused Sarada came out of her house and snatched away the crowbar from the deceased and then went away to her house with the crowbar in hand. On the eye witnesses version it is not established beyond reasonable doubt that accused Sarada and Girish came near the deceased and accused Krushna at that time only to aid and assist accused Krushna to assault the deceased. Rather considering their evidence on the whole it appears reasonable to say that accused Girish, the 12 year-old brother of accused Krushna, came and embraced the deceased from his back side and accused Sarada snatched away the crowbar from the hand of the deceased so that the deceased who was physically stronger than accused Krushna (a boy of 14) would not be able to inflict any grievous or fatal blow on Krushna. On a careful perusal of the evidence on record, we are satisfied that these two accused persons cannot be held guilty either constructively for the act committed by accused Krushna or individually for any other offence. Thus their acquittal in this case is well founded. The learned Counsel for the Appellant could not show any convincing ground on which these two accused persons can be held guilty for any offence whatsoever. 13. On the above considerations, we hold that the conviction of accused Krushna u/s 304 Part-I. Indian Penal Code and the order of acquittal passed in favour of the other two accused persons in this case are well-founded and cannot be interfered within any manner. Thus there is no merit in this appeal and it is accordingly dismissed. N.K. Das, J. I agree. Appeal dismissed. Final Result : Dismissed