JUDGMENT : ( 1. ) THIS is an appeal against the conviction and sentences recorded by the Sessions Judge, Vidisha in Sessions Trial No. 97 of 1977, dated 11-5-1978, convicting the appellants to undergo sentences of 7 years rigorous imprisonment under section 304 of the Indian Penal Code read with section 34 Indian Penal Code, 3 years rigorous imprisonment under section 326 Indian Penal Code read with section 34 Indian Penal Code, 2 years rigorous imprisonment under section 325 Indian Penal Code read with section 34 Indian Penal Code and 6 months rigorous imprisonment under section 323 Indian Penal Code read with section 34 Indian Penal Code, all sentences to run concurrently. ( 2. ) THE facts which are not disputed in this case are that on the day of incident Soma received injuries and he succumbed to them. Kallu, Buddha and their wives also received injuries in the incident. All the accused were arrested by the Police, thinking that they are responsible for the alleged incident. It is also admitted that accused Randhir Singh and Soudan Singh also received injuries. ( 3. ) IN short, the story put forward by the prosecution is that a plot each was allotted to Kallu, Buddha and Soma by the Government for construction of their houses. This allotment took place in 1977, but instead of constructing a house for residence, they used the land for cultivation and in 1977, they had sown the crop of Jwar and Maize. It is further said that at the time when the incident took place, the crop was standing. On the date of the incident, all the accused persons took their cattle with an intention to graze the cattle in the field which was sown by Kallu, Buddha and soma and in spite of protest, the cattle entered the field and damaged the crop. When accused persons were asked to desist from doing this, instead of accepting the request, accused persons gave them beating. Because of beating Soma died on the spot. As the incident was taking place, the lady members belonging to the families of Kallu and Soma tried to ward off the beating which they were receiving at the bands of the accused. But, the accused persons gave them beating also and they suffered injuries because of the beating given by the accused. ( 4. As the incident was taking place, the lady members belonging to the families of Kallu and Soma tried to ward off the beating which they were receiving at the bands of the accused. But, the accused persons gave them beating also and they suffered injuries because of the beating given by the accused. ( 4. ) THE matter was reported to the Police on 8-7-1977 at about 5-30 in the evening in Police Station Vidisha. The dead-body of Soma was sent for post-mortem examination and for noting down the injuries he bad received, to the hospital at Vidisha. Kallu, Buddha and female members of their families, who received injuries in the incident, were also sent for medical examination. Dr. Rai, on 9-7-1977 conducted the post-mortem examination on the dead-body of Soma and he found the following injuries : 1. Incised wound left side of forehead oblique, 1 inch above left eye. 2. Lacerated wound left elbow back 2"xl"x 1/2" horizontal. Olcrenon process fractured compound. 3. Lacerated wound left leg 1" x 1" x1/2", 4 inch above the left ankle joint, longitudinal. 4. Fractured tibia corresponding the injury No. 3. 5. Swelling left hand dorsum. 6. Contusion 4" x 5" on the 8th, 9th ribs left side horizontal 2" below the nipple and 4" away from the mid line of the front aspect. 7. Lacerated wound right leg 11/2 x 1" X1/2" away from the right ankle joint. Fracture of tibia. In his opinion, all the injuries were ante mortem and injury No. 1 was inflicted with a sharp edged weapon. Somas death was attributed to the injury on his head and also to excessive bleeding because of other injuries on the body. Excessive pain was also attributed by the Doctor as one of the reasons for Somas death. The death was homicidal and not accidental. The same Doctor, on 8-7-1977 examined the injuries on the body of Pyaribai, ramkobai, Heerabai and Buddha. Pyaribai had following injuries on her body. 1. Contusion 2"x1" longitudinal left forearm dorsal aspect 3" above the left wrist joint. Fracture radius lower end. 2. Contusion on the top of right shoulder 1"x I". 3. Contusion 1/2" x 1/2" right parietal region of scalp. On the body of Ramkobai there were two injuries-one contusion and some pain on the back side of her buttock, but there was no injury present, nor any contusion was visible. Fracture radius lower end. 2. Contusion on the top of right shoulder 1"x I". 3. Contusion 1/2" x 1/2" right parietal region of scalp. On the body of Ramkobai there were two injuries-one contusion and some pain on the back side of her buttock, but there was no injury present, nor any contusion was visible. On the body of Heerabai, the Doctor found two injuries: swelling on the right hand and scratch on the little finger of the right hand. On the body of Buddha, there were about five injuries and injuries No. 1 and 2, were in the opinion of the doctor, grievous. The injuries on the body of Kallu were examined by Dr. Khare on 8-7-1977 and he has recorded about eight injuries in his injury report. Dr. Agrawal on 13-7-1977, took the X-ray of right hand of Kallu and has opined that there is a fracture of metacarpal bone. So also, there is fracture of radius and ulna of the right hand of Buddha. ( 5. ) AFTER arrest, the accused persons were charge-sheeted and they were committed to the Court of Sessions to stand trial for the offences mentioned in the beginning. ( 6. ) THE accused persons denied that they have committed any offence. Accused Badan Singh, Pratap Singh and Mangal Singh, denying the guilt, have taken the plea of alibi. ( 7. ) THE learned trial Court, first decided the point whether Somas death is homicidal or otherwise and it has correctly found by relying on cogent evidence, that death of Soma was homicidal. This fact was not challenged before me also. ( 8. ) THE next point which the trial Court has considered in para 18 of its judgment is whether the injuries on the body of Soma were sufficient to cause the death of Soma. After taking into consideration, the statement given by Dr. R. C. Rai (P. W. 7) and Dr. S. G. S. Khare (P. W. 11), the trial Court, in the end, has said that the injuries found on the body of Soma were not sufficient in the ordinary course of nature to cause death of Soma; nor the injuries were inflicted on Soma with an intention to kill him. R. C. Rai (P. W. 7) and Dr. S. G. S. Khare (P. W. 11), the trial Court, in the end, has said that the injuries found on the body of Soma were not sufficient in the ordinary course of nature to cause death of Soma; nor the injuries were inflicted on Soma with an intention to kill him. But as the result of the injuries of which Soma died, the alleged offence will not be covered under section 302 Indian Penal Code, but the trial Court held that they could be convicted for an offence committed under section 304 part II, Indian Penal Code. ( 9. ) THE next point he has considered is the effect of injuries on the body of Kallu. The learned trial Court came to the conclusion that there was fracture of bone of the little finger and as far as Kallu is concerned, the accused who is responsible for giving him a beating has committed an offence under section 325 Indian Penal Code. ( 10. ) AS to Buddha, the learned trial Court has held that there was fracture of radius and ulna of the right hand and they (fractures) have been caused by sharp edged weapon, but they are not sufficient in the ordinary course of nature to cause death, nor there was any intention to cause bis death. Therefore, the accused who is responsible for giving this injury to buddha has committed an offence under section 326 Indian Penal Code. ( 11. ) AS to female members of the family of the injured persons, namely, Mst. Ramkobai, Pyaribai and Heerabai, have only simple injuries on their bodies, but no fracture was found by the Doctor. Therefore, the persons who are responsible for beating the female members could be convicted under section 323 Indian Penal Code. ( 12. ) FOR deciding all these points, the learned trial Court has considered the evidence into two parts. One is the statement of the eye witnesses of the incident and the other is circumstantial evidence. As to eyewitnesses, the Court has considered the statements of Kallu (P. W. 8), buddha (P. W. 9), Heerabai (P. W. 10), Ramkobai (P. W. 12), Pyaribai (P. W. 13), Balkisan (P. W. 14), Nonit (P. W. 15) and Guttilal (P. W. 16 ). ( 13. ) P. Ws. Kallu, Heerabai, Ramkobai and Pyaribai have suffered injuries. As to eyewitnesses, the Court has considered the statements of Kallu (P. W. 8), buddha (P. W. 9), Heerabai (P. W. 10), Ramkobai (P. W. 12), Pyaribai (P. W. 13), Balkisan (P. W. 14), Nonit (P. W. 15) and Guttilal (P. W. 16 ). ( 13. ) P. Ws. Kallu, Heerabai, Ramkobai and Pyaribai have suffered injuries. Therefore, the trial Court has correctly held that they were present and were eye-witnesses of the incident. Witness Buddha was not examined by the police at the time of investigation. He was one of the material witnesses for prosecution. But, as he was not examined under section 161, criminal Procedure Code therefore, the defence had no opportunity to test the veracity of the statement given by Buddha in the Court. As such, the learned trial Judge rejected the submission that the statement of the witnesses should be held to be not worthy of credence. I also feel that there is nothing illegal in the observations made by the learned Court regarding the statement of Buddha given in the Court and rejecting the submission made on behalf of the defence. ( 14. ) THE next point which the Court has found is that the incident took place on the field which was allotted to the complainant party by the government and on which the crop was standing. At the time of the incident, Soma, Kallu, Buddha had sown Chart (Fodder) and Mirch and that they were in actual possession of the land. This fact is also proved by khebanlal Patwari (P. W. 3 ). ( 15. ) FURTHER, the learned trial Court has found that the, incident took place at about 8:00 or 9:00 in the morning and accused persons were actually there for grazing their cattle. But, it also has found that accused persons purposefully drove their cattle in the field with an intention to damage the crop sown by the complainants. ( 15. ) FURTHER, the learned trial Court has found that the, incident took place at about 8:00 or 9:00 in the morning and accused persons were actually there for grazing their cattle. But, it also has found that accused persons purposefully drove their cattle in the field with an intention to damage the crop sown by the complainants. The five accused were armed with Farsa, katarna and other dangerous weapons and the rest of the accused were armed with Lohangi and lathi and all the accused persons gave beating to kallu, Buddha and Soma and when the female members of their family saw the beating given to Kallu, Buddha and Soma, they came on the spot and to save their male members, fell on the body of Kallu, Buddha and Soma and while female members were defenceless, all the accused gave a beating by lathi, lohangi, Farsa and Katarna to them. Soma died on the spot. Buddha became unconscious and rest of the members suffered injuries. On behalf of the prosecution, Balkisan (P. W. 14), Nonit (P. W. 15) and Guttilal (P. W. 16) were examined. It is said that they are also eye-witnesses. Balkisan (P. W. 14) and Guttilal (P. W. 16), in their statements, say that they saw the accused persons driving their cattle in the crop which was standing and as Soma tried to drive the cattle out, all the accused persons gave beating to Soma, Buddha, Kallu and their female members. Balkisan (P. W. 14) has stated that he saw the incident from his kheda and he was at a short distance from the place of incident. The crop was at a distance of 400 to 500 paces from the place where from he saw the incident. He has further stated in para 5 of his statement that he saw all the accused returning back after the incident, but he has not seen the actual beating which took place at the time of the incident. Accused Shankar Singh was coming from the side of the village; while Mangal Singh was just near the village. The distance of the place where Mangal Singh was standing was about eight steps from the place of incident. Mangal Singh was saying that please stop beating, otherwise somebody will die. Gorelal went away from the place before the incident. ( 16. The distance of the place where Mangal Singh was standing was about eight steps from the place of incident. Mangal Singh was saying that please stop beating, otherwise somebody will die. Gorelal went away from the place before the incident. ( 16. ) IN para 26 of the judgment, the statement of Nonit (P. W. 15) is considered. He has stated that 13 persons took part in beating. But, he could name only three persons who were responsible for taking part in the beating and they are Gyansingh, Mansingh and Sodansingh, but he has not named the rest of the persons. He had to admit when confronted with his statement given to police, that he has taken only the names of 3 or 4 accused persons and not the rest. The prosecution has not conducted an identification parade, and got identified the accused who took part in beating Nonit (P. W. 15 ). ( 17. ) THE other witness Guttilal (P. W. 16) has stated that he saw only seven accused persons on the spot and they were Gyan Singh, Munna, phulsingh, Randhir Singh, Makhan, Pratap Singh and Sodan Singh. In cross examination also, he has reiterated the same fact. If the statements of these two persons are taken together, I will have to hold that only Gyan singh, Munna and Sodan Singh were present when the alleged incident of beating took place. ( 18. ) THE next question, I will have to consider is whether they are responsible for any beating given to the members of the complainant party. In para 28 of the judgment, the Court has considered the evidence of Kallu, buddha, Heerabai, Pyaribai and Ramkobai. It has also considered that all these persons belong to one family and Nonit (P. W. 15) Balkisan (P. W. 14)and Guttilal (P. W. 16) belong to the same caste. But, that will not be sufficient to discard the evidence of these witnesses holding that they are partisan witnesses. The only measure to be applied in considering such evidence is to scrutinise it minutely and to see if there is any corroboration from the other evidence to support what they have stated in their statements. But, that will not be sufficient to discard the evidence of these witnesses holding that they are partisan witnesses. The only measure to be applied in considering such evidence is to scrutinise it minutely and to see if there is any corroboration from the other evidence to support what they have stated in their statements. I think, the caution mentioned in appreciating the evidence of these eyewitnesses by the learned trial Court is correct and legal and remembering the caution, he has held in para 34 of his judgment that accused Randhir Singh, makhan Singh and Pratap Singh are responsible for inflicting injuries on kallu, Buddha and others. Further, he has mentioned that in the same incident, accused Randhir Singh and Sodan Singh received injuries. The fact that Randhir Singh and Sodan Singh received injuries is amply proved by the statements of Heerabai (P. W. 10), Ramkobai (P. W. 12) and Pyaribai (P. W. 13 ). Further, he has found that the prosecution has not given any explanation regarding the injuries on these accused persons. Relying on the statement of Dr. Khare (P. W. 11), the learned trial Judge has observed that Randhir Singh had two injuries on his head and there was contusion on left hand and left leg. The injuries on the body of Randhir Singh were grievous. The Doctor also has examined Sodan Singh and has said that on his body, there were injuries on back, on head and on hand and they were inflicted by some hard and blunt object. He has also found that the injuries were grievous in nature. Further, the trial Court has found that if the prosecution has not explained the injuries found on the accused persons, that itself is not sufficient to hold that evidence produced by the prosecution is not worthy of credence. He has also found that the injuries were grievous in nature. Further, the trial Court has found that if the prosecution has not explained the injuries found on the accused persons, that itself is not sufficient to hold that evidence produced by the prosecution is not worthy of credence. I may say that if the injuries on the body of accused persons are not explained, the Supreme Court iu Lakshmi Singh v. State of Bihar, (AIR 1976 S C 2263.) has held that three things will follow and they are as under: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. Therefore, I am of the opinion that this will be an additional consideration to weigh the evidence given by the witnesses on behalf of the prosecution who are partisan witnesses. The learned trial Court has accepted the suggestion given by the prosecution evidence that the injuries on the body of the accused persons were received by them because the other accused had weapons in their hands and they were trying to beat without discrimination and while inflicting the injuries on the complainants, some of the members who were on the side of the accused also received injuries. But, I am not willing to accept this suggestion of the prosecution. Therefore, differing from the trial Court, I hold that no reasonable explanation has been given by the prosecution for the injuries which the Doctor found on the body of the accused persons. What is the effect of this, I will consider when I take into consideration the defence put forward by the accused persons. ( 19. ) THE learned counsel, appearing on behalf of the appellants submitted before me that the injuries inflicted on the complainants were inflicted because the accused persons wanted to defend their person and property. What is the effect of this, I will consider when I take into consideration the defence put forward by the accused persons. ( 19. ) THE learned counsel, appearing on behalf of the appellants submitted before me that the injuries inflicted on the complainants were inflicted because the accused persons wanted to defend their person and property. Furthermore, he submitted that the complainant party was the aggressor party and if it is held that they were the aggressors, then the accused persons were justified in defending their person and property, that is to say, their cattle. The learned counsel, with this defence in mind, further laid stress on the ruling of the Supreme Court in Laxmi Singhs case (supra) and submitted that if according to the above ruling, the prosecution has failed to prove the cause of injuries on accused persons, then the defence put forward by the accused persons should be accepted to be reasonable and the prosecution has not proved the genesis of the quarrel and consequently, he submitted that I should hold that the accused persons were not aggressors but it was the complainant party. ( 20. ) TO accept the submission of the learned counsel that the accused persons bad a right to defend their person and property, I will have to hold that the alleged incident did not occur in the field which was sown by Kallu, buddha and Soma, but on the contrary, it happened on a place where accused had a right to collect their cattle. I may mention here that the learned trial court, in para 41 of its judgment held that the seizure of the alleged weapons of offence cannot be connected with the incident because the weapons were not sent to the Serologist to find out whether they are stained with human blood. Therefore, he has discarded the recovery of the alleged weapons from the custody of the accused persons and I think, correctly. Therefore, the circumstance of recovery of alleged weapons will not amount to an incriminating circumstance against the appellants. ( 21. ) AS to the question whether the appellants were the members of the unlawful assembly, the learned trial Court has also found that the appellants had a right to collect their cattle where usually they used to collect before taking them for grazing to the jungle. ( 21. ) AS to the question whether the appellants were the members of the unlawful assembly, the learned trial Court has also found that the appellants had a right to collect their cattle where usually they used to collect before taking them for grazing to the jungle. Holding this, the trial Court has found that it cannot be held that the appellants constituted an unlawful assembly. But, he has convicted the appellants under section 304, Indian penal Code Part II, 326, Indian Penal Code, 325, Indian Penal Code 323, Indian Penal Code-with the aid of section 34, Indian Penal Code. But, to take the aid of section 34, the learned trial Court should have first found the meeting of minds of the appellants to give beating to the complainant party and then, they could have been convicted with the aid of section 34, Indian Penal Code. I do not find anything in the judgment to come to a conclusion that this aspect was considered by the learned trial court. ( 22. ) THE next point which I have to consider is whether the appellants had a right of private defence of their person and property and also to see whether they had any apprehension of receiving grievous injury at the hands of the complainant party. The learned trial Judge has said in para 43 of his judgment that the appellants have not taken this plea. Neither they have stated this defence in their statement under section 313, Criminal Procedure code. Therefore, the learned trial Court has not considered this plea, saying that there is no foundation laid by the appellants for considering their case, taking into consideration this plea. In my opinion, the reasoning of the learned trial regarding non availability plea of the right of private defence of person and property is not correct. The correct position is laid down by this Court in Ramchandra v. State of M. P. , (1971 J L J Note 114.), which is as under:-"the appellant Ramchandra was convicted under section 302, Indian penal Code. The contention of the appellant was that his conviction was bad in law as he had acted in the exercise of his right of self defence and had committed no offence. The contention of the appellant was that his conviction was bad in law as he had acted in the exercise of his right of self defence and had committed no offence. Held, It is now well settled that without specifically pleading to have acted in the exercise of right of self defence and even without himself examining any witness, an accused can avail of that plea by reference to the circumstances appearing in the prosecution evidence itself, that in order that the prosecution should succeed, the prosecution evidence must be such as conclusively negatives the plea of self defence. For even if such a plea is not positively established but one is left in doubt the accused is entitled to be acquitted on the ground that the prosecution has not proved its case beyond reasonable doubt, that it is the duty of the prosecution not to suppress any facts favourable to the accused and not to indulge in embellishments and additions with a view to depriving the accused of his right of self defence and the paramount duty of the court is to sift and scan the evidence carefully with a view to finding out the circumstances under which the accused had used the weapon. In such a case, the evidence of the witnesses who seem to have made decided attempts to give a distorted version of the incident with a view to making out that the accused was in the aggressive, cannot be safely acted upon by the Court, that it is also not necessary nor does the law require that the accused should wait till he receives a grievous injury for the purpose of exercising his right of private defence, that it is also not necessary for the accused to retreat, as is required in the English Law. He is entitled to stay his ground and face his assailant, that the Courts have to take a practical view of the circumstances from the standpoint of the accused and from that of a cool bystander, that the Courts have to make all reasonable allowance in favour of a person who in fear of his life or limb gives harder blows than appear necessary to a calm spectator watching called upon to consider it while being not only at a safe distance but also in an atmosphere quite different from the one in which the accused was found that once the situation has assumed a dangerous form, the accused called upon to face it is not expected to remain composed and unperturbed, that a detached reflection cannot be demanded in the presence of an uplifted knife. In the present case the Court after considering all the evidence of the case came to the conclusion that the accused had acted in the exercise of his right of self-defence. Victor alias Kalloo v. The State of M. P. , (1966 M P L J 877=1966 J L J 587.), relied on. " Therefore, from the evidence of the Prosecution, I will have to consider whether the appellants inflicted the alleged injuries on the complainant party in defending their person and property, and whether they have exceeded that right, and whether they were the aggressors as held by the trial Court. The best evidence to prove that the incident took place in the field on which crops were standing, would have been to give evidence regarding the damage suffered because of grazing of the cattle, but the spot map, which is Ex. P/3 and which is proved by the concerned Patwari Khebanlal (P. W. 3), in his statement has not said a word regarding the damage to the crop, nor he has shown the spot where the cattle damaged the crop by grazing. It would have given an indication as to whether the appellants party was aggressor or not and if it is held that the appellants were the aggressors as found by the trial Court, then, there would not have been any question of considering the right of private defence for the appellants. Therefore, I have stated that it would have been better if the damage to the crop had been indicated in ex. Therefore, I have stated that it would have been better if the damage to the crop had been indicated in ex. P /3 or in the statement of the Patwari. On the contrary, the statement of the Patwari (P. W 3) supports the story put forward by the appellants. He has stated in para 4 of his statement that if we proceed by the road shown in the map Ex. P/3, then we come to the agricultural fields belonging to makhan, Gyan Singh, Man Singh, Randhir Singh, Mangal, Gorelal, Kamar singh and Sodan Singh. All these persons are present in the Court as accused. This is the way by which the accused persons go to cultivate their fields and also carry their cattle. After going further by this way, there is Government land for grazing and in survey No. 452, where there is no construction of any residential house, the cattle belonging to the villagers collect and the alleged incidents have taken place, as admitted by the Patwari (P. W. 3) and shown in Ex. P/3, in Survey No. 452. If the cattle of the accused persons gathered in Survey No. 452 as is clear from the evidence and the statement given by the Patwari (P. W. 3), I am of the opinion that the finding of the Court below that the accused appellants were the aggressors cannot be accepted. The learned counsel for the appellants has submitted that actually the incident took place on the road while the appellants were driving the cattle towards the grazing field. But, the complainant party wanted to take advantage of the cattle standing on the road and also the appellants standing over there and in my opinion, the incident took place on the road which leads to the grazing ground and when the complainant party tried to drive away the cattle and the appellant, the incident occurred. Therefore, different from the learned trial Court, I am of the opinion that the story put forward by the appellants is worth accepting and if the story put forward by the appellants is accepted, then I will have to hold that because the complainant party gave them beating, they defended their person and property and in defending the person and property, Soma received injuries due to which his death occurred. Similarly, Kallu, Buddha and female members of their families received injuries. ( 23. Similarly, Kallu, Buddha and female members of their families received injuries. ( 23. ) AS to the private defence, I have already discussed the matter that it can be considered even though no specific plea is taken by the accused. The effect of taking into consideration the defence of person, I will have to hold that appellants were protected under section 100, Indian Penal Code and I hold that they have not used excessive force when there was apprehension of bodily injury as contemplated under the said section. The basic idea under section ICO, Indian Penal Code is that no innocent person should be convicted. That is to say, if a person has committed an offence in defending his person or property, instead of running away from the spot, the law has given him a right to defend his person or property or anyone in whom he is interested even though the danger to his life is facing him and if he acts bravely in warding off that apprehension instead of running away from the place of incident like a coward, the law presumes that be will not be held responsible for such an offence and, therefore, it is held by the Courts that such a person will be deemed to be an innocent person. That being the case, it is the duty of the Court to see whether taking into consideration the acts of the appellants in defending their person and property, whether they are innocent or not. If this duty is not imposed on the Court, then the result will be conviction and that will be against the basic principles of criminal jurisprudence. Therefore, the duty is imposed on the Courts while deciding the case is to see whether the action of the accused is protected under section 100 or not even though he has not taken a plea in his defence. Therefore, differing from the trial Court, I hold that the conviction of the appellants under section 304, Part II, Indian Penal Code read with section 34 Indian Penal Code cannot be maintained and they are acquitted of that charge and, therefore, sentences are set aside. Similarly, they are acquitted of the charge under section 326 Indian Penal Code read with section 34 Indian Penal Code and sentences awarded to them for that offence are also set aside. ( 24. Similarly, they are acquitted of the charge under section 326 Indian Penal Code read with section 34 Indian Penal Code and sentences awarded to them for that offence are also set aside. ( 24. ) THE question now arises is whether they can claim protection under section 100 Indian Penal Code for the conviction under section 323 indian Penal Code read with section 34 Indian Penal Code. For convicting them under section 323 Indian Penal Code read with section 34 Indian Penal code, the Court has considered the evidence of the female family members who suffered beating at the hands of the appellants when they tried to save their male members. A very ingenuous argument was put forward by the learned counsel for the appellants and that is to say that if the appellants are protected under section 100 Indian Penal Code for the alleged incident and conviction given by the trial Court for offences against Soma, Kallu and buddha are set aside under section 100, Indian Penal Code, then they are entitled for the same protection if female members of the families intervened and they also suffered injuries at their hands. Relying on this submission, it was argued that the protection given to them under section 100 Indian penal Code should also be extended in the case of offence under section 323 indian Penal Code read with sect ion 34 Indian Penal Code for causing injuries to female members of the families. I think, this submission cannot be accepted and for not accepting this submission, I will have to refer to section 100 Indian Penal Code first. Section 100 Indian Penal Code reads as under:- "100. I think, this submission cannot be accepted and for not accepting this submission, I will have to refer to section 100 Indian Penal Code first. Section 100 Indian Penal Code reads as under:- "100. When the right of private defence of the body extends to causing death.-The right of private defence of the body extends under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely-First-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; thirdly.-An assault with the intention of committing rape; fourthly-An assault with the intention of gratifying unnatural lust; fifthly.-An assault with the intention of kidnapping or abducting; sixthly.-An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. But there are certain restrictions imposed under this section and those restrictions are that there should be an apprehension of death or grievous hurt in the mind of the assailant when he is exercising the right given to him under section 100, Indian Penal Code. The second restriction is under section 80 indian Penal Code which says: "80. Accident in doing a lawful act.-Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution. " Therefore, if the appellants want to take benefit of section 100, Indian Penal code, they will have to prove the ingredients mentioned in section 80, Indian penal Code that when they gave beating to the female members belonging to the families of the complainant party, the act of inflicting injuries on them, was done by them without any criminal intention or knowledge or that they were doing a lawful act in a lawful manner by lawful means with proper care and caution. Further, they will have to prove, as I have stated above, that there was an apprehension in their minds that the lady members of the families of the complainant party would cause grievous injury or hurt to the appellants. But, after going through the evidence, I find nothing to support the ingenuous argument which was put forward by the learned counsel for the appellants. Therefore, I am of the opinion that the conviction of the appellants under section 323 Indian Penal Code read with section 34 Indian Penal Code cannot be maintained and I set it aside. But, they will be responsible individually for causing injuries to the female members of the complainant party. ( 25. ) HEERABAI (P. W. 10) has stated in her statement that while she was trying to save her husband, she was given beating by the appellants and because of the beating, she suffered injuries on her hand and her legs. She further says that Pyaribai and Ramkobai were also given beating by the appellants. The learned counsel has stated that she has not given the names of the persons who actually gave beating to her. But this submission cannot be accepted when I consider the evidence of all the three female members. Heerabai, in her statement, has taken the names of all the appellants. ( 26. ) RAMKOBAI (P. W. 12) also corroborates the evidence of Heerabai. ( 27. ) THEN remains Pyaribai (P. W. 13 ). Pyaribai also says in her statement that when the female members belonging to the complainant party tried to save them, they were given beating by the appellants and because of the beating, the three female members of the complainant party received injuries. ( 28. ) AS to injuries, the Doctor has said that they are simple. Therefore, in my opinion, the conviction of the appellants under section 323 indian Penal Code for causing injuries to the female members, I will have to uphold. Therefore, setting aside the conviction of the appellants under section|323 Indian Penal Code read with section 34 Indian Penal Code, by the learned trial Court, I will have to convict the appellants for their individual acts of causing simple injuries on the bodies of the female members of the complainant party. Therefore, the appellants are convicted under section 323 Indian Penal Code and sentenced to rigorous imprisonment for six months, each. ( 29. Therefore, the appellants are convicted under section 323 Indian Penal Code and sentenced to rigorous imprisonment for six months, each. ( 29. ) THE appellants were arrested in July, 1977 and they remained in jail for about ten months, after which they are on bail granted by this Court. This means that they have already served out the sentence of imprisonment imposed against them by the learned trial Court under section 323 Indian penal Code read with section 34 Indian Penal Code. ( 30. ) THE result, therefore, is that the appeal is party allowed. The conviction and sentence of the appellants are set aside and instead, the appellants are convicted under section 323 Indian Penal Code and sentenced to rigorous imprisonment for six months. As stated above, they have already served out the sentence. The appellants are on bail. Their bail bonds shall stand cancelled. Appeal partly allowed.