JUDGMENT 1. - This is an appeal filed by Banna and Bhanwar Lal against the judgment of the Additional Sessions Judge, Ajmer, dated October 4, 1975, by which Banna appellant was convicted under section 304, Part II and under s. 325, IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/, and in default of payment of fine to further suffer rigorous imprisonment for three months on the first count and on the second to undergo rigorous imprisonment for one year and to pay a a fine of Rs. 500/- and in default of payment of fine to further suffer rigorous imprisonment for three months. Both the substantive sentences were, however, ordered to run concurrently. By this very judgment Bhanwar Lal was convicted under s. 325 read with s. 34, IPC and sentenced to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 300/-. and in default of payment of fine to further suffer rigorous imprisonment for two months. 2. The incident that led to the prosecution of the two appellants may be briefly stated as follows:- On January 16, 1975, at about 1 PM Phool Chard was working in his field. Magna and Hazari also were present in their fields. As soon as Phool Chand came out of his field, Magna and Hazari saw him and asked him to come to their field for smoking Biri Phool Chand, thereupon, went to the field of Magna and Hazari. Meantime Banna and Bhanwar Lal appellants also came there. Banna had a lathi in his hand while Bhanwar Lal was empty handed. The two appellants began to abuse Magna and Hazari in a foul manner. After a short while, Banna appellant inflicted a blow on the hand of Hazari as a lesult of which his hand was fractured. Hazari raised an outcry. Magna came to his rescue, but Bhanwar Lal pulled his turban as a result of which Magna fell down When Magna tried to get up, Banna inflicted a lathi blow on his head, as a result of which Magna again fell down and blood began to blow from his head. Thereafter, Narayan came running to the place of occurrence on hearing the cries of Hazrri Narayan immediately intervened and the two appellants ran away from there. After a short while, Mishri also came there. Thereafter, Narayan came running to the place of occurrence on hearing the cries of Hazrri Narayan immediately intervened and the two appellants ran away from there. After a short while, Mishri also came there. Hazari and Magna were removed to Beawar Hospital by Narayan and Mishri. Magna was admitted in the hospital, wherein he died later on. Before his death he was medically examined by Dr. B.B. Sharma, who detected pain full swelling on the lower half of his right forearm. This injury was X-rayed and, upon X-ray examination, it was found grievous. Magna, later on, died on January 19, 1975, in the hospital. 3. A fir.t information report was lodged with the police by Phool Chand the very day at about 4 PM. In the first instance, the police registered a criminal case under s- 325 read with s. 34, IPC but. later on when Magna died in the hospital, the case was registered under Sections 302, 447 and 325 read with s. 34, IPC and the usual investigation was taken-up by the police. Surerdra Kumar, Station House Officer Beawer Sadar, arrested Bhanwar Lal and Bana vide arrest memos Exs. P.21 and P.22 respectively. After his arrest Banna, while in police custody, gave the Station House Officer an information that, he had concealed one lathi in the house of Bhanwar Lal and he was prepared to get it recovered at his instance. The Station House Officer recorded the above information in a memo Ex P. 23 and, later on, recovered the lathi from the house of Bhanwar Lal at the instance of Banna. The Station House Officer inspected the site, prepared a site-inspection memo and site plan also He seized from the spot an axe belonging to Bhanwar Lal and a turban of the deceased. After the death of Magna, he got postmortem examination performed over his dead body by Dr. B.B. Sharma. Upon his postmortem examination the Doctor found a sutured wound on the left parietal occipital region of the deceased. On opening the suture, a lacerated wound 2" x 1/4" x scalp deep was detected. Upon opening the scalp, the Doctor found the following:- 1. Scalp, skull and vertebra 2. Membrances 3. Brain and spinal cord. 1. Linear fracture of the left parietal bone 21/2" in length. Congested, Sub-dural haematoma present in the region of the fractured bones Brain matter congested and covered with clotted blood, 2. Upon opening the scalp, the Doctor found the following:- 1. Scalp, skull and vertebra 2. Membrances 3. Brain and spinal cord. 1. Linear fracture of the left parietal bone 21/2" in length. Congested, Sub-dural haematoma present in the region of the fractured bones Brain matter congested and covered with clotted blood, 2. Linear fracture 4" in length, of the parieto-temporal bones, running from the left parietal bone to the left temporal bone forming an angle. 3. Extra-dural haematoma present under the fractured bones. In the opinion of the Doctor, the deceased died due to shock and haemorrhage caused by the fracture of the cranial bones. The injuries were anti-mortem and the fracture of the cranial bone was sufficient in the ordinary course of nature to cause the death of the deceased. The Station House Officer received the postmortem report and collected other necessary evidence in the ease. Upon completion of the investigation, he filed a charge-sheet against both the appellants under s. 302, 325 and 447/34, IPC in the court of the Munsiff and Judicial Magistrate, Beawar. The learned Magistrate, upon finding a primafacie case exclusively triable by the court of Session, committed both the appellants to the court of the Sessions Judge, Ajmer, for trial, for the aforesaid offences. It appears that the Sessions Judge. Ajmer, transferred the case to the court of the Additional Sessions Judge, Ajmer, for trial in accordance with law The learned Additional Sessions Judge tried both the appellants for the aforesaid offences and found Banna guilty u/s 304 Part II, IPC and 325, IPC Bhanwar Lal was, however held guilty of the offence u/s 325/34, IPC. The learned Additional Sessions Judge, therefore, convicted and sentenced both the appellants, in the manner indicated above. 4. I have carefully perused the record and heard Mr. N.C. Chaudhary for the appellants and Mr. RP Singh, Public prosecutor for the State Firstly, it has been contended on behalf of the appellants that the field in which the incident took place was in the cultivatory possession of Bhanwar Lal appellant who had sown Rabi crops therein which were standing in the field all the relevant time. It was farther urged that it transpires from the prosecution evidence itself that Magna and Hazari were aggressors and they administered beating to both the appellants with kicks after throwing them on the ground. It was farther urged that it transpires from the prosecution evidence itself that Magna and Hazari were aggressors and they administered beating to both the appellants with kicks after throwing them on the ground. The learned counsel for the appellants further submitted that, in these circumstances, the appellants acted in exercise of their right of private defence of property and person and were justified in using force to repel the attack made on them by Magna and Hazari. 5. The learned Public Prosecutor, on the other hand, contended that the field in which the incident took place was never in possession of Bhanwar Lal appellant as is evident from the statement of the Patwari of that area. According to him, the land was a Sawai Chak and it had not been allotted to anyone. Hence, no question of accrual of any right of private defence of person or property to the appellants could legitimately arise so as to justify their acts in causing death of Manga and in causing grievous hurt to Hazari. 6. I have given my anxious consideration to the rival contention. At the outset, I may observe that from a bare look into the site plan Ex.P.19 proved by the statement of Surendra Kumar, Station House Officer, it is obvious that the incident took place in a field comprised in Khasra No. 1856. According to the statement of Chagan Lal Patwari, P.W.6, Khasra No. 1856 is shown as Government land in the revenue records which has not been allotted to any person. Chagan Lal further stated that in Samvat year 2030, this land was cultivated by Sultan and others. Thereafter Gobind, Nathu and others were cultivators thereof and thereafter Mishri also cultivated it. In his cross-examination Chagan Lal admitted that he saw green plants in the land when he had gone there after the occurrence. He could not say who had cultivated the Rabi crops therein at tie relevant time. Hence, from the statement of Chagan Lal Patwari, it cannot be gathered that Khasra No. 1856 was in cultivatory possession of the appellants or of Hazari, injured, or Magna deceased, at the relevant date and time. The learned counsel for the appellants, however, invited my attention to the statement of Phool Chand, P.W. 1 and contended on its strength that Bhanwar Lal appellant had cultivated the land in which the incident took place. The learned counsel for the appellants, however, invited my attention to the statement of Phool Chand, P.W. 1 and contended on its strength that Bhanwar Lal appellant had cultivated the land in which the incident took place. The above contention has no force, because Phool Chand. P.W. 1, stated in his cross-examination that the fields of Bhanwar Lal appellant and Magna deceased were contiguous to each other having no boundary all it between and that the field in which the incident took place was cultivated by Bhanwar Lal appellant prior to Kharif season. On the basis of the above statement of Phool Chand it can not be safely held that at the time and date of the incident or immediately prior thereto the field in which the incident took place was in cultivatory possession of Bhanwarlal appellant. The reason is that the incident took place on January 16, 1975 i.e. during the Rabi season and Pool Chand PW 1 stated that the field was cultivated by Bhanwar Lal appellant prior to Kharif season of that year, which clearly shows that during the Rabi season the field was not cultivated by Bhanwar Lal appellant. Consequently, I am unable to hold that the field in which the I occurrence took place, was in cultivatory possession of Bhanwar Lal appellant on the relevant date and time and that Hazari injured, and Magna, deceased, I committed trespass on it for the purpose of ousting Bhanwar Lal appellant from possession thereof. Accordingly, it is very difficult to hold that any right of private defence of property accrued to the appellants and they were justified in beating Magna and Hazari for the sake of protecting their Property. 7. The appellants, no doubt, pleaded that they ware first attacked by Magna and Hazari who had a lathi and an axe with them respectively. In support of their above pica, they produced Nuru DW 1 and Jethu DW 2 in the trial court. Both these witnesses stated at the trial that Hazari aimed a blow at Bhanwar Lal with his axe but he warded of the blow by raising his hand. Hazari again tried to inflict two blows on the body of Bhanwar Lal but the latter warded of them also. Magna also used his lathi, but it was snatched by Anna. Both these witnesses stated at the trial that Hazari aimed a blow at Bhanwar Lal with his axe but he warded of the blow by raising his hand. Hazari again tried to inflict two blows on the body of Bhanwar Lal but the latter warded of them also. Magna also used his lathi, but it was snatched by Anna. Magna, thereupon, picked up an axe and tried to inflict a blow with it on the body of Bhanwar Lal. Banna appellant, thereupon, inflicted a lathi blow on his body.I have carefully gone through the evidence of these defence witnesses, viz., Nuru and Jethu and found it entirely un-trust worth by. Jethu admitted in his cross-examination that Bhanwar Lal had received, an injury, i e. swelling as a result of the blow inflicted on his body by Hazari. But, curiously enough, there is no medical evidence to show that in fact Bhanwar Lal had sustained an injury on his person. Similarly Nuru admitted in his cross-examination that he did net know whether Hazari had received any injury on bis body or not, because he was far off from the place of occurrence. Again, he could not say who had earned injury to Magna or to Bhanwar Lal appellant. No reliance can be placed the evidence of such a witness, who claimed to have seen the occurrence, but could not give out material details in respect thereof when cross-examined in the trial court. The trial court also disbelieved the defence version for reasons with which fully agree and which need not reproduce for fear of repletion, Hence the contention of the learned counsel for the appellants that the injuries were caused to the bodies of Magna and Hazari by the appellants in exercise of the right of private defence of person and property is wholly untenable. 8. Mr. N.C. Chaudhary, learned counsel for the appellants, further urged that the prosecution has miserably failed to bring guilt home to Bhanwar Lal under section 325 read with section 34, IPC and, consequently, the trial Judge was not justified in recording his conviction for the aforesaid offence and in sentencing him to undergo rigorous imprisonment for 9 months and to pay a fine of Rs. 300/-. The above contention has some force, became the prosecution could not make out a case against this appellant beyond the pale of reasonable doubt. 300/-. The above contention has some force, became the prosecution could not make out a case against this appellant beyond the pale of reasonable doubt. Phool Chand PW 1 stated in his deposition that Bhanwar Lal had no weapon in his hand when he came to the filed of Magna and Hazari along with Banna appellant. He further stated that when Banna struck a lathi blow on the hand of Hazari and the later raised or outcry, Magna came to his rescue but Bhanwar Lal pull :d the turban of Magna, as a result of which he fell down and thereafter was beaten by Banna with a lathi, which fell on his head. Hence, from the evidence of Phool Chand it is obvious that Bhanwar Lal did not take part in beating Magna and Hazari but merely pulled the turban of Magna when the latter ran to the rescue of Hazari. Phool Chand was cross-examined by the learned counsel for the appellants in the trial court and was confronted with his police statement Ex. P. 1 wherein he did not state this material fact of pulling of the turban by Bhanwar Lal from the head of Magna. When confronted with his previous statement Ex. P. I, which he gave before the police, Phool Chand could not afford any reasonable explanation for omission to state this material fact. He merely stated that he had told the police that Bhanwar Lal pulled the turban of Magna and the latter fell down on account of that pull. Hence, the statement of Phool Chand does not prove the complicity of Bhanwar Lal appellant in the commission of the crime Narayan PW 2 gave an altogether a different version by stating that when Banna struck a lathi blow on the hand of Hazari, Banna came to the latters rescue, but Bhanwar Lal appellant raised his axe to beat him, but Magna warded of the blew and his tubran fell down. Hazari PW 11 did not corroborate the evidence of Phool Chand and Narayan so far as it relates to the part played by Bhanwar Lal appellant in the commission of the crime. Hazari PW 11 did not corroborate the evidence of Phool Chand and Narayan so far as it relates to the part played by Bhanwar Lal appellant in the commission of the crime. He gave out a third version by stating in his deposition that when Banna struck a lathi blow on his band, he raised an sat down Then Bhanwar Lal made an attempt to strike a blow on his body with an axe, but the blow missed the target. Hazari did not say in this deposition that Bhanwar Lal had raised his axe to inflict a blow on the body of Magna, as stated by Narayan, PW 2, Mishri, PW 3 did not claim to have eye-witnessed the occurrence. He merely stated in his deposition that he had seen Bhanwar Lal and Banna running away having an axe and a lathi respectively in their hands. In his cross-examination he however, admitted that be had seen the two appellants running from a distance of one furlong. The evidence of Mishri is not entitled to any weight, because he did not see the occurrence and because chances of error in identifying the two appellants from a distance of one furlong could not altogether be ruled out, specially when the two appellants were alleged to have been running at the time when they eve seen by Mishri from the back side. In this manner, the evidence of Phool Chand Narayan and Hazari eye-witnesses is contradictory to each other so far as it relates to the role played by Bhanwarlal appellant in the commission of the crime. Consequently, I have no hesitation in holding that the prosecution could not succeed in proving the guilt of Bhanwar Lal appellant beyond reasonable doubt. 9. The case of Banna appellant, however, stands on a different footing.All the eye-witnesses to the actual occurrence, viz., Phool Chand PW1, Narayan PW 2 and Hazari PW 11 have definitely stated in their depositions at the trial that Banna had a lathi in his hand when he came to the place of occurrence and he. after hurling abuses at Hazari and Magna, inflicted a lathi below on the hand of Hazari as a result of which his hand was fractured. after hurling abuses at Hazari and Magna, inflicted a lathi below on the hand of Hazari as a result of which his hand was fractured. Hazari raised an outcry on hearing which Magna ran to his rescue but Banna inflicted a lathi blow on Magnas head as a result of which he fell down and his head injury began to bleed profusely. Phool Chand, Narayan and Hazari were cross examined by the learned counsel for Banna in the trial court but nothing could be elicited from their cross-examination which may tend to destroy the value of their evidence or to affect its credibility. Consequently, upon careful review of their evidence I am of the opinion that the trial Judge committed no error in placing reliance upon their testimony which, upon close and careful scrutiny, are found entirely trust worthy and free from infirmities and which stand corroborated by the evidence of Dr. B.B. Sharma as to the presence of injuries on the hand of Hazari and head of Magna. Banna appellant gave one blow on the head of the deceased with an ordinary lathi and as the assault was an outcome of a sudden quarrel between the two, the trial court rightly held that Banna appellant must have known that he was likely to cause death of the deceased by striking a blow on the vital part of the body, i.e his head with a lathi. Banna appellant was rightly further held responsible for causing grievous hurt to the right forearm of Hazari with a lathi. The skiagram of Hazaris right forearm showed fracture of ulna and radius in the lower one third region, as is evident from the statements of Dr. B.B. Sharma and Abdul Mazid Quershi, Radiologist. Consequently. I do not find any substantial grounds for interference with the findings of the trial Judge as to the guilt of Banna appellant u/s 304 Part II, and s. 325, IPC. The sentences awarded to him by the trial court on both the aforesaid counts are not severed in the circumstances of the case, especially when both the substantive sentences have been ordered to run concurrently. 10. The result of the above discussion is that I accept the appeal of Bhanwar Lal appellant, set aside his conviction and sentences u/s 325 read with s 34, IPC and acquit him of the said offences. 10. The result of the above discussion is that I accept the appeal of Bhanwar Lal appellant, set aside his conviction and sentences u/s 325 read with s 34, IPC and acquit him of the said offences. Bhanwar Lal appellant is on bail and he need not surrender to his bail bonds, which are hereby cancelled. The appeal filed by Banna appellant, however, fails and is hereby dismissed. Banna appellant is on bail. He is not present today in the court. He shall surrender to his bail bonds. The Chief Judicial Magistrate, Ajmer, is directed to get Banna appellant arrested and sent to jail for serving out the sentences awarded to him by the trial Judge and confirmed by this Court.Appeals decided accordingly. *******