JUDGMENT - M.N. CHANDURKAR, J.:---The learned Additional Sessions Judge, Parbhani in Sessions Case No. 116 of 1974, on his file passed an order acquitting accused Nos. 1 to 3, 5, 7 and 8 of all the charges levelled against them and similarly he acquitted Accused Nos. 4 and 6 also of the rest of charges, but convicted these two accused under section 323 of the Indian Penal Code for voluntarily causing simple hurt to the child by name Muktabai and he directed each of those accused to undergo R.I. for six months and to pay a fine of Rs. 200/- in default to undergo R.I. for two months more. It may be stated that Accused Nos. 4 and 6 were acquitted of the charges under section 302 of the Indian Penal Code framed against them and were convicted only under section 3 23 of the Indian Penal Code and that is why being aggrieved by the order of acquittal so far as the offence under section 302 of the Indian Penal Code is concerned, the state has filed the above criminal appeal. 2. The facts in this appeal lie within a narrow compass and in order to decide this appeal and to properly appreciate the facts of this appeal, it is necessary to state a few facts on account of which the Sessions Case arose before the trial Court. The entire prosecution story is as follows: 3. The dispute relates to Survey No. 88 which is known as Mathyacho Shot at Jamrun Village in Parbhani District. Mahadu and Amruta are two brothers and according to the prosecution, this land was the ancestral property of these brothers and it was in their possession. The prosecution alleged that on 26-5-1974, these two brothers along with another family member had been to the land for carrying summer agricultural operations and were taking break-fast in the land at the material time. All the accused are relate to each other and according to the prosecution, all these 8 accused entered the land at the material time, when accused Nos. 1, 4 and 6 were possessing axes, whereas others were possessing sticks. All the accused are relate to each other and according to the prosecution, all these 8 accused entered the land at the material time, when accused Nos. 1, 4 and 6 were possessing axes, whereas others were possessing sticks. The prosecution alleged that as soon as the accused entered the land, there was an exchange of hot words between Mahadu on one hand and accused No. 1 Babarao on the other hand, wherein accused No. 1 instigated to beat the members of the opposite party. Thereafter, the person from the party of the accused started assaulting Mahadu and his family members including Chandrabhaga, wife of Amruta. Chandrabhaga was carrying on her waist Muktabai at that time. After the assault started, Chandrabhaga and Narmada, wife of Mahadu intervened and at that time Muktabai was on the waist of her mother Chandrabhaga. According to the prosecution, accused Nos. 4 and 6 assaulted the child Mukatabai with the result that the said child fell down and died. After the assault was completed, all the accused left the land and thereafter the information was given to the Police Station and after the completion of the investigation, a charge-sheet was filed against all the eight accused in the committing Court. The learned Magistrate committed all the accused to the Court of session to stand their trial for different offences. 4. In the Sessions Court the charges were framed against all the accused under sections 147 and 148 of the Indian Penal Code. The charges were framed against accused Nos. 4 and 6 under section 302 of the Indian Penal Code for committing murder of Muktabai and similar charge was framed against rest of the accused for the murder of Muktabai by virtue of the provisions of section 149 of the Indian Penal Code. The charge was also framed against all the accused under section 323 of the voluntarily causing hurt to Narmada and similar charge was also framed against all the accused under section 323 read with section 149 of the Indian Penal Code. The charge was framed against all the accused under section 325 of the Indian Penal Code for voluntarily causing grievous hurt to Vithoba Parsu and Mahadu Limba and in this respect also the charge was framed against all the accused under section 325 read with section 149 of the Indian Penal Code. The charge was framed against all the accused under section 325 of the Indian Penal Code for voluntarily causing grievous hurt to Vithoba Parsu and Mahadu Limba and in this respect also the charge was framed against all the accused under section 325 read with section 149 of the Indian Penal Code. All the accused pleaded not guilty and claimed to be tried. Their defence was of denial. It was their contention that the land was actually in their possession and Mahadu and Amruta and his family members tried to forcibly dispossess them and that Mahadu and his party were aggressors and that they started assaulting the accused resulting in a scuffle in which several accused sustained injuries and in exercise of right to private defence of person and property the accused were required to retaliate the attack, and in the scuffle Mukta was hurt resulting in her death. They further contended that accused Nos. 2, 7 and 8 were not present at the scheme of offence at the material time. 5. Several witnesses were examined by the prosecution in the trial Court and voluminous documentary and oral evidence was produced in the trial Court. The accused also examined two witnesses including Balasaheb Pande, Revenue Inspector who drew the sketch of the scene of offence at the instance of the police during the investigation. 6. After considering the entire evidence on record the learned Sessions Judge came to the conclusion that there was voluminous evidence to hold that the accused were actually in possession of the disputed land on the date of the incident. It was the defence of the accused that this land was purchased by them from Mahadu and Amruta in the year 1956 itself. The learned Sessions Judge further held that the prosecution failed to prove that accused Nos. 2, 7 and 8 were present there. The learned Sessions Judge also held that the complainant and his party were aggressors, inasmuch as accused Nos. 1, 3 to 6 had several injuries on their bodies. He held further that the accused had right of private defence both in respect of persons and property. He also held that in this scuffle Chandrabhaga accidentally intervened and at that time the deceased Muktabai was on her waist and in this scuffle the child Muktabai was hurt resulting in her death. He held further that the accused had right of private defence both in respect of persons and property. He also held that in this scuffle Chandrabhaga accidentally intervened and at that time the deceased Muktabai was on her waist and in this scuffle the child Muktabai was hurt resulting in her death. The learned Sessions Judge, therefore, placed a reliance on the decision of this Court in (Chaturnath v. Emperor)1, A.I.R. 1920 Bombay 224 and relying upon the ratio of this ruling the learned Sessions Judge held that accused Nos. 4 and 6 assaulted the child and they were liable to be convicted only for the offence under section 323 of the Indian Penal Code. Consequently, he convicted these two accused only under this section and directed each of them to undergo imprisonment and to pay a fine as stated earlier in our judgment, he acquitted accused Nos. 4 and 6 of the offence under section 302 of the Indian Penal Code and being aggrieved by this order of acquittal so far as section 302 of the Indian Penal Code is concerned against accused Nos. 4 to 6 the state has filed this criminal appeal. No appeal is filed by the convicted persons against their sentence. Hence the short question for our discussion is whether the prosecution is able to prove that accused Nos. 4 to 6 can be convicted for offence under section 302 of the Indian Penal Code. Mr. Barday, the learned Public Prosecutor, appearing on behalf of the State was unable to prove the claim that Mahadu and Amruta were in possession of the land. The finding of the learned Sessions Judge that accused were in possession of the disputed land at the material time is not and cannot be assailed. There is voluminous evidence on record and even there are admissions of the prosecution witnesses also to hold that the accused were in possession of the disputed land on that date. Similarly, accused Nos. 1 and 3 to 6 had injuries on their persons and these injuries were sustained by them at the material time in this incident itself. When the accused were in possession of the land, it is apparent that Mahadu and Amruta and his party were aggressors and they caused injuries to these accused. It is, therefore, apparent that the accused had right of private defence both in respect of persons and property. When the accused were in possession of the land, it is apparent that Mahadu and Amruta and his party were aggressors and they caused injuries to these accused. It is, therefore, apparent that the accused had right of private defence both in respect of persons and property. In this background it cannot be said that the accused were the members of the unlawful assembly. It is also apparent that the accused had no common intention whatsoever to assault any of the prosecution witnesses. In the view of the trial Court both accused Nos. 4 and 6 gave blows which accidentally fell on the deceased Muktabai who was on the waist of her mother Chandrabhaga. The evidence on record clearly discloses that when Mahadu was being assaulted, his wife Narmada and his brothers wife Chandrabhaga all of a sudden intervened in the scuffle and at that time Muktabai who was on the waist of her mother Chandrabhaga sustained injuries. 7. On the post-mortem examination the Medical Officer Mr. Kamthikar found injuries on the deceased and there were six external injuries as follows : 1) Lacerated wound on the right parietal region ½" x ½" x ½". 2) Abrasion on the left thumb with bluish and blackish colouring ½" x ½". 3) Bruise with bluish and blackish on the left back 2" x ½". 4) Bruise with bluish and blackish on the lumber region 12" x ½". 5) On palpation there is a fracture of right parietal bone. 6) Haemotoma on the occupatile region. The Medical Officer Mr. Kamthikar further found that there were there internal injuries and they are as follows : 1) Haemotoma with blood clothed on the right parietal region of scalp. 2) Haemotoma on the left occupatile region. 3) Haemotoma on the right pariental bone extending towards occupatile bone. According to the Medical Officer, external injuries Nos. 1 and 5 are the same. He admitted further that internal Injury No. 2 corresponds to external injury No. 6 and they are the same injuries. He admitted that internal injury No. 3 corresponds to the external injury No. 1 and he admitted earlier that external Injuries Nos. 1 and 5 are one and the same. Rest of the three injuries which are bruises and abrasions are very minor injuries. They have no relation with the cause of death of Muktabai. Only most important injury is External injury No. 1. 1 and 5 are one and the same. Rest of the three injuries which are bruises and abrasions are very minor injuries. They have no relation with the cause of death of Muktabai. Only most important injury is External injury No. 1. According to the finding of the trial Court, accused Nos. 4 and 6 dealt blows on the deceased, but from the prosecution evidence it cannot be ascertained which of the accused gave blows to the deceased. The trial Court has not come to any positive conclusion that the fatal blow was given by any of the accused. It was not, therefore, possible to ascertain from the evidence on record as to which of these two accused gave fatal blow to the deceased. We have already pointed out that in this case there is no question of common intention to cause the death of the deceased and similarly there is no question arising under the category of offence of unlawful assembly and as to which of them is to be held liable to be convicted under section 302/149 of the Indian Penal Code in the instant case. We have already pointed out that there is no evidence on record whatsoever to hold as to who gave a fatal blow to the deceased resulting in the death of the deceased. Moreover, it is apparent that Chandrabhaga all of a sudden and accidentally intervened there for saving Mahadu and it is thus quite possible that the blow might have fall on the deceased accidentally. The accused were not intending or they had knowledge that the blows would fall on this child which was on the waist of her mother. Hence it is not possible to fasten liability for murder on any of the accused. We do not see any reason why we should interfere with the order of the trial Court in this respect. 8. Before concluding, it may be stated that Mr. V.N. Kamble, the learned Counsel appearing on behalf of those respondents tried to urge that even in the present circumstances the conviction of these two accused under section 323 of the Indian Penal Code is not proper. There is nothing in section 378 of the Criminal Procedure Code giving the accused such right to challenge their conviction in the appeal their acquittal. There is nothing in section 378 of the Criminal Procedure Code giving the accused such right to challenge their conviction in the appeal their acquittal. On the other hand, there is specific provision in section 377(3) of the Criminal Procedure Code enabling the accused to urge for quashing their conviction in case the State Government has moved for enhancement of the sentence. In the instant case, the State Government has not moved for enhancement of the sentence but it is the appeal against acquittal under section 302 of the Indian Penal Code. We do not think that Mr. Kamble is entitled to urge this point in this appeal. 9. The result is that there is no merit in this appeal and accordingly, it is dismissed. The bail bonds stand discharged and cancelled. Appeal dismissed. -----