G.M LODHA, J. — These are two appeals by accused Manphool and Gauri Shankar Against the judgment of Sessions Judge, Shri Ganganagar in Sessions Case No. 169/73 by which Manphool has been convicted under section 302 I.P.C. and sentenced to imprisonment for life, Gauri Shankar has been convicted under sec. 323, I.P.C. and sentenced to six months simple imprisonment The other two accused Ramji Lal and Bhimraj were acquitted. 2. According to prosecution the report of the occurrence was first made by the accused Manphool on 25-10-72 at 11-00 A.M. against Harphool Singh deceased. Manphool alleged that at about 7 00 A.M. in the morning when he and his son Gauri Shankar had gone to the field cutting Gowar, after half an hour the deceased came armed with Gandasi He abused Manphool and started beating him. In that process one of big finger was injured. Manphool then snatched the Gandasi and Harpal Singh took out his pistol, Manphool delivered Kassi blows on the wrist of Harpal Singh and Gauri Shankar delivered lathi blows. 3. Upon this first information report the police sent a requisition for medical examination of Manphool. Dr. Gangaram D.W.I on examination of Manphool found that he sustained two incised wounds and there was swelling on the back of right wrist. 4. On the same day at about 2.00 P.M. Guru Deo PW. 8 lodged another report Ex. P. 9. It was alleged that in one RMS Canal area, in village, Gudia there was land measuring 38 Killas which was purchased by Guru Singh P. W. 4 from Shanti PW, 5 Guru Singh agreed to sell this land to his uncle Harpal Singh and executed an agreement of sale Ex. P 8 on 24-3-72. Nineteen killas of this land was cultivated by Harpal Singh and Guru Deo Singh. Regarding the remaining part of this land Manphool asserted his title and inspite of that they had sown Gowar Bajri It was further alleged that Manphool filed a case of Marpit against them and the same was found to be false. 5. Due to this ill will Manphool along with Gauri Shankar, Bhimraj and Ramji Lal came at 8-00 A.M. of this morning and appeared near the hut in the disputed land. They were cutting Gowar and when Harpal Singh went to prevent them from this action, Manphool gave a kassi blow on the head of Harpal Singh. 5. Due to this ill will Manphool along with Gauri Shankar, Bhimraj and Ramji Lal came at 8-00 A.M. of this morning and appeared near the hut in the disputed land. They were cutting Gowar and when Harpal Singh went to prevent them from this action, Manphool gave a kassi blow on the head of Harpal Singh. Harpal Singh fell down, and then Gauri Shankar and Bhimraj gave Kassi blows and Ramjilal gave lathi blows. On hearing the cries of Harpal Singh, Guru Deo Singh and Baldeo Singh ran for his help but Manphool threatened them by a revolver. Lal Singh PW 1 and Ajayab Singh PW, 2 also arrived on the scene and accused ran away. Harpal Singh was found dead. 6. On the above report a case under section 302 read with section 34 I.P.C. was registered and P.W. 10 S.H.O. Roshan Ali commenced investigation. 7. After preparation of the site plan Ex P. 2 description note Ex P.2-A, Panchayatnama Ex. P. 6 description note Ex. P.7 blood stained earth memo Ex P.3, recovery of safa and pair of shoes from the spot by memo Ex.P.5 the Investigating Officer sent the dead body for post mortem examination which was done on 26-10-72. 8. The accused were arrested and one pistol and three cartridges were recovered by memo Ex. P.11 in pursuance of information Ex. P. 20 of Manphool Kassias were also recovered from Manphool, Bhimraj and Gauri Shanker. A lathi was recovered from Ramjilal. 9. The investigation of the first case resulted in a finding that the report of Manphool Ex. P.24 was false and a final report was given. 10. In relation to the F.I.R. Ex. P.9 against Manphool and the above three accused, the police investigation resulted in filing of the challan for the offences under section 302 and 302 read with sec. 34 I.P.C. 11. During the trial the prosecution examined Lal Singh P.W.I, Ajayab Singh P.W. 2, Harpal Singh P.W. 3, Guru Singh P.W.4. Vyas Dube P.W. 5, Harnam Singh P.W. 6, Guru Dev Singh PW 8, Mst. Shanti P.W.9, Roshan Lal PW. 10 and statement of Dr. Gangaram recorded in the committing court was taken on record as PW.7. All the accused were examined and they denied the allegations against them. Manphool and Gauri Shanker admitted their presence. Vyas Dube P.W. 5, Harnam Singh P.W. 6, Guru Dev Singh PW 8, Mst. Shanti P.W.9, Roshan Lal PW. 10 and statement of Dr. Gangaram recorded in the committing court was taken on record as PW.7. All the accused were examined and they denied the allegations against them. Manphool and Gauri Shanker admitted their presence. Manphool stated that the land in dispute was under his cultivation and was owned by him. According to Manphool, the deceased along with his party wanted to forcibly cultivate and take possession of this land and when he resisted Harpal Singh struck him with Gandasi. In self defence he had caused some injuries to Harpal Singh. Accused Gauri Shankar son of Manphool in his statement as accused said that the injuries were caused to the deceased by his father in self defence and he did not cause any injury. The accused examined Dr. Gangaram D.W.I to prove the injuries sustained by accused Manphool. 12. The learned Sessions Judge on a thorough careful and thoughtful examination of the entire evidence came to the conclusion that the land in dispute was both owned and cultivated by accused Manphool. In support of this finding, he relied upon the documentary evidence consisting of revenue receipts and other revenue record proved by the statements of Vyas Dube, P.W. 5. He found that the story of the prosecution that the disputed land was sold by Guru Singh P. W. 4. to Harpal Singh was not correct. On a detailed discussion of the evidence of Mst. Shanti. P.W.9, Guru Singh P.W.4 and other witnesses produced to prove possession and cultivation of deceased the learned judge was convinced that instead of proving cultivation and possession of deceased, the prosecution evidence itself proves that on the disputed killas of land,possession was of Manphool on the date of the occurrence The theory that Guru Singh purchased the land from Mst. Shanti was held to be not proved and the document of agreement to sale alleged to be executed by Guru Singh in favour of Harpal Singh was held not only not proved but a document which inspires no confidence. The learned judge held it to be fictitious transaction in order to support the prosecution case. 13. Shanti was held to be not proved and the document of agreement to sale alleged to be executed by Guru Singh in favour of Harpal Singh was held not only not proved but a document which inspires no confidence. The learned judge held it to be fictitious transaction in order to support the prosecution case. 13. Having held so, the learned judge then examined the prosecution evidence regarding the occurrence and came to the conclusion that Ramji Lal and Bhimraj were not present at the time of the occurrence. 14. Having held so, the trial court then held that the participation of Manphool and Gauri Shanker is proved but the question is whether these two accused had right of private defence. 15. The trial court then examined the prosecution case and the evidence as a whole for the purposes of deciding whether the accused Manphool and Gauri Shanker were entitled to the right of private defence if so whether the same was exceeded. The learned judge was of the view that the injuries of Manphool were simple but it was the duty of the prosecution to have explained them but no such attempt was made. The learned judge also held that the report lodged by Guru Deo Singh was delayed and there was time available to the prosecution witnesses to embellish their story. 16. According to trial court the prosecution witnesses except Guru Deo Singh did not see as to who initiated the assault because they came after Harpal Singh had fallen on the ground. Regarding Guru Deo Singh P. W. 8 the trial court was of the view that he has taken an extra interest in the prosecution and his testimony does not inspire complete confidence. 17. Having held so, the trial court then visualized the occurrence and was of the opinion that Harpal Singh deceased who went to take possession from Manphool who was in possession, must have been resisted by the accused party. On this if Harpal Singh would have not used force by attacking Manphool there would have been no further occurrence. On the above premises the trial court concluded that the assault first came from the side of Harpal Singh who attacked the accused and Harpal Singh was then assaulted by the accused in exercise of private defence. 18. On this if Harpal Singh would have not used force by attacking Manphool there would have been no further occurrence. On the above premises the trial court concluded that the assault first came from the side of Harpal Singh who attacked the accused and Harpal Singh was then assaulted by the accused in exercise of private defence. 18. The trial court then considered the crucial and important question whether the accused exceeded right of private defence. After discussing the principles which are well settled in this branch of Law the learned Judge held that section 34 of the Indian Penal Code was applicable because undoubtedly the accused acted in the right of private defence both of property and person. However, it was necessary that where exercising the right of private defence the accused must have used only such force as is necessary for the purpose and he should stop using force as soon as the threat disappears. 19. The learned Judge then discussed the principles which are borne out from Sections 90, 100, 103 and 105 of the Indian Penal Code. He then referred to exception 2 of Section 302 1 P.C. which provides that culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceed the power given to him by law and causes the death of the person against whom he is exercising such right of defence without pre-meditation and without pre intention of doing more harm than is necessary for the purpose of his defence. 20. According to the trial court the injuries which were caused to the deceased were 33 in number and were spread on all parts of the body and the pattern of these injuries suggests that the accused certainly intended to do more harm than it was necessary to infliction for the purpose of defence. On the basis of this finding the learned trial Judge was of the view that since Manphool has admitted that he caused injuries in self defance there remains little doubt regarding the individual part played by him and he is guilty under section 302 I.P.C. 21. On the basis of this finding the learned trial Judge was of the view that since Manphool has admitted that he caused injuries in self defance there remains little doubt regarding the individual part played by him and he is guilty under section 302 I.P.C. 21. For Gauri Shanker it was held that the has denied inflicting any injury but since his story that all injuries were caused by his father cannot be believed, as being a son he could not simply stand and watch and because the number of injuries is more and prosecution witnesses have also implicated him, he was also responsible for some of the injuries caused. But because Section 34 cannot be invoked he should be convicted for causing simple injuries under section 323 I.P.C. and acquitted him for offence under Section 302 I.P.C. 22. As already mentioned in the beginning of this judgment, the learned trial judge therefore convicted Manphool for offence under Section 302 I.P.C. and sentenced him to imprisonment for life and convicted Gauri Shanker for committing the offence under section 323 I.P.C. and sentenced him to six months simple imprisonment. 23. The State has not filed any appeal and we are considering the appeal of Manphool and Gauri Shankar, one filed through the counsel and the other one filed through the jail which have been consolidated. 24. We have first examined whether the finding of the trial court regarding the possession and cultivation of the accused Manphool on the disputed land on the day of occurrence requires any reconsideration. The learned Public Prosecutor could not challenge the finding in this respect which has been given in favour of the accused. We pointedly asked him whether there was any infirmity which requires reappraisal of the evidence of the trial court in this respect. He was unable to point out any infirmity in this respect. Even otherwise on a careful consideration, of the entire evidence on the question of possession and cultivation, the summary of which has been extracted above and which have been discussed at length in the judgment of the trial court, it is established that the prosecution has miserably failed to prove that on the date of occurrence the possession and cultivation on the disputed land was of Harpal Singh. 25. 25. Contrary to it the evidence of P. W. 5 irrigation Patwary Vyas Dube who has proved the various documents Ex D. 3 and Ex.D. 4 clearly proves that on the date of the occurrence the accused Manphool was in possession of the disputed land. This is further supported by Ex D. 8 to Ex. D 12 and Ex. D. 2. It is not necessary for us to deal with the evidence regarding possession again because neither the finding of the trial court on this score has been challenged before us by the prosecution nor we find infirmity in the same 26. The stage is now set for considering whether the finding of the trial court holding that accused Manphool and Gauri Shankar exceeded the right of private defence, as they used more force than what could have been reasonable and proper, can be sustained. Before dealing with that we may make it clear that the finding of the trial court that the accused had the right of private defence has not been challenged before us by the prosecution and we are in agreement with the view expressed by the trial court in this respect. 27. The short point which requires consideration and adjudication about the accused Manphool and Gauri Shankar having exceeded the right of private defence, will be considered a little later because first we will have to examine as to what offence each one of them has committed, even in the absence of exercise of right of private defence. 28. Obviously both the accused have been acquitted under Section 34 LP C. and there is neither the case of the prosecution nor it is possible to hold in the facts and circumstances of this case that even in the absence of appeal after acquittal of the accused under Section 34 I.P.C., we can take resort to section 34. That being so, all that is required to be considered as to what offence has been committed by each one of the accused, by his independent separate act. The case against Manphool as well as Gauri Shankar is not that any one of them either caused all the injuries on the person of the deceased or that any one of the deceased or that any one of them is the author of injury number 23. The case against Manphool as well as Gauri Shankar is not that any one of them either caused all the injuries on the person of the deceased or that any one of the deceased or that any one of them is the author of injury number 23. According to the medical evidence produced in the case the injury No. 23 was sufficient to cause death of the deceased. Dr. Gangaram has led to fracture of 1 to 10 ribs posterior. These broken ribs have caused injury to the right lungs lower part. In his opinion no other injury individually was sufficient to cause death. He also stated that the injuries other than the injuries to the lung could produce shock which could cause death. 29. It is neither the case of the prosecution nor it has been proved that injury number 23was caused either by Manphool or by Gauri Shankar Similarly, it is neither the case of the prosecution, nor it has been alleged by any of the witnesses much less proved that all the injuries were caused either by Manphool or by Gauri Shankar. 30. In this respect a perusal of the statements of the witnesses Lal Singh, P. W. 1. Ajayab Singh P. W. 2 and Guru Deo Singh, P. W. 8, goes to show that even if their evidence is believed in to to so far as these two accused are concerned each one of them caused about 4 to 5 injuries. In fact they have said generally that Manphool, Gauri Shankar and Bhimraj had kassias and Ramji Lal bad lathi and each one of them inflicted about 4 to 5 injuries to Harpal Singh deceased. As correctly held by the lower court Guru Deo Singh was the only witness who was present from the beginning of the occurrence and the other persons came after the deceased fell down. The version of Guru Deo Singh is that Bhimraj, Gauri Shankar & Manphool gave lathi blows. As correctly held by the lower court Guru Deo Singh was the only witness who was present from the beginning of the occurrence and the other persons came after the deceased fell down. The version of Guru Deo Singh is that Bhimraj, Gauri Shankar & Manphool gave lathi blows. Even the estimated number of blows inflicted by each one of the accused were 5 to 7 according to Guru Deo Singh injury number 23 is a bruise and could have been caused by a blunt weapon Although specific injuries in relation to the part of the body have not been assigned to Manphool or Gauri Shankar, except that Manphool gave a Gandasi blow on the head yet at the best it can be held that both Manphool as well as Gauri Shankar were responsible for some injuries which were incised wounds as both of them are said to have used kassias. That being the factual position, it is obvious that accepting prosecution case in respect of these two accused as correct, each one of them can be held to be liable for the offence under section 324 I.P.C. at the most, individually. 31. Neither the injuries caused by Manphool individually have resulted in the death of Harpal Singh nor all of them taken as a whole or individually were sufficient in the ordinary course of nature to cause death. That being so, without examining the accept of right of private defence which we will deal later, it can safely be said that Manphool and so also Gauri Shankar could not have been held guilty of offence under section 302 I.P.C. simpliciter in the absence of Section 34 even if, they had no right to private defence. The prosecution case could have travelled at the best to 324, I.P.C. 32. The learned trial judge has not at all considered this important aspect to the matter and on account of that, his finding that Manphool was guilty under Section 302 I. P. C. deserves to be set aside. 33. The prosecution case could have travelled at the best to 324, I.P.C. 32. The learned trial judge has not at all considered this important aspect to the matter and on account of that, his finding that Manphool was guilty under Section 302 I. P. C. deserves to be set aside. 33. Now comes the question whether the accused Manphool and Gauri Shankar or any of them can be punished for the offence under section 324, I.P.C. Obviously, the finding of the trial court which we have confirmed to be correct is that the accused Manphool and Gauri Shankar were in cultivating possession of the disputed land at the time and on the date of occurrence. We have further confirmed the finding of the trial court that the deceased first in order to take possession of the land and oust Manphool inflicted injuries on the person of Manphool and it was in order to defend the property as well as the person that Manphool and Gauri Shankar inflicted injuries on the deceased. Since we have held that Manphool cannot be held responsible for the death of deceased Harpal Singh, the logical and legal corollary of it is that we are not required to consider the question whether he was entitled to use so much of force as to cause death of the deceased In fact according to our finding death was not caused on account of injuries caused by Manphool or Gauri Shankar individually. That being so the question of exceeding the right of private defence cannot arise in this case now. 34. The discussion of the trial court about the accused exceeding the right of private defence of person was based on the premises that death was caused by the injuries caused by Manphool. That foundation has disappeared and we are not required now to analyse, discuss and decide the correctness or otherwise of the reasons given by the learned court. 35. We are convinced that Manphool accused having received three injuries, two of which were by sharp edged weapon and in order to defend both his person as well as property, was entitled to exert his right of private defence and when he caused simple injuries by sharp edged weapon to the deceased, he was within his legal rights to do so. The case of Gauri Shankar who has been convicted under section 323 I.P.C, stands on the same footing in as much as he too had right to defend his property and the attack which was being made on his father Manphool. 36. In view of the above findings we are of the opinion that both the accused Manphool and Gauri Shankar deserved to be acquitted & their convictions under sections 302 I.P.C. respectively, cannot be sustained. 37. Both the appellants Manphool and Gauri Shankar are acquitted. Both of them are on bail and need not surrender to their bail bonds.