JUDGMENT 1. - This criminal appeal by accused Jesa Ram is directed against the judgment of learned Sessions Judge, Sikar dated 26th April, 1980, convicting the appellant u/s 302 T. P. C. and sentencing him to an imprisonment for life and a fine of Rs. 50- and in default of payment of fine further undergo rigorous imprisonment for 2 months. 2. It would not be necessary to go into details of the case as learned council for the appellant has frankly admitted that it has been proved by the prosecution evidence that appellant inflicted a blow by Jelly on the head of Narayan, which resulted into his death. 3. We have also perused the record and have gone through the evidence of the eye witnesses. P. W. 3 Pooran, P. W. 6. Hanuman. P. W. 7 Devu Ram, P. W. 9 Govinda and P. W. 16 Surja Ram from whose evidence it has been proved beyond any manner of doubt that Jesa appellant inflicted a blow by Jelly on the head of Narayan, which proved fatal. P. W. 11 Dr. Satyendra Kausik conducted autopsy of the dead body of Narayan on 26-7-1979 at 5.45 p. m. and found the following injuries on the body of Narayan : 1. Wounds:-Leacerated wounds 3 cm x 1/2cm at left supraorbital region outer side. (It is so deep that a hole is formed in the skull) 2. Lacerated wound : 1 cmx 1 cm at right mid lower leg. Bruises 1. 7 cmx3 cm at right upper arm 2. On mid lower right leg around injury No. 2 above. 3. 3x2 cm at posterior side of right palm 4. 6 cm x 6 cm on right lower arm 5. 6 cm x 6 cm just below left elbow. According to the Doctor, all these injuries were ante-mortem in nature and injury No. 1 was sufficient in the ordinary course of nature to cause death of Narayan. 4. It is contended by learned counsel for the accused appellant that accused appellant Jesa and deceased Narayan were real brothers. There was a dispute regarding possession over the land Khasara No. 210 and 215 situated near village Bhanipura. The land was ancestral and banged to their father Bhora Ram. 4. It is contended by learned counsel for the accused appellant that accused appellant Jesa and deceased Narayan were real brothers. There was a dispute regarding possession over the land Khasara No. 210 and 215 situated near village Bhanipura. The land was ancestral and banged to their father Bhora Ram. The accused had filed a suit for injunction in a Revenue Court and the Revenue Appellate Authority on 23-3-77 had granted temporary injunction in favour of the appellant and against deceased Narayan, not to interfere in the possession of the accused in part of land Khasara Nos. 210 and 215. A certified copy of the aforesaid judgment has been filed on record. Though Narayan had gone in revision against that order in the Board of Revenue, but the stay against the order of the Revenue Appellate Authority was dismissed by the Board of Revenue by order dated 12-10-1977. In spite of the aforesaid orders of injunction being granted in favour of the accused, Narayan and his son wanted to plough the fields in possession of the accused. It is contended that the appellant along with his son and grand-son were sitting in their field and when the deceased wanted to unlawfully trespass over the land in possession of the accused and wanted to plough the fields, the accused had a right in the exercise of his right of private defence to strike a blow on the deceased and in these circumstances even if his action may at best be considered is nothing more than exceeding the right of private defence. The accused had inflicted only one blow and there was no other intention except to turn out the deceased from unlawfully ploughing the fields which were in possession of the accused. It is contended that the accused was an old man of nearly 70 years of age at the time of the occurrence and he did not take advantage of the situation in inflicting any more injuries except one, which unfortunately proved fatal. 5. It is further contended that the accused appellant is the real brother of the deceased and the act was done without premeditation and without any ill-will. In these circumstances, it is submitted by Mr. 5. It is further contended that the accused appellant is the real brother of the deceased and the act was done without premeditation and without any ill-will. In these circumstances, it is submitted by Mr. Tibrewal that the case cannot travel beyond part (2) of Section 304 I. P. C. and the appellant has already remained in jail for more than 3 years, the interest of justice would be served in case the sentence is awarded of the period already undergone by the appellant. 6. On the other hand, it was contended by the learned Public Prosecutor that deceased had come unarmed on the field of the accused and the injury No. 1 on the head of the deceased is a very serious and grave in nature and it must be inferred from the nature of such injury that the accused had a clear intention to cause death of the deceased. 7. We have given our careful consideration to the arguments advanced by both the sides and have thoroughly perused the record. 8. We have already held above that it has been proved by a number of prosecution witnesses that the accused appellant is responsible for having inflicted a blow by a Jelly on the head of the deceased, which proved fatal and resulted into his death. We have perused the order of the Revenue Appellate Authority dated 23-3-77, from which it is clear that a temporary injunction was grunted in favour of the accused restraining the deceased Narayan not to interfere in the possession of the accused over field Khasara No. 210 and part of Khasara No. 215. It has also come in the evidence of the prosecution witnesses including P. W. 16 Surji Ram himself that deceased had gone over field Khasara No. 210 in order plough it. So far as Jelly and Lathi are concerned, these are such weapons which are normally carried by the villagers and there was nothing un-natural and uncommon in case a jelly was there in the hand of the accused. Learned Sessions Judge himself has mentioned in the judgment that the jelly is a weapon which is also used for cultivation. So far as Jelly and Lathi are concerned, these are such weapons which are normally carried by the villagers and there was nothing un-natural and uncommon in case a jelly was there in the hand of the accused. Learned Sessions Judge himself has mentioned in the judgment that the jelly is a weapon which is also used for cultivation. In these circumstances, if deceased Narayan had gone over field Khasara No. 210 and wanted to plough the field in spite of a temporary injunction having been granted in favour of the accused and the accused appellant who was the real brother of the deceased inflicted one blow over the head of the deceased, it cannot be said that the accused had any intention to cause death of deceased Narayan and in any case the matter can be said to be exceeding the right of private defence of property. Exception Section 300 clearly lays down that culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person and property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence." 9. In the present case, there was no premeditation on the part of the accused and from the circumstances that only one blow was given on the head of the deceased it can be said that the accused had no intention of doing more harm than was necessary for the purpose of such defence. In these circumstances, the case does not fall u/s 302 I. P. C. but falls u/s 304 part II I. P. C. At present the accused appellant alleged to be an old man of 73 years of age and as stated by the learned counsel for the accused he is also seriously ill. The accused is in jail since 29th July. 1979 and has thus remained in jail for nearly 3 years and 4 months and ''as such interest of justice would be served in case the accused is sentenced to an imprisonment for a period already undergone by him. 10. In the result, we partly allow this appeal. The accused is in jail since 29th July. 1979 and has thus remained in jail for nearly 3 years and 4 months and ''as such interest of justice would be served in case the accused is sentenced to an imprisonment for a period already undergone by him. 10. In the result, we partly allow this appeal. Conviction and sentence of accused appellant Jesa Ram u/s 302 I.P.C. is set aside and the accused appellant is convicted u/s 304 part II of the Indian Penal Code and sentenced to an imprisonment of the period already undergone by him. The accused would now be released forthwith in case he is not required in any other case. *******