JUDGMENT 1. - Both the accused appellants Ladu and Kela are son and father respectively. They have been convicted by the learned Additional Sessions Judge, Bhilwara, under his judgment dated November 11,1978 under Sections 302/34 and 447 of the Indian Penal Code. Under the former count, each of them has been sentenced to undergo imprisonment for life and under the latter count, to undergo three months rigorous imprisonment. Both the sentences have been ordered to run concurrently. 2. In village Pur, under Patwar Circle Pur, District Bhilwara, Khasra No. 3422 is situated. It was in the khatedari of one Rama son of Megha Chamar and after his death, as per revenue record, Smt. Dhapur daughter of Rama, was its khatedar. She is said to have sold khasra No. 3422 to Deva deceased, under Ex.P.24. Nearby that land is khasra No.3423 belonging to deceased Deva son of Bhajja.The fields khasra Nos. 3424 and 3425 are also nearby and there is a common `Med' (mud-walla) in between khasra No. 3422, 3423; 3424 and 3425. There is also a `khai' nearby and `Babul' (acacia) trees were also standing on the `Med'. On May 28, 1978, at about 10.00 a.m., deceased Deva along with some labourers, namely, Smt. Sundi PW. 11, Smt. Kamli PW. 12 and others had gone to his fields and he had taken a`Kassi' and a`Genti'. The aforesaid labourers started constructing mud-well and in the meantime, accused-appellant Ladu arrived there. He asked Smt. Sundi PW. 11, Smt. Kamli PW. 12 and others not to construct the mud-wall as the land where it was being constructed, was in his (Ladu's) field. Smt. Sundi PW. 11 and Smt. Kamli PW. 12 left the place. It is alleged that the accused appellant Kela, father of Ladu also arrived there. Both of them picked up the Kassi and Genti which deceased Deva had brought and caused injuries to deceased Deva with their respective weapons. Deceased Deva received injuries, fell on the ground and both the accused appellants are said to have made their escape good on a bicycle. The occurrence is said to have been witnessed by PW. 6 Devilal and PW. 7 Ghisa. Ramsukh son of deceased Deva, who was at his house, was informed by Smt. Sundi and others, Khatiks by caste, that the accused appellants were fighting with his father Deva in the fields. Ramsukh PW. The occurrence is said to have been witnessed by PW. 6 Devilal and PW. 7 Ghisa. Ramsukh son of deceased Deva, who was at his house, was informed by Smt. Sundi and others, Khatiks by caste, that the accused appellants were fighting with his father Deva in the fields. Ramsukh PW. 5 proceeded towards the fields and the accused appellants are said to have met him in the way on a bicycle and Ladu accused appellant is said to have made a confessional statement to him of having killed his father and also told Ramsukh not to go to his fields or else, he will also meet the same fate. Ramsukh PW. 5 reached his fields and saw that Devilal PW 6 and Ghisa PW. 7 were there and his father was lying injured in his own fields. He went to the village and instructed Hajari PW. 1 and others to take a bullock-cart so that his father could be taken to the hospital and he himself went to Bhilwara to inform his brother Pyara alias Pyarsingh PW. 2 about the incident, where he reached at about 11.00 a.m. Both then started for the place of occurrence and while they were in the way, they saw that their father was being brought in a bullock-cart. The doctor at Pur refused to treat Deva and so he was taken to the hospital at Bhilwara and was admitted in the hospital Dr. Gopikishan Mishra PW 1, who was the Medical Jurist in the hospital then, examined the injuries of Deva and found the following injuries, 1. Lacerated wound oblique 1" x 1/4" x 1/4", middle left parietal region. 2. Haematoma 3" x 3 x about ⅓" raised on upper ⅓ of left forearm posteriorly. 3. Abrasion 1/4" x 1/4" on the middle of injury No. 2, 4. Bruise with slight swelling oblique 3" x 1" on right side of chest laterally. 5. Abrasion ⅓" x 1/4" on left scapular region. Dr. Mishra advised x-ray of injuries No. 1, 2, 3 and 4. Injury No. 3 on x-ray was found to be grievous. There were fracture of left and temporal bones. There was fracture of bone in left temporal and parietal region, as also of ulna bone at two places. There was also fracture of 4th to 12th ribs. It appears that Deva died in the hospital on the same day and Dr. Injury No. 3 on x-ray was found to be grievous. There were fracture of left and temporal bones. There was fracture of bone in left temporal and parietal region, as also of ulna bone at two places. There was also fracture of 4th to 12th ribs. It appears that Deva died in the hospital on the same day and Dr. Jagdish Chandra PW. 4 conducted autopsy on the dead body of Deva on May 29, 1978. Besides finding the external injuries as noted above, on opening the skull, he found that there fracture of left temporal and parietal bones. He further noticed that 4th to 12th ribs were fractured. There was blood in the chest cavity and the right lung was lacerated. In the opinion of the doctor, the death was due to shock as a result of laceration of lung and bleeding from it and pain of multiple fractures. 3. The accused persons were arrested and on the information of the accused appellant. Ladu under Section 27 of the Evidence Act, one Genti and one Kassi were recovered. But they did not appear to be blood-stained. After investigation, a challan was filed and when a charge under Sections 302/34 and 447 of the Indian Penal Code was handed over and explained to the accused appellants, they pleaded not guilty and claimed to be tried. On behalf of the prosecution, as many as 15 witnesses were examined. Thereafter, the accused persons were examined under Section 313 of the Code of Criminal Procedure to explain the circumstances appearing against them in the evidence of the prosecution witnesses. The accused appellants stand on a bare plea of denial. So far as accused Kela is concerned, he pleaded alibi to the effect that he was at his floor mill throughout the day and even at the time of the incident and that he has been falsely implicated. A case was also set up that there was enmity in between the accused persons and deceased Deva and the accused-appellant Kela had filed a suit for injunction against the deceased and an injunction order had been issued a few days prior to the occurrence against Deva restraining him from cutting the `Babul' trees which were standing on the Med. The accused appellant examined four witnesses in defence, including Kela accused himself. The accused appellant examined four witnesses in defence, including Kela accused himself. The learned Sessions Judge, after trial, convicted and sentenced each of the accused as aforesaid. 4. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and have minutely gone through the record of the case. 5. The contention of Mr. Gupta, learned counsel for the appellants is that the place where the occurrence is said to have taken place was in possession of the accused persons and though deceased Deva had been restrained from cutting the Babul trees but on the date of the incident, some of the trees were cut by him and, therefore, branches were lying cut on the ground. Deceased Deva had no right to construct a mud-wall and he was constructing one over the disputed land and even if the occurrence took place as alleged by the prosecution, no case under S. 302 of the Indian Penal Code can be said to have been made out because the accused persons had a right of private defence of their property. He further contends that the witnesses Deva PW. 6 and Ghisa PW 7 cannot be relied upon and have been wrongly relied upon by the learned Sessions Judge. According to him, so far as accused appellant Kela is concerned, his presence at the time of the occurrence is highly doubtful and at any rate, on the evidence on record, no case against Kela accused is made out. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge. Both the accused persons have also been convicted under Section 447 of the Indian Penal Code. The learned Sessions Judge has held that that part of the agricultural land where the occurrence took place was in possession of deceased Deva at the time of the incident and the accused persons committed criminal trespass. The learned advocate has challenged this finding of the learned Sessions Judge. 6. A look at the site-plan Ex. P/17 will show that the fields of deceased Deva and of the accused persons are adjacent. In the south of the fields of deceased Deva which have been shown by figure 4 are the fields of the accused persons shown by figure 5. There is sufficient material on record to show that some branches of `Babul' tree were lying at place marked 2 in site-plan Ex. P/17. In the south of the fields of deceased Deva which have been shown by figure 4 are the fields of the accused persons shown by figure 5. There is sufficient material on record to show that some branches of `Babul' tree were lying at place marked 2 in site-plan Ex. P/17. Kela accused had filed a suit in the court of Sub-Divisional Magistrate, Bhilwara, for injunction against deceased Deva and his sons and on May 1, 1978, under Ex. D/7 an order had been passed by the S D.M. that both the parties should maintain status quo with regard to the cutting of the trees. The incident took place on 28-5-78. After the issue of injunction on May 1, 1978. the case was adjourned to May 15, 1978. Thus, there was a bona fide dispute about the ownership of the Babul trees standing on the Med in between the fields of the accused persons and deceased Deva. PW 3 Madanlal Patwari had been asked to prepare a site-plan after the incident and report about the location of the place of incident. Madanlal Patwari has stated that he is unable to say as to who is in possession of that part of the land where the incident took place on the fact of possession is not recorded in the revenue records now. No doubt, he has stated that the place where the blood was lying is not in the fields of accused Kela but a look at Ex. P/17 will show that the blood was found near the southern slope towards the fields of the accused persons and some branches of `Badul' tree were also lying cut inspite of the fact that both the parties were ordered to maintain the status quo on May 1, 1978. Smt. Sundi PW 11 has stated that she along with others was taken by deceased Deva for labour to construct a mud-wall but in the meantime, Ladu arrived there and asked them not to do so and go away and so, she left. Though the witnesses from the prosecution have stated that that part of the land where the occurrence took place was in possession of deceased Deva, we have already referred above to the statement of the Patwari, the order of the S.D.M. ordering maintaining status quo for cutting of the trees and the site plan Ex. Though the witnesses from the prosecution have stated that that part of the land where the occurrence took place was in possession of deceased Deva, we have already referred above to the statement of the Patwari, the order of the S.D.M. ordering maintaining status quo for cutting of the trees and the site plan Ex. P/17 which have been proved by the investigating officer, from which it appears that the fields of both the parties were adjacent and the occurrence took place on the common Med when some `Babul' trees had been cut and a mud-wall was being constructed after taking earth from a `khai' which the accused persons claimed to be in their fields. The accused persons, therefore, bonafide believed that the mudwall, where the trees were standing and had been cut, belonged to them or at any rate, was in their fields and the `Khai' from where the earth was being removed for the construction of the mud-wall, was also in their land. Thus, on the evidence on record, we are not in a position to say definitely that the occurrence took place exactly in that portion of the land which was in possession of deceased Deva. Thus, the conviction of both the accused persons under Section 447 of the Indian Penal Code cannot be maintained. 7. There are two eye-witnesses, namely, Devilal PW 6 and Ghisa PW 7, Learned advocate for the accused appellants has taken us through the statements of these witnesses and has submitted that from their conduct in not disclosing to Ramsukh PW 5 and Pyara PW 1, when they came to the spot, that they had witnessed the occurrence and their further conduct in not disclosing the incident to anybody else goes to show that they are not witness of truth. But we are of the opinion that the presence of these two witnesses, at the time of the occurrence, has been proved on record. The incident took place on May 28, 1978 at about 10.00 a.m. and the report of the incident was lodged at 5.15 p.m. The place of occurrence is seven miles. Thus, the report was lodged without much delay and a perusal of it will show that the names of both the witnesses Devilal PW 6 and Ghisa PW 7 are mentioned therein. Thus, the report was lodged without much delay and a perusal of it will show that the names of both the witnesses Devilal PW 6 and Ghisa PW 7 are mentioned therein. There is material on record that when Ramsukh PW 5 and Pyara PW1 both sons of deceased Deva, reached the place of occurrence, both the abovenamed witnesses were sitting by the side of Deva who was lying injured. PW 11 Smt. Sundi, as already stated earlier, was one of the labourers taken by none but deceased Deva for constructing the mud-wall in his fields, has stated that when Ladu asked them to go away or else she will be beaten, and when she was going to her house, two persons met her in the way. In cross-examination, she states that Ghisa and Devilal Jat had met her in the way, though she states that she does not know them. Merely because these witnesses did not immediately give out to Ramsukh PW 5 Pyara PW 2 that they had witnessed the occurrence, to our mind, it does not affect their veracity. We may also state here that so far as accused Ladu is concerned, his presence at the place of occurrence is borne out from the statements of Smt. Sundi PW 11 and Smt. Kamli PW 12. The fact that immediately thereafter the incident took place and deceased was found lying there with injuries is also to be taken into consideration while appreciating the evidence of Devilal PW 6 and Ghisa PW 7 After having gone through their statements, we are of the opinion that the statements of Devilal PW 6 and Ghisa PW 7, so far as accused Ladu is concerned, are such, which appears to us to be truthful. Both these witnesses have stated that when they reached the place of occurrence, they noticed that the accused Ladu was having a `Kassi' and he gave a blow with it on the head of deceased Deva. Deva fell on the ground and then also accused Ladu gave a blow with Kassi. So far as their statements that Kela also was there, armed with a Genti and gave a blow by it on the ribs is concerned, for the reasons which we shall presently state, we do not consider it safe to rely on their statements. 8. Deva fell on the ground and then also accused Ladu gave a blow with Kassi. So far as their statements that Kela also was there, armed with a Genti and gave a blow by it on the ribs is concerned, for the reasons which we shall presently state, we do not consider it safe to rely on their statements. 8. It may be stated that the case of the prosecution is that no sooner Smt. Sundi and Smt.Kamli PW 11 and PW 12 respectively, on being asked by accused Ladu left, only Ladu was there when the incident took place. The case of the prosecution further is that Ladu accused was not armed but he picked a `Kassi'which deceased Deva had brought for the labourers and gave a blow with it Smt. Sundi PW 11 has made a categorical statement that only Ladu was there and Kela was not on the fields at that time. She has stated that there was none else along with Ladu at that time. Smt. Kamli PW 12 also states that only Ladu was there and none else. Thus, from their statements, it can be said that at the time when Ladu asked them to go away, the deceased was at his fields and besides the accused Ladu there was none in his fields and so, the presence of Kela, father of accused Ladu, at the time of the occurrence becomes doubtful. Both Devilal PW 6 and Ghisa PW 7 have stated that Kela gave a blow by Genti on the ribs of deceased Deva when he had fallen on the ground. Both of them were confronted with their police statements Ex. D/3 and Ex. 4 wherein this fact is not stated, though it is stated that the accused also participated in the beating to deceased Deva. Thus, the statement of these witnesses in the court that accused Kela gave a blow on the ribs of Deva deceased with `Genti' cannot be relied upon because this fact was not stated by them in their police statement. If this fact is looked into along with the statements of Smt. Sundi PWil and Smt. Kamli PW12, this negatives the fact about the presence of Kela accused and rather suggests that besides Ladu, there was none else, and makes the case against Kela doubtful. If this fact is looked into along with the statements of Smt. Sundi PWil and Smt. Kamli PW12, this negatives the fact about the presence of Kela accused and rather suggests that besides Ladu, there was none else, and makes the case against Kela doubtful. Kela has pleaded alibi and besides examining himself, has also examined defence witnesses to show that he was at his floor-mill at the time of the incident. But even if his defence is not relied upon, it is for the prosecution to prove convincingly that accused Kela was present at the spot at the time of the incident and participated in giving beating to deceased Deva. We are, therefore, of the opinion that the participation of accused Kela in the occurrence, which resulted in the death of deceased Deva, is doubtful, and that only against Ladu it is proved that he gave beating to deceased Deva with a `Kassi' from the blunt side. 9. The learned Sessions Judge has convicted the accused Ladu under Section 302/34 of the Indian Penal Code We have held above that it was accused appellant Ladu alone who participated in giving beating to deceased Deva. Now, the question is, as to whether in the facts and circumstances of the case, it is a case under Section 302 of the Indian Penal Code or any lesser offence is made out? We have stated above that there was only an order of the S D M., Bhilwara, ordering both the parties, namely, accused Kela, father of accused Ladu and deceased Deva and his sons to maintain status quo so far as the cutting of the trees standing on the common mudwall in between the fields of the parties is concerned. The order had been passed only on 1-5-1978 and the case had been adjourned to May 15, 1978. The occurrence took place on May 28, 1978. We have also said above that when the Investigating Officer PW 15 Rasul Gani reached the spot, he saw that branches of trees were lying cut. It is the case of the prosecution itself that deceased Deva had gone with labourers and wanted to construct a mud wall in the portion of the land which the accused thought that it lies in his fields. Accused was not armed and he is said to have picked a Kassi which Deva had brought for his labourers. It is the case of the prosecution itself that deceased Deva had gone with labourers and wanted to construct a mud wall in the portion of the land which the accused thought that it lies in his fields. Accused was not armed and he is said to have picked a Kassi which Deva had brought for his labourers. The occurrence, thus, took place all of a sudden. Dr. Jagdish Chandra PW 4 has stated that the death was a result of injury No. 4 and there is no specific evidence that it was the accused Ladu who had caused this injury though the Injury caused on the head was also a fracture of the left temporal and parietal bone. Thus, accused Ladu caused injuries without premeditation in a sudden fight which arose in the circumstances enumerated above, in the heat of passion, without taking any undue advantage and, therefore, the accused Ladu is liable to be convicted only under section 304 Part I of the Indian Penal Code. 10. In the result, the appeal of accused Kela is allowed. The conviction and sentence of accused appellant Kela under Ss. 302/34 and 447, IPC are set aside. He is acquitted of all the charges levelled against him. The appeal of accused Ladu is allowed in part. While the conviction and sentence of accused appellant Ladu under Ss. 302/34 and 447, IPC are set aside, he is convicted of the offence under Section 304 Part I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. He will be entitled to set off any imprisonment undergone by him during investigation, trial and after conviction and shall only undergo the remainder of the sentence awarded by us. Accused Kela is on bail. He need not surrender to his bail bonds which are hereby discharged. The learned Sessions Judge is directed to inform accused Ladu in jail of the result of the appeal and issue an amended warrant.Appeal of K allowed & Appeal of L partly allowed. *******