JUDGMENT 1. - Eight accused persons, including the appellants Dhanna and Lachha, out of whom Dhanna has expired, during the pendency of the appeal and whose appeal has been abated, were tried for the offence under Section 447, 148, 302/149, 323/149 and 324/149, I. P. C., by the Additional Sessions Judge, Sirohi, who, by his judgment dated 13. 10.1973, convicted the appellants for the offence under Section 302,1. P. C., and sentenced each one of them to imprisonment for life. The appellants were acquitted of the rest of the offences and the other six persons were also acquitted of the offences, with which they were charged. 2. It appears that there was a dispute between the complainant party and the accused party with respect to the well popularly known as Bera Bhadrwasituated in village Baania comprising of Khasras No. 100/1 measuring one Bigah and No. 100/2 measuring 29 Bigah. The complainant party claimed ownership and possession over the said land whereas the accused party also claimed the ownership and possession over the land in dispute. Originally the Khatedars of the lands, were Gomna and Kupa, each having half share in it. It is alleged that they sold the Bera to one Lalkhan and Vijaisingh on 26.9.1962 under a registered sale deed and they in turn are said to have sold it to the four brothers Jalamsingh (P. W. 2), Moolsingh (P. W. 9), Bhanwarsingh (P. W 10) and the deceased Jabarsingh on 16.3.1971 by a registered sale deed Ex. P/12. The complainant party alleged that they had sown 'Guar, maize, cotton etc. in the field in July, 1971. It is alleged that on 9.7.1971 at about 8.30, a.m., when Jabarsingh and his brothers were working in the field, the accused persons along with P. W. 4 Puria and P. W. 8 Valie, came there with ploughs and bullocks and started ploughing the field. Bhanwarsingh (P. W. 10) and Jabarsingh deceased went to the accused and at that time the accused persons untied the grass bundles and took out swords and lathis from the bundles and asked Bhanwarsingh as to why he had come there. There upon, Bhanwarsingh told them that the field belongs to him. On the exhortation by the accused Prema, the accused party opened attack on the complainant party. First Bhanwarsingh (P.W. 10) was assaulted and thereafter Jabarsingh. There upon, Bhanwarsingh told them that the field belongs to him. On the exhortation by the accused Prema, the accused party opened attack on the complainant party. First Bhanwarsingh (P.W. 10) was assaulted and thereafter Jabarsingh. Bhanwarsingh, thereupon, ran away from the scene leaving behind Jabarsingh- Jabarsingh sustained as many as three injuries on his head and he fell down in the field. Leaving Jabarsingh in the field, it is alleged, that the accused persons went towards Bhanwarsingh and his brothers, but they could not be availed. The occurrence is said to have been witnessed by Ranjeetsingh (P. W. 1), Cholaram (P W. 5) and Lalkhan (P. W. 15). These witnesses went to Jabarsingh and found him alive- Then they took him to the village. Lalkhan (P. W. 15) went to Rani and brought a motor car. Jabarsingh was taken to Bali in the motor car, where the petition-writer Roopraj (P. W. 3) was brought and at the instance of Jabarsingh, he scribed a report Ex. P/1. Thereafter, they went to the Police Station along with Jabarsingh and Jabarsingh lodged the written report Ex. P/1 at the Police Station, Bali on which a case under Sec. 148, 436 and 307/149, I. P. C., was registered. Jabarsingh was removed to the hospital, where he expired at about 12.00 noon. Offence under Section 302, I.P.C. was added. Autopsy on the dead body was conducted by Dr. K. C. Jain (P.W 18) on the very day at 1.30, p. m, Bhanwarsingh was also medically examined on 11.7.1971 by the same Doctor. The accused persons were arrested between 12.7.71 and 16.7.1971 and on their information and at their instance, seven Lathisand two seathes of the swords were recovered. After completion of the investigation, the accused persons were committed to the Court of Additional Sessions Judge, Sirohi, for trial, who after trial convicted and sentenced the accused persons, as aforesaid. 3. The defence of the accused persons was that the occurrence did not take place at the place, as alleged by the prosecution. It took place in the field of Goma and Kupa and the prosecution has given a truncated version of the occurrence. According to them it was the complainant party, which came to their land and opened an attack on them, in which Lachha, Dhanna and Goma sustained multiple injuries, some of which were grievous. It took place in the field of Goma and Kupa and the prosecution has given a truncated version of the occurrence. According to them it was the complainant party, which came to their land and opened an attack on them, in which Lachha, Dhanna and Goma sustained multiple injuries, some of which were grievous. The accused party lodged a report and the complainant party was also prosecuted on that report. 4. From the side of the prosecution, it may be stated that at the trial eighteen witnesses were examined, whereas the accused party also examined as many as eight witnesses in support of their defence version. The learned Additional Sessions Judge recorded the findings that on the date of the occurrence, the accused persons were in possession of the land and they were within their right to deafened their property as well as their person, in view of these findings, the learned Additional Sessions Judge, acquitted the accused persons of the offences under Section 447, 148, 323/149 and 324/149, I. P. C., but in respect of the appellants he recorded a finding that both of them exceeded the right of private defence in as much as they inflicted fatal blows on the head of the deceased Jabarsingh, even when he was completely disarmed. As he found that they inflicted injuries and caused more harm, than was necessary in exercise of the right of private defence, he found them guilty of the offence under Sec. 302, I. P. C., and accordingly convicted and sentenced them. 5. We need not consider the case of Dhanna, as his appeal has been abated and his appeal has not been pressed before us on behalf of any of his legal representatives. Thus, we have only to examine the case of the appellant Lachha. 6. The main question in this appeal is as to whether this finding of the learned Additional Sessions Judge is tenable or can be sustained that the accused Lachha inflicted a fatal blow on the head of the deceased after he was completely disarmed. It is this finding, which has resulted into conviction. After going through the evidence on record we are of the opinion that the finding is not sustainable on the basis of the evidence. 7. We may first consider the evidence of three eye witnesses, namely, Ranjitsingh (P.W. 1), Cholaram (P. W. 5) and Lalkhan (P. W. 15). It is this finding, which has resulted into conviction. After going through the evidence on record we are of the opinion that the finding is not sustainable on the basis of the evidence. 7. We may first consider the evidence of three eye witnesses, namely, Ranjitsingh (P.W. 1), Cholaram (P. W. 5) and Lalkhan (P. W. 15). With respect to the occurrence, there are other three witnesses as well, namely, the injured witness Bhanwarsingh (P. W. 10), Puria (P. W. 4) and Balia (P. W. 8). Ranjitsingh (P. W. 1) has deposed that on exhortation by the accused Prema, the accused Dhanna inflicted a Lathi blow on the head of Jabarsingh. Jabarsingh was also armed with a sword. When Jabarsingh raised his hand having a sword therein the accused Goma inflicted a Lathi blow on Jabarsingh, which hit on his arm having the sword, where by the sword fell down. Goma, thereupon lifted that sword. The accused Dhanna, then took the sword from Lachha and inflicted a blow on Bhanwarsingh with the sword. Accused Veerka inflicted a Pharsi blow on Jabarsingh and he sustained an injury on his right arm. Bhanwarsingh then went away from the place of occurrence. Then all the eight accused persons inflicted Lathi and sword blows. Apart from what he stated in cross-examination it would appear from the statement of Ranjitsingh that Jabarsingh was also armed with a sword and Lachha had inflicted only one sword blow on the head of Jabarsingh and thereafter no blow was inflicted by Lachha on Jabarsingh. As per his statement Lachhas sword was taken by Dhanna and Jabarsinghs which had fallen after sustaining a Lathi blow, was lifted by Goma. He has no where stated that Lachha repeated any blow with his sword on Jabarsingh. 8. Cholaram (P.W. 5 ) also attributed one sword blow to Lachha, but he does not give us as to on which part of his body it landed and according to i, Cholaram, after the accused Goma lifted the sword of Jabarsingh, it was he, who inflicted the sword blows on Jabarsingh. Ho too has not stated that Lachha repeated any sword blow on the person of Jabarsingh. 9. Lalkhan (P. W. 15) has also given the version, as given by the witness Cholaram (P.W. 5). He has assigned the two sword blows to the accused Goma after he lifted Jabarsinghs sword. Ho too has not stated that Lachha repeated any sword blow on the person of Jabarsingh. 9. Lalkhan (P. W. 15) has also given the version, as given by the witness Cholaram (P.W. 5). He has assigned the two sword blows to the accused Goma after he lifted Jabarsinghs sword. His statement is also to the same effect that only one blow was inflicted by the accused Lachha by his sword on the head of Jabarsingh. From the statement of Cholaram and Lalkhan, it would appear that even the two sword blows are not ascribed to the accused Dhanna. The two sword blows have been attributed to the accused Goma. So far as the testimony of Bhanwarsingh (P. W. 10) is concerned, his statement is only omnibus, after he left the place of occurrence. He does state as to how the occurrence commenced. According to him at the instance of the accused Prema, Dhanna inflicted Lathi blow on him on his head and the accused Dhanna thereafter inflicted a Lathi' blow on Jabarsingh. It is the accused Lachha, who inflicted a sword blow on the head of Jabarsingh and thereafter the accused Dhanna took the sword from the accused Lachha. The accused Dhanna inflicted a sword blow on his head and he further wielded the sword on him, but he saved himself and that blow hit him in the middle of his ring and little finger and thereafter he ran away. When he saw behind after covering some distance, he saw the accused persons inflicting blows on Jabarsingh. He does not state that the accused Lachha was again armed with sword, as his had already parted with his sword to the accused Dhanna. 10. The other two witnesses Puria and Baliya have not specifically attributed any sword blow to the accused Lachha. Puria has simply stated that the accused persons started inflicting blows on Jabarsingh. Similar is the statement of P. W. 8 Baliya. He has stated that all the eight accused persons started beating Jabarsingh with Lathis. Both these witnesses did not state that any of the accused persons was armed with sword, though the witness Puria stated that Jabarsingh was armed with a sword. Thus from the prosecution evidence it cannot be concluded that the sword blows were inflicted on the person of Jabarsingh after he was disarmed by the accused Lachha. Both these witnesses did not state that any of the accused persons was armed with sword, though the witness Puria stated that Jabarsingh was armed with a sword. Thus from the prosecution evidence it cannot be concluded that the sword blows were inflicted on the person of Jabarsingh after he was disarmed by the accused Lachha. We may state that in view of the finding of the learned Additional Sessions Judge that the accused persons acted in exercise of their right of private defence of their person and property, and, it was the complainant party, which was aggressor, then this possibility cannot be ruled out that Dhanna, Lachha and Goma sustained the injuries initially at the hands of the complainant party. Dhana and Lachha sustained grievous injuries with sharp edged weapon, which can only be the sword, with which the deceased Jabar singh was armed. 11. The accused Lachha had an incised wound 51/4"x 1/4"X bone deep over middle phalanx of right thumb. It was grievous in nature. He sustained another incised wound 21/4" x 1/2" over back of left hand 1" below left wrist. Dhanna had also an incised wound with facture of radius 3"x 1/4" bone deep over lower-third forearm posterior-laterally 2" above right wrist joint. This injury was grievous in nature. He had other injury on his right parietal bone in middle in the nature of contusion with swelling 11/2"x1/2" Gora had a contusion with swelling 11/2" x 1/2" over right side of back of chest in middle of scapula. These injuries on the persons of these accused persons have not been explained by the prosecution and in all probability, to our mind, the accused Dhanna and Lachha sustained grievous injuries at the hands of Jabarsingh, who was armed with a sword. Firstly we may state that no question of exceeding the right of private defence arises, as the finding recorded by the learned Additional Sessions Judge, is unsustainable that Jabarsingh sustained fatal blow on his head after he was disarmed. Secondly, as the prosecution has failed to explain the injuries on the three accused persons, this possibility cannot be ruled out that the accused persons sustained the injuries at the hands of the complainant party including the deceased Jabarsingh and the teed party within their right wielded their weapons in exercise of their right of it self defence of person and property. Not only they had a reasonable apprehension fat grievous hurts would be caused to them, but they in fact sustained grievous Hurts. In such a situation the right of private defence even extended to causing path. Thus neither the finding of the Additional Sessions Judge is sustainable, per it can be said that the accused-appellant exceeded the right of private defence. In this view of the matter, the appellant Lachha deserves to be acquitted. 12. In the result, the appeal of the appellant Lachha is allowed, the conviction and sentence of the appellant Lachha under Sec. 302, I.P.C., are set side and he is acquitted of the offence under Sec. 302, I. P. C. He is already on Jail, so need not surrender to his bail bonds are discharged.Appellant acquitted. *******