JUDGMENT 1. -Appellants Ranbir Singh, Nand Singh and Hari Singh have filed this appeal under Section 374(2) of the Criminal Procedure Code, against the judgment of the learned Additional Sessions Judge, Tonk, by which, they have been convicted and sentenced as under : Ranbir Singh u/s 302/34, IPC Rigorous Imprisonment for life u/s 323/34, IPC Rigorous Imprisonment for six months. Nand Singh u/s 302/34, IPC Rigorous Imprisonment for life u/s 323, IPC Rigorous Imprisonment for six months. Hari Singh u/s 302, IPC Rigorous Imprisonment for life u/s 323, IPC Rigorous Imprisonment for six months. 2. There existed a Bara in Village-Maharaj Kanwar Pura. This Bara originally belonged to Madhosingh. According to the prosecution case, a dispute arose between Madhosingh deceased on the one hand and the accused Harisingh on the other, regarding the possession over this Bara. On 8th November, 1974, at about 12.00 A.M . it is alleged by the prosecution that Chhagansingh PW 15, son of deceased Madhosingh went to the Bara and started fixing Khunta to tie their cattle. Harisingh arrived at the Bara and objected to it. He also uprooted the Khunta and threw it out. This incident turned into a scuffle, in which, Hari singh started belabouring and caused injuries on the person of Chhagansing. As this stage, the other two accused Nandsingh and Ranbirsingh armed with Lathis and sword came to the Bara. It may also be mentioned here that Nandsingh and Ranbirsingh accused are the sons of Harisingh. Prabhusingh, Bhanwarsingh and Moolsingh, hearing the screaming, rushed to the spot, and they were also beaten. Madhosingh, the father of the complainant party, wanted to rescue his sons, at that time Harisingh gave him a lathi-blow on his head. Accused Nandsingh also gave a lathi-blow to Madhosingh deceased, on account of which, he fell down. Hearing the noise. Smt. Kamla, wife of Chhagansingh, Bhanwaribai, sister of Chhagansingh also reached the spot, and they were also meted with the same treatment and given injuries. The accused persons gave beating to all the members of the complainant-party. The occurrence was witnessed by Gangaram Ghuga, Bhagwansingh, Arjunsingh, Madholal and Kana. Prabhusingh lodged an oral report of the occurrence at Police Station Niwai, situated at a distance of 18 miles from Village-Maharaj Kunwarpur, at about 2-30 P. M., and that report is marked as Ex. The accused persons gave beating to all the members of the complainant-party. The occurrence was witnessed by Gangaram Ghuga, Bhagwansingh, Arjunsingh, Madholal and Kana. Prabhusingh lodged an oral report of the occurrence at Police Station Niwai, situated at a distance of 18 miles from Village-Maharaj Kunwarpur, at about 2-30 P. M., and that report is marked as Ex. P/l. Thereupon, the police registered a case under Sections 448, 323, and 307, IPC, and started investigation. A site-plan was prepared, and along with it, a description-memo was also drawn out. The deceased was examined by Dr. S.P. Pareek, Medical Officer, Government Hospital, Niwai, and the other injuries on persons of the complainant-party were also examined by Dr. Pareek. 3. Moolsingh, s/o Madhosingh deceased, received four injuries. Bhanwarsingh s/o Madhosingh received three injuries, and Suit. Bhanwari Bai w/o Sujansingh received one injury; and Smt, Kamla w/o Chhangansingh also received one injury. Chhagan Singh received two injuries. Deceased Madhosingh received two injuries and bout of them were contusions, the first one being on the left parietal region and of scolp vertical in direction, and second one was on the back of the left forearm. Prabhusingh received three injuries. 4. After the investigation, a challan was filed against Rambirsingh, Hari Singh and Nandsingh. After the preliminery enquiry, the case was committed to the Sessions Court. All the accused persons pleaded not guilty, and claimed trial. 5. Twenty witnesses were examined by the prosecution. The statements of the accused persons were also recorded under Section 313, Cr. P C., who denied the commission of the offence, and they pleaded that the disputed Bara was owned and possessed by them for the last 30-35 years, and further that the members of the complainant-party, namely, Chhagansingh. Madhosingh deceased, Moolsingh, Bhanwarsingh and Prabhusingh armed with lathis came into the Bara and wanted to eject Harisingh forcibly. When Harisingh asserted his right of possession they made an assault on him, and started inflicting injuries on his person. On this, Nandsingh and Ranbirsingh came to rescue of their father, and they were also given beating by the complainant-party. Accused Harisingh made a report of the occurrence at Police Station Niwai, which was registered as F. I. R. No. 88. According to the defence story, Badri, Arjun Singh, Bhagwarsingh, Gangu and Rugga were not present on the spot. On this, Nandsingh and Ranbirsingh came to rescue of their father, and they were also given beating by the complainant-party. Accused Harisingh made a report of the occurrence at Police Station Niwai, which was registered as F. I. R. No. 88. According to the defence story, Badri, Arjun Singh, Bhagwarsingh, Gangu and Rugga were not present on the spot. However, the accused persons did not lead any defence evidence either oral or documentary. 6. The learned Additional Sessions Judge, after hearing the arguments of the prosecution and the defence, came to the conclusion that it was proved that deceased Madho Singh died on account of the injuries caused by Hari Singh, Ranbir Singh and Nand Singh, and that all the three accused inflicted serious injuries on the members of the complainant-party. In doing so, reliance was placed on the statements of PW I Prabhu Singh, PW 8 Sint. Kamla and PW 14 Bhanwar Singh and Chhagan Singh P.W. 15. 7. It was found that Harisingh is the real brother-in-law of Madhosingh deceased, who was given land in his village. 8. The trial court was of the opinion that lathi-blows on the persons of Prabhusingh, Bhanwarsingh, Chliagansrngh, Smt. Kamla and Bhanwari Bai, were caused by Harisingh, Nandsingh and Ranbirsingh, and it was then that Harisingh gave lathi-blow on the head of Madhosin.,h. Nandsingh gave a lathi-blow on the neck of Madhosingh in particular. 9. The trial court was of the opinion that the testimony of Bhanwarsingh and Prabhusingh remained unshaken and that they were trustworthy witnesses, whose testimony could not be disbelieved though there were some minor discrepancies regarding the time and the place of occur once. The trial court further utilised its observations of the demaenour of the witnesses and categorically opined that on account of the demaenour of the witnesses also, the court was convinced that the witnesses emerged with credit from cross-examination and that nothing could be doubted in the matter of their credibility. 10. The trial court then discussed the question of possession and after extracting some portion of the statement of Prabhusingh, the son of the deceased, who admitted that cultivation was done by Harisingh, and the similar statements of the other prosecution witnessess, and observed as under : ".........but this evidence is not reliable to reach the conclusion that the Bara is in possession of Hari Singh. It appears from their evidence that the Bara originally belonged to Madho Singh. A casual permission was accorded to accused Harisingh to use it which was later on withdrawn. No witness in defence has come to show that in reality Bara was owned and possessed by accused Harisingh prior to the occurrence. I have carefully gone through the statement of Prabhu Singh PW 1 and other witnesses to this regard, it is no-where in these portions of the statement that Harisingh had sown Tobacco crop in that piece of land with some authority in which the occurrence has taken place. Similarly, there is no reliable material on record to show that accused Harisingh had gone to Bara fir safeguarding tire property, it is immaterial, whether lie succeeded in doing so or not." 11. We have heard Mr. Tiwari, the learned counsel for the appellants and Mr. Chatterjee, the learned Public Prosecutor, at length. On a careful consideration of the entire evidence led before us, we find that there is no doubt that Rambirsingh, Nandsingh and Harisingh caused injuries to the complainant-party, and that deceased Madhosingh received two injuries, one from Harisingh on the head by a lathi, and the other from Nandsingh on the hand, by lathi. There is no doubt that Madhosingh died on account of these injuries, and according to the medical evidence, injury No. 1 was sufficient in the ordinary course of nature to cause death. In view of the above finding, we do not propose to discuss the entire evidence again in so far as the narration of the facts and the prosecution evidence about the occurrence is concerned, because, during the course of arguments, we have found that the entire case would depend on the question whether we can accept the right of private defence of person or property, or person and property both. 12. In order to appreciate the dispute regarding the possession, it would be necessary first to mention the versions of the two sons, Prabhusingh and Bhanwarsingh, of the deceased, who were also injured, and who, according to us, are the best wittnesses, and are fully opposed to the prosecution with regard to the possession. PW 1 Prabhusingh appearing as a witness has stated that Harisingh had cultivated tobacco in the disputed Bara, but this cultivation was done forcibly. PW 1 Prabhusingh appearing as a witness has stated that Harisingh had cultivated tobacco in the disputed Bara, but this cultivation was done forcibly. He has again stated that Harisingh used to say that the Bata belonged to him and his father, and that Madhosingh and the complainant-party used to assert contrary to it. Prabhusingh has very clearly stated that before two months of the occurrence, Harisingh had taken the possession of the Mara and he used to tie his cattle, and that on the date of the occurrence, Chhagansingh told Harisingh not to tie the cattle, and when Harisingh put the Kitunta, there was a scuffle, a fight and Maarpit' in between, and that, when the 'Maarpit' started. Bhanwarsingh came there and then there was a 'Maarpit' between him and Bhanwarsingh, and that, then the other persons also came there, and Harisingh gave a lathi blow to Madhosingh. and that Nandsingh also gave a lathi blow to Madhosingh, and that, thereafter, injuries were caused to the other persons also. 13. It is noteworthy that Prabhusingh is the son of the deceased Madhosingh, and he according to the prosecution case, is the owner of the Bara. His categorical statement is that before two months of the occurrence, Harisingh accused had the possession over the land and that he had cultivated tobacco in it, and that, he used to tie his cattle in the Bara, which was resisted by the complainant-party on the date of the occurrence, is of great significance, and cannot be brushed out as has been done by the trial court. 14. P. W. 14 Bhanwarsingh has given a story of the entire case in his statement, and has said that the possession of the Bara was given to Harisingh by Madhosingh deceased. In his cross-examination, he has stated that this Bari was owned by Madhosingh, but. 'afterwards, Madhosingh gave it to Harising, and that, Harisingh was in possession of the said Bara for the last thirty years, and that, he is married to his father's sister. When asked about the duration of the period regarding the possession having been given to Harisingh, he stated that his father gave a land, a weel and the disputed Bra to Hari Singh about thirty years back. This admission of Bhanwarsingh PW 14, completely demolishes the prosecution case, that the said Bara was in possession of the complainant party. When asked about the duration of the period regarding the possession having been given to Harisingh, he stated that his father gave a land, a weel and the disputed Bra to Hari Singh about thirty years back. This admission of Bhanwarsingh PW 14, completely demolishes the prosecution case, that the said Bara was in possession of the complainant party. It would be useful to notice here that further, in his cross-examination, the said witness Bhanwarsingh, in order to show the motive behind the murder and the disputed, has stated that the fight and dispute started when his father Madhosingh deceased wanted to dispossess or remove Harisingh from this Bira and Harisingh resisted and insisted that his cattle be tied there. It is sigificant to notice that this - witness Bhanwersingh is none else but, the son of deceased Madhosingh, and is aged about forty years, in comparison to his brother who is tweenty-two years of age. This admission of Bhanwarsingh PW 14 that for the last thirty years, the Bira was in possession of Harisingh who is none else but his father's sister's husband, clearly shows that the possession of accused party over the said Bara, is established beyond all reasonable doubt, by the prosecution evidence itself. 15. In our opinion, no other witness would have been more relevant and material than this Bhanwersingh and also Prabhusingh, who are the sons of deceased Madhosingh, who are owners of this Bara and who are interested in possession of this Bara, and getting the culprit punished who has committed the murder of none else, but of their father. We, therefore, are to appreciate this clear and categorical testimony of these two prosecution witnesses. We are convinced that these two prosecution witnesses have clearly established that the Bara was in possession of the accused-party for the last about three decades, and that, on the crucial date of tine occurrence, the accused was in possession of the said Bara; his crop was standing thereon, and further that his cattle used to be tied, and that, it was only then when the deceased wanted to oust the accused from the Bara in dispute that the scuffle started. Here, it would be useful to mention that apart from these two sons of deceased Madhosingh, namely, Prabhusingh and Bhanwar Singh, there are two more witnesses, PW 4, Shvamsingh, and PW 13 Bhagwansingh, who corroborate them and also admitted the possession of the accused-party over the Bara in dispute. It is not necessary to mention here in detail, the extracts of the statement, of witnesses Shvam Singh and Bhanwcrsingh. as we have already discussed that Prabhusingh and Bhanwar Singh, being injured, and being the sons of deceased Madhosingh, and further, being the alleged owners of this land, are most important and material witnesses in the case, and their admissions are clear and categorical that the possession of the accused-party over the disputed land, is proved beyond all reasonable doubt. 16. It is now to be seen as to how the dispute started. As we have mentioned above, it is very clear that it was only then, when the deceased, Madhosingh, tried to oust the accused from the Bara in dispute, and resisted him from tying his cattle therein and as the accused was in its possession for the last thirty years, as is evident from the evidence of Bhanwarsingh, that the dispute started. Even, according to Prabhusingh. the possession of the accused over the disputed Bara was two months' old. That being so, deceased Madhosingh and his sons could not have taken the law in their own hands by making efforts to oust the accused from the said Bara, forcibly, and they should have moved a regular court of law for taking the possession if they thought that the possession of Harisingh over the disputed Bara was illegal and unlawful. 17. It is then to be noticed that Harisingh according to the medical report (Ex. D/1), received three contusions, the first one being on the right side of the parietal region of scalp vertical, soft clot in it, and the other two were on the right and left sides of the parietal and scapular regions of the scalp. Accused Nandsingh also received injuries; and accused Ranvirsingh also received two contusions, the First one being on the left parietal region of the scalp: and the other one being on the planter aspect of the left side. The fact that the accused persons also received injuries, is also admitted by Bhanwersing in his statement. 18. Accused Nandsingh also received injuries; and accused Ranvirsingh also received two contusions, the First one being on the left parietal region of the scalp: and the other one being on the planter aspect of the left side. The fact that the accused persons also received injuries, is also admitted by Bhanwersing in his statement. 18. It would thus be seen that the incident in which, Madhosingh deceased lost his life, was the result of the fight or a scuffle between the two parties, in which the deceased wanted to take possession of the Bara, which was in possession of the accused party. 19. It is also not without significance that though the accused party had a sword, as Ranwirsing had a sword in his hand at the time of the occurrence, yet, the same was not used. The weapons used by the accused party consisted of 'lathis' only; and it is also a well-known fact that the village-people always used to carry 'lathis' in their hands. 20. We are, therefore, of the opinion that accused Parisingh and his sons had a legal right to defend their possession over the Bara, and further, that they had also the right of private defence of their persons. In Mina v. The State of Rajasthan ( 1978 RLW 245) , this Court has discussed in detail the right of private defence as under:- "44. It would be interesting to know the state of ancient laws in our country "yavhara Mayukha" describes first who can be called "Atatayin" i.e., with felonious intent. Vashisthe says that an incendiary, a prisoner, one armed with a weapon, one who robs another of his wealth, one who snatches another's field and wife, these six are "Atat-ayins." 45. Manu says, "One may certainly kill without hesitation a man who comes upon him as an Atataying whether lie be a teacher or a child or an old man or a learned Brahmin." 46. Katyanc says, One may go on to kill another who approaches as an Atataying (i. e., with a felonious intent) even if he be one who hi.s thoroughly mastered the Vedas; thereby lie does not incur the sin of Brahamana murder. 47. Katyanc says, One may go on to kill another who approaches as an Atataying (i. e., with a felonious intent) even if he be one who hi.s thoroughly mastered the Vedas; thereby lie does not incur the sin of Brahamana murder. 47. The ancient Shastras have given great importance to the right of private defence and made it a religious study or a person to kill a person who is an "Atatayig if he comes raising his weapon and if one fails to kill him, he would become guilty as a murderer. In the Mitakshara, Galver says. He who kills a learned Brahman who approaches as an Atataying raising his weapon to strike does not become the murderer of a learned Brahmans. He would be so if he did not kill him." In that case, it was also observed that the observations of the Supreme Court in Jaidev v. State of Punjab were as under : "In Judging the conduct of a person who proves that he had a right of private defence allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward of the danger and to save himself and his property, and so, he would necessarily be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, lie must not use more force than appears to be reasonably necessary. But, in dealing with the question as to whether more force is used that is necessary or that was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court-room for instance long after the incident has taken place. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or property is real and immediate. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right in the exercise of his right he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared, so long as the threat lasts and the right of private defence can be legitimately exercise d it would not be fair to require that he should modulate his defence step by step according to the attack, before therein reason to believe the attack is over. "In the ordinary course of human conduct, the accused's uppermost instinct when they are threatened with extinction of their person and property would be to ward off the threat by whatever methods and means they can adopt without permitting the opportunity to the complainant party to succeed in their objective." 21. In the instant case, there is no manner of doubt that the quarrel between the deceased and the accused-party started, when the deceased tried to oust the accused-party from the Bara of which the accused-party was in possession for the last three decades, and on which, the crop of the accused-party was standing, and the cattle of the accused was being tied. We have further found that the accused-party did not use the sword even though it was in their hands, but, used 'lathis' only to cause injury to the deceased, and in the present case, it cannot be said that the accused party exceeded the right of private defence. 22. We are, therefore, of the opinion that the learned Additional Sessions Judge was also not correct in inventing the theory that the possession of the Bara was taken back and that, on the date of the incident, the accused-party was not in possession of the same. 23. 22. We are, therefore, of the opinion that the learned Additional Sessions Judge was also not correct in inventing the theory that the possession of the Bara was taken back and that, on the date of the incident, the accused-party was not in possession of the same. 23. Accordingly, we hold that accused Harisingh and his sons Ranvirsingh and Nandsingh though caused injuries to the complainant party and two of them were responsible for the death of the deceased, Madhosingh, but, since Madhosingh and other persons were aggressors who wanted to oast the accused-parry from the possession of the Bara in dispute without taking the help of law courts, the accused persons were entitled to defend their persons and the property and that the injuries which were caused on the deceased and his other associates, were only in the exercise of the right of private defence. They are, therefore, not guilty and are entitled to acquittal. 24. We, therefore, accept this appeal. The conviction against the accused- appellants, recorded by the trial court and so also the sentence passed against them, namely, Ranbir Singh, Nand Singh and Hari Singh, are set aside. All these three persons are on bail. They are acquitted of the charges levelled against them, and they need not surrender. Their bail bonds are discharged. *******