Judgment AGARWAL, J. ( 1 ) BHINYA Ram and his three sons, Bhanwaroo Girdhari and Ram Kumar, have filed this appeal against the judgment of the Sessions Judge, Merta dated 14th December, 1973 in Sessions Case No. 15/73. In the said case the aforesaid appellants were charged with offences under sections 302, 324 and 323 Indian Penal Code and in the alternative under sections 302, 324 and 323 read with section 34 Indian Penal Code. The Sessions Judge convicted all the four appellants of the offence under section 302 read with section 34 Indian Penal Code and sentenced each one of them to imprisonment for life and to pay a fine of Rs. 20/- each and in default of payment of fine to undergo further R. I. for 2 years. Appellant Girdhari has also been convicted for the offences under section 323 Indian Penal Code and has been sentenced to rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 51/- and in default to payment of fine to undergo rigorous imprisonment for a further period of one month. ( 2 ) THE case of the prosecution is that Poornaram (P. W. 1) had four sons viz. Bhinya Ram appellant. Ruggha Ram deceased, Sanwalia Ram (P. W. 3) and Dola. Appellant Bhinya Ram and deceased Ruggha Ram had separated from their father and were having their separate lands for cultivation. San walia Ram and Dola were living with their father Poona Ram. The field of appellant Bhinya Ram lies at a distance of about 2 miles from village Dugoli. The fields of deceased Rughha Ram adjoined the field of appellant Bhinya Ram in the north and east and the field of Poorna Ram (P. W. 1) lies towards the south of the field of appellant Bhinya Ram. A path from village Dugoli to village Sinwad passes, through the field of appellant Bhinya Ram. On 30th October 1972 at about 10 A. M. the appellants were in their field and were loading their cart with the cobs of Bajra that was harvested by them in their field. They had also hired the camel cart of Rama Kishan (P. W. 9) and he was also present in the field of the appellant with his cart at that time. They had also hired the camel cart of Rama Kishan (P. W. 9) and he was also present in the field of the appellant with his cart at that time. Deceased Ruggharam, while he was going to his field passed by the field of the appellants and appellant Bhinya Ram asked the deceased to come and take the money which was owed to him by appellant Bhinya Ram. Thereupon deceased Rugga Ram went in- the field of Bhinya Ram and as loon as he reached near the place where the appellants were loading their cart, all the four appellants started assaulting him. Appellant Bhinya Ram was armed with a Chosangi, a four pronged stick, Bhanwaroo had a jei, Girdhari had a lathi and Ram Kumar had a Kasai. Rugga Ram, on being attacked by the appellants, raised an alarm. At that time Poorna Ram (P. W. 1) was passing by with a loaded cart of folder and, on hearini the alarm of Rugga Ram, Poorna Ram ran towards the field of the appellants. Sanwalia Ram (P. W. 3) was working in his field and he also heard the alarm of Rugga Ram and came running to the field of the appellants Poorna Ram and San walia Ram were also assaulted. Poorna Ram and Sanwalia Ram came to their Dhani. From the Dhani San walia Ram went along with his mother to the scene of the occurrence and. Puma Ram went to meet Hanuwat Singh, (P. W. 8) Sarpanch of the village Dugoli. After meeting Hanuwat Singh, Poorna Ram narrated the incident to him and asked him to write down a report for the purpose of lodging with the police. A report (Ex. P. 1) was written out by Ganesh Ram (P. W. 10) Kamdar of Hanuwat Singh, and, after the thumb impression of Poorna Ram had been obtained on it. the said report was taken to Police Station, Surpalia by Kashi (P. W. 2) and Ganesh Ram (P. W. 10) and it was lodged at Police Station, Surpaliya on 30th October 1972 at 6 P. M. On the basis of the said report Awad Dan (P. W. 4) who was S. H. O. of Police Station, Surpaliya; registered a case under section 302 and 307 Indian Penal Code and commenced the investigation. Awad Dan prepared the site: plan (Ex. P. 5) memo of site inspection (Ex. Awad Dan prepared the site: plan (Ex. P. 5) memo of site inspection (Ex. P. 6) and the inquest report (Ex. P. 7 ). He seized blood stained earth and ordinary earth from near the cart in the field of appellant Bhinya Ram vide seizure memo Ex. P. 8 and from near the place the dead body of Rugga Ram was lying vide Seizure Memo, Ex. P. 10. He also seized the clothes of the deceased vide seizure memo Ex. P. 9. The post - mortem examination or the dead - body of deceased Rugga Ram was conducted by Dr. Ram Ratan Nagora (P. W. 6), Medical Officer, Primary health Centre, Deh. on 1st October, 1972 at 2 P. M. According to post mortem report (Ex. P. 16) the deceased had 25 injuries on his person out of which 21 injuries were grievous. In the opinion of the Medical Officer the death was caused by excessive haemorrhage and shock caused by the, injuries. Dr. Ram Ratan Nagora also examined the injuries of Poorna Ram (P. W. 1) on 31st October, 1972 at 3 P. M. and prepared the injury report Ex. P. 17. According to the said injury report Poorna Ram had 5 simple injuries on his person. Dr. Ram Ratan Nagora also examined the injuries on Sanwalia Ram (P. W. 3) on 31st October, 1972 at 10 A. M. and prepared the injury report Ex. P-18. According to the said injury report San walia Ram had 6 injuries which were all simple. Appellants Bhinya Ram and Girdbari were arrested on 31st October, 1972. According to the Arrest Memo (Ex. P. 11), at the time of his arrest appellant Bhinyaram had two injuries, one on the Palm of his right hand and the other on forehead and the blood has present on both the injuries. Appellants Ram Kanwar and Bhanwaroo were arrested on 2nd November 1972. On the basis of information (Ex. P. 24) given by the appellant Bhinya Ram a Chosangi was recovered vide recovery Memo Ex. P. 20 on 10th November 1972. Similarly on the basis of information (Ex p. 23); given by appellant Bhanwaroo a Chosangi was recovered vide memo Ex. p. 19. On the basis of information (Ex. p. 26) given by appellant Girdhari a lathi was recovered vide memo Ex. p. 21. On the basis of the information (Ex. P. 20 on 10th November 1972. Similarly on the basis of information (Ex p. 23); given by appellant Bhanwaroo a Chosangi was recovered vide memo Ex. p. 19. On the basis of information (Ex. p. 26) given by appellant Girdhari a lathi was recovered vide memo Ex. p. 21. On the basis of the information (Ex. p. 25) given by appellant Ram Kumar a kassi was recovered vide memo Ex. p. 22. The Chosangi recovered at the instance of appellant Bhinya Ram. The Kassi recovered at the instance of appellant Ram Kumar and the lathi recovered at the instance of Girdhari were sent for chemical examination and the report (Ex. p. 27) of the Chemical Examiner showed that while the lathi recovered at the instance of appellant Girdhari was negative for blood, the Chosangi recovered at the instance of appellant Bhinya Ram and the Kassi recovered at the instance of appellant Ram Kumar were positive for blood. The report Ex. p. 28) of the Serologist showed that the Chosangi as well as Kassi were both stained with human blood, but the group of the blood could not be determined. After completing the investigation the police filed a charge sheet against the appellants and Smt. Sohni, wife of appellant Girdhari, and Smt. Manohari, daughter of appellant Bhinya Ram in the Court of Munsif Magistrate, Nagaur. The Munsif Magistrate, Nagaur after holding an enquiry discharged Smt. Sohni and Smt. Manohari and committed the appellants, for trial to the Court of Sessions. Thereafter charge under Sections 302, 324 and 323 Indian Penal Code and in the alternative under sections 302, 324 and 323 read with section 34 Indian Penal Code were framed and read over to the appellants by the Sessions Judge, Morta. The appellants pleaded not guilty alid claimed to be tried. ( 3 ) THE prosecution, in support of its case, examined 11 witnesses, Purnaram (P. W. 1 ). Sanwalia Ram (P. W. 3) and Ramakishan (P. W. 9) have been examined as eye - witnesses of the occurrence. Hanwat Singh (P. W. 8) and Ganesh Ram (P. W. 10) have been examined to prove the extra judicial confession said to have been made by the appellants. Kashi Ram (P. W. 2) was the person who went to Police Station, Surpalia and lodged the report (Ex. p. 1 ). Dr. Hanwat Singh (P. W. 8) and Ganesh Ram (P. W. 10) have been examined to prove the extra judicial confession said to have been made by the appellants. Kashi Ram (P. W. 2) was the person who went to Police Station, Surpalia and lodged the report (Ex. p. 1 ). Dr. Ram Ratan Nagora (P. W. 6) was the Medical Officer who conducted the post-mortem examination of the dead body of Rugga Ram and had also examined injuries of Poornaram and Sanawalia Ram and has proved the post mortem report Ex. 16 and injury reports Ex. P-17 and Ex. P. 18. Heera Ram (P. W. 7) is the attesting witness with regard to the recovery memos Ex. p. 19, P. 21 and p. 22. Vijaidan (P. W. 5) was the police constable, who had carried the sealed packets from the office of the Superintendent of Police, Nagaur, to the chemical examiner at Jaipur. Awad Dan. (P. W. 4) was posted as S. H. O. at Police Station Sarpalia at the relevant time and Shri Vasudev (P. W. 11) was posted as Deputy Superintendent of Police, Nagaur at that time and had conducted the investigation in the case. ( 4 ) IN their statements recorded under Section 342 Criminal Procedure Code the appellants denied the presence of appellants Bhanwaroo and Ram Kumar at the scene of the occurrence and pleaded that they had gone to Ladnu on that date. Appellant Bhinya Ram stated that Poornaram, San walia Ram, Dola and deceased Ruggaram had come to his field and Rugga Ram demanded the money which was owed to him and Poorna Ram wanted that the said money should be said to him. Both of them asked him (Bhinya Ram) not to remove the cobs of Bajra. Thereafter deceased Rugga Ram started assaulting Puma Ram and a fight took place between Rugga Ram and Puraa Ram, Sanwalia and Dola. He (Bhinyaram) tried to intervene and sustained Injuries. Appellant Girdhari has also raised same plea as raised by appellant Bhinya Ram. The appellants, in support of their defence, examined two witnesses viz. Smt. Manohari (D. W. 1) who is the daughter of appellant Bhinyaram and Peetha Ram (D. W. 2) the son of deceased Rugga Ram. He (Bhinyaram) tried to intervene and sustained Injuries. Appellant Girdhari has also raised same plea as raised by appellant Bhinya Ram. The appellants, in support of their defence, examined two witnesses viz. Smt. Manohari (D. W. 1) who is the daughter of appellant Bhinyaram and Peetha Ram (D. W. 2) the son of deceased Rugga Ram. ( 5 ) THE Sessions Judge did not place reliance on the extra judicial confession said to have been made by the appellant before Hanwat Singh and Ganesha Ram. The Sessions Judge did not accept the testimony of Ramakishan P. W. 9. The Sessions Judge also did not believe the testimony of Poornaram P. W. 1 and Sanwaliaram P. W. 3 in so far as they have deposed that the appellant Bhinya Ram had called deceased Rugga Ram to his field to take the money which Bhinya Ram owed to him. The Sessions Judge was however, of the view that reliance could be placed on the testimony of Puma Ram P. W. 1 and San walia Ram P. W. 3 when they say that all the four accused had inflicted injuries on the person of deceased. The Sessions Judge also placed reliance on circumstance that the Chosangi which was recovered at the instance of appellant Bhinya Ram and the Kassi which was recovered at the instance of appellant Ram Kumar were found stained with human blood and further that the dead body of Rugga Ram was found in the field of appellant Bhinya Ram and that blood as well as struggle marks and broken pieces of prongs were also found there. In view of the aforesaid evidence the Sessions Judge held that the prosecution had succeeded in establishing that the appellants had inflicted injuries on the person of deceased Rugga Ram as a result of which he died and that appellant Girdhari had inflicted injuries on the person of Sanwalia Ram when he tried to save his brother Puggaram. The Sessions Judge did not accept the defence case and held that the testimony of Smt. Manohari and Peetharam examined by the appellants in their defence did not inspire confidence and was unbelievable. The Sessions Judge also held that the defence case that the deceased was belaboured by the complainant party was utterly false. The Sessions Judge did not accept the defence case and held that the testimony of Smt. Manohari and Peetharam examined by the appellants in their defence did not inspire confidence and was unbelievable. The Sessions Judge also held that the defence case that the deceased was belaboured by the complainant party was utterly false. In view of the findings aforesaid the Sessions Judge convicted all the four appellants of the offence under section 302 read with section 34 Indian Penal Code and further convicted appellant Girdhari of the offence under section 302 Indian Penal Code. The Sessions Judge acquitted the appellants of the other charges. Feeling aggrieved by their conviction and the sentence imposed on them the appellants have filed this appeal. ( 6 ) WE have heard Shri P. L. Choudhary, the learned counsel for the appellants, in support of the appeal, and Shri R. C. Maheshwari, the learned Public Prosecutor on behalf of the State. ( 7 ) IN the present case there is no dispute that on 30th October 1972 at 10 A. M. an accident took place in the field of appellant Bhinya Ram and in the said incident deceased Rugga Ram as well as Puma Ram P. W. 1 and San walia Ram P. W. 3 sustained, injuries. The fact that an incident took place in the field of appellant Bhinya Ram is established from the testimony of Awad Dan P. W. 4 who had conducted spot investigation in the morning of 31st October 1972 and had prepared the Site Plan (Ex. P. 5), Memo of site-inspection (Ex. P. 6), Inquest report (Ex. P. 7) and had also seized blood stained earth from the field of appellant Bhinya Ram vide Memos Ex. P. 8 and P. 10. From the aforesaid documents it is established that the body of deceased Rugga Ram was found in the field of appellant Bhinya Ram and blood was also found in the field of appellant Bhinya Ram and that there were signs of struggle in the said field and broken prongs were also found in the said field. The injuries on the person of deceased Rugga Ram, Poorna Ram P. W. 1 and Sanwalia Ram P. W. 3 are proved by Dr. Ram Ratan Nagora (P. W. 6), who had conducted the, post mortem examination of the dead body of Ruggaram, and had proved the postmortem report (Ex. The injuries on the person of deceased Rugga Ram, Poorna Ram P. W. 1 and Sanwalia Ram P. W. 3 are proved by Dr. Ram Ratan Nagora (P. W. 6), who had conducted the, post mortem examination of the dead body of Ruggaram, and had proved the postmortem report (Ex. P. 16) and has also proved injury report (Ex. P. 17) relating to the injuries found on the person of Poorna Ram and the injury report (Ex. p. 18) relating to the injuries found on the person of San walia Ram. From the aforesaid evidence of Dr. Ram Ratan Nagora it is established that the deceased had 25 injuries on his person out of which 6 were incised wounds, 12 were stab wounds, 5 were contusions and 2 were fractures. Dr. . Ramratan Nagora has stated that the incised wound found on the person of the deceased were caused by a weapon like the Kassi Ex. P. 6 by its sharp side blade and that the stab wound would be caused by prongs of a Jei like Ex. P. 7. From the evidence of Dr. Ramratan Nagora it is also established that Poorna Ram (P. W. 1) bad five simple injuries on his person out of which four were contusion, and one was heamotoma and that the said injuries could be caused by a Jei. The evidence of Mr. Nagora also shows that Sanwalia Ram (P. W. 3) had six simple injuries on his person out of which two were incised wounds, two Were abrasions, one was a lacerated wound and one was haemotoma and that an incised wound found on the person of Sanwalia Ram could be caused by Kassi and that the other wounds found on his person could be caused by a Lathi. On the basis of the aforesaid medical evidence it can be said that deceased Rugga Ram was assaulted by Kassi, Jei and lathi whereas San walia Ram (P. W. 3) was assaulted with Kassi and Lathi and Purnaram (P. W. 1) was assaulted with a Jei. Apart from the injuries found on the person of the deceased and Poornaram and Sanwaliaram there is also evidence to show that appellant Bhinya Ram had also sustained injuries in the said incident. This is borne out by the Memo of arrest Ex. Apart from the injuries found on the person of the deceased and Poornaram and Sanwaliaram there is also evidence to show that appellant Bhinya Ram had also sustained injuries in the said incident. This is borne out by the Memo of arrest Ex. p. ii which was prepared at the time of arrest of appellant Bhinyaram on 31st October, 1972 at 9. 30 P. M. According to, the said Arrest Memo appellant Bhinya Ram, at the time of arrest, bad an injury on the palm of his right hand and there was also an injury on the forehead and that blood was present on both the injuries. Awad Dan, (P. W. 4), who had arrested appellant Bhinya Ram and had prepared the aforesaid Memo (Ex. p. 11), bas admitted that appellant had the injuries mentioned in the Memo and bas stated that he did not get the said injuries medically examined because the investigation at that time was being conducted by the Deputy Superintendent of Police. On the basis of the aforesaid evidence it must be held that an incident had taken place in the field of appellant Bhinya Ram on 30th Oct. 1972 at 10 A. M. and in the said incident deceased Rugga Ram as well as Puma Ram (P. W. 1) and Sanwalia Ram (P. W. 3) and appellant Bhinya Ram bad sustained injuries. ( 8 ) AS noticed earlier there are two versions before the Court with regard to the aforesaid incident. One is the version given by prosecution witnesses, viz. , that appellant Bhinya Ram Called deceased Rugga Ram to- his field by saying that he would pay the money Which he owed to Ruggaram and when Ruggaram, reached near the appellants he was assaulted by the four appellants, and, on hearing the cries of Ruggaram, Puma Ram (P. W. 1) and Sanwalia Ram (P. W. 3) came to his rescue aild they were also assaulted. The other, version is that pleaded by appellants Bhinya. Ram and Girdhari in their statements recorded under Section 342 Cr. The other, version is that pleaded by appellants Bhinya. Ram and Girdhari in their statements recorded under Section 342 Cr. P. C. that while they were loading the cobs of Bajra in their cart, deceased Rugga, Ram as well as Purnaram, Sanwaliaram and Dola, came to their field and Ruggaram demanded the money which Bhinya Ram owed to him and Purnaram wanted that the said money should be paid to him and thereupon there was a fight between the deceased Ruggaram and Purnaram Sanwaliaram and Dola and when Bhinyahim intervened, he too sustained injuries. ( 9 ) ADMITTEDLY, at the time of the incident, apart from the appellants and the deceased the other persons who were present at the scene Of the occurrence were Poornaram (P. W. 1), Sanwaliaram (P. W. 3), Rama Kishan (P. W. 9) Bhagwana son of Rugga Ram, Peetha (D. W. 2) son of Rugga Ram, Smt. Sohni wife of appellant Girdhari Smt. Manohari (D. W. 1) daughter of appellant Bhinya ram and the wife of appellant Ram Kumar. Out of them the prosecution has examined Purnaram (P. W. 1), and Rama Kishan (P. W. 9 ). The accused in Tthese defence have examined Smt. Manohari (D. W. 1), and Peetha (D. W. 2 ). Bhagwana son, of deceased Ruggaram, Smt. Sohni w/o appellant Girdhafi and the wife of appellant Ram Kumar have, not been examined by either of the parties. ( 10 ) IN so far as defence version, as pleaded by appellants Bhinyaram and Girdhari, is concerned we have carefully considered the testimony of Smt. Manohari (D. W. 1) and Peetha Ram (D. W. 2) and the reasons that nave beeli given by the Sessions Judge for rejecting their testimony we find ourselves in agreement with the said reasons given by the Sessions Judge, and in our opinion no reliance can be played on the testimony of the aforesaid defence witnesses, Shri Choudhari, learned counsel for the appellant has also not challenged the finding recorded by the Sessions Judge in that regard. ( 11 ) SRI Choudhary has however, submitted that there is a material to show that deceased Ruggaram had entered the field of appellant Bhinya ram with a view to prevent the appellant from loading the cobs of Bajra in their cart and further that he had assaulted appellant Bhinyaram and had also tried to unload the cart and that the injuries that were inflicted by the appellants on the person of deceased Rugga Ramand Poorna Ram (P. W. 1) and San walia Ram (P. W. 3) were caused in the exercise of the right of private defence of property as well as person and, therefore, the appellants cannot be said to have committed any offence in causing the said injuries. Before we proceed to examine the aforesaid contention of Shri Choudhary it is necessary to deal with the submission of the Public Prosecutor that it is not open to the appellants to set up this case of right of private defence of property and person because they did not raise the said plea during the course of trial and that on the other hand, they had raised a completely different plea in their statements recorded under Section 342, Criminal Procedure Code viz, that the injuries on the person of deceased Rugga were inflicted by Purnaram, Sanwaliaram and Dola and not by appellants. ( 12 ) WITH regard to right of private defence the law is well settled that even if the accused does not plead self defence it is open to the Court to consider such a plea if the same arises from the material on record. ( 12 ) WITH regard to right of private defence the law is well settled that even if the accused does not plead self defence it is open to the Court to consider such a plea if the same arises from the material on record. Even when the accused has raised the plea of alibi the Court would not be precluded from giving to him the benefit of right of private defence if, on a proper appraisal of the evidence and other relevant material on record, the Court concludes that the circumstances in which he found himself at the relevant time, gave him such a right and that when there is evidence proving that a person accused of killing or injuring another acted in the exercise of right of private defence the Court would not be justified in ignoring that evidence and convicting the accused merely because the latter has set up a defence- of alibi and set forth a plea different from the right of private defence (See G. V. S. Subramanyam v. State of Andhra Pradesh. In Aher Raja Ladha v. State of Gujarat, the accused had raised the plea of self defence before the committal court but did not take up the said plea before the trial court. The Supreme Court held that even though the accused had abandoned the plea of self defence the trial court and High Court were not justified in refusing to examine the said plea merely on the ground that it had been abandoned by the accused in the trial court. In Pratap Mishra and others v. State of Orissa in a charge of rape the defence of the accused persons before the trial court was one of complete denial of the prosecutions allegations. In Pratap Mishra and others v. State of Orissa in a charge of rape the defence of the accused persons before the trial court was one of complete denial of the prosecutions allegations. The Supreme Court, however, held that in view of the aforesaid plea of denial the Court could examine the evidence on record for the purpose of determining to whether the accused persons had sexual intercourse with the prosecutrix not against her will but with her consent and held that the Sessions Judge was not right in dismissing the plea of consent on the ground that it was not pleaded by the accused and that, in doing so, the Sessions Judge had completely lost sight of the fact that in criminal case the accused is not bound by his pleadings and it is open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. In Vidhya Singh v. State of Madhya Pradesh the Supreme Court found that the version given by the prosecass "msonormal" style=text-align: justify; line-height: 120%; margin-left:. 5in; margin-top: 15; margin-bottom: 15> Exception 2, - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and 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. A bare perusal of the aforesaid provision shows that it deals with cases where the offender has caused the death of a person while exercising the right of private defence of person or property and has exceeded the said right. It prescribes that in such a case the act of the offender would not constitute to murder but would only constitute culpable homicide not amounting to murder provided the following conditions are satisfied: (i) the offender must have been acting in good faith; (ii) he must have acted without premeditation, and (iii) he must have acted without any intention of doing more harm than is necessary for the purpose of the defence of his person or property. If any of the aforesaid three conditions prescribed in Exception 2 fails to be satisfied, the benefit of the aforesaid exception cannot be given to the offender and the action of the offender would constitute the offence of murder punishable under section 302 Indian Penal Code. In other words the fact that the death was caused by the offender while he was exercising his right of private defence of person or property and had exceeded the said right, would by itself not justify the offender being given of Exception 2. In order to be entitled to invoke Exception 2 the offender will have to further show that he was exercising his right of private defence of person or property in good faith and that he had acted without premeditation and without any intention of more harm than was necessary for the purpose of such defence of person or property. It may be observed that in condition (iii) referred to above the emphasis is on the intention of the offender and not on the actual act committed by him. Even if the offender has caused more harm than is necessary for the purpose of defence of his person or property he may be entitled to invoke the protection of Exception 2 if he can show that he did not have the intention of causing the said harm and that the said harm was caused on account of his instinct for self preservation. As to whether the offender was driven by the instinct of self preservation or he had the intention of causing more harm than was necessary for the purpose of defence of his person or property has to be determined on the basis of the facts and circumstances of each case. ( 13 ) CASES have arisen in which the offender while exercising the right of private defence of person or property, has exceeded the said right and has caused death and it has been held that the said acts amounts to murder since the offender had failed to establish that there was no pre-meditation or that there was no intention to do more harm than was necessary for the purpose of the said defence. In this context reference may be made to the decision of the Supreme Court in Gurdatta Mal v. State of Uttar Pradesh In that case the deceased persons were harvesting the crop on a plot of land under the protection of the police and none of them was in possession of any dangerous weapon. The accused who claimed the crops attacked the deceased with guns and other dangerous weapon and shot them down from close range, after sending away, by ruse, the constables who had accompanied the deceased to the field. The Supreme Court held that Exception 2 to section 300 Indian Penal Code could not be invoked by accused since, on the facts, it could not be said that the accused had shot at the deceased without pre-meditation and without the intention of doing more harm than was necessary for the purpose of private defence. The Supreme Court found that there was both pre-meditation and intention to do more harm than was necessary when the accused did the said acts. The aforesaid decision shows that even in cases where the accused acts in the exercise of right of private defence of property or person and while exercising the said right he exceeds the aforesaid right of private defence of property or person and caused death, his act would constitute murder unless he can show that he had acted without pre-meditation and without the intention of doing more harm than was necessary for the purpose of private defence. ( 14 ) SIMILARLY in Ram Dahin Singh and others v. State of Bihar the Supreme Court has emphasised that the right of private defence is purely prevention and not positive or retributive and has laid down that Exception 2 to Section 300 Indian Penal Code postulates the exercise of the right of private defence in good faith and also with premeditation and intention to do more harm than is necessary for the purpose of self-defence. ( 15 ) SHRI Choudhary has invited our attention to the decision of the Supreme Court in Tara Chand v. State of Haryana, and has pointed out that in that case the conviction of the accused persons under section 302 Indian Penal Code was set aside and they were convicted of the offence under section 304 Part I Indian Penal Code even though it was found that the accused persons had exceeded the right of private defence of property and that even after the deceased had fallen down the accused persons continued to injure him in a vindictive and revengeful spirit. In the said decision there is no reference to the provisions of Exception 2 to Section 300 Indian Penal Code. In our view the said decision can not be read as laying down that the benefit of Exception 2 to Section 300 Indian Penal Code should be extended to all cases where the right to private defence of person or property has been exceeded irrespective of the fact whether the offender was acting in good faith or with premeditation or had the intention of doing more harm than was necessary for the purpose of self defence. ( 16 ) IN the present case the assault on the deceased by the appellants had taken place during the course of an altercation between the deceased and appellant Bhinyaram about the payment of money owed by Bhinya Ram to the deceased and he had also inflicted injuries on the person of appellant Bhinya Ram with the Jeis. In the circumstances it can not be said that in inflicting the injuries on the person of the deceased the appellants while exercising their right of private defence of person and property were not acting in good faith and had acted with any pre-meditation. In the circumstances it can not be said that in inflicting the injuries on the person of the deceased the appellants while exercising their right of private defence of person and property were not acting in good faith and had acted with any pre-meditation. But taking into consideration the fact that the deceased was alone and the accused persons were four in number and the deceased had fallen on the ground after sustaining the first blow given by appellant Girdhari and thereafter he was not in a position to offer any resistance, and most of the Subsequent in juries which were inflicted on the person of the deceased with lathi, kassi and jeis, most were grievous in nature, it can be reasonably inferred that the said injuries were inflicted with an intention of causing more harm than was necessary for the exercise of the right of private defence of person and property of the appellant. The appellants can not, therefore, claim the protection of Exception 2 to Section 300 Indian Penal Code and the action of the appellants in causing the death of deceased Rugga Ram amounts to murder punishable under section 302, Indian Penal Code and it cannot be regarded as culpable homicide not amounting to murder punishable under section 304 Indian Penal Code. In the circumstances we are of opinion that the appellants have been rightly convicted for the offence punishable under section 302 read with section 34 Indian Penal Code. ( 17 ) IN so far as the conviction of the appellant Girdhari for the offence under section 323 Indian Penal Code is concerned-it may be observed that it is amply proved from the evidence on record that appellant Girdhari had inflicted injuries with lathi on the person of Sanwalia Ram. He has, therefore, been rightly convicted for the offence under section 323 Indian Penal Code. We find no ground for interfering with the sentence that has been imposed upon appellant Girdhari by the Sessions Judge for the said offence. ( 18 ) IN the result the appeal, fails and it is accordingly dismissed. The appellants are on bail. They must surrender immediately. The Sessions Judge, Merta, is directed to take steps for the arrest of the appellants for the purpose of their undergoing the sentence that has been imposed upon them. Appeal dismissed.