JUDGMENT 1. - Since these two appeals one by accused Puran Ram and the other by accused Munshi Ram and Dhanna Ram arise out of one and the same judgment of the learned Sessions Judge, Sri Ganganagar dated April 13, 1979, they are heard together and are being disposed of by a common judgment. The appellants were Convicted and sentenced as under : Sr. No. Name of accused Offence Sentence awarded 1. Puran Ram 302, IPC Imprisonment for life. 323, IPC Six months rigorous imprisonment. 325/34 IPC Two years rigorous imprisonment. 447, IPC One month's rigorous imprisonment. 2. Munshi Ram 302, IPC Imprisonment for life. 323, IPC Six months' rigorous imprisonment. 325/34 IPC Two years' rigorous imprisonment 447, IPC One month's rigorous imprisonment. 3. Dhanna Ram 302, IPC Imprisonment for life. 323, IPC Six months' rigorous imprisonment. 325/34 IPC Two years' rigorous imprisonment. 447, IPC One month's rigorous imprisonment. Substantive sentences were directed to run concurrently. 2. Succinctly stated and prosecution case is that appellants Munshi Ram and Dhanna Ram are the sons of appellant Puran Ram. They reside in village Odki district Ganganagar. The deceased-victim Trilok Singh was the son of PW 11 Nand Singh. Nand Singh has one more son by name Anokba Singh. PW 12 Nirmal alias Nimba aged about 12-13 years at the time of incident is the son of Anokha Singb. They reside in Chak No. 9 L and Chak No. D-3 in district Ganga Nagar. The appellant Puran Ram made an agreement on August 24, 1976 to sell his agricultural land Murabba No. 47 measuring 241/2 Bighas situate in Chak No. 9-D to Anokha Singh for a sum of Rs. 60,000/- A sum of Rs. 40,000/- was to be paid to him later on at the time of registration of the Sale-deed. The possession of the land was also delivered to Anokha Singh on that very day along with the execution of agreement Ex. P. 37. Puran Ram executed this agreement in writing which is Ex. P. 37. Since that day Anokha Singh was cultivating the aforesaid agricultural field. A few days before the occurrence (December 13, 1977) Anokha Singh was arrested in some criminal case. As such he requested his father Nand Singh and brother Trilok Singh to look-after his aforesaid land and to carry on cultivation in it so that the land may not remain uncultivated. Since that day Anokha Singh was cultivating the aforesaid agricultural field. A few days before the occurrence (December 13, 1977) Anokha Singh was arrested in some criminal case. As such he requested his father Nand Singh and brother Trilok Singh to look-after his aforesaid land and to carry on cultivation in it so that the land may not remain uncultivated. At about 9.00 A. M. on December 13, 1977 the three appellants went to the aforesaid land. PW 11 Nand singh PW 12 Nimma alias Nirmal and the deceased victim Triloksingh were working there in that field. Accused Puran Ram had a lathi while accused Munshi Ram and Dhanna Ram had Gandasis with them. They asked Nand Singh and Trilok singh to leave the field and go away from there. Nand Singh and Triloksingh replied that since the field was in the possession of Anokhasingh, they were unable to leave it. This annoyed and umbraged the appellant. They made an assault on Triloksingh and landed blows to him with the lathi and Gandasi they had in their hands. It resulted in a merciless and severe beating of Triloksingh. He sustained numerous injuries on his body. When Nandsingh (PW 11) tried to intervene, he too was not spared and was landed blows by the three appellants. There was profuse bleeding from the wounds of Triloksingh. The appellants even then did not relent and took Nand Singh and Triloksingh along with Nimma to their village Odki and put them outside the garrage of one Banarsidas. Triloksingh passed away after some time on that very day. PW 13 Badru Ram, the A. S. I. Police, Police Station, Hindumal Kot reached village Odki at about 4.00 P. M. on December 13, 1977 in connection with the investigation in Criminal Case No. 157, 1977. There he found Triloksingh dead and PW 11 Nandsingh sitting by his side out side the garrage of Banarsidas. He recorded Nandsingh's statement Ex. P. 23 at about 4.45 P. M. Nandsingh gave the full account of the incident in his statement. A case was registered on the basis of Ex. P. 23 taking it to be the F. I. R. The A. S. I. Badruiam prepared the inquest report of the victim's dead body. He also prepared the site plan after inspecting the site. A case was registered on the basis of Ex. P. 23 taking it to be the F. I. R. The A. S. I. Badruiam prepared the inquest report of the victim's dead body. He also prepared the site plan after inspecting the site. The post mortem examination of the dead body of Trilok singh was conducted at about 10.00 A. M. on December 14, 1977 by PW 6 Dr. K. N. Markenday.the then Medical Officer In charge, Primary Health Centre, Shivpuri. He noticed the following injuries on his dead body : External injuries 1. Incised wound 2" x 1/4" x bone deep on the left parietal bone. 2. Lacerated wound 11/2" x 1/2" x bone deep on the right parietal bone. 3. Lacerated wound 1/2" x 1/2" x 1/4" on the left parietal bone. 4. Contusion 2" x 1" on the right temporal region. 5. Lacerated wound 2" x 2" x triangular in shape on the right leg laterally near ankle joint. 6. Contusion 1" x 1/2" on the back of left thigh upper part. 7. Contusion 2" x 3/4" on the back of left thigh at middle. 8. Contusion 1" x 3/4" on the back of left thigh above knee. 9. Contusion 1" x 3/4" on the right side of back at middle of thorax. 10. Contusion 1/2" x 1/2" on the right side of back above 12th rib. 11. Contusion 2" x 1/2" on the right side of back on injury No. 10 near vertebral column. 12. Contusion 1/2" x ⅓" on the back at middle on vertebral column. 13. Contusion 1/2" x ⅓" on the left side of the back upper part. 14. Contusion 1/2" x 1/2" on the left side of back at middle. 15. Contusion 1" x 1/2' x 3* below injury No. 14. 16. Contusion 11/2' x 1" x 1" below injury No. 15. 17. Abrasion 1/4" x 1/10 x irregular near injury No. 16. 18. Contusion 1" x 1/2" on the back of left shoulder. 19. Contusion 1" x 1/4" on the left shoulder. 20. Contusion 4" x 1" on the left side of back at middle. 21. Contusion 4" x 1" on the left side of back near injury No. 20. 22. Contusion 1/2" x 1/2" on the left side of buttock laterally. 23. Contusion 6" x 1" x oblique on the right buttock, 24. Contusion 1" x 1/4" on the left shoulder. 20. Contusion 4" x 1" on the left side of back at middle. 21. Contusion 4" x 1" on the left side of back near injury No. 20. 22. Contusion 1/2" x 1/2" on the left side of buttock laterally. 23. Contusion 6" x 1" x oblique on the right buttock, 24. Abrasion 1" x 1/2" on the lateral side of left elbow. 25. Contusion 2" x 1/2" on the back of left fore arm at middle. 26. Contusion 1" x 1/2" on the left forearm at lower one third. 27. Contusion 1" x 1/2" on the back of right little finger. 28. Abrasion 1/2" x 1/2" x irregular between the middle and ring finger o.` right hand on the back. Internal 1. Fracture of left parietal bone. 2. Fracture of 6, 7, 8, 9 and 10th ribs at left side. 3. Fracture of 10th rib of right side. In the opinion of Dr. Markanday, the cause of death of the victim was hock and hemorrhage due to injuries to the left lung. The post mortem examination report issued by him is Ex. P. 22. 3. On the same day he examined the injuries of PW 11 Nand Singh and found the following injuries: 1. Lacerated wound 1" x 1/4" 1/4" on the back of right fore-arm just below elbow. 2. Lacerated wound 3/4" x 1/4" x muscle deep on the third of right leg. 3. Lacerated wound 1/2" x 1/4" x muscle deep on the lower one third of right leg. 4. Swelling around the left elbow and upper part of left forearm and lower portion of left arm. 5. Contusion 2" x 1" x oblique on the right side of back laterally at middle. The report issued by him is Ex. P. 21. On X-ray examination, fracture of left humorous and fractures of 5,6,7,8, and 10th ribs were detected. The appellants were arrested. In consequence of the disclosure statements made by them, one lathi was recovered at the instance of accused Puranram while two Gandasies were recovered at the instance of appellants Munsiram and Dhannaram. The seized articles were sent for chemical examination. Human blood was detected on one of the Gandasies. The appellants were arrested. In consequence of the disclosure statements made by them, one lathi was recovered at the instance of accused Puranram while two Gandasies were recovered at the instance of appellants Munsiram and Dhannaram. The seized articles were sent for chemical examination. Human blood was detected on one of the Gandasies. On the completion of investigation, the police presented a challan against accused Puran Ram, Munsiram and Dhannaram in the Court of Judicial Magistrate (2), Ganganagar, who in his turn committed the accused-appellants for trial to the Court of Sessions. The learned Sessions Judge, Ganganagar framed charges under sections 447, 323/34, 325/34, 302/34 and 342, IPC against each of them, to which they pleaded not guilty and faced the trial. The defence taken by accused Puranram was that of complete denial and alibi. According to nim he war not present at the place of occurrence when the incident is alleged to have taken place. The defence taken by Munsiram and Dhannaram was that the field in dispute was it their possession since long. Their father Puranram (accused) was on bad term with them. He, therefore, made a fictitious agreement in favour of Anokharam to sell the land to him. On the day of incident, Nands Singh and Trilok Singh (deceased-victim) came to the said field and wanted to make unlawful possession over it They (appellants) refused to deliver the possession to Triloksingh and Nandsingh, Thereafter Triloksingh and Nandsingh made an assault on them and landed blows to them with lathies. The police had suppressed the real facts and presented only t lop sided version of the incident. The appellants denied that they struck any blot to the deceased-victim. It was also said that even if it is taken that they struck blows to the deceased-victim, they were inflicted in exercise of the right of private defence of person and property. In support of its case the prosecution examined 74 witnesses and filed some documents. In defence, the accused examined out witness. On the conclusion of trial, the learned Sessions Judge recorded hit findings as under: 1. The field in dispute was in possession of the complainant party; 2. the appellants were the aggressors; 3. the appellants had formed a common intention to cause the murder Trilok Singh and in pursuance to it they killed him; 4. the appellants voluntarily caused simple and grievous hurts to PW Nandsingh. 5. The field in dispute was in possession of the complainant party; 2. the appellants were the aggressors; 3. the appellants had formed a common intention to cause the murder Trilok Singh and in pursuance to it they killed him; 4. the appellants voluntarily caused simple and grievous hurts to PW Nandsingh. 5. the injuries found on the person of accused Munshiram and Dhannar were superficial. The injuries do not indicate that they were receive by them in this very incident, and 6. no right of private defence of person or property was available to appellants. The defence was rejected and the charges were held proved. The appellant were consequently convicted and sentenced as mentioned at the very out-Aggrieved against their conviction and sentence the appellants have come-up appeals. 4. We have heard the learned counsel for the appellants and the lea: Public Prosecutor. We have also gone through the case file carefully. 5. It may be stated before proceeding further that the cause of death Triloksingh and the number and nature of injuries sustained by PW 11 Nandsingh were not assailed before us by the learned counsel. We have gone through medical evidence including that of Dr. Markanday (PW 6) and find no reasons distrust his opinion. It, therefore, stands proved that the death of Trilok Singh was not natural but homicidal. 6. It may be mentioned that according to Dr. Markanday the injuries found on the victim's body were sufficient in the ordinary course of nature to cause death. So also it stands proved that PW 11 Nandsingh received five injuries in this incident out of which many were fractures, as referred to above. 7. The entire prosecution case rests on the testimony of the two ocular witnesses PW11 Nandsingh and PW 12 Nimma. The learned Sessions Judge accepted the testimony of these two witnesses as true. We will deal with their evidence at an appropriate stage. 8. In assailing the conviction the first contention raised is that the Court below crept into an error in recording the finding that the field in dispute where the occurrence took place was in possession of Anokha singh, PW 11 Nandsingh and the deceased-victim Triloksingh. It was argued that though the land in dispute was allotted to accused Puranram, it was allotted to him for the benefit of his entire family including the other two appellants. It was argued that though the land in dispute was allotted to accused Puranram, it was allotted to him for the benefit of his entire family including the other two appellants. It was argued that there was no convincing material on record to show that this land was taken away from Ibem and it came in possession of the complainant party. It was argued that the testimony of PW 3 Om Prakash Patwari was wrongly interpreted in favour of the prosecution. In reply it was argued that as per revenue record the land in dispute was in possession of the complainant party and it was the complainant party which had deposited the land revenue in the State Treasury. We have taken the respective submissions in to consideration. 9. The execution of agreement Ex. P. 37 is not in dispute. Accused Puranram has himself admitted its execution though denied the consideration. PW 14 Radhey Shyam, Deed writer is the scribe of Ex. P. 37. From what he stated, the execution of Ex. P. 37 by accused Puranram stands proved. In Ex. P. 37 it has been clearly mentioned that the possession of the land in dispute was delivered to Anokhasingh on that very day along with its execution. PW 3 Om Prakash is the Canal Patwari of the area. He proved Khasra Girdawari, Ex. P. 10. In this Khasra Girdawari Ex. P. 10 the land in dispute has been shown to be in possession of Anokhasingh. The crops also been shown as standing therein. It relates to the year 1977-78. The Patwari Om Prakash deposed that Ex. P. 10 was prepared by him. The land Revenue Receipts Ex. P. 11, P 12 and P 13 were issued by him. He also deposed that the amount of these receipts were deposited by Anokha singh in whose favour Ex. P. 37 was executed. The Patwari further deposed that he went to the land in dispute for physical verification and found that it was in possession of Anokha singh who had grown the crops therein. He went for physical verification on November 20, 1977, There is nothing in his statement to suggest that the entries were wrongly made by him or that the land in dispute was wrongly shown to be in the possession of Anokha singh. The receipts filed by the appellants (Ex. He went for physical verification on November 20, 1977, There is nothing in his statement to suggest that the entries were wrongly made by him or that the land in dispute was wrongly shown to be in the possession of Anokha singh. The receipts filed by the appellants (Ex. D. 7, D 8, and D.9) do not relate to the year of the incident. They are, therefore, not helpful to the appellants. 10. PW 11 Nandsingh, who is the father of the deceased-victim Triloksingh, stated that Anokhasingh had raised a Dhani in the land in dispute. This Dhani was found standing when the Investigating Officer inspected the site. The appellants have never averred nor they have shown that this Dhani was raised by them. The existence of the Dhani and its being raised by Anokha singh in the land in dispute strongly suggested that the land in dispute was in possession of the complainant party. In defence, the accused adduced no evidence to show that they were in possession of the land in dispute. It may be that the allotment of the land was made in favour of the appellant Puranram and the other members of his family might have some interest in it. But Puranram had sold it to Anokha singh and delivered its possession to the purchaser. If the appellants Munshiram and Dhannaram had any grudge against the sale, the proper course for them was to have a recourse to the law courts to get Ex. P. 37 set-aside. It was not open to them to go to the land in dispute to take unlawful possession over it. The learned Sessions Judge has taken all these aspects of the matter into consideration and rightly concluded that the land in dispute was in possession of the complainant party. The first contention, therefore, fails. 11. It was next contended that the evidence of PW 11 Nandsingh and PW 12 Nimma was wrongly relied upon by the court below in convicting the appellants. It was urged that both these witnesses were close relatives of the deceased-victim-one being his father and the other being his nephew. There was no independent witness to speak about the occurrence. As such the conviction based on their testimony is not free from risk. 12. It was urged that both these witnesses were close relatives of the deceased-victim-one being his father and the other being his nephew. There was no independent witness to speak about the occurrence. As such the conviction based on their testimony is not free from risk. 12. In reply, the learned Public Prosecutor submitted that PW 11 Nand Singh is an injured witness who received multiple injuries including the fractures of his hand and five ribs. His presence on the spot is, therefore, not open to any doubt. So also the presence of PW 12 Nimma is not doubtful. It was also urged that the appellants Munshi Ram and Dhannaram have admitted their presence at the place of incident when the occurrence took place. In these circumstances it can be safely said that the appellants had landed blows to the deceased victim Triloksingh and PW 1 i Nandsingh. We have bestowed our consideration to the contention raised, PW 11 Nandsingh is an injured witness who somehow or other survived. He received multiple injuries. His hand and five ribs were broken in the incident. He deposed that he, his son Triloksingh and his grandson Nimma were there in the field in dispute. At about 9.00 A. M. on the day of the incident, the three appellants came there. Accused Puranram had a lathi while the remaining appellants Munshi Ram and Dhannaram had Gandasies. They asked him to leave the field. He and Triloksingh asserted their rights. Thereupon the appellants made an assault on them. Accused Munshiram and Dhannaram struck blows to Triloksingh with both sides of their Gandasies. Accused Puranram also landed blows to Triloksingh with his lathi. The witness further stated that he too was not spared and was landed blows by all the three appellants. The same narration of the incident was given by PW 12 Nimma. So far as accused Puranram is concerned, the evidence of these two witnesses is not convincing that he struck blows to deceased-victim Triloksingh with his lathi. Though they stated in the Court that accused Puranram also struck blows to Triloksingh, they did not state so in their police statements Ex. D. 4 and Ex. D. 5. When they were confronted in cross-examination as to why they did not state so against Puranram in their statements during investigation Ex. D. 4 and Ex. D. 5 they could furnish no explanation. D. 4 and Ex. D. 5. When they were confronted in cross-examination as to why they did not state so against Puranram in their statements during investigation Ex. D. 4 and Ex. D. 5 they could furnish no explanation. Since, these two witnesses did not state during investigation before police that accused Puranram also struck blows to the deceased victim Triloksingh, their latter statements during trial amounts to clear improvement and no importance can be given to such an improvement which appears to be an after thought. The learned Sessions Judge did not attach any importance to these previous statements Ex. D. 4 and Ex. D. 5 of these two ocular witnesses. We fail to understand his approach on such a vital omission which cuts the very root of the case as against accused Puranram. Not only so, in F. I. R. Ex. P. 23 (also lodged by PW 11 Nandsingh), it has not been stated by him that accused Puranram struck any blow to the deceased-victim Triloksingh. This omission again is fatal as regards the case against accused Puranram. We, therefore, hold that accused Puranram did not strike any blow to the deceased-victim Triloksingh. 13. As regards accused Munshiram and Dhannaram, the evidence of these two eye witnesses is consistent. In F. I. R. Ex. P. 23 also the same version has been narrated that accused Munshiram and Dhannaram struck blows with both sides of Gandasies to Triloksingh, which ultimately resulted in his death. Mr. Adwani appearing for these two appellants could not subscribe any reason as to why the evidence of these two eye witnesses be not taken as true and reliable against these two appellants. The learned Sessions Judge has accepted the testimony of these two witnesses as true. On a careful scrutiny of what they testified we are unable to take a view different from that taken by the learned Sessions Judge. We, therefore, hold that accused Munshiram and Dhannaram struck blows with their Gandasies to the deceased-victim Triloksingh and thereby caused his death. 14. The learned Sessions Judge has convicted the appellant Puranram under Section 302 with the aid of section 34,1. P. C. As discussed above Puranram struck 10 blow to the deceased-victim. At the time of incident his age was nearly 70 years. He was not having good relations with his sons Munshiram and Dhannaram. 14. The learned Sessions Judge has convicted the appellant Puranram under Section 302 with the aid of section 34,1. P. C. As discussed above Puranram struck 10 blow to the deceased-victim. At the time of incident his age was nearly 70 years. He was not having good relations with his sons Munshiram and Dhannaram. In these circumstances it is difficult for us to hold that accused Puranram had formed a common intention with the other appellants to commit the murder of Triloksingh. The circumstances do not permit us to invoke section 34, IPC as against accused-appellant Puranram. It is trite law that section 34, I. P. C should not be pressed into service unless and until the circumstances and the evidence compel to do so. There are no such compelling circumstances from which an inference can be drawn that accused Puranram had shared the common intention with the other appellants in committing the murder of Triloksingh. Accused Puranram is, therefore, entitled lo acquittal of the offence under Section 302, I. P. C. 15. There is consistent evidence that accused Puranram struck blow to PW 11 Nandsingh and thereby broke his hand. The humerous was found fractured. We, therefore, maintain his conviction under section 325, I. P. C. 16. Lastly, it was argued with great vehemence by the learned counsel Mr Adwani that the injuries of appellants Munshiram and Dhannaram have not been explained by the eye witnesses PW 11 Nandsingh and PW 12 Nimma. The contention is devoid of force. As per evidence of Dr. Markanday (PW 6) the injuries of these two appellants were superficial. Moreover, such type of minor injuries like scratches, bruises etc. can also be received by the assailants while making the assaults. Such minor injuries do not show that the appellants w re not the aggressors. Accused Munshiram, as per his injury report Ex. D. 3 received only two minor injuries of 1/4" in dimension on the non-vital parts like ring finger and little finger. So also the injuries on the person of accused Dhanparam vide his injury report Ex. D. 1 were minor and on most non-vital parts. We are unable to make out a case of right of private defence of person on such insignificant and trivial injuries. So also the injuries on the person of accused Dhanparam vide his injury report Ex. D. 1 were minor and on most non-vital parts. We are unable to make out a case of right of private defence of person on such insignificant and trivial injuries. It is not a rule of universal application that injuries however insignificant and minor they may be on the person of accused, should always be explained by the eye witnesses. In our opinion, the mere presence of these insignificant and minor injuries do not permit us to make out a case of private defence of person in favour of the appellants Munshiram and Dhannaram. 17. We may state that the deceased-victim Trilok Singh sustained as many I as 28 injuries and he died as a result of them. According to Dr. Markanday, these injuries were sufficient in the ordinary course of nature to cause death. He died as i cumulative effect of all these injuries. It was held in Brij Bhusan v. State of Uttar Pradesh (A.I.R. 1957 S. C. 474) by their lordship of Supreme Court that even if none of the injuries by themselves was sufficient in the ordinary course of nature to cause death, cumulatively they were sufficient in the ordinary course of nature to cause his death, which in fact took place soon alter the assault. If the prosecution evidence in this respect was accepted, the offence was clearly one of murder under section 302, I.P.C. As such the offence made out against accused Munshiram and Dhanna Ram is that under section 302, I.P.C. 18. No other contention was raised. 19. From what has been discussed above, the conviction of accused Puran Ram under section 302/34, I.P.C. cannot be maintained. As regards the remaining two accused Munshiram and Dhannaram, their conviction under section 302/34, I.P.C. and other sections of the Penal Code is proper and calls for no interference. 20. Accused Puranram was 70 years old at the time of his conviction in 11979. He must be now more than 75 years in age. He has already served nearly I one year's sentence. It would be, therefore, not proper to send such an old man again to jail. 21. In the result, the appeal of accused Munshiram and Dhannaram is I dismissed. Their conviction and sentence for various offences are maintained. 22. The appeal of accused Puranram is partly allowed. He has already served nearly I one year's sentence. It would be, therefore, not proper to send such an old man again to jail. 21. In the result, the appeal of accused Munshiram and Dhannaram is I dismissed. Their conviction and sentence for various offences are maintained. 22. The appeal of accused Puranram is partly allowed. His conviction and I sentence under section 302/34, I. P. C. are set-aside and he is acquitted thereof. I His conviction for the other offences is maintained but the term of his sentence is I reduced to that already undergone by him. He is on bail and need not surrender. I His bail bonds shall stand cancelled. 23. The appeals shall stand accordingly disposed of.Appeal partly allowed. *******