JUDGMENT 1. - Raghuvar Das chela of Fateh Das has field this appeal against his conviction u/s 302 IPC by1 the Sessions Judge, for committing the murder of Ram Chander Das. 2. The feud and dispute which resulted in murder relates to a property situated near the Basti of Dadupanti known as `Te-Jamaat' in Niwai. On 19th August, 1978 deceased Ramchander Das along with Govind Das and Udai Das and few others came from their village Kalan - Dabla district Jaipur to this Dadupanti Basti. Their case was that they have got some land there and, therefore, they wanted to construct the wall (Doli) of this Bara. At about 10-11 A. M. Raghuvar Das and others asked them not to do so. Raghuvar Das then filed a complaint in the police. Ttie Police Officer sent some persons for getting a settlement and both the parties agreed that they will not make any construction. On 20-8-78 a Panchayat was called but Raghuvar Dass did not attend this Panchayat. 3. On 21-8-78 at about 6.00 A.M. Ram Chander Das started from Jamat and proceeded towards the residence of Kan Das (PW. 2). At that time Udai Das met him near the house of accused Raghuvar Das. Deceased Ramchander Das is alleged to have told that he would first go to Jamat and then to Police Station for getting permission of constructing `Dol'. It is said that the accused was in his house. PW. I Udai Das then proceeded further and after 4-5 steps he heard the cries of Ramchander Das and returned back to find out as to what has happened and he saw that Shyoram Das and Ram Prasad Das had surrounded deceased Ramchander Das and accused Raghuvar Das was giving sword blows to Ramchander Das and on account of that Kamchander Das collapsed. Udai Das tried to intervene but he was warned to face the same consequences. Udai Das then went to Kan Das and then both came on the spot and went to the police station and lodged a written report (Ex P. 1). 4. At that time Raghuvar Das came with naked sword in his hand and was arrested. After usual investigation, a challan was filed against the accused persons. During trial prosecution examined PW. 1 Udai Das PW. 2 Kan Das, PW. 3 Krishan Behari. PW 4 Ganpat Ram, PW. 5 Kaniram Das, PW. 6 Nainu Lal. 4. At that time Raghuvar Das came with naked sword in his hand and was arrested. After usual investigation, a challan was filed against the accused persons. During trial prosecution examined PW. 1 Udai Das PW. 2 Kan Das, PW. 3 Krishan Behari. PW 4 Ganpat Ram, PW. 5 Kaniram Das, PW. 6 Nainu Lal. and PW 7 Ghasi Lal. Defence also examined DW. 1 Badri Das and DW, 2 Radha Kishan. The accused in his statement u/s 313 Cr. p. c. has stated that the deceased along with his supporters tried to construct the wall on his land and when he asked him not to do so, the deceased gave a `Fawada' blow, on which the accused in order to defend himself used the sword and if he would not have defended himself he would have been killed by the deceased. The actual statement in answer to question No. 10 reads as under : " lgh ckr ;g gS fd tekr esa esjs edku ds lgkjs esjh tehu gSA bl ij Mksyh yxh gqbZ gSA 19 rkjh[k dks e`rd jkepUnz etnwjksa dks ysdj esjh tehu ij vk;k Fkk vkSj ml ij tcjnLrh dCtk djuk pkgrk FkkA eSaus mls euk dj fn;k vkSj iqfyl esa Hkh tkdj fjiksVZ djnh ysfdu 21 rkjh[k dks lqcg e`rd jkepUnz 7 etnwjksa dks ysdj esjh tehu ij vk;k vkSj esjh tehu ij cuh gqbZ Mksyh dks rksM+us yxkA eSaus mls euk fd;k fd rqe Mksyh er rksM+ks vkSj uho er [kksnks] ftl ij jkepUnz QkoM+s ls eq>s ekjus yxk vkSj og eq>s QkoM+s ls dkVuk pkgrk Fkk exj eSaus Lo;a dks ryokj ls cpk;kA vxj eSaus [kqn dks ugha cpk;k gksrk rks jkepUnz us eq>s tku ls ekj fn;k gksrkA eSaus ryokj blfy, bLrseky dh fd eq>s viuh tku dk iwjk&iwjk [krjk gks x;k FkkA eSa mlh oDr [kqn ryokj lfgr iqfyl esa bl ?kVuk dh fjiksVZ djus pyk x;k FkkA bl >xM+s ds le; mn;jkt] /kuhjke ekStwn ugha FkkA bu nksuksa us ;g ?kVuk ugha ns[kh gS\ ;s txrks ckn esa cuk, gSA fjiksVZ Hkh mn;jkt us Fkkus ij ugha dh Fkh ;s rks ckn esa fy[kh xbZ gSA " 5. The trial court after hearing the arguments of both the sides came to the conclusion that the prosecution evidence is trust worthy and the defence is full of discrepancy and cannot be relied upon. The trial court after hearing the arguments of both the sides came to the conclusion that the prosecution evidence is trust worthy and the defence is full of discrepancy and cannot be relied upon. In this view of the matter, the trial court convicted the accused u/s 302 IPC. and sentenced him to life imprisonment. The other two accused were acquitted. 6. The crucial question in this case relates to the right of the accused of private defence of person or property or both We are mentioning this at the very out set because since the accused himself in his statement has admitted causing the death of the deceased by a sword and there is plenty of evidence also for the same. Mr. Gupta in all fairness has not challenged the factor of death by using sword is concerned. In this view of the matter it would be worth-while to avoid the mentioning of entire evidence again and discussing the same in order to reach to the conclusion that the death was homicide and the accused caused the death of deceased. 7. Now the crucial question which we put to the learned Public Prosecutor ss to how and in what circumstances the deceased reached the spot where he was done to death by the accused. A scrutiny of the entire evidence shows that only , relevant evidence which is available on behalf of the prosecution is that in the morning of this crucial day at about 6.00 A.M ., the deceased was seen near the evidence of the accused and when questioned by the witnesses he said that he was going to Jamal first and then to the Police Station for taking permission of construction the `Doli', so that the Doli can be constructed. Why and in what manner the deceased came to the house or near about, it has been kept as an u 'solved mystery by the prosecution because all that has been said is that the deceased came there. 8. We, on a careful analysis find that PW. Udai Das is the only person who saw the deceased before the sword blows were given to him and all that deceased told him was that he was going to Jamat and then to the Police Station for i taking permission for constructing the`Doli',. 8. We, on a careful analysis find that PW. Udai Das is the only person who saw the deceased before the sword blows were given to him and all that deceased told him was that he was going to Jamat and then to the Police Station for i taking permission for constructing the`Doli',. We enquired from the learned Public Prosecutor that whether from the record it can be shown whether Police Station it near about the house of Raghuvar Das. We also enquired whether it come be known from the record as to why and for what purpose the deceased came to the house of Raghuvar Das. On both the crucial points no assistance could be given, in as much as the record is silent and the Public Prosecutor cannot point out anything which is sot on the record. 9. Confronted with the above situation, it is obvious that the genesis of the , incident in which the deceased was done to death in the morning near about the house of Raghuvar Das. has not been revealed and unfolded by the prosecution , and kept an close secret. In such circumstances, we, are persuaded to accept the probable theory put by the defence in the statement of the accused that deceased came at the spot with some workers to construct the `Dolt' even though he was restrained by doing so by the police authorities. If that is so we have no reason to disbelieve the theory of defence that accused acted in the right of private defence of property on the facts and circumstances of the case, which prove that the Doli of Raghuvar Das accused was along with his house and the land which is claimed by the deceased Sadbu was neither demarcated by any construction nor any document was submitted at that time before the police nor it has been submitted during trial by which it can be shown that the deceased and it+ party of Sadbus had some land where they had a legal right to construct`Doli'. It is not without significance that the deceased as well as other Sadhus are not living in that Basti and they came from the distihet place from Jaipur district, where as this land is situated in the Basti of Ntwai, which is in Tonk district. It is not without significance that the deceased as well as other Sadhus are not living in that Basti and they came from the distihet place from Jaipur district, where as this land is situated in the Basti of Ntwai, which is in Tonk district. In these circumstances as per the evidence which has come on record by the prosecution, we are convinced that the accused had right of private defence of property when the deceased started construction of Doli in spite of restraint order by the police two days earlier to it. 10. It is now to be seen whether the right of private defence of property can extend to the causing of death to the deceased. Before discussing this point, we may point out that the statement of the accused that it was the deceased who attacked him by spear appears to be an exaggerated version because it has not been made probable either from any recovery of spear or proof of such circumstances on the spot. The evidence of the defence led in this connection has already been disbelieved by the trial court for the reasons which have been given by it and we need not repeat same reasons again. 11. Since we are convinced that the right of private defence of persons was not exercised by the accused as he had no apprehension that the deceased could cause his death or cause previous hurts. All that is to be examined is whether the accused in exercise of right of defence of property could have caused the death of deceased. 12. It is proved from the injuries of deceased that sword was not used once but number of times because 8 incised wounds were caused and this shows that the accused exceeded the right of private defence of property. 13. We are fortified in this conclusion of ours on the basis of the principles laid dawn by the Hon'ble Supreme Court in Keshoram v. State of Assam AIR 1978 SC 1096 ) wherein, in similar circumstances it was held that the right of private defence has been exceeded, 14. 13. We are fortified in this conclusion of ours on the basis of the principles laid dawn by the Hon'ble Supreme Court in Keshoram v. State of Assam AIR 1978 SC 1096 ) wherein, in similar circumstances it was held that the right of private defence has been exceeded, 14. Since it was the deceased who trespassed on the land of the accused, I we have got no reason to disbelieve the defence theory and we hold that the accused provoked by this illegal act of the deceased, acted in self defence and he would be guilty only to the extent of exceeding the right of private defence. He is, therefore, liable to be convicted u/s 304 (2) I.P.C. for having exceeded the right of private defence and not u/s 302 I.P.C. 15. Consequently, the appeal is partly accepted. The conviction of I appellant Raghuvar Das u/s 302 I.P.C. and the sentence of life imprisonment is set aside and he is convicted u/s 304 (2) I.P.C. 16. On the question of sentence we have heard Mr. Gupta, learned counsel for accused appellant Raghuvar Das and Mrs. Kamla Jain, Public Prosecutor. Mr. Gupta pointed out that the accused was arrested on 21.8.1978 and since then he is 5 in jail and he has already undergone 5 years 7 months substantive sentence excluding the remissions to which he is entitled According to Mr. Gupta if the remissions would be added then the accused has undergone sentence of about 7 yean. This factual aspect is not contested by learned Public Prosecutor. 17. In view of the above factual position, we think that it is not necessary to as captain exactly the period for which the accused alias undergone the sentence along with remissions because in any case it would be more than 6 years and would be within 6 years to 7 years. We feel that the ends of justice would be met by releasing the accused appellant now for the sentence already undergone. Consequently while convicting accused Raghuvar u/s 304 (2) I.P.C. We sentence him to the period already undergone by him. The accused appellant Raghuvar *******