JUDGMENT 1. - The Sessions Judge, Sri Ganganagar by his judgment dated May 27. 1980 the accused appellants of the offence under See. 302 read with 149, IPC and sentenced each of them tot for life and to pay a fine of Rs. 200/-. They were also, convicted under section 337 read with 149, IPC and sentenced each of them to 5 years R. I. and to pay of fine of Rs. 2 /-, in default of payment of line to undergo further rigorous in for two months. For offence under Section 148. ISC, they were sentenced to 1 year 5 imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to undergo further rigorous for one month and for offence under section 447, IPC. each of them were sentenced to two months rigorous imprisonment and to pay a fine of Rs. 100/-, in default of payment of fine to undergo rigorous for 15 days. The appellant Ramkaran was also convicted under Section 27 of the Arms Act and was sentenced to two years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to undergo further rigorous imprisonment for six months. Sentences of all the accused persons were ordered to run concurrently. 2. The prosecution case as unfolded in the first information report lodged by Harbilas Singh on July 18, 1979 at 3,30 a. m. at police Station Sadar. Sri Ganganagar is that his brother Jasveer Singh has purchased the land of killsas No. 1, 2, and 1/2 of Killa No. 3 of Square No. 22 in Village 14-z from Damaram Suthar (C.W.I.) In respect of that land, some litigation was going on. They have cultivated wheat in the said killas. As they had no time to the cut-crop, it was lying in stacks in the said killas. At about 7 a.m. he along-with his brother Jasvreer Singh and father Jeetsi Singh With two Servants namely Phoolarar and Sukharafn wenta to the Said in order to lift the wheat crop. When they reached in Kilia No. 1, accused Ram karan armed With a gun, Tikuram armed with a Kasia, Madan, Piatap and Nathuram armed with Kassi as and Yespal and Gujar armed with lathis (Dangs), were sitting near them and (stack of wheat cut-crop) as stated in the first information report (Ex.R/7). When they reached in Kilia No. 1, accused Ram karan armed With a gun, Tikuram armed with a Kasia, Madan, Piatap and Nathuram armed with Kassi as and Yespal and Gujar armed with lathis (Dangs), were sitting near them and (stack of wheat cut-crop) as stated in the first information report (Ex.R/7). At the trial, the witnesses have come out with the case that when they had entered into No. 1, where the crop was lying, the accused persons came out from the Gwar Crop. As per the Version of F.I.R. Ram Karan exhorted to kill them and he fired his gun, which hit on the head of Harbilas Singh. From the head injuries, bleeding started. Thereafter, Ramkaran thrust blows by the butt of the gun on his back. Jasveersingh and Rhoolaram had received kasia blows on the head. Jeet Singh and Sukhram fell down Jasveersingh and Phoolaram have been sent to Hospital. The accused has surrounded Jeetsingh and Sukhram and the complainant party. Was not allowed to remove them and the accused party was exherting to kill both of them and that the accused party may take away their dead-bodies. As to how many injuries Were received by Jeetsingh and Sukhram, the informant stated that he could not see. Case Under Sections 307, 324, 147, 148, 149, 447,/34, IPC and 27 of the Arms Act was registered by Krishna Avtar Tyagi (PW 9). Thereafter, Krishna Avtar Tyagi went to hospital and prepared the Surat Hal Lash of the deceased Jeetsingh and panchayatnama Ex. P/ll. Offence under Section 302, IPC was added on the death of Jeetsingh. Cross report of the occurrence bearing No. 76 by Tikuram (Ex.P/53) was lodged at about 9.15 a.m. on July 18-1979 in which, Tikuram reported that on that day in the morning, he was in killa No. 10 of square No. 22. and was engaged in digging the Narma Crop. Nathuram was working in killa No. 1 of the same square. According to him, Jeetsingh, Bhag-singh, Gurjantsingh, Majorsingh, Mahendrasingh, Baltejsingh, Nichchatar Singh and two sons of Jeetsingh came in a Tractor armed with gandasis and guns. They stopped their tractor near killa No. 1 and they got down from the trolley. The land dispute was going between them. It was stated in the F.I.R. that Majorsingh inflicted a gandasa blow on the right hand of Tikuram. They stopped their tractor near killa No. 1 and they got down from the trolley. The land dispute was going between them. It was stated in the F.I.R. that Majorsingh inflicted a gandasa blow on the right hand of Tikuram. Ramkaran, and Gujar rushed to the scene of occurrence to rescue him. Gurjantsingh and Bhagsingh fired the gun at Ramkaran. Ramkaran was hit by gun shot. On this report, a case was registered against the seven accused-persons and two sons of Jeetsingh under Section 324, 447, 147, 148, 149 and 27 of the Arms Act. A copy of this report No. 76 was received by Krishna Avtar Tyagi at the hospital. Krishna Avtar who was in-charge of police station interrogated the four witnesses. Thereafter, Gopalaram, S. H. O. (PW 11) reached the spot and subsequent investigation was done by him. He prepared the site-plan (Ex. P/9) and site-inspection notes (Ex. P/9A). He found the scattered wads at point No. 11. They were lying in Killa No. 11 of Square No. 22 and Killa No. 15 of Square No. 21 and a pallet was also found at point No. 15. At point No. 14 in killa No. 1 of Square No. 22, Kachha bricks and Sarkandas were lying. He also noticed that there was no cultivation in 5 Biswas of Killa No. 1 and scattered grass was found in 5 was of land. Other things were also shown in the site-plan and site-inspection notes. The accused-persons were arrested and recoveries were made. From the side of the complainant party ; Harbilas Singh, Jasveersing, Phoola Ram and Sukhram were got medically examined and an autopsy on the dead-body of Jeetsingh was got conducted. After completion of usual investigation, charge-sheet was presented in the court of Judicial Magistrate, No. 1, Sri Ganganagar, who in his turn, committed the accused-persons to the court of Sessions Judge, Sri Ganganagar for trial. 3. The accused-persons were charged with various offences to which they pleaded not guilty and claimed to be tried. 4. The prosecution examined PW 1 Jasbirsingh, PW 2 Harbilas Singh, PW 3 Sukhram, PW 4 Jogendrasingh alias Gurjantsingh (as eye-witnesses of the occurrence), PW 5 Lal Chand Patwari, PW 6 Nachhatarsingh and PW 7 Bhajansingh (attesting witnesses), PW 8 Dr. 3. The accused-persons were charged with various offences to which they pleaded not guilty and claimed to be tried. 4. The prosecution examined PW 1 Jasbirsingh, PW 2 Harbilas Singh, PW 3 Sukhram, PW 4 Jogendrasingh alias Gurjantsingh (as eye-witnesses of the occurrence), PW 5 Lal Chand Patwari, PW 6 Nachhatarsingh and PW 7 Bhajansingh (attesting witnesses), PW 8 Dr. S.L. Kaushik, (Radiologist at the General Hospital, Sri Ganganagar, PW 9 Krishna Avtar Tyagi, In-charge of Police Station, PW 1 Gopalaram, S. H. O. and PW 10 Karnisingh (Carrier of the sealed packets to the Forensic Science Laboratory, Jaipur). The prosecution examined PW 12 Dr. Rajendra Kumar Gupta, who examined the injuries on the members of the complainant party and who also conducted the post-mortem examination on the dead-body of Jeet Singh. 5. The statement of the accused persons were recorded. Some of the accused persons pleaded alibi. Ramkaran, Tikuram and Nathuram came out with the counter story. According to them, killa No. 1 of sq. No. 22 was in possession of Nathuram and it was his stack of wheat crop lying in the killa. In killa No. 10, there was Narma crop of Tikuram which was damaged by passing of tractor. The members of the complainant party came with an intention to lift the crop of Nathu Ram by force. Tikuram was dealt with physically. These accused persons pleaded that in the exercise of right of private defence of person and property, the injuries were caused by them. The accused Nathuram also submitted his written statement. In defence, Bhagirath DW 1 was examined. Damaram, the brother of Nathuram was examined as and after his statement, the accused were again examined. They denied the version given by Damaram. The learned Sessions Judge heard both the parties and found all the persons guilty of the offences under which the accused-persons were convicted and sentenced. 6. The learned Sessions Judge framed four points for determination. The first two points related to the voluntarily causing of grievous and simple hurts to Jeetsingh, Jasbirsingh, Sukharam, Harbilas Singh and Phoolaram. The third point of determination was as to whether the accused are entitled to benefit of the plea of self defence of person and property and the fourth point related to the offences whether they are proved against the accused-persons. Learned Sessions Judge found the first two points in favour of the prosecution. The third point of determination was as to whether the accused are entitled to benefit of the plea of self defence of person and property and the fourth point related to the offences whether they are proved against the accused-persons. Learned Sessions Judge found the first two points in favour of the prosecution. The plea of self defence of person and property was negatived. In view of the findings on points No. 1, 2 and 3, he found the accused persons guilty of the offences under Section 302/149 I.P.C. and other offences. Dissatisfied with the convictions and sentences, the accused persons have preferred this appeal. 7. We have heard Shri M. M. Singhvi and Shri M. L. Garg, learned counsel for the accused-appellants and Shri Niyazuddin Khan, learned public prosecutor assisted by Shri S. R. Singhi and Shri H. S. Sandhu, Advocates. 8. From the facts of the case as have appeared on record, it would appear that the deceased Jeetsingh received a number of injuries from sharp as well as blunt weapons. Out of the injuries received by Jeetsingh, six injuries were grievous, which were No. 2, 4, 17, 31, 32 and 37. According to Dr. R. K. Gupta, all the injuries cumulatively caused the death of Jeetsingh. In the opinion of Dr. Gupta, injuries No. 2, 4, 17, 31, 32 and 37 were sufficient in the ordinary course of nature to cause death. Out of six injuries, the first two injuries No. 1 and 2 were on the head and the remaining four on the limbs. Besides the deceased, from the complainant side, the other four persons had sustained the injuries. Sukhram had received 6 injuries, Jasbir Singh had five injuries, Harbilas Singh had four injuries and Phoolaram had five injuries. From the side of accused-persons Ramkaran had received 3 injuries, Tikuram received two injuries. Harbilassingh, as per his version, sustained injuries from gun shot. Similarly the version of Ramkumar is that he received gun shot injuries on his person and the occurrence did take place in the morning of July 18, 1979 at about 7.15 a.m. How and in what manner, the occurrence took place and who was aggressor and who was in possession Killa No. 1 and who was the owner of the wheat crop of killa No. 1 are the disputed questions which arise in the present appeal. We shall deal with these aspects of this case but in our opinion, the most material and crucial question in this case is as to who was in possession of Killa No. 1. If it is found that Jasbirsingh was in possession of killa No. 1 and it was his wheat crop and the complainant party had come to remove the same by loading the crop, then the plea of self defence of person and property will fail. As both the pleas are connected with each other, the learned Sessions Judge proceeded to examine the plea of self defence of person and property dealing with the question of possession over killa No. 1 of Square No. 22. The learned Sessions Judge arrived at the finding that it was Jasbirsingh who was in possession of killa No. 1 and his crop was lying at point No. 16 in a Mandli. In the light of this finding, he negatived the plea of self defence of person and property. He arrived at the finding of possession taking into account primarily, the documents Ex. P/84 and Ex P/5, Ex. P/5 is the order of the Assistant Engineer, Irrigation, Sub-Division, Sri Ganganagar whereby he found that the report of the patwari is incorrect and he found that Shudkar Khasra Irrigation, Ex. P/12 is correctly prepared which was in the name of Jasbirsingh. Ex. P/84 is the mortgage deed said to have been executed by Damaram and Nathuram in favour of Jasbirsingh on 25.5.78 for a sum of Rs. 5,000/- in respect of land measuring 21/2 bighas of killa No. 1, 2 and 1/2 of Killa No. 3 of Square No. 22. Learned Sessions Judge proceed with the question of possession in the manner that Nathuram is a party to the mortgage deed. He was one of the executants and possession was transferred to Jugrajsingh. Mortgage deed Ex. P/84 did come from the possession of the complainant party or Damaram, so, Damaram got the land redeemed and sold the land to the sons of Jeetsingh. 9. We may mention here what the prosecution case is in respect of killa No. 1. The prosecution case is that after redemption of the mortgage, on 13. 9. 78 Damaram sold the land of killa No. 1 to Jasveersingh, Killa No. 1 to Harvilas Singh and 1/2 of Killa No. 3. 9. We may mention here what the prosecution case is in respect of killa No. 1. The prosecution case is that after redemption of the mortgage, on 13. 9. 78 Damaram sold the land of killa No. 1 to Jasveersingh, Killa No. 1 to Harvilas Singh and 1/2 of Killa No. 3. to Jaskaran Singh and possession was got delivered from Jugrajsingh of Killa No. I. Jasbirsingh cultivated the wheat crop in Killa No. 1. 10. While considering the question of possession the learned Sessions Judge concluded that Jasbirsingh was in possession of Killa No. 1. It is to be seen as to whether the finding on possession recorded by the learned Sessions Judge is sustainable on the material placed on record by the parties. On the basis of the documentary evidence produced by both the parties coupled with the oral evidence it is to be seen as to whether the prosecution has established beyond reasonable doubt that Jasveersingh was in possession of Killa No. 1. 11. These facts are not in dispute that the four brothers Viz. Nathuram, Damaram, Mohanram and Maniram had the land at two places one at 14Z and the other at Sabunana, Tehsil Fajalka (Punjab). They had total 30 bighas in Square No. 22. They had 91/2 Bighas land at Sabnana. The defence case is that the land at No. 14-Z fell to the share of Manirnu, Nathuram, Mohan Ram and Smt. Amritidevi, their mother was given 3 bighas for maintenance by them, 21 Bighas of land was sold by them. Land at Sabunana fell to the share of Damaram. All of them were the co-tenants or joint tenants but oral partition had taken place. 12. We may first proceed to consider the prosecution version and particularly the statement of Damaram, who was examined as a court witness. According to him, the lands at both the places, were in joint possession of all the four brothers. This is what he stated in the examination-in-chief on the question but by the court. At the end of the examination-in-Chief, he had stated that all the four brothers were in joint possession over the land but he had delivered possession of his right over the land and not of his brothers. He that he sold his share of the land to the sons of Jeetsingh at the rate of Rs. At the end of the examination-in-Chief, he had stated that all the four brothers were in joint possession over the land but he had delivered possession of his right over the land and not of his brothers. He that he sold his share of the land to the sons of Jeetsingh at the rate of Rs. 7500/- and executed the sale-deed of killa No. 1 in favour of Jasbirsingh. He also stated that he had mortgaged the land in favour of Jugrajsingh and thereafter he got it redeemed. Jugraj Singh told that in case he wants to sell the land, his uncle Jeetsingh is prepared to purchase. Thereupon, he sold the land to the sons of Jeetsingh. In cross-examination, he categorically stated that for the last 20-25 years, the land of 14-Z was cultivated by the accused Nathuram. He also stated that the total land was divided among the four brothers and 9 Bighas of land at Sabunana is solely cultivated by him and there is no possession whatsoever on that land, of his brothers. As regards, girdawaris, he deposed that the irrigation girdawari was in the name of Nathuram in respect of the land at 14-Z and in his name of Sabuana land but the revenue girdawari of his share of 71/2 bighas land in 14-Z is in his name for the last three years. The revenue girdawari of Sabuana land is in the name of all the four brothers. In cross-examination by the public prosecutor, he came out with the version that in the land at 14-Z he has share consisting of 5 Bighas of Square No, 20, 21/2 Bighas of killas No. 1,2 and 1/2 of Square No. 3 of Square No. 22. Damaram claims to be the predecessor in title of Jasbirsingh in respect of killa No. 1. It may be stated that Damarams statement has no support whatsoever by any document in relation to the revenue girdawari for the last three years as claimed by him. deposition is also in consistent with the recital of Ex P/84. In Ex. P/84 Damaram has stated that the land measuring 5 Bighas of square No. 22 is owned and possessed by him and Nathuram without share of anyone else. The oral statement of Damaram is somewhat divergent to the recital of Ex. P/84. deposition is also in consistent with the recital of Ex P/84. In Ex. P/84 Damaram has stated that the land measuring 5 Bighas of square No. 22 is owned and possessed by him and Nathuram without share of anyone else. The oral statement of Damaram is somewhat divergent to the recital of Ex. P/84. In the oral statement, he claimed only 21/2 Bighas land as his share in Square No. 22. Where as in the mortgage-deed, he claims to have 5 Bighas of land in Square No. 22 with Nathuram. Damaram now here stated that Nathuram was also a co-mortgagor with him. Damaram should have explained as to how Nathurams name has appeared in the mortgage-deed Ex. P/84 when he has nothing to do with his share of the land i.e. Killas No. 1,2 and 1/2 of killa No. 3 of Square No. 22. It is significant to note that in the sale-deed Ex.P/1 Nathuram is not a party. The sole vendor of Killa No. 1 of Sq. No. 22 is Damaram. If Nathuram had nothing to do with Damaram for killa No. 1,2 and 1/2 of killa No. 3, there was no need to get the mortagage deed also executed by Nathuram. If the recital in Ex.P/84 is correct, that the land was also onwed and possessed by Nathuram, then both of them ought to be the executants of Ex.P/1. But Ex.P/1 is solely executed by Damaram. This, to our mind, is a most suspicious circumstance touching the conduct of Damaram. 13. In order to prove possession, the prosecution has placed reliance on some orders passed in favour of Jasbirsingh had instituted a suit against Ramkaran, Tikuram, Rampratap, and Yogeandra for permanent injunction restraining them from interfering in the possession of Killa No. 1, in which Jasbirsingh obtained temporary injunction on 1.6.79 vide Ex.P/2. The second order on which the prosecution placed reliance is the order of the Assistant Engineer (Irrigation) Sub Division (Ex.P/5) of which reference has already been made above and the learned Sessions Judge proceeded to consider the prosecution case on the basis of the statement of Nathuram quoted in Ex.P/5. Besides these orders, form the side of the prosecution, a copy of Sudkar Irrigation in respect of Rabi 1978-79, Ex.P/12 has been produced. Besides these orders, form the side of the prosecution, a copy of Sudkar Irrigation in respect of Rabi 1978-79, Ex.P/12 has been produced. As against these documents, from the defence side, the accused persons have produced a copy of the letter of Tehsildar dated 4.5.79 (Ex.D/8) to Patwari Halka 15-Z for mutation of the land in pursuance of the sale deed executed in favour of Jasbirsingh s/o Jeetsingh, a copy of mutation dated 3.6.79 (Ex.D/9) in which mutation has been cancelled and the Gram Panchayat found that 5 Biswas of killa No. 1 of Sq. No. 22 in possession of Pratap and the rest of the land of this killa is in possession of Nathuram, sale deed Ex.D/10 dated 17.5.78 which was registered on 13.9.78 executed by Nathuram in favour of Pratap alias Rampratap accused. Accused persons have also produced a copy of the plaint filed by Nathuram and Mohanram against Datnaram, Jeet singh and the proforma defendants Maniram and Smt. Amritidevi dated 7.9.78 Ex.D/ll), the brother & the mother respectively of Nathuram. The suit was filed for permanent injunction restraining the defendants No. 1 and 2 from making any interference in his land and also restraining the defendant No. 1 Damaram from disposing the 9 bighas of land. The plaint was instituted with the averments that 30 bighas of land of 14-Z and 9 bighas of land at Sabuana was the joint land of the plaintiffs and defendant No. 1 Damaram and defendant No. 4 Maniram. Further averment was that 30 Bighas of land in 14-Z was taken in partition by the plaintiffs and defendants No. 4 and Sabuana land feel to the share of Damara. It was further alleged that out of 30 Bighas of lands 21 Bighas were sold by the plaintiff and defendants No. 4 and ( Contd on next Issue ) the remaining, 9 2ko./ 1 and 2 of 2r\. 2so. 21 was in cultivation and possession of the plaintiffs. 3 Bighas of land was given to Smt. Amritidevi for maintenance and the same was taken by the plaintiffs on share basis. 10 Biswas of land was of course of the share of defendant No. 4 and it was in respect of 9 bighas of land, the suit for permanent injunction was filed. 3 Bighas of land was given to Smt. Amritidevi for maintenance and the same was taken by the plaintiffs on share basis. 10 Biswas of land was of course of the share of defendant No. 4 and it was in respect of 9 bighas of land, the suit for permanent injunction was filed. Nathuram obtained temporary injunction on 12.9.78 (Ex.D 12) whereby defendant Damaram was restrained from transferring or in any way alienating 9 Bighas of land, the subject matter of the suit. The accused persons also produced the copy of the final order Ex.D. 13 passed in the suit filed by Jasbir Singh against Ramkaran and three others. By this order, the suit was dismissed and temporary injunction issued on 1.6.79 was vacated. The accused persons also produced a copy of the F. I. R. No. 47/79 dated 13.5.79 in respect of the occurrence said to have taken place on 12.5.79 at 8-30 p.m. in respect of 5 Biswas of land of Killa No. 1 which was purchased by Pratap from Nathuram vide Ex.D/10. On this report, a case was registered against the accused persons Jeetsingh, Bhagsingh, Darshansingh, Gurjant Singh, Mahendra Singh and Gurmukh Singh and two sons of Jeet Singh. Besides the said documentary evidence Khasra girdhawaris Ex.D/15 and D/16, Demand slips of Irrigation Department in respect of Rabi 1979-80 S.Y. 2036 and Kharif 1979 Ex.D. 17 and Ex.D. 18 and Minutes of Gram Panchayat 10-Z Panchayat Samiti Sri Ganganagar dated 9.6.79 Ex. C/1 have also been produced and the accused persons examined Bhagirath Sarpanch DW 1 in defence. 14. The oral and documentary evidence produced by both the parties have to be appraised and weighed in order to arrive at the finding as to who was in possession of Killa No. 1. We may mention here that there is a heavy onus on the prosecution to prove by clear and cogent evidence that Killa No. 1 of Sq. No. 22 at the relevant time was in possession of Jasbirsingh. To our mind, such a clear and cogent evidence is lacking in this case, on the question of possession. It would not be wrong to state that the inventigation has not been fair. In view of the statement of Damaram himself, the land situated in 14-Z was cultivated by Nathuram. To our mind, such a clear and cogent evidence is lacking in this case, on the question of possession. It would not be wrong to state that the inventigation has not been fair. In view of the statement of Damaram himself, the land situated in 14-Z was cultivated by Nathuram. For the first time, possession is said to have changed on 27.5.78 when the mortgage-deed is said to have been executed and much emphasis has been placed from the side of the prosecution on the fact that Nathuram was a party to the mortgage. As regards Ex.P/84, we may at once slate that this part of the prosecution case is not proved that Nathuram was one of the executants of Ex.P/84. Damaram has not stated so in his court statement. What he has deposed is, that he (not along with his brother) mortgaged the land in favour of Jugrajsingh and it is this question that has been put to the accused-persons that Damaram mortgaged the land. Nathuram has denied the fact of mortgage by Damaram in favour of Jugrajsingh. It was the duty of the investigating officer to have interrogated both Jugrajsingh and Damaram. The questions of possession over the land was the most material question, in the case. When these two witnesses were equally material, it cannot be conceived as to how the investigating officer made no efforts to interrogate these two witnesses. Damaram was examined as a court-witness but Jugraj Singh has not been produced as a prosecution witness. Jugrajsingh could have said as to who delivered the possession to him and who redeemed the mortgage and to whom possession was delivered by him. The statement of Nathuram in Ex.P/5 regarding the fact of mortgage, can not be availed of by the prosecution. Firstly, the execution has not been proved and secondly, it has not been put to him that he was a party to the mortgage deed. The admission of Nathuram in Ex.P/5 is not admissible. Further he has not admitted that Damaram executed the mortgage. Firstly, the execution has not been proved and secondly, it has not been put to him that he was a party to the mortgage deed. The admission of Nathuram in Ex.P/5 is not admissible. Further he has not admitted that Damaram executed the mortgage. Even if it is taken that he was a party to the mortgage-deed as admitted by him in Ex.P/5, then it should also betaken in his favour that he redeemed the mortgage, which fact is also mentioned in Ex.P/5 so on the basis of Ex.P/84 nothing would turn, more particularly, in the absence of proof of Ex.P/84 and this cannot be denied that Ex.P/84 has not been proved by the prosecution. If Ex.P/84 excluded from consideration from this point that Nathuram had mortgaged the disputed land, then the reasoning given by the learned Sessions Judge basing the finding on Ex.P/84 goes away. 15. We may proceed also alternatively assuming that both Damaram and Nathuram executed the mortgage-deed. We are primarily concerned with the question as to whose crop, was lying in Killa No. 1 which is in dispute. The prosecution in this regard, placed reliance on Ex.P/5 and Ex.P/2. Ex.P/5 is counter-balanced by Ex.D./9 whereby mutation was cancelled and the fact was recorded that out of the land in dispute 5 Biswas are in prossession of Pratap and 15 Bighas are in possession of Nathuram. The learned Sessions Judge did not properly consider as to how Ex.D/9 came to be passed or recorded. It is Ex. C/1 in pursuance of which, the mutation was cancelled. Ex.C/1 has been proved by Shri Bhagirath Sarpanch (D.W.l). In the meeting of Panchayat, on 9.6.79 a resolution was adopted for cancellation of mutation in favour of Jasbirsingh and as a fact, it was found that at the spot, Jasbirsingh is not in possession over the land. It was in of Ex.C/1 that entries were made in the mutation record. The learned Sessions Judge considered these documents in the reverse order. Now we may state that Ex.P/12 is Khasra-Sudkar for the purpose of The whole of the land has not been recorded to be cultivated in Ex.P/12. Only in 18 Biswas of Killa No. 1 cultivation is shown. If the correctness of Ex.P/12 is examined, it would reveal that Ex.P/12 is not correct. Now we may state that Ex.P/12 is Khasra-Sudkar for the purpose of The whole of the land has not been recorded to be cultivated in Ex.P/12. Only in 18 Biswas of Killa No. 1 cultivation is shown. If the correctness of Ex.P/12 is examined, it would reveal that Ex.P/12 is not correct. All the three Killas No. 1, 2 and 1/2 Killa No. 3 are said to have been cultivated by Jasbirsingh, only Killa No. 1 is said to have been sold to him and not Killa No. 2 and 1/2 of Killa No. 3. Ex.P/5 is in favour of Jasbirsingh but it can not be said that the report of Lalchand Patwari (Px.P/12) has no value. Lalchand Patwari has stated that he made entries in Khasara-sudkar on the basis of the version given by Jugrajsingh. Subsequently on enquiry, he found that the entry was wrongly made in the name of Jasbirsingh but in fact, Nathuram cultivated the land. Be that as it may Ex.P/5 stands n butted by Ex.D/9 and we further make mention of the fact that change of possession is not supported by any entry in the diary of events (Ghatna-bahi), which is mentioned by the Revenue patwaries. One of the duties of the patwari (Revenue) is to record the change of possession whenever it takes place in the Ghatna-Bahi. On the basis of any such entry, it could be found that possession had changed hands. In pursuance of the sale-deed (Ex.P/1), whether possession was at all handed over to Jasbirsingh, is a question to be considered ? Demand-slips are in the name of Nathuram. In Khasra-girdawaris prior to S.Y. 2033, possession was shown of Nathuram. The relevant columns of S.Y. 2034 onwards are blank. Unless the change of possession is recorded, continuance of possession can be presumed that Nathuram was in possession even after S.Y. 2033. If at any time possession was discontinued, he re-entered into possession. The learned Sessions Judge recorded that Jasbirsingh paid the irrigation dues but no documentary evidence was produced that he paid the irrigation charges. On the contrary the demand-slips Ex.D/17 and D/18 are in the name of Nathuram for the relevant period. Thus, considering these documents produced in defence, in our opinion, on the basis of Ex.P/5 it can not be found that Jasbirsingh was in possession of Killa. No. 1. On the contrary the demand-slips Ex.D/17 and D/18 are in the name of Nathuram for the relevant period. Thus, considering these documents produced in defence, in our opinion, on the basis of Ex.P/5 it can not be found that Jasbirsingh was in possession of Killa. No. 1. From the side of prosecution much emphasis has been placed on the order of the Sub-Divisional Officer dated 1.6.79 (Ex.P/2) whereby, Ramkaran, Tikuram, Rampratap and Yogpal were restrained from interfering in the plaintiffs, possession over the land in dispute. Although, the injunction order was issued on June 1,1979 but the same was vacated on October 15,1979 (Ex.D/13) and the suit was dismissed on the ground of non-joinder of the necessary parties. The Sub-Divisional Officer after considering the joint Khatedari of Nathuram and Damaram expressed that both Nathuram and Damaram are necessary parties and the suit can not proceed. Thus the temporary injunction order issued on June 1, 1979 (Ex.P/2) was vacated on October 15,1979. It can not be lost sight of that this suit was against Ramkaran and there was no restraint order against Nathuram. Ramkaran and three others, who are the members of the same family had nothing to do with 15 Biswas of land of Killa No. 1 but their interest was only in 5 Biswas of land situated on the western side of Killa No. 1 of Square No. 22. Issuance of the temporary injunction dated Tune 1,1979, thus, would not in any way affect so for as wheat crop of Killa No. 1 is concerned and Nathuram was not in any way restrained from entering into Killa No. 1. Besides the above discussion of the documentary evidence, further facts which have come on record, are also material and relevant. As per the statement of Damaram, his brother Nathuram was cultivating the land of 14-Z and it appears that Nathuram and his brothers had dealings for the land and they had entered into transactions of sale of the land. As per own showing, Damaram had specific Killa in his share, which shows that there was some sort of oral partition among the brothers. The land situated in village Sabuana, as he version of Damaram, was in his exclusive possession. As per own showing, Damaram had specific Killa in his share, which shows that there was some sort of oral partition among the brothers. The land situated in village Sabuana, as he version of Damaram, was in his exclusive possession. If the matter is viewed in this light, than it can be said that 5 Biswas of land was transferred by Nathuram in favour of Ram-Pratap through registered sale-deed (Ex,D/10) dated May 17, 1978. It is true that the case of Nathuram was not consistent and there appears to be some In Ex.D/10, it has been recited that 71/2 bighas of land fall to his share out of which 5 Bighas have already been sold and the remaining 21/2 Bighas is comprised of 10 Biswas of Killas No. 1 and Killas No. 4 and 5. He makes no mention of Killas No. 2 and 3 and the remaining 10 Biswas of Killa No. 1. In the plaint filed by him and in the written statement submitted by him in this case, his version was that 9 Bighas of land remained in his possession ; 3 Bighas of Killas No. 1,2,3 of Square No. 22 ; 5 Biswas in Killa No. 4 and rest of the land is in Square No. 20. Despite this discrepancy, we have considered the broad probabilities in order to reach the finding of possession. As already stated probability appear to be that the land stood partitioned and the were dealing with the property as if they have specific shares of the land in their respective possession. 16. The question of possession in respect of Killa No. 1 can further be examined from this aspect as well that the sale-deed (Ex.D/10) was executed by Nathuram prior to the alleged mortgage deed dated May 25, 1978. This sale-deed related to 5 Biswas and in respect of 5 Biswas, the occurrence had taken place, which was reported by Pratap on May 12, 1979 (Ex,D/14). The occurrence took place on May 12, 1979 at 8.30 p.m. vide F.I.R. No 47/79 (Ex.D/14). It has been stated in the F.I.R. that a part of the land of Killa No. 1 he had purchased from Nathuram and had taken possession over the land 5-6 months back. Thereafter, a dhani i.e. Zhopri was constructed in 5 Biswas of land, which was damaged and was fallen down by the accused persons by flooding of water. It has been stated in the F.I.R. that a part of the land of Killa No. 1 he had purchased from Nathuram and had taken possession over the land 5-6 months back. Thereafter, a dhani i.e. Zhopri was constructed in 5 Biswas of land, which was damaged and was fallen down by the accused persons by flooding of water. Whether this 5 Biswas of land was transferred to Pratap or not, can be considered in the light of the circumstances, which finds mention in the site-plan and site-inspection notes. The investigating officer recorded that no cultivation was found on 5 Biswas of land. On the contrary, the grass was growing in 5 Biswas. Besides that he also noticed Kacha bricks and sar-kandas lying in the field, which shows that some time back, a Zhopri must be in existence. Another circumstance, which cannot be lost sight of that the complainant party went to lift the cut-crop on July 18, 1979 in a tractor. The crop must have been cut long back although the date, as to when the crop was cut has not come on record but in the first information report, it was stated that the cut-crop was lying even upto 17.8.79 that shows, it was cut long back. It is stated that the complainant party had no time to remove it, which does not stand to reason. The crop must have been cut latest by the end of May. It could not have remained lying in July, when rains generally set in. It is strange that the complainant party had obtained temporary injunction as early as on 1.6.79. One fails to understand how the cut-crop was not removed after the injunction order. Either the crop must have been cut even before 1.6.79 or soon there after there must have been some hesitation on the part of the complainant party to remove the cut-crop. The complainant party might be feeling that there was no injunction order against Nathuram and resistance may be offered by hint assisted by Ramkaran and others, which prolonged the removal of the crop, feeling diffident as if the complainant party had no right to remove it. 17. The complainant party might be feeling that there was no injunction order against Nathuram and resistance may be offered by hint assisted by Ramkaran and others, which prolonged the removal of the crop, feeling diffident as if the complainant party had no right to remove it. 17. Thus, considering the question of possession from the all angles, we have no hesitation in holding that the prosecution has failed to prove that Jasbir Singh and his brother was in possession of Killas No. 1, 2 and 1/2 of Killa No. 3 of Square No. 22. On the contrary, we are satisfied that Nathuram was in possession of Kilia No. 1, 2 and 1/2 of Killa No. 3 and the occurrence took place when the accused-party came armed with an intention to remove the wheat stacks by force. The totality of the facts and circumstances of the case and particularly, the statement of Damaram leads us to hold that all the four co-sharers were in possession of their respective lands and Damaram had nothing to do with the land in 14-Z. The other co-tenants were parties to the suit filed by Nathuram and his brother and there appears no dispute between Nathuram and the other two co-tenants. To our mind, the conclusion is irresstible and in escapable that the co-tenants were in possession of their respective lands. Nathuram executed the sale deed in favour of Rampratap vide Ex.D/10 and the rest of the land of Killa No. 1 was in possession of Nathuram. 18. Having reached the finding on the question of possession, the plea of self defence of person and property raised by the accused, needs examination and for that, it has also to be seen as to how the occurrence took place ? Whether the occurrence took place in the manner as alleged in the first information report or as alleged at the trial or the occurrence took place in some what different manner ? If we look to the sequence of the events narrated in the first information report, the occurrence proceeds in the manner that all the accused armed with various weapons as already stated above, were sitting near themandlis of Killa No. 1, Ramkaran exhorted to kill Jeetsingh and his party and he fired a gun shot, which hit on the head of Harbilas Singh. The informant then reveals that from the butt of the gun, Ramkaran hit him and Jasbirsingh and Phoolaram were dealt with Kasia blows on their heads. At the trial, the prosecution witnesses did not adhere to this version of the origin of the occurrence. Whether the accused persons were sitting at the Mandlis of Killa No. 1 or they were lying in a bush behind the Jawar crop or whether the accused-persons were working at different places and were scattered and came from different directions ? Even the learned Sessions Judge did not believe the first information and trial version. The version given during the trial by the witnesses is that the accused-persons were sitting behind the Jawar crop and came out with deadly weapons. This discrepancy, which in a case like the present one, can not be ignored and dealt with lightly. There is another discrepancy, which occurred on the question as to how the assault started ? Was he Ramkaran, who first opened fire, soon after the exhortation or it was Tikuram, who opened asualt as stated by the witnesses at the trial. Jasbirsingh has stated that Tikuram rushed, towards him after exhortation by Ramkaran and inflicted the kasia blows on his head and on sustaining the blow, he fall down. Thereafter, Ramkaran fired a shot towards the trolley, which hit Harbilas Singh. The discrepancy assumes importance if considered in the light of defence taken by the accused-persons. The defence of the accused-persons is that Tikuram was the first, who was dealt with a Kasia blows. On hearing his cries, the other accused were attracted to the scene of occurrence. In view of the shifting and changing versions, implicit reliance as to the origin and genesis can not be placed on the evidence of the prosecution witnesses. The accused-persons were not present in Killa No. 1 so the origin and genesis of the prosecution case does not appear to be true. The learned Sessions Judge has negatived the plea of self defence of person and property on the ground that the injuries on the person of Ramkaran are fabricated one and one injury on the person of Tikuram as well is only an injury in the name. The learned Sessions Judge has negatived the plea of self defence of person and property on the ground that the injuries on the person of Ramkaran are fabricated one and one injury on the person of Tikuram as well is only an injury in the name. What has weighed with the learned Sessions Judge is that the injuries of Ramkaran are fake and fabricated one and the injury on Tikuram is only an injury in name, then the question of right of self defence does not arise, the question has to be considered in the light of probabilities. The injuries caused on the person of Ramkaran and Tikuram are also suggestive of the fact that accused-persons were acting in the exercise of the right of private defence of their person and property. 19. We may first take up the injuries of Ramkaran had the following injuries on his person:- 1. Lacerated wound ⅛" x ⅛" x 1/4" on the left cheek below eye. 2. Lacerated wound ⅛" x ⅛" on the left side of the abdomen 21/2" above and lateral to imblicus. 3. Abrasion ⅛" x ⅛" near injury No. 2. Dr, R. K. Gupta has stated that margins of the wounds were inverted but no blackening, scorching or testooing were present. There was no opening in the shirt and the Baniyan corresponding to injury No. 2, X-Ray of the abdomen and face were advised to detect the nature and type of weapon used for injury No. 1 and 2. Injury No. 3 was simple, which was caused by blunt weapon. On X-Ray report, he found no foreign body (metalic) was detected in the abdomen. Dr. Gupta has deposed that injury No. 1 of Ramkaran was by a blunt weapon as the pallet recovered from the nodule, was of some previous origin and not due to external injury No. 1. He opined on the basis of note taken by him and mentioned in his supplementary report from the Bedhead Ticket of Ramkaran. It may be mentioned that Ramkaran went to Hospital and he was operated on 23 7.79. As stated in the supplementary report (Ex. D/7), the Operating Surgeon recorded that a curved incision was made in the left zygomatic maxillary region. The underlying soft tissue did not show any track on exploration of the wound. Thick dense hard fibrotic nodule was felt below and outwards zygomatic prominence. As stated in the supplementary report (Ex. D/7), the Operating Surgeon recorded that a curved incision was made in the left zygomatic maxillary region. The underlying soft tissue did not show any track on exploration of the wound. Thick dense hard fibrotic nodule was felt below and outwards zygomatic prominence. This was cut open and the shot was found lying over the bone in a well organised dense fibrotic cavity, wound closed". On the basis of this report, Dr. Gupta opined that the minimum duration of fibrotic nodule is about 3-4 weeks. He deposed that injury No. 1 of Ramkaran was by blunt weapon as the pellet in the nodule was of some previous origin and not due to external injury No. 1. The learned Sessions Judge has also considered the statement of Dr. Gupta in relation. On the basis of the statement of Dr. Gupta, it was found by the learnede Sessions Judge that the injurise of Ramkaran are not genuine. It may be stated that this fact that a shot was fired at Ramkaran finds mention in the first information report (Ex. P/53) lodged by Tikuram on the same day bearing No. 76. So far as the investigation is concerned, the investigation is not fair and the investigation did not record the injuries when Ramkarans arrest was affected in his arrest memo. The opinion of Dr. Gupta regarding the duration of emergence of fibrotic nodule, has not been supported by any treatise on the Medical Science, and operating doctors have not been examined. It is true that there was no track. What was the depth of the wound is also not clear, Depth may not be much and as the tissues were soft, it may be that the track was not clear and which was not noticeable. Dr. Gupta himself has stated that margins of the wounds were inverted. This shows that something has entered that is why margins were inverted. It is also pertinent to note that on 18. 7. 79 itself, the operation was not conducted but the operation was not conducted but the operation was under taken on 23. 7. 79 after 5 days. At the time of operation, some nodule was seen. The medical dictionary meaning of Nodule is small swelling and such a swelling of fibrotic nature may develop in five days. 7. 79 itself, the operation was not conducted but the operation was not conducted but the operation was under taken on 23. 7. 79 after 5 days. At the time of operation, some nodule was seen. The medical dictionary meaning of Nodule is small swelling and such a swelling of fibrotic nature may develop in five days. We can not conceive that injuries of the same dimensions will be fabricated. The lacerated wounds are of the same dimensoins ⅛" x ⅛" in length and width. So far as depth of injury is concerned, it is 1/4". No depth has been noted of injury No. 2. The presence of injuries of same dimensions in length, and which in our opinion, negatives, fabrication. When the pellet has been recovered from injury No. 1 the report Ex P/53 gets full corroboration. Absence of opening on baniyan and shirt is explicable otherwise. He may not be having any clothes on his body at that time. Thus, we are unable to agree with the opinion of Dr. Gupta with regard to the injuries on the person of Ramkaran. Tikuram had the following injuries:- 1. Incised wound 21/2" x 1/4" x muscle deep on the posteriorly aspect of the right arm. 2. Lacerated wound 1" x 1/12" in the skin deep on the skull in the center. 20. The learned Sessions Judge ignored No. 2 and in relation to injury No. 2 expressed that injury is in name only. How Tikuram was dealt with, can be gathered from the report Ex. P/53 that gandasa blow was inflicted by Majorsingh. This injury was noticed by the Investigating Officer and recorded in the proceeding beneath the first information report. It was an injury on the right arm of Tikuram which had bled and the blood has been deposited. It is true that injury No. 2 was not noticed but Tikuram was examined at about 10.55 a.m. on 18.7.79. There was no time for fabricating this injury as the injury was in the centre of skull so it may be that it was not visible externally, and it may be that nothing was asked to him by the Investigating Officer. It is true that so far as the injury No. 2 is concerned it was of a trivial in nature but the fact remains that it was noticed at the time of medical examination. It is true that so far as the injury No. 2 is concerned it was of a trivial in nature but the fact remains that it was noticed at the time of medical examination. Thus, we do not agree with the findings of the learned Sessions Judge negativing the. plea of self defence. If Tikuram and Ramkaran have received injuries at the time of occurrence, it was the duty of the prosecution to explain them but the prosecution has failed to prove at what stage of occurrence, these accused persons received injuries. In the absence of any explanation from the side of prosecution why it can not be taken that an attack was opened on them and they simply retaliated. The defence is that Tikuram was in Killa No. 10 where the Narma crop was standing. The tractor passed through that Killa, which was prevented by him. At that stage, according to him, the blow was inflicted. This aspect of the case did not find favour with the learned Sessions Judge on the basis that a tractor took a turn and went towards Square No. 21 and thereafter entered into Killa No. 1. The perusal of site-plan, no doubt shows deviation but Gopalaram has stated that tyre marks were there in Killa No. 10. Gopalaram has not made it clear that tyre marks were not of proceeding to Killa No. 1 but were of returning back from Killa No. 1. This clarification should have been made. Site-plan (Ex. P/9) as such does not stand proved. Even if this circumstance is ignored, then it was the duty of the prosecution to come out with the version of the first information report. The occurrence did not take place in the manner as alleged by the prosecution and that would be clear from the site-plan. Point No. 11 falls in two Squares in Killa No. 11 of Square No. 22 and Killa No. 15 of Square No. 21. On these points, wads were found and it was also noticed that the wads were scattered at several places. Besides that, Point No. 8, 9 and 10 are in killa No. 10 itself of square No. 22 belonging to Pratap. Blood-stained chappal of the accused was found in killa No. 8. At point No. 9, some blood stained articles of the left leg of the deceased was found. Besides that, Point No. 8, 9 and 10 are in killa No. 10 itself of square No. 22 belonging to Pratap. Blood-stained chappal of the accused was found in killa No. 8. At point No. 9, some blood stained articles of the left leg of the deceased was found. At point No. 10, some lying marks were there i.e. Points No. 8, 9 and 10 negative the fact that no event had taken place in killa No. 10 itself. Absence of tyre marks would not damage in any way the defence plea if it is considered in the light of what is found at points No. 8, 9 and 10. Ramkarans presence was not stated by the prosecution witnesses at Point No. 10. We have already considered the two versions given regarding the presence of the accused-persons; one in the first information report and the other at the trial. So, Ramkaran could not be at Point No. 10. It was the duty of the prosecution to establish that Ram Karan, was at point No. 10, and the shot was fired by him from somewhere near the places where the wads were found. The pellet was recovered from Point No. 15. Point No. 15 is in different Square above Square No 21. from the perusal of the site-plan and note, it can be said that some one fired a shot from Killa No. 10 of Square No. 22 in the direction of Killa No. 1. If Ramkarans presence in Killa No. 10 is not established, then it can safely be said that the shot was fired by the complainant party soon after it reached near that killa and that hit Ramkaran and the occurrence did not take place after reaching of the complainant, party in killa No. 1. It appears that the complainant party came armed with clear design to lift the wheat stacks by force. The complainant party was armed with a sharp as well as blunt weapons and also with a fire arm. Ramkaran has received gun shot injuries. It appears that the complainant party was not in a position to lift the wheat stack without the use of force earlier or about 1.6.79. The back-ground in which the occurrence took place, is also indicative of the design of the complainant party Litigation was already going on. Ramkaran has received gun shot injuries. It appears that the complainant party was not in a position to lift the wheat stack without the use of force earlier or about 1.6.79. The back-ground in which the occurrence took place, is also indicative of the design of the complainant party Litigation was already going on. Rampratap had already lodged F. I. R. on 12.5.79 and two suits have been filed one by Jasbirsingh and the other by Nathuram and his brother. If the complainant party had obtained injunction against Ramkaran and others and it there was no dispute with regard to wheat crop, it would have been removed earlier. As a matter of fact, Ramkaran and his family had nothing to do with the wheat crop, but it appears that the wheat stack being of Nathuram, so there was considerable delay on the part of the complainant party to remove the wheat crop. It is evident that the complainant party proceeded to the spot armed A with deadly weapons to lift the wheat stack by use of force and in order to its design resorted to violence. The plea of self defence of person and property finds fully substantiated in the case. We have also found that Nathuram was in possession of 15 Biswas of Killa No. 1 and also of Killa No. 2 and 1/2 of Killa No. 3. That being so, the wheat crop was of Nathuram end when the complainant party had come, Nathuram along with his companions could legitimately defend themselves by resorting to violence. We may mention here that the accused persons are only required to probabilise their defence and the burden on them is not so heavy as is on the prosecution. Killa No. 1 was partly in possession of Ramkaran and his family and partly in possession of Nathuram and Nathurams possession could also be defended by them and so they exercised the right of defence of property and they were within the rights to remove the trespassers, who had come upon the land even by causing injuries. Thus, the accused-persons have succeeded in establishing that they acted in the exercise of the right of private defence, not only of their property as well. 21. Thus, the accused-persons have succeeded in establishing that they acted in the exercise of the right of private defence, not only of their property as well. 21. Having found that the complainant party was not in possession of the land in question and having found that the accused acted in the exercise of the right of private defence of their person and property, it is yet to be seen as to whether they exceeded their right. On behalf of the prosecution, the learned Public prosecutor and the learned counsel for the complainant submitted with vehemence that it is a case where the evidence bears out that the accused-persons exceeded the right of private defence and caused more harm by dealing blows on the person of Jeetsingh and Sukhram. Both these persons had fallen down. Thereafter, blows were continued to be inflicted and merciless beating was given to them. Jeetsingh sustained in all 56 injuries. Out of which 12 were incised wounds and 34 bruises abrasions and lacerated wounds. Out of the total injuries ; six were grevious and two of them were incised wounds on the head. Jeetsingh had received multiple fractures not only on limbs but also on the head. It has also been pointed out that in the first information report, Harbilas Singh had stated that the accused-persons encircled Jeetsingh and Sukhram and exhorted that they will kill them and they were not allowing to lift them. Harbilas Singh stated that the accused persons were beating Jeetsingh when he was lying on the ground and the members of the complainant party raised an alram imploring them not beat them. But the F.I.R. version is not fully substantiated by the evidence. Beating on fallen persons was given after exhortation and that fallen persons were not allowed to be lifted is not proved. The statements of the witnesses on this aspect of the case, are discrepant. They simply stated that on the fallen persons, beating was given by the accused. From the number and nature of injuries, it can of course be said that the deceased was mercilessly beaten. But the question is as to when the deceased Jeetsingh received what injuries i.e. where and at what stage of the occurrence, what injuries were received. It can not be found that all the grevious injuries were caused by the accused-persons on the fallen Jeetsingh. But the question is as to when the deceased Jeetsingh received what injuries i.e. where and at what stage of the occurrence, what injuries were received. It can not be found that all the grevious injuries were caused by the accused-persons on the fallen Jeetsingh. Some of the grevious injuries could be sustained simultaneously or in quick succession without any premeditation. 22. We may notice here some case law on the subject of exceeding the right of private defence of person and property. 23. From the side of the prosecution, reliance was placed on Subalsingh and others v. The State of Rajasthan ( AIR 1978 S.C. 1538 ). In that case, on facts, the accused were found in possession of the land and the deceased persons were also not un-armed. They were drunk at the the time of occurrence. The deceased party went to the field with a determination to remove the Gowara crop from the possession or control of the accused and the occurrence was not a one-sided affair. There was some fight in the course of which, blows were exchanged and both sides received injuries. It was held that in view of the facts, it could be said that the accused had a right to defend their possession and property. But the force used by them was recklessly excessive and as such, they were rightly not given the benefit of Exception II to S. 300, IPC. Their Lordships of the Supreme Court after giving the background of the case and the weapons wielded by the accused-party and the deceased party arrived at the finding that they were recklessly using force. It would turn on the facts of each case as to whether the force used, was more than necessary. Much would depend on the question, how the sequence of events took place during the occurrence. The assembly is not and cannot be designated as unlawful assembly, if the accused-persons were acting in the exercise of the right of defence of person and property. In order to hold the accused-persons guilty of exceeding the right of defence of person and property, on facts it has to be found that the accused had formed an unlawful assembly with a common object of exceeding the right and causing more harm than is necessary and had caused more harm than was necessary. In order to hold the accused-persons guilty of exceeding the right of defence of person and property, on facts it has to be found that the accused had formed an unlawful assembly with a common object of exceeding the right and causing more harm than is necessary and had caused more harm than was necessary. This aspect of the case, might have been considered by the High Court in Sabalsinghs case (supra) but in the report it is not clear as to whether such a finding was at all reached that the accused-appellants, who were three in number had a common intention to exceed the right and to cause more harm and pursuance there-to, to continue resorting to violence at the stage of exceeding the right. It appears that three appellants had murdered four persons and special leave to appeal was granted only on the question of sentence. 24. Reference may be made to the decision of the Supreme Court in Patil Hari Meghji and another v. State of Gujrat ( AIR 1983 S.C. 488 ) . In this case, there was a single accused and there was a specific finding that he continued to inflict blows after the victim had fallen down on the ground and was rendered harmless and was not in a position to put any resistance. In these circumstances, the plea of the right of private defence was negatived. Their lordships of the Supreme Court agreed with the High Court and observed that this was not a case in which any other view excepting the one taken by the High Court was reasonably possible. 25. The present case is not a case of single accused. Jeetsingh was dealt blows but as already stated/the version of the witnesses is some what varying and not consistent. Besides that it is not clear as to at what stage what injuries were sustained by Jeetsingh and on fallen Jeetsingh what injuries of what nature were caused. So far as the question of common object is concerned, in a case of exceeding the right of private defence, their Lordships have laid down that such an assembly is not an unlawful assembly and members of the unlawful assembly are individually responsible for causing more harm to the victim. 26. So far as the question of common object is concerned, in a case of exceeding the right of private defence, their Lordships have laid down that such an assembly is not an unlawful assembly and members of the unlawful assembly are individually responsible for causing more harm to the victim. 26. Reference may also be made to a decision of the Supreme Court in State of Bihar v. Nathupandey and others (A.I.R. 1970 S.C. 27). In this case the common object of the assembly was to prevent theft and the assembly acted in the exercise of the right of private defence, some of the accused persons exceeded the right of private defence and who exceeded was not known. It was held that none of the accused could be held guilty either 302 of u/section 302/149 or under section 302/34, I.P.C. It was observed that the object of the assembly was not unlawful. There was no common object or intention to kill the two deceased person. The murders were not committed in prosecution of the common object of the assembly or were not such as the members of the assembly knew to be likely to be committed. 27. Reference may also be made to a decision of this court in Inshwarsingh v. State of Rajasthan and others (1973 Cr.L.J. 811). In that case, some of persons had possession of the field and the complainant party had come to take the field. Members of both the parties were injured but it was held that members of B party had exceeded the right of private defence, One of the members of A party was rendered almost to pulp and was beaten even after he had fallen down. It was held that in case of exceeding right of private defence, accused can only be responsible for individual acts individually and none of the accused can be convicted with the aid of Section 147, 149 or section 34, I.P.C. On facts, it was found that the six accused-persons could invoke the right of the private defence. It was held that in case of exceeding right of private defence, accused can only be responsible for individual acts individually and none of the accused can be convicted with the aid of Section 147, 149 or section 34, I.P.C. On facts, it was found that the six accused-persons could invoke the right of the private defence. It was further observed that it is manifest that no charge under Section 147 or any other section read with section 149 can be established for the common object to commit an offence attributed in those charges is not made out nor is it possible to convict them under any offence read with Section 34, I.P.C. as all that the accused wanted was to prevent the complainants party from taking forcible and unlawful possession of the field in question. It was found that the common intention of the accused to murder Bhanwarsingh or grievious injury to Guman Singh is not established. It was held that on the question of exceeding the right of private defence in causing the death of Bhanwar Singh or injuring Gumansingh and Motisingh, those who killed Bhanwarsingh by exceeding the right of private defence may be individually held responsible for causing the death of Bhanwarsingh but it can not be said that the murder was committed in prosecution of the common object of an unlawful assembly or in furtherance of the common intention of all the accused.Exception No. 2 to Section 300 provides : Exception 2 : Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence or person or property exceeds the power given to him by law and causes the death of the person against 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." 28. It would appear from the above provision that if the defenders exceed the power given to them by law and cause the death of the person or persons against whom they are exercising the right of the defence and in such exceeding and causing the death act in a concerted manner with premeditation and with an intention of doing more harm than is necessary for the purpose of such defence, their case would not be covered under Exception 2 and they can be held guilty of the offence under section 302 read with section 34 of Section 149 IPC. as the case may be. An assembly of defenders in that case would cease to be an assembly of persons defending their person or property and would become an assembly of persons which had developed a common object to cause the death by action in a concerted manner with premeditation and with an intention to cause more harm than is necessary. 29. It is a question of fact as to whether some common object at the stage of exceeding the right of private defence of person or property had developed. From the evidence on record such a common object of causing more harm than was necessary and to cause death of Jeetsingh cannot be found. So the members of the accused party cannot be held constructively liable. Although it can be found that the deceased was dealt blows even after he had fallen down but what blows were inflicted on fallen Jeetsingh, are not known and if any fatal blows are caused on the person of Jeetsingh who are the authors thereof are not known. In the absence of common object in our opinion, all the accused persons cannot be held guilty of the offence of murder read with Section 149, IPC. 30. In the light what we have discussed above, the appellants are entitled to be acquitted.In the result, the appeal is allowed, convictions and sentences of the appellants are set aside and they are acquitted of the offences of which they have been convicted. Tikuram and Yogpal are already on bail and so they need not surrender to their bail bonds. Rest of the accused-appellants are in jail and they shall be released forthwith if not required in any other case. *******