JUDGMENT 1. - This appeal has been preferred against the judgment dated 28th April, 1983 passed by the Sessions Judge, Tonk, whereby, he convicted all the accused-appellants of the offence under section 302/149, IPC, and sentenced each of them to imprisonment for life, and a fine of Rs. 100/- each, and in default of payment of fine, to further undergo 1 months SI each. For the offence under section 147, IPC, he sentenced each appellants to three months RI and a fine of Rs. 50/-; and in default of payment of fine, to further undergo one months SI each. He further convicted appellants Mangilal, Nandaram and Ramchandra of the offence under section 323, IPC, and sentenced each of them to one months RI and a fine of Rs. 50/- each and in default of payment of fine, to further undergo 7 days SI each. 2. Succinctly narrated, the facts of the case giving rise to this appeal, are that on 16th June, 82, Parcha-Bayan of one Chauthmal, son of Fatehlal, was recorded by the SHO, PS - Mendwas, which was registered at No. 319 in the Roznamcha-Aam, and subsequently FIR No. 21/82 was prepared. In this Parcha-Baya, Chauthmal alleged that, he along with his father, Fatehlal, Ramdeva Kumhar, Suman Singh Rajput, Ramswaroop, Daru Meena, had gone to Bherun Lakheras field at about 8-9 AM on that day. He had taken his tractor to which coolie was fitted ; and Ramdeo, Sammansingh and Ramswaroop had their oxen-coolies. It was further stated therein that prior to this, they also had been to the aforesaid field and they did Kharar twice, and this time, for the third Kharar they had gone to the field. After reaching the field, they hardly had done 2-3 Motha by the tractor and coolies that 40-50 persons came from their village including the appellants. As soon as they came there, they started beating his father without asking an thing. He (Chauthmal) has further alleged that Nanda and another Nanda with Prahlad and Ramlal Jat gave lathi blows to Fatehlal, on several parts of his body. Nanda Jat gave lathi blows to his father, on his head. Ramnath also gave lathi blows on his fathers head. Nanda, son of Uda Jat, Banna son of Uda Jat, Prahlad son of Nanda and another Prahlad son of Bhanwarlal gave lathi blows to Ramdeva Kumhar. Kanhaiyalal Paliwal also inflicted lathi blows. Nanda Jat gave lathi blows to his father, on his head. Ramnath also gave lathi blows on his fathers head. Nanda, son of Uda Jat, Banna son of Uda Jat, Prahlad son of Nanda and another Prahlad son of Bhanwarlal gave lathi blows to Ramdeva Kumhar. Kanhaiyalal Paliwal also inflicted lathi blows. He (Chauthmal) has further stated therein that he did not know as to how the injuries were inflicted upon the persons of the other party. He has further stated that he had only one parania and nothing else, while the accused persons were armed with lathis. Daru and Samman Singh ran away from the spot. His sister Mst. Prem went from the village and brought her father. In the said Parcha-Bayan, he has stated that Ramnarain son of Lada Brahmin, Raghunath Singh son of Sultansingh Rajput and Jailal son of Kishanlal Jat, member, Panchayat, who were standing at the spot, at some distance, had also witnessed the incident, and that, several other persons of the village who were also present there, also witnessed the quarrel. He (Chauthmal) has further stated therein that there was no previous enmity in between the Jats and Paliwals. He has then stated that, on account of the injuries received in the incident, his father expired. 3. On the basis of this Parcha-Bayan, a case was registered under sections 302, 147, 148, 149 & 323, IPC, and investigation started. After completing the investigation, the police submitted a challan before the CJM, Tonk, on 9th July, 82, who committed the 13 accused persons to the court of Sessions Judge, Tonk. 4. The learned Sessions Judge framed charges against the accused persons, who pleaded not guilty. After examining the prosecution witnesses and then the accused persons, under section 313, Cr. P. C., the learned Sessions Judge found that no case was made out against Prahlad son of Nanda and Nanda son of Kalu, and consequently, he acquitted these two persons of the charges levelled against them. However, the learned Sessions Judge found the 11 other accused persons (present appellants) guilty of the offence under sections 302/149 & 147, IPC. He also found accused Mangilal, Banna, Nanda and Ramchandra guilty of the offence under section 323, IPC, and sentenced each of them as mentioned above. 5. There is no dispute on the point that Fatehlal died on account of some injuries. He also found accused Mangilal, Banna, Nanda and Ramchandra guilty of the offence under section 323, IPC, and sentenced each of them as mentioned above. 5. There is no dispute on the point that Fatehlal died on account of some injuries. It is also not disputed that there was a quarrel in between the complainant party and the accused party at the field of Bheru Lakhera ; and that, in that fight, both the parties received injuries. The injuries of the accused persons were also proved by the doctor who examined the complainant party, as well as gave the postmortem report of Fatehlal. 6. The argument of the learned counsel for the appellants was that the accused persons in their right of private defence to their persons, had inflicted the injuries to Fatehlal and the other members of the complainant party. It was also argued by the learned counsel for the accused-appellants that the complainant and his party-men were the aggressors, and that, they had started beating the accused persons first, and then, in order to save their life and on apprehension of dangerous consequences of the beating as the complainants party-men were armed with sword etc, they in their private defence to their persons, gave certain blows to Fatehlal and his party men. So, according to the learned counsel, whatever the accused-appellants did during the course of the incident, that was in the right of private defence to their persons and property, and no offence is made out against the accused persons. He also argued that the learned Sessions Judge has failed to appreciate this aspect that the accused persons had the right of private defence to their person and property. 7. We have perused the challan submitted by the police, against the 13 accused persons. In this challan even, the investigating officer has mentioned that during investigation, it was revealed that deceased Fatehlal had gone to Bheru Lakheras field with the intention of taking possession over the field. He had gone there with his own tractor ; a coolie ; and also with certain other persons. It is also in the said challan that when they started their work at the field with the tractor and they ploughed 2 mothas, Nanda Jat and Ramlal Paliwal along with some other respectable persons, namely, Ramnarain Sharma and Jailal came to the field, and they all tried to pacify Fatehlal. It is also in the said challan that when they started their work at the field with the tractor and they ploughed 2 mothas, Nanda Jat and Ramlal Paliwal along with some other respectable persons, namely, Ramnarain Sharma and Jailal came to the field, and they all tried to pacify Fatehlal. But, Fatehlal came on heat of passion and gave a push to Kanhaiyalal. Fatehlal was having a Farsi in his hand. So, seeing the situation, Jailal snatched away the Farsi from the hand of Fatehlal. Then, the other accused persons who were Jats, also arrived at the field and quarrel started there. So, under these circumstances, the investigating officer in the challan has mentioned that the accused persons acted in the right of their private defence to their persons and property. He could not come to any conclusion whether it was a right of private defence either to person or property, and if so, whether the accused persons acted in the right of private defence of their persons and property or not. So, challan was submitted against these persons. This shows that during investigation the investigating officer felt that the accused persons acted in the right of private defence to their persons and property. But, he could not arrive at a conclusion as to whether this was a right of private defence or not, and to take a final decision from the court, the challan was submitted. But, this fact cannot be ignored that even after the investigation, the investigating officer was of the opinion that there was some right of private defence of person or property to the accused persons. Anyway, the only point to be seen in this case is as to whether the accused persons had acted in the right of private defence to their persons and property, and if so, whether they had exceeded the said right or not. 8. The important aspect to no e in this case is that the Parcha-Bayan, Ex. P. 1, Chauthmal PW. 1 has stated that all the accused persons were armed with lathis. He has mentioned therein that none of the accused persons had any sharp weapon with them. He also has not stated in the parcha-Bayan that the lathis which were with the accused persons, had any iron-rings on them. P. 1, Chauthmal PW. 1 has stated that all the accused persons were armed with lathis. He has mentioned therein that none of the accused persons had any sharp weapon with them. He also has not stated in the parcha-Bayan that the lathis which were with the accused persons, had any iron-rings on them. So, from this Parcha-Bayan, it is clear that the accused persons were having simple lathis in their hands. Chauthmal PW. 1 in his statement also has stated that the accused persons had lathis in their hands. But, he has stated therein that the said lathis had iron-rings on them. Similarly, the other prosecution witnesses also have stated in their statements about iron-rings on the lathis. It means that they all have developed their case in the statements to make the case more serious against the accused persons. Chauthmal has stated there were iron-rings on the lathis, which is actually not correct. Had there been any iron-rings, on the lathis used by the accused persons, Chauthmal would have mentioned it in his Parcha-Bayan Ex. P. 1. This shows that he has improved this in his statement, to implicate the accused persons more seriously and to make the offence more grievous against them. So, this statement of Chauthmal is incorrect, and we do not believe it. We only hold that the accused persons were having simple lathis in their hands. 9. Chauthmal PW. was cross-examined at length. He has admitted in his cross-examination that the land in dispute was not in their khatedari, and that it was in the khatedari right of Bherun Lakhera. When Bherun Lakhera went to Kota, whether this and was being cultivated by Shivraj Rajput or not, he could not say. According to him, this land was given to his father by Bheru Lakhera for cultivation. There was in writing to this effect that his father would cultivate this land because, Bherun Lakhera was to owe some money to his father. According to him, Rs. 1000/-were given to his father by Bherun Lakhera, and it was agreed to that half of the crop would go to Bherun Lakhera and the rest half to his father. That agreement was written by Ramnarain Jain in their Bahi. No such document was however, produced before the court. So, this statement of Chauthmal is unbelievable. According to him, Rs. 1000/-were given to his father by Bherun Lakhera, and it was agreed to that half of the crop would go to Bherun Lakhera and the rest half to his father. That agreement was written by Ramnarain Jain in their Bahi. No such document was however, produced before the court. So, this statement of Chauthmal is unbelievable. He has admitted that they never paid the Lagan (rent) for this land to the patwari. So, there is no document in favour of his father to show that the land was given to his father by Bherun Lakhera and that it was being cultivated by them. This shows that Chauthmal is a most unreliable witness. His statement which was recorded by the police is Ex. P. 1. In that statement, he was confronted with the portions from A to B; C to D; E to F; G to H; I to J; and K to L, and for all these portions, Chauthmal has replied that they are incorrect. Ex. P. 1 & Ex. D. 1 his statements which were recorded by the police. There was no reason that the investigating officer would incorrect statement. Ex. P. 1 is the FIR. and Ex. D. 1 is the statement recorded by the police u/s 161, Cr. P. C., which were written at his instance by the police, and in his cross-examination, he has stated that the portions referred to him were incorrect. It means that he is a most unreliable and untrustworthy witness, and he should not be believed at all. His statement is also contradicted by the other prosecution witnesses, namely, Ramdeva PW. 4; Sammansingh PW. 7. and Ram Swaroop Daru PW. 8. 10. We have perused the statements of these prosecution witnesses also, and we feel that all these three witnesses, namely, Ramdeva, Sammansingh and Ram Swaroop Daru are also unreliable witnesses, and no reliance can be placed on their version. Ramswaroop PW. 8 in his cross-examination, has stated that Fatehlal had cultivated the disputed land, and that, there was a writing about the said land which was with Fatehlal. He has stated to this extent that when the dispute started, the writing which was with Fatehlal, was torn away by the accused persons. Such statement was not given by Chauthmal PW. 1, which shows that Ramswaroop is an unreliable witness. He has stated to this extent that when the dispute started, the writing which was with Fatehlal, was torn away by the accused persons. Such statement was not given by Chauthmal PW. 1, which shows that Ramswaroop is an unreliable witness. Also, there is difference on the aspect that sword-blow was given by Nanda and later on, Fatehlal snatched away that sword from Nanda. Such statement has not been given by Chauthmal PW. 1. He has not stated that Nanda had a sword with him, and that, it was later on snatched away by Fatehlal. 11. Ramdeva PW. 4 has denied that his statement was recorded by the police under section 161, Cr. P. C. He has also stated that Fatehlal had snatched away the sword from Nanda. There was no such statement by Ramdeva PW. 4 before the police under section 161, Cr. P. C. This witness has admitted that Fatehlal inflicted injuries by sword to Prahlad and Nanda. Thus, on account of contradictory statements of the prosecution witnesses, we feel they are most unreliable and untrustworthy witnesses. Chauthmal PW. 1 who is the son of the deceased is the solitary eyewitness in this case, and as discussed above, his statement cannot be relied upon at all. 12. It was argued by the learned counsel for the accused-appellants that in the FIR, Ex. P. 1, the names of Ramnarain, Raghunathsingh and Jailal are mentioned. But, the prosecution did not examine of these persons, and instead, the prosecution has examined Chauthmal PW 1, who is the son of the deceased, and the other witnesses, namely, PW 4 Ramdeva; PW 7 Sammansingh; and PW 8 Ramswaroop Daru, who cannot be said to be independent witnesses. They all are interested witnesses, and as discussed above, their statements are unreliable. Thus, the prosecution evidence appears to be unreliable, and no conviction can be passed on such evidence. 13. It is not disputed that the accused persons also received injuries. Chauth Mal PW 1 has not stated anything to this effect as to how the accused persons received those injuries, and as we have mentioned here in above, this witness has even denied the allegation made by him in the FIR Ex. P. 1 and in his statement recorded by the police under section 161, Cr. PC. which is Ex. D. 1. P. 1 and in his statement recorded by the police under section 161, Cr. PC. which is Ex. D. 1. So, his version is discarded totally, and cannot be relied upon at all. 14. PW 4 Ramdeva has stated that Fatehlal had snatched away the sword from the hand of Nanda and inflicted one sword blow to Nanda, and also another blow on the leg of Prahlad. He has not stated so, in his statement recorded under section 161, Cr. PC. 15. Sammansingh PW 7 has also stated that Nanda wanted to give blow I. by the sword to Fatehlal which did not hit him. Fatehlal then snatched away the sword from the hand of Nanda and then inflicted blows to Nanda and Prahlad. In his statement Ex. D. 4, he has not deposed that Nanda son of Kalu had a sword with him, and that, he had attacked with that sword on Fatehlal and Fatehlal snatched away that sword from him and then inflicted blows to Nanda and Prahlad. 16. Similarly, Ramswaroop has stated that Nanda wanted to give blow by sword to Fatehlal, but Fatehlal snatched the sword from the hand of Nanda and then inflicted blows by it to Nanda and Prahlad. 17. All these indicate that these witnesses are unreliable and untrustworthy witnesses. There is no proof that Nanda had a sword with him. To the contrary, according to the report, the accused persons were armed with lathies only. They were not armed with any sharp weapon. But a sword was with Chauthmal himself. So, their was no question of inflicting any sword-blow to Fatehlal. Fatehlal gave sword-blows to Nanda and Prahlad. Fatehlal was the deceased person. It means that Fatehlal first gave sword blows to Nanda and Prahlad. Looking to the injuries of Nanda and Prahlad, as has been proved by the doctors, their injuries were of very serious nature. So, Fatehlal gave sword blows to Nanda and Prahlad, and then the accused persons in the right of private defence to their persons and property inflicted blows to Fatehlal and the others. 18. The learned Sessions Judge has not accepted the plea of right of private defence to person and property. While rejecting this plea, he found the accused-appellants guilty and convicted them as mentioned above. 19. 18. The learned Sessions Judge has not accepted the plea of right of private defence to person and property. While rejecting this plea, he found the accused-appellants guilty and convicted them as mentioned above. 19. The learned counsel for the accused for the accused-appellants has argued that this was the important plea of the accused persons, which they wanted to argue. So, the important aspect to be considered is as to whether the accused persons had a right of defence to their persons and property, and if so, whether they had exceeded this fight or not. 20. Chauthmal Who is the Son of the deceased, has stated that the land in Question was in their possession, and that this land was given to his father by Bherun Lakhera, and there is a writing to this effect. This statement is not correct, because no such writing has been produced on the record of the case. Apart from this, there are contradictions in the statements. On one side, the evidence is that this writing is in their and it is not alleged that the said has been stolen away by the accused persons or has been destroyed by them; and no such Bhai has been produced on the record, and on the ether, the evidence is that at the time of the alleged incident, the writing which was in favour of the deceased regarding this land, was in his possession, and was torn away by the accused persons. So, the entire aspect is incorrect that Bherun Lakhera had given the land in dispute to Fatehlal, or that, there is anything in writing to this effect. 21. Bherulal Lakhera was examined as DW 1, and he has stated that the land in dispute was being cultivated by Nanda. He has further stated that he had sold this land to Kanhaiyalal and Nandas son, and that, the registry of the sale-deed was executed by him, which is Ex. D. 18. Thus, from the record it is clear that the land was sold by Bheru Lakhera to Kanhaiyalal and Nandas son, and since then, it was in their possession. It is not proved that the deceased had any thing in his favour about the ownership of this land, nor any proof has been produced on the record regarding possession over this land by the deceased. It is not proved that the deceased had any thing in his favour about the ownership of this land, nor any proof has been produced on the record regarding possession over this land by the deceased. The Patwari also has said that at the time of the incident, this land was in possession of accused Kanhaiya and Nanda son and they were actually cultivating it. It is clear that the deceased along with some other persons had gone to the field and started ploughing it. He had no right to plough the land which was never in his possession, nor was it in his khatedari. So, he was a trespasser thereon. No doubt, if a trespasser has a long possession over a land, then, the true owner cannot throw him out by force. In Ram Rattan & Ors. v. State of Uttar Pradesh ( AIR 1977 SC 619 ) , it has been observed as under:- "A true owner has every right to dispossess or throw out a trespasser while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. While it may not be possible to lay down a rule of universal application as to when the possession of trespasser becomes complete and accomplished, yet, one of the tests is to find out who had grown the crop on the land in dispute." Thus, from the principle laid down in Ram Rattans case (supra) it is correct that a true owner has every right to dispossess or throw out a trespasser who had pet accomplished his possession. This right is, no doubt, deniable to the true owner, if the trespasser has been successful in accomplishing his possession to the knowledgeof the true owner. In the present case it has not been established that the deceased his party-men had any possession over the land in dispute. This right is, no doubt, deniable to the true owner, if the trespasser has been successful in accomplishing his possession to the knowledgeof the true owner. In the present case it has not been established that the deceased his party-men had any possession over the land in dispute. So, Fatenlal was a trespasser over the said land who had not proved his possession, and if he was thrown out by the true owner, it cannot be said that the true owner had no right to throw him out. The land in dispute in this case was sold to Kanhaiyalal accused and the son of Nanda, and they were in its possession. The registered document was in their favour. So, they were its owners, and the deceased Fatehlal and his party-men had no right over it. So, the accused persons had all right to throw the complainant-party out of that and. in Pehlwan v. The State of Rajasthan (1977 RCC(2) 173) also the question of right of private defence was argued. In that case also, the complainant party was ploughing the land and half of it had been ploughed, which was in possession of the accused. While dealing with the question in that case as to whether the accused could claim right of private defence, it was observed by the division of this Court as under:- "We do not think that it a correct statement of law, considering the finding of the trial court that the possession of the land was with the appellant for the last 5 or 6 years. The law does not require that if on the morning of the occurrence a criminal trespass has been committed ; by the complainant the accused should be instead of trying to exercise their right of private defence of property to them by S. 97 proceed to enter into a time consuming litigation either civil or criminal. If the right of private defence of property is to be so restricted it would be impossible to exercise the same with regard to the agricultural land which obviously cannot be kept within lock and key all the time." 22. If the right of private defence of property is to be so restricted it would be impossible to exercise the same with regard to the agricultural land which obviously cannot be kept within lock and key all the time." 22. In the present case also, the accused persons were in possession of the land, and the complainant-party had no right whatsoever over that land, and if they had gone to plough the land forcibly, then, certainly, the accused persons had their right to safeguard their property. It was not for them to go to criminal or civil court for help. The complainant party having no possession over the land in dispute had forcibly trespassed into it and tried to plough it. So, in that case, certainly, the accused persons had the right to safeguard their property. 23. In Pooran Singh and others v. The State of Punjab ( AIR 1975 SC 1674 ) their Lordships of the Supreme Court while dealing with the question regarding right of private defence of person and property and the limitations in the exercise of that right, observed as under:- "The right of private defence of person or property is to be exercised : under the following limitations:- (i) That if there is sufficient time for recourse to the public authorities the right is not available:- (ii) That more harm than necessary should not be caused. (iii) That there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned." Keeping in view, the principles laid down in the above referred to cases, we find that the accused persons were the true owners of the land in question, and they being in its possession, had certainly the right of private defence of their property. Apart from this, it is on the record that deceased Fatehlal after snatching the sword, inflicted sword injuries to Nanda, which hit him on his hand, and then, he gave a second sword blow on the leg of Prahlad. The doctor has proved the injuries of Nanda and Prahlad. Injury-report of Nanda, son of Kalu, is Ex. D. 10. Injury no. 1 was on the right shoulder which had cut the bone of the shoulder. This was described as a grievous injury. Apart from this, there were two other injuries also on his person. The doctor has proved the injuries of Nanda and Prahlad. Injury-report of Nanda, son of Kalu, is Ex. D. 10. Injury no. 1 was on the right shoulder which had cut the bone of the shoulder. This was described as a grievous injury. Apart from this, there were two other injuries also on his person. The injury-report of Prahlad, son of Nanda, is also on the record, and according to it, he had an injury on his left knee by some sharp weapon. On account oft that blow, his knee was cut. This was also a grievous injury, and the doctor has opined that on account of this injury, a person could become crippled. Thus, looking to the injuries of Nanda and Prahlad which were very serious in nature and inflicted by Fatehlal first, the accused persons subsequently gave beating and caused injuries to Fatehlal. So, Fatehlal was the agressor. Giving blows by a sharp weapon like sword, certainly gave the apprehension to the accused persons that those blow would cause their death. So, under this apprehension and to further save them selves, if the accused persons gave blows to Fatehlal which ultimately resulted in his death, it cannot be said that the accused persons had exceeded their right of private defence of their persons. In this incident, a number of persons of the complainant party as well as the accused party received injuries. Their injuries reports were proved by the doctor. Thus, in this fight, and particularly when Fatehlal (deceased) first started giving blows to Nanda and Prahlad, it cannot be said that while saving theme selves, the accused persons exceeded their right of private defence to their persons and property. So, we do not agree with the conclusion arrived by the learned Sessions Judge that accused persons had no right of private defence either to their persons or their property. From the circumstances of this case and in view of the evidence on the record, we are of the opinion that the accused persons certainly had the right of private defence of their persons and property, and they did not exceed this right, the present case. 24. As such, 110 offence has been committed by the accused persons, We do not agree with the conclusion of the learned Sessions Judge that the persons are guilty of the offences u/ss, 302/149 & 323, IPC. 25. 24. As such, 110 offence has been committed by the accused persons, We do not agree with the conclusion of the learned Sessions Judge that the persons are guilty of the offences u/ss, 302/149 & 323, IPC. 25. As a result of the above discussion, we are of the opinion that what ever action was taken by the accused persons in this case, was in the right of private defence of their persons and property, and they did not exceed their right. So they cannot be punished for the charges framed against them. The appeal is, therefore, accepted. The judgment of the learned Sessions Judge, Tonk, dated 28th April 83, is set aside. The convictions and the sentences passed by the learned Sessions Judge, against the accused-appellants under sections 302/149, 147 &. 323, IPC, are also set aside. Accused-appellants Nanda, Ramnath, Ramkaran, Banna and Surajmal are in jail. They be released forthwith if not required in any other case. The other accused persons, namely, Ramlal, Mangilal, Prahlad, Ramchandra, Ramniwas and Bhanwar Lal are already on bail. They need not surrender to their bail bonds which are hereby cancelled. Amount of fine, if already deposited by the accused persons, be refunded to them. *******