JUDGMENT 1. - This is a bail application under Section 439 Cr.PC, in which the accused petitioner along with two others was, in the first instance, charged to have committed offence under section 307 IPC, which was subsequently converted to sections 302/447/34, IPC on death of deceased Ram Gopal. 2. An FIR was lodged by one Chitar Lal at 4.30 a.m. regarding the incident which took place between 11 p.m. and 12.00 on 12-7-1986. It is mentioned in the FIR that Chitar Lal and 4 others went at night with a tractor to plough the field, was mortgaged with the accused persons and was in their possession. When the accused persons came to know about this, accused Mathuralal aloge with his two sons including the petitioner went to the field to stop the complainant and 4 others from ploughing the field with a hired tractor. There was exchange of hot words between them and it is alleged that Radhey Shyam had Kuttiya in his hand and other two persons had Lathies. In the scuffle, the accused petitioner wanted to hit Chitarlal with Kuttiya, but Master Ram Gopal, deceased came suddenly in between and Has hit on his head who subsequently died. 3. It has been pointed out by the learned counsel for the petitioner Shri B.L. Mandhana that Ratan Lal & Mathuralal already been released on bail by this court vide its order dated 23-9-1986. Since the land was mortgaged with the accused persons, the complainant had no right to go stealthily at night with the tractor to cultivate the land which he had not redeemed from the accused persons. They thus evidently trespassed in the land of the accused persons. When the accused persons came to know about it, it was natural for them to go and stop the complainant and his party to desist from cultivating the field, which was legally in their possession. The accused persons did not collect any person and only father and two sons went for this purpose. it is also pointed out that even though there is allegation that the accused petitioner hit the deceased on his head with Kuttiya, but the medical report shows that there is injury, which has been caused by blunt object, which shows that there is no injury caused by Kuttiya, which is a sharp edged weapon. it is also pointed out that even though there is allegation that the accused petitioner hit the deceased on his head with Kuttiya, but the medical report shows that there is injury, which has been caused by blunt object, which shows that there is no injury caused by Kuttiya, which is a sharp edged weapon. It is also contended that the petitioner had no intention to cause any murder of the deceased and in fact was within his right to stop intruders from trespassing in his field, which was done under the cover of darkness at night. There was exchange of hot words between the parties and the only purpose as to see that criminal trespassers go away from the field and do not take possession of the same. It has also been urged that the accused persons were within their right of private defence of property, which they exercised when they found that the complainant and 4 others have intentionally come at night time along with a tractor to take forcible possession of the land, which was in possession of the accused persons. 4. Learned Public Prosecutor, Shri O.P. Sharma appearing for the Slate, has on other hand urged that even though the injury on the head of the deceased has been caused with blunt object still since the accused petitioner is directly responsible for causing this injury on account of which death of the deceased took place he does not deserve to be released on bail. He has pointed out that under the provisions, Section 103 IPC, the right of private defence extends under the restrictions mentioned in Section 99 IPC and as per 4th condition laid down in Section 103 IPC, the petitioner could have exercised the right of private defence only when he had reasonable apprehension that the death or grevious hurt will be the consequence if such right of private defence is not exercised. 5. I have heard learned counsel for both the parties and have also perused the record. In Section 104 IPC it has been laid down that in the event of criminal trespass the right does not extend to the voluntarily causing death, but does extend subject to the restrictions mentioned in the section for voluntary causing wrong doer of any harm other than death. In Section 104 IPC it has been laid down that in the event of criminal trespass the right does not extend to the voluntarily causing death, but does extend subject to the restrictions mentioned in the section for voluntary causing wrong doer of any harm other than death. In this case the accused petitioner even as per the FIR did not seem to intend to cause death of deceased Ram Gopal, but had gone along with his father and brother to see that the possession of the land is not forcibly taken away from them by the complainant and his party. There was exchange of hot words. There seems to be no intention to cause murder of deceased Ram Gopal, who suddenly came in between and was injured. My attention has been drawn to the case of Parichat and ors vs. State of M.P. AIR 1972 S.C. 535 . In this case it has been pointed out that common intention within the meaning of Section 34 implies pre-arranged plan. In this case, there does not appear any pre-arranged plan between the accused persons who came all of a sudden at night when they came to know that the complainant and his party have come stealthily at night to plough the land, which was mortgaged with and in possession of the accused. It has been further observed "it is true that if the threat to the persons or property, which accused was entitled to defend, was real and immediate he was not required to weigh in the golden scale the kind of instrument and the force which he used at the spur of the moment." 6. From the circumstances, it seems there was no premeditated plan and the quarrel took place suddenly on account of alleged trespass by the complainant and his party in the field which is said to be mortgaged with and in possession of the accused. My attention has also been drawn to the case of Mahd. Khan and ors vs. State of M.P. (AIR 1972 SCC (Cr.) 24) , it was held by the Apex Court that 'when enacting Sections 96 to 106 IPC excepting from its penal provisions, certain clauses of acts, done in good faith for the purpose of repelling unlawful aggression, the legislature clearly intended to arouse and encourage the manly spirit of self defence among the citizens when faced with grave danger. The law does not require a law abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by the Hon'ble Supreme Court, there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is designed to serve a special purpose and deserve to be fastened within prescribed limits." 7. Keeping in view all the facts and circumstances of the case, I am of the opinion that it will be just and proper to allow this bail application filed by the petitioner. 8. It is, therefore, directed that the petitioner Radhey Shyam be released on bail provided he furnishes a personal bond in the sum of Rs. 5,000/- with one surety in like amount to the satisfaction of the learned trial court with the direction to appear in that court on every date of hearing and whenever he is called upon to do so during trial in this case. 9. None of the observations made in the order will prejudice the case of either party, during trial.Bail Granted. *******