JUDGMENT 1. - Both these appeals arise out of the same order as such they are disposed of by this common order. 2. Accused-appellants Hanuwant Singh and Deraj have filed the present appeal against their conviction and sentence under Section 302 read with Section 34 Indian Penal Code. The other two accused namely, Jalamsingh and Amra were acquitted by the learned Sessions Judge, Jalore vide his order dated 19-3-1981 and against that the State has preferred an appeal against their acquitted. Both these appeals were heard together and they are disposed of by this common order. 3. The facts giving rise to this case are that a First Information Report was filed by PW 4 Nenuram on 28-8-1980 at police-station Sayala. It was stated therein that his brother Nandram was taking his cattle to Jaisalmer as there was famine that year He had come to his house on the previous evening and stayed over night with him. On next morning i.e. 28 8-1980 when he went to look up his cattle he found that they were not there, thereupon Nandram went in search of his cattle. When Nandram did not turn up upto 10 O'clock, he along with Likhma went in search of Nandram. When they reached the field of Deraj there they found that accused Deraj, Amra, Hanwantsingh and Jalamsingh were belabouring Nandram with lathis. Hanwantsingh dealt with a lathi blow on the head of the deceased Nandram as a result of which he fell down. Thereafter, the remaining three accused persons hit the deceased with lathis on various parts of his body. He tried to rescue him. They requested them to spare him Thereafter the accused persons went away. Deceased Nandram because unconscious and he along with Likhma brought him below the shadow of Khejari tree where he breathed his last. Nenuram left the dead body of the deceased and Likhma there and filed the First Information Report at police station Sayala. He tried to rescue him. They requested them to spare him Thereafter the accused persons went away. Deceased Nandram because unconscious and he along with Likhma brought him below the shadow of Khejari tree where he breathed his last. Nenuram left the dead body of the deceased and Likhma there and filed the First Information Report at police station Sayala. The police look up the investigation reached at the scene of occurrence and prepared the site inspection memo and seized the dead body of the deceased After close of the investigation, the prosecution filed a challan against all the tour accused persons, namely, Hanwantsingh, Jalamsingh, Deraj and Amra and examined 6 witnesses and produced a large number of documents The plea of the accused Deraj was that deceased Nandram wanted to fake some liberty with his sister, therefore they went there and in that deceased Nandram has beaten his sister and him also He said to have received a blow on his head and on hand with Dhana. He also attacked deceased Nandram with lathi in order to save himself and his sister. The learned Sessions Judge, after due trial came to the conclusion that the case so far as accused Hanuwant Singh and Deraj is concerned the same is proved and found them guilty under Section 302 read with Section 34 Indian Penal Code. However, the learned Sessions Judge acquitted the accused Amra and, Jalamsingh on the ground that the presence of these accused persons is not found proved at the scene as according to the evidence at the relevant time accused Jalamsingh was at Jaisalmer and so far as accused Amra is concerned he has no relation what so ever with the accused Therefore, he has been falsely implicated. Thus, he acquitted both these accused persons. 4. We have heard Mr. Doongarsingh and the learned Public Prosecutor and have also gone through the record. 5. According to the prosecution version it appears that deceased has taken out his cattle herd for going to Jaisalmer. It appears that the cattle herd was strayed in the field of Deraj and the incident took place in the field of the accused Deraj. Doongarsingh and the learned Public Prosecutor and have also gone through the record. 5. According to the prosecution version it appears that deceased has taken out his cattle herd for going to Jaisalmer. It appears that the cattle herd was strayed in the field of Deraj and the incident took place in the field of the accused Deraj. So far as the testimony of PW 4 Nenuram and PW 5 Likhma is concerned the same cannot be disputed as Nenuram and Likhma have gone out in search of Nenuram when he did not turn up When they reached at the scene of occurrence they found that the accused appellants were belabouring the deceased. Thus, the presence of these two witnesses at the scene of occurrence cannot be doubted. But the fact cannot be lost sight of that the cattle of deceased Nandram strayed in the filed of accused Deraj and the struggle took place there. Therefore, the accused appellants had a right of private defence to their property as well as to their person to the extent it is necessary. Mr. Doongar Singh, learned counsel for the accused appellants has also invited our attention to the fact that a counter First Information Report was also filed by the accused But the prosecution gave a final report and notice under Section 182 Indian Penal Code was issued. Ultimately a revision petition was filed and then that notice was quashed and the matter was sent back to the learned Magistrate. But meanwhile time had expired, therefore, the Magistrate refused to take any cognizance. Against that accused preferred a revision petition before this Court which is said to be pending. Be as it may, we are not concerned with this part of the story. The copy of that counter First Information Report was not filed before the trial court, however that was sought to be Dressed into service at this stage. But the fact that emerged from these circumstances is that the cattle herds entered into the field of the accused and it was well within his right to resist the damage to his property by the cattle herds It is also come in the evidence that some Bajra crop was standing in the field of the accused. But the fact that emerged from these circumstances is that the cattle herds entered into the field of the accused and it was well within his right to resist the damage to his property by the cattle herds It is also come in the evidence that some Bajra crop was standing in the field of the accused. Thus, there are no two opinions in the matter that the accused had a right of private defence to their property and hi was within his rights to cause harm to the extent of saving their property. Even if we do not take any notice of the so called counter FIR filed by the accused but still the fact remains that lbs., accused had right of private defence of his property to the extent of desisting the cattle head from damaging his property. We are also conscious of the fact that the plea taken by the accused is too far fetched and highly improbable. But he certainly had a right of private defence of his property and when he was well within his right to cause harm to save his property. But in the present case, he has exceeded the same and he had caused the death of the deceased. This obviously he could not have done. However, looking to the fact that the accused had right of private defence of his property and he has exceeded in that right, therefore he cannot be held guilty under Section 302 read with Section 34 Indian Penal Code. However, they are guilty of causing homicide not amounting to murder and thereby they are guilty under Section 304, Part-II, Indian Penal Code. Thus, the conviction of the accused appellants is converted from Section 34 Indian Penal Code and both the accused persons Hanwant Singh and Deraj are sentenced to 7 years' rigorous imprisonment with a fine of Rs. 1,000/- each and in default of payment of fine to further undergo one year's rigorous imprisonment Rs. 2,000/- out of the amount of fine if so realised shall be paid to the wife or dependents of the deceased. 6. 1,000/- each and in default of payment of fine to further undergo one year's rigorous imprisonment Rs. 2,000/- out of the amount of fine if so realised shall be paid to the wife or dependents of the deceased. 6. So far as acquittal of the accused respondents Jalamsingh and Amra is concerned, we have found that they have been rightly given benefit of doubt by the learned Sessions Judge as Jalamsingh's plea of alibi that he was at Jaisalmer appears to be well founded and likewise there is no connection of Amra whatsoever regarding his involvement in the present case. Thus, the learned Sessions Judge has rightly acquitted both these accused persons by giving them benefit of doubt. As such there is no merit in this State appeal and the same is dismissed. 7. In the result, the appeal of accused Hanwantsingh and Deraj is allowed in part as indicated above and the State appeal is dismissed.Appeal partly allowed. *******