JUDGMENT 1. - Learned Sessions Judge, Jhunjhunu, under the judgment dated, October 12, 1978, convicted the accused appellant under section 307 Part-II, I.P.C. and tllf Reused to 31/2 years rigorous imprisonment and to pay a fine of Rs. 200/-. In default of payment of fine to further undergo 2 months rigorous imprisonment. 2. In short, the case of the prosecution is that on 12th November 1977, PW1, Girwar Singh had taken the camel belonging to the accused-appellant and after tying the camel near the shop of PW4, Ram Avtar. PW1, Girwar Singh was taking meals at the shop of PW3, Sugan Singh. Accused-appellant came there with an iron rod, which is meant for operating the jack of a truck. It is alleged that the accused appellant gave a blow with iron rod on the head of PW1, Girwar Singh and also caused other injuries. Girwar Singh was lying injured Somebody informed the police that a person with injuries on his head was lying unconscious near the liquor shop. A report No. 169 was lodged at police out-post Mukand Garh. The In-charge of the police Station deputed constables, namely, Sawai Singh and Bhusa Singh to go to the spot and make arrangements to send the injured to Hospital. Vijay Singh, Head Constable also reached outside the liquor shop. 'Parcha Bayanof the injured Girwar Sin^h was recorded and the injured was sent for medical examination. Dr Dinesh Singh, P W. 5, examined the injuries of the injured and found that there was a lacerated wound 11/4" x 1/2" x 1/2" on the left part scalp 3" away from the ear There was also contusion 6" x 3/4" on the middle part of the back The doctor also found a contusion 5" x 3/4" on the middle part of back of the injured Injury No was found to be grievous while rest of the injuries were simple in nature. All the three injuries appeared to have beep caused by some blunt not and all the injuries were fresh. The doctor advised for X-ray He has also stated that as per the X-ray report the injury No. 1 was grievous and was sufficient in the ordinary course of nature to cause death. 3. Accused was tried and he pleaded not guilty to the charges Prosecution examined as many as 8 witnesses. Accused was examined under section 313 Cr. The doctor advised for X-ray He has also stated that as per the X-ray report the injury No. 1 was grievous and was sufficient in the ordinary course of nature to cause death. 3. Accused was tried and he pleaded not guilty to the charges Prosecution examined as many as 8 witnesses. Accused was examined under section 313 Cr. P.C. and he came with the plea that his camel was stolen away and Rameshwar Jat, Bhanwar Ji Moola Dhabai and Ram Kumar Meena had gone in search of the camel. In cross-examination of the witnesses, the defence came out with the case that the camel was stolen away and its owner, the accused appellant had gone in search of the camel. 4. During the course of arguments, learned counsel for the accused- appellant has submitted that on the basis of the material on record a case of exercise of right of private defence of property is made out. It was also contend thar only one injury by blunt weapon, i e, iron rod, was given on the head of the injured and. in the circumstances that Girwar Singh had taken the camel of accused-appellant, the accused caused injury on the head, and it cannot be said that the injury was inflicted with such intention or in the circumstances that if the death would have been caused of Girwar Singh, the accused would have been guilty under section 302, IPC. There is sufficient material on record to show that the accused-appellant is the owner of the camel which was tied cut side the liquor shop of P.W. 4, Ram Avtar and the same was taken by Girwar Singh. There is no enmity between the accused and Girwar Singh. Accused gave a blow with an iron rod on the head of Girwar Singh. Even Girwar Singh, P.W. 1. admits in his statement that the camel was the property of the accused-appellant. The statement that Sita Ram Daroga was giving water to the camel and Girwar Singh asked him to give camel to go to the Station and Sita Ram gave him camel, cannot be relied upon because Sita Ram has not been examined. One Sita Ram has been examined by the prosecution as P.W. 6 but he is not Daroga by caste and is some other person. One Sita Ram has been examined by the prosecution as P.W. 6 but he is not Daroga by caste and is some other person. In the absence of the statement of Sita Daroga, merely, on the statement of Girwar Singh, firstly, it cannot be said that Sita Ram gave camel to the injured Girwar Singh. Secondly, even if it be assumed that Sita Ram gave camel of accused to Girwar Singh, P.W. l Girwar Singh has clearly stated that there was no enmity between him and the accused-appellant and, under the circumstances it can be said that the defence theory is that the camel has been stolen away, may be correct. The question is that even assuming that Girwar Singh had taken the came) belonging to the accused and thereby committed an offence punishable of theft, whether the injuries were inflicted by the accused in exercise of the right of private defence of his property. Under Section 103 I.P.C. the right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of theft also. Under Section 97, I.P.C. every person has a right, subject to the restrictions contained in Section 99, to defend the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft. Under Section 105, I P.C.. the right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered. The case of the prosecution has been supported by the statement of P.W. 3, Sugan Singh, the owner of the hotel. Giwar Singh was taking meals inside the hotel and the camel was tied near the shop of P.W. 4, Ram Avtar. Therefore, the accused could have taken his camel which was tied near the shop of Ram Avtar. The case of the prosecution has been supported by the statement of P.W. 3, Sugan Singh, the owner of the hotel. Giwar Singh was taking meals inside the hotel and the camel was tied near the shop of P.W. 4, Ram Avtar. Therefore, the accused could have taken his camel which was tied near the shop of Ram Avtar. It can, therefore, not be said that because the property had not been recovered at the time when the offence was committed, the right of private defence against property against theft continued, even if it may be taken for the purposes of this appeal that Girwar Singh had committed an offence of theft of the camel. 5. Now, the question is as to whether in the circumstances of the case can it be said that the accused intended to cause death of Giwar Singh or intended to cause such bodily injury which was likely to cause death The accused is said to have inflicted a blow on the head of the injured which is a vital part of the body and the injury was found to be grievous Therefore, in the facts and circumstances of the case, all that can be said is that the accused caused grievous hurt voluntarily on the head of the injured Girwar Singh by a blunt weapon. Accused, therefore, can be convicted under section 325 I.P.C., which is an offence that can be dealt with under section 4 of the Probation of Offenders Act, 1958 and the mandate of the legislature contained under section 361 Cr. P.C. is that the case should be dealt with under the provisions of the Probation Act and, more so, in the circumstances of the case that the accused has already undergone the sentence of 3 days. The sentence already undergone and a fine of Rs. 200/ shall meet the ends of justice. 6. Consequently, I partly allow the appeal and the conviction of the accused-appellant is altered from Section 307, I.P.C. to Section 325, I.P.C. and he is sentenced to the sentence already undergone and to pay a fine of Rs. 200/-. In default of payment of fine, to further undergo 15 days simple imprisonment. 200/ shall meet the ends of justice. 6. Consequently, I partly allow the appeal and the conviction of the accused-appellant is altered from Section 307, I.P.C. to Section 325, I.P.C. and he is sentenced to the sentence already undergone and to pay a fine of Rs. 200/-. In default of payment of fine, to further undergo 15 days simple imprisonment. Accused should deposit the amount of fine in the trial court if not deposited so far, within a period of two months from today; failing which, the trial court shall take necessary steps to arrest the accused for undergoing the sentence awarded in default of payment of fine.Appeal Partly allowed. *******