JUDGMENT 1. - Appellant Kashmir Singh is the son of the other appellant Latkan Singh and they have filed this joint appeal against the judgment of the Additional Sessions Judge Kishangarhbas (Alwar) dated December 18. 1987 by which the son was convicted 302, Indian Penal Code and sentenced to imprisonment of life with a fine of Rs. 500/-, and the father was convicted 324 and was sentenced to one year's rigorous imprisonment. 2. Stated in short, the prosecution case is (hat PW 1 Kala Singh is the son and PW 2 Smt Preet Kaur is the daughter of the deceased victim Badbava Singh. They and the appellants are the residents of village Jakhopur Police Station Tapukda, District Alwar. The deceased Badhava Singh purchased Arazi Khasra No. 695 comprising an area of 17 Biswas situated in Moza Jokhopur on 20-7-1985 from one Badhava Singh who was the holder of the power of attorney of Bariyan Singh. Bariyan Singh was the. Khatedar of the said Arazi. Possession was taken over by Badhava Singh in pursuance to the sale-deed. At about 10.00 or I0.30 a m. on 19-8-1984 PW 1 Kalasingh was ploughing the said Khasra No. 695 with the help of some hired labourers. The two appellants accompanied with Gurdayal Singh, Ranjit Singh Kashmir Singh s/o Laxman Singh, Tataiya and Aasin (7 in all) came there where Kala Singh was ploughing the field. Accused Latkan Singh had a gun and a sword, accused Kashmir Singh s/o Laxman Singh had a pistol, appellant Kashmir Singh had a Ballam. Ranjit Singh had a Farsi Gurdayal Singh had a Ballam and Assin had a Farsa. They asked Kala Singh and his companion Ibra got and left the field and went to a lube well nearby After some time the deceased Badhava Singh came from the village side When he was in the field of one Chothu situate nearby Arazi Khasra No 695, he cried aloud and asked the appellants and their companions as to why they had turned away his men. The culprits in reply also cried aloud and shouted 'catch hold of the old man and finish him.' The culprits thereafier encircled Badhava Singh in the field of Chothu. Appellant Kashmir Singh struck a blow of his Ballam on the left chest of Badhava singh vhich pieroed the chest through and through. The culprits in reply also cried aloud and shouted 'catch hold of the old man and finish him.' The culprits thereafier encircled Badhava Singh in the field of Chothu. Appellant Kashmir Singh struck a blow of his Ballam on the left chest of Badhava singh vhich pieroed the chest through and through. Appellant Latkan Singh struck a below of his sword on the right wrist of Badhava Singh. Kala Singh. Gulzar Singh, Latkan Singh and Ors. on hearing the noise came running there and tried to rescue Badhva Singh. They too were not spared and were landed blows. Accused Kashmir Singh s/o Laxman Singh in order to frighten and scare away Kala Singh and other, fired a shot from his pistol in the air. The culprits thereafter field away. Badhava Singh was taken to the Government Dispensary, Tapukada. He, how ever, did not survive and passed away in the way. 3. Kala Singh PW1 went to the Police Station Tapukada and verbally lodged report Ex.P 1 of the incident at about 1 00 p.m. on the same day. The Police registered a case and proceeded with the investigation. The Station House Officer, Rameshwar Lal arrived on the spot, inspected the site and prepared the site plan He also prepared the inquest report of the victim's dead body. The Medico Legal Autopsy over the victim's dead body was conducted on the same day at about 4.30 p.m. by PW 13 Dr. S K. Garg the then Medical Officer Incharge, Government Dispensary, Tapukada. He noticed the following injuries on the dead body:External [A] Wound of sentence: 5 cm x 4 cm on ante chest wall. Incised wound 7 cm superio laterally to left nipple IInd intercostal space; [B] Would of exist: Incised wound--3.5 cm x 1 cm medial to scapula under ⅓ part left side; [C] Incised wound 6 cm x 3 cm x 0.7 cm on Right hand dorsal surface exposive tundans. InternalLeft atrium cut through ante chest wall lung underneath atrium cut, pos chest wall cut left side at wound of exist Whole left pleural cavity filled 'C' blood. 4. In the opinion of Dr. Garg, the cause of death was haemorrhage and shock caused by injury to heart and lumb. The post-mortem examination report issued by him is Ex.P 13. 5. The injuries of Kala Singh, Ram Singh, Latkan Singh and Gulzar Singh were also examined. 4. In the opinion of Dr. Garg, the cause of death was haemorrhage and shock caused by injury to heart and lumb. The post-mortem examination report issued by him is Ex.P 13. 5. The injuries of Kala Singh, Ram Singh, Latkan Singh and Gulzar Singh were also examined. Their injury reports ate Ex.P 6 Ex P 7 Ex Ps 11 and 12. The culprits were arrested and in consequence of the information furnished by them, blood stained weapons were recovered. On the completion of the investigation, the Police filed a charge-sheet against 7 persons-Kashmir Singh, Lakhan Singh, Gurdayal Singh, Ranjit Singh, Kashmir Singh s/o Laxman Singh, Tataiya and Assin in the Court of Munsif and Judicial Magistrate, Tizara who in his turn committed the case for trial to the court of Sessions. The Additional Sessions Judge, Kishangarhbas before whom the case came for trial framed charges under Sections 148, 447 302/149 and 307 Indian Penal Code against all of them to which they pleaded not guilty and faced the trial The defence taken by them is the Arazi Khasra No. 695 was purchased by appellant Latkan Singh from Banyan Singh Latkansingh was in possession of this Arazi since long and it was he who was in possession of it on the day of incident. The members of the complainant party including the deceased Badhava Singh came to this Arazi on the day of incident to make forcible and unlawful possession over it. They made an assault on them (the accused party). The report of (he incident was lodged by appellant Kashmir Singh against the prosecution witnesses Kala Singh and Ors.. The Police suppressed the real facts and invented a false case against them. In support of its case the prosecution examined 18 witnesses and filed some documents In defence, the accused examined three witnesses and also filed some documents including the injury reports. On the conclusion of trial the learned Addl. Sessions Judge recorded his findings as under: 1. It was a case of free fight; 2. Accused Kashmir Singh struck the fatal blow to the deceased Badhava Singh and thereby caused his death; 3. Accused Latkan Singh struck a blow of the sword on the right wrist of Badhava Singh; 4. There was no scope for applying Sections 34 or 149, IPC: 5. It was a case of free fight; 2. Accused Kashmir Singh struck the fatal blow to the deceased Badhava Singh and thereby caused his death; 3. Accused Latkan Singh struck a blow of the sword on the right wrist of Badhava Singh; 4. There was no scope for applying Sections 34 or 149, IPC: 5. The prosecution failed to prove that the other five culprits Gurdayal Singh, Ranjit Singh, Kashmir Singh s/o Laxman Singh, Tataiya and Aasin inflicted any injury to any member of the complainant party, and 6. No right of private defence of person or property was available to the appellants Kashmir Singh and Latkan Singh as it was a case of free fight. 6. Appellant Kashmir Singh and Latkan Singh were consequently convicted and sentenced as mentioned at the very outset The remaining five accused were acquitted. The two convicts have come up in appeal and challenge their conviction. 7. We have heard Mr. Biri Singh learned Counsel for the appellants and learned Public Prosecutor Mrs. Kamla Jain. We have also gone through the case file carefully. 8. In impeaching the conviction, the first contention raised by Mr. Birisingh is that the court below seriously erred in taking it to be a case of free fight. Arazi Khasra No. 695 has been held to be in the cultorivatory possession of accused Latkan Singh and Kashmir Singh. It has also been held that this field has been in possession of the aforesaid two accused since long at least for few years preceding the day of incident. The accused persons were, therefore, entitled to defend their possession over it. It was argued that this important aspect of the matter has been ignored or overlooked by the court below. The contention has considerable force. 9. The learned Additional Sessions Judge has held that the accused persons had been in cultivatory possession of Arazi Khasra No. 695 and they were in possession of it on the day of incident. This finding of the court below has not been disputed by the learned Public Prosecutor before us. We have also gone through the evidence and it can be safely discerned from the statement of PW 2 Mrs. Preet Kaur who is the daughter of the deceased victim that the finding of the trial court on the question of possession is perfectly justified. 10. We have also gone through the evidence and it can be safely discerned from the statement of PW 2 Mrs. Preet Kaur who is the daughter of the deceased victim that the finding of the trial court on the question of possession is perfectly justified. 10. Keeping the question of possession in view, the first point which arises for deliberation is which of the parties in the circumstances of the case can be the aggressor. The deceased and his son Kalasingh PW1 had purchased Khasra No. 695 only on 20-7-1985 and this incident took place on 19-8 1985. The possession of Khasra No. 695 was with the accused party. It appears that after purchasing Khasra No. 695, PW 1 Kala Singh and his father (the deceased victim) along with the other prosecution witnesses went on the said Khasra on the day of incident to take possession over it. The accused party naturally must have been resisted the action of the complainant party. It was in this process that violence was used and weapons were availed of. In the context of these circumstances, it can be safely inferred that complainant party was the aggressor who wanted to make unlawful possession over Khasra No. 695. The accused party was justified in defending their possession over Khasra No. 695. 11. There is yet another aspect of the matter. PW 1 Kala Singh, PW 6 Latkan Singh, PW 7 Gulzar Singh and one Rana Singh of the complainant party sustained injuries in this incident. The total number of injuries sustained by them including the deceased victim is 12. Accused Latkan Singh, Kashmir Singh, Ranjit Singh and one Suchcha Singh son of accused Latkan Singh also sustained injuries in this very incident. Their injuries reports are Ex.D-2, Ex. D-3, Ex. D-4 and Ex. D-5. The total number of their injuries is 15. The number of injuries shows that both the parties were armed with lethal weapons. The prosecution eye-witnesses have not explained these injuries sustained by the members of the accused party. The presence of injuries on the person of the accused is a circumstance is to be taken into consideration while scrutinising the plea of the private defence of person. 12. In view of the above situation, we are of the opinion that a right of private defence of person and property was available to the members of the accused party. 13. 12. In view of the above situation, we are of the opinion that a right of private defence of person and property was available to the members of the accused party. 13. We are unable to subscribe to the view of the learned Additional Sessions Judge that it was a case of free fight'. Free fight implies a situation where parties are determined to vindicate their right by the use of unlawful force. In Ahmed Sher v. Emperor AIR 1931 Lahore 513 a free fight was described as under: "When both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders." 14. The aforesaid description of free fight was approved by their Lordships of the Supreme Court in Gajanand v. State of UP [ AIR 1954 SC 695 ]. 15. It is true that in a case of free fight, no question of exercise by any party of the right of private defence can arise. If two parties engage themselves with the determined intention to fight with each other and they challenge each other, neither side is entitled to the right of private defence of person or property. In such a case, it is immaterial who is aggressor. 16. In In re Subba Reddi v. Emperor AIR 1945 Madras 492, it was observed: "Where there is a spontaneous fight between two parties, each individual is responsible for injuries he caused himself and for the probable consequences of the pursuit by his party of their common object. He cannot plead that because he might at any moment be struck by some member of the other party his own blows were given in self defence." 17. Where one party is the aggressor and the other party merely defending its right in the exercise of its right of private defence, it is not a case of free fight. The party acting in self-defence cannot be said to be determined to fight for vindicating its right by the use of unlawful force. 18. In the instant case, in our hand we have held above that a right of private defence was available to the members of the accused party. They acted in self-defence of person and property. The party acting in self-defence cannot be said to be determined to fight for vindicating its right by the use of unlawful force. 18. In the instant case, in our hand we have held above that a right of private defence was available to the members of the accused party. They acted in self-defence of person and property. The circumstances strongly point out that it was the complainant party which was the aggressor. It therefore, cannot be taken to be a case of 'free fight'. We are unable to maintain the finding of the court below that it is a case of free fight 19. The learned Additional Sessions Judge has recorded some what contradictory findings. He has held that it was a case of free fight. How ever, in the last but one para, he conceded a right of private defence of person in favour of the accused party but observed that the accused had exceeded that right. 20. It was next argued by the learned Counsel for the appellants that accused Latkan Singh has been convicted 304, Indian Penal Code. It cannot be said that he exceeded the right of private defence of person and property. The contention is not without force. It was accused Latkan Singh who was in cultivatory possession of Arazi Khasra No. 695. The force used by him against the deceased victim was within reasonable limits. He is, therefore, entitled to acquittal. 21. In respect of accused Kashmir Singh, it was argued that he struck only one blow to the deceased victim which of course proved fatal. Accused Kashmir Singh also sustained injuries. He is, therefore, entitled to complete protection 96 of the Penal Code. It was on the other hand argued by the learned Public Prosecutor that though only one injury was caused to the deceased victim by accused Kashmir Singh, it was with such a violent force that it pierced through and through. His case, therefore, does not come up within Exception 2 of Section 300, Indian Penal Code. 22. We have taken the respective submission into consideration We have held that a right of private defence of person and property was available to the appellants. The clinching issue before us is whether this right of private defence was properly exercised within the prescribed parameters by the appellant Kashmir Singh. There are two aspects of the right of private defence. We have taken the respective submission into consideration We have held that a right of private defence of person and property was available to the appellants. The clinching issue before us is whether this right of private defence was properly exercised within the prescribed parameters by the appellant Kashmir Singh. There are two aspects of the right of private defence. The first is that it gives a complete defence under Section 96, Indian Penal Code and the other is that in case it has been exceeded, it gives a qualified protection to reduce the offence under the 2nd Exception of Section 300, Indian Penal Code. 23. One of the parameters mentioned in Section 99, Indian Penal Code, is that no harm than the situation demands should be inflicted. In the case in our hands, the complainant party committed criminal trespass to make unlawful possession over Khasra No. 448. But this criminal trespass is not of the description mentioned in Section 203, Indian Penal Code. Similarly, the circumstances do not point out that the accused had any reasonable apprehension of death or grievous hurt from the complainant party so as to attract the provisions of Section 100, Indian Penal Code. The harm short of death could only be, therefore, inflicted by the appellant Kashmir Singh. 24. It was strenously contended by the learned Public Prosecutor that the blow was inflicted on the chest of the deceased victim by appellant Kashmir Singh with such force that it pierced the chest through and through. He thus acted in a cruel manner. Exception 2 of Section 300, Indian Penal Code should not be, therefore, extended to the appellant. We are unable to subscribe the view propounded before us. 25. Accused Kashmirsingh inflicted only blow, which of course was on chest and it pierced it through and through. The accused cannot be expected at the crucial moment when he is assaulted and attempts are made to make unlawful possession over his immovable property that he would weigh the force of his blows in golden scales. It is too much to expect that the accused should exercise the exact amount of force necessary for self-defence. In these circumstances, the qualified right of self defence cannot be denied to appellant Kashmir Singh simply because the injury inflicted by him pierced the victim's chest through and through. It is too much to expect that the accused should exercise the exact amount of force necessary for self-defence. In these circumstances, the qualified right of self defence cannot be denied to appellant Kashmir Singh simply because the injury inflicted by him pierced the victim's chest through and through. In our opinion, his case is covered by Exception-2 of Section 300 and the offence made out is punishable under the First Part of Section 304, Indian Penal Code. 26. In the result: 1. We allow the appeal of accused Latkan Singh. His conviction and sentence under Section 324, Indian Penal Code are set aside and he is acquitted of the aforesaid offences He is already on bail and need not surrender. His bail bonds shall stand discharged, 2. The appeal of accused Kashmir Singh is partly allowed His conviction and sentence under Section 304 Indian Penal Code and is sentenced to seven year's rigorous imprisonment. He is already in jail and will serve in the sentence. 27. The appeal is accordingly disposed of.Order Accordingly. *******