R.S. VERMA, J.—The prosecution story, as held established by the learned trial Judge is as follows :— 2. Lumba Ram (deceased) and his brother Kirta Ram PW 4 are residents of village Padasala. They have two fields at Padasala, one known as Dhaniwala and the other on the outskirts of the village and at a distance of about 2 kms. from the field known as Dhaniwala. On 11-9-85, at about 4 p.m., appellant Naina Ram put his 8.10 cows in the Dhaniwala field of Kirta Ram and Lumba Ram. At that time, there was a crop of Bajari and moth in the aforesaid field. The cows of Naina Ram grazed the standing crop and caused quite some damage to the same. Upon this, Kirtaram and Lumba Ram, who happened to be there, took the cows out of the field and proceeded to take them to the village cattle pound. On the way to the cattle pound, lay their second field on the outskirts of the village. When these two persons reached this second field with the cattle of Naina Ram, they were all of a sudden accosted by the accused appellants Naina Ram, Lala Ram, Padma Ram, Kumbha Ram, Moola Ram, Gumana Ram, Mst. Roopi and Mst. Mani. They were variously armed with Kassis and lathis. At that time, Chena Ram PW 1 (son of the deceased Lumba Ram and PW 3 Pami (daughter of said Lumba) were also in the said field and were busy doing nidan operations (weeding). The accused persons all of a sudden opened assault upon Kirta Ram and Lumba Ram and when Chenaram and Pami came near, they Were also assaulted. After the initial assault, Lumba Ram fell down on the ground and thereafter all the accused appellants gave indiscriminate beating to him on his back with the result that he sustained numerous injuries. Thereafter Lumbaram was taken away to some distance by Naina Ram, Padma Rami Moola Ram, Lala Ram and Kumbha Ram. It is alleged that besides Lumba Ram, PW 1, Chena Ram and PW 4 Kirta Ram also received injuries in this assault. Leaving Kirta Ram and Lumba Ram at the spot, Chena Ram and Pami went to Sarpanch Mohan Ram and informed him of this occurrence. It is alleged that besides Lumba Ram, PW 1, Chena Ram and PW 4 Kirta Ram also received injuries in this assault. Leaving Kirta Ram and Lumba Ram at the spot, Chena Ram and Pami went to Sarpanch Mohan Ram and informed him of this occurrence. Mohan Ram along with one Koja Ram went to the scene of occurrence and Kirta Ram, Chena Ram and Smt. Pami were taken to police station Osian in a tractor. Lumba Ram was not found at that spot. Kirta Ram lodged a report of this incident at police station, Osian on 11-9-85.at 11.30 p.m. Upon this report, the S.H.O. made some enquiries from Kirta Ram, Chenaram and Smt. Pami and registered a case under section 307, 341, 323, 447, 147, 148, 149 IPC as also u/s 24 Cattle Trespass Act. Kirta Ram eventually became unconscious and he was sent to the hospital. Likewise, Chena Ram and Smt. Pami were also sent that very night to the hospital where they were examined by Dr. Vijay Kumar Verma PW 22. He found following injuries on the person of Kirta Ram :—- 1. Bruise with diffused swelling with fracture 10 cm x 4 1/2 cm on posterior aspect of left forearm extended from lower of left fore arm to left wrist joint. 2. Bruise diffused swelling ? Fracture 11 cm x 5 cm on posterior aspect of right forearm extending from lower 1/2 of the rt. forearm to rt. wrist joint. 3. Bruise 11 cm x 6 1/2 cm on left shoulder. 4. Incised wound 3 cm x 2 cm x 3/4 cm semi lunar on right knee. 5. Incised wound with diffused swelling 6 cm x 1 1/2 cm x 3 cm obliquely downward on right side of the skulp over right paristal bone situated obliquely 13 cm above from right ear. 3. He prepared report Ex. P 26 in this regard. He, further, examined Smt. Pami and found that she was complaining of pain in the back, but there was no apparent injury on her person. A report Ex. P 28 was prepared in this regard. He found following injuries on the person of Chena Ram :— 1. Bruises with massive swelling 10 x 5 1/2 cm. on left eye conjuc-tive of left lower eye lid a deeply congested ball and vision normal. 2. Bruise with swelling 5 cm posterior aspect of middle forearm. 3. A report Ex. P 28 was prepared in this regard. He found following injuries on the person of Chena Ram :— 1. Bruises with massive swelling 10 x 5 1/2 cm. on left eye conjuc-tive of left lower eye lid a deeply congested ball and vision normal. 2. Bruise with swelling 5 cm posterior aspect of middle forearm. 3. Bruise with swelling 10 cm. on posterior aspect of middle of left eye." 4. He prepared Ex. P 29 in this regard. 5. It appears that Lumba Ram succumbed to his injuries at a place in the vicinity of the scene of occurrence and the Investigating Officer after complying with the formalities of site inspection etc., got his dead body examined by Dr. Vijay Kumar PW 22. Dr. Vijay Kumar examined the dead body of Lumba Ram on 12-5-85 and found following injuries on his person:— "1. Abrasion 1" long on anterior aspect of lower 1/2 of right arm. 2. Multiple abrasions 3" x 2 1/2" on right side of the chest 2" below of the right nipple. 3. Abrasion 1/2" x 1/4" on enterior aspect of lower 1/4 of left thigh. 4. Incised wound 1" x .1/8" x 1/2" on lower part of medial aspect of left knee. 5. Abrasion 1 1/2" x 1/2" on enterior aspect of middle of left leg. 6. Incised wound 1-1/2" x 1/2"x 1/2" bony deep semi lunar on enterior part of middle of scalp 3" above from left eye brow. 7. Incised wound 1/4 x1/2"x1/2" on left shoulder. 8. Multiple abrasion with bruises 8" x2-1/2" on lateral aspect of upper part of left thigh. 9. Multiple abrasion with bruises 5" x 2 1/2" on left hip. 10. Incised wound 1" x 1/2" x 1/2" bony deep on posterior part of left side of scalp 3 1/2" above and posterior to left arm. 11. Incised wound 1" x 1/2" x 1/2" on enterior lateral aspect of left wrist joint. 12. Multiple bruises with abrasions as shown in figure 15" x 18" on whole of the back." - 6. According to Dr. Vijay Kumar, injury No. 6 on the person of Lumba Ram was grievous. According to him, Lumba Ram had died because of injury No. 12, which consisted of multiple bruises and abrasions on an area of 16" x 18" on whole of the back. According to Dr. Vijay Kumar, injury No. 6 on the person of Lumba Ram was grievous. According to him, Lumba Ram had died because of injury No. 12, which consisted of multiple bruises and abrasions on an area of 16" x 18" on whole of the back. The injuries were ante-mortem in nature and injury No. 12 was sufficient in the ordinary course of nature to cause death. Dr. Verm a prepared a postmortem report Ex. P 25 in this regard. Learned trial Judge on the basis of evidence adduced before him, found that appellant Naina Ram committed an offence u/s 24 Cattle Traspass Act by unlawfully putting his cattle in the Dhaniwala field of the deceased and the cattle had done damage to the crop of the deceased. Hence, deceased and Kirta Ram had a right to take the cattle to the cattle pound. He found that the appellants with a view to rescue the cattle formed an unlawful assembly. He therefore, convicted all the appellants of offence u/s 148 I.P.C. He found that Moola Ram and Naina voluntarily caused simple injuries during the assault to Chena Ram and thus committed an offence u/s 323 IPC. He found that Smt, Roopi voluntarily caused simple hurt by a sharp weapon to Kirta Ram on his right knee and thus caused an offence u/s 324 IPC. He, likewise, found that Smt, Mani voluntarily caused grievous hurt to Kirta Ram by a lathi and thus committed offence u/s 325 IPC. He found that Gumana Ram caused grievous hurt to Kirta Ram on head in such circumstances that he should be held guilty of attempting to cause his murder. He further found that Padma Ram caused death of Lumba Ram in this assault by causing injury No, 12. He, found that. Roopi, Mani and Gummna Ram did not participate in the assault on deceased Lumba Ram but rest of the appellants participated in such assault in furtherance of the common object of the unlawful assembly viz, to cause death of Lumba Ram. Consequently, he convicted and sentenced the appellants as stated below. He did not accept the defence theory that Lumba Ram and Kirta Ram had stolen the cattle of Naina Ram and his companions had a right of private defence of property. I Sec. 24 Cattle Traspass Act Naina Ram Rs. Consequently, he convicted and sentenced the appellants as stated below. He did not accept the defence theory that Lumba Ram and Kirta Ram had stolen the cattle of Naina Ram and his companions had a right of private defence of property. I Sec. 24 Cattle Traspass Act Naina Ram Rs. 250/- fine default S. I. for one month II Sec. 148 IPC All the appellants One months S.I., Rs. 100/-fine default 15 days S. L III Sec. 323 IPC Moola Ram & Naina Probation on bonds of Rs. 1000/- IV Sec. 324 IPC Roopi Rs. 250/- fine, default one months S.I. V Sec. 324/149 I.P.C. All the rest VI Sec. 325 IPC Mani One years R. I. Rs. 250/- fine, default one months S. I. VII Sec. 325/149 IPC All the rest VIII Sec. 307 IPC Gumana Ram Four years R. I., Rs. 500/- fine, default two months S. I. IX Sec. 307/149 I.P.C. All the rest X Sec. 302 IPC Padma Life imprisonment, fine Rs. 1000/- default four months R. I. XI Sec. 302/149 IPC Naina Ram, Moola Ram, Kumbha Ram, Lala Ram 6. Learned counsel for the appellants in this case has not challenged the fact that an assault did take place upon Kirta Ram, Lumba Ram and Chena Ram but he submits that in this case, the prosecution has come out with a false plea that Naina Ram had put his cattle in Dhaniwala field of Kirt Ram and Lumba Ram and that cattle of Naina Ram had grazed the standing crops in the said field. He submits that the true fact was that Lumba Ram and Kirta Ram had forcibly stolen the cattle of Naina Ram from the possession of his son Shanwarlal DW 1 and were illegally taking them to cattle pound and when the accused persons learnt of this theft, they went to rescue their cattle upon which a fight ensued and hence accused persons were entitled to assault Kirta Ram, Lumba Ram and Chena Ram in exercise of right of private defence of their property. His submission is that in the aforesaid circumstances, learned trial court was not right in finding that the accused persons had formed any unlawful assembly from the beginning. His submission is that in the aforesaid circumstances, learned trial court was not right in finding that the accused persons had formed any unlawful assembly from the beginning. His submission is that the appellants might have exceeded their right of defence of property in causing injury No. 12 to Lumba Ram after he had fallen to the ground, hence, they could have been found guilty at best of offences under sections 148 304 Part II IPC but the learned trial court went wrong in convicting the appellant Naina Ram of offence under section 24 Cattle Trespass Act. He went wrong in convicting appellants Moola Ram and Naina Ram for offence under sec. 323 I.P.C. He further went wrong in convicting Smt. Roopi u/s 324 IPC. He further went wrong in convicting Smt. Mani of offence u/s 325 IPC. He likewise, completely went wrong in convicting Gumana Ram of an offence u/s 307 IPC and of convicting Padma Ram of an offence u/s 302 I.P.C. Likewise, the learned trial court fall in error in convicting the appellants other than Smt. Roopi of offence u/s 324 read with 149 IPC; appellants other than Smt. Mani of offence u/s 325 read with 149 IPC; appellants other than Gumana Ram for an offence u/s 307 read with 149 IPC and appellants other than Padma Ram,Roopi, Mani and Gumana Ram . of offence u/s 302 read with 149 I.P.C. 7. Learned P.P. tried to support conviction of Naina Ram for offence u/s 24 Cattle Trespass Act and further tried to support the judgment of the learned court below on other scores as well. 8. In view of the limited questions raised before us, we need not encumber this judgment by describing the various details of the investigative process or by other material not garmane to the decision of question before us. 9. After having heard both the sides including the learned counsel for the complainant, we find that - the first and foremost question, which ought to engage our attention is whether the accused Naina Ram had at all committed an offence u/s 24 Cattle Trespass Act and had committed trespass in the field of Dhaniwala of Kirta Ram and Lumba Ram and had caused damages to their crop or the cattle of Naina Ram had at all strayed into the field of Kirta Ram and Lumba Ram and had caused such damage. The lone and principal prosecution witness on this score is PW 4 Kirta Ram himself. In his examination-in-chief, he has deposed that on the fateful time he along with his brother Lumba Ram was doing nidan in the Dhaniwala field. There was a crop of bajara and moth in the field. Naina Ram put 8 10 cows in the field and the cows started grazing the crop, upon which, he along with Lumba Ram started with the cows for the cattle pound. In cross-examination, he gave a complete go bye to this story and stated that the cattle of Naina Ram were put in the field by some children. On further cross examination, he states that there was only one child with the cattle and that was son of Moola Ram. When further cross examined, he stated that he did not remonstrate the child because the child had put the cattle in the field from a distance of 1 km. To say the least, this statement is*absolutely unworthy of credence and does not inspire any confidence. It may be stated that Kirta Ram has vaguely stated that the cows had started grazing the crop. He has not stated the extent of the less to the crop at all. Here, it may be recalled that this witness was examined during the course of investigation u/s 164 Cr.P.C. That statement is Ex. 4. It is curious that in Ex. D 4. he did not given even a faint suggestion that cattle of Naina Ram. were put in his field or had strayed in to the field known as Dhaniwala. He states that he did not depose about this fact before the Magistrate in Ex. D 4 because the Magistrate had not enquired from him about the same. This explanation is not at all convincing and cannot be accepted. The only other person, who is said to have seen this part of the incident is Smt. Jiya and it was at her instance that the Investigating Officer is said to have inspected the field known as Dhaniwala. Smt. Jiya has not been examined to support the story put by Kirta Ram and the only inference is that had she been produced, she would not have supported the prosecution story. 10. Smt. Jiya has not been examined to support the story put by Kirta Ram and the only inference is that had she been produced, she would not have supported the prosecution story. 10. A perusal of the judgment of the learned court below goes to show that the learned Judge treated the site plan prepared by the Investigating, officer as a substantive piece of evidence in the case. To our mind, site plan allegedly prepared by the Investigating Officer in respect of alleged damages to the crop in Dhaniwala field was at best a piece of corroborative evidence and the same could not have been used as substantive evidence to support a theory of damage having been done to the crop by the cattle of Naina Ram. We may at this juncture take notice of the statement of the Investigating Officer himself. In his examination in cheif, he merely states that he had prepared Ex. P. 4 and P 5 with regard to this inspection. He does not state that he had himself seen any damage to the crop. He does not state to what extent, the catties had allegedly done damage to the crop. In absence of such a positive statement by Achlu Ram Ex. P. 4 and Ex. P. 5 could not have been used in the manner, the learned trial Judge has sought to do. Thus, we find that in this case, there is not an iota of evidence that cattle of Naina Ram had been put into Dhaniwala field of Kirta Ram and Lumba Ram or that they had strayed into the aforesaid field and caused damage to the standing crop at all. Here, we would like to observe that even the fact that Achlu Ram had inspected the Dhaniwala field is not free from doubt. He was confronted by entries in the case diary and he had admitted that he did not mention the time in the diary when the aforesaid Dhaniwala field was inspected by him. Here, we would like to observe that even the fact that Achlu Ram had inspected the Dhaniwala field is not free from doubt. He was confronted by entries in the case diary and he had admitted that he did not mention the time in the diary when the aforesaid Dhaniwala field was inspected by him. We pointedly asked learned P. P. to show us in the case diary an entry pertaining to this alleged site inspection and learned P. P. very frankly and fairly stated that the case diary does not find any mention of any site inspection of Dhaniwala field having been made by Achlu Ram at the instance of Smt. Jiya though the diary does speek of a site inspection of the second field namely, the field where Chena Ram and Smt. Pemi are said to be doing nidan and where the said assault is said to have taken place. Non-mention of such an important fact in the police diary goes to discredit the prosecution story that cattle of Naina Ram had at all trespassed in the field of Kirta Ram and Lumba Ram. Here, it may be stated that the accused Kumbha Ram, Padma Ram and Moola Ram stated in their statements recorded u/s. 313, Cr.P.C. that at the fateful time, all the three were busy doing nidan in the field of Moola Ram. At that time, Moola Rams son Bhanwar Lal came weeping to them and informed them that when he was grazing his cows in his field, at that time, Lumba Ram and Kirta Ram came there, slapped him and took away his cows. At this, all the three, namely, Kumbha Ram, Padma Ram and Moola Ram went to their field where cows were being grazed by Bhanwar Lal. They found one Budra Ram Bishnoi in the neighbouring field and he stated that Lumba Ram and Kirta Ram had taken away the cows inspite of protest from him. These accused persons stated that it was in these circumstances, that they had gone to get their cattle back, upon which the quarrel ensued and they were also given beating. Now this theory put forward by these "accused persons Kumbha Ram, Padma Ram and Moola Ram is supported by the positive statement of D.W. 1 Bhanwar Lal. He had stated on oath that at the fateful time, he was grazing the cattle in his own field. Now this theory put forward by these "accused persons Kumbha Ram, Padma Ram and Moola Ram is supported by the positive statement of D.W. 1 Bhanwar Lal. He had stated on oath that at the fateful time, he was grazing the cattle in his own field. Eight cows belonged to him meaning thereby to his father Moola Ram and four cows belonged to Padma Ram and Kumbha Ram, Lumba Ram and Kirta Ram came to his field and slapped him and took . away the cows. Budra Ram Bishnoi had protested yet they took away cows. Upon this, he went to his Dhani and informed Moolaram, Padma Ram and Kumbha Ram of this incident, upon which, these persons went in pursuit of Kirta Ram and Lumba Ram to get back the cows. It is significant that this witness had :-examination worth the name this goes to show that the prosecution was not in a position to challenge the testimony of this witness. Testimony of a defence witness is to be appreciated, appraised and evaluated in the same manner of the testimony of prosecution witnesses. In the present case, we find that there is absolutely nothing to demolish the posi-tive statement of Bhanwar Lal about he story set up by the accused-appellants and hence there was no reason to discard this evidence. 11. We therefore, find that in this case, conviction of Naina Ram for offence u/s 24 Cattle Traspass Act was absolutely improper and against the weight of evidence. Rather, it is established that Kirta Ram and Lumba Ram had stolen the cows of Moola Ram, Padma Ram and Kumbha Ram when they were being grazed by P. W. 1 Bhanwar Lal. 12. Once, we find that offence u/s 24 Cattle Trespass Act had not been committed by Naina Ram as alleged and really the cows had been stolen from the custody of Bhanwar Lal, then in our view, if the accused appellants went in pursuit of Kirta Ram and Lumba Ram to get back their cows, it cannot be said that at that time, they formed any unlawful assembly. The right of the accused persons to contain back the custody of their cows, which had been stolen by Kirta Ram. The right of the accused persons to contain back the custody of their cows, which had been stolen by Kirta Ram. Lumba Ram extended to causing of any harm other than death because the cows were still being taken away by Kirta Ram and Lumba Ram when the initial assault was opened. 13. In view of the conclusion to which we have arrived at, regarding the genesis of the incident and further the view we have taken regarding the right of exercise of private defence of property by the accused appellants, we need not be detained by the discussion regarding the injuries found on the persons of Kirta Ram, Chena Ram and Smt. Pami because the accused appellants could have very well caused such injuries in exercise of their right of private defence of property. Even as regards the injuries on the person of the deceased Lumba Ram, injuries other than injury no. 12 could have been caused to Lumba Ram by the accused appellants in exercise of right of private defence of property and therefore, who caused which particular injury need not detain us. 14. Now we shall have to consider under what circumstances, injury no. 12 which is said to be the fatal injury, was caused to Lumba Ram. It is trite law that an assembly originally lawful may got converted into an unlawful assembly at a later stage. In this case, when Lumba Ram had fallen to the ground and had been disabled, the right of private defence of property available to the appellants naturally came to an end. The right of private defence is not a right if retaliation; it is not a right of retribution; it is not a right to revenge themselves as against a fallen person. The evidence on record goes to show that after Lumba Ram had fallen down to the earth, he was assaulted indiscriminately on his back. To our mind, the assembly of the accused appellants, which was initially lawful got converted into an unlawful assembly when Lumba Ram fell down and thereafter he was assaulted by the accused appellants. Hence, conviction of accused appellants for offence u/s 148 IPC deserves to sustained though on a ground different from that on the basis of which the trial court held them guilty. 15. Hence, conviction of accused appellants for offence u/s 148 IPC deserves to sustained though on a ground different from that on the basis of which the trial court held them guilty. 15. In this context, learned counsel for the appellants urged that Smt. Roopi, Smt. Mani were said to be wielding lathis and since they have been acquitted in respect of injury no. 12 caused to Lumba Ram, all other accused appellants should also be acquitted. To our mind, wrong acquittal of some persons does not entitle remaining accused appellants to an acquittal on this ground. In the present case, it transpires from the evidence of Kirta Ram that after Lumba Ram had fallen to the ground, all the accused appellants gave indiscriminate beating to him on the back. Another contention of learned counsel of appellants was that the accused appellants other than those wielding lathis were armed with kassis and since no sharp weapon injury has been found on the back, the appellants should be acquitted on the score. We have carefully considered this contention. It is to be remembered that after Lumba Ram had fallen down, the alleged beating on the back was indiscriminate and the witnesses could not have observed which side of the kassis were being used and it appears that it was the blunt side of the kassis that had been used in making this assault, which resulted in injury no. 12. 16. We may here examine if the learned trial Judge was right in holding Padma Ram guilty of an offence u/s 302 IPC. Kirta Ram in his examination-in-chief has deposed that Padma Ram gave a kassi blow on the flank (panwada) of the deceased. To the same effect is the statement of Chena Ram. The testimony of these witnesses is not corroborated or supported in any way by medical evidence on record because no injury by a kassi has been found on the flank of the deceased. Hence, we are of the opinion that the learned trial Judge went completely wrong in convicting accused Padma Ram for offence u/s 302 IPC. 17. The testimony of these witnesses is not corroborated or supported in any way by medical evidence on record because no injury by a kassi has been found on the flank of the deceased. Hence, we are of the opinion that the learned trial Judge went completely wrong in convicting accused Padma Ram for offence u/s 302 IPC. 17. Learned P.P. urges that since the accused persons had indiscriminately given beating to deceased after he had fallen down, it should be held that all the accused appellants other than those, who have already been acquitted were guilty of offence u/s 302 read with 149 I.P.C. To our mind, this contention is devoid of force, for the simple reason that even though the co-accused appellants were carrying Kassis, their sharp sided were not used. This goes to show that the accused appellants intended to chastise the deceased severely because the deceased and his brother Kirta Ram had taken away the cattle of Moola Ram by theft from his son. There was no such previous enmity between the parties he would have inspired the accused appellants to have committed the murder of Lumba Ram. In our opinion, this is a case where all that can be said is that the accused-appellants know that their act was likely to cause death of Lumba Ram. This must be the only common object of the assembly consisting of the accused appellants, who causes indiscriminate beating to Lumba Ram, after he had fallen down to the ground. Therefore, we are of the opinion that in the facts and circumstances of the case, only an offence u/s 304 Part II, read with s. 148 I.P.C. is made out. Since there is no State Appeal against Smt. Roopi, Smt. Rami and Gumana Ram, their acquittals cannot be interfered with. 18. In view of what we have stated above, this appeal partly succeeds; convictions of all the appellants for offence u/s 148 are affirmed. Padma Ram - is acquitted of offence u/s 302 I.P.C., accused appellants other than Smt-Roopi, Smt-Mani and Gumana Ram are acquitted of charge u/s 302 read with 149 I.P.C. and their sentences passed on the said count are set asid and their conviction is altered to that one u/s 304 Part II, read with 149 I. P. C. The conviction of Poona Ram is also altered to one u/s 304 Part II read with 149 LP. C The accused-appellants are acquitted of all other charges and the sentences passed against them for such charges, are set asid." 19. Now coming to the question of sentences we find that the incident was not a pre planed one. It took place on the spur of the moment because deceased Lumba Ram and his companion Kirta Ram had stolen the cows of Moola Ram and his companions. The retributive beating that was given to the deceased Lumba Ram by appellants other than Smt. Roopa, Smt. Mani and Gumana Ram, have been given in heat of passion. 20. In that circumstances, we are of the view that the sentences already undergone by the accused appellants Naina Ram, Moola Ram, Kumbha Ram, Padma Ram and Lila Ram would meet the ends of justice, so far as their conviction for offence u/s 304 Part II read with 149 I.P.C. is concerned. We sentence them, accordingly. 21. Sentences passed for offences u/s 148 I.P.C. are maintained and both the substantive sentences shall run concurrently. Such of the accused persons, who are in jail, may be set free immediately, if not required in any other case.