JUDGMENT 1. 1. This is an appeal filed by Kundan Singh and eight others against the judgment of Additional Sessions Judge, Kishangarhbas, Camp Alwar, in Sessions Case No. 16/1980, whereby he convicted and sentenced the accused-appellants as under:-1. Kundan Singh and Bahadur Singh:- Under Section 302, IPC each to imprisonment for life and to pay a fine of Rs. 1,000/- each. In default of payment of fine each to further undergo three months' rigorous imprisonment. Under section 447, IPC each to three months' rigorous imprisonment. 2. Nand Lal, Munshi Singh, Ramjilal, Narang Singh, Hardwari Singh & Mahavir Singh:- Under section 323, IPC each to undergo one year's rigorous imprisonment and to pay a fine of Rs. 200/-each. In default of payment of fine to further undergo one month's rigorous imprisonment each. Under section 447, IPC each to undergo 3 months' rigorous imprisonment. 3. Hoshiar Singh:- Under section 323, IPC and 447, IPC. But the learned Addl. Sessions Judge released the appellant on probation. 2. The facts giving rise to this appeal are that a report was lodged at Police Station, Madhan, District Alwar by one Rati Ram son of Fateh Singh on 10th March, 1980 at 10.40 a.m., wherein it was alleged by him that on the previous evening i.e. on 9th March, 1980 at about 5 or 5.30 p.m. when he along with this brother Sua Singh and father Fateh Singh were at their residence, suddenly Kundan Singh, Bahadur Singh, Ramji Lal son of Makhtool Singh, Norang Singh son of Ramji Lal, Hardwari son of Deva, Hoshiar son of Girdhari and Nanda son of Bahadur Singh, residents of Khundroth-ki-dhani came along with Munshi, Mahavir son of Sughadh Singh Rajput and Hoshiar Singh. These two persons namely Munshi and Mahavir are sons of brother-in-law of Kundan Singh. All the accused persons who arrived there were alleged to be armed with lathis. As soon as they arrived there, Kundan Singh exhorted, "Maro Salon Ko". On this call of Kundan Singh, Munshi, Nanda and Bahadur attacked Sua Singh and beat him with lathis. The remaining five gave lathi blows on informant Rati Ram, his father and his wife. On raising alarm, it is alleged, Babu son of Guman Singh, Mannu Singh and several other persons of the village arrived at the scene and rescued the complainant from being beaten. The remaining five gave lathi blows on informant Rati Ram, his father and his wife. On raising alarm, it is alleged, Babu son of Guman Singh, Mannu Singh and several other persons of the village arrived at the scene and rescued the complainant from being beaten. Kundan Singh told his associates, "do not permit the injured and the complainant to go to the Police Station; if they dare to go, they should be done away with " Sua Singh is alleged to have become unconscious. They could neither take to the hospital nor go to the police station as they were afraid of the complainant party and, it is alleged that treatment was given to Sua Singh at home, but he could not survive and succumed to injuries at 6 am. on 10th March, 1980. On receipt of this information, a case under Section 302/147, 149 and 323, IPC was registered and the investigation commenced, Manohar Lal, Dy, S.P., at the relevant time, Circle Officer, Behror, under whose jurisdiction this offence was committed, arrived at the place of occurrence immediately and on receipt of information from the Police Station and prepared site-plan Ex. P/2, in the presence of motbirs and complainant Rati Ram. He also get the post-mortem on the dead body conducted and obtained the injury reports in respect of Antar Devi, Fateh Singh and Keshar Devi. He did the necessary initial investigation of the case, including recording of statements of the some witnesses and thereafter handed over the investigation to Radheyshyam Sharma (PW/12), incharge of the Police Station, Bansur, who after completing investigation submitted a charge-sheet against as many as 9 persons for an offence under sections 147, 148, 302, 323 and 447, IPC read with Section 149, IPC in the Court of the Judicial Magistrate, Behror who committed the case to the Court of Addl. Sessions Judge, Kishangarhbas, holding camp at Alwar, for trial Kundan Singh and Bahadur Singh were charged for an offence under Section 302, IPC simplicitor together with the charges under sections 148, 325 and 452, IPC. Accused, Appellants Norang Singh and Munshi Singh were charged for offence under sections 148, 325, 452 and 302/149, IPC. Rest of the accused were charged for offence under Section 325/149, IPC. All the accused denied the charges and claimed to be tried. 3. Accused, Appellants Norang Singh and Munshi Singh were charged for offence under sections 148, 325, 452 and 302/149, IPC. Rest of the accused were charged for offence under Section 325/149, IPC. All the accused denied the charges and claimed to be tried. 3. The prosecution examined 13 witnesses in support of its case and the accused examined two witnesses in their defence. The defence of the accused is that the complainant party wanted to take forcible possession of 'bara' which was joint. After the conclusion of the trial, the learned Addl. Sessions Judge convicted and sentenced the accused-appellants as indicated above. Aggrieved by the aforesaid conviction and sentence, this appeal has been preferred. 4. The learned counsel for the appellants submitted that the incident did not take place in the manner indicated by the prosecution witnesses in the Court. It is submitted that it is born out even from the investigation that the complainant party was taking law in its own hand in excluding the possession of the petitioner from the 'bara' which is joint between the parties. Even from a perusal of the site plan and the statement of the investigating officer, it is clearly born out that it was a common chowk (bara) where bushes and sticks were lying for making fencing. This was done in order to stop the entry of the accused-appellants, on which the complainant had no right express or implied. The origin and genesis of the prosecution case, therefore, has not been honestly put forth before the Court and the entire prosecution story has been given a twist so as to bring the case within the ambit of Section 302. IPC. It is submitted by the learned counsel that when the charge-sheet was submitted, the offence with which the accused was charged was under Section 452, IPC, but the trial Court has acquitted the accused of the said offence, instead convicted under Section 447, IPC which finding is erroneous inasmuch as once it has come in evidence that 'bara' was in joint possession, then there is no question of committing trespass because an accused cannot be said to commit trespass on his own land. Besides this, it is submitted that the incident had taken place at 5 p.m. and the report was lodged after an inordinate delay of 18 hours, while the police station was only at a distance of 10 kilometres. Besides this, it is submitted that the incident had taken place at 5 p.m. and the report was lodged after an inordinate delay of 18 hours, while the police station was only at a distance of 10 kilometres. The submission of the learned counsel is that the explanation, which has been given for explaining delay is only imaginary. It is submitted that a few days earlier to this incident also there had been altercation and beating between the parties owing to the 'bara' in dispute. It is submitted that it is not born out as to which of the fatal blow has been given by which of the accused in the case. In totality, it is submitted, so far as Kundan Singh and Bahadur Singh are concerned, the offence does not travel beyond sec 325/34, IPC. The learned counsel has placed reliance on Shri Kishan v. State of U.P., AIR 1972 SC 2056 and Ram Lal v. Delhi Administration, AIR 1972 SC 2462 . In shoot, the learned counsel for the accused-appellants does not disputed the fact that the incident took place on 9th March, 1980 at 5 or 5.30 p.m., but he has disputed the manner in which it is alleged, and has argued that the accused was entitled to the right of private defence of property and/or in the alternative, there was no intension to kill and, it being not known as which of the two appellants-Kundan Singh and Bahadur Singh, inflicted the fatal blow and, thus, the conviction under sec 302, IPC cannot stand. His another submission is that an offence under section 447, IPC is also not sustainable in the circumstances of the case. Shri Farooq appearing on behalf of the State supported the findings of the trial Court and submitted that the two accused, who have been convicted under Section 302. IPC have deliberately inflicted injury on the head and, chosen vital part of the body for infliction of injuries. He submitted that the injury as has been caused with full force, from which an inference can be drawn that they were intended to cause death. It is further submitted that there is a long sanding enmity between the parties and therefore, there is no material to infer that the incident took place all of a sudden. His submission is that the judgment does not call for any interference. 5. It is further submitted that there is a long sanding enmity between the parties and therefore, there is no material to infer that the incident took place all of a sudden. His submission is that the judgment does not call for any interference. 5. We have given our thoughtful consideration to the rival submissions made by the parties and perused the record of the case. Rati Ram (PW/1) is the author of the First Information Report and an eye-witness. He is also the brother of the deceased. In his cross-examination, he has given out the same story as the facts narrated above from his First Information Report. When he qualified that it were Kundan and Bahadur Singh who had gone inside the 'bara' initially and the other followed subsequently. He stated that Kundan Singh and Bahadur Singh both had given lathi blows on the head of Sua Singh. In the cross-examination, he had admitted he is facing criminal trial, wherein the deceased was also an accused and this was for extracting illicit liquor. The case was challaned at the instance of the accused, Kundan Singh and for that there was enmity between the parties. He denied that Kundan Singh has nothing to do with the 'chowk' as his 'chowk' is a gwari is different and at a distance from their 'gwari' and stated that it is not joint or common. But, later on, when contromed with his earlier statement, he had to admit that it is a common 'bara' which is rightly written in the police statement. He denied the suggestion that the incident took place because he along with his father, brother Sua Singh and Girdhari Singh wanted to put the barrier in this 'gwari' and intended to deprive the accused persons from entering it. He has stated that he is unable to show which of the injury on the head was caused by which of the accused. He, however, stated that both Bahadur Singh and Kundan Singh had inflicted injuries while Sua Sing was standing; Nanda, Munshi, Bahadur Singh and Kundan Singh when he fell down. 6. Dr. Suresh Chand Meena (PW/2) is the Medical Officer Incharge who conducted post-mortem of the deceased. He found the following external injuries on his person:- 1. Lacerated wound 7 cm x 1 cm x 1 cm on right parietal region of the skull. 2. 6. Dr. Suresh Chand Meena (PW/2) is the Medical Officer Incharge who conducted post-mortem of the deceased. He found the following external injuries on his person:- 1. Lacerated wound 7 cm x 1 cm x 1 cm on right parietal region of the skull. 2. Swelling and haemotoma 5 cm x 5 cm on left parietal region of the skull. 3. Lacerated wound 1.5 cm x 5 cm at first inter phdejial joint left second finger. 4. Lacerated wound 3 cm x 4 cm x 5 cm on upper third part of left forearm posteriorily. 5. Lacerated wound 3 cm x 7 cm x 5 cm on base of pinna of the left ear. 6. Abrasion 3 cm x 2 cm on right scapular region of the back. 7. Abrasion 3.5 cm x 2.5 cm on the left scapular region of the back, 7. According to the Doctor, injury No. 1 and 2 were grievous. All the injuries were caused by blunt weapon and were ante-mortem. On opening the body, he found fracture of temporal and parietal bone on the right side of the parietal region on the left. On both the injuries there was laceration of brain as a result of which brain was damaged. The cause of death, therefore according to the Doctor was injuries No. 1 and 2. He has also stated about the injuries on the other injured persons, namely Rati Ram, Antara Devi, Fateh Singh and Keshar Devi. The injuries on their person were caused by blunt weapon, and were simple in nature, except one injury on the hand of Rati Ram, which was found to be grievous. A suggestion was made to this witness in cross-examination to be that the injury on person of the deceased was caused because of fall on a stone, the witness stated that it could not be, and qualified it by saying that no stone was lying where the dead body was placed. It may be observed here that the place of occurrence was not the place where the dead body was kept and where the post-mortem was conducted. Hence, obviously, the observation which was made for absence of stone at the place where the dead body was lying is erroneous. It may be observed here that the place of occurrence was not the place where the dead body was kept and where the post-mortem was conducted. Hence, obviously, the observation which was made for absence of stone at the place where the dead body was lying is erroneous. He admitted that there was no contusion or laceration at the place of injury No. 2 Fateh Singh PW 3 who also gave the same story, gave an omnibus statement. He stated that Kundan Singh, Nanda, Bahadur Singh and Munshi all the four gave injuries on the person of the deceased, Sua Singh. However, according to him, Kundan Singh, and Bahadur Singh had given the initial blow on the head. This witness has already in his cross-examination denied initially that the accused had any right on the land where the incident took place i.e. 'bara'. He stated that the entire 'bara' is exclusively belonging to him since his ancestors' time and denied the suggestion that the accused had any right to have the portion of it. He said that Kundan accused had a separate 'bara'. There was already a partition from before between the two. He denied the suggestion that he wanted to grab this land and, for this reason the accused had come to establish their right. Smt. Antara wife of Sua Singh gave a similar statement as that by other eye-witnesses, but in the cross-examination she stated that there was no partition of 'bara' between their 'bara' and that of the accused persons. She, however, stated that in a part of the land, a dol had been constructed. She has frankly admitted in the cross-examination that this is true that her husband, brother-in-law and father-in-law ere trying to put 'bar' and bushes in between the two 'baras' which the accused had removed and said that she did not put the 'bar' when her husband continued doing it despite the objection from the accused, the incident took place Keshar Devi wife of Rati Ram, however, denied the story of putting 'bar', or existence of any apparatus being placed between the two 'baras'. She has denied her police statement where she had stated that there is common 'bara' between the accused and the complainant party. Two independent witnesses, namely, Babu Singh and Munshi Singh who were examined in the case have been declared hostile and did not support the prosecution story. She has denied her police statement where she had stated that there is common 'bara' between the accused and the complainant party. Two independent witnesses, namely, Babu Singh and Munshi Singh who were examined in the case have been declared hostile and did not support the prosecution story. Yet another important witness in the case is Manohar Singh PW 13, Dy Superintendent of Police who prepared site-plan Ex. P 2 which he has proved in the witness-box. He has categorically stated that there was neither `bar' nor partition nor wall in the 'bara' and this plant he prepared at he instance of Radheyshyam which he admitted in the cross-examination. He has stated that he has shown by dotted lines in Ex.P 2 and has also indicated the material which was lying there collected by the complainant for placing it around the 'bara'. He stated that according to his investigation the accused wanted to partition 'bara', but the complainant party was opposing it and it was for this reason that the accident took place, which is not the case of the complaint party as well. Thus, from a perusal of the aforesaid statement one thing is clearly born out that the bone of contention between the parties was this 'bara' which according to the complainant was in their exclusive ownership and possession as well. According to the defence, it was common and the portion of the complainant wanted to grab From the perusal of the statements, particularly of the wife of the deceased, it is clearly born out that the accused persons had come there for the purpose of objecting the putting of fencing by her husband, her brother-in-law and they repeatedly told them not to put the fencing, but the request was not accepted and her husband continued the fencing, on which injuries were inflicted to him. Her statement appears to be convincing and candid and we have no hesitation in accepting it because that is also supported by circumstantial evidence, as material for fencing had been found lying on the site when the site-plan was prepared on the next morning. Her statement appears to be convincing and candid and we have no hesitation in accepting it because that is also supported by circumstantial evidence, as material for fencing had been found lying on the site when the site-plan was prepared on the next morning. In this view of the matter, we are firmly of the opinion that the place of the incident and the cause for which the incident took place was putting the fencing in the 'bara' which never exclusively belonged to the complainant party and, thus, the accused had a right to resist and ask the complainant party not to proceed further. However, using the force and to what extent, force could be used is a matter which requires to be determined. Suffice it to say, conviction under section 447, IPC in the circumstances of case was not called for as the accused could not have trespassed on their own land, or the land which was common to both the parties. 8. From a perusal of the prosecution evidence, we are convinced that the accused party had come with an intention to prevent the complainant party from putting the fencing and to use the force as necessary in the event of any resistance as may come from the other side. The trial Court itself has found that the common object of the entire assembly was not to kill deceased and, therefore, acquitted seven persons of the charge for offence under Section 302/149, IPC. The trial Court, however, held guilty Kundan Singh and Bahadur Singh for offence under Section 302, IPC simplicitor which in our opinion, was not justified in the circumstances of the case, as it is very difficult to infer that they shared common intention to kill the deceased Sua Singh. The evidence in the case is omnibus as well in as much as that initially it has been stated that Kundan Singh and Bahadur Singh inflicted injuries on the head, but the witness qualified it by saying that the two other persons also inflicted injuries on the person of the deceased without specifying the part of the body on which injuries were inflicted. Even about injuries No. 1 and 2, none of the witnesses is in a position to say that which of the injury has been caused by whom. Even about injuries No. 1 and 2, none of the witnesses is in a position to say that which of the injury has been caused by whom. Unfortunately, from the Doctor also, it was not asked as to which of the two injuries was fatal. In reply, he stated that it was the cumulative effect of injuries No. 1 and 2 which resulted in the death. It can also be not lost sight of that injury No. 2 was merely a swelling with no laceration and contusion and, therefore, it is difficult to infer that it was intended to cause death, or was otherwise sufficient in the ordinary course of nature to cause death Be that as it may there is sufficient evidence to infer that the common intention of both the accused was to inflict grievous injury on the person of deceased Sua Singh. We are fortified in our view by the decisions of the Supreme Court in Shri Kishan v. State of U.P. and Ram Lal v. Delhi Administration (supra) and our own judgment in Nathu Lal & Sheo Narain v. The State of Rajasthan (D.B.), Criminal Appeal No. 377/1980, decided on July 24, 1990 . In view of this, it would be safe to convict the accused-appellants for the offence under Section 325/34 instead of maintaining the conviction under Section 302/34, IPC. Regarding the injury sustained by other complainant, in our opinion, there is sufficient evidence to connect the accused-applicants and convict them for the offence alleged against them. We, however, feel that the case requires serious consideration about the quantum of sentence in the given circumstances of the case. Accused Nanda, Munshi Singh, Ramjilal, Narang Singh Hardwari Singh and Mahavir Singh have been sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 200/- each, in default of payment of fine to undergo one month's rigorous imprisonment. In view of the fact that 10 years have passed since the occurrence had taken place and 9/1-2 ever since the judgment was passed by the trial Court, it would be travesty of justice to send the accused to jail again. Besides this, also, there is a mandate of law as contemplated in S. 360, Cr. PC that when an offence is punishable for less than 7 years, then the accused should be dealt with under the provisions of that section. Besides this, also, there is a mandate of law as contemplated in S. 360, Cr. PC that when an offence is punishable for less than 7 years, then the accused should be dealt with under the provisions of that section. Instead of being sent to jail, looking to the nature of the offence and character of the offender. In the instant case, it is born out from the record that one of the complainant party was facing trial for extracting illicit liquor on the complaint made by the accused persons and, therefore, the accused persons are law abiding persons who were responsible for bringing the offenders to book and, secondly, they had gone on the spot to protect their own right as against the encroachment sought to be made by the complainant party. In this view of the matter, we deem it proper to give the benefit of the provisions of Probation of Offenders Act. Regarding Kundan Singh and Bahadur Singh, their conviction under Section 302, IPC cannot be maintained as mentioned above, and both of them require to be convicted for offence under Section 325/34, IPC. The conviction of the accused for offence under Section 447, IPC requires to be set aside. 9. The result of the above discussion is that this appeal is partly allowed. Conviction of the accused-appellants, Kundan Singh and Bahadur Singh for offence under Section 302 IPC is set aside. Both of them are, instead convicted for offence under Section 325/34, IPC and sentenced to imprisonment for the period which they have already undergone. However, the fine of Rs. 1,000/- each is enhanced to a fine of Rs. 5000/- each, in default of payment of fine, each of them shall undergo six months rigorous imprisonment. Their conviction and sentenced for offence under sectionection 447, IPC is set aside and they are acquitted of this charge. Regarding accused-appellant Nand Lal, Munshi Singh, Ramjilal, Narang Singh, Hardwari Singh and Mahavir Singh, their conviction under Section 323, IPC is maintained, but instead of sentencing them, they are extended the benefit of the Probation of Offenders Act. They will execute a bond in the sum of Rs. 1,000/- each to the satisfaction of the trial Court for keeping peace and be of good behaviour for a period of one year from the date o execution of the bond. Their conviction for offence under Section 447, IPC is set aside. They will execute a bond in the sum of Rs. 1,000/- each to the satisfaction of the trial Court for keeping peace and be of good behaviour for a period of one year from the date o execution of the bond. Their conviction for offence under Section 447, IPC is set aside. Hardwari Singh's appeal qua section 323, IPC is dismissed, while he is acquitted of the offence under Section 447, IPC. On realisation of the fine, the same shall be paid to the widow of decease Sua Singh, the trial Court shall ensure that the amount is paid to Smt. Antar Devi widow of Sua Singh. Three months' time is given for depositing the fine and executing the bond for probation.Appeal Partly Allowed. *******