JUDGMENT K. Narayan, J. - In an occurrence of 21-4-1975 at 10 a. m. in village Akraihia, P. S. Rudrapur District Deoria, one Doodhnath Singh alias Khar Khar Singh died of spear injuries and two others, namely, Jodhan and Triveni, who had received injuries in the same incident for the other party, also died almost the said day. Simple hurts were received by Kanhaiya, Shatrughan and Chitrasen -who were with the informant group of this case and by Shatrughan, Prabhunath and two others on the other side Jodhan and Triveni, as we shall discuss below, who would be considered responsible for causing fatal injuries to Khar Khar Singh, as already said above, had died on account of the injuries received during the incident. There were cross cases and in the present appeal, we are concerned with the accused Shatrughan and Prabhunath, who were with Jodhan and Triveni. The incident is said to be in the form that a branch of true had fallen few days back and the same was sold by Kanhaiya to Khar Khar Singh alias Doodhnath Singh. He had been possible getting it into pieces for the last few days and on the date of incident, he had loaded wood in a Dunlop-Cart with the help of Kanhiaya, Shatrughan and Chitrasen, as also some one of his ploughmen. When the Dunlop Cart left the said place but was still within the boundaries of the grove, Shatrughan, Prabhunath, Jodhan and Triveni, obstructed the same challenging ownership. There was some scuffle and also exchange of blows. Jodhan and Triveni exhorted. Both were armed with spears and on exhortation of Jodhan, Triveni gave spear blow in the abdomen of Khar Khar Singh whereupon the persons on the side of Kanhiaya and others opened fire also which caused injuries to Jodhan and Triveni. Doodhnath alias Khar Khar Singh was taken to hospital but before reaching there had breathed his last. Kanhiaya, Shatrughan and Chitrasen were medically examined by Dr. T. P. Sharma, who was later on examined as PW 1. Though the exact fate of Jodhan and Triveni is not on record of the case, it has been stated by one of the accused that they had also died the same day. Kanhiaya, Shatrughan and Chitrasen were medically examined by Dr. T. P. Sharma, who was later on examined as PW 1. Though the exact fate of Jodhan and Triveni is not on record of the case, it has been stated by one of the accused that they had also died the same day. The basis of the quarrel between the two groups has been the ownership and possession of plot No. 348, which comprises the grove in which the tree stood from which branch had fallen. The prosecution had examined PW 1 Dr. T. P. Sharma and PW 10 Dr. Mohd. Ali Rizvi. The former had conducted the medical examination while the latter had conducted post-mortem examination of Doodh Nath Singh. There is practically no dispute about the incident and in any event ab,ut the time and place of incident therefore, there is nothing much to turn on the testimony of these witnesses. In addition, the prosection had examined PW 2 H. C. Udai Narayan Rai who had prepared the first intormation report etc. PW 3 constable Hari Narain Misra, who had taken the report lodged at P. S. Kotwali to P. S. Rudrapur, PW 7 Hari Nath Pathak, who had conducted the inquest, S. W. 8 Rama Shankar Singh, who had conducted the investigation. The evidence of PW 4 constable Parasa Ram Singh, PW 9 constable Awadhesh Singh was absolutely formal. The evidence of occurrence was contained in the statement of PW 5 Kanhiaya and D. W. Jamuna. After considering the entire evidence in detail, the trial Court came to the conclusion of guilt against the accused' appellants and they were sentenced to imprisonment for life under Section 302/34, I.P.C. and to R. I. for three months each under Section 323, I.P.C. Aggrieved by both, they have come up to this Court in appeal. We will first of all like to say a little about the oral evidence in the case, specially with reference to the question of the title to the property. We will first of all like to say a little about the oral evidence in the case, specially with reference to the question of the title to the property. Though it does not appear that the defence in this case had at any time raised a specific plea of self defence of person or property, the existence of cross cases itself and the effort of the defence to challenge a part of the occurrence in stating that they had been in possession of the grove in question justifies us to look unto this aspect at least as incidental aspect. We have carefully gone through the evidence on record and the observations of the learned Sessions Judge in this behalf and have least hesitation in concluding that the contention of the defence about their possession over the grove is nothing but to travel in futility without ever realising as to what had been said and decided by the Court of competent jurisdiction repeatedly. The trial Judge has already given all the details and also considered the effects of every document even to the extent where there could have been a mistake in the preparation of the copy in the matter of dates. We need not repeat all that but would only like to say here that the accused group had only a so called sale deed made by former Jamindar Balbhadra Narain Mal in their favour in March, 1954 and order of mutation in their tavour made by the Assistant Collector on 7-10-55. and the subsequent dismissal of appeal against the said order by the Additional Commissioner Gorakhpur on 1-9-60. The orders of mutation are practically of no value as they do not create any right nor or in the recognition of any right. They are always subject to the adjudication on the regular side and this case the informant group namely Ram Kishan and others had brought a suit No 795 of 1960 in the Court of Munsif Deoria for cancellation of the sale deed said to have been executed by Bal Bahadra Narain Mal and for declaration of their title in plot No. 348. This suit was decreed by judgment and order dated 2-6-62, and the appeal against the same being Appeal No. 396 of 1962 was dismissed by the Civil Judge on 4-12-63 and the second appeal being 721 of 1964 was also dismissed by the High Court by an order dated 8-2-71. The matter, it appears, was again agitated by Jodhan and others during Consolidation operations and his plea was rejected by the Assistant Settlement officer (Consolidation) Jaunpur Camp at Deoria by an order dated 3-4-68. It appears that after some other litigation the matter was brought to the High Court in writ jurisdiction being Civil Misc. Writ Petition No. 9216 of 1971 and here again it was dismissed by an order dated 8-12-72. It also appears from the oral evidence that there were proceedings under Section 145 Cr. P. C. and the property was ultimately released in favour of the present informant group. If despite all this evidence and decisions, the accused could insist upon a right in the grove over plot No 3118 it was their own funeral and no Court could accept it even for a moment. We may mention that where any occurrence is proved to have taken place of would not admit any theory of self defence of person or property at the hands of defence in this case. As already mentioned, the wood had been lying there and was being cut into pieces by Doodh Nath Singh for the last few days it was only when they had loaded the wood and where going away, that the accused group had come to the scene of occurrence. It was not a situation when the danger would have been imminent or the effort to take recourse to the public authorities would have proved futile. It could not have been so felt even if the accused group had a respect for judicial decisions, which had already come into effect as in view of all the decisions, they could never establish their right to the property itself. Obviously, they wanted to grab it with the highhandedness, and that would not admit them to any facility of defence of person or property. The cross-examination in the trial has been very little directed on the question of title and has been more towards the challenge to the occurrence with suffered contradictions with previous statements. Obviously, they wanted to grab it with the highhandedness, and that would not admit them to any facility of defence of person or property. The cross-examination in the trial has been very little directed on the question of title and has been more towards the challenge to the occurrence with suffered contradictions with previous statements. Needless to say that in the matters of cross-cases any challenge with reference to the previous statement is obviously an effort to create confusion. This has been the sheetanker (?) of the defence cross-examination and does not lead us anywhere. We can only say that both the witnesses have stood well the test of cross-examination and the occurrence has been proved to have taken place in manner mentioned above. The last defence argument on behalf of the appellants was with regard to their liability for the offence of murder. As already said above the occurrence had taken place in the form of obstruction to the taking away of the wood. It was also mentioned in the first information report lodged on behalf of the accused, copy of which is on the record that Jodhan and Triveni had come earlier with spears while Shatrughan and Prabhu Nath had come with Lathis only behind them. Thus at best, the act of Shatrughan, Prabhu Nath, Jodhan and Triveni can be said to have commenced in so far as obstruction to the taking away of the wood is concerned. Furthermore it could be for taking away the wood also. We need not care for that aspect as unfortunately there has been no charge of robbery or attempt for that. It was only during scuffle that Jodhan exhorted and Triveni gave a spear blow to Doodhnath Singh alias Khar Khar Singh. It could be said that these two, namely, Jodhan and Triveni had developed common intention of murder or it may be that Triveni proceeded with the murder at the instigation or exhortation of Jodhan. However, it cannot be said that Shatrughan and Prabhunath also had any common intention with them. The murder in the instant case has been the result of spontaneous reaction of Jodhan and it is, in furtherance by Triveni. However, it cannot be said that Shatrughan and Prabhunath also had any common intention with them. The murder in the instant case has been the result of spontaneous reaction of Jodhan and it is, in furtherance by Triveni. Shatrughan and Prabhunath in view of the evidence could not have been held to have had common intention in the matter of murder nor it could be said that the murder was committed is furtherance of the common intention which they had, that is, of taking away the wood or asserting their title to the property. In result we are in agreement with the learned counsel for the appellants that these two accused should not have been held guilty of offence of murder. There is no doubt that these two accused appellants had Lathis. There is also no dispute and it has been common and also well proved that they were armed with Lathis, which they had weilded causing various injuries. Chitrasen had a tramatic swelling on the other side of right hand, Kanhaiya had a lacerated wound, contusion, trammatic swelling and complaint of pain. On the other hand, the accused, namely, Shatrughan and Prabhunath too had suffered gun shot injuries. They have of course been rightly convicted for the offence under Section 323, I.P.C. but considering the nature of injuries and the fact that they had also suffered bodily they deserve a reduction in the sentence, which should be reduced to that already uadergone. In result, this appeal should partly succeed. The appeal is partly allowed. The conviction and sentence recorded by the trial Court against appellants under Section 302/34, I.P.C. are hereby set aside. Their conviction under Section 323, I.P.C. is maintained but the sentence is reduced to the term already undergone. They are on bail. They need not surrender to their bail and bonds which are hereby cancelled and sureties discharged.