JUDGMENT H. C. Mital, J. 1. Mangoo has been convicted under section 302 IPC while his son appellant no. 2 Ramesh alias Ramey has been convicted under section 302 read -with section 34 IPC and both of them have been sentenced to life imprisonment. The prosecution case in brief is that on 25-2-81 at about 12 in the noon in village Mahu police station Chandpur district Bijnor deceased Ghasita was clearing some Parti' land to put up his Bitaura (heap of cow dung cakes) thereon. MANGOO claimed that the land was part of his chak and objected, which led to a wrangle. Thereafter MANGOO left saying that he would teach him a lesson and returned armed with a Palkati along with his son Ramesh alias Ramey, who held the deceased by his waist and thereafter MANGOO inflicted blows with his Palkati as a result of which Ghasita died on the spot. The incident was witnessed by Mishru, son of the deceased, and other persons. Mishru submitted a written report of the occurrence at the police station Chandpur at a distance of four miles at 1.30 P.M., on the basis of which a case was registered. Sub-Inspector Satyapal Singh Pawar was entrusted with the investigation of the case. He arrived at the scene of occurrence, recovered the dead body and sent it for postmortem. The autopsy was conducted by Dr. R. C. Maharashi on 26-2-81 at 2.00 P.M. and submitted post mortem report Ext. Ka. 2. He found the following ante-mortem injuries :- 1. Incised wound 13 cm. x 6 cm. x bone deep on the left side of face extending from angle of mouth to the left side of the neck. Margins chest side obliquely partially smooth. Clotted blood present. Muscle figures cut. Maxilla bone of left side cut. Blood Vessels cut in the neck. Direction obliquely transverse, 2.Incised wound 6 cm. x 2 cm. x bone cut. Margins partially smooth. Direction transverse. Blood vessels cut on left side of neck, about 2 cm. below the injury no. 1. Cervical vertibra and blood vessels cut. Clotted blood present. 3.Incised wound- 2 cm. x 0.5 cm. x muscle deep back of left fore-arm in the middle, margins regular. Clotted blood present. Direction transverse. 4.Contusion 5 cm. x 3 cm. on back of left fore-arm, about 2 cm. below the injury no. 3. Both bones (radius and ulna) of left fore-arm fractured. Clotted blood present. 3.Incised wound- 2 cm. x 0.5 cm. x muscle deep back of left fore-arm in the middle, margins regular. Clotted blood present. Direction transverse. 4.Contusion 5 cm. x 3 cm. on back of left fore-arm, about 2 cm. below the injury no. 3. Both bones (radius and ulna) of left fore-arm fractured. 5.Incised wound 5 cm. x 1 cm. x bone deep on the dorsal aspect of Rt. hand cutting the bones of right index and middle finger at the base of the fingers. Direction transverse-margins regular. On internal examination stomach contained 7 oz of undigested rice and food. Large intestines contained faecal matter. 2. After completion of the investigation both the appellants were tried and to prove its case the prosecution in all examined 7 witnesses of whom PW 1 Mishru, son of the deceased, PW 2 Ballu and PW 3 Phulwa are eye witnesses of the occurrence and they corroborated the prosecution case stated above. PW 4 Dr. R. C. Maharshi proved the postmortem examination report and the ante-mortem injuries etc. as noted above, he has also (sic) that the death was caused as a result of ante-mortem injuries nos. 1 and 2 on account of shock and haemorrhage and the same could be caused at about 12 noon on 25-2-81. PW 5 Constable Harbans Singh had recorded the first information report and registered the case in General Diary. PW 6 Ghasi Ram Rana is the Lekhpal of the village and deposed that the plot in dispute bearing no. 29 was Parti and it was used by the Harijans of the village for keeping their Bitauras. PW 7 Sub Inspector Satyapal Singh Pawar is the Investigating Officer who deposed about the various steps taken by him during the course of investigation. The learned Sessions Judge examined one Court witness namely, Sri Sardar Bahadur, Judicial Magistrate, who brought the special report of the case received by the Chief Judicial Magistrate on 25-2-81. The version of the appellants is that the land in dispute was part of their chak and it was never in possession of the deceased. Both the appellants, however, denied their participation in the crime. 3. The learned Sessions Judge, however, believed the prosecution evidence, hence convicted and sentenced the appellants as above. The version of the appellants is that the land in dispute was part of their chak and it was never in possession of the deceased. Both the appellants, however, denied their participation in the crime. 3. The learned Sessions Judge, however, believed the prosecution evidence, hence convicted and sentenced the appellants as above. On being aggrieved, this appeal has been preferred and on their behalf it has been urged that from the evidence on record it was clear that the land in dispute belonged to the appellants. It was part of their chak. That it had not vested in the Gram Samaj and, therefore, the deceased and others had no right to put up even the Bitauras thereon. That if the deceased was forcibly trying to take possession by putting his Bitaura and if the appellants resisted the same, they did so in defending their property hence committed no offence particularly when it was also apparent from the evidence that the deceased was also armed with a spade which he would have used. It was also urged that implication of Ramesh alias Ramey was prima-facie wrong as he was un-armed and did not cause any injury and the prosecution version that he had held the deceased by waist and thereafter Mangoo had inflicted blows with the Palkati over the neck of the deceased could not be believed. To appreciate the contention of the learned counsel for the appellants the prosecution evidence has got to be carefully scrutinised. 4. As regards the land whether it was of Gram Samaj or part of the chak of the appellants there is evidence of PW 6 Ghasi Ram Rana, Lekhpal of the village. He has no doubt stated in his examination-in-chief that on the land in dispute the villagers including Harijans had put up Bitauras; that Mangoo appellant had no right and the same belonged to the Gram Samaj. He also stated that Khasra number of the plot was 29. In his cross-examination he, however, admitted that all the land which vested in the Gram Samaj has been recorded in the khasra and khatauni. He had come with the relevant revenue records and that in Khasra and Khatauni over plot no. 29 there was no entry that it was Path-wara or that the same had been vested in Gram Samaj and he further admitted that the land of plot nos. He had come with the relevant revenue records and that in Khasra and Khatauni over plot no. 29 there was no entry that it was Path-wara or that the same had been vested in Gram Samaj and he further admitted that the land of plot nos. 26 and 32 was left for Gram Samaj and plot no. 32 was allotted to the Harijans. He subsequently admitted that plot no. 29 or any part of that plot was not allotted to the Harijans but it was Banjar. He did not bring Zila Chakbandi. He further admitted that he had not demarcated the chak of Mangoo, adjoining the land in dispute, and the land in dispute nor he could give the length and width of plot no. 29. In that view of his statement that the land in dispute had not vested in the Gram Samaj nor was there any entry to the effect that it was being used for putting Bitauras by the Harijans, there is force in the version of the appellant Mangoo as given in the court below that the land belonged to him. The same is further corroborated by the admission of PW 2 Ballu, in his cross-examination in para 9 that for the last 20 years there has never been any dispute over the land in dispute where the murder had taken place. That Mangoo used to say that "Patwari ko Bulalo Aadha Kharcha me doonga or aadha aap log deveu aur Patwari jitni jameen nikale voh turn apne kam me lelo." Thus from this admission of PW 2 Ballu it is clear that conduct of appellant Mangoo had always been very up-right and he never objected in getting his plot demarcated and was ready to leave the extra land if any with him. Regarding the occurrence as to how it had taken place there is testimony of three eye witnesses, namely, PW 1 Mishru, son of the deceased, PW 2 Ballu and PW 3 Phulwa. Admittedly all the three are Harijans. Mishru PW 1 has stated that he himself, Ballu and Phulwa and other Harijans were at the Dharamshala of Harijans which is about 50 steps away from the scene of occurrence and from there he and witnesses heard the wrangle between his father, deceased Ghasita, and Mangoo when deceased was clearing the land and Mangoo was objecting to it. Mishru PW 1 has stated that he himself, Ballu and Phulwa and other Harijans were at the Dharamshala of Harijans which is about 50 steps away from the scene of occurrence and from there he and witnesses heard the wrangle between his father, deceased Ghasita, and Mangoo when deceased was clearing the land and Mangoo was objecting to it. He has also stated that his father was saying that other persons were keeping their Bitauras on the land in dispute and he would also keep his own Bitaura but Mangoo objected and he then left giving threat and returned after sometime with a Palkati along with his son Ramesh. That they were at a distance of 20-25 paces and then saw that Ramesh held the deceased by waist and thereafter Mangoo inflicted blows with Palkati on the neck of the deceased and the deceased had also received injuries on his hand when he tried to ward off the blows. In his cross-examination he admitted that he did not mention in the FIR that Harijans were keeping their Bitauras on the land in dispute. He also admitted that since alter the Chakbandi Mangoo had been objecting that he would not allow anybody to take possession thereon. He has also admitted that Ballu PW 2 was nephew of his father. He has also admitted that though they had kept Bitaura on the land in dispute but subsequently it was removed and thereafter his father was going to keep it when Mangoo said that it was part of his field and he would not permit him. He, however, denied that Mangoo had snatched the spade of his father which was with him. He, however, admitted that his father was using the spade on the ground. 5. PWS 2 and 3, Ballu and Phulwa, respectively, also stated that they were at the Dharamshala of the Harijans and from there they heard the wrangle between Ghasita deceased and Mangoo appellant and that Mangoo left and returned along with his son Ramesh who held the deceased by waist and Mangoo wielded the Palkati on the deceased. In his cross-examination Ballu has admitted that on receipt of the first blow of Palkati the spade had fallen down from the hands of Ghasita. In his cross-examination Ballu has admitted that on receipt of the first blow of Palkati the spade had fallen down from the hands of Ghasita. He also admitted that the land over which they claimed their Dharamshala had also (sic) been allotted to them and the Dharamshala was only in the shape of a hut with a flag thereon. Though he denied that after the murder there had been two parties in the village, one of Harijans and another of Ahirs, but admitted that persons of both the sides remained in Jail and he had also been in prison. PW 3 Phulwa has admitted that he was a rickshaw puller in Chandpur and admitted that Police had arrested him and left him after giving a beating. He, however, denied that he was apprehended in a theft case. He has also stated that he did not see any spade in the hand of Ghasita nor he saw him using the same. That shows that he was not present at the time of occurrence but he reached subsequently when he found as stated by him, that the spade of Ghasita was also lying there. He has further admitted that when Mangoo had left after giving a threat, they did not ask Ghasita to leave the place and has further admitted that till Ghasita died nobody came from the village. He has also admitted that over the disputed land there was only Bitaura of Mangoo. Lastly, he admitted that the Investigating officer came to the village at about sun-set though the Sub Inspector Satyapal Pawar PW 7 has stated that he had reached the village at 3.30 P.M. It was, therefore, pointed out that the report was after thought and it was not written at the time alleged by the prosecution and that it was not in existence when the inquest report and other papers were prepared. In support of his contention the learned counsel pointed out various over-writings in the inquest report and other papers which have been admitted by the Investigating officer in his cross-examination. 6. In view of the above circumstances on record, we find that there is force in the contention of the learned counsel for the appellants that Ramesh alias Ramey appears to have been falsely implicated, he would not have held the deceased by waist when Mangoo wielded Palkati blows. 6. In view of the above circumstances on record, we find that there is force in the contention of the learned counsel for the appellants that Ramesh alias Ramey appears to have been falsely implicated, he would not have held the deceased by waist when Mangoo wielded Palkati blows. Mangoo would have also not wielded the blows with Palkati on the neck of the deceased if his son had been holding the deceased by his waist. We further find support from the admission of Ballu PW 2 that after receipt of the first blow the spade of Ghasita had fallen down which would not be so if the deceased had been held by waist by appellant no. 2 Ramesh alias Ramey. However, from the evidence on record it is proved beyond reasonable doubt that injuries to the deceased were caused by Mangoo appellant which subsequently proved to be fatal. It is also apparent thas Mangoo appellant had caused injuries when Ghasita deceased was trying to take forcible possession and was using his spade and after a wrangle had ensued. That is in the heat of the moment the appellant Mangoo had wielded Palkati blows an Ghasita in exercise of the right of private defence of his property. As the injuries caused were excessive in nature. 7. In result, therefore, his conviction under section 302 IPC should be set aside and instead conviction should be recorded for culpable homicide not amounting to murder under section 304 Part II IPC. 8. In the matter of sentence he has already been in prison for some years and that period with a fine of Rs. 5000/- should meet the ends of justice. In default of payment of fine, he should undergo a further R.I. for 2 years. Considering the nature and circumstance of the case, in the event of realisation of fine, it should go to the widow of the deceased Ghasita or in her absence, to other legal heirs. The appeal of Ramesh alias Ramey is accordingly allowed. His conviction under Section 302/34 IPC and sentence of life imprisonment are set aside. Instead he is convicted under Section 304 Part I IPC and sentenced to the term of imprisonment already undergone and to pay a fine of Rs. 5000/-. In default of payment of fine, he shall undergo a further R.I. for 2 years. His conviction under Section 302/34 IPC and sentence of life imprisonment are set aside. Instead he is convicted under Section 304 Part I IPC and sentenced to the term of imprisonment already undergone and to pay a fine of Rs. 5000/-. In default of payment of fine, he shall undergo a further R.I. for 2 years. In the event of realisation of payment of fine, shall be paid to the widow or in her absence any other legal heirs of the deceased Ghasita. 9. Mangoo appellant, if he is in jail, shall be released subject to above condition of fine unless wanted in some other case.