JUDGMENT K.T. Thomas, J. 1. Appellant inflicted a blow on the head of the deceased with the handle of a spade and the skull bone was broken. He died almost instantaneously. Appellant did not seriously dispute the allegation that it was he who beat the deceased like that. He pleaded right of private defence of his person as well as property. Both were repelled by the sessions judge and he was convicted of the offence under S.302 of the Indian Penal Code and was sentenced to imprisonment for life. This is his appeal. 2. Prosecution case is that at about 5.30 p.m. on 17-6-1987 while the deceased was trying to restore a sluice on a bund (for diversion of water flow), appellant rushed towards him with a spade and inflicted more than one blow on his head with its handle. When deceased fell down, appellant ran away with the spade. Deceased sustained extensive cracks on his skull including separation of skull bone at the left lambdoid suture. No doubt, the injury was necessarily fatal. 3. Some more details of the prosecution case are necessary for appreciation of evidence. Appellant had a small extent of paddy field situated on the north of deceased's land. Deceased raised banana cultivation in his land. Appellant had prepared his field for raising paddy cultivation. A water channel was running in between the two plots. It is alleged that appellant had earlier reclaimed half of the land in the water channel which abutted his paddy field and added it to his field. Appellant provided a sluice on the northern bund of the property of one Raghavan which was situated on the immediate east of deceased's land. (Appellant's idea in doing so was to divert the water to a public stream on the southern side of Raghavan's land). But deceased apprehended that excess water would flow into his land through Raghavan's plot and it would adversely affect his banana cultivation. He, therefore, filled up the opening on the bund. It was around 4 p.m. on the date of occurrence and deceased left the place. When appellant went there, he noticed that the opening on the bund was filled up and hence he reopened it again. Deceased came back to the place and on seeing what the appellant did, he had an exchange of words with the appellant. It was around 4 p.m. on the date of occurrence and deceased left the place. When appellant went there, he noticed that the opening on the bund was filled up and hence he reopened it again. Deceased came back to the place and on seeing what the appellant did, he had an exchange of words with the appellant. He squatted on the ground near that the place to close the opening on the bund. Appellant picked up a spade, and rushed to him from behind and inflicted one or two blows on his head with its handle. 4. Appellant did not dispute in so many words that the injuries on the deceased were inflicted by him. According to him, the incident happened as follows: While he was restoring the opening on the bund, deceased reached there and kicked him and he fell into the water channel. Deceased took up a spade and pressed its handle on his chest. Appellant tried to squirm out, snatched the spade and in self defence beat the deceased. 5. To prove his version, he examined D.W.1 (Krishnan) who gave evidence in accordance with the defence version. Learned Sessions Judge declined to place reliance on the testimony of D.W.1. P.Ws.1 to 3 gave evidence in support of the prosecution version. Learned Sessions Judge found their testimony reliable and hence found that the incident happened in accordance with the prosecution version. 6. P. W.1 is the nephew of the deceased. First Information Statement (Ext.P1) was furnished by him. P.W.2 is cultivator in the neighbouring field. He also said that appellant inflicted two or three blows with the handle of a spade on the head of deceased while the latter was squatting near the disputed opening on the bund. P. W.3 is another eye witness. He also had his own cultivation in another field situated in the vicinity. P. W.3 was occasionally employed by others including the appellant to do manual work in their fields. His evidence is also consistent with the prosecution version. We went through the testimony of those three witnesses and we are satisfied that they spoke the true version. Some discrepancies elicited from them during cross examination do not affect the credibility of their testimony. 7. Learned Sessions Judge rightly rejected the evidence of D.W.1. His name came from the blue when the appellant was called upon to enter on his defence. Some discrepancies elicited from them during cross examination do not affect the credibility of their testimony. 7. Learned Sessions Judge rightly rejected the evidence of D.W.1. His name came from the blue when the appellant was called upon to enter on his defence. Sessions Judge pointed out that defence never had a case when witnesses for prosecution were cross examined that D.W.1 was present anywhere in the vicinity. On the other hand defence suggested two other names as persons present and saw the occurrence. In fact, the names of those two persons were mentioned in the list of defence witnesses. But appellant did not choose to examine them and instead, examined only D.W.1. We concur with the trial judge that DW.1's testimony does not inspire confidence. 8. Smt. N. Santha, learned counsel for appellant, assiduously built up a case for right of private defence of property as an alternative contention. In support of it, she drew our attention to the testimony of P. W.3 who said that the disputed opening on the bund would bring in devastation for cultivation in appellant's property. Witnesses said that appellant had ploughed his land and was about to sow seedings therein. If his field was inundated in water sowing operation therein would be in jeopardy. Learned counsel contended that as the appellant had reasonable apprehension that deceased was about to commit the offence of mischief, he had right of private defence of his property. Under S.104 of the Penal Code if the offence, the committing of which or the attempting to commit which occasions right of private defence, be mischief, that right extends to the causing of any harm other than death. This is of course subject to the restrictions contained in S.99. The right of private defence of property commences when a reasonable apprehension of danger to property arises. We have now to examine whether appellant could have had such apprehension. 9. "Mischief is defined in s.425 of the Penal Code: "Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affect injuriously, commits "mischief'. From what the prosecution witnesses themselves said it is conceivable that appellant could reasonably have feared that filling the opening might cause water to flow into his field and thereby render sowing operations thereon difficult. In other words, appellant could have reasonably apprehended that the deceased was about to commit an act of mischief as far as the appellant was concerned. 10. Learned Sessions Judge who considered the plea of right of private defence of property found it against the appellant mainly on the ground that appellant had sufficient time to have recourse to the police or to other public authorities for redressal of his grievance. S.99 of the Indian Penal Code contains the following restriction among others: "There is no right of private defence in case in which there is time to have recourse to the protection of the public authorities". A large number of cases have clustered round the words "in which there is time" in S.90 of the Code as those words have some ambiguity. Unless they are applied in the proper sense, they are liable to be misapplied and unjust result would follow. In one sense, there is always time to have recourse to the protection of public authorities when immovable property is in danger. But, if the restriction contained in S.99 is given such an interpretation, the prized legal right envisaged in the Penal Code regarding private defence of property would elude from those who deserve it. "Time" referred to in the section in this context means, there must be reasonable interval between development of apprehension and commission of the offence so that commission of the offence could be preempted by such authorities. Time element in S.99 does not depend on the gravity of the offence threatened. If the accused reasonably fears that the offence threatened would be completed by the time the public authorities act, the accused is not under any legal obligation to proceed to the police or other authorities, instead of exercising his right of private defence at the spot itself. If one is to go to the police station after commencement of apprehension that his property is in danger, he allows the mischief threatened to his property to be completed. He cannot be expected to run the risk of depriving himself of his private defence of property by punctiliously insisting on his obligation to inform the police. If one is to go to the police station after commencement of apprehension that his property is in danger, he allows the mischief threatened to his property to be completed. He cannot be expected to run the risk of depriving himself of his private defence of property by punctiliously insisting on his obligation to inform the police. Law is not that he should resort to public authorities by sacrificing his interest in the property. 11. It has been held in an early decision (vide Queen Empress v. Narsang Patha Bhai and others (ILR Bombay (Vol.XIV) 441) that the clause which contains the words "there is time to have recourse to the public authorities" must be read with 1st paragraph of S.105 of the Penal Code. In Munshi Ram v. Delhi Administration ( AIR 1968 S.C. 702 ) the Supreme Court observed that "Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed". It is no argument that since the immovable property would remain in tact even if the aggressor enters upon it, the person in possession should resort to legal authorities instead of using force to resist the aggression. Same is the position when mischief is apprehended from another. 12. The above discussion leads us to concede that appellant had right of private defence of his property as against the deceased when he had reasonable apprehension that deceased was attempting to commit mischief. 13. Now the question is, what was the extent of his right of private defence when deceased attempted to close the sluice. If the appellant had butted him out or pushed him down or had used a little more force to prevent him from filling up the opening perhaps, he would have acted within bounds. But he beat the deceased on the crown of his head with a heavy object (handle of a spade) and smashed his skull bone. By that act, he had exceeded his right by leaps and bounds. One of the controlling principles of right of private defence is that more harm than what is necessary shall not be inflicted. But he beat the deceased on the crown of his head with a heavy object (handle of a spade) and smashed his skull bone. By that act, he had exceeded his right by leaps and bounds. One of the controlling principles of right of private defence is that more harm than what is necessary shall not be inflicted. In a similar case, division bench of Madras High Court (Public Prosecutor v. S. Pannadi, AIR 1960 Madras 240) found that attacking a man by inflicting fatal blows (who was trying to destroy a sluice to prevent diversion of water-course), the assailant had exceeded right of private defence. 14. In the result, we alter appellant's conviction to S.304 Part I of the Indian Penal Code. In the circumstances of this case, we think that a sentence of rigorous imprisonment for 8 years is necessary to meet the ends of justice. Accordingly, we sentence him to rigorous imprisonment for 8 years for the offence under S.304 Part I of the Code. Appeal is disposed of accordingly. We place on record our appreciation to Smt. N. Santha, Advocate (Appointed on state brief) for arguing the case well.