H. C. MITAL, J. ( 1 ) OF the above named appellants Satishpal, Vir Mahendra, Ramphal and Sri Pal are sons of appellant Shyam Singh. Gajendra is grand son of Shyam Singh. Appellant Babu Ram is son of appellant Ranvir. All these appellants have been convicted and sentenced under S. 302 and 307 read with S. 149, I. P. C. to life imprisonment and four years rigorous imprisonment each. Among these appellants Shyam Singh, Satishpal, Ramphal and Gajendra have further been convicted under S. 147, I. P. C. and sentenced to one year rigorous imprisonment while appellants Ranvir, Vir Mahendra, Sripal and Babu Ram have been convicted and sentenced under S. 148, I. P. C. to two years rigorous imprisonment each by Sri D. L. Soni, the then Special Sessions Judge, Ghaziabad on 10-6-1983. ( 2 ) THE prosecution case in brief is that on 22-2-81 at about 12 in the noon when Lal Singh deceased along with his son Dilip Singh and First informant Satendra were working in their sugar-cane field and Maharajsingh was ploughing his field near by all these appellants armed with Lathis, spears, Tabal and Knife reached there and started attacking Lal Singh and Maharaj Singh with their weapons and when Satendra also intervened he was also attacked, as a result of the attack all the three received several injuries and immediately there after at 1. 00 P. M. written report was tendered at P. S. Modinagar at a distance of 4 K. Ms. , on the basis of which a case under Ss. 147, 148, 323 and 324, I. P. C. was registered and the injured were sent to the Hospital at Ghaziabad where Dr. K. K. Karoli (P. W. 5) examined and noted the following injuries on their persons. Injuries of Maharaj Singh. 1. Incised wound with clean cut margins on the left ear. There was bleeding and the left ear had been cut through and through. 2. Incised wound with clean cut margins, bleeding, on the back of the left ear 2 cm x 1 cm. 3. Incised wound with clean cut margins, bleeding, on the left side of the head 3 inches above the left ear 4 cm x scalp deep. 4. Abrasion 4 cm x 1 cm. on the right side of chest, 4 inches below the nipple. 5. 3. Incised wound with clean cut margins, bleeding, on the left side of the head 3 inches above the left ear 4 cm x scalp deep. 4. Abrasion 4 cm x 1 cm. on the right side of chest, 4 inches below the nipple. 5. Contusion 8 cm x 2 cm on the right thigh front and middle side. 6. Incised wound with clean cut margins on the left leg front and middle portion 2 cm x 1 cm. x muscle deep, bleeding. 7. Multiple contusion marks on the entire hip region. 8. Swelling on 1/3 upper part of left leg, X-ray advised. Injuries on the person of a Lal Singh1. Traumatic swelling on the entire right ear, with bleeding due to internal injury to the head. 2. Traumatic swelling on the entire left ear with bleeding due to internal injury to the head. 3. Incised wound with clean cut margins on the left ear lobe, 2 cm. x 2 cm. bleeding. 4. Incised wound with clean margins on the left side of neck, 1 cm. x 1/2 cm. bleeding. 5. Incised wound with clean margins on the back portion of left ear, bleeding. 6. Multiple abraded contusion marks on the top of the head. Advised X-ray on the entire head. 7. Multiple contusion marks on the right side of hip, upper portion. On the person of Satendra Pal Singh. 1. Traumatic swelling on the head 2 cm. x scalp deep, 3 inches above the base of the nose on left side, with bleeding. 2. Traumatic swelling on the left side of shoulder. 3. Lacerated wound on the left hand with clean cut margins, 4 cm. x 4 cms. on the basis of thumb, bleeding. 4. Traumatic swelling on the back side of the left hand, X-ray advised. 5. Abrasion 4 cm. x 1 cm. on the right fore-arm, outer portion. ( 3 ) CONDITION of Lal Singh was more serious hence he was taken to the All India Medical Institute of Sciences, Delhi and there he expired on 26-2-1981 at 8. 55 a. m. on account of the injuries. The case was subsequently converted under Ss. 302 and 307 instead of 323 and 324, I. P. C. ( 4 ) INVESTIGATION of the case was conducted by P. W. 7 Inspector R. P. Sharma, Appellant Ranvir had himself gone to lodge report at 1. 55 a. m. on account of the injuries. The case was subsequently converted under Ss. 302 and 307 instead of 323 and 324, I. P. C. ( 4 ) INVESTIGATION of the case was conducted by P. W. 7 Inspector R. P. Sharma, Appellant Ranvir had himself gone to lodge report at 1. 30 p. m. at the police station and there he was apprehended and his report under S. 323, I. P. C. for non-cognizable offence was written against Maharaj Singh, Lal Singh, Satendra and Suresh for causing him injuries with lathis, spears and fists. After completion of the investigation accused were tried and at the trial to prove its case prosecution in all examined seven witnesses, of whom P. W. 1 Satendrapal, P. W. 2 Maharaj Singh and P. W. 3 Jagat Singh are the eye-witnesses of the occurrence and they corroborated the prosecution story stated above. ( 5 ) P. W. 5 Dr. K. K. Karoli had examined the injured Maharaj Singh, Lal Singh and Satendra and had proved the injury reports (Exs. Ka-4, Ka-5 and Ka-6) detailed as above. P. W. 4 Dr. Gyanendra Kumar had X-rayed the injuries of Maharaj Singh and Lal Singh and had proved the X-ray reports. P. W. 6 Head Constable Tejvir Singh had recorded the F. I. R. and registered the case in the G. D. on the basis of the written report submitted by Satendra and had also taken down the report of the appellant Ranvir under S. 323, I. P. C. against the prosecution witnesses. Lastly, P. W. 7 Sub-Inspector R. P. Sharma has deposed about the various steps taken by him during the course of investigation. On the other hand, the defence version taken during the trial is that Maharaj Singh while ploughing his field had also ploughed a portion of the field of Ranvir Singh and when he protested, he was beaten, as a result of which he had received injuries about which he had lodged F. I. R. at 1. 30 p. m. under S. 323, I. P. C. ; that he had himself wielded his Lathi and other witnesses had also come who had saved him. Thus, the defence case is that P. W. 2 Maharaj Singh had trespassed over the land of Ranvir Singh and thereafter the Marpit had taken place. 30 p. m. under S. 323, I. P. C. ; that he had himself wielded his Lathi and other witnesses had also come who had saved him. Thus, the defence case is that P. W. 2 Maharaj Singh had trespassed over the land of Ranvir Singh and thereafter the Marpit had taken place. That apart, appellants Rmaphal, Babu Ram and Vir Mahendra took the plea of alibi that they were present elsewhere and were not present at the scene of occurrence. ( 6 ) IN defence four witnesses were examined. D. W. 1 Dr. T. H. Chaudhari had examined the injuries of Ranvir Singh on 24-2-81 at 4. 50 p. m. at Modinagar and noted the following injuries on his person. 1. Two contusions reddish brownish on the left from back, outer and lower part measuring from 1. 4 cm. x 0. 5 cm. to 2. 6 cm. x 0. 7 cm. one of them at outer part C little epidermis of stain in the vertical of left side of abnormal. 2. A linear crusted abrasion of 1 cm. on the outer part of left fore-arm lower part. 3. A semi healed wound of 2. 8 cm. x 0. 25 cm. x 0. 15 cm. deep on the right side of head 6 cm. above the right eye brow, the wounds seems more to be incised wound, tailing, (crusted little) present at anterior side, bleeding not present. 4. Sub conjuctival haemorrhage of 1. 6 cm. X 0. 9 cm. with left eye only reddish brownish. ( 7 ) D. W. 2 Dr. Ratan Singh, Soil Specialist in Research Centre at Srinagar (Garhwal) was examined to prove the plea of alibi of appellant Ramphal. ( 8 ) D. W. 3 Ishwar Singh was examined to prove the plea of alibi of Babu Ram and D. W. 4 Ramvir Singh proved the alibi of appellant Vir Mahendra Singh. ( 9 ) LEARNED Sessions Judge rejected the defence version regarding the absence of three of the appellants, disbelieving the evidence of alibi and also the plea of self-defence of their property and the injuries received by Ranvir Singh in that Marpit and believed the prosecution evidence, hence convicted and sentenced the appellants as stated above. ( 9 ) LEARNED Sessions Judge rejected the defence version regarding the absence of three of the appellants, disbelieving the evidence of alibi and also the plea of self-defence of their property and the injuries received by Ranvir Singh in that Marpit and believed the prosecution evidence, hence convicted and sentenced the appellants as stated above. ( 10 ) ON being aggrieved, this appeal has been preferred and on their behalf learned counsel urged that the prosecution evidence on record was not worthy of credence and wholly insufficient to bring home guilt to the appellants and that apart, their evidence in defence was reliable and, therefore, the conviction of the appellants was liable to be quashed. ( 11 ) THE fact that the occurrence had taken place in between 11. 30 and 12 noon between the field of P. W. 2 Maharaj Singh and appellant Ranvir Singh and blood was recovered by the Investigating Officer from inside the wheat field of Ranvir Singh has not been denied on behalf of the defence and the same stands fully proved. Presence of P. W. 1 Satendra, P. W. 2 Maharaj Singh and Ranvir Singh-appellant all injured besides Lal Singh- deceased at the time of occurrence also cannot be doubted. The main point which arises for consideration is, how the incident had taken place. ( 12 ) BEFORE dealing with the evidence as to how the incident had taken place, it is necessary to consider the prosecution evidence regarding the cause of enmity in between the parties. In the F. I. R. no mention has been made regarding any previous enmity between the parties. In his statement P. W. 2 Maharaj Singh, brother of the deceased Lal Singh, has deposed that there has been enmity with the accused of the case since 1974-75 when the mend of his brother Baljeet Singh was demolished about which a case was filed but it was subsequently compromised. He further stated that a litigation regarding a well also took place in between himself and Ranvir Singh, Shyam Singh, Babu Ram and Niranjan, which was still pending and he had himself instituted it in the Civil Court in the year 1980. He further stated that a litigation regarding a well also took place in between himself and Ranvir Singh, Shyam Singh, Babu Ram and Niranjan, which was still pending and he had himself instituted it in the Civil Court in the year 1980. He further stated that on 27-1-80 Ranvir Singh, Babu Ram and others had fired at him and his son Rishipal and his son was injured with a spear about which he lodged a report which case was also pending. In his cross-examination he admitted not to have made any such statement to the Investigating Officer and denied that any litigation between Shyam Singh and Baljeet Singh had taken place. Regarding the well he stated that it was in the village abadi and it was covered with bricks and stones for the last two years. It is situated within the Gher of accused Ranvir Singh who had closed that well. Regarding the incident dated 27-1-80 Shyam Singh and his sons were not involved. He denied that on 27-1-80 he had demolished the wall of the Gher of Ranvir Singh and along with Jagat Singh he had assaulted Ranvir Singh and his daughter Bala, but admitted that it was true that against one incident a case was pending against him, Jagat Singh and his sons but he expressed ignorance that Shyam Singh was one of the witnesses of that case. Thus it is evident that the relations between the parties were strained. ( 13 ) THAT apart, in his cross-examination Maharaj Singh P. W. 2 has further admitted that he had filed a case regarding dol Bandi in between his chak and that of Ranvir Singh, which is situated in the south of his chak. He has further admited that in that case Qanungo had come on the spot and and demarcated plots but he further asserted that demarcation done by the Qanungo was wrong. He however, denied that the demarcation was subsequently confirmed by the Sub-Divisional Magistrate and also denied that he had demolished the dol in between the Chaks. He further admitted that he had filed a revision against the order of the Sub-Divisional Magistrate and that on the spot when his evidence was recorded there was no mend" in between the plots. ( 14 ) BEFORE discussing the evidence regarding the incident. The cases of both parties may, however, be stated in brief. He further admitted that he had filed a revision against the order of the Sub-Divisional Magistrate and that on the spot when his evidence was recorded there was no mend" in between the plots. ( 14 ) BEFORE discussing the evidence regarding the incident. The cases of both parties may, however, be stated in brief. According to the prosecution, as stated in the F. I. R. on that day at 12 in the noon all these appellants arrived armed with lathis, spear, Tabal and knives and started attacking Lal Singh and Maharaj Singh with their weapons when they were in the field of Lal Singh while Maharaj Singh was ploughing his field near by and when Satendra, the first informant, intervened, he was also attacked. From the side of the accused-appellants a report about this incident was also lodged by Ranvir Singh on the same day wherein it was stated that when he was at his tube-well Maharaj Singh, Lal Singh, Satendra and Suresh arrived there armed with lathis and Ballams and assaulted him. On hearing his alarm the witnesses arrived and they intervened. ( 15 ) NOW coming to the prosecution evidence, P. W. 2 Maharaj Singh has stated that at the time of the incident in the plot of Ranvir Singh there was wheat crop but his adjoining plot was vacant which he was ploughing. He further admitted that there was a water channel in the south-east of his field and in the north-east of the plot of Ranvir Singh but denied that he had demolished it at the time of the incident. However, he admitted that water through that water channel goes to the field of Ranvir Singh as well as to the field of other persons. ( 16 ) HE has further stated that on that date at 12 in the noon he was ploughing his field. His brother Lal Singh the deceased, along with his sons Narendra and Satendra in their chak were cutting the sugar-cane. All the 8 appellants arrived in his plot. Ranvir Sigh and Veer Mahendra were armed with Ballams, Shripal with a Tabal, Babu Ram with a knife and the reminaing four namely Shyam Singh, Satishpal, Ram Pal and Gajendra were armed with lathis and they started assaulting him with their weapons saying that aaj sale ko maja chakha do. All the 8 appellants arrived in his plot. Ranvir Sigh and Veer Mahendra were armed with Ballams, Shripal with a Tabal, Babu Ram with a knife and the reminaing four namely Shyam Singh, Satishpal, Ram Pal and Gajendra were armed with lathis and they started assaulting him with their weapons saying that aaj sale ko maja chakha do. He has further stated that he was first attacked by the ballam and thereafter when he raised alarm and tried to run then he was attacked with a Tabal and all the appellants started attacking him and when his brother Lal Singh and nephew came running on hearing his cries they were also attacked and Narendra on seeing the Marpit escaped while Satendra and Lal Singh received injuries. In his cross-examination he stated that he saw the appellants when they were at a distance of 14. 15 yards from him and from that distance all the appellants said Mukadmebaji ka maja Chaka do. That on seeing the appellants and hearing their challenge, he ran towards north but hardly he had covered 2. 3 paces the appellants had started attacking him. He further stated that to the Investigating Officer he had told about the weapons which each of the appellants was having but he could not say why it had not been written in his statement under S. 161, Cr. P. C. He further stated that he was attacked for 2-3 minutes and where he was attacked blood had fallen down and that portion of the land was not ploughed and that first Lal Singh and then his sons arrived and the appellants attacked them in the field of Lal Singh. ( 17 ) P. W. 1 Satendra Pal Singh is the first informant and he had also received the injuries. His statement is that he and his brother Narendra and father Lal Singh were in their sugar-cane field and were working there while his uncle Maharaj Singh was ploughing his field and all the 8 appellants arrived where his uncle was ploughing the field. That four of them, namely Shyam Singh, Satish Pal, Gajendra and Rampal were armed with Lathis, Veer Mahendra and Ranvir Sigh with Ballams, Shripal with Tabal and Babu Ram with a knife and Satish Pal immediately started assaulting his uncle. That four of them, namely Shyam Singh, Satish Pal, Gajendra and Rampal were armed with Lathis, Veer Mahendra and Ranvir Sigh with Ballams, Shripal with Tabal and Babu Ram with a knife and Satish Pal immediately started assaulting his uncle. On hearing the cries of Maharaj Singh, his father Lal Singh went there and when his father was also attacked, then he and his brother Narendra went there. The appellants then attacked him also while his brother Narendra escaped. In his cross-examination he admitted that consolidation had taken place in the village about 12 years back. That his father and brother had separate chaks and lived separately. He further admitted that Jagat Singh was his uncle. He denied that appellant Veer Mahendra was employed as Assistant Sales Officer at Mainpuri in an Agro Industry and that Ram Pal Singh was also posted in the chak of the appellant Ranvir Singh, which was to the south of the chak of Maharaj Singh and that at the time of the incident the Mend was in a broken shape in between the two chaks. He has further admitted that at the time of the incident his father and brother were in their chak at a distance of 150 yards from the chak of Ranvir Singh and Maharaj Singh was ploughing at a distance of 150 yards in his chak. He admitted that he did not mention specifically what weapon each accused carried. He further specifically admitted that the occurrence had taken place at a distance of 150 yards from his field. He further admitted that in his F. I. R. he had mentioned that the appellants had come in his chak which admittedly was wrong. He also stated the same thing in his statement under S. 161, Cr. P. C. and further stated that that statement was wrong as he was not in his proper senses but was very nervous. He further admitted that he did not tell the Investigating Officer that the appellants had attacked his uncle Maharaj Singh in his own field and when they reached to save him. They were also attacked. ( 18 ) FROM the above statements of the witnesses one thing is prima facie clear that the prosecution version as given in the F. I. R. is totally different than the evidence which was given by the witnesses. They were also attacked. ( 18 ) FROM the above statements of the witnesses one thing is prima facie clear that the prosecution version as given in the F. I. R. is totally different than the evidence which was given by the witnesses. It also appears very improbable that all the witnesses would have reached immediately on hearing the alarm when they were at a distance of 150 yards from the scene of occurrence, particularly when it is said that first after 2 or 3 minutes Lal Singh on the cries of his brother Maharaj Singh went there and there after 3 or 4 minutes when Satendra heard cries of his father he reached there. However, in view of the presence of the injuries on the person of all the three, i. e. Lal Singh deceased, P. W. 1 Satendra and P. W. 2 Maharaj Singh, their presence at the time of occurrence cannot be denied and has to be accepted but it is clear that both the witnesses, namely P. W. 1 Satendra and P. W. 2 Maharaj Singh have concealed the true facts. ( 19 ) P. W. 3 is Jagat Singh who is also brother of Maharaj Singh P. W. 2 and Lal Singh deceased. He has stated that he was in his chak and from there on hearing the cries he had reached there but admitted that he was at a distance of 250-300 yards. In view of that admission his testimony can be safely ignored as he could not have seen the origin of the incident. Learned counsel for the defence did not press the defence version as contained in the report lodged by Ranvir Singh regarding the incident that when he was at his tube-well he was attacked by Maharaj Singh and others and then to save him other persons arrived, who then might have caused the injuries. It was however, urged that from the prosecution evidence it was apparent that Maharaj Singh had encroached upon the chak of Ranvir Singhwhile ploughing the field and at that time when Maharaj Singh did not desist from doing so in self defence of property Ranvir Singh and others caused injuries to Majaraj Singh, Lal Singh and Satendra. It was however, urged that from the prosecution evidence it was apparent that Maharaj Singh had encroached upon the chak of Ranvir Singhwhile ploughing the field and at that time when Maharaj Singh did not desist from doing so in self defence of property Ranvir Singh and others caused injuries to Majaraj Singh, Lal Singh and Satendra. In support of his contention the learned counsel pointed out the fact that according to the Investigating Officer P. W. 7, Sub-Inspector, R. P. Sharma when he had visited the scene of occurrence he did not find any dol or demarcation line in between the fields of Maharaj Singh and Ranvir Singh. He further specifically stated that southern portion of the field of Ranvir Singh was ploughed and not the northern portion, i. e. the portion adjoining the field of Ranvir Singh was ploughed while according to P. W. 2 Maharaj Singh he had started ploughing from the north side of his field and had not ploughed up to the field of Ranvir Singh. This part of the statement of P. W. 2 Maharaj Singh prima facie has been made to conceal the truth that he had started ploughing towards south and thereby he was encroaching upon the field of Ranvir Singh and so much so that the dol in between the two plots was also ploughed as it was not found at the time of the inspection by the Investigating Officer. Maharaj Singh P. W. 2 himself has admitted that there was a demarcation line in between the two chaks as demarcated by the Qanungo and he had filed a revision against the order of the sub-Divisional Magistrate about that demarcation which in his opinion was wrong. That further indicates that Maharaj Singh had a grouse against Ranvir Singh about the demarcation line and the fact that it was not in existence immediately after the scene of occurrence supports the contention of the learned counsel for the defence that in fact Maharaj Singh had encroached upon the field of Ranvir Singh and had ploughed the demarcation line while ploughing and there after Marpit had ensued. ( 20 ) THAT apart the Investigating Officer recovered the blood from inside the field of Ranvir Singh, which further supports the defence contention that Maharaj Singh had encroached upon the field of Ranvir Singh. ( 20 ) THAT apart the Investigating Officer recovered the blood from inside the field of Ranvir Singh, which further supports the defence contention that Maharaj Singh had encroached upon the field of Ranvir Singh. In that incident Ranvir Singh also appears to have received injuries though he lodged a false F. I. R. that he received the injuries at the tube-well. His injuries have been proved by D. W. 1 Dr. T. H. Chaudhary, who had examined him on 24-2-81 at 4. 00 p. m. and noted four injuries but in the opinion of the Doctor the injuries appear to have been caused on 22-2-81 in the noon. ( 21 ) UNDER the circumstances the appellants had every right to restrain Maharaj Singh from encroaching upon their field even by using force but as the injuries caused to Lal Singh resulted in his death after two days and only lathi injuries proved fatal, the appellants whose act resulted in the death would be held liable to have exceeded the right of self defence. ( 22 ) AMONG the appellants only Shyam Singh, Satish Pal, Rampal and Gajendra were armed with lathis. Of others who were not armed with lathis cannot be said to have exceeded the right of self defence. However, under S. 96, I. P. C. nothing is an offence which is done in the exercise of the right of private defence. Section 103 thereof reads as under. "the right of private defence of property extends, under the restriction mentioned in S. 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions herein after enumerated. . . . . . . " ( 23 ) IT is well settled that S. 34 of the Indian Penal Code does not create distinct offence : It only lays down the principle of joint criminal liability. The necessary conditions for the application of S. 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. The necessary conditions for the application of S. 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established, all the accused would be liable for the said offence; that is to say, if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder. In that situation S. 96 of the Code says that nothing is an offence which is done in the exercise of the right of private defence. Though all the accused were liable for committing the murder of a person by doing an act or acts in furtherance of the common intention, they would not be liable for the said act or acts done in furtherance of common intention, if they had the right of private defence to voluntarily cause death of that person. Common intention, therefore, has relevance only to the offence and not to the right of private defence. What would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of private defence. ( 24 ) IN the present case it has been held above that it cannot be said that the common intention of these appellants was to cause death of Lal Singh. They had acted in exercise of their right of private defence. Hence only that appellant or those appellants whose act resulted in the death of Lal Singh or who was or were responsible for causing the fatal injuries would be liable. ( 25 ) IN the present case in view of the finding that the accused-appellants acted in self defence of the property they cannot be members of an unlawful assembly. Moreover, as discussed above, it cannot be said that as to which of the appellant had inflicted the fatal blows on the head of Lal Singh. Neither of the prosecution witnesses has so specifically stated. All these appellants or either of them, therefore, cannot be held guilty even for exceeding the right of private defence of property and, therefore, they are all entitled to be acquitted. Neither of the prosecution witnesses has so specifically stated. All these appellants or either of them, therefore, cannot be held guilty even for exceeding the right of private defence of property and, therefore, they are all entitled to be acquitted. ( 26 ) IN view of the above it is not necessary to discuss the evidence regarding alibi adduced by two of the appellants, namely Rampal and Veer Mahendra. ( 27 ) THE conclusion, therefore is that the appeal is allowed. Conviction and sentence of the appellants under Ss. 302 and 307 read with Section 149, I. P. C. w/s. 148 and 147, I. P. C. are quashed. They are on bail. They need not surrender. Their bail bonds are concealed and sureties discharged. Appeal allowed. .