JUDGMENT 1. - Accused appellant Prakash Singh has been convicted by the learned Sessions Judge, Jhunjhunu, under the judgment dated 31.5.1990, for offences under sections 447, 302 IPC. He has also been convicted under section 324/34 IPC for having caused simple injury by sharp edged weapon to Ramu (P.W. 5). Accused appellant Satidan Singh has been convicted u/ Sections 447 and 302/34 IPC and Section 324/34 IPC. Each of the accused has been sentenced to undergo one months R.I. under section 447 IPC; imprisonment for life u /Sec. 302 and 302/34IPC and to pay a fine of Rs. 500/- or in default to further undergo R.I. for six months. Prakash Singh has been sentenced to undergo one years R.I. under section 324/34 IPC and Satidan Singh has also been sentenced under section 324/IPC to undergo R.I. for one year. The substantive sentences were ordered to run concurrently. 2. The occurrence is said to have taken place in Sepra Guwar, Police Station Khetri, District Jhunjhunu on 28.12.1987. The case of the prosecution is that Smt. Bhuri wife of Narain (P.W. 2) lodged a report at Police Station Khetri to the effect that she and her son Harsaram were at their house. According to P.W. 2 Bhuri, in the village she had her ancestral Baru (enclosure) and she was in physical possession of the same since the times of her ancestors. The two accused appellants Prakash Singh and Satidan Singh along with Smt. Durgi daughter of Man Singh and Sohan Singh wanted to dispossess her from that Baru and at about 5 p.m. on 28.12.1987, the two accused appellants named above along with two other persons, armed with weapons came to the Bara and wanted to dispossess her. Durgi is said to be armed with a Katara (Supti), Sohan is alleged to be armed with a lathe, Satidan Singh with a Kulhara and Prakash Singh with a Bankara. It is said that first of all when the accused persons started taking away the sticks which belonged to her and which were lying in the Baru, Ramu (P.W. 5) intervened. He was given beating by the accused persons. When Harsaram (deceased) her son came to intervene and to save Ramu, the accused persons caused injuries to him also. The report of the incident was lodged by P.W. 2 Bhuri at Police Station Khetri where a case was registered for offences u /Secs. He was given beating by the accused persons. When Harsaram (deceased) her son came to intervene and to save Ramu, the accused persons caused injuries to him also. The report of the incident was lodged by P.W. 2 Bhuri at Police Station Khetri where a case was registered for offences u /Secs. 302, 324, 447and 323 IPC. Harsaram died as a result of the injuries and his post mortem examination was conducted by Dr. Vidyadhar (P.W. 9) and on examination of external injuries, the doctor found that the deceased had the following injuries : (i) One stab wound on left side of chest between 5th and 6th inter costal space, size 11/2" X 1/2" X 4" deep. (ii) Stab wound of 2" 1/2" X scalp skin deep on occipital (back) part of head; (iii) Stab wound of 11/2" X1/2" X 1/2" deep on left forearm dorsal view upper ⅓rd. On opening the sclap, it was found that there was one stab wound of 2"X 1/2Xscalp deep on back part (occipital) of head. On opening thorax, the doctor found one stab wound on left side of chest wall between 5th and 6th intercostal space with clean cut and inverted edges. It was also found by the doctor that left lung was penetrated and punctured. In the opinion of the doctor, the cause of death was shock due to injuries to vital organ (Lung left) and haemorrage (blood loss). Ramu, as said earlier, had also received injuries and his injuries were examined by Dr. Navin Chand who found that Ramu has sustained as many as seven injuries, as mentioned in Ex. P. 13. It will be seen from a perusal of the injury report Ex. P. 13 that three injuries were incised wounds and others were swelling, bruises etc. The incised wound was caused by sharp edged weapon and other injuries by blunt weapon. Dr. Navin Chand had gone abroad and was therefore not available for recording his statement but the aforesaid injury report Ex. P. 13 has been proved by Dr. Vidhyadhar P.W. 9 was conversant with the handwriting and signatures of Dr. Navin Chand and had also worked with Dr. Navin Chand who too was posted in the Govt. Hospital, Khetri. 3. The accused persons were arrested. P. 13 has been proved by Dr. Vidhyadhar P.W. 9 was conversant with the handwriting and signatures of Dr. Navin Chand and had also worked with Dr. Navin Chand who too was posted in the Govt. Hospital, Khetri. 3. The accused persons were arrested. two accused persons Sohan and Durgi being below 16 years of age, challan against them had been filed in the Court of Children Court, Sikar where the trial is said to be pending. The two accused appellants Prakash Singh and Satidan Singh were .tried by the learned Sessions Judge, Jhunjhunu. The accused appellants were examined under section 313 Cr.P.C. The case set up by the accused appellants was that they were in possession of the Bara on which Smt. Bhuri claims to be in possession and it was Bhuri, Ramu and others who had made an attempt on the day of the occurrence to dispossess them and to enter the possession of the Bara. It was further their case that Harsaram, Bhuri and Ramu were armed with weapons and they had caused injuries to Satidan Singh accused appellant. The injury report of Satidan has been exhibited as Ex.D. 7. 4. The learned Sessions Judge placing reliance on the case of the prosecution, convicted and sentenced the accused appellants as aforesaid. 5. In assailing the judgment of the learned Sessions Judge, learned Counsel for the appellants has contended that no offence is made out against any of the accused appellants because the injuries, if any, were caused by them to the deceased Harsaram and Ramu in the exercise of their right of private defence of property and person. It was further contended by the learned Counsel for the appellants that it was the accused party who was in possession of the Bara and Smt. Bhuri and others had tried to dispossess them and injuries were also caused to one of the accused appellants i.e. Satidan Singh. He further contends that the prosecution has come out with a different story in the F.I.R. and a different story has been setup in the evidence of the witnesses inasmuch as it was not even stated in the F.I.R. which was first in time and is an important document, that the accused appellant Prakash Singh had snatched or had taken the Guprti from the hands of Durgi and then stabbed Harsaram. He contends that no reliance can be placed on the evidence of such witness. A perusal of the post mortem report containing the injuries sustained by Harsaram, shows that they had been caused by the same weapon and therefore, the case of the prosecution that Satidan Singh appellant had caused injuries by an axe on the head of the deceased, is belied by the medical evidence and participation of Satidan Singh in the commission of offence, so far as the alleged beating to Harsaram is concerned, is not proved. According to the learned Counsel, even as per the case of the prosecution, Harsaram was only an intervener and the occurrence is said to have taken place when even as per the case of the prosecution, an attempt was made by the accused persons to enter into possession of the Bara. First the injuries are said to be caused to Ramu and when the deceased intervened, the injuries are said to have been caused to him. Learned Counsel for the appellants therefore contends that in the facts and circumstances of the case, it cannot be said that there was any common intention and the injuries caused by accused Satidan, if at all, were caused, was the common intention of himself, Prakash Singh and others. Learned Counsel lastly contends that even if this Court ultimately holds that Prakash Singh is responsible for having caused the fatal injury to the deceased, the case does not travel beyond Section 304-Part II IPC because the prosecution has failed to prove that the injuries which are said to have been caused by Prakash Singh to deceased, were intended to cause death. According to the learned Counsel, to make a case under section 302 IPC, it is not only necessary that an injury must have been sufficient in the ordinary course to nature to cause death but the accused must have intended to cause injury which he actually knows is sufficient in the ordinary course of nature to cause death of the injured. Learned Additional Public Prosecutor has supported the judgment of the trial Court. 6. The first question is as to whether the finding recorded by the trial Court that Bhuri and Harsaram were in possession of the Baru, calls for any interference. Learned Additional Public Prosecutor has supported the judgment of the trial Court. 6. The first question is as to whether the finding recorded by the trial Court that Bhuri and Harsaram were in possession of the Baru, calls for any interference. In a criminal case, it is not necessary to give title of the immovable property and the Court is only required to see as to which of the parties was in physical possession on the date of the occurrence. The prosecution came out with the case that Bhuri was in prossession of the Bartz from the times of her ancestors. On behalf of the defence, no witness was examined and a perusal of the statements of Bhuri (P.W. 2), Jadavali (P.W. 3), Malaram (P.W. 4) who is husband of P.W. 3, Ramu (P.W. 5) and Mala (P.W. 6) would show that each of them have stated that on the day of the occurrence and even prior to the said date, it was Bhuri who was in physical possession of the Rara, though an attempt was made during the course of cross-examination of this witness to say that the land had been purchased by the accused persons from Mala Kumar but the accused party could not succeed to prove either the s?id purchase or their possession. Even the Patta, (Ex.D. 9) which is only a photo star copy and not the original, has not been proved. Therefore, there can be no dispute and the learned trial Court has rightly concluded that it was Bhuri who was in possession of the Bara since long and definitely on the day of the occurrence. 7. Coming to the next contention of the learned Counsel for the appellants that the injuries, if any, were caused in the exercise of right of private defence of property and person, of accused appellant Satidan. It is well settled that the right of private defence is only a weapon of defence and not a weapon of offence. We have already held above and are in agreement with the trial Court that it was Bhuri who was in possession of the Bara on the day of the incident and even much prior to it. Therefore, if the accused persons went armed to the Bara, may be to dispossess Bhuri from it, then, it cannot be said that they had any right of private defence of property or person. Therefore, if the accused persons went armed to the Bara, may be to dispossess Bhuri from it, then, it cannot be said that they had any right of private defence of property or person. The accused had taken law into their own hands in making an attempt to dispossess Bhuri from the enclosure and it was Bhuri who had right of possession of the Bara in dispute and there was no right of private defence available to the accused appellants, of person or property and therefore, even assuming, though not accepting, that the injuries received by Satidan were received in the same occurrence, it cannot be said that the accused appellant Pratap Singh had any right of private defence of person and that it was in exercise of that right of private defence that the injuries were caused. We have already said that the case of the prosecution rests on the testimony of the abovenamed witnesses. Bhuri is an illiterate village woman and it will be seen that she has only put her thumb mark on the F.I.R. (Ex. P. 1). Ex. P. I was scribed by P.W. I Tataram who has said that when he came to his village he heard that four persons had caused death of Harsa Ram. He went to the house of Harsaram, whose dead body was lying in the house. The dead body had been brought there from the Baru of Harsaram. At the instance of Bhuri; mother of Harsaram, he went to the Police Station Khetri, along with the Sarpanchand Ramu. He lodged the report as told to him by Bhuri. It will be seen by a perusal of the FIR (Ex. P. 1) that the names of both the accused appellants along with two others have been mentioned therein and so faras the participation of both the accused appellants is concerned, their names are mentioned in it. So, no doubt, in the FIR (Ex. P. 1) it has been stated that Satidan Singh accused appellant had given a blow by Kulhadaon the head of Ramu and when her elder son Harsaram came for his rescue, Prakash Singh appellant who was armed with a Bakra, caused injuries to him and then Durgi gave a blow by Katari. It was not mentioned therein that it was accused Prakash Singh who had taken the Kuihada or Gupti from Durgi and then stabbed the deceased Harsaram. It was not mentioned therein that it was accused Prakash Singh who had taken the Kuihada or Gupti from Durgi and then stabbed the deceased Harsaram. Smt. Bhuri was confronted with this omission in the FIR but she could not explain the conflict. In her statement before the Court, she stated that the accused Satidan had given a blow on the head of Harsaram by an axe Durgi gave a blow by axe and then accused Prakash Singh had taken or snatched the Gupti from Durgi and had stabbed her son Harsaram in the left side over chest. Despite this omission that it was not mentioned in the FIR that the accused appellant Prakash Singh had taken the Gupti from Durgi and had caused injuries to Harsaram, taking into consideration that Bhuri was an old lady, a village illiterate lady, it will not attract much importance to this omission, more so when the statements of the other eye witnesses, including the statement of Bhuri, u/ Section 161 Cr.P.C. were recorded on the same day and the other eye witnesses who have been examined in the Court have stated that the accused appellant had taken the Gupti from Durgi and then stabbed Harsaram. The trial Court was correct in concluding that it was the accused appellant Prakash Singh who had caused injury to Harsaram by a sharp edged weapon/instrument. 8. But so far as the. case of the appellant Satidan is concerned, it has been stated by all the witnesses produced on behalf of the prosecution, who have been named above that he was armed with an axe and inflicted injury to Ramu on his head. It will be seen from the post mortom report as well as from the external injuries found on the person of the deceased as have been extracted in the earlier part of this judgment, that all the injuries are stab wounds. Dr. Vidyadhar (Ex. P. 9) has admitted injuries on the person of the deceased and has said in cross-examination that all the injuries could have been caused by a Gupti which was shown to him in the Court. He has made a categorical statement that an axe (Article 3) which too was shown to him, could not have caused any of the injuries. P. 9) has admitted injuries on the person of the deceased and has said in cross-examination that all the injuries could have been caused by a Gupti which was shown to him in the Court. He has made a categorical statement that an axe (Article 3) which too was shown to him, could not have caused any of the injuries. Apart from the statement, we are of the opinion that a weapon like an axe cannot cause a stab injury and for causing a stab injury, the weapon should be a penetrating weapon. Therefore, in view of the conflict in the ocular testimony and the medical evidence it becomes highly doubtful if the accused appellant Satidan caused any injury to the deceased. That apart, a look at the FIR (Ex. P. 1) would show that it is not mentioned therein that Satidan had caused any injury to the deceased. A further look at Ex. P. 1 will show that it has only been stated therein that Satidan had caused injury by an axe on the head of Ramu and if this omission in the FIR is read in the background of the conflict in ocular and medical evidence it all the more becomes doubtful that accused appellant Satidan caused any injury to the deceased and therefore the participation of Satidan in causing injuries to the deceased in not proved beyond doubt. It will be seen that the three injuries which were found on the person of the deceased Harsaram, are all stab wounds and the width of each of the injuries is 11/2" and that also goes to show that all the three injuries could possibly be caused by one weapon and not by two weapons and the weapon was only one by which all the three injuries were caused to the deceased and therefore also, the participation of accused appellant Satidan in the occurrence, and causing injuries to the deceased is not proved. 9. The question therefore is whether beating to Ramu and beating to Harsaram was caused in furtherance of the common intention of the two accused appellants. There is no material on record as to what is the distance of the houses of both the parties but it is common knowledge, that in villages, the houses are not very far off. 9. The question therefore is whether beating to Ramu and beating to Harsaram was caused in furtherance of the common intention of the two accused appellants. There is no material on record as to what is the distance of the houses of both the parties but it is common knowledge, that in villages, the houses are not very far off. The occurrence even as per the case of the prosecution had taken place on the question of possession of the Bara and as per the prosecution case the accused persons wanted to dispossess Bhuri P.W. 2. The possibility is therefore that the common intention might have been to use immediate force to achieve their object of dispossessing Bhuri. It can therefore not be possibly said that the common intention of the accused persons was to go to the extent of causing death of Ramu or the deceased, to achieve their object of dispossessing Bhuri and the common intention could at best be said to cause injury by sharp edged weapon. Therefore, so far as Satidan is concerned, he cannot be held responsible and we are of the opinion that no case of common intention is made out in the facts and circumstances of the case, when the occurrence took place all of a sudden on the dispute of alleged possession of Bara. 10. But so far as Satidan is concerned, he has also caused injuries to P.W. 5 and it has come on record that Satidan had caused injury to Ramu by an axe, may be one or more than one. Dr. Vidhyadhar (P.W. 9) has been examined. He has proved the injuries, though he has not seen the injuries because Dr. Navin Chand had gone abroad. It will be seen that three injuries were caused by sharp edged weapon - incised wounds, and therefore, it can be said that the accused appellant Satidan is liable for causing injuries by sharp edged weapon to P.W. 5 Ramu and therefore, he is liable under section 324 IPC for having caused simple injuries by sharp edged weapon to P.W. 5 Ramu. 11. The question is that what offence is made out against accused Prakash Singh whether it is offence under section 302 or 304 IPC and if so, whether under Part-I or II of Section 304 IPC. 11. The question is that what offence is made out against accused Prakash Singh whether it is offence under section 302 or 304 IPC and if so, whether under Part-I or II of Section 304 IPC. We have already extracted the injuries of Harsaram in the earlier part of this judgment and at the cost of repetition, we may say that the injuries were three in number and as per the case of the prosecution and the evidence of the witnesses the accused appellant Prakash Singh is said to have caused the injury on left side of the chest. In other words, injury No.1 which has been quoted above, is attributed to the appellant Prakash Singh. For the remaining injuries which are two, though we have said that they appear to be caused by the same weapon, but in the absence of the evidence of any of the witnesses as none of them said that the accused Prakash Si ngh caused more than one injury, it is not possible for us to holds that the other injuries were also caused by Prakash Singh. Therefore, on the basis of evidence, it can said that the accused appellant Prakash Singh caused injury No. 1, stab wound on left side of chest between 5th and 6th intercostal space size 11/2 X 1/2 deep and the result of this injury, was that it punctured the lung. The injury was penetrated and in the opinion of the doctor, the cause of death was shock due to injuries to vital organ (lung left) and haemorrhage. 12. It was further contended by the learned Counsel of the appellants that in the facts and circumstances of the case, the accused cannot be convicted under section 302 IPC. He further contends that to bring a case within Section 300(3) IPC, the act must have been done with the intention of causing bodily injury to such person and the bodily injury intended to be inflicted must be sufficient in ordinary course of nature to cause death. He further contends that to bring a case within Section 300(3) IPC, the act must have been done with the intention of causing bodily injury to such person and the bodily injury intended to be inflicted must be sufficient in ordinary course of nature to cause death. In Jagrup Singh v. State of Haryana ( AIR 1981 SC 1552 ) , their lordships of the Apex Court held that to bring a case under Section 300(3) the following conditions are to be satisfied i.e. (i) that the act by which the death is caused is done with the intention of causing death, and (ii) the injury intended to be caused is sufficient in the ordinary course of nature to cause death. The Apex Court has said that it must be proved that there was intention to inflict injury which in the ordinary course of nature is sufficient to cause death. It must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death viz., that the injury found to be present as the injury that was intended to be inflicted. In the instant case, the evidence has already been dealt with in the earlier part of this judgment and it can be said that it was accused Drugi who is said to have been armed with a Gupti and it is she who first caused injury but the appellant Prakash Singh is said to have snatched or taken the Gupti from her and she being a lady, could not resist, and Prakash Singh caused injury on the left side of the chest of the deceased. It can hardly be disputed that if one uses a weapon like Gupti with all force and cause a 4" deep wound on the vital part, ruptures the lung which was the cause of death, such person does an act with the intention of causing bodily injury and as per the opinion of the doctor, bodily injury was sufficient in the ordinary course of nature to cause death. 13. Consequently, we allow this appeal in part. So far as the appeal of the accused Satidan Singh is concerned, his conviction u /Sec. 302 / 34 IPC is set aside. His conviction under sections 447 and 324 IPC is maintained. He has already under gone the sentence. 13. Consequently, we allow this appeal in part. So far as the appeal of the accused Satidan Singh is concerned, his conviction u /Sec. 302 / 34 IPC is set aside. His conviction under sections 447 and 324 IPC is maintained. He has already under gone the sentence. We will therefore order that he will be released on the sentence already under gone. He is on bail and need not surrender to his bail bonds.The conviction of Prakash Singh under section 324/34 IPC is set aside and his conviction and sentence u /Secs. 302 and 447IPC is maintained. AUGUST8 Appeal partly allowed. *******