JUDGMENT 1. The three accused appellants Dayanand, Hukami Chand and Satveer have been convicted and sentenced by the learned Sessions Judge, Jhunjhunu under his judgement dated 20th May, 1992. Whereas the first two accused- appellants namely Dayanand and Hukami Chand have been convicted under section 447, 302 and 34 IPC, the accused-appellant Satveer has been convicted under section 302 and 147 IPC. Each of the accused-appellants under the first count has been sentenced to undergo two months rigorous imprisonment and to pay a fine of Rs. 100/- and in default of payment of fine to further suffer one month's simple imprisonment. So far as offence under section 302 and 302/34 IPC are concerned, each of the accused appellants has been sentenced to undergo imprisonment for life and to pay a fine or Rs. 200/- or in default of payment of fine to further suffer two months rigorous imprisonment. All the substantive sentences were ordered to tun concurrently. 2. Khasra No. 382 is situated in village Dhosi, Police Station Khetri District Jhunjhunu, rather it is the last Khasra Number so far as agriculture lands are concerned in the village and thereafter abadi of the village starts. It is the case of the prosecution that the land which the accused persons claim to be part of their `Bara' is in fact part of Khasra No. 382 and the accused persons wanted to plough it and to commit trespass over it. On 26th July 1986 Chajuram PW-1 was working in the fields of Khasra No. 382 when his brother Kanhiram was also working in the field. At about 7.00 a.m. on that day, the three accused appellants along with five other namely; Mehtab, Tarachand, Mukhtiyar, Shakuntala and Bimla are said to have come there armed with weapons. They in fact came to Khasra No. 382 and attacked Kanhiram. On alarm of Chajuram Shiram and Ram Pratap, PW-4 and PW-3 respectively are said to have come there. They intervened, but the accused persons did not pay any heed. Satveer, accused appellant is said to have taken out a Dagger and caused injuries with it to Kanhiram. When Chajuram made an attempt to save him, he was also given beating. The accused persons ran away thinking that Kanhiram has died. They intervened, but the accused persons did not pay any heed. Satveer, accused appellant is said to have taken out a Dagger and caused injuries with it to Kanhiram. When Chajuram made an attempt to save him, he was also given beating. The accused persons ran away thinking that Kanhiram has died. A report Ex.P. 1 was lodged in the police station Khetri on the same day at 12.35 p.m., the distance of the police station from the place of incident is 15 miles. A case was registered and investigation was set in motion. 3. Dr. Ram Avtar Yadav PW-8 conducted the autopsy on the dead-body of Kanhiram and he found that Kanhiram had the following injuries: "1. Stab wound 2 1/2cm x 1/2cm gaping, running in the cranial cavity on the top of head i.e. at the junction of frontal and sagital sut anteric posteriorly. 2. Stab wound 21/2cm x 1/2cm gaping running in the cranial cavity placed on fore-head 2cm above right eye brow (outer side) and placed above down. 3. Stab wound 21/2cm x 1/2cm x 2cm, 3" below and lateral of left nipple. 4. Stab wound 21/2cm x 1/2cm x 2 1/2cm on left shoulder blade. 5. Stab wound 21/2cm x 1/2cm x 2cm, 4% lateral to umbilicus. On opening of the cranium and spinal cord, the doctor found that there were injuries on skull bone, right frontal bone perforated in continuation of wound in scalp sagital suture opened and clearly cut beneath the lesion in scalp. Other damage was also done to the brain. In the opinion of the doctor the deceased died due to brain damage, interacranial hemorrhage leading to shock and death. All the injuries were antemortem in nature. All the injuries were by the same weapon and it was knife etc. Doctor has further said that injury No. 1 and 2 were individually sufficient in the ordinary course of nature to cause death. 4. Chajuram PW-1 was also examined by Dr. Navin Kumar vide injury report Ex.P.5 and he has two abrasions on left fore-arm and right knee cap. There was complaint of pain in lateral side of middle l/3rd of left leg, but there was no visible injury. The injuries were simple caused by blunt weapon. Raghuveer PW-5 was also examined and five injuries were found on his person: "1. Navin Kumar vide injury report Ex.P.5 and he has two abrasions on left fore-arm and right knee cap. There was complaint of pain in lateral side of middle l/3rd of left leg, but there was no visible injury. The injuries were simple caused by blunt weapon. Raghuveer PW-5 was also examined and five injuries were found on his person: "1. Lacerated wound 1/2cm x ⅓cm x ⅓cm with diffuse swelling around 1.5cm x 1cm, oblique on right side of upper lip, 1/2cm right to mid line. 2. Lacerated wound 3/4cm 1⅓cm x 1/4cm, oblique on inner side of right side of upper lip, just right to mid line. 3. Irregular abrasion in an area of 2.5cm x l/2cm with diffuse swelling around 4cm x 2cm on right inter scapular region, 2cm right to mid line. 4. Abrasion 1cm x ⅓cm on back of left shoulder. 5. Diffuse swelling 6cm x 3cm on front of lower ⅓rd of right thigh." All the injuries were caused by blunt weapon and were simple in nature. 5. The accused persons were also examined by Dr. Navin Kumar and on behalf of defence, a case of exercise of right of private defence of property as well as of person was pleaded and documentary evidence was filed. The injury report of Mukhtiyar Singh, Dayanand accused appellant, Satveer accused appellant, Tara Chand, Hukami Ram accused appellant and Mehtab were filed as Ex.D-6 to D-11. It will be seen from the perusal of Ex.D-6 that Mukhtiyar Singh had only one injury, l/2cm x l/2cm on medial side of lower ⅓ of left fore-arm. Dayanand accused appellant had as many as six injuries as under:- "1. Lacerated wound 4.5cm x 1/2cm x ⅓cm, oblique with diffuse swelling around 6cm x 1cm on right parietal region of scalp, 3cm right to mid line. 2. Bruise 12cm x 3cm, oblique on anterolateral side of middle ⅓ of right thigh. 3. Abrasion 1cm x 1/2cm with bruise around 2cm x 1cm on left supra clavicular region. 4. Abrasion ⅓cm x ⅓cm on back of distal phalanx of right ring finger. 5. Abrasion 1cm x ⅓cm, oblique on back of proximal phalanx of right thumb. 6. Diffuse swelling 6cm x 3cm on back of lateral ⅓ of left hand." 6. In the opinion of the doctor the duration of the injuries was approximate 18-36 hours. 4. Abrasion ⅓cm x ⅓cm on back of distal phalanx of right ring finger. 5. Abrasion 1cm x ⅓cm, oblique on back of proximal phalanx of right thumb. 6. Diffuse swelling 6cm x 3cm on back of lateral ⅓ of left hand." 6. In the opinion of the doctor the duration of the injuries was approximate 18-36 hours. All the injuries were caused by blunt weapon and simple in nature. 7. Satveer accused appellant had one abrasion ⅓cm x ⅓cm on front of left knee cap. Scalp was present.(sic) The injury was 2-3 days old. Tarachand had two abrasions and also complaint of pain in left buttock, but no visible injury. His date of examination is 28.7.1986 and duration of injury was two-three days. Hukami Ram accused appellant has one abrasion 2.5cm x 1/2cm with diffuse swelling around 3.5cm x 1cm on right parietal region of scalp 2.5cm right to midline. He was examined on 27th July 1986 and the injury was about 18-36 hours of duration. Mehtab Singh had seven injuries, a lacerated wound 3/4cm x ⅓cm x ⅓cm with diffuse swelling around 5cm x 2cm on anterolateral side of middle ⅓ of left thigh, two abrasions 1/2cm x 1/2cm and ⅓cm x ⅓cm on lateral side of right ankle, abrasion 2cm x 1/2cm, oblique with diffuse swelling around 4cm x 2cm on left parietal region of scalp near midline; abrasion irregular in an area of 6cm x 1cm on right infra axillary region; abrasion 1cm x ⅓cm on medial side of right wrist; diffuse swelling 5cm x 3cm on anterolateral side of lower ⅓ of left thigh; and complaining of pain in left infra scapular region and proximal interphalengeal joint of right index finger. He was examined on 27th July 1986 and his injuries were also of same duration. 8. After investigation a charge-sheet was filed and the accused appellants pleaded not guilty. They claimed the exercise of right of private defence of property as well as of person. They came out with a case that they were in possession of the `bara' at the back of the house. 8. After investigation a charge-sheet was filed and the accused appellants pleaded not guilty. They claimed the exercise of right of private defence of property as well as of person. They came out with a case that they were in possession of the `bara' at the back of the house. It was allotted by the Panchayat and there was also a decision in their favour of the Panchayat and on the day of occurrence, it was the complainant party which threw stones in the bara and when the SHO witnessed the place of occurrence, he witnessed that there were stones in the bara. In the FIR No. 134/86, it finds mention in the site plan, that the stones were in the bara, but so far as FIR No. 133/86 is concerned, there is no mention in the site plan prepared. The accused persons, therefore, pleaded right of private defence of property and person. The learned Sessions Judge placed reliance on the case of the prosecution and convicted and sentenced the three accused appellants whereas five others were acquitted. The learned Sessions Judge held that in fact there were two incidents, but did not place reliance on the case of defence of exercise of right of private defence of property and person. 9. We have heard the learned counsel for the accused appellants and the learned Public Prosecutor and have gone through the evidence on record. It was contended by the learned counsel for the accused-appellants that from the material on record, it cannot be said that the occurrence took place in any part of Khasra No. 382. It was contended that the bara at the back of Khasra No. 382 is not the part of that Khasra number and it had been allotted by the Panchayat to the accused-appellants and patta had been also issued. The accused-persons were in possession of the land in dispute and on-the day of occurrence it was the complainant party who had come to dispossess them. It was contended by the learned counsel for the accused- appellants that the presence of stones in the site plan of the cross-FI R is proved from the case of defence and the finding of the learned Sessions Judge that the accused persons received injuries in some other incident is not borne out from the record. It was contended by the learned counsel for the accused- appellants that the presence of stones in the site plan of the cross-FI R is proved from the case of defence and the finding of the learned Sessions Judge that the accused persons received injuries in some other incident is not borne out from the record. Learned counsel contends that the prosecution has failed to explain the injuries of the accused persons. 10. The question is as to whether the incident took place in any part of Khasra No. 382 or at any other place. Admittedly, there were two cross cases; one in respect of FIR No. 133/86 which was lodged by Chajuram PW-1 and after investigation in which a charge-sheet was filed against the three accused appellants and five others and the other FIR is FIR No. 134/86 which was on the report of Hukma Ram Ex.D-6. On the basis of report Ex.D-6, FIR D-7 in the prescribed form was registered. It will be seen from the perusal of that FIR that the occurrence took place on 26th July 1986 in Khasra No. 382 at about 7.00 a.m. It will also be seen that the injuries were caused to the deceased as well as to other injured persons Chajuram, Raghuveer as well as three accused appellants. It can be said that the possibility cannot be excluded, rather the more possibility is that the injuries were caused in the same incident. Therefore, on the material on record the learned Sessions Judge was not correct to hold and in ignoring the defence case so far as exercise of right of private defence of property as well as person is concerned on the ground that the occurrence had taken place at some other place, and at some other time. There was no reason for the learned Sessions Judge to hold so. There appears to be no dispute and no dispute has been raised or appears to have been raised ever before the learned Sessions Judge that the bara of the accused persons is adjoining to Khasra No. 382. There is documentary evidence on record, filed on behalf of the accused appellants from which it appears that the land of `bara' and the house was allotted under a patta to Thakar Singh and Murli son of Leela Ram of village Dhosi. There is documentary evidence on record, filed on behalf of the accused appellants from which it appears that the land of `bara' and the house was allotted under a patta to Thakar Singh and Murli son of Leela Ram of village Dhosi. On behalf of the accused persons Patwari was examined as DW-3 and DW-3 Shri Sushil Kumar states that he was Patwari of Thathwari circle on 23.12.1986 and the village Dhosi was under his circle. He states that he had inspected the site along with Tehsildar and had reached Khasra No. 382. Now new Khasra No. has been assigned to Khasra No. 382. He had measured the Khasra No. 382 in the presence of Nayab Tehsildar who had prepared the Nazari Naksha Ex.D-20. Report Ex.D-19 was also prepared which was signed by Nayab Tehsildar. He states that Thakar Singh, Dayanand etc. had their houses at place `X' in Ex.D-20 and at place `Y' they have their bara. According to his statement, the bara is not at back of Khasra No. 382. In the cross examination he has clearly stated that Khasra No. 380 is abadi and the area of Khasra No. 382 is 1 Bigha 17 Biswas. It can, therefore, be said that the prosecution could not establish that the land of bara was part of Khasra No. 382. 11. Having reached the finding that the bara was not part of Khasra N. 382 and was in possessions of the accused- appellants, we proceed to examine the evidence of the prosecution. We have already referred to Ex.D-8, the site inspection note in the cross case which was prepared on the same day the present occurrence is said to have taken place. We have also said that looking to the date on both the FIRs as well as time of occurrences can be said to have taken place at the same time and date and not at different dates and time as held by the learned Sessions Judge. If the accused persons were in possessions of the bara and if the deceased and others including Chajuram thought that it is a part of Khasra No. 382, they would have taken recourse to law and should not have taken law into their own hands. The occurrence, therefore, appears to have taken place under these circumstances. If the accused persons were in possessions of the bara and if the deceased and others including Chajuram thought that it is a part of Khasra No. 382, they would have taken recourse to law and should not have taken law into their own hands. The occurrence, therefore, appears to have taken place under these circumstances. Even assuming for the sake of argument, though not accepting, that the land of the bara which is a part of the house of the accused-persons was thought to be part of Khasra No. 382 by the deceased and others, even then it can at least be said that the house of the accused appellants and Khasra No. 382 are adjacent to each other and, therefore, the occurrence must have taken place at 7.00 a.m. without any premeditation and both the parties must have fought against each other. We have already made a reference to the injuries received by both the parties and it can be said that large number of injuries have been received by the accused persons. 12. The case of the prosecution that two accused- appellants Dayanand and Hukmiram had caught hold of the deceased, does not appear to be correct. All the prosecution witnesses have not state so and this case of the prosecution only rests on the FIR lodged by Chajuram and it was stated in it that Dayanand and Hukma Ram caught hold of his brother Kanhiram and then Satveer took out a knife and caused injuries with it. Chajuram has also made a similar statement when he was examined as PW-1, but other witnesses have not stated so in their police statements. The learned Sessions Judge has not placed reliance on the testimony of PW-3 Pratap Singh & Ram Pratap and PW-4 Shri Ram. He has only placed reliance on the statements of Chajuram PW-1 and Raghuveer PW-5. So far as PW-5 Raghuveer is concerned, though he had stated in the court that both the accused appellants caught hold of Kanhiram, but when he was confronted with the police statement recorded under section 161 Cr.P.C., he could not explain the conflict. It will appear from the cross-examination of Raghuveer PW-5 that he had told to the police that Hukma Ram and Dayanand had caught hold of Kanhiram, but when he was confronted with his police statement, he could not explain the conflict. It will appear from the cross-examination of Raghuveer PW-5 that he had told to the police that Hukma Ram and Dayanand had caught hold of Kanhiram, but when he was confronted with his police statement, he could not explain the conflict. Therefore, it cannot be said from his statement that actually these two accused persons had caught hold of Kanhiram. That apart, it does not appeal to reason that when eight persons are said to have come with arms and when all are said to have encircled, there could have been any occasion for these persons to hold Kanhiram. Kanhiram having been encircled by the accused appellants and others in all numbering five, he could have been stabbed by Satveer and there was no necessity of these two accused appellants to hold Kanhiram. 13. So far as accused Satveer is concerned, there can be no dispute even on the basis of the statement of two witnesses Chajuram PW-1 and Raghuveer PW-5 that it was he who caused injuries with knife to Kanhiram. We have already said above that the accused persons were in possession of the bara and occurrence took place when the complainant party wanted to enter into the bara thinking that it was a part of Khasra No.382. We have already referred to the injuries of Satveer, Dayanand and others in the earlier part of this judgment and at the cost of the repetition in can be said that it is a case of exercise of right of private defence or property and person. But the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, by virtue of section 99 IPC. A look at the injuries received by the deceased Kanhiram will show that he had as many as five injuries by sharp weapon and the Doctor has said that injury No. 1 and 2 were individually sufficient in the ordinary course to cause death and all the injuries cumulatively were also in the ordinary course sufficient to cause death. It can be said that accused appellant Satveer had no doubt inflicted more harm than it was necessary for the purpose of defence of the property as well as person. It can be said that accused appellant Satveer had no doubt inflicted more harm than it was necessary for the purpose of defence of the property as well as person. The case of the accused-appellants Satveer in our opinion falls under exception 2 to Section 300 IPC and accused Satveer, therefore, can only be held responsible under section 304 Part I IPC for having exercised right of private defence of property and person. 14. Consequently, we hereby partly allow this appeal. So far as appeal of accused appellants Dayanand and Hukmaram is concerned, it is allowed. The judgement of the learned Sessions Judge convicting and sentencing each of the accused appellant Dayanand and Hukmaram under section 447 and 302 IPC is set-aside. They are on bail and need not surrender the bails bonds which stand discharged. 15. So far as appeal of Satveer is concerned, we hereby modify his conviction under section 302 IPC to 304 Part I IPC and sentence him to undergo seven years rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine to further suffer one months imprisonment. The conviction and sentence under section 447 IPC is set-aside. The trial court is directed to send the amended warrant to the Central Jail, Jaipur where the accused is confined. *******