JUDGMENT 1. - This is an appeal by 35 accused-appellants who have been convicted by the learned Additional Sessions Judge No. 1, Ajmer, in Sessions Case No. 26/85(39/85) under his judgment dated 25.4.1992,under sections 302/149, 307/149, 147 and 148 Indian Penal Code. Under the first count, each of the accuse appellants has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default of payment of fine, to further undergo six months' R.I.; under the second count, to undergo 7 years' R.I. and a fine of Rs. 500/-, in default of payment of fine, to further undergo three months' R.I.; under the third count, to undergo six months' R.I.and to pay a fine of Rs. 100/- in default of payment of fine one month's S.I. and under the fourth count, to undergo 2 years' R.I. and a fine of Rs. 200/-, in default of payment of fine, to undergo further S.I. for three months. All the substantive sentences were ordered to run concurrently. 2. It is worthwhile to mention here that along with the 35 accused-appellants, one Nanda was tried by the learned Additional Sessions Judge No. 1, Ajmer, but during trial, he died and therefore, the proceedings against him were dropped. 3. The facts of the case are contained and detailed in the judgment of the Trial Court but suffice to say that the occurrence took place on 5.1.1985. As per the case of the prosecution, Nahara (deceased) was grating his she-goats in the fields of one Shri Rant Dhakar. It is alleged that the 35 accused-appellants along with Nanda (deceased), in all numbering 36, gave beating to Nahara and on hearing the alarm, Sbeoji, Nathu, Chhotu, Gopi, Banna and Hazari reached there and saw that Nahara was being beaten by the 35 appellants and Nanda (deceased). Chhotu and others were also given beating when they tried to save Nahara. Many persons from amongst the accused-appellants were armed with axes and others were armed with lathis and they gave beating to the deceased Nahara with their respective weapons. So far as accused-appellant Gopal Balai is concerned,it is alleged that he was armed with an axe and he gave a blow with it on the head of Nahara (deceased). A report (Ex. So far as accused-appellant Gopal Balai is concerned,it is alleged that he was armed with an axe and he gave a blow with it on the head of Nahara (deceased). A report (Ex. P.1) of the incident in writing was lodged by P.W.1 Ram Lal in Police Station Sarwarat 6 p.m. The distance between the place of occurrence and the Police Station is 12 kms. FIR No. 2/85 was registered and the investigation was set in motion. 4. Post mortem was conducted on the dead-body of Nahara, by Dr.Gulshan(PW 14). Dr. Gulshan conducted the autopsy on the dead-body and found that there were as many as 11 injuries on the body of the deceased. There was depressed communited fracture of skull. There was diffused swelling, underlying bone pieces. The other injury was swollen right back eye mouth full of bloody secretions; there was one lacerated wound 3 X 1 cm. bone deep, horizontally placed, on the occiput crossing midline and three contusions on the stomach region and other parts of the body. In the opinion of the doctor, the head injuries were sufficient in the ordinary course of nature to cause death. The doctor has not said as to which injury was caused by what weapon. 5. Besides conducting the autopsy on the dead-body of the deceased, the injuries of the other injured persons Gopi, Chhotu, Banna, Nathu were also examined by the doctor and the doctor found that Gopi s/o Makna had three injuries; Chhotu bad 7 injuries and Banna had as many as 12 injuries while Nathu had 5 injuries, detailed in their respective injury reports, Ex. P.71 to Ex. P.74. The injuries were caused by blunt weapon. Some of the injured were also kept under observation. 6. The accused persons were arrested. They pleaded not guilty and claimed to be tried. It will be seen from the statements of the accused persons recorded under Section 313 Criminal Procedure Code that they had denied the case of the prosecution. They did not examine any defence witness. 7. Learned Judge of the Trial Court convicted and sentenced the accused persons as aforesaid. 8. We have heard learned Counsel tier the accused-appellants and the learned Additional Public Prosecutor.We may at the very outset say that there is no discussion in the judgment of the Trial Court as to whether or not the offence u/Sees. 7. Learned Judge of the Trial Court convicted and sentenced the accused persons as aforesaid. 8. We have heard learned Counsel tier the accused-appellants and the learned Additional Public Prosecutor.We may at the very outset say that there is no discussion in the judgment of the Trial Court as to whether or not the offence u/Sees. 147 and 302/149 Indian Penal Code is made out. The learned Judge has not even discussed the ingredients of an offence under Section 149 Indian Penal Code. It will be further seen from a perusal of the evidence that except the nine accused persons namely Nanda Balai, Gopi Balai, Prahlad, Sitaram, Harnath, Ladu, Radha Krishna, Lalaramand Gokul, there is no case so far as other accused-appellants are concerned. That apart, even so far as the nine accused persons named above are concerned, there are more than one Nanda, Gopal, Gokul and Sitaram and the learned trial Court has not even tried to sift the evidence and come to the conclusion as to which of the accused persons named Nanda and others, who were in fact named by the witnesses to have caused injuries to the deceased. But so far as the remaining accused persons are concerned, a look at the statements of the eye witnesses will show that the other accused persons have not even been named. How any Court could have convicted the other accused persons when they were not even named by the witnesses, although it has been stated by them that there were in all 36 accused persons who were giving beating to the deceased and had also given beating to the witnesses. The very fact that there were only 11 injuries on the body of the deceased go to show that there could not have been participation of more than 11 persons and it was expected of the Trial Court to have applied its mind to this important aspect of the matter. Be that as it may, we are of the opinion that so far as the accused persons other than Nanda Balai, Gopal Balai, Prahlad, Sitaram, Harnath, Ladu, Radha Krishna, Lalaram, Gokul, there is absolutely no evidence against any of them and none of them could have been convicted for either causing death of the deceased or for causing injuries to other injured persons. 9. Coming to the case of the above named nine accused persons. 9. Coming to the case of the above named nine accused persons. We have already said that there were more than one Nanda, Gopal, Gokul and Sitaram and therefore, the evidence is specific and identification of specific accused is clear, neither of Nanda, Gopal, Gokul or Sitaram could have been convicted. That apart, a perusal of the FIR will show that Gopal has been said to be Gopal Balai but even there are two Gopal Balai by caste and therefore, it cannot be said that which of the two Gopal, Balai by caste, was named in the FIR as Gopal who is said to have caused injury by sharp edged weapon on the head of the deceased. PW 14, Dr. Gulshan has not said that any of the injuries on the head of the deceased was caused by a sharp edged weapon. It was expected of him to have said as to what was the nature of the weapon used in inflicting injury on the head of the deceased. 10. All that can be said from the evidence of the eye witnesses namely PW 1, Ramlal, PW 2 Banna, PW-3 Sheoji, PW-4 Chhotu, PW-5 Nathu, PW-6 Gopi and PW-8 Hansraj is that the above named nine accused persons Nanda, Gopal, Prablad, Sitaram, Harnath, Ladu, Radha Krishna, Lalaram and Gokul has participated in the beating to the deceased and they had also given beating to the injured persons. The question is as to whether on the material on record, it can be said that any offence is made out against any of the accused persons. There is material on record that the she-goats of the deceased were grazing in the fields of one Shri Ram Dhakar. Even in the FIR (Ex. P.2) it was stated that Nahara was grazing his she-goats in the fields of Shri Ram Dhakar where no crop was standing. It will be seen from the perusal of Ex. P.75 and Ex. P. 76 that Surajmal and Ramlal Dhakar had taken the goats to the cattle pond and they were admitted to the cattle pond and they were given in the custody of one Nathu Gujar. It can therefore be said that even the case of the prosecution is that she-goats of Nahara were in the fields of Shri Ram who is one of the accused persons. 11. It can therefore be said that even the case of the prosecution is that she-goats of Nahara were in the fields of Shri Ram who is one of the accused persons. 11. It may be that there was no crop in the fields but at the same time, it cannot be disputed that the deceased had committed criminal trespass in the fields of Shri Ram Dhakarand Ramlal, both of whom are brothers. Chapter-IV of the Indian Penal Code deals with the general exceptions and under Section 104 Indian Penal Code the right of private defence of property extends to causing any harm other than death. It can be said that the deceased had committed criminal trespass and therefore, the right of private defence of property which had arisen could extend to the causing of death. The law is settled that in case of exercise of right of private defence, if any act is committed, it cannot be said that Section 149 I.P.C. is attracted and in this connection, suffice to refer to the case of the Apex Court - State of Bihar v. Nathu ( AIR 1970 SC 27 ) wherein their lordships of the Apex Court while dealing with Section 141, fourth clause and Section 96 Indian Penal Code held that the expression 'to enforce any right or supposed right' in Section 141, Clause (4) makes it clear that an assembly whose common object is to defend property by use of force within limits prescribed by law cannot be designated as unlawful assembly. Therefore, if in the exercise of right of private defence of property, the accused persons used force within the limits prescribed by law, it cannot be said that it was an unlawful assembly and unless the accused persons formed an unlawful assembly, the common object of which is one, Section 149 Indian Penal Code cannot be attracted. In such a situation, the accused persons were only responsible for their individual acts, 12. In the instant case, we have already said that in the opinion of the doctor PW-14 Gulshan, the injury on the head was alone sufficient to cause death. He has not stated as to what was the weapon by which the injury had been caused. Some of the witnesses have said that besides the nine accused persons, whose case we are dealing, others had also given beating to the deceased. He has not stated as to what was the weapon by which the injury had been caused. Some of the witnesses have said that besides the nine accused persons, whose case we are dealing, others had also given beating to the deceased. We have already said that it has not been stated by the witnesses as to which of the Gopals out of many, had given blow on the head of the deceased and therefore, it cannot be said that any of the accused persons is responsible for having caused the fatal blow. In our opinion, it is not a case where it can be said that any of the accused persons could be said to have caused death. We have already referred to Section 104 Indian Penal Code. We are therefore of the opinion that none of the nine accused persons also could be convicted. 13. Consequently, we hereby allow this appeal, set aside the judgment passed by the Trial Court and acquit all the accused-appellants of the offenceunder sections 302/149 Indian Penal Code. They are also acquitted of other charges. The sentences awarded to each of them are set aside. Gopal s/o Shri Krishna Balai is in jail. He shall be released forthwith if not required in any other case. The appellants need not surrender. Their bail bonds shall stand discharged.Appeal allowed. *******