JUDGMENT 1. - This jail appeal is directed against the judgment of Trial Court dated 4.8.89 of Sessions Judge, Sika in Sessions Case No. 12/89, whereby the accused-appellants have been convicted and sentenced as under:- Name of accused Conviction under Sentence Sections 1 Chetan 302 IPC Life Imprisonment,fine of Rs. 50/-,in default of payment 1 month S.I. - 447 IPC 1 month S.I. fine of Rs. 25/-,in default of payment of fine 1 month S.I. 325/34 IPC 1 year S.I.,fine of Rs. 100/-,in default of payment of fine 3 months S.I. 324/34 IPC 6 months S.I.,fine of Rs. 50/-,in default 2 months S.I. 323/34 IPC 3 months S.l.,fine of Rs. 50/-,in default 1 month S.L. 2 Vimla 302/34 IPC Life Imprisonment,fine of Rs. 50/-,in default 1 month S.L. 447 IPC 1 month S.1.,fine of Rs. 25/-,in default 1 month S.L. 325 IPC 1 year SI,fine of Rs. 100/-,in default 3 months S.L. 324 IPC 6 months SI,fine of Rs. 50/-,in default 2 months S.I. 323 IPC 3 months SI,fine of Rs. 50/-,in default 1 month S.I. 3 Dhanna Ram and Vinod 302/34 IPC Life Imprisonment,fine of Rs. 50/-,in default I month S.I.. 447IPC I month S.I.,fine of Rs. 25/-,in default 1 month S.I. 325/34 IPC 1 year SI,fine of Rs. 100/-,in default 3 months S.L. 324/34 IPC 6 months S.I.,fine of Rs. 50/-,in default 2 months S.I 323 IPC 3 months S.I.,fine of Rs. 50/-. in default 1 month S.I. 2. The prosecution case is that on 27.12.88 the parcha bayan of Kamlesh Kumar s/o Pushkar Sharma (deceased) was recorded. He alleged that about 20 years back his father Pushkar (deceased) has purchased the agriculture land from accused Chetan. Today at about 9.45 a.m. while his father (deceased), mother and the informant along with other labourers were cutting the looms of Khejri tree in the field, the accused appellant Chetan Sharma, his wife Vanda and his sons Vinod and Dhanna Ram came, armed with deadly weapons barchi, gandasi and sticks, on the spot and threatened that get out from the agricultural land. On that Pushkar (deceased) told them that we have purchased the land, therefore we will cut the looms. On that the accused-appellant Vimla w/o Chetan has given a gandasi blow on the forehead of informant's mother Shand. On that Pushkar (deceased) told them that we have purchased the land, therefore we will cut the looms. On that the accused-appellant Vimla w/o Chetan has given a gandasi blow on the forehead of informant's mother Shand. While intervening by Pushkar, the accused Chetan has given a farsi blow on the head of deceased (Pushkar) and both the sons of accused Chetan namely Dhanna Ram & Vinod also gave lathi blows to the informant Kamlesh. On that the FIR has been recorded. The case has been registered under Sections 307, 323 and 447 [PC on 27.12.88 itself. Shri Pushkar died in hospital, therefore, the case has been converted into Section IPC. During investigation the site-plan (Ex. P.28) was prepared and blood smeared soil and control soil has been seized and sealed and sent to FSL. The broken pieces of bangles were also seized vide Ex. P-11. The post-mortem of Pushkar was got conducted vide Ex. P-3. The following injuries are found on the person of deceased: 1. Cut wound: 17 cm. x 4 cm intra moval deep extending from front of forehead to left sample in front of left ear bones cut & cutting of brain substance severing menage vessels. 2. Cut wound: 6 cm. x 2 cm. Thorasic centy deep. 3. Bruise: 5 cm. X 3 cm. on Rt. shoulder. 4. Lacerated wonld: 2 cm. X 0.8 cm. X 5.bone deep left supra-orbital region. Echhymosi: (Black eye) both eye to all. 6. Abrasion: 1 cm. X 0.6 cm. on nose left side. 3. In the opinion of Doctor the cause of death of deceased is hemorrhage and shock as a result of cutting of scalp bone and brain. Thereafter the accused-appellants were arrested and at the instance of accused Chetan one farsi has been recovered, at the instance of Vimla one gandasi has been recovered from kitchen of house and the la this were recovered at the instance of Dhanna Ram & Vinod. The articles so recovered were sealed and sent to FSL for examination. The blood was found on the items 1, 2, 3, 4 and 9 as per report of FSL. Thereafter tie challan has been filed. The prosecution examined as many as 12 witnesses P. W.1 Shanti Devi, P.W. 2 Mahaveer Sharma, P.W. 3 Asgar Khan, P.W. 4 Mehboob Khan, P.W. 5 Dr. B.L. Jangir, P.W. 6 Dr. The blood was found on the items 1, 2, 3, 4 and 9 as per report of FSL. Thereafter tie challan has been filed. The prosecution examined as many as 12 witnesses P. W.1 Shanti Devi, P.W. 2 Mahaveer Sharma, P.W. 3 Asgar Khan, P.W. 4 Mehboob Khan, P.W. 5 Dr. B.L. Jangir, P.W. 6 Dr. O.P. Khandelwal, P.W. 7 Kamlesh Kumar, P.W. 8 M.P. Sharma, P.W. 9 Mangilal, P.W. 10 Mahesh Dan Singh, P.W. 11 Ajim Khan and P.W. 12 Amilal. The statements of accused appellants were recorded under Section 313 Criminal Procedure Code , and on the basis of material available on record, the Trial Court came to the conclusion that accused-appellants have committed offence and the accused-appellants have been sentenced as aforesaid. 4. Being dis-satisfied with the judgment of Trial Court the accused -appellant ts have preferred this appeal. As this is jail appeal and no Advocate was appeared on behalf of the accused-appellants, therefore, Mr. B.B. Pareek has been appointed as Amicus Curiae in November 1989. The copy of FIR, site-plan, seizure-memo, injury-report, post mortem report, statements of witnesses in Court and the copy of judgment have been supplied to Amicus Curiae. 5. Heard Amicus Curiae Shri B.B. Pareek, learned P.P. and perused the documents available on record. 6. Shri Pareek submits that in fact the agaric natural land, where the incident has taken place, was in dispute and the deceased (Pushkar) along with his family members wants to take forceful possession of the land, therefore in right of private defence this incident had taken place. He further submitted that even the accused Chetan, his wife Vimla and his two sons Dhanna Ram & Vinod have also sustained the injuries. They were examined and their injury reports Ex.D-3, Ex. D-4, Ex. D-5 and Ex. D-6 are on record. No explanation has been submitted by prosecution of their injuries. When the incident has taken place in defence of their personal property no offence is made out. Alternatively, it is submitted that incident has taken place all of a sudden and the accused-appellants have no intention to kill the deceased (Pushkar), therefore, the matter does not travel beyond the Section 326 IPC or 304-11 of IPC. The accused-appellants have remained in custody for more than 4 years 4 months and 10 days, their sentence be reduced to the period already undergone. 7. The accused-appellants have remained in custody for more than 4 years 4 months and 10 days, their sentence be reduced to the period already undergone. 7. Learned P.P. Shri Paker Farooq submitted that the accused-appellants have not taken the plea of right of private defence and the presence of injured witnesses is not in dispute. There is no reason to disbelieve their testimony and is corroborated by medical report. The recoveries have been made at the instance of accused-appellants. When all the four accused appellants came from the house armed with barchi, gandasi & lathis and attacked on the deceased and his family members, the only inference can be drawn that accused-appellants had intention to commit murder, therefore, the judgment of Trial Court does not call of any interference. 8. The case of prosecution is that the agricultural land was purchased by the deceased from accused-appellant Chetan in 1971. On 27.12.88 at about quarter to ten while deceased along with his family members Shanti Devi, Kamlesh Kumar, Mehboob Khan and Inayat & Ismail were cutting looms from Khejri tree the accused-appellants came on spot armed with barchi, gandasi and lathis and threatened to get out from the agricultural land. The labourers Mehboob Khan, Inayat & Ismail went out of the field and after some altercation between the accused-appellants and deceased, the accused Vimla gave a gandasi blow on the head of Shanti and when the deceased came for her rescue the accused Chetan gave a barchi blow on the head of Pusl-Lkar, in the result Pushkar (deceased) fell down and then all the four accused-appellants gave beating to deceased (Pushkar) his wife and son Kamlesh Kumar. Shanti Devi admitted in Fatehpur hospital. The deceased (Pushkar) was serious, therefore, he was sent to Sikar hospital and there he died. 9. This prosecution version has been supported by the statements of Shanti Devi, who is also injured in the same incident. She has been medically examined and the medical report is Ex. P-16. Her injury report reveals that she sustained 7 injuries on her person. Kamlesh Kumar also has been examined by the Doctor and his medical report is Ex. P-18. His medical report reveals that he sustained 5 injuries and they are abrasion and bruises. In view of this fact the presence of P.W. I Shanti Devi and P.W. 7 Kamlesh Kumar cannot be doubted. Kamlesh Kumar also has been examined by the Doctor and his medical report is Ex. P-18. His medical report reveals that he sustained 5 injuries and they are abrasion and bruises. In view of this fact the presence of P.W. I Shanti Devi and P.W. 7 Kamlesh Kumar cannot be doubted. In the Parcha bayan Kamlesh Kumar stated that farsi blow was given on the head of deceased by accused Chetan and gandasi blow was given by Vimla to injured Shanti Devi and lathi blows were given by Vinod & Dhanna Ram to Kamlesh Kumar and even they gave lathi blows to deceased and their testimony found corroborated by medical report. 10. The other eye-witness who has been examined is Mehboob Khan, who was working for the deceased as labour. He deposed that he along with Salimuddin and Inayat was engaged for labour on payment of Rs. 20/- for one day on 27.12.88 and while they were cutting looms from Khejri tree the accused -appellan ts came armed with bach, gandasi and lathis and threatened them to get out from the agricultural land. On threatening they left the place of incident. This witness at least support the prosecution case that accused-appellants came armed with deadly weapons and threatened them just before the incident. 11. The P.W.5 Dr. B.L. Jangir, who conducted the post-mortem of deceased, deposed that he has conducted the post-mortem of deceased. The injuries were ante-mortem. The cause of death is shock and hemorrhage and cutting of scalp bone, even that has been supported by X-ray report and evidence of P.W. 6 Dr. O.P. Khandelwal. The dispute over the land has been come on record. Some pieces of broken bangles also recovered from the place of incident. The blood was found on the spot, therefore, nodoubt remains that incident has taken place as shown in site-plan Ex. P-8, P.W. 2 Mahaveer Sharma, one of the brother of deceased, supports the case of prosecution to the extent that the land, where the incident has taken place, is of deceased and the deceased has purchased the land from accused Chetan. The Ex. A-1 is the agreement which has been written by Chetan in favour of the deceased in the year 1971 and P.W. 2 Mahaveer is one of the witness of agreement when it was reduced in writing. 12. The Ex. A-1 is the agreement which has been written by Chetan in favour of the deceased in the year 1971 and P.W. 2 Mahaveer is one of the witness of agreement when it was reduced in writing. 12. After arrest of the accused-appellants the barchi has been recovered at the instance of accused Chetan and the recovery memo is Ex. P- 23, which has been recovered after digging earth in Bada of accused Chetan. Similarly the gandasi has been recovered at the instance of Vimla from one comer of the kitchen of house. The two lathis have been recovered, one each from Dhanna Ram & Vinod. Even in the appeal there is no specific denial of incident. In view of the facts stated above, we are of the view that incident has taken place as per story of the prosecution case. 13. Now limited question remains for our consideration is whether accused-appellants have committed offence as referred above. Admittedly not even a single injury has been inflicted by Vimla to the deceased. She has inflicted injuries only to Shanti Devi. Similarly no grievous injury or any injury on vital part of the body of deceased has been inflicted by Dhanna Ram and Vinod. They have inflicted injuries only to Kamlesh. The injury report of deceased Ex. P-17 reveals that he sustained in all four injuries out of which 1 and 2 are incised wound, 3 is haematoma and the 4 is abrasion. The sharp edged arms were with accused Chetan and his wife Vimla, therefore, the incised wound cannot be assigned to co-accused Dhanna Ram and Vinod. Not even a single injury of lathi blow has been given by them at any vital part of the body of deceased. Therefore, it cannot be inferred that they had any intention to kill deceased (Pushkar) or they have common intention to kill Pushkar. The accused Vimla was armed with gandasi buts e also has not inflicted any ir)jury to deceased, therefore, we cannot infer that she had common intention or share the intention with the accused Chetan to kill deceased. 14. The existence of dispute over the land is not in dispute. Therefore, when there was a dispute over possession of the land and no injury is inflicted by Vimla to deceased, she cannot be convicted for the offence under Section /34 IPC. 14. The existence of dispute over the land is not in dispute. Therefore, when there was a dispute over possession of the land and no injury is inflicted by Vimla to deceased, she cannot be convicted for the offence under Section /34 IPC. Similarly, the two accused Dhanna Ram & Vinod also cannot be convicted for the offence under Section /34 IPC. 15. The accused Chetan who has not only inflicted one sharp edged injury but he has repeated barchan blow and inflicted two injuries by sharp-edged weapon and the head injury is sufficient to cause death in the ordinary course of nature. He is the person who has threatened the deceased and P.W. I Shand Devi and P.W.7 Kamlesh Kumar on the spot. The injuries are attributed to him by P.W. I and P.W. 7 and are corroborated by medical evidence. No fatal injury or any other injury on vital part has been assigned to any accused accept the accused Chetan therefore, he has rightly been convicted for the offence u /Sec. 302 IPC. 16. Accused Vimla, Vinod and Dhanna Ram cannot be convicted for the offence u /Sec. 302/34 IPC, but they have taken active part in the incident and Vimla has inflicted grievous injury to Smt. Shanti, and Vinod & Dhanna Ram have inflicted injuries to Kamlesh Kumar, who were also present at the time of incident. Therefore, there is no justification to interfere in the conviction and sentence awarded for other offences. In view of the facts stated above, in our considered opinion the accused-appellant Chetan only has committed offence Under Section . 302 IPC. 17. In the result we confirm the conviction and sentence of accused-appellant Chetan and we acquit the accused-appellants Vimla, Dhanna Ram and Vinod for the offence under Section / 34 IPC. However, we confirm the conviction and sentence of Vimla, Dhanna Ram and Vinod for other offences. It is stated that accused-appellants Vimla, Dhanna Ram and Vinod have remained in custody for more than 4 years, and the maximum sentence awarded to them for other offences is one year, therefore, the appellants Vimla, Dhanna Ram and Vinod be released forthwith, if not required in any other case.Consequently, the appeal of Vimla, Dhanna Ram and Vinod is partly allowed while the appeal of Chetan is dismissed.Appeal of Accused Al dismissed., Appeal of Accused A2, A3 & A4 , Partly allowed. *******