JUDGMENT 1. - The appellants Hajari Singh, Ramu Singh, Narayan Singh and Kishan Singh were the accused in Sessions Case No. 18 of 1993 on the file of the Additional Sessions Judge, Kotputli Distt. Jaipur. They were found guilty and convicted as under:- Under Section 302/34 I.P.C. Life imprisonment and a fine of Rs. 500 each (in default to further undergo two months R.I.) Under Section 324/34 I.P.C. One year R.I. Under Section 323/34 I.P.C. Six months R.I. Under Section 447 I.P.C. Three months R.I. The sentences were to run concurrently. 2. Aggrieved by the conviction and sentence, the present action for filing the appeal has been resorted to. 3. Brief facts are : (i) On 24.7.1992 Informant Bhoma Ram instituted a written report with the Police Station, Pragpura against the appellants at about 10.10 A.M. stating therein that he had an agriculture field near Pathiwala Teeba. A litigation with regard to said field was pending between him and accused Hajari. This field was in his possession from the very begining and he had sown Bajra crop which was standing on the date of incident. In order to seek possession of the said field, Hajari Singh ,installed a hut over it in the preceding night of the incident. At about 6-7 a.m in the morning, when his grandmother Ramli and Prabhat had gone in the field to see the hut Hajari Singh, Narayan Singh, Ramu Singh and Kishan Singh armed with lathies and Farsi came over there and started beating his grand mother and killed her. When Prabhat, Smt. Sarvan and Smt. Servo attempted to intervene, they were also given beating by lathies and Farsi. Besides him, Ram Kumar, Girdhari and Gopal Singh had seen the incident. (ii) A case under section. 323, 302, 447 and 34 of the IPC was registered against the accused persons and investigation commenced. (iii) Chargesheet under section 302, 324, 323 and 447 of the IPC read with section 4/25 of the Arms Act was filed in the court of Judicial Magistrate, Kotputli and case was committed to the court of Additional Sessions Judge, Kotputli. (iv) Charges under sections. 447, 302/34, 324 and 323/34 IPC and under section. 4/25 of the Arms Act were framed against accused Narayan Singh, Ramu Singh and Kishan Singh and charges under section. 302/34, 447, 324 and 323/34 IPC were framed against accused Hajari Singh. (iv) Charges under sections. 447, 302/34, 324 and 323/34 IPC and under section. 4/25 of the Arms Act were framed against accused Narayan Singh, Ramu Singh and Kishan Singh and charges under section. 302/34, 447, 324 and 323/34 IPC were framed against accused Hajari Singh. The accused denied charges and claimed trial. (v) The prosecution examined as many as twenty witnesses in support of its case and produced 33 documents. Thereafter statements of accused were recorded under section. 313, Cr.PC. The accused have examined two defence witnesses and produced three documents. (vi) The learned trial court relying on the prosecution witnesses, recorded the conviction and sentence indicated herein above. 4. We have been taken through the evidence and the circumstances of the case and we have now to determine whether the prosecution has proved its case against all the accused appellants beyond reasonable doubt. We, therefore, proceed to discuss the origin and genesis of the occurrence. In this connection the most important question, to be determined, is the question of possession. The prosecution has adduced oral evidence in support of the possession of complainant party. Bhoma Ram (PW 17) the informant, stated : 'This field belongs to us. We are in the possession of it for a period of 35 years. Its Khasra Girdawari is also in our name.' Girdhari (PW 16); real brother of Bhoma Ram, stated : 'Patiwala field belongs to us. We are in the possession of it for a period of forty and forty five years. Crop of Bajra was sown in the field. The record of the field is also in our name.' Servo (PW 13); wife of Bhoma Ram, stated : 'Our 'patiwala field' is situated near our 'Dhani' (residential place of the village) we are in possession of this field for a period of 40-50 years. We had sown the crop of 'Bajra' during the year of incident. The record of this land is also in our name.' Shrawan (PW 12), mother of Bhoma; stated : 'Our 'Patiwala field' is situated near our 'Dhani'. We have title deeds of this field for the last fifty years. We ourselves had sown the crop during the year of incident. 'Parcha' of this land is also in our name.' Prabhat (PW 11) stated : 'I live in 'Patiwala fields. It belongs to me. I have been ploughing the field for the last forty years. We have title deeds of this field for the last fifty years. We ourselves had sown the crop during the year of incident. 'Parcha' of this land is also in our name.' Prabhat (PW 11) stated : 'I live in 'Patiwala fields. It belongs to me. I have been ploughing the field for the last forty years. I do not know as to on which year the entries in girdawaries were made, but our names were entered in the girdawaries. I do not know about the case pertaining to it.' Subhash Chand Jat (PW 7) stated : 'I have been seeing Bhoma, ploughing this field for the last 17-18 years.' Ram Kumar (PW 3) stated : 'I know 'Patiwala, field. It belongs to Bhoma Jat and is situated in village Kalyan Pura. Bhoma Jat is in the possession of the field.' Ved Prakash Sharma (PW 20) who is the investigating officer, did not say anything about the title or possession of the land in question in his examination in chief. But in his cross-examination he stated that 'land bearing khasra No. 71 was in the name of accused Hajari Singh but it was in the possession of the complainant party. However 'lagan' of the land was paid by the accused Hajari Singh. Cases about the said land were pending in the courts.' 5. Now we take up the defence evidence. Janardan Sharma (DW 1) is the village Patwari. According to him the land bearing khasra No. 71 was entered in the name of accused Hajari Singh. He has proved Jama Bandi (PW 7) and khasra Girdawari (Ex. 8). But he said nothing about the possession of the land.Heera Ram (DW 2) stated that his land was situated at a distance of three fields from the land of Hajari Singh. Hajari Singh was in possession of 'Patiwala field' and he had sown the crop of Bajra in the year 1992. 6. After careful scrutiny of the evidence adduced by the prosecution and the defence we are of the view that the title of the land vests in the accused party. So far as the possession of the land is concerned, the prosecution has produced ocular evidence but the same has not been supported by the documents. 6. After careful scrutiny of the evidence adduced by the prosecution and the defence we are of the view that the title of the land vests in the accused party. So far as the possession of the land is concerned, the prosecution has produced ocular evidence but the same has not been supported by the documents. Bhoma Ram (PW 17) has stated that they were in the possession of the land for a period of 35 years and its khasra Girdawari was also in their name. Similarly Girdhari (PW 16), Smt. Servo (PW 13), Smt. Shrawan (PW 12 and Prabhat (PW 11) have categorically stated that land record was in their name. Though two independent witnesses Subhash Chand Jat (PW 7) and Ram Kumar (PW 3) have also orally supported the possession of the complainant party but the documents showing possession of the complainant party have not been placed on record by the prosecution. 7. On the other hand the evidence adduced on behalf of the accused, inspires confidence. Janardan Sharma (PW 1) who is the village Patwari, has proved Jama Band (Ex.D. 7) (from Samvat 2048 to 2051) of the land in question. it bears the name of accused Hajari Singh as Khatedari tenant. The village Patwari also proved Khasra Girdawari (Ex.D. 8) showing the name of accused Hajari Singh as khatedar. According to Heera Ram (DW 2) accused Hajari Singh was in the possession of the land in question and in the year 1992 he had sown the crop of Bajra in the said field. Ved Prakash Sharma (PW 20) in his cross-examination stated that land bearing Khasra No. 71 was in the name of Hajari Singh and 'Lagan' was paid by him but the said land was in the possession of the complainant party. He has further stated that cases about the said land were pending in the courts but he was not in a position to say about the nature of the cases. 8. Mr. R.S. Rathore, learned counset for the appellant has vehemently. argued that the accused party was in the possession of the field and they had right of private defence of their property. As no documentary evidence has been produced by the prosecution, the documentary evidence adduced by the defence ought to have been relied upon. Mr. 8. Mr. R.S. Rathore, learned counset for the appellant has vehemently. argued that the accused party was in the possession of the field and they had right of private defence of their property. As no documentary evidence has been produced by the prosecution, the documentary evidence adduced by the defence ought to have been relied upon. Mr. R.S. Agarwal, the learned Public Prosecutor, has opposed this argument and submitted that the testimony of the prosecution witnesses is trustworthy and cannot be discarded on the ground that it was not supported by the documents. The accused are guilty of committing murder of Smt. Ramli and they were rightly convicted and sentenced by the trial court. 9. We have given our anxious consideration to the arguments advanced before us and carefully examined the record. In the instant case it has been established by the evidence that Hajari Singh accused was the true owner of the land in question and it was for the prosecution to prove as to when and in which year the complainant party had trespassed over, the said land and whether the act of trespass was committed to the knowledge of the true owner. This fact could have been established by producing Khasra Girdawaries pertaining to said land up to Samvat 2033. Till Samvat 2033, names of trespassers used to be entered in the khasra Girdawaries and to show the long cultivative possession of the land in question the evidence of Khasra Girdawari, supported by the ocular statements of the witnesses would have been the best evidence. In 'Baljit Singh and another v. State of U.P, AIR 1976 SC 2273 the Apex Court observed as under:- "Lastly there is one more important circumstance which demolishes the case of the 'prosecution that Sher Singh and Jabbar Singh were in actual cultivation of the land. PW 19 the Investigation Officer has tacitly admitted in the evidence at page 75 of the Paper Book No. 1 that on July 8, 1966 he obtained copies of 'khasra and khatauni' from Atma Ram Lekhpal, These two documents would conclusively show as to who was in actual cultivative possession in question, and yet even though the Investigating Officer had these documents in the possession, he did not choose to file them. From the fact, the only inference that the court can draw was that if these documents had been produced, they would have gone against the prosecution." In the instant case also, the prosecution has not produced Khasra Girdawaries to prove long cultivative possession of the complainant party and despite the documents admitted to have been in their possession, the witnesses did not choose to fie them. Under such circumstances, the only inference that can be drawn by us is that if these documents had been produced, they would have gone against the prosecution. In this view of the matter we are satisfied that accused Hazari Singh had title of the land in his name and he was in actual physical possession over it. This being the position, it is difficult to accept the sweeping statements of the interested prosecution witnesses that Bajra crops were sown by the complainant party. If once it is held that appellant Hazari Singh was in actual physical possession of the land in question, then the question of the complainant party growing 'Bajra crops' would not arise at all. Appellant Hazari Singh had done nothing illegal in installing a hut over his land. Hazari Singh and other co-accused had every right to enter in the land in question and they could not have been termed as 'trespassers'. By not' approaching the case from this angle or vision, the trial court, in our considered opinion has committed error. The observation of the trial court that complainant party was in the possession of the land and the accused appellants were trespassers, is not acceptable in view of the finding of Apex Court in Baljit Singh's case (supra). The finding of the trial court holding the appellants trespassers is based on incorrect appreciation of evidence and it deserves to be set aside. 10. The evidence of both sides in this case is divisible in two categories. The first concerns the question of possession of the land in question and the second centers round the actual occurrence. We have already considered the evidence with regard to possession of the land. 10. The evidence of both sides in this case is divisible in two categories. The first concerns the question of possession of the land in question and the second centers round the actual occurrence. We have already considered the evidence with regard to possession of the land. We shall now consider as to how and in what manner the incident had taken place and whether the evidence reveals any case of justifiable homicide on the ground of legitimate defence of property.According to injured eye-witness Prabhat (PW 11), accused Narain, Ramu and Kishan Singh were armed with farsis and Hajari Singh was having lathi. Narain Singh inflicted farsi blow on the neck of Ramli. Ramu Singh also inflicted farsi blow on her left temporal side above the ear and Kishan Singh caused injury on right side of her head by 'farsi'. Hazari Singh inflicted lathi blow on her person. Thereafter Narain Singh inflicted farsi blow on his (Prabhat) left leg, Hajari Singh also caused injury on his left leg by lathi, Ramu Singh and Kishan Singh inflicted farsi blows on his left hand and nose. They also inflicted blows on the person of Smt. Servo and Smt. Shrawan. Smt. Shrawan (PW 12) stated that there was altercation between Ramli and accused Narain about the land and thereafter the accused started inflicting injuries on Ramli, Prabhat, Servo and her. She has corroborated the testimony of Prabhat (PW 11) Smt. Servo (PW 13) has also given almost the same version as narrated by Prabhat and Smt. Shrawan.A perusal of autopsy report of deceased Ramli reveals that she sustained four incised wounds and did not sustain any injury by blunt weapon. Smt. Servo sustained three simple injuries caused by blunt weapon. Prabhat sustained as many as five simple injuries, one incised wound on left leg, a contusion on left shoulder and three abrasions on forehead, nose and left leg. Smt. Shrawan sustained a lacerated wound on the scalp which was simple in nature. The testimony of injured eye-witnesses Prabhat, Smt. Servo and Smt. Shrawan has been corroborated by the post mortem report of Smt. Ramli. However, injury attributed to Hajari Singh has not been corroborated. Mr. Smt. Shrawan sustained a lacerated wound on the scalp which was simple in nature. The testimony of injured eye-witnesses Prabhat, Smt. Servo and Smt. Shrawan has been corroborated by the post mortem report of Smt. Ramli. However, injury attributed to Hajari Singh has not been corroborated. Mr. Rathore, the learned counsel, contended that even if it is held that Ramli was killed in the manner in which the prosecution alleges she was, the accused cannot be convicted of any offence because they were acting in self defence. Relying on section 96 and 97 of IPC, the learned counsel contended that accused were fully justified in protecting their possession of the field and the hut installed by them. The complainant party had already demolished their hut which was found in a broken condition and the investigating officer has seized it vide seizure memo (Ex.P 24). The accused had used no more force than was necessary to prevent complainant party from demolishing the hut. 11. On the peculiar facts of the case where possession of the land has been found with the accused Hajari Singh, it was nothing but high handed action on the part of Ramli (deceased), Prabhat, Smt. Servo and Smt. Shrawan to seek to demolish the hut by illegally entering into field. Here we would like to point out that plea of self defence was not taken by the accused during the trial. However, law is well settled that accused at any stage can point out to court to examine the evidence and ascertain for itself whether it is consistent with a plea of self defence. It appears from the record that Smt. Ramli, Prabhat, Smt. Servo and Smt. Shrawan were completely unarmed. All that they had done was the act of demolishing the hut by entering into land of accused Hajari Singh. Before an accused person can set up the plea of defence of property in answer to a charge of homicide, he must prove that he had a right of property which had to be defended. As already observed by us that accused appellant Hazari Singh was in actual physical possession of the land in question, he and other co-accused had a right to protect their possession. As already observed by us that accused appellant Hazari Singh was in actual physical possession of the land in question, he and other co-accused had a right to protect their possession. Even if no plea of self defence was raised before the trial court, they are justified in raising the plea of self defence before us and we hold that the said plea is available to them. 12. Thus the following facts are established : (i) That the land in question belonged to accused appellant Hazari Singh who was in actual physical possession of it. (ii) Accused appellant had installed a hut on the land in the preceding night of the day of incident. (iii) Ramli (deceased) Prabhat, Smt. Servo and Smt. Shrawan entered the land unarmed and demolished the hut. (iv) Accused Narain, Ramu and Kishan Singh inflicted farsi blows and accused Hazari Singh inflicted lathi blow on the person of Ramli, who died at the spot. (v) Prabhat, Smt. Servo and Smt. Shrawan also sustained injuries from the sharp and blunt weapons. These injuries have been attributed to the accused appellants. (vi) No injury from the blunt weapon was found on the person of deceased Ramli. Lathi was recovered from accused. Hazari vide seizure memo Ex.P 13 but it was not stained with blood. 13. Now we have to examine as to what is the scope of right of private defence. Can it be extended to inflict more harm than is absolutely necessary to inflict for the purposes of defence ? The answer of this question is in the negative. Right of self defence does not extend to inflicting more harm than is necessary.In the instant case, no doubt the complainant party entered the land in question and demolished the hut but all the persons of the complainant party came unarmed and the accused appellants Narain, Ramu and Kishan Singh could have ousted them without inflicting injuries on their person. The accused appellants could have defended their property only by .pushing them out of the field, instead they inflicted incised wounds on the vital parts of an unarmed lady. The fact, however, remains that as the appellants made a combined assault on the deceased inflicting serious injuries on the deceased, they must be deemed to have a common intention to assault the deceased by causing such bodily injuries which were likely to result in her death. The fact, however, remains that as the appellants made a combined assault on the deceased inflicting serious injuries on the deceased, they must be deemed to have a common intention to assault the deceased by causing such bodily injuries which were likely to result in her death. The common intention, as it is obvious, developed at the spot when the deceased was assaulted by the appellants. In these circumstances, therefore, the appellants are guilty of committing offence under section. 304 Part I with the aid of Section 34 of the Indian Penal Code. The learned trial court has not appreciated the evidence in right perspective. The entire case of the prosecution was dealt by the trial Judge, treating the appellants as trespassers. The part assigned to accused Hazari Singh was also not carefully examined by the trial Judge. 14. The serious question that now arises is as to what is the nature of the offence that has been committed by the appellants in these circumstances ? The accused have been proved to be in actual possession of the land and were sought to be dispossessed by the complainant's party who trespassed on their land. The appellants, therefore, were entitled to defend their property in exercise of their right of private defence.A perusal of postmortem report reveals that the deceased Ramli had sustained following injuries : (i) Incised wound 7 cm x 1/2 cm x 1 cm on the middle of the scalp. (ii) Incised wound 8 cm x 3/4 cm x 1 cm on the posterlo inferior surface of the scalp. (iii) Incised wound 3 cm x 2 cm x 1/4 cm on the back of right ear. (iv) Incised wound 12 cm x 6 cm x 10 cm on the back of the root of neck. The cause of her death was syncope and shock resulting from the injuries.According to Prabhat (PW 11) injury on neck sustained by deceased Ramli was attributed to accused appellant Narain. Injury on the ear has been attributed to accused Ram Singh. Injury on scalp has been attributed-to accused Kishan Sishan Singh. The statement of Prabhat has been corroborated by other witnesses Smt. Servo and Smt. Shrawan. 15. Injury on the ear has been attributed to accused Ram Singh. Injury on scalp has been attributed-to accused Kishan Sishan Singh. The statement of Prabhat has been corroborated by other witnesses Smt. Servo and Smt. Shrawan. 15. The statements of injured eye-witnesses are self contradictory, so far as part assigned to accused Hajari Singh is concerned, Smt. Shrawan attributed to him injury by lathi on the neck of deceased Ramli whereas Prabhat and Smt. Servo stated that he inflicted lathi blow on 'Khabba' and on the back of `Magro' of the deceased. He is said to have inflicted only one injury by lathi but no injury from blunt weapon was found in the post-mortem report of the deceased Ramli. Besides the lathi recovered vide recovery memo,(Ex.P 13) at the instance of the accused Hajari Singh did not bear stains of blood, Under these circumstances the participation of accused Hajari Singh in the crime and his presence at the time of incident has become doubtful and we grant him benefit of doubt. 16. So far as injuries sustained by Prabhat Smt. Servo and Smt. Sarvan are concerned only incised wound on leg attributed to- accused Narain has been corroborated by the medical injury report of Prabhat. All other injuries sustained by,these witnesses according to their respective injury reports were cause by blunt weapon whereas the other co-accused were attributed injuries by sharp edged weapons. Prabhat attributed injury by sharp edged weapon on his leg to accused Narain which has been corroborated by medical evidence. Therefore we also hold accused Narain, guilty of committing offence under Section 324 IPC. 17. For these reasons, therefore, we allow the appeal of appellants Narain, Ramu Singh and Kishan Singh in part. The convictions and sentences passed U.s. 302/34, 323/34 and 447 IPC by the trial court are set aside. Conviction of appellants Narain, Ramu and Kishan Singh is altered to that under section. 304 Part I with the aid of Section 34 IPC and each of them is sentenced to ten years rigorous imprisonment and a fine of Rs. 15000/- in default to further undergo one year R.I. If the amount of fine is recovered, it shall be paid to the legal heirs of the deceased Ramli. 304 Part I with the aid of Section 34 IPC and each of them is sentenced to ten years rigorous imprisonment and a fine of Rs. 15000/- in default to further undergo one year R.I. If the amount of fine is recovered, it shall be paid to the legal heirs of the deceased Ramli. Conviction of accused appellants Ramu Singh and Kishan Singh under Section 324/34 IPC is also set aside but we convict accused Narain under Section 324 IPC and he is sentenced to one year R.I. His sentences shall run concurrently. 18. We allow the appeal of accused Hajari Singh in toto and he is acquitted from all the charges. He be released forthwith if not required in any other case. *******