JUDGMENT 1. - These appeals are directed against the judgment and order dated 26.4.1994 passed by the learned Sessions Judge, Banswara in Sessions Case No. 21/89 whereby the accused-appellant Kodar (since deceased) was convicted under Section 302/34, IPC being awarded sentence of life imprisonment and a fine of Rs. 200/- and, in default of payment of fine, two months' R.l. and under Section 325, IPC being awarded two years' R.l. and fine of Rs. 100/- and, in default of payment of fine, one months' S.I. while the appellant Mahendra @ Gatta was convicted under Section 302, IPC. Being awarded sentence of life imprisonment and a fine of Rs. 200/- and, in default of payment of fine, two months' R.l. and under section 325, IPC sentenced with two years' R.l. and a fine of Rs. 100/- and, in default of payment of fine, one month's R.l. 2. Briefly stated, the facts relevant for disposal of the appeal are as follows : 3. Nathu (since deceased) and Kodar appellants were real brothers. P.W.1 Narain is son of Nathu while appellant Mahendra @ Gatta is son of Kodar. Kodar is elder brother of Nathu. They are residents of Village Vajakhra in District Banswara. There is a field popularly known as "Italia Panvawala" situated in the said Village Vajakhra measuring about 10 bighas. 4. Dr. Vijai Agarwal (PW 6), Medical Jurist, M.G. Hospital, Banswara, in the morning of 23.12.88. informed the officer-in-charge of Police Station, Kotwali, Banswara that two injured persons were admitted to the hospital and that condition of Nathu injured was very serious. PW 8 Dilip Singh, A.S.I., was immediately rushed to the hospital whereat he found Narain (PW 1) admitted in seriously injured condition. He recorded his 'Parchabayan' (Ex.D.1) in which it was reported by Narain that on the previous night i.e. 22.12.88 at about 8 p.m., he along with his father Nathu, after getting the said field ploughed with a tractor, was returning from the field towards the Village Vajakhara whereat their house is situated and, before they could reach the village, in the way, both the appellants stopped the tractor. The appellant Kodar was armed with an axe whereas Mahendra @ Gatta was having sickle as well as a lathi. They were dragged from the tractor to the ground and both the appellants started assaulting them. The appellant Kodar was armed with an axe whereas Mahendra @ Gatta was having sickle as well as a lathi. They were dragged from the tractor to the ground and both the appellants started assaulting them. Mahendra @ Gatta inflicted injuries with the sickle on the skull, frontal as well as mandible parts of Nathu. Kodar inflicted axe blows on the head and near the eyes of Nathu. Kodar also gave axe blow on the head of Narain. Mahendra @ Gatta gave a lathi blow on his left leg resulting in fracture of its bone. Mahendra also inflicted lathi blow on his face. It was alleged that since the accused-persons wanted to take forcible possession of their field and so they were subjected to assault. The tractor driver Partu (PW 4) was yet another eye-witness of the occurrence. The family members of the injured persons, on learning about incident, took the injured persons lying in a serious and unconscious condition at the site on cots to their residence. Thereafter, they were taken in a taxi vehicle to the said hospital in the early morning on 23.12.88. At about 8 a.m. Nathu succumbed to the injuries at the hospital itself. The autopsy of the dead body of Nathu was conducted. This information was flashed by wireless (Ex.P 18) by the police of Banswara to the office-in-charge of Police Station Gaddhi within whose jurisdiction the incident took place. Accordingly, Bharat Singh (PW 9), SHO reached to the Government Hospital, Gaddhi. He collected documents prepared by and in possession of Dilip Singh (PW 8) and, since, as a result of Ex.D. 1 Parchabayan, offences under Sections 302 and 307/34, IPC appear to have been committed, hence Bharat Singh commenced further investigation at the spot. 5. Dr. Mehta at the time of admission of both the injured persons, examined their injuries. He found the following injuries on the person of the injured (since deceased) Nathu as per Ex.P 7 injury report: 1. Incised wound 2" x 1" x 1" deep upto bone over Middle of forehead. 2. Incised wound 2" x 1" x 1/2" over forehead on It. side. 3. Incised wound 2" x 1/4" x 1/4" just below It. eye. 4. Incised wound 1" x 1/2" x 1/2" over Rt. Side of cheek. 5. Fracture of humerus and radius ulna bone It. upper limb. 6. Incised wound 1" x 1/2" just below chin. 2. Incised wound 2" x 1" x 1/2" over forehead on It. side. 3. Incised wound 2" x 1/4" x 1/4" just below It. eye. 4. Incised wound 1" x 1/2" x 1/2" over Rt. Side of cheek. 5. Fracture of humerus and radius ulna bone It. upper limb. 6. Incised wound 1" x 1/2" just below chin. 6. Similarly, on examination of injuries of Narain (PW 6), as per Ex.P. 8 injury report, he found following injuries on his person : 1. Lacerated wound 1" x 1" over inner side of lower lip in middle. 2. Incised wound 1" x 1/2" x 1/4" over the lower part of the scalp. 3. two lower incisor tooth struck off 4. swelling over It. knee joint patella 5. swelling at It. wrist joint of radius ulna and scalp. 7. He further advised for x-ray of injuries of Narain and, as a result of Ex.P. 9 to Ex.P. 12 x-rays, as reported in report Ex.P 13, the left lower forearm and knee and Patella bone were found to be fractured and hence these injuries were further confirmed to be grievous. 8. Dr. Mehta also, consequent upon death of Nathu, conducted autopsy on his body and, as a result, while confirming the aforesaid external injuries of Ex.P 7, found that, as a result of injury no.1 on the scalp, there was fracture over the forehead above left eye and so there was fracture of maxillary bone just below the eye as a result of which brain membranes were torned and the brain matter was damaged. Besides, humerus including elbow, radius and ulna bones of the left upper limb were also fractured. He opined that Nathu had died due to multiple injuries as a result of excessive haemorrhage specially damage to the brain resulting in brain haemorrhage. 9. Narain was also, for further treatment, referred to Ahmedabad. 10. Besides, humerus including elbow, radius and ulna bones of the left upper limb were also fractured. He opined that Nathu had died due to multiple injuries as a result of excessive haemorrhage specially damage to the brain resulting in brain haemorrhage. 9. Narain was also, for further treatment, referred to Ahmedabad. 10. After completion of investigation at Banswara, Bharat Singh, on return to the Police Station, Gaddi at 5.30 p.m. registered Ex.P 19 FIR under the aforesaid sections and, subsequently, completed investigation resulting in filing of charge-sheet in the committal court which, in its turn, committed the case to the learned Sessions Judge, Banswara who, charged the accused-appellants with the offences for which they have been held liable and, lastly, convicted, as above and, on denial of the charges by the accused-appellants under Sections 313, Cr.P.C., denied the occurrence and adduced no defence evidence and, consequently, on completion of the trial, the learned Sessions Judge, vide his impugned judgment held the accused-appellants guilty convicting and sentencing them, as above, resulting in this appeal through jail being D.B. Cr. Jail Appeal No. 251/94 as well as regular Appeal No. 289/94. Since both these appeals arise out and have been filed against the one and same judgment and hence both the appeals have been consolidated and are being disposed of by this judgment. 11. At the out set, it may be observed that during the pendency of this appeal, appellant Kodar, as also certified by the jail authorities and the Gram Panchayat, expired and hence the appeals have abated against him and so the present appeals are pending against the appellant Mahendra @ Gatta only. 12. We have heard the learned counsel for the appellants as well as the learned PP for the State and have also gone through the record of the trial court while considering the legality as well as regularity of the impugned judgment and considered the same carefully... 13. 12. We have heard the learned counsel for the appellants as well as the learned PP for the State and have also gone through the record of the trial court while considering the legality as well as regularity of the impugned judgment and considered the same carefully... 13. The learned counsel for the appellants, while taking through the FIR (Ex.P 19) registered on the Parchabayan (Ex.D. 1) of PW 1 Narain as well as the statements of the prosecution witnesses, contended that the learned trial judge did not appreciate evidence in its right perspective and, instead, taking superfluous view of the evidence conveniently held the appellants guilty, as above, while, as per his further submission, since it has been admitted by PW 1 Narain as well as his mother PW 2 Lalita that the filed which is the subject matter of dispute and gave rise to the present incident, was in established long cultivatory possession of the accused-party and both Nathu as well as his son Narain hired tractor of Narendra Singh Rao being driven by PW 4 Partu and surreptitiously, at the time of sun-set, committed a trespass by entering upon their aforesaid field and they illegally ploughed the same. Having learnt of this offence being committed by the injured persons, since both the appellants rushed to their field to oppose the high-handed criminal act being committed by the injured persons and, therefore, even if it is assumed that any incident as alleged by the prosecution took place, the injured persons gave grave and sudden provocation to the appellants resulting in this incident and, besides, in the alternative, it is also submitted that since the injured persons were trespassers on the field of the appellants and even if any offences, as alleged by the prosecution, are held to have been proved, the accused-persons acted in exercise of their private right of defence of property and so also they have been illegally held liable for commission of culpable homicide amounting to murder as well as for causing grievous injuries to PW 1 Narain. 14. 14. It is also contended that the FIR was unduly delayed and the same was post-investigation and first version given by Narain in Ex.D. 1 on which Ex.R 19 FIR was registered has been substantially changed by PW 1 Narain in his statement given before the trial court wherein instead of use of sickle and axe, it was alleged that only a lathi and sword which was also recovered by PW 9 Bharat Singh during the course of investigation at the instance of the appellants, were used in commission of the offences. There was no blood on the weapons so recovered. The weapons were also not identified by either injured persons in the court. Therefore, this so called recovery of the weapons also does not link the accused-persons with the alleged offences. Therefore, his submission is that there is no independent witness of the occurrence and there is statement of highly interested witness Narain (PW 1) and the statement of Partu (PW 4), looking to his conduct, does not inspire confidence. Therefore, it has been submitted that since the very genesis of origin of the incident as initially brought out in Ex.D. 1 has been substantially changed and there was strong motive for the injured persons to have falsely implicated the accused-persons so as to forcibly grab possession of the disputed field in which they had succeeded and, therefore, it has been submitted that the prosecution did not prove the charges beyond reasonable manner of doubt and yet they have been wrongly and illegally convicted and sentenced, as above, warranting reversal of the same. 15. However, the learned P.P. has supported the findings and the legality of the impugned judgment and order. 16. Before we proceed to dispose of various contentions raised on behalf of the appellants, we propose to summarise the relevant prosecution evidence 17. The learned trial judge has mainly based his findings on the basis of statements of PW 1 Narain, being himself injured, as well as PW 4 Partu who was driver of the tractor on which both the injured persons at the time of the occurrence were riding as also, in part, supported by PW 2 Lalita who is wife of the deceased Nathu. Besides, medical evidence as testified by PW 6 Dr. Vijai Mehta has also been relied upon. 18. Besides, medical evidence as testified by PW 6 Dr. Vijai Mehta has also been relied upon. 18. PW 1 Narain was himself seriously injured in this incident and, therefore, his presence at the place of occurrence, on any ground, cannot be disputed. However, a wholesome reliance on his statement is a different thing to be concluded hereinafter. He has stated that he along with his father (Nathu) hired the tractor of Narendra Singh Rao being driven by PW 4 Partu and went to the disputed field around 6 p.m. and, after having ploughed the fir id, they were returning towards their house from the field on the tractor at 8 p.m. and they had hardly covered a little distance from the field towards the village, both the accused-appellants came in front of the tractor from the opposite side. Kodar was armed with a lathi where as appellant Mahendra @ Gatta had a sword in his hand. Appellant Mahendra @ Gatta inflicted sword blows on Nathu on his leg as well as head. He went to rescue his father and Kodar gave a lathi blow on his head as well as face as a result of which his teeth were broken. Kodar yet gave third blow of lathi on his left leg as a result of which leg bone was fractured. He lay on the ground being injured and, meanwhile, Mahendra @ Gatta gave a blow of sword on his head and also inflicted more injuries on the head of Nathu. As a result of multiple injuries received by Nathu. he became unconscious at the site. He also stated that the field so ploughed was recorded in their 'khatedari' and the accused persons wanted to take forcible possession of the same. They were lifted from the site and, lastly, admitted at the Banswara Hospital. He further stated that, after being examined and x-rayed, he was referred to Ahmedabad for further treatment. He also stated that the police had recorded his statement which is Ex.D. 1. 19. They were lifted from the site and, lastly, admitted at the Banswara Hospital. He further stated that, after being examined and x-rayed, he was referred to Ahmedabad for further treatment. He also stated that the police had recorded his statement which is Ex.D. 1. 19. PW 4 Partu stated that as directed by the owner of the tractor Narendra Singh Rao, on engagement by the injured persons, he was sent with the tractor to plough the field of injured persons and so, alongwith the injured persons, he went to their field at about 6 p.m. and after ploughing the three bighas of land, along with the injured persons, it was at 8 p.m. that he was returning towards the village and the tractor was being driven by him while both the injured persons were sitting on the bonnet of the tractor. After coverage of little distance from the field both the injured persons were intercepted by them. Kodar was armed with a lathi while Mahendra @ Gatta was armed with a sword. After stopping the tractor, Nathu was dragged to the ground from the tractor and Kodar inflicted lathi blows on the head, hand and leg of Nathu. Narain wanted to intervene but Mahendra @ Gatta inflicted sword blows on Nathu and Narain. Kodar also gave a lathi blow on the leg of Narain. Both the injured persons started bleeding. They became unconscious. He immediately rushed to Narendra Singh to inform about the incident. 20. PW 2 Lalita is wife of Nathu (deceased). She stated that at about 5 p.m. on the fateful day, both Nathu as well as Narain went to the Village Sagwadiya for hiring tractor for ploughing the aforesaid field. She further stated that Kodar was threatening that they would snatch the field from them forcibly. Before the fateful incident, Meghji and Laiji came to her house and inquired about Nathu and Narain on which they were told by her that they had left for getting their field ploughed. After some time,both of them again returned to her house and informed her that Kodar and Mahendra @ Gatta had assaulted injured Nathu and Narain. She immediately informed the villagers who immediately rushed to the site and brought both injured persons on cots to their house. Both the injured were profusely bleeding. Nathu was unconscious while Narain was vomiting blood. After some time,both of them again returned to her house and informed her that Kodar and Mahendra @ Gatta had assaulted injured Nathu and Narain. She immediately informed the villagers who immediately rushed to the site and brought both injured persons on cots to their house. Both the injured were profusely bleeding. Nathu was unconscious while Narain was vomiting blood. A taxi was arranged and both the injured persons were transported to hospital at Banswara in the night itself whereat Nathu succumbed to his injuries while Narain was subsequently referred for further treatment to Ahmedabad. 21. As regards the incident there is no other ocular evidence about the incident itself. As a result, so far as PW 2 Lalita is concerned, she is not eye-witness of the occurrence but, she has, in her cross-examination, clearly stated that Narain was in a semi-conscious condition and he was uttering that Kodar had assaulted them with a sword while Mahendra @ Gatta assaulted them with a lathi. She did admit in her cross-examination that they lived at Village Paraheda for about 8 to 10 years before returning to the Village Vajakhra. She further admitted that Kodar had ploughed her field for about 5 to 6 years. Similarly, PW 1 Narain also clearly admitted in his cross-examination that the disputed field was being continuously ploughed by Kodar for about last 15 years. They wanted Kodar to hand over possession of the field but Kodar refused to oblige and hence they had hired the tractor and so ploughed the field. He further stated that no sooner after ploughing the field, they came out of the field, they were intercepted by the accused-persons and the dispute ensued. 22. They wanted Kodar to hand over possession of the field but Kodar refused to oblige and hence they had hired the tractor and so ploughed the field. He further stated that no sooner after ploughing the field, they came out of the field, they were intercepted by the accused-persons and the dispute ensued. 22. As a result, before proceeding with the discussion, sifting and evaluation of the prosecution evidence, we are constrained to conclude that the said field, in respect of which the dispute arose leading to this unfortunate incident, was in a long and established possession of Kodar and his son Mahendra @ Gatta and, meanwhile, for a period of not less than 8 to 10 years since Nathu and Narain had gone to the Village Paraheda and this field was being ploughed and cultivated by the accused-persons on return to the Village Vajakhra, the accused-persons were being requested to return the vacant possession of the field to which the accused were not agreeable and, as a result, while the sun was about to set in, the injured persons hired tractor of Narendra Singh and took the same to the disputed field and got the same ploughed for about two hours after sun-set and, in the meantime, learning about this act and conduct of the injured persons, both the appellants rushed to their field and hence this incident took place. 23. PW 6 Dr. Vijai Mehta, Medical Jurist, as referred to hereinbefore, in the first instance, examined injuries of both Nathu (deceased) as well as Narain (PW 1). Nathu had not less than 5 incised wounds on his person, as corroborated by Ex.P. 7 injury report and after his death, Dr. Mehta after conducting post-mortem on the dead body of Nathu, further confirmed existence of the aforesaid injuries which were also found to be ante-mortem. He opined that the injuries 1 and 2 of Ex.P. 7 were of grievous nature while rest of the injuries were simple and all the injuries were caused by sharp weapon. He further confirmed that because of excessive haemorrhage and so also the brain haemorrhage, death of Nathu had ensued. He opined that the injuries 1 and 2 of Ex.P. 7 were of grievous nature while rest of the injuries were simple and all the injuries were caused by sharp weapon. He further confirmed that because of excessive haemorrhage and so also the brain haemorrhage, death of Nathu had ensued. He also stated that Nathu was admitted in an unconscious and critical condition in the early morning on 23.12.88 and further stated that all the injuries so found on the person of deceased Nathu were cumulatively sufficient in the ordinary course of nature to cause death. His statement is corroborated by Ex.P 7 injury report prepared at 6.30 a.m. as well as the post-mortem report consequent upon death of Nathu at 8 a.m. as borne out of Ex.P 14 post-mortem report. Though, by mistake, the time of examination in Ex.P 7 has been inadvertently recorded as 6.30 p.m. but he has emphatically maintained that he examined the. injuries of Nathu at 6.30 a.m. and so also from the statement of PW 8 Dilip Singh as well as PW 9 Bharat Singh and Ex.P 14 post-mortem report itself, it cannot be denied that these injuries could not have been examined subsequent to death and post-mortem of deceased Nathu and so the explanation given by Dr. Mehta is correct and nothing can be built out of this inadvertent mistake and there is no difficulty to hold that since Nathu and Narain were admitted to the hospital in the early morning of 23.12.88, therefore, there was no occasion for examination of injuries at 6.30 p.m. instead of 6.30 a.m., as is the real state of affairs. 24. Dr. Mehta did admit in his cross-examination that, in ordinary course, no death could result from the injuries 3, 4 and 5 and so also he further admitted that as a result of injuries 1 and 2 resulting in simpliciter fractures also, one could not die in ordinary course of nature unless there was internal haemorrhage and he further confirmed that as a result of injuries 1 and 2, there was internal as well as brain haemorrhage resulting in death of deceased Nathu and, therefore, even if it is assumed that both his injuries could have resulted from even a single blow, that too does not help the appellants to absolve them from the liability. Dr. Dr. Mehta has emphatically maintained that the cause of death was result of injuries 1 and 2, as stated above and, therefore, there is no substance in the contention of the learned counsel for the appellants that since there is no evidence, the same being against the record, that any large vein was cut resulting in death and hence injury no. 2 could not have contributed to the death of deceased Nathu. Dr. Mehta has clearly stated that the internal as well as brain haemorrhage was the direct result of infliction of injuries 1 and 2 stated in Ex.P 7 injury/report and Ex.P 14 post-mortem report and, therefore, this contention does not hold any water for its sustainability. 25. Dr. Mehta also, on the basis of Ex.P 8 injury report, as referred to hereinbefore, stated that there were as many as 5 external injuries found on the person of PW 1 Narain at the time of his examination at 6 a.m. on 23.12.88. He has clearly stated that, except incised wound no. 2 found on the lower part of the scalp, rest of the injuries were on other parts of the body out of which there being fractures of left knee joint (patella) as well as radius and ulna bone of left forearm and there was dislocation of lower incisor tooth and so out of the aforesaid five injuries, these injuries were found to be grievous as also confirmed by x-ray vide Ex.P 13 report. 26. Having regard to the statement of PW 1 Narain as also supported by PW 2 Lalita and PW 4 Partu and also borne out of the medical evidence, there cannot be any dispute that PW 1 Narain, as a result of assault, received multiple injuries as held by the learned trial judge. 27. Now, reverting to the main dispute whether the appellant Mahendra @ Gatta as well as his father Kodar (since deceased) were responsible for causing fatal as well as grievous injuries to the deceased as well as Narain and in case the same were caused by them, whether their case was covered by any of the exceptions under Section 300 of the Indian Penal Code or by any general exception under the Penal Code. 28. 28. As stated above, PW 1 Narain himself is injured person and he has, as above, stated in his statement during trial that the appellant Mahendra @ Gatta was armed with sword and he inflicted all the fatal injuries found on the person of Nathu as stated by PW 6 Dr. Mehta and also borne out of Ex.P7 M.L.R. as well as Ex.P 14 RM.R, He also attributed his single skull injury being incised wound to the present appellant while other injuries found to have been caused by blunt weapons, are attributed to Kodar who was armed with a lathi. This statement of Narain is fully corroborated by PW 4 Partu. Though Partu being an employee of Narendra Singh Rao owner of the tractor, who hired out the same to the injured persons just before the occurrence for ploughing their disputed field, does appear to be bit interested in the injured persons but so far as his presence at the place of occurrence, as is the case with PW 1 Narain himself, the same cannot be disputed by the defence. The tractor was, admittedly, hired and taken to the disputed field and the field was also ploughed though after sun-set and surreptitiously by the injured persons before the accused-persons could learn of it and they immediately left for their field and at the time of interception, PW 4 Partu was the driver of the vehicle. He did not, admittedly, intervene as the fighting parties were close relations and since a murderous assault was being made from the side of the accused-persons and, therefore, being unarmed and an stranger, he could not have been ordinarily expected to have intervened by risking his own life and, therefore, his 'conduct appears to be natural when he immediately rushed to the owner of the tractor Narendra Singh and informed of this incident who accompanied by Partu came to the Village Vajakhra. Partu has clearly stated that the accused Mahendra @ Gatta was armed with sword whereas Kodar (deceased) was armed with a lathi and both of them assaulted and injured Nathu as well as Narain as stated by him in his statement referred to hereinbefore. Partu has clearly stated that the accused Mahendra @ Gatta was armed with sword whereas Kodar (deceased) was armed with a lathi and both of them assaulted and injured Nathu as well as Narain as stated by him in his statement referred to hereinbefore. He was examined on 23.12.88 itself by PW 9 Bharat Singh himself and he has lent full support and corroboration to the statement of PW 1 Narain and, at the time of incident and assault made on the injured persons, the appellant Mahendra @ Gatta was armed with sword whereas his father Kodar was armed with a lathi. 29. The learned counsel for the appellants,on the basis of Ex.D. 1 Parchabayan resulting in registration of FIR Ex.P 19 by PW 9 Bharat Singh, as above, contended that,as per the first version (Ex.D. 1) of PW 1 Narain given before PW 8 Dilip Singh, A.S.I. of Kotwali, Banswara, Kodar was armed with an axe and, now, changing the version, it is alleged that he was armed with a lathi and none was armed with an axe. Similarly, Narain has stated before the trial court that the appellant Mahendra @ Gatta was armed with a sword whereas in Ex.D. 1 statement, he clearly stated that this appellant was armed with a sword whereas in Ex.D. 1 statement, he clearly stated that this appellant was armed with lathi as well as a sickle being an agricultural implement by which assault was made. Therefore, his submission is that there was no occasion for PW 1 Narain to have initially stated falsely that Kodar was armed with axe whereas appellant Mahendra @ Gatta had a lathi as well as sickle and neither of them is alleged to have been armed with a sword but making a somersault, to reconcile with and fit in the medical evidence with that of the ocular evidence of the witnesses, a concoction has been made and, subsequently, initial version has been reversed thereby introducing sword in place of axe as well as sickle and the same having been alleged to be possessed and used by the present appellant in the assault. He also further contended that though sword is alleged to have been recovered by PW 9 Bharat Singh on the information given by appellant Mahendra @ Gatta and so also a lathi at the instance of Kodar (deceased) but both these arms were, admittedly, not found to be blood stained and, accordingly, in absence of chemical examination or any other direct evidence, the same do not find any connection with the alleged offences and, therefore, his further submission is that the theory of introducing possession and use of sword by the appellant Mahendra @ Gatta is wholly false and deserves to be discarded which creates serious doubt in the correctness and truthfulness of the prosecution version. 30. Resultantly, his submission is that Narain has not unfolded the whole truthful story and, therefore, he is not a reliable witness and in absence of material corroboration of his testimony, the appellants are not liable to be convicted on the tainted, exaggerated and self-contradictory as well as changed version of Narain though he may be injured in the incident but that by itself is not a guarantee of his truthfulness. 31. Though after going through the first version as given in Ex.D. 1 before PW 8 Dilip Singh by PW 1, it cannot be denied that he stated that Kodar was armed with an axe while Mahendra @ Gatta was armed with a lathi as well as a sickle but, from the prosecution evidence, it does not appear to have been used in the incident either as per the first version or the subsequent version of the prosecution witnesses either during investigation or during the trial. However, lathi is alleged to have been used in the first version of Narain as well as in the version of the prosecution witnesses in the trial court. As regards sickle and axe, PW 1 Narain on 23.12.88 itself, while he was examined under Section 161, Cr.P.C. by PW 9 Bharat Singh at the hospital itself, he corrected his first version thereby alleging that the accused assailant Kodar was armed with a lathi while Mahendra @ Gatta had a sword when they were intercepted and assaulted. As regards sickle and axe, PW 1 Narain on 23.12.88 itself, while he was examined under Section 161, Cr.P.C. by PW 9 Bharat Singh at the hospital itself, he corrected his first version thereby alleging that the accused assailant Kodar was armed with a lathi while Mahendra @ Gatta had a sword when they were intercepted and assaulted. He did explain, at the end of this statement, that initially a wrong mention of axe as well as sickle had crept in but since he was not in full senses and, therefore, instead of sword, a mention of axe as well as sickle has come in Ex.D. 1 statement but he had clearly stated that Mahendra @ Gatta had a sword while Kodar had a lathi. There was a gap of hardly few hours between recording of Ex.D.1 Parchabayan by PW 8 Dilip Singh and Ex.D.2 statement recorded under Section 161, Cr.P.C. by PW 9 Bharat Singh, SHO of PS., Gaddhi who had taken over the investigation immediately on being informed about the incident. During the course of trial, PW 1 Narain clearly stated that accused-persons were so armed with lathi as well as sword and none was armed with sickle or an axe. Similarly PW 4 Partu clearly stated in Ex.D.'3 statement on the same day that the accused were armed with lathi and the sword and PW 4 Partu lent full corroboration to the statement of Narain during the course of trial as well that both the accused-persons were armed with a sword and lathi. The defence did not suggest to PW 6 Dr. Mehta as well that as to whether any of the injuries found on the person of Nathu (since deceased) as recorded in Ex.P 7 injury report as well as Ex.P 14 post-mortem report could have been inflicted either by axe or a sickle. His version has almost gone unchallenged in this respect. Mehta as well that as to whether any of the injuries found on the person of Nathu (since deceased) as recorded in Ex.P 7 injury report as well as Ex.P 14 post-mortem report could have been inflicted either by axe or a sickle. His version has almost gone unchallenged in this respect. Therefore, when PW 1 Narain was seriously injured and received multiple grievous as well as simple injuries with sharp as well as a blunt weapons and he was also in a semi-unconscious condition, the explanation so given just after recording of Ex.D. 1 Parchabayan before PW 9 Bharat Singh and so also testified on oath before the trial court inspires full confidence and the contention of the learned counsel for the appellants for this change of version as brought out of Ex.D. 1 and the sworn testimony of PW1 makes the statement of PW 1 unreliable, is not sustainable. His version, besides being corroborated by the testimony of PW 4 Partu, is fully corroborated by the evidence of PW 6 Dr. Mehta, referred to above. 32. The learned counsel for the appellants while assailing Ex.D. 1 first version of PW 1 Narain, as recorded by PW 8 Dilip Singh on which Ex.P 19 formal FIR under Section 154, Cr.P.C. was recorded by PW 9 Bharat Singh, relying on the decisions rendered in Inder Singh @ Thunig Singh v. The State of Raj. 1990 Cr.L.R. (Raj.) 393 and Mukund Behari & Ors. v. The State of Raj. 1979 Cr.L.R. (Raj.) 576 , contended that since there is absence of independent reliable evidence in corroboration of statements of PW 1 Narain and that the first information was unduly delayed and there is no satisfactory explanation for the delay made in FIR and, therefore, no reliance can be placed on the FIR and it is fatal to the prosecution. 33. However, it may be noted that Ex.D. 1 statement was recorded by PW 8 Dilip Singh and the defence did not seize the opportunity to cross-examine either PW 1 Narain or PW 2 Lalita mother of Narain or even PW 9 Bharat Singh who completed the investigation as to the reasons for delay in giving FIR to the police. 33. However, it may be noted that Ex.D. 1 statement was recorded by PW 8 Dilip Singh and the defence did not seize the opportunity to cross-examine either PW 1 Narain or PW 2 Lalita mother of Narain or even PW 9 Bharat Singh who completed the investigation as to the reasons for delay in giving FIR to the police. In view of these circumstances, when the defence, purposely, did not challenge the veracity and so called factum of alleged delay in lodging of the FIR with the Police Station, Gaddhi at the earliest, in absence of it, no objection can be sustained against the prosecution. Besides, as borne out of the prosecution evidence and other circumstances, the parties are close relations. Both father (Nathu) and son (Narain) were subjected to a serious assault and they were in an unconscious condition who were lifted on cots to their residence and, subsequently, in a small village like Vajakhra situated in a tribal-belt of the State, a taxi vehicle was arranged and thereafter both the injured persons were transported in a serious condition to the District Hospital at Banswara where at they could reach in the early morning of 23.12.88 itself and, immediately, PW 6 Dr. Mehta lost no time to inform about this incident to the Kotwali Police of Banswara, as a result of which PW 8 Dilip Singh rushed to the hospital to take down Ex.D. 1 version of PW1 Narain lying in seriously injured and semi-unconscious condition. As a result, for the members of the family, since this incident took place in the night and the injured had to be taken to the Government Hospital for their treatment and survival and this was, naturally, the first priority of the family members of the injured persons and, therefore, there is no mandate of the law that at the cost of danger to the survival of the injured persons, priority ought to have been accorded to rushing to the police station for giving first information about the incident. Since PW 4 Partu, being an stranger, had fled away from the place of occurrence to report about the incident to his master Narendra Singh owner of the tractor and there was no other eye-witness of the occurrence except the two seriously injured persons who were taken to the Banswara Hospital in precarious conditions and, therefore, there was no undue delay in lodging of the FIR with the police and, therefore, merely because there was unavoidable delay warranting no explanation and the circumstances referred to hereinbefore speak themselves of explanation of the delay being unavoidable, warrant no further explanation and, therefore, contention of the learned counsel for the appellants in regard to assault on the veracity based upon the delay in lodging of report Ex.D. 1 on which Ex.P 19 is based, is wholly without any substance and the same is not sustainable. 34. In the same vein, the learned counsel for the appellants, on the basis of statement of PW 9 Bharat Singh, contended that as borne out of Ex.P 1, Ex.P 2, Ex.P 20, Ex.P 21, Ex.P 22 and Ex.P 23 and so also from the statements of Ex.D. 2 and Ex.D. 3 alleged to have been given by PW 1 Narain and PW 4 Partu, PW 9 Bharat Singh had commenced investigation at Banswara while as evidenced from and so also admitted by PW 9 Bharat Singh himself, Ex.P 19 FIR based on Ex.D. 1 Parchabayan of PW 1 Narain was registered on 23.12.88 at 5.30 p.m. and, therefore, his submission is that since this FIR could be taken to have been registered at this time and, therefore, all the investigation so conducted by PW 9 Bharat Singh prior to registration of Ex.P 19 further shows that this version of FIR is post-investigation and, therefore, this FIR does not inspire confidence since all these documents referred to above were, admittedly, prepared much prior to registration of Ex.P 19 FIR by PW 9 Bharat Singh and substantial investigation had already been carried out in the day itself. Even recoveries of Ex.P 1 and Ex.P 2 lathi and sword had already been effected at about 1.15 p.m. on 23.12.88 itself and so his submission is that since, reference of FIR No. 358/88 is clearly given in the aforesaid documents Ex.P 20, Ex.P 21, Ex.P 22 and Ex.P 23 also which further shows that unless these documents were either subsequently prepared or a false number having been mentioned therein much prior to registration of an FIR, the same demolishes the importance and admissibility of Ex.P 19 FIR as well and the same cannot be used for the purpose of corroboration of evidence of PW 1 Narain and it is also fatal to the prosecution. This makes a serious dent in the correctness of the prosecution version. 35. He further submitted that Ex.P 19 FIR so having been registered on 23.12.88 at 5.30 p.m. also reached the court of Munsif & Judicial Magistrate, Banswara at 1.45 p.m. on 24.12.88 and there was also an inordinate delay in sending the FIR forthwith to the concerned court and this further aroused suspicion about the correctness of the prosecution version. However, as concluded hereinbefore, Ex.D. 1 first version given b' PW 1 Narain was recorded by none else but PW 8 Dilip Singh himself much before PW 9 Bharat Singh came into picture. This statement was reduced to writing in the form of Ex.D. 1 by PW 8 Dilip Singh as also stated by him and also corroborated by the endorsement of PW 6 Dr. Mehta in whose presence this statement was recorded as also attested by him at 5.50 a.m. on 23.12.88 itself and, subsequently, the medical examination of the injured persons were carried out and, after death of Nathu at about 8 a.m. as stated by PW 6 Dr. Mehta, it was Dilip Singh who prepared Ex.P 16 Panchayatnama of dead body of Nathu at 8.15 a.m. on 23.12.88 itself and thereafter he delivered the dead body to the heirs of the deceased for its disposal after post-mortem of the dead body was conducted by Dr. Mehta as stated by him. Simultaneously, Ex.P 18 wireless was flashed to the officer-in-charge of the Police Station, Gaddhi which brought PW 9 Bharat Singh into picture and this statement of Dilip Singh has completely gone unchallenged by the defence. Mehta as stated by him. Simultaneously, Ex.P 18 wireless was flashed to the officer-in-charge of the Police Station, Gaddhi which brought PW 9 Bharat Singh into picture and this statement of Dilip Singh has completely gone unchallenged by the defence. In view of these circumstances, Ex.D. 1 is the first version given by none but the injured PW 1 Narain himself which has subsequently been made basis of formal FIR Ex.R 19. Therefore, when PW 8 Dilip Singh functioning as officer-in-charge of Kotwali, Banswara, being informed about admission of the injured persons at the hospital by PW 6 Dr. Mehta, immediately rushed to the hospital and reduced to writing oral statement given by injured PW 1 Narain in the form of Ex.D. 1 as also corroborated by Narain and PW 6 which was subsequently made over to PW 9 Bharat Singh on his taking over charge of documents so prepared by PW 8 Dilip Singh and hence, when this first oral version of the injured himself was reduced to writing by the officer-in-charge of the Kotwali Police Station, Bansawara and, subsequently, the same was also made over to PW 9 Bharat Singh officer-in-charge of the Police Station, Gaddhi, since Ex.D. 1 itself having been given to officer-in-charge of Police Station initially before PW 8 Dilip Singh and, anyhow, subsequently the same having been passed on to PW 9 Bharat Singh, since from this statement made to officer-in-charge of the Police Station it has clearly been borne out that cognizable offences under Sections 302 and 302/34, IPC were made out and, therefore, while PW 9 Bharat Singh was at the Banswara whereat death of Nathu had already occurred while Narain was struggling for survival, he started necessary, investigation there and, therefore, for all the purposes of Section 154, Cr.P.C., Ex.D. 1 version was the FIR and, the subsequent requirement, on availability and reaching at the Police Station, Ghaddi, from PW 9 Bharat Singh was to have entered the substance of such report in a book to be kept by such officer in such form as the State Government had prescribed, presently in the performa of Ex.P 19. Therefore, when an officer-in-charge of a Police Station, the same being the position with PW 8 Dilip Singh in the first instance while recording Ex.D. 1 first oral version of PW 1 Narain and the subsequently handing over of the same to PW 9 Bharat Singh, when Ex.D. 1 was the FIR received by such officer-in-charge of the two Police Stations, they were legally competent to have immediately started investigation into the allegations of the FIR so recorded in absence of substance of the version of Ex.D. 1 having been entered into a formal book so prescribed under Section 154, Cr.P.C. by the State Government. This formality could have been and was rightly completed on reaching of PW 9 Bharat Singh at the Police Station, Ghaddi itself. Therefore, from which ever angle it is viewed, it cannot be said that Ex.D. 1 could not have been used by the aforesaid officer to take up investigation before formulating it in the form of Ex.P 19 and that all the proceedings so taken during the course of investigation before 5.30 p.m. of 23.12.88, suffer from any infirmity or illegality and that, consequently, Ex.P 19 FIR is post-investigation. This objection is without any legal basis therefor. 36. In view of these circumstances, when Ex.D. 1 on which Ex.P 19 formal FIR came into being, was reduced to writing at 5.50 a.m. on 23.12.88 itself, it leaves no scope for the appellants to assail the legality and reliability of Ex.P 19. Consequently, in absence of any explanation having been sought from PW 9 Bharat Singh by the defence, merely because this FIR was sent to the court at Banswara on 24.12.88, as above, the same does not vitiate or make the FIR suspicious or a post dated one or post-investigation from any point of view. 37. Consequently, in absence of any explanation having been sought from PW 9 Bharat Singh by the defence, merely because this FIR was sent to the court at Banswara on 24.12.88, as above, the same does not vitiate or make the FIR suspicious or a post dated one or post-investigation from any point of view. 37. Therefore, the FIR was neither unduly delayed nor there was any undue delay in sending the same forthwith to the magistrate concerned and the same does not suffer from any infirmity or illegality and the same cannot be taken out of the purview of Section 157 of the Evidence Act and the same, so far as commission of the offences and the offenders responsible therefore are concerned, fully corroborates the first version of the prosecution leaving apart insignificant variance in regard to possession and use of weapons in commission of the offences by the accused assailants who were none else but Kodar (since deceased) and his son Mahendra @ Gatta, present appellant before this Court and this also lends full corroboration to the first version of Narain, as above. 38. Even if it is assumed that there is some undue and unreasonable delay in lodging FIR giving some rise to suspicion, the same puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. Merely delay in lodging the FIR is not necessarily fatal to the prosecution ( Apren Joseph v. State of Kerala 1973 SCC (Cri.) 195 ). Therefore, this contention is also rejected. 39. The learned counsel for the appellants also contended that PW 9 Bharat Singh who inspected the site of occurrence on 23.12.88 vide Ex.P 21 site plan and Ex.P 20 memorandum thereof, the approximate distance between the place of occurrence wherefrom blood stained soil was also collected was at a distance of about 1/2km. from the disputed field which was ploughed by the accused-persons while PW 1 Narain and PW 4 Partu have stated that after ploughing the field when they left from there and came out of the same heading towards the village, they were intercepted by the assailants whereas both Narain and Partu in Ex.D. 1, Ex.D. 2 and Ex.D. 3 clearly stated that when they had hardly covered a distance of 300 ft. from the field ploughed by them, they were so intercepted and assaulted thereat and so the prosecution has, of late, changed earlier version with an oblique motive to show that this occurrence took place at about 1/2km. from the disputed field which was illegally ploughed and trespassed upon by the injured persons to usurp possession of the same illegally and this also makes the prosecution version suspicious. Though this discrepancy is evident, as evidenced from Ex.D. 1, earliest version and subsequently given Ex.D. 2 and Ex.D. 3 versions of PW 1 Narain and PW4 Partu as against the version of PW 9 Bharat Singh given in Ex.P 20 and Ex.P 21 but, in view of the ocular testimony of PW 1 Narain and PW 4 Partu during the course of trial, as referred to hereinbefore, they have stated that, after leaving the field and covering a little distance from the field, this incident took place which is exhibited in Ex.P 21 site plan and, as a result, for the present controversy, there is no difficulty in holding that the incident took place after the injured persons came out of the field after the same was ploughed by PW 4 Partu with his tractor and while they were heading towards village after a little distance from the field, the injured persons were intercepted by the accused assailants and this incident took place. 40. After disposal of aforesaid contentions, we find that the learned trial judge did not commit any illegality or infirmity in concluding that Nathu died a homicidal death at the hands of the appellant Mahendra @ Gatta and, besides, the deceased Kodar was also involved in the incident, as above. 41. However, the learned counsel for the appellants has contended that it was not a case of homicide amounting to murder and, instead, he submitted that, firstly, the appellant was acting in exercise of right of private defence of his property and, even if it is assumed that he has exceeded the same, his case falls within Exception 2 of Section 300, IPC r.w. Section 104, IPC exceptions and so the alleged act of the appellant does not travel beyond the ambit of Section 304 Pt. I, IPC. I, IPC. Besides, he further submitted that having regard to the time and the place as well as the surreptitious conduct of the deceased as well as his son PW 1 Narain injured, since the same resulted in depriving the appellant of self-control by grave and sudden provocation and so also there is no case of murder simpliciter as held by the learned trial judge. 42. As regards the plea of right of private defence of property, Section 96 of the Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. Right of private defence includes the right of private defence of persons as well as the property. 43. Section 97 of the Code further provides that every person has a right subject to the restrictions contained in Section 99 to defend inter alia the immovable property of himself as well against any act which is an offence falling under the definition of criminal trespass. 44. Section 99 of the Code interelia further provides that, in those circumstances, does not provide any right of private defence in cases in which there is time to have recourse to the protection of the public authorities and that 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. 45. Section 100 of the Code further provides for the extent to which the right of private defence of the body extends to the causing of death. 46. Section 101 of the Code provides that if the offence be not of any of the descriptions enumerated in Section 100, the right of private defence of the body does not extend to the voluntary causing of death to the assailant but does extend under the restrictions mentioned in Section 99 to voluntary causing to the assailant of any harm other than death. 47. Section 103 of the Code (in clause fourthly) covers the extent of exercise of right of private defence of property in which death can be caused. 48. 47. Section 103 of the Code (in clause fourthly) covers the extent of exercise of right of private defence of property in which death can be caused. 48. Section 104 of the Code further provides that if the offence, the committing of which or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief or criminal trespass, not of any of the descriptions enumerated in Section 103, that right does not extend to the voluntary causing of death but does extend subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death. 49. Sections 101 and 104 restrict the right of private defence in certain cases to voluntarily causing hurt or grievous hurt, section 101 is a corollary to Section 100 and Sections 101 to 103. 50. Section 105 of the Indian Penal Code inter alia provides that right of private defence of property against criminal trespass or the mischief continues as long as the offender continues in the commission or criminal trespass or mischief. 51. Reverting to the instant case, as already concluded hereinbefore, the disputed field was in long and established exclusive cultivatory possession of the appellant Mahendra @ Gatta and his father Kodar. However, deceased Nathu as well as Narain wanted the appellant and his father to hand over cultivatory possession of the field to them to which the latter were not agreeable and hence there was some dispute in regard to vacation of cultivatory possession of the said field. However, on the fateful day Nathu (deceased) and Narain surreptitiously, without knowledge of the appellants hired tractor of Narendra Singh Rao driven by PW 4 Partu and they entered upon the disputed field just after the sun-set and they got the field ploughed with the tractor. However, suspecting some foul, the accused-persons inquired about and learnt that the appellant Mahendra @ Gatta and his father Kodar had so surreptitiously gone to the field to dispossess them forcibly and to get the same ploughed and so being annoyed, the appellant Mahendra and his father immediately rushed towards the field. However, suspecting some foul, the accused-persons inquired about and learnt that the appellant Mahendra @ Gatta and his father Kodar had so surreptitiously gone to the field to dispossess them forcibly and to get the same ploughed and so being annoyed, the appellant Mahendra and his father immediately rushed towards the field. As also discussed and concluded hereinbefore and so also established by the prosecution, by then, Narain as well as his father drove the tractor out of the field but after creating incidences of dispossession heading towards the village and no sooner they had left the field and tractor so proceeding towards the village, as also stated by PW 1 Narain and PW 4 Partu, hardly a distance of 300 ft. was covered from the field, both the appellants Mahendra @ Gatta as well as his father Kodar arrived from the opposite side and they immediately pulled down Nathu from bonnet of the tractor whereon he was sitting with Narain injured. It is at this stage, as alleged and proved by the prosecution, that both Kodar as well as Mahendra @ Gatta started assaulting Nathu and Narain. PW 1 Narain came out with the earlier version that at the time of incident when they were intercepted after leaving the disputed field heading towards the village, Kodar was armed with an axe while Mahendra @ Gatta was armed with lathi as well as a sickle with which they were assaulted as discussed hereinbefore. However, subsequently, this version in regard to the weapons with which both the assailants are alleged to have been armed, have been changed and it has been alleged by PW 1 Narain as well as PW 4 Partu that instead of being armed with an axe, Kodar was armed with a lathi and that, instead of being armed with a lathi and a sickle, Mahendra @ Gatta was armed with a sword. In view of these circumstances, since sickle though an agricultural instrument, is a sharp cutting instrument and the story of possession and use of the same by the present appellant Mahendra @ Gatta has been subsequently demolished by the prosecution itself. In view of these circumstances, since sickle though an agricultural instrument, is a sharp cutting instrument and the story of possession and use of the same by the present appellant Mahendra @ Gatta has been subsequently demolished by the prosecution itself. However, in the initial story as unfolded by PW 1 Narain injured who is the star witness was that the assailants were armed with an axe as well as sickle besides a lathi whereas the axe and the sickle have disappeared from the subsequent version of PW 1 Narain as also supported by PW 4 Partu. PW 6 Dr. Mehta also agreed that though the injuries 1 and 2 of Ex.P 7 and Ex.P 14 were so grievous and the same could have also been inflicted by one blow and that in absence of any damage to the large blood vessels by causing injuries 1 and 2 simpliciter, in ordinary course, death could not have ensued. In these circumstances, some lurking doubt in regard to use of weapons as initially alleged and subsequently changed version is aroused and, as a result, since there is testimony of two interested witnesses involving and implicating the appellant Mahendra @ Gatta and his father Kodar as authors of the injuries of deceased Nathu as well as PW 1 Narain and, in these circumstances, this is the admitted case of the prosecution that the field which was so surreptitiously and at the fall of night without knowledge of the assailants and with a view to keep this criminal act of trespass so being committed by Nathu (deceased) and PW 1 Narain, they chose the night time by hiring the tractor of Narendra Singh Rao and, while committing criminal trespass, they also got the field ploughed at the back of assailants who were, admittedly, in long and established cultivatory possession of the field to the exclusion of Nathu (deceased) and his son Narain. As a result, this act of Nathu (deceased) as well as Narain (PW 1) amounted to criminal trespass on the field of assailants as described under Section 441, IPC which is punishable under Section 447, IPC. As a result, this act of Nathu (deceased) as well as Narain (PW 1) amounted to criminal trespass on the field of assailants as described under Section 441, IPC which is punishable under Section 447, IPC. Both Kodar (deceased) as well as Mahendra @ Gatta on learning about this high handed act being committed by the adversaries at the fall of night, they were left with no time or option to have immediately approached the public authorities and, instead, they rushed towards their field where criminal act of trespass on the property was being committed by Nathu (deceased) and his son Narain by ploughing the field with a tractor. When they were heading towards their field, both Nathu (deceased) and Narain left the field on the tractor being driven by PW 4 Partu heading towards their village and no sooner they had left the field and covered a little distance from there, they were confronted by the appellants Mahendra @ Gatta and his father Kodar (deceased) and the incident took place. 52. Therefore, firstly, when Mahendra @ Gatta and his father Kodar (deceased) suddenly learnt about criminal act of Nathu (deceased) and his son Narain, it was most natural on their part to have been deprived of the power of self-control by this grave and sudden provocation to immediately rushed to field and on interception outside their field, to have assaulted Nathu (deceased) and Narain. This act of Nathu (deceased) and Narain was the direct cause and result of depriving the assailants of the power of self-control giving them grave and sudden provocation and, resultantly, as provided under Exception 1 appended to Section 300, IPC which provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident and the provisos appended thereto further provide that the provocation was not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person, that the provocation was not given by anything done in obedience to the law or by a public servant in the lawful exercise of the powers of such public servants and that the provocation was not given by anything done in the lawful exercise of the right of private defence, and the act of the assailants of this case is squarely covered by Exception 1 and, accordingly, Section 300, IPC itself provides that except in the cases provided thereinafter excepted, culpable homicide is murder, if the act by which the death was caused was done with the intention of causing death etc. 53. 53. Therefore, as concluded hereinbefore, when the assailants abruptly and surprisingly learnt about the surreptitious act of criminal trespass so being committed by Nathu (deceased) and his son Narain, after the sun-set and night fall, this act of those persons clearly resulted in depriving the assailants of self-control by grave and sudden provocation so provided by the trespassers and the act of assaulting Nathu (deceased) and Narain (PW 1) was done under the immediate impulse of provocation and, in all probabilities, since the provocation was the grave and sudden and of such a nature as to deprive the assailants of the power of self-control since for an agriculturist the land is the only source of survival and, therefore, in the circumstances, the accused-persons could not have been expected to have recourse to the public authorities allowing the criminal trespassers to continue with the commission of the offences who seized to commit criminal trespass only at the time when the assailants being so provoked were approaching the field to act in exercises of their right of private defence of property against criminal act to trespass being so blatantly and surreptitiously committed by Nathu (deceased) and Narain. Besides, as also contended by the learned counsel for the appellants and so also borne out of record, having regard to the aforesaid provisions of Sections 97 and 104, IPC, since an act of criminal trespass on the field of the accused-persons was being committed by Nathu (deceased) and Narain and, accordingly, while the same was being committed, both the accused-persons rushed to their field to protest or object against the same and, before they could reach upon their field, both the persons so committed act of criminal trespass leaving the field, were on the verge of heading towards the field and, in the way itself, at a little distance from the field,they were intercepted by the accused persons resulting in this incident. 54. In view of these circumstances, the act of the accused-persons is not proved to be covered by any of the four clauses of Section 300, IPC and, instead, the act of the accused-persons is covered by Exceptions I and II to Section 300, IPC as well as general exceptions as provided under Sections 97 and 104, IPC. 54. In view of these circumstances, the act of the accused-persons is not proved to be covered by any of the four clauses of Section 300, IPC and, instead, the act of the accused-persons is covered by Exceptions I and II to Section 300, IPC as well as general exceptions as provided under Sections 97 and 104, IPC. Every person in possession of land is entitled to defend his possession against anyone who tries to eject him by force and, therefore, in these circumstances, the accused-persons must have had an apprehension that in case they approached Nathu (deceased) and his son Narain to 'restrain them from committing the act of criminal trespass on the field which was in their established and long cultivatory possession, they would be subjected to any assault and so, as also initially reported by PW 1 Narain in Ex.D. 1 first version, the accused-persons were armed with a lathi, a sickle and an axe which are all agricultural instruments and not only weapons of offence. Since after medical examination of the victims, the nature of weapons alleged to have been used in causing injuries to Nathu (deceased) and Narain have been changed and so, in the aforesaid circumstances, looking to the conduct of the injured persons as well as the assailants and the background of the incident, the possibility of initial use of sickle, axe as well as lathi cannot be excluded out right and, as a result, when there are certain lurking doubts about the nature of weapons used in causing injuries to the injured persons, there is every warrant for arriving at the conclusion that the act of the accused-persons in killing Nathu did not travel beyond the ambit of provisions of Section 304 Pt. I, IPC since the same is covered by the definition of culpable homicide not amounting to murder and, according, we are of the opinion that the learned trial judge committed a serious illegality, while holding the accused-persons liable for commission of offence under Section 302, IPC, for murder simpliciter instead of holding not amounting to murder being punishable under Section 304 Pt. I, IPC. I, IPC. Expection 2 of Section 300, IPC, provides that Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Consequently, the appellant acting in furtherance of common intention of his father, by committing murder of Nathu exceeded the private right of defence of property making him liable for commission of homicidal death not amounting to murder. 55. As already concluded and observed hereinbefore, since the accused-appellant Mahendra @ Gatta has been held liable for causing fatal injuries to the deceased Nathu with sharp and blunt objects and, in view of these circumstances, the conviction of appellant for murder of Nathu being punishable under Section 302, IPC simpliciter is not sustainable and these findings of the lower court are liable to be set aside. 56. However, as regards liability of the accused-appellant Mahendra @ Gatta for offence under Section 325/34, IPC for sharing common intention with his father Kodar for causing grievous injuries to Narain as held above, in view of provisions of Sections 96, 97 and 104, IPC.' Since Nathu (deceased) and his son Narain (PW 1) were committing offence of criminal trespass and hence there did occasion a right to the accused persons to exercise right of private defence of property and hence neither of them can be held liable for any offence other than causing death and hence Mahendra @ Gatta is entitled to acquittal and hence the impugned finding of his guilt under Section 325/34, IPC is liable to be set aside. 57. On the basis of aforesaid discussion, the accused-appellant Mahendra @ Gatta is entitled to acquittal of offence under Section 302, IPC and, instead, he is liable to be convicted under Section 304 Pt. I, IPC while his conviction under Section 325/34, IPC also deserves to be set aside. 58. As a result, we hereby accept these consolidated appeals of appellant Mahendra @ Gatta in part acquitting him of offence under Section 302, IPC setting aside his conviction and sentence thereunder and, instead, he is convicted under Section 304 Pt. I, IPC while his conviction under Section 325/34, IPC also deserves to be set aside. 58. As a result, we hereby accept these consolidated appeals of appellant Mahendra @ Gatta in part acquitting him of offence under Section 302, IPC setting aside his conviction and sentence thereunder and, instead, he is convicted under Section 304 Pt. I, IPC and is awarded sentence of seven years' R.I. and a fine of Rs. 5000/- and, in default of payment of fine, six months' R.I. We set aside his conviction under Section 325/34, IPC and so also the order of sentence under this section passed by the learned trial judge. We hereby order that as and when the amount of fine is realised by the trial court, the same would be paid to the widow of Nathu (deceased) as compensation. 59. Both the appeals are disposed of in the manner indicated above.Appeal Disposed of in Manner Indicated Above. *******