JUDGMENT 1. This appeal Under section 374(2) Cr.RC. is directed against the judgment and order dated May 20, 1997 whereby the learned Addl. Sessions Judge, Dausa, in Sessions case No. 36/95, held the appellant Kishan Lal guilty of the offence Under section 302 IPC, convicted him as such and sentenced him to imprisonment for life and a fine of Rs. 2000/-. 2. The relevant facts are these : I. About 13-14 k.m. away in the west from Lalsot town, there situate village Daulat Pura and Thuni Dhirajpura. Prosecution witnesses are residents of village Daulatpura. The accused-appellant and other accused persons (since acquitted) are residents of Thuni Diraipura. Parties on both sides are agriculturists. They have their fields on the boundaries of their respective villages. Khasra No. 8 of village Daulatpura, belonging to Nathu and other Brahmins, lies in between their fields. II. It is in the background of the above setting of fact situation that the prosecution case is that on the fateful day, January 25, 1995, at about 10 or 11 in the morning Genda, deceased was working in his field. PW 1 Gopal, PW 2 Chotia, PW 3 Laliu, PW 4 Manna Lal, PW 7 Ramji Lal and PW 8 Nehnoo Ram, all .closely or somewhat distantly related to the deceased in one way or the other, were working at their respective fields nearby. It is alleged that certain cattle belonging to the appellant strayed into the field of Genda deceased and damaged his standing crop. The deceased drove the cattle out of his field. This act of the deceased annoyed the appellant and his men who were present at their field nearby. Kishan Lal, appellant, and Anandi Lal, Gopi, Bhagoti, Sheo Narain, Moti, Sheopat, Kailya, Ganga Ram and Bhoriya co-accused (since all acquitted by the trial court) formed themselves into an unlawful assembly with the common object of causing death of Genda deceased and opened an armed assault on him. Chotiya and Ramji Lal tried to rescue the deceased from the assault but they were also belaboured. Other witnesses rushed to the place of occurrence. On seeing them approaching there the appellant and other accused ran away. III. In the course of the incident Chotiya and Ramji Lal sustained simple injuries with blunt weapons while Genda deceased sustained simple as well as grievous injuries with such weapons. Other witnesses rushed to the place of occurrence. On seeing them approaching there the appellant and other accused ran away. III. In the course of the incident Chotiya and Ramji Lal sustained simple injuries with blunt weapons while Genda deceased sustained simple as well as grievous injuries with such weapons. The injuries caused to Genda on head proved fatal and he succumbed to his injuries "within 24 hours prior to his post-mortem examination at 1.00 p.m. on 26.1.95", as stated in the post-mortem examination report Ex.R 31. IV. The appellant Kishan Lal substantively arid the rest of the nine persons, as named above, constructively, were tried for having caused death of Genda and simple hurt with blunt weapons to Chotia and Ramji Lal. Whereas the other nine accused were acquitted of all the offences, the present appellant was found guilty of the offence punishable Under section 302 IPC and was convicted and sentenced in the mariner stated above. V. The.plea taken by the appellant in his defence was that he had purchased Khasra No. 8 from Nathu and other Brahmins of Village Daulatpura and was in possession of the said field, since much before the day of incident, to the. annoyance of the prosecution witnesses. On the fateful day when he and Smt. Bhagoti, were working in that field the deceased and the prosecution Witnesses opened an armed attack on them causing simple and grievous hurt to them. In substance the appellant took the plea of self detence of property as well as of person. 3. Mr. Biri Singh, the learned counsel for the appellant, urged that the learned trial Judge erred in law and on facts in not appreciating the prosecution as well as defence evidence in right perspective. The learned counsel particularly submitted that it was fuliy established on record from the prosecution evidence itself that the incident had taken place on the land of Khasra No. 8 which was unquestionably in possession of the appellant and his family and that the deceased and the prosecution witnesses, with a view to take forcible possession of the said field, had opened an armed attack on the appellant and old Smt. Bhagoti (55 Yrs.). Mr. Mr. Biri Singh submitted that the plea of the appellant of exercise of the right of private defence, of property and person, by him against the aggression made by the deceased and the prosecution witnesses, was not only clearly borne out of the prosecution evidence itself but was also fully substantiated by the wholly reliable defence evidence. 4. The learned Public Prosecutor, on the other hand, supported the judgment and order under appeal and tried his best to explain the obvious conflict over the actual place of occurrence between the direct evidence of the eye-witnesses and the circumstantial evidence consisting of the facts noticed and found by the Investigating Officer on the spot at the time of his local inspection of the place of occurrence. 5. After having heard the learned counsel on both sides and on a close study of the evidence obtaining on the record of the trial court we are of the considered view that this appeal should be allowed. 6. It was not disputed before us that on the relevant day and time and in, the jungle of the two adjoining villages-Daulatpura and Thuni Dhirajpura an incident of marpeet had taken place in between the parties and in 'such incident injuries with blunt weapons to the deceased, PW 1 Ramji Lal and PW 2 Chotia, on the prosecution side, and to Kisnan Lal appellant and Smt. Bhagoti, on the accused side, were caused. It was also not disputed that the deceased had sustained fatal injuries with blunt weapon on his head and that such injury or injuries were authored by the appellant. This position of facts is fully established from ocular as well as medical evidence brought by the parties on the record of the case. PW 1 Gopal, PW 2 Chotia, PW 3 Lallu, PW 4 Manna Lal, PW 7 Ramji Lal and PW 8 Nehnoo Rarn, have stated that a marpeet had taken place on the relevant day and time and that in such marpeet PW 2 Chotiya, PW 7 Ramji Lal and Genda deceased had sustained injuries with blunt weapons.The statements of these witnesses to that extent are corroborated by the medical evidence, led through the statements of PW 5 Dr. Hari Prasad, Medical Officer, then posted at the Govt. Hospital/Dispensary at Lalsot and PW 12 Dr. YN. Hari Prasad, Medical Officer, then posted at the Govt. Hospital/Dispensary at Lalsot and PW 12 Dr. YN. Sharma, who conducted the autopsy on the dead body of Genda deceased on 26.1.1995 at Sawai Man Singh Hospital at Jaipur. 7. PW 6 Dr. Hari Prasad has stated that on his examination on 25.1.95 at about 3.35 p.m. he had noticed one swelling with bruise 3 cm x 2 cm on the lateral aspect of left elbow joint and complaint of pain on right shoulder joint on the person of PW 2 Chotia and a lacerated wound with nail injuries on terminal phalanxes of the left index and middle fingers, an abrasion on the upper aspect of right shoulder joint and a bruise on the dorsal aspect of right wrist joint of PW 7 Ramji Lal. According to the witness injuries to both the above-named prosecution witnesses had been caused with blunt weapons within the last 24 hours prior to the examination of their persons by him. 8. In the same continuation Dr. Hari Prasad stated that Kishan Lal appellant was found having a lacerated wound 5.5 cm x 1 cm x scalp deep on right parital region, a bruise with swelling 1 cm x 2 cm on sub-scapular region of back on right side and complaint of pain on right buttock with no visible mark of injury present there on his person and Smt. Bhagoti having on her person a bruise with swelling 7 cm x 5 cm on the medical aspect of her right thigh. The witness has told that the injured persons on both sides had been examined by him almost at the same time on police request, and injuries to all of them had been caused with blunt weapons within the last 24 hours. 9. PW 12 Dr. YN. Verma stated that on the dead body of Genda deceased he had observed 11 injuries consisting of bruises, abrasions and swellings on various parts of his body including right parital and left occipital bones of his head. According to this witness depressed fractura of right parital bone causing laceration of brain and accompanied with haemotoma under those bones was noticed. The witness opined that the injuries to those bones of the head and laceration of the brain under them had caused coma and that had led to the death of the deceased. According to this witness depressed fractura of right parital bone causing laceration of brain and accompanied with haemotoma under those bones was noticed. The witness opined that the injuries to those bones of the head and laceration of the brain under them had caused coma and that had led to the death of the deceased. In his opinion the injuries sustained by the deceased were ante mortem in duration and were sufficient to cause death in the ordinary course of nature. 10. It is thus established on record also that an incident of marpeet did take place at the relevant day and time and in such incident, three persons, including Genda deceased, on the prosecution side and two persons, including the appellant himself on the defence side, had sustained injuries with blunt weapons. It is also established that the injuries caused to Genda deceased had led to his death and that the injuries caused to him were sufficient to cause death in ordinary course of nature. 11. Now the pertinent question that arises for consideration in the present case is whether the said incident had taken place in or on the field of Genda deceased as is the case of the prosecution, or it had taken place on the land of Khasra No. 8 which was in possession of the appellant, as is the defence version of the incident. No doubt the learned Public Prosecutor vehemently urged that this pertinent question was required to be answered on the basis of the statements of the prosecution witnesses, who have been examined as eye- witnesses to the occurrence, but we find that in the facts and circumstances of the case, the documentary evidence should be read in the light of the cross-examination of the prosecution witnesses and the statements of the three witnesses, namely DW 1 Suraj Mai, DW 2 Kalyan and DW 3 Bhori Lal. The statement of PW 11 Bhagwan Sahay, ASI, P/s. Lalsot, who inspected the place of occurrence in this case on the following day and observed certain material facts on the spot there, cannot also be overlooked in the appreciation of the evidence of the eye-witnesses who, incidentally and un-deniably, are related witnesses. 12. The statement of PW 11 Bhagwan Sahay, ASI, P/s. Lalsot, who inspected the place of occurrence in this case on the following day and observed certain material facts on the spot there, cannot also be overlooked in the appreciation of the evidence of the eye-witnesses who, incidentally and un-deniably, are related witnesses. 12. On a close study of the prosecution evidence it is gathered that it is not a disputed fact that the field belonging to Nathu Brahmin, situates adjacent to the field of Shiv Narain, a member of the accused party. PW 1 Gopal has stated that some stones were lying in that field and that the appellant used to tie his cattle in the open field of Shiv Narain. There was a well also in that field. PW 2 Chotiya has denied his or deceased's possession over that and, instead, admitted possession of the accused party on the said field. PW 3 Lallu Ram also stated almost same facts. PW 4 Manna Lal stated that towards south of Shiv Narain's field lies a field belonging to the Brahmins and that in the field of the Brahmins there was a public way and thereafter lies the field belonging to Genda, deceased. PW 7 Ram Ji Lal though denied that the field belonging to the Brahmins was in possession of Shiv Narain (co-accused) and asserted that the Brahmins themselves were in possession of that field yet he did not assert possession thereof in him. He admitted that Genda, deceased, or any other prosecution witness was not in possession of the field, belonging to the Brahmins. Similarly PW 8 Nanu Ram, who is the informant in the present case, stated that the stones were not lying in Sonya's field but they might be lying in the fields of the Brahmins. 13. To all these witnesses clear suggestions were put by the defence to the effect that the deceased and the prosecution witnesses wanted to take forcible possession of the field, belonging to Nathu Brahmin, which was stated to be in possession of the accused party. Some of the witnesses, however, admitted that regarding the same incident, the accused party had also lodged a cross case. Some of the witnesses, however, admitted that regarding the same incident, the accused party had also lodged a cross case. Any way, it comes out clearly from the prosecution evidence itself that at the time of incident the field belonging to the Brahmins, which was quite adjacent to the field of Shiv Narain of the accused party, was vacant and that some stones, belonging to the accused party, were lying therein. Ex. D. 7 is the copy of the charge sheet submitted by the police in the cross case wherein Chotiya and Ram Ji Lal, witnesses, were charge sheeted for having committed the offence, punishable Under section 323, 447 IPC against the accused party. Ex.D. 8 is a document proved to have been written by Nathu Lal Brahmin regarding the sale of his share in Khasra No. 8 aforesaid to the accused party for Rs. 19,000/-. This document is dated 11.12.1988 and has been proved by DW 1 Suraj Mai, who is one of the executant's of the said document. Infact, on behalf of prosecution Ex.P 32 was tendered in evidence. This document, written on simple paper, stated that since there was some dispute between the prosecution witnesses and the deceased on the one hand and the appellant and other co- accused on the other regarding the possession of Khasra No. 8, belonging to Nathu Lal and other Brahmins, and regarding which a document had earlier been written by the Brahmins in favour of the accused party, shall not be disposed of to any person and shall be kept vacant by the parties. DW 2 Kalyan has stated that the document Ex. P 32 was never written in any Panchayat and that even if one was ever written, the same was not given any effect by any of the parties. DW 2 Kalyan is stated to be one of the signatory to Ex.D. 8. It is thus evident that the claim of the appellant that Khasra No. 8 belonging to Nathu Lal and other Brahmins, was in his possession much before the day of incident had good basis in prosecution evidence itself. DW 2 Kalyan is stated to be one of the signatory to Ex.D. 8. It is thus evident that the claim of the appellant that Khasra No. 8 belonging to Nathu Lal and other Brahmins, was in his possession much before the day of incident had good basis in prosecution evidence itself. The admission of that fact by the prosecution witnesses in their cross-examination read with the statements of DW 1 Suraj Mai and DW 2 Kalyan alongwith the documents, exhibited as Ex.R 32 on behalf of the prosecution and Ex.D. 8 on behalf of the defence, leaves no room for doubt that at the time of incident the appellant was in possession of the said field and that some stones belonging to him were lying there. It is also gathered from the contradicted portions in the statements of the witnesses, recorded under section 161 Cr.RC. and which portion have duly been proved at the trial, that the deceased and the prosecution witnesses were not ready to approve that the Brahmins should sell the said field to the appellant or other member of his family. For that reason the parties were, having strained relations in between them. 14. In so far as the question as to where the incident h#d taken place is concerned, the prosecution case is that it had taken place inside the field in possession of Genda, deceased. It is in evidence that at the relevant time 'sarso' crop had been sown in the said field of the deceased. The eye-witnesses, named above, have unanimously stated that not only the crop, standing in the field of the deceased, had been damaged by cattle grazing and trespass, but also that blood which oozed out of the wounds of the deceased and other injured persons, had fallen on the ground. On the basis of such statements of the eyewitnesses the learned Public Prosecutor vehemently urged that the occurrence should be held to have taken place in or on the field of the deceased and, therefore, the accused party would be and has rightly been held as aggressor. 15. No doubt if we go by the statements of the eye- witnesses, the place of occurrence should be declared to be the field of the deceased. But such a position does not fit in the facts and circumstances of the case. It was the month of January. 15. No doubt if we go by the statements of the eye- witnesses, the place of occurrence should be declared to be the field of the deceased. But such a position does not fit in the facts and circumstances of the case. It was the month of January. Wheat and 'sarson' crop is generally sworn, in this part of the State, in the months of October-November. By January, the plants of the crop would be no more than 3 or 4 ft. in height. The eye-witnesses have stated that they had been working in their respective fields and that the deceased was also working in his field. If that was so, certain cattle, entering into the field of Genda, deceased, would have been noticed by the eye-witnesses and the deceased or at least by some of them and at that very point of time the deceased would have driven the cattle out of his field, giving them no opportunity to cause damage to the standing plants in a considerable area of the field. That apart, the plants, eaten by the cattle as also those crushed by them under their feet, would have been naturally there. Such signs of cattle grazing and cattle trespass would be available for observation by the police officer at the time of his inspection of the place of occurrence on the very following day. But PW 11 Bhagwan Sahay, ASI, who inspected the place of occurrence at the following day and prepared the site map Ex.P 7 empathetically denied that any signs of cattle grazing or cattle trespass were found in the field of the deceased. Instead he asserted that signs of an incident having taken place, at point 'X', existing on the land of Khasra No. 8, were found. This version, stated by RW. 11 Bhagwan Sahay, fits in the facts and circumstances of the case as well. 16. If the cattle of the appellant had trespassed into the field of the deceased and damaged the crop, standing therein, it was the deceased who would feel annoyed at the wrongful loss, caused to his standing crop of 'sarso' by the cattle belonging to the appellant. The prosecution party could, therefore, have the reasons to scold and even to rebuke and attack upon the appellant. The prosecution party could, therefore, have the reasons to scold and even to rebuke and attack upon the appellant. The appellant, who would in such a situation be a guilty person of knowingly or unknowingly allowing his cattle to enter into the field of the deceased, would not easily insist in the continuation of his wrongful act. If the deceased had driven the cattle out of the field there could have been no occasion for the appellant and the co-accused to enter into the field of the deceased and assault him there. It cannot be over looked that in between the field of the deceased and that of the Brahmins (Khasra No. 8), which is proved to be in possession of the appellant, there was a through fare. The incident could have, at the most, taken place in the open land of the way, if the deceased had really driven out the appellant's cattle out of his field. But that was not so. Therefore, as stated by PW. 11 Bhagwan Sahay, the signs of an incident, having taken place on the land of the open field of Khasar No. 8, clearly established that the occurrence had taken place there and not in or on the field of the deceased. 17. As stated earlier Khasra No. 8, belonging to the Brahmins, was in possession of the appellant much before the day of the incident. The prosecution party also wanted to purchase that field and, therefore, there was dispute between them and the accused party. As admitted by the prosecution witnesses, Kishan Lal, appellant, had his 'pator' on the land of Khasra No. 8. He had collected some stones also there to carry on, possibly, some further construction on the said plot. Such acts of the appellant could have provided an opportunity and cause to the prosecution witnesses and the deceased to open an assault on Kishan Lal, appellant and his men. In fact the injuries found on the person of the appellant Kishan Lal and Smt. Bhagoti (55 Yrs.) clearly suggest that an assault was opened on them. The presence of Smt. Bhagoti in the open field of Khasra No. 8 appears to be quite natural as there was also a well in Kishan Lal's adjoining field besides his 'pator' on the land of Khasra No. 8. The presence of Smt. Bhagoti in the open field of Khasra No. 8 appears to be quite natural as there was also a well in Kishan Lal's adjoining field besides his 'pator' on the land of Khasra No. 8. It does not appeal to our reasons that in the presence of 9 male members in the party of the appellant, an old lady of 55 years of age would also participate in the mar-peet of the prosecution witnesses On such evidence, therefore, the theory advanced by the defence appears not only highly probable but also most natural and fits in the facts and circumstances of the case as against the theory advanced by the prosecution. It is, therefore, held that the prosecution had failed to prove that the appellant and/or other persons were the aggressors and had attacked upon the deceased and other prosecution witnesses The facts established on record of the case clearly make out a case of self-defence of property and person, available to the appellant and his men. 18. The question then arises whether the appellant had exceeded the right of private defence of his property and person in the present case. It has been noted above that Chotia, PW 2 and Ram Ji Lal, PW 7 had been caused minor simple injuries with blunt weapon. Genda, deceased had no doubt been caused several injuries, including injuries to right parital and left occipital bones, resulting in depressed fracture of his right parital bone and laceration of brain thereunder. When the prosecution witnesses and the deceased are found to be the aggressors then the appellant was justified in defending such aggression by use of appropriate force. In the heated moments, when passions are high, the acts, conduct and behaviour of the parties involved cannot be measured in golden scales. The appellant himself had sustained some injuries on the head and a lady had also sustained some injuries with blunt weapons. Under such circumstances, if Kishan Lal, appellant, had blow ed one or two blows on the head of the deceased, fie cannot be held to be guilty of having exceeded the right of private defence of his property and person. Under such circumstances, if Kishan Lal, appellant, had blow ed one or two blows on the head of the deceased, fie cannot be held to be guilty of having exceeded the right of private defence of his property and person. In that sense of the matter we are clearly of the opinion that whereas the prosecution had failed to prove that the appellant and/or his men were the aggressors, the appellant had succeeded in establishing the existence of a right of private defence of his property and person and he had further succeeded in proving that he had not exceeded the permissible limits in the exercise of such right. Viewed thus, the appellant in entitled to the benefit of doubt in the facts and circumstances of the case. 19. In view of the above, the impugned judgment and order dated 20.5.1997, relating to the present appellant, is hereby set-aside. The conviction and sentence of the appellant Kishan Lal S/o. Shyonarain for offences Under section 302 IPC are hereby set-aside. Consequently the appeal is allowed. The appellant is in Jai. He shall be released forthwith, if not wanted in any other case. *******