Honble S.K. SHARMA, J.–This appeal owes its origin in the judgment dated August 01, 1997 of the learned Additional Sessions Judge, Kotputali, District Jaipur, whereby, the accused appellants were convicted and sentenced for having committed the murder of Kanha and Sultan, as under:- 1. Accused appellants Gada Ram and Kailash Under Sections 302 of the Indian Penal Code. Imprisonment for life with fine of Rs. 100/- each in default, to further suffer three months rigorous imprisonment. Under Sec. 147, 148, 324, 149, 323/149 of the Indian Penal Code. Rigorous Imprisonment for one year for each of the offences. Under Sec. 325/149 of the Indian Penal Code. Rigorous Imprisonment for two years each and a fine of Rs. 200/- in default, to further suffer one months rigorous imprisonment each. Under Sec. 447 of the Indian Penal Code. Simple Imprisonment for three months each. Accused appellants Jahara, Jagannath, Bhagaram, Ram Karan, Mohru, Smt. Geeta, Smt. Rewati and Smt. Mewali. Under Sections 302/149 of the Indian Penal Code, Imprisonment for lie with fine of Rs. 1000/- in default, to further suffer three months rigorous imprisonment. Under Sec. 147, 148, 324, 149, 323/149 of the Indian Penal Code. Rigorous imprisonment for one year each. Under Sections 325/149 of the Indian Penal Code. Rigorous imprisonment for two years each and a fine of Rs. 200/- in default, to further suffer one month rigorous imprisonment. Under Sec. 447 of the Indian Penal Code three months simple imprisonment. (2) All the sentences are directed to run concurrently. (3). The synopsis of the prosecution case is that PW. 21 Virendra Singh, Station House Officer, Police Station, Kotputali, District Jaipur recorded a `Parcha-bayan (Ex.P.1) of injured Gyarsa in B.D.M. Hospital, Kotputali at 10.15 A.M. on June 22, 1988. In the aforesaid statement Gyarsa discerned that some long standing litigation was going on between his party on one side and Gada Ram Gurjar (appellant) on the other. In that back-ground, on June 22, 1988 at around 7-8 A.M., accused appellants Gada Ram, Kailash, Bhaga, Jahara, Mohru, Ram Karan, Jagannath and wives of Ram Karan, Mohru and Jahara came on a Tractor to his fields at ``Battwala in order to forcefully plough the same. In pursuance thereof they stared ploughing the fields. Sultan brother of Gyarsa, Surja, Kanha, Adisal and Banwari came to the spot to intervene. In pursuance thereof they stared ploughing the fields. Sultan brother of Gyarsa, Surja, Kanha, Adisal and Banwari came to the spot to intervene. On their intervention accused appellants Gada Ram, Mohru, Ram Karan, Jahara and Kailash assaulted Kanha and Surja with Farsies made assault. In the assault, Sultan was belaboured by Gada Ram and others with Lathis and Farsies. Gyarsa was hit on the right hands wrist, left hand, head and neck with a Lathi by Kailash. Ram Karan assaulted Adisal, whereas, Banwari was assaulted by accused appellant Gada Ram. The women also participated in the assault with Lathies. Having felt that injured might have died, the appellants left the spot. All the injured were taken to Kotputali Hospital, where Kanha and Sultan were declared dead. (4). On the basis of the aforequoted `Parcha-bayan Police Station, Kotputali registered as case under Sec. 147, 148, 302, 323, 324, 447, 325/149 of the Indian Penal Code and investigation commenced. Site was inspected, the autopsy on the dead bodies of Sultan and Kanha were conducted vide Ex.P.17 and Ex.P.18 by Dr. Ashok Sothwal, PW. 14. Injuries of Banwari, Gyarsa, Adisal, Mana, Goli were also examined by Dr. Ashok Sothwal. The statements of the witnesses under sec. 161 Cr.P.C. were recorded. The accused appellants were arrested and at their instance weapons of offence were recovered. (5). On completion of investigation, charge sheet was filed. In due course, the case came up for trial by the learned Additional Sessions Judge, Kotputali. Charges under Sec. 147, 148, 302, 323, 324, 447, 325 and 149 of the Indian Penal Code were framed. The accused appellants denied the charges and claimed trial. The prosecution examined as many as 27 witnesses in support of its case. In the statements recorded under Sec. 313 Cr.P.C. the appellants pleaded innosance. Two witnesses were produced in support of defence version by the accused persons. The learned trial Court on conclusion of trial and after hearing the arguments convicted and sentence the accused appellants as indicated hereinabove. (6). Mr. S.R. Bajwa, learned Senior counsel canvassed that no offence under Sec. 302 I.P.C. is made out from the prosecution evidence against the appellant. The testimony of prosecution witnesses is riddled with innumerable contradictions and infirmities casting a grave shadow of doubt on the same. The prosecution witnesses have indulged in making material improvements, in Court, upon their earlier statements made before the Investigating Agency. The testimony of prosecution witnesses is riddled with innumerable contradictions and infirmities casting a grave shadow of doubt on the same. The prosecution witnesses have indulged in making material improvements, in Court, upon their earlier statements made before the Investigating Agency. (7). It is further contended that the land in dispute was in possession of accused appellants Gada Ram and the complainant party came to the land in order to take forceful possession of the same. The complainant party assaulted appellants Gada Ram and his son Kailash. The possession of the accused appellants is also borne out from the documents namely order or temporary injunction, Ex.D.25, Agreement, Ex.D.5, Will, Ex.D.6 and ``Bahi (Account book) Ex.D.3. (8). It is further urged that the accused appellants were bestowed with the valuable right of private defence of their persons as well as property as the complainant had entered in the fields in their possession and assaulted accused appellants Gada Ram and Kailash. (9). It is further contended that the prosecution has miserably failed to spell out the proximate cause and genesis of the occurrence. The presence of alleged eye witnesses at the place of incident does not find mention in the First Information Report. The possibility as such of introducing these alleged eye witnesses subsequently has not been conclusively ruled out. All the alleged eye witnesses happen to be close relations of the complainant party and hence are partisan witnesses. Their testimony has to stand the test of strict appreciation of ocular evidence of the prosecution, but it stands in contradiction with the medical evidence. The defence evidence produced by the appellants has been rejected by the learned trial Judge in a callous manner. (10). Reliance has been placed on the case of Jai Bhagwan and others vs. State of Haryana (1), Pohap Singh vs. State of Haryana & Others (2), Puran Singh and Others vs. The State of Punjab (3), State of Rajasthan vs. Sughad Singh and Others (4) and in the case of Lajo vs. Sukh Dev Singh and Others (5). (11). Per contra, Shri R.P. Meena, learned Public Prosecutor and Shri D.P. Pujari, learned counsel appearing for the complainant party supported the impugned judgment and contended that the charges framed against the accused appellants have been proved by the prosecution beyond reasonable doubt. (12). (11). Per contra, Shri R.P. Meena, learned Public Prosecutor and Shri D.P. Pujari, learned counsel appearing for the complainant party supported the impugned judgment and contended that the charges framed against the accused appellants have been proved by the prosecution beyond reasonable doubt. (12). It is urged that the land in question was in possession of the complainant party and the accused appellants were aggressors and they mercilessly inflicted injuries on the person of the deceased as well as other witnesses. It is established from the record that in addition to deceased person as many as four persons sustained injuries. It is also canvassed that in the facts and circumstances of the present case no right of private defence had occurred to the appellant. (13). Reliance was placed on the case of Murali vs. State of T.N. (6) and in the case of Jaswant vs. State of Haryana (7). (14). We have given our anxious consideration to the rival submissions and carefully scanned the record of the case. (15). From the material on record, it appears that Sheo bux had six sons namely Jagannath, Ram Lal, Suraj, Kanha, Sultan and Gyarsa. Jagannath subsequently was adopted by Ganga Sahai. Ram Lal died issue-less in the year 1987 and he adopted Banwari S/o Surja. Suraj, PW. 13 and his son Banwari, PW.2, Kanha and Suraj sustained injuries in the occurrence and they were declared died and Gyarsa PW. 3, accused appellants Gada Ram, Mohru,Ram Karan, Jahara and Bhaga Ram are sons of appellant jagannath and appellant Kailash is the son of Gada Ram, Parents appellants Smt. Geeta W/o Ram Karan, Smt. Rewati W/o Johara and Smt. Mewali W/o Mohru. From the above, it is evident that kith and kin of Sheo Bux were together in the instant case. (16). As per post mortem report Ex.P.18 deceased Kanha sustained there external injuries (i) diffused swelling (ii) incised would on right parietal region and (iii) incised wound on right arm. Deceased Sultan as per post mortem report Ex.P.17 sustained as many as nine external injuries which include lacerated wound on right parietal region, incised would over right shoulder, bruise over left shoulder, bruise over right shoulder, bruise on right scalper region, abrasion on right scalper region, lacerated wound on left side neck and diffused swelling on left forearm. Banwari, PW. 2 according to injury report Ex.P11 received two simple injuries. Gyarsa, PW. Banwari, PW. 2 according to injury report Ex.P11 received two simple injuries. Gyarsa, PW. 31 as per injury report Ex.P.15 received one simple injury by blunt weapon. As per injury report. Ex.P.12 Mana, PW. 7 received injury on left palm and Adisal, according to injury report Ex.P.16 sustained lacerated would over right parietal region which was found simple. (17). Injury reports of appellants Gada Ram and Kailash have also been placed on record by the defence. As per injury report Ex.D.20 appellant Gada Ram sustained four external injuries which includes swelling on right hand (Fracture) lacerated wound on left little finger, swelling on right elbow and swelling on right hand. (18). As per injury report Ex.D.22, appellant Kailash received eight external injuries which includes lacerated wound 2 cms. away from injury No. 1 on skull, lacerated wound on right side forehead, swelling on left eye, swelling on right forearm, swelling on left forearm, bruise at the back and bruise on left shoulder. (19). From the injury reports, it is thus established that complainant party in all received 17 injuries, whereas, appellants Gada Ram and Kailash received 12 injuries. (20). It also appears from the record that appellant Gada Ram instituted First Information Report Ex.P.15 on June 22, 1988 at 12.30 P.M. (21). A close look at the material on record, goes to show that fact of adoption of Banwari, PW. 2 by Ram Lal could not be proved by the prosecution. Rakha Ram PW. 23, though admits his signatures on adoption-deed (Ex.P.27) categorically anulls the execution of Ex. P.47. The witness further deposed that in the meeting of the community, the complainant party admitted the fakeness of Ex.P.47. The prosecution did not declare Rakha Ram PW. 23 as hostile. (22). In the cross-examination Panchi PW.5 stated that field measuring three bighas belonged to her, whereas, field measuring six bighas was of Ram lal and the occurrence had taken place in the filed measuring six bighas as is also evident. from the site plan. PW. 18 Jawana Ram in his cross-examination stated that jagannath and Gada Ram were not in possession over the field in dispute. from the site plan. PW. 18 Jawana Ram in his cross-examination stated that jagannath and Gada Ram were not in possession over the field in dispute. He further deposed that when Gyarsa, Surja, Kanha, Adisal, Banwari and Sultan armed with Lathis were proceeding towards the fields with Lathis were proceeding towards the fields with lathies in their hands, he, Umrao and Lachhu persuaded them not to proceed further as there was apprehension of quarrel. He requested them to intervene into the matter, but they declined his request. (23). From the site plan Ex.P.23, it is established that occurrence had taken place at point B which was in possession of appellant Gada Ram. PW. 21 Virendra Singh. S.H.O. who investigated the case in his cross-examination, admitted that `boring and `crop at the place of occurrence belong to the accused party. (24). A close scrutiny of material on record, further reveals that notarized agreement dated February 26, 1985 Ex.D.5 was executed by Ram Lal who was the original owner of land in dispute. Ex.D.6 is a Registered Will dated dated january 27, 1979 executed by Ram lal in favour of accused appellant Jagannath (father of Gada Ram). Ex.D.7 is the memo executed by complainant party to disclaim the public notice, which had been earlier published in Dainik Navjyoti. Ex.D.23 and Ex.D.24 are the plaint and the order sheets of the civil suit showing possession of accused party. (25). A look at the statement of Gyarsa, PW. 3 demonstrates that in his cross-examination, he admitted that they went to the place of the occurrence with determination and inflicted injuries which stick on the person of Gada Ram and Kailash. Mana, PW. 7 also admits that Gada and kailash had received injuries during fight. Adisal, PW. 8 also admits that after arrival of complainant party injuries were received by Kailash and Gada. Banwari, PW. 9 in his deposition stated that the field was already ploughed when the complainant party arrived there and that where was only one field called ``Battwala. Umrao, PW. 19 also stated that complainant party went to the fields with lathies. Though, PW. 22 Arjun Lal Patwari was produced by the prosecution, but he nowhere, stated that the complainant party was in possession of the land in dispute. (26). Umrao, PW. 19 also stated that complainant party went to the fields with lathies. Though, PW. 22 Arjun Lal Patwari was produced by the prosecution, but he nowhere, stated that the complainant party was in possession of the land in dispute. (26). In view of the aforequoted facts, we now proceed to consider the arguments advanced before us by Shri S.R. Bajwa, learned Senior counsel appearing for the appellant. (27). Their lordships of the Supreme Court in case of Puran Singh vs. State of Punjab (supra) observed that the right of private defence of person or property is to be exercised under the following limitations:- (i) that if there is sufficient time for re-course to the public authorities the right is not available. (ii) that more harm than necessary should not be caused. (iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned. (28). Their lordships in para 18 of the judgment further observed thus:- ``.....It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim could extends to the causing of death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation. (29). In order to attract the provisions of Sec. 149 the prosecution must establish that there was a unlawful assembly and that the crime was committed in furtherance of common object of the assembly. (30). As already stated in the instant case all the accused appellants were present on the filed and the complaint party was the aggressor. (29). In order to attract the provisions of Sec. 149 the prosecution must establish that there was a unlawful assembly and that the crime was committed in furtherance of common object of the assembly. (30). As already stated in the instant case all the accused appellants were present on the filed and the complaint party was the aggressor. The prosecution, from the material on record, has failed to establish that there was common object of the accused appellants to commit the offence. Under these circumstances the provisions contained in Sec. 149 I.P.C. cannot be invoked. (31). From the statements of PW. 1 Har Dan, PW. 2 Banwari, PW. 3 Gyarsa, PW. 5 Panchi, PW. 7 Mana, PW. 8 Adisal, PW. 9 Banarsi, PW. 10 Malee and PW. 20 Ram Karan, it is evident that accused appellant Gada inflicted injury on the head of Sultan by Farsi and Kailash caused injury on the head of Kanha by an axe. They alongwith other accused persons also inflicted injuries on the person of Banwari, Mana, Gyarsa and Adisal. Their statements are corroborated y the deposition of Dr. Ashok Sothwal, PW. 14 who examined the above named persons and conducted the autopsy on the dead bodies. (32). Now, it is to be examined whether the right of private defence of person or property was available to the accused persons? It has come on record from the statement of the prosecution witnesses that accused appellants were present at the place of occurrence prior to the incident and complainant party went there in order to prevent them form ploughing the field and at that time they were armed with lathies. Although, some village persons also tried to stop them form proceeding towards the filed, but they did not accede to their request. In the scuffle between the parties, Gada and Kailash also sustained injuries. PW.2 Banwari has admitted that Lachhu, Jawana and another persons stopped them to go to the field. PW. 3 Gyarsa has admitted that they inflicted injuries on Gada and Kailash. PW.7 Mana and PW. 8 Adisal have also admitted that Kailash and Gada sustained injuries during fight. PW. 18 Jawana Ram has also deposed that he, Umrao, Lalu Ram, Dhanna, and Lachhu had tried to dissuade the complainant party from going to the filed with lathies in their hands. PW.7 Mana and PW. 8 Adisal have also admitted that Kailash and Gada sustained injuries during fight. PW. 18 Jawana Ram has also deposed that he, Umrao, Lalu Ram, Dhanna, and Lachhu had tried to dissuade the complainant party from going to the filed with lathies in their hands. He has also deposed that disputed filed was in possession of Jagannath and Gada. PW. 19 Umrao has also corroborated the statement of Jawana Ram. PW. 21 Virendra Singh, Investigating Officer has earlier stated in his deposition that charry and tube-well on the place of occurrence belong to accused party. (33). From the evidence discussed hereinabove, it is crystal clear that accused party was present on the disputed land prior to the incident and the complainant party armed with lathies went to the field, inspite of there being persuasion by the villagers not to proceed to the filed. The field where occurrence had taken place was in the possession of the accused party. Accused appellants Kailash and Gada also sustained injuries which includes lacerated would on the head and one grievous injury on the hand. Hence, it can be concluded that complaint party was aggressor and also inflicted injury on the person of accused appellants Gada and Kanha. (34). In the facts and circumstances of this case, it can safely be concluded that the accused had right of self defence to their persons and property. (35). Now, the question that needs to be answered is as to whether the accused person exceeded the right by causing death of two persons Sultan and Kanha. Looking to the injuries of appellants Gada and Kailash, it can be observed that they exceeded the right of self defence. The other accused appellants are guilty of causing simple injuries and they were within their right of self defence. (36). Exception-2 appended to Sec. 300 I.P.C. reads as under:- ``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. (37). (37). In the facts and circumstances of the present case, the case of accused appellants Gada and kailash is covered by Exception-2 appended to Sec. 300 I.P.C. and in our considered opinion, they are guilty of having committed an offence u/Sec. 304 Part-II I.P.C. They caused the injuries to the deceased in good faith of the right of private defence of their persons or property, yet they exceeded, the power given to them by law and caused the death of Sultan and Kanha against whom they exercised such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. (38). From the above discussion, we are of the view that accused appellants jahara, Jagannath, Bhaga Ram, Ram Karan, Mohru, Smt. Geeta, Smt. Rewati and Smt. Mewali cannot be held guilty under Sections 302/149, 147, 148, 447, 323/149, 324/149 and 325/149 I.P.C. They stand acquitted from the aforesaid charges. Accused appellants Gada and Kailash stand acquitted from the charges u/Sec. 302, 323, 147, 148, 324, 447, 325/149 I.P.C. and we find them guilty under Sec. 304 Part-II of the I.P.C. The accused appellants Gada and Kailash have remained in custody for a period of about five years. The ends of justice would be met to sentence the accused appellants Gada and Kailash to the period already undergone by them. (39). In the result, we allow that appeal of the accused appellants Jahara, Jagannath, Bhaga Ram, Ram Karan, Mohru, Smt. Geeta, Smt. Rewati and Smt. Mewati. While, setting aside their conviction, we acquit them from the charges under Sec. 302/149, 147, 148, 447, 323/149, 324/149 and 325/149 of the Indian Penal Code. They are on bail. They need not to surrender and their bail bonds stand discharge. (40). The appeal of the accused appellants Gada Ram and Kailash stands partly allowed. We convert their conviction from Sec. 302 to Sec. 304 Part-II of the Indian Penal Code and sentence them to the period already undergone by them. We, however, acquit the accused appellants Gada Ram and Kailash from the charges under Sec. 302, 323, 147, 148, 324, 447 and 325/149 of the Indian Penal Code. The accused appellants Gada Ram and Kailash are in custody. They shall be released forthwith, if not required in any other case.