JUDGMENT S.K. Seth, J. A short point for consideration in this appeal is ambit of the right of private defence of property. This appeal is directed against the judgment dated 9-8-1997 passed by Sessions Judge, West Nimar, Mandleshwar in Sessions case No. 63 of 1996. By the impugned judgment, appellant has been convicted for having committed an offence punishable u/s 304 of the Indian Penal Code and has been sentenced to undergo 5 years rigorous imprisonment. Facts undisputed are that deceased was real brother of the appellant. Rukma PW.5 is the daughter of deceased Bhavsingh. Relevant facts necessary for disposal of this appeal are that on 26-11-1995, appellant is alleged to have murdered Bhavsingh. According to prosecution story, in the evening of date of the incident, deceased Bhavsingh under influence of liquor, set fire to his hut. Appellant who lived in a nearby hut came and objected. As per prosecution, appellant started abusing Bhavsingh, and suddenly picked up a lathi and dealt a blow on the head of Bhavsingh. As a result, Bhavsingh fell down. Rukma, daughter of Bhavsingh, witnessed the incident. Hearing her shouts, Kailash, her brother-in-law immediately rushed to the spot and found Bhavsingh dead. Other neighbours also came and Rukma informed them about the incident. FIR Ex.P.7 was lodged by Rukma at Police out post Kamkheda at about 12.30 in the night. Police registered the case u/s 302 and proceeded with the investigation. Dr. Ramesh Kumar Yadav, PW 4 performed the post mortem. Police on 5-12-1995 arrested appellant who had absconded after the incident. At the instance of appellant, a lathi was recovered. According to Dr. Yadav, injury sustained by deceased could be caused by lathi. Thus after completing the investigation, Police filed the charge sheet against appellant for an offence u/s 302. At the trial, appellant abjured his guilt. Learned Sessions Judge after appreciating evidence on record found that appellant is not guilty of having committed an offence punishable u/s 302 of the Penal Code therefore acquitted him of the said charge, but found him guilty of having committed an offence punishable u/s 304, Indian Penal Code. Accordingly, convicted and sentenced him as mentioned above. Learned counsel appearing for the appellant submitted that appellant is not guilty of any offence as he acted in exercise of right of private defence of property. Accordingly, convicted and sentenced him as mentioned above. Learned counsel appearing for the appellant submitted that appellant is not guilty of any offence as he acted in exercise of right of private defence of property. According to learned counsel for appellant, deceased in an inebriated condition set on fire his hut. This mischievous act of deceased raised reasonable apprehension in the mind of appellant that his adjoining hut was also in danger, therefore, appellant exercising his right of private defence of property caused injury in order to restrain or prevent deceased from committing any further mischief. According to learned counsel the act of appellant is covered by third clause of section 103 of the Indian Penal Code. Learned Dy. Government Advocate appearing for the State, while supporting impugned judgment, submitted that appellant is not entitled to take the plea of right of self defence of property for the first time in appeal. It was also contended that assuming without conceding that plea of right of private defence could be taken for the first time at the appellate stage, then in view of the evidence available on record, under para 4 of section 105 Indian Penal Code, at the time of inflicting injury, it could not be said that appellant had reasonable apprehension of danger as the commission of mischief by appellant was already over. Learned Counsel further submitted that judgment of Sessions Judge is based upon proper appreciation of prosecution evidence and the same does not call for any interference. I have heard learned counsel for the parties at length, perused the record and evidence. I will first deal with the objection raised by the learned Dy. Government Advocate with regard to tenability of plea of right of private defence of property for the first time in the appeal. The right of private defence is a precious right and it has been recognized and accepted in all civilized and societies within certain reasonable limits. No doubt, it is the duty of State to protect the life and property of its subject, but no State, however, large its resources, can afford to provide constant watch by a Policeman over every delinquent in the country. When individual citizen or his property is endangered, and immediate aid from the State machinery is not readily available, individual citizen is entitled to protect himself and his property. When individual citizen or his property is endangered, and immediate aid from the State machinery is not readily available, individual citizen is entitled to protect himself and his property. Russel on Crime (9th Edition) at page 491 stated A man is justified in resisting by force any one who manifestly intends and endeavours by violence or surprise to commit a known felony against his person, habitation or property. It is well settled that even if the accused does not plead self defence, it is open for the High Court to consider such a plea if same arises from the material on record, as has been held by the Supreme Court in Munshiram vs. Delhi Administration, AIR 1968 SC 702 . This Court in Randheer Singh Barelal vs. State of M.P., 1981 MPLJ 761 that even where the accused has not raised the plea of exercise of the right of private defence of property, he could get the benefit of it on the basis of the evidence led by the prosecution. In view of this settled legal position, we find no substance and merit in the first contention raised by counsel for the State. Next question that arises for determination is whether appellant had any right of private defence of property and was justified in exercising that right. Contention of learned counsel for appellant in this connection is that when deceased was setting his hut on fire, appellant came from his adjoining hut in order to prevent deceased from committing any further mischief and appellant just knocked on the head of deceased by picking up a lathi lying there. This contention has to be seen in the light of evidence led by prosecution. Entire prosecution case hinges upon the testimony of Rukma PW5, daughter of deceased Rukma PW5 is the only eyewitness in the case. Her version is as under. Her father and she were alone in the hut. Under influence of liquor her father set fire to his own hut. Her uncle, the appellant who was having his hut about ten paces away came and dealt a lathi blow on the head of his father who fell on the spot and the appellant absconded. The fire consumed her father's hut and died down. This is material available on record to the incident. Her uncle, the appellant who was having his hut about ten paces away came and dealt a lathi blow on the head of his father who fell on the spot and the appellant absconded. The fire consumed her father's hut and died down. This is material available on record to the incident. From her evidence it is clear that before appellant dealt a lathi blow, an altercation took place between her father and appellant. Considering the material discussed above, it is undisputed at this stage that the fire to the hut was set by the deceased. In other words, the act had already taken place. This is not a case where injury, to the extent of killing could be reasonably said to prevent commission of the mischievous act. So, this not a case where the appellant could be justified in acting in self-defence of property. In the result, the appeal is dismissed. The conviction and sentence awarded to appellant in hereby confirmed and maintained. The appellant is on bail. He is directed to surrender immediately his bail bonds before the trial Court to serve out the sentence. In the event of failure of appellant to surrender, as directed above, trial Court shall take all necessary steps in accordance with law to secure the presence of the appellant. Order accordingly. Final Result : Dismissed