JUDGMENT 1. The appellants were indicted before the learned Sessions Judge Karauli in Sessions Case No, 5/97 for having committed murder of Batti Lal. The learned trial judge vide judgment dated February 2, 1999 convicted and sentenced the appellants as under: Bharosi U/s. 302 IPC to suffer Life Imprisonment and to pay fine of Rs. 1,000/. In default thereof to further suffer simple imprisonment for three months. U/s. 323 IPC to suffer three months' simple imprisonment. U/s. 341 IPC to suffer one month's simple imprisonment. U/s. 447 IPC to suffer one month's simple Imprisonment. Ramji Lal: U/s. 302/34 IPC to suffer Life Imprisonment and to pay fine of Rs. 1,000/. In default thereof to further suffer simple imprisonment for three months. U/s. 323 IPC to suffer three months' simple imprisonment. U/s. 341 IPC to suffer one month's simple Imprisonment. U/s. 447 IPC to suffer one month's simple imprisonment. All the substantial sentences were ordered to run concurrently. 2. In brief the prosecution is that Hulas' PW. 3 submitted a written report with the police station Khudgaon with the averments that on October 7, 1996 when he along with his son Batti Lal had gone to their field Khudawala to look after the crop of groundnuts they found appellant Bharosi uprooting the groundnuts. When they made protest, Bharosi started inflicting lathis blows on them. Bharosi gave first blow on the head of informant by lathi and another injury was inflicted on the index finger of the left hand. Bharosi also inflicted lathis blows on the head, right hand and shoulder of Batti Lal. In the meanwhile appellant Ramji Lal came over there and he also gave lathi blows to the wife of the informant. When Janki and Habudya came, Bharosi and Ramji Lal fled. On the basis of the said report, a case under Sections 341, 447, 379 and 323 IPC was registered and investigation commenced. Injuries sustained by Batti Lai and Hulasi were got examined. On October 10, 1996, Batti Lal died and the case was converted into one under Section 302 IPC. On completion of the investigation, charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge, Karauli. Charges under Sections 341, 447, 323, 302, 307, 325, 307/34 and 325/34 IPC were framed. The appellants denied the charges and claimed trial. On completion of the investigation, charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge, Karauli. Charges under Sections 341, 447, 323, 302, 307, 325, 307/34 and 325/34 IPC were framed. The appellants denied the charges and claimed trial. The prosecution examined as many as witnesses in support of its case. In their explanation under Section 313 Cr.P.C. the appellants claimed innocence. No witness in defence was however, examined. On hearing the final submissions, the learned Sessions Judge, Karauli convicted and sentenced the appellants as indicated hereinabove. 3. We have heard the rival submissions and scanned the record. 4. In order to establish that the death of Batti Lal was homicidal, the prosecution has examined Dr. D.K. Sharma PW. 25, who conducted autopsy on the dead body of Batti Lal. As per the post mortem report Ex.P. 31 the 1 deceased sustained following ante mortem injuries: (1) Stitched wound of size 2.5 cm extending from right side forehead through right parietal crossing midline. (2) Stitched wound of size 14 cm long present on Rt. fronto-parietal s region. In the opinion of the doctor, the cause of death was coma brought about as a result of ante mortem injuries to brain and skull which were sufficient to cause death in the ordinary course of nature. 5. Injuries sustained by Batti Lal were also got examined on October 7, 1996 and vide injury report Ex.P. 26. Batti Lal sustained following four injuries: (1)Red contusion 6 cm. X 6 cm. on Dorsum of left hand; (2)Incised wound 3 cm X 1/2 cm X 1/2 cm on right parietal region of skull: (3)Lacerated wound 4 cm X 1 cm X 1/2 cm on mid fronto parietal region of skull, and (4)Lacerated wound 8 cm x 1 cm X 1/2 cm on mid occipito parietal region of skull. 6. Informant Hulasi PW. 3 also sustained injuries and vide injury report Ex.P 27, the following two injuries were found on his person: (1)Contusion 6cm X 6 cm on left occipital region of skull. (2)Lacerated wound 1 cm x 1 cm on Palmer aspect of distal part of left index finger. 7. PW. 2 Smt. Bharosi wife of Hulasi also sustained injuries and vide Info" report Ex.P. 28, the following injuries were found on her person: (1)Contusion 7 cm X 7 cm on right parietal region of skull. (2)Lacerated wound 1 cm x 1 cm on Palmer aspect of distal part of left index finger. 7. PW. 2 Smt. Bharosi wife of Hulasi also sustained injuries and vide Info" report Ex.P. 28, the following injuries were found on her person: (1)Contusion 7 cm X 7 cm on right parietal region of skull. (2)Red contusion 6 cm X6 cm on middle & post side of right leg. 8. At this juncture it will be appropriate to refer to the injuries sustained b, appellant Ramji Lal, who got examined on October 7, 1996 and following injuries were found on his person: (1)Lacerated wound (Linear) 5 cm X1 cm x 1/2 cm on right frontal region of skull; and (2)Abrasion 1 cm X1 cm on Dorsum of middle of right middle finger. Vide X-ray report Ex.D. 14 fracture of frontal bone was found and on the basis of the X-ray report, Injury No. 1 was shown as grievous in nature. 9. Appellant Bharosi was also examined for his injuries on October 7, 1n96 vide injury report Ex.D. 13. Bharosi had sustained the following injuries: (1) Abrasion 1 cm X 1 cm on medial side of left wrist; and (2) Red contusion 2 cm X2 cm on Dorsum of right hand. 10. On a close scrutiny of the material on record we find that the finding of conviction of the learned trial judge is mainly based on the testimony of informant Hulasi PW 3, Smt. Bharosi PW 2 and Smt. Janki PW. 5. It also appears that Angad PW. 8 and Hulasi PW. 3 are real brothers and as per the testimony of Dinesh Chand PW. 10, who on the relevant date was posted as Patwari, the land in question was shown in the joint Khatedari of Angad, Brijya and Hulasi who were sons of Budha. Angad PW. 8 in his deposition stated that he had mortgaged the land which was in his possession to appellant Ramji Lal. He also stated that adjacent to his field, fled of Batti Lal is situated. ASI Mitthan Singh PW. 20, who investigated the case deposed that the land in question was orally divided and this fact was admitted before him by all the co-sharees. He also stated that in his investigation he did not find any sign of uprooting the groundnuts in the field. ASI Mitthan Singh PW. 20, who investigated the case deposed that the land in question was orally divided and this fact was admitted before him by all the co-sharees. He also stated that in his investigation he did not find any sign of uprooting the groundnuts in the field. He also stated that appellants Ramji Lal on October 7, 1996 instituted a report Ex.D. 10 and from the investigation he came to the conclusion that injury sustained by appellant Ramji Lal and Bharosi were caused by Hulasi and Bath Lal. Thereafter he made improvement and deposed that only Batti Lal inflicted injuries on the person of appellants. Smt. Bharosi PW. 2 in her cross examination admitted that her field known as Khudawala situated adjacent to the field belonging to Angad and the appellants had been in possession of the field belonging to Angad as it was mortgaged to them by to Angad. She also stated that although there was no partition wall between her field and the field of Angad but there were bushes in between their fields and those bushes were the marks of partition. It also appears that all the three alleged eye witnesses Smt. Bharosi PW. 2, Hulasi PW. 3 and Mst. Janki PW. 5 changed their version at the trial and deposed that Bharosi inflicted axe blow on the head of Batti Lal whereas the consistent case of the prosecution was that Bharosi gave lathl blow. 11. It is contended on behalf of the appellants that the prosecution has suppressed the origin and genesis of the occurrence and failed to establish that the incident occurred because of uprooting of groundnuts by the appellants. It is also contended that the alleged eye witnesses are not wholly reliable witnesses and on the basis of their testimony, the appellants could not have been convicted. It is further urged that as the appellant Ramji Lal sustained grievous injury on his head, the appellants had a right of private defence. 12. It is also contended that the alleged eye witnesses are not wholly reliable witnesses and on the basis of their testimony, the appellants could not have been convicted. It is further urged that as the appellant Ramji Lal sustained grievous injury on his head, the appellants had a right of private defence. 12. On a careful scrutiny of the material on record we find the following fact situation in the instant case: (a) In the FIR, injuries with lath' have been attributed to the appellants; (b) Angad and Hulasi are real brothers and their agricultural land was in the joint names of Hulasi, Angad and Brijya; (c) Agricultural land was orally partitioned between Hulasi and Angad and Angad mortgaged his land with the appellants; (d) At the time of incident, crop of groundnuts was standing on the fields of Hulasi and Angad and there were no sign of uprooting the groundnuts. (e) Both the appellants Ramji Lal and Bharosi sustained injuries and injuries on the head of Ramji Lal found grievous. (f) A cross-case was registered against the members of the complainant party on the report of appellant Ramji Lal; (g) Batti Lal died after about two days of the occurrence and it could not be established as to who was responsible for the fatal injury: (h) At the trial all the three alleged eye-witnesses Mst. Bharosi PW. 2, Hulasi PW. 3 and Mst. Janki PW. 5 made improvements and stated that appellant Bharosi inflicted axe blow on the head of deceased Batti Lal. 13. It is well settled that in order to find whether right of private defence as is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private so defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining the question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. No test in the abstract for determining such a question can be laid down. In determining the question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case, the court can consider it even if the accused has not taken it, if the same is s available to be considered from the material on record. 14. In the instant case, ASl Mitthan Singh PW. 20, who investigated the case and the cross-case categorically deposed in his cross-examination that after investigation he found that it was deceased Batti Lal who inflicted injury on the head of appellant Ramji Lal. From the record it is also established that 10 injury sustained by Ramji Lal on his head was a grievous injury. it is also established that half of the agricultural land had been in the possession of Angad and Angad mortgaged the said land with the appellants. Undeniably, the appellants were in possession of that part of land which belonged to Angad. According to prosecution, the occurrence did initiate when the appellants made attempt to uproot the groundnuts but ASI Mitthan Singh PW 20 in his cross-examination deposed that he did not find any sign of uprooting the crop of groundnuts. As already noticed, informant Hulasi and two eye witnesses Smt. Bharosi and Mst. Janki made improvements and embellishment in their testimony disowned their statements given to police. Weapon of offence was changed from lathi to axe. Ali these circumstances cumulatively go to show that the prosecution has suppressed the origin and genesis and it is established from the circumstances that right of private defence was legitimately exercised by the appellants. 15. Section 97 of the Indian Penal Code provides that right of private defence can be exercised by a person to defend of his own body and body of other person. Under clause (ii) of Section 100 of the Indian Penal Code, a right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant, if such assault made may reasonably cause apprehension that grievous hurt will otherwise be the consequence of such assault. 16. Under clause (ii) of Section 100 of the Indian Penal Code, a right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant, if such assault made may reasonably cause apprehension that grievous hurt will otherwise be the consequence of such assault. 16. In Kashi Ram v. State of Rajasthan, 2002 (1) SCC 71 their Lordships of the Supreme Court indicted that where the injuries sustained by a member of accused party in the same incident, in which the members of the prosecution party received injuries and no explanation for the injuries sustained by accused is given by the prosecution, the court cannot lightly ignore the plea of exercise of right of private defence raised by accused. 17. In Subramani and Ors. v. State of Tamilnadu, 2002 (2) WLC (SC) Cri 425 : (2002) 7 SCC 210 the Apex Court propounded that while it is true that in exercise of the right of private defence only such force may be used as may be necessary, but it is equally well settled that at a time when a per ;op is faced with imminent peril of life and limb of himself or another, he is not expected to weight in golden scales the precise force needed to be repel the danger. Even if he, in the heat of moment, carried his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. 18. In the instant case, we are satisfied from the surrounding circumstances that the appellants had a right of private defence and they could not have been convicted under Section 302 IPC. 19. From the material on record no case of criminal trespass under Section 447 IPC is ex facie made out in view of the testimony of Angad as well as the statement of Bharosi. Hulasi and Mst. Janki. 20. Learned trial judge in our opinion has not properly considered the material on record and committed illegality in convicting and sentencing the accused appellants. 21. As a result of the aforesaid discussion, we allow the appeal and set aside the impugned judgment dated February 2, 1999 of learned Sessions Judge. Karauli, The appellant Ramji Lal is on bail. He need not surrender. His bail bonds stand discharged. 21. As a result of the aforesaid discussion, we allow the appeal and set aside the impugned judgment dated February 2, 1999 of learned Sessions Judge. Karauli, The appellant Ramji Lal is on bail. He need not surrender. His bail bonds stand discharged. Appellant Bharosi @ Ram Bharosi who is in confinement, shall be set at liberty forthwith if not required in any other case.Appeal Allowed - Conviction Set Aside. *******