JUDGMENT 1. - All these matters stem from the judgment dated April 7, 2000 of the learned Additional Sessions Judge Sambhar Lake (District Jaipur) whereby sixteen accused (appellants in Appeal No. 170/2000 and 160/2000) were convicted and sentenced as under: Ram Lal, Ramdhan, Taju, Balu Ram, Ramjeevan, Ramchandra, Harakaran, Gajanand, Pinkya @ Shri Kishan, Vishna, Ratan, Nainya @ Ramnath, Ghishya, Ram Kishan and Satya Narayan. U/S.148 IPC: Each to suffer rigorous imprisonment for two years. U/s.447 IPC: Each to suffer rigorous imprisonment for three years. U/s.324 IPC: Each to suffer rigorous imprisonment for two years. U/s.326 IPC: Each to suffer rigorous imprisonment for five years and fine Rs. 5000, in default to further suffer six months rigorous imprisonment. U/s.302/149 IPC: Each to suffer imprisonment for life and fine Rs. 10,000/-, in default to further suffer one year rigorous imprisonment. U/s.323/149 IPC: Each to suffer rigorous imprisonment for one year. U/S.325/149 IPC: Each to suffer rigorous imprisonment for three years and fine Rs. 3000, in default to further suffer three months rigorous imprisonment. U/s.326/149 IPC: Each to suffer rigorous imprisonment for five years and fine Rs. 5000, in default to further suffer six months rigorous imprisonment. Hardeen: U/s.148 IPC: To suffer rigorous imprisonment for two years. U/s.447 IPC: To suffer rigorous imprisonment for three months. U/s.302 IPC: To suffer imprisonment for life and fine Rs. 10,000/-, in default to further suffer one year rigorous imprisonment. U/s.323/149 IPC: To suffer rigorous imprisonment for one year. U/s.324 IPC: To suffer rigorous imprisonment for two years. U/s.325/149 IPC: To suffer rigorous imprisonment for three years and fine Rs. 3000, in default to further suffer three months rigorous imprisonment. U/S.326/149 IPC: To suffer rigorous imprisonment for five years and fine Rs. 5000, in default to further suffer six months rigorous imprisonment. All the sentences were directed to run concurrently. 2. As many as 20 accused were indicted before the learned trial court out of which Ramgopal died during trial and proceedings against him were dropped on September 14, 1998. Three accused persons viz. Sarwan, Vishram and Ram Jeewan however stood acquitted. The State of Rajasthan and complainant Hussain Shah have assailed the finding of acquittal in the Leave to Appeal No.46/2001 and Cr.Revision No.0523/2000. 3. The prosecution case is that on June 17, 1993, SHO Police Station Dudu recorded Parcha Bayan of Hussain Shah in the Government Hospital. Three accused persons viz. Sarwan, Vishram and Ram Jeewan however stood acquitted. The State of Rajasthan and complainant Hussain Shah have assailed the finding of acquittal in the Leave to Appeal No.46/2001 and Cr.Revision No.0523/2000. 3. The prosecution case is that on June 17, 1993, SHO Police Station Dudu recorded Parcha Bayan of Hussain Shah in the Government Hospital. It was given out in the Parcha Bayan that around 10.30 AM of the said day he alongwith his father Idu Shah (since deceased) and others had gone to cultivate the land bearing khasra No.333 in village Nanan, the accused party came in tractors and belaboured them. As a result of the injuries received during the incident Idu Shah died. On the basis of Parcha Bayan Police Station Dudu registered a case under Sections 148,447,323,325,324,326,307,302 and 149 Indian Penal Code and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Sambhar Lake (District Jaipur). Charges under sections 148,447,323,324,325,326,307,302 and 302 read with 149 Indian Penal Code were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 4. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. 5. Death of deceased Idu Shah was indisputably homicidal in nature. As per post-mortem report (Ex.P37) he received following ante mortem injuries:- 1. Incised wound viberal deep blood clots present in thoracic cavity fracture of V thoracic rib VI, VII, VIII & IX ribs of (L) side chest internally (L) lung ruptured. 2. Bruise 16 x 2cm on (R) side back of the chest. 3. Abrasion 18 x 1.5cm on both scapular areas of back. 4. Abrasion 2 x 1cm on (L) leg its lower ⅓ part anteriorly. 5. Abrasion 3 x 1cm on (L) middle third of (R) leg anteriorly. 6. Abrasion 4 x 1cm on (R) side chest anteriorly. 7. Bruise 5 x 2cm on (R) side axillary line of chest. 8. 3. Abrasion 18 x 1.5cm on both scapular areas of back. 4. Abrasion 2 x 1cm on (L) leg its lower ⅓ part anteriorly. 5. Abrasion 3 x 1cm on (L) middle third of (R) leg anteriorly. 6. Abrasion 4 x 1cm on (R) side chest anteriorly. 7. Bruise 5 x 2cm on (R) side axillary line of chest. 8. Incised wound 1.5 x 1/2cm bone deep on distal phalanx of (R) ring x middle finger alongwith fracture of (R) ring middle finger distal phalanx. 9. Lacerated wound 6 x 1cm x muscle deep on (L) arm upper half laterally. 10. Lacerated wound 1/2x 1/2 x muscle deep on (R) forearm upper 1/4 part dorsally. 11. Diffuse swelling 8 x 6cm with fracture of radius ulna bone of (R) forearm on its upper ⅔rd part. 12. Abrasion 3 x 1/2cm (R) hand dorsally. According to Dr.S.K.Mohanpuria (PW20) the cause of death was hemorriiagic shock as a result of injuries to lung and other parts of body. 6. From the analysis of record it transpires that most of prosecution witnesses themselves branded the deceased and other members of complainant party as assailants. According to them the land where occurrence took place belonged to accused Ram Dhan and the members of complainant party went there and made attack on the accused persons. Mangal Ram (PW2), Bhanwar Pareek (PW3) and Juinma (PW4) deposed that the land on which quarrel took place belonged to Ram Dhan and it were muslims who went there to take possession of the land forcibly. Prabhu Singh (PW5) stated that on December 5, 1993 he was posted as Patwari in Patwar Mandal Nanan. He issued copy of Jamabandi (Ex.P4) Samvat 2047 to 2050 of the land bearing khasra No.33/1/4 measuring 15 bighas situated in village Nanan. According to Jamabandi (Ex.P4), Ram Dhan was khatedar of the land. 7. Learned trial court in the impugned judgment held that one Samundra Singh sold the said land to Ram Dhan on January 7, 1993 by a sale-deed and on the basis of sale deed mutation got opened in favour of Ram Dhan. Since revenue cases were pending between Samundra Singh and complainant Hussain Shah and interim injunction was granted in favour of Hussain Shah and the accused did not examine Samundra Singh to prove their possession over the land, no right in regard to said land accrued to Ram Dhan. Since revenue cases were pending between Samundra Singh and complainant Hussain Shah and interim injunction was granted in favour of Hussain Shah and the accused did not examine Samundra Singh to prove their possession over the land, no right in regard to said land accrued to Ram Dhan. We find ourselves unable to agree with these observations. Having carefully scrutinised the documents Ex.P78 to Ex.P86 placed on record by the prosecution to establish the title and possession of complainant Hussain Shah over the land in dispute, we notice that no irterim order was ever passed against accused Ram Dhan. Although Ram Dhan after purchasing the land moved application seeking impleadment before the revenue courts but he was not made party. Since prosecution witnesses Mangal Ram (PW2), Bhanwar Pareek (PW3) and Jumma (PW4) themselves deposed that Ram Dhan owned and possessed the land in dispute and Prabhu Singh Patwari (PW5) supported the ocular testimony by revenue record it may safely be observed that on the date of incident accused Ram Dhan owned and possessed the disputed land and the complainant party was the aggressor. 8. Coming to the evidence of informant Hussain Shah (PW23), We notice that after accused Satya Narain pushed Idu Shah down with tractor, accused Hardeen inflicted Pharsi-blow on the left side of ribs of Idu Shah that caused injury on the lung and the said injury ultimately proved fatal. It also appears that during the incident Ishaq, Saddiq, Bodu Shah, Alanoor, Nizam and Ikram also sustained simple and grievous injuries. The question that, arises at this juncture is whether causing death of Idu Shah in exercise of right of private defence of property was justifiable? 9. Section 100 and 103 Indian Penal Code lays down the circumstances in which even the killing of a person is justifiable. The combined effect of these two sections is to authorise the killing of a person in the following cases:- If the offender threatens- (i) the causing of death or grievous hurt, (ii) rape and unnatural offence, (iii) kidnapping, abduction and wrongful confinement, (iv) house-breaking by night or robbery; and (v) arson The right commences with the reasonable apprehension of danger to person or property. In either cases it extends to the causing of death in the five forging cases. In either cases it extends to the causing of death in the five forging cases. It ends with the cessation of apprehension of danger or the recovery of the property or the obtaining of assistance of the public authorities or the escape of offender. 10. Their Lordships of the Supreme Court in Jasse Singh v. State of Haryana, 2002 Cri.L.J.563 (SC) , indicated that right of private defence of property will not extend to the causing of death of the person who committed such acts, if the act of trespass is in respect of an open land. 11. Section 105 Indian Penal Code provides that the right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against criminal trespass continues as long as the offender continues in the commission of criminal trespass. 12. According to Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code is upon the accused, and the court shall presume the absence of such circumstances. The right of private defence falls within the chapter of general exceptions to the IPC. The burden, of course can be discharged by showing preponderance of probabilities. The second exception to Section 300 Indian Penal Code deals with the case where a person exceeds the right of private defence. If the excess is intentional, the offence is murder; if unintentional, it is culpable homicide. Exception 2 would apply when (1) the accused caused the death of a person without premeditation, and (2) while causing death he had no intention of doing more harm than was necessary. Exception 2 of Section 300 Indian Penal Code contains the important clause "without any intention of doing more harm than is necessary for the purpose of such defence" which is a necessary corollary of section 99 Indian Penal Code when says 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. It is however true that if the threat to the property which the accused is entitled to defend is real and immediate he is not required to weigh in golden scales the kind of instrument and the force which he uses at the spur of moment but a man exceeds the right of private defence, if he causes death of a person who commits criminal trespass over his land. 13. In the instant case, the circumstances noticed by us lend support to the case set up in defence by the accused. From the material on record the accused have established that they were in possession of the land and the complainant party including the deceased Idu Shah were the aggressors but since the complainant party only committed criminal trespass over the land possessed by the accused, the accused in exercise of their right of private defence of property could not have caused the death of Idu Shah. 14. It is well settled that persons acting in the exercise of their right of private defence would be doing a perfectly legitimate act and an assembly of such persons is not an unlawful assembly. If any one of them exceeds his right of private defence and gives a fatal blow, he alone is responsible for the consequences, and the others cannot be held vicariously liable for his act. Neither Section 149 nor Section 148 will apply in such a case. 15. In the ultimate analysis, we find that appellant Hardeen exceeded his right of private defence in dealing a fatal blow on the lung that resulted in death of Idu Shah. Appellant Hardeen thus is held quality of the offence under Section 304 Part I IPC. So far as the charges against other appellants are concerned we are of the view that charges levelled against them are not established beyond reasonable doubt since they caused injuries on the person of Ishaq, Saddiq, Bodu Shah, Alanoor Nizam and Ikram in exercise of their right of private defence of the property. 16. We do not find any merit in the appeal and revision petition preferred by the State of Rajasthan and complainant Hussain Shah. As per the evidence adduced at the trial no case is made out against Sarwan, Vishram and Ramjeevan and they were rightly acquitted by the learned trial court. 17. 16. We do not find any merit in the appeal and revision petition preferred by the State of Rajasthan and complainant Hussain Shah. As per the evidence adduced at the trial no case is made out against Sarwan, Vishram and Ramjeevan and they were rightly acquitted by the learned trial court. 17. For these reasons, we dispose of instant matters in the following terms:- (i) We partly allow the appeal of appellant Hardeen s/o Ramdev and instead of Section 302 Indian Penal Code we convict him under Section 304 Part I Indian Penal Code and sentence him to suffer rigorous imprisonment for a period of ten years and fine of Rs. 1000 in default to further suffer six months rigorous imprisonment. We however acquit him of the charges under Sections 148,447,326,323,324 and 325 read with 149 IPC. (ii) We allow the appeal of Ramjivan, Ramchandra, Harkaran, Gajanand, Pinkya @ Shri Kishan, Vishna, Ratan, Nainya @ Ramnath, Ghishya, Ram Kishan, Satya Narayan, Ramlal Ramdhan, Teju and Balu Ram and acquit them of all the charges under sections 148,447,302,302/149,323,323/149,324,324/149,326,326/149,325 and 325/149 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) We do not find any merit in Criminal Leave to Appeal No.46/2001 and Criminal Revision Petition No.0523/2000 (Def.) and the same accordingly stand dismissed. (iv) The impugned judgment of learned trial Judge stands modified as indicated above. Revision Dismissed. *******