JUDGMENT 1. - Challenge in this appeal is to the judgment dated April 8, 2003 of the learned Additional Sessions Judge (Fast Track) No. 1 Bharatpur whereby the appellants, nine in number, were convicted and sentenced as under: Sita Ram and Ramveer: U/s. 302 IPC: Both to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. Yogendra @ Yogesh, Ratan Singh, Kalua, Ranvir, Gambhir Singh, Paras Ram and Balia : U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months. Yogendra @ Yogesh, Ratan Singh, Kalua, Sita Ram, Ranvir, Gambhir Singh, Paras Ram, Balia and Ramveer: U/s. 148 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. U/s. 307/149 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 1000/- in default to further suffer simple imprisonment for one month. Sita Ram, Ranvir and Yogendra : U/s. 3/25 Arms Act: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on October 18, 1999 a written report (Ex.P-1) was lodged at the instance of Shodan Singh (Pw.1) which was submitted by him at General Hospital Bharatpur to the SHO Police Station Udyog Nagar Bharatpur. In the report it was inter alia alleged that Karan Singh and Kewal Singh of his village had about 20 years back purchased agricultural land at village Ajan from Shodan Singh and Raghuveer Singh. For since then they had been cultivating the said land. It was further alleged in the report that some 7-8 days back Karan Singh and others had sown mustard in the land. On October 18, 1999 at about 12 or 1 PM in the afternoon, uncle of the informant viz. Kewal Singh and Karan Singh along with others were informed by Shiv Singh of the village that mustard which they had sown, was being removed by Ramveer and others with the aid of a tractor belonging to Chhiddi. On October 18, 1999 at about 12 or 1 PM in the afternoon, uncle of the informant viz. Kewal Singh and Karan Singh along with others were informed by Shiv Singh of the village that mustard which they had sown, was being removed by Ramveer and others with the aid of a tractor belonging to Chhiddi. On receipt of the said information, the informant along with Karan Singh, Kewal Singh, Badan Singh and other family members rushed to the field and saw Sita Ram, Ramveer, Ranveer, Gambhir, Harkhyal Singh, Yogesh, Kalua, Paras Ram and Ratan’s son-in-law belonging to village Hota standing there removing the mustard. They were equipped with Kattas, Guns, Lathis and Pharsas. Sita Ram, Ramveer, Yogesh, Paras Ram, Kalua and Ranvir had guns in their hands, Gambhir was equipped with a Pharsi, while Ratan’s son-in-law had a Katta and the rest were wielding lathis. When Karan Singh endeavoured to stop the miscreants at that moment Ratan Singh exhorted the miscreants everyone who would try to stop them, which led to opening the assault. On hearing ruckus, Vijay Pal and others came to place of incident. The informant, who was coming from his field after harvesting Jawar saw Sita Ram, Ramveer, Yogesh, Paras Ram, Ranveer and son-in-law of Ratan Firing indiscriminately on Karan Singh, Kewal Singh and others. As a result of the said firing, Veerpal, Satyendra, Karan Singh, Padma, Bacchu, Kewal, Chandra Hans, Maharaj Singh, Pushpendra, Radhey Shyam, Vijay Pal and informant himself suffered fire arm injuries. Some of the injured also sustained injuries with lathis and pharsis on account of having suffered firearm injuries injured had fallen down and considering them dead the miscreants fled away. The injured person were removed to hospital. Since injured Veerpal and Satyendra were in serious condition, they were referred to Jaipur. On that report a case was registered under sections 147, 148, 149, 323, 341, 447 and 307 IPC and investigation commenced. In the course of investigation injured Veerpal succumbed to his injuries and section 302 IPC was added. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, miscreants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bharatpur. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, miscreants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bharatpur. Charges under sections 147, 148, 149, 323, 341, 325, 326, 114, 307 and 302 IPC and 3/25 Arms Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 36 witnesses. In the explanation under Section 313 Cr.RC., the appellants claimed innocence. Seven witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Death of Veerpal was homicidal in nature. As per Post Mortem Report (Ex.P-47) following ante mortem injuries were found on the dead body : 1. Multiple punctured lacerated wound 1/4X1/4 cm oval to round shape on Rt. side lower neck to shoulder and upper part of anterior and frontal medial Rt. side of chest. They are inverted edge with collor of abrasion. No signing, no tattooing, no blackening. On dorsal of Rt. forearm and dorsal of hand places reddish colour. They are spraded upto Rt. arm to left panesteal area to left supra mammary area. They are 36x45 cm in length area. 2. Punctured lacerated wound entered Rt. side ante mortem hematoma with 300cc. Total number of entry wound are 11 in hand. One on Rt. lateral neck, one Rt. forearm middle, forty two on Rt. shoulder to arm Rt. clavical, twenty chest Rt. hypochondria. In the opinion of Dr. B.L. Meena (Pw.18) the cause of death was shock and hemorrhage as a result of injuries to lungs and liver. 4. It is contended on behalf of appellants that the prosecution failed to spell out the proximate cause as also the genesis of occurrence which renders its entire story highly suspect. The complainant party was aggressor and they had endeavoured to dispossess the accused party, who were in possession of the field in question. Section 149 IPC would be completely out of focus. The prosecution failed to spell out the individual acts of the accused. Important witnesses Kewal Singh and Shodan Singh have not been examined by the prosecution, for which adverse inference should be drawn against the prosecution. Section 149 IPC would be completely out of focus. The prosecution failed to spell out the individual acts of the accused. Important witnesses Kewal Singh and Shodan Singh have not been examined by the prosecution, for which adverse inference should be drawn against the prosecution. The testimony of prosecution witnesses is riddled with numerous incongruences and embellishments rendering the same to highly dubious in nature. Site plan does not corporate the ocular evidence of the prosecution. Medical evidence also stands in conflict with the ocular evidence of prosecution. Recoveries have not proved with the aid of cogent and convincing evidence beyond reasonable doubt. 5. The main contention of learned counsel for the appellants was that the appellants had been in continuous possession of the land in dispute and even if the said land was purchased by Kewal, Kanchan, Gopal and Padma from Raghuveer the possession was not transferred to them. After the death of Gonda, Sheodan Singh, Sugrive and Raghuveer could not take possession of the land and the appellant Gambhir Singh was in actual possession of the land. On the date of incident appellant Gambhir Singh was sowing the crop and complainant party obstructed him from doing so. Complainant party, comprising of 14 persons, came armed with weapons, whereas from the side of appellants only four persons were present. Since complainant party formed unlawful assembly and made attempt to obstruct the tilling of the land by appellant Gambhir Singh, the appellant party had right to defend their property. Learned counsel further contended that no documentary evidence was produced by complainant party to show its possession over the land in question. It could also not be established that as to who caused the fatal injury. Kewal Singh, who was the main witness of the incident, was not examined by the prosecution. Sheodan Singh, who filed the suit for declaration of the land in dispute, which was decreed by ACM Bharatpur in his favour, was not produced. Complainant party gave beating to Gambhir Singh, as a result of which he sustained injuries and cross case was registered against the complainant party. In such situation the appellants used force in order to protect their property, no offence under section 302 or 307 is ex-facie made out. 6. Complainant party gave beating to Gambhir Singh, as a result of which he sustained injuries and cross case was registered against the complainant party. In such situation the appellants used force in order to protect their property, no offence under section 302 or 307 is ex-facie made out. 6. Per contra, learned counsel for the complainant and learned Public Prosecutor urged that prior to October 18, 1999 the complainant party had sown crop on the land in dispute and this fact is established from site-plan (Ex.P-9). On the instigation of appellant Ratan, Sita Ram and Ramveer opened fire at Veerpal and Yogendra, Ranveer and Balia also opened fire indiscriminately. Three empties were recovered from the place of incident. Paras Ram was armed with lathi, whereas Gambhir had Pharsi and both of them inflicted injuries on the person of Karan Singh and Raj Kumar. Kalua made attempt to commit murder by running tractor, whereas Ratan gave lathi blows. As many as 14 persons of complainant party received injuries. Veerpal died and Satyendra, Pushpendra, Kewal and Karan Singh sustained serious injuries and they were referred to Jaipur for treatment. Since Balia and Ramveer were arrested after long time, weapon could not be recovered at their instance. Padma had died and Kewal lost his mental balance, therefore, they could not appear before the trial court. It was further contended that complainant party had gone unarmed at the field and made request to the appellants not to disturb the crop, but the appellants made assault on the members of complainant party and opened fire at them, therefore, the appellants were not entitled to right of private defence. 7. We have pondered over the submissions and with the assistance of learned counsel for the parties weighed the material on record. 8. From the evidence of Sodan Singh (Pw.1), Raj Kumar (Pw.2), Chandra Hans (Pw.4), Satish Chand (Pw.5), Shiv Singh (Pw.6), Maharaj Singh (Pw.7), Foren Singh (Pw.8), Bachhu Singh (Pw.10), Vijay Pal (Pw.11), Radhey Shyam (Pw.12), Pushpendra (Pw.15), Satyendra Singh (Pw.16) and Karan Singh (Pw.19) the fact situation that emerges may be summarised thus : (i) As per site plan (Ex.P-9) mustard crop, standing on the land in dispute was destroyed by the Tractor. (ii) As many as 14 members of the complainant party sustained injuries. Veerpal died as a result of injuries received by him. (ii) As many as 14 members of the complainant party sustained injuries. Veerpal died as a result of injuries received by him. (iii) Members of complainant party had gone to the land in question unarmed and asked the accused party not to disturb mustard crop whereas accused party had gone with lethal weapons. (iv) There was chequered history of litigation between the complainant party and the accused party. (v) Accused Sita Ram and Ramveer had guns whereas accused Ramveer, Yogendra and Balia had Kattas (country made pistols) and they indiscriminately opened fire at the members of complainant party. (vi) According to Prahlad Singh IO (Pw.29) cross case bearing FIR No. 254/99 under sections 447, 323, 341, 147 and 148 IPC was registered against the members of accused party. Gambhir Singh (appellant) sustained simple injuries that were incorporated in Injury report (Ex.D-15). 9. In support of the submissions that' right of private defence of property is not lost by single act of trespass, learned counsel for the appellant placed reliance on State v. Adra (1958 RLW 24) wherein it was observed as under: "Evidently C and his sons had not even a semblance of right over this disputed field. What they did on 22nd of July, 1954, was a pure act of trespass and all that happened was that on account of their trespass, the rightful owners, namely the accused came away because they did not want to have a fight on that day. But after that C and his sons never did anything which would show that they had taken possession of the field to the exclusion of the accused. The land, therefore, which is an open field and on which anybody can go, must be deemed to have remained in possession of the rightful owners, viz. the accused. It must, therefore, be held that the accused were in possession even after the 22nd of July, 1954 and that when they went to plough the land on the 6th of September, 1954, they were doing so in exercise of their undoubted right to this land and also because of their possession over it. The accused had undoubted right to the land. The accused had undoubted right to the land. They had not lost possession over it by that single act of trespass on the part of C. If, therefore, they went to plough their land on the 6th of September, they were only doing what they were entitled to do and if C and others came and interfered, they were entitled to maintain their possession." 10. In Mana v. State of Rajasthan (1978 RLW 245) this Court held that oral evidence led by prosecution has to be excluded for judging the right of private defence as ‘possession follows title’, in such circumstance the only natural inference would be that the complainant party wanted to take forcible possession and that the accused would, therefore, be within their right to protect their possession of the disputed field. Accused party was in possession of the disputed field, complainant party not prepared to withdraw on resistance being put by the accused but insisting on taking possession by beating the accused. The accused on being injured get reasonable apprehension that they would be killed or receive injuries on the complainant party, resulting in death of one of them, they are within their right of self defence and cannot be held guilty of either murder or of grievous hurt or of hurt, as per exception contained in Section 100. 11. In Prabhu v. State of Rajasthan (1982 RCC 414) this court considered Section 97 IPC for right of private defence to property and held that deceased were trespassers on the land and accused were entitled to the right of self defence to property. The accused was held to have exceeded right of self defence and convicted the accused under Section 304 Part I read with 34 IPC. 12. In Laxmi Narain @ Latoor v. State of Raj. (2005(2) CJ (Raj.) Cr. 598) this Court considered the plea of right of private defence and considering the fact that prosecution did not produce relevant revenue record to prove possession of complainant party and patwari was not examined it was found that complainant party was trespasser and aggressor and wanted to disposses the accused from the land and injuries of accused were not explained, therefore, the accused were found not to exceed right of private defence. 13. 13. In Vajrapu Sambayya Naidu v. State of A.R (2004) 10 SCC 152 the Apex Court held that where the injuries sustained by the accused were not explained by the prosecution it probabilise the case of defence that the prosecution party was the aggressor. 14. In Lajo v. Sukhdev Singh (1998(1) Crimes 114 (SC)) , wherein accused fired a shot on deceased and other four persons, the High Court in re appreciation of evidence found eye witnesses were not reliable since they failed to explain the injuries sustained by accused persons and believing that accused persons were in possession of land acquitted the accused persons and the Apex Court upheld the view taken by High Court. 15. In Gottipulla Venkata Siva Subbrayanam v. State of AP, ( AIR 1970 SC 1079 ) , wherein accused party was putting up bund on land and prosecution party in large number went to remove bund and gave beating to accused party mercilessly, the Apex Court held that accused party had right of private defence. 16. In Jagan Lal v. State of Raj. (2005(3) RLR 612) this court held that since the accused ’J’ came with gun which indicated his intention of committing more harm than necessary for the purpose of self defence, therefore, he exceeded the right of defence and the accused was convicted under section 304 part II instead of 302 IPC. 17. In Puran Singh v. State of Punjab, ( AIR 1975 SC 1674 ) he Apex Court held 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 have recourse to the public authorities and the accused has the undoubted right to resist the attack and used even force if necessary. 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 have recourse to the public authorities and the accused has the undoubted right to resist the attack and used 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 extend to the causing death also and it is not necessary that 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 the operation." 18. Refuting the contentions advanced on behalf of the appellants, learned counsel for the the complainant urged that since the accused party was aggressor and had gone to the place of incident fully armed, the right of self defence was not available to the accused. 19. In Kishan Chand v. State of UP, JT 2007(11) SC 594 , the dispute was between owner of a land and other villagers. The villagers without disputing ownership of land resisted construction of structure by the owner, thereupon owner and his brother fired at the crowd. Two persons died and several others seriously injured. Trial court convicted all five accused for murder and related offences. High Court confirmed the conviction and sentence and the Supreme Court held that participation of all the accused was proved and they being aggressors going to the place of incident fully armed, the right of self defence was not available to them. Therefore, conviction for the offence of murder and related offences was proper and called for no interference. 20. In Dhaneshwar Mahakud v. State of Orissa 2006(1) WLC (SC) Cri. 679 : AIR 2006 SCW 1906 the Apex Court held that : "25. The accused appellant Kamala Mahakud has claimed the right of self defence. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence 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. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence 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. In the present case, the evidence reveals that there was no imminent danger to the property or person of Kamala Mahakud from the act of deceased Umakant Barik who had merely gone to the spot and asked the accused party to get the measurement of the land and tried to dislodge one of the poles fixed by the accused party. There was neither any occasion or any cause to attack the complainant party with weapons like axes and crowbars and to cause injuries on the vital parts of the body including head. There is no evidence on record to show that any of the accused has sustained injuries to deduce the factum of imminent danger to their person or property...." 21. Coming to the facts of the instant case as already noticed by us that mustard crop standing in the field was run over with tractor by the accused party and when members of complainant party came near the field and requested the accused party not to destroy the crop, the accused party opened fire at the members of the complainant party. From the testimony of injured witnesses, presence of appellants Sita Ram, Ramveer, Yogendra, Ranveer and Balla at the time of incident is established beyond reasonable doubt. They had gone to the place of incident armed with Guns and Kattas. It is also proved that the deceased Veerpal and other members of complainant party were unarmed and they remained outside of the land in dispute and made request to the accused party not to destroy mustard crop. There is no material on record to show that there was imminence threat to the safety of the land or to the life of the accused persons. Considering all relevant factors we hold that appellants Sita Ram, Ramveer, Yogendra, Ranveer and Balla were the members of unlawful assembly and since they had gone to the place of incident fully armed with guns and kattas, right of private defence was not available to them. Considering all relevant factors we hold that appellants Sita Ram, Ramveer, Yogendra, Ranveer and Balla were the members of unlawful assembly and since they had gone to the place of incident fully armed with guns and kattas, right of private defence was not available to them. All of them opened fire with the knowledge that by using Guns and Kattas, death would be caused. Fatal consequence actually ensued as a result of conjoint attack. In Mahadev Ganpat v. State of Maharashtra ( AIR 1977 SC 1756 ) the accused committed offence in prosecution of the common object of their unlawful assembly or, at any rate, they knew that offence was likely to be committed in prosecution of their common object, for there can be no doubt that they knew that in prosecution of their common object it was likely that deceased might be so injured as to die as a result of the injuries which had been inflicted on him. It was held that all the accused were guilty of committing the offence under section 302/149 IPC. In the instant case also appellants Sita Ram, Ramveer, Yogendra, Ranveer and Balla opened fire at unarmed persons in prosecution of their common object and caused death of Veerpal, therefore, they are held guilty under section 302/149 IPC. 22. The participation of appellants Ratan Singh, Kalua, Gambhir Singh and Paras Ram however could not be established beyond reasonable doubt and possibility of their over implication cannot be ruled out. 23. For these reasons, we dispose of the instant appeal in the following terms : (i) We find no merit in the appeal of Sita Ram, Ramveer, Yogendra @ Yogesh, Ranveer and Balla. But instead of Section 302 we convict Sita Ram and Ramveer under Section 302/149 IPC and sentence them to suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer two months simple imprisonment. We however maintain their conviction and sentence under section 307/149 IPC and under section 3/25 Arms Act. Conviction and sentence of Yogendra @ Yogesh, Ranveer and Balla under sections 302/149 and 307/149 IPC and of Ranveer and Yogendra @ Yogesh under section 3/25 Arms Act are also maintained. We however acquit them of the charge under section 148 IPC. Appellant Balla, who is on bail, shall be taken forthwith in custody and his bail bonds shall stand cancelled. We however acquit them of the charge under section 148 IPC. Appellant Balla, who is on bail, shall be taken forthwith in custody and his bail bonds shall stand cancelled. (ii) We allow the appeal of Ratan Singh, Kalua, Gambhir Singh and Paras Ram and acquit them of the charges under sections 148, 302/149 and 307/149 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) Impugned judgment of learned trial court stands modified as indicated above. Appeal Disposed of as Above. *******