JUDGMENT 1. - By the instant appeal filed under Section 374 of the Criminal Procedure Code, the accused appellant Dayal Singh has challenged his conviction and sentences passed by the learned Sessions Judge, Pratapgarh on 27.2.1986 in Sessions Case No. 59/1983, which are as under : Under Section 302 Indian Penal Code. Imprisonment for life and a fine of Rs. 500/-, in default of payment of fine, one month's simple imprisonment. Under Section 307 Indian Penal Code. 7 years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, one month's simple imprisonment. Under Section 324 Indian Penal Code. Imprisonment for one year and a fine of Rs. 200/-, in default of payment of fine, 15 days simple imprisonment. 2. Brief facts leading to this appeal are that on 11.2.1983 at 2.30 P.M. Manji S/o Nanda Meena (PW-1) filed a written report Ex.P-1 that on the same day at 12 O' clock, Mammu Khan, his wife Shayari and sons Aziz Khan, Rustam Khan and Akram Khan came to clean and dig their strip of land, then Dayal Singh and his father Shambhu Singh came there. Dayal Singh was having a sword with him and he inflicted injuries on Aziz, Rustam and Akram, whereby Aziz Khan died on account of head injury inflicted with the sword. According to the F.I.R., there was dispute between Mammu Khan and their village Thakur accused Shambhu Singh over the disputed land for 3 to 4 years. The incident was witnessed by Mammu Khan, Shayari, Dali, Hasan, Nathu Meena. On hearing the cries, Manji came from his well to the spot, where Shayari and Mammu Khan narrated the incident and Mammu Khan and his wife Shayari send him to report the matter to the police. 3. Upon this report, the police registered a case under Sections 302, 307 read with Section 34 Indian Penal Code. and commenced investigation. The postmortem of the dead body of Aziz Khan was conducted vide Ex.P-21 by Dr. Ashok Kumar Chopra (PW-11), Medical Jurist, General Hospital, Pratapgarh. He also examined the injuries of Rustam Khan vide Ex.P-16, Akram Khan vide Ex.P-18 and of the accused Dayal Singh vide Ex.P-24. Accused Dayal Singh and Shambhu Singh were arrested by the police and on the information of the accused Dayal Singh, sword was recovered, site was inspected and blood-stained clothes and soil was recovered. He also examined the injuries of Rustam Khan vide Ex.P-16, Akram Khan vide Ex.P-18 and of the accused Dayal Singh vide Ex.P-24. Accused Dayal Singh and Shambhu Singh were arrested by the police and on the information of the accused Dayal Singh, sword was recovered, site was inspected and blood-stained clothes and soil was recovered. Recovered articles were sent for chemical examination. On the same day at 3.00 P.M., accused Dayal Singh also made a report of the incident which was entered in the Rojnamcha, which is Ex.P-36. During the investigation, copy of the sale register (Ex.P-34) was also obtained from the Sarpanch, Gram Panchayat Gandher dated 30.3.1967. 4. After completion of the investigation, both the accused Dayal Singh and Shambhu Singh were charge-sheeted under Sections 302, 307, 326, 324/34 Indian Penal Code. before the Judicial Magistrate, Pratapgarh, who committed the case to the Court of Sessions. 5. After hearing the arguments on charge, accused Dayal Singh was charged under Sections 302, 307, 326 and 324 Indian Penal Code., whereas accused Shambhu Singh was charged under Sections 302 read with Section 34, 307, 326 and 324 read with Section 34 Indian Penal Code. Both the accused pleaded no guilty and claimed trial. The prosecution examined 16 witnesses. Statements of the accused were recorded under Section 313 Criminal Procedure Code They produced one witness Amrit Lal (DW-1) in their defence. After hearing the arguments, learned Sessions Judge acquitted the accused Shambhu Singh for the charges levelled against him, but convicted the accused Dayal Singh under Sections 302, 307 and 324 Indian Penal Code. and sentenced him as above. 6. We have heard learned counsel for the accused-appellant as also learned Public Prosecutor and re-appreciated the evidence brought on record. 7. So far as the homicidal death of the deceased Aziz Khan is concerned, it is clear from the postmortem report (Ex.P-21) that he died on account of shock due to injury on the head caused by sharp object. This postmortem report Ex.P-21 has been proved by Dr. Ashok Kumar Chopra (PW-11), who has stated that the injury on the right parietal bone of the scull of Aziz Khan was 6" x Vt" x 1" being a cut wound and due to this injury, 5" right parietal bone was cut. According to him, this injury was grievous and dangerous to life caused by sharp weapon. Ashok Kumar Chopra (PW-11), who has stated that the injury on the right parietal bone of the scull of Aziz Khan was 6" x Vt" x 1" being a cut wound and due to this injury, 5" right parietal bone was cut. According to him, this injury was grievous and dangerous to life caused by sharp weapon. According to the doctor, this injury was sufficient in the ordinary course of nature to cause death. As regards the injury on the person of Rustam Khan and Akram Khan was concerned, they are also proved by the doctor vide Ex.P-16 and P-18 respectively. According to Ex.P-16, Rustam Khan received 5 injuries and all were fractures, one on the lunet bone of left hand, three on the scull and one on the first left rib. According to the doctor, Akram also received 5 injuries, which were all simple in nature caused by sharp object. According to this doctor, on the same day, vide Ex.P-24, he also examined the accused Dayal Singh, who received 10 injuries, out of which injury No. 1 was on the left index finger being fracture and grievous in nature and rest all injuries were simple. First five injuries were caused by sharp weapon and remaining five injuries were caused by blunt object. Thus, from the testimony of this doctor, it is evident that the deceased Aziz Khan died due to head injury and his brothers Rustam and Akram also received injuries, of which injuries of Rustam were grievous in nature. Likewise accused Dayal Singh also received 10 injuries, out of which one was fracture on the left index finger. This shows that at the time of incident, deceased Aziz Khan, injured Rustam Khan and Akram Khan and the accused appellant Dayal Singh were on the spot and received injuries. 8. Bringing the case of homicidal death of Aziz Khan, the contention of the learned counsel for the accused-appellant is that the accused Dayal Singh acted in the right of private defence when the accused went to his field and started cleaning and digging the strip of land. Learned trial Court has disbelieved this theory. 9. We have minutely examined the evidence on the right of private defence and the finding arrived at by the learned trial Judge. Learned trial Court has disbelieved this theory. 9. We have minutely examined the evidence on the right of private defence and the finding arrived at by the learned trial Judge. The first ground of private defence taken by the learned counsel for the accused-appellant is that the land in dispute was belonging to the accused with regard to the sale-deed Ex.D-8 dated 25.4.1972. This Ex.D-8 shows that the land in dispute was sold by Magna Ji to the accused Dayal Singh on 25.4.1972 signed before the Sub-Registrar, Pratapgarh. On the contrary, there is a sale-deed by the Gram Panchayat Gandher (Ex.P-34), in which a patta has been issued on 19.11.1969 to Mamu Khan and in the North of it there is land of Shambhu Singh and this land strip is of 1,000 Sq. Ft. The certified copy of the original patta issued by Gram Panchayat is Ex.P-14, which has been proved by Mammu Khan (PW-2), who is purchaser of the land and also by PW-13 Shankar Lal who issued copy of this patta to Mammu Khan as Sarpanch of Gram Panchayat Gandher. That apart, Ameen Khan (PW-9), who was Sarpanch of Gram Panchayat Gandher from 1965 to 1976, has also stated that he, as a Sarpanch, allotted land to Mammu Khan at village Selarpura. It is contended by the learned counsel for the accused-appellant that the disputed land of Patta (Ex.P-14) is of village Gandher and Patta (Ex.D-8) is of the land where the incident is said to have taken place is at village Chhota Selarpura, therefore, the Patta (Ex.P-14) is of no relevance to the disputed land. We find no substance in this argument because it is clear from the evidence of Mammu Khan (PW-2) that Gram Panchayat of village Selarpura is Gandher and he obtained the Patta Ex.P-14 for the land of Selarpura Khurd. From the testimony of Shankar Lal (PW-13), Sarpanch of the Gram Panchayat Gandher, who issued copy of Patta and of Ameen Khan (PW-9), who allotted the land at village Selarpura vide Ex.P-14 in the year 1967 as Sarpanch of the Gram Panchayat Gandher, it is clear that this patta was issued by Gram Panchayat Gandher in favour of Mammu Khan and the details of which are matching with the site plan Ex.P-4 and in the north side of this place there is field of Shambhu Singh, who has been acquitted. From Ex.P-5, this site is of Selarapura Chhota. When the Ex.P-14 is tallying with site plan and site inspection note, Ex.P-4 and Ex.P-5 respectively, and proved by Shankar Lal (PW-13), Ameen Khan (PW-9) and Mammu Khan (PW-2), then it cannot be said that patta is not of Chhota Selarpura, as it is part of Gram Panchayat Gandher. On the contrary, the patta Ex.D-8 has not been proved by the person who issued it. If the details of this Ex.D-8 are looked into with Ex.P-4 and Ex.P-5, then the disputed land has been shown by the accused to be of himself because in the south side Government land has been shown. By producing Ex.D-8, the accused has tried to prove the possession of himself over the disputed land, but in fact it cannot be said that the accused was in possession over the disputed land and on the contrary, prior to issue of patta Ex.D-8 to the accused, which has not been proved, the father of the deceased Mammu Khan (PW-2) had purchased this land in the year 1967, where on the day of incident, the deceased and his family members were cleaning and digging the strip of land. 10. Even for the sake of arguments, if it is assumed that there was dispute on account of patta Ex.P-14 and Ex.D-8 over the disputed land, then also one cannot be permitted to exceed the right of self-defence to the extent of taking the life of other. It has been categorically stated by both the eye-witnesses, namely Dalu (PW-4) and Nathu (PW-5) that the accused Dayal Singh inflicted sword blow on the head of the deceased Aziz Khan in addition to blows to Rustam and Akram. Shayari (PW-3), who is mother of the deceased and the injured, has categorically stated that Dayal Singh inflicted sword blow on the deceased Aziz and also inflicted blows on Rustam and Akram. Mammu Khan (PW-2) is father of the deceased, who reached on the spot just after hearing the cries, has stated that he was 500 steps away from the place of incident and when he reached there, Dayal Singh was inflicting sword blows on his three sons who were doing work in the field. Mammu Khan (PW-2) is father of the deceased, who reached on the spot just after hearing the cries, has stated that he was 500 steps away from the place of incident and when he reached there, Dayal Singh was inflicting sword blows on his three sons who were doing work in the field. This evidence clearly shows that on account of the head injury caused by sharp weapon, the deceased Aziz Khan died and Rustam Khan and Akram Khan received injuries and the head injury of the deceased Aziz Khan was sufficient in the ordinary course of nature to cause death and being an intentional act by the accused Dayal Singh, it is proved that Dayal Singh was the author of this injury on the deceased Aziz Khan and of the two injured, namely, Rustam Khan and Akram Khan. 11. It is true that during the scuffle, the accused Dayal Singh also received 10 injuries, but except injury No. 1, all the injuries are simple in nature as opined by the doctor Ashok Kumar Chopra (PW-11), who examined the accused Dayal Singh vide Ex.P-24 and according to him, only injury No. 1 was grievous being fracture in left index finger. On perusal of Ex.P-24, it appears that the first five injuries received by the accused are incised wound on the left hand fingers and the remaining five injuries are abrasions and bruises on the backside, knee and leg, which are simple in nature and caused by blunt weapon. From the prosecution evidence of the eye-witnesses Mammu Khan (PW-1), Shayari (PW-3), Dalu (PW-4), Nathu (PW-5) as well as of the injured Rustam (PW-6) and Akram (PW-7) and witness Wahid Khan (PW-8), it is clear that there was a scuffle between the deceased, injured and the accused, during which the injured tried to snatch the sword from the hand of the accused and while doing so there is possibility that these five injuries on the left finger and remaining on non-vital parts might have been caused on the person of the accused Dayal Singh, which the learned trial Judge has rightly believed to be true by ignoring the theory of right of private defence. Had there been any intention or knowledge on the part of the deceased or the injured eye-witnesses that they will cause injuries on the person of the accused Dayal Singh of grievous nature or resulting in his death, then they might have given blow on the vital part of his body. When there are no injuries on the person of the accused on the vital part and the deceased with his injured brothers were unarmed, then the right of private defence cannot be permitted to take away the life of another person. 12. The right of private defence as defined under Section 100 of the Indian Penal Code. extending to cause death is available only if it covers any of the six descriptions mentioned under Section 100 Indian Penal Code. For the purpose of the present controversy, first and second descriptions are relevant, which reads as under : 100. When the right of private defence of the body extends to causing death. - The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely ; First.- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly. - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly. - ......... Fourthly.- ........ Fifthly.-......... Sixthly.- " From the nature of the injuries received by the accused and as discussed above, it cannot be said that the accused was having any apprehension about death or grievous hurt and accordingly, the right of private defence cannot be made available to him. 13. Coming to the aspects of recovery of sword, we also find no force in the contention of the learned counsel for the accused-appellant that recovery is from an open place. Recovery has been proved by Dy.S.P. Vasu Dev Bhatta (PW-16), who has categorically stated that upon the information of the accused Ex.P-35, he recovered the sword vide Ex.P-31 which was stained with blood as the blood has been found on the sword in the FSL Report (Ex.P-13). This has further been proved by motbir witness Sherchand Shah (PW-14). 14. Recovery has been proved by Dy.S.P. Vasu Dev Bhatta (PW-16), who has categorically stated that upon the information of the accused Ex.P-35, he recovered the sword vide Ex.P-31 which was stained with blood as the blood has been found on the sword in the FSL Report (Ex.P-13). This has further been proved by motbir witness Sherchand Shah (PW-14). 14. The above discussion with regard to the testimony of eye-witnesses, recovery of sword, strong motive of land dispute leads to no other conclusion that it was the accused Dayal Singh who inflicted sword blow on the head of the deceased whereby he died and also inflicted injuries on the person of Rustam which were dangerous to life and on the person of Akram with the aid of sharp object of sword and the trial Court has rightly held him guilty by discharging the theory of self-defence. 15. The law cited by the learned counsel for the accused-appellant is distinguishable from the facts of the present case. In the case of Ram Khiladi & Am. v. The State of Rajasthan, reported in 1984 (6) R Cr C 378 , the occurrence took place in the field of the accused and the complainant party was the aggressor and there was no explanation of the injuries on the person of the accused by the prosecution witnesses as the prosecution witnesses were totally silent in this regard. 16. In the case of Vajrapu Samhayya Naidu & Ors. v. State of A.P. & Ors., reported in 2004 SCC (Cri.) 1768 , the prosecution party was the aggressor and the injuries on the person of the accused were not explained. 17. In the case of Naveen Chandra v. State of Uttaranchal, reported in 2007 (1) WLC (SC) Cri. 421 , the conviction of the accused under Section 302 was altered to Section 304 Part-I Indian Penal Code. because while exercising the right of private defence, the accused continued the attacks after the threat to life had ceased. 18. 17. In the case of Naveen Chandra v. State of Uttaranchal, reported in 2007 (1) WLC (SC) Cri. 421 , the conviction of the accused under Section 302 was altered to Section 304 Part-I Indian Penal Code. because while exercising the right of private defence, the accused continued the attacks after the threat to life had ceased. 18. In the case of Ranbaj Singh v. State of Punjab, reported in 2007 (1) Crimes 16 (SC) , while upholding the conviction of the accused-appellant under Section 304 Part II Indian Penal Code., the Hon'ble Supreme Court was of the view that the incident started with the deceased giving Sota blow to the accused Ranbaj Singh and in the right of private defence, Mohan Singh gave a blow on the reverse side of the Kandali to the deceased and the deceased and the accused were admitted in the same hospital. In this case, the right of private defence of the accused was established from the statements of the prosecution witnesses. 19. In the case of Ananta Deb Singha Mahapatra & Ors. v. State of West Bengal, reported in 2007 (2) CJ (SC) Cr 594 , general law on the issue of private defence has been discussed. In this case, the plea relating to exercise of right of private defence was rejected by the High Court and affirmed by the Hon'ble Supreme Court by maintaining the conviction of the accused under Section 304 Part II Indian Penal Code., with the following observations : "In order to find whether right of private defence 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 factor to be considered. Thus, running to house, fetching a tabli and assaulting the deceased are by no means a matter of course. These acts bear stamp of a design to kill and take the case out of the purview of private defence." 20. Thus, running to house, fetching a tabli and assaulting the deceased are by no means a matter of course. These acts bear stamp of a design to kill and take the case out of the purview of private defence." 20. From the discussion of the above law and the evidence of the present case, we are of the considered opinion that the accused has not been able to establish his right of private defence and his conviction recorded by the trial Court for causing death of the deceased Aziz Khan and injuries on the person Rustam Khan being dangerous to life and simple injuries caused by sharp weapon on the person of Akram Khan, deserves to be confirmed. 21. Accordingly, we dismiss this appeal and confirm the judgment of conviction and sentence recorded by the learned Sessions Judge, Pratapgarh as mentioned in para (1) above in Sessions Case No. 59/1983. The accused Dayal Singh is on bail. The trial Court is directed to issue warrant of arrest against the accused-appellant Dayal Singh for serving out the sentences as awarded by it.Appeal dismissed. *******