JUDGMENT 1. - These are the three criminal appeals, one fled by the accused appellants viz; Himmata Ram and Rawata Ram, who have been convicted and sentenced under Sections 302 and 302/34 Indian Penal Code. respectively with life imprisonment alongwith a fine of Rs. 5,000/- each and in default, to further undergo six months' S.I. in Sessions Case No. 42/2002 by the learned Addl. Sessions Judge (FT), Balotra being D.B. Cr.Appeal No. 668/2005 and the other two appeals have been filed by Jogendra, Ganga Ram and Ravindra being S.B. Cr.Appeal No. 688/2005 and by Govind being S.B. Cr.Appeal No. 733/2005 against the judgment dated 31.8.2005 passed by the learned Addl. Sessions Judge (FT), Balotra, in Sessions Case No. 45/2002 whereby he convicted the aforesaid four appellants as under : Under Section 452 Indian Penal Code. Two years' R.I. and a fine of Rs. 500/- and in default, to further undergo one month's S.I.; Under Section 148 Indian Penal Code. Six months S.I. Under Section 323/149 Indian Penal Code. Six months' S.I. 2. Though the learned Addl. Sessions Judge (FT) Balotra has passed different judgments on the same day because of different trial in the cross case but for the sake of convenience, we dispose of all the three appeals by this common judgment, as the date, time and place of the incident is the same. 3. In D.B. Cr. Appeal No. 668/2005 out of Sessions Case No. 42/2002, the F.I.R. bearing No. 87/1999 was lodged on 20.4.1999 at 5.45 P.M. at Police Station Kotwali, Barmer by complainant Govind, who is the appellant in the cross case, that at about 4.30 P.M., when he was going to take lunch at his house, he met with Jogendra and Sona Ram in the jeep. Sona Ram asked him to accompany. At that time, Rukmana Ram was with him. They all went at the house of Jogendra. When they came out and turned the jeep, he noticed quarrel in the house of Himmata Ram between Jogendra, Rukhmana Ram and Sona Ram on one side and Himmata Ram and his two companions on the other side. When he got down from the jeep, he heard the voice "rush towards hospital". On seeing inside the house of Himmata Ram, he noticed Himmata Ram's father sitting without shirt and Himmata Ram was having sword in his hand. Rukhmana Ram, Jogendra etc. When he got down from the jeep, he heard the voice "rush towards hospital". On seeing inside the house of Himmata Ram, he noticed Himmata Ram's father sitting without shirt and Himmata Ram was having sword in his hand. Rukhmana Ram, Jogendra etc. took Sona Ram to the hospital, where the doctor declared him dead. Upon this information, the police registered a case under Section 302 Indian Penal Code. and commenced investigation. After investigation, challan was filed against the accused appellants Himmata Ram and Rawata Ram under Section 302 Indian Penal Code. before the Court of learned Magistrate, who committed the case to the Court of Sessions. Learned Sessions Judge framed charge under Section 302 Indian Penal Code. against accused Himmata Ram and under Section 302/34 against accused Rawata Ram, to which they pleaded not guilty. The prosecution examined 23 witnesses. The statements of the accused were recorded under Section 313 Criminal Procedure Code They produced two witnesses in defence including accused Himmata Ram himself as DW-2. After hearing the arguments, the learned trial Judge convicted and sentenced both the accused appellants as above. 4. In other two appeals i.e. S.B. Cr.Appeal No. 688 of 2005 and S.B. Cr.Appeal No. 733/2005 out of Sessions Case No. 45/2002, F.I.R. bearing No. 88/1999, Police Station Kotwali, Barmer, was lodged by complainant Himmata Ram on 20.4.1999 at 8.30 P.M. that he registered a case against accused Jogendra, who is accused in the cross case, for the theft of tractor trolley, which was released in his favour by the order of the Court and was lying in front of his residence. On account of this, Jogendra was having enmity with him and his family members and today, Jogendra, Ravindra, Chandra Veer, Sona Ram, Ganga Ram, Govind and Rukhmana Ram and 2-3 more persons came in the jeep of Jogendra in the evening at 5 PM and entered into their house with deadly weapons and assaulted them in which his father, mother and he received injuries. Rawata Ram and Jagdish intervened. Thereafter, all the accused left. Upon this report, the police registered a case under Sections 147, 148, 149, 307, 323 and 452 Indian Penal Code. and commenced investigation. After investigation, police came to the conclusion that the offences under Sections 147, 148, 149, 323, 452 and 307 Indian Penal Code. Rawata Ram and Jagdish intervened. Thereafter, all the accused left. Upon this report, the police registered a case under Sections 147, 148, 149, 307, 323 and 452 Indian Penal Code. and commenced investigation. After investigation, police came to the conclusion that the offences under Sections 147, 148, 149, 323, 452 and 307 Indian Penal Code. are made out against five accused namely Jogendra, Ganga Ram, Ravindra, Govind and deceased Sona Ram, but charge-sheet was filed against the four accused, as Sona Ram died, in the Court of learned Magistrate, who committed the case to the Court of Sessions. Learned trial Judge framed charges against the above four accused under Sections 147, 148, 452, 307 Read with 149 Indian Penal Code. and Section 323/149 Indian Penal Code. The prosecution examined 15 witnesses. The statements of the accused were recorded under Section 313 Criminal Procedure Code They led no defence. After hearing the arguments, the learned trial Judge convicted and sentenced four accused appellants as above. 5. We have heard the arguments of learned counsel for the appellants in all the three appeals as well as the learned Public Prosecutor. 6. It is submitted by the learned counsel for the appellants Himmata Ram and Rawata Ram that the date, time and place of the incident is the same and both the cases were investigated by Jala Ram, PW-21 in Sessions Case No. 42/2002 (F.I.R. No. 87/1999) against accused Himmata Ram and Rawata Ram and as PW-13 in Sessions Case No. 45/2002 (F.I.R. No. 88/1999) against accused Jogendra, Ganga Ram, Ravindra, Govind and deceased Sona Ram. According to the Investigating Officer, both the F.I.Rs. namely F.I.R. Nos. 87/1999 and 88/1999 are the outcome of cross cases. The F.I.R. No. 87/1999 Ex.P-2 in Sessions Case No. 42/2002 was lodged by Govind, who is the appellant in the cross case and F.I.R. No. 88/1999 was lodged by accused appellant Himmata Ram. Both the F.I.Rs. were lodged on 20.4.1999. First F.I.R., Ex.P-2, was lodged at Police Station Kotwali, Barmer at 5.45 PM by Govind in Sessions Case No. 42/2002 and thereafter Himmata Ram lodged the F.I.R. Ex.P-1 at 8.30 PM on 20.4.1999 in Sessions Case No. 45/2002 and prior to this, he submitted a report before the Superintendent of Police, Barmer, Ex.P-2, which was forwarded to the SHO, Barmer, and has been admitted by Jala Ram in his statement. From both the F.I.Rs., it is clear that the incident took place in the house of Himmata Ram at about 5 PM, though different versions have been given as to who were the aggressors but as per the statement of the Investigating Officer Jala Ram, PW-21 in Sessions Case No. 42/2002. It was found in his investigation that the accused Jogendra and four others including deceased Sona Ram were the aggressors in which Sona Ram died and they have been convicted under Sections 148, 452 and 323/149 Indian Penal Code., as they, including deceased Sona Ram, came in the jeep of Jogendra and entered into the house of Himmata Ram. Upon this, inflicting blow with sword is an act of self defence for which accused is entitled to be benefited. According to him, there is no active role of accused Rawata Ram in commission of crime. 7. The contention of the learned counsel for the appellants Himmata Ram and Rawata Ram that they acted in right of private defence though finds favour from the evidence on record but when one party was the aggressor and entered into the house of accused Himmata Ram wherein accused Himmata Ram inflicted blow with sword on one of the aggressors viz; Sona Ram resulting in his death, then the question for consideration is as to whether the right of private defence of the body and property as defined in Section 97 Indian Penal Code. was within the restrictions contained in Section 99 Indian Penal Code. Section 99 Indian Penal Code. says that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt. Right of private defence of body which extends to causing death is only permissible under Section 100 Indian Penal Code., if it covers within the first and second restrictions, which are as under : "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 by the consequence of such assault." 8. In the present case, the learned trial Judge in the cross case has held the accused Jogendra etc. as aggressors and found them guilty under Sections 148, 323/149 and 452 Indian Penal Code. - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise by the consequence of such assault." 8. In the present case, the learned trial Judge in the cross case has held the accused Jogendra etc. as aggressors and found them guilty under Sections 148, 323/149 and 452 Indian Penal Code. but they have been acquitted under Section 307 Indian Penal Code. Undisputedly, the sword was with accused Himmata Ram and the aggressors were also with deadly weapons, whereby it cannot reasonably be apprehended that they intended to cause death or grievous hurt on the body of accused Himmata Ram and Rawata Ram. Had it been so, accused Himmata Ram and Rawata Ram might have sustained grievous injuries. On the contrary to it, both have received single abrasion vide injury reports Ex.P-9 and Ex.P-11 respectively in Sessions Case No. 45/2002. In absence of apprehension of death or grievous hurt, Sections 97, 99 and 100 Indian Penal Code. are not applicable to the facts of the present case. 9. However, accused Jogendra etc., who are appellants in S.B. Criminal Appeals No. 688/2005 and 733/2005, were the aggressors as held by the learned Additional Sessions Judge on the basis of testimony of Investigating Officer Jala Ram in both the F.I.Rs. that they entered into the house of Himmata Ram. The evidence brought forward in the case shows that the aggressors Jogendra etc. first went in the house of accused appellant Himmata Ram, when he was out. They waited for him for one hour and again went in the house of Himmata Ram. According to Govind, PW-2, Sona Ram was stained with blood, Himmata Ram was with sword and Rawata Ram was standing there. Jogendra, PW-3 himself has said that on the date of incident, he went at the house of Himmata Ram with Rukmana Ram for taking the sum of Rs. forty to fifty thousand from him, which was lent by Rukmana Ram. According to him, Rawata Ram caught hold of deceased Sona Ram and Himmata Ram inflicted sword blow on the chest of Sona Ram, whereby he died in the hospital. Same is the evidence of Ganga Ram, PW-4. All these three are accused in the cross case and injured witnesses. Ravindra, PW-5 has said in the cross-examination that he saw the inflicting from outside the house of Himmata Ram and did not enter in it. Same is the evidence of Ganga Ram, PW-4. All these three are accused in the cross case and injured witnesses. Ravindra, PW-5 has said in the cross-examination that he saw the inflicting from outside the house of Himmata Ram and did not enter in it. Rukmana Ram, PW-6, who is also injured accused, has said in the cross examination that he saw Himmata Ram inflicting sword blow on the chest of Sona Ram. Narendra Kumar, PW-7, who is another independent witness, has not said in his police statement Ex.D-6 that Rawata Ram caught hold of deceased Sona Ram. Taja Ram, PW-12, who is another eye-witness, has also said specifically about accused Himmata Ram inflicting sword blow on the chest of Sona Ram in his statement Ex.D-7. Thus, from the statements of these eye-witnesses including injured, it transpires that there is no specific role of mother and father of Himmata Ram including that of accused Rawata Ram in committing murder of Sona Ram but the act of accused Himmata Ram in inflicting sword blow on the vital part like chest on the question of demand of money or tractor, is certainly an act, whereby it can safely be inferred that he exceeded his right of private defence without premeditation and intention of doing more harm than is necessary for the purpose of such defence, when complainant party formed unlawful assembly and entered in his house with a preparation to commit offence as aggressors with deadly weapons for which they have been convicted in a cross case bearing No. 45/2002. In our view, this act of accused Himmata Ram is covered under Exception-2 to Section 300 Indian Penal Code., which defines Culpable homicide not amounting to murder punishable under Section 304 Part I Indian Penal Code. 10. As regards S.B. Criminal Appeals No. 688/2005 and 733/2005 filed by four accused appellants viz; Jogendra, Ganga Ram, Ravindra and Govind, who have been convicted in the cross case bearing No. 45/2002, they went in the house of appellant Himmata Ram for the purpose of taking back tractor or money and inflicted injuries on the person of Himmata Ram, Rawata Ram and Moda Ram. This act of these four accused appellants alongwith deceased Sona Ram is an act forming an unlawful assembly, with lathis and to cause injuries on the three above named injured, clearly shows that they inflicted injuries after preparation by entering into the house of Himmata Ram, therefore, their act is also punishable under Sections 148, 452 and 323/149 Indian Penal Code. for which they have been rightly convicted in Sessions Case No. 45/2002 by the learned trial Judge. The contention of the learned counsel that these accused are not guilty because of the death of their man in the house of complainant Himmata Ram, is devoid of force. 11. On the quantum of sentence, it has been argued by the learned counsel for the appellants Himmata Ram that Himmata Ram has remained in custody for a period of more than seven years including the period of remission, therefore, custodial sentence will meet the ends of justice. 12. On the other hand, learned counsel for the appellants Jogendra, Ganga Ram, Ravindra and Govind, have submitted that during investigation, these accused have remained in custody for few days, therefore, they should be released on probation, as the incident is ten years old and is the outcome of death of their colleague with sword in a cross case. 13. Keeping in view, the submissions made by learned counsel for the appellants, we dispose of these appeals in the following manner :I. D.B. Criminal Appeal No. 668/2005 (a) Appeal of accused appellant Rawata Ram is allowed and he is acquitted for the charge under Section 302 read with 34 Indian Penal Code., whereby he was sentenced to undergo imprisonment for life alongwith a fine of Rs. 5,000/- and in default, to further undergo six months' S.I. by the learned Addl. Sessions Judge (FT), Balotra vide his judgment dated 31.8.2005. He is on bail, his bail bonds stands cancelled. (b) So far as the appeal of accused appellant Himmata Ram is concerned, it is partly allowed. Instead of Section 302 Indian Penal Code., he is convicted under Section 304 Part I Indian Penal Code. and sentenced to the period already undergone, which is more than 7 years, alongwith a fine of Rs. 5,000/- and in default, to further undergo six months' S.I. He shall be set at liberty forthwith, if not required in any other case, on depositing the amount of fine. II. and sentenced to the period already undergone, which is more than 7 years, alongwith a fine of Rs. 5,000/- and in default, to further undergo six months' S.I. He shall be set at liberty forthwith, if not required in any other case, on depositing the amount of fine. II. S.B. Criminal Appeal No. 688/2005III. S.B. Criminal Appeal No. 733/2005Both these appeals are partly allowed. While maintaining conviction of the accused appellants Jogendra, Ganga Ram, Ravindra and Govind under Sections 148, 452 and 323 Read with 149 Indian Penal Code. recorded by the learned Addl. Sessions Judge, Balotra vide his judgment dated 31.8.2005, they are sentenced to the period already undergone. However, the sentence of fine of Rs. 500/- and in default, to further undergo one month's S.I. awarded under Section 452 Indian Penal Code. to each of the accused, is maintained. They are on bail, they shall deposit the fine within a period of one month from today, else they will undergo the sentence in default of payment of fine as awarded by the learned trial Judge by issuing warrant of arrest against them.Appeal of accused 'R' allowed, Appeal of accused 'H' partly allowed and Appeal Nos. 668 of 2005 & 733 of 2005 partly allowed. *******