JUDGMENT 1. - Since all the matters arise out of common incident, they were ordered to be herd together and are being decided by this common judgment. 2. These appeals and revision are offshoot of the incident which took place on 13.10.2004 at 12.30 PM leading to registration of cross cases by both the parties against each other. F.I.R. No. 104/2004 was registered at Police Station Tehla, Tehsil Rajgarh, District Alwar, on the basis of 'parcha bayan' of complainant Seth S/o Babulal, recorded at Community Health Center, Rajgarh, for offence under Sections 143, 148, 149, 323, 341, 307 and 302 IPC, against Ramhet, Ramesh, Smt. Batto Devi, Smt. Bimla and Smt. Indira. F.I.R. No. 105/2004 was registered with the same police station at the instance of Ramhet (appellant in Appeal No. 149/2008) for offence under Sections 143, 323 and 341 IPC against Seth, Dan Singh, Chhoga and Hanuman. 3. Appeal No. 149/2008 challenges judgment dated 25.01.2008 passed by learned Special Judge, S.C./S.T. (Prevention of Atrocities) Act cases, Alwar, in Sessions Case No. 22/2005, which arise out of F.I.R. No. 104/2004, whereby learned trial court convicted accused Ramesh for offence under Section 324 IPC and acquitted him of offence under Sections 148, 341, 302/149, 307/149, 323, 323/149 and 324/149 IPC; convicted accused Ramhet for offence under Section 302 IPC and acquitted him of offence under Sections 148, 341, 307, 323/149, 324, 324/149 IPC and Section 4/25 and 5/27 of the Arms Act; and acquitted accused Smt. Batto Devi, Smt. Bimla and Smt. Indira Devi of the charge for offence under Sections 147, 341, 302/149, 307/149, 323, 323/149 and 324/149 IPC. Learned trial court sentenced the accused-appellant Ramhet under Section 302 IPC to suffer life imprisonment and pay a fine of Rs. 5000/-; in default thereof, he would have to further undergo five months rigorous imprisonment, and accused-appellant Ramesh under Section 324 IPC to undergo one year's rigorous imprisonment and to pay a fine of Rs. 1000/-; in default thereof, to further undergo one month's further rigorous imprisonment. 4. 5000/-; in default thereof, he would have to further undergo five months rigorous imprisonment, and accused-appellant Ramesh under Section 324 IPC to undergo one year's rigorous imprisonment and to pay a fine of Rs. 1000/-; in default thereof, to further undergo one month's further rigorous imprisonment. 4. Appeal No. 237/2008 challenges judgment dated 25.01.2008 passed by learned Special Judge, S.C./S.T. (Prevention of Atrocities) Act cases, Alwar, in Sessions Case No. 02/2005, which arise out of F.I.R. No. 105/2004, whereby learned trial court convicted accused Seth, Dan Singh and Chhoga for offence under Sections 341, 323, 324, 324/34, 325, 326/34, 307 IPC, and accused Hanuman for offence under Sections 341, 323, 324, 325/34, 326 and 307 IPC. All of them were however acquitted of the charge for offence under Section 3(2)(v) of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act. For offence under Section 307 IPC, all the four accused were sentenced to undergo five years' rigorous imprisonment and pay a fine of Rs. 2000/-; in default thereof, to further undergo two months rigorous imprisonment. For offence under Section 326/34 IPC, accused Seth, Dan Singh and Chhoga were sentenced to undergo five years' rigorous imprisonment and pay a fine of Rs. 1000/-; in default thereof, to further undergo one month's rigorous imprisonment. For offence under Section 326 IPC, accused Hanuman were sentenced to undergo five years' rigorous imprisonment and pay a fine of Rs. 1000/-; in default thereof, to further undergo one month's rigorous imprisonment. For offence under Section 325 IPC, accused Seth, Dan Singh and Chhoga and for offence under Section 325/34 IPC accused Hanuman were sentenced to undergo three years' rigorous imprisonment and pay a fine of Rs. 1000/- each; in default thereof, to further undergo one month's rigorous imprisonment. For offence under Section 324/34 IPC, accused Seth, Dan Singh and Chhoga and for offence under Section 324 IPC accused Hanuman were sentenced to undergo one year's rigorous imprisonment and pay a fine of Rs. 1000/- each; in default thereof, to further undergo one month's rigorous imprisonment. For offence under Section 323 IPC, accused Seth, Dan Singh, Chhoga and Hanuman were sentenced to undergo six months' rigorous imprisonment. For offence under Section 341 IPC, accused Seth, Dan Singh, Chhoga and Hanuman were sentenced to undergo one month's rigorous imprisonment. All the sentences were ordered to run concurrently. 5. For offence under Section 323 IPC, accused Seth, Dan Singh, Chhoga and Hanuman were sentenced to undergo six months' rigorous imprisonment. For offence under Section 341 IPC, accused Seth, Dan Singh, Chhoga and Hanuman were sentenced to undergo one month's rigorous imprisonment. All the sentences were ordered to run concurrently. 5. Criminal Revision Petition No. 434/2008 has been filed by Seth S/o Shri Babu Lal, who lodged F.I.R. No. 104/2004, being aggrieved by acquittal of accused Ramesh of offence under Sections 148, 341, 302/149, 307/149, 323, 323/149 and 324/149 IPC; acquittal of accused Ramhet for offence under Sections 148, 341, 307, 323/149, 324, 324/149 IPC and Section 4/25 and 5/27 of the Arms Act; and acquittal of accused Smt. Batto Devi, Smt. Bimla and Smt. Indira Devi of the charge for offence under Sections 147, 341, 302/149, 307/149, 323, 323/149 and 324/149 IPC. 6. In F.I.R. No. 104/2004, lodged on the basis of 'parcha bayan' of Seth, he alleged that they own a parcel of agriculture land regarding which they have dispute with one Ramlal Bairwa. Ramhet and Ramesh (both sons of Shri Ramlal Bairwa) came to the agriculture field on 13.10.2004 at about 12.00 noon. Ramhet was having a 12-bore gun and Ramesh was having 'farsi' in his hand. At that time, the complainant was sitting at well and smoking 'hukka'. While accused were abusing him, he came forward. Ramhet opened fire from his gun at him, due to which, he sustained injuries on left leg. Ramesh then inflicted a 'farsi' blow on his hand and leg. Kailash S/o Chhoga Banjara then came there and saved him. But thereafter Ramhet fired at him (Kailash), which hit him at the right side of his abdomen. Kailash fell down, but later he stood up and hit the barrel of his gun by 'lathi' due to which the gun was broken. On hearing hue and cry, Chhogaram came, then Ramhet took knife from his pocket and inflicted knife blow on his left cheek. Thereafter, Hanuman, Dan Singh and certain females from the side of complainant came there. Ramhet, wife of Ramesh, his mother and wife of Suresh were also with them, who caught hold of Ramhet and Ramesh. Kailash became unconscious and was not speaking. After the F.I.R. registered, Kailash died and thereafter offence under Section 302 IPC was added. The police, after investigation, filed challan against five accused persons. Ramhet, wife of Ramesh, his mother and wife of Suresh were also with them, who caught hold of Ramhet and Ramesh. Kailash became unconscious and was not speaking. After the F.I.R. registered, Kailash died and thereafter offence under Section 302 IPC was added. The police, after investigation, filed challan against five accused persons. The prosecution examined fourteen witnesses and exhibited twenty-four documents. The defence examined four witnesses and exhibited forty-four documents. In their examination under Section 313 Cr.P.C., the accused pleaded that they were falsely implicated. On completion of trial, learned trial court convicted and sentenced the accused-appellants, as indicated above. 7. In F.I.R. No. 105/2004, lodged on the basis of 'parcha bayan' of Ramhet, it has been alleged that agriculture field bearing khasra nos. 224, 225 and 226 measuring five bigha situated in the forest of village Motiwada, is in the name of complainant's brothers. On 13.10.2004 at about 10-11 AM, Bimla wife of complainant, Batto, Sunita, Indira, went there to remove the shrubs from the field. They were abused by the 'banjaras' and their ladies. They were in all 30-40 members, including Seth, Chhoga, Ballo, Kailash, Dana, Hajari and their ladies. They caused 'maar-peet' with the ladies of complainant party. Indira gave this information to the complainant. Ramesh, elder brother of complainant, went to the field. He asked the ladies of accused-party as to why they caused 'maar-peet' on the issue of agriculture field, as the agriculture field is in their name (complainant party) Then, they gave beating to Ramesh also. Thereafter, complainant went to the home and brought a 12-bore licensee gun, with the box of cartridges. The complainant saw his elder brother lying on the ground and member of the accused-party were causing 'maar-peet' with him by 'lathis', 'barchhis', 'tanchyas', 'ballams'. Upon seeing this, complainant opened fire in air by his gun. Thereafter, the complainant was encircled by the accused-party. The complainant advised them not to quarrel. Thereafter, the complainant was hit by 'lathi', as a result of which he became imbalanced, due to which pressure was applied on trigger and the gun opened fire, but he does not know as to which person the gunfire hit. Thereafter, these persons inflicted injuries upon him by 'barchhis', 'lathis', 'ballams', as a result of which he sustained severe injuries and he became unconscious. 8. Thereafter, these persons inflicted injuries upon him by 'barchhis', 'lathis', 'ballams', as a result of which he sustained severe injuries and he became unconscious. 8. Shri Vinay Pal Yadav, learned counsel for accused-appellants in Appeal No. 149/2008 submitted that the story alleged by the complainant in the FIR was not found correct by the Investigating Officer and thereafter by learned trial court. In the same occurrence, five members of the accused-party also sustained several injuries including grievous injuries on various parts of their body, one of which was on head by sharp edged weapon. Apart from appellant Ramhet, Ramesh, Bimla Devi and Batto on accused side received injuries. Ramhet and Ramesh sustained grievous injuries on their head by sharp edged weapon. The prosecution failed to explain all these injuries. The trial court has not at all considered this aspect of the matter. The trial court was wholly unjustified in concluding that neither of the parties was aggressor. If the accused-party was not aggressor, the story of the prosecution cannot at all be believed. Occurrence has taken place in the agriculture field of the accused-appellants. Accused-appellants were in possession of the said land. There was no occasion for the members of the accused-party to come at the place of occurrence and start fighting with the members of the complainant party. Accused have acted in right of private defence. In fact, Ramhet first opened fire in the air in order to save his family members, but thereafter the complainant hit the gun by 'lathi' due to which suddenly pressure was applied on trigger and the gun opened fire. Members of the complainant party sustained some injuries. Evidence on record thus probabilise defence of the accused. The trial court has not considered that the accused persons were attacked in their field and they sustained injuries on various parts of their bodies including by sharp edged weapons. According to injury report of Indira (Exhibit D-12), she sustained one grievous injury by sharp edged weapon. According to injury report of Ramesh (Exhibit D-13), he sustained three incised wound and head injury by sharp edged weapon. Injury report of appellant Ramhet (Exhibit D-14) shows that he also sustained injuries including one injury on vital part of the body. According to injury report of Indira (Exhibit D-12), she sustained one grievous injury by sharp edged weapon. According to injury report of Ramesh (Exhibit D-13), he sustained three incised wound and head injury by sharp edged weapon. Injury report of appellant Ramhet (Exhibit D-14) shows that he also sustained injuries including one injury on vital part of the body. It is contended that learned trial court has wholly failed to consider this aspect of the matter that the accused-persons had acted in exercise of right of their private defence of person and property and they did not exceed this right. Conviction of the accused-appellant was therefore bad in law. 9. Shri Vinay Pal Yadav, learned counsel for appellants, argued that the trial court failed to consider that members of the complainant-party came in the field of the accused-appellants, opened attack and caused injuries on various parts of their body including vital parts i.e. head, by blunt and sharp edged weapons. Even if the fire was opened by the appellants, their act would come within the purview of right of private defence. Learned trial court has neither properly appreciated nor correctly examined the statement of prosecution witnesses, who have made lot of improvements upon their original version. Their statements are full of contradictions. In cross-examination, Seth (PW-1) has admitted that Khasra No. 230 is in the name of mother of the appellant. He also stated that no injury to the appellants was caused by the complainant. He has thus not explained injuries sustained by the members of the accused-party including the appellant. It is argued that the trial court did not appreciate that Hanuman (PW-2), in his statement, made improvements and serious contradictions. He came later and was not present at the place of occurrence. He has also not explained the injuries sustained by the members of the accused-party. This witness sustained various injuries on his person. He admitted that occurrence took place on the dispute of land and that the mother of the appellants was having 15 bigha of land and there are two wells thereon. In cross-examination, this witness has admitted that accused-persons are possessing the land and that he did not submit any document in connection with land. He admitted that occurrence took place on the dispute of land and that the mother of the appellants was having 15 bigha of land and there are two wells thereon. In cross-examination, this witness has admitted that accused-persons are possessing the land and that he did not submit any document in connection with land. He also admitted that on complaints submitted by Ramlal, father of appellant, the Sub Divisional Officer, Rajgarh, in the year 2002 bound down his family members not to quarrel with Ramlal and his family. He also admitted that before fire was opened, there was altercation between the parties for 10-15 minutes. From testimony of this witness it is clear that members of the accused-party had acted in exercise of their right of private defence and they had not exceeded the right when fire was opened. Bhanwari Devi (PW-5) has also made lot of improvements and number of contradictions. She too has not explained the injuries sustained by the accused-party. She claims to be an injured witness. In her cross-examination, this witness has admitted that accused-persons are having land and there is 'doli' (mud wall) in between land of accused-party and that of complainant-party. Conviction of the appellants on the basis of testimony of this witness, therefore, is bad in law. Referring to statement of Kamla (PW-7), learned counsel argued that she has also made lot of improvements in her statement. She too has not explained the injuries sustained by the members of the accused-party. Her statement was not corroborated by medical evidence. Mere perusal of the impugned judgment reveals that the trial court has neither correctly appreciated nor properly examined the statement of Dr. Phool Singh (PW-10). Conviction of the accused-appellant on the basis of testimony of these witnesses is therefore highly unsafe and bad in law. 10. It is further argued that learned trial court has not at all considered the statements of defence witnesses and has dealt with their testimony in a rather casual manner. Learned counsel, referring to site plan (Exhibit P-1), argued that well was in the land of the accused-party. It does not match with the site plan prepared in the cross-case, which also proves Exhibit P-1 to be false. The land of Ramlal and Kishani, respectively, father and mother of accused-appellants, was not deliberately shown by the Investigating Officer in the site plan. It does not match with the site plan prepared in the cross-case, which also proves Exhibit P-1 to be false. The land of Ramlal and Kishani, respectively, father and mother of accused-appellants, was not deliberately shown by the Investigating Officer in the site plan. The trace map (Exhibit D-38) of Khasra No. 224 and Exhibit D-40 of old khasra number before settlement would prove this. Bhanwari Devi (PW-5) has also stated that the incident took place in the land adjoining their agriculture field. Referring to the statement of Dr. Phool Singh (PW-10), learned counsel submitted that accused-appellant Ramesh had received nine injuries, of which three were incised wound, two were bruises, one was punctured wound, one was abrasion and one was diffused swelling; Ramhet received 11 injuries, of which one was incised wound, four were bruises, two were abrasions and one was swelling. Prosecution witnesses have admitted injuries of the accused-appellants but they have not given any explanation whatsoever therefor. Learned counsel for the accused-appellant cited judgment of the Supreme Court in Laxmi Singh and Others v. State of Bihar - (1976) 4 SCC 394 , and argued that non-explanation of injuries sustained by accused party is fatal to the prosecution case. The Supreme Court therein held that non-explanation of injuries sustained by the accused at the time of occurrence or in the course of altercation, is a very important circumstance, which can lead to inference that the prosecution has suppressed the genesis and origin of the occurrence and that the witnesses, who denied the presence of injuries on the person of accused, are not speaking the truth, and their evidence is unbelievable and the defence version, which explained the injuries on the person of accused is thereby rendered probable so as to throw doubt on the prosecution case. This very view was reiterated by the Supreme Court in later judgments in Padam Singh v. State of U.P. - 2000 Cr.L.R. (SC) 133 , Dr. Mohammad Khalil Chisti v. State of Rajasthan - 2013 Cri.L.J. 637 and Lakshmi Singh and others v. State of Bihar - (1976) 4 SCC 394 . 11. Learned counsel argued that the incident took place on the agriculture land of appellant and the complainant party was aggressor. The appellants had taken a specific defence in their statement under Section 313 Cr.P.C. to this effect. 11. Learned counsel argued that the incident took place on the agriculture land of appellant and the complainant party was aggressor. The appellants had taken a specific defence in their statement under Section 313 Cr.P.C. to this effect. Referring to statement of Hanuman, it is argued that this witness wrongly stated that Ramhet opened fire at Kailash, as a result of which he fell down. In fact, this witness has made part statement correctly that complainant Seth hit the gun of the accused Ramhet by 'lathi', as a result of which gun was broken, and its trigger was forced involuntarily by finger of the accused leading to opening of fire. This was thus an unintentional fire. 12. Shri Vinay Pal Yadav, learned counsel for appellant, referring to mutation proceedings (Exhibit D-44A), argued that the land of new khasra no. 203 was earlier part of land of khasra no. 1076. In fact, khasra nos. 1072 to 1077 were merged in the settlement and a new khasra no. 203 was formed of these six khasra numbers. Accused had owned and possessed the land of khasra nos. 1074 to 1077. Kesar, mother of Ramhet, was in possession of land of khasra no. 1077 as it was purchased by her from Kaushalya Bai W/o Devi Sahai Nai, who was allottee of this land by the competent authority vide Exhibit D-35. Land of khasra no. 1074 was also purchased by Kesar W/o Ramlal from Bhawani Singh S/o Narain, in the year 1987 of which mutation was attested in their favour vide Exhibit D-36. Land bearing khasra nos. 224, 225 and 226 was in the name of accused Ramhet and his two brothers. Only one well was there in the land of khasra no. 203, which is also called as boring. This was dug, built and constructed by Smt. Kesar mother of accused, who had taken loan for the purpose from Alwar Sahakari Bhoomi Vikas Bank, Alwar. The mortgage deed is Exhibit D-43. The well/bore was situated on that part of Khasra No. 203, which was in the share of accused. Gopal Sharma (DW-4) has categorically stated that there is only one well in the land of khasra no. 203, whereas Seth (PW-1) wrongly stated that there may be 2-3 wells in the land of khasra no. 203. The well/bore was situated on that part of Khasra No. 203, which was in the share of accused. Gopal Sharma (DW-4) has categorically stated that there is only one well in the land of khasra no. 203, whereas Seth (PW-1) wrongly stated that there may be 2-3 wells in the land of khasra no. 203. In fact, the police in their investigation found that 15 bigha of land, which was contiguous, was in the name of mother of Ramhet. Yet, the police in the site-plan (Exhibit P-1) wrongly showed the well in the land of Seth. Learned counsel, in this connection, referred to statement of Rajendra Kumar Meena (PW-12), the Circle Officer of Police Station, Rajgarh, to show that he got such information from certain persons of the village. On perusal of case-diary, he has stated that therein a mention was made of the fact that villagers informed that the land adjoining the land of Ramlal belongs to Chhoga, Ballo and Seth. If this statement is analysed in the light of site plan, it would become clear that the land of the complainant party would not be situated at the place where it is shown in the site plan and would be much away from there. The Investigating Officer has played a mischief purposely in showing the names of Ramlal and Kesar, respectively father of mother of accused-appellants, in the site plan. 13. Learned counsel, in this connection, has referred to tress map of the deed (Exhibit D-38) and submitted that therein land of khasra no. 203 has been shown as a very large chunk of land but when it is compared with site plan of Exhibit D-40, it becomes clear that the site plan (Exhibit P-1) has purposely been not made correct and that the land of the well in fact belonged to complainant party. Smt. Kamla (PW-7) has stated that accused had three wells in their agriculture field, part of khasra no. 3, one well each in khasra no. 224 and 225. Learned counsel at this stage referred to statement of Dan Singh (PW-4), and submitted that this witness in cross-examination, admitted that accused had got much more land than the complainant party but they were not cultivating the said land for last six years. 3, one well each in khasra no. 224 and 225. Learned counsel at this stage referred to statement of Dan Singh (PW-4), and submitted that this witness in cross-examination, admitted that accused had got much more land than the complainant party but they were not cultivating the said land for last six years. There were bushes and wild plants grown in that agriculture land but the accused were in possession of their land and that the complainant party did not have any other land except five bigha land in village Motiwada and that Seth and others did not have any well or house on this except on the land of five bigha. This witness also admitted that the land of five bigha, which was purchased by said Chhoga, Ballo and Seth, was declared Siwai Chak, where-against they would file appeal. Bhanwari (PW-5), another member of the complainant party, has also admitted in cross-examination that the place where occurrence took place, is adjoining their agriculture field but in very second line, he stated that occurrence took place in their agriculture land. In the third sentence, he stated that the hand pump was not situated inside their agriculture field but was situated in the adjoining land, outside their agriculture field. Then in fourth line, he stated that another hand pump was situated in the middle of agriculture field. Then in sixth sentence, he uttered the word that even the hand pump outside their agriculture field was also situated in their land. Then in seventh sentence what he said was this that hand pump was situated on five bighas of land purchased by them. He also stated that their houses were also constructed within their five bighas of land and the place of occurrence was closed to their house to 2-4-5 steps away from their house. His statement also completely falsifies the site plan and show that prosecution has changed place of occurrence and genesis of the story was therefore suppressed from the court. Learned counsel submitted that accused Ramesh has sustained nine injuries and Ramhet sustained eleven injuries. Besides, Indira, member of the accused-party sustained injuries. In this connection, learned counsel referred to statement of Dr. Phool Singh Choudhary (PW-10), who not only conducted postmortem of deceased but also examined Indira Devi, member of complainant-party and prepared injury-report as (Exhibit P-13) in the cross-case, which was produced as Exhibit D-12. Besides, Indira, member of the accused-party sustained injuries. In this connection, learned counsel referred to statement of Dr. Phool Singh Choudhary (PW-10), who not only conducted postmortem of deceased but also examined Indira Devi, member of complainant-party and prepared injury-report as (Exhibit P-13) in the cross-case, which was produced as Exhibit D-12. According to which, Indira Devi had one incised wound, one abrasion, two bruises and one swelling, thus total six injuries. Reference is also made to injury report of Bimla Devi (Exhibit D-15), who also sustained certain injuries. Injury no. 1 of Indira Devi was lacerated wound in between middle and index finger and Ramesh also sustained fracture. Hanuman (PW-2), in his statement, has admitted that they were having the 'lathis' in their hand before the incident started. Chhogaram (PW-3) has admitted that Ramlal got them bound down in proceedings under Sections 107 and 116 from the Sub Divisional Officer, Rajgarh in the year 2000 for maintaining peace. 14. Shri Vinay Pal Yadav, learned counsel for accused-appellant in Appeal No. 149/2008, has erred in law in rejecting the argument of the accused-appellant the defence of right of private defence. The defence set up by the accused-appellants in claiming right of private defence of person and property by observing that no such plea was taken by the accused in their cross-examination under Section 313 Cr.P.C. Learned counsel, in this connection, relied on judgments of the Supreme Court in Satya Narain Yadav v. Gajanand and Another - AIR 2008 SC 3284 , State of Rajasthan v. Manoj Kumar and Others - 2014 (2) Crimes 187 (SC) , and argued that no such plea is required to be set up on the facts of the case. Right of defence is shown to be exercised by the accused then they must be entitled to the same. Accused party in Appeal No. 237/2008 were cutting shrubs and wild plants from their agriculture field, which was objected to by the accused-party in Appeal No. 149/2008. This fact has been admitted by Ballo Ram (PW-13 in Appeal No. 149/2008). 15. Right of defence is shown to be exercised by the accused then they must be entitled to the same. Accused party in Appeal No. 237/2008 were cutting shrubs and wild plants from their agriculture field, which was objected to by the accused-party in Appeal No. 149/2008. This fact has been admitted by Ballo Ram (PW-13 in Appeal No. 149/2008). 15. Shri Vinay Pal Yadav, learned counsel for accused-appellants in Appeal No. 149/2008, has relied on judgment of the Supreme Court in Sikandar Singh and Others v. State of Bihar - (2010) 7 SCC 477 , wherein it has clearly been laid down that right to defend does not include right to launch an offensive or aggression and members of aggressor party cannot claim right of self defence. In the facts and circumstances of the present case, no such right would accrue to the accused-appellants in Appeal No. 237/2008. 16. Shri Vinay Pal Yadav, learned counsel for accused-appellants in Appeal No. 149/2008, argued that even as per site plan (Exhibit P-1 in Appeal No. 237/2008) the incident actually took place in block 6 which is different than the place indicated in the site plan (Exhibit P-1 in Appeal No. 149/2008). Learned counsel referred to statement of Balloram (PW-12 in Appeal No. 237/2008), the Investigating Officer, and submitted that this witness has stated that houses of Seth, Chhoga etc. are constructed in the northern side of the place of occurrence. He prepared the site plan on 23.10.2004 and that Kailash was found lying at place 'J' shown in red ink in the site plan, in unconscious condition. Learned counsel argued that Indira (PW-4 in Appeal No. 237/2008) has wrongly been declared hostile by learned trial court, whereas she has fully supported the prosecution case, which is evident from reading of her statement. Even if this witness, who did not deviate from her version in the police statement, could not completely remember the same, the trial court, as per Section 159 of the Evidence Act, was under obligation to allow her to refresh memory as what was stated by her in the statement under Section 161 Cr.P.C. Referring to statement of Ramhet (PW-2 in Appeal No. 237/2008), learned counsel argued that the prosecution has failed to give even any suggestion that he tried to trespass into the land of complainant Seth etc. In fact, he had no intention to commit the murder of Kailash. It was only the case of accidental fire and the fact that he did not repeat the fire also shows that there was no intention to commit murder. 17. Shri Dinesh Kala, learned counsel appearing in Appeal No. 149/2008 for complainants and accused-appellants in Appeal No. 237/2008, argued that there are serious contradictions in the statement of prosecution witnesses in the trial of cross-case, in which accused-appellant Seth, who is complainant in Appeal No. 149/2008, and Dan Singh, Chhoga and Hanuman, have been convicted. The trial court failed to appreciate the statement of prosecution witnesses in true perspective. It committed an error of law as well as of fact. It failed to appreciate that admitted fact that one from the side of complainant Ramhet was armed with gun, who opened fire from which Kailash, from side of accused-appellant in Appeal No. 237/2008, died. Accused-appellants in Appeal No. 237/2008 also sustained injuries. The accused-appellants in Appeal No. 237/2008, in so far as the injuries caused to the members of accused-appellants in Appeal No. 149/2008, acted in exercise of the their right of private defence of property and person. Such injuries were caused to Ramhet and others after the gun of Ramhet was broken, when it is proved that members of accused-appellants in Appeal No. 149/2008 were armed with deadly weapon like gun. The accused party would have felt sense of danger to their life and if they acted in retaliation, their action would be protected by exception contained in Sections 100 and 102 of the IPC in exercise of their right to private defence of person and property, both. Even if entire medical reports and evidence collected are taken into consideration including the number of injuries sustained from the side of the complainant, no case is made out against accused-appellants in Appeal No. 237/2008 for their conviction. The trial court, in the present case, has adopted the policy of pick and choose for convicting the accused-appellants in Appeal No. 237/2008, which has been disbelieved with reference to accused-appellants in Appeal No. 149/2008. Such a conviction cannot be sustained. The contradiction in two judgments are at large. The trial court, in the present case, has adopted the policy of pick and choose for convicting the accused-appellants in Appeal No. 237/2008, which has been disbelieved with reference to accused-appellants in Appeal No. 149/2008. Such a conviction cannot be sustained. The contradiction in two judgments are at large. While, learned trial court has found the prosecution story with reference to offence under Section 3(2) (v) of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, to be not proved, the story with regard to accused for offence under Sections, because yet it has on the same set of evidence convicted the accused-appellants, which reflected perversity in the judgment and liable to be quashed and set aside. 18. Learned counsel argued that onus to prove the case is always on the prosecution. The trial court failed to appreciate in Appeal No. 237/2008 that accused-appellant were in possession of the land of khasra no. 203 on which well was situated. In this connection, learned counsel referred to document Exhibit D-32 in Appeal No. 149/2008, registered by Ramhet against members of family of accused in Appeal No. 237/2008, against Devi Sahai, Gugli, Sethu, Durga, Belu. The FIR was submitted on 27.05.1999 but was registered on 01.06.1999 for offence under Sections 147, 447 and 427 of the IPC, wherein it was alleged that the disputed land was taken possession of by accused from the complainant party and they were dispossessed. The reference to the agriculture well was made asserting that it was fitted with engine/pump and pipe. Possession of the disputed agriculture land was in accused-appellant in Appeal No. 237/2008 and complainant in Appeal No. 149/2008 since then and continued remained with them in the present case till the incident took place on 13.02.2004. Learned counsel referred to document (Exhibit D-41 in Appeal No. 149/2008), which was an judgment dated 10.09.2004 passed by the Sub Divisional Officer, Rajgarh, under Section 175 of the Rajasthan Tenancy Act, passed against members of accused party in Appeal No. 237/2008, namely, Seth, Ballo and Chhoga. Learned counsel referred to document (Exhibit D-41 in Appeal No. 149/2008), which was an judgment dated 10.09.2004 passed by the Sub Divisional Officer, Rajgarh, under Section 175 of the Rajasthan Tenancy Act, passed against members of accused party in Appeal No. 237/2008, namely, Seth, Ballo and Chhoga. Although, the aforesaid application under Section 175 of the Rajasthan Tenancy Act was filed by the State of Rajasthan through Tehsildar, Rajgarh, but reference thereto is made to show that the accused-party in Appeal No. 237/2008 were not allowing them to cultivate the land since 26.05.1999 and order was passed on 10.09.2004 and they were in possession of the disputed land since 1999. The proceedings in the summons case were initiated because the allegation therein was that accused-appellants of general caste purchased the land from Kailash, original khatedar, who was Bairwa by caste, which is one of the Scheduled Castes. The Sub Divisional Officer, Rajgarh, directed that the land of khasra no. 203 measuring 25 hectare should be recorded as Siwai Chak. In that proceeding also accused Ramesh, brother of Ramhet, member of the accused-party in Appeal No. 149/2008, admitted possession of the accused-appellant in Appeal No. 149/2008, possession of Seth and others. Whatever injuries thus caused by the accused in Appeal No. 237/2008, who are complainant therein and caused in Appeal No. 149/2008, was result of exercise of right of private defence of person and property by the accused-appellants. 19. Shri Dinesh Kala, learned counsel for accused-appellants in Appeal No. 237/2008, argued that referring to statement of Ramesh (DW-1 in Appeal No. 149/2008) categorically admitted that at the time of incident the possession of the land was with Seth, Ballo etc., who are the accused in Appeal No. 237/2008. Seth (PW-1 in Appeal No. 149/2008), in cross-examination, admitted that the disputed land was purchased by them from Devi Sahai Bairwa, who was member of Scheduled Caste and the incident also took place on this land. He claimed that he is also member of Scheduled Caste. Land of khasra no. 203 was in fact measuring 25 bigha. It has different parts of five bigha each. Ten bigha out of that khasra was in the name of mother of Ramhet and the land relating there was of Ramesh and Ramhet. He claimed that he is also member of Scheduled Caste. Land of khasra no. 203 was in fact measuring 25 bigha. It has different parts of five bigha each. Ten bigha out of that khasra was in the name of mother of Ramhet and the land relating there was of Ramesh and Ramhet. He has stated that he had filed against judgment of SDO dated 04.05.2004 claiming land of Siwai Chak whereas he himself was member of the Scheduled Caste, therefore could have purchased the land. 20. Learned counsel argued that in the FIR No. 105/2004 in cross case (Exhibit D-15 in Appeal No. 149/2008), Ramhet has made no reference whatsoever that the land of Khasra No. 203 or that stage land was in their possession. In fact, the incident took place in the land in possession of Seth etc. Relying on judgment of the Supreme Court in Manjeet Singh v. State of Himachal Pradesh - 2014 Cri.L.J. 3970 , Shri Dinesh Kala, learned counsel for accused-appellants in Appeal No. 237/2008, argued that right of private defence would not be available to the accused party in Appeal No. 149/2008. Their allegation that accused in Appeal No. 237/2008 (complainant in Appeal No. 149/2008) had come with 'lathis' are 'banjaras' by caste and if they possessed 'lathis' it was quite natural, whereas fact is that on the other hand accused in Appeal No. 149/2008 came armed with badly weapon like gun. While the accused-appellant in Appeal No. 237/2008 set up a case both right of private defence of person and property but the trial court considered only first aspect and ignored the second aspect with regard to property. They filed appeal before the revenue authority, which court passed stay operation of the order of SDO, on the date of incident thus not only Seth and others were in possession of the disputed property but the order by which they were ordered to be evicted was stayed. In the FIR against Seth and others in appeal should be it was allowed that Hanuman and Ballo had 'lathi'; Dana had 'lathi' and Rekha had 'lathi' but Ramhet (PW-2 in Appeal No. 237/2008) has alleged that Hanuman had 'tanchya'. Ramesh (PW-1 in Appeal No. 237/2008) has stated that Hanuman had 'barchhi'. Indira (PW-4) and Balloram (PW-12) have turned hostile and did not support the case of the prosecution in Appeal No. 237/2008. Dr. Ramesh (PW-1 in Appeal No. 237/2008) has stated that Hanuman had 'barchhi'. Indira (PW-4) and Balloram (PW-12) have turned hostile and did not support the case of the prosecution in Appeal No. 237/2008. Dr. Phool Singh Choudhary (PW-7 in Appeal No. 237/2008) has stated that injuries sustained by Ramesh, except injuries no. 4 and 8, were found to be simple in nature. His injury report is Exhibit P-2. Injuries no. 1, 2, 3 (incised wound) and injury 5 (pierced wound) were caused by sharp edged weapon and remaining injuries were found to have been caused by blunt weapon. 21. Injuries of Ramhet, except injuries no. 1, 2, 4 and 5, were found to be simple. Injury no. 5 was found to have been caused by sharp edged weapon and remaining injuries by blunt weapon. Injuries no. 3, 7 and 11 were of simple nature. It was opined that cumulative effect of all these injuries, in absence of medical aid, there would have been danger to his life. 22. Indira received six injuries. Injury no. 1, which was incised wound on index finger caused by sharp edged weapon, was opined to be grievous. Injury no. 2 was abrasion. Injuries no. 3 and 5 were contusion. Injury no. 5 was swelling. Injury no. 6 was complaint of stomach ache. It was opined that cumulative effect of all these injuries, in absence of medical aid, would have been a danger to life. Bimla Devi W/o Ramhet received two injuries. One was lacerated wound and another was bruise. Similarly, Batto Devi W/o Ramesh received two injuries and both were bruises. 23. It is therefore argued that they have rightly been convicted in the cross-case for offence under Section 307 IPC. 24. Shri V.S. Godara, learned Public Prosecutor, has supported both judgments of learned trial court passed in cross-cases, and prayed for dismissal of appeals as well as revision petition. 25. We have given our thoughtful consideration to rival submissions and perused the material on record. 26. Learned trial court in Appeal No. 149/2008 convicted accused-appellant Ramhet for offence under Section 302 IPC simpliciter, but acquitted him of all other charges. Conversely, learned trial court convicted accused-appellant Ramesh for offence under Section 324 IPC and acquitted him of all other charges. Argument of learned counsel for accused-appellants is that appellant Ramhet did not intend to open fire and it was an accidental fire. Conversely, learned trial court convicted accused-appellant Ramesh for offence under Section 324 IPC and acquitted him of all other charges. Argument of learned counsel for accused-appellants is that appellant Ramhet did not intend to open fire and it was an accidental fire. The incident took place at their own land and the trial court failed to appreciate that accused-appellants acted in exercise of their right of private defence of person and property. Evidence on record belies that fact. Seth, in his 'parcha bayan' as also in his statement before court as PW-1, has proved that land for which quarrel took place, was in their possession and they purchased it from Devi Sahai and Mangli Bairwa. Even if it was purchased by complainant party in violation of Section 42 of the Rajasthan Tenancy Act, which bars purchase of land from a member of Scheduled Caste by a person of non Scheduled Caste, the fact remains that the court, for determining the question of right of private defence, need not go into its title. It has to simply find out as to who actually was in possession of the land. Seth, in his statement before the court, admitted that this land was purchased by him from Devi Sahai and Mangli Bairwa, who were members of Scheduled Caste and the incident took place on that land. He even claimed that he is also a member of Scheduled Caste. 27. The document (Exhibit D-41), which has been produced in defence by none other than the accused, is copy of judgment dated 10.09.2004 passed by Sub Divisional Officer, Rajgarh, in proceedings under Section 175 of the Rajasthan Tenancy Act, initiated against complainant-party impleading Seth (PW-1), Ballo (PW-13) and Chhoga (PW-3). A perusal of that judgment clearly shows that accused-appellant Ramesh, when he appeared as a witness before Sub Divisional Officer in that case, clearly admitted that complainant purchased the disputed land on 18.05.1999 from Devi Sahai Bairwa, but land measuring 5 bigha was of Khasra No. 203. They concealed the fact that they were 'banjara' by caste and they impersonated themselves as a member of Scheduled Caste on the basis of fake caste certificate, which was later on cancelled. He admitted in cross-examination that proceedings under Section 175 of the Rajasthan Tenancy Act were initiated on his application submitted before Sub Divisional Officer. They concealed the fact that they were 'banjara' by caste and they impersonated themselves as a member of Scheduled Caste on the basis of fake caste certificate, which was later on cancelled. He admitted in cross-examination that proceedings under Section 175 of the Rajasthan Tenancy Act were initiated on his application submitted before Sub Divisional Officer. When specific question was put to him about possession, he not only pleaded ignorance whether he was in possession but also categorically admitted that complainant-party was in possession of the land of Khasra No. 203 and additionally stated that they filed four suits with regard to that land. He also categorically admitted that disputed land of Khasra no. 203 was in possession of the complainant since 1999. Prabhu, who appeared as DW-3 in proceedings under Section 175 of the Rajasthan Tenancy Act, also admitted that complainant party was in possession of the land and that this land was earlier owned by a member of Scheduled Caste, who was 'Chamar' by caste, and purchased by complainant party, who are 'banjara' by caste, but he was not aware as to whether 'banjara' falls within Scheduled Caste or Scheduled Tribe. The land was measuring 1.25 hectares. Learned trial court, therefore, rightly did not accept the argument put forward by accused-appellants Ramhet and Ramesh that they acted in their right of private defence. 28. Learned trial court also did not accept the argument that it was a case of accidental fire and, in our view, rightly. If we analyse the evidence of prosecution witnesses, Seth (PW-1) has stated that five accused came to their agriculture land on the fateful at about 10-10.30 AM. They were armed with 'barchhi', gun, 'tanchia', knife etc. They abused the members of the family of complainant party. When he got down from the well and walked 20-25 feet, Ramhet opened fire at him, but he ducked. Ramesh inflicted a 'barchhi' blow on his leg, which hit his knee and thereby he sustained a cut. Kailash, who was standing at hand-pump, heard hue and cry and sound of fire. Kailash tried to come near to him. At that time, accused-appellant Ramhet opened fire at him, which hit his stomach. Kailash instantaneously fell down. Chhoga, Dansingh and Hanuman also reached there. They all of them overpowered Ramhet and Ramesh and caught them from the place of incident. Kailash tried to come near to him. At that time, accused-appellant Ramhet opened fire at him, which hit his stomach. Kailash instantaneously fell down. Chhoga, Dansingh and Hanuman also reached there. They all of them overpowered Ramhet and Ramesh and caught them from the place of incident. When Ramhet was about to open third fire, he delivered a 'lathi' blow on the gun, as a result of which its barrel was broken from but. Hanuman (PW-2) has also stated that all of them ran to save him. Kailash was in front of accused. Ramhet opened fire, which hit Kailash on his stomach, as a result of which he fell down. Hanuman (PW-2) also stated that when Seth caused 'lathi' blow on the gun, the gun got broken, which was recovered from the place of incident itself vide Exhibit P-8, which has been proved by Ballo Ram Gurjar. Ramesh inflicted a 'farsi' blow on his (Hanuman) shoulder. Chhoga Ram (PW-3) has also made exactly similar version. 29. Dr. G.P. Meena (PW-11) has proved injuries sustained by Bhanwari Devi, Hanuman, Dansingh, Chhogaram and Seth. He proved that Bhanwari Devi sustained three injuries, out of which first was bruise, second and third were swelling and all were simple in nature, which were caused by blunt weapon. Hanuman sustained two injuries, out of which one was bruise and another was contusion and both were simple in nature caused by blunt weapon. Dansingh sustained one injury, which was simple in nature and caused by blunt weapon. Chhogaram sustained two injuries, out of which one was bruise and another was swelling, which were opined to be simple in nature and caused by blunt weapon. Seth sustained three injuries, out of which two were lacerated wounds and third one was swelling and pain. Dr. Phool Singh Choudhary (PW-10), who conducted postmortem of deceased, has proved that on account of firearm opened by accused Ramhet, deceased sustained as many as 54 small injuries on the stomach and that a cluster of pallets were found in his stomach. Cause of death was shock on account of internal bleeding due to injuries of intestinal and other organs of the body, which were caused by firearm. License of the gun was in the name of accused-appellant Ramhet and that according to FSL report, this was in serviceable condition. Cause of death was shock on account of internal bleeding due to injuries of intestinal and other organs of the body, which were caused by firearm. License of the gun was in the name of accused-appellant Ramhet and that according to FSL report, this was in serviceable condition. His conviction by learned trial court under Section 302 IPC thus cannot be faulted. 30. As far as accused-appellant Ramesh is concerned, allegation against him in FIR (Exhibit P- 21) is that he inflicted a 'farsi' blow on left hand of Seth (PW-1), who repeated that allegation in his court statement. Eye witnesses, namely, Hanuman, Chhoga, Dansingh, Bhanwari and Kamla, also supported this allegation in their court statements. Dr. G.P. Meena (PW-11) has proved injuries sustained by Seth, whose injury report is Exhibit P-19, according to which, injury no. 1 was lacerated wound in size of 5.0 cm x 0.9 cm x 0.7 cm caused on medial side of left knee joint. Injury no. 2 was also lacerated wound in size of 8.1 cm x 2.1 cm x 0.9 cm on joint medial part of left side knee. His conviction by learned trial court under Section 324 IPC cannot be faulted. It may be noted that learned trial court has held that unlawful assembly was not formed and each accused would therefore be liable to be convicted for their individual liability. 31. Coming now to the Appeal No. 237/2008 filed by Seth and others, evidence on record has proved that incident had taken place on the land in their possession. Although, the said land was declared as 'siwai chak' by judgment dated 10.09.2004 of Sub Divisional Officer in proceedings under Section 175 of the Rajasthan Tenancy Act, but it has proved by evidence on record that they were dispossessed on the date of incident i.e. 13.10.2004. The incident thus has taken place almost a month after aforesaid judgment, in which there is clear finding of possession of the accused over the land. The accused have thus certainly been held to have acted in exercise of their right of private defence. However, what we have therefore to find out is whether they acted within the limits of their right of private defence of person and property or exceeded the same. Dr. The accused have thus certainly been held to have acted in exercise of their right of private defence. However, what we have therefore to find out is whether they acted within the limits of their right of private defence of person and property or exceeded the same. Dr. Phool Singh Choudhary (PW-7) has proved the injuries sustained by Ramesh S/o Ramlal and his injury-report is Exhibit P-2, according to which he sustained the incised wounds and all of which were on his head. Fourth injury was a bruise on upper part of chest from left to right side in size of 22cm x 3cm in red colour. Fifth injury was punctured wound on ⅓rd part of right side shoulder in size of 2cm x 2cm x deep bone. Sixth injury was again a bruise on right hip in size of 14cm x 2cm. Seventh injury was abrasion on middle finger. Eighth and ninth injuries were diffused swelling. Dr. Phool Singh Choudhary (PW-7), in his statement, has proved that only injuries no. 4 and 8 were found to be grievous in nature after X-ray report made by expert. While injury no. 4 was a bruise on chest, injury no. 8 was abrasion on middle finger of right hand in size of 1cm x 1/4 cm. That means it was a fracture on right finger. Similarly, Dr. Phool Singh Choudhary (PW-7) has proved injuries of Ramhet, who sustained 11 injuries, while six of them were found to be simple in nature, injuries no. 1, 2, 4 and 5 were found to grievous. Injury no. 1 was on left forearm; injury no. 2 was on elbow of left hand in size of 8cm x 1/2cm; injury no. 4 was a bruise near right eye in size of 4 cm x 4 cm and injury no. 5 was incised wound on right side of forehead in size of 17cm x 2cm. Dr. Phool Singh Choudhary (PW-7) has also proved injuries of Indira Devi, who sustained six injuries, out of which only one was found to be grievous and that was incised wound on right index finger, which was a fracture. 32. Learned trial court in convicting four accused in Appeal No. 237/2008 has relied on statement of eye witness in cross-case, namely, Ramesh (PW-1), who attributed his head injury to Ballo, who also caused injury on his right elbow. 32. Learned trial court in convicting four accused in Appeal No. 237/2008 has relied on statement of eye witness in cross-case, namely, Ramesh (PW-1), who attributed his head injury to Ballo, who also caused injury on his right elbow. He attributed his injury on finger to Rekha. He stated that blood was oozing out of head of Ramhet and his hand was also broken; there was swelling in his eyes and he was tide with a 'peeple' tree. Ramhet was examined as PW-2. He stated that Indira rushed to him and told that members of 'banjara' family were beating Ramesh, Batto and Bimla. He went there with his licensee gun and opened fire in air. Initially, they disbursed but Seth, Hajari, Ballo, Dana, Hanuman, Chhoga and others encircled him and started beating. Dana had 'lathi' with iron wire, Ballo had 'barchhi', Hanuman had 'tanchia', Chhoga had 'lathi' and others had also 'lathis' in their hands. They started beating him. This witness stated that when Seth inflicted 'lathi' blow on his hand, his hand sustained fracture and gun got unlocked. Since his finger was on trigger, he could not hold the weight of gun and trigger was pressed and it got fired accidentally. After fire, the gun was separated from the barrel. He alleged that Ballo inflicted 'barchhi' blow on his head but police did not file charge-sheet against Ballo. He also alleged that Hanuman inflicted a 'tanchia' blow from behind on his head. Dansingh inflicted 'lathi' blow on his thigh. Somewhat similar statements have been made by Batto Devi (PW-3), Indira (PW-4) and Bimla (PW-5), who are female members of complainant party. 33. What emerges from their statements therefore is that while the accused-appellants - Ramhet and Ramesh in Appeal No. 149/2008, were aggressors but when Ramhet opened fire, Seth and others overpowered both (Ramhet and Ramesh) and tied and subjected them to beating, which is admitted by Ramesh (PW-1 in Appeal No. 237/2008). While therefore the accused-appellants in Appeal No. 237/2008 were entitled to use their right of private defence of person and property, but once accused-appellants in Appeal No. 149/2008 were overpowered and were taken into control by accused-appellants Seth and others (in Appeal No. 237/2008), there was no need to further subject them to extensive beating. They therefore certainly had exceeded their right of private defence. 34. They therefore certainly had exceeded their right of private defence. 34. In view of the foregoing discussion, while upholding conviction of accused-appellant Ramhet for offence under Section 302 IPC and Ramesh for offence under Section 324 IPC, we are inclined to set aside conviction of accused-appellants (Appeal No. 237/2008) for offence under Sections 307, 326 and 326/34 IPC and maintain conviction of accused-appellants Seth, Dan Singh and Chhoga for offence under Sections 341, 323, 324, 324/34, 325, IPC, and that of accused-appellant Hanuman for offence under Sections 341, 323, 324, 325/34 IPC. Sentence of accused-appellant Ramhet is also maintained. 35. For offences caused by accused-appellants Ramesh (Appeal No. 149/2008), Seth, Dan Singh, Chhoga and Hanuman (Appeal No. 237/2008) for which their conviction has been maintained, they are sentenced to the period already undergone by them. They are on bail as their sentences were suspended by this court. They need not surrender. 36. In view of above, appeal of accused-appellant Ramhet (Appeal No. 149/2008) is dismissed, whereas appeals of accused-appellants Ramesh (Appeal No. 149/2008), Seth, Dan Singh, Chhoga and Hanuman (Appeal No. 237/2008) are partly allowed. Revision petition also stands disposed of. 37. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants, namely, Ramesh (Appeal No. 149/2008), Seth, Dan Singh, Chhoga and Hanuman (Appeal No. 237/2008) are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, these appellants, on receipt of notice thereof, shall appear before the Supreme Court.Appeal No. 149/2008 dismissed/Appeal No. 237/2008 partly allowed/Revision disposed of. *******