JUDGMENT : Kanwaljit Singh Ahluwalia, J. As per the case of the prosecution, Balbir Singh (PW7) had lodged the report (Ex.P6) at Police Station Tapukada, District Alwar on 23/04/1996 at 9.15 a.m. stating that on the same date i.e. the date of the occurrence at about 8.00 a.m., 28 accused persons namely; Rukku, Nanda, Hasam, Kasam, Kalu, Jahariya, Juhruddin, Jomu, Subban, Basira, Ismalli, Majru, Sarmu, Jumma, Rujdar, Isab, Akbari, Hasanbasiri, Majji, Farida, Asubi, Rasmeena, Jameela, Bhajji, Hajara, Jatuni, Gunnak Kasai and Umardeen Kasai came and murdered his younger brother Resham Singh. All the accused were sent for trial in the case arising out of FIR No.113/1996 registered at Police Station Tapukada, District Alwar for offence u/Ss.147, 148, 149, 341 and 307 IPC and Sections 5/8(1), 8(2) and 9(2) of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995. 2. The trial court vide impugned-judgment dated 04/02/2006 acquitted 22 co-accused of the appellants by returning a finding that Fajru S/o Mauja Mev, Juhruddin S/o Isab Mev, Subban S/o Muhuru Mev and Rukku S/o Dalveer Mev have committed the murder of Resham Singh and thus, they are guilty of offence under Section 302 read with Section 34 IPC. However, these accused-appellants were acquitted of the charge for offence u/Ss.147, 148, 149 and 341 IPC as well as Sections 5/8(2) and 9(2) of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995. Having convicted the appellants for above offences, the trial court sentenced the accused-appellants, as under:- Appellant-Rukku for offence u/S.302/34 IPC for offence u/S.302/34 IPC Life Imprisonment and pay a fine of Rs.5,000/- and in default thereof, to further undergo one year simple imprisonment. Appellant-Subban for offence u/S.302/34 IPC Life Imprisonment and pay a fine of Rs.5,000/- and in default thereof, to further undergo one year simple imprisonment. Appellant-Fajru for offence u/S.302/34 IPC Life Imprisonment and pay a fine of Rs.5,000/- and in default thereof, to further undergo one year simple imprisonment. Appellant-Juhruddin:- for offence u/S.302/34 IPC Life Imprisonment and pay a fine of Rs.5,000/- and in default thereof, to further undergo one year simple imprisonment. Appellant-Fajru for offence u/S.302/34 IPC Life Imprisonment and pay a fine of Rs.5,000/- and in default thereof, to further undergo one year simple imprisonment. Appellant-Juhruddin:- for offence u/S.302/34 IPC Life Imprisonment and pay a fine of Rs.5,000/- and in default thereof, to further undergo one year simple imprisonment. The trial court primarily convicted the appellants for the above offence u/S.302 read with Section 34 IPC on the ground that these four appellants had caused the injuries on the person of deceased-Resham Singh, whereas remaining accused had not caused any injury to deceased-Resham Singh, the only person injured on the side of the complainant-party. One of appellant Juhruddin, as per prosecution had suffered pellet injuries from the shot fired by co-accused Bashir from a 12 bore gun, however defence persist and it has been urged during the course of arguments that Juhruddin suffered injuries in the occurrence at the hands of the complainant-party and the non-explanation of injuries on the person of accused, is fatal to the prosecution, therefore, even though right of self-defence has not been pleaded, we should infer from the prosecution case that accused acted in their self-defence to cause death of Resham Singh. 3. Suffice it to say that no accused in statement u/S.313 Cr.P.C. has pleaded right of self-defence or has given any version further while conducting cross-examination of the witnesses. No suggestion has been given that Juhruddin had suffered injuries in the occurrence at the hands of the prosecution witnesses. We need not examine the contention raised regarding complete right of self-defence of person of the accused as during the course of arguments, Shri R.K. Mathur, learned senior counsel appearing for appellants Subban, Fajru and Juhruddin and Shri A.K. Gupta, learned counsel appearing for appellant Rukku have modulated their submissions and have canvassed that the right to defend property vested in the appellants and they have exercised the same. Taking note of the arguments raised before us, we shall decide D.B. Cr.Appeal No.158/2006 : Rukku v. State of Rajasthan, D.B. Cr.Appeal No. 159/2006 : Subban v. State of Rajasthan and D.B. Cr.Appeal No.160/2006 : Fajru & Anr. v. State of Rajasthan together, since all these three appeals assail the same impugned-judgment rendered by trial court, they are being decided by this common judgment. 4. v. State of Rajasthan together, since all these three appeals assail the same impugned-judgment rendered by trial court, they are being decided by this common judgment. 4. The criminal proceedings in the present case were initiated on the basis of the FIR (Ex.P.6) lodged by Balveer Singh (PW7) elder brother of deceased-Resham Singh. In the FIR, it has been alleged by Balveer Singh (PW7) that on 23/04/1996 at about 8.00 a.m., he along with his younger brothers Resham Singh and Vajir Singh (PW8) and his uncle Inder Singh's son Dilip Singh (PW14) and Datar Singh (PW5) were sitting in their 'dhani' (house built up in the farm) at Nimbahedi. They found that from the side of village Nimbahedi, a herd consisting of 150 cows was being tended by number of persons consisting of Rukku S/o Dalveera Mev, Natha, Hasam, Kasam brother of Hasam, Kalu, Juhruddin, another Juhuru, Jomu, Subban, Bashira, Rujdar, Ismalli and other persons, who were armed with 'pharsi' and 'lathi'. They were beating the cows and were taking the herd towards the 'kala pahad' (black mountain). They were telling each other that herd be taken to the mountain hurriedly as much time of the day has been spent. Hearing this, complainant-party followed them. Resham was armed with Jelli having two prong fork. The accused were taking the cows to the mountain for slaughtering and the complainant-party thought that it is their duty to save cows from slaughter. They followed the accused and when they reached at the village well, before beginning of the mountain, they encircled the cows. Accused pelted stones at complainant-party but they turned the herd of cows towards their village. When they reached near the 'bammoo ki dhani' then, Bashir while running towards 'bammoo ki dhani', called persons from his 'dhani'. When complainant-party was taking the herd of cows through the 'nala' (water channel), 25-30 persons consisting of ladies came there from the side of 'bammoo ki dhani' armed with gun, 'lathi', 'barchi' and 'tanchia' and encircled the complainant-party. Bashir fired a shot and the pellets hit Juhruddin, who was on the opposite side. When the complainant-party made an attempt to save them, then, Juhruddin, Rukku, Subban, Fajru chased Resham Singh. Bashir fired a shot and the pellets hit Juhruddin, who was on the opposite side. When the complainant-party made an attempt to save them, then, Juhruddin, Rukku, Subban, Fajru chased Resham Singh. Juhruddin caused a 'pharsi' blow on the head of Resham Singh, Rukku caused 'tanchiya' blow on the head of Resham Singh, Subban caused lathi blow on the head of Resham then, Resham slipped and fell down. Then, Fajru inflicted 'pharsi' blow at Resham while he was lying on the ground, which hit him at his left palm. The other accused also inflicted blows to Resham when he was lying on the ground. Resham died at the spot. 5. After investigation, police filed charge sheet against 28 accused persons and they were sent for trial. During trial, accused-Jumma S/o Bhuru Mev died hence, proceedings were dropped against him. All the accused were charged for various offence, they pleaded not guilty and claimed trial. The prosecution commenced its evidence. 6. Ratti Khan (PW2) and Baddal (PW3) have not supported the prosecution case and were declared hostile. 7. Datar Singh (PW5) broadly deposed about accused taking herd of cows and the fact that they followed them but thereafter, in the court, had not toed the line of prosecution and was declared hostile. He stated in the court that five years ago when he went out of the house, he along with Resham accompanied by 5-7 persons went towards the mountain. Then, Resham Singh told him that the cows will be taken from this side. Then, they went there and stopped the herd of cows. The herd consisted of around 100-125 cows and 20-25 persons were taking those cows. Juhruddin, Sarpu, Subban, Jomu etc. were the persons, who were about to take the cows, towards mountain. Witness further stated that he cannot remember the names of other accused. Witness has further stated that a 'hangama' (ruckus) was created by the accused persons when they told them that they will not permit them to take cows along with them and due to this ruckus created by the accused, they (complainant party) started running here and there. The accused encircled Resham then, the complainant-party ran away. The witness has further stated that he was not aware as to who gave beating to Resham. Learned Public Prosecutor got the witness declared hostile and confronted him with his previous statement (Ex.P5) recorded by the police. 8. The accused encircled Resham then, the complainant-party ran away. The witness has further stated that he was not aware as to who gave beating to Resham. Learned Public Prosecutor got the witness declared hostile and confronted him with his previous statement (Ex.P5) recorded by the police. 8. Balveer Singh (PW7) complainant brother and another brother Vajir Singh (PW8) have deposed against the accused in the court as eye-witnesses. It is to be noted that Balveer Singh (PW7) and Vajir Singh (PW8) had not suffered any injury in the occurrence. Balveer Singh (PW7) stated in the court that seven years ago at about 8.00 a.m., 12 persons, which included Nanda, Kasam, Asam, Rukku, Juhruddin, Bashir, Ismalli, Jahariya, Kalu, Sibban and Jemu were taking herd of 100-150 cows by beating them. The accused were armed with lathi and pharsi and they were telling each other that butchers are sitting on the top of the hill. Hearing so, Resham along with other four persons followed the accused. In the way, complainant-party turned the herd of cows and made them return towards the village. When they reached in front of Bhalesar nala (water channel), Bashir while running towards 'bammoo ki dhani', brought 25-30 persons. Bashir was armed with a gun and he fired a shot and complainant-party took shelter behind the cows. The pellets of the shot hit Juhruddin, who was standing on the 'teela' (mound). Resham slipped and fell down. Juhruddin caused injury to Resham with pharsi. Rukka caused tanchia blow on the head of Resham. Subban also inflicted lathi blow on the head of Resham. Fajru also inflicted pharsi blow on the left palm of Resham. Resham died on the spot. Balveer Singh (PW7) lodged the FIR (Ex.P.6). In cross-examination, this witness has stated that after encircling the cows, they brought the herd upto the distance of 1 km. It will be necessary to reproduce portion of the cross-examination of this witness, as under:- ^^ge xk;ksa dks ?ksjdj ,d fdyksehVj nwjh rd okil ys vk;s FksA tgka geus xk;ksa dks ?ksjk og txg jktLFkku esa gSA ;g lgh gS fd tgka ge xk;ksa dks okil yk;s Fks og txg vHkh jktLFkku esa gh gSA ;g lgh gS fd eq>s irk ugha fd fdl eqyfte dh fdruh xk;sa FkhA Witness further stated that Bashir had fired a shot from a distance of around 30 feet. Witness further stated that they were not armed with any gun. 9. Vajir Singh (PW8) reiterated as to what was stated by Balveer Singh (PW7). In cross-examination, Vajir Singh (PW8) stated that Balveer Singh and Resham Singh are his real brothers. Dilip Singh and Datar Singh are sons of his uncle. In cross-examination, this witness stated that Resham Singh had told him a day earlier that the accused will carry the cows tomorrow and they had not given any information to the police. In cross-examination, Vajir Singh (PW8) has stated, as under:- ^^,d fnu igys gh js'ke flag dg jgk Fkk fd eqyfteku dy xk;ksa dks ysdj tk;saxsA ftldh lwpuk geus iqfyl dks ugha nhA^^ The witness has further stated that 28-30 accused persons caused injuries to Resham. 10. Dilip Singh (PW14) has also corroborated the testimony of Balveer Singh (PW7) and Vajir Singh (PW8). 11. Dr.Rajendra Agrawal (PW4) had conducted the autopsy on the dead-body of Resham Singh (vide Ex.P4) and in post-mortem, he noted six injuries on the person of Resham Singh. Injury No.2 on the head had proved fatal. The doctor opined that Resham Singh had suffered fracture of left side of the parietal bone, brain was compressed and the membrane of the brain were having swelling apart from fracture of radius. Dr.Rajendra Agrawal (PW4) had also examined Juhruddin and as per injury report (Ex.D1), Juhruddin had suffered five punctured wounds due to gun shot injury. 12. We have already noted the arguments raised by the counsel for the appellants. Shri Aladeen Khan, learned Public Prosecutor has stated that it was the bounden duty of the complainant-party to save the cows from slaughter and, therefore, they were well within their right to bring the cows to the safe custody. 13. We have analysed the arguments raised by the learned Public Prosecutor. 14. In the present case, the prosecution witnesses want the court to believe that Bashir fired shot as a result thereof, accused-Juhruddin had suffered the injuries. Admittedly, there is no pellet injury on any cow. No cow has been examined by any Veterinary doctor. We have seen the injuries suffered by Juhruddin and noted in the injury report (Ex.D1). Injury No.1 is on the left side of forehead, injury No.2 is on the right side above the eye-brow, injury No.3 is on the cheek and nostriles and injury No.5 is on the frontal region. No cow has been examined by any Veterinary doctor. We have seen the injuries suffered by Juhruddin and noted in the injury report (Ex.D1). Injury No.1 is on the left side of forehead, injury No.2 is on the right side above the eye-brow, injury No.3 is on the cheek and nostriles and injury No.5 is on the frontal region. Witnesses want the court to believe that after injuries were suffered by Juhruddin, he came running and caused injury to Resham Singh. Admittedly, injury No.3 is on the border of nostril. The nose is very sensitive part of the body. It is apparent to us that after suffering injury, Juhruddin will be in immense pain and it will not be possible for him to cause injury to Resham Singh. To us, testimony of Datar Singh (PW5), who has turned hostile seems probable that when the complainant-party snatched the cows, 'hangama' (ruckus) was created. We also cannot ignore the admission of Vajir Singh (PW8) in cross-examination that a day before, Resham was telling that tomorrow the cows will be taken. In cross-examination, Vajir Singh (PW8) has stated, as under:- ^^,d fnu igys gh js'ke flag dg jgk Fkk fd eqyfteku dy xk;ksa dks ysdj tk;saxsA ftldh lwpuk geus iqfyl dks ugha nhA^^ 15. In the circumstances, we are of the view that the complainant-party could not act themselves as a saviour of the cows. They have not seen the butchers on the mountain. They were merely drawing inferences that accused are taking cows to the up hill for slaughter. Preparation of offence is not an offence as any person before commission of the offence can change his mind, therefore, the best course available for the complainant-party was to inform the police or to any public authority and take their help to avoid perceived slaughter of the cows. It has come in evidence that when the complainant-party had gone and had encircled the cows, accused had announced that cows have been snatched. Vajir Singh (PW8) in the court has stated, as under:- ^^fQj lc eqyfteku cksys bUgksaus gekjh xk; Nhuh gSA bu lcdks tku ls ekj nksA^^ Seeing causing damage to their property i.e. snatching of cows, the accused were entitled to save their property. Vajir Singh (PW8) in the court has stated, as under:- ^^fQj lc eqyfteku cksys bUgksaus gekjh xk; Nhuh gSA bu lcdks tku ls ekj nksA^^ Seeing causing damage to their property i.e. snatching of cows, the accused were entitled to save their property. Therefore, we find merit in the contention advanced by the learned counsel for the appellants that in order to defend their property i.e. snatching of their cows, the accused were well within their right to cause injuries to Resham Singh. As we have said, after receipt of injury, Juhruddin cannot cause injury, and, therefore, he has caused injury before receipt of injury by him. Therefore, right of self defence of a person will not accrue to accused but as stated earlier, accused were entitled to defend their property as their cows were snatched by the complainant-party. Having held so, we find that accused had caused six injuries to Resham Singh and that too on the vital portion of the body. The accused could have incapacitated the deceased-Resham Singh by causing injury on the lower limb or other parts of the body. The very fact that accused had caused injuries on the vital part of the body, we find that accused had exceeded their right to defend their property and the case of the accused will fall under Exception-II to Section 300 IPC. Thus, in view of the above discussion, the accused are not held guilty of culpable homicide amounting to murder but they are liable to be convicted for offence u/S.304 Part-I IPC as the act of the accused fall within the ambit of Exception-II to Section 300 IPC. 16. Consequently, we set-aside the conviction of the accused-appellants for offence under section 302/34 IPC and convert their conviction from offence under section 302/34 IPC to conviction for offence u/S.304 Part-I IPC and their sentence of life imprisonment is modified and reduced to 10 years rigorous imprisonment with a fine of Rs.10,000/- each and in default of payment thereof, each of the accused-appellants shall further undergo rigorous imprisonment for one year. With the above modification in the conviction and sentence qua each of the accused-appellants, the present appeals stand disposed of. Appeal partly allowed.