JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Devilal @ Devaram alongwith his son Radheyshyam, wife Smt. Shakuntala and their employee Jasveer Singh were sent for trial for causing murder of Palaram and injuries to Smt. Ginni Devi (P.W. 10) wife of Palaram, Roshni Devi (P.W. 9) daughter-in-law of Palaram and Smt. Sajna Devi (P.W. 11) daughter of Palaram. Parties in the present case are closely related. Palaram, deceased is uncle (Chacha) of principal accused Devilal @ Devaram. A land dispute was pending between the deceased Palaram and Devilal @ Devaram nephew of Palaram. Devilal @ Devaram in his testimony appearing as D.W. 1 has relied upon a suit (Ex. D. 4) filed by him and also order of injunction (Ex. D. 8) dated 12.4.2007 to assert that he was in possession of the field where the occurrence had taken place; hence, he had a right of private defence to evict the deceased Palaram, his wife, daughter-in-law and daughter who had allegedly trespassed into the field in his possession. 2. In the present appeal, we have been called upon to answer the following two questions:- (a). Whether in the disputed field where occurrence had taken place, was in possession of the appellant and if so, he has a right of self defence to cause death of Palaram? (b). Whether in the circumstances where both the parties genuinely believe and assert their possession over the disputed field, Section 34 of the Indian Penal Code is attracted or not? 3. Before we endeavour to answer above two questions, it will be necessary for us to recapitulate the brief facts of the case. 4. Roshni Devi (P.W. 9) injured daughter-in-law of deceased Palaram made a statement (Ex. P. 27) before ASI Bhagirath Singh (P.W. 13). Bhagirath Singh appearing in court as P.W. 13 deposed that on 5.9.2008 he was posted as ASI at Police Station Bagad. Investigation of the case was entrusted to him and he recorded statement of Roshni Devi (P.W. 9) at B.D.K. Hospital, Jhunjhunu on 5.9.2008 at 7.40 P.M. ASI Bhagirath Singh (P.W. 13) has proved on record statement of Roshni Devi (P.W. 9) as Exhibit-P. 27. On the basis of statement of Roshni Devi (P.W. 9) Exhibit-P. 27, formal FIR (Ex. P. 30) bearing FIR No. 145/08 was registered at Police Station Bagad for offences under Sections 341, 323/34 IPC. On the basis of statement of Roshni Devi (P.W. 9) Exhibit-P. 27, formal FIR (Ex. P. 30) bearing FIR No. 145/08 was registered at Police Station Bagad for offences under Sections 341, 323/34 IPC. Palaram died on 11.9.2008 at 10.00 P.M. at SMS Hospital, Jaipur. Therefore, subsequently offence under Section 302 IPC was added. 5. Upon death of Palaram on the basis of statement made by Roshni Devi (P.W. 9), present four appellants were sent for trial. The Court of Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu vide impugned judgment dated 11.11.2010 convicted all the accused except Devilal @ Devaram for offences under Sections 341, 323, 325/34 and 302/34 IPC. In the present case, Palaram had suffered injuries on the head leading to his death. The said injuries on the head of Palaram deceased are attributed to Devilal @ Devaram. Hence, Devilal @ Devaram is substantively convicted for offence of murder. 6. Having convicted the appellants for above said offences vide a separate order of even date, the trial Judge sentenced the accused-appellants as under:- Accused-appellant, Devilal @ Devaram "U/s. 341 IPC: One month simple imprisonment. U/s. 323 IPC: Six months simple imprisonment. U/s. 325/34 IPC: Three years rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo two months simple imprisonment. U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo four months simple imprisonment." Accused-appellants, Jasveer Singh, Radheyshyam and Smt. Shakuntala Devi "U/s. 341 IPC: One month simple imprisonment each. U/s. 323 IPC: Six months simple imprisonment each. U/s. 325/34 IPC: Three years rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo two months simple imprisonment each. U/s. 302/34 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo four months simple imprisonment each." 7. Aggrieved against their conviction and sentence, the appellants had sent through Jail D.B. Criminal Jail Appeal No. 16/2011. Subsequently, they also filed appeal through their counsel bearing D.B. Criminal Appeal No. 927/2011. Both the appeals were admitted. Since both the appeals have been filed by the same accused challenging the same impugned judgment, we shall club both the appeals and decide them together. 8. Case of the prosecution stands unfolded in the statement (Ex. P. 27) made by Roshni Devi (P.W. 9). Both the appeals were admitted. Since both the appeals have been filed by the same accused challenging the same impugned judgment, we shall club both the appeals and decide them together. 8. Case of the prosecution stands unfolded in the statement (Ex. P. 27) made by Roshni Devi (P.W. 9). Roshni Devi (P.W. 9) in her statement (Ex. P. 27) made to the police, stated that on 5.9.2008 at about 3.30 P.M. she alongwith her mother-in-law Ginni Devi, sister-in-law (Nanad) Sajna and father-in-law Palaram had gone to their field to harvest the crop. When they were harvesting the crop, Devilal S/o. Mohan, Radheyshyam S/o. Devilal, Smt. Shakuntala W/o. Devilal and another person came armed with lathies and Sariya (iron rod). They restrained them to harvest the crop. Nobody else was present around the field. The accused gave them beating. Nobody came to save or separate them. The dispute was regarding the land. Due to injuries caused, Ginni Devi and Palaram became unconscious. It was further stated in the statement (Ex. P. 27) that she is not aware as to who got them admitted in the hospital. 9. As is evident, case of the prosecution rests on the testimony of three injured witnesses, namely Roshni Devi (P.W. 9) complainant-first informant, Ginni Devi (P.W. 10) and Sajna Devi (P.W. 11). 10. Before we revert to the testimony of these witnesses, it will be necessary for us to have a glance at the medical evidence. 11. Dr. N.S. Naruka (P.W. 6) on 5.9.2008 had examined all the four injured. Dr. Naruka (P.W. 6) in court deposed that on 5.9.2008 he examined Palaram and had prepared injury statement (Ex. P. 12). It will be apposite for us to reproduce the injuries noted in injury statement (Ex. P. 12) as under:- "1. Blackening upper tip of left eye, semi-unconscious, irritable. 2. Lacerated wound 1/2 x 1/2 x 1/4 c.m. on middle of parietal region." 12. A perusal of the injuries reveal that injury No. 1 is blackening of left eye, injury No. 2 is a lacerated wound having dimension of 1/2 x 1/2 x 1/4 c.m. on the parietal region. 13. Injury No. 1, to us, is not an independent injury as there is neither any abrasion nor bruise nor swelling present on the injury No. 1. Injury No. 1, in fact, is a result of injury No. 2. 13. Injury No. 1, to us, is not an independent injury as there is neither any abrasion nor bruise nor swelling present on the injury No. 1. Injury No. 1, in fact, is a result of injury No. 2. Thus, it is apparent that Palaram had received only one injury in the occurrence. 14. Dr. N.S. Naruka (P.W. 6) had also examined Smt. Sajna Devi (P.W. 11) and vide injury report (Ex. P. 13) had noted the following injuries on her person:- "1. Lacerated wound on dorsal aspect of right hand, 1/2 x 1/2 x 1/4 c.m. 2. Lacerated wound 1 x 1/2 x 1/4 c.m. on occipital region. 3. Bruise (radish blue) 3 x 2 c.m. upper 1/3rd of left arm. 4. Bruise 4 x 2 c.m. latro-anterio aspect of left arm." 15. This witness Dr. Naruka (P.W. 6) also examined Roshni Devi (P.W. 9) and as per injury report (Ex. P. 14) had noted following injuries on her person:- "1. Lacerated wound 1 x 1/2 x 1/4 c.m. on upper head. 2. Mild swelling on hip joint with pain mild. 3. Mild swelling with pain mild on left shoulder with mild redness." 16. Dr. Naruka (P.W. 6) also examined Smt. Ginni Devi (P.W. 10) wife of Palaram and had noted following injuries on her person in injury statement (Ex. P. 15):- "1. Lacerated wound 1 x 1/2 x 1/4 c.m. on left leg. 2. Lacerated wound 2 x 1/2 x 1/4 c.m. on right hand at base of finger. 3. Bruise 18 x 2 c.m. on left gluteal region. 4. Bruise (reddish blue) 18 x 2 c.m. on right gluteal region. 5. Bruise 18 x 2 c.m. on posterio lower aspect of chest obliquely. 6. Bruise 10 x 2 c.m. on left thigh anterio-lateral aspect obliquely. 7. Bruise 2 x 2 c.m. on right shoulder on upper posterio." 17. Palaram, as stated earlier, died on 11.9.2008 at 10.00 P.M. Autopsy on the dead body was conducted by Dr. Ram Lakhan Meena (P.W. 14). Dr. Meena had found four injuries on his person. We need not notice the injuries mentioned in post-mortem report as they contain surgical stitched wounds. It has come in evidence that an operation was carried. Suffice it to say that the doctor had found fracture of scalp and parietal bone and also sub-dural heamatoma beneath the injury on the parietal region. Meena had found four injuries on his person. We need not notice the injuries mentioned in post-mortem report as they contain surgical stitched wounds. It has come in evidence that an operation was carried. Suffice it to say that the doctor had found fracture of scalp and parietal bone and also sub-dural heamatoma beneath the injury on the parietal region. As per opinion of Dr. Meena (P.W. 14), cause of death was coma as a result of ante-mortem head injury which was sufficient to cause death in ordinary course of nature. In cross-examination Dr. Ram Lakhan Meena (P.W. 14) stated that injuries No. 1 and 3 both were sufficient to cause death in ordinary course of nature. 18. First informant Roshni Devi (P.W. 9) stepped into the Witness Box as P.W. 9. In court she deposed that on 5.9.2008 at about 3.30 P.M. she alongwith her father-in-law Palaram, mother-in-law Ginni Devi and sister-in-law (Nanad) Sajna were harvesting pearl millet (Bajra) crop. Then suddenly Devilal, his son Radheyshyam and wife of Devilal Shakuntala arrived. Devilal was armed with iron rod (Saria), Jasveer was armed with lathi, Shakuntala was also armed with lathi and Radheyshyam was armed with iron rod (Saria). Devilal on reaching at the spot caused a blow from iron rod on the head of Palaram. Palaram fell on the spot. The witnesses came forward to save him. Jasveer caused an injury with a lathi on the head and hand of Roshni Devi. Mother-in-law Ginni Devi was also caused injuries by Jasveer, Radheyshyam, Devilal and Shakuntala. The witness stated that they had a dispute over the field. In cross-examination, the witness admitted that father of Devilal and his father-in-law are real brothers. The witness stated that first blow was caused by Devilal with iron rod on the head of her father-in-law. The witness further stated that Devilal also gave indiscriminate blows with iron rod on the head of Palaram. However, the witness denied the suggestion that they had committed a trespass in the land which fell to the share of Devilal. The witness stated that Devilal is not having his house in the field. 19. Ginni Devi (P.W. 10) in court also stated that Devilal gave a Saria blow on the head of Palaram due to which fracture was caused. She also admitted that the dispute was over the land (field). 20. The witness stated that Devilal is not having his house in the field. 19. Ginni Devi (P.W. 10) in court also stated that Devilal gave a Saria blow on the head of Palaram due to which fracture was caused. She also admitted that the dispute was over the land (field). 20. To similar effect is the statement made by Sajna Devi (P.W. 11). 21. Now we shall notice the evidence regarding possession. 22. The first material document for us to find possession of the parties is site plan (Ex. P. 24) prepared by the investigating officer. In the site plan (Ex. P. 24) it is stated that the occurrence had taken place in the field which belong to Palaram and Devilal. 23. What is material for us to note is that near the point "X" near joint fields of Palaram and Devilal, there is a Kachha house of Devilal. Prosecution examined Ramswaroop (P.W. 12) Patwari of the area as a witness. Ramswaroop (P.W. 12) in court stated that Palaram was having 5/6th share and Devaram and Satpal were having 1/6th share in the field. However, in cross-examination the witness admitted that Devaram and Satpal were having 1/3rd share and all share holders were in possession of their field. It will be apposite here to reproduce following portion of cross-examination of Ramswaroop (P.W. 12):- ^^;g dguk lgh gS fd iznZ'k ih&28 esa nsojke o lriky dk fgLlk 1@3 ntZ gSA eS bl tehu ds ekSds ij x;k FkkA eS ekSds ij Qjojh 2010 es Hkh tkdj vk;k FkkA eS o"kZ 2007] 2008] 2009 ds Qjojh eghus esa Hkh ekSds ij x;k Fkk ;g ckr lgh gS fd tehu ds fxjoh i=koyh esa is'k ugh dh xbZ gS D;ksafd ;g iqfyl us ugh ekaxs FksA blfy, isa'k ugh dh FkhA bl tehu ds lHkh fgLlsnkj ekSds ij dkfct dk'r gSA^^ 24. Cross-examination of Bhagirath Singh (P.W. 13) regarding possession assume importance. Investigating Officer Bhagirath Singh (P.W. 13) in court has stated that the occurrence had taken place in the field where Shakuntala was residing. The witness stated, 'kdqUryk vius [ksr esa gh jgrh gSA ;s [ksr ogh gS tgka ij >xM+k gqvk FkkA Shakuntala is none else but wife of principal accused Devilal @ Devaram. 25. Investigating Officer Bhagirath Singh (P.W. 13) in court has stated that the occurrence had taken place in the field where Shakuntala was residing. The witness stated, 'kdqUryk vius [ksr esa gh jgrh gSA ;s [ksr ogh gS tgka ij >xM+k gqvk FkkA Shakuntala is none else but wife of principal accused Devilal @ Devaram. 25. Another investigating officer Vijendra Singh (P.W. 15) in court deposed that both Palaram and Devilal were having a joint khatedari and occurrence had taken place near the house of Devilal and Palaram was not having any house near the place of occurrence. We shall reproduce the relevant portion of cross-examination as under:- ^^;g lgh gS fd nsohyky dh >ksiM+h tgak ij fLFkr gS og [ksr e`rd ikykjke vkSj nsohyky ds nksuks ds la;qDr [kkrsnkjh dk gSA ;g lgh gS fd ?kVukLFky nsohyky ds >ksiM+h ds ikl dk gh gSA ;g lgh gS fd blh [ksr esa ikykjke dh dksbZ >ksiMh oxsjg ugh gSA^^ 26. Devilal has stepped into Witness Box as D.W. 1. He stated in court that they are having ancestral land which was having three shares, one share belong to his family, another to his grandmother and third to his uncle (Chacha) i.e. deceased Palaram. The witness further stated that after death of grandmother, her share was divided equally between his uncle and nephews. The witness has relied upon memorandum of family settlement (Ex. D. 3). The witness further stated that he had instituted a suit and obtained stay and the stay was continuing on the day of occurrence. 27. Shri Hemant Gupta learned counsel for the appellants has read order (Ex. D. 8) passed by the revenue court on 12.4.2007 whereby the complainant party was restrained not to interfere in the possession of the accused. 28. From the above evidence following facts stand conclusively proved: (a). That the occurrence had taken in the field which was having joint khatedari of the appellant Devilal and deceased Palaram. (b). That in the field where the occurrence had taken place there was a Kachha house of Devilal and his wife Shakuntala. (c). There was a dispute pending between the parties over the field. (d). Devilal @ Devaram principal accused had filed a suit and in the said suit on 12.4.2007 an order was passed restraining the complainant party not to interfere in the possession of the accused. 29. (c). There was a dispute pending between the parties over the field. (d). Devilal @ Devaram principal accused had filed a suit and in the said suit on 12.4.2007 an order was passed restraining the complainant party not to interfere in the possession of the accused. 29. However, from the above facts it is not discernible whether on the date of occurrence order of injunction was in operation or not. Nowhere has come in evidence whether the order of ad interim injunction was continuing or was vacated. It has come in evidence that the complainant party had gone to the disputed field to harvest the crop. At the best we can assume that both the parties were asserting their possession over the disputed field. 30. Shri Hemant Gupta learned counsel for the appellants has relied upon Section 441 of Indian Penal Code which defines criminal trespass. The counsel stated that Section itself states that "whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass". 31. It is further urged that as per Para-4 of Section 105 IPC, the right of private defence of property against criminal trespass or mischief continues as long as the offender continues to commit offence of criminal trespass or mischief. 32. Even if we accept the argument raised by Shri Gupta we cannot extend complete right of self defence to the accused-appellants as Section 103, Clause fourthly of Indian Penal Code specifically states that right of self defence of property extends to cause death if the complainant party commit offence of house trespass. 33. In the present case, we have already stated that the field was in joint khatedari, both the parties were claiming their possession over the land. Witnesses by way of their oral deposition have stated that the field was in their joint possession. Cross-examination of two investigating officers ASI Bhagirath Singh (P.W. 13) and Vijendra Singh (P.W. 15) is to the effect that Kachha house of Devilal @ Devaram and Shakuntala was in the filed where the occurrence had taken place. Stay order (Ex. Witnesses by way of their oral deposition have stated that the field was in their joint possession. Cross-examination of two investigating officers ASI Bhagirath Singh (P.W. 13) and Vijendra Singh (P.W. 15) is to the effect that Kachha house of Devilal @ Devaram and Shakuntala was in the filed where the occurrence had taken place. Stay order (Ex. D. 8) relied by the defence that the complainant party was restrained not to interfere in the possession of the accused nowhere specify that the same was operating on the date of occurrence. 34. In the above circumstances, where the parties assert their possession over the field which is in their joint possession it cannot be said that the common intention of the accused was to cause murder. We cannot become oblivious of the fact that as per testimony of witnesses, Devilal @ Devaram had caused only one iron rod blow on the head of Palaram. Injury statement (Ex. P. 12) also corroborate ocular version. We have already noticed the injuries in the injury report (Ex. P. 12) and have held that injury No. 1 is not an independent injury. 35. Therefore, it can be safely inferred that when the complainant party came to harvest the pearl millet crop, accused who were having house in same field objected to the same and then Devilal @ Devaram had caused a single blow on the head of Palaram. Thus, to us, the offence will not fall under Section 302 IPC, but under Section 304 Pt. I IPC. Since both the parties were asserting possession over the field, we are of the view that Section 34 IPC is not attracted and therefore, the accused-appellants Jasveer Singh, Radheyshyam and Smt. Shakuntala Devi will be responsible for their own individual act as it will be case of individual liability qua them. 36. As a result of above discussion we convert conviction of the appellant Devilal @ Devaram from offence under Sections 302 IPC to Section 304 Pt. I IPC and he is sentenced to undergo ten years rigorous imprisonment. He is further held liable to pay a fine of Rs. 10,000/- and in default thereof to undergo one year rigorous imprisonment. Fine, if paid, shall be disbursed to the legal heirs of the deceased. However, we maintain the conviction and sentence of Devilal @ Devaram for offences under Sections 341 and 323 IPC. He is further held liable to pay a fine of Rs. 10,000/- and in default thereof to undergo one year rigorous imprisonment. Fine, if paid, shall be disbursed to the legal heirs of the deceased. However, we maintain the conviction and sentence of Devilal @ Devaram for offences under Sections 341 and 323 IPC. Since we have held that Section 34 IPC is not attracted, we acquit Devilal @ Devaram for offence under Section 325/34 IPC. Sentence awarded to the appellant Devilal @ Devaram under Section 304 Pt. I IPC shall run concurrently with the sentence awarded to him by the trial court for offences under Sections 341 and 323 IPC. 37. So far as other accused-appellants Jasveer Singh, Radheyshyam and Smt. Shakuntala are concerned, we maintain their conviction and sentence for offences under Section 341, 323 and 325 IPC. However, we acquit them for offence under Section 302/34 IPC. 38. Having upheld the conviction and sentence of the appellants Jasveer Singh, Radheyshyam and Smt. Shakuntala, we are of the view that no useful purpose would be served by sending them behind the bars after seven years of the occurrence. Hence, we release them on probation for a period of one year. 39. Consequently, we order that instead of undergoing sentence for offences under Sections 341, 323 and 325 IPC, the accused-appellants, Jasveer Singh, Radheyshyam and Smt. Shakuntala shall be released on probation for a period of one year. The appellants shall furnish personal bond each and bonds by the sureties to the satisfaction of the trial court undertaking that during the period of probation they shall be of good conduct and be of peace. We also empower the trial court to specify any or all other conditions which it may deem fit, to facilitate these accused appellants to undergo probation for a period of one year. 40. With the above modification in conviction and sentence, both the appeals stand disposed of.