JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. The present appeal is directed against the impugned judgment dated 29.6.1990, rendered by the court of Additional Sessions Judge No.2, Kota, whereby the accused appellants were convicted for the offences under Sections 302/34 and 323 IPC. Having convicted the accused appellants for the aforesaid offences, the trial Judge vide a separate order of even date sentenced the appellants as under:- 2. U/s. 302/34 IPC- to undergo life imprisonment and to pay a fine of Rs.100/- each, in default of payment of fine, to undergo additional one month SI. 3. U/s. 323 IPC- to pay a fine of Rs.100/- each, in default of payment of fine to further undergo additional one month SI. 4. The trial Judge further ordered that both the sentences awarded upon the appellants shall run concurrently and they shall be entitled to benefit of Section 428 Cr.P.C. However, Janki Lal was acquitted of Section 323 IPC. 5. Janki Lal and his three sons Jagdish, Dev Karan and Gauri Shanker were nominated as accused in case arising out of FIR No. 119/88, registered at Police Station Kota Rural, initially for the offences under Sections 307/34 IPC, but subsequently upon death of Ramchandra, offence under Section 302 IPC was added. 6. The case of the prosecution in nutshell is that on 18.11.1988 at 2:00 – 3:00 PM, in the fields of Ummedpura, accused who were four in number, caused injuries to deceased Ramchandra son of Bherulal, aged 65 years and thus, committed offence punishable under Section 302/34 IPC. It is further case of the prosecution that the accused armed with weapons caused simple injuries to Mahendra Kumar (P.W.1) son of deceased Ramchandra and thereby committed offence punishable under Section 323 IPC. 7. Before we take note of brief facts of the case, we may highlight the fact that the complainant and the accused party are having adjoining fields. It has also come in the evidence that since morning accused party was irrigating their field and out of six bighas of land, five bighas of land stood irrigated and only one bigha of land was left to be irrigated. It has also come in prosecution evidence that the field of the accused are after the fields of complainant and thus, if the flow of water is prevented in the field of complainant party, accused will be deprived of water. It has also come in prosecution evidence that the field of the accused are after the fields of complainant and thus, if the flow of water is prevented in the field of complainant party, accused will be deprived of water. In the context of above facts, it is now time to us to take note of the prosecution case. 8. Mahendra Kumar (P.W.1) made oral statement (Exhibit- P/1) before Girraj Singh (P.W.13), SHO, Police Station Budadeet, Kota Rural leading to registration of FIR. Girraj Singh (P.W.13) in the court deposed that on 18.11.1988 at 4:30 PM, Mahendra Kumar (P.W.1) along with younger brother OM Prakash Yadav (P.W.4) and injured father Ramchandra, who was unconscious arrived at the police station and statement (Exhibit-P/1) was recorded on the basis of which formal FIR bearing No.119/1988 was registered under Section 307/34 IPC. The statement (Exhibit- P/1) leading to registration of FIR when translated into English reads as under:- “At this time, Mahendra Kumar son of Ramchandra by caste Ahir, aged 20 years, resident of Banethiya along with his younger brother Om Prakash aged 15 years and father Ramchandra son of Bherulal by caste Ahir aged 65 years have arrived at the police station. Mahendra Kumar made an oral statement. Today at 2-3 PM, I and my father had gone to our field in Ummedpura for irrigating field. We were opening the outlet. My father was standing alongwith me. Meanwhile, Gauri Shanker son of Janki Lal Ahir, his brothers Jagdish and Dev Karan and their father Janki Lal, who were giving water in their nearby field, came. At that time, Jagdish was armed with Gandasi, Gauri Shanker was armed with Dhariya, Dev Karan was armed with Kutiya and their father was armed with stick. Immediately on arrival, Gauri Shanker with an intention to commit murder caused Gandasi blow on the head of my father. On receipt of injury, he fell down and blood started oozing. When I stepped forward to intervene to save my father, who was lying on the ground, Dev Karan, Jagdish and Gauri Shanker gave beating to me. Gauri Shanker gave a Gandasi/Dhariya blow on my left arm. Dev Karan gave Kutiya blow on my left elbow. Gauri Shanker caused a Dhariya blow on the back. When I stepped forward to intervene to save my father, who was lying on the ground, Dev Karan, Jagdish and Gauri Shanker gave beating to me. Gauri Shanker gave a Gandasi/Dhariya blow on my left arm. Dev Karan gave Kutiya blow on my left elbow. Gauri Shanker caused a Dhariya blow on the back. I raised noise then Bajrang Lal son of Ram Lal Mehar resident of Benethiya and Shankar Lal son of Kalyan Banethiya, who were working in the nearby fields came running. Then accused with their respective Dhariya, Gandasi and Kutiya ran towards the village. My brother Om Prakash was grazing cattle nearby. He also came at the spot. He went running to village and brought the tractor and in the same, we brought our father for making the report. Jagdish, Dev Karan and Gauri Shanker and their father Janki Lal with an intention to cause murder of my father has caused the occurrence. Necessary legal action be taken. Sd/- Mahendra Kumar.” 9. From the perusal of the above written report (Exhibit-P/1), following facts are discernible: (a) That the accused and the complainant party are having adjoining fields. (b) That Bajrang Lal (P.W.2) and Shanker (not examined) were working in the nearby fields. Om Prakash younger brother was grazing cattle in the nearby field. (c) That in the statement (Exhibit-P/1) leading to registration of FIR nothing has been said regarding the old grudge, inimical relations or enmity between the parties. (d) That from the statement (Exhibit-P/1) it is evident that the occurrence had taken place when the complainant party opened the outlet to irrigate their field. (e) What was the trigger point, as to why the occurrence erupted, what led to the occurrence, statement (Exhibit-P/1) leading to registration of FIR is blissfully silent. 10. Now, we shall come to the medical evidence. 11. Girraj Singh (P.W.13) in the court deposed that immediately from the police station, Ramchandra was taken to the hospital, where he was declared dead. He prepared the inquest proceedings (Exhibit-P/2). 12. Dr. Chandrabhan Singh Rajawat (P.W.11) on 19.11.1988 at 9:25 AM, conducted autopsy on the dead body of Ramchandra and in the Post Mortem Report (Exhibit-P/7) noted following five injuries:- 1. Incised wound, ½ x ¼ x bone deep, head 2” above and lateral (right side) to occipital protubarance, oblique. 2. He prepared the inquest proceedings (Exhibit-P/2). 12. Dr. Chandrabhan Singh Rajawat (P.W.11) on 19.11.1988 at 9:25 AM, conducted autopsy on the dead body of Ramchandra and in the Post Mortem Report (Exhibit-P/7) noted following five injuries:- 1. Incised wound, ½ x ¼ x bone deep, head 2” above and lateral (right side) to occipital protubarance, oblique. 2. Laceration 1½ x ½ brain deep, oblique 8” above to right eyebrow and 6” above to right ear. 3. Abrasion over forehead above right eyebrow, oblique 3 x ½. 4. Abrasion forehead lateral to 3rd injury 2 x ½. 5. Swelling over whole eyebrow both side. 13. Upon opening of the skull, Dr. Chandrabhan Singh Rajawat (P.W.11) noted two injuries as mentioned earlier over the skull, communited fracture of frontal and temporal bone. Dr. Chandrabhan Singh Rajawat (P.W.11) finally opined that the death had occurred due to head injury. In cross-examination, doctor (P.W.11) stated that injuries nos. 3 to 5 are possible due to fall. We shall reproduce the exact words stated by Dr. Chandrabhan Singh Rajawat (P.W.11), as under:- ^^bZŒ,DlŒihŒ 7 dh pksVs 3] 4] 5 fxjus ls vkuk laHko gSA eSa iw.kZ:i ls ;g ugha crk ldrk fd e`R;q pksV uaŒ 1 ;k 2 esa ls fdlls e`R;q gqbZA** 14. We have seen the injuries. Injury Nos. 3 and 4 are abrasions on the right eye. Injury no.5 is only swelling of eyebrow. There is no scratch, abrasion, bruise or contusion found at the place of swelling. Swelling is not an independent injury. It can be result of injury nos. 3 and 4, most probably due to injury caused on the head. However, we may notice that injuries nos. 1 and 2 have been caused by two separate weapons. Injury No.1 is an incised injury and injury no.2 is lacerated injury. 15. Mahendra Kumar (P.W.1) was also examined by Dr. Chandrabhan Singh Rajawat (P.W.11) and vide injury report (Exhibit-P/8) had noted following two injuries on the person of Mahendra Kumar (P.W.1):- 1. Swelling, 2 x 1, over right scapular bone, simple, blunt. 2. Abrasion with clotted blood, 2 x ¼, lateral surface of left arm, simple, blunt. 16. 15. Mahendra Kumar (P.W.1) was also examined by Dr. Chandrabhan Singh Rajawat (P.W.11) and vide injury report (Exhibit-P/8) had noted following two injuries on the person of Mahendra Kumar (P.W.1):- 1. Swelling, 2 x 1, over right scapular bone, simple, blunt. 2. Abrasion with clotted blood, 2 x ¼, lateral surface of left arm, simple, blunt. 16. The prosecution in order to secure conviction of the appellants, in all examined thirteen witnesses, namely Mahendra Kumar (P.W.1), Bajrang Lal (P.W.2), Heera Lal (P.W.3), Om Prakash Yadav (P.W.4), Kishan Gopal (P.W.5), Gauri Shanker (P.W.6), Sugna (P.W.7), Chhitar Lal (P.W.8), Shivji Ram (P.W.9), Badri Lal (P.W.10), Dr. Chandrabhan Singh Rajawat (P.W.11), Jagannath (P.W.12) and Girraj Singh (P.W.13). Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C. and all incriminating evidence was put to them. They denied the same and pleaded false implication. 17. In defence accused examined Rameshwar (D.W.1) and Ramchandra (D.W.2). 18. Rameshwar (D.W.1) stated that in his presence no occurrence had taken place. This witness further stated that accused Janki Lal and Ramchandra deceased were having cordial relations. 19. Ramchandra son of Devlal (D.W.2) has also stated that he had seen on the day of occurrence at 1:30 PM Janki Lal accused and deceased Ramchandra going towards their fields having very cordial conversation. 20. Thus, the defence has also emphasized that there was no enmity between the parties and therefore the natural inference is that the accused cannot be falsely implicated. 21. Mahendra Kumar (P.W.1), Bajrang Lal (P.W.2) and Om Prakash (P.W.4) have reiterated the version as stated in the FIR. Mahendra Kumar (P.W.1) in the cross-examination admitted that water was already going to the fields of Gauri Shanker and Janki Lal. To be precise, we shall reproduce the exact words from the cross-examination of Mahendra Kumar (P.W.1), as under:- ^^xkSjh'kadj o tkudh yky ds [ksr esa ikuh igys ls gh tk jgk FkkA ge rks ukds dks [kksnus x, FksA ukds ls eryc lheasV ds ikbi ls gSA lhesaV dk ikbi can FkkA mls [kksyus x, FksA** 22. Bajrang Lal (P.W.2) in his cross-examination elaborated root cause of the occurrence by giving details of irrigation of the fields. Bajrang Lal (P.W.2) in his cross-examination elaborated root cause of the occurrence by giving details of irrigation of the fields. This witness stated as under:- ^^;g lgh gS fd rhu cts djhc xkSjh'kadj txnh'k nsodj.k rhuksa muds [ksr esa ikuh ns jgs FksA ;s lqcg ls gh ml [ksr esa ikuh ns jgs FksA budk og [ksr ftlesa ikuh tk jgk Fkk djhc 6 ch?kk gSA vkSj djhc 5 ch?kk esa ikuh yx pqdk Fkk FkksM+k lk gh [ksr jg x;k FkkA** 23. It has also come in evidence of Bajrang Lal (P.W.2) that Janki Lal himself stated that half water should be taken by the complainant and he himself will open the outlet. We shall reproduce the following words from the vernacular testimony of Bajrang Lal (P.W.2), as under:- ^^tkudhyky us dgk Fkk fd vk/kk ikuh rw Hkh ys ysA eS /kksjk [kqn gh [kksy jgk gWwA nksuks lkFk&lkFk rackdw [kkrs vkSj ckrs djrs vk jgs FksA** 24. Om Prakash (P.W.4) another son of deceased Ramchandra, in the court has admitted that the accused were irrigating the land and their field is before the field of accused and near to the canal. The exact words stated by the witness are as under:- ^^;g lgh gS fd ml fnu ikuh /khjs ls xkSjh'kadj ds [ksr esa tk jgk FkkA xkSjh'kadj ds [ksr ls igys gekjk [ksr ugj ds lgkjs iM+rk gSA igys ikuh gekjs [ksr esa vkrk gSA** 25. Thus, from the above facts, it is apparent that the accused since morning from 10:00 AM till 3:00 PM, were irrigating their fields. Out of six bighas of land, five bighas of land stood already irrigated and one bigha of land remained to be irrigated. It has also come in evidence that at that stage, as stated in the statement, complainant party had opened the outlet to irrigate their field. Their fields come before the field of accused and hence, opening of outlet by the complainant caused loss of water to the accused as flow of water to their fields either was diminished or was stopped. Therefore, the act of the complainant party amounted to mischief. Section 425 of the IPC defines mischief and the said Section 425 reads as under:- 425. Therefore, the act of the complainant party amounted to mischief. Section 425 of the IPC defines mischief and the said Section 425 reads as under:- 425. Mischief.- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. 26. Sub-clause (iv) of Section 103 IPC specifically states that if mischief caused give rise to apprehension of the grievous hurt or death, then the accused will be entitled to complete right of self defence of property. 27. In the present case, the complainant party was unarmed. There is no injury on the accused. Therefore, the complainant party had only committed mischief by stopping flow of water to the field of accused. Therefore, the accused could cause injuries to the complainant party but were not entitled to cause death. 28. Section 97 of IPC defines right of private defence of property. Section 97 reads as under:- 97. Right of private defence of the body and of property.- Every person has a right, subject to the restrictions contained in section 99, to defend- First.- His own body, and the body of any other person, against any offence affecting the human body; Secondly.- The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Clause Secondly vests a right of private defence of property against mischief. 29. Thus, to us it is apparent that when the complainant party stopped the flow of water to the field of accused, they resorted to mischief within the definition of Section 425 IPC and right of self defense of property vests in the accused under clause 2 of Section 97 IPC. However, since there was no apprehension of grievous hurt or death, accused were not entitled to cause death of Ramchandra deceased and hence, they have exceeded the right of their self defence. 30. Having held that the accused have exceeded the right of self defence, we have to examine whether all the four accused participated in the occurrence. 31. However, since there was no apprehension of grievous hurt or death, accused were not entitled to cause death of Ramchandra deceased and hence, they have exceeded the right of their self defence. 30. Having held that the accused have exceeded the right of self defence, we have to examine whether all the four accused participated in the occurrence. 31. Taking recourse of Post Mortem Report, we have already stated that there are two injuries on the head of Ramchandra deceased, one injury is caused by incised weapon and another by blunt weapon. Dr. Chandrabhan Singh Rajawat (P.W.11) has stated that injuries nos. 3 to 5 can be result of fall. We have already held that the injury no.5 is not an independent injury and in case, injury nos. 3 to 5 can be result of fall, then only two accused have participated in the occurrence. Only two persons have caused injuries to Ramchandra deceased. On the person of Mahendra Kumar (P.W.1) there are two injuries, both simple and blunt. These, injuries on the person of deceased and injured are attributed to Gauri Shanker, Dev Karan and Jagdish. Thus, we hold Jagdish, Gauri Shanker and Dev Karan exceeded the right of self defence of property and thus, their case will fall under Exception 3 of Section 300 IPC. Hence, the appellant Jagdish, Dev Karan and Gauri Shanker are liable to be convicted for the offence under Section 304 Part-I IPC and not under Section 302 IPC. 32. Consequently, the conviction of the appellants for the offence under Section 302/34 IPC is set aside alongwith sentence of life imprisonment awarded by the trial court and they are held guilty of offence under Section 304 Part-I IPC. 33. Having held that all the three accused are guilty of offence under Section 304 Part-I IPC, we have to determine the quantum of sentence, which is to be awarded upon the appellants. 34. Having held that the offence will fall under Section 304 Part I IPC, we cannot ignore that the occurrence in the present case had taken place twenty-nine years ago. A period of three decades has passed. It is settled legal proposition that appeal is continuation of the trial and right of speedy trial under Article 21 of the Constitution of India, as interpreted by courts of law, vest in the appellant as a mitigating circumstance. 35. A period of three decades has passed. It is settled legal proposition that appeal is continuation of the trial and right of speedy trial under Article 21 of the Constitution of India, as interpreted by courts of law, vest in the appellant as a mitigating circumstance. 35. The learned counsel for the appellants have contended that the statement of accused appellants Jagdish, Dev Karan and Gauri Shanker under Section 313 Cr.P.C., were recorded in the year 1989 and in their statement, their age have been recorded as 25, 20 and 18 years, respectively. Thus, it is submitted that the appellants were in their teens at the time of occurrence. According to the learned counsel for the appellants, the appellants are sole bread earners of their respective families and have large family to support. The learned counsel for the appellants has also canvassed before us that the appellants before registration of the present FIR and thereafter, have not been named as accused in any case. 36. Taking the above circumstances spelt out by the learned counsel for the appellants as mitigating circumstances, we are of the view that sentence of seven or ten years, in the facts and circumstances of each case, which we normally award for offence under Section 304 Part-I IPC, cannot be awarded in the present case, in view of mitigating circumstances. 37. Awarding of sentence by courts is very onerous duty. The court has to balance mitigating and aggravating circumstances. 38. Consequently, taking into account the fact that occurrence took place twenty-nine years ago, alongwith age and antecedents of the appellants, which are above board, we are of the view that the sentence of four years under Section 304 Part I IPC shall serve the ends of justice. Accordingly, we set aside the life imprisonment awarded by the trial Judge under Section 302/34 IPC. Hence, we sentence the appellants Jagdish, Dev Karan and Gauri Shankar to undergo four years RI under Section 304 Part I IPC and to pay a fine of Rs.20,000/- and in default thereof, to undergo one year additional RI. 39. We are also conscious that family members of the deceased Ramchandra, are also concerned about the outcome of the present case. 39. We are also conscious that family members of the deceased Ramchandra, are also concerned about the outcome of the present case. In these circumstances, we direct Secretary, Legal Services Authority to pay compensation to the family members of the deceased Ramchandra, under Section 357-A Cr.P.C. under the Victim Compensation Scheme, formulated by the State of Rajasthan. Compensation to be paid by Legal Service Authority shall be over and above sentence of fine imposed by us. 40. A copy of this judgment be sent to the Secretary, Rajasthan Legal Services Authority. 41. Sentence awarded upon the three appellants under Section 323 IPC shall run concurrently with the reduced sentence awarded by us under Section 304 Part-I IPC. 42. Copy of the judgment alongwith record be sent to the trial court forthwith. The trial Judge shall issue warrant of arrest and take accused appellants Jagdish, Dev Karan and Gauri Shankar into custody. The period undergone by the accused as under trial or after conviction shall be set off. 43. So far appellant Janki Lal is concerned, as per inquiry report submitted by CJM, Kota in pursuance of order dated 6.7.2017, Janki Lal has expired. Hence, the present appeal qua Janki Lal is dismissed as having abated.