JUDGMENT : Pankaj Bhandari, J. 1. Appellants – Ram Khiladi, Kanhaiya and Satya Narain have preferred D.B. Criminal Appeal No.60/2019 and appellants – Pappu and Shriphool have preferred D.B. Criminal Appeal No.65/2019, aggrieved by the judgment of conviction and order of sentence dated 08.02.2019 passed by the Additional Sessions Judge, Gangapur City, in Sessions Case No.41/2013 (in FIR No.96/2013 registered at Police Station Bamanwas, District Sawai Madhopur) whereby the appellants have been convicted and sentenced as hereunder:- Ram Khiladi:- Under Section 147 IPC – Simple imprisonment for two years; Under Section 148 IPC – Simple imprisonment for three years; Under Sections 323/149 IPC – Simple imprisonment for one year with a fine of Rs.1000/-and in default of payment of fine, to further undergo simple imprisonment of three months; Under Section 447 IPC – Simple imprisonment for three months; Under Section 302 IPC – Imprisonment for life with fine of Rs.25,000/-and in default of payment of fine, to further undergo simple imprisonment for three years. All the sentences were directed to run concurrently. Kanhaiya, Satya Narain, Pappu and Shriphool: Under Section 147 IPC – Simple imprisonment for two years; Under Section 148 IPC – Simple imprisonment for three years; Under Section 323/149 IPC – Simple imprisonment for one year with fine of Rs.1000/-each and in default of payment of fine, to further undergo simple imprisonment of three months; Under Section 447 IPC – Simple imprisonment for three months; Under Section 302/149 IPC – Imprisonment for life with fine of Rs.25,000/-each and in default of payment of fine, to further undergo simple imprisonment for three years. All the sentences were directed to run concurrently. 2. Succinctly stated the facts of the case are that complainant -Premraj (PW-1) submitted a report (Exhibit-P1) on 18.03.2013 at Police Station Bamanwas, District Sawai Madhopur, mentioning therein that on 17.03.2013 at 6:00 PM, he along with his father – Ram Kishan and brother -Muniraj, were at their Bada (compound). At that time, Ram Khiladi, Harikesh, Muniraj, Satya Narain, Pappu, Shriphool, Kanhaiya came at Bada and told that this Bada belonged to them. All of them were carrying lathis, axes and pharsas in their hands. The complainant mentioned that they started abusing and gave beating by lathis with intention to kill him. At that time, Ram Khiladi, Harikesh, Muniraj, Satya Narain, Pappu, Shriphool, Kanhaiya came at Bada and told that this Bada belonged to them. All of them were carrying lathis, axes and pharsas in their hands. The complainant mentioned that they started abusing and gave beating by lathis with intention to kill him. His brother and father came to save him and at the time of intervening, his brother received severe injuries on his left ear and his father also received 2-3 injuries on his head. At the time of the alleged incident, Lakhmi Chand, Ram Kishore from the neighbourhood and ladies of their family were present there to intervene and in this process, Dholi also received injury on her elbow. Rajendra, Ram Kishore and Hari Prasad took the injured persons to the hospital at Bamanwas, District Sawai Madhopur. It is also mentioned that the complainant’s father suffered serious injuries and was referred to Jaipur and he expired on the way. On the basis of the above-mentioned report (Exhibit-P1), an FIR bearing No.96/2013 (Exhibit-P2) was registered at Police Station, Bamanwas, District Sawai Madhopur for offences under Sections 147, 148, 149, 341, 323, 307, 302 of IPC. 3. The police, after due investigation, submitted the charge-sheet only against the present accused appellants. Learned Trial Court framed charges against the appellants under Sections 147, 148, 447, 323, 323/149, 302, 302/149 of IPC. The accused appellants denied the charges and pleaded not guilty. On behalf of the prosecution, as many as 21 witnesses were examined and 48 documents were exhibited. In explanation under Section 313 Cr.P.C., the accused appellants pleaded their false implication as also innocence. In defence, 5 documents were exhibited, however, no witness was examined. 4. It is contended by Mr. V.R. Bajwa, learned Senior Advocate, assisted by Mr. Amar Kumar and Ms. Savita Nathawat that in the report, which was submitted immediately after the incident, no overt act was assigned to any of the accused. It is also contended that in the statements recorded under Section 161 Cr.P.C., it was the case of the prosecution that the accused side wanted to dispossess them from Bada and wanted to put sarso sticks in Bada belonging to the complainant side. It is also contended that in the statements recorded under Section 161 Cr.P.C., it was the case of the prosecution that the accused side wanted to dispossess them from Bada and wanted to put sarso sticks in Bada belonging to the complainant side. It is also the case of all the witnesses before the police during investigation that last year also, the accused side had put their sarso sticks in the Bada and this year also, they had placed the sarso sticks in the Bada and when father of the complainant i.e. deceased in this case, tried to remove the same from the Bada, the dispute took place. 5. It is argued that the witnesses took a topsy-turvy turn in the statements recorded before the Court and have stated that when the complainant side was placing the sarso sticks in the Bada, which was objected to by the accused side and on which, the dispute started and the accused side gave beating to the complainant side. It is further contended that a false case has been registered against the accused appellants. As per the FIR, all the accused persons were armed with axes and pharsas, however, none of the injured has received any sharp injury, which goes to show that the complainant side had exaggerated and falsely implicated the accused appellants. 6. It is argued that Suresh Kumar Dabariya (PW-17), Investigating Officer, has admitted in his cross-examination that the accused were in possession of the disputed Bada. It was revealed during the investigation that sarso sticks of the accused side was lying in the Bada and when the deceased tried to remove the same from the Bada, the dispute arose. This witness has also admitted that except the dispute over Bada, there was no prior enmity between the accused and the complainant side. It is contended by the learned Senior Advocate appearing for the accused appellants that the learned Trial Court has erred in convicting the accused appellants for the offence under Section 447 of IPC, since as per the statement of Suresh Kumar Dabariya (PW-17), the accused appellants were in possession of the Bada, therefore, the conviction for the offence of criminal trespass is erroneous. Reliance in this regard is placed on the judgment delivered by the Apex Court in The State of Karnataka Versus Shivappa Gurusiddappa & Ors.: AIR 1998 SC 1536 . Reliance in this regard is placed on the judgment delivered by the Apex Court in The State of Karnataka Versus Shivappa Gurusiddappa & Ors.: AIR 1998 SC 1536 . Our attention is also drawn towards the definition of “criminal trespass”. 7. It is next contended by the learned Senior Counsel appearing for the accused appellants that the accused were in possession of the Bada and when the deceased tried to dispossess them, the dispute took place. The accused, who were in possession of the Bada, had a right to private defence of the property and at most, accused – Ram Khiladi, who had inflicted the head injury to the deceased, can be said to have exceeded his right of private defence and his case would, therefore, not fall within the definition of “murder”, but would fall within the definition of “culpable homicide” not amounting to murder. 8. It is next contended by Mr. V.R. Bajwa, Senior Advocate that the conviction with the aid of Section 149 IPC is not sustainable for the very reason that all the injured persons have received simple injuries. The accused side was not armed with dangerous weapons, all rustic villagers carry lathis and in the scuffle, which took place, only lathi blows have been sustained by the injured. There was no unlawful assembly and no premeditation, hence, the conviction with the aid of Section 149 IPC of all the accused appellants is bad in law. 9. It is argued that when there is absence of common intention, the appellants are individually liable for their acts, since fatal injury was caused by only one of the appellants i.e. Ram Khiladi. Reliance in this regard is placed on Lakshmi Chand & Anr. Versus State of Uttar Pradesh: JT 2018 (8) SC 229. 10. It is further contended that the case of the other co-accused except Ram Khiladi would not travel beyond Section 323 IPC, as only simple injuries have been assigned to them. With regard to Ram Khiladi, it is contended by learned Senior Advocate that when the deceased tried to intervene, he accidently received the blow. At the most, it may be considered to be a case of exceeding the right of private defence and as such, accused -Ram Khiladi can at most be held liable to the extent of Section 304 Part-II of IPC. At the most, it may be considered to be a case of exceeding the right of private defence and as such, accused -Ram Khiladi can at most be held liable to the extent of Section 304 Part-II of IPC. It is also contended that the accused – Ram Khiladi has already remained in custody for a period of 10 years. Prayer made before the Court is that the conviction of accused -Ram Khiladi be converted from Section 302 of IPC to Section 304 Part-II of IPC. 11. It is further contended that since the appellants were exercising their right of private defence and accused Ram Khiladi alone exceeded his right of private defence, he alone can be held guilty for offence under Section 304 Part-II of IPC. Reliance in this regard is placed on Tarsem Singh & Ors. Versus State of Punjab: JT 2002 (1) SC 415, Ram Avtar & Ors. Versus State of UP: JT 2016 (11) SC 342, Khuman Singh Versus State of Madhya Pradesh: JT 2019 (8) SC 421, Mangesh Versus State of Maharashtra: JT 2011 (1) SC 15 and Gopal & Ors. Versus State of U.P.: JT 2001 (4) SC 439. 12. Learned Additional Government Advocate in support of the judgment has contended that the deceased received a blow on the head and expired enroute the hospital. The head injury has been assigned to Ram Khiladi. It is argued that the accused had knowledge that their act would result in death and thus, the judgment of conviction and order of sentence does not call for any interference. 13. We have considered the contentions raised by the counsel for the parties and have carefully perused the material on record. 14. Premraj (PW-1), who is the complainant of this case, has stated before the Court that the dispute took place at the Bada. At the time when the dispute was going on, the deceased tried to intervene to save his son, on which he received the blow. He has also admitted in his cross-examination that the deceased received injury when he tried to save his son. This witness has also admitted that the accused and the complainant side have the same lineage. He has also admitted that none of the injured have received any injuries by axe or pharsa and all have received injuries by lathi blows. He has also admitted in his cross-examination that the deceased received injury when he tried to save his son. This witness has also admitted that the accused and the complainant side have the same lineage. He has also admitted that none of the injured have received any injuries by axe or pharsa and all have received injuries by lathi blows. Statement of Premraj under Section 161 Cr.P.C. (Exhibit-D1) was put to Premraj in the Court wherein he denied having given this statement to the police that the Bada was in possession of the accused side and that they had put the sarso sticks in the Bada and that the dispute took place when the deceased tried to remove the sarso sticks from the Bada. 15. Dholi (PW-2), wife of the complainant – Premraj has given statement, which is akin to that of Premraj (PW-1). FIR (ExhibitP2) was put to her wherein, she had mentioned that in the disputed Bada, sarso sticks of the accused appellants were lying. She has also stated that when her father-in-law tried to intervene, he received lathi blow on his head, which was hit by Ram Khiladi. Muniraj (PW-3) has deposed before the Court that the accused appellants were trying to forcibly take possession of the Bada, on which the dispute started. This witness has also denied giving statement to the police that the Bada was in possession of the accused. This witness has also stated that he became unconscious and that he regained his consciousness after 4-5 days. Apparently, this witness has exaggerated his statement, as from perusal of his injury report (Exhibit-P40), it is evident that he received lacerated wound and had swelling and contusion and he complained of pain and dizziness, which means that he was not unconscious and as per the X-Ray report also, the injuries, which he sustained, were all simple in nature. 16. Lalit (PW-4), grand son of the deceased, has also stated that Ram Khiladi gave a blow on the head of the deceased and Pappu gave a blow on the shoulder. He has admitted in his cross-examination that the deceased received injuries by a fall, however, later, he has stated that injuries were not caused on account of fall. This witness has also denied giving the statement before the police that the accused were in possession of the Bada and they had put their sarso sticks there. 17. He has admitted in his cross-examination that the deceased received injuries by a fall, however, later, he has stated that injuries were not caused on account of fall. This witness has also denied giving the statement before the police that the accused were in possession of the Bada and they had put their sarso sticks there. 17. Uganti (PW-5) has also stated that when his father-in-law – Ram Kishan went to save his son, he received a blow on his head and that this blow was caused by Ram Khiladi. This witness has also denied stating before the police in Exhibit-D5 that the Bada was in possession of the accused appellants and that they had put their sarso sticks in the Bada and that when the deceased tried to remove the sarso sticks, the dispute started. 18. Suresh Kumar Dabariya (PW-17), Investigating Officer, has clearly stated that the complainant had informed the police that the accused party had put their sarso sticks in the Bada. He has also stated that when the deceased tried to remove the sarso sticks from the Bada, the dispute started. He has further stated that there was no prior enmity between the accused and the complainant side. 19. On full scrutiny of the evidence, it is apparent that the dispute took place on the spur of the moment. The accused side were not armed with sharp edged weapons and being rustic villagers, they were having lathis. It is also evident that as per the statement of the Investigating Officer and the initial statements recorded under Section 161 Cr.P.C. of the complainant side, the accused side were in possession of the Bada, they had kept their sarso sticks in the Bada and when the deceased tried to remove the sarso sticks, the dispute started at the spur of the moment. There was no premeditation of minds and it is thus, not a case of unlawful assembly. Thus, the trial Court has clearly erred in convicting the accused for the offence under Section 147, 148 & 149 of IPC. The trial Court has also convicted the accused appellants under Section 447 of IPC merely on the basis of the evidence of Mukesh, Patwari (PW-15), who has stated that as per the record, Khasra No.868 belonged to Ram Kishan son of Shri Amba Lal. The trial Court has also convicted the accused appellants under Section 447 of IPC merely on the basis of the evidence of Mukesh, Patwari (PW-15), who has stated that as per the record, Khasra No.868 belonged to Ram Kishan son of Shri Amba Lal. For offence to fall within the purview of Section 447 of IPC, ownership is not material and it is only the possession, which is material. As per the evidence adduced by the Investigating Officer and as per the statements, which were recorded by him, the Bada was in possession of the accused appellants. Thus, the conviction under Section 447 of IPC cannot be sustained. 20. As far as accused Ram Khiladi is concerned, the allegation against him is of causing head injury to the deceased by a lathi. Admittedly, as per the statement of the prosecution witnesses, Ram Khiladi had given only a single blow to the deceased and the dispute took place on the spur of the moment, thus there was no premeditation. Thus, his case would not fall within the ambit of Section 302 of IPC, but would fall within the definition of culpable homicide not amounting to murder. 21. The Apex Court in Tarsem Singh & Ors. Versus State of Punjab (supra), which was a case wherein, the dispute took place on the spur of the moment when the land was being auctioned. The Court convicted the accused for offence under Section 304 Part-II of IPC and not under Section 302 IPC. 22. In Ram Avtar & Ors. Versus State of U.P. (supra), the act was done at the spur of the moment, without premeditation. The appellants and deceased were descendants of common ancestor. The Apex Court affirmed the judgment of the High Court which had modified the conviction from Section 302 to Section 304 Part-I of IPC. 23. In Khuman Singh Versus State of Madhya Pradesh (supra), the dispute pertained to grazing of buffalos. The case was one of sudden fight. There was no premeditation and even when a pharsa was used as a weapon, the Apex Court converted the case from Section 302 to Section 304 Part-II of IPC and modified the conviction. 24. From perusal of the entire evidence on record, it is established that the dispute took place on the spur of the moment and there was no premeditation. 24. From perusal of the entire evidence on record, it is established that the dispute took place on the spur of the moment and there was no premeditation. If the case of the Investigating Officer is to be believed, the accused side were in possession of the Bada and they had put their sarso sticks in the Bada and it was the deceased, who was trying to dispossess them, on which, the dispute started. Accused appellant – Ram Khiladi inflicted only a single blow on the head of the deceased with a lathi. It can be said that it was in knowledge of Ram Khiladi that his act was likely to cause death, but the same would not fall within the ambit of Section 302 of IPC. 25. In light of the judgments referred to by the learned Senior Advocate, the conviction of accused appellant -Ram Khiladi under Section 302 of IPC cannot be sustained and the same needs to be altered to Section 304 Part-II of IPC. As far as conviction of accused -Ram Khiladi under Section 323 of IPC is concerned, there is evidence to the effect that accused -Ram Khiladi also caused simple injuries to other injured persons, hence, accused Ram Khiladi’s conviction under Section 323 of IPC deserves to be maintained. 26. Consequently, the conviction of appellant -Ram Khiladi for offence under Sections 147, 148 & 323/149, 447 & 302 of IPC is set aside and instead, accused appellant-Ram Khiladi is convicted for offence under Sections 323 & 304 Part-II of IPC. For offence under Section 323 of IPC, he is sentenced to 1 year simple imprisonment and a fine of Rs.1,000/-and in default of payment of fine, to further undergo simple imprisonment of 3 months. For offence under Section 304 Part-II of IPC, he is sentenced to simple imprisonment of 10 years and a fine of Rs.25,000/-and in default of payment of fine, to further undergo simple imprisonment of 6 months. The sentence will run concurrently. 27. For offence under Section 304 Part-II of IPC, he is sentenced to simple imprisonment of 10 years and a fine of Rs.25,000/-and in default of payment of fine, to further undergo simple imprisonment of 6 months. The sentence will run concurrently. 27. As far as other accused appellants – Kanhaiya, Satya Narain, Pappu and Shriphool are concerned, their conviction for offence under Section 147, 148, 323/149, 447 and 302/149 of IPC is set aside and instead, all the accused are convicted only for offence under Section 323 of IPC and are sentenced to simple imprisonment of 1 year with a fine of Rs.1,000/-each and in default of payment of fine, to further undergo simple imprisonment of 3 months. 28. Consequently, D.B. Criminal Appeal Nos.60/2019 & 65/2019 are partly allowed and the judgment of conviction and order of sentence dated 08.02.2019 passed by the Trial Court stands modified to the above extent. 29. Accused-Appellants are directed to furnish personal bond in the sum of Rs.50,000/-each and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail bond will be effective for a period of six months. 30. Record of the case be sent to the Trial Court forthwith.