JUDGMENT
Bhagwati Prasad, J.
1. The present appeal was filed by the seven accused persons. Out of these seven accused persons, accused appellant Daya Ram died and therefore his appeal abated. Six accused persons present before the Court who were convicted by the learned Sessions Judge, Pratapgarh as follows :-
Appellants No. 1 to 5.
Each convicted under Section 302 read with Section 149, I.P.C. and sentenced to imprisonment for life and a fine of Rs. 250/- or in default to undergo two months R.I.
Also convicted under Section 307 read with Section 149, I.P.C. and sentenced to three years R.I. and a fine of Rs. 200/-, in default to undergo one month’s R.I.
Also convicted under Section 325, read with Section 149, I.P.C. and sentenced to one year R.I. and a fine of Rs. 100/- or in default to undergo one month’s R.I.
Also convicted under Section 147, I.P.C. and sentenced to one year’s R.I. Appellant No. 7 Mathura was convicted under Section 302, I.P.C. and sentenced to imprisonment for life and a fine of Rs. 250/- in default to undergo two months’ R.I.
Also convicted under Section 307, I.P.C. and sentenced to three years’ R.I. and a fine of Rs. 200/- in default to undergo one month’s R.I.
Also convicted under Section 325, I.P.C. and sentenced to 1 year’s R.I. and a fine of Rs. 100/-or in default to undergo one month’s R.I.
Also convicted under Section 147, I.P.C. and sentenced to one year’s R.I.
2. Briefly stated the facts of the prosecution case are that there was a dispute between both the parties regarding a field which has been addressed as Panch Kundiya field. The bone of contention regarding this case was that accused Bhanwarlal PW 9 had sold this land to accused Dayaram and he was in possession but the complainants party claimed that transfer was sham. The land was never transferred and was cultivated by the complainant. First information report Ex.P/2 was lodged by P.W. 1 Uda Ram, who is an agriculturist working with the deceased Hiralal. Uda Ram has stated that three years before, Hiralal deceased won a case and obtained possession of the land. 5-6 days before, groundnut was cultivated in this field. On 5-7-1977, the accused came and they had re-cultivated that field. On which Hiralal and his wife Geeta went on the field and Hiralal enquired as to why his field has been cultivated. He was questioned by the accused whether the field belongs to his father? The accused exhorted that does the field belong to his father Hiralal asserted that’ yes’. On this, the accused who had stones and sticks, which are used in driving the bullocks, assailed Hiralal. According to this report, the dispute arose when the accused was returning to the village and the complainants were going to the field. The injured Hiralal succumbed to his injuries. On the basis of this, report was initially recorded by the Police Station, Nimbahera but was transferred to the Police Station, Kaneral because place of incident was within jurisdiction of Police Station, Kanera. Nine accused persons were named in this report.
3. After investigation, challan was presented and the trial was conducted. Charges were framed and the accused denied the charges. The prosecution led evidence. 25 witnesses were examined by the prosecution. Various documents were led in evidence. The trial Court believed the evidence of PW 1 Daya Ram and other eye witnesses and convicted the accused appellant. Against their conviction, the present appeal was filed by seven accused persons. One of them Daya Ram had died. The remaining six were convicted and sentenced as aforesaid.
4. Learned counsel for the appellant submitted that there is no dispute that Hiralal died in a conflict regarding the field but what remains is as a fact is that fight was picked up by Hiralal himself. There was a stay order granted” by the learned S.D.M., against accused persons, for not disturbing the possession of the accused persons. This fact of stay order has been proved by D.W. 1 Mohanlal Sharma, Revenue Clerk of the Court of S.D.M. The stay order has been brought on record as Ex.D/1. The stay order was passed in the presence of the parties and their counsel. Hiralal was defendant No. 1 in the suit. Thus, Hiralal had the notice that there is an injunction against him to not to go to the field in question and not to disturb the possession of the complainant party, namely accused appellant Daya Ram, now dead. Thus there was a lawful restraint against Hiralal and if under those circumstances, he picked up the fight with the accused, then it cannot be said that in hitting Hiralal, Daya Ram did anything wrong. Daya Ram is alleged to have used stones and an agriculturist in possession of the field is entitled to defend his possession, when the other party attempted to dispossess him notwithstanding legal position being in favour of the accused.
5. The weapon used by Daya Ram was stones only and jt cannot be said that he had done this by premeditation. It was simply an act by virtue of which he wanted to defend his possession from the deceased Hiralal who had come to the field, to dispossess him. He apprehended the danger to himself. At best, it can be said that in causing the injuries to the deceased, a little more force was used by the accused Daya Ram in using stones and severe injuries were caused. But in the cases of right of private defence, injuries are not weighed in golden scales. Learned counsel for the appellant further submitted that in any case, it it is held that appellant Daya RajB had exceeded his right of private defence, then also offence under Section 302, IPC cannot be held proved against him. In such facts and circumstances, it cannot be said that accused Daya Ram had intended to cause death and thereby fcould be convicted under Section 302, IPC. In any case, Daya Ram being dead after filing of the appeal, the appeal of Daya Ram has abated.
6. The other assailant of the deceased Hiralal was Mathura. He is alleged to have caused injuries to the deceased by “parani” a thin stick of Bamboo used in driving bullocks. Such a stick cannot cause such injuries which can be said to be sufficient to give knowledge to the accused that deceased would be dead by the ‘ juries, he is :ausing. It appears that major injuries to the deceased had been caused by stones. That part of prosecution story has not been seriously challenged by the defence as Daya Ram alleged to have caused stone injuries died and his appeal has abated. The argument of learned counsel for the defence with regard to accused Mathura is that weapon of offence assigned to him is such that he cannot be attributed knowledge that he had the intention of causing death of Hiralal. Under these circumstances, it cannot be said that offence punishable under Section 302, IPC is made out against the accused Mathura. The fight was started by the complainant’s side being aggressor. They had violated the injuction against them and tried to dispossess the accused.
7. The learned Public Prosecutor however asserted that the offence was committed on the way and not on the field. Under these circumstances, it cannot be said that the deceased wanted to dispossess the accused. In that case, offence would have been on the field.
8. There appears to be force in the argument of learned counsel for the appel lants that in the given circumstances, when the accused were aggressors and Daya Ram had the right to defend his possession, then a clear intention of the accused to cause death of Hiralal cannot be attributed. The occurrence has happened at the instance of the deceased. The way where the complainant say the fight took place is at an arms length from his field. When so many people are there the right cannot remain confined to a partial’ lr spot. Coming on the way, was only consequei al, fight started on the field. In this background, it cannot be said that Mathura had committed ah offence punishable under Section 302, IPC, therefore, his conviction under Section 302, IPC is not sustainable and the same is therefore altered from Section 302 to Section 304 Part II, IPC being covered by exception 2 to Section 300, IPC. This accused has remained foil more than five years in confinement and it is deemed fit that the substantive sentence undergone be awarded to him. This will serve {he ends of justice. Since, this accused has been convicted under Section 304, Part II, IPC and has been sentenced to the period already undergone, which was more than five years, the other sentences awarded to him under Sections 307 and 325, IPC and under Section 147, IPC are not altered because that does not affect his status as he has already undergone the sentence awarded under those Sections also.
9. This now brings us to the case of accused Ramlal, Shivlal, Sohanlal, Gorilal andBhanwarlal. These accused persons have been convicted with the aid of Section 149, IPC. The learned Sessions Judge has not found that any particular part was played by them. He has stated that these accused persons were present at the time of occurrence. Mere presence does not get anything on their head. The deceased and accused Uda Ram were fighting for the possession of the field and if these accused were merely present and no specific part has been assigned to them in causing death of Hiralal, their implication becomes a question of doubt. The learned Sessions Judge was not sure as to whether there was any particular injury caused by them and therefore they were not convicted for the offence simpliciter and were convicted with the aid of Section 149, IPC. When one party is aggressor and other party has right of private defence, then unless injuries on particular parts are assigned the aid of Section 149, IPC is not called for. Therefore, the conviction of these accused persons with the aid of Section 149 does not appear to be proper. In this background their convictions under Sections 302/149, 307, 149, 325, 149 dre set aside. As regards the offence under Section 147, IPC it may be stated that when the fight has been held to be one involving right of private defence in this particular facts of this case, this offence is also not made out against these accused.
10. In the result, the appeal of accused appellants Nos. 1 to 5 is allowed in its entirety. The appeal of accused-appellant No. 6 has not been decided because he is dead and hence held to be abated. The appeal of accused-appellant No. 7 is partly allowed. His conviction under Section 302, IPC is set aside and altered to Section 304, Part II, IPC. On this Section he is sentenced to substantive sentence already undergone. The conviction and sentence awarded to this accused on other Sections are not disturbed as the substantive sentence under this sentence has already been served out by the accused. The sentence of fine as ordered by the learned trial Court is maintained.