JUDGMENT
Lakshman Uraon, J.
1. The appellant No. 1, Mahendra Prasad Yadav, has been convicted under Section 302, I.P.C. and sentenced to undergo imprisonment for life whereas the appellant No. 2, Rajendra Prasad Yadav alias Raja Prasad Yadav, has been convicted under Section 307, I.P.C. and sentenced to undergo R.I. for seven years. The appellant No. 3, Ramdeo Prasad Yadav alias Rami Prasad, has been convicted under Sections 325 and 323, I.P.C. and sentenced to undergo R.I. for two years and six months respectively. The other two appellants Nos. 4 and 5, Jharkhandi Mahto and Birju Mahto, have been convicted under Section 323, I.P.C. and sentenced to undergo imprisonment for six months each in S.T. No. 19/1987 passed by Shri Vinod Kumar Sinha, learned 5th Additional Sessions Judge, Giridih.
2. The appellants have preferred this appeal against the judgment and order of conviction and sentence passed against them with a prayer to allow it and acquit them all from those charges after setting aside the judgment and order of conviction and sentence passed against them,
3. The prosecution case as disclosed by the informant, Jagdish Sao, PW-4, father of the deceased, Bidyalal Sao, in his fardbeyan, Ext. 5, recorded on 24-7-86 at 14 Hrs. by the S.I.B. Lal, at Government Hospital, Gawan is that on 24-7-86 at 7 a.m. he along with his sons, Bidyalal Sao (since dead), Arjun Sao, PW-3. brother, Bhola Sao, PW-2, and nephew, Binod Sao, were ploughing their field situated at village Ghanghri Kura appertaining to Khata No. 1, Plot No. 454, area 1 acre 90 decimals. They had ploughed for about half an hour. Thereafter, all these appellants Mahendra Pd. Yadav, Raja Pd. Yadav, Rami Pd., Jharkhandi Mahto, Birju Mahto and mother of the appellant Mahendra Pd. Yadav, armed with Farsa, Tangi, Lathi and stones went, there. Appellant, Mahendra Prasad Yadav, had Farsa, Raja Pd. Yadav had axe and the other three appellants had Lathis in their hands whereas mother of Mahendra Pd. Yadav, Parvati Devi, who has been acquitted, had stones on her hand. Appellant, Mahendra Pd. Yadav, gave a Lalkar to kill at the ploughmen and he himself gave Farsa blow on the head of Bidyalal Sao. On being injured when Bidyalal Sao fell down, even then Mahendra Pd. Yadav assaulted him repeatedly with Farsa on his head. When the other ploughmen including the informant went to save Bidyalal Sao, appellant, Raja Prasad, assaulted Arjun Sao, PW-3, with axe on his head. Appellant, Kami Pd. assaulted the informant, Jagdish Sao, PW-4, with Lathi and also on the head of Bhola Sao PW-2, causing bleeding injuries on his head and hand. Appellant, Birju Mahto, assaulted on the head of Vinod Sao PW-1, causing bleeding injury. Parvati Devi, mother of the appellant Mahendra Pd. Yadav, hurled stones causing injury to Binod Sao PW-1, Bhola Sao PW-2 and the informant PW-4, on their left arm, legs and left hand fingers respectively. When the ploughmen fell down on being injured, the nearby villagers who were ploughing their respective lands rushed there hearing alarm. All the injured were taken by the villagers to village Sankh. The village independent witnesses Mahesh Sao and others had seen the alleged occurrence. On the basis of the fardbeyan, Ext. 5, on which the informant, Jagdish Sao, has signed, Ext. 1, formal FIR, Ext. 6, was drawn. The learned 2nd Additional Sessions Judge, Giridih framed charge under Section 307, I.P.C. against the appellant, Rajendra Prasad Yadav alias Raja Pd. Yadav, under Section 147, I.P.C., against the appellants, Ramdeo Pd. Yadav alias Rami Pd., Jharkhandi Mahto, Birju Mahto and Parvati Devi. Charges under Section 148, I.P.C. was framed against the appellants Mahendra Pd. Yadav and Rajendra Prasad Yadav alias Raja Pd. Yadav. Charge under Section 323, I.P.C. was framed against the appellants Ramdeo Pd. Yadav alias Rami Pd., Jharkhandi Mahto and Birju Mahto. Charge under Section 324, I.P.C. was framed against appellant, Rajendra Prasad Yadav alias Raja Prasad Yadav. Charge under Section 325, I.P.C. was framed against the appellant, Ramdeo Pd. Yadav alias Rami Prasad. Charge under Section 337, I.P.C. was framed against Pravatl Devi (since acquitted). Charge under Section 302, I.P.C. was framed against the appellant, Mahendra Pd. Yadav, whereas, the remaining appellants and Parvati Devi were charged under Sections 302/149 and 307/149, I.P.C.
4. The prosecution has produced injured witnesses, PW-1 Binod Sao, PW-2 Bhola Sao, PW-3 Arjun Sao and PW-4 Jagdish Sao the informant. The injured were examined by PW-6, Dr. Sri Niwas Rai and PW-7, Dr. Sheo Narain Prasad conducted autopsy on the dead body of Bidyalal Sao, son of the in-formant, who was also ploughing the field. PW-8 Dhani Pandit, is an independent witness who has been declared hostile by the prosecution. PW-9 Sita Ram Sao, is the witness who signed on the inquest-report. PW-10 Risheshwar Dayal is the I.O. of this case and the other witnesses, PW-11 Arbind Chaudhary, PW- 12 Yogeshwar Choubey and PW-13 Shirlal Rai have proved rent receipts Ext. 1 series and PW-14 Kedar Rai a formal witness, has proved Hukumnama Ext. 9. The prosecution witnesses who are injured and eye-witnesses have claimed that they were unarmed while ploughing the field and had not seen any injury on the person of Parvati Devi and appellant Mahendra Pd. Yadav. They have also denied to have made any assault on the person of Mahendra Pd. Yadav and his mother Parvati Devi. The defence has examined DW-1 Asgar All who has proved the formal FIR of Tisri P. S. Case No. 29/1986, Ext. A. DW-2 Churaman Ram, DW-3 Sukhdeo Pd. Sawarnkar, DW-4 Sa-heb Rai and DW-6 Prayag Yadav have proved rent receipts Ext. B series. DW-5 Bhola Tiwary has proved injury-report of appellant, Rajendra Prasad Yadav alias Raja Prasad Yadav Ext. D and injury-report of Parvati Devi Ext. D/1. DW-7 Imtiaz Ansari has proved the order passed under Section 144, Cr. P. C. in criminal revision Ext. E.
5. The defence has taken a plea that the prosecution parry were ploughing their lands and when they went to oust them an altercation and Marpit took place in between the parties. Some members of the appellants’ party also sustained injuries whereas the prosecution party also sustained injuries and in that sudden assault in between both the parties Bidyalal Sao succumbed to his injuries at the disputed land.
6. The learned 5th Additional Sessions Judge, Giridih considered the oral and documentary evidence produced by the parties and relied upon the evidence of the injured witnesses, PWs-1, 2, 3 and 4 supported by the medical evidence of PW-6 and PW-7 and also the objective findings of the I.O. PW-10 Risheshwar Dayal. He came to the conclusion that the appellants exceeded their rights of private defence causing injuries to five persons who were ploughing the disputed field resulting the death of Bidyalal Sao due to Farsa blows five times on his head by appellant Mahendra Prasad Yadav. He also considered the injuries caused by axe on the person of PW-3 Arjun Sao by the appellant No. 2 Rajendra Prasad Yadav alias Raja Prasad Yadav, He also considered the injury-report of the other injuries caused by hard and blunt substance on the person of the injured found by the doctor PW-6 supported by the evidence of the injured witnesses against the appellants Ramdeo Pd. Yadav alias Rami Prasad, Jharkhandi Mahto and Birju Mahto and convicted all the appellants for the charges under Sections 302, 307 and 325/323, I.P.C. and sentenced them thereunder respectively whereas the appellants were acquitted for the other charges levelled against them. Parvati Devi mother of the appellant No. 1 Mahendra Prasad Yadav, was acquitted considering the evidence adduced against her.
7. Assailing the judgment and order of conviction and sentence passed by the learned 5th Additional Sessions Judge Giridih, the learned counsel for the appellants has submitted that an independent witness Mahesh Sao named in the fardbeyan has not been examined in this case. The other independent eye-witnesses PW-8 Dhani Pandit has also not supported the prosecution case and is a hostile witness. He has deposed that Baleshwar Mehta PW-5 went to the P.O. after his arrival who claims to be the eye-witness. PW-5 had also not seen the alleged assault rather he saw only the injured Bidyalal Sao fallen down. Similar is the evidence of hostile witness PW-8 Dhani Pandit. It was morning time i.e. 8 a.m. The other villagers were also available in the field ploughing their fields nearby. But they have not been examined by the prosecution to corroborate the allegation levelled against these appellants. It was submitted that the injured witnesses denied to have assaulted Mahendra Pd. Yadav and his mother Parvati Devi. But the doctor who examined them, found injuries on their persons and issued Injury-slips, Exts. D and D/1 which have been proved by DW-5 a formal witness Bhola Tiwari health worker of the hospital. The prosecution witnesses have admitted that a counter case was instituted against them which was pending in the Magisterial Court at Giridih. The informant PW-4 Jagdish Sao in Para 6 has deposed that his fardbeyan was recorded at Gawan P. S. by the officer-in-charge on which, he put his signature, Ext. 1. In course of trial he has deposed that it was recorded by the S.I.B. Lal of Gawan P. S. on 24-7-86 at 14 Hrs. in Government Hospital, Gawan. Thus, he has made contradictory statements regarding recording of his fardbeyan at P. S. Gawan purposely to suppress the true statement made earlier before the police. The subsequent fardbeyan Ext. 5 recorded at Government Hospital Gawan is substituted one after concoction and embellishment in the prosecution case. The place of occurrence is village Ghanghri Kura within Tisri P. S. Giridih whereas the informant and other injured witnesses including the deceased are residents of the village Sankh within Gawan P. S. of District Giridih. Gawan Hospital is three miles away from village Sankh whereas, the P. O. is at a distance of one mile from village Sankh. The prosecution injured witnesses first went to village Sankh and then they moved to Gawan hospital and some went to Gawan P. S. where the fardbeyan of the informant was recorded. PW-6, Dr. Sri Niwas Rai, of Government Hospital, Gawan examined the injured in between 2 p.m. to 3 p.m. whereas, the alleged occurrence took place at 7 a.m. Thus, after seven hours gap there was enough opportunity for the prosecution to concoct and embellish the prosecution story. This is the reason why the prosecution party has concealed the fact that there was free fight in between the parties. Although the prosecution has admitted that counter case is, pending against them in Magisterial Court at Giridih, the prosecution has not explained the injuries sustained by the appellant Mahendra Pd. Yadav and his mother Parvati Devi; rather they have denied to have assaulted them and also denied to have seen any injury on their persons. The learned trial Court found that there was duel fight in between the parties due to claim of the P. O land. The learned 5th Additional Sessions Judge, Giridih opined that the appellants exceeded their right of private defence of life and property and even then he has convicted the appellant No. 1. Mahendra Prasad Yadav, under Section 302, I.P.C. which actually attracts Section 304, Part II of the I.P.C. and has relied upon the cases reported in AIR 1995 SC 583 (Sulthmandar Singh v. State of Punjab). 2000 Cri LJ 3475 (2000 AIRSCW 2412) (Thomas George alias Thomas v. State of Kerala), AIR 1994 SC 523 (Devraj v. State of Himachal Pradesh).
8. The learned APP in course of his argument has very frankly admitted that both the parties are claiming the lands recorded under Khata No. 1, Plot No. 454 area 1.90 decimals situated at village Ghanghri Kura within Tisri P. S. the village of the appellants. He has also admitted that there is a counter case pending against the prosecution party which was admitted by the injured witnesses who have denied to have assaulted the appellant No. 1, Mahendra Prasad Yadav and his mother, Parvati Devi. The time of the alleged occurrence, place of the alleged occurrence and presence of the prosecution party and the appellants at the P.O. are not in dispute. The learned APP has submitted that the injured witnesses of the prosecution party were unarmed and were simply ploughing the field. It was submitted that Arjun Sao sustained grievous injury and Bidyalal Sao due to Farsa blows on his head, died. It was further submitted that the appellant Mahendra Prasad Yadav and his mother Parvati Devi sustained simple injuries caused by hard and blunt substance, may be Lathi. Thus, the appellants are aggressors and have exceeded their right of private defence resulting the death of Bidyalal Sao. The learned Court below has considered all these evidence, circumstances and probabilities of the prosecution case and has rightly convicted these appellants and sentenced them thereunder.
9. The admitted fact is that both the parties had gone to the P. O. field and there was a duel fight sustaining injuries by PWs-1, 2, 3 and 4. The death of Bidyalal Sao due to injuries caused by Farsa on his head is an admitted fact. Although the prosecution has suppressed the injuries sustained by the appellant, Mahendra Prasad Yadav, and his mother, Parvati Devi but DW-5, Bhola Tiwari, who examined them, when they were referred by the police, found injuries on their persons and issued injury-reports, Exts-D and D/1 respectively. Thus, the prosecution has not explained the injuries sustained by Mahendra Prasad Yadav and his mother, Parvati Devi. The prosecution party was ploughing the land since 7 a.m. The P.O. field lies within Ghanghri Kura village, the village of the appellants. The appellants went there and objected to plough the field. The informant, PW-4, Jagdish Sao, claimed that the land belongs to him as his ancestors had got settlement through Hukmnama, Ext. 9. Since then they are in possession and are paying rents and are being granted rent receipts, Ext. B series. The appellants have also claimed the lands which they got settlement through Hukmnama, Ext. C and have also proved rent receipts, Ext. B series towards payment of rent. The disputed plot No. 454 finds mention in both the Hukm-namas i.e., Exts. B and C. Both the parties had gone to the disputed field without any pre-plan to cause murder or assault any one. Their intention was only to claim the land. When the appellants objected to plough the field, the informant resisted on the ground that he has got settlement of the land. This resulted into free fight resulting injuries to all the ploughmen of prosecution party. Out of them the injured, Bidyalal Sao, son of the informant, succumbed to his injuries whereas, simple injuries were caused to the appellant, Mahendra Prasad Yadav, and his mother, Parvati Devi. The independent witnesses have not supported the prosecution case. PW-5, Baleshwar Mehta and PW-8, Dhani Pandit, went to the disputed field on hearing alarm and saw Bidyalal Sao fallen down having sustained bleeding injuries on his head. PW-5 has also deposed that Bidyalal Sao was taken to village Sankh and from there he was taken to hospital. The alleged occurrence took place due to land dispute as both the parties are claiming the land. PW-8, Dhani Pandit, another independent witness of the village Ghanghari Kora, had also seen Bidyalal Rao fallen down due to bleeding injuries on his head. He had also seen injuries on the person of PWs-1, 2, 3 and 4. He saw the appellants fleeing away from the P.O. place. He is the witness in respect of seized bloodstained soil by the I.O. at the P.O. in which he signed, Ext. 1 /1. Raman Mahto has also signed on it, Ext. 1/2. PW-6, Dr. Sri Niwas Rai, examined the injured informant Jagdish Sao PW-4 on 24-7-86 at 2.45 p.m. and found the following injuries on his person:– (i) Swelling 2″ round the left wrist Joint and fracture of lower end of radius; (ii) Lacerated wound 1″ x 1/8″ skin deep on the middle of the left little fingers. Both the injuries were caused by hard and blunt substance may be Lathi. He found injury No. 1 grievous in nature and injury No. 2 simple in nature caused within six hours and issued injury-report, Ext. 2. On the same day at 2.30 p.m. he examined PW-2, Bhola Sao, and found (i) Lacerated wound 2″ x 1/4″ x skin deep on the middle of head; (ii) Lacerated wound 2″ x 1/4″ x skin deep on the left side of head; (iii) swelling 2″ x 2″ on the middle of the right arm. He found all the injuries caused by hard and blunt substance may be Lathi within six hours and Ext. 2/1 is the injury report. On the same day at 3 p.m. he examined PW-1, Binod Sao and found; (i) Lacerated wound 1″ x 1/4″ x scalp deep on the left side of head; (ii) Swelling 1″ x 1″ on the left shoulder Joint. He found both the injuries simple in nature caused by hard and blunt substance may be Lathi within six hours, Ext. 2/2 is the injury-report issued by him. On the same day at 2 p.m. he examined Arjun Sao PW-3 and found (i) incised wound 1 1/4″ x 1/8″ x scalp deep on the middle of the head with fresh blood oozing from it (ii) Incised wound 2″ x 1/8″ x scalp deep on the back of head with oozing of blood (iii) Incised wound 1/2″ x 1/8″ x scalp deep 1″ above the injury No. 2 (iv) Swelling 3″ x 1″ on back of abdomen (v) Abrasion 3″ x 1″ on back of nock. He found all the injuries simple in nature. The injury Nos. 1, 2 and 3 were caused by sharp-edged weapon, may be Tangi and the other two injuries Nos. 4 and 5 were caused by some hard and blunt substance may be Lathi. Ext. 2/3 is the injury-report issued by him.
10. The injured, Bidyalal Sao, was taken on cot to his village Sankh and from there the witnesses were going to P. S. but in the mean time he died on his way to hospital. Ext. 4, carbon copy of the inquest-report, shows that the dead body was found at Government Hospital, Gawan and the inquest-report dated 24-7-86 was prepared at 13.30 Hrs. whereas, the alleged occurrence took place at 7 a.m. The hospital and the P.S. are at a distance of three miles from the place of occurrence as deposed by the witnesses but formal FIR, Ext. 6, in Column-2 shows that village Ghanghari Kura, the place of occurrence is 15 miles away towards South West. PW-7, Dr. Sheo Narain Pd., conducted autopsy on the dead body of Bidyalal Sao on 25-7-86 at Sadar Hospital, Giridih and found the following antemortem injuries on his person:– (i) One incised injury on head on left side 3″ x 1/2″ x deep up to scalp bone (ii) One incised injury on back side 2 1/2″ x 1/2″ x deep up to scalp bone (iii) One incised injury on head in the middle part 31/2″ x 1/2″ deep up to scale bone (iv) One incised in-Jury on head in the middle part 3″ x 1/2″ x deep up to scale bone (v) One incised injury on head 1/2″ x 1/4″ x 1/4″. On dissection scalp bone was found fractured at three places Brain matter was smashed. There was collection of dark blood in the brain moity. The stomach contained about 500 grams of half digested food materials. The injuries were caused by sharp-edged weapon which may be Farsa. The death was due to shock and haemorrhage as a result of the above injuries about 21 hours from the time of postmortem examination. Ext. 3 is the postmortem report in the pen and signature of this witness. The doctor, PW-7, has deposed that after 3-4 hours from the time of taking food it is found half digested. The deceased might have been taken some food about 3-4 hours before his death.
11. As I have viewed on the admissions of both the parties that there is no dispute regarding P.O. time of occurrence, presence of the parties and the injuries sustained by PWs-1, 2, 3 and 4 and also the death of Bidyalal Sao. Both the parties had filed documents i.e. Hukmnamas and rent receipts to claim the lands. Their Hukmnamas and the rent receipts find mention Plot No. 454 appertaining to Khata No. 1 of village Ghanghri Kura. The prosecution party claimed that they got settlement of 1.90 acres of that plot through Hukmnama, Ext. 9, whereas, the appellants also claimed to have got settlement through Hukmnama, Ext. C which is also in respect of the same Plot No. 454 measuring an area of 96 decimals. The rent receipts, Ext. B series and B series show that both the parties are paying rents and are getting rent receipts. Ext. A is the certified copy of FIR of Sadar P.S. Case No. 27/24-7-86 whereas, Ext. 6 is the formal FIR in respect of Giridih Sadar P.S. Case No. 26/24-7-86 showing the P.O. field situated at village Ghanghari Kura. The prosecution parties were ploughing the field at 7 a.m. on 24-7-86. The appellants went there and objected. The injured witnesses were ploughing the field who were asked to stop ploughing by the appellant, Mahendra Pd. Yadav. When the prosecution parties refused to continue ploughing, then appellant Mahendra Pd. Yadav gave a Lalkar to kill all the ploughmen. He assaulted five times with Farsa on the head of Bidyalal Sao who fell down and on his way to hospital died. All the injuries were found on the head which get corroborated by the evidence of injured eye-witnesses, PWs-1, 2, 3 and 4 and in conformity with the evidence of Dr. Sheo Narain Prasad PW-7, who conducted autopsy on the dead body of Bidyalal Sao and issued postmortem examination report, Ext. 3. There is no contradiction regarding the manner of the alleged assault on all the injured eye-witnesses, PWs-1, 2, 3 and 4. PW-1 Binod Sao, PW-2 Bhola Sao, PW-3 Arjun Sao and PW–4 Jagdish Sao arc closely related to each other as son, brother and nephew of the informant. They have deposed that the appellant, Mahendra Pd. Yadav, armed with Farsa, the appellant, Rajendra Prasad Yadav alias Raja Prasad Yadav armed with Tangi, the appellants, Ramdeo Pd. Yadav alias Rami Prasad, Jharkhandi Mahto and Birju Mahto each armed with Lathi, went there. They have deposed that the appellant, Mahendra Pd. Yadav, assaulted with Farsa on the head of Bidyalal Sao five times. PW-1 has deposed that even after fall of Bidyalal Sao, the appellant, Mahendra Pd. Yadav, assaulted him with Farsa on his head. Arjun Sao was assaulted with Tangi by the appellant, Rajendra Pd. Yadav, on his head. The appellants, Jharkhandi Mahto and Birju Mahto assaulted Arjun Sao with Lath. The appellant, Jharkhandi Mahto, assaulted on the head of Bhola Sao and the appellant Ramdeo Pd. Yadav alias Rami Prasad assaulted with Lathi on the left hand of the informant, Jagdish Sao, causing injuries on their persons. The doctor PW-6 Sri Niwas Rai examined their injuries and issued in jury-reports. The oeular evidence of the injured witnesses regarding the injuries sustained by them gets corroborated by the medical evidence of PW-6 Dr. Sri Niwas Rai. When considered the oral and documentary evidence, 1 find that the injuries due to assault by the appellants, found on the injured witnesses. PWs-1, 2, 3 and 4, and ante-mortem injuries found on the dead body of Bidyalal Sao by Dr. Sheo Narain Prasad, PW-7, have well been proved. If has also been proved that the appellant, Mahendra Pd. Yadav and his mother, Parvati Devi were also assaulted with Lathi by these prosecution injured witnesses causing simple injuries on their persons, Exts, D and D/1. Thus, the prosecution has proved the manner of alleged occurrence also against these appellants. But the prosecution has not explained the injuries sustained by the appellant. Mahendra Pd. Yadav and his mother, Parvati Devi although they have admitted that a counter case is pending against them which is Ext. A, certified copy of the FIR of Tisri P. S. Case No. 27/86.
12. The learned counsel for the appellants has argued that these appellants had not pre-planned to assault the prosecution party with an intention to injure them grievously or to cause their murder. Their object was only to oust PWs-l, 2, 3 and 4 and the deceased, Bidyalal Sao, from the field which they were ploughing only on the ground that the lands belongs to them. The documents, Hukmnamas, Exts, 9 and C and the rent receipts, Ext. 1 series and Ext. B series clearly show that there is claim and counter-claim of the disputed land. They are paying rent and getting rent receipts. The learned counsel for the appellants has relied upon the authorities referred to above by him and has submitted that there was free fight all of a sudden in between them. The learned Court below found that the appellants exceeded their right of private defence. In view of this fact, it was submitted that the appellant No. 1 can at best be convicted under Section 304, I.P.C., Part II and appellant No. 2 under Section 324, I.P.C. and the others under Section 323, I.P.C.
13. In the case of Sukhmandar Singh v. State of Punjab, reported in AIR 1995 SC 583. it was held that “On finding that his parents were being beaten, the accused gave one gandasa blow to the deceased which resulted in a fracture of his skull and ultimately his death. Thus the accused exceeded the right of self-defence. The nature of injuries inflicted on him or his parents could not justify his inflicting such an injury which could result in the death of the deceased. The accused, however, eannot be held guilty for murder. While causing the injury to the deceased, the accused could be clothed with the knowledge that the injury that he was causing to the deceased was likely to cause his death or such bodily injury as was likely to cause his death. The offence of the accused would, therefore, be one under Section 304, Part II, I.P.C. and not Section 302, I.P.C. The sentence of 5 years R.I. imposed.” Similarly in Thomas George alias Thomas v. State of Kerala, reported in 2000 Cri LJ 3475 : (2000 AIR SCW 2412) it was held that “In the circumstances plea of self-defence was proved. However, accused having exceeded his right of self-defence, his conviction under Section 302 was converted to one under Section 304, Part-II, Penal Code.” Similar view has been taken in Suresh Singh v. State of Haryana, reported in 1999 Cri LJ 2585 : (AIR 1999 SC 1773) in which it has been held that “Accused assaulting deceased while being chased by him. injuries found on body of deceased however, more grievous than those found on body of accused. Held, accused exceeded their right of private defence-conviction of accused altered from Section 300 to Section 304, Part I. In AIR 1994 SC 523 (Dev Raj v. State of Himachal Pradesh) it was held that in a sudden quarrel accused persons exceeding their right of private defence in causing death of two persons. Entitled to benefit of Exception 2 of Section 300. Liable to be convicted under Section 304, Part I and not under Section 302, I.P.C.”
14. The facts of the present case as considered by me in the above paras is undoubtedly regarding the claim of Plot No. 454 of Khata No. 1 situated at village Ghanghra Kura. The prosecution party was ploughing their lands since 7 a.m. on 24-7-86. The appellants went there only to oust them. When prosecution party did not stop ploughing, then the alleged assault took place. In that assault, Mahendra Prasad Yadav gave Farsa blows five times on the head of Bidyalal Sao who succumbed to his injuries. The appellant Rajendra Pd. Yadav, who had Tangi in his hand, assaulted PW-3, Arjun Pd. Sao causing injury on his person simple in nature. The other appellants who had Lathi assaulted to PW-4, the informant, Jagdish Sao, PW-2, Bhola Sao, and PW-1, Binod Sao causing injuries simple in nature. Their intention was not to cause murder of any of the prosecution party. The appellant Mahendra Pd. Yadav and his mother Parvati Devi also sustained injuries, of course simple in nature in comparison with the injuries sustained by the injured, PWs-1, 2, 3 and 4 and the deceased Bidyalal Sao. The appellants sustained injuries at the same time and place of occurrence as admitted by the injured prosecution witnesses that a counter case is pending against them. In that very fight the appellants exceeded their right of private defence of life and property. The right of private defence of life and property need not require to be proved beyond all reasonable doubts. If two views are possible regarding claiming of land and assaulting each other, the appellants should be given the benefit of doubt. The plea taken by the defence that in duel fight the appellant, Mahendra Pd. Yadav, and his mother Parvati Devi, sustained injuries cannot be doubted. But when considered the manner of the alleged assault, I find that the learned Court below has rightly come to the conclusion that the appellants had exceeded their right of self-defence. Admittedly the occurrence has taken place in a sudden manner. Even according to the prosecution, the injured witnesses, PWs-1, 2, 3 and 4, had not gone with any arm to the paddy field. A quarrel ensued there and the assault took place. In such a situation, the right of private defence of property and life has to be accepted but having regards to the injuries inflicted on the deceased, Bidyalal Sao, by the appellant, Mahendra Pd. Yadav and injuries inflicted by Rajendra Pd. Yadav alias Raja Prasad Yadav with axe to PW-3 Arjun Sao and also the injuries caused to PW-1 Binod Sao, PW-2 Bhola Sao and PW-4 the informant Jagdish Sao by the appellants Ramdeo Pd. Yadav alias Rami Prasad, Jharkhandi Mahto and Birju Mahto, have definitely exceeded their right of private defence. Hence, they are entitled to get benefit of right of private defence.
15. When considered all the pros and cons of the prosecution case and the plea of self-defence of life and property taken by the appellants and also the oral and documentary evidence produced by them, I find that the conviction of the appellant No. 1, Mahendra Prasad Yadav, under Section 302, I.P.C. sentencing him to undergo imprisonment for life cannot be sustained and, accordingly; it is set aside and instead thereof he is convicted under Section 304, Part II, I.P.C. and sentenced for the period already undergone. The conviction of the appellant, Rajendra Prasad Yadav alias Raja Prasad Yadav under Section 307, I.P.C. is set aside and is altered into conviction under Section 325, I.P.C.
16. In the result, the conviction under Section 302, I.P.C. in respect of appellant No. 1 Mahendra Prasad Yadav and sentence to undergo imprisonment for life is set aside and is altered into conviction under Section 304, Part II of the I.P.C. and sentence to undergo imprisonment for the period already undergone. The conviction of appellant No. 2 Rajendra Prasad Yadav alias Raja Prasad Yadav under Section 307, I.P.C. and sentence to undergo R. I. for 7 years is set aside and altered into conviction under Section 325, I.P.C. and sentence to undergo imprisonment for the period already undergone. The conviction of appellant No. 3 Ramdeo Pd. Yadav alias Rami Prasad under Section 323, I.P.C. is affirmed but the sentence is altered into the period already undergone. The other appellants Nos. 4 and 5 Jharkhandi Mahto and Birju Mahto respectively who had been convicted under Section 323, I.P.C. are also sentenced to undergo imprisonment for the period already undergone. With the above modifications in the conviction and sentence in respect of each of the appellants this criminal appeal is, accordingly, dismissed.
S.J. Mukhopadhaya, J.
17. I Agree.