IMPORTANT POINT
The High Court was not justified in second part of the incident convicting the appellant u/s 302 IPC and consequently the sentence of life imprisonment is also not justified. However, High Court s opinion was justified in the first part of incident that appellant s act comes under Exception II to Section 300 IPC punishable not u/s 302 IPC but u/s 304 Part I of IPC.

Headnote:Indian Penal Code, 1860-Sections 302 r/w 149, 307, Exception II to Section 300 and Section 304 Part I-Offences under-Section 100-Right of private offence-Properties disputes-Exceeding the right -Appellant s party owner of land-Deceased s party claiming right-Quarrel-Appellant causing death of Ashok exceeding his right of defence-Then alleged to have caused death of Sahdev Tiwari while he was fleeing-Evidence on first incident found clear and cogent but on 2nd incident neither clear nor cogent-Result-Appeal partly allowed-Conviction under Sections 30 r/w 149 set aside but conviction under Section 307 sentencing under Section 304 Part I upheld.
       Held (As regards 2nd incident) : Having carefully perused the evidence of these witnesses on whom the High Court relied for the purpose of passing a conviction under Section 302 on the appellant, we find that there is absolutely no material which could establish beyond doubt that the appellant could be held guilty for his individual act of having committed the murder of Sahdev, therefore, in our opinion, the High Court was not justified in convicting the appellant under Section 302 consequently the sentence of life imprisonment is also not justified. (Para 6)
       Held (As regards 1st incident on disputed field) : We will now take up the incident that took place in the disputed field. The High Court in regard to this incident, having come to the conclusion that the possession of the disputed field was with the appellant, held that the appellant had a right to private defence to the extent of protecting the property of which he was in possession but after examining the evidence available on record it came to the conclusion that so far as the appellant and Bhajan son of Latel are concerned, they have exceeded this right and are liable to be punished under Section 304, Part I, IPC, for having committed the murder of Ashok Tiwari. Here we are in unison with the finding of the High Court. From the evidence of the witnesses which have been discussed by the High Court in regard to this incident, it is clear that the appellant and Bhajan had attacked on Ashok Tiwari even after he had fallen down on the ground with tabbal . Dr. Chandel, PW-20, who gave evidence as a prosecution witness has stated that the death of Ashok Tiwari was the consequence of two head injuries which had also resulted in fracture of parietal and occipital bones and these injuries were sufficient in the ordinary course of nature to cause death and from the evidence of the prosecution, the High Court rightly came to the conclusion that these 2 injuries were caused by the appellant and Bhajan by exceeding their right of private defence. At the same time, the High Court in our opinion was justified in coming to the conclusion that the act of these two persons, namely, the appellant and Bhajan came under Exception II to Section 300 and amounted to culpable homicide not amounting to murder because the same was done in exercise of the right of private defence of their property and taking into consideration nature of attack it held that their act does not come under Section 302 IPC but only under Section 304, Part I, IPC. We agree with this conclusion both in regard to the act of the appellant and Bhajan as also the nature of offence as held by the High Court. It is to be noted that Bhajan though convicted under Section 304, Part I, IPC for 10 years RI has not preferred any appeal and the appellant has chosen to prefer this appeal from jail, and having considered the material on record and the evidence, we agree with the High Court in regard to its findings with reference to the death of Ashok Tiwari and find the appellant guilty of having been a party to the death of Ashok Tiwari. He is liable to be punished under Section 304, Part I, IPC, and we feel that the sentence of 10 years RI imposed on him is justified. (Para 7)
       Held finally : For the reasons stated above, while allowing this appeal in part, we hereby set aside the conviction and sentence imposed on the appellant i.e. RI for life under Section 302 for having caused the death of Sahdev Tiwari. We confirm the finding of the High Court and the conviction and sentence imposed on the appellant of 10 years RI under Section 304, Part I, IPC. Accordingly, the appeal is partly allowed to the extent indicated above. (Para 8)

JUDGMENT

Santosh Hegde, J.-The appellant herein was accused No.1 in Sessions Trial No.39/93 before the III Additional Sessions Judge of Sessions Court, Bilaspur (M.P.). He along with 11 other persons were charged under Sections 148, 302 and 307 read with Section 149 IPC for having committed the murder of Sahdev Tiwari and his son Ashok Tiwari and for having attempted to cause the death of Vijay Kumar Tiwari. The learned Sessions Judge convicted the appellant and 8 others under Sections 302 and 307 read with Section 149 IPC for the death of Ashok and Sahdev Tiwari and convicted them under Section 302 read with Section 149 IPC for causing the death of Sahdev Tiwari and sentenced them to undergo RI for life. He, however, did not convict the appellant for the offence under Section 307 while he did so in regard to some others. On appeal, the High Court of Madhya Pradesh at Jabalpur while confirming the sentence of the appellant herein under Section 302 IPC for the murder of Sahdev Tiwari and sentencing him to life imprisonment also convicted the appellant along with one Bhajan for the offence punishable under Section 307 IPC for having caused the death of Ashok and on this count sentenced them to undergo rigorous imprisonment for 10 years under Section 304, Part I, IPC. It is against this order of conviction and sentence, said Latel has preferred this appeal. We are informed at the Bar that the other convicted person on this count that is Bhajan has not preferred any appeal.

2. The facts necessary for disposal of this appeal briefly stated are that an agricultural land bearing Survey No.435/1 measuring about 1.71 acres was the subject-matter of dispute between the appellant herein and deceased Sahdev Tiwari. There were many litigations going on between the parties in regard to the said property. On 5.7.1987, it is the prosecution case that the deceased Sahdev Tiwari, his sons Ashok and Vijay Tiwari along with Jeetram, Manharan, Rajaram and some labourers had gone with a plough to this land for sowing. It is stated that no sooner than they commenced ploughing their land, the accused persons including the appellant appeared on the scene armed with deadly weapons and surrounded Sahdev and others and launched a blistering attack. It is further stated that the appellant along with the acquitted accused conjointly assaulted the complainant party in which the acquitted accused Chandrabhan and Bhajan who stands now convicted for offence under Section 304, Part I assaulted Vijay Kumar son of Sahdev who survived the attack and who is examined as PW-10 with Tabbal and Latel and Bhajan attacked Ashok with Tabbal as a result of which Ashok and Vijay both fell down on the ground and became unconscious. Vijay on regaining consciousness saw the appellant, Bhajan, Chandrabhan and Bundaru assaulting Ashok with tabbal and lathi. His pleading with the accused not to cause further injuries to Ashok proved to be of no avail. Seeing this, it is stated that Vijay and his father Sahdev started fleeing from the said field. It is the further case of the prosecution that that accused persons chased the duo (Vijay and his father) and one of the accused persons threw a tabbal at them which, according to the prosecution, hit the deceased Sahdev. This was also noticed by PW-2 Lalakram and other persons in the neighbouring fields, who pleaded with the accused persons not to beat Sahdev and Vijay any more. In the melee, it is stated that Vijay escaped from the said place and ran towards his house. Thereafter, he proceeded to the Police Station at Mungeli where the complaint Ex. P-27 was lodged with C.K. Tripathi, SHO, PW-21. As per the said complaint, Vijay is supposed to have told that he does not know whether his father is dead or alive. Accordingly, the Police registered a case being Crime No.138/87 under Sections 147, 148, 307 IPC and the investigating officer immediately rushed to the village and learnt from Kotwarin Ram Bai that Ashok and Sahdev had

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