JUDGMENT

UNTWALIA, J.:— The four appellants in this appeal by special leave are Ram Prasad alias Dhaudhar. Harbans, Mahabir and Kalwa. All have been convicted under Section 302 read with Section 34 of the Penal Code and each has been sentenced to undergo imprisonment for life under this count. All of them have also been convicted under Section 323 read with Section 24 of the Penal Code and a concurrent sentence of one year s rigorous imprisonment has been awarded to each of them for the said conviction .In substance only two points were urged in support of this appeal by the appellant s counsel and they are as follows:

(1) That the appellants committed the assault on Ram Chandra-deceased and his brother Baljit, P.W.15 in exercise of their right of private defence of property.

(2) That the conviction of none of the appellants under Section 302 with the aid of Section 34 of the Penal Code is sustainable.

We shall proceed to state only such facts of the case as are necessary for the decision of the above points.

2. The appellants and the members of the prosecution party namely Ram Chandra, the deceased, son Karori, P.W. 1 and his brother Baljit, P.W. 15 are agnatic relations. There was bad blood and enmity inter se between them. On the 7th of October, 1966 at about 10.30 A. M, in the village where the parties reside, the appellants wanted to forcibly stack their bundles of Bajra in front of the enclosure (gher) of Ram Chandra where he had a hut. Ram Chandra asked the appellants not to do so stating that the land where they wanted to stack their bundles of Bajra belonged to them (him?) Appellants Ram Prasad and Mahabir were armed with lathis. They assaulted Ram Chandra with Lathis. Appellants Harbans and Kalwa assaulted him with kicks and fits. When P. W. 15 tried to intervene, he was also assaulted with lathis by the two appellants Ram Prasad and Mahabir and with kicks and fits by the other two. As a result of the injury , Ram Chandra died the same day late in the evening .

3. The Doctor who held the autopsy over the dead body of Ram Chandra found two lacerated wounds skull deep-one at the midline of the head and the other on the left side. On internal examination he found both the parietal and temporal bones fractured and the membranes lacerated. The Doctor opined that the two injuries were sufficient in the ordinary course of nature to cause the death of Ram Chandra. The third injury found on his person was an abraded contusion over the left side buttock upper part. The same Doctor had medically examined Baljit, P.W.15 and had found six simple injuries on his person in the shape of contusions or abrasions.

4. The land where the occurrence took place and where the appellants wanted to place their bundles of Bajra was claimed on their behalf to be either in their exclusive possession or in joint possession with Ram Chandra. It was, therefore, submitted on their behalf that they 201 had a right of private defence of property when they were obstructed by Ram Chandra and Baljit from placing their bundles of Bajra upon it. We have no difficulty in rejecting this argument. Both the courts below have concurrently found that this piece of land where the appellants wanted to put their Bajra bundles and where occurrence took place was in exclusive possession of the prosecution party. Having appreciated all that was said by the appellants in this regard, we find no ground to justify any interference by this Court on the question of exclusive possession of the prosecution party over the land in question. It is plain, therefore, that the appellants had no right of private defence of property.

5. The second submission made on behalf of the appellants has force in respect of only two of them, namely, appellants Harbans and Kalwa. We shall immediately show that their conviction under Section 302 read with Section 34 is not justified. On the other hand, we find although for reasons slightly different from those given by the High Court, that appellan