JUDGMENT

RANGANATH MISRA, J.:— This appeal by special leave is directed against the reversing judgment of the Gauhati High Court, by which the judgment of acquittal of the trial Court was set aside and the respondents were convicted under section 304, Part I, read with section 34, IPC and each of them was sentenced to five years rigorous imprisonment.

2. Eight persons were put on trial under S. 302/149, IPC on the allegation that one Afil Ali had grown paddy on 7 bighas of land. On November 21, 1968, around 6 A.M. the accused persons along with others were found reaping that paddy. Afil Ali and his brother Adam Ali went near the land and protested against the criminal act of the accused persons. Thereupon accused Abdul Kadir struck Afil Ali on his head with a Dao; accused Rajab Ali, Abdul Majid and Altaf assaulted Afil Ali with Lathis and spears. Accused Abdul Jabbar struck Adam Ali on his head with a Lathi as a result of which he fell down. Saheb Ali and Rajab Ali gave thrashings with their lathis. Adam Ali ultimately succumbed to the injuries. Some time after Afil Ali also died. First information was lodged with the police and after due investigation 8 accused persons were put on trial for offences punishable under Ss. 302/149 and 148, IPC. Abdul Jabbar, Abdul Kadir and Rajab Ali were also separately charged under S. 302, IPC.

3. Prosecution examined 5 witnesses including the Investigating Officer. The learned trial Judge found that the accused persons were in possession of the land and had grown the paddy. He, therefore, found that when Afil Ali and Adam Ali accompanied by others attacked the accused on their land, the accused had every right to go to the extent of causing grievous hurt to the attackers in the exercise of the right of private defence of property. While exercising that right if the accused persons were attacked with sharp cutting weapons on vital parts of their bodies they were entitled to even cause death. He accordingly found the accused not guilty and acquitted them.

4. An appeal was carried by the State against the acquittal. The High Court affirmed the finding of the trial Court that accused Abdul Kadir was in possession of the disputed land at the relevant time and Afil Ali and his group committed criminal trespass upon the same at the time of the occurrence. The High Court, therefore, found that the acquittal of the respondents of the charges under Ss. 148 and 302/149, IPC was justified. It next proceeded to examine the question whether the accused persons had exceeded their right of private defence. On the basis of the evidence given by DW. 1, the High Court found :

".........accused Abdul Jabbar and Rajab Ali received grievous injuries caused by sharp cutting weapon, accused Jabbar on his head and accused Rajab Ali on his belly. We have already observed that this fact has not been seriously disputed. The prosecution witnesses have evidently tried to suppress this fact."

5. The High Court next found that these two accused persons had been injured first and they could, therefore, not have taken part in assaulting Afil Ali and Adam Ali. Accordingly they were entitled to benefit of reasonable doubt. Six accused persons were thus left in the held. The High Court did not specifically deal with the case of three of the accused persons but came to hold that the three respondents before it had exceeded their right of private defence and had, therefore, been guilty of the offence under S. 304, Part I, IPC read with S. 34, IPC. Accordingly, while upholding the acquittal of five of the accused, the High Court convicted the three appellants.

6. Upon hearing counsel for the parties we are inclined to agree with the submissions advanced on behalf of the appellants that the High Court was in error in reversing the judgment of acquittal. Both the courts below have found that : (1) the land was in the possession of the accused persons; (2) paddy crop had been grown by the accused persons and the same was ready for harvesti