IMPORTANT POINT
Where act of deceased amounted to mischief, appellants had a right to private defence but in gunning down the mischief makers they acted in excess of right of private defence nevertheless first degree of right of private defence could not be denied to them hence their conviction under Section 304, Part I, IPC was sustainable.

JUDGMENT

Thomas, J.- Thirteen persons were arraigned in the trial court to face charges for offences including Section 302 read with Section 149 of IPC, out of which Sessions Court convicted only four of the offences under Section 304, Part I of IPC and Section 25(1) of the Indian Arms Act. Others were acquitted. The convicted persons were sentenced to rigorous imprisonment for 5 years each on the first count and rigorous imprisonment for 6 months each on the second count. They filed appeal before the Patna High Court. The State of Bihar filed another appeal challenging acquittal of, 9 accused as well as the order exonerating the convicted persons of the offence under Section 302 IPC. At the appellate stage there was reversal of fortune for all the arraigned persons as the High Court found all of them guilty under Section 302 read with Section 149 IPC. Hence the present appeals by the accused persons by special leave. .

2. We are informed that during the pendency of these appeals two of the appellants (Sheonandan Choudhary and Ram Ishwar Choudhary) have expired. It is also reported that appellant Ganesh Choudhary has become insane and has gone out of his house and his whereabouts are not known.

3. The incident which led to the prosecution of all the 13 appellants happened during the morning hours on 15.10.1974 in which three persons (1. Daroga, 2. Kawai and 3. Hit Narain) died. All the deceased hailed from a village called Malpura which is situate a little north of Kusi Village. A water stream starting from another village (Parsar Ahar situated south of Kusi Village) flowed northwards reaching upto Kusi. Appellants are inhabitants of Kusi Village. As there was acute drought condition, people of Malpura were in need of water.

4. Prosecution case, in short, is thus: The three deceased visited Kusi Village on the eye of the occurrence and cut open a bund which blocked the water flowing further north. This act of the deceased was questioned by some of the appellants, but their protestations were not heeded to by the deceased. On the morning of 15.10.1974, situation further deteriorated with exchange of words between the two factions when those hailing from Malpura forcefully resisted the attempt of the appellants to restore the bund. All the appellants gathered up with guns, lathis, etc. The four appellants who were convicted by the trial court used guns to fire down one or the other of the three deceased and consequently the deceased died of gun shot injuries. The remaining persons who came from Malpura Village retreated and fled from the scene.

5. Learned Sessions Judge found that the prosecution succeeded in establishing that the four convicted persons fired gun at the deceased. However, learned Sessions Judge took the view that appellants had right of private defence of property as deceased committed mischief by cutting open the bund to block the water flow. But the trial court further found that the four convicted persons who used firearms had exceeded their right of private defence and hence they were convicted only of the offence under Section 304 Part 1 of IPC.

6. The High Court, in reversal of the above findings, concluded that all the 13 accused had formed themselves into an unlawful assembly with the common object of murdering the three deceased and that none had the right of private defence at the relevant time.

7. We have no reason to disturb the finding that four appellants had used guns and shot down the three deceased. So the only question for our consideration is whether the High Court was justified in denying initial right of private defence I these appellants. Learned Judges of the High Court have

observed:

"Even if mischief had been committed by Malpura people the same was continuing for three days preceding the occurrence, and hence there was no occasion for them to take law into their own hands for attacking Malpura people."

High Court further pointed out from evidence that a cut portion of the bood was fille