1. - This criminal appeal by appellant-Hari Singh arises out of the judgment and order dated 22.2.2002 passed by the learned Additional Sessions Judge Hindaun City, thereby convicting the appellant for offence u/s. 304-I IPC and sentencing him to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,000/-, in default thereof, to further undergo simple imprisonment for three month.

2. On 22.7.1999, PW-2 Ram Kailash submitted a written report, Ex.P/2 at Police Station, Todabhim, inter alia alleging therein that on 21.7.1999 at about 1.00 p.m. His uncle Manohari (since deceased) had gone to plough his field. On his return, he came to know that his field was being ploughed by the appellant and his son Mohan. Thereafter Manohari went to the field at 2.00 p.m. and found that accused persons were ploughing the said field. When Manohari objected to it, the appellant and his son assautled the deceased by giving lathi blows on his head, as a result thereof, Manohari fell down and became unconscious. According to the written report, the incident was witnessed by the complainant and PW-3, Kadu, PW-5 Jal Ram and PW-8 Bhoor Singh, who were working in the neighbouring fields at the time of incident. The injured was removed to the hospital, where he died in the night at 2.00 a.m.

3. On the basis of above written report, police registered a case for offence u/ss. 302, 34 & 447 IPC and proceeded with the investigation and having completed investigation, submitted challan against the appellant and co-accused-Mohan.

4. The learned trial Court, on the basis of evidence and material collected during investigation and placed before it, framed charge u/s. 302 IPC against the accused. The accused denied the charge and claimed trial.

5. In order to prove its case, the prosecution examined as many as 9 witnesses and got exhibited some documents. After the prosecution evidence was complete, the accused were examined u/s. 313 Cr.P.C. None was examined in defence.

6. At the conclusion of trial the learned trial Court did not find the charge established against the co-accused and accordingly acquitted him of the charge. However, the learned Judge found the appellant guilty of having committed offence u/s. 304-I IPC and accordingly convicted and sentenced him in the manner stated herein above.

7. I have heard learned Amicus Curiae and the learned Public Prosecutor and gone through the impugned judgment and the evidence on record.

8. In assailing the conviction, Mr. Bajwa, learned counsel for the appellant has strenuously contended that the appellant was in possession of the field in question where the incident took place. According to him the deceased himself was an aggressor who came at the field of appellant duly armed with lathi and struck lathi blows on the appellant. The appellant in exercise of his right of private defence inflicted a blow, which unfortunately proved fatal. Learned counsel further argued that as per the prosecution case only a single blow by lathi was allegedly inflicted by the appellant on the head of deceased. In these circumstances, it was highly erroneous on the part of learned trial Court to have considered the case to be one of exceeding the right of private defence more particularly when the appellant himself suffered injuries at the hands of deceased.

9. Per contra, learned Public Prosecutor has supported the finding arrived at by the trial Court and has submitted that conviction of the appellant is based on proper appreciation of evidence and it does not call for any interference.

10. I have given my anxious consideration to the rival submissions. Undisputedly, the deceased and the appellant are cousion brothers and the dispute between them related only to 2 1/2 bighas of land. The trial Court, considering the evidence, in particular the statements of PW-2 Ram Kailash and . PW-6 Shivlal has come to a finding that appellant was in possession over the land in dispute and therefore, the right of private defence of perso