STATE OF U P Vs. RAM DAYAL JAGGU

JUDGEMENT

(1.) BOTH these appeals are directed against the common judgment and order dated 27-3-1980 passed In the then Sessions Judge, Lalilpur in Section Trial No. 57 of 1979 and in connected trial 114 of 1979 acquitting accused Ram Dayal and Jaggu of the charge under Sec tion 302 read with Section 34 of the I. P. C.

(2.) THE prosecution case, in brief, was that the deceased Devi and Bhurey, the father of accused Ram Dayal and accused Jaggu were real brothers. Daya Ram P. W-1 is the son of the deceased Devi. When on 16-4-1979 deceased Devi and his son Daya Ram were collecting "mahua" from their Mahua tree in village Kedesra Kalan. both the accused Jaggu and Ram Dayal armed respectively with Lathi and iron Shoi Lathi (Lohangi) came there at about 6 in the morning and they questioned Dcvi-deceased why he was collecting ''mahua fruits". Devi replied that it was his "mahua" hence he was collecting the same. Hearing this both the accused started assaulting the deceased with their respective weapons. Deceased fell down on the ground. Blum P. VV.-3 and Gyasi P. W.-2 who were also collecting Mahua from their nearby trees appeared at the scene of occurrence on hearing cries of Daya Ram and his lather Devi and challenged both the accused who soon ran away with their weapons. Daya Ram took his injured father on the cot to the police station-Tal Behat with the help of villagers and dictated an oral report Exhibit Ka-1. On the basis of which case crime No. 51 of 1979 under Section 308, I. P. C. was registered by Constable Clerk Arjun Singh P. W.-5 in the presence of Sta tion Officer-Shyam Manohar Tripathi P. W.-8. Shri Tripathi immediately started the investigation and recorded the state-men! of Daya Ram P. W.-l at the police station itself. Devi injured was sent to Hospital with Constable Rarnanand and his injuries were examined by Dr. H. N. Chandsauriya, Medical Officer, District Hospital on the same day at 9. 50 a. m. and he found the following injuries on the per son of Devi: "injuries (1) Lacerated wound 1- 2/4" x 1/4" x bone deep on the left side of scalp 4" above the Id! ear. Margin irregular contused bleeding present from wound,. 2. THE prosecution case, in brief, was that THE deccased Devi and Bhurey. the father of accused Ram Dayal and accused Jaggu were real brothers. Daya Ram P. W.- 1 is the son of THE deccased Devi. When on 16-4- 1979 deccased Devi and his son Daya Ram were collecting "mahua" from their Mahua tree in village Kedesra Kalan. bofh the accused Jaggu and Ram Dayal armed respectively with Lathi and Iron Shof Lathi (Tohangi) came there at about 0 in THE morning and they questioned Dcvi-deccased wby he was collecting "mahua fruits". Devi replied that it was his "mahua" hence he was collecting the same. Hearing this bofh the accused started assaulting I In-deccased with their respective weapons Deccased fell down on the ground. Bhumi P. VV.-3 and Gyasi P. W.-2 who were also collecting Mahua from their nearby trees appeared at the scene of occurrence on hearing erics of Daya Ram and his father Devi and challenged bofh the accused who soon ran away with their weapons. Daya Ram took his injured father on the cof to the police station Tal Behat with the help of villagers and dictated an oral report Exhibit Ka- 1. On the basis of which case crime No. 51 of 1979 under Section 308. I. P. C. was registered by Constable Clerk Arjun Singh P. W.-5 in the presence of Sta tion Officer-Sbyam Manohat Tvipathi P. W.-8. Shri Tripathi immediately started (he investigation and recorded the sulc-meni of Daya Ram P. W.-l at THE police-station itself. Devi injured was sent to Hospital with Constable Ramanand and his injuries were examined by Dr. scan missed 9. In order to prove its case the prosecution produced 12 witnesses in all. Out of whom Daya Ram P. W.- l, Gyasi. P. W.-2 and Bhoori P. W.-3 were witnesses of fact. Bofh the accused persons in their statements recorded under Section 313. Cr. PC. denied the prosecution allega tions and their case is of total denial. THEy pleaded that they were not-preseni at the time of incident. THEy produced no wit ness in their defence. 10. THE learned Sessions Jud without adverting to the evidence of the witnesses on the question of presenee of accused persons and their participation in the commission of the offence in question has acquitted them simply holding that the prosecution evidence with regard to the right of the deccased to collect Mahua at the relevant time was inconsistent, hence the possibility of the accused acting in the right of private defence of properly was not ruled out. THE learned Sessions Judge recorded that findingas follows: "it is admitted by prosecution that the deccased and the accused are ctosely related, the accused being sons of the brother of the deccased. THEy live in THE same BAKHAR and they had joint tenancy. Regarding the disputed Mahua Tree also it is admitted by Daya Ram son of the deccased that THE Mahua tree is in the field of one Meharban Singh and does not stand in the ptof of the deccased. He has further admitted that one year his lather used to collect Mahua from the tree while in the other year the Mahua was collected by the accused so the joint ownership of Mahua tree is admitted to the son of the deccased. P. W.-2 has admitted that there was dispute regarding tour or six Mahua trees between the deccased and the accused. P. W.-3 Hhoori has admitted thatthe Mahua of the disputed Mahua tree is collected one day by the deccased while the next day it was collected by THE accused. From all this it is clear that the Mahua tree was either joint or there was dispute of ownership regarding the Mahua tree accord ing to even the prosecution evidence. THE collection of Mahua from the said tree by bofh the side is admitted to the prosecution. It is how ever, disputed as to when and in what manner THE Mahua was collected by the deccased and the accused. THE prosecution had given dif ferent versions. Thus there is possibility that the deccased was collecting Mahua in an un authorized way and the accused exercised their right of private defence of property as in spite of objection of the accused the deccased con tinued to collect Mahua. Thus the accused had evcry right to exercise the right of private defensc of property and as such the accused arc entitled to benefit of doubt and acquittal of the charge levelled against them. " 11. We have heard learned Addl. Government Advocate for the appellant and Shri R. K. Shangtoo, learned Counsel appearing for the accused-respondents. We have also perused the record. 12. Learned A. G. A. appearing for the prosecution, assailing the impugned order of acquittal, submitted before the Court that from the evidence on record it is fully established beyond doubt that it were the accused-respondents who caused injuries to Devi who later on died on the same day as a result of those injuries and the view taken by the learned Sessions Judge that the accused persons had exer cised the right of private defence of property is palpably erroneous part icular-ly when such a plea was never put forward by the accused before the Court betow nor there was any material in support of the same. It was further argued that in any view of the matter the learned Sessions Judge failed to apply the correct legal position to the facts of the present case as even if it be held that the accused had any such right, that would not extend to caus ing of death of the deccased or such bedily injuries as were sufficient to cause his death in natural course. Shri R. K. Shangtoo, learned Counsel for the respondents in a most humble and honest manner simply canvassed that the cir cumstances appearing in the prosecution evidence suggested that the assault on the deccased was made in exercise of the right of private defence of property and at best it would be a case of exceeding that right. 13. THE principles with regard to in terference in appeal against acquittal are well settled. While hearing an appeal against acquittal this Court has full power to review at large the evidence upon which the order of acquittal was founded and to reach to its own conclusion that upon the evidence the order of acquittal is liable to be reversed. Such powers are in no way different from those in appeal against con viction and no limitation in law has been placed upon those powers. While assess ing the guilt or otherwise of the accused ii is the duly of the Court to examine the correctness of the findings on the trial Court and if necessary to reverse them on reappraisal of evidence for doing justice. If on one hand, it is the pious duty of the Court to ensure that no innocent person is punished merely on the basis of an accusa tion made against him but at the same time, it is also the solemn responsibility of the Court to respond to the society's cry that a guilty person do get punished par ticularly in the present scenario of law and order prevailing in the society. 14. While dealing with an appeal against acquittal the entire evidence must he examined and weighed on well recognized principles of appreciation of evidence and if on an overall assessment of the same it is found that the view taken by the trial Court is most unreasonable, this Court has the power not only to set aside THE order of acquittal but it also becomes its duty to do so, of course paying due attention to the grounds on which the order of acquittal was based and bearing in mind always that the presumption of in nocence of accused which is available to him from the inception gets further strength cncd and reinforced alter acquittal. Generally this Court is stow in disturbing findings of fact recorded by the trial Court particularly when such findings are based on appreciation of evidence because of the fact that the trial Court had the advantage of watching the demeanor of the witnesses examined at the trial and if two views could be reasonably taken on that evidence, the one taken by the trial Court should prevail. THE High Court while making its own assessment of the evidence and in reversing the judgment of the acquittal has to be cautious and it must not be forgotten that while doing so its approach has to be governed by theover riding consideration ftowing from the presump tion of innocence of the accused and there must be substantial and compelling reasons for reversing a judgment of acquittal but test should not be construed as a for mula which has to be rigidly applied in each and every case and so it is not neces sary that before reversing an order of ac quittal the High Court in every case must characterize each and every finding of the trial Court as perverse. THE High Court should review and reappreciate evidence and after making an over all assessment of the same in the light of and facts and cir cumstances appearing in the case it may either accept the order of acquittal or may reverse it. 15. In Sethu Madhavan and others v. THE State of Kerala, 1975 ACC 127, the Apex Court enunciated the toltowing prin ciples with regard to the powers of High Court in an appeal against acquittal: "in an appeal under Section 417 of the ("ode of Criminal Procedure against an order of acquittal, the High Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the con clusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the code, but in exer cising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and con sideration to such matters as (1) the view of the trial judge us to the credibility of the witnesses: (2) presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial: (3) the right of the accused to the benefit of any real and reasonable doubt; and (4) the altowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the ad vantage of seeing the witnesses. THE high Court should also take into account the reasons given by the Court betow in support of its order of acquittal and must express its reasons in the judgment which lead it to hold that the acquittal is not justified. Further, if two conclusions can be based upon the evidence on record, the high Court should not disturb the finding of acquittal recorded by the accused is not unreasonable, the occasion for the reversal of that view would not arise. " 16. In State of U. P. v. Krishna Gopal and another, JT 1988 (3) SC 544; 1988 JIC 601 (SC), the Apex Court summurized thesc principles as follows: "the plentitude of the power of the appel late Court to review and reappreciate the evidence cannot be limited under the supposed rule that unless there are substantial or compell ing reasons or "very" substantial reasons or "strong reasons", the findings in a judgment of acquittal should not be interfered with. THEre is thus no immunity to an erroneous order from strict scrutiny. But the appellate Court wherever it finds justification to reverse an acquittal must record reasons wby it finds the tower Court wrong. " 17. In a recent decision in State of U. P. v. Nahar Singh and others, JT 1998 (2) SC 41; 1998 (2) JIC 319 (SC), it has been held by the Apex Court as under: "if on re-assessment of the evidence, the appellate Court comes to the conclusion that the guilt of the accused is established, the fact that the appeal is against the acquittal will be immaterial. However, if two views are possible, the Court, having regard to the basic principle that presumption of innocence of the accused gets strengthened by the fact of his acquittal by Court, should take the view that supports the acquittal of the accused. " 18. Keeping in view the above men tioned principles, we now proceed to ex amine whether the acquittal of the accused respondents was justified. A perusal of'thc judgment in appeal would show that THE accused persons have been acquitted merely on the ground that the possibility of their acting in exercise of right of private defence of property was not ruled out. Before we proceed toexamine the correct ness or otherwise of this finding, we first think it appropriate and necessary to ex amine the evidence adduced from the prosecution side to find out whether the burden of proving its case beyond reasonable doubt has been duly discharged in the prosecution because in criminal case the onus of proving the offence lies heavily upon the shoulders of the prosecu tion and that onus at no stage shifts to the accused. It is no part of the prosecution duty to somehow nook the crook. It is only when this burden is discharged that it will be for the accused to exp n or controvert THE essential elements in the prosecution case which would negative it. THErefore, we first proceed to examine the question whether from the evidence adduced at the trial has it been established beyond doubt that Devi was assaulted by the respon dents at the time and place and in the manner alleged by tin: prosecution? 19. Neither before the Court below nor before this Court the factum of Devi receiving blunt weapon injuries in the morning on 16-4-1979 has been assailed or disputed. It is also not in dispute that Devi succumbed to his injuries on the same evening at 4. 20 p. m. in the Hospital. In the post-mortem examination conducted on 17-4-1979 at 11. OOa. m. bydr. H. N. Srivas-lava P. W.- 4, multiple fracture of perito-occipital bone was found under injury No. 2 and the bone had embcded in brain tissues. Brain was found contused and lacerated under injury No. 2 and tour ounce of fluid blood was found in skull cavity. THE opinion of the Docfor that cause of death of Devi was due to ante-mortem head in jury has not been assailed before us by the learned Counsel for the accused-respon dent. It is thus fully established from the evidence of the two Docfors, namely, P. W.-6 Dr. H. N. Chandsauria who medically examined Devi before his death and Dr. H. N. Srivastava RVY-4 who prepared postmortem report Exhibit Ka 3 that Devi died a homicidal death on account oantimortem head injury received by him in the morning of 16-4-1979. 20. According to the prosecution case it were the accused respondents who caused injuries to Devi with Lathi and Tohangi on 16-4-1979 at about 6 in the morning when the deccased was collecting Mahuafruits from his Mahua tree situated in the fieldofmcharban. In order to estab lish these facts the prosecution relied upon the evidence of three wilncsses, namely. Daya Ram P. W.-l Gyasi P. W.-2 and Sm't. Bhoori P. W.-3, their evidence may be staled in brief. 21. Daya Ram P. W.-l is the son of deccased. He stated that Ram Dayal and Jaggu-respondents are his cousins inas much as Devi deccased and Bhurey THE father of the accused persons were real brothers being sons of Mangli. Thcwiincss also staled that on the dale of the incident he and his father Devi were collecting imahua fruits when at about 6 a. m. bofh the respondent arrived there. Jaggu accused was having a Lathi while accused Ram Dayal possessed Tohangi. THE accused asked Devi wby he was collecting Mahua fruits. On this his father replied that it was his Mahnua hence he was collecting THE same. Hearing this bofh the accused" per sons immediately started assaulting his father with Lathi and Tohangi causing in juries on his head and other parts of the bedy. His father fell down on the ground. On his cries Gyasi P. W.-2 and Bhuri P. W-3, who were collecting Mahua fruits in the nearby fields challenged the accused per sons whereupon they ran away towards the village. According to this witness ho then went to his village brought a cof and then took his injured father to the police-station alongwith other villagers. At the police station he -jictatcd oral report Exhibit Ka-1. He fun her Mated that Safa Exhibit 1, Shin Exhibit 2 and Dhofi Exhibit 3, the ctofhs which the deccased was wearing at the time of incident were got stained with blood. His father died in thehospital at about 4 p. m evening. He also stated that the Mahua tree was planted b his father. lt was suggested to this witness that his lather received injuries on account of a fall on stones but he denied this suggestion and clearly stated that the ground where his lather fell down was even and not rocky, It may not he out of place to poinl here that Dr. H. N. Chandsauriya who had medically examined the injuries of Devi soon after the occurrence in clear words opined that ilie injury could not be sustained by the deccased "due to a fall on stones". THE witness has explained his presence al the time of incident by saying. that he was also helping his father in collection of Mahua fruits. It is commonly known that Mahua fruits are always cofleelcs in the morning and since the Mahua fruits arc scattered al various placed collection is often made by more than one person so that collection process may be completed before the sun rises high in the sky because the Mahua I mils toose their utility if THE weather gets hof. THErefore, there was nothing un natural if Daya Ram P. W.-l had also joined his father Devi in the collection of Mahua fruits. Significantly nosuggeslion has been put to this witness that he was not present at the time of incident. THE fact that first information report was also dictated by this witness at the police station without any delay further goes to support the claimof this witness of his being present with the deccased at the time of incident. 22. P. W.-2 Gyasi is a resident of same village and according to him he was also collecting Mahua fruits under his tree while Bhoori was collecting Mahua fruits under her tree. Devi and Daya Ram were doing the same thing under their Mahua tree. He corroberated the statement of P. W.-l that bofh the accused persons came there armed with Lathi and Tohangi and asked Devi as to wby he was collecting Mahua and when Devi did not stop coflcc-tion of Mahua fruits bofh of them as saulted him with Lathi and Tohangi. Ac cording to him bofh the accused persons gave 4-6 blows each from their respective weapons but none of them repeated btow after the deccased fell down on the ground. To this witness also no suggestion was thrown that he had not witnessed the incident. Neither any enmity with any of the accused could be suggested nor it could be shown that he was in any way interested other in the deccased or his son. He is absolutely an independent witness. 23. Smt. Bhoori, P. W-3 has also sup ported the prosecution case and ha1- nar rated the entire details of the incidcnt. Her presence al the time of incident has also not been disputed from the defence side She is also a totally independent witness inasmuch as neither any enimity could be suggested to her nor she is shown to be having any interest in the complaint. 24. All the three witnesses produced by the prosecution are thus independent and most natural and their evidence is fully supported by THE circumstances appearing in the case and by medical evident as,well 25. From the evidence of the aforesaid witnesses it is, thus, fully estab lished beyond reasonable doubt that the incident had occurred in the manner as alleged by the prosecution and it were the accused persons who assaulted the deccased Devi with Lath i and Tohangi and caused him injuries, on account of which hcdiedonthcsameeveningat4. 20p. m. 26. It is now to be seen as to whether the accused persons had a right of private defence of property and if so to what ex tent? 27. Learned A. G. A. argued that the learned Sessions Judge has committed a gross error in extending benefit of doubt to the accused respondents on a supposed plea of right of private defence of property without even noticing that no such case was either stated by the accused nor any suggestion in support of that plea was put to any of THE wilnesses and there was no sufficient material to extend that benefit to the accused persons. Shri Shangtoo, learned Counsel for the accused persons on the other hand, submitted I hat even where plea of right of private defence is not raised by the accused persons in their stalemenl recorded under Section 313, Cr. PC. and their case is of total denial, benefit of such a right cannot be denied to the accused if from THE evidence on record such a right ftows. He contended that it is open for THE accused to argue even in a case of total denial that from the circumstance established from the prosecution evidence itself, accused are entilled to claimright of private defence. 28. It is well sealed law that the civil rule of pleading does not apply in criminal trials. Unlike in a civil case, it is open to a Criminal Court to give benefit to the ac cused of all the pleas even if THE same are not staled be him in his statement given before the Court and if the Court does so, it cannot he said that the Court has made out a new case in favour of the aeeused from the one set up by the aeeused before the Court. If one examination of evidence on the test of preponderance of probabilities cereumstanees are established which bring the case within the ambit of an Exception, benefit thereof cannot be denied to the accused merely for the reason that the same was never c med by the accused in his statement or that the same was not suggested to the witnesses. 29. In Gottipulla Venkata Siva Subbramanyam 's case, AIR 1970 SC 1097 benefit of right of private defence was ex tended to the accused on the basis of proper appraisal of evidence and other material on record even though no such plea was pleaded by the accused in his statement before THE Court rather he had pleaded alibi. THE tollowing observations made by the Supreme Court are worth noticeable: "when there is evidence proving that a person aeeused of killing or injuring another aeted in the exercise of the right of private defence the Court would not be justified in ignoring that evidence and convicting the ac cused merely because the latter has set up a defence of alibi and set forth a plea different Iron the right of private defence. THE anatogy of estoppel or of the technical rules of civil proceedings is in cases like the present inap propriate and vhc Courts are expected to ad minister the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preven tive and not retributive. " 30. In Munshi Ram v. Delhi Ad ministration, AIR 1968 SC 702, the Supreme Court stated: "it is well settled that even if an accused does not plea self defence, it is open to the Court to consider such a plea if the same arises from the material on record. THE burden of estab lishing that plea is on the accused and that bur den can be discharged by showing preponderance of probabilities in favour of that pica on the basis of that plea. " 31. It has been held by the Apex Court in State of U. P. v. Lakhni, JT 1998 (1) SC 679; 1998 (1) JIC 718 (SC), that burden of proving an exception though undoubtedly is on the accused but the mere fact that accused adopted another alternative defence during his examination under Sec tion 313, Cr. P. C. without referring to Excep tion is not enough to deny him of the benefit of the Exception if the Court can cull out material from the evidence pointing to the existence of circumstances leading to the Exception. It is not the law that failure to set up such a defence would for ectose the right to rely upon the Exception once and foralt Ii is axiomatic that burden on the accused to prove any fact can be discharged either through prosecution evidence by showing a preponderance of probability or by adduc ing evidence in defence. 32. THE rules regarding the discharge of burden of proof by the accused of his plea of applicability of a general or special Exception has been d down by the Supreme Court in the case of K. M. Nanawati, AIR 1962 SC 605 Chhagan Bhiti Thakkar AIR 1964 SC and Praiap, AIR 1970 SC 996, approving Full Bench decision of this Court in Rishikesh Singh, AIR 1970 AIM. 51. 33. THErefore, the position regarding the question as to in what circumstances the accused could be allowed to avail benefit of a general or special Exception is now well settled and it is beyond the pale of doubt that in a case even where the accused has not raised such a plea in his statement given before the Court and lakes an entirely different plea, including the plea of total denial he could be still extended benefit of the Exception provided the facts attracting that particular Excep tion are bern out from the evidence on record. It is not necessary that such facts must be proved affirmatively beyond doubt and it is suffice if upon consideration of evidence as a whole, on the test of preponderance of probabilities, a reasonable doubt is created in the mind of the Court. If such a doubt is created then also benefit is to be extended to the accused. THE burden when rests on the accused to prove right of private defence is not of the same rigor as the burden of the prosecu tion to prove the guilt of the accused. It is not a proof beyond reasonable doubt but of preponderance of probabilities. 34. THE learned Sessions Judge has acquitted the accused persons giving them benefit of the right of private defence of properly. Right of private defence can he divided into two categories: (1) As a total defence which entitles an accuscd to acquittal as in such cases no offence whatsoever can he said to have been made out against the accused (Sections 96 to 106 of l. l'. C. ). and (2) As a partial defence, which reduces an offence of murder to an offence of culpable homicide not amounting to murder (Exception 2 to Section 300 ). 35. In the present case accused per sons have not pleaded in their statements recorded under Section 313, Cr. PC. that they had acted in exercise of their right of private defence of property nor any sug gestion to the same effect was thrown to any of the prosecution witnesses. How ever, even in such a situation we have still to examine to find out whether the defence of right of private defence of property still could he made available to the accused person on the basis of evidence an material brought on record from the prosecution side. P. W.-l Daya Ram in his statement before the Court stated that the disputed Manna tree was situated in the field of Meharban Singh. It was further stated by him that his father and the accused persons lived in the same Bakhar and their cultiva tion was joint. He admitted that one year his father uses to collect Mahua fruits from the tree in question while the same was collected by accused in the other year. P. W.-2 Gyasi stated that since before the incideni THEre has been a dispule belween the accused and THE deccased regarding 4-6 Mahua trees. However, it has not been elucidated further if THEre was also any dispute in respect of THE Mahua tree in question. Smt. Bhuri P. W.-3 sialed that Mahua fruits of the disputed iree uses tobe coflccledoneday by THE deccased while the next day same were collected by the ac cused persons. It is, however, not clear from her evidence that she had any per sonal knowledge regarding THE rights of the deccased or the accused persons of collection of Mahua fruits. THE learned Sessions Judge on the basis of the evidence of proseculion witnesscs has taken the view that the Mahua tree was either joint property of the accused and the deccased or there was some dispute with regard to THE rights of THE parties of collection of Mahua fruits and since the prosecution witnesses have given different versions in that regard, the possibility of THE deccased collecting Mahua unauthorized and the accused exercising their right of private defence of property were not ruled out. This inference of THE learned Sessions Judge is based on surmises and conjuclurcs as it was nowhere suggested to any of the prosecution witnesses that at the relevant time of incident it was the turn of the accused persons to collect Mahua fruits or that THE deccased had no right to collect Mahua fruits at that particular hour. None of the accused persons in their statement before the Court sialed that at THE time of incident it was their turn to collect Mahua fruits and not of the deccased. We also cannot too se sight of the fact that beth THE accused persons arrived al THE scene of occurrence fully armed with Lathi and Tohangi respectively. If there was any misunderstanding about the right of the deccased of collecting Mahua fruits, the accused persons had no right to take law in their own hands and mounting at tack on an unarmed aged person. Mere claim of a right to property is not enough to give any person the right to cause in juries to another man. THE right of claim can not include the right to offend. Every drop of human blood" is more pre cious than a claimof acres of land or other valuable property. THE accused, therefore, for the purpose of stopping THE deccased from collecting Mahua did not have a right to cause injuries to the deccased. Law does not profect such high handed action. THEre is nothing on record to indicate that the deccased was collecting Mahua fruits unaulhorisedly. Even no such doubt is created in our mind in this regard. Bofh the accused persons had gone to the place of occurrence fully prepared by taking weapons with them and started aggression on an unarmed person or no ostensible reason. THE right of private defence is purely preventive and not punitive or retributive. It is also not a right to take revenge nor is it a right of reprisal. It does not permit retaliation and the right cannot be pleaded or c med by persons who are THEmselves aggressor. 36. In any view of the mailer THE accused had no right to cause THE daith of the deccased under THE grab of the so-called right of private defence of property. Section 103 of the Penal Code makes a provision as to in what circumstances the right of private defence of property expends to causing of death. It says that the right of private defence of property expends under the restriction mentioned in Section 99 to the vofuntary causing of death or of any other harm to the wrong doer, if the office committing of which, or the attempting to commit which, occasions the exercise of the right, for an offence of robbery, House breaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property and theft, mischief or house trespass, under such circumstan ces as may reasonably cause apprehension that death or grievous hurl will be the consequence, if such right of private defence is not exercised. 37. In the circumstances appearing in the case, therefore, it will not be correct to hold that theaccused persons had the right of 'private defence of properly. 38. THE argument of THE learned Counsel for the accused respondents that at best the accused could be held liable for exceeding the right of private defence of properly also cannot be accepted because THE case in hand cannot be brought within the tour corners or Exception 2 of Section 300, L. P. C. Exception 2 reads as under: "culpable homicide is not murder if the offender, in THE exercise in good faith of the right of private defence of person or properly exceeds the power given to him by law and causes THE death of THE person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm that is necessary for the purpose of such defence. " 39. In order to bring the case within the aforesaid Exception it is necessary that the accused acts in ''good faith". THE ex pression "good faith" has been defined in Section 52 of the Code that nothing is said to be done or believed in good faith which is done or believed without due care and attention. THE deccased was unarmed at the lime of incident. He was aged about 60 years, (as per the post-mortem report) and according to the prosecution witnesses he was collecting Mahua fruits peacefully with his son P. W.-l much before the arrival of the accused the scene of occurrence. THE accused persons came there well prepared carrying Lathi and Tohangi with them and started giving blows after blows on the deccased and the manner in which the attack was mounted suggests that the same was made to satisfy a feeling of revenge. THEse circumstances appearing in the case thus, clearly rule out "good faith" on the pan of the accused persons. 40. In this view of THE mailer Excep tion 2 to Section 300 of the Code can not be pressed into service in favour of THE ac cused persons. Nothing has been brought on record in the cross examination of the witnesses that something intervened before initiation of assault. 41. For the above reasons we find ourselves totally in disagreement withthe view taken by the learned Sessions Judge that the accused persons were entitled To get the benefit of right of private defence of property and we hold that the prosecution has succeeded in proving its case beyond doubt that the accused persons assaulted the deccased with Lathi and Tohangi and caused him injuries which ullimately proved fatal. THE next question now arises for considera tion is as to for what offence the accused respondents can be held guilty? 42. Even as per the prosecution case Devi sustained injuries al THE hands of the accused persons on l6-4- 1979at about 6 in the morning and on account of the injuries he expired on the same day at 4. 20 p. m. His injures were examined by Dr. H. N Chandsauriya P. W.-6 at 9. 50 a. m. and as per THE injury report the deccased sustained two lacerated wounds on head, one On the left side and other on the right side. THE postmortem report Exhibit Ka-3 further indicates that on opening multiple frac tures of perito occipilal bone with depres sion were found under injury No. 2 and the fractured bone had embeded in brain tissues. Brain was also found contused and lacerated under injury No. 2 which was a lacerated wound 1" x 1/4" x bone deep on right side back of head 8 em. away and backward from right ear lip. Injury No. 1 was a laceraicd wound 1-1/2" x 1/4" bone-deep on left side of head 4" above the left ear. No fracture was found on THE left side of the head. Dr. H. N. Srivastava P. W.-4 who conducied THE autopsy staled likewise. THErefore, from THE medical evidence it is quite possible to infer that only injury No. 2 was responsible for the death. of the deccased. THE difficulty then arises which of. THE two accused was the author of that par ticular injury which position has not been Clarified in evidence led by the prosecution at the trial. It cannot be also said with certainty that the said injury. was caused by Lathi or Tohangi as bofh were blunt weapons and the injury could be the result of the use of either of these weapons. In this situation it is not possible to say with affirmness whether it was accused Ram Dayal or accused Jaggu" who caused that particular fatal injury. Having regard to this facfor and considering THE facts and circumstances in which the assault was made appellants could not be held guilty for the offence of murder punish able under Section 302 read with 34, I. P. C. and to be on a safer side it will be just and proper to hold THEm guilty under Section 304. Pan II read with Section 34, I. P. C. as injuries were caused by bofh the accused in furtherance of their common intention of causing at least such injuries as they knew we re likely to cause death. . Now coming on the question of sentence, we have to strike a just balance taking into account the aggravating as well as mitigating circumstances. In this case the occurrence took place on 16-4-1979 i. e. . more than 20 years ago. At that time the accused Jaggu was aged about 50 years while Ram Dayal was a young lad of 19 years of age. THEre is nothing on record to indicate that the had any had antece dents or were having any criminal hisfory. THEy were acquitted by the trial Court on 27-3- 1980 and appeals filed against their acquittal remained pending in this Court for about 19 years. During this tong period not only the accused have advanced in their ages but their socio economic conditions must have also undergone radical changes. THEir families must have expended resulting into more responsibilities on them. It may also he noted that the weapons used by them in the commission of offence were Lathi and Tohangi only and it had, been deposed by P. W.-2 Gyasi specifically that when the deccased fell down on the ground he was not given any further beating. THEre are some of the facfors which we have taken into con sideration while selecting appropriate sen tence to be imposed on the accused. We accordingly Ld that the ends of justice. will he sufficiently met if each of THE accused is sentenced to 3 years R. I. and to pay a fine of Rs. 5,000 and in default of payment of fine each of them to undergo further R. I. for one year. 44. For the foregoing reasons bofh the appeals are allowed and THE judgment of the trial Court dated 27-3-1980. acquitting ac cused Ragi Dayal and Jaggu is hereby set aside. Accused Ram Dayal and Jaggu are found guilty and convicted under Section 304, Parr II read with Section 34of the Indian Penal Code and each of them is sentence to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000. In default of payment of fine each of them shall under go further R. I. for one year. Out of the fine so, deposited or realised from the accused per sons half of the same shall be paid to the legal heirs of the deccased Devi. 45. Bofh the accused Ram Dayal and Jaggu are on bail and they shall Re taken into custody forthwith and sent to jail to serve out their respective sentences as awarded, above. Appeals allowed. .