O.P. Trivedi, J.
1. This appeal has been filed by Ram Manorath, Sheo Kumar Singh and Bhawani Prasad against their conviction and sentences Under Section 304/34, Indian Penal Code. Each of them has been sentenced to rigorous imprisonment for three years under the above count by the Sessions Judge, Faizabad.
2. The prosecution came to the court with the story that there was a Mahwa tree three or four furlongs to the south of village Reona on Banjar land belonging to Bhagwan Bux Singh complainant. There was another Mahwa tree about 300 paces to the north-west of the village belonging to appellant Bhawani Prasaa. There were consolidation proceedings in the village about four years before the present occurrence in which the land on which Mahwa tree of Bhagwan Bux Singh stood was included in the Chak of Bhawani Prasad appellant and was allotted to him and the land on which- the Mahwa tree of Bhawani Prasad stood was included in the Chak of Bhagwan Bux Singh and was allotted to him. The consolidation authorities, however, left the said trees unallotted and their ownership continued as before even after the consolidation proceedings, with the result that complainant Bhagwan Bux Singh continued to own and be in possession of the Mahwa tree in dispute which led to the present occurrence and appellant Bhawani Prasad continued to own and be in possession of the other Mahwa tree which stood on the land allotted to Bhagwan Bux Singh. According to the prosecution case about a fortnight before the occurrence there was a panchayat in village Reona having been summoned by Bhagwan Bux Singh and the Panchayat decided that Bhagwan Bux Singh and Bhawani Prasad could cut away tneir respective Mahwa trees standing on the land of each other. On 6-5-1968 at about 5 A.M. Bhagwan Bux Singh and Kariya started cutting the Mahwa tree which was standing in the Chak of Bhawani Prasad appellant and which Bhagwan Bux Singh believed to belong to him. At about 6-30 A.M. Ram Manorath and Sheo Kumar Singh appellants who are brothers, Bhawani Prasad, who is related to them and Dan Bahadur co-accused came there each armed with a spear. They abused and assaulted Karya deceased and Bhagwan Bux Singh. Ramdeo and Raja Ram witnesses who came and intervened were also assaulted and injured by them. Bhagwan Bux Singh complainant carried a lathi and struck it at the spear of Dan Bahadur Singh which caused the spear-head to break down. Karya succumbed to the injuries received by him. The first report of the incident was lodged by Bhagwan Bus; Singh. The injuries of Karya had been examined by Dr. Vijaipal (P.W. 13) at 1-30 P.M. on 6-5-1968 before he succumbed to them and he noted the following seven in juries on his person:
1. Incised wound 2' x ' x 1/8' on the right side of face above eye brow and nose.
2. Abrasion .'x 1/4' on the right thumb.
3. Incised wound 1/2' x 1/8' x skin deep on the right side of scalp.
4. Incised wound 1/2 x 1/4 x 1/8' on the left hip.
5. Incised wound 1/2' x 1/4' x .1/8' on the left thigh.
6. Incised wound 1' x 1/2 x abdominal cavity deep on the left side of abdomen.
7. Punctured wound 1/8' x 1/8' x abdominal cavity deep on the right side of abdomen.
Injuries 1 to 5 were declared by the doctor to be simple in nature (vide injury report Ext. Ka. 18). These very injuries were noted by the doctor performing the postmortem examination of the dead body. Bhagwan Bux Singh, Ram Deo Singh and Raja Ram were examined by Dr. A. N. Srivastava, Medical Officer Shahganj Dispensary on 7-5-1968. On the person of Bhagwan Bux Singh eleven injuries were found out of which five were abrasions, one incised wound and five punctured wounds. On the person of Ram Deo one punctured wound was found and on the person of Raja Ram two punctured wounds were found.
3. The appellants had pleaded not guilty to the charges framed against them and had pleaded that the injuries were caused in exercise of the right of private defence of body and property, their case being that the Mahwa tree in dispute belonged to Bhawani Prasad and that Karya and Bhagwan Bux Singh were cutting it in spite of protest by Bhawani Prasad. The trial Judge found that the disputed Mahwa tree belonged to Bhawani Prasad appellant and did not belong to Bhagwan Bux Singh. He further found that the appellants were entitled to exercise the right of private defence of property when Karya and Bhagwan Bux Singh were engaged in cutting it down but held them guilty of culpable homicide not amounting to murder with the aid of Section 34, Indian Penal Code as in his judgment the appellants had exceeded the right of private defence of person and property in causing the death of Karya.
4. For the prosecution five witnesses were produced who claimed to be eye witnesses: Bhagwan Buz Singh (P.W. 1), Bans Bahadur (P.W. 2), Raja Ram (P.W. 3), Ram Deo (P.W. 4) and Jagoo (P.W. 5). Three witnesses were examined for the defence: namely, Dr. R.N. Srivastava (D.W. 1), Sri P. P. Pathak (D.W. 2) and Ram Dularey (D.W. 3). The last witness was examined by the appellants in order to give their version of the incident.
5. After hearing arguments of the learned Counsel for the parties I am of the opinion that the order of conviction passed against the appellants cannot be sustained. I agree with the finding of the trial court that the Mahwa tree in dispute belonged to appellant Bhawani Prasad, the same having been allotted to him by the consolidation authorities (vide the entry of the consolidation Khasra Ext. Kha. 6). It was revealed by Ram Deo (P.W. 4) in cross-examination that the appellants arrived when this Mahwa tree was being axed by Bhagwan Bux Singh and Karya deceased. The appellants protested against the cutting of the tree to Bhagwan Bux and Karya but they did not stop cutting the tree and it was at this stage that the assault was committed by the appellants. Under Section 97, Indian Penal Code every person has a right subject to the restrictions contained in Section 99 to defend his own body and the body of any other person against any offence affecting the human body and secondly to defend the property whether movable or immovable whether of his or of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass. Bhagwan Bux Singh not being the owner of the disputed tree, he and Karya were engaged in the commission of an offence which in the eye of law amounted to mischief or theft and this gave Bhawani Prasad and the other two appellants right to defend the cutting of that tree if necessary by use of force. No doubt Under Section 99, Indian Penal Code there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities but in this case there was hardly any time to have recourse to the protection of public authorities as Bhagwan Bux Singh and Karya were continuously trying to cut down the tree. The next question and which is the main question in the appeal, is as to whether the appellants could be found guilty of an offence punishable Under Section 304, Indian Penal Code read with Section 34, Indian Penal Code on the ground of exceeding the right of private defence. learned Counsel for the appellants rightly pointed out that none of them could be held guilty of commission of an offence punishable Under Section 304 with the aid of Section 34, Indian Penal Code as Section 34 applies only when a criminal act is done by several persons in furtherance of their common intention. The exercise of right of private defence of the Mahwa tree was a lawful act and not a criminal act and therefore Section 34 did not apply. No doubt one or some of the assailants appeared to have caused penetrating wounds in the abdomen of Karya which appears to have proved fatal. The person who caused those fatal injuries no doubt exceeded the right of private defence of property but none of the prosecution witnesses indicated who was responsible for causing the penetrating wounds in the abdomen of Karya. That being so, on the basis of the evidence adduced in the case it was impossible to predict or to fix that the right of private defence was exceeded by the appellants or any one of them- For all one knows the fatal injuries may have been caused by Dan Bahadur who was acquitted by the trial Judge. It was clearly le individual act of the person who caused the fatal injuries in the abdomen of Karya. In this state of uncertainty none of the appellants could be found to have exceeded the right of private defence and consequently none of them held guilty of an offence punishable Under Section 304, Indian Penal Code. In the case of Ram Prasad Ahir v. State, : AIR1959All790 it was observed that 'where all the four accused were at first lawfully exercising the right of private defence they were not committing any illegal act. In order to attract Section 34, Indian Penal Code a criminal act has to be done by a number of persons. If a number of persons are doing a lawful act Section 34, Indian Penal Code has no application. So although one accused was responsible for causing death unlawfully, other accused cannot be held responsible on the principle of Section 34, Indian Penal Code, The result is that none of the accused would be convicted of any offence'. I am. in respectful agreement with the view expressed in that case. In the same case one meets with the observation that where from the account given by witnesses one does not know which accused was responsible for delivering the fatal blow on the head causing death, it is not possible to fix the responsibility on any particular accused for exceeding the right of private defence. In so far as the injuries of Bhagwan Bux Singh, Ram Deo and Raja Ram are concerned it cannot be said that there was any exceeding of the right of private defence. As matters stand therefore the appellants cannot be found to be guilty of the commission of any offence and they should therefore be acquitted.
6. I allow the appeal and set aside the conviction and sentences of Ram Manorath, Sheo Kumar Singh and Bhawani Prasad. They are on bail. They need not surrender to their bail bonds which stand discharged.