M.M. Punchhi, J.
1. Out of the three accused involved in the crime only two. were prosecuted before the Additional Sessions Judge, Jullundur, since the third one had been claimed by the Army authorities to be tried in a Court-Martial. Those two accused were convicted and sentenced as disclosed in the opening sheet of the appeal. And those two are the appellants herein.
2. The manner In which this appeal has been pressed warrants that the facts of the case need not be fully elaborated. The finding of the trial Judge is that the appellants had committed the crime along with the third accused in furtherance of their common intention having lost the initially acquired right of private defence. Now, whether such right was at all lost and, if so, would the appellants be held guilty with the aid of Section 34, Penal Code, are questions which require to be sequentially answered.
3. Broadly stated, the case of the prosecution was that Nazar Singh PW, victim of the crime, was the Sarpanch of villages Noorpur and Moosewal which had a common Panchayat and, as such, Nazar Singh as the Sarpanch had within Us jurisdiction village Moosewal. A piece of land in village Moosewal, statedly belonging to the Gram Panchayat, was the subject of dispute between the parties since the year 1973. The said land was in possession of the two brothers, Gurnam Singh army-man and Bhagwant Singh appellant. Karamjit Singh appellant is the brother-in-law of the aforesaid Gurnam Singh. On 6.12.1981 at about 9 a.m., Nazar Singh was informed that the accused had been ploughing the disputed land with a tractor. On receiving this information, Nazar Singh took along with him Mangat Ram, another member of the Panchayat, to the disputed land where he found a person from another village ploughing the land with a tractor. He asked the driver to stop ploughing the land and, while he was in the process of conversation with the tractor-driver, all the three accused came out of their nearby house, armed with lethal weapons. Gurnam Singh had a sword, Bhagwant Singh appellant had a datar and Karamjit Singh appellant a spear. On the exhortation of Gurnam Singh that Nazar Singh be taught a lesson for not allowing them to plough the land in dispute, the attack was opened by Bhagwant Singh appellant giving him a datar blow on the finger of the left hand. Gurnam Singh gave a kirpan blow which landed on the forehead of Nazar Singh. Karamjit Singh gave a spear blow dang-wise hitting on the right knee of Nazar Singh. The second datar blow given by Bhagwant Singh appellant hit the injured on his left hand and the second kirpan blow of Gumam Singh injured the nose of Nazar Singh. The second spear blow from is wrong side, given by Karamjit Singh hit the left knee of Nazar Singh. Thus, in all six injuries were caused to Nazar Singh. And out of those injuries, the two caused by Bhugwant Singh appellant as also the two caused by Karamjit Singh appellant were found, on medical examination, to be simple in nature. The remaining two 'caused by Gurnam Singh were grievous in nature. These injuries stand detailed out in the opening paragraph of the judgment under appeal. Then again in paragraph 10 of the said judgment, the statement of Dr. Dharam Pal Kapur PW 2 has been detailed out to mention that injury No, 1 on the forehead of Nazar Singh was dangerous to life and injury No. 2 on the nose of Nazar Singh was grievous.
4. In paragraph 11 of the judgment under appeal, the trial Judge invited his attention as to whether the accused had the right of private defence. He recorded the positive finding that the disputed land was in possession of the accused party. Still Nazar Singh PW had claimed that the possession was illegal and that lie had entered that very land to prevent the tractor-driver from ploughing the same. The trial Judge then took the view that Nazar Singh's objection to the ploughing of the land had put him in criminal trespass on that land, giving rise to the accused the right of private defence to inflict harm but not harm which was more than necessary. The accused were then found to have acted in a reckless manner by inflicting injuries to the victim, which were dangerous to life and grievous. And, thus, were head not to have remained within their right of private defence of property. It is on this reasoning that the trial Judge based the conviction of the appellants and that view is under challenge.
5. Sardar Chattar Singh, learned Counsel for the appellants, had at the outset argued on the strength of Section 96 of the Penal Code that 'nothing is an offence which is done in the exercise of the right of private defence,' despite the fact that such right is subject to restrictions contained in Section 99 of the Penal Code. The effort on his behalf was to highlight that Nazar Singh had committed criminal trespass as defined in Section 441 I.P.C. Attention was invited to the statement of Nazar Singh, in which he had admitted that he had physically prevented Balwinder Singh, tractor-driver, from ploughing the land and that the accused had told him and his companions that they could not prevent them from ploughing the land. From this, he ventured to argue that since a wordy duel had preceded the actual occurrence and, in view of previous litigation between the parties as also when concededly wheat-crop was sought to be timely sown in the land, there was no time to have recourse to the protection of the public authorities as conceived of in Section 99 of the Penal Code. I am prepared to agree to the submissions made by the learned Counsel up to this point. It was further contended that the right of private defence of property commenced when the tractor-driver was physically prevented from ploughing the land. Section 105 I. P. C. was employed in aid to contend that the said right of private defence of property continued as long as the criminal trespass continued. It was claimed that till the assault had been attempted on Nazar Singh PW, the right had continued, for he was in criminal trespass. Up to this second step also, I am in agreement with the learned Counsel. However trouble has arisen on the third step, i.e., to the extent to which the right could have been exercised. Section 99 of the Penal Code limits the right of private defence which, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Thus, the point in issue is extremely narrow whether the harm inflicted by the accused-appellants was commensurate with the criminal trespass committed by Nazar Singh.
6. It is to be noticed that, at the time of the incident, Nazar Singh was empty-handed. Even his companions were empty-handed. He had entered upon the laud in dispute not for anything else but at best to annoy the persons in possession of the said property or to remain there for such purpose. He had not gone there to commit any offence or to intimidate or insult the persons in possession of the said property. No overt act in that regard has been established on thee-record. Thus, the criminal trespass was of a milder form which could give risey to the accused persons a right to cause simple injuries and that too which could be termed as essential. But, to say that they were justified in causing six injuries to Nazar Singh PW, out of which, two were substantial, would be putting premium on and rather abuse of their supposed right of private defence. Thus, in my view, the trial Judge rightly took the view that the element of private defence vanished, the accused having inflicted more harm, than necessary. And in this situation, to say that the right of private defence stood exceeded is, by no means, employing a term of art but it is rather appropriate in terms to say that the right vanished in causing excess harm, as it could not have been extended to those limits. Thus, the first question posed heretofore deserves the answer that the appellants did not have the right of private defence which could term their act to be no defence within the meaning of Section 96, Indian Penal : Code, And if once it is held that the act of the appellants was an offence, then obviously the applicability of Section 34, Penal Code, on their acting in unison and with common intention would arise answering the second question posed in this light. Accordingly, it is so held.
7. For the view I have taken, the convictions of the appellants, recorded by the trial Judge, are well merited and require no interference. However, having regard to the circumstances of the case and the role performed by the appellants, I would reduce the sentence of imprisonment of each appellant under Section 307/34, Indian Penal Code, to three years' rigorous imprisonment whilst sustaining that of fine. The sentences under other counts are sustained. With this small modification in the sentence of imprisonment under one count, the appeal of the appellants fails and is hereby dismissed.