C. Honniah, C.J.
1. The appellants were charged with having committed offences under Sections 447, 147, 379, 323, 325, 302, read with Section 149, Indian Penal Code.
2. The case against them was that on June 14, 1973 at about 7.30 A M they formed themselves into an unlawful assembly in the field bearing Khasra No. 302, situated near the village Vaidhya-ki-Dhani, armed with deadly weapons, assaulted Jamna. Mangalchand (PW. 3), Kaluram (PW. 4) Ram Sahai (PW. 7), Shivpal (PW. 11), Durga (PW. 12) and one Anilal. Jamna died and the other persons sustained injuries.
3. In regard to this incident a complaint is stated to have been lodged on the same day in the evening by Onkarmal (PW. 18), son of the deceased. The investigation was taken up on the basis of this complaint, and the appellants were arrested, and recoveries of some weapons were made.
4. The case of the prosecution was that the eastern portion of Khasra No. 302 was in possession of Jamna & Anilal & others, & that Jamna, on the date of the incident was in the land in the usual course, the appellants went there as med with deadly weapons, trespassed into the land with a view to take possession of the land forcibly and in doing so murdered Jamna & assaulted other persons.
5. The defence of the appellants Balu (A 7), Chhitar (A 8), Bholu (A.9), Narain (A.10) & Sanwara (A.11) was that they had not gone near the field. According to them they were else where at the time of the incident The defence of the accused Jeewan (A.4) and the other accused put forward was that along they were in possession of the entire land bearing Khasra No. 302 & that when they were in the field they were beaten up by the party of Jamna & others In substance their case was that even if the case of the prosecution was accepted, their case was that in order to protect their property & also their person they were entitled to ward off the danger pesed by Jamna & others. So far as the possession of this land is concerned, it appears to us that even from the finding of the learned trial Judge, in all probability, the same was with the appellants From 1969 the appellants were claiming to be in possession of the land. There was litigation in the Revenue Courts Both the parties went to the Revenue Board. The Revenue Board by its judgment dated 8-9-71 (Ex. P 47) held that the receiver who was appointed earlier was not justified and accordingly removed the receiver from the possession of this land. There is no satisfactory evidence as to what happened thereafter. Each Party was claiming to be in possession of the land. Therefore, it is very difficult to say whether the appellants were in exclusive possession or the complainant party were in exclusive possession of the had in question, either prior or on the date of the occurrence. However, there is evidence in this case to show that the entire land was in joint possession earlier and that the appellants appear to have dominated over the complainant's party and had taken possession of the land. This we say so because on June 12, 1973 the complainant party gave a complaint to the Additional District Magistrate alleging that the appellants' party were not allowing them to cultivate the land. It is, therefore, clear that on the previous day the accused party had taken possession tightly or wrongly and it must be so on the date of the incident.
6. On the fateful day, according to the case of the prosecution, Jarana and his party men went to the land and erected a 'Jhumpa' (hut) and soon thereafter the accused persons, who were in the neighbouring land, which belonged to them came there and attacked the complainant party and in that process murdered Jamna and caused injuries to several other persons. This case was sought to be established by the prosecution mainly on the direct evidence of Mangalchand (PW. 3), Kaluram (PW. 4) Ram Sahai (PW. 7), Shiv Pal (PW. 11), Durga (PW. 12) and Onkar Mai (PW. 18). of these witnesses Kaluram (PW. 4) Ram Sahai (PW. 7), Shiv Pal (PW. 11) and Durga (PW. 12) were injured. They do not say that any one of the appellants was in the group, who assaulted them, and Jamna. Onkar Mai (PW. 18) son of the deceased Jamna has stated that he saw the incident from a distance of 2000 feet, and after seeing the incident he went to the Police Station and lodged the complaint implicating all the accused persons. If he saw from a distance of 2000 feet, in the very nature of things, he could not have identified any one of the appellants, more so the victims. He is stated to have given this complaint on the evening of June 14, 1973. A perusal of the first information report, in this case, goes to show that the complaint was lodged on the next day, and it reached the court on 19-6-1973. From this it is obvious that the complaint Ex. P.1, in all probability was not lodged as stated by Onkarmal (PW 18) on evening of June 14, 1973 No explanation has been offered why the first information report reached the court four days after the incident. It is clear that the complaint must have been lodged some 1 or 2 days after the incident, after a good deal of deliberation, and, therefore, the possibility of including innocent persons cannot be ruled out, taking into consideration the long standing ill will between the complainant party, and the accused party. That apart the only witness, who supports the case of the prosecution is Mangalchand (PW. 3). Anilal had not been examined in this case, as he was stated to be dead. We are left with the evidence of Mangalchand (PW 3) only. Admittedly he is a partisan witness. His evidence requires to be scrutinised carefully. He only speaks about the assault on Jamna and his party men, but he does not say how some of the accused persons sustained injuries. Jeewan (A.4) and Chuna (A.5) had sustained grievous injuries & the others had sustained number of injuries. No explanation has been offered how these accused persons sustained injuries and in what circumstance The defence of the accused was that they were in possession of the land, the complainant party tried to take forcible possession of the land and in that process there was a fight between them The circumstances in this case clearly indicate that the complainant party in all probability, might have gone there to take forcible possession of the land and that the accused persons might have retaliated as a result of which there Was a free fight between the parties resulting in the death of Jamna. In these circumstances we hold that this is a case where the appellants have exceeded their right of private defence, which falls under Exception (2) of Section 300, Indian Penal Code Therefore, the conviction of the accused under Section 302 read with, Section 149 Indian Penal Code cannot be sustained. Instead we bald that the accused are guilty of the offence punishable under Section 304, Part II, Indian Penal Code, and, accordingly convict them. We feel that the ends of justice will be met by sentencing them to the period already undergone. Accused, Murli alias Moolchand (A1), Bhagwana (A2), Pokhar (A3), Jeewan (A.4), Ghhitar (A1.) and Sanwara (A11) are stated to be in jail, We direct that they be set at liberty forthwith. Appellants Chhuna alias, Chunnilal (A5), Majirara (A6), Balu (A7), Bholu (A9), and Naraina (A10) are on bail. They need not surrender to their bail bonds, as we feel that the sentence of imprisonment that they have already undergone during the trial and thereafter, in our opinion, is sufficient. So far as the conviction with regard to the other offence is concerned, we confirm the same and hold that the sentence they have already-undergone will meet the ends of justice. With this modification it the conviction and sentence the appeal of the accused-appellants is dismissed. For the reasons stated above, the appeal filed, by the State also fails and is dismissed.