M. B. SHARMA, J. - (1.) THE learned Additional Sessions Judge No. 1, Nohar, has convicted the accused appellant Chhota Singh under sections 307 and 326 I. P. C. For the first offence he has been sentenced to seven years rigorous imprisonment and a fine of Rs. 500/-,in default of payment of Which to further undergo three months rigorous imprisonment. Under the second count, i. e. section 326 I. P. C. the accused has been sentenced to undergo five years rigorous impir-sonment and a fine of Rs. 400/-, in default of which to further undergo two months rigorous imprisonment. THE substantive sentences have been ordered to run concurrently.
(2.) THE case of the prosecution is that the houses of Gurdeo Singh P. W. 4 and accused appellant are situated in the same locality in village Gogamedi. On August 9, 1982 at about 9 or 10 A. M. Gurdeo Singh P. W. 4 had brought some earth in his tractor and was unloading it in front of his house where it is alleged that the accused appellant came armed with a sword. Gurdeo Singh P. W. 4 is said to be at that: time levelling the earth which has been unloaded by him. THE accused appellant asked him not to do so as according to him the land which (Gurdeosingh was levelling) belonged to him. At this, accused became enraged and gave a sword blow, which was aimed at the head of Gurdeosingh PW. 4 but the blow was taken by him on his hand as a result of which a part of his hand was amputated. THE accused repeated the assault and caused more injuries with the sword. A report Ex P. 11 was filed by Gurdeo Singh and investigation was set in motion. THE injuries of Gurdeo Singh were examined by Dr. Vijay Kumar P. W. 3 who was then posted, as doctor incharge, Government Hospital, Nohar. THE said doctor found that, Gurdeosingh P. W. 4 had the following injurie:- " (1) Incised wound 17cm x 3cm muscles bones (Two) 13 c. m. x 3cm veses, nerves cut on lower 1/3 of left forearm posterio-anteriorily Horizontally directed. Whole of hand with lower 1/3 of forearm separated from forearm. Only skin attachment present. Fracture of Redius and ulna present. (2) Incised wound 28cm x 2cm x bone deep on left Temparo-parieto-occipital region of scalp just above left ear obliquely directed. " In the opinion of the doctor the injuries were fresh as blood is coming out and both the injuries were caused by a sharp weapon. He advised X-ray for injury No. 2 and on X-ray being taken by Dr. Markande PW. 5, a fracture of occipital and left parietal bone were revealed. THE accused was arrested and on his information and at his instance a sword, the alleged weapon of offence was recovered. THE blood staineds word was sent for chemical examination and the Chemical Examiner reported that there was blood on the sword. THE matter was further referred to Serologist who under his report Ex. , P. 20 reported that blood was not sufficient for test and, therefore, he could not opine as to whether the blood was human blood or not. The accused was tried. In the cross-examination of the witnesses of the prosecution a defence was set up that the land which was levelling by Gurdeo Singh P. W. 4 belonged to the accused, he had secured a patta of the same and was in possession of it. Gurdeo Singh P. W. 4 wanted to enter into illegal possession of it. When he was levelling the land with the tractor the accused asked not to do so but Gurdeosingh with the handle of the tractor aimed a blow on him. Accused examined one witness in defence, in, order to prove that the land where the levelling was being done was a patta sud land. The court also examined Dhanpat s/o Prabhuram as C. W. I. , I have heard learned counsel for the accused appellant, the Public Prosecutor arid have gone through the record of the case. The contention of the counsel for the accused appellant is that the land belonged to the accused and in support of his contention he has referred to Ex. D. 2 the patta of the land. There is no dispute that the land was an open land and even assuming that the land: belongs to the accused and P. W. 4 Gurdeo Singh was levelling a part of it believing it that it belongs to him as manure was lying. The question which arises is as to whether the accused could Be said to be having the defence of his private property? Under sec. 97 of the I. P. C. every person, has a right, subject-to the restrictions contained in section 99, to defend the property, whether movable or immovable, of himself 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. The right of private defence in no case extends to the inflicting of more than it is necessary to inflict for the purpose of defence. The right of private defence of property under section 103 I. P. C. , extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the w'r6ng-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an' offence of any of the description enumerated in section. 103, I. P. C. Again under section 104 I. P. C. if the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any, of the, descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in S. 99, to the voluntarily causing to the wrong-doer of any harm other than death. Therefore, it will be clear as already stated earlier even assuming that the land was a part of the patta sud land of the accused appellant, the accused-could have only caused such harm which was necessary for the purpose of defence. The complainant is only said to be levelling the land which was open near which his' manure was lying and the case of the accused is that Gurdeo Singh P. W. 4 was armed with the handle of the tractor and aimed the same is not supported by any material on record. Therefore, the accused even, he had any right of any private defence, he far exceeded it. The accused have not said, that he caused the injury to Gurdeo Singh but it is very well established from the, statement of Gurdeo Singh which is corroborated by the statement of Laxmansingh PW 6 that the accused and the accused alone is the author of the two injuries by sharp weapon (sword) to Gurdeo Singh P. W. 4. I have also referred to the nature; of the- injuries and both the injuries Were found to be grievous injuries. Thus the accused appellant has been rightly convicted under section 307 I. P. C. The question is as to whether any interference is called for in the sentence awarded to the accused persons, Looking to the fact that the accused bonafide claimed that the land belong to him and then the occurrence took place, in my opinion the sentence is excessive. Learned counsel for the accused has placed reliance on Nanhu Kahar v. The State of Bihar (1) wherein in a case where the hand was cut as a result of an injury by sharp weapon, a sword, upheld the sentence of one year awarded by the High Court against the order of the Sessions Judge under which the accused was acquitted under section 326 I. P. C. The accused was arrested on 13. 8. 1982 and since then he is in custody, In other words he has undergone a sentence of more than three years and five months and nine days. In the facts and circumstances, in my opinion the sentence already undergone by the accused shall meet the ends of justice. In the result the appeal is partly allowed. While maintaining the conviction of the accused appellant, he is sentenced to imprisonment already undergone on each of the count and shall pay Rs. 50/-in each count, and in default of payment of fine, he shall further undergo imprisonment for 15 days. If the fine is deposited, the trial court shall release the accused immediately, if not wanted in any other case. . ;