PABITRA KUMAR BANERJEE, J.

(1) ON the 12th June, 1976 corresponding to 25th Jaistha, 1383 B. S. in the morning there was an occurrence over the possession of a piece of land at Maryarbaid within Mouza Kapistha, during which several persons on either side were injured and out of the injured, two persons, Iswar Majhi and Moriram Mahato died. Pursuant to the complaint lodged by Lakhindar Majhi, P. W. 1 on the same date at Kashipur Police Station within district-Purulia, S. I. of Police Bimal Kumar Gorai, P. W. 29, took up the investigation of the case and after inspection of the place of occurrence, seizure of some articles, examination of witnesses and arrest of some of the accused, he submitted charge sheet against 31 accused, who were eventually placed on trial to answer the charges under Sections 148, 302/149 and 326/149, Indian Penal Code. The learned Additional Sessions Judge, Purulia, by his judgment and order date 5th February, 1980, acquitted 27 accused of all the charges but found Santosh Mahato, Byakaran alias Haripada Mahato, Bisweswar alias Bishu Majhi, Lakhu alias Lechu Majhi, guilty of the offence punishable under Section 304 - Part I read with Section 34, Indian Penal Code and sentenced each of them to suffer R. I. for seven years. The said four convicts are the appellants before us.

(2) THE case of the prosecution was that on 12. 6. 1976 in the morning, on receipt of an information that Ramchand and his men were plough ing the disputed land, the complainant party led by Iswar Majhi, Mariram and others went there and protested which was followed by altercation between the parties. It is alleged that all of a sudden the accused persons armed with bows, arrows, lathis, tang is and swords came out of the hide outs and attacked the complainant party with the arms in their hands. The informant Lakhindar, P. W. 1, Sohan, P. W. 5, Nemai, P. W. 8, Dukhu Majhi, Baruni Mahato, P. W. 9, Ajit Mahato, P. W. 11, and others were injured and while they were escaping towards west, they were surrounded by the assailants on the southern ridge of Mahesh Majis land. Mariram and Iswar Majhi were severely assaulted by the appellants and accused Janaki, since acquitted, with tang is, and sword as a result of which Mariram died on the spot and Iswar succumbed to the injuries on his way to the hospital. The other injured were removed to the hospital. As stated earlier, Lakhindar P. W. 1, with the injuries on his person went to the Police Station and lodged the complaint at 8/025 A. M. on the same day. The defence of the accused was that Ramchand, father of appellant Santosh, has been possessing the Mariyar I said land since hist purchase in 1955 and that his possession has been upheld in a criminal proceeding under Section 145, Cr. P. C. It was alleged that on 12. 6. 1976 in the morning while Ramchand, Santosh and 4/5 others were engaged in ploughing the disputed land and sowingseeds the complainant party led by Iswar Majhi, Mariram find 22/25 others armed with deadly weapons forcibly obstructed the act of cultivation and while the appellants and others were trying to flee away they were chased by the complainant party and assaulted. They pleaded innocence and denied the material allegations of the prosecution case of rioting and murder.

(3) THE land in Mariyar Baid within Mouzakapista is situated to the east of village Dhabari. To the west of Mariyar Baid is the land of one Maheswar Majhi intervened by the land of Tushu Majhi. There was scramble for possession in respect of Plot Nos. 129 and 130 of the said Mariyar Baid for sometime and the parties were litigating from before 1973 over the possession of the said land. It appears from the documentary evidence adduced by both the parties at the trial (vide Exts. 9, 911, 10 and C and C/i) that a criminal proceeding under Section 144, Cr. P. C. was started in 1973 at the instance of Santosh, son of Ramchand and others (1st party), against Rajaram Mahato and others (2nd party) over possession of Mariyar Baid land and in that proceeding which was later converted into one under Section 145, Cr. P. C. the possession of the 1st party was confirmed. Feeling aggrieved, the 2nd party moved in revision and within a few days from the filling of Criminal Revision, the occurrence, with which we are presently concerned, took place. Both the parties belong to the same village-Dhabari.

(4) IT is an admitted position, that when Iswar Majhi, Mariram and others went near Mariyar Said to stop the cultivation by Ramchand and his men, they found accused Janaki and Sunil ploughing, Sudhir scattering cow dung and Ramchand sowing seeds in the disputed land. Salitosh was supervising the cultivation. It is in evidence that the complainant party stood on the ridge of Tushu Majhis land and the accused were to the further east.

(5) THIS brings us to the central problem, lamely, how did the occurrence start and how did escalate. Both the parties have accused the other being the aggressors and while according to prosecution the accused assaulted and chased the nembers of thet complainant party away, the defence is that the accused after being assaulted an towards west for fear of their lives. Although both the parties have not divulged the whole truth, from the evidence on record it can be legitimately referred that the accused persons started the assault on Lakhinder, Iswar, Mariram and others forcing them to retreate. It may be recalled that allthough Sunil, Sudhir, Santosh, Ramchandra md Janaki were engaged in ploughing, sowing seeds etc. in the disputed land, Sunil, Sudhir and janaki did not receive any injury and appellant Santosh received only one lacerated wound and Ramchands injuries consisted of two minor lacerated wounds and two swellings only. There was no fight on Mariyar Baid because the 1. 0. P. W. 29, could not trace marks of blood in that land. On the contrary the fact that the complainant had to retreat towards further west and the major assaults on deceased Mariram, Iswar, Baruni Mahato, Baruni Majhan and others took place on Mahesh Majhis land strongly suggest that the prosecution version in that regard is true. The Investigating Officer, B. K. Gorai, P. W. 29, collected blood-stained earth and control earth from different places of Mahesh Majhis land under the seizure list Ext. 2. Four arrows and pieces of brickbats were also seized from that land. If the accused had actually to run away but of fear they must have moved eastwards because the complainant party was standing to the west of Mariyar Baid on the land of Tushu Majhi. The accused must have chased the complainant party otherwise they would not come upon the land of Mahesh Majhi which was to the west of Tushus land. It transpired during trial that on hearing hallah Baruni Majhan, P. W. 10, rushed out of the village and came to the rescue of her husband. If the accused were fleeing away towards their village then Baruni must have been intercepted midway. Accused Bisweswar in his statement under Section 313, Cr. P. C. has stated that hearing hallah he went running from the village. It is not probable or believable that while the other accused were being chased, accused Bisweswar would venture to proceed towards the troubled spot. From the evidence of Dr. M. Mandai, P. W. 23, who examined all the injured on either side, it transpired that Dukhu received one perforated injury on the left bullock and Lakhinder, P. W. 1, had injuries-both perforated and lacerated on the right side of the back and there was also swelling on the back. The manner of assault on deceased Iswar and Mariram and the injuries sustained by them on the legs, ankles, knee-joints, heads and palms arc supportive of the prosecution case that it was the accused who attacked and chased the prosecution party and while retreating, the deceased were floored and assaulted. Mariram must have tried to ward off the blows with hands and thus injured his palms.

(6) LAKHINDER P. W. 1, Sohan P. W. 5, Nemai, P. W. 8, Bamni Mahato P. W. 9, Baruni Mejhan P. W. 10, Ajit Mahato P. W. 11, Haripadap. W. 13, and Aswini P. W. 18 claim to have witnessed the occurrence. It appears that Aklu Mahato, P. W. 4, Sahebram and deceased Mariram were three brothers. P. W s. 5,9, 14, 18 and 19 come from the branch of Aklu and his brothers. P. Ws. 1, 7, 10 and 12 belong to the branch of Iswar Majhi, since deceased. Undoubtedly these prosecution witnesses are close relations, but most of them were interested in Mariyar Baid and as such had community of interest. They are the most probable and natural witnesses and the injuries on their persons are the best evidence in proof of their presence in the scene of occurrence. The F. I. R. was lodged within 1-1/2 hours and Lakhinder P. W. 1, has been substantially corroborated by the statements in the F. I. R. P. Ws. Sohan, Nemai, Bamni Mahata, Baruni Mejhan, Ajit and Haripada have categorically stated that these appellants along with Janaki, since acquitted, conjointly assaulted Iswar and Mariram with tang is and sword. The medical evidence of Dr. Mondal P. W. 23 and the post mortem report of Dr. Ghosh, P. W. 22, are wholly consistent with the ocular evidence as to how the deceased received the injuries and what weapons were used by the assailants. Deceased Iswar Majhi received as many as thirteen injuries on his person, most of which were incised and directed against legs, feet, ankles and knee-joints. Similarly Marirams injuries consisted of incised wounds on the legs, palms and scalp. Both the deceased also received lacerated wounds which might have been caused by lathi blows. The ocular evidence corroborated by medical evidence unmistakably established the prosecution version that most of the blows were dealt with while the deceased were lying on the ground unarmed. It is true that some of the accused also received injuries on different parts or their bodies and the learned Counsel for the appellants was critical about the failure of the prosecution to explain those injuries. It appears that the members of the complainant party were also armed. But they used mostly bows, arrows and lathis. It cannot be disputed that there was a fight between the parties during which arms were used. As already stated the accused persons were the aggressors and they outnumbered the complainant party. If in course of such fighting some of the accused had been injured, it must be the consequences of their own misdeeds. In such state of things the prosecution is not bound to explain the injuries sustained by the accused.

(7) IT is true that there are certain omissions and contradictions in relation to the statements made before the police and those made before the Court. It must not be overlooked that most of the alleged eye-witnesses were examined by P. W. 29 on the date of occurrence and it is possible that the tension in their minds, injuries on their persons, and the shock infused were responsible for such omissions or contradictions. It may also be recalled in this connection that most of the eyewitnesses are illiterate rustic men and they came to depose about four years after the occurrence.

(8) IT appears that nine persons on the side of the accused had received injuries. Out of them only accused Sashi, Bhatar and Chutu were referred to Purulia Sadar hospital. So also three injured On the prosecution side were referred to the same hospital. But it would be important to note that while on the prosecution side six persons received incised wounds, on the side of defence only two persons received such injuries. On comparison of the injuries sustained by the members of either side it is possible to visualize that while the accused party dealt blows with sharp cutting weapons from close range, the prosecution party tried to cotter attack with bows, arrows and lathis from a little distance and hence some of the accused had received perforated injuries either on the chest or on the lower part of the back. It is in evidence that the complainant party comprised 13/14 members and they were also armed. But the defence party outnumbered the adverse party and they were armed with more deadly weapons. For these reasons the magnitude of the injuries sustained by some of the members of the complainant party was not comparable to those sustained by the adverse party. The injuries of the latter were grave in consequence of which two persons were killed.

(9) SUCH being the position, the question which remains to be decided is whether the appellants can plead exercise of right of private defence within the meaning and scope of Sections 96 to 100, Indian Penal Code. All though the defence did not specifically take such a plea, we feel it our duty to enter into that question particularly when there was fight between the parties and several persons on either, side received injuries. Law permits protection of private persons and property against unlawful attacks on persons or property. But the exercise of this right is subject to two reservations, namely

(1) violence used must be in proportion to the injury to be avoided and that it must not be employed for the gratification of malicious feelings,

(2) and that there must be reasonable apprehension of imminent danger to life or property or both. Bearing the above fundamental principles with regard to the exercise of the right in mind, we find that the complainant party was not the aggressor and that they never trespassed into Mariyar Baid and no assault took place on tllatland. There was no damage to the plough, cattle or seeds. The complainant party was at the receiving end and the appellants and others chased them westwards. There was therefore, no apprehension as to the danger to Mariyar Baid. As soon as the mis-creams left Mariyar Baid the right of private defence of property ceased. The next question which merits consideration is whether imminent danger to lives still existed and whether the appellants and others were still within their rights to insist blows on the adverse party just for the protection of their lives. As stated earlier both the deceased were lying on the land of Mahesh Majhi. Nobody has stated that they were armed at that time. It would be disastrous to hold that there was apprehension of imminent danger to life from the side of the deceased. The number of injuries sustained by both the deceased is a pointer to the fact that the assault was in progress on those two persons for several minutes unabated, and the employment of such force was not only out proportion, the same was directed towards the gratification of malicious feelings by liquidating the two heads of the complainant party. In such a situation the right of private defence did not and could not extend to the inflicting of more harm than it was necessary to inflict for the purpose of defence.

(10) INCIDENTALLY it would be appropriate to look into the conduct of the appellants as revealed during their examination under Section 313, Cr. P. C. The appellants Lachu and Byakaran alias Haripada have stated that they were not present at the alleged place of occurrence. Lachus plea has been disproved by the injuries on his person. Haripadas presence has been t9stified by more than nine witnesses and he is a named accused in the F. I. R. Appellant Bisweswar alias Bishus version is that on hearing hallah he came out of the village. It is highly improbable that Bisweswar would venture to proceed towards the troubled spot where fighting between the panics was going on. Moreover, the injuries on his person strongly suggest that he must have panicipated in the occurrence. Appellant Santosh gives a completely different version. His statement is that while the complainant party attacked and assaulted his father Ramchandra, they were frightened and ran towards the village and the villagers saved them. No villager has come to say that he came to the rescue of Santosh and others. If the complainant party aggressively attacked and assaulted Santosh and his father, they would not have been spared with such minor injuries. During the cross-examination of so many prosecution witnesses it was never suggested that villagers came to the rescue of Santosh and others. Significantly though, none of the appellants pleaded exercise of the right of private defence.

(11) THE Investigating Officer searched the house of appellant Santosh and seized two lathis stained with blood, one tangi and six arrows under a seizure list Ext. 3/2. The seized articles have been marked Exts. V and VII collectively. Although it could not be proved that the lathis were stained with human blood, it is one of the circumstances, which considered along with other evidence arc pointers to the guilt of the appellant Santosh. Added to this, some of the accused were found absconding for sometimes. The malice of Santosh is manifest from the fact that he even implicated deceased Iswar in the counter case. We arc satisfied that the appellants inflicted severe blows on the persons of the deceased and as Dr. R. C. Ghose, P. W. 22 has opined, death was due to the effects of the injuries ante-mortem and herbicidal in nature. From the nature of the injuries and the weapons used it is evident that all the four appellants shared common intention of killing Iswar and Mariram.

(12) THE learned trial Judge brought the charge under Section 302, Indian Penal Code down to one under Section 304, Part I and for the common intention shared by all the appellants, Section 34, I. P. C. was brought into existence. The reasons have also been given for such a decision. We find no reason to interfere with the order of conviction and sentence passed by the learned Trial Judge.

(13) IN the light of all that has been discussed above, the appeal is dismissed. The order of conviction and sentence impugned is upheld. All the appellants are found guilty of the offence punishable under Section 304, Part I, Indian Penal Code and they are directed to surrender their bail bonds forthwith to serve out the sentence. Lower court records be sent down at once.