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CASE NO.: Appeal (crl.)  1430-1431 of 2003

PETITIONER: Bishna @ Bhiswadeb Mahato & Ors.                         

RESPONDENT: State of West Bengal                                     

DATE OF JUDGMENT: 28/10/2005

BENCH: S.B. Sinha & R.V. Raveendran

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       Bhadsa is a small village situate at a distance of 12 kms. from the  district headquarters known as Purulia in the State of West Bengal.  On  1.12.1982, Prankrishna, deceased and Chepulal (PW-14) heard some sounds  coming from the side of their Shivatara land situate in the said village.  They  informed their brother Nepal Mahato (PW-25) about the same.  They also  informed Haradhan Mahato (PW-2) and who in turn informed Subhas  Mahato (PW-13).  When the three brothers were proceeding towards their  land, Sambhu Mahato (PW-1) met them on the road.  When they reached  near the land in question, being  Plot No. 550, they found some persons were  engaged in cutting of paddy therefrom.  Nilkantha, Bhiswa alias Bishna,  Manmatha alias Mathan, Kalipada,  Bulu, Patal,  Lalbas, Haralal, Ramanath,  Majhi, Chinbas alias Srinibas (Accused Nos.1 to 11 respectively) were  standing on the ail (Ridge on the agricultural land). The accused persons  were variously armed.  They were asked not to cut paddy but did not pay  any heed thereto.  Altercations started.  All of a sudden, Bulu (Appellant No.  3) threw an arrow which struck Nepal Mahato (PW-25).  They also exhorted  shouting "Marsaladiga".  The complainant party retreated to some extent.   They were chased near the bed of tank called ’upper bundh’.  Nepal Mahato  (PW-25) was surrounded by the accused.  He was hit on his left leg with  tabla by Mathan whereas Haralal hit him with a tabla on his back.  Bhiswa  (Appellant No. 1) assaulted on his head with a lathi.  He fell down on the  ground whereupon Patal struck him with a sword causing injury on his hand.   Ramanath and Nilkantha assaulted him with lathi.  Prankrishna, deceased  rushed to save his younger brother whereupon he was assaulted by Mathan  on his right leg with tabla and Bhiswa with lathi.  Sambhu Mahato protested  to such assault on the deceased whereupon Lalbas assaulted him with a lathi.   Kalipada (Appellant No. 2) and Nilkantha and Bhiswa (Appellant No. 1)  exhorted that he should be finished whereupon Ramanath took a tabla from  Haralal and struck the deceased at his neck.  The deceased succumbed to his  injuries.  Further, Bulu threw arrow which struck Chepulal at his head and  Kalipada gave order to finish him whereupon Nilkantha assaulted Sambhu  (PW-1) and Chepulal (PW-14) with lathies in their hand.

       Sambhu Mahato (PW-1) came to the district town of Purulia to hire a  vehicle for shifting the injured persons to Purulia Sadar Hospital.  In the  meantime, the officer-incharge (PW-28) of the Police Station, Purulia  received a telephonic message that some incident had taken place in the  village.  He  entered the said information in the diary being G.D. Entry No.  17.  He thereafter reached the village round about at 11.40 a.m. and noticed  the dead body of Prankrishna, deceased lying at eastern extremity of the said  tank.  J.L. Pahari, a sub-inspector of police who accompanied the officer- incharge held the inquest on the dead body.  Nepal Mahato (PW-25), who  was lying unconscious, was brought to Purulia Hospital in the hired vehicle.   He was accompanied by Chepulal Mahato.  Nepal Mahato was admitted in  the said hospital.  Sambhu Mahato and Chepulal thereafter went to the police

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station and lodged a first information report.

       Upon completion of the investigation, 11 persons named in the first  information report were chargesheeted for commission of various offences.   

       It is also not in dispute that one of the accused, namely, Mathan also  sustained injuries on his person.  The defence of the Appellants and other  accused was that they were the owner of the plot No. 550 of the said village  wherein as one of them was attacked and sustained injuries, they exercised  the right of private defence.   

       The learned Trial Judge acquitted the Appellants and others for  commission of all offences except one under Section 148 of the IPC inter  alia holding that : (i) the eye-witnesses cannot be relied upon as injury of  Mathan (Accused No.3) had not been explained by the prosecution; (ii) and  there was no evidence of any overt act by Kalipada; and (iii)  the prosecution  had failed to fix the responsibility for the death of Prankrishna and injuries  to Nepal, Chepulal, Siju and Sambhu, on any particular accused.   Consequently the Trial Court sentenced all the  accused to undergo rigorous  imprisonment for 3 years under Section 148 IPC.

The appeals were preferred thereagainst both by the State of West  Bengal as also by all the accused  (except Ramanath, who it is stated has  absconded). The High Court in its impugned judgment, on the other hand,  held that there is no reason to disbelieve the evidence of the eye-witnesses  and in particular the injured witnesses.  Lalbehari Mahato (PW-16) and  Ramdulal Mahato (PW-19) came immediately after the occurrence and as  such their presence at the scene of the occurrence cannot be disputed.   Incitement by Kalipada was found to be existing and there was sufficient  evidence in support thereof.

       The High Court allowed the State’s appeal. In addition to upholding  the conviction and sentencing of all the accused under Section 148 IPC, the  High Court convicted the Appellant Kalipada under Section 302 read with  Section 109; Mathan, Bhiswa and Ramanath under Section 302 read with  Section 34; and sentenced the four of  them to undergo rigorous  imprisonment for life.  Mathan, Haralal, Ramanath and Patal were convicted  under Section 326 read with Section 34 of the IPC and were sentenced to  undergo rigorous imprisonment for five years.  Bulu was convicted under  Section 324 read with Section 34 and was sentenced to undergo  rigorous  imprisonment for two years.  Lalbas was convicted for commission of an  offence under Section 325 of the IPC and was sentenced to undergo   rigorous imprisonment for three years. Patal was convicted of an offence  under Section 324 and was sentenced to undergo rigorous imprisonment for  two years.  The appeal preferred by the Accused from the judgment and  conviction under Section 148 of the IPC was dismissed.  In retard to Mahji  and Chinibas, the decision of the Trial Court was not disturbed.

       The accused Nilkantha passed away during the pendency of the appeal  before the High Court.  After the judgment of the High Court,  Mathan has  also died.  Ramanath did not prefer any appeal against the judgment of the  trial Court or the High Court, nor did Mahji and Chinibas.

Bishna, Kalipada, Bulu, Patal, Lalbas  and Haralal (Accused Nos. 2,  4, 5, 6, 7 & 8) who have been convicted by the High Court are before us.

       Before adverting to the rival contentions, we may notice the admitted  facts, which  are:

       Plot No. 550 is situate in the village Bhadsa measuring 1.05 acres.  It  belonged to Kartick Chodhury.  Indisputably,  0.65 acres of the said land had  been purchased by the complainants party and they were in possession  thereof.  In respect of balance 0.40 acres, the accused persons laid a claim  that they had been cultivating the same as bargadar of the original owner.   The said  0.40 acres of land was purchased by Neelakanta, Manmath and

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Bhiswa under a sale deed executed by Kartick Chodhury.

       It is also not in dispute that proceedings under Section 145 of the  Code of Criminal Procedure (for short "the Code") was initiated before an  Executive Magistrate at the instance of the complainants and he had passed  an order that they were to continue in possession of the land in question.  On  a criminal revision having been filed by one of the Appellants, the said order  was set aside and the matter was remitted for a fresh finding in accordance  with law.

       The finding of fact arrived at by the courts below is that there was no  demarcation between the land purchased by the complainants and the land  purchased by the Appellants, which the complainants were claiming to have  been in their possession.  The complainants cultivated the said land and grew  paddy thereupon.

Enmity between the two groups about the possession of the said land  is also not in dispute.  A concurrent finding of fact has been arrived that the  allegations made against the Appellants under Section 148 of the IPC  for  forming an unlawful assembly has been established.

       Despite the same, Mr. Jaideep Gupta, learned senior counsel  appearing on behalf of the Appellants would submit that the said finding  should not be sustained by us as the place of occurrence had not been  established by the prosecution, as according to the Appellants the incident  had taken place in their own land, namely, plot No. 674 and 669.

       Mr. Gupta would urge that  the prosecution furthermore  had not been  able to prove that Joyram, father of Prankrishna, Chepulal Mahato and Nepal  Mahato, was a bargadar in relation to the 40 decimals of land and cultivated  the same.  Joyram has also not been examined as a witness.   

       We do not find any reason to arrive at a different finding that Joyram  and his sons were not in possession of the land in question as bargadar and  had cultivated the same.

       In relation to commission of the offences under Section 302 and  Sections 323 to 326 of the IPC, Mr. Gupta would urge:

(i)     The witnesses’ account were unnatural insofar as their statements are  almost photographic in nature which should not be accepted as admittedly  they have run away from the place of occurrence being in a state of fear.   The description of the incident given by the witnesses is also suspect as  some of the statements made by them had not been disclosed to the  investigating officer as would appear from the evidence of the investigating  officer. (ii)    The prosecution having not explained the injuries of the accused  Mathan, adverse inference must be drawn against the prosecution in view of  the decision of this Court in Lakshmi Singh and Others Vs. State of Bihar  [(1976) 4 SCC 394]. (iii)   The evidence of the Gandhi Mahatani (PW-22) suffering from  serious  infirmities cannot be relied upon. (iv)    There is no sufficient evidence to show that Kalipada incited any  person to cause death of Prankrishna, deceased nor any evidence has been  brought out to establish that any assault took place in furtherance of a  common intention.

(v)     The judgment of the High Court suffers from a serious infirmity  insofar as it held that before proving the contradictions it was necessary for  the defence to put the said statements to the prosecution witnesses while  cross-examining them particularly in view of the fact that a suggestion was  given that they had been deposing falsely.  Section 145 of the Evidence Act,  in a situation of this nature, will have no application inasmuch as what was  sought to be established by the defence was that the witnesses had made  statements in the course of the trial which had not been stated by them

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before the investigating officer and, thus, the defence did not want to bring  on records any contradictions made by the witnesses.

(vi)   The High Court further fell in error as it failed to take into  consideration that the prosecution witnesses approached the place of  occurrence from the eastern side whereas the accused were chasing them  from the western side, and as such they were attacked, they must have run  away towards the east  but yet the deceased was found near the upper bundh  which admittedly was situated in the northern side of the paddy field.  Our  attention in this behalf has been drawn to the statements of Sambhu Mahato,  Ambuj, Subhas Mahato who stated that they had been running towards  south.   

(vii)   A further infirmity has been committed by the High Court in arriving  at its finding without considering the fact that the injuries on the person of  Mathan had not been explained despite statements made in the first  information report to the effect that one or two members of the complainants  side had lathi with them and might have assaulted some of the aggressors in  order to save their lives, but the same could not have been relied upon  inasmuch as at the trial all the witnesses denied thereabout.   

(viii)  The seriousness of injury on the person of Mathan is evident from the  statements of the investigating officer that he was lying unconscious so  much so arrangements were made to record his dying declaration and in fact  a dying declaration was recorded by a Magistrate on the night of 1.12.1982.   A right of private defence, thus, could validly be exercised by the Appellants  and others.

(ix)     So far as Kalipada is concerned, there is nothing on records to show  that he inflicted any blow on Prankrishna, deceased.  He was not involved in  any land dispute between the parties and, thus, could not have derived any  benefit therefrom.  There was no allegation that he had been leading the  group.  He did not make any exhortation.  At the first instance and the  exhortation "finish the salas" as ascribed to him by the eye witnesses did not  find place in the first information report. In any event, no blow appears to  have been struck on the deceased after Kalipada made the said exhortation.

(x)     At all events, even if the entire prosecution evidence is accepted, the  conviction could have been only under Section 307 or 304 and not under  Section 302  

(xi)    So far the Appellant, Bhiswa, is concerned, the prosecution has  merely  established that he inflicted a blow on Prankrishna on his leg which  was not the cause of his death and as such that no common intention could   have been formed at the spur of the moment by him and other accused as  regard  murder of Prankrishna.

Mr. Tara Chandra Sharma, learned counsel appearing on behalf of the  State, on the other hand, took us through the evidence of the witnesses and  would contend that the reasonings given by the Trial Court in not relying  upon the eye-witnesses are based up conjectures and surmises as well as on  misreading of evidence on record inasmuch as:

(i)     the prosecution witnesses are natural and truthful and they have given  the true version of the occurrence; (ii)    non-explanation of the injuries on the accused (Mathan alias  Manmath) by the prosecution by itself may not affect the prosecution case in  its entirety, particularly, when the evidence led by the prosecution is  absolutely clear and cogent; (iii)   the prosecution case is consistent with the facts disclosed in the first  information report.  During investigation, the weapons of assault were  seized, blood-stained earth from the place of occurrence was recovered and  the evidence of the doctors who held the autopsy as also those who  examined the injured eye-witnesses, namely, PW-1, PW-14, PW-18 and  PW-25 fully supported the prosecution case;

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(iv)    the Trial Court wrongly excluded the evidence of Sambhu Mahato  (PW-1), Subhas Mahato (PW-13), Chepulal Mahato (PW-14), Siju Mahato  (PW-18) and Nepal Mahato (PW-25) in arriving at a finding that Kalipada  did not incite any person to cause the death of the deceased which is  perverse in nature.  It was submitted that before the evidence of the  prosecution as regard improvements made by them from the statements  made under Section 161 of the Code of Criminal Procedure can be  challenged, it was incumbent upon the defence to confront the prosecution  witnesses therewith in view of Section 145 read with sub-section (3) of  Section 155 of the Evidence Act.  As Kalipada was carrying a gun whereas  other accused persons were armed with various deadly weapons, namely,  lathi, tabla, bow, arrows and sword and as such the judgment of the High  Court be faulted.     

       The basic fact of the matter is not in dispute.  Presence of all the  prosecution witnesses except PW-22 is not seriously disputed.  The only  criticism levelled against the eye-witnesses including injured witnesses is :  (i) that of graphic description of the incident has been given by them; and  (ii)  that they retreated towards east and the incident took place towards  south of the plot in dispute.

       It is also not in dispute that as regards injury on the person of accused  Mathan, a counter-case was filed.  Strangely enough, the defence had not  brought the said first information report on record.  The said counter-case is  said to be pending trial.  The prosecution in this case examined 32  prosecution witnesses.  PW-1, PW-14, PW-18 and PW-25 are injured eye- witnesses whereas PW-2, PW-3, PW-13 are eye-witnesses.  As the  testimony of PW-22 is disputed on the ground that she could not have been  an eye-witness, it may not be necessary to the consider the same.

       The death of Prankrishna and the injuries sustained by the prosecution  witnesses have indisputably been proved by Dr. D.L. Kar, who examined  Chepulal Mahato (PW-14), Dr. S. Chatterjee, who conducted post mortem  on the body of Prankrishna.  Dr. Ajoy Kumar Pakrashi (PW-31) who was on  emergency duty on that day examined Nepal Mahato (PW-25).  He   indisputably was admitted as an indoor patient in Purulia Sadar Hospital,  under the supervision of Dr. Amal Kumar Ghosh, from 1.12.1982 and was  discharged from the hospital on 24.12.1982.  Dr. Amal Kumar Ghosh could  not be examined as after he left the government service his whereabouts  were not known.  Dr. S. Chatterjee (PW-6) proved the handwritings of Dr.  Pakrashi and Dr. Amal Kumar Ghosh from the records of the hospital.   

       Sambhu Mahato (PW-1) gave a categorical statement inter alia to  prove the prosecution case in the following terms:

"The alleged / incident took place on 1.12.82 at about  8/8.30 A.M. in Mouza Bhadsa within Purulia (M) P.S.  I  was present in the vegetable field near my house at  Bhadsa.  I heard a cry coming from the western side of  our village.  I came to village road.  I met Nepal,  Prankrishna and Chepulal on the road.  I heard from them  that Nilkantha Mahato and some other persons were  cutting paddy in their barga land.  They requested me to  protest against it.  Accordingly, I accompanied them to  their barga land mouza Bhadsa.  I found many persons  cutting paddy in the barga land of Joyram Mahato.  I  found there Nilkantha Mahato, Mathan Mahato, Bhisma  Mahato, Haralal Mahato, Ramanath Mahato, Patal  Mahato, Srinibash Mahato. Lalbas Mahato, Kalipada  Mahato, Bulu Mahato and Majhi, Sahis being armed with  lathi, tabla, arrows etc. present near the barga land.   Nilkantha, Bishma, Srinibash, Ramanath Majhi Sahis had  lathi is in their hand.  Haralal and Mathan had tabla.   Patal had sword.  Bulu had bow and arrows, Kalipada  Mahato had gun.  Some labourers were cutting paddy.  I

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cannot say their names.  We protested against such  cutting of paddy.  An altercation started.  Then Bulu  threw arrow.  It struck Nepal.  He was then standing on  the barga land.  The arrow struck the mouth of Nepal.   Blood was coming out from the mouth of Nepal.  Then  all persons named above, shouted ’maro saladiga’.  These  persons then chased us.  We retreated to some extent.   There is a tank namely ’uppar bundh’ contiguous to the  barga land.  Nepal was gheraoed at the bed of the tank by  these persons.  Mathan then struck Nepal with a tabla  causing injury at his leg.  Nepal fell down on the ground.   Patal struck Nepal with a sword causing injury at his  hand.  Haralal struck Nepal with a tabla.  Ramanath  assaulted Nepal with a lathi.  Prankrishna, the brother of  Nepal, came to the rescue of Nepal.  Prankrishna was  assaulted by Mathan with tabla at his leg.  Bhishma  assaulted Prankrishna with lathi.  I protested against the  assault on Prankrishna but Lalbas assaulted me with lathi  on my head causing bleeding injury therein.  Bulu threw  arrow.  It struck Chepulal at his head.  Kalipada gave  order to finish him.  Nilkantha assaulted Chepulal with  lathi on his head.  Prankrishna died at the spot due to  head injury.  I returned home.  On my way I met  Lalbehari, Nabin and others.  I narrated the incident to  them.  Then, I again returned to the spot with Lalbehari,  Nagen and others.  I noticed injury on leg and neck of  Prankrishna, who was found dead.  Nepal was lying  unconscious."

       Chepulal Mahato (PW-14) was son of Joyram, who was a bargardar of  plot No. 550.  Joyram died during trial and as such he was not examined.  He  had lodged a first information report as the accused persons had cut away the  paddy from their barga land on the previous day.  He stated:

"My father, Jairam died during the pendency of this case.   He died due to old age.  Tangi is also known to us as  tabla.  Prankrishna was my elder brother.  Prankrishna  had been murdered.  The incident took place on 15th  Agrahayan.  5/6 years ago at about 8 a.m.  On the day of  incident, at morning I accompanied my brother, Nepal, to  our paddy field in Sibotoor land in Mouza, Bhadsa to  inspect as to what extent the paddy of that land had been  cut by Nilkantha and others on the previous day.  It was  then 6 am.  We returned to our home from the field.  I  heard a hulla while I was in the house I saw from our  kitchen garden that many persons were present in our  Sibottor land which was cultivated by us as bargadar.   These persons were cutting paddy.  I informed the matter  to Nepal and Prankrishna.  I came out of the house with  my brothers and met Digam, Ambuj, Dashrath,  Haradhan.  My brothers asked these persons to go to our  barga land as paddy was being cut there.  While we are  proceeding to the field we met Subhas.  Subhas also  accompanied us on our request.  My uncle, Sibu also  followed us.  We reached our field.  Nilkantha, Biswa  and other were cutting paddy.  We asked them not to do  so.  The paddy was being cut by hired labourers while  Nilkantha Biswa and others were on the ail on the land.   We asked the labourers also not to cut paddy.  An  altercation started.  Then Bulu Mahato threw arrow  towards us which struck mouth of Nepal.  Nepal was then  on our land.  Nilkantha and others then shouted "Mar  Salake".  We retreated, but Nilkantha and his  companions threw arrows towards us.  Nilkantha and  others gheraoed us on the bank of Uppar Bundh.  Mathan

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struck Nepal with tabla on his leg.  Patal struck Nepal  with sword.  Nepal fell down on the ground.  Haralal  struck Nepal with sword.  Biswa assaulted Nepal with  lathi and so also Nilkantha.  Prankrishna left to rescue  Nepal. But Mathan struck Prankrishna with tabla at his  right leg.  Biswa assaulted Prankrishna with lathi on left  leg.  Kalipada was present.  Prankrishna fell down on the  ground.  Kalipada gave order to finish.  Ramanath took a  table from Haralal and struck Prankrishna at his shoulder.   I came to the rescue of my brothers, but Nilkantha  assaulted me with lathi on my head.  Bulu threw an arrow  to me.  It struck my hand.  Sambhu also protested against  the assault.  But, Lalbas assaulted Shambhu with an iron  rod.  Patal, struck Siju with sword.  We retreated to some  extent due to this assault.  After assault, the accused fled  away."

       The evidences of other two injured witnesses Siju Mahatao (PW-18)  and Nepal Mahatao (PW-25) are to the same effect.

       It is noteworthy that Nepal Mahato in his cross-examination described  the history of the ownership of the land and/ or bargadarship of Joyram in  the following terms:

"In May, 1980 we have purchased the remaining portion  of plot no. 550 from Kartick Chowdhury.  My father  applied for barga recording on 12.5.80.  My father  applied for such recording in respect of plot nos. 669,  674 and entire of 550.

***             ***             ***

These three plots are contiguous\005In 1980 we three  brothers and father were in the same mess.  Nagen  Mahato, Paresh Sahis are aware of the fact that we grew  paddy on these three plots in 1980.

               ***             ***             ***

Not a fact that the incident did not take place on plot no.  550.  Not a fact that accused were cutting paddy on their  purchased land on plot nos. 669 and 674 on the day of  alleged incident.  Not a fact that on the day of incident  we forcibly resisted the accused as the accused cut paddy  on our barga land on previous day.  Not a fact that we  went to the case land with prearranged plan."

       The fact that evidence of other independent witnesses also points out  the overt acts played by each one of the accused is also not in dispute.   Nothing has been brought to our notice to show that the presence of the eye- witnesses who were independent witnesses are wholly unreliable.  Two of  the injured witnesses were sons of Joyram.   

       Besides the eye-witnesses, two more witnesses, namely, Lalbehari  Mhato and Ramdulal Mahato, were examined by the prosecution being  PWs.16 and 19.  Tthey came to the place of occurrence immediately after  the incident had taken place and found the dead body of  Prankrishna and  injured Napal in an unconscious state.  Lalbehari Mahato (PW-16) found the  mother of Prankrishna and Nepal weeping as also  Chepulal and Shambhu  present there.  He heard about the entire incident from Chepulal including  the role played by each of the Appellants and others. PW-19 also  corroborated  the testimonies of the prosecution witnesses.  He heard about  the incident from Subhas Mahato.

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The evidence of these two witnesses corroborate the evidence of the  prosecution witnesses as also the allegations made in the F.I.R.  Their  evidence is admissible in terms Section 6 of the Indian Evidence Act.  The  evidence of  other independent witnesses who are not inimically disposed of  towards the accused is sufficient to concur with the findings of fact arrived  at by the High Court.       

Mr. Gupta made strong criticism as regard the following findings of  the High Court :

       "From the evidence discussed above we have seen  that almost all the eye-witnesses have named Mathan and  Bishma as having assaulted Prankrishna with tabla and  lathi respectively.  So far as the accused, Ramanath, is  concerned, the PWs. 2, 3, 13, 14, 18, 22 and 25 have  stated that when Prankrishna fell down on being  assaulted by Mathan and Bishma, the accused  Ramanath  took a table (Tangi or spear is called Tabla by these  people) from Haralal and assaulted Prankrishna on his  shoulder (some say "shoulder", some say "neck")  causing bleeding injury there.  It is to be noted that in the  cross-examination of the PWs. 2, 13, 14 & 18, against  such statements of them they have been asked if they  made such statements to the I.O., when all of them have  answered in the affirmative.  But as against such positive  statements no further cross-examination has been made.   What is done by the defence is putting the same question  to the I.O. when he has said that no such statement was  made by these witnesses to him.  But this answer of the  I.O. will not have any legal effect in favour of the  defence, because in such a case the legal requirement is  that the defence should have to cross-examine this  statement by first giving a suggestion to such a witness to  the contrary effect that he has not made any such  statement to the I.O.  and then would put the question to  the I.O. and take his answer.  Otherwise the statement  made by the witnesses concerned in his cross- examination in positive from will confirm to be taken as  admitted.  But, what is more in support of the prosecution  in this regard is the fact that the evidence of P.W.3,  Ambuj, P.W.22, Gandhi Mahatani, and P.W.25 Nepal  Mahato, on this point has not been challenged in the  lest\005"    

       Section 145 of the Indian Evidence Act is attracted when a specific  contradiction is required to be taken; but we may point out that in certain  cases omissions are also considered to be contradictions [See Shri Gopal &  Anr. Vs. Subhash & Ors. [JT 2004 (2) SC 158]; Sekar alias Raja Sekharan  vs. State Represented by Inspector of Police, T.N.; and State of Maharashtra  vs. Bharat Chaganlal Raghani and Others [ (2001) 9 SCC 1, para 51]  

       But It is not necessary for us to dilate on the said question in this case.   The High Court noticed that the evidence of  PW-3. Ambuj, and PW-25,  Nepal Mahato, had not been put to test of cross-examination, in that behalf.   It  found that Ambuj has not been subjected to any cross-examination at all  in regard to his statement that Ramanath took a tabla from Haralal and with  it hit the deceased.  As we have not placed any reliance on the statement of  PW-22, we need not refer to her statement, although even her statement in  this behalf was not challenged.  As regard PW-5, the High Court noticed that  it had only been put to the I.O., PW-28 in the cross examination, stating  :

"\005P.W.25 did not state before me that Kalipada issued  orders for finishing the complainant’s party prior to  Ramanath assaulted Pran Krishna with tangi on his

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shoulder".     

When an incident takes place in a village in the morning and that too  at the harvesting time, presence of the villagers and in particular those who  claim right, title, ownership as well as possession of the land in question is  not unnatural.  An occurrence took taken place on the previous day.  The  witnesses did not say that they had run away from their land to some other  place.  They merely said that they retreated to some extent and thereafter  they were chased.  The assault on the deceased as also other prosecution  witnesses took place almost at the same place.  The investigating officer  found the dead body of Prankrishna as also Nepal Mahato in an unconscious  condition near about the same place.

The presence of the accused with deadly weapons at the place of  occurrence and the fact that they had been harvesting the paddy grown by  the complainant being not in dispute, there is absolutely no reason as to why  the account of the prosecution witnesses should be discarded particularly  when sufficient material have been brought on record to show that despite  the fact that they retreated to some extent, they were chased and caused  death to Prankrishna and injuries to others which would lead to only one  conclusion that the said act was in furtherance of their common intention.

It is not, therefore, possible to accept the submission of Mr. Gupta  that we should ignore the testimonies of all the eye-witnesses including the  injured witnesses.

       Considered as a whole, we find the evidence of the prosecution  witnesses to be clear and cogent.  They are consistent and creditworthy.   Some of the witnesses, as noticed hereinbefore, are independent and  disinterested.  There may be certain omissions on their part but if considered  as a whole and in particular with the medico-legal evidences, we do not find  any reason to disbelieve the same.

       First Information Report, it is well settled,  need not be an  encyclopedic  one.  It need not contain all the details of the incident.

       Furthermore, little bit of discrepancies or improvement do not  necessarily demolish the testimony.  [See Arjun and others Vs. State of  Rajasthan AIR 1994 SC 2507].  Trivial discrepancy, as is well-known,  should be ignored.  Under circumstantial variety the usual character of  human testimony is substantially true.  Similarly, innocuous omission is  inconsequential.

       The testimony of an injured witness vis-‘-vis improvement and  inconsistencies in their evidence as regard part played by each of the  accused may not itself  be a ground to disbelieve the witnesses when having  regard to prove injuries on them it would have been impossible to give a  detail ground of the incident.  [See Navganbhai Somabhai and others Vs.  State of Gujarat AIR 1994 SC 1187]

It has been established that even when the first protest was made,  Nilkantha shouted "Mar Salake" whereupon the prosecution witnesses  retreated and different accused persons chased them with respective  weapons.  Once again, Kalipada gave an order to finish all whereupon  Ramanath took a tabla from Haralal and struck Prankrishna and Prankrishna  succumbed to his injuries.  Subhas Mahato (PW-13) also deposed to the  similar effect that Ramanath took a table from Haralal and assaulted the  deceased on his shoulder whereupon Prankrishna fell down.  PW-14 is also  an injured witness.  PW-14 stated:

"Nilkantha and others then shouted, ’mar salaki’.  We  retreated, but Nilkantha and his companions threw  arrows towards us.  Nilkantha and others gheraoed us on  the bank of Uparbunds.  Mathan struck Nepal with tabla  on his leg.  Patal struck Nepal with sword.  Nepal fell

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down on the ground.  Haralal struck Nepal with sword.   Biswa assaulted Nepal with lathi and so also Nilkantha.   Prankrishna left to rescue Nepal, but Mathan struck  Prankrishna with tabla at his right leg.  Biswa assaulted  Prankrishna with lathi on left leg.  Kalipada was present.   Prankrishna fell down on the ground.  Kalipada gave  order to finish.  Ramnath took a table from Haralal and  struck Prankrishna at his shoulder."

       Siju Mahato (PW-18) who was also an injured witness categorically  stated that Kalipada was present with a gun and Bikal and Kalipada gave  order to finish whereupon Ramanath took a table from Haralal and assaulted  Prankrishna at his neck.  In his cross-examination, Siju Mahato also  categorically stated that Kalipada and Bikal gave order to finish.   

       Another injured witness was Nepal Mahato (PW-25).  In his  deposition before the court he corroborated the prosecution case stating:

"Then Mathan came and struck me at my left leg  with a tabla from back side.  Simultaneously Haralal  struck me with a tabla on my back.  Bhiswa assaulted me  with a lathi on my head.  I fell down on the ground.   Thereafter Nilkantha assaulted me with lathi.  My elder  brother Prankrishna tried to save me.  While he was  trying to come near me, Mathan struck Prankrishna at his  right leg with tabla.  Bhiswa assaulted Prankrishna with  lathi at his left leg.  Prankrishna fell down on the ground.   Kalipada, Nilkantha, Bishwa shouted to finish.   Thereafter, Ramanath took a table from Haralal and  struck Prankrishna at his neck.  I was thereafter assaulted  and lost my senses.  Prankrishna succumbed to his  injuries.  I regained my senses at hospital after 5/6 days.   I was examined by police later on.  I narrated the incident  to police.  I was detailed at the hospital for about 24  days."         Thus, about  incitement by Kalipada,  five witnesses, namely, Sambhu  Mahato (PW-1), Subhas Mahato (PW-13), Chepulal Mahato (PW-14), Siju  Mahato (PW-18) and Nepal Mahato (PW-25), categorically stated the role  played by Kalipada whereafter only Ramanath took a tabla from Haralal and  assaulted Prankrishna at his neck.           Sambhu Mahato (PW-1), Chepulal Mahato (PW-14), Siju Mahato  (PW-18) and Nepal Mahato (PW-25) categorically stated that all the accused  persons shouted "marosaladiga".  

The depositions of the said witnesses clearly establish that the accused  persons armed with deadly weapons went to the plot of complainant party  with a common object to harvest the paddy and when asked not to do so they  were attacked and when they retreated to some extent they chased and  caused injuries to the deceased and other witnesses.  This clearly establishes  that the said act was in furtherance of a common intention.

As the Appellants herein and other accused persons were aggressors,   no right of private defence could be claimed by them particularly when it has  been proved beyond any reasonable doubt that the prosecution witnesses  were first chased and then assaulted.

The prosecution evidences further clearly establish that the land was  in possession of Joyram, who was bargadar of Kartick Chodhury.

The First Information Report, it is well-settled, need not be  encyclopedia of the events.  It is not necessary that all relevant and irrelevant  facts in details should be stated therein.  In the First Information Report, it  has been specifically stated that Kalipada Mahato was standing behind  armed with a gun and when they objected, all the accused persons attacked

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the prosecution witnesses saying ’Maro Saladigokay’ (assault the salas).   The prosecution witnesses in their statements before the court had  categorically stated that Kalipada Mahato also exhorted more than  once.  It  may be true that he had no axe to grind.  He was not claiming ownership of  the plot in question; but there are materials on record to show that the  complainant party and the accused belong to two rival political groups.   Thus, Kalipada Mahato might have a political score to settle, as otherwise it  is difficult to accept that although those claiming the ownership of the land  in question would go there with lathis, he   would be present at the spot with  a gun.

       It must be taken note of that the exhortation by Kalipada Mahato  might be general in character.  From the evidence of the witnesses, it appears  that Kalipada Mahato has used the word ’finish’ only after Prankrishna fell  down having been assaulted by the other accused persons, named by them.                  For the purpose of attracting Section 149 and/or 34 IPC, a specific  overt act on the part of the accused is not necessary.  He may wait and watch  inaction on the part of an accused may some time go a long way to hold that  he shared a common object with others.                  Mr. Gupta laid emphasis on the fact that serious injuries on the  accused Mathan have not been explained.  We may, at this juncture,  only  notice that in the first information report, Sambhu Mahato (PW-1) stated:

"Amongst us, some one might have assaulted some  of the aggressors with lathi in order to save life."

       The witnesses indisputably in their cross-examinations did not accept  the said fact presumably because they were accused in the counter-case,  presumably on the premise that if they admitted the same,  they would have  accepted their guilt.  It is now well-settled that it is not imperative to prove  the injuries on the person of the accused irrespective of the facts and  circumstances of the case including the admitted facts.  Normally such a plea  is entertained when the right of self defence is accepted by the court.   

       The fact as regard failure to explain injuries on accused vary from  case to case.  Whereas non-explanation of injuries suffered by the accused  probabilises the defence version that the prosecution side attacked first, in a  given situation it may also be possible to hold that the explanation given by  the accused about his injury is not satisfactory and the statements of the  prosecution witnesses fully explain the same and, thus, it is possible to hold  that the accused had committed a crime for which he was charged.  Where  injuries were sustained by both sides and when both the parties suppressed  the genesis in the incident, or where coming out with the partial truth, the  prosecution may fail.  But, no law in general terms can be laid down to the  effect that each and every case where prosecution fails to explain injuries on  the person of the accused, the same should be rejected without any further  probe.  [See Bankey Lal and others Vs. The State of U.P. AIR 1971 SC 2233  and Mohar Rai Vs. The State of Bihar [AIR 1968 SC 1281]

       In Lakshmi Singh (supra), whereupon Mr. Gupta placed strong  reliance, the law is stated in the following terms:

"\005It seems to us that taking the entire picture of the  narrative given by the witnesses, in the peculiar facts of  this case, the contention cannot be said to be without  substance. The most important fact which reinforces this  conclusion is that the accused headed by Jagdhari Singh  had absolutely no motive, no reason and no concern with  the deceased or their relations and there was absolutely  no earthly reason why they should have made a common  cause with Ramsagar Singh and Dasrath Singh over what  was a purely domestic matter between Dasrath Singh and  his cousins. It seems to us that having regard to the

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serious enmity which PWs 1 to 4 had against the  appellants headed by Jagdhari Singh, they must have  made it a condition precedent to depose in favour of the  prosecution or support the case only if Dasai Singh PW 6  would agree to implicate the appellants Jagdhari Singh  and others and to assign them vital roles in the drama  staged so that the witnesses could get the best possible  opportunity to wreak vengeance on their enemies. In fact  the prosecution evidence itself shows that to begin with a  dispute started only between Dasrath Singh and  Ramsagar Singh on the one hand and Chulhai Singh and  Brahmdeo on the other and the other accused persons  appeared on the scene later on. This dramatic appearance  of the other accused persons seems to have been  introduced as an embellishment in the case at the instance  of PWs 1 to 4. There are other infirmities in the  prosecution case also which throw a serious doubt on the  prosecution case."

In Dashrath Singh Vs. State of U.P. [(2004) 7 SCC 408], it was stated:

"19\005 It is here that the need to explain the injuries of  serious nature received by the accused in the course of  same occurrence arises. When explanation is given, the  correctness of the explanation is liable to be tested. If  there is an omission to explain, it may lead to the  inference that the prosecution has suppressed some of the  relevant details concerning the incident. The Court has  then to consider whether such omission casts a  reasonable doubt on the entire prosecution story or it will  have any effect on the other reliable evidence available  having bearing on the origin of the incident. Ultimately,  the factum of non-explanation of injuries is one  circumstance which has to be kept in view while  appreciating the evidence of prosecution witnesses. In  case the prosecution version is sought to be proved by  partisan or interested witnesses, the non-explanation of  serious injuries may prima facie make a dent on the  credibility of their evidence. So also where the defence  version accords with probabilities to such an extent that it  is difficult to predicate which version is true, then, the  factum of non-explanation of the injuries assumes greater  importance. Much depends on the quality of the evidence  adduced by the prosecution and it is from that angle, the  weight to be attached to the aspect of non-explanation of  the injuries should be considered. The decisions  abovecited would make it clear that there cannot be a  mechanical or isolated approach in examining the  question whether the prosecution case is vitiated by  reason of non-explanation of injuries. In other words, the  non-explanation of injuries of the accused is one of the  factors that could be taken into account in evaluating the  prosecution evidence and the intrinsic worth of the  defence version."

       In Shriram Vs. State of M.P. [(2004) 9 SCC 292], it was observed:

"8. We shall next deal with the aspect relating to injuries  on the accused and the question of right of private  defence. The number of injuries is not always a safe  criterion for determining who the aggressor was. It  cannot be stated as a universal rule that whenever the  injuries are on the body of the accused persons, a  presumption must necessarily be raised that the accused

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persons had caused injuries in exercise of the right of  private defence. The defence has to further establish that  the injuries found were suffered in the same occurrence  and that such injuries on the accused probabilise the  version of the right of private defence. Non-explanation  of the injuries sustained by the accused at about the time  of occurrence or in the course of altercation is a very  important circumstance. But mere non-explanation of the  injuries by the prosecution may not affect the prosecution  case in all cases. This principle applies to cases where the  injuries sustained by the accused are minor and  superficial or where the evidence is so clear and cogent,  so independent and disinterested, so probable, consistent  and creditworthy, that it far outweighs the effect of the  omission on the part of the prosecution to explain the  injuries. (See Lakshmi Singh v. State of Bihar1.) A plea  of right of private defence cannot be based on surmises  and speculation. While considering whether the right of  private defence is available to an accused, it is not  relevant whether he may have a chance to inflict severe  and mortal injury on the aggressor. In order to find  whether the right of private defence is available to an  accused, the entire incident must be examined with care  and viewed in its proper setting\005"

       Such is not the position here.

       We have furthermore noticed the concurrent finding of both the courts  that the accused were guilty of commission of an offence under Section 148  of the IPC.  The fact that they were aggressors and initiated the attack on the  deceased and other witnesses on the land in question and thereafter at the  bed of the tank, thus,  stands established.

       At this juncture, we may notice some of the decisions relied upon by  Mr. Gupta.

       In Mohar Rai (supra) the prosecution case is that the Appellant therein  was chased and caught and at that time he was having revolver in his hand.   The defence plea was that no shot was fired from his revolver and in fact he  having been seriously injured was not in a position to fire any shot from the  revolver.  The reports of the ballistic expert examined by the prosecution and  defence were contradictory in nature.  He was also acquitted under the  provisions of the Arms Act.  In that situation, it was observed:

"6. The trial court as well as the High Court wholly  ignored the significance of the injuries found on the  appellants. Mohar Rai had sustained as many as 13  injuries and Bharath Rai 14. We get it from the evidence  of PW 15 that he noticed injuries on the person of Mohar  Rai when he was produced before him immediately after  the occurrence. Therefore the version of the appellants  that they sustained injuries at the time of the occurrence  is highly probablised. Under these circumstances the  prosecution had a duty to explain those injuries. ..."

       In Amar Malla and Others Vs. State of Tripura [(2002) 7 SCC 91],  this Court held:

"9\005 It is well settled that merely because the prosecution  has failed to explain injuries on the accused persons, ipso  facto the same cannot be taken to be a ground for  throwing out the prosecution case, especially when the  same has been supported by eyewitnesses, including  injured ones as well, and their evidence is corroborated

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by medical evidence as well as objective finding of the  investigating officer."

       The said decision runs counter to the submissions of Mr Gupta.

       In Subramani and Others Vs. State of T.N. [(2002) 7 SCC 210] again  a positive case of exercise of right of private defence was made out.  Therein  the question was as to whether the accused persons exceeded the right of  private defence.  They were held to have initially acted in exercise of their  right of private defence of property and in exercise of the right of private  defence of person, observing :

"21\005 In the instant case we are inclined to hold that the  appellants had initially acted in exercise of their right of  private defence of property, and later in exercise of the  right of private defence of person. It has been found that  three of the appellants were also injured in the same  incident. Two of the appellants, namely, Appellants 2 and  3 had injuries on their head, a vital part of the body.  Luckily the injuries did not prove to be fatal because if  inflicted with more force, it may have resulted in the  fracture of the skull and proved fatal. What is, however,  apparent is the fact that the assault on them was not  directed on non-vital parts of the body, but directed on a  vital part of the body such as the head. In these  circumstances, it is reasonable to infer that the appellants  entertained a reasonable apprehension that death or  grievous injury may be the consequence of such assault.  Their right of private defence, therefore, extended to the  voluntarily causing of the death of the assailants."

       Dharminder Vs. State of H.P. [(2002) 7 SCC 488] was also a case  where a plea of right of private defence as regard property was put forward.   Although in view of a decision of this Court in Takhaji Hiraji Vs. Thakore  Kubersing Chamansing [(2001) 6 SCC 145], it was observed that the  prosecution is under duty to explain the injuries on the accused persons but  the court noticed the following observations in paragraph 17 thereof:

"Where the evidence is clear, cogent and creditworthy  and where the court can distinguish the truth from  falsehood the mere fact that the injuries on the side of the  accused persons are not explained by the prosecution  cannot by itself be a sole basis to reject the testimony of  the prosecution witnesses and consequently the whole of  the prosecution case."

       Despite a serious injury on the person of the accused and despite the  fact that the factum of injury has not been disclosed in the first information  report but only in the statement under Section 161 of the Code of Criminal  Procedure by one of the witnesses, the court held that the factum of the  accused was not improper.  The said decision also is of no assistance to the  prosecution.

       In Raghunath Vs. State of Haryana and Another [(2003) 1 SCC 398],  this Court did not rely upon only two witnesses having regard to the fact that  the nature of injuries sustained by the complainants party would clearly  suggest that such injuries could only be caused in a melee which is the  version of the defence that injuries sustained by the deceased and other  members of the complainant party have been caused by a mob consisting of  300-350 people while trying to rescue accused No. 1.  It was further held:

"32\005Considering the nature of the injuries sustained by  the complainant party it is quite probable that they

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sustained injuries accidentally while being involved in a  mob fight\005"

       For the purpose of attracting Section 149 of the IPC, it is not  necessary that there should be a pre-concert by way of a meeting of the  persons of the unlawful assembly as to the common object.  If a common  object is adopted by all the persons and shared by them, it would serve the  purpose.

       In Mizaji and another Vs. The State of U.P. [(1959) Supp 1 SCR 940],  it was observed:

"\005Even if the offence committed is not in direct  prosecution of the common object of the assembly, it  may yet fall under Section 149 if it can be held that the  offence was such as the members knew was likely to be  committed. The expression ’know’ does not mean a mere  possibility, such as might or might not happen. For  instance, it is a matter of common knowledge that when  in a village a body of heavily armed men set out to take a  woman by force, someone is likely to be killed and all  the members of the unlawful assembly must be aware of  that likelihood and would be guilty under the second part  of Section 149. Similarly, if a body of persons go armed  to take forcible possession of the land, it would be  equally right to say that they have the knowledge that  murder is likely to be committed if the circumstances as  to the weapons carried and other conduct of the members  of the unlawful assembly clearly point to such knowledge  on the part of them all\005"

       In Masalti Vs. State of U.P. [(1964) 8 SCR 133], a contention on the  basis of a decision of this Court in Baladin Vs. State of Uttar Pradesh [AIR  1956 SC 181] stating that it is well-settled that mere presence in an assembly  does not make a person, who is present, a member of an unlawful assembly  unless it is shown that he had done something or omitted to do something  which would make him a member of an unlawful assembly, that an overt act  was mandatory, was repelled by this Court stating that such observation was  made in the peculiar fact of the case.  Explaining the scope and purport of  Section 149 of the IPC, it was held:

"\005What has to be proved against a person who is  alleged to be a member of an unlawful assembly is that  he was one of the persons constituting the assembly and  he entertained long with the other members of the  assembly the common object as defined by Section 141  IPC Section 142 provides that whoever, being aware of  facts which render any assembly an unlawful assembly  intentionally joins that assembly, or continue in it, is said  to be a member of an unlawful assembly. In other words,  an assembly of five or more persons actuated by, and  entertaining one or more of the common object specified  by the five clauses of Section 141, is an unlawful  assembly. The crucial question to determine in such a  case is whether the assembly consisted of five or more  persons and whether the said persons entertained one or  more of the common objects as specified by Section 141.  While determining this question, it becomes relevant to  consider whether the assembly consisted of some persons  who were merely passive witnesses and had joined the  assembly as a matter of idle curiosity without intending  to entertain the common object of the assembly\005"

       It was further observed:

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"In fact, Section 149 makes it clear that if an offence is  committed by any member of an unlawful assembly in  prosecution of the common object of that assembly, or  such as the members of that assembly knew to be likely  to be committed in prosecution of that object, every  person who, at the time of the committing of that offence,  is a member of the same assembly, is guilty of that  offence; and that emphatically brings out the principle  that the punishment prescribed by Section 149 is in a  sense vicarious and does not always proceed on the basis  that the offence has been actually committed by every  member of the unlawful assembly."

       Yet again in Bhajan Singh and Others Vs. State of Uttar Pradesh  [(1974) 4 SCC 568], it was held:

"13. Section 149 IPC constitutes, per se, a substantive  offence although the punishment is under the section to  which it is tagged being committed by the principal  offender in the unlawful assembly, known or unknown.  Even assuming that the unlawful assembly was formed  originally only to beat, it is clearly established in the  evidence that the said object is well-knit with what  followed as the dangerous finale of, call it, the beating.  This is not a case where something foreign or unknown  to the object has taken place all of a sudden. It is the  execution of the same common object which assumed the  fearful character implicit in the illegal action undertaken  by the five accused."

       In Shri Gopal & Anr. Vs. Subhash & Ors. [JT 2004 (2) SC 158], it  was stated: "15. The essence of the offence under Section 149 of the  Indian Penal Code would be common object of the  persons forming the assembly.  It is necessary for  constitution of the offence that the object should be  common to the persons who compose the assembly, that  is, that they should all be aware of it and concur in  it.    Furthermore, there must be some present and immediate  purpose of carrying into effect the common object.  A  common object is different from a common intention  insofar as in the former no prior consent is required, nor a  prior meeting of minds before the attack would be  required whereas an unlawful object can develop after  the people get there and there need not be a prior meeting  of minds."

       Sections 149 and 34, however, stand on some different footings  although application of both the sections may be held to be mandatory.

       In Ram Tahal and Others Vs. The State of U.P. [(1972) 1 SCC 136], a  Division Bench of this Court noticed:

"\005A 5-Judge Bench of this Court in Mohan Singh v.  State of Punjab has further reiterated this principle where  it was pointed out that like Section 149 of the IPC  Section 34 of that Code also deals with cases of  constructive liability but the essential constituent of the  vicarious criminal liability under Section 34 is the  existence of a common intention, but being similar in  some ways the two sections in some cases may overlap.  Nevertheless common intention, which Section 34 has its  basis, is different from the common object of unlawful  assembly. It was pointed out that common intention

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denotes action in concert and necessarily postulates a  pre-arranged plan, a prior meeting of minds and an  element of participation in action. The acts may be  different and vary in character but must be actuated by  the same common intention which is different from same  intention or similar intention..."

       It may be true that the right of private defence need not specifically be  taken and in the event the court on the basis of the materials on records is in  a position to come to such a conclusion, despite some other plea had been  raised that such a case had been made out, may act thereupon.

       In Laxman Singh Vs. Poonam Singh and Others [(2004) 10 SCC 94],  this Court observed:

"7\005 But mere non-explanation of the injuries by the  prosecution may not affect the prosecution case in all  cases. This principle applies to cases where the injuries  sustained by the accused are minor and superficial or  where the evidence is so clear and cogent, so independent  and disinterested, so probable, consistent and  creditworthy, that it far outweighs the effect of the  omission on the part of the prosecution to explain the  injuries. (See Lakshmi Singh v. State of Bihar) A plea of  right of private defence cannot be based on surmises and  speculation. While considering whether the right of  private defence is available to an accused, it is not  relevant whether he may have a chance to inflict severe  and mortal injury on the aggressor. In order to find  whether the right of private defence is available to an  accused, the entire incident must be examined with care  and viewed in its proper setting\005"

       Yet again in Chacko alias Aniyan Kunju and Others Vs. State of  Kerala [(2004) 12 SCC 269],  

"7\005 Undisputedly, there were injuries found on the body  of the accused persons on medical evidence. That per se  cannot be a ground to totally discard the prosecution  version. This is a factor which has to be weighed along  with other materials to see whether the prosecution  version is reliable, cogent and trustworthy. When the  case of the prosecution is supported by an eyewitness  who is found to be truthful as well, mere non-explanation  of the injuries on the accused persons cannot be a  foundation for discarding the prosecution version.  Additionally, the dying declaration was found to be  acceptable."

       In Vajrapu Sambayya Naidu and Others Vs. State of A.P. and Others  [(2004) 10 SCC 152], whereupon Mr. Gupta placed strong reliance, is  distinguishable on facts.  Therein a finding of fact was arrived at that not  only the complainant’s decree for eviction was obtained against the  informant, actual delivery of possession was also effected and accused No.  13 came in a possession of land.  In the said factual backdrop, this Court  observed that the complexion of the entire case changes because in such an  event the Appellants cannot be held to be aggressors.  The fact of the present  case, however, stands on a different footing.

       Once it is established that the complainant party were  in possession  of the land in question as also cultivated the same and grew paddy thereupon  the question of  the Appellant’s exercising of right of private defence as

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regard property does not arise.  Such a right could only be claimed by the  complainant.  So far as the purported right of private defence of a person  is  concerned, it has been proved beyond any shadow of doubt that the accused  were the aggressors. They came to the land in question to harvest paddy  through hired labourers.  They were armed fully when they were asked not  to harvest paddy, they  chased and assaulted the prosecution witnesses.  In  this situation the Appellants were not entitled to claim right of private  defence.           SELF-DEFENCE         ’Right of private defence’ is not defined.  Nothing is an offence in  terms of Section 96 of the Indian Penal Code, if it is done in exercise of the  right of private defence.  Section 97 deals with the subject matter of private  defence.  The plea of  right of private defence comprises the body or  property.  It, however, extends not only to person exercising the right; but to  any other person.  The right may be exercised in the case of any offence  against the body and in the case of  offences of theft, robbery, mischief or  criminal trespass and attempts at such offences in relation to property.   Sections 96 and 98 confer a right of private defence against certain offences  and acts.   Section 99 lays down the limit therefor.  The right conferred upon  a person in terms of Section 96 to 98 and 100 to 106 is controlled by Section  99.  In terms of Section 99 of the Indian Penal Code, the right of private  defence, in no case, extends to inflicting of more harm than it is necessary to  inflict for the purpose of defence.  Section 100 provides that the right of  private defence of the body extends under the restrictions mentioned in the  last preceding section to the voluntary causing of death or of any other harm  to the assailant if the offence which occasions the exercise of the right be of  any of the descriptions enumerated therein, namely, "First \026 Such an assault,  as may reasonably cause the apprehension that death will otherwise be the  consequence of such assault; Secondly \026 Such an assault as may reasonably  cause the apprehension that grievous hurt will otherwise be the consequence  of such assault".  To claim a right of private defence extending to voluntary  causing of death, the accused must show that there were circumstances  giving rise to reasonable grounds for apprehending that either death or  grievous hurt would be caused to him.  The burden in this behalf is on the  accused.   

Sections 102 and 105 IPC deal with commencement and continuance  of the right of private defence of body as well as  property.  It commences as  soon as a reasonable apprehension of danger to the body arises from an  attempt, or threat, to commit the offence, although the offence may not have  been committed, but not until there is reasonable apprehension.  In other  words, the right lasts so long as the reasonable apprehension of the danger to  the body  continues.   

       So far as exercise of right of private defence of property extended to  causing death is concerned, the same is covered by Section 103 of the Indian  Penal Code.  Such a right is available if the offence, the commission of  which, or the attempting to commit which, occasions the exercise of the  right, be an offence of any of the descriptions enumerated, viz., robbery,  house-breaking by night, mischief by fire committed on any building, theft,  mischief or house-trespass.  The said provision, therefore, has no  application.   

       Section 104 provides that in relation to the offences as enumerated in  Section 103, the right of private defence can be exercised to the voluntary  causing to the wrong-doer of any harm other than death.  Section 105  provides for commencement and continuance of the right of private defence  of property which reads as under:

"105. Commencement and continuance of the right of  private defence of property \026 The right of private defence  of property commences when a reasonable apprehension  of danger to the property commences.

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       The right of private defence of property against  theft continues till the offender has effected his retreat  with the property or either the assistance of the public  authorities is obtained, or the property has been  recovered.

       The right of private defence of property against  robbery continues as long as the offender causes or  attempts to cause to any person death or hurt, or wrongful  restraint or as long as the fear of instant death or of  instant hurt or of instant personal restraint continues.

       The right of private defence of property against  criminal trespass or mischief continues as long as the  offender continues in the commission or criminal trespass  or mischief.

       The right of private defence of property against  house-breaking by night continues as long as the house- trespass which has been begun by such house-breaking  continues."

       Section 105 of the Indian Evidence Act casts the burden of proof on  the accused who sets up the plea of self-defence and in the absence of proof,  it may not be possible for the court to presume the correctness or otherwise  of the said plea.  No positive evidence although is required to be adduced by  the accused; it is possible for him to prove the said fact by eliciting the  necessary materials from the witnesses examined by the prosecution.  He  can establish his plea also from the attending circumstances, as may   transpire from the evidence led by  the prosecution itself.

       In a large number of cases, this Court, however, has laid down the law  that a person who is apprehending death or bodily injury cannot weigh in  golden scales on the spur of the moment and in the heat of circumstances,  the number of injuries required to disarm the assailants who were armed  with weapons.  In moments of excitement and disturbed equilibrium it is  often difficult to expect the parties to preserve composure and use exactly  only so much force in retaliation commensurate with the danger  apprehended to him where assault is imminent by use of force.  All  circumstances are required to be viewed with pragmatism and any hyper- technical approach  should be avoided.            To put it simply , if a defence is made out, the accused is entitled to be  acquitted and if not he will be convicted of murder.  But in case of use of  excessive force, he would be convicted under Section 304 IPC.      

       A right of private defence cannot be claimed when the accused are  aggressors, when they go to complainant’s house well prepared for a fight  and provoke the complainant party resulting in quarrel and taking undue  advantage that the deceased was unarmed causes his death.  It cannot be  inferred that there was any sudden quarrel or fight, although there might be  mutual fight with weapons after the deceased was attacked.  In such a  situation, a plea of private defence would not be available [See Preetam  Singh and Others vs. State of Rajasthan \026 (2003) 12 SCC 594]      

       In Sekar alias Raja Sekharan vs. State Represented by Inspector of  Police,T.N. [(2002) 8 SCC 354], a Bench in which one  of us was a member,  observed : "10. In order to find whether right of private defence  is available or not, the injuries received by the accused,  the imminence of threat to his safety, the injuries caused  by the accused and the circumstances whether the  accused had time to have recourse to public authorities  are all relevant factors to be considered."

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       In Laxman Singh (supra), this Court opined:

"6\005Where the right of private defence is pleaded, the  defence must be a reasonable and probable version  satisfying the court that the harm caused by the accused  was necessary for either warding off the attack or for  forestalling the further reasonable apprehension from the  side of the accused. The burden of establishing the plea  of self-defence is on the accused and the burden stands  discharged by showing preponderance of probabilities in  favour of that plea on the basis of the material on  record\005"

       In Gpttipulla Venkatasiva Subbarayanam and Others vs. The State of  Andhra Pradesh and Another [(1970) 1 SCC 235], Dua, J. speaking for the  Bench stated the law thus : "\005Section 100 lays down the circumstances in which the  right of private defence of the body extends to the  voluntary causing of death or of any other harm to the  assailants. They are: (1) if the assault which occasions  the exercise of the right reasonably causes the  apprehension that death or grievous hurt would otherwise  be the consequence thereof and (2) if such assault is  inspired by an intention to commit rape or to gratify  unnatural lust or to kidnap or abduct or to wrongfully  confine a person under circumstances which may  reasonably cause apprehension that the victim would be  unable to have recourse to public authorities for his  release. In case of less serious offences this right extends  to causing any harm other than death. The right of private  defence to the body commences as soon as reasonable  apprehension of danger to the body arises from an  attempt or threat to commit the offence though the  offence may not have been committed and it continues as  long as the apprehension of danger to the body continues.  The right of private defence of property under Section  103 extends, subject to Section 99, to the voluntary  causing of death or of any other harm to the wrongdoer if  the offence which occasions the exercise of the right is  robbery, house-breaking by night, mischief by fire on any  building etc. or if such offence is, theft, mischief or house  trespass in such circumstances as may reasonably cause  apprehension that death or grievous hurt will be the  consequence, if the right of private defence is not  exercised. This right commences when reasonable  apprehension of danger to the property commences and  its duration, as prescribed in Section 105, in case of  defence against criminal trespass or mischief, continues  as long as the offender continues in the commission of  such offence. Section 106 extends the right of private  defence against deadly assault even when there is risk of  harm to innocent persons."

[See  also State of  M.P. vs. Ramesh (2005) 9 SCC 705]            Private defence can be used to ward off unlawful force, to prevent  unlawful force, to avoid unlawful detention and to escape from such  detention.  So far as defence of land against trespasser is concerned, a person  is entitled to use necessary and moderate force both for preventing the  trespass or to eject the trespasser.  For the said purposes, the use of force  must be the minimum necessary or reasonably believed to be necessary.  A  reasonable defence would mean a proportionate defence.  Ordinarily, a  trespasser would be first asked to leave and if the trespasser fights back, a

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reasonable force can be used.   

Defence of dwelling house, however, stand on a different footing.   The law has always looked with special indulgence on a man who is  defending his dwelling against those who would unlawfully evict him; as for  "the house of every one is to him as his castle and fortress".

In Hussey [(1924) 18 Cr. App. Rep. 160], it was stated it would be  lawful for a man to kill one who would unlawfully dispossess him of his  home.   

Private defence and prevention of crime are sometimes  indistinguishable.  Such a right is exercised because "there is a general  liberty as between strangers to prevent a felony".  The degree of force  permissible should not differ, for instance, the in the case of a master  defending his servant from the  case of a brother defending his sister,  or that  of a complete stranger coming to the defence of another under unlawful  attack.   

In Kenny’s ’Outlines of Criminal Law’ by J.W. Cecil Turner, it is  stated :         "It is natural that a man who is attacked should  resist, and his resistance, as such, will not be unlawful.  It  is not necessary that he should wait to be actually struck,  before striking in self-defence.  If one party raise up a  threatening hand, then the other may strike.  Nor is the  right of defence limited to the particular person assailed;  it includes all who are under any obligation, even though  merely social and not legal, to protect him.  The old  authorities exemplify this by the cases of a husband  defending his wife, a child his parent, a master his  servant, or a servant his master (and perhaps the courts  would now take a still more general view of this duty of  the strong to protect the weak)."  

The learned author further stated that self-defence, however, is not  extended to unlawful force :          "But the justification covers only blows struck in sheer  self-defence and not in revenge.  Accordingly if, when all  the danger is over and no more blows are really needed  for defence, the defender nevertheless strikes one, he  commits an assault and battery.  The numerous decisions  that have been given as to the kind of weapons that may  lawfully be used to repel an assailant, are merely  applications of this simple principle.  Thus, as we have  already seen, where a person is attacked in such a way  that his life is in danger he is justified in even killing his  assailant to prevent the felony.  But an ordinary assault  must not be thus met by the use of fire-arms or other  deadly weapons\005."      In Browne [(1973) NI 96 at 107], Lowry LCJ  with regard to self-  defence  stated : "The need to act must not have been created by conduct  of the accused in the immediate context of the  incident  which was likely or intended to give rise to that need."

       As regard self-defence and prevention of crime in ’Criminal Law’ by  J.C. Smith & Brian Hogan, it is stated :

       "Since self-defence may afford a defence to  murder, obviously it may do so to lesser offences against  the person and subject to similar conditions.  The matter

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is now regulated by s. 3 of the Criminal Law Act 1967.   An attack which would not justify D in killing might  justify him in the use of some less degree of force, and so  afford a defence to a charge of wounding, or, a fortiori,  common assault.  But the use of greater force than is  reasonable to repel the attack will result in liability to  conviction for common assault, or whatever offence the  degree of harm caused and intended warrants.   Reasonable force may be used in defence of property so  that D was not guilty of an assault when he struck a  bailiff who was unlawfully using force to enter D’s  home.  Similar principles apply to force used in the  prevention of crime."               The case at hand has to be considered having regard to the principles  of law, as noticed hereinbefore.  We have seen that in what circumstances  and to what extent the right of private defence can be exercise would depend  upon the fact situation obtaining in each case.            CONCLUSION :         Except the Appellants, the other accused have not preferred any  appeal.  

       In view of our findings aforementioned, ordinarily we would have  upheld the conviction of the Appellants under Sections 302/109 and 302/34  IPC, but the High Court has found the accused guilty as under :

i)      Mathan, Bhishwa and Ramanath Mahato under Section 302/34 IPC  for committing the murder of Prankrishna Mahato; ii)     Kalipada Mahato under Section 302/109 IPC; iii)    Mathan, Haralal, Ramanath and Patal Mahato under Section 326/34  IPC for causing grievous hurt to Nepal Mahato; iv)     Bulu Mahato under Section 324 IPC for causing hurt to Nepal and  Chepualal Mahato; v)      Lalbas Mahato under Section 325 for causing grievous hurt to  Shambhu Mahato; and vi)     Patal Mahato under Section 324 IPC for causing hurt to Siju Mahato.

It is difficult to reconcile this part of the judgment of the High Court.   If common object/common intention of an offence under Section 149 or 34  IPC was to be invoked, the same should have been invoked against those  who shared common object/intention.  The High Court has also not assigned  any reason as to why Mathan, Bhiswa and Ramanath Mahato have been  found guilty under Section 302/34 IPC and not under Section 302/149 IPC.  

Furthermore, although in this case right of private defence was not  exercisable; having regard to the peculiar facts and circumstances of the  case, we are of the opinion that the possibility of the Appellants committing  the crime without any intention to cause death  cannot be ruled out.   

We are, therefore, of the opinion that keeping in view the peculiar  facts and circumstances of this case, the Appellant Nos. 1 and 2 should be  convicted for an offence under Section 304 Part I read with Section 34 IPC  instead of Section 302/34 and 302/109.  They are directed to undergo a  sentence of rigorous imprisonment for seven years.  The conviction and  sentence of Appellant Nos. 3, 4, 5 and 6 by the High Court  is not disturbed.  The judgment of conviction and sentence of the Appellants under Section  148 is upheld.  All the sentences shall run concurrently.

The appeals are allowed to the extent as mentioned hereinabove.