Barisa Mudi v. State Of Bihar — 1956 DIGILAW 114 (PAT)

Judgment K.Sahai, J. 1. The Additional Sessions Judge of Manbhum-Singhbhum at Purulia has convicted appellant Barisa Mudi under Sec.302 of the Penal Code and has sentenced him to undergo transportation for life. He has also convicted this appellant under Sec.148 of the Penal Code but has not imposed any separate sentence under that section. He has convicted the other appellants under Sec.326/149 and also under Sec.148 of the Penal Code and has imposed different sentences of imprisonment under those sections. 2. The dispute between the parties relates to the possession of plot No. 1121 appertaining to khata No. 80 of mauza Sidhabari which is popularly known as Dubakhet or Simul Kanali. The holding including plot No. 1121 was originally recorded in the names of some Mudis including one Sitaram Mudi. Appellant Jitan Mudi is a descendant of Sitaram. With the exception of Jitan and his brother Ishwar, the tenants surrendered their interests in the holding to the landlords who were also Mudis. On the 13th May, 1953, several of the landlords settled plot No. 1121 and other lands with several persons including Mansaram Mahato (P.W. 5), Parbati Mahato (P.W. 10), Manga Mahato (P.W. 16) and deceased Mahindi Mahato. Some of the settlees filed a petition (Ex. 1) before the Gram Panchayat and it was received by the Sar Panch (P.W. 1) and the Mukhia (P.W. 2) on the 24th June, 1953. It was alleged in this petition that it was inconvenient for the petitioners to hold the land jointly with Jitan Mudi. On this basis, a prayer for partition was made. It appears that the petition is still pending with the Gram Panchayat. 3. The prosecution case is that, at 8 a.m. on the 6th August, 1953, Mansaram (P.W. 5) noticed the appellants and others ploughing plot No. 1121, i.e., Dubakhet. He informed all his co-sharers and, thereafter, he, deceased Mahindi Mahato, Sraban Mahato (P.W. 4), Kalipada Mahato (P.W. 9), Parbati Mahato (P.W. 10), Babulal Mahato (P.W. 11), Manu Mahato (P.W. 15), Manga Mahato (P.W. 16) and Kisto Mahato (P.W. 17) went to Dubakhet. When they arrived closed to Dubakhet, they found that the appellants and their companions were armed with various weapons and had six ploughs with them. Mahindi Mahato (deceased) asked the appellants party why they were ploughing the land and the members of that party then abused the party of the prosecution witnesses. When they arrived closed to Dubakhet, they found that the appellants and their companions were armed with various weapons and had six ploughs with them. Mahindi Mahato (deceased) asked the appellants party why they were ploughing the land and the members of that party then abused the party of the prosecution witnesses. There was an exchange of abuses between the parties. Appellant Barisa, who was armed with a tabla, ran to the place where the prosecution witnesses were standing and struck Mahindi Mahato with his tabla on the head. Mahindi fell down and became unconscious. Appellant Amulya Mudi came and struck Mansaram (P.W. 5) with a tabla, whereupon Mansaram snatched a lathi from appellant Bhim Mudi and struck Amulya with it. Gosta of the appellants party assaulted Kalipada (P.W. 9) with a tabla. The other appellants pelted stones at the party of the prosecution witnesses and then fled away with their ploughs. Mahindi Mahato died in the way when he was being taken to the police station. 4. The defence case is that Dubakhet was in the possession of Jitan Mudi. At about 8 a.m. on the 6th August, 1953, he and others including Barisa Mudi and Chinibas Mudi were sitting after ploughing the field and six women labourers were transplanting paddy in it. A number of the prosecution witnesses and others came armed with weapons like swords, axes, tablas, etc. and asked why, they were transplanting paddy in it. Members of the appellants party then replied that the lands had all along been in their possession. There was an exchange of abuses between the parties. Kalipada Mahato (P.W. 9) then struck Chinibas on his left hand with his sword and Mansa Mahato (P.W. 5) struck Barisa with a tabla on his back and head. 5. The place of occurrence lies within the jurisdiction of Para police station which is at a distance of about four miles from village Sidhabari. Assistant Sub-inspector Ramdani Singh (P. W. 20) recorded the first information report (Ext. 11) on the statement of Mansaram at about noon on the 6th August, 1953 at the police station, as the officer in charge (P.W. 22) was then out At 3 p.m. P.W. 22 recorded the first information report (Ex. A) of the counter case on the statement of appellant Chinibas Mudi. After completing investigation, P.W. 22 submitted charge-sheets in both cases. 6. A) of the counter case on the statement of appellant Chinibas Mudi. After completing investigation, P.W. 22 submitted charge-sheets in both cases. 6. It seems that the counter case started by appellant Chinibas is still pending trial. 7. This appeal was heard in the first instance by my learned brothers, Sinha and Ahmad, JJ. While both agreed that the appellants other than Barisa Mudi should be acquitted, there was a difference of opinion between them about appellant Barisa. Sinha, J. held that appellant Barisa had the right of private defence of both property and person and did not exceed that right. He, therefore, expressed the opinion that Barisa should also be acquitted. Ahmad, J., on the other hand, held that the appellants including Barisa had no right of private defence of person but had only "the right of private defence of property as contemplated by Sec.104 of the Indian Penal Code but not as contemplated by Sec.103 of the Code". He was of the opinion that Barisa Mudi had exceeded the right of private defence of property and he should, therefore, be convicted under Part I of Sec.304 of the Code and should be sentenced to undergo rigorous imprisonment for five years. Owing to this difference of opinion between the two learned Judges, the case has been referred to me under Sec. 429 of the Code of Criminal Procedure for my opinion. 8. In view of the allegations made on behalf of the prosecution as well as the defence, it is perfectly clear that there was an occurrence at about 8 a.m. on the 6th August, 1953 when the appellants and others were ploughing and getting paddy transplanted in Dubakhet. In this connection, I may also refer to the fact that the investigating Officer (P.W. 22) found that paddy seedlings had been freshly transplanted in one-fourth of plot No. 1121 on the western side and be also found forty small bundles of paddy seedlings lying scattered on the plot. 9. Dr. N. K. Lal (P.W. 21) held post mortem examination over the body of Mahindi Mahato at about noon on the 7th August, 1953 and found the following injury: -- "One incised wound 9" X 1/2" X 3" deep on the head running obliquely and involving the left frontal, the right parietal and frontal bones". On dissection, he found the skull fractured. On dissection, he found the skull fractured. It is undeniable that Mahindi received his injury at the occurrence which took place on the 6th August, 1953 and died as a result of that injury. 10. Dr. N. K. Lal found injuries on the bodies of four other persons. He examined Mansaram Mahato (P.W. 5) at 10 a.m. on the 7th August, 1953 and found one incised wound 1/2" X 1 /6" X 1/4" on the right thumb which was caused by some sharp substance such as a tabla within twcntyfour hours. He examined Kalipada Mahato (P.W. 9) at 6.30 p.m. on the same date and found one incised wound 4" X 1/10" X skin deep on the back of the neck which was caused by some sharp substance such as A tabla within twenty-four to thirtysix hours. He examined appellant Chinibas Mudi at 11. 15a.m. on the same date and found the following two injuries which were within twentyfour hours old : -- (1) An incised gaping wound 4" X 1" X 1" deep on the left forearm, cutting the left ulna. It was a grievous injury and it was caused by a sharp heavy substance such as a sword and (2) A lacerated wound 21/4" X 1/4" X. scalp deep on the top of the head. It was a simple injury and it was caused by some blunt substance such as a lathi. Dr. N. K. Lal examined appellant Barisa Mudi on the same date and found the following injuries which were also within twenty four hours old : -- "1. Incised wound 8 1/2" X 1" X rib deep on the left side of the back running vertically with a scratch crossing it. 2. Inverted horse-shoe shaped sharp scratch 3" X 1/4" X skin deep on the right forearm. 3. Lacerated wound 1/4" X 1/4" on the right little finger. 4. Swelling at the bases of the left index and the middle fingers. 5. Two lacerated wounds each about 1/2" X 1/4" X scalp deep on the left and the right of the occipital plane. Injury Nos. 1 and 2 were caused by sharp instrument like tabla and Nos. 3 to 5 were caused by blunt substance like lathi. 4. Swelling at the bases of the left index and the middle fingers. 5. Two lacerated wounds each about 1/2" X 1/4" X scalp deep on the left and the right of the occipital plane. Injury Nos. 1 and 2 were caused by sharp instrument like tabla and Nos. 3 to 5 were caused by blunt substance like lathi. All the injuries were simple in nature." It has not been disputed before me either by the learned counsel for the appellants or by the learned Additional Standing Counsel -- and in view of the circumstances of this case, it is perfectly clear --that all the four persons, i.e. two of the appellants and two of the prosecution witnesses, received their injuries in the course of the same occurrence. 11. So far as the question of possession is concerned, the learned Additional Sessions Judge has come to the conclusion that appellant Jitan was in possession of Dubakhet. The learned Additional Standing Counsel has not challenged this finding. The settlement in favour of deceased Mahindi Mahato and others including some of the prosecution witnesses was made on the 13th May, 1953 by some of the landlords. The occurrence took place on the 6th August, of the same year. The prosecution has not adduced any evidence relating to exercise of any act of possession during that period. Appellant Jitan was undoubtedly one of the cosharer tenants of the holding to which plot No. 1121, i.e., Dubakhet, appertains. In these circumstances, I have no doubt at all, and I hold in agreement with the learned Additional Sessions Judge, that appellant Jitan was in possession of the plot in question. 12. Appearing on behalf of the appellants, Mr. Udai Sinha has argued that the alleged eye-witnesses for the prosecution are interested and unreliable and hence it cannot be held that the occurrence took place in the manner alleged by them. The eye-witnesses on whom the learned Additional Sessions Judge has relied are Mansaram (P. W. 51, Kalipada (P. W. 9), Parbati (P. W. 10) Manu (P.W. 15), Manga (P.W. 16) and Kisto (P.W. 17). Of these witnesses, Mansaram, Kalipada and Parbati are throe of the persons who took settlement of Dubakhet and other lands on 13-5-1953. Manu Mahto (P. W. 15) is a bagal of Dwijapada Mahato & Kisto Mahato (P.W. 17) is a bagal of Babu Mahato two of the other settlees. Of these witnesses, Mansaram, Kalipada and Parbati are throe of the persons who took settlement of Dubakhet and other lands on 13-5-1953. Manu Mahto (P. W. 15) is a bagal of Dwijapada Mahato & Kisto Mahato (P.W. 17) is a bagal of Babu Mahato two of the other settlees. Manga Mahato (P. W. 16) is a brother of deceased Mahindi Mahto, who was also one of the settlees. They are thus interested witnesses and their evidence has to be scrutinised with caution before being accepted. It is clear, however, that there is no much difference between the prosecution and the defence cases as to how the occurrence took place. It is the admitted case of both sides that the appellants party were busy with agricultural operations in the Dubakhet when some of the prosecution witnesses accompanied by others came and there was a clash between the parties. 13. Mr. Udai Sinha has argued that the evidence of the alleged eye-witnesses must be entirely rejected because they have suppressed the fact that appellants Barisa and Chinibas received injuries at the same occurrence and have not explained how those two appellants could have received those injuries. Mansaram (P. W. 5) stated in the first information report (Ex. 11) as follows: "Barisa struck Mahindi on his head with tabla, Mahindi tell down -- Barisa tried to take out the tabla but he could, not. Then all of us assaulted them with thanga (lathi)." This statement shows that Mansarams case in his first information report was that he and his companions were armed with lathis. In his evidence in Court, he has stated that he and his companions had no weapons. He has stated in his examination-in-chief that he assaulted appellant Amulya with his lathi but has gone back upon that statement in his cross-examination and has stated that the lathi with which he assaulted Amulya was one which he snatched from appellant Bhim. Kalipada (P. W. 9) and Parbati (P. W. 10) have also stated that they and their companions were without any weapon. Manu (P. W. 15) has said that he and his companions did not go to the place of occurrence with lathis but he stated before the investigating Officer that they had gone there with lathis. Manga Mahto (P. W. 16) says that he and his companions did not assault any of the appellants but merely pushed some of them. Manu (P. W. 15) has said that he and his companions did not go to the place of occurrence with lathis but he stated before the investigating Officer that they had gone there with lathis. Manga Mahto (P. W. 16) says that he and his companions did not assault any of the appellants but merely pushed some of them. As I have already mentioned, it is undisputed before me that two of the appellants, namely, Chinibas and Barisa, received injuries caused not only by blunt weapons Eut also sharp cutting weapons like sword and tabla at the same occurrence. It is, therefore, clear that the eye-witnesses have suppressed the fact that members of their party who went to the place of occurrence were armed with blunt as well as sharp cutting weapons and the fact that two appellants received injuries at their hands. The probabilities are also against their having gone to the place of occurrence without any weapon. Mansaram saw the appellants party when they were already ploughing the field which he and his co-sharers claimed. He collected a number of his co-sharers or their representatives who, according to the evidence, gathered in a kuli (lane) before proceeding to the place of occurrence. It is unimaginable for them to have proceeded from the gathering place to the place of occurrence without arming themselves with weapons. If only one or two of them had gone to the place of occurrence, it might have been possible to accept that their intention was peaceful. When so many of them gathered together and went there, their object could only have been to use force for the purpose of dispossessing appellant Jitan and driving him and his companions out of the field by force. I have, therefore, no doubt at all that the prosecution witnesses and their companions who went to the place of occurrence were armed with weapons and that, in the course of the clash, they caused injuries to appellants Chinibas and Barisa. The question, however, is whether their entire evidence should be discarded in view of the fact that they have been guilty of suppression of the facts which I have referred to. The question, however, is whether their entire evidence should be discarded in view of the fact that they have been guilty of suppression of the facts which I have referred to. There is no rule of law or prudence which lays down that the evidence of witnesses must be discarded if they suppress the fact that they were armed and if they do not explain the injuries received by members of the party opposed to them. The matter depends entirely upon the facts of each different case. The learned Additional Sessions Judge has referred to some reported decisions but, as observed by their Lordships of the Supreme Court in Gurucharan Singh V/s. State of Punjab, (S) AIR 1956 SC 460 (A), "each case has its own peculiar facts and it is therefore always risky to appeal to precedents on question of facts". In this case, Mansaram and the other alleged eyewitnesses must have known even before the first information report was lodged that the appellants would start a counter case relating to the injuries caused to Chinibas and Barisa. That being so, I agree with the learned Additional Sessions Judge that the witnesses could not be expected to make admissions by which they would have incriminated themselves. Hence I am not prepared to discard the entire evidence of the prosecution witnesses on this ground. 14. Plot No. 1124 which belongs to one Hariram Mudi is to the adjacent west of plot No. 1121. The evidence of the eye-witnesses in Court is to the effect that they did not go into plot No. 1121, i.e. Dubakhct, and that the clash took place when they were still in plot No. 1124. Mr. Udai Sinha has argued that the witnesses have developed this part of the story because Mansaram stated in the first information, report that they had all gone "to the said Dubakhet". I do not think that there is any substance in this argument. The statement that they went to Dubakhet cannot necessarily be interpreted to mean that they actually went into that land. If they came with the intention of going into Dubakhet and they actually arrived in the very next field. Mansaram could certainly have said that they went to Dubakhet. The statement that they went to Dubakhet cannot necessarily be interpreted to mean that they actually went into that land. If they came with the intention of going into Dubakhet and they actually arrived in the very next field. Mansaram could certainly have said that they went to Dubakhet. It is true that Mansaram has not stated in the first information report that the fight took place in plot No. 1124 or in the field of Hariram Mudi but the evidence of the investigating Officer relating to what he found on the spot makes it perfectly clear that the clash actually took place in that plot. He had stated that there was half an inch deep water in plot No. 1124, that the water near the western ridge of the plot was mixed with blood, that there was accumulated blood on the earth near the western ridge, that there were marks of trampling in that plot, that the water in plot No. 1121 was two inches deep and that he searched for blood-marks and trampling marks in plot No. 1121 but did not find any. If the party of the prosecution witnesses had actually entered into plot No. 1121, some trampling marks must at least have been found there. In these circumstances, I am satisfied that the eye-witnesses have told the truth when they have stated that the clash took place when they were still in plot No. 1124 and had not entered into plot No. 1121. 15. Mr. Udai Sinha has next argued that the eye-witnesses have not told the truth when they have stated that they and their companions were standing in plot No. 1124 when appellant Barisa followed by appellants Amulya, Gosta and Bhim came running and assaulted deceased Mahindi. Mansaram (P. W. 5) and Kalipada (P, W. 9). The investigating Officer (P. W. 22) says that paddy seedlings had been transplanted in the western part of plot No. 1121. It appears from the evidence of the eye-witnesses that members of the appellants party were standing on the southern ridge of Dubakhet when the party of the prosecution witnesses arrived close by. Manu Mahato (P. W. 15) says that he and his companions arrived on the south-western side of Dubakhet and that paddy had been transplanted in the south-western part of that land. Manu Mahato (P. W. 15) says that he and his companions arrived on the south-western side of Dubakhet and that paddy had been transplanted in the south-western part of that land. It seems, therefore, that members of the appellants party were standing on the ridge on the south-western corner of Dubakhet and that members of the party of the prosecution witnesses arrived close to them. None of the eye-witnesses appears to have stated before the investigating Officer that Barisa ran before assaulting Mahindi or that Amulya or Gosta came forward before assaulting Mansaram and Kalipada. Plot No. 1124 is a rather small plot, its width from east to west being only twelve steps. The fact that blood-marks were found in the western part of that plot does not indicate that the clash between the two parties took place exactly at that spot. It appears that the investigating Officer found trampling marks in the whole of the plot. When two armed parties clash, the members of those parties do not remain static but keep moving about. In these circumstances, it is difficult to accept that the party of the prosecution witnesses kept standing in the western part of plot No. 1124 or that Barisa ran to the place where Mahindi was standing and then gave a blow to him. I am unable to accept the learned Additional Standing Counsels argument that the prosecution party might have remained standing "at the distance of a few steps on account of fear when they found that the appellants party was stronger. The alleged eye-witnesses and their companions must have been fully aware of the strength and number of members of the appellants party long before they reached plot No. 1124. The evidence shows that they indulged in exchange of abuses with the appellants party. These facts leave no room for doubt in my mind that the party of the alleged eye-witnesses was not and could not have been struck with fear on their arrival in that plot. It is generally found that rioters disperse as soon as a member of one of the parties falls on receiving a serious injury. It is extremely improbable that Chinibas and Barisa received all their injuries after the assault on deceased Mahindi, Mansaram and Kalipada was concluded. It is generally found that rioters disperse as soon as a member of one of the parties falls on receiving a serious injury. It is extremely improbable that Chinibas and Barisa received all their injuries after the assault on deceased Mahindi, Mansaram and Kalipada was concluded. On a consideration of these facts and the entire evidence, it seems to me that the exchange of abuses between the parties was followed by a simultaneous attack by one party on the other when the members of the appellants party were standing on the ridge of Dubakhet and that the members of the appellants party then got down into plot No. 1124 and fought the other party. To this extent, therefore, I hold that the evidence of the prosecution witnesses is not quite accurate. There can, however, be no doubt that it was in plot No. 1124 that Mahindi was struck down, It was also in that plot that two of the prosecution witnesses and two of the appellants received their injuries. The fact that appellant Barisa caused the fatal injury to Mahindi does not admit of any doubt because there is no reason why the eye-witnesses should have falsely attributed this part to him. 16. Mr. Udai Sinha has contended that the appellants acted in exercise of their right of private defence of both person and property and that appellant Barisa did not exceed that right in assaulting Mahindi. On the other hand, the learned Additional Standing Counsel has argued that this is a case where both parties came prepared for a fight and had a free fight. Hence the appellants cannot be held to have acted in exercise of their right of private defence. Alternatively, he has argued that the appellants had no right of private defence of person and that Barisa must be held to have exceeded the right of private defence of property. The learned Additional Sessions Judge has also held that both the parties went determined to have a fight and had a free fight and that, in consequence, the appellants had no right of private defence. He has relied upon the cases of Kabiruddin V/s. Emperor, ILR 35 Cal 868 (B) and the State V/s. Banwari Singh, AIR 1951 Pat 473 (C). 17. He has relied upon the cases of Kabiruddin V/s. Emperor, ILR 35 Cal 868 (B) and the State V/s. Banwari Singh, AIR 1951 Pat 473 (C). 17. The principle which is well-settled by precedents is that, if neither party can be held to be in actual possession of the property in dispute and if both parties go armed to have a trial of strength, then neither party can be held to have acted in exercise of the right of private defence irrespective of whether one or the other party was the aggressor or the first to attack. If, however, a party is held to be in actual possession, it cannot be deprived of its right of private defence of property simply because it goes armed to defend its property after seeing the other party, committing or on feeling a reasonable apprehension that the other party would commit any of the offences referred to in the 2nd clause of Section 97 of the Penal Code. The right has undoubtedly to be exercised within the limits and subject to the restrictions prescribed in the Penal Code. For instance, it cannot be exercised if there is time to take recourse to the protection of public authorities. 18. In Kabiruddins case (B), both parties had gone armed and determined to have a fight and there was a pitched battle in which one man was killed and several men were wounded. There was no finding of possession in favour of either party. It was, therefore, held that the case was one of free fight and no right of private defence arose irrespective of whether one party or the other was the first to attack. In the present case, it has been found that appellant Jitan was in possession of the plot in question. It is certainly true that he and the other appellants went armed to that plot but it is not by any means certain that they expected or were determined to have a fight. They took their weapons, possibly because they feared that the persons who claimed to be settlees might come and attack them. They bad no time to take recourse to public authorities because they could not bave known previously that the alleged settlees would definitely attempt to use force against them, specially when these settlees are residents of a different village. They took their weapons, possibly because they feared that the persons who claimed to be settlees might come and attack them. They bad no time to take recourse to public authorities because they could not bave known previously that the alleged settlees would definitely attempt to use force against them, specially when these settlees are residents of a different village. It was only by chance that Mansaram (P. W. 5) saw the appellants on the plot and it was because he gave information to his co-sharers that all of them or their representatives gathered together and proceeded to the place of occurrence with their weapons. The appellants could not at that stage do anything except defend their property. In view of these facts, Kabiruddins case (B) is clearly distinguishable. That case came up for consideration in this Court in the case of Nareshi Singh V/s. Emperor, ILR 2 Pat 595: (AIR 1924 Pat 388) (D), in which possession was found to be with the appellants. Mullick J., with whom Adami J., agreed, referred to Kabiruddins case (B), and observed as follows: "It is clear, however, that the decision in Kabiruddins ease was founded on the fact that the question of possession was in dispute and that the appellants before their Lordships were members of an unlawful assembly, firstly, because they were attempting to enforce a right or a supposed right by violence, and secondly, because there was sufficient time to inform the authorities. Where, however, possession is undisputed or where there is no time to seek the assistance of the authorities, I cannot agree that there is any obligation upon a person entitled to exercise the right of private defence and to defend his person or his property to retire from the field merely because his assailant threatens him with violence. I see nothing wrong on the part of the Gopalpur men (accused) in awaiting the coming of their antagonists and in maintaining their possession of the cattle which they had lawfully seized." 19. In an earlier case also, Kabiruddins case (B), was distinguished on similar grounds. I refer to the case of Fouzdar Rai V/s. Emperor, 3 Pat LJ 419: (AIR 1918 Pat 193) (E). In that case, the appellants were found to be in possession of the disputed land. In an earlier case also, Kabiruddins case (B), was distinguished on similar grounds. I refer to the case of Fouzdar Rai V/s. Emperor, 3 Pat LJ 419: (AIR 1918 Pat 193) (E). In that case, the appellants were found to be in possession of the disputed land. It was also found that the appellants led by Fouzdar Rai attacked the complainants party when the members of that party were cutting the crops standing in that land with the result that one member of the complainants party was killed and two were injured. Kabiruddins case (B) and Maniruddin V/s. Emperor, ILR 35 Cal 384 (F), were cited before their Lordships but Hoe, J., Imam J., agreeing, distinguished those cases on the ground that the appellants had "in one case courted and in the other provoked an attack by the other side". After stating that the decisions in those cases had wrongly, led many Courts and all police officers to form the opinion that no right of private defence was available in the case of a not, he observed as follows: "This is not the law. The right of private defence extends to Sec.141 and subsequent sections, just as much as it extends to any other offence punishable under the Indian Penal Code. Where a person, in possession of property, sees an actual invasion of his right to that property, if that invasion amounts to an offence under the Code, he is entitled to resist it by force, and to collect for that purpose such numbers and such arms as may be absolutely necessary for this purpose, provided only that there is no time to have recourse to the protection of the police authorities." 20. In State V/s. Banwari Singh (C), the other case cited by the learned Additional Sessions Judge, their Lordships held on the facts before them that the appellants had no right of private defence. That case is clearly distinguishable on three grounds. Firstly, the appellants were not found to be in possession of the disputed land. Indeed, it was observed that the claim of the accused persons was at the lime of the occurrence "at the best extremely doubtful". Secondly, the appellants of that case went with a number of armed men to plough the disputed land, though there was no urgency at all. Indeed, it was observed that the claim of the accused persons was at the lime of the occurrence "at the best extremely doubtful". Secondly, the appellants of that case went with a number of armed men to plough the disputed land, though there was no urgency at all. When the men of the other side came and threw out a challenge, the appellants advanced to meet that challenge. Hence it could not be said that there was any apprehension that the prosecution parry of that case would commit any of the offences mentioned in the second clause of Section 97 of the Penal Code. Thirdly, an Assistant Sub-Inspector, a constable and a chaukidar were present there and the Assistant Sub-Inspector was telling both parties not to fight. There was no crop in the land which could be cut and, in fact, the appellants could not expect any injury if they had retired and left the matter to the police. I may further mention that their Lordships in that case approved of the principles laid down in Nareshi Singhs case (D) but distinguished that case on the ground that the appellants possession was undisputed in that case and there was no time to seek the assistance of the police. It is, therefore, clear that the decision in State V/s. Banwari Singh (C) has no application to the facts of this case. 21. I desire to refer to one other case on the point under consideration, i.e., the case of Satnarain Das V/s. Emperor, AIR 1938 Pat 518 (G). That was a case in which the possession of disputed land was found to be with the appellants and still it was held that the appellants had no right of private defence and that the parties went armed with the determination to fight and indulged in a free fight. The grounds for this conclusion are perfectly clear. A Dafadar deputed by the police authorities was present. His evidence was that the mobs of both sides came and he told them not to fight but they did not listen to him. It was found that the men on both sides bad come "with the avowed object of meeting force with force and violence with violence. A Dafadar deputed by the police authorities was present. His evidence was that the mobs of both sides came and he told them not to fight but they did not listen to him. It was found that the men on both sides bad come "with the avowed object of meeting force with force and violence with violence. It was found that there was no standing crop on any part of the land, that there was no risk of destruction of any property and that "no harm would have accrued if the parties were to wait for the police to whom information had already been sent". As there was no danger to any property, there could be no question of defence of property in that case. As both parties had obviously come prepared for a trial of strength, the case was undoubtedly one in which the well settled rule that both parties are responsible where they indulge in a free fight applied. 22. In conclusion, I hold in agreement with both my learned brothers that the appellants had the right of private defence of property and that they acted in the exercise of that right. The question that now arises is whether their right extended to the voluntary causing of death. Under Sec.103 of the Penal Code, the right extends to the voluntary causing of death if the offence "the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of", amongst others, "Fourthly. -- Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised". The following facts which I have already found have to be considered in this connection : (1) Plot No. 1121, i.e., Dubakhet which was in dispute, was in possession of appellant Jitan Mudi; (2) the appellants had already ploughed that plot and paddy seedlings had also been transplanted in a part of that plot; (3) the party of the prosecution witnesses came armed with blunt as well as sharp cutting weapons and actually arrived in the very next plot, i.e., plot No. 1124; and (4) on arrival in plot No. 1124, the members of the prosecution party had an exchange of abuses with the appellants party. 23. 23. In view of the above facts, the appellants must have apprehended that the prosecution party I had come with the intention of destroying the paddy seedlings and thereby committing mischief for the purpose of dispossessing them. They must also have had a reasonable apprehension that, unless they acted in exercise of their right of private defence, the members of the prosecution party would cause death or grievous hurt to one or more of them. The fact that this apprehension was real and not illusory is shown by the undoubted fact that a grievous injury was caused to appellant Chinibas on the left forearm. It appears that this injury subsequently became gangrenous with the result that the left hand had to be amputated. 24. Now, it is quite true that the prosecution party did not enter Dubakhet and hence they could not start committing mischief by destroying the paddy seedlings. In my opinion, however, this does not make any difference. The right of private defence of property arises as soon as there is a reasonable apprehension of danger to the property. The person entitled to exercise that right can act before actual harm is done. It is not a right of retaliation and hence he need not wait until the aggressor has started committing the offence which occasions the exercise of his right of private defence. In this connection, reference may be made to the decision of Ray, C. J. on difference between Das and Panigrahi, JJ. in Khetri Bewa V/s. State, AIR 1952 Orissa 37 (H). 25. As I have already mentioned, the appellants had no time to seek the protection of the public authorities. Each party attacked the other simultaneously. Members of each party were using blunt as well as sharp cutting weapons. In these circumstances, appellant Barisa could not be expected to weigh his blowy in golden scales. He cannot, therefore, be held to have caused, more harm than was necessary for the purpose of defence. Thus, he did not act in violation of the restrictions provided by S. 99 of the Penal Code. 26. With great respect to the views expressed by my learned brother Ahmad, J,, therefore, I regret that I am unable to agree that appellant Barisas right of private defence of property did not extend to the causing of death or that he exceeded that right. 26. With great respect to the views expressed by my learned brother Ahmad, J,, therefore, I regret that I am unable to agree that appellant Barisas right of private defence of property did not extend to the causing of death or that he exceeded that right. I agree with the opinion of my learned brother Sinha, J. that appellant Barisa did not exceed the right of private defence of property. 27. Corning now to the question as to whether the appellants had the right of private defence of person, I do not find anything in Sections 96 to 106 of the Penal Code which can lend support to the view that a person entitled to exercise this right cannot exercise it until he has failed after taking other reasonable steps to avoid causing harm to his assailant. Section 99 imposes restrictions upon exercise of the right of private defence and no special restriction has been provided in it against exercise of the right of private defence of person. Sec.102 lays down that the right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises and continues as long as such apprehension lasts. There is no indication at all in this section that the right cannot be exercised until the man entitled to exercise it finds himself without any other means to avoid the encounter. Sec.105 lays down when the right of private defence of properly commences and how long it continues against the apprehension of commission of different offences. There is nothing in the section to show that the right of private defence of property stands on a better footing than the right of private defence of person. 28. The case of Farman Khan V/s. Emperor, AIR 1926 Pat 433 (I) is easily distinguishable from this case because the defence party was not found to be in possession in that case and there was ample time to seek the assistance of the police but Ross, J., who delivered the judgment of the Bench, quoted from Russcl on Crimes as follows : "Homicide upon chance medley (or chaude mellee) borders very nearly upon manslaughter and in fact and experience, the boundaries in some in-stances are scarcely perceivable, though in consideration of law they have been fixed. ....... ..... ....... ..... In all cases of homicide excusable by self defence, it must be taken that the attack was made upon a sudden occasion, and not premeditated or with malice; and from the doctrine which has been above laid down, it appears that the law requires that the person who kills another in his own defence should have retreated as far as he conveniently or safely could to avoid the violence of the assault before he turned upon his assailant; and that not fictitiously, or in order to watch his opportunity but from a real tenderness of shedding his brothers blood. ...... ...... The party assaulted must therefore flee, as far as he conveniently can, either until prevented by reason of some wall, ditch or other impediment or as far as the fierceness of the assault will permit him; for it may be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm, and then, in his defence he may kill his assailant instantly. Before a person can avail himself of the defence, that he used a weapon in defence of his life, he must satisfy the jury that that defence was necessary; that he did all he could to avoid it and that it was necessary to protect his own life or to protect himself from such serious bodily harm as would give him a reasonable apprehension that his life was in immediate danger. If he used the weapon having no other means of resistance and no means of escape, in such case, if he retreated as far as he could, he would be justified. (Russell, on Crimes, Eighth Edition, pp. 769-770). He then observed that the above statement of the law was based upon the authority of Rex V/s. Smith, (1837) 8 CP 160 (J), which was as valid in India as in England. With great respect, however, the law of private defence of person and property in this country is codified in Sections 96 to 106 of the Penal Code and I do not think that it is permissible to interpret the provisions of these sections on the basis of principles governing the right of self defence under the Common law of England. With great respect, however, the law of private defence of person and property in this country is codified in Sections 96 to 106 of the Penal Code and I do not think that it is permissible to interpret the provisions of these sections on the basis of principles governing the right of self defence under the Common law of England. The provisions are complete in themselves and the words used in the sections must be looked to for finding the extent and limits of the right. There are obvious differences between the English law and the Indian law relating to the right of private defence. For instance, a person has ordinarily no right of self defence of body under the English Law unless his own life or the life of someone standing in close relationship with him like husband or wife, guardian or ward, master or servant is threatened. On the other hand, the first clause of Section 97 of the Penal Code provides that a person has a right of private defence of body when his own life or that of any other person is in danger by reason of an apprehension that any offence affecting the human body would be caused. Again a difference is made under the English law between an apprehension of danger to life arising upon a sudden quarrel in which case the person who claims to act in self-defence must retreat as far as possible and attempt by other means to avoid killing his assailant before he can be held to have had that right. When, however, a person makes a deliberate endeavour by violence or surprise, to commit a felony i.e., to murder, rob, ravish or burn the house of another person, the latter need not retreat but may even pursue his adversary until he or she is free from danger. I do not find anything in Sections 96 to 106 of the Penal Code, which can enable the Court to adopt such a difference. It is of some interest to note in this connection that the Law Commissioners who, under the Presidentship of Lord Macauley prepared the original draft of the Penal Code did not claim in their report relating to Sections 96 to 106 that they were basing their draft of these sections upon principles of the Common law of England relating to the right of self-defence. Indeed, they stated that they had drafted those provisions in the light of what, in their view, was needed in the conditions prevailing in this country at the time. 29. The facts in the case of Gopal Naidu V/s. Emperor. ILR 46 Mad 605: (AIR 1923 Mad 523(2))(FB) (K), were different but a Full Bench of the Madras High Court laid down that, when the law is codified on a particular point, it has to be ascertained by interpreting the language used. It was also laid down that the Common law of England could not be invoked for ascertaining the criminal law in India, as it had been codified in the Penal Code and the Criminal Procedure Code. 30. Indeed, there is ample authority in support of the principle that codified law must be interpreted by reference to the language used in it. In Mt. Ramanandi Kuer V/s. Mt. Kalawati Kuer, 55 Ind App 18 : (AIR 1928 PC 2) (L), Lord Sinha, while delivering the judgment of the Judicial Committee, observed as follows : "It has often been pointed out by this Board that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law-- or of the English law upon which it may be founded." 31. In Emperor V/s. Dahu Raut, AIR 1935 PC 69 (M), a Division Bench of die Calcutta High Court had reduced the sentences imposed upon some appellants without issuing notices under Sec. 422 of the Code of Criminal Procedure and sending for the record under Sec. 423 (1) of the Code with the result that no one on behalf of the Crown was present at the time when the orders were passed. The question before the Judicial Committee was whether the Bench had acted legally. Lord Thankerton observed as follows : "The jurisdiction of the Count in these matters is statutory, and the Court, however admirable its intentions, is not entitled to go outside these provisions and -- in effect -- to legislate for itself. Chapter XXXI of the Code, as its title bears, is a complete code relating to appeals, and the appellate Court referred to includes other Courts than the High Court." 32. Chapter XXXI of the Code, as its title bears, is a complete code relating to appeals, and the appellate Court referred to includes other Courts than the High Court." 32. In Pakala Narayana Swami V/s. Emperor, AIR 1939 PC 47 (N), Lord Atkin, while discussing the interpretation to be put upon Sec.162 of the Code of Criminal Procedure, said : "In this case the words themselves declare the intention of the Legislature. It therefore appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interests of the prosecution or the accused." 33. In Thiagaraja Bhagvathar V/s. Emperor, AIR 1947 PC 113 (O), Sir John Beaumont said : "It is always dangerous to construe an Indian Act by reference to an English Act, however closely the language of the two Acts may approximate, and this is particularly true of Acts dealing with such a matter as trial by jury in which, as pointed Out by the Board in Abdul Rahim V/s. Emperor, 73 Ind App 77 : (AIR 1946 PC 82) (P), the attitude of the legislatures in the two countries has been dissimilar in many- respects." As I have already mentioned, the law relating to self defence under the Common law of England and the law relating to private defence under the Penal Code are also different in several respects. 34. In Piare Dusadh V/s. Emperor, AIR 1944 F.C. 1 (Q), Spens, C. J., observed that the question as to the meaning of a section must be "determined by a consideration of the words actually used and not by speculation as to why other words had not been used." 35. I do not consider it necessary to refer to other decisions. It seems plain that the Courts in India have to confine themselves to Sections 96 to 106 of the Penal Code in order to ascertain whether a right of private defence of person is available to a party in a particular case. 36. I do not consider it necessary to refer to other decisions. It seems plain that the Courts in India have to confine themselves to Sections 96 to 106 of the Penal Code in order to ascertain whether a right of private defence of person is available to a party in a particular case. 36. No decision of this Court other than that of Farman Khan has been brought to my notice in which it has been laid down that a person would not be entitled to act in exercise of the right of private defence of person unless he has fled "as far as he conveniently can, either until prevented by reason of some wall, ditch or other impediment or as far as the fierceness of the assault will permit him. On the contrary, I may refer to the cases of Subedar Singh V/s. Emperor, 14 Pat LT 228 : (AIR 1933 Pat 434) (R), Ramsagar Cope V/s. Emperor, 18 Pat LT 21 ; (AIR 1936 Pat 622), (S) and Summa Behera V/s. Emperor, AIR 1945 Pat 283 (T). 37. The facts in the case of Subedar Singh were very similar to the facts of the present case. The accused petitioners were ploughing the disputed land which was found to be in their possession and the complainants party attacked them with the object of preventing that land from being ploughed. Four men of the complainants party and three of the petitioners party received injuries, mostly by means of sharp cutting weapons like pharsas and bhalas. It was held that the petitioners had the right of private defence and they were entitled to defend themselves with dangerous weapons when the complainants party was armed with similar weapons. It is not clear from the report but it appears from the facts that their Lordships took the view that the petitioners had the right of private defence of person and possibly property also. 38. In Ramsagar Gopes case (S), their Lordships found the appellants to be in possession of the disputed land and to have grown the khesari crop which stood on that land at the time of occurrence. The appellants party went armed to the land and a mob of the prosecution party also came there. There was a clash between the two parties with the result that three men on the prosecution side were killed and others injured. The appellants party went armed to the land and a mob of the prosecution party also came there. There was a clash between the two parties with the result that three men on the prosecution side were killed and others injured. Some men on the appellants side were also injured. On a finding that the prosecution party was the first to assault one of the appellants, their Lordships held that the appellants had a right of private defence. It seems that their Lordships were of the view that the appellants had the right of private defence of person because the decision turned upon the question as to which party was the aggressor. There is nothing in the report to show that the appellants retreated or did their best to avoid causing harm to the members of the prosecution party. 39. In Summa Beheras case (T) also, there is nothing to show that the appellants retreated or made any attempt to avoid the conflict with the prosecution party. It was, however, held that they had the right or private defence of both person and property. 40. For the reasons given above I agree with my learned brother Sinha, J. and hold that the appellants had the right of private defence of person also. As there was a reasonable apprehension of death or grievous injury being caused to one or more of them, I am further of the opinion that appellant Barisa cannot be held to have exceeded his right of private defence. I regret that I am unable to agree with my learned brother Ahmad, J. 41. In the result, I hold that the appeal of Barisa, like that of the other appellants, should be allowed and he should be acquitted.