JUDGMENT : Rao, J. - These three Criminal Appeals involve common questions of fact as they arise out of the same occurrence and are therefore heard and disposed of together. 2. In Criminal Appeal No. 106 of 1956, the ten Appellants, to be referred to hereafter as Biswals, were convicted by Shri L. Panda, Additional Sessions Judge, Cuttack for being members of an unlawful assembly u/s 147, I.P.C. and were sentenced to undergo rigorous imprisonment for two years each. Appellant No. 9 Batakrushna Biswal and Appellant No. 8 Krushna Chandra Nayak were also convicted u/s 828, I.P.C. and were sentenced to undergo rigorous imprisonment for six months. The sentences of these two Appellants were to run concurrently. On the other charges all the Appellants were acquitted. Accused Gobardhan was acquitted on all the charges 3. The other two appeals, Criminal Appeal Nos. 107 and 130 of 1956 arise out of the convictions in the counter case. Four persons, Nityananda Malik, Banamali Malik, Beno Malik and Ghana Malik were convicted u/s 147, I.P.C. and were sentenced to undergo rigorous imprisonment for one year each. Criminal Appeal No. 107 is by Banamali Malik and Criminal Appeal No. 130 is by Nityananda Malik, Benu Malik and Ghana Malik. 4. Criminal Appeal No. 106 of 1956- Eleven persons were charged for an offence u/s 148, I.P.C. Appellant Duryodhan Biswal was further charged for the offence of murder and the rest of the Appellants along with the accused acquitted were also charged for the same offence of murder read with Section 149, I.P.C. Appellant Jagannath Biswal was further charged for abetment of the offence of murder punishable u/s 302/109 I.P.C. Appellants Anadi Biswal, Ankura Biswal, Nityananda Biswal, Batakrushna Biswal, Dhaneswar Biswal, Krushna Chandra Nayak, Adikanda Biswal and the acquitted accused Gobardhan were charged individually for offences u/s 323, I.P.C. and Appellants Duttahari Biswal, Ankura Biswal and Duryodhan Biswal were further charged for an offence u/s 524, I.P.C. and the rest of the other accused besides the above three persons were also charged for the offence u/s 824 read with Section 149, I.P.C. As already stated, they were acquitted of all the other offences except those specified above. 5. 5. The prosecution case is briefly as follows:Mouza Pentapal samil Kulasahi within the Pattamundai Police Station appertain's to the ex-zamindari of Raja Manmathanath Deb of Balasore, called as the Bari Estate and by the side of the river Baitarani which flows by the side of this village is situate a long strip of land called Pala lands. According to the prosecution case, for the last 17 or 18 years the deceased Bhaji Malik, father of P.W. 9 Nityananda Malik, and other Harijans of mouza Kulasahi were Bhag tenants for about 7 acres of these Pala lands and were all along in possession, having got the lands by an unregistered lease from the Manager of the Zamindar as per Ext. 5 and paying rent as per Exts. 6/1 and 6/2. In the year 1955 also, Bhaji Malik and others had raised Mung crop on these lands. It is stated that on 23-2-1955, all the Appellants and the acquitted accused Gobardhan together with another 400 Or 500 persons went armed to the land and began uprooting the Mung crop which was said to have been still unripe by then and Bhaji Malik getting information of the same from P.W. 13 went to the land along with P.Ws. 1,4,7 and others and found there the Appellants as also the other accused acquitted standing armed whereas the others who went along with them were uprooting the Mung. It is alleged that Bhaji Malik went near the accused persons and questioned them as to why they were uprooting the Mung while the dispute between the parties regarding possession of the land was still undecided. There was an exchange of words between Bhaji Malik and Appellant No. 1 Jagannath Biswal when the latter ordered the other accused to assault Bhaji whereupon Appellant No. 2 Duryodhan gave a blow 00 Bhaji's head with a wooden roller as a result of which Bhaji fell down and thereafter he gave another blow and Appellants Ankura and Nityananda also dealt blows on Bhaji's leg. It is stated that P.W. 1 Radhu as well as Ghana Malik protested against this action of the Appellants whereupon they were also assaulted by them which was the subject matter of specific charges regarding the assault on each of them. Then Banamali Malik, Benu Malik and other persons were also assaulted after which the Appellants left the land carrying away the Mung with them. Then Banamali Malik, Benu Malik and other persons were also assaulted after which the Appellants left the land carrying away the Mung with them. Bhaji Malik in an unconscious condition was carried to the Pathmundai hospital where the injured Ghana Malik and Benu Malik also went. P.W. 1 Radhu Malik went to the Pattamundai Police Station and made a report to the Assistant Sub-Inspector (P.W. 15) who was then In charge of the Police Station. He recorded the First Information Report (Ext. 1) and sent requisitions under Exts. 7 series for medical examination of Radhu Malik, Banamali Malik, Nityananda Malik, Bhaji Malik, Ghana Malik and Benu Malik. At 5 P.M. the investigation was taken over by the Sub Inspector of Pattamondai (P.W. 18). On the same evening, Bhaji Malik died at the Pattamundai Hospital. Inquest and postmortem examination were held. 6. It may be noted here that at the instance of one of the Biswals, the Appellant party, a case u/s 447, I.P.C. was started against the Matiks, the prosecution party. That Case just prior to the occurrence ended in a final report by the police. But on the police report, a prohibitory order u/s 144, Code of Criminal Procedure was served on the Maliks with reference to this land prohibiting them from entering upon the land and at the time of expiry of this order, the Magistrate made an order to start proceedings u/s 145, Code of Criminal Procedure against both parties with a view to finally decide their dispute regarding possession of this land. 7. The Appellants pleaded not guilty to all the charges. Appellants Jagannath, Duryodhan, Anadi, Krushna, Adikanda and the acquitted accused Gobardhan stated that they had nothing to do with the land In question and did not go upon the land at the time of the alleged occurrence. Appellants Ankura, Nityananda, Batakrushna, Duttahari and Dhaneswar stated that the occurrence which took place was not in the manner as alleged by the prosecution. Appellants Ankura, Nityananda, Batakrushna, Duttahari and Dhaneswar stated that the occurrence which took place was not in the manner as alleged by the prosecution. They put forward a definite case that the Pala lands In question were in the cultivation of Bikal Biswal, Adikanda Biswal, Raghu Biswal and Bhima Biswal since about 30 years under the Zamindar as Bhag tenant,; and subsequently on the basis of a compromise as Khajana tenants and these Biswals had raised Mung in the year in question and that the Maliks without any manner of right had once trespassed upon the lands for which there was a case u/s 447, I.P.C. restraining the Maliks from entering upon the lands. They further stated that on the morning of occurrence, they along with others about 13 in number were uprooting the Mung when a large number of Maliks Including P.Ws. Nityananda and Ghana and others came there armed with lathis and Tentas and Ghana Malik gave a Tenta blow to Chakradhar Biswal (D.W. 5) and after that the Maliks attacked them when these Appellants defended themselves with the help of the Bahungis or bamoo poles which they had carried for the purpose of getting the Mung in Bhars' They also stated that by brandishing these Bahungis, they succeeded in coming away from the land with the Mung as the party of the Maliks left the land. They denied any assault on Bhaji Malik or any other injured Maliks. The case thus set up by the Appellants before the learned trial Judge was a case of self defence and private defence of property. 8. The prosecution examined 19 witnesses to prove its case and the Appellants examined 7 witnesses on their side. Both sides adduced also documentary evidence relating to the possession of the property in dispute. 9. After a very careful discussion of the entire oral and documentary evidence in the case, the learned Additional Sessions Judge came to the conclusion that it was an undisputed fact that there was an occurrence on the morning of 23-2-1955 on the Pala lands by the side of the river Baitarani in mouza Penthpal samil Kulasahi and it related to the harvesting of the Mung crop then existing on that land. Appellants Dhaneswar, Duttahari. Batakrushna, Ankura and Nityandanda came on the Pala land along with the other persons and began to uproot the Mung crop on the morning of 23-2-1955. Appellants Dhaneswar, Duttahari. Batakrushna, Ankura and Nityandanda came on the Pala land along with the other persons and began to uproot the Mung crop on the morning of 23-2-1955. On seeing this, the prosecution witnesses, the Maliks including P.W. 9 Nityananda, the deceased Bhaji Malik and others went there. There was mutual brandishing of sticks and lath is between both the parties. Therefore the learned Judge came to a definite finding that there was an occurrence on the land on the morning of 23-2-1955. The learned Additional Sessions Judge also came to the conclusion that the prosecution story disclosed In the First Information Report that the occurrence of assault On P.W. l took place in the Bastee area of the Harijan Sahi, but not on the land was not true. He held that it was not improbable that the Maliks including P.W. 1 Radhu Malik who was one of the persons prohibited u/s 144, Code of Criminal Procedure was still in force and therefore naturally suppressed that the occurrence took place on the Mung land and stated that the occurrence took place outside the land. But It is curious that the learned Additional Sessions Judge accepted this version of the prosecution witnesses. 10. The learned Additional Sessions Judge also came to the conclusion on a review of the prosecution evidence that six of the prosecution party Bhaji Malik, Nityananda Malik, Raghu Malik, Ghana Malik, Benu Malik and another Banamali Malik who was not examined in the Sessions Court did receive injuries. The Medical Officer (P.W. 3) examined Bhaji Malik and found one lacerated wound and a bruise on the parietal region and forehead respectively besides seven other injuries on various parts of his body as per Ext. 4/1, the injury report, the age of the injuries being less than 24 hours. According to the evidence of the Medical Officer, Bhaji Malik died on the same day at about 7 P.M. and the post-mortem examination of his body was made by P.W. 2 on the next day, that is, on 24-2-1955 at 11 A.M. According to the post-mortem report, the Medical Officer found fracture of the temporal region and base of the skull and other injuries as found in that report and in his opinion the fracture of the skull was sufficient in the ordinary course of nature to cause death. P.W. 3, the Medical Officer, examined Nityananda Malik (P.W. 9). P.W. 3, the Medical Officer, examined Nityananda Malik (P.W. 9). Banamali Malik, Ghana Malik (P.W. 4), Benu Malik (P.W. 7) and Radhu Malik (P.W. 1) and found on their persons various injuries as per injury reports (Exts. 4/2, 4/3, 4/4, 4/5 and 4/6) showing that each of these persons had bruises, abrasions and lacerated wounds on their persons. On this evidence, the learned Judge came to the conclusion that it was established that Bhaji Malik died and the other prosecution witnesses were injured as a result of the assault inflicted on them by their assailants at the occurrence which admittedly took place on the Mung land on 23-2-1955. Then the learned Judge discussed the evidence regarding the complicity of the Appellants in causing these injuries and came to the conclusion that the Injuries were caused by the Appellants as stated by the prosecution. This aspect of the case need not be discussed in detail by me as the learned Counsel for the Appellants frankly and fairly conceded that he was not going to challenge the prosecution evidence with regard to the causing of the injuries by the respective Appellants, in case the point contended for by him that the Appellants were protected from any liability on account of the plea of private defence put forward by them was not accepted. 11. The learned Counsel very strenuously contended that in this case on the evidence for the prosecution as well as the defence the Appellants were not guilty as the acts alleged to have been done by them were done in exercise of the right of private defence of person and property. The plea of the Appellants is that the Maliks were never in possession of the lands which were in possession of Raghu Biswal and others; that they are the recorded tenants of the Zamindar; and that they had grown Mung and were harvesting it when it was ripe and it was P.W. 4 Ghana Malik and others who went armed and assaulted Chakradhar Biswal (D.W. 5) and surrounded the others and there was simply brandishing of the lathis when the Malik party receded. As has been observed by the learned Additional Sessions Judge, P.W. 1 Radhu Malik, P.W. 7 Benu Malik and the other Maliks who have deposed about the occurrence have all deposed that seeing the Biswals uprooting the Mung on the land, they went unarmed to question them about their conduct and the load was taken by the deceased Bhaji Malik who went and questioned Appellant Jagannath who ordered the assault. According to the evidence of the defence witnesses and the statements made by the respective Appellants, the Biswals had gone very early in the morning about one Ghadi before dawn. They were collecting the Mung from the land. The Matiks started from their house abusing the Biswals and also carrying arms and apprehending that they would use force. When the Biswals were coming away the Maliks chased them and Chakradhar was assaulted. The learned Judge concluded, after discussing all the evidence that the defence version of the occurrence could not be accepted as there was not even a single injury on any of the eleven accused persons Including the five persons who admitted their presence on the spot and that it had not been made out that Raghu Biswal and other persons who were said to have gone to the land at that time were in any way injured. Mr. Kanungo, the learned Counsel, contends that In this conclusion the learned Additional Sessions Judge is wrong. He submits that the learned Judge has not taken into consideration that the story put forward by the Appellants was that they retreated brandishing their Bahungis and In such a case it is quite possible that the Biswal party might not have received any injury and the prosecution party might have received some injuries on account of the said brandishing in exercise of their right of private defence. The teamed counsel also submits that the learned Additional Sessions Judge, though he noted that Chakradhar Biswal (D.W. 5) was injured on his arm at about the time of occurrence, did not give due importance to that fact in coming to the conclusion that the version of the Appellants that the Maliks first attacked Chakradhar and then attacked them, did not seem to be true. Mr. Mr. Kanungo also submits that the teamed Judge was wrong in coming to the conclusion that the Appellants did not carry any Bahungis as they took carts to carry away the Mung crop as also it was carried in head-loads. 12. Mr. Kanungo pointed out that the learned Additional Sessions Judge came to the conclusion that two of the Maliks were armed with lathis when they went upon the land and that the Maliks seeing the Biswal party uprooting the Mung went to the land and questioned the Biswals about their action. It is contended by Mr. Kanungo that in the First Information Report (Ext. 1), P.W. 1 Radhu Malik did not disclose the present story of the prosecution, nor Nityananda Malik who was admittedly present at the time of recording the First Information Report gave out the present prosecution story-and though the Sub Inspector who Investigated Into the case had opportunity to examine the Maliks who were in the Patamundai Hospital on the very day, he did not examine any of the witnesses and it is for the first time on 26-2-1955 he could get the details of the occurrence by examining the witnesses and consequently it is contended by the learned Counsel that the prosecution story was a belated one not found in the First Information Report and invented for the first time on 26-2-1955. The learned Additional Sessions Judge erred in accepting the explanation of the Sub Inspector (P.W. 18) and the Circle Inspector (P.W. 19) that they could not examine Nityananda, Ghana and others as they were, in the hospital, being treated for their injuries. The learned Counsel also submitted that the learned Additional Sessions Judge was wrong in holding that the fact that Chakradhar had received injuries in the absence of any other injury on any of the other Biswals did not justify a conclusion that there was mutual assault and that the members of the Biswal party assaulted the Maliks when Bhaji Malik gave out that there would be Foujdari or Marpit. Mr. Kanungo contends that there would be Foujdari or Marpit and if the assault was made afterwards, it would be a Case of -the exercise of the right of private defence. 13. Mr. Kanungo contends that there would be Foujdari or Marpit and if the assault was made afterwards, it would be a Case of -the exercise of the right of private defence. 13. Coming now to details the main contention advanced by the learned Counsel that the Appellants were protected by the rights of private defence as they were decidedly in possession of the disputed land for the last 30 years and raised the Mung crop and when they were uprooting the Mung and carrying the same, the Malik party came, threatened them with assault and obstructed them on their land from doing the same the case of the Appellants is as follows: The contention before the learned Additional Session Judges by the Appellants, as already stated above, was that the documentary evidence and the circumstances of the case would all point to the fact of the Biswals having been in possession of the land since about 30 years and when they had gone to harvest the Mung which they had sown, they had the light under the la w to prevent by force the trespass by the Maliks on their land and the law also gave them the right to have gone prepared to meet any possible obstruction while exercising their legal rights. The prosecution contended that the evidence showed that the Maliks alone were in possession of the land and that in any view of the case it could not be denied that the Maliks had a bonafide claim over this land and both parties were trying to take forcible possession and there were disputes pending between them in courts of law and therefore it could not be said that the Biswals were in peaceful possession of the land so that they could get a right of assaulting the Malik treating them as trespassers. Mr. Kanungo commented upon the use of the expression "peaceful possession". It is certainly undisputed possession. This contention raised by the Appellants requires a careful scrutiny as it was the only contention on which the learned Counsel relied upon for an acquittal of the Appellants. The evidence in the case clearly shows that the Appellant party was in possession of the land and that it was the prosecution party who once or twice only tried to take possession of the land in which they failed. Mr. The evidence in the case clearly shows that the Appellant party was in possession of the land and that it was the prosecution party who once or twice only tried to take possession of the land in which they failed. Mr. Kanungo contends that the learned Additional Sessions Judge was wrong in saying that there was merely a scramble for possession by the Appellant party. D.W. 6 is a clerk of the Jajpur Anchal Office which has since taken charge of the Bari Ex-State of Raja Manmathanath Deb since 1-5-1954 as the Estates vested in the State. According to his evidence, Khata No. 695 of mouza Kolasahi has been divided in the names of 15 tenants and 6.78 acres (the disputed land) stand recorded in the names of four persons including Raghu Biswal, the plot number being 4224. This was done in pursuance of a compromise effected between the Zamindar and these recorded Biswals. According to the evidence of Bijoy Govind Das (P.W. 17) who was the manager of the Estate till the year 1947 as well as Exts. K, K/2, M, N/1 and N/2, it is clear that in the year 1953-1954, Raghu Biswal and three others had filed petitions under the Orissa Tenants Protection Act as well as the Orissa Tenancy Act against the Zamindar regarding this very Pala land, 10 acres in extent, and the same litigation was compromised whereby out of the total area 10 acres the Zamindar agreed to recognise these Biswals as tenants' on Khajana basis for 6. 18 acres and the rest 3.22 acres were agreed to be kept under Khas possession of the Zamindar and according to the evidence this area of 3. 22 acres was leased out by the Zamindar to some others. P.W. 17 also stated that as per Ext. I, a certified copy of the judgment in Title Suit No. 12 of 1942 and Ext. E, the written statement in that case, in the year 1942 there was a suit between the Raja of Aul and Manmathanath Deb regarding title of these river-side land and in the written statement filed in the year 1942 it was stated for Manmathanath Deb that some of these Pala lands were in possession of Raghu Biswal and others. The Appellants have also proved Exts. The Appellants have also proved Exts. L/1 and L/2, one being a bhag receipt in the name of Adikanda Biswal purporting to be of 1356 and another rent receipt purporting to be of the year 1955. In one of the miscellaneous cases of the year 1953-1954, the crops were attached and according to the evidence of the Chaklo Kanungo (D.W. 1) and the report under Ext. J series, it is clear that a share of the crops was ordered to be given to the Biswals. On this evidence the learned Counsel contends that the Appellants clearly made out that they were in possession of the disputed land, He also contends that this evidence coupled with the proceedings in the case u/s 447, I.P.C and those under Sections 144 and 145, Code of Criminal Procedure clearly make out undisputed possession on the part of the Biswal party. As is seen from the evidence of P.W. 16 Muralidhar Mohanty and the First Information Report in the case of criminal trespass (Ext. 17), on 19-11.1954 the Biswals began to plough this land and one hour after that the Maliks also came there claiming right of possession over the land and they also ploughed the land and had gone with Kulthi. Before the committing Magistrate P.W. 16 also stated that the Biswals, after the Maliks entered, left the land with their ploughs and bullocks. Mr. Kanungo contends that On this evidence the learned Additional Sessions/Judge erred in coming to the conclusion that the prosecution party exercised acts of possession. It is in evidence of P.W. 16 that the Biswals left the land only on account of his asking them to do so to avoid a serious riot. The promulgation of the order u/s 144, Code of Criminal Procedure before a final report was made u/s 447, I.P.C. by which the Matiks were restrained from entering upon the land, shows that it was the Biswals who were in actual possession of the land. The report of the Sob Inspector of Pattamundai Police Station (Ext. The promulgation of the order u/s 144, Code of Criminal Procedure before a final report was made u/s 447, I.P.C. by which the Matiks were restrained from entering upon the land, shows that it was the Biswals who were in actual possession of the land. The report of the Sob Inspector of Pattamundai Police Station (Ext. 13/1) clearly shows that on enquiry made by him, an area of 6.78 acres of Pala lands under plot No. 4251/4124 in Khata No. 695 in Touzi No. 1423 under the Bari Estate is given on bhag system by the said estate to Bikal Biswal, Raghu Biswal, Adikanda Biswal and Bhima Biswal, since the last 37 years and lastly the estate granted the same lands on rent to the aforesaid tenants since 27-4-1954. He also narrated in detail the circumstances which show that Bikal Biswal, Raghu Biswal, Anadi Biswal and Bhima Biswal are the real possessors of the land and none else. The circumstances noted by him are as follows: Title Suit No. 12 of 1942 disposed of on 21.9.1943 in the Court of the Munsif at Kendrapara was decided on the strength of the contention of the Zamindar of the Bari Estate that the Pala lands were in possession of the Biswals. He also cited the compromise and the proceedings under the Orissa Tenants Protection Act. He made a categorical statement that the decisions of the above cases clearly showed that Bikal Biswal, Adikanda Biswal, Raghu Biswal and Bhima Biswal were the actual bhag tenants of the said lands also and they were in peaceful possession of the lands for more than 12 years continuously. It is also stated in Ext. IS/I that In spite of the peaceful possession of the Biswals the Malik Harijans created unnecessary and unlawful troubles in the locality over the innocent peaceful possession in attempting to get forcible possession over the land in question by show of violence and threat though they had no right over the land in any way. It is also stated that the Harijans were instigated to create disturbance by one Shri Baishnab Charan Das, a most litigious tout of the locality. The Maliks produced before the Sub-Inspector a plain paper Patta purporting to have been executed by the then Manager Shri Bijoy Govind Das of the Bari Estate on 13.4.1938 having no seal or number of the estate. The Maliks produced before the Sub-Inspector a plain paper Patta purporting to have been executed by the then Manager Shri Bijoy Govind Das of the Bari Estate on 13.4.1938 having no seal or number of the estate. Though the Sub Inspector was of opinion that the patta appeared to be a forgery and though he opined that the Harijans had no claim at all over the land in any away, there was an apprehension of breach of the peace and consequently pending the investigation of the case u/s 447, I.P.C., on these allegations he prayed for an order u/s 144, Code of Criminal Procedure. An order u/s 144, Code of Criminal Procedure was promulgated accordingly on 27-11-1954 as per Ext. 14. It is therefore clear from the plea set up by the defence as well as from the evidence of the Investigating Officer and Exts. 13/1 and 14 that by November 1954 the Biswals were in possession of the disputed land and the act of criminal trespass complained of was only a sporadic act. It is surprising why on the face of this report the Police did not start a case u/s 447 I.P.C. 14. The prosecution story that they were in possession of these lands from the year 1938 under Ext. 5, an unregistered Patta, cannot in my opinion be accepted. P.W. 17 Bijoy Govind Das stated in his examination-in-chief that Ext. 5 appeared to be in the hand-writing of one Gajendra Mohanty who was working as Law Moharir of the Zamindar and though he admitted his signature in Ext. 5, he denied that Exts. 6/1 and 6/2 the rent receipts were in the signature of Pravakar Biswal in whose signature they purported to be, though he admitted that Pravakar Biswal was a Tahsildar under the estate. In his cross-examination, he definitely stated that he did not remember to have granted any Patta like Ext. 5 to the persons named therein j that he had no power to grant any lease for an indefinite period; and that though the signature in Ext. 5 looked like, his own, he doubted its genuineness as the Patta was neither numbered nor sealed according to the procedure which was then obtaining in the Zamindar's estate. He also admitted that so far as he knew, the Biswals were Bhag tenants for the disputed land under the Zamindar. 5 looked like, his own, he doubted its genuineness as the Patta was neither numbered nor sealed according to the procedure which was then obtaining in the Zamindar's estate. He also admitted that so far as he knew, the Biswals were Bhag tenants for the disputed land under the Zamindar. On this evidence relating to possession by either side, the learned Additional Sessions Judge, by commenting that the rent receipts were not continuous; that the Jamabandi in the name of Raghu Biswal was in pursuance of the compromise; and that it was not competent for him to decide as to which party had valid title, came to the conclusion that whatever was the state of things prior to the filing of the miscellaneous cases, subsequent to it the Maliks began to put forth a claim for the land by trying to be impleaded in one of the miscellaneous cases and that they actually entered upon the land and exercised a right of possession by sowing and ploughing the land which the Biswals had ploughed on the very day before them. He therefore held that as a case u/s 447, I.P.C. was started against the Maliks and an order u/s 144 Code of Criminal Procedure was promulgated prohibiting them to enter upon the land for a period of two months which lost its force by 27-1-1955 and as the authorities proposed to start proceedings u/s 145, Code of Criminal Procedure and as at this stage the Biswals went armed very early in the morning to get away the Mung crop and then there was obstruction by the Maliks resulting in this crime, it was clear that there was a scramble for possession of this land since some time prior to the occurrence and It could not be said that the Biswals were in peaceful possession of the land or, that for the first time the Maliks trespassed upon the land on the date of occurrence. In this view, I am of opinion that the learned Additional Sessions Judge entirely erred. The documentary evidence in the case coupled with the admissions of some of the prosecution witnesses themselves clearly establishes that it was the Biswal party which was in possession for the last 30 years. Their possession is even evidenced by orders of Court. In this view, I am of opinion that the learned Additional Sessions Judge entirely erred. The documentary evidence in the case coupled with the admissions of some of the prosecution witnesses themselves clearly establishes that it was the Biswal party which was in possession for the last 30 years. Their possession is even evidenced by orders of Court. The mere fact that the Maliks trespassed upon the land in November 1954 and ploughed it cannot lead to the inference that they were in possession of the land. The report of the Investigating Officer, as already stated, in the case of criminal trespass clearly - shows that it was the Biswals who were in possession of the land and that the prosecution party was creating trouble by producing a forged Patta. An order u/s 144, Code of Criminal Procedure was issued by the Magistrate prohibiting the prosecution party from entering upon the land and there was in contemplation the starting of a proceeding u/s 145, Code of Criminal Procedure as there was an apprehension of breach of the peace with regard to immovable property. These factors clearly show that the possession of the land was with the Biswal party. A claim of right on the part of the prosecution party does not in any way militate against the actual possession of the Biswal party. The Biswal party had gone On the date of occurrence to the field, about 6.78 acres in extent, for the purpose of removing the Mung crop and carrying it to their houses. They went there with carts and Bahungis. When they were in the act of removing the crop, the Maliks went there armed with lathis and Chakradhar Biswal who was on the land at some place was injured. The prosecution story that the Mung crop removed was unripe cannot be accepted. The unripe Mung crop, which according to the Investigating Officer was seized by him, though exhibited in the committing court was not produced before the learned Additional Sessions Judge by the prosecution on the ground that the same was mislaid somewhere. On such a flimsy explanation by responsible officers concerned in the investigation, the Sub Inspector as well as the Circle Inspector, the learned Judge ought not to have accepted their evidence that the crop which was removed on the day of occurrence was unripe Mung crop. On such a flimsy explanation by responsible officers concerned in the investigation, the Sub Inspector as well as the Circle Inspector, the learned Judge ought not to have accepted their evidence that the crop which was removed on the day of occurrence was unripe Mung crop. The date of occurrence was 23-2-1955 and the Mung crop might have been ripe by that time and the disappearance of the said crop which was produced in the committing court but was not produced in the Sessions Court must have been caused by a deliberate act. Material objects offer true evidence. Their disappearance after their seizure and production in court on flimsy grounds like their being misplaced somewhere by responsible Investigating Officers should not be easily accepted by Sessions Judges. The Investigating Officers should bear in mind that their conduct in saying that material objects disappeared will be seriously dealt with and they should be very careful to see that they are properly preserved and produced in Court. It is unfortunate that in this case though they were produced In the committing court from which date the committing Magistrate was n custody of the same, he has not given any explanation as to how they disappeared. This is the evil of keeping material objects which are in the legal custody of the Magistrate or of the Sessions Judge in the custody of a Sub Inspector in charge of the Malkhana. The sooner the practice is dispensed with, the better for the administration of criminal justice in the State. Under those circumstances, the explanation offered by the Appellants that they acted in exercise of the right f private defence of property and person is a reasonable explanation and this can be made out even on the basis of the prosecution evidence. In the case of Summa Behera and Others Vs. Emperor decided by a Division Bench of the Patna High Court consisting of Sinha and Das, JJ. it was held, It is not the law that the rightful owner in peaceful possession of property most run away, if there is an actual invasion of his right and an attempt on his person. Emperor decided by a Division Bench of the Patna High Court consisting of Sinha and Das, JJ. it was held, It is not the law that the rightful owner in peaceful possession of property most run away, if there is an actual invasion of his right and an attempt on his person. The person in possession of property is entitled to defend himself and his property by force and to called such numbers and such arms as are necessary for that purpose, if he sees an actual invasion of his rights, which invasion amounts to an offence under the Penal Code, and when there is no time to get police help. It is lawful for a person, who has seen an invasion of his rights, to go to the spot and object. It is also lawful for such person, if the opposite party is armed, to take suitable weapon for his defence. The accused in the above case were in possession of a mango tope which belonged to them, for 15 or 20 years. A and his men one morning entered the tope, plucked mangoes, ploughed a portion of the land and went away. On hearing of this incident the accused collected a large number of persons about a furlong from the mango tope. Thereupon A and his men came again armed to the tope and challenged the accused to come and pluck mangoes at their risk whereupon a fight ensued in which A and his party were the aggressors. A number of injuries were caused to men on both sides and two of the men of A's party were killed. It Was held on these facts that the accused has the right of private defence of person and property and were entitled to acquittal. This case supports the contention advanced by Mr. Kanungo. 15. I am therefore of opinion that the conviction and sentence of the Appellants should be set aside, and direct they be acquitted of the offences for which they were convicted and the appeal be allowed. Their bail bonds shall be cancelled. 16. Criminal Appeal Nos. 107 and 130 of 1956. These appeals arise out of the convictions in the counter case. About 13 persons were tried by the learned Additional Sessions Judge on charges under Sections 148, 326 and 326/149, I.P.C. Nine persons were acquitted and four were convicted. Their bail bonds shall be cancelled. 16. Criminal Appeal Nos. 107 and 130 of 1956. These appeals arise out of the convictions in the counter case. About 13 persons were tried by the learned Additional Sessions Judge on charges under Sections 148, 326 and 326/149, I.P.C. Nine persons were acquitted and four were convicted. These two appeals are one by Banamali Malik and the other by the other three Appellants. 17. The prosecution case was that Raghu Biswal and others were recorded tenants for 6. 78 acres of Pala land, the same land as is the subject matter of dispute in the other appeal; that the BiswaIs grew Mung crop in 1954.1955 j and on 23.2.1955 when they had been to harvest the said crop from the said land, the thirteen accused persons as well as various other Maliks came armed to the land and attacked them, accused Nityananda Malik causing a grievous injury to Chakradhar Biswal with a Tenta. It is further stated that Biswals defended themselves with the help of bamboo poles which they had carried for the purpose of carrying the Mung crop in Bhar and succeeded in taking the same from the land. Chakradhar Biswal made a report on 24.2-1955 to the S b Inspector of Police (P.W. 11) who had been to the village to make investigation in connection with the counter Case. 18. The accused pleaded not guilty to the charge and they set up the defence as was disclosed in the prosecution case which is the subject matter of Criminal Appeal No. 106 of 1956. I have dealt with the respective cases of both the parties in my judgment above. 19. The only contention raised by Mr. G. Rath, appearing for Banamali Malik is that Banamali did not admit before the Court and that he denied his complicity in the occurrence, and as such the learned Additional Sessions Judge in view also of the evidence of P.Ws. 4 and 8 erred In convicting him. The learned Judge having acquitted the other nine accused in that Case observed that as regards the rest it was evident that Nityananda Malik, Banamali Malik, Benu Malik and Ghana Malik had sustained injuries on their persons at the occurrence and therefore they undoubtedly took part in the same. Nityananda, Benu and Ghana admitted before the learned Additional Sessions Judge that they went to the land. Nityananda, Benu and Ghana admitted before the learned Additional Sessions Judge that they went to the land. Banamali denied before the learned Additional Sessions Judge of his going to the land though he stated of being present in the committing Magistrate's Court which statement was admitted u/s 287, Code of Criminal Procedure. The learned Judge also held that the Maliks if they found that the Biswals were taking away the Mung from the land where there was dispute, could have as well gone and reported to the authorities concerned but they had no right to have gone prepared for a fight with the Biswals who had already come prepared for the same purpose collecting various other men. But P.W. 4 Hadibandhu Sutar stated that in the crowd he did not specifically mark accused persons Basu, Anam and Kanhei. The evidence of P.W. 4 is only to the effect that the Maliks 12 or 13 in number came abusing holding Tentas and lathis and all these 13 persons had then come and he knew them In his evidence he did not name Banamali specifically. P.W. 8 stated in his evidence that he did not remember if Banamali was among the 13 accused. No doubt Banamali had also an Injury on his person, but the learned Additional Sessions Judge in his examination of this Appellant u/s 342 Summa Behera and Others Vs. Emperor, did not put any question to enable the Appellant to explain the injury on him. This is a grave irregularity. On these facts, the guilt of this Appellant is doubtful. I give him the benefit of doubt and acquit him of the offence u/s 147, I.P.C. His appeal is allowed and his bail bond is cancelled. 20. The three Appellants in Criminal Appeal No. 130 of 1956, according to the evidence, had injuries on their persons. The occurrence is admitted though the version of both the parties is different. These three Appellants Nityananda, Benu and Ghana through their learned Counsel Mr. D.C. Sahu contended that it was the Maliks who were in possession of the disputed land according to the Patta of 1938 and that they grew the Mung crop and it was the prosecution party that came and wanted to interfere with their possession. The learned Counsel also contended that the evidence as against these three Appellants was not satisfactory. D.C. Sahu contended that it was the Maliks who were in possession of the disputed land according to the Patta of 1938 and that they grew the Mung crop and it was the prosecution party that came and wanted to interfere with their possession. The learned Counsel also contended that the evidence as against these three Appellants was not satisfactory. The learned Additional Sessions Judge clearly discussed the evidence as against these three Appellants and came to the conclusion that their guilt is proved beyond all possibility of doubt. They had injuries on their bodies. They admitted their presence at the occurrence and the prosecution witnesses stated to their presence and the part they took, along with others. In my opinion, therefore, the conviction of these Appellants Is correct. Their conviction and sentence are confirmed and the appeal is dismissed. (Appeal dismissed.) Final Result : Dismissed