JUDGMENT : Barman, J. - This is an appeal by seventeen Appellants from an order of conviction and sentence passed by the learned Additional Sessions Judge, Cuttack, convicting them under Sections 304/34, 148, 325 325/149 and 323 Indian Penal Code and sentencing them to undergo rigorous imprisonment ranging from five years to three months in S.T. No. 27 C of 1958. 2. The matter arose out of an incident of a fight between the accused-party and the prosecution party on a plot of land in tauzi No. 1301/1 at Danpur within Mahanga Police Station of the district of Cuttack. The land is stated to be 13.02 acres in area. The genesis of the dispute between the parties was that both claimed, at the time of the incident, right to the land on the strength of their respective alleged arrangement with the landlord. The simple facts are these: In 1945 one Pradhan Das (deceased), who was the landlord in respect of the land in question, leased out the land to several persons belonging to the prosecution party including p.ws. 1, 2 and 7-18. These tenants are stated to he had the lease under their respective Pattas granted to them by there said landlord Pradhan Das. In October 1951 Pradhan died leaving him surviving his so Bijoy (d.w. 7), the landlord at the time of the occurrence. After the fathers death the son, the new landlord Bijoy let out to several persons belonging to the accused-party the said land on Bhag basis. It is said that the new landlord took away the Pattas from his father's tenants and thus entered into anew arrangement with the accused-party as Bhagchasis under him, as aforesaid. This position led to a dispute between the accused-party and the prosecution party which continued for several years with the result that in 1955 and 1956 there were two criminal proceedings u/s 145 Code of Criminal Procedure (Ext. J and J a-preliminary orders; exts. K and K-a being final orders in respect there of). Ultimately, however, the proceedings u/s 145 were dropped. There were also proceedings u/s 107 Code of Criminal Procedure (exts. 1 and L-a). On January 16, 1958 the proceedings u/s 107 Code of Criminal Procedure were also ultimately dropped. There appears to have been a pause for two months thereafter. K and K-a being final orders in respect there of). Ultimately, however, the proceedings u/s 145 were dropped. There were also proceedings u/s 107 Code of Criminal Procedure (exts. 1 and L-a). On January 16, 1958 the proceedings u/s 107 Code of Criminal Procedure were also ultimately dropped. There appears to have been a pause for two months thereafter. On March 21, 1958 which was the date of the incident, there was a fight between the two parties, namely the accused-party (hereinafter referred to as the son's tenants) and the prosecution-party (hereinafter referred to as the father's tenants). Both the father's tenants and the son's tenants appear to have been under the belief that they each had a right to be in possession of the land in question by virtue of their respective alleged arrangement with the landlord. The prosecution version of the incident was that the father's tenants including p.ws. 1 2, 7, 9 and 10 on the fatal day were cultivating the land claiming their title on the basis of the respective Pattas from the deceased father landlord. While so doing, forty persons including the seventeen accused (who are Appellants in the present appeal) belonging to the accused-party claiming to be son's tenants attacked with lathis. Betho Nasis, brickbats and asked the p.ws. 1, 2, 7, 9, and 0 to get out; 'and while pursuing the demand for their eviction from the land assaulted the said prosecution witnesses. While this was going on Gouranga, the deceased, who was the unfortunate victim happened to pass that way and intervened. Thereupon, the accused-Appellant No. 3 is stated to have said that Gouranga had deposed against him in a certain cattle trespass case and therefore he should be beaten. The accused-Appellants Nos. 1 to 12 surrounded Gouranga and beat him. Gouranga was severely injured and was removed to Barchana Dispensary where by night he expired. Several others belonging to the prosecution-party including p.ws. 1 and 2 were injured. They were taken to the doctor (p.w. 5) for medical examination. Thereafter, First Information Report was lodged by p.w. 1 (Ext. 2/1). The defence version of the incident was that the Appellants Nos. 1 to 6, 10 and one Raicharan Mallik were cultivating their respective lands which they obtained on Bhag from the new landlord Bijoy as his tenants. They were taken to the doctor (p.w. 5) for medical examination. Thereafter, First Information Report was lodged by p.w. 1 (Ext. 2/1). The defence version of the incident was that the Appellants Nos. 1 to 6, 10 and one Raicharan Mallik were cultivating their respective lands which they obtained on Bhag from the new landlord Bijoy as his tenants. It is said that while some of the son's tenants were cultivating the land, the deceased Gouranga along with p.ws. 1, 2, 7 to 18 and others numbering about 30 to 35 all claiming to be the father landlord's tenants under their respective Pattas as aforesaid-came to plot of land and asked the accused-Appellant No. 6 and the said Raicharan Mallik to leave the field saying that it was their Patta land. There was an exchange of hot words between them and a fight ensued with the result that both parties suffered injuries during the scuffle. These, in short, are the rival versions of the incident with regard to the factum of which, however, there cannot be any dispute. 3. The question for consideration is who among the two parties, namely, the father's tenants (prosecution party) or the son's tenants (accused party) were liable for what took place. There was a good deal of argument from the side of the defence in support of the contention that it was the son's tenants who were in actual physical possession of the land on the date of the incident. Mr. H. Kanungo, learned Counsel appearing for the accused-Appellants, argued that it was the son's tenants (accused-party) who had prime facie title and that there was independent evidence to show that they were in actual physical possession as Bhag Chasis. The learned defence counsel relied on the evidence of d. ws. 4 and 6 as having given independent evidence in this context. The evidence of d.w. 7, the zamindar, was also relied upon, although it could be legitimately commented that the evidence was that of an interested witness. That apart, the learned Counsel also relied on the documentary evidence being Ext. A-seizure list showing Bhag Pattas; exts. E and F income tax returns filed by the zamindar purporting to show that the land in question was in Khas possession; Ext. N series Kabuliyats; exts. P and N series-Bhag paddy accounts of the zamindar. That apart, the learned Counsel also relied on the documentary evidence being Ext. A-seizure list showing Bhag Pattas; exts. E and F income tax returns filed by the zamindar purporting to show that the land in question was in Khas possession; Ext. N series Kabuliyats; exts. P and N series-Bhag paddy accounts of the zamindar. It was argued that the prosecution party was not proved to have been in actual physical possession of the land on the date of the incident. The defence comment on the prosecution case on this aspect was this: No pattas were filed by the prosecution party showing that they were the father landlord's tenants. No action was taken against the son landlord Bijoy for having taken away the Pattas which, as alleged were taken away five or six years back as early as 1952. No independent evidence of the neighbours was called to prove actual physical possession of the prosecution-party. No witness was called to prove the existence of the alleged Pattas. No idea was given as to the nature of the Patta whether it was on rental basis or any Salami was paid in respect thereof. No witness was examined to prove payment of rent though only the rent-receipts had been produced. I have carefully considered this aspect of the defence case. It is not clear from the evidence as to who had in fact title to the land in question or who was in actual physical possession thereof. It certainly is a circumstance which is very material for the purpose of ascertaining the legal title of the rival parties in respect of the land. There is no doubt that these are some of the relevant considerations, which would ordinarily weigh with a trial Sessions Judge in the matter of determining the question of liability of accused persons on trial in such cases. But where there is doubt as to who was in actual physical possession or who had legal title, the only way to decide the case would be to consider the evidence on record directly a bout the incident itself, independently of the alleged supposed legal status respectively claimed by both the rival parties in respect of the theatre of the fight where it took place. At a criminal trial the Court has to keep in view primarily the incident, as it stands, in the light of the evidence and not the civil rights of the parties which they may have. True indeed that the question of civil rights is only ancillary and incidental but not directly material for determining the criminal liability of the accused in a criminal trial. In cases of doubtful title or possession, as the present case, the trial Court is necessarily lead to the consideration directly of the incident itself in the light of the evidence only, adduced by both parties at the trial. 4. So assuming possession is disputed, that is to say, nobody succeeded in proving actual physical possession, it will then depend on who was the aggressive party. The deciding factor then will be the nature of the offence and the test would be who took the initiative the aggressive part. Mr. H. Kanungo contended that the learned Additional Sessions Judge did not discuss as to the reliability or dependability of the prosecution witnesses and that though several independent witnesses, who had no concern or nothing to do with the land, were available in the neighbour hood, none of them had been examined. The learned defence 'Counsel's' main criticism of the findings was that the learned Additional Sessions Judge failed to notice that all the witnesses were partisan witnesses and therefore their evidence should not have been relied upon. It was further argued on behalf of the defence that the prosecution case that the Pattas were taken away by the new landlord Bijoy cannot be believed in view of the fact that no witness has alleged the so-called removal of the Pattas from their possession. Furthermore, the learned Additional Sessions Judge has not discussed the aspect of possession, which, according to the learned defence counsel, should have been the main consideration in the present case. Then again, the learned defence counsel submitted that Gouranga the deceased, who was the unfortunate victim of the incident, was in fact the aggressor and took a leading part in attacking the accused-party and therefore he was himself responsible for the incident resulting in his death. The main target of defence criticism against the prosecution case was that all the material prosecution eye-witnesses including p.ws. 1, 2, 7, 9 and 10 to 18 were partisan witnesses. The main target of defence criticism against the prosecution case was that all the material prosecution eye-witnesses including p.ws. 1, 2, 7, 9 and 10 to 18 were partisan witnesses. Reading the evidence of the prosecution witnesses I am however of the dew that the substance of the prosecution case was established beyond reasonable doubt. The consistent story established by the evidence of the witnesses is that it was the accused-party who were the aggressors. In this respect the injuries on the individuals belonging to the prosecution party as found by the doctors p.ws. 4 and 5 speak for themselves. It is clear from the evidence that the accused party did not suffer such injuries as the prosecution-party. In fact, there were only nine injuries on persons of the accused-party as appears from the evidence of the private medical practitioner d.w. 3. These injuries which were subsequently found by d.w. 3 give rise to reasonable suspicion, as creating evidence to suit the defence purpose. The nature of the injuries on the individuals belonging to the prosecution party was very severe; in fact the injuries on Gouranga which ultimately resulted in his death were certainly of grievous nature. The other circumstances against the defence case is their subsequent conduct that they absconded. In fact some of the accused-party were arrested about two months after the date of the incident. This circumstance of absconding although not conclusive and certainly not to be too seriously viewed against the accused.-yet shows the conduct of the accused-party which is not consistent with their alleged plea of innocence of the charges brought against them. 5. The main defence taken 011 behalf of the accused-persons was that it was the prosecution party who were the aggressors; and the accused-party in their right of private defence while protecting themselves from the attack of the prosecution-party, inflicted the injuries on the prosecution-party which led to the death of Gouranga. Mr. H. Kanungo, in support of his argument on the right of private defence, relied on a decision of the Patna High Court in Barisa Mudi and Others Vs. The State, where it was held that 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 berm is done. The State, where it was held that 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 berm is done. It is not a right of retaliation and hence he need wait until the aggressor has started committing the offence which occasions the exercise of his right of private defence. As to this proposition there is no doubt. There is nothing in Sections 96 to 106 of the Indian 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. The facts in the present case are however different. In this case, the Court is not convinced as to who was in actual physical possession of the land at the point of time when the incident took place. All that weighed with the Court is how far and whether or not the prosecution has been able to establish that the accused persons were responsible for the alleged incident resulting in the death of Gouranga. For this purpose, the evidence must be judged as it is. Other considerations are hardly of any avail on the facts and circumstances of this particular case. For authority on position almost similar to the present one, the learned Government Advocate Mr. R.C. Misra relied on a decision of the Lahore High Court in AIR 1940 523 (Lahore) where the facts were that there was a fight between the accused-party and the prosecution-party. The cause of the fight was the making of a bund in the bed of a ravine where there were three fields each bearing particular Khasra number. One of the fields belonged to the accused-party and the other two belonged to the complainant-party. The boundary between the accused's field on the one hand the other two having not been clearly demarcated, both parties approached the girdawar and the patwari and asked them to demarcate the boundary. These officials unfortunately had not the necessary records and nothing was done. On the date of the incident, members of the complainant party came and asked the members of the accused-party to come to the spot to demarcate the land in the presence of the local authorities. These officials unfortunately had not the necessary records and nothing was done. On the date of the incident, members of the complainant party came and asked the members of the accused-party to come to the spot to demarcate the land in the presence of the local authorities. Four members went and were then attacked by 31 persons. Other members of accused-party came up and in the fight that followed 12 persons of the opposite rival party received 156 injuries. Of the injured persons one died at the spot and four subsequently. The rival opposite party escaped lightly, ten of them receiving 33 injuries of which only two were grievous. In the Lahore case the learned Sessions Judge had acquitted the accused persons, accepting the plea of right of private defence. The Government appealed and it was argued on behalf of the State that although title was subsequently found to be with the accused, this was not a case of defined and well-established possession which the accused had a right to defend. At the most the act of the complainant's party was a civil trespass, not a criminal offence. On these facts the Lahore High Court taking a contrary view, set aside the acquittal. Chief Justice Young, in his judgment, expressed that at first there may appear to be some confusion between the right of private defence of property as set out in Sections 96 and 105 Indian Penal Code and the provisions of Section 141 (Fourth) of the same Code which make it an offence to "enforce any right". A party cannot be said 'to enforce any right' where he is in undoubted possession of the land upon which an attack has been made and he defends that possession. In that case the right of private defence of property would arise. If on the other hand there was, as in this case, a real doubt whether the land belonged to one party or the other, then if either party used force, that would amount to enforcing a right and there would be no right of private defence of property. What indeed the law prohibits is the enforcement of a right or supposed right by criminal force or show of criminal force by an assembly of five or more persons. What indeed the law prohibits is the enforcement of a right or supposed right by criminal force or show of criminal force by an assembly of five or more persons. And rights, the defence of which can only be effected by enforcing them, may come within the provisions of Section 141, Indian Penal Code. The phrase "to enforce a right" can only apply when the party claiming the right has not possession over the subject of the right and therein lies the distinction between "enforcing a right" and "maintaining a right". A party in possession, is entitled to resist and repel an aggression and his action in so doing would be in the maintenance of his right. Ganowri Lal v. Queen Empress ILR Cal. 296. Ramnandan v. Emperor 17 C.W.N. 1132. The learned Government Advocate also relied on a decision of the Patna High Court in Narayan Raut Vs. Emperor, where the same principles were reiterated, namely that the accused is at least to make a prima facie case as to the existence of circumstances on which the right of private defence is alleged to be founded. In this particular case before me however I agree with the finding of the learned Additional Sessions Judge that the possession is disputed; and necessarily there is no knowing nor evidence as to who was in actual possession. Mr. H. Kanungo, the learned defence counsel in support of his contention on the plea of private defence also relied on a decision of this Court in Gangadhar alias Guhia Das v. The State 25 C.L.T. 358 where the dispute between the accused party and the prosecution party arose out of their respective alleged claims to fishing right in respect of a village tank which belonged to a Hindu Thakur. Admittedly the accused party had a fishing right previous to the year in dispute. Both the parties, however, claimed fishing right in respect of the following year which led to the incident resulting in the death of two of the participants in the battle. The main point for consideration was whether the accused persons had the right of private defence in the circumstances of the case. In that case, the learned Sessions Judge convicted the accused persons; but in appeal the High Court, accepting the plea of private defence, acquitted them. The main point for consideration was whether the accused persons had the right of private defence in the circumstances of the case. In that case, the learned Sessions Judge convicted the accused persons; but in appeal the High Court, accepting the plea of private defence, acquitted them. In that particular case, the accused persons had participated in the incident, in the manner they did, purporting to do so under a bonafide claim of right in respect of the tank. Besides, the dispute between the parties over their alleged fishing right in the tank led to proceedings u/s 107 Code of Criminal Procedure which remained pending till after ten months from the date of the incident. It was in this background that the accused persons intervened, in the manner they did, while the rival claimants were challenging their fishing rights over the tank particularly when Section 107 proceedings against both parties were still pending as aforesaid. Such timely intervention was thought to be necessary and not without justification. The accused persons only wanted that the complainant-party should stay their hands and maintain the set atusquo until their respective rights were decided in a court of law. It was exactly in this spirit that the accused persons did not say anything except saying that it was illegal for the complainant-party to throw nets in the tank. In fact, the accused-party did every thing they could do to stop the complainant-party from fishing when the said Section 107 proceedings were pending and tried to persuade them in that direction. But when persuasion failed, the battle began and some people became involved but the evidence in support of the charge against the accused persons was lacking. In these circumstances, the accused persons were given the benefit of doubt and were found to have right of self defence. Besides, in the said cited decision, the Court's suspicions were further confirmed by one other circumstance that several persons of the accused-party were found to have been injured as distinctly appeared from the medical evidence. III the judgment in the said decision, this High Court made it clear that if a consistent story had been put forward, it might be possible for the Court even to accept the testimony of the partisan witnesses specially where there were admittedly two rival parties, both claiming fishery lease in respect of the tank and disinterested persons might not be available. In that particular case, there were apparent inconsistencies in the evidence of the witnesses on material points which consequently did not tally with the result that in the teeth of such inconsistent evidence, this High Court felt that it was extremely hazardous for a Court to conjecture as to how the fight must have taken place. As regards the actual assault by the accused-Appellant No. 1 in the case who was convicted u/s 302 and 148 Indian Penal Code, the facts were that the said accused-Appellant, a more school student who had just appeared on the scene in the midst of fight between the two parties in which his own father and brother were found to have been involved, and in fact, surrounded, attacked and assaulted by the rival party, naturally became apprehensive that his father's life was in danger and in that state of mind, he snatched a "Balam" from one of the participants in the incident and pierced in the abdomen of the deceased with the unfortunate result that subsequently followed. Immediately thereafter, he pierced another with the same "Balam". He pierced in sheer self defence because he had reasonable apprehension of grievous hurt. On these facts, this High Court held that the accused Appellant could rightly claim the right of private defence. That, however, he is not in the position in the present case. Here, as I have already discussed, the evidence of he prosecution witnesses-assuming that they were partisan witnesses, gave a consistent story as to the actual incident, which resulted in the death of Gouranga. The distinguishing features appearing in the ease cited above are clearly absent in the present case. In view of the facts and circumstances of the case, the decision in Ganganhar alias Guhia Das v. The State 25 C.L.T. 358 cited above relied on by the learned defence counsel, does not help the accused persons in the present case and is not applicable here. The learned defence counsel Mr. H. Kanungo also relied on a decision in Mir Amjad Ali and Ors. The learned defence counsel Mr. H. Kanungo also relied on a decision in Mir Amjad Ali and Ors. v. The King Emperor 16 C.L.T. 59 where it was held that where in a fracas some of the accused bore some injuries and the prosecution evidence does not explain as to why the accused came by the injuries, the accused are entitled to an acquittal particularly when the prosecution is guilty of suppression of a part of the occurrence. I am afraid that this case also does not help the accused. In this particular cited decision, it was observed in the judgment that from the gravity of the injuries, the Court below had inferred that the accused person must have been superior in strength to the rival party and on these facts the High Court observed that it does not necessarily follow that superior strength must be on the side of the party which had received less serious injuries. I have noticed the background of this case where different considerations prevailed. The aggressive party in that particular case was the prosecution party. Therefore the decision in that case also does not help the accused person in the present case. 6. In this view of the matter the conviction and the sentence of the Appellants must be upheld. This appeal is accordingly dismissed. Final Result : Dismissed