JUDGMENT : Barman, J. - This is a Government appeal, against an order of acquittal, passed by the learned Sessions Judge, Cuttack, by which he acquitted the Respondents (fifteen in number) of various charges u/s 302 read with Sections 149, 147, 323, 324, 214 and 146, Indian Penal Code. The Respondent No. 8 Kangali Behera has since died and his name has been expunged. 2. The question, whether the accused-Respondents had, in the circumstances of the case, right of private defence, is the main point involved in this appeal, arising out of an incident in the morning of November, 19, 1958 at 9 a.m., in a paddy field in village Halididiha within Binjharpur police station in the district of Cuttack, where there was a class between the accused party and the prosecution party. 3. The genesis of the trouble-which ended in the death of one person and injuries on several other persons, is an old dispute with regard to Haladidiha paddy fields between one Adwaita Panda, the previous landlord of the village Haladidiha, supporting the prosecute on party, and the accused Respondent No. 1 Adwaita Behera, leader of the accused party; indeed the trouble between the parties appears to have started for the first time in the year 1957 over two adjacent plots, namely plot No. 600 (hereinafter referred to as the western plot) and plot No. 559 (hereinafter referred to as the eastern plot), over which the incident took place. The parties appear to have been roused, ultimately to take recourse to force in order to cut the paddy, which had been grown in the fields purported to be in exercise of their assumed right to the same. The background, in which the occurrence took place, is that since some time before the incident, there had been some cases filed, both civil and criminal, in connection with these fields. The background, in which the occurrence took place, is that since some time before the incident, there had been some cases filed, both civil and criminal, in connection with these fields. As consequence of the abolition of the zamindari, the landlord Adwaita Panda had been trying to oust the persons, who had been cultivating the land, including the accused persons, with the help of the Gokhas of a neighbouring village, with whom the accused persons of Haladidiha were not on good, terms; thus, it's clear that Adwaita Panda had started creating troubles, for all these years after the abolition of the zamindari; in fact he started two cases of paddy theft, one by himself and another by his Bhag chasi Kelei Mallik (P.w. 4) in respect of the said plots separately against the accused Adwaita Behera and his brothers, which two cases were then still pending at the time of the incident and they stood posted to November 25, 1958, when in the meantime on November 19, 1958 the incident took place; on the other hand, after the filing of these criminal cases, accused Adwaita Behera and others filed an O.T.R. Act case against their said previous landlord Adwaita Panda in respect of these and other plots and secured an exparte decree in March or April, 1958 and delivery of possession thereunder; since thereafter Adwaita Panda had not gone over the lands. But it is clear that the trouble was brewing and ultimately force was taken recourse to in the manner hereafter stated. 4. With this general background, we now come to what actually had taken place, leading to the clash which ended in the death of one person and injuries (both simple and grievous) on several others. The prosecution case is that on the forenoon of November 19, 1958 when the said Kelei Mallik p.w. 4, alleged to be a Bhagchasi of Adwaita Panda-was cutting paddy in the western plot No. 600 along with Kanhu Mallik (who was killed during the occurrence) and others, the accused persons along wit some others armed with Balams, Barchhas etc. The prosecution case is that on the forenoon of November 19, 1958 when the said Kelei Mallik p.w. 4, alleged to be a Bhagchasi of Adwaita Panda-was cutting paddy in the western plot No. 600 along with Kanhu Mallik (who was killed during the occurrence) and others, the accused persons along wit some others armed with Balams, Barchhas etc. came to the field and surrounded the prosecution party; that the accused Adwaita Behera confronted the said Kelei Mallik with the question as to who asked him to cut paddy in the field; thereupon Kelei Mallik replied saying that he had not it in his right as he had raised the crop; that thereupon the accused Adwaita Behera pointed a Balam threatening to kill him; that it was at this state, the said Kanhu Mallik intervened by way of mediation but the accused Adwaita Behera took exception to Kanhu's intervention and pierced the Balam into Kanhu's chest whereupon he fell down; that thereafter Kelei Mallik and his Mulias started running a way for safety but they could not escape without being hurt; that the accused persons left the scene immediately for their village without receiving a single scratch. The prosecution case, with regard to other accused persons, who also participated in the episode, resulting in injuries caused to different other persons of the prosecution party, is stated in the judgment of the learned Sessions Judge; who fully referred to individual charges against the different persons as stated therein. In the sequence of events that followed after Kanhu Mallik was killed in the circumstances aforesaid, it is stated that p.ws. 3, 16, 17 and 18, who were near about in their respective neighbouring-fields carried the injured persons and the dead body of the deceased by two Dangas to the police station, 10 miles away from the place of occurrence, where Kelei Mallik as informant lodged the First Information Report the same day at 6. p.m. It is also the prosecution case that none of the accused persons were to be found in the village when the investigating officer visited the spot the following day; the accused persons remained in hiding for sometime and ultimately some of them surrendered and some were apprehended, the last to be apprehended being accused No. 1 Adwaita Behera who was arrested on December 20, 1958. 5. 5. The defence case, in substance, was that the prosecution party was aggressive, and that the accused party had to take recourse to force, in their right of private defence of both life and property, in the following circumstances: that the accused Adwaita Behera and his brothers have been in possession and enjoyment of both plots Nos. 559 and 600 for the last several years and that was a view to dispossess the accused party, the said previous Landlord Adwaita Panda has set In Kelei Mallik as his Bhag chasi for plot No. 600; that the accused Adwaita Behera,Nityandnda Behera and Kangali Behera (Respondent No. 8 since dead), who were cousin brothers, along with the accused Banshi Jena, Babaji Mallik and Charan Naik, were cutting paddy on the adjoining eastern plot No. 559 from a bout 8. a.m. in the morning of the date of the incident; that shortly half an hour thereafter one Ananda Naik, the Gumasta of the said Adwaita Panda (p.w. 2),Chhachi Mallik (p.w. 9) and another Kangali Mallik with 50 others, all of the prosecution party, arrived and started cutting the upper portions of the paddy plants in plot No. 600 in hurry and began to remove the same by baskets, Sikas and Bahungis; that, out of fear, as the accused party apprehended danger, the accused party could not protest; that after finishing the cutting and removal of the paddy from the western plot No. 600, the prosecution party came and surrounded the accused party from the eastern side and started removing the paddy which the accused party had cut from the eastern, side of plot. No. 559; that some of the prosecution party started pelting brickbats about the same time; but as the prosecution party prevented the accused party's escape towards the village on the east, the accused party tried to n away towards the west when they were surrounded by as many as 150 persons coming from that side; that in their struggle, the accused Nityandnda chanced to stumble over a bundle of Balams, lying in a neighbouring field that he snatched a Balam and brandishing it managed to escape that each one of the accused party in turn picked a Balam from that bundle and brandishing the same managed to escape; that they could not say if anyone on the other side bad been hurt. In fact, it is the defence case that the accused party had been suddenly surrounded from the east, in such a manner that they could not effect any escape to their village and then they tried to run through in other directions desperately on the point whether the accused party had initially any weapons in their hands the defence case is that a bundle of Balams was found lying in an adjoining field on the north, evidently bidden there by the prosecution party and that during the confusion that resulted when each of them started running, the accused Nityandnda Behera happened to stumble over and finding them to the Balams, immediately picked one, in self-defence that then each of them picked one of those, Balams and brandishing the same made good their escape and i that process, they might have injured some of the persons. 6. In this background, the only question, for consideration, is whether the accused persons had a right of private defence. 6. In this background, the only question, for consideration, is whether the accused persons had a right of private defence. The well settled legal position, in the light of which the facts and circumstances of this case have to be considered,is this the right of private defence is an answer to a charge of noting but there can be no right of private defence where the riot is premeditated on both sides, unless the object of the assembly is shown to have been to repel forcible and criminal aggression it must be remembered that the right of private defence can be exercised only in special circumstances and with the restrictions imposed by Section 99, Indian Penal Code; the important, considerations which always arise in order to determine whether the action of the accused is covered by the right of private defence are, firstly, what is the nature of the apprehended danger and, secondly, whether there was time to have recourse to the police authorities always remembering that when both the parties are determined to fight and go up to the land fully armed in full expectation of an armed conflict in order to have a trial of strength, the right of private defence disappears it is not the law that the rightful owner in peaceful possession of poverty must run away, if there in 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 t collect such members and such' arms as are necessary for that purpose, if has 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 was 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 weapons for his defence. 7. This leads us to the consideration of the facts of the present case. The most staggering feature, against the defence version of the case is the absence of any injury on any of the accused persons whereas six persons of the prosecution party p.ws. 4, 9, 10, 11, and 15 and the deceased) had been severely injured inasmuch as one of them was killed. The most staggering feature, against the defence version of the case is the absence of any injury on any of the accused persons whereas six persons of the prosecution party p.ws. 4, 9, 10, 11, and 15 and the deceased) had been severely injured inasmuch as one of them was killed. The question arises whether, even if the accused party had a right of private defence, they had exceeded such right, because none of the accused party had received any injury, while six persons, on the other side, received very serious injuries, one of them proving fall on the spot. The defence explantation for the multiple injuries on several persons of the prosecution party, including the fatal assault of the deceased, was that the accused party while so surrounded by the prosecution party of overwhelming number, in order to make escape, had to push themselves through while brandishing the Balams (which were, by chance, found in a neighbouring field) and thus caused the injuries on several persons of the prosecution party. Furthermore, as the learned Sessions Judge expressed, it is difficult to Bay that none in the party of the accused had been injured, because in a case of this nature and magnitude, no injured person would allow himself to be detected, as the presence of the injury would certify his presence in the rioting furthermore, it was also hot in the interest of the accused persons who had taken a specific, defence of their being not more than six persons, cutting their paddy crop in plot No. 559, to admit the presence of any more and to allege that they had been injured; that apart, there was also the probability of the influence of the ex-zamindar Adwaita Panda, managing to win over a few of the injured persons unto his side, with a view to prejudice the defence to the extent that is possible; these are certainly relevant considerations, which lead us not to attach any weight to the aspect that none of the accused persons appear to have been injured, during the course of the dash between the rival parties. In the present case there does not appear to have been premeditation on the part of the accused party; there is no evidence that the accused party kept the Balam in the field; the only evidence that there may have been certain preparations in the field was the presence of certain salt and chillies to show that Borne one kept watch in the field over-night. It is also to be kept in view that merely taking precaution is different from premeditation. In the present case, Adwaita Panda, the leader of the prosecution party and his alleged Bhagchasi Kelei Behera p.w. 4 were trying to disturb the possession of the accused Adwaita Behera and his brothers. In this state of things, if the accused party, by way of precaution went in a small group of fifteen persons, who were overwhelmingly outnumbered as aforesaid by the prosecution party and the prosecution party started removing the paddy, which the accused party had cut from eastern side of their plot No. 559, then undoubtedly the question of right of private defence arises. The test, in such case, is whether the accused party had reasonable apprehension of damage to property and life. In the present case, there is no question that the prosecution party had overwhelmingly outnumbered the accused party, and accordingly there was, apparently, a basis of reasonable apprehension of danger to property and life of the accused party. That apart, the prosecution party appears to have come to the field, prepared, having been equipped with deadly weapons which were found in a neighbouring field. There is evidence to suggest - that the prosecution party had also taken with them some weapons, because at least the Tiras found on the spot and used, in the assault, by some of the accused persons against them, are implements used by Gokhas for stabbing fish and bringing them out; it is thus clear that the prosecution party bad come prepared with these weapons which they bad brought with themto the field. Furthermore, it is also in evidence that the prosecution party had made necessary Bandobast (preparation) of equipping themselves with a good number of brickbats, collected from a brick kiln of Adwaita Panda; this is further corroborated by the evidence of the investigating officer, who found several brickbats,scattered and meetly on the eastern side; it is not the prosecution case that the accused party had thrown any brickbat; it follows, therefore, that the defence case, that these' brickbats were need by the prosecution party, appears to be true. Coming to the circumstances, in which deceased Kanhu Mallik died from the fatal assault, the evidence is that while the accused Adwaita Behera was having remonstrance with Kelei Mallik, Kanhu Mallik, who was standing nearby, intervened to pacify the reupon, the accused Adwaita Behera finding Kanhu Mallik having come in his way struck a Balam at Kanhu Mallik; apparently Adwaita Behera had no intention to kill him the assault was, clearly, in self-defence, at the heat of the moment all the time the death was accidental. This probablises the defence version of the case. 8. Mr. Dinbandhu Sahu learned Counsel for the accused Respondents submitted that the accused party had not exceeded their right of private defence; they could have been said to have exceeded such right, if, after the prosecution party had receded, the accused party still chased the prosecution party and had pursued them to a distance. The apparent position, that the accused party did not so pursue or chase the prosecution party is clear from the fact that all the injuries, on the members of the prosecution party, were on their front side; therefore, there is no question of the accused party pursuing the prosecution party for otherwise, there would have been injuries also on the back side of the injured persons; it is, thus, not a case of prosecution party being chased while receding. The learned defence counsel then relied on certain other circumstances in favour of the accused party. With regard to the death of Kanhu Mallik, it is not the prosecution Case that there was any animus against the deceased there was no dispute with him; so his death must have been accidental. The learned defence counsel then relied on certain other circumstances in favour of the accused party. With regard to the death of Kanhu Mallik, it is not the prosecution Case that there was any animus against the deceased there was no dispute with him; so his death must have been accidental. Then again, the accused party did not bring with them the weapons; there is no explanation as to how the bundle of Balams which the accused Nityannda Behera chanced to stumble over came to be lying in a neighbouring field: there is no evidence as to where actually the bundle was lying in the neighbouring field the evidence of p.w. 4 Kelei Mallik, referring to Balams, tends to show that in the beginning no Balms had beenbrought to the scene of occurrence. P.W. 9 Chhachi Mallik appears to have said that the accused party had nothing in their hand and the witness could not say where they kept the lathis etc; it appears from the trend of evidence that the accused party subsequently picked up the weapons from some where. We are convinced about this position, that there is a consistent story throughout, that in the beginning, the accused party had no weapons in their hands. The one other circumstance which is significant is that, supposing the prosecution party was innocent, then it is inexplicable as to what was the necessity for the prosecution party to carry away the dead body, first to the village, and then to the police station; if indeed the dead body of the deceased was left on the spot where the occurrence took place, then it would have been possible to know whether the assault took place on plot No. 559 or plot No. 600 which fact, by itself, would have been some positive evidence as towho was the aggressive party. Furthermore, in this case, the part played by Adwaita. Furthermore, in this case, the part played by Adwaita. Panda the ex-zamindar in the entire episode weakened the prosecution case; the movements of Adwaita Panda are very suspicious in that he reached the police station on a cycle half an hour in, advance of the injured persons; it was Adwaita Panda who indentifying the injured persons before the investigating officer it was Adwaita Panda again who was at the police station and asked the investigating Officer to draw up the seizure list,in a particular manner as all these appear from the evidence of p.w. 14 Sibeswar Behera; the investigating officer p.w. 10 also said that it was Adwaita Panda who had shown the plot number and was present at the time of seizure. Thus, from the movements of Adwaita Panda both before and after the occurrence, and having regard to the genesis of the trouble between the parties, as discussed above, it is clear to us that it was Adwaita Panda who was at the root of these troubles leading to this incident. The further fact of no paddy crop found on plot No. 600 when the police arrived on the spot is significant it appears from the evidence of the investigating officer that he seized the paddy from the other plots but there was no paddy crop on plot No. 600 as it was cut in its entirety; so if there was no paddy in plot No. 600,then the defence story of, the prosecution party coming across the field and removing the paddy which the accused party had cut from the eastern side of plot No. 559 is supported. With regard to the spot map, we find that it is unreliable, because the investigating officer said in his evidence that he examined the witnesses after preparing the spot map; we do not see how the investigating officer could place, in his spot map, the various places from which the witnesses are alleged to have seen the occurrence before examining the witnesses themselves. Lastly, the circumstance that the Additional S.P. instructed the investigating officer to enquire the likelihood of Adwaita Panda setting up the complainant and witnesses to create troubles and further that the investigating officer also gathered some confidential information and sent information to the S.P. that Adwaita Panda had collected some hundred persons and brought them to take forcible possession of the land is clear proof of the preparation which the prosecution party had made, before the incident, for aggression on the accused party, presumably for taking possessionem of the land in dispute. The investigating officer's report to the S.P. that Adwaita Panda had collected some hundred persons is admissible in evidence. 9. These and other circumstances which have been fully dealt with by the learned Sessions Judge, which we need not repeat here-clearly convince us to take the view that the prosecution party were the aggressors and the accused party had a right of private deferrce, in the circumstances in which they were placed, surrounded by an overwhelming number, pelted with brickbats from all sides; that the accuses party in apprehension of danger to life and property, in order to escape from the encirclement-had to push themselves through brandishing the Balams which they had by chance come across in a neighbouring field in the circumstances as aforesaid, and used them in mere self defence, having to assault anybody who came in the way and thus to get themselves extricated from the pared comment they had been placed. There is no doubt about the position in law that this right of private defence continued so long as the apprehension was-there. We are also satisfied, on evidences discussed above, that the accused party did not chase the prosecution party while the aggressive prosecution party had receded. 10. In this view of the case, we confirm the order of acquittal of all the accused-Respondents of all has, as passed by the learned Sessions Judge. This Government Appeal is, accordingly, dismissed. Final Result : Dismissed