JUDGMENT : Misra, J. - Appellant has been convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. The prosecution case is that the deceased was in cultivation of Order 16 acre of land in plot No. 819 as bhag tenant under the Khuntias since the time of his grand-father. Plot No. 819 is Order 45 acre in area. P.W. 2 and P.W. 15 are respectively in possession of Order 13 and Order 16 acre of the balance. In 1945 P.W. 2 and P.W. 15 purchased the lands in their cultivating possession from the owners by two separatekabalas. There was a proposal for sale of the land in possession of the deceased in favour of Giridhari, the father of the deceased, and Rs. 10/- was paid in advance to the Khuntias. As Giridhari died soon after before he paid the balance consideration, the kabala could not be executed. The deceased and his brother Sita (P.W. 1) continued to possess the disputed land as bhag tenants. 5 days before 4-6-1961, the date of occurrence, the deceased and his brother ploughed the disputed land and sowed Bangi variety of paddy thereon. The accused was not in cultivating possession, but 3 months before the incident, he purchased the disputed land by a registered Kabala. To enforce his right acquired by purchase, the Appellant cultivated the disputed land with the help of P.W. 10, a labourer, and sowed Kantamiriga variety of paddy. The mother of the Appellant came to the land with thick lathis. P.W. 1 was ploughing another land about a furlong away and deceased Basant was ploughing the land of one Bata Kar which was still further away. When P.W. 1 found the accused ploughing the disputed land, he went to Basant and called him. They found that the accused was still ploughing their land. Basant protested against the act of ploughing, stood in front of the plough and asked the accused to unyoke the bullocks. As the accused did not hear, he tried to unyoke forcibly the bullocks. The accused and his mother claimed to have purchased the land from the owners. The accused gave a push and Basant fell down. He immediately got up and gave a lathi below on the back side of the waist of the accused. As the accused did not hear, he tried to unyoke forcibly the bullocks. The accused and his mother claimed to have purchased the land from the owners. The accused gave a push and Basant fell down. He immediately got up and gave a lathi below on the back side of the waist of the accused. The mother of the accused then caught hole of the deceased and the accused dealt a severe blow on the right side of the head of the deceased who fell down unconscious with his face upwards with a bleeding injury on the head. The accused and his mother began to press him sitting on his chest and gave him some fist blows. P.W. 1 gave a blow from behind on the right shoulder of the accused with the thin bamboo stick (M.O.I) The mother of the accused then hit Sita on the backside of his waist with the lathi. At this stage Sita gave another blow on the front side of the bead of the accused with the lathi of his brother which was lying on the ground. The accused retaliated by hitting Sita on his left elbow with his lathi. P.W. 1 raised an alarm and the neighboring tenants gathered on the land. The accused with his mother left the spot with his plough after unyoking the bullocks. The deceased was carried to his house and from there to Salepur P.S. which is 7 miles away and died after reaching the Thana. He was throughout unconscious. 2. The accused plead not guilty. His case is that Sita and Basant were not in cultivating possession of the disputed land which is Cherpada chak and not in Thengana chak. He purchased the disputed land by a registered kabala about three months before the occurrence. Before his purchase the disputed land was in cultivating possession of one Shankar Padhan who gave up possession in favour of the accused after the latter's purchase. He had ploughed the field long before the occurrence and made the land ready for sowing. On the date of occurrence he sowed Kantamiriga variety of paddy and thereafter began to plough it himself. While he was ploughing the deceased, P.W. 1 and one Kartik Barik (P.W. 7) questioned him about his ploughing. Immediately after Basant hit him on his head with a stick (Thenga). On the date of occurrence he sowed Kantamiriga variety of paddy and thereafter began to plough it himself. While he was ploughing the deceased, P.W. 1 and one Kartik Barik (P.W. 7) questioned him about his ploughing. Immediately after Basant hit him on his head with a stick (Thenga). Then his mother caught hold of Basant from the front side by putting her arms round his waist. At this stage, Sita came running with a lathi to assault his mother and tried to assault her by raising his lathi with both hands; but the blow accidentally fell on the head of Basant who fell down on the spot. Kartick gave a lathi blow on the left shoulder of the accused and Sita gave another lathi blow on the back side of his waist. 3. The doctor (P.W. 17) examined the accused and the deceased. The deceased had the following injuries: (1) Lacerated wound 2" x 1/2" x scalp deep 2" in front of the right parietal eminence. .This lacerated wound was surrounded by an area of contusion measuring 6" x 5". The edges of the broken bones could be left on palpation; and (2) Contusion 3" x 2" in the middle part of the shin of the left leg with a small abrasion over it. He was of opinion that injury No. (1) On the head was a dangerous injury which along with its corresponding internal injury would be sufficient in ordinary course of nature to cause death and the injuries could be caused by same blunt weapon, such as, lathi. 4. There was Some controversy regarding the identity of the disputed land and in which chak it was situate. The evidence on this point is undoubtedly somewhat discrepant. But the controversy has no significance in view of the admitted defence case that the dispute took place on the land which was purchased by the accused about 3 months before the occurrence and which is alleged by him to be in possession of Shankar Padhan till that date. It is from this land the blood stained earth was recovered. 5. It is from this land the blood stained earth was recovered. 5. The learned Additional Sessions Judge, after thorough examination of the evidence on the question of possession, accepted the prosecution version that the deceased was in Possession of the disputed land as bhag tenant since the time of his ancestors till the date of occurrences and that the deceased had sowed Bangi variety of paddy 5 days before. Mr. Behura took us through the evidence of p.ws. 1, 2, 4, 6, 7, 11, 15 & 16 P.Ws 4 and 16 support the defence version to some extent in stating that Shankar Padhan was cultivating the disputed land till the purchase by the accused. The learned Additional Sessions Judge critically examined the evidence of p.ws. 4 and 16 and held that they were thoroughly unreliable. After going through their evidence we are satisfied that the criticism is justified and the evidence of p.ws. 4 and 16 must be discarded as unreliable. Against other witnesses on the question of Possession, no substantial criticism has been made except in pointing out that some of them were interested. Their evidence, on the whole, appears to be reliable and we agree with the learned Additional Sessions Judge that the deceased was in possession of the disputed land as bhag tenant and had sawed Bangi variety of paddy thereon 4 or 5 days before the occurrence and the accused came up on the land to enforce his right under the purchase for the first time on the date of occurrence. 6. As to the sequence of events on the date of occurrence p.ws. 1, 10, 11 and 13 are the eye-witnesses. The learned Additional Sessions Judge accepted their evidence and after taking into consideration the defence plea, held that the deceased on arrival on the disputed land asked the accused to unyoke the bullocks, and on accused's refusal to listen the deceased first gave a lathi blow on the head of the accused whereafter the mother of the accused caught hold of the deceased and the accused gave the fatal blow on the head of the deceased as a result of which the deceased fell down. The learned Additional Sessions Judge considered some exaggeration in the prosecution evidence, but recorded the aforesaid finding after rejecting the exaggerations in the case of both sides. Mr. Behura fairly did not attack this part of the finding seriously. The learned Additional Sessions Judge considered some exaggeration in the prosecution evidence, but recorded the aforesaid finding after rejecting the exaggerations in the case of both sides. Mr. Behura fairly did not attack this part of the finding seriously. On examination of the evidence, we are satisfied that the learned Additional Sessions Judge came to the correct conclusion. 7. On the finding that the deceased was in cultivating possession of the disputed land till the date of occurrence and had already sown Bangi variety of paddy 4 to 5 days before the occurrence which were likely to germinate soon, the question arises whether the deceased had the right of private defence of property. u/s 99, Indian Penal Code there is time to have recourse to protection of public authorities. Admittedly the police station is 7 miles off from the place of occurrence. The accused was still in the process of ploughing the disputed land while the deceased arrived on the spot to dissuade him from doing the unlawful act of trespass and mischief. If the land was merely lying fallow, an argument might be advanced with some force that no immediate injury could by caused to the property and protection of public authorities should have been resorted to. The crucial test in a case of this nature is whether the harm committed by the offender is immediate or not. The concept will vary according to the facts and circumstances of each case and no hard and fast rule can be laid down to determine the character of the harm. Though sufficient opportunity was given to Mr. Behura to cite authorities to cover a case of the present nature, he failed to cite a single decision in support of the contention that where seeds were sown 4 to 5 days before with the possibility of germination at any time, no immediate harm can be said to be caused to the owner or possessor of the property. We are satisfied that the harm was immediate in this case. If the deceased would not have attempted to avert it, the accused would have been in a position to destroy the seeds sown by the deceased. We would accordingly hold that there was no time to take recourse to protection of public authorities. We are satisfied that the harm was immediate in this case. If the deceased would not have attempted to avert it, the accused would have been in a position to destroy the seeds sown by the deceased. We would accordingly hold that there was no time to take recourse to protection of public authorities. AIR 1948 Patna 294 cited by the Appellant is distinguishable as there was no crop on the land and there was no apprehension of immediate harm. Immediate danger to the property which, if not immediately protected, would be caused by the time protection of public authorities is obtained. There is no substance in this contention. 8. Section 104, Indian Penal Code lays down when the right of private defence of property extends to causing any harm other than death. If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the description enumerated in Section 103, that right does not extend to the voluntary causing of death, but does extend, subject to the restriction mentioned in Section 99, to the voluntary causing to the wrong-door of any harm other than death. In this case the offence committed by the Appellant was mischief and criminal trespass. The injuries inflicted by the deceased on the accused were as follows: (1) One lacerated wound on the midline of the forehead measuring 2" x 1/2 x scalp deep, 3" above the level of the eye brows; (2). One contusion 1" x 1" on the upper part of the left shoulder joint; and (3). One abrasion 1?" x 1/2" on the left lumber region. The injuries were all simple in nature and there was no injury to the bones. The deceased had therefore clearly right of private defence of property. 9. The next question for consideration is whether the accused had any right of private defence of person. Section 97, Indian Penal Code lays down that every person has a right, subject to the restrictions contained in Section 99, to defend Firstly, his own body and the body of any other person, against any offence affecting the human body. Section 96, Indian Penal Code says that nothing is an offence which is done in the exercise of the right of private defence. Section 96, Indian Penal Code says that nothing is an offence which is done in the exercise of the right of private defence. It is, therefore, clear that the infliction of the injuries by the deceased on the accused in exercise of his right of private defence of property is not an offence, and as such, the Appellant had absolutely no right of private defence of person. 10. Mr. Behura very vehemently contended that the offence of the Appellant, if any, would be one u/s 304, Indian Penal Code. There is no substance in this contention. Undoubtedly the Appellant had no intention to cause death, but he had the intention to inflict the injury on the head with the lathi. The injury so caused on the head was not accidental or unintentional, or that some other kind of injury was intended. The doctor's evidence is that this injury was sufficient to cause death in the ordinary course of nature. By these elements, the offence of murder u/s 300, 'Thirdly' is fully established even though the Appellant had no intention to cause death. It is needles to dilate further on the matter as a masterly exposition of law has been given in Virsa Singh Vs. The State of Punjab, . 11. There is no substance in any of the contentions of Mr. Behura. The appeal fails and is dismissed. Das, J. 12. I agree. Final Result : Dismissed