JUDGMENT : Barman, J. - The two Appellants herein Bhondari Kanhu and Epili Nilakantho were convicted on a charge of murder of one Sigadana Sarango punishable u/s 302/34 Indian Penal Code an sentenced to imprisonment for life. They were also convicted on a charge of the offence of alleged rioting punishable u/s 148 Indian Penal Code and sentenced to rigorous imprisonment for two years; the sentences are to run concurrently. 2. This case arises out of a dispute over an alleged grazing grounds (Gochar land) in a village within the vicinity of Digapahndi Police out post sixteen miles from Berhampur town, which ultimately led to the incident where was a free fight with mutual assaults between the prosecution party and the defence party resulting in injuries on both sides and the death of Sigadana Sarango. The relevant facts, which are few and simple, are these : On August 19, 1960 at 8 a.m. in the morning this incident took place at village Potanda about sixteen miles from Berhampur Taluk Police Station. The deceased's son-in-law p.w. 1 Jamuna Sarathi lodged the First Information Report with a Police Officer (p.w. 14) then camping at Digapahandi Out Post which is within 2/3 miles from the place of occurrence at 1 p.m. in the afternoon the same day. The formal First Information Report was lodged at Berhampur Taluk Police Station on the following day at 4 p.m. In course of investigation by the police, Appellant Epili Nilakantho who was also grievously injured in the fracas was arrested while in the hospital on August 20, 1960, and Appellant Bhondari Kanhu was arrested on August 22, 1960. Along with the two Appellants there were 63 others including Mohanti Nilakantho, Epili Mohihathi, Amogana Chatura and Sikha Ramachandra who were also arrested and charge sheeted by the police but all the other 63 accused persons were subsequently discharged by the committing court. The two Appellants were duly committed and sent up for trial. The Marned trial Judge convicted and sentenced the Appellants in terms as aforesaid. 3. The genesis of the trouble is certain alleged rival claims both y the prosecution party as also by the defence party on a certain plot of land lying 2? furlongs from village Chakrapur which is the village of the prosecution party and about one mile from village Potanda which is the village of the defence party. 3. The genesis of the trouble is certain alleged rival claims both y the prosecution party as also by the defence party on a certain plot of land lying 2? furlongs from village Chakrapur which is the village of the prosecution party and about one mile from village Potanda which is the village of the defence party. It was scramble for possession of this and in dispute which culminated in a fight resuaing in the death of the deceased Sigadana Sarango and injuries on both sides. The parent plot which includes the plot in question is in Khata No. 130 comprising an area of 35.90 acres known as 'Nalo Podia' in village Potanda recorded as 'Abada-jofiyo-Anabadi' (cultivable waste land). The deceased Sigadana Saran go of Chakrapur village is said to have taken lease of an area of 2.90 acres out of the said parent plot on ryoti basis, reclaimed the same and is said to have been in cultivating possession thereof; this plot which the deceased took lease of was recorded in his name in Khata No. 130/Ga in the settlement record-of-rights in the year 1950 and he has been paying rent in respect thereof. The Potanda villagers, while claiming the entire area as Gochar land for grazing cattle, did not accept the deceased's alleged right as lessee. The deceased however wanted to plough only 30 cents out of the land which he had taken lease of. On the date of the incident in the morning the deceased with his sons, son-in-law and brother-in-law (wife's brothers) went to plough the land and prepare the same for transplantation. The prosecution case is that it was at this stage that 100 persons of Potanda village including the two Appellants came and assembled under a Pipal tree as shown in the spot map at a distance of three furlongs from the field. It is said that they had red flags with them and they were armed with lathis, Katuas and Katis and shouted a slogan 'victory to the people of Potanda' and marched towards the field where the deceased was ploughing. It is said that they had red flags with them and they were armed with lathis, Katuas and Katis and shouted a slogan 'victory to the people of Potanda' and marched towards the field where the deceased was ploughing. The two Appellants are said to have gone ahead and asked the deceased to stop ploughing and when the deceased refused saying that he was ploughing his own land, Appellant Bhondari Kanhu dealt a blow with a Katua on the head of the deceased and thereafter Appellant Epill Nilakantho dealt a blow with a Kati on the head of the deceased and as a result of the blows the deceased fell down and died. It is also the prosecution case that the invadors surrounded the deceased and his party and assaulted them; thus p.ws. 2, 3, 5, and 6 and also others of the prosecution party were all injured. 4. The defence is a plea of dough of private defence of both property and person. The defence denied the deceased's alleged possession of the land in question and contended that the land was all along lying vacant as Gochar land and that the Potanda villagers of defence party have been paying cast therefore. The defence version of the case in substance is this: On the day previous to the date of the incident, the deceased, by way of threat, sent advance intimation to the defence party of village Potanda to the effect that the deceased would cultivate the laid in question on the day following and asked the defence party not to obstruct. The following morning, the prosecution party said to be about 30 to 40 persons including the deceased, his, sons, son-in-law and brothers-in-law all armed with deadly weapons came to the spot and forcibly cultivated the land. Thereupon the said four accused persons of village Potanda who were charge sheeted but subsequently discharged as aforesaid, came to the spot and implored the deceased not to cultivate the Gochar land, but the said four accused persons were assaulted by the prosecution party. The defence case is that it was at that stage that the two Appellants then working in the neigh bouring fields came to the rescue of their said four covillagers of Potanda but the deceased gave three blows with a Khanati on the head of the Appellant Epili Nilakantho. The defence case is that it was at that stage that the two Appellants then working in the neigh bouring fields came to the rescue of their said four covillagers of Potanda but the deceased gave three blows with a Khanati on the head of the Appellant Epili Nilakantho. The other Appellant Bhondari Kanhu tried to save him but the deceased and his sons and his wife's brother attempted to assault Appellant Bhondari Kanhu. Then Appellant Bhondam Kanhu in fear of his own life dealt a blow with a Katua on the head of the deceased, and the other Appellant Epili Nilakantho, also in fear of his own life, snatched a Kati from the hand of p.w. 2 Sigadana Gobinda Dora and gave a liow with the Kati on the head of the deceased. In their examination u/s 342 Code of Criminal Procedure the Appellants did not specifically mention that they had dealt blows on the head of the deceased. Appellant Bhondari Kanhu said that he hurled the Katua which he was holding and that he could lot say whom it struck. Appellant Epili Nilakantho said that he aimed a blow with a Kati but he could not say whole it struck. In cross-examination of the prosecution witnesses the defence clearly suggested that the Kati blow of Appellant Epili Nilakantho and Katua blow of Appellant Bhondari Kanhu struck the head of the deceased. Thus apart from the somewhat vague statements in examination u/s 342 and the bare suggestions to the prosecution witnesses in cross-examination the defence did not lead any evidence in respect of their alleged right of private defence. 5. The learned trial Judge, while holding that the defence party had no right of private defence as alleged, gave the following finding on facts of this case: ...I hold that the accused party came prepared for resisting forcible cultivation and were determined to fight. It is in evidence that there was a previous litigation between the parties and as such feelings between the parties were running high for some time past. The evidence shows that both parties were almost equally to blame. I have, therefore, reached the conclusion that both parties contemplated a fight and forming two unlawful assemblies they came prepared to vindicate their rights. 6. Now the question is: Is the right of private defence available to the Appellants in the circumstances of this case? The evidence shows that both parties were almost equally to blame. I have, therefore, reached the conclusion that both parties contemplated a fight and forming two unlawful assemblies they came prepared to vindicate their rights. 6. Now the question is: Is the right of private defence available to the Appellants in the circumstances of this case? The law on the point is when settled. The right of private defence is an answer to a charge of rioting; but there can be no right of private defence when the riot is premeditated on both sides, unless the object of the assembly is shown to have been to repeal forcible and criminal aggression. 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 he police authorities, always remembering that where both the parties are determined to fight and go up to the land fully armed in full expectation of an armed conflict to have a trial of strength, the right of private defence disappears. Take, for instance, while one A was in possession of certain land which was not under any crop, B and his party went to the land for the purpose of ploughing the land and thus dispossessing A, whereupon A struck B and killed him. In such a case the land having not been under crop at the time of the occurrence, all that B and his party were doing was to plough the land; they were not doing any immediate harm; there was, therefore, ample title for A to have recourse to the public authorities for the protection of his rights; hence A was not protected by any right of private defence of property. The right is available only against an offence and not against a lawful act. It would depend upon" the circumstances of each case, in order to determine the question of the alleged right of private defence. The right is available only against an offence and not against a lawful act. It would depend upon" the circumstances of each case, in order to determine the question of the alleged right of private defence. In such cases it should be clear from the Evidence that the party exercising the right he claims is in possession of that right and that he is entitled to resist or repel aggression in order to maintain that right. It is only when these facts are proved and he can be said to be maintaining his right. A gathering of persons assembled to maintain the status quo may equally be unlawful if the defence of the right can only be effected by enforcing it through the use of force. The right is strictly confined only to acts against an offence and not even against what may be a civil trespass. The present case has to be judged with reference to these principles. 7. The deceased, his sons, son-in-law and brothers-in-Law constituting the prosecution party of village Chakrapur went of the plot in dispute with the full knowledge that they would be opposed by the villagers of Potanda constituting the defence party. The defence party also came there with full consciousness that they whom have to fight the prosecution party. Thus both parties were out for a trial of strength. The almost simultaneous arrival of the rival parties at the plot in question in the morning of the date of the incident shows a state of preparation on both sides. In fact, the night previous to the date of incident, messages passed between the parties intimating to omit each other their respect have objections of each other intended move. The rival parties were in no mood to listen to the dissuasion or imploration of the other. The plain fact is that men on both sides came with the vowed object of meeting force with force and violence with violence. It is in evidence that no portion of the plot in question was yet cultivated with any crop. There was no standing crop on the land any where. All that the deceased contemplated doing on the date of the incident was to plough only 30 cents out of the land in question and prepare the same for transplantation. It is in evidence that no portion of the plot in question was yet cultivated with any crop. There was no standing crop on the land any where. All that the deceased contemplated doing on the date of the incident was to plough only 30 cents out of the land in question and prepare the same for transplantation. Thus on the date of the incident no property was in imminent danger of being destroyed; no harm would have accrued if the parties were to wait and seek recourse to the protection of the police. Section 23 of the Police Act (Act V of 1861) gives wide power to the police officers for preventing offences and breaches of law in general. In fact, there was a police Out Post at Digapahandi which is only within 2/3 miles from village Potanda. As is well known, Out Posts are established in remote parts of mofusil police stations for patrolling and surveillance and generally, for the prevention of crime (Chapter VII, Rule 136 of Orissa Police Manual Vol. I.P. 77). 8. The defence party made headlong march to the place of occurrence, to maintain their supposed right to the land in question as their alleged Gochar land at any cost without taking recourse to the protection of the police which was available to them. It is not that there was no time for the defence party to have recourse to the protection of the public authorities. In fact, the night before the incident the deceased had sent intimation to Potanda villagers that he was going to plough the land and asked the defence party not to obstruct him. It was at that stage that the defence party could have reported and sought protection of the police at the local Out Post. The defence party should not have taken the law into their own hands in the manner that they did regardless of the consequences. 9. In a case like this, in order to succeed each party has to establish his own possession. If a party proves to have been in possession and if such possession be interfered with by the rival party, then the party in possession should seek protection of public authorities. 9. In a case like this, in order to succeed each party has to establish his own possession. If a party proves to have been in possession and if such possession be interfered with by the rival party, then the party in possession should seek protection of public authorities. Here, when the defence party, 100 persons of village Potanda including the Appellants, went to the field in batches inspite of the deceased trying to dissuade them from obstructing his ploughing the land, the defence party knew that they will have to reap the consequences. From location of the place of occurrence and sequence of events, I am satisfied that the defence party including the Appellants were the aggresors. I agree with the finding of the learned trial Judge that the Appellants having given heavy blows with Kati and Katua on a vital part of the deceased's body must be presumed to have intended the probable consequences of the blows, and the injuries caused being sufficient, in the ordinary course of nature, to cause death; both the Appellants are guilty of the offence of murder. 10. In all civilized States, the natural tendency of the law is to restrict within constantly narrowing limits the right of self-help which in India was given statutory recognition in Section 99 Penal Code. If a person prefers to use force in order to protect his property when he can, for the protection of such property, easily have recourse to the public authorities, his use of force is made punishable by the J Indian Penal Code, no matter what the intention of the person may be. The law says that he must not use force in such cases but should invoke the aid of the tribunals charged with enforcement of the law. 11. In view of the long-standing dispute between the parties, the story of the defence party having approached and implored the deceased with folded hands not to cultivate the Gochar land after already having gone there in the morning, as engaged, is not believable. In fact, the dispute over the land was going on since 1950. There was a criminal case in which the deceased was complainant and certain villagers of Potanda were accused. Both sides were paying rent purporting to establish their respective right. In fact, the dispute over the land was going on since 1950. There was a criminal case in which the deceased was complainant and certain villagers of Potanda were accused. Both sides were paying rent purporting to establish their respective right. Thus the animus between the parties was from 950 and the incident took place ten years after in 1960 while all this time the bickering between the parties was continuing, and the trouble was brewing. In this background, the defence party having taken the risk of going to the land inspite of the previous intimation sent by the deceased, there can be no question of any alleged right of private defence of person at any stage of the mutual assault which was the defence party's own seeking in that while they got previous intimation, there was yet enough time for the defence party to have recourse to the protection of the police. 12. It was contended on behalf of the defence. that the deceased's ploughing the land constituted danger to the property as it meant conversion of the pasture land (Gochar) to paddy land by transplantation and thus it was an act of causing mischief to the property which the defence party had a right to stop in exercise of their alleged right of private defence of property. This argument has no force for these reasons: The defence failed to prove that the land in question as a grazing land in use of the villagers of Potanda. In fact, there are other Gochar lands in the village; it was out of the parent plot of 35.90 decimals that a piece of only 2.90 decimals is the subject-matter of the dispute as claimed by the deceased under an alleged lease in his favour. Again, out of the said 2.90 decimals, a small slice of only 30 cents approximately was sought to be cultivated by the deceased and the rest was lying fallow. As regards payment of rent by the villagers of Potanda, the evidence of the village Karji p.w. 10 is that he accepted rent from the villagers of Potanda as he was direct by the Tahasildar and Supervisor to keep the amount in deposit showing it as a surplus collection as villagers of Potanda were claiming the land as Gochar. As regards payment of rent by the villagers of Potanda, the evidence of the village Karji p.w. 10 is that he accepted rent from the villagers of Potanda as he was direct by the Tahasildar and Supervisor to keep the amount in deposit showing it as a surplus collection as villagers of Potanda were claiming the land as Gochar. Thus it is significant that the villager of Potanda were paying rent for the land over which they appear to have no ostensible right to pay rent. I do not however express herein any opinion on the alleged respective merits of the civil rights of the parties to the land in question if any or at all. 13. The defence counsel also challenged the prosecution case on the ground of alleged suppression of material portion of the occurrence in that the injuries on the members of the defence party were suppressed both in the F.I.R. as also in the evidence of the prosecution witnesses where is said to be no mention of the injuries on the accused persons by p.w. 1 Jamana Sarathi in his F.I.R. The injury certificates Exts. B, C, D and E show lacerated wounds, abrasions and bruises on the said four persons of the defence party who were charge-sheeted but subsequently discharged. That apart, Appellant Epili Nilakantho appears to have suffered as many as eight injuries including incised wounds, three wounds on the head as appears from the injury certificate Ext. A. The evidence of the Investigating Officer p.w. 13 is that a dying declaration of the Appellant Epili Nilakantho was recorded by a Magistrate as his condition was reported to be serious by the Medical Officer. The defence comment is that none of the prosecution witnesses admitted having assaulted the defence party. There is no rule of law or of prudence which lays down that the evidence of witnesses must be discarded if they do not explain the injuries received by members of the party opposed to them. The matter depends entirely upon the facts of each case. This aspect of the law has often been reiterated by this Court and in the recent decision Bising Saura and Anr. The matter depends entirely upon the facts of each case. This aspect of the law has often been reiterated by this Court and in the recent decision Bising Saura and Anr. v. State 27 (1962) C.L.T. 337 a Division Bench of this Court, by reference to the previous decisions, further clarified the guiding principles in such cases where there is a suppression of a material portion of the occurrence. Once it is established that the eye-witnesses are suppressing a material portion of the occurrence, it is difficult to accept their evidence as to how exactly the fight took place. Indeed in certain circumstances it is extremely hazards for a court to conjecture as to how the fight must have taken place. This is however not to say that whenever discrepancies occur, the prosecution case must be discarded either as a matter of law or general probability. It is to be noted that the court should make an effort to disengage the truth from the falsehood and to sift the grain from the chair. It is an error to take an easy course of holding the evidence discrepant and the whole case untrue; the story given by the eye-witnesses has to be carefully scrutinised in every case and unless it can be said with reasonable certainty that a certain person took part in the riot, the benefit of doubt has to be given to him; though the prosecution witness might not have told the whole truth and though it is not possible to get an absolutely true picture of the event from that evidence, where it is not possible to say that the prosecution case is a complete fabrication, the court should make an effort to is engage the truth from the falsehood Abdul Gani and Others Vs. State of Madhya Pradesh, . 14. In the present Case, however, it is not that the prosecution witnesses intentionally suppressed any part of the occurrence as alleged. In fact, most of the eye-witnesses became unconscious when they themselves were injured in course of the incident. The injury certificates in respect of the injuries on prosecution party show that they themselves suffered various injuries on their person. P.W. 6 himself was grievously injured having had two incised wounds and also bruise and abrasion. In fact, most of the eye-witnesses became unconscious when they themselves were injured in course of the incident. The injury certificates in respect of the injuries on prosecution party show that they themselves suffered various injuries on their person. P.W. 6 himself was grievously injured having had two incised wounds and also bruise and abrasion. The evidence of P.W. 6 is that in order to save himself he began to brandish the spade which was in his hand at the time with which he was sharpening the ridges. He said that while brandishing the spade he was beaten and he fell down senseless. Thus the witness did not suppress that he brandished the spade by reason of which some members of the defence party might have been injured. His brandishing the spade is some explanation of the injuries on the person of some members of the defence Party. P.Ws. 2 and 5 became unconscious after they were assaulted and reigned their senses at the hospital. P.Ws. 1 and 4 are said to leave run away from the place of occurrence out of fear. Therefore they were not in a position to say about the actual injuries on the members of the defence party. The reason why there is no mention of injuries on the defence party by P.W. 1 Jamana Sarathi in his First Information Report is that he had run away out of fear at a stage of the occurrence when he could not have seen the actual assault on the members of the defence party. Thus on careful scrutiny of the evidence of the eye-witnesses it is quite clear that the prosecution version of the case is substantially correct. There is no difficulty in the present case to find how the fight must have taken place. 15. Lastly, one other line of defence attack on the prosecution case is that the eye-witnesses were relations of the deceased and thus interested and partisan witnesses and accordingly their evidence is tainted. There is no difficulty in the present case to find how the fight must have taken place. 15. Lastly, one other line of defence attack on the prosecution case is that the eye-witnesses were relations of the deceased and thus interested and partisan witnesses and accordingly their evidence is tainted. On this point also the settled view of this Court, as often reiterated in various decisions following the said view is that though it is unsafe to sustain a conviction based on the testimony of partisan witnesses, it should be pointed that if this rule is extended too far, no crime committed in any village where there is acute party faction can ever be punished because the eye-witnesses are bound to belong to one party or the other; it is true that the evidence of partisan witnesses requires great scrutiny and should not ordinarily be accepted unless there is some sort of independent corroboration to else there are some other intrinsic circumstances to show that it may be accepted. In the present case p.ws. 1 to 6 are admittedly relations of the deceased but merely because they are relation witnesses it does not mean that their evidence is to be discarded as all false. On scrutiny of their evidence it is quite clear that these eye-witnesses who themselves were victims in the course of the incident spoke the truth about what had actually happened. In view of the party faction between the two villages it is not unlikely that the witnesses to such an incident will take the side of one party or the other. That apart, there is nothing on record to show that there were independent witnesses available there who could have been called by the prosecution but have not been called. Thus there is no force in the defence comment on the credibility of the eyewitnesses on the ground that they are partisan witnesses. 16. There is thus no merit in this appeal. The order of conviction and sentence passed by the learned trial Judge on each of the two Appellants herein is confirmed. This appeal is accordingly dismissed. Misra, J. 17. I agree. Final Result : Dismissed