JUDGMENT : Das, J. - All the eight Appellants have been convicted u/s 148, Indian Penal Code, and sentenced to R.I. for six months each. Appellant Bhagaban Das has further been convicted under Sections, 304, and 323, Indian Penal Code, and sentenced to R.I. for four years and six months respectively Appellants Krutibas Das, Baraju Das and Duryodhan Das have also been further convicted u/s 323, Indian Penal Code, and sentenced to R.I. for six months. The sentences on different counts have been directed to run concurrently. 2. One Bimba Das died about twenty years ago, leaving behind a daughter, Ghunguri, through his first wife Jita. P.W. 14 Sita Bewa is his second wife. Sita by a registered sale-deed (ext.1) dated 9-4-1942 sold some land to P.W. 1 and by another sale-deed; ext. 2 dated 24-6-1960 she sold the rest of the property including the suit property to P.W. 1, Baishnab Das. It is the case of the prosecution that after purchase of the properties which included the disputed Bari land, Baishnab was in peaceful possession of the same and raised some jute crop thereon, and harvested a portion of it, and with respect to the other portion, the accused persons, such as, Baraju, Mani and Govind forcibly reaped the same for which a civil suit as pending. On 21-11-1961, that is four days prior to the occurrence which took place on 26-11-1961, during the absence of the complainant and his son Deenabandhu the deceased from the village, the accused persons ploughed the disputed land and sowed some raddish seeds. On the morning of 24-11-1961 P.W. 1 and his son Deenabandhu went over the land and began to replough the land when accused Bhagaban, Dusashana and Krutibas arrived there, and began to abuse Deenabandhu and unevoked his plough. Thereafter accused, Baraju, Mani Govind and Duryodhan arrived there. Accused Suka Das brought a bundle of bamboo sticks for use of the members of the accused party from out of which each one of these accused persons picked up a stick. Accused Bhagaban dealt two blows with a lathi on the head of Deenabandhu, and on the protest of P.W. 1, Baishnab accused Baraju, Duryodhan, and Krutibas also dealt similar lathi blows on him. In the meanwhile some other persons who figure as p.ws. Accused Bhagaban dealt two blows with a lathi on the head of Deenabandhu, and on the protest of P.W. 1, Baishnab accused Baraju, Duryodhan, and Krutibas also dealt similar lathi blows on him. In the meanwhile some other persons who figure as p.ws. 6, 10 and 21 also gathered there and there ensued a scuffle in course of which P.W. 6 was assaulted by accused Bhagaban and p. ws. 10 and 21 were assaulted by Krutibas. The blows that were dealt on the head of Deenabandhu proved fatal and Deenahandhu died on the following morning while he was being carried from the local dispensary, Kandia to the Government hospital at (sic). In the scuffle the members of the accused party also sustained certain injuries. P.w. 19 a private medical practitioner at Kandia after giving immediate treatment to P.W. 1 and his son the deceased, sent a report (ext. 15) to the Aul police Station, and the said report being treated as F.I.R., the police took up the investigation and charge-sheeted the accused persons, who after commitment were sent up for trial before the Court of Sessions, where they were convicted and sentenced as above. 3. Accused Bhagaban is the son of accused Baraju, accused Dushasan is the son of accused Mani, accused Suka is the son of accused Govind and accused Krutibas and Govind are brother. Thus, all the accused persons except accused No. 7 Duryodhan are closely related to each other and they are also related to P.W. 1 Baishnab. Accused Duryodhan, however, is a stranger to the family. 4. The defence case is that after the death of Bimba his widow Sita P.W. 14 was married to P.W. 1 in a form of marriage known as 'Kachakhadu' and as such she lost her right to the property of her deceased husband Bimba and Ghunguri the daughter of Bimba became entitled to it and came to possess the same. In 1961 Ghunguri sold the very same property which is the subject-matter of the dispute to Appellants Mani, Baraju and Govind who are in possession of the same since the date of their purchase. The specific plea of the defence was that the disputed land was in their cultivating possession on Bhag basis prior to their purchase and as such they had raised the jute crop and after removing the same they had sown raddish seeds. The specific plea of the defence was that the disputed land was in their cultivating possession on Bhag basis prior to their purchase and as such they had raised the jute crop and after removing the same they had sown raddish seeds. But four days thereafter, that is, on the date of occurrence, p.ws. 1, 6, 10 and 21 went upon the disputed land with four ploughs and ploughed the land and on the protest of the accused party; Deenabandhu the deceased under orders of his father Baishnab assaulted accused Dushasan who was also assaulted by p.ws. 5, 6 and 10, When on the shout of Dushasan; Bhagaban and Govind arrived there, they were also assaulted. Thereafter a case was filed by Dushasan. Appellant Duryodhan appears to be a deaf and was unable to understand the questions put to him as appears from his answer to a question u/s 342 Code of Criminal Procedure. Accused Suka was a young boy of about 19 and he simply denied the charge. 5. The counter case filed by the accused persons ended in a final report and nothing further appears to have been done, in the matter. The defence, however, examined three witnesses in support of its case. D.w. 1 is the Chowkidar who has produced the Hatachitha, Register (ext. E) which is of no used to the defence. D.w. 2 is Chakradhar Das, husband of Ghunguri who has attempted to prove the marriage of Seeta with Baishnab, but in cross-examination he climbed down to say that he had not seen the marriage itself but simply has heard about it. He, however, asserted in his evidence that after the marriage of Seeta he and his wife went and locked the house and took possession of all arable lands and let them out on Bhag to accused Govind and Mani Das and later on sold the land for a sum of Rs. 1,500/- to Appellants Govind, Baraju, Mani and another stranger Krutibas Das, The alleged sale-deed is not forthcoming though it was also admitted by the prosecution that such a sale-deed was executed by Ghunguri. 6. The learned trial Court rightly did not attach much importance to the evidence of d.w. 2, particularly in view of the fact that he was a highly interested witness. 6. The learned trial Court rightly did not attach much importance to the evidence of d.w. 2, particularly in view of the fact that he was a highly interested witness. The other witness d.w. 3 does not say anything about the occurrence, but claims to have seen the disputed land to be in the Bhag possession of Govind Das for the last five to seven years obviously prior to the alleged sale in 1960, but he has not seen any Bhag Patta or receipt. 7. In support of its case, the prosecution examined a number of witnesses. P.ws. 1 and 14 have each denied the story of alleged marriage as put forward by the defence. Their consistent case is that P.W. 1 purchased the properties of Seeta as early as in 1942 under ext. 1 and that the disputed property was purchased in 1960 under ext. 2 and even prior to the said purchase P.W. 1 was in possession of it on Bhag basis. Reliance was placed by the defence on a part of the prosecution evidence that both these persons, viz., p. w. 1 and Seeta were living in the same house as husband and wife and the alleged sale deed ext. 2 was a fictitious document executed to defeat the claim of Ghunguri. But the mere fact that they were living in the same house or had intimate relationship with each other is not enough to establish the factum of marriage between, them. From ext. 2 it appear that out of the consideration of Rs. 1,000/- a sum of Rs. 900/- was paid before the sub-Registrar. Whatever that may be in the present case we are not concerned with the question of title between the two sets of rival purchasers, the material question being as to who was in actual physical possession of the disputed lad on the date of occurrence. 8. The prosecution has examined a number of witnesses in support of the story of possession of P.W. 1. P.w. 1 is Baishnab and P.W. 2 is his daughter Sebati, P.W. 5 also a witness to ext. 2. P.w. 14 Seeta Bewa is the previous owner and P.W. 10 who has and adjacent to the disputed land have all proved the possession of P.W. 1. Nothing has been brought out to discredit the evidence of these witnesses. P.w. 1 is Baishnab and P.W. 2 is his daughter Sebati, P.W. 5 also a witness to ext. 2. P.w. 14 Seeta Bewa is the previous owner and P.W. 10 who has and adjacent to the disputed land have all proved the possession of P.W. 1. Nothing has been brought out to discredit the evidence of these witnesses. The learned trial Court on the basis off the evidence both oral and documentary came to the conclusion that it was P.W. 1 who was in possession of the disputed land on the date of occurrence. I do not think any material has been placed before me to unsettle that finding of the trial Court on the question of possession of the disputed land. 9. Mr. Kanungo, learned Counsel for the Appellants, contended, that P.W. 1 having admitted that the jute crop was harvested by the accused persons for which a civil suit was pending and it further being I admitted that the accused portions had sown some raddish seeds on the disputed land some two or three days prior to the occurrence, it must be held that they were in possession even though their possession may be that of trespassers. This however, is difficult to accept. In such an event, a rank trespasser may squat temporarily for a few hours or even for a few days and claim possession on the basis of such illegal squatting and yet claim a right of possession to the property. If the prosecution story is to be accepted, it was some of the accused persons who had forcibly removed the jute crop for which P.W. 1 had no other alternative but to take recourse to Court of law. Thereafter, again as appears from the evidence of P.W. 2, during the absence of her father Baishnab, the accused persons forcibly ploughed the land sowed the raddish seeds. When she protested, they threatened her and the came away opt of fear, and reported this matter to her father and brother the deceased when they returned home. Thus, the accused persons made several attempts to take forcible possession of the disputed land purchased by Baishnab. Such an act cannot be taken to be possession in the eye of law. 10. Thus, the accused persons made several attempts to take forcible possession of the disputed land purchased by Baishnab. Such an act cannot be taken to be possession in the eye of law. 10. It was next contended that there was nothing to show that after the jute crop was harvested by the accused persons, P.W. I had undertaken any agricultural operation on the disputed land. This, however, is not necessary. When possession is once found in favour of the complainant, it is not further necessary for him to show that he was continuing the possession every hour or any day and unless it was so done, he shall be deemed to have been dispossessed. From the evidence it must be sard to have been established that P.W. 1 was in possession of the disputed land on the date of occurrence. 11. Coming to the occurrence, the prosecution case is that on the date of occurrence Baishnab and his son Deenabandhu went with one plough and ploughed the disputed land and just then accused Bhagaban, Dushasan and Krutibas arrived there, and they unevoked the plough and pushed Deenbandhu to some distance. Thereafter accused Baraju, Mani, Govind and Duryodhan also arrived there. Accused Suka came with a bundle of bamboo sticks and each of these eight persons picked up a stick and thereafter accused Bhagaban gave two lathi blows on the head of Deenabadhu who sustained bleeding injuries. Dushasan also gave a push with a stick on the chest of Deenabandhu. When Baishnab protested to the high-handed action of the accused persons, he was struck on his wrist by Baraju. Accused Duryodhana gave a stroke on his shoulder and accused Krutibas also gave a stroke on his head causing bleeding injury. Thereafter P.W. 1 and his son Deenbandhu left the spot. Thereafter some of the villagers arranged a boat to carry them to the hospital at Aul. They stayed during the night in a dispensary at Kandia and on the morning on their way to Aul hospital, Deenabandhu died. The story of assault as put forward by P.W. 1 get corroboration from do number of eye-witnesses to the occurrence such as p. ws. 2, 3, 4, 5, 6 and 10. P.w. 21 though not a witness to the occurrence, had been to the spot on hearing the sound of clash of sticks, but there he was assaulted by Krutibas. The story of assault as put forward by P.W. 1 get corroboration from do number of eye-witnesses to the occurrence such as p. ws. 2, 3, 4, 5, 6 and 10. P.w. 21 though not a witness to the occurrence, had been to the spot on hearing the sound of clash of sticks, but there he was assaulted by Krutibas. As stated before, p. w. 2 is the daughter of P.W. 1. P.ws. 3 and 4 are two other persons who were on their way for purchase of a milch cow for the headmaster, Purna Chandra Naik. While they were measuring the milk for fixing the price of the cow, they heard the noise from the place of occurrence which was at a distance of about 200 cubits from the place where they were and then they went to the spot. P.w. 5 was returning from the river side after easing himself when he saw the occurrence. P.w. 6 has his land adjoining the house of P.W. 1 and at the time of occurrence, he was watering his Kandamula plant. He is also one of the persons who asked the accused persons to desist from assaulting Baishnab and his son. But he was given two strokes by accused Bhagaban on his head and wrist. P.w. 10 is a close neighbour. He was watering his chilly plants when he heard the noise from the side of the house of P.W. 1. He went there and saw the occurrence. When he protested against the high-handed action of the accused persons, accused Krutibas gave a lathi stroke cm his head and two other blows on his hand. All these witnesses have fully supported the prosecution story that accused Bhagaban gave two lathi blows on the head of the deceased and how some of the accused persons assaulted the witnesses as stated above. The evidence of these witnesses gets corroboration from the evidence of the doctor (p.w. 16) who conducted the post mortem examination on the deceased on 26-11-1961. The doctor found one external injury on the head of the deceased and according to him the injury was between 12 to 24 hours old by the time of his examination, and the death of the deceased was due to compression of the brain and comma due to brain injury. The doctor found one external injury on the head of the deceased and according to him the injury was between 12 to 24 hours old by the time of his examination, and the death of the deceased was due to compression of the brain and comma due to brain injury. The injuries were ante mortem in nature and could have been caused by a blunt weapon like a lathi. On the basis of one external injury on the head of the deceased the learned Counsel for the Appellants argued that the prosecution story that Bhagaban gave two lathi blows on the head of the deceased must be discarded as false. This, however, cannot be accepted. The doctor in his cross-examination admitted that the possibility of two strokes having been given on the head of the deceased can not be excluded. According to him This is possible due to the existence of a lacerated wound in the middle of the injury which could have been caused either by one stoke or by a subsequent small stroke. P.w. 1 was examined by another doctor, P.W. 20 Lokanath Das on 25-11-1961 and his report is ext. 17. On examination P.W. 20 found a lacerated wound on the parietal region, swelling of the left shoulder and left wrist. The age of the injury was about 48 hours and the injury could have been caused by a blunt weapon. Thus, the existence of the injury on the person of P.W. 1 on his head and left shqulqer and wrist corroborates the version of his being assaulted as alleged by the prosecution. We have already soon P.W. 1 involved accused Krutibas, Baraju and Duryodhan as being his assailant & P.ws. 6, 10 and 21 also received injuries as a result of assaults on them, is borne out by the injury certificates, exts. 23, 24 and 20 respectively. Though P.W. 21 is not a witness to the occurrence itself, it is clear from his evidence that immediately after the occurrence he went to the house of P.W. 1 and saw both P.W. 1 and his son lying injured. He was reported there by P.W. 2 that his father's Chaddar was lying in the Bari and when he went to pick up the Chaddar from the Bari the accused Krutibas gave him some blows by a stick on his shoulder. He was reported there by P.W. 2 that his father's Chaddar was lying in the Bari and when he went to pick up the Chaddar from the Bari the accused Krutibas gave him some blows by a stick on his shoulder. This at least shows the presence of Krutibas at the Bari with a lathi sometime after the occurrence. Most of the eye-witnesses, except p.ws. 3 and 4 are agnates of both parties. There is absolutely no reason as to why they should depose falsely against the accused persons. Once their evidence is accepted, there is no difficulty in accepting the case as presented by the prosecution. 12. Some of the accused persons such as Bhagaban, Dushasan and Govind also received injuries is clear from the evidence of the doctor, P.W. 16. He found some injuries on the persons of Govind and Dushasan and a small bruise on the right thigh of accused Bhagaban. These three accused persons admitted to have gone to the place of occurrence. But their case was that P.W. 1 with a number of persons such as p.ws. 5, 6 and 10 went upon the disputed land with four ploughs and when these accused persons, protested, they were assaulted. In other words, even according to the version of the defence the presence of p. w. 1, 5, 6 and 10 at the place of occurrence is admitted. Mr. Kanungo, learned Counsel for the Appellants, contended that in the absence of any explanation for the existence of the injuries on the aforesaid three accused persons, the accused persons are entitled to an acquittal. This contention, however, is not well founded. P.w. 1 himself has explained as to how accused Govind and Dushasan received injuries on their persons. According to him when he was attacked by the accused party, he packed up a lathi and whirled the same in self-defence and it struck "against accused Govind and he also dealt some shoes to accused Dushasan in self-defence. This part of the story is also supported by the evidence of p. w. 4. Thus, the existence of injuries on the person of Govind and Dushasan has been fully explained. It may be mentioned here that so far as accused Bhagaban is concerned he had only one injury and that was a small bruise. This part of the story is also supported by the evidence of p. w. 4. Thus, the existence of injuries on the person of Govind and Dushasan has been fully explained. It may be mentioned here that so far as accused Bhagaban is concerned he had only one injury and that was a small bruise. His presence at the spot being admitted, it is no improbable that in course of the scuffle he might have received this injury. In view of this position, it cannot be said that the prosecution has not explained the injuries on the person of the accused. 13. It was next contended that the accused persons were protected by the right of private defence of person and property. Here again the contention is fallacious. We have already seen that the complainant (p. w. 1) was in possession of the disputed land on the gate of occurrence. It is further found on evidence that the accused party went there and assaulted the prosecution party with lathis causing injuries on a number of them, as a result of which one of them, Deenabandhu died on the following morning. The complainant being in possession, the accused party were undoubtedly the aggressors; and the right of private defence was not available to them. Assuming, however, it was a case of disputed possession and neither party could be held to be in actual possession of the disputed property if both parties go armed with lath is for a trial of strength, then neither party can be held to have acted in exercise of his right of private defence irrespective of whether one or the other was the aggressor. It is also well-settled that if a party is found to be ill actual possession, he cannot be deprived of his fight of private defence of property merely because no goes armed to defend his property. No doubt, the exercise of such right is subject to the limitations prescribed by the Penal Code, such as if there is time enough to take recourse to protection of public authorities etc. But in the present case as we have seen, P.W. 1 went to plough his own rand with one plough accompanied by his son and of which he was in possession, and the defence version that he went with four ploughs cannot (sic) accepted. But in the present case as we have seen, P.W. 1 went to plough his own rand with one plough accompanied by his son and of which he was in possession, and the defence version that he went with four ploughs cannot (sic) accepted. It appears from the evidence of P.W. 8 that there was only one plough and that was thrown out by accused Duryodhan. P.W. 7 says that the found one plough and a plough-rope floating in the river and he kept the same in the house of Bhagaban Behera. There was nothing wrong with P.W. 1 to plough his own land even with the assistance of four ploughs. The accused persons had therefore no right of private defence of property. 14. It was next contended that it was the prosecution party who first acted as the aggressors and it was P.W. 1 who first started the assault and the act of the accused party was only by way of private defence of person. This position cannot be accepted in view of the evidence as discussed above. Learned Counsel for the Appellants, relied upon the statement of p.ws. 3 and 4 given in the committing Court where they stated that P.W. 1 gave a lathi blow on the head of accused Govind and Dushasan and then Baraju gave a lathi stroke on the left wrist of P.W. 1 and Krutibas dealt a stroke on the left shoulder of P.W. 1 and accused Duryodhan gave a lathi blow on the head of P.W. 1. This evidence however cannot be of any help to the accused to establish a case of right of private defence of person. When the accused persons went upon the land of P.W. 1 armed with lathis, the latter had every justification to drive them out with the use of such force as was necessary for the purpose. He can reasonably be held to have the apprehension that the accused persons who were in greater numbers armed with lath is may assault him or his son to death or cause grievous injuries to them, and in such a situation, P.W. 1 had every right to give a blow on the heard of accused Govind, in exercise of his right of private defence. Moreover there is no justification for the accused party to cause such assault on Deenabandhu so as to bring about his death on the following morning. It is fully established on evidence that it was accused Bhagaban who gave the fatal blow on the head of the deceased. Taking the nature of the weapon used and the injury inflicted with it the assailant must be held to have the requisite knowledge that his act would result in the death of the deceased. The occurrence having taken place out of sudden quarrel between the parties, the conviction of the Appellant Bhagaban u/s 304, II, is held to be correct and the sentence of four year's R.I. is also appropriate and is maintained. This Appellant was further convicted u/s 323, Indian Penal Code, for having caused hurt to P.W. 6 and his conviction and sentence under the said section must accordingly be maintained. 15. Accused Krutibas, Baraju and Duryodhan were all convicted u/s 323, Indian Penal Code for having caused hurt to P.W. 1. We have seen from the evidence of P.W. 1 that he was given three blows at different parts of his body by these three accused persons which is also supported by the medical evidence. It may also be stated that accused Krutibas was further charged for having assaulted p.ws. 10 and 21 which has been fully substantiated by the evidence of the prosecution. Their conviction u/s 323, Indian Penal Code and the sentence awarded thereunder must accordingly be affirmed. 16. All the eight accused persons were charged u/s 148, Indian Penal Code for having formed an unlawful assembly with the common object of taking forcible possession of the disputed land. But there is no allegation against Appellant Mani Das and Suka Das to suggest that they had any common object of taking forcible possession of the land of P.W. 1. Therefore, so far as Appellants Mani Das and Suka Das are concerned, they are acquitted of the charge u/s 148, Indian Penal Code. But the conviction and sentence of all the rest six accused persons under this section are maintained, and their appeal is dismissed as they were armed and committed rioting. 17. As already stated, accused Duryodhan was found deaf and was unable to understand the question put by the Court. Mr. But the conviction and sentence of all the rest six accused persons under this section are maintained, and their appeal is dismissed as they were armed and committed rioting. 17. As already stated, accused Duryodhan was found deaf and was unable to understand the question put by the Court. Mr. Kanungo, learned Counsel for the Appellants, contended that there was no proper examination of this accused and therefore his conviction is bad in law. But it cannot be disputed that so far as this accused is concerned, the prosecution case is the same as against the other accused persons, and he having been defended by counsel throughout, no prejudice seems to have been caused to this accused. Nothing has been stated here as to what answer he would have given had he understood the question put to him by the Court. Mr. S.C. Mohapatra, learned Counsel for the State relied upon a decision of the Supreme Court reported in K.C. Mathew and Others Vs. The State of Travancore-cochin. In that case, their Lordships observed that if the accused is, not afforded opportunity u/s 342, he is entitled to ask the appellate Court to place him in the same position as he would have been in, had he been asked. In other words, he is entitled to ask the appellate Court which is the ultimate Court of fact) to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along. Their Lordships held that though it is not necessarily fatal ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just where the shoe pinches. It is true that in certain exceptional cases prejudice or a reasonable likelihood of prejudice may be so potent on the face of the facts that nothing more is needed, but that class of cases must be exceptional. Here, however, nothing has been shown what this accused would have stated in the trial Court, had he not lost his power of hearing and had understood the question. In another case reported in the same volume, Moseh Kaka Chowdhury and Anr. Here, however, nothing has been shown what this accused would have stated in the trial Court, had he not lost his power of hearing and had understood the question. In another case reported in the same volume, Moseh Kaka Chowdhury and Anr. v. State of West Bengal AIR 1955 S.C. 536, their Lordships held that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342 Code of Criminal Procedure and that clear prejudice must be shown. Where the accused is represented by counsel at the trial and in appeal, it is upto the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. If the counsel is unable to say that his client had in fact been prejudiced and if all that he could urge is that there was a possibility of prejudice, that is not enough. In view of the aforesaid position, it must be held that no prejudice has been shown to have been caused to accused Duryodhan as has been contended by learned Counsel in this Court, and the contention must accordingly be rejected. 18. In the result, the order of conviction and sentence as passed by the Additional Sessions Judge, Cuttack, is affirmed except that the accused Appellants Mani Das and Suka Das are acquitted of their conviction u/s 148, Indian Penal Code, and the sentence passed on them under this section is set aside, and they are directed to be set at liberty forthwith. 19. Thus, the appeal in respect of Appellants Mani Das and Suka Das is allowed and in respect of other Appellants it is dismissed. Final Result : Dismissed