JUDGMENT : G.K. Misra, J. - Upendra Mahanta has been convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. Brusava Mahanta has been convicted under Sections 302/34, 148 and 326/149, Indian Penal Code. He has been sentenced to imprisonment for life u/s 302/34, Indian Penal Code. No separate sentence has been awarded in respect of the other offences. Khetu Mahanta has been convicted under Sections 148 and 326, Indian Penal Code. He has been sentenced to R.I. for 3 years u/s 326 Indian Penal Code and no separate sentence has been awarded u/s 148, Indian Penal Code. Banamali Mahanta, Hari Munda, Boda Mahanta and Dhela alias Jagannath Mahanta have been convicted under Sections 148 and 326/149, Indian Penal Code. Rama Gisi has been convicted under Sections 147 and 320/149, Indian Penal Code. Each of them has been sentenced to R.I. for 2 years under Sections 326/149, Indian Penal Code. No separate sentence has been awarded under Sections 147 and 148, Indian Penal Code. An of them are the Appellants. 2. The prosecution case may be stated in brief. One Bansi Mahanta had two sons-Bhola and Pitambar. Baburam (the deceased) was one of the sons of Bhola Karan and Mukunda (the deceased) were the sons of Pitambar. The disputed land constitutes 1.71 acres. The lands belonging to the descendents of Bhola and Pitambar were not partitioned by metes and bounds but they were in separate possession of different portions of the lands for convenience. On (sic) 3-5-1960 Karan executed a sale deed (Ext. F.) in respect of 13 kitas of land including the disputed land in favour of accused Khetu, Brusava and Gaduru who are brothers for Rs. 1060/-. At the time of registration, the two deceased protested that it being the family land cannot be transferred in favour of the vendees. On account of the dispute over possession, a proceeding u/s 145, Code of Criminal Procedure was started in Criminal Misc. Case No. 63 of 1960. It terminated in favour of the vendees on 26-4-1961. This possession on the date of the preliminary order was declared. Despite such an order, Baburam cut away the paddy from the disputed land on 5-11-1962 and 6-11-62. Khetu filed a complaint, but Baburam was acquitted on 280.1963 in G.R. Case Nos. 241 and 243 of 1962 (vide judgment Ext. 23). On 24-7-1963, the vendees obtained a preliminary order (Ext. This possession on the date of the preliminary order was declared. Despite such an order, Baburam cut away the paddy from the disputed land on 5-11-1962 and 6-11-62. Khetu filed a complaint, but Baburam was acquitted on 280.1963 in G.R. Case Nos. 241 and 243 of 1962 (vide judgment Ext. 23). On 24-7-1963, the vendees obtained a preliminary order (Ext. B) in this favour u/s 144, Code of Criminal Procedure restraining the members of the prosecution party from going upon the land, and the order Ext. B was made final on 16-9-1963 as per the order Ext. C. Despite this order, the members of the prosecution party again cut away the paddy on 25-10-1964. A criminal case filed against the deceased ended in acquittal. The judgment (Ext. 2) was pronounced on 29-5-1965. The occurrence took place just within a month on 27-6-1965. The prosecution case is that on the disputed 3 Kitas of land Baburam and Mukunda continued in possession and sowed paddy. The paddy plants had grown to a height of 3 to 4 inches. At about 6 A.M. on 27-6-1965, the accused persons, excepting Upendra Mahanta (Accused No. 3) and Sankarsan Mahanta (Accused No. 4), along with many others formed an unlawful assembly and came to the disputed land from the house of Brusava. They were armed with deadly weapons, like axe, Bala, bow and arrows, and lathis. They went to the disputed land with ploughs, 7 paiss of bullocks and 1 pais of buffaloes. The 3 Kitas of disputed land adjoin each other. When they were about to replough the disputed land to destroy the paddy seedlings and to take forcible possession, Baburam protested saying that he had raised the crop and he would not allow them to replough the field. Accused Khetu, Mahanta asked the other accused to beat Baburam and Mukunda. He himself shot an arrow which struck the right leg of Baburam. When Baburam was trying to take out the arrow, Guduru, Boda and Dhela dealt lathis blows on his back. Then an the accused surrounded both Baburam and Mukunda and assaulted them with lathis. When both of them fell down, the accused went back towards the village. While the accused were returning, Upendra and Sankarsan came from the side of the village and met them on the way. Upendra was armed with a Bala and Sankarsan with a lathi. Then an the accused surrounded both Baburam and Mukunda and assaulted them with lathis. When both of them fell down, the accused went back towards the village. While the accused were returning, Upendra and Sankarsan came from the side of the village and met them on the way. Upendra was armed with a Bala and Sankarsan with a lathi. Upendra declared that Baburam and Mukunda were not dead and that they should be killed. Accordingly Upendra, Sankarsan, Khetu, Gaduru, Brusava, Dhela, Rama and Boda returned to the spot, and the others went away to the village. Upendra dealt one blow with his Bala on the head of Mukunda who was lying injured on the field. Brusava dealt a blow with his axe on the head of Baburam who was then sitting on the field. Khetu stabbed on the bead and the leg of Baburam with an arrow. Others assaulted him with lath is. Then Upendra took the axe from the hand of Brusava and dealt blows on the right leg of Baburam with its back side. Managobinda (p.w. 1)., son of Mukunda, was seeing the incident from a distance of 100 yards from the place of assault. On the suggestion of Dhela, all the 8 accused persons cbased him upto a, distance of 30 to 40 cubits and then returned to the spot. They went back to the village proclaiming this victory. P.W. 1 went to the spot and found Baburam and Mukunda lying dead. As has already been stated, Khetu, Brusava and Gaduru are brothers. Upendra is this agnatic cousin, and Dhela is this maternal uncle's son. Haguru is the son of Upendra. Banamali is the son of Khetu. Nidhi and Boda are respectively the brother and the cousin of the wife of Brusava. Hari is the cowherd of Busava. Rama, Ankura and Bansi are the debtors of Brusava. The defence version is that Khetu, Brusava, Hari and Banamali went with 4 ploughs and 4 paiss of bullocks to plough Borne fields which bad been purchased by the vendees from Karan Mahanta and were lying fallow by the date of occurrence. They claim that the paddy was grown by them on the disputed land and the paddy seedlings were this. While they were going on the ridge of the disputed land to plough this fallow lands, Baburam, Mukunda, Mangobinda. Chidu and Dhanurjoy obstructed them. Mukunda had a Bala. They claim that the paddy was grown by them on the disputed land and the paddy seedlings were this. While they were going on the ridge of the disputed land to plough this fallow lands, Baburam, Mukunda, Mangobinda. Chidu and Dhanurjoy obstructed them. Mukunda had a Bala. Baburam had bow and arrows, Mangobinda had an axe. Chidu and Dhanurjoy bad lath is. Bahuram started shooting arrows under the direction of Mukunda. One arrow hit the right leg of Khetu, and another the left leg of Hari Munda. So they brandished this lathis in self defence. Khetu had a Bala which be brandished. Brusava was armed with bow and arrows. He shot some arrows. Then there was a mutual assault by both the parties. Khetu sustained severe injuries on his person and became unconscious. He was carried to his house by Brusava and Hari. They Ray that the entise occurrence took place at a time without any interval. The accused take the plea that they got possession of 1.71 acres of land after this purchase and also took delivery of possession through police. After disposal of the proceeding u/s 141, Code of Criminal Procedure, they were all along in possession of the land and had grown the paddy crop. Excepting the aforesaid 4 accused persons, the others took to the plea of alibi. The learned Sessions Judge held that Baburam and Mukunda were in possession of the disputed land and had raised the paddy crop thereon, and that the occurrence took place as alleged by the prosecution. He analyzed the case of each individual accused and convicted the Appellants for various offences, as already indicated. He held that the death of Baburam and Mukunda was a homicidal. 3. The finding that the death of Baburam and Mukunda was homicidal is not challenged. The Doctor (p.w. 9) held the post-mortem examination. There were 8 external injuries on the body of Mukunda and 12 external injuries on the body of Baburam. So far as Mukunda is concerned, external injury No. 1 was an incised cut wound 5" x ?' deep to the brain substance at the top of the bead in the middle line on front-parietal region. This was sufficient in the ordinary course of nature to cause death. So far as Mukunda is concerned, external injury No. 1 was an incised cut wound 5" x ?' deep to the brain substance at the top of the bead in the middle line on front-parietal region. This was sufficient in the ordinary course of nature to cause death. So far as Bahuram is concerned, external injury No. 1 which was a punctured wound 1?' x ?' x 3" deep, was sufficient in the ordinary course of nature to cause death. It is unnecessary to discuss the matter further. It is not disputed that both Baburam and Mukunda were killed in the fracas. 4. The next question for consideration is as to who was in possession of the disputed land. There is no dispute that the land Bold by Karan to Brusava. Khetu and Guduru constituted 13 Kitas of land. The disputed 3 Kitas of land constitute a part thereof. P.W. 1 asserts that there was no partition by metes and hounds, but the different members of the family were possessing separate portions according to this convenience. The onus was on the offence to establish that there was a complete partition by metes and bounds. No such evidence has been adduced. The prosecution case that there was separate possession for convenience and no partition by metes and bounds, is acceptable. P.W. 1 admitted in examination-in-chief that during the life time of Karan he was cultivating 11 Kitas out of the 13 Kitas, and the rest 2 Kitas were cultivated by Mukunda and Baburam separately. This admission supports the defence version that so long as Karan was alive, he was in possession of the entise 13 Kitas. In cross-examination p.w. 1 wanted to dilute the aforesaid admission by saying that he made such a statement by mistake. We are not prepared to accept the version in cross-examination. We therefore hold that Karan was in possession of the 13 Kitas of land until the date of sale. Though Karan was in separate possession of these 13 Kitas for convenience, he was not entitled in law to transfer the entise land to the vendees who were strangers. Until partition by metes and bounds takes place, each of the cosharers had his own interest in every jot of land. Though Karan was in separate possession of these 13 Kitas for convenience, he was not entitled in law to transfer the entise land to the vendees who were strangers. Until partition by metes and bounds takes place, each of the cosharers had his own interest in every jot of land. There is no knowing that the lands in possession of one cosharer for convenience would not be allotted to the share of another cosharer who was not in possession thereof. The sale effected by Karan thus aroused resentment in Baburam and Mnkunda. Accordingly they raised objection at the time of the registration of the sale deed though such objection was overruled. Despite the fact that an order u/s 145, Code of Criminal Procedure was passed in favour of the vendees, Baburam and Mukunda successfully removed the crops, and the criminal action taken against them ended in acquittal. They also continued to remove the crops in the year 1964. The criminal case u/s 379, Indian Penal Code ended in acquittal just within a month prior to the date of occurrence. The aforesaid circumstances unmistakably will show that though Karan was in possession of the disputed land till the date of the sale, Baburam and Mukunda did not allow the vendees to take possession of the disputed land. In the year of occurrence, it is they who cultivated the land and sowed paddy thereon. The paddy seedlings had already become 3 to 4 inches high. Though the defence taken is that the accused persons were going-with ploughs on the way by the side of the disputes land to another piece of land purchased by them merely or the purpose of cultivation as it was lying fallow, there is no satisfactory evidence in support of such a case. The fact that bullocks were yoked to the ploughs on the disputed land which had paddy seedlings is clear evidence that the accused wanted to destroy the paddy seedlings. If the accused had grown the paddy, there would he no desise on this part to go heavily armed to destroy the paddy seedlings. This circumstance strongly corroborates the evidence of p.ws. 1, 8 and 10, though there is some discrepancy in this evidence. P.W. 10 owns lands to the contiguous west of the disputed land. If the accused had grown the paddy, there would he no desise on this part to go heavily armed to destroy the paddy seedlings. This circumstance strongly corroborates the evidence of p.ws. 1, 8 and 10, though there is some discrepancy in this evidence. P.W. 10 owns lands to the contiguous west of the disputed land. In view of the aforesaid strong circumstance and the history of the litigation beginning from 1960 subsequent to the transfer by Karan following that Baburam and Mukunda did not want to part with this lands, we are clearly of opinion that from 1960 onwards the deceased were in possession and in the year of occurrence Baburam and Mukunda cultivated the, disputed land and Bowed paddy thereon. The paddy seedlings belonged to the deceased. The evidence of possession on the defence side is not satisfactory. D.W. 2 the Padhan of the village, admitted in cross-examination that in his presence Baburam and Mukunda harvested the paddy crops from the disputed land in Kartik 1964. There is no evidence on behalf of the accused that they had grown the crops on that very land in 1964. D.W. 3 was considered by the learned Judge as an untruthful witness. Though be was not examined by the I.O. during investigation of the case no claimed to have been examined by the I.O. and to be a witness to the occurrence of murder. He is the first cousin of Brusava and deposed against Baburam in a criminal case previously. His son Kailash was implicated as an accused in the F.I.R. D.W. 3 rightly rejected as unworthy of credit. The rent receipt (Ext. C) was granted by d.w. 2, in favour of the vendees on 3-2-1965. This was the first rent receipt granted after the purchase and this is shortly before the occurrence. There is no dispute that, an appeal against the order of mutation in favour of the vendees is still penning. On the aforesaid discussion, we are clearly of opinion that Mukunda and Baburam were in possession of the disputed land from 1960 onwards, and they had sown the paddy in 1965 and the paddy seedlings belonged to them. There is no dispute that, an appeal against the order of mutation in favour of the vendees is still penning. On the aforesaid discussion, we are clearly of opinion that Mukunda and Baburam were in possession of the disputed land from 1960 onwards, and they had sown the paddy in 1965 and the paddy seedlings belonged to them. Even assuming that there was scramble for possession between Baburam and Mukunda on the one hand and the vendees on the other, the prosecution evidence is unimpeachable that is the year of occurrence Baburam and Mukunda had cultivated the disputed land, sown paddy and had the paddy seedlings on the disputed land. 5. The next question for consideration is as to who are the aggressors. It is the admitted defence case that accused Khetu, Brusava, Hari Munda and Banamali had gone to the fallow land with four ploughs and 4 paiss of bullocks to plough the same. The other 10 accused took to the plea of alibi. Out of the 14 accused persons, 8 have been convicted and the others have been acquitted. There is difference between the prosecution and the defence as to the number of persons who went to the land armed from the defence side. The prosecution case is that in the first instance 30 to 35 persons armed with various deadly weapons went with 7 paiss of bullocks and 1 pais of buffaloes in order to destroy the paddy seedlings on the disputed land by reploughing. There is no dispute that the fracas took place on the disputed land, and not on the land lying fallow which was at some distance from the disputed land. P.Ws. 1 to 4 and 8 are the witnesses to the occurrence. In paragraph 9 of his judgment, the learned Sessions Judge has elaborately discussed the criticisms against each of these witnesses. It is unnecessary to repeat the same criticisms. The presence of p.w. 1 at the spot is admitted by the defence. The learned Judge held that p.w. 2 is a witness of truth and his evidence can be safely relied upon. P.W. 3 was held to be a disinterested witness and was accepted as giving a true version. It is unnecessary to repeat the same criticisms. The presence of p.w. 1 at the spot is admitted by the defence. The learned Judge held that p.w. 2 is a witness of truth and his evidence can be safely relied upon. P.W. 3 was held to be a disinterested witness and was accepted as giving a true version. P.W. 4's evidence supported the prosecution version that the occurrence of assault took place at 2 different times with an interval, and that only 8 accused persons were present during the second part of the occurrence. P.W. 8 is a resident of an adjoining village. He also noticed from a distance of about 100 yards that the mob was returning to the village and 2 persons were lying injured on the spot persons out of the mob again went to the spot and he clearly recognized these persons. The learned Judge, after a thorough discussion of the evidence of the witnesses, observed thus: all the eye-witnesses are agreed to the main incidents of the occurrence. There are, no doubt, minor discrepancies regarding the details of the occurrence, but in my opinion the witnesses are not deliberately telling lies but honestly mentioning this recollections of the incident. Hence while there is no reason to disbelieve this evidence so far as it establishes the presence of the accused and this participation in the incident, I consider it safer not to take as absolutely correct this statements regarding the individual act of the accused persons without corroboration. The only witness regarding the occurrence on behalf of the defence was d.w. 3. For reasons already given, he is unworthy of credit. We agree with the aforesaid conclusion after having gone through the entise evidence. It was contended by Mr. Kanungo that it was not mentioned in the F.I.R. that Upendra and Sankarsan came at a subsequent stage, and that Upendra suggested to kill the deceased persons. The criticism is not correct. The F.I.R. was lodged at 9 A.M. on 27-6-1965 within 2 to 3 hours of the occurrence. Though the first phase and the second (sic) are have not been clearly mentioned, the F.I.R. narrates that Upendra and Sankarsan assaulted the deceased after they fell down in the first phase. The criticism is not correct. The F.I.R. was lodged at 9 A.M. on 27-6-1965 within 2 to 3 hours of the occurrence. Though the first phase and the second (sic) are have not been clearly mentioned, the F.I.R. narrates that Upendra and Sankarsan assaulted the deceased after they fell down in the first phase. Upendra's exhortations to others was clearly referred to in the F.I.R. The prosecution case therefore has not been developed at the evidence stage and was unfurled with details and clarity even in the F.I.R. which was lodge soon after the occurrence. 6. After having heard Mr. Kanungo with anxiety and after having gone through the entise evidence as placed by him we are satisfied that the prosecution presented a true story as to the manner in which the assault took place and as to the presence of the Appellants. 7. Mr. Kanungo next contends that the prosecution has failed to explain the injuries on the accused persons. The Doctor (p.w. 9) examined accused Khetu Mahanta on 27-6-1965 at 4 P.M. and found the following injuries: (1) An incised wound 4?' x 2" x deep to the bone on the left arm. Internally the triceps muscle was divided and small arteries were cut. There was sprouting of blood from the wound, after removing the clot. A linear cut mark was found on the arm bone. (2) An incised wound 3?' x ?' with tailing linear scratch of 1?' on either side of the wound, on the left Bide of the back on the scapular region. (3) A punctured .wound of 1' x ?' x ?' deep on the lower part of the thigh near the knee joint. (4) An incised wound 3" x 1" x ?' deep to the bone on the left and top of the bead. Definitely the injuries were serious. Injury No. 1 was grievous in nature. He opined that injuries 1, 2 and 4 might have been caused by some sharp weapon like Bala and injury No. 3 might have been caused by an arrow. He however stated that after receiving an these injuries on his person, the injured Khetu Mahant would not have been disabled to move and commit assault on another person by the right hand immediately after infliction of the injuries. On the same day he examined accused Brusava Mahanta and found a lacerated wound 1" x ? He however stated that after receiving an these injuries on his person, the injured Khetu Mahant would not have been disabled to move and commit assault on another person by the right hand immediately after infliction of the injuries. On the same day he examined accused Brusava Mahanta and found a lacerated wound 1" x ? x skin deep on the left side of the top of the head, and a contusion of 1" x 1" on the left wrist. The injuries were simple in nature and might have been caused by some blunt weapon like lathi. He also examined accused Banamali Mahanta on the same day and found an incised wound 4" x ?' x deep to the bone, on the head. He examined accused Hari Munda on the same day and found a lacerated wound on the left foot. Accused Ankura Gisi was also examined by him on the same day and had an incised wound on the left foreleg on the outer surface. The Doctor's evidence shows that at least 5 of the accused persons were injured and of them Khetu was seriously injured. The Doctor's evidence establishes that the age of the injuries on these 5 accused persons coincides with the age of the injuries on the deceased persons. That means both the members of the prosecution party and the accused party sustained injuries in the fracas at the same time. The presence of these 5 accused persons in the fracas is therefore established. Mr. Kanungo however contends that from the evidence of the eye-witnesses p.ws. 1 to 4 and 8 a clear picture is not obtained as to how and at what stage these accused persons got the injuries, and as the prosecution is guilty of suppression of a material part of the story the accused are entitled to the benefit of doubt. This contention requises careful examination. It cannot be denied that the accused persons got injuries during the fracas. Some of them are incised and punctured wounds. Though the defence case is that 5 persons from the side of Baburam and Mukunda went to the field, evidence establishes that only Baburam and Mukunda went armed and p.w. 1 saw the occurrence from a distance. This is also supported by the fact that p.w. 1 received no injuries, though admittedly he was on the spot. Though the defence case is that 5 persons from the side of Baburam and Mukunda went to the field, evidence establishes that only Baburam and Mukunda went armed and p.w. 1 saw the occurrence from a distance. This is also supported by the fact that p.w. 1 received no injuries, though admittedly he was on the spot. P.W. 1 deposes that Baburam and Mukunda carried only lath is while going to the spot. This statement cannot be correct in view of the fact that the accused persons received incised and punctured wounds. It seems also consistent with the probability of the case that Baburam and Mukunda must have gone to the spot with some deadly weapons like bows, arrows and sharp cutting instruments when they found that the members of the accused party went armed with deadly weapons in a batch of 30 to 35 persons. The evidence of p.w. 1 that Baburam and Mukunda carried only lath is cannot therefore be accepted. Now the question for consideration is whether Baburam and Mukunda first attacked the accused person, or it is the accused persons who attacked them first. The evidence of the eye-witnesses p.ws. 1 to 4 and is consistent that it is the accused party who attacked the deceased. The members of the accused party were much larger in number and it seems probable that they must have attacked first. At any rate, the defence has not been able to give any satisfactory evidence or to elicit in cross-examination of the prosecution witnesses that Baburam and Mukunda attacked first. P.Ws. 2, 3, 4 and 8 belong to different villages and are not residents of the village of p.w. 1 and the accused. They are wholly disinterested witnesses, as discussed by the learned Sessions Judge in paragraph 9 of his judgment. They did not see the entise occurrence fully well. So far as the first part of the occurrence is concerned, they saw from a distance and were not naturally in a position to know as to who attacked whom and as to how either the accused or the deceased got injuries. On seeing the incident they however came nearer an clearly saw the second part of the occurrence from a shorter distance. On seeing the incident they however came nearer an clearly saw the second part of the occurrence from a shorter distance. They are therefore very assertive that they saw the 8 Appellants returning back at the behest of Upendra that by then the two deceased were lying on the field wholly disabled, and that on this return back both the deceased were killed. The only suppression in this case therefore seems to be the evidence of p.w. 1 that Baburam and Mukunda did not come armed with arrows and bows and with any sharp cutting weapon. This is not a serious suppression so as to completely discard the prosecution story. Taking the over-all picture it seems to be that the mutual attack was in the first phase and that the killing of Baburam and Mukunda took place when they were lying on the field wholly defenseless. The criticism of Mr. Kanungo that the prosecution has not come with a true story and does not explain the injuries on the accused, can be explained away in the aforesaid manner. 8. The conclusions arrived at on the basis of the aforesaid discussion may now be summarised. (i) After the sale of the 13 Kitas of land by Karan in 1960 in favour of the accused persons, Baburam and Mukunda took forcible possession of the disputed land and continued in possession despite the order in favour of the vendees under Sections 145 and 144, Code of Criminal Procedure. Thus the deceased were in exclusive possession of the disputed land from 1960 onwards till the date of occurrence. (ii) The deceased had cultivated the disputed land in the year of occurrence and had sown paddy. The paddy sown had become seedlings upto a height of 3 to 4 inches by the date of occurrence. (iii) The accused party were the aggressors. They went upon the disputed land fully armed, with 7 ploughs. On the disputed land they yoked bullocks to the ploughs and wanted to destroy the paddy seedlings. (iv) The deceased noticed the fact of the accused party going upon the disputed land to take forcible possession and to destroy paddy seedlings, and accordingly they started for the disputed land fully armed. (v) On the deceased having lodged protest, the accused party attacked the deceased. (iv) The deceased noticed the fact of the accused party going upon the disputed land to take forcible possession and to destroy paddy seedlings, and accordingly they started for the disputed land fully armed. (v) On the deceased having lodged protest, the accused party attacked the deceased. The deceased in this turn appear to have caused incised and punctured wounds to some of the accused persons. In the first phase of the occurrence the deceased were completely routed and they lay on the field disabled and defenseless. (vi) Most of the members of the accused party returned to the village, but 8 of them returned to the field back on the behest of Upendra who said that both the deceased should be killed. Accordingly the Appellants came back and come of them killed the deceased. 9. The question for consideration now is whether the accused committed any offence, and if so, whether they are entitled to the right of private defence of property or person. 10. The finding that the deceased were in exclusive possession of the disputed property from 1960 to 1965 despite the sale in favour of accused Khetu, Brusava and Gaduru and the orders under Sections 145 and 144, Code of Criminal Procedure, is strictly speaking not very much material in view of the other finding that in the year of occurrence the deceased ploughed the disputed land and sowed seeds thereon which had become seedlings upto a height of 3 to 4 inches. In Horam and Others Vs. Rex, a Division Bench of the Allahabad High Court made a distinction between 'possession being in the process of acquisition' and 'completed possession'. This Lordships held: Where a trespasser enters upon the land of another, the person in whom the right of possession is vested, while the trespasser is in the process of acquising possession, may turn the trespasser out of the land by force and if in doing so he inflicts such injuries on the trespasser as are warranted by the situation, be commits no offence. His action would be covered by the principle of self-defence embodied in Sections 96 to 165, Penal Code. His action would be covered by the principle of self-defence embodied in Sections 96 to 165, Penal Code. If, on the other hand, the trespasser bad already accomplished or completed his possession and the person with the right of possession has acquiesced in this accomplishment, it is not open to the latter to avail himself of the doctrine of self-defence and by inflicting injuries on the trespasser to re-acquire possession of his land. In the Allahabad case the prosecution party had sown paddy which had become paddy seedlings only 13 days before the date of occurrence. This Lordships concluded from the aforesaid facts that the prosecution party was not in the process of acquising possession, but had done a completed act of possession, and the accused who were in possession prior to the cultivation and sowing by the prosecution party were not entitled to take forcible possession and destroy the paddy seedlings, as they had already acquiesced in the possession of the prosecution party. 11. The same view was taken in In re Mooka Nadar AIR 1943 Mad 590 . Both these decisions were approved as laying down good Jaw in Munshi Ram v. Delhi Administration 1968 S.C.D. 244 : AIR 1968 S.C. 702 (See para 20). On the aforesaid principle, the members of the accused party committed or attempted to commit the offence of mischief in destorying the paddy seedlings grown by the deceased. The accused persons were more then 5 in number. They constituted an unlawful assembly. The common object of the persons composing that assembly was to commit the offence of mischief and also by means of criminal force or show of criminal force to take forcible possession of the disputed land. There is no substance in the contention of Mr. Kanungo that if the accused persons wanted to maintain this right, they did not constitute an unlawful assembly. On the findings already recorded, the common object was to enforce a right or supposed right. It was not to maintain any right as they were not in possession. But even assuming that the accused persons were in possession of the disputed land prior to the year of occurrence, this attempt to take forcible possession by show of criminal force would not protect them from constituting an unlawful assembly, as has been pointed out in Pranabandhu v. State ILR 1952 Cutt. 219. But even assuming that the accused persons were in possession of the disputed land prior to the year of occurrence, this attempt to take forcible possession by show of criminal force would not protect them from constituting an unlawful assembly, as has been pointed out in Pranabandhu v. State ILR 1952 Cutt. 219. So far as this Court is concerned, the distinction has been considered as one without difference. An assembly would be unlawful even if the common object is to maintain a right with show of force unless the maintenance of that right is sanctioned by law and does not constitute an offence. As has already been found, the members of the accused party used force and violence and were guilty for rioting and they committed an offence u/s 148, Indian Penal Code, as they were armed with deadly weapons. 12. As the members of the accused party committed the offence of mischief and rioting, the deceased were entitled to right of private defence of property. u/s 97, Indian Penal Code, every person has a right, subject to restrictions contained in Section 99, to defend the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. In this case the accused persons committed the offence of mischief, or at any rate attempted to commit mischief. The deceased were therefore entitled to right of private defence of property. It has already been held that the members of the accused party first attacked the prosecution party. But even assuming that the deceased person attacked the members of the accused party first, they had not exceeded the right of private defence of property. u/s 103, Indian Penal Code, the right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or any other harm to the wrong-doer if the offence, the committing of which or the attempting to commit which, occasions the exercise of the right be an offence of any of the descriptions hereinafter enumerated, namely, Fourthly-Theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. The accused in a batch of 30 to 35 persons came heavily armed with various lathe weapons and attempted to destroy the paddy seedlings of the deceased. In exercise of this right of private defence, the deceased were entitled to use such force, as is necessary to oust the marallders from the field. The accused were heavily armed. The deceased merely caused a number of simple injuries and some grievous injuries. The force used by the deceased was not more then what was necessary for driving away the accused persons from the field in causing the injuries on the accused persons. Assuming that the deceased were the first assailants they committed no offence. Section 96 itself lays down that nothing is an offence which is done in exercise of the right of private defence. 13. On the other hand, the accused party had no right of private defence. If they were the first assailants, they had no excuse as the deceased were in possession of the disputed land and had grown the seedlings. If the deceased were the first assailants, they committed no offence. The retaliation of the accused would give them no right of private defence against persons who committed no offence. In any view of the matter, the accused persons are guilty of the offences of which they have been convicted. On the aforesaid analysis also it is immaterial whether the prosecution party suppressed as to the manner in which the assault took place. As has been pointed out, even assuming that the deceased started the attack first, the accused were not entitled to any right of private defence. It is not disputed that by the attack of the accused the deceased were killed. 14. It has already been found that the deceased were killed in the second phase. In other words, the members of the accused party were first returning back to the village after the deceased became disabled and defenseless. Thereafter the Appellants came back at the behest of Upendra. By the time the deceased were killed, they were wholly defenseless and made absolutely no effort to attack the accused. In such a case, the accused persons clearly committed the offences of which they have been convicted. 15. On the aforesaid analysis, we find no merit in this appeal and it is accordingly dismissed. Ray, J. 16. I agree. Final Result : Dismissed