JUDGMENT : S. Acharya, J. - The Appellants stand convicted u/s 304 Part-II read with Section 149, Indian Penal Code. Excepting Kantha Pradhan Appellant No. 4, each of the other four Appellants has been sentenced thereunder to undergo R.I. for five years. On consideration of the old age of Appellant No. 4 he has been sentenced to undergo simple imprisonment only for six months. 2. The prosecution case in short is that Padhan Bandha in village Kaliaguda belonged to deceased. Braja Pradhan as it was his ancestral property, and he and his family members were in possession of the said tank all along. Arjuna Pradhan Appellant No. 1, then Satpanch of Badabarasingi Gram Panchayat, illegally claimed that the said tank belonged to the Gram Panchayat. Prior to the occurrence a criminal case for theft of fish from the said tank had been launched against the deceased and some of his family members by the Members of the Gram Panchayat. While that case was pending, the Gram Panchayat decided to catch fish from the said tank and on the date of occurrence, i.e. 24.11.1969, the Gram Panchayat engaged fishermen for the purpose of catching fish in the said tank, and by about 10 a.m. on that day Appellant Arjuna, the Sarpanch of the Gram Panchayat, along with quite a number of other persons, of whom 31 were put on trial in the Court below, went to fish in the said tank with the help of the fishermen engaged for the purpose. Appellant Arjuna and his partymen were armed with Lathis and other weapons of offence. After some time deceased Braja Pradhan, his son Kunja (p.w. 2), his brother Debahari (p.w. 1) and his nephew Kishore (p.w. 3) came to the place of occurrence and in assertion of their right of private defence of property asked the Sarpanch and his party men not to catch fish in the tank. At this Appellant Arjuna became wild and asked his partymen to wipe out and/or to assault the deceased and his partymen. Thereupon the accused persons assaulted the deceased and some others of his partymen with Lathis, sword, Bhusa and Tangi, as a result of which Braja pradhan died at the spot, and three of his relations were seriously injured. 3. The accused persons denied the prosecution allegations against them. Thereupon the accused persons assaulted the deceased and some others of his partymen with Lathis, sword, Bhusa and Tangi, as a result of which Braja pradhan died at the spot, and three of his relations were seriously injured. 3. The accused persons denied the prosecution allegations against them. Appellant Arjuna (the Sarpanch of the Gram Panchayat) alleged that he and accused Krutibas Kbadanga (Village Level Worker), Ullash Pradhan (Peon of the Gram Panchayatj, Paratnananda Pradhan and Shyama Pradhan, two Ward Members of the Gram Panchayat), and a few others went to the said tank to watch the catching of fish by the fishermen engaged by the Gram Panchayat. After some time, the deceased, his brother, his son and his nephew came there armed with weapons and Kishore Pradhan (p.w. 3) sat on the net with a sword in his hand. Appellant Arjuna tried to dissuade p.w. 3 from obstructing fishing in the tank, but he did not listen. Accused Kantha Pradhan went near p.w. 3 while he was sitting on the net, and when p.w. 3 raised his sword to assault accused Kantha, he (Kantha) hit the sword with a Lathi, as a result of which the sword fell down in the water of the tank. At this, the deceased inflicted cut injuries on accused Paramananda and the brother of the deceased inflicted a cut injury on accused Gangadhar Pradhan. People who had gathered at that place protested against the conduct and the high-handed action of the deceased and his relations. On being assaulted by the above-mentioned persons accused Arjuna and his partymen ran away from that place out of fear. The other four Appellants have completely denied their complicity in the occurrence, and have alleged that they have been falsely implicated in this case. 4. On the above prosecution case, 31 accused persons including the five Appellants were charged for offence under Sections 147 and 302/149, Indian Penal Code. Seven of them had further been charged of the offences punishable u/s 327. Indian Penal Code. On trial the five Appellants only have been convicted and sentenced as stated above. 5. The prosecution in all examined 15 witnesses. Out of them p.ws. 1, 2, 3 and 8 supported the prosecution case P.ws. Seven of them had further been charged of the offences punishable u/s 327. Indian Penal Code. On trial the five Appellants only have been convicted and sentenced as stated above. 5. The prosecution in all examined 15 witnesses. Out of them p.ws. 1, 2, 3 and 8 supported the prosecution case P.ws. 4, 5, 6 and 7 mostly supported the aforesaid case put forward by Appellant Arjuna and so they were declared hostile and crossexamined by the prosecution P.w. 9 who was expected to testify the preparations of the accused persons for assaulting the deceased and his relations did not support the prosecution case and was declared hostile P.ws. 10 and 11 are witnesses to the seizure of some articles from the place of occurrence and from the houses of some of the accused persons P.w. 12 was a clerk in the office of the Tahasildar, Aska, and he proved certain documents relating to the transfer of the tank in question to the Badabarasingi Gram Panchayat P.w. 13 is the doctor who conducted the postmortem examination on the deed body of Braja Pradhan and examined the injuries on p. ws. 2 and 3 and also the injuries on the persons of accused Gangadhar and Paramananda P.w. 14 is the constable who took the dead body to the doctor, and p.w. 15 is the Investigating Officer. 6. P.w. 13 on post-mortem examination found the following injuries on the dead body of Braja Pradhan: External injuries: (1) 9 longitudinal bruises of sizes 6" to 10" long ? 1/2" situated over the right side of the back. (2) One bruise 7" ? 1/2" situated transversely across the middle of the back. (3) One bruise 1011 ? 1/2" over the spinal column. (4) One bruise 12" ? 1/2" over the back of the left leg and left thigh. (5) One bruise 4" ? 1/2" over the back of the left knee. (6) 4 bruises 4" ? 1/2" each over the back of the right leg and knee. (7) One longitudinal bruise 9" ? 1/2" situated over the lateral aspect at the right side of the chest and abdomen. (8) one broad bruise 7" ? 5" situated over the right shoulder posterior and lateral aspect. (9) One lacerated wound 21/2" ? 1" ? 3/4" situated over the right temporal region of the scalp 1" above and behind the right ear. 1/2" situated over the lateral aspect at the right side of the chest and abdomen. (8) one broad bruise 7" ? 5" situated over the right shoulder posterior and lateral aspect. (9) One lacerated wound 21/2" ? 1" ? 3/4" situated over the right temporal region of the scalp 1" above and behind the right ear. (10) One lacerated wound 3/4" ? 1/4" ? 1/4, one inch above the right eye brow. (11) One bruise 1" ? 1/2" to the right side of the nostril. (12) One lacerated wound 3/4" ? 1/4" ? 1/4" over the pinna of the right ear. (13) One punctured wound with lacerated margins 3/4" ? 1/4 ?" depth situated over the right side of the neck near the angle of jaw. (14) One contusion 6" ? 5" situated over the right side of the neck and cheek and ear. (15) One contusion 2" ? 1/2" over the tight cheek. (16) One lacerated wound 3/4" 1/2" ? 1/4" over the left upper lip with fracture and dislocation of the upper two central incisors and loss of lower two central incisor teeth. On dissection he found the following injuries: (1) The underlying muscles corresponding to the external injuries were contused. The scalp was contused. (2) Linear fracture 2" long situated over the right mastoid process of the temporal bone. (3) There was fracture of the base of the skull. One linear fracture situated over the anterior cranial fossa left side from orbital process to pituitary fossa. Another linear fracture over the right side cranial fossa 2" long obliquely over the petrous portion of the temporal bone present. (4) The whole cerebrum and cereballum contused with clotted blood present over the convolutions of the cerebrum on both sides. (5) There was fracture of the right mandible superior ramus at its middle. (6) Both lungs were contused. (7) There was contusion of the left side intercostals muscles in the middle 8th, 9th and 10th spaces with fracture of the left 10th rib at its middle. (8) There was fracture of the 9th rib at its anterior part. (9) The right scapula fractured over the spinous process middle. Ext. 18 is the post-mortem report. (7) There was contusion of the left side intercostals muscles in the middle 8th, 9th and 10th spaces with fracture of the left 10th rib at its middle. (8) There was fracture of the 9th rib at its anterior part. (9) The right scapula fractured over the spinous process middle. Ext. 18 is the post-mortem report. P.w. 13 opined that all the injuries were ante-mortem in nature, and that all the injuries excepting injury No. 13 were caused by hard and blunt weapon, and injury No. 13 was caused by a sharp pointed instrument. He opined that the death was due to shock and haemorrhage resulting from the aforesaid injuries. From the number and nature of the injuries and the above mentioned opinion of the doctor there is no doubt that the death of the deceased was homicidal. 7. It is admitted that on the date of occurrence an incident took place between accused Arjuna Pradhan and some others with him on one side and the deceased and some of his family members and supporters on the other regarding catching of fish in the tank by the Gram Panchayat people. It is also not disputed that the deceased died at the place of occurrence. 8. Mr. Swamy, the learned Counsel for the Appellants, has contended that the evidence on record does not establish that the Appellants participated in the occurrence in which deceased Braja Pradhan was assaulted to death. 9. P.ws. 1, 2, 3, 4, 5, 6, 7 and 8 have all consistently stated about the presence of Appellant Arjuna (the Sarpanch) at the place of occurrence P.ws. 6 and 7, two fishermen, have also stated that they and some others were engaged by the Sarpanch (Appellant Arjuna), the Gram Sevak (accused Krutibas Khadanga since acquitted) and some others to catch fish from the said tank. All the prosecution witnesses mentioned above have stated that it was Appellant Arjuna who took a leading part in the occurrence. The narration of the details of the incident by p.ws. 1, 2, 3 and 8 is at variance with that narrated by p.ws. 4, 5, 6 and 7. P.ws. 1, 2 and 3 have stated that the deceased, his relations and partymen (including these prosecution witnesses) went to the tank and asked the fishermen not to catch fish in the tank. 1, 2, 3 and 8 is at variance with that narrated by p.ws. 4, 5, 6 and 7. P.ws. 1, 2 and 3 have stated that the deceased, his relations and partymen (including these prosecution witnesses) went to the tank and asked the fishermen not to catch fish in the tank. At this the fishermen asked them to approach accused Arjuna, the Sarpanch, who was present near the tank. Accordingly they approached the Sarpanch, and the deceased asked him as to why they were catching fish in the tank which belonged to the deceased and his family members. The deceased also requested the Sarpanch to convene a meeting of the Bhadraloks of the village to decide the matter. The accused Sarpanch did not agree to the said proposal and directed the rest of the accused persons to wipe out the prosecution partymen. At this the accused persons surrounded the deceased and assaulted him, as a result of which the deceased fell down on the ground. Some other accused persons assaulted some others of the prosecution party with the different weapons of offence in their hands, and in the precess p.ws. 1, 2 and 3 were assaulted by some of the accused persons. P.w. 1 got into the tank water and swam to the centre of the tank where there was a wooden pole called Garuda Sthamba. From there he saw that his son Kishore (p.w. 3) was lying on the bank of the tank and accused Gaurang Swain and Haria Gouda (since acquitted) were assaulting him with Lathis. They have named several other accused persons (all of whom have been acquitted) to have assaulted other persons of the prosecution party. P.w. 1 has further stated that in course of the above incident some of the accused persons threw stones at him at the instance of accused Arjuna as a result of which p.w. 1 was injured on his head. After assaulting different persons of the prosecution party and when many others assembled at the place the accused persons left the place. The evidence of p.ws. 1. 2 and 3 is almost the same on material particulars. 10. P.ws. 4 to 7. however, have stated that an occurrence in connection with catching of fish in the tank by the Gram Panchayat took place at about 10 A.M. on the date of occurrence. P.ws. The evidence of p.ws. 1. 2 and 3 is almost the same on material particulars. 10. P.ws. 4 to 7. however, have stated that an occurrence in connection with catching of fish in the tank by the Gram Panchayat took place at about 10 A.M. on the date of occurrence. P.ws. 4 and 5 state that they went near the tank and found that the Sarpanch (accused Arjuna) and some of his party men were catching fish from the said tank with the help of some fishermen : The deceased and P.ws. 1, 2 and 3 were present there. When the fishermen started fishing operation p.w. 3 sat on the net with M.O. II, a Kati, in his hand. The Sarpanch then sent his peon to p.w. 3 and the peon asked P.W. 3 to leave the net. But as p.w. 3 refused to do so accused Krutibas Khadanga tried to release the net from p.w. 3. Accused Kantha Pradhan also came near p.w. 3. At this p.w. 3 raised M.O. II and gave out that he would kill them. Thereupon accused Kantha Pradhan gave a Lathi blow on M.O. 11 in the hand of p.w. 3 as a result of which M.O. II fell down in the tank water. People who had gathered near the tank to purchase fish protested against the conduct of p.w. 3. Thereafter a fight ensued between the deceased and his party men on one side and the accused Sarpanch and his party men on the other. P.w. 4 does not state anything further about the occurrence, but p.w. 5 stated that p.w. 1 and the deceased assaulted different accused persons named by him. Both of them do not state as to how the deceased met with his death at the spot. P.ws. 6 and 7 narrated the incident more or less in the manner stated above. 11. The prosecution declared p.ws. 4 to 7 hostile and cross-examined them. P.w. 4, who had lodged the F.I.R. in the case, denied to have stated in the F.I.R. the prosecution case as stated by p.ws. 1, 2 and 3. He also denied to have narrated the prosecution case in that manner, before the Investigating Officer. 11. The prosecution declared p.ws. 4 to 7 hostile and cross-examined them. P.w. 4, who had lodged the F.I.R. in the case, denied to have stated in the F.I.R. the prosecution case as stated by p.ws. 1, 2 and 3. He also denied to have narrated the prosecution case in that manner, before the Investigating Officer. P.w. 5, who once was a Member of the Badabarasingi Gram Panchayat, denied to have stated in his Section 164 statement and also before the Investigating Officer a story different from what he stated in the Sessions Court. The prosecution while cross-examining p.ws. 6 and 7 confronted them with their previous statements u/s 164 Code of Criminal Procedure and before the Investigating Officer wherein they had supported various aspects of the prosecution case as narrated by p.ws. 1, 2 and 3 stated above. Thus it is seen that p.ws. 4 to 7 made prevaricating statements at different stages. Their evidence in the Sessions Court considered in the light and perspective of their previous statements does not inspire confidence. 12. On the other hand, the evidence of p.ws. 1, 2 and 3 in the Sessions Court gets sufficient corroboration from their evidence in the committing Court brought on record u/s 288, Code of Criminal Procedure. On a perusal of their evidence both in the Sessions Court and in the committing Court I am convinced that they have on the whole given a correct picture of the incident as it took place. I shall of course later deal with certain aspects of their evidence about which comment has been made by Mr. Swamy, the learned Counsel for the Appellants. 13. On a perusal of the evidence of p.ws. 1 to 7 I have, however, absolutely no doubt that accused Arjuna, the Sarpanch of the Gram Panchayat, took a leading a part in the occurrence in which deceased Braja Pradhan was assaulted to death. 14. P.ws. 1, 2 and 3 have consistently stated that when the deceased approached the Sarpanch (accused Arjuna) not to proceed with the catching of fish in the tank but to decide the dispute regarding the tank in a meeting of the Bhadraloks, the Sarpanch directed the rest of the accused persons to wipe out the deceased and his party men. P.ws. 1, 2 and 3 have consistently stated that when the deceased approached the Sarpanch (accused Arjuna) not to proceed with the catching of fish in the tank but to decide the dispute regarding the tank in a meeting of the Bhadraloks, the Sarpanch directed the rest of the accused persons to wipe out the deceased and his party men. P.w. 1 in course of narrating further details about the incident stated that while some of the accused persons on being directed by the Sarpanch, were assaulting different persons of the prosecution party, the Sarpanch again directed some of the accused persons to throw stones at p.w. 1, and on the Serpanch's direction some of the accused persons threw stones at p.w. 1 and he received injuries on his head. In his cross-examination this witness stated that : accused Arjuna was holding a Bhusa in his hand at the time of the occurrence Mr. Swamy urged that this witness had not stated before the Investigating Officer that accused Arjuna was holding a Bhusa in his hand at the time of the occurrence and so the fact of possession of a Bhusa by this accused should be considered as a false exaggeration affecting the veracity of the witness. P.w. 1, apart from stating in cross-examination about the possession of a Bhusa by accused Arjuna, had also stated the same fact in his examination in-chief in the committing Court. So merely because of the fact that the said fact had not been stated by this witness before the Investigating Officer it becomes difficult for me to doubt his statement to that effect or the veracity of this witness. P.ws. 1, 2 and 3, both in the committing Court and also in the Sessions Court, have stated that accused Arjuna reacted very sharply to the aforesaid proposal of the deceased to convene a meeting of the Bhadraloks and directed his party men to wipe out and/or assault the deceased and his party men. In the committing Court all the three witnesses had stated that accused Arjuna directed his party men to "assault" the deceased and his party men, and as they did not then state that accused Arjuna directed his party men to "wipe out" the deceased and his party men Mr. Swamy says that the said discrepancy and exaggeration in their statements discredit their evidence and their veracity. Swamy says that the said discrepancy and exaggeration in their statements discredit their evidence and their veracity. I do not see a discrepancy in their statements to the above effect. I consider the same as different ways of expressing a fact at two different stages, may be the expression at the later stage was meant to emphasise the gravity of the fact. P.w. 1 has further stated in his cross-examination that after he swam to the middle of the tank he could see from near the Garuda Sthamba that the accused persons surrounded the deceased and assaulted him with different weapons in their hands. He also saw therefrom that accused Arjuna assaulted the deceased with a Bhusa in his hand. The above statements elicited from p.w. 1 in cross-examination could not be shaken by any further cross-examination. On a perusal of the evidence of p.ws. 1, 2 and 3 both in the committing Court and in the Sessions Court I am convinced that accused Arjuna not only took a leading part in the incident, but also actively participated with his party men in assaulting the deceased and his party men. Thus the comment made by Mr. Swamy that the evidence on record does not establish that the Appellants participated in the occurrence does not hold good in respect of Appellant Arjuna (the Sarpanch). 15. P.ws. 1 and 3 have consistently stated both in the committing. Court as well as in the Sessions Court that Appellant Laxman Pradhan was one of the accused persons and he actively participated in the occurrence. P.w. 1 has specifically stated that accused Laxman Pradhan and another accused (since acquitted) assaulted him on his head with a Lathi and after being assaulted by them he swam to the middle of the tank P.w. 3 has corroborated this aspect of P.w. 1's evidence in meticulous details both in the committing Court as also in the Sessions Court Mr. Swamy has not been able to show anything from the depositions of p.ws. 1 and 3 that their evidence to the above effect is not of a reliable character. P.w. 2 has not specifically ascribed any act of assault to accused Laxman, but that is because of the fact that he (p.w. 2) was assaulted very early in the incident as a result of which he became unconscious and regained consciousness only in the hospital at Bhanjanagar. P.w. 2 has not specifically ascribed any act of assault to accused Laxman, but that is because of the fact that he (p.w. 2) was assaulted very early in the incident as a result of which he became unconscious and regained consciousness only in the hospital at Bhanjanagar. A bamboo Lathi (M.O. VIII) was seized from the house of Appellant Laxman as can be seen from the evidence of p.ws. 11 and 15 and the seizure list Ext. 7. That bamboo Lathi, as it appears from Exts. 31, 32 and 33, had blood stains on it. Mr. Swamy contends that no importance should be attached to the seizure of this bamboo Lathi as from Ext. 7 it appears that this Lathi was produced by accused Rama Pradhan, the brother of this Appellant. P.w. 15, the Investigating Officer, has stated in his deposition that accused Rama Pradhan led him to the house of Appellant Laxman where both the brothers showed him the bamboo Lathi (M.O. VIII) with blood stains on it and he seized the same as per Ext. 7. From the evidence of p.w. 15 and Ext. 7 it is not very clear as to which of the two brothers actually gave recovery of or produced the Lathi before p.w. 15. So the recovery of the Lathi does not directly go against accused Laxman, but its recovery from his house cannot completely be lost sight of. On the positive and consistent testimony of p.ws. 1 and 3 that Appellant Laxman actively participated in the occurrence in the manner stated above, the above comment of Mr. Swamy does not hold good in respect of this Appellant. 16. P.ws. 1, 3 and 4 to 7 have all stated about the presence of Appellant Kantha Pradhan at the place of occurrence and that he took active part in the occurrence. P.w. 1 has stated both in the Sessions Court as well as in the committing Court that Appellant Kantha Pradhan along with Appellant Laxman Pradhan dealt Lathi blows on his head. P.w. 3 has corroborated the evidence of p.w. 1 to the above effect in both the Courts. P.ws. 4 to 7, the four prosecution witnesses who were declared hostile, while admitting the presence of Appellant Kantha Pradhan at the place of occurrence, have, however, stated a different story about the manner of his association in the incident as stated above. P.w. 3 has corroborated the evidence of p.w. 1 to the above effect in both the Courts. P.ws. 4 to 7, the four prosecution witnesses who were declared hostile, while admitting the presence of Appellant Kantha Pradhan at the place of occurrence, have, however, stated a different story about the manner of his association in the incident as stated above. For reasons stated earlier their evidence about the manner in which the incident took place is not worthy of credence. However, from their evidence and from the evidence of p.ws. 1 and 3 stated above, there is absolutely no doubt that Appellant Kantha Pradhan was present at the place of occurrence and he took an active part in the incident. I have also no hesitation in holding on the evidence of p.ws. 1 and 3 that Appellant Kantha Pradhan while participating in the occurrence assaulted p.w. 1. Accordingly, Mr. Swamy's above-mentioned comment does not hold good in respect of Appellant Kantha Pradhan also. 17. On a perusal of the evidence on record I am, however, convinced that the above-mentioned comment of Mr. Swamy holds good in respect of Appellants Section Hadu Patra and Magata Pradhan. None of the p.ws. 1 to 7 has stated about the presence of these two persons at the place of occurrence. The learned Sessions Judge has committed an error of record by stating in his judgment that there is evidence to show that these two Appellants were present at the place of occurrence. The learned Standing Counsel appearing for the State has conceded that none of the prosecution witnesses has stated about the presence of these two Appellants at or near about the place of occurrence. The only piece of evidence on which Appellant Section Hadu Patra has been convicted is the seizure of a napkin (M.O. IV) from the house of this Appellant. The Chemical Examiner found blood stains on the said napkin. There is nothing on record to show that the said blood stains were of human origin. There is nothing incriminating about the Dhoti, M.O. III, Hawain, M.O. V, and a bamboo Lathi allegedly seized from his house. Merely on the seizure of the above-mentioned articles from the house of Appellant Section Hadu Patra it becomes extremely difficult for me to uphold his conviction u/s 304 Part (sic) Indian Penal Code. There is nothing incriminating about the Dhoti, M.O. III, Hawain, M.O. V, and a bamboo Lathi allegedly seized from his house. Merely on the seizure of the above-mentioned articles from the house of Appellant Section Hadu Patra it becomes extremely difficult for me to uphold his conviction u/s 304 Part (sic) Indian Penal Code. Accordingly he should be given the benefit of doubt and on that account he is liable to be acquitted. Mr. Swamy has contended and the learned Standing Counsel has conceded that there is nothing on record about the presence of accused Magata Pradhan at or near about the place of occurrence. P.ws. 1 to 7 have not stated anything against him to show his complicity in and/or association with the occurrence. The only evidence against him is that a bamboo Lathi (M.O. IX) was seized from his house by the police under seizure list Ext. 6, and the said Lathi on chemical examination was found to have blood stains on it. That the said blood stains were of human origin has not been established by the prosecution. There is also no, convincing evidence on record to show that the said Lathi belonged to this accused. Accordingly, the evidence on record does not at all establish that this Appellant in any manner participated in the occurrence and that he was present at or near about the place of occurrence. Accordingly he is also liable to be acquitted of his conviction u/s 304 Part-II, Indian Penal Code. 18. Mr. Swamy contends that even if it is held that Appellant Arjuna, Laxman and Kantha prarticipated in the occurrence they cannot be held guilty for having committed an offence u/s 304, Indian Penal Code as on the evidence on record it is not established against them that they in any manner assaulted the deceased so as to cause his death. In this connection Mr. Swamy contends that the Court below has rightly held that the accused persons had the right of private defence of property as the tank in question was in their possession by the time of occurrence, and that being so only the person who exceeded the right of private defence can be convicted for the offence so committed by him and others like the Appellants cannot be held constructively guilty for the offence committed by others. In this connection Mr. In this connection Mr. Swamy has cited the decision of the Supreme Court reported in State of Bihar Vs. Nathu Pandey and Others, wherein it has been held that to attract the provisions of Section 149, Indian Penal Code the prosecution must establish that there was unlawful assembly and the crime was committed in prosecution of its common object and that an assembly whose common object was to defend property by use of force within the limits prescribed by law cannot be designated' as unlawful assembly. Their Lordships observe further that: Section 141 must be read with Sections 96 to 106 dealing with the right of private defence. u/s 96 nothing is an offence which is done in the exercise of right of private defence. The assertion of right of private defence within the limits prescribed by law cannot fall within the expression to enforce any right or supposed right in the fourth clause of Section 141. It is also observed: The assembly could not be designated as an un-lawful assembly if its object was to defend property by the use of force within the limits prescribed by law. (The italics are mine) Having laid down the aforesaid propositions of law their Lordships on an appreciation of the evidence on record in that case arrived at the finding of fact that it was not possible to say that the common object of the accused persons in that case was to kill the two deceased persons. Their Lordships on the evidence found that "those who killed them exceeded the right of private defence and may be individually held responsible for the murders. But the murders were not committed in prosecution of the common object of the assembly or were not such as the members of the assembly knew to be likely to be committed in prosecution of the common object." On the above findings of fact their Lordships ultimately held on the evidence on record in that case that the accused Respondents could not be made constructively responsible for the murders u/s 302 read with Section 149, Indian Penal Code. So the ultimate decision in that case was arrived at on the peculiar facts and the findings thereon in that case. But the facts of the present case are entirely different. On the consistent and reliable case made out by p.ws. So the ultimate decision in that case was arrived at on the peculiar facts and the findings thereon in that case. But the facts of the present case are entirely different. On the consistent and reliable case made out by p.ws. 1, 2 and 3 it is evident that the above-mentioned three Appellants (whose participation in the occurrence has been believed as stated above) and some others with them surrounded the deceased, and with Lathis and other weapons in their hands mercilessly assaulted him and some of his party men on the direction and instigation of Appellant Arjuna that the deceased and his party men' should all be assaulted and/or wiped out. Appellant Arjuna also directed his associates to throw stones at p.w. 1 and other members of the prosecution party, and his associates acted accordingly. There is no dispute about the fact that the deceased died at the spot on receiving multiple injuries on his person in course of the said occurrence. P.w. 1 has stated that Appellant Arjuna assaulted the deceased with a Bhusa. There is of course no evidence as to how and in what exact manner Appellants Laxman and Kantha assaulted the deceased, but on the evidence on record it is established beyond reasonable doubt that these three Appellants actively participated along with others in the occurrence, and in course of that occurrence the deceased was assaulted to death. 19. The Court below has arrived at the finding that the accused persons were in possession of the tank at the relevant time and so they had the right of private defence of property to defend their possession of the tank. The learned Standing Counsel made an attempt to dislodge the said finding. But on a perusal of the evidence on record in this respect and its discussion in the impugned judgment I am inclined to agree with the said finding of the Court below. 20. As the accused persons had the right of private defence of property they were justified in defending the same against any aggressive acts of the prosecution party men; of course so long they defended the same by acting within, the limits prescribed under the law. As soon as they exceeded the said limit, the protection of exoneration given to them under Sections 96 to 106. As soon as they exceeded the said limit, the protection of exoneration given to them under Sections 96 to 106. Indian Penal Code was not available to them, and they would be held guilty for the excess committed by them. In the aforesaid decision reported in State of Bihar Vs. Nathu Pandey and Others, their Lordships, while observing as stated above, have repeatedly laid stress on the words "within the limits prescribed by law" italicised by me. That clearly indicates, and it is well known, that so long the force used is "within the limits prescribed by law" no offence is committed, and the provisions of Section 141 and consequently that of Section 149, Indian Penal Code would not apply to such a case. But when the force applied for exercising the tight of private defence is in excess of what is prescribed by law, an offence clearly is committed and accordingly all those who apply such excess force would be held liable for the same. Apart from them, their associates in the occurrence also would be constructively held guilty for the said offence, of course if the principles of constructive liability are applicable to them. 21. In the present case, Appellants Arjuna, Laxman and Kantha and their associates, as stated above, surrounded the deceased and when he was so surrounded, all of them or some of them, mercilessly assaulted him as a result of which the deceased,sustained the several serious injuries on his person and died at the spot. The nature and the number of injuries found on the person of the deceased clearly indicate that the assailants knew that the said injuries were likely to cause the, death of the deceased. There is also ample material on record to indicate that these Appellants and/or their associates intentionally caused the said bodily injuries and those bodily injuries were sufficient in the ordinary course of nature to cause death. There is also no doubt that these Appellants consciously and actively participated in that part of the occurrence in which the deceased was assaulted in the manner stated above. The extent of force applied for the purpose of causing the said serious injuries on the person of the deceased, which caused his death at the spot, was certainly not required for the purpose of defending the right of the accused persons over the tank. The extent of force applied for the purpose of causing the said serious injuries on the person of the deceased, which caused his death at the spot, was certainly not required for the purpose of defending the right of the accused persons over the tank. Accordingly these Appellants and their associates exceeded the limits prescribed under the law and so they would be held guilty for the excess committed by them. On the above considerations and the facts and circumstances of this case, the above-named three Appellants can be, and have been rightly held constructively guilty under the provisions of Section 149. Indian Penal Code for an offence u/s 304 Part-II, Indian Penal Code. The above-mentioned contention of Mr. Swamy does not therefore hold good 10 this case. 22. On the above discussions and considerations I uphold the conviction of Appellants Arjuna Pradhan, Laxman Pradhan and Kantha Pradhan u/s 304 Part-II read with Section 149, Indian Penal Code and the sentence passed against each of them thereunder. For reasons stated above, the conviction of Appellants Section Hadu Patra and Magata Pradhan for the aforesaid offence and the sentence passed against each of them thereunder are set aside and they are acquitting of the same. 23. The appeal accordingly is allowed in respect of Appellants Section Hadu Patra and Magata Pradhan, and is dismissed in respect of Appellants Arjuna Pradhan, Laxman Pradhan and Kantha Pradhan. The last three Appellants must forthwith surrender to their bail bonds to undergo the sentence imposed on them. The bail bonds of the acquitted Appellants Section Hadu Patra and Magata Pradhan are hereby annulled. Final Result : Allowed