JUDGMENT 1. - Both these appeals arise out of the judgement of the Additional Sessions Judge, Gangapur City dated 7th May, 1973 whereby accused Ramola has been convicted for offences under section 302, 307 and 148 Indian Penal Code and the other two accused viz. Bhima and Onakr have been convicted for the said offences with the help of section 149 Indian Penal Code. However, the appellant Onkar was convicted for an offence under section 307 simpliciter. Under section 302 Indian Penal Code all of them have been sentence to imprisonment for life, while for other offences, the accused appellants were awarded various terms of imprisonment and fines as mentioned in the judgement. 2. Firstly two persons were prosecuted for offences under section 302, 148, 447, 325, 323 and 307 read with section 149 Indian Penal Code and also for an offence under section 25 of the Indian Arms Act, 1959. After the trial, the learned trial Judge found that it was a case of over implication and the prosecution had involved various innocent persons and, therefore, thirty nine persons were acquitted by him. The learned trial Judge however, found that the deceased Ram Sahai died of the gun shot injuries and it was a case consistent from the very beginning that the the accused Ramota had fired his gun towards Ramsahai hitting him on his vital parts and causing his instantaneous death. As regards the other two persons, who got injuries during scuffle namely, Jagniya and Poonia, the learned Judge fastened the guilt on the other two accused person namely, Bhima and Onkar. 3. It appears that there was enmity between the accused party and the complainant party over a dispute of field comprising of khasra No. 97. On the fateful day, the accused party armed with guns and other deadly weapons went to the field where the complainant party was busy in harvesting operations and made enquiries as to where were they going, and thereupon, it is said that the accused party opened fire indiscriminately towards the complainant party injuring three persons namely, deceased Ramsahai, Jaganiya and Poonia. A report, exhibit P.1. was lodged at the Police Station, Gadhmora by Ranglal PW.1. In this report, the names of 42 persons were mentioned by the first informant. The dead body of Ramsahai was subjected to post mortem examination by Dr. A report, exhibit P.1. was lodged at the Police Station, Gadhmora by Ranglal PW.1. In this report, the names of 42 persons were mentioned by the first informant. The dead body of Ramsahai was subjected to post mortem examination by Dr. S.L. Agarwal CW.2 and he found following external injuries on the body of the deceased Ramsahai:- 1. One circular lacerated wound 1/4" x 1/4" in size with blackish charring of skin around it in an area of ⅓" x 1/2" going deep in the orbit situated 1/2" lateral to left eye outer boarder. 2. One oval lacerated wound 1/2" x 1/4" oblique on left middle ⅓rd going deep thigh the roof of orbit surrounding skin slight blackish. 3. Lacerated wound 1/2" x 1/2" irregular in left parietal region scalp 4" above the upper boarder left ear going deep into brain, blood coming out of it. All these injuries according to the doctor, were caused by the gun shot firing. Two pellets were taken out. In the opinion of the doctor, the injuries sustained by the deceased were cumulatively and individually sufficient in the ordinary course of nature to cause death. 4. The injured Jaganiya sustained two injuries namely, (1) lacerated wound 11/2" x ⅕" x ⅓" vertical on the mid-line of the skull, and (2) swelling on left scapula region 2" x 2". The injuries:- 1. Lacerated wound at the top of Rt. thump nail, separating from skin ⅓" x 1/10" with swelling and pain. 2. Contusion 1" x 1" on left hand dorsam with swelling 4" x 3". 3. Lacerated wound circular ⅓" x ⅓" with serious discharge on left arm lower ⅓rd posteriorly and depth is 1" 4. Lacerated wound 11/2" x 1" with skin flab absent on left arm middle ⅓rd posteriorly. 5. Abraison blackish on left shoulder posteriorly one is 3/4" x ⅕" oval in one line with swelling of whole of left shoulder and upper arm F.B. is felt under the skin on left shoulder laterally. 6. Swelling Rt. arm lower ⅓ laterally 2" x 2". 5. The accused denied this charge, but did not produce any independent evidence in support of their defence. The main question that came up for decision before the trial court was whether the accused party was an aggressor and went to the place of occurrence to oust the complainant from their lawful possession of the land. 5. The accused denied this charge, but did not produce any independent evidence in support of their defence. The main question that came up for decision before the trial court was whether the accused party was an aggressor and went to the place of occurrence to oust the complainant from their lawful possession of the land. The learned trial Judge, after taking into consideration and carefully scrutinising the evidence on the record, came to the conclusion that the prosecution could not establish that the complainant party was in actual physical possession of the disputed land. On the contrary, after taking into consideration the documentary evidence relied upon by the accused party, which consists mainly of documents evidencing the sale of the land in dispute, the learned Judge found it very difficult to convict the accused party for an offence under section 447 Indian Penal Code as the prosecution had miserably failed to establish the possession of the complainant party on the disputed land. While doing so, learned Judge observed:- "Under the circumstances the prosecution has not been able to prove, by any cogent evidence, that the complainant party was in actual possession over the disputed land, particularly in view of the defence evidence produced in this case which I have already discussed above. None of the accused persons, therefore, can be convicted under section 447 Indian Penal Code." 6. In view of the above finding, the second question that came up for the determination of the trial court was whether the force used by the accused party resulting in the death of Ramsahai was used by the accused party in the light of their private defence or not. The learned Judge, while dealing with this aspect of the question observed as follows:- "It may, however, can be made clear that even in the absence of the proof of actual physical possession over the disputed land, it cannot be held that the accused persons were protected in the light of their private defence of property. Even if it is presumed for a moment that these accused persons had the right of private defence for protecting their crop though there is no evidence on record that it was cultivated by them even then it can well be said that they had far exceeded that right by using guns, killing one person and injuring other." 7. Even if it is presumed for a moment that these accused persons had the right of private defence for protecting their crop though there is no evidence on record that it was cultivated by them even then it can well be said that they had far exceeded that right by using guns, killing one person and injuring other." 7. Thought he finding of the trial Judge is not in a clear out language, still the trial Judge was labouring under an impression that the force was used by the accused party to protect their possession on the disputed land. 8. It is contended by learned Public Prosecutor that unless it was established beyond all reasonable doubt that the accused party was the rightful owner to keep the possession over the disputed land, no plea for right of private defence can be taken on behalf of the accused party. He further contended that the sale deeds produced on the record no doubt, show sale in favour of Devi Singh etc., but the three accused persons who have been convicted by the trial court could not claim their physical possession over the disputed land, and therefore, they cannot come out with a plea of self defence. We very much doubt that the plea advanced by learned Public Prosecutor can stand on its own legs. A person having physical possession over the immovable property has a right to hold that possession against the entire world except the rightful claimant thereof and, therefore, if anybody tries to oust him, he can use force to retain his possession against every one except the real owner. When the trial court has not accepted the theory of the prosecution that the complainant party was in possession of the property, the plea of self defence can very well be spelled out from the circumstances of this case, and in this view of the matter, the thinking of the trial court that the force was used by the accused party in their right of self defence of property cannot altogether be ruled out. It is true that use of guns by the accused party cannot be justified, because no force was used against the accused party as they did not receive any injuries at the hands of the complainant party as such the observation of the trial court that the right of private defence,if exercised by them and, therefore, they cannot escape the consequences of using the force indiscriminately. 9. The State has not filed any appeal against the acquittal of 39 persons. We have, therefore, to see the case only against three persons who come in appeal against their order of conviction. 10. It is very unfortunate that in this case the witnesses have not acquitted themselves like honest persons and, therefore, the falsehood has been mingled in such a manner that it became very difficult for the court to extract truth from the falsehood. However, it is in this light that we have to examine the case of each individual appellant. 11. The case of Ramota stands on a different footing because from the very beginning the case against him was that when the F.I.R. was lodged by Ranglal PW.1 it was stated that deceased Ramsahai sustained gun-shot injuries when the gun was fired by Ramota at him. It is contended that Ramsahai sustained three gun shot injuries and, therefore, according to Mr. Chatterjee, it cannot be said as to which one of the three injuries was responsible for causing the death. Mr. Chatterjee's argument is that since it is a case of exceeding the right of private defence, each individual accused is responsible for his own overt-act and he cannot be punished with the aid of section 149 Indian Penal Code. In the opinion of the doctor, the injuries sustained by Ramsahai were cumulatively and individually sufficient for causing the death and, therefore, even if it cannot be discerned as to which of the three injuries was caused by Ramota, it can safely be said that if other two gun shot injuries were not sustained by the Ramota. In this view of the matter, we cannot take a different view of the finding that Ramota was responsible for causing the death of Ramsahai. 12. It is vehemently contended by Mr. Chatterjee that all the witnesses who are not the witnesses of truth cannot prove the guilt of Ramota unless their testimony is supported by a corroboration from an independent source. 12. It is vehemently contended by Mr. Chatterjee that all the witnesses who are not the witnesses of truth cannot prove the guilt of Ramota unless their testimony is supported by a corroboration from an independent source. Ranglal PW.1 is the author of the F.I.R. He had assigned the overt-act of causing gun shot fire towards Ramsahai to Ramota. In his statement before the Court he has struck to his version that Ramota was responsible for causing gun shot injuries to Ramsahai. The medical evidence also says that Ramsahai had sustained injuries from the gun shot and, therefore, no doubt is left in our mind that Ramota was responsible for causing at least one gun shot injury on the person of Ramsahai. Other witnesses who had tried to involve 42 persons no doubt assigned the overt-act of opening a fire towards Ramsahai to Ramota alias Ramhet, but their testimony cannot be pressed into service for corroboration as they themselves are not the witnesses of truth and they can be characterised as partly reliable and partly unreliable. But the statement of Ranglal PW.1 finds corroboration from the F.I.R. as well as from the medical evidence and, therefore, we endorse the finding of the court below that Ramota was the author of gun shot injuries on the person of Ramsahai. 13. The next question that arises for our determination is that in these circumstances what offence has been committed by Ramota. As observed above, the force was used by the accused party in the right of their private defence but they far exceeded it & therefore, in these circumstances, the offence for which Ramhet can be convicted is under section 304 Part II Indian Penal Code. the appeal of Ramota is, therefore, partly allowed. He is acquitted of the charge under section 302 P.C. and instead he is convicted under section 304 Part II Indian Penal Code. For other offences, for which he has been convicted, the prosecution could not establish by cogent evidence the case against him and, therefore, he is acquitted of all other charges. Ramota is awarded six years rigorous imprisonment for an offence under section 304 Part II Indian Penal Code. The sentences awarded for other offences are, however, set aside. D.B. Criminal Appeal No. 324 of 1973 is accordingly disposed of. 14. Ramota is awarded six years rigorous imprisonment for an offence under section 304 Part II Indian Penal Code. The sentences awarded for other offences are, however, set aside. D.B. Criminal Appeal No. 324 of 1973 is accordingly disposed of. 14. As regards the appeal of Bhima and Onkar, the case the of the prosecution was that they also caused gun shot injuries to Jaganiya and Poonia. But Jaganiya and Paoonia did not receive any such injuries from the gun shot. It is true that Jaganiya and Poonia sustained minor injuries but from the evidence that has been led by the prosecution it is difficult to say that all these injuries were caused by Bhima and Onkar. The presence of Bhima & Onkar at the spot of occurrence is no doubt mentioned by all the witnesses produced on behalf of the prosecution, but mere presence cannot give a cause to fasten the guilt on these two accused persons. As observed above, it is a case of exceeding the right of private defence and therefore, unless it is proved by the prosecution, that a particular injury was caused by a particular accused he cannot be bound down for the acts of others. For these reasons, we find it difficult to sustain the conviction of 'Bhima' and 'Onkar'. 15. The result is that their appeal is allowed and they are acquitted of all the charges for which they have been convicted by the trial court and the sentences awarded to them are set aside. Both Bhima and Onkar are on bail. They need not surrender tot heir bail bonds. the appeal is accordingly allowed. *******