JUDGMENT : P.K. Mohanti, J. - The three Appellants along with seven others stood charged u/s 148, Indian Penal Code for having formed themselves into an unlawful assembly with the common object of causing the death of one Sukram Mahanta and also u/s 302/149, Indian Penal Code for having caused the death of the said Sukram Mahanta in prosecution of their common object. Appellant No. 1 Laxminarayan Hansda was further charged u/s 323, Indian Penal Code for voluntarily causing hurt to P.W. 5 Maheswar Mahanta. After trial, Appellant No. 2 Simal alias Sayal Hansda and Appellant No. 3 Sagram alias Sagram Hansda were convicted u/s 302 read with Section 34, Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellant No. 1 Laxminarayan Hansda was convicted u/s 323, Indian Penal Code and sentenced to undergo rigorous imprisonment for one month. Other accused persons were acquitted of the charges framed against them. 2. Prosecution case was that on 17-11-1976 at about 1.30 p.m. while P.W. 5 Maheswar Mahanta and his brother including Sukram Mahanta (the deceased) were cutting paddy from a piece of land in their cultivating possession and stacking the same on the land of one Mohan Singh all the accused persons being armed with deadly weapons came in a body and started loading the stacked paddy sheaves in a bullock cart brought by them for the purpose. P.W. 5 rushed to village Ragdha and called the Punch members. While returning, he found from a distance that the accused persons were yoking their bullocks for driving the bullock cart. He went running, stood in front of the cart and asked the accused persons to wait till the arrival of the Punch members. At this, Appellant No. 1 Laxminarayan got annoyed and assaulted P.W. 5 on his head by means of a lathi as a result of which he fell down. Immediately after the fall, he stood up, snatched away the lathi from the hand of Appellant No. 1 and dealt a blow on his head as a result of which he fell down. Appellants 2 and 3 assaulted the deceased on his head by means of lathis as a result of which he fell down with bleeding injuries on his head. Budhuram Maharita, who is a brother of P.W. 5, assaulted on the head of Appellant No. 3 Sagram with a Bahungi. Appellants 2 and 3 assaulted the deceased on his head by means of lathis as a result of which he fell down with bleeding injuries on his head. Budhuram Maharita, who is a brother of P.W. 5, assaulted on the head of Appellant No. 3 Sagram with a Bahungi. In the mean-time, the Punch members arrived at the spot and one of them snatched away the weapons from the Appellants, and made arrangement to send P.W. 5 and the deceased to the Primary Health Centre for treatment. The weapons, the paddy sheaves and the bullock cart were kept in the custody of one of the Punch members. Durjyodhan Mahanta who is one of the brothers of P.W. 5 went to Betnoti Police Station and lodged F.I.R. (Ext. 8) and investigation was taken up. The Officer-in-charge of the Police Station visited the Primary Health Centre and found the deceased and P.W. 5 lying injured. He issued requisitions for their medical examination and then visited the spot. He found injuries on Appellants 1 and 3 and sent them for medical examination. The deceased was removed to Baripada Hospital where he died. The Investigation Officer went to Baripada Hospital, held inquest over the dead body and arranged for its post mortem examination, Appellants No. 2 and 3 were arrested on 26-11-1976 and Appellant No. 1 on 1-12-1976. After due investigation, charge-sheet was submitted against all the accused persons. 3. The Appellants denied the charge and pleaded innocence. Appellant No. 1 stated that he was first assaulted by P.W. 5 on his head and Appellant Nos. 2 and 3 were assaulted by Budhia Mahanta. He contended that he was in cultivating possession of the land in question having purchased the same from P.W. 5 and he had grown paddy on the same during the year of occurrence. According to him, the deceased, P.W. 5 and their brothers along with three labourers, cut paddy from the land and stocked the paddy sheaves on the land of Mohan Singh. He went with a cart to the land of Mohan Singh with his son Simal (Appellant No. 2). While they were loading paddy sheaves in the cart, P.W. 5 went and stood in front of the cart. When he protested - there was glomal. He went with a cart to the land of Mohan Singh with his son Simal (Appellant No. 2). While they were loading paddy sheaves in the cart, P.W. 5 went and stood in front of the cart. When he protested - there was glomal. P.W. 5 assaulted him on his head with a Bahungi as a result of which he fell down and there was bleeding from his nose. Then P.W. 5 and the deceased raised Bahungis to commit further assault on him. At this, Appellants 2 and 3 brandished their lathis. Appellant Nos. 2 and 3 stated that they were assaulted on their beads with a Bahungi by Budhia Mahanta. 4. At the trial prosecution examined 13 witnesses of whom P.Ws. 1, 3, 5. 8 and 11 were said to be eye-witnesses to the occurrence. P.Ws. 9 and 12 were examined to move possession of P.W. 5 and his brothers over the land in question. Three defence witnesses were examined by the accused persons. 5. The trial Court disbelieved the evidence of P.W. 3 but relying on the evidence of P.Ws. 1, 5, 8 and 11 came to hold that P.W. 5 was in possession of the land, that he was assaulted by Appellant No. 1 and that the deceased was assaulted by Appellant Nos. 2 and 3. Accordingly, it held the Appellant guilty and inflicted the sentences as indicated above. 6. That there was an occurrence of assault in which members of both parties sustained injuries is beyond doubt. The doctor P.W. 6, who examined the injured persons on 17-11-1976 found as follows: P.W. 1 Maheswar Mahanta: He had one bleeding lacerated injury 1" x 1" x skin deep on the right side of the vertex and another bleeding lacerated injury 1/2" x 1/4" x scalp deep on the left side of the vertex. Both the injuries were simple in nature and might have been caused by corning in contact with some hard and blunt weapon like a lathi. Age of the injury by the time of the medical examination was within six hours. Sukram Mahanta (the deceased): He had one bleeding lacerated injury 1" x 1" x scalp deep on the tight side of the vertex and another bleeding lacerated injury 1" x 1" x bone deep on the left side of the vertex. Age of the injury by the time of the medical examination was within six hours. Sukram Mahanta (the deceased): He had one bleeding lacerated injury 1" x 1" x scalp deep on the tight side of the vertex and another bleeding lacerated injury 1" x 1" x bone deep on the left side of the vertex. Both the injuries were grievous in nature and might have been caused by a hard and blunt weapon like a lathi. Age of the injuries by the time of the medical examination was within six hours. He was semi-unconscious and was in a critical state. He did not respond to call. Injury No. 2 was fatal. Appellant No. 1, Laxminarayan Hansda: He had one bruise 2" x 1" on the head towards the right side. It might have been caused by coming in contact with some hard and blunt substance like a lathi. The injury was simple in nature. Age of the injury was within six hours. There was also bleeding from the nose. Appellant No. 3, Sagram Hansda: He had one lacerated injury 3" x 1/4" x scalp deep on his head over the vertex. The injury might have been caused by hard and blunt substance like a lathi. It was simple in nature. Age of the injury was within six hours. 7. The doctor P.W. 10, who performed the post-mortem examination over the dead body of the deceased Sukram Mahanta found the following injuries: (1) One stitched wound 1 1/2" long on the left parietal scalp. (2) One stitched wound 1" long en the right parietal scalp. Internal examination revealed that the whole of the scalp was congested with blood. The right partial and temporal bones were fractured into three pieces. The dura matter and the other membranes were lacerated. The whole of the brain was congested. There was a big haematoma underneath the scalp. There was also multiple haematoma in the substance of the brain. In the doctor's opinion, the injuries were ante-mortem in nature and could be caused by a hard and blunt substance like the lathi M.O. II and the cause of death was shock and haemorrhage as a result of the cumulative effect of both the injuries of which injury No. 2 was fatal. 8. Now the important question that arises for consideration is which party was responsible for the occurrence. 8. Now the important question that arises for consideration is which party was responsible for the occurrence. Once it is held that the Appellants were in possession of the land in question and they had raised the paddy crops during the year of occurrence they would be entitled to the right of private defence of property. According to the trial Court, the Appellants were never in possession of the land in question. The case put for ward by the prosecution was that the deceased and his brothers were in possession of the land and they had raised the paddy crops during the year of occurrence. In support of this contention, prosecution relied on the evidence of P.Ws. 1, 5, 9 and 12. The Appellants on the other hand contended that they were in possession of the land and they had raised the paddy crops and in support of their contention they examined D.Ws. 1 to 3. Neither party produced any documentary evidence in proof of its possession. Admittedly, the deceased and his brother had purchased the land in question from one San Bajun Majhi in 1963 by the registered sale deed (Ext. 1). It was also admitted that in 1967 the very same land was sold by P.W. 5 alone to Appellant No. 1 Laxminarayan by a registered sale deed the certified copy of which has been marked as M.O. IX. The evidence of P.W. 5 was that since he had alone sold the land in favour of Appellant No. 1 his brothers filed objection before the settlement authorities challenging the sale. So he refunded the consideration of Rs. 980/- to Appellant No. 1 about two months after the sale and the Appellant No. 1 in his turn made an endorsement on the back of the sale deed evidencing the refund of consideration and returned the sale deed to him. According to him possession had not been delivered to Appellant. No. 1 after execution of the sale deed and he continued to possess the same after refund of the consideration. He also stated that in 1972 Appellant No. 1 told him that he would refund the consideration money and possess the land. So he (P.W. 5) approached Puma Chandra Patnaik the Officer-in-charge of the Petnoti Police Station and produced before him the sale deed containing the endorsement regarding refund of consideration. He also stated that in 1972 Appellant No. 1 told him that he would refund the consideration money and possess the land. So he (P.W. 5) approached Puma Chandra Patnaik the Officer-in-charge of the Petnoti Police Station and produced before him the sale deed containing the endorsement regarding refund of consideration. But the said Purna Chandra Patnaik neither submitted any case against Appellant No. 1 nor returned the sale deed to him. He, further asserted that he was all along in possession of the land till the date of occurrence. No settlement record has been produced to show that the land was recorded in the name of P.W. 5 and his brother. No effort was also made to call for the relevant documents from the office of the Settlement Officer to prove the objections filed by the brothers of P.W. 5 and the decision of the Settlement Officer thereon. According to P.W. 5, it is in the presence of the Settlement Officer that the consideration of Rs. 980/- was refunded to Appellant No 1 and the endorsement regarding the same was made on the back of the sale deed. It was also stated by P.W. 5 that the Settlement Officer had attested the endorsement made by the Appellant No. 1 on the sale deed. But the Settlement Officer was not summoned as a witness for the prosecution. The statement of P.W. 5 that the sale deed containing the endorsement about refund of consideration was produced before the Officer-in-charge of Betnoti P.S. does not find corroboration from any source. Neither Purna Chandra Patnaik the then Officer-in-charge of Betnoti Police Station has been examined as a witness nor any record of the Police Station has been produced to corroborate the statement of P.W. 5. He stated that he had paid rent for the land on four occasions between 1963 and 1972 and that he had also handed over four rent receipts to the said Puma Chandra Patnaik who did not return the same. No effort was, however, made to call for the counterfoils of the rent receipts from the local Tahasildar. P.W. 5 admitted that he has not paid rent for the land since 1972. He stated that he did not remember the amount of rent payable for the land. No effort was, however, made to call for the counterfoils of the rent receipts from the local Tahasildar. P.W. 5 admitted that he has not paid rent for the land since 1972. He stated that he did not remember the amount of rent payable for the land. In this state of evidence, it is difficult to place any reliance on his statements to the effect that he had refunded the consideration money, that Appellant No. 1 had returned the sale deed to him with an endorsement regarding refund of the consideration and that he was all along in possession of the land. If actually the consideration money had been refunded and Appellant No. 1 had relinquished his right to the land it passes one s comprehension as to why no deed of re-conveyance or relinquishment was executed. P.W. 5 stated that in the month of Jyestha of the year 1976 he had ploughed the land and sowed paddy thereon but four or five days thereafter Appellant No. 1 reploughed one of the kiaris and sowed paddy thereon. He admitted in cross-examination that neither he nor his brothers started any case against Appellant No. 1 when he reploughed the land and sowed paddy during the year of occurrence. It is difficult to believe that Appellant No. 1 all of a sudden reploughed the land and sowed paddy during the year 1976 if actually he had got refund of the consideration and had returned the sale deed and relinquished his right to the land as long back as in 1967. It is significant to note in this connection that P.W. 5 admitted in his cross-examination that Mangala Majhi, the brother of his vendor San Bajun Majhi had sold the very same land to Appellant No. 1. Thus, it appears that Appellant No. 1 had obtained separate sale deeds in respect of the very same land from P.W. 5 Maheswar Mahanta and from Mangala Majhi. Thus, there are intrinsic circumstances to show that Appellant No. 1 was in possession of the land by virtue of his purchase and he had not relinquished his right to the land at any time. The statement of P.W. 5 about his possession over the land was sought to be supported by the evidence of P.Ws. 1, 9 and 12. Thus, there are intrinsic circumstances to show that Appellant No. 1 was in possession of the land by virtue of his purchase and he had not relinquished his right to the land at any time. The statement of P.W. 5 about his possession over the land was sought to be supported by the evidence of P.Ws. 1, 9 and 12. P.W. 1 stated that he owns land at a visible distance from the land in question and that P.W. 5 along with his brothers were possessing the land in question after purchasing the same from San Bajun Majhi. He could not say if P.W. 5 had sold the land to Appellant No. 1. During his examination by the Police u/s 161, Code of Criminal Procedure he did not say that P.W. 5 was in possession of the land. P.Ws. 9 and 12, who claimed to be neighbouring tenants differently described the boundary of the land in question. The discrepancies would appear from the following chart: P.W. 9 P.W. 12 North - Land of Chapa Majhi Land of Ramda Singh South - Land of Kamal Singh Land of Ashadu Mahanta East - Land of Ramda Singh Land of Karmi West - Land of Kamal Singh Land of Laxminarayan Majhi Though P.W. 9 claimed to be an adjourning owner of the land in question he could not give boundary of his own land. He could not give the name of the chaka in which the land in question is situate. He denied any know ledge a bout the sale of land by P.W. 5 in favour of Appellant No. 1. His evidence shows that he had dispute with Appellant No. 1 regarding possession of a piece of land and a proceeding u/s 145, Code of Criminal Procedure had been started by the Police. He admitted that P.W. 5 Maheswar Mahanta was examined as a witness oil his side in the proceeding u/s 145, Code of Criminal Procedure. His evidence on the whole does not inspire confidence. P.W. 12 tried to support the statements of P.W. 5 regarding refund of consideration to Appellant No. 1 and return of the sale deed by him. According to him, the consideration of Rs. 980/- was refunded by P.W. 5 and the Appellant No. 1 returned the sale deed with an endorsement evidencing the refund of consideration. He claimed to have witnessed these transactions. According to him, the consideration of Rs. 980/- was refunded by P.W. 5 and the Appellant No. 1 returned the sale deed with an endorsement evidencing the refund of consideration. He claimed to have witnessed these transactions. He stated that the amount of Rs. 980/- was paid to him by P.W. 5 and he handed over the same to Appellant No. 1. His statement, before the Police was that he handed over the amount to Mohan Singh, who paid the same to Appellant No. 1. He admitted that he has purchased a piece of land from P.W. 5. He could not give the name of the chaka in which the land in question is situate. He did not disclose before the Police that he owns land near the land in question and that P.W. 5 was in possession of the same. According to him P.W. 1 Rupei was present when the consideration amount was refunded and the sale deed was returned. But P.W. 1 is completely silent about any such transaction. In view of our above discussion, it is not possible to place any reliance on the evidence of P.W. 12. 9. The Appellants examined three witnesses to prove their possession over the land. These witnesses stated that Appellant No. 1 was in peaceful possession of the land for about 10 years and that he had done all the agricultural operations on the land during the year of occurrence. No doubt D.Ws. 1 and 2 are relations of the Appellants but D.W. 3 is a quite independent and disinterested witness. He is an adjoining owner of the land in question and his evidence on the question of possession has not been shattered in any manner. His evidence was discarded by the trial Court solely on the ground that he was not examined by the Police during investigation of the case. In our opinion, his evidence cannot be brushed aside merely on that ground. Appellant No. 1 in his statement u/s 313, Code of Criminal Procedure has stated in unmistakable terms that he was all along in actual possession of the land having purchased the same from P.W. 5 and that he had grown paddy on the land during the year of occurrence. His statement is fully corroborated the evidence of D.W. 2. He denied the story of refund of consideration and return of the sale deed. 10. His statement is fully corroborated the evidence of D.W. 2. He denied the story of refund of consideration and return of the sale deed. 10. Considering the oral evidence on either side along with the statement of Appellant No. 1 and the circumstances and the probabilities of the case, we are inclined to hold that Appellant No. 1 was in possession of the land and he had raised the paddy crops during the year of occurrence. The prosecution party being armed with lathis and bahungis trespassed on the land on the date of occurrence and attempted to commit theft of the paddy crops. The Appellants, therefore, would undoubtedly have a right to defend their possession and property in exercise of their right of private defence. 11. The evidence of the eye-witnesses P.Ws. 1, 5, 8 and 11 was that when Appellant No. 1, his companions and his son Simal (Appellant No. 2) loaded the paddy sheaves in the cart P.W. 5 and the deceased stood in front of the cart and did not allow it to move. At this, Appellant No. 1 assaulted P.W. 5 on the head as a result of which he fell down. Then P.W. 5 stood up sand matched away the lathi from P.W. 1 and dealt a lathi blow with it on his head as a result of which he fell down with bleeding injury. Then Appellant No. 2 Simal dealt a lathi blow on the head of the deceased as a result of which he fell down. When the deceased wanted to get up Appellant No. 3 Sagram dealt two lathi blows on his head. Then Budhiram Mahanta, the brother of P.W. 5 dealt a blow on the head of Appellant No. 3 Sagtam with a Bahungi as a result of which he fell down. 12. Appellant No. 1 has stated that he was first assaulted on his head with a lathi by P.W. 5. The doctor has opined that the injury on the head of Appellant No. 1 could be the result of lathi blow as has been pleaded by the defence. Appellant No. 3 stated that he was assaulted with a Bahungi by Budhiram who is the brother of P.W. 5. The doctor found a lacerated wound on the head of Appellant No. 3. Appellant No. 3 stated that he was assaulted with a Bahungi by Budhiram who is the brother of P.W. 5. The doctor found a lacerated wound on the head of Appellant No. 3. We are disinclined to accept the prosecution version that the injuries on these two Appellants were caused after the infliction of injuries on P.W. 5. The probabilities are more in favour of the Appellants being assaulted first. The infliction of injuries on the head of Appellant Nos. 1 and 3 gave them the right of private defence of person. In such a situation, as observed by the Supreme Court a person cannot modulate his defence step by step and the blows which he inflicts are not to be weighed in golden scales. The Appellants could clearly apprehend an assault likely to cause death or grievous hurt and thus were within their right to inflict fatal injuries on the deceased. It could not be said that there was time for the Appellants to have recourse to the protection of public authorities within the meaning of Section 99, Indian Penal Code. In our opinion, the Appellants inflicted the injuries on the deceased and P.W. 5 in exercise of right of private defence of person and property and he had not exceeded that right. Their act being protected, no offence has been brought home against them and the convictions cannot be sustained. 13. We would, therefore, allow the appeal and acquit all the Appellants of the charges levelled against them. We direct their release forthwith. B.K. Behera, J. 14. I agree. Final Result : Allowed