J. P. DESAI, J. ( 1 ) THESE six appeals four filed by the convicted accused and two filed by the State of Gujarat arise out of the judgment of the learned Sessions Judge Banaskantha at Palanpur in Sessions Case No. 65 of 1982. They are heard together and are being disposed of by this common judgment. ( 2 ) THE facts leading to the trial of Dahyabhai Madhabhai and eight others before the learned Sessions Judge Banaskantha at Palanpur in Sessions Case No. 65 of 1982 for several offences punishable under sections 147 148 302 read with section 149/34 307 read with section 149/34 and 323 read with section 149/34 I. P. C. may be briefly stated as under. ( 3 ) THERE is one field bearing S. No. 94 situated in the sim of village Ranpur Vachla Vas Taluka Deesa District Banaskantha. It was of the ownership of Ramsi father of Ghemra. Ghemra was a minor when his father expired. His uncle used to look after this field on behalf of the minor Ghemra Ramsi. Thereafter Ghemra Ramsi joined service in railways and the uncle used to look after the field while the name of Ghemra Ramsi was entered into Pahani Patraks and it continued to be there in the Pahani Patraks upto 1978-79. In the month of June 1982 Ghemra Ramsi sold the said field to one Mahadev whose son Amthabhai was serving as a Talati at Deesa at the relevant time. The sale-deed was executed by Ghemra Ramsi on 10-6-1982. Mahadev and his relative Nagjibhai went to this field with the tractor of one Gulabji in the evening of 11-6-1982. The field was ploughed with the tractor and most of the portion was ploughed and at about 11-45 P. M. the nine accused who were tried before the Court went there with deadly weapons like Dharia axe spear and sticks. They gave blows with sticks on the tractor of Gulabji whereby the front light of the tractor was broken. Mahadev and Nagji on seeing this came there running and the accused surrounded them and blows were given to Mahadev by all these accused with the weapons which were in their hands and Mahadev succumbed to the injuries on the spot. They gave blows with sticks on the tractor of Gulabji whereby the front light of the tractor was broken. Mahadev and Nagji on seeing this came there running and the accused surrounded them and blows were given to Mahadev by all these accused with the weapons which were in their hands and Mahadev succumbed to the injuries on the spot. Nagji who intervened was also injured by some of these accused while Gulabji who had gone with his tractor was also injured by some of these accused. The accused after causing the death of Mahadev and causing injuries to Nagji and Gulabji went away from the field. Gulabji then went to the place of Amthabhai at about 3 A. M. and told him about this incident. Amthabhai then went to the scene of the offence and saw his father lying there dead and Nagji lying there in injured condition. Nagji was taken to the hospital in a jeep-car sand then a complaint was given by Amthabhai to police in the morning. The police after necessary investigation submitted charge-sheet against these nine accused to the Court of the Judicial Magistrate First Class at Deesa. The accused were committed to the Court of Sessions Banaskantha at Palanpur for trial according to law. Charge was framed against these accused for the above offences. The accused pleaded not guilty to the same and claimed to be tried. They came out with a total denial so far as the incident is concerned. ( 4 ) THE learned trial Judge after appreciating the evidence recorded before him came to the conclusion that an unlawful assembly was formed by accused Nos. 1 2 7 and 9 and some others whose identity could not be established beyond reasonable doubt and that the common object was only to cause grievous hurt and not death of anyone. The learned Sessions Judge came to the conclusion that these accused were responsible for causing grievous hurt to the deceased and simple hurt to Nagji and Gulabji in prosecution of the common object of the unlawful assembly and accordingly convicted these four accused. He acquitted the remaining accused of the offences with which they were charged. The learned Sessions Judge having convicted these four accused of the above offences and having sentenced them to imprisonment and fine these four accused have filed appeals challenging the order of conviction and sentence. He acquitted the remaining accused of the offences with which they were charged. The learned Sessions Judge having convicted these four accused of the above offences and having sentenced them to imprisonment and fine these four accused have filed appeals challenging the order of conviction and sentence. The State being dissatisfied with the acquittal of accused Nos. 1 2 7 and 9 so far as the offence of murder is concerned has filed one Criminal appeal and also filed another criminal appeal so far as the acquittal of the remaining five accused is concerned. This is how these different appeals filed by the convicted accused on one side and the State on the other side have come up together for hearing before us. . . . . . . . . . . . . . . . (Held after discussing the evidence that the court would not be justified in disturbing a view simply because the other view is possible ). ( 5 ) NOW so far as the claim of the accused that they had a right of defence of property is concerned we have discussed earlier that though they were in actual physical possession of this property there is no material to show that they had a right to possess this property independently of Ghemra Ramsi. When Ghemra Ramsi sold away the property to the deceased Mahadev the accused could not claim the they have a right to continue in possession even after the sale. That way they could not claim any right of defence of property. There was also no crop or cultivation in this field at the time of this incident and therefore there was also no question of protecting the crop or cultivation made by the accused. That way also they had no right of defence of property. But as discussed earlier the fact remains that the accused were in physical possession of this property through Madha Uma who was acting as the guardian of Ghemra Ramsi. Their claim is that the field was given in mortgage to accused No 8 by Ghemra Ramsi. The document of mortgage cannot be looked into by us because it is not proved as stated by us earlier. It is also. rightly not exhibited by the learned Sessions Judge as it is not proved. Their claim is that the field was given in mortgage to accused No 8 by Ghemra Ramsi. The document of mortgage cannot be looked into by us because it is not proved as stated by us earlier. It is also. rightly not exhibited by the learned Sessions Judge as it is not proved. But we must not forget that as against the contention of the accused that the field was mortgaged to accused No. 8 the prosecution has kept back the most important witness Ghemra Ramsi who could have thrown some light on this question. For ought we know the accused might have been successful in establishing that Ghemra Ramsi had mortgaged the field with this accused No. 8 if Ghemra Ramsi was examined as a witness. We can atleast say that the claim of the accused that the field was mortgaged with accused No. 8 cannot be brushed aside as a baseless one. It can be said that their claim was a bona fide one and not a mala fide one. But assuming that they had a right of defence of properly then also they could not have caused the death of the deceased by giving blows to him. It was not necessary to cause injuries to the deceased and cause his death in exercise of the alleged right of defence of property. They were not justified in causing more harm than necessary in exercising their right of defence of property if any. Section 97 of the Indian Penal Code says that every person has a right subject to the restrictions contained in Section 99 to defend the property 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. There being no crop or cultivation in the field it cannot be said that the persons who were running the tractor were committing the offence of mischief but it can at the most be said that they were committing criminal trespass. There being no crop or cultivation in the field it cannot be said that the persons who were running the tractor were committing the offence of mischief but it can at the most be said that they were committing criminal trespass. Section 103 I. P. C. says that the right of private defence of property extends under the restrictions mentioned in section 99 to the voluntary causing of death or of any other harm to the wrongdoer if the offence the committing of which or the attempting to commit which occasions the exercise of the Tight be an offence of robbery house-breaking by night mischief by fire committed on any building tent or vessel or 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 persons on the side of the deceased were not armed with any weapons. In view of this the accused were not entitled to cause death or any other harm to these persons because their case will not be covered by section 103 I. P. C. Section 1104 says that if the offence the committing of which or the attempting to commit which occasions the exercise of the right of private defence be theft mischief or criminal trespass not of any of the descriptions enumerated in section 103 I. P. C. that right does not extend to the voluntary causing of death but does extend subject to the restrictions mentioned in section 99 to the voluntary causing to the wrongdoer of any harm other than death Section 99 says that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. So far as the right of private defence of body is concerned section 99 provides that even death or grievous hurt tan be caused if there is reasonable apprehension of death or grievous hurt but so far as the defence of property is concerned it only says that it does not extend to inflicting of more harm than is necessary. So far as the right of private defence of body is concerned section 99 provides that even death or grievous hurt tan be caused if there is reasonable apprehension of death or grievous hurt but so far as the defence of property is concerned it only says that it does not extend to inflicting of more harm than is necessary. Looking to these provisions of the Indian Penal Code it is clear that the persons on the side of the accused caused more harm than necessary even if we take it that they had a right to cause some harm to the deceased and his companions on the alleged exercise of their right of defence of property. We may mention here even at the cost of repetition that there was no reasonable apprehension of death or grievous hurt or even any hurt to the accused persons because the persons on the side of the deceased: were not armed at all and it is not even suggested that they caused any physical obstruction or resistance or they raised any attack or assault on the accused. It is thus clear that even if the accused had a right of defence of property then also they were not justified in causing death or even grievous hurt to the deceased. . . . . . . . . . . . . . . . ( 6 ) SO far as the final order of conviction and sentence passed by the learned Sessions Judge is concerned we are constrained to observe here that the learned Sessions Judge lost sight of the fact that section 149 I. P. C. does not constitute a substantive offence but it only provides for punishment for an offence committed by a member of an unlawful assembly. The learned Sessions Judge has with due respect to him lost sight of this fact and convicted the accused of the offences punishable under sections 147 148 and 149 I. P. C. and imposed sentence of imprisonment to the accused. He has convicted the accused of these offences twice and imposed sentence also twice. The learned Sessions Judge has with due respect to him lost sight of this fact and convicted the accused of the offences punishable under sections 147 148 and 149 I. P. C. and imposed sentence of imprisonment to the accused. He has convicted the accused of these offences twice and imposed sentence also twice. In fact these five accused should have been convicted of the offences punishable under sections 147 and 148 I. P. C. and accused No. 2 who is proved to have caused grievous hurt by giving a Dharia blow on the head of the deceased should have been convicted of the offence punishable under section 326 I. P. C. while the rest of the three accused should have been convicted of the offence punishable under section 326 read with section 149 I. P. C. So far as accused No. 7 is concerned be should have been convicted of the offence punishable under section 323 I. P. C. as well as for The offence punishable under section 323 read with section 149 I. P. C. because he caused simple hurt to Gulabji by a stick blow and is also responsible as a member of unlawful assembly for the offence of simple hurt committed by accused No. 9 by a stick blow on the back of the deceased. Similarly accused No. 9 should have been convicted of the offence punishable under section 323 I. P. C. for causing simple hurt to the deceased and under section 323 read with section 149 I. P. C. for being a member of unlawful assembly one of the members of which viz. accused No. 7 caused simple hurt to Gulabji. Accused Nos. 1 and 2 should also have been convicted of the offence punishable under section 323 read with section 149 I. P. C. because they were members of an unlawlful assembly two members of which assembly caused simple hurt to Gulabji as well has to the deceased. So far as the offences punishable under sections 147 and 148 I. P. C. are concerned the conviction could not have been recorded twice as is done by the learned Sessions Judge. So far as the sentence of fine is concerned the learned Sessions Judge has not mentioned in his order 25 to for which offence he was imposing the sentence of fine of Rs. 2000. So far as the sentence of fine is concerned the learned Sessions Judge has not mentioned in his order 25 to for which offence he was imposing the sentence of fine of Rs. 2000. 00 but we may take it that the learned Sessions Judge must have thought it proper to impose the sentence of fine for the offence of grievous hurt and not for other minor offence and that way we would take it that the sentence of fine was in addition to the substantive sentence of imprisonment for the offence of causing grievous hurt. ( 7 ) BEFORE parting with this case we would like to observe here that this incident took place because the deceased purchased the field bearing S. No. 94 from Ghemra Ramsi Ghemra Ramsi executed a sale-deed in favour of the deceased on 10-6-1982 and this incident took place on the night between 11/06/1982 and 1 2/06/1982. The documentary evidence on record shows that the possession was with Madha Uma and he was cultivating the land very probably as a guardian of Ghemra Ramsi in the beginning and thereafter as his relation. Anyway there was dispute about the actual physical possession so far as the field is concerned. Ghemra Ramsi was thus a very important witness in this case. though he was not an eye-witness to the incident in which the deceased lost his life and Nagji and Gulabji sustained injuries. He cannot be said to be a witness who was not important or not necessary to unfold the prosecution story in the present case. The prosecution story does not simply consist of the actual incident which took place on that night It starts from the transaction of the sale-deed which took place in favour of the deceased and which ultimately resulted in this incident. It was necessary for the prosecution to establish that the physical possession was with Ghemra Ramsi and Ghemra Ramsi handed over possession of the said field to the deceased before this incident took place. For establishing this important part of the prosecution story Ghemra Ramsi was absolutely necessary to be examined as a witness. The investigating Officer recorded the statement of this Ghemra Ramsi and he was cited as a prosecution witness by him. For establishing this important part of the prosecution story Ghemra Ramsi was absolutely necessary to be examined as a witness. The investigating Officer recorded the statement of this Ghemra Ramsi and he was cited as a prosecution witness by him. The learned Public Prosecutor who conducted the case on behalf of the prosecution before the trial Court surprisingly dropped Ghemra Ramsi by giving a Purshis stating therein that because he was not an eye-witness he was dropping him. Now it is not that only eye-witnesses are to be examined in a criminal case. In fact. he examined some witnesses including Amthabhai Mahadev who was not an eye-witness. It is surprising that even though Ghemra Ramsi was an important witness in this case the learned Public Prosecutor for the reasons best known to him dropped him by stating in the Purshis that he was dropping him because he was not eye-witness. It was highly improper and unfair on the part of the learned Public Prosecutor to have dropped Ghemra Ramsi and to have deprive the defence of cross-examining Ghemra Ramsi. Even the learned Sessions Judge should have asked the learned Public Prosecutor as to why he was dropping his important witness. It is true that the defence does not appear to have raised any objection to the dropping of Ghemra Ramsi. But it also doe not appear from the Purshis Ex. 58 that the said Purshis vas even shown to the learned advocate for the defence. In fact the Purshis should have been shown to the learned advocate for the defence so as to enable him to make his endorsement whether he was objecting to the dropping of the witness or whether he was not objecting to the dropping of the witness or whether he had nothing to say. It is true that even if the defence advocate had objected to the dropping of this witness the prosecution could not have been forced to examine this witness but the Public Prosecutor would have been in a position to know as to what was the say of the defence advocate and if the defence had objected he could have reconsidered his decision to drop the witness and could have decided to examine him so as to avoid any adverse inference being drawn against the prosecution. Even if the defence advocate does not say anything in that regard then also adverse inference can be drawn against the prosecution for not examining an important and a material witness depending upon the facts of a particular case. In fact this was a fit case in which the trial Court should have asked the learned Public Prosecutor in reconsider his decision to drop this important witness and suggested to him that if he was not inclined to examine Ghemra Ramsi as a witness then he may have to consider whether this Ghemra Ramsi should be examined as a Court witness. In fact this is a fit case in which Ghemra Ramsi should have been examined as a Court witness when the prosecution dropped him. In facts at one stage even we were seriously considering whether Ghemra Ramsi should be examined as a Court witness by us but having considered the material on record we have not thought it necessary to call Ghemra Ramsi as a Court witness at this stage because we have taken the view that even on the assumption that the accused were in physical possession of this field at the time of this incident they had exceeded the right of defence of property and the conviction of accused Nos. 1 2 7 and 9 was justified even on the material as it stands. In view of this we have not thought it necessary to examine him as a Court witness. Appeals dismissed. .