JUDGMENT S.H.S. ABIDI, J 1. The eleven appellant's alongwith five other accused persons who have been acquitted, have been tried by the learned fourth Additional Sessions Judge, Purnia in Sessions Trial No.95 of 1976. The appellant No.1 Tamizuddin has been convicted under section 302 of the Indian Penal Code and has been awarded sentence of rigorous imprisonment for life. The appellants no. 2 to 11 also have been convicted under section 302 read with section 149 of the Indian Penal Code and ha ye been sentenced to undergo rigorous imprisonment for life. All the appellants have further been convicted under section 379 read with section 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for two years. Further Appellants No.2, 3, 4, 5 and 11 have been convicted under section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years each. Appellants No.6 to 10 have further been convicted under section 147 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for One year. Appellant No.6 has further been convicted under section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. All the sentences have been ordered to run concurrently. Hence this appeal. 2. The case of the Prosecution was that on 20.8.1972 the informant, Hakimuddin, who is now dead and was not examined as a witness, went to harvest the paddy crop in his field being khata No.51 in the eastern Bahiyar along with Fazluddin. Alim, Sarfuddin and others. After cutting the crop Usman was carrying the harvested paddy crop on the bullock cart. At about 10.00 A.M. ten persons from the north and ten persons from the south came armed with bows and arrows and started showering arrows. The informant and his men fled towards their houses. When they reached near the Bari of Safique Thasildar, appellant no. 2 started shooting his arrow, Tamijuddin, appellant No.1 shot arrow in the chest of Usman who fled towards east after leaving the cart and then Safique Thasildar shot an arrow in the back of Usman and he fell down near the Bamboo clump and died immediately. From the arrows of other accused, Sarfuddin Fazluddin and others were also injured. The accused ran away with the looted cart. From the arrows of other accused, Sarfuddin Fazluddin and others were also injured. The accused ran away with the looted cart. Sarju Soren and Shibu Soren bad been identified in the mob which had come from the north, while Banu Soren was identified in the mob coming from the south. The occurrence was seen by Lalchand, Samiruddin. Md. Safique Amin, Kafil, Tahir and others. The Police of Kishungauj Police Station and the Magistrate on getting the information about the occurrence reached the village with Police party and a Magistrate. Sri B.L. Das (P.W.12). They came to the village and when they reached near the house of Safique Thasildar they found some persons who at the sight of the police fled. The cart loaded with the paddy was seized. Three persons were apprehended with bows and arrows. 3. A Fardbeyan of Hakimuddin was recorded at the spot at about 1.00 P.M. on the same day. The signature of the informant Hakimuddin was Exhibit 1 and also signed by Kafiluddin which is Exhibit-1/1. On the basis of the Fardbeyan, first information report. Exhibit-7 was registered and investigation started. 4. The case was investigated by Ramanand Singh. P.W.13, who prepared the inquest report (Exhibit-8). He went to the spot and found track of bullock cart to the west of the harvested crop and he also found blood at two places and also signs of fall of man on the grass. He also found blood on the southern side of the road about one hundred foot east and prepared seizure list which is Exhibit.5/6. He however, did not prepare any map. After completing his investigation he submitted charge sheet against the accused. The postmortem on the dead body of Usman was conducted by doctor Nasib Lal Jha (P.W.2) on 21.8.1972 at about 5.00 P.M. at Kishunganj and post mortem report is Exbibit-2. He did not find injury on the back though he found injury on the chest. The other injured are said to have been examined but the doctor bag not been produced. Injury reports have, however, been proved by the Investigating Officer. 5. The prosecution, in support of its case, examined thirteen witnesses out of whom P.Ws. 1, 2, 3, 5, 7, 10 and 11 are the eye-witnesses rest are formal, P.W.1 Kafiluddin is the brother of the informant. P.W.2 is Dr. Nasib Lal Jha who conducted the postmortem. P.W.3. Injury reports have, however, been proved by the Investigating Officer. 5. The prosecution, in support of its case, examined thirteen witnesses out of whom P.Ws. 1, 2, 3, 5, 7, 10 and 11 are the eye-witnesses rest are formal, P.W.1 Kafiluddin is the brother of the informant. P.W.2 is Dr. Nasib Lal Jha who conducted the postmortem. P.W.3. Abdul Hamid not named in the first information report had reached the spot and bad seen the occurrence. P.W.4 Azim Uddin is the son of in informant Hakimuddin and has narrated about the occurrence. P.W.5 Sharfuddin is the injured. He was going along with the bullock cart and has deposed about the occurrence. Samir Uddin, P.W. 6 is the seizure witness whose statement has been tendered. P.W.7 Alim Uddin is injured. He bas also supported the prosecution case. P.W. 8 Zainuddin is formal witness. P.W.9 Fulo Nisa is son of the deceased whose statement was tendered. P.W.11 Safique Uddin is an eyewitness. P.W.12 is Sri B.L. Das, Magistrate and P.W.13 is Ramanand Singh the Investigating Officer, who has submitted charge sheet after investigation. 6. The accused in defence denied the prosecution case and said that they had not participated in the offence and that Usman, the deceased in this case might have been killed by some other person. No witness in defence have been examined by the accused. However the accused have filed documents, being Exhibit-A series, Exhibit-B series and Exhibit-C series, to show that the plots in dispute, from which the paddy crop has been harvested were their plots. 7. The learned trial court, after considering the evidence and the entire material on record convicted the appellants, as stated above. 8. The learned counsel appearing on behalf of the appellants raised several contentions: (1) The persecution has loot come out with the true version of the occurrence. 7. The learned trial court, after considering the evidence and the entire material on record convicted the appellants, as stated above. 8. The learned counsel appearing on behalf of the appellants raised several contentions: (1) The persecution has loot come out with the true version of the occurrence. There was some other mob which might have killed the victim and the appellants have been falsely implicated; (2) There is nothing to show that the persons who are said to have been injured were injured as the doctor has not been examined to prove their injury report and the Investigating Officer, who has proved the injury report (Exhibit-9 series) could not prove the same and as such the accused have been prejudiced; (3) Lal Chand, Shafique Amin and Tahir, who have been named in the first information report, have not been examined; and (4) The appellants bad got right of private defence of property which is apparent from the Exhibits-A, B and C series all the property in dispute did not belong to the informant. 9. In this case the informant has died and the first information that has been lodged by him has been proved by his brother, whose signature is there on the Fardbeyan. The same has also been proved by the Investigating Officer (P.W.13). 10. There is the evidence of P.Ws. 1, 3, 4, 5, 7, 10 and 11 to prove the occurrence, P.W. l Kafiluddin, is the brother of the informant and he says that the land belonged to the four brothers that is Hakimuddin, Safiruddin (P.W.11), Sarfuddin (P.W.5) and himself as their father had got this land on the basis of a kabuliat, There was dispute between his father and brothers, on the one hand and the Santhals on the other, during the survey operation. He also denied that there was homestead of the Santhals over the plot in dispute. He further said that P.Ws. 4, 5, 7, 10 and 11 were in the fields and Usman was carrying the bullock cart loaded with paddy towards the house of the informant !lad then the mob from the north and south came and attacked. But, there was no Mar Peet in plot no. 55 as the informant party had run away. However, while Usman was taking the cart loaded with paddy the accused appellants came out from the house of Safique Thasildar and began to assault. But, there was no Mar Peet in plot no. 55 as the informant party had run away. However, while Usman was taking the cart loaded with paddy the accused appellants came out from the house of Safique Thasildar and began to assault. Usman was given arrow shot in his chest. When he left his cart Safique Thasildar gave arrow blow injuring in his back. As, regards this evidence nothing bas beep shown to discredit it. P.W.3 is Abdul Hamid who has been named in the first information report. He, heard the alarm from the eastern Bahiyar and ran towards it and when he reached near the house of Safique Thasildar he found that Usman was carrying paddy crops on the bullock cart and the appellants and others were coming behind the cart and when he reached near the house of Safique Thasildar the accused emerged out and Usman was given arrow blow and thereafter he died. P.W.4 Azimuddin is the son of the informant Hakimuddin. He had also said similarly as said by P.W.1 Kafiluddin, about the accused coming out from the house of Safique Thasildar and giving injury to the victim who died on the spot. Similarly, P.W.5 Sarfuddin, who is said to have been injured in this case, was going along with the bullock cart and has also deposed, as laid by P.Ws 3 and 4. Similar is the statement of P.Ws 7, 10 and 11. Thus, the evidence of the witnesses is consistent and nothing has been pointed out by the learned counsel for the appellants nor is there anything on the record to discredit the testimony of these witnesses. As such their statements are reliable and they can be believed. These statements are further proved by the post mortem report and the statement of the doctor, Nasib Lal Jha, who conducted the post mortem. So far as the injury on the beck is concerned it has not also been found by the doctor. The injury on the chest has been found. Considering the entire matter it is apparent that Tamizuddin gave the injury on the chest of the deceased. 11. The prosecution alleged that the other persons who were injured were examined by a doctor. This doctor has not been examined by the prosecution. The injury on the chest has been found. Considering the entire matter it is apparent that Tamizuddin gave the injury on the chest of the deceased. 11. The prosecution alleged that the other persons who were injured were examined by a doctor. This doctor has not been examined by the prosecution. The injury reports which are said to have been prepared by the doctor have been proved by the Investigating Officer in the trial court. The contention of the learned counsel that this report could not be proved by the Investigating Officer as the Investigating Officer ill not the proper person to prove the same is correct. The Investigating Officer has not said that he bad seen the doctor writing or that injury report has been prepared in his presence. In these circumstances the injury reports could not be admitted into evidence. So in absence of the injury report it cannot be slid that the said injured persons had received injuries. 12. As regards the question of fight of private defence of property the accused have filed the Exhibits-A, B and C series. The prosecution could not produce any evidence except the oral to show that the plot in dispute belonged to informant. P.W. 1 said that his tether had got these plots through Kabuliat and there was dispute but he bas not filed any Kabuliat or any document to show that the plot in dispute was in his possession. It is only the oral testimony of the prosecution witnesses; whereas the defence in support of right of possession, has filed, the documents. There is nothing to show that the Exhibits-A, B and C series are fictitious and no right accrued to the accused. The possession and title of the accused party is proved in view of the Exhibits, A, B and C series. The learned counsel for the State urged that the accused appellants have not specifically pleaded the right of self defence of property and they have even denied their presence and participation. True that the accused had not pleaded their right of private defence of property but by filing of the Exhibits-A, B and C series they have provided ample materials to establish that the land in dispute has been in their possession and was their property. True that the accused had not pleaded their right of private defence of property but by filing of the Exhibits-A, B and C series they have provided ample materials to establish that the land in dispute has been in their possession and was their property. Further there was dispute between the Santhals and the informant party and that the Santhals are also accused in this case. So, even if it did not belong to the non-Santhal people then the other appellants have got the right of self defence of property. The right of self defence of property extends to in respect of the property of a third person. Even if the right of private defence of property has not been urged by the accused persons yet from the materials on record it is proved that the informant had no title not any possession and the Santhals and also the appellants had the right of self defence. In the case of Mohinder Pal Jolly vs. State of Punjab A.I.R. 1979 Supreme Court 577 are the question of right of self defence, of property or person. The relevant portion is quoted below:– "The onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly Or might or might not adduce any evidence in support of it but be can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal Act, which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in S. 99 of the Penal Code the last one being–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." Thus, the appellants by filing the Exhibits-A, B and C series have discharged their burden to establish their right of self defence of property. 13. The next question that arises as to what extent the right of private defence of property extends. 13. The next question that arises as to what extent the right of private defence of property extends. Whether the appellants could cause death of Usman while he was taking the loaded paddy crop in the cart or not. From the material on record, it appears that Usman was on the cart and be was unarmed. After the accused came out from the house of Safique Thasildar an arrow blow was given to Usman whereupon he left the cart and ran for life and thereafter injury was given to him with the result that be died on the spot. In these circumstances whether could the accused kill him. In the case of Mohinder Pal Jolly (Supra) their lordships of Supreme Court have observed as follows: – "As to when the right of private defence of the body extends to causing death is provided for in S.100. The appellant's case is not covered by it. In the view which we have expressed above we think that the appellant had not only the right of private defence of his property but also his body to a limited extent within the meaning of S.100 subject to the restrictions mentioned in S.99. This did not extend to the inflicting of so much harm to Sant Ram and causing his death nor the right of private defence of property available to the appellant extend to causing his death as it was not covered by any of the clauses of S.103. Mr. Mulla tried to bring it under it fourthly which says:– 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. Mischief was caused to his property but it was not caused under such circumstances as may reasonably cause apprehension in his mind that death or grievous hurt would be the consequence if such right of private defence was not exercised. A mere claim of such apprehension is not enough. The Court on objective test and on the fact and circumstances of each calc must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. The right of private defence of property also, therefore, in the appellant's case extended to causing of any harm other than the death. The Court on objective test and on the fact and circumstances of each calc must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. The right of private defence of property also, therefore, in the appellant's case extended to causing of any harm other than the death. Undoubtedly the appellant did exceed this right of private defence and apparently the murder which he committed within the meaning of clause fourthly of S. 300 squarely fell within Exception 2 thereof. He exceeded the power given to him by law and caused the death of Sant Ram against whom be was exercising such right of defence. He did so without pre mediation and without any intention of doing more harm than was necessary for the purpose of such defence. He thought that by indulging in this imminently dangerous Act, he would be able to scare away the labourers and stop them from continuing their unjustified agitation, the raising of the slogans and the throwing of the brickbats. But then, although the intention was not to kill or cause such bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must have committed the Act, knowing that it was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death of the Worker or workers standing on the other side of the boundary wall." Considering these observations of their lordships of the Supreme Court it is apparent that these was no immediate apprehension of danger to the appellant from the side of Usman who was un-armed and had left the cart and was running for life. Therefore, the appellants have exceeded the right of self defence of property and they should not have cause death which they caused. 14. The question arises as to whether the offence of Tamizuddin, appellant no.1 who boo given the injury to Usman comes under section 304 Part I or Part II. This question bas also been discussed by their lordships of the Supreme Court in the case of Mohinder (Supra) and paragraph 11 is quoted below:– "A question now arises whether the appellant was guilty under Part I of S. 304 or Part II. This question bas also been discussed by their lordships of the Supreme Court in the case of Mohinder (Supra) and paragraph 11 is quoted below:– "A question now arises whether the appellant was guilty under Part I of S. 304 or Part II. If the accused commits an Act, w bile exceeding the right of private defence by which the death is caused either with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other band if before the application of any of the Exceptions of S. 300 it is found that be was guilty of murder within the meaning of clause fourthly then no question of such intention arises and only the knowledge is to be fastened on him that be did indulge in an Act, with the knowledge that it was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of S. 304 and not Part I." In this particular case Usman, was un-armed and there was no imminent danger from him and he was going away leaving his cart, could not be killed. He bas not done anything which could hive an apprehension to the accused that he will cause any danger to them. The giving of the injury to Usman shows that there was intention of the accused persons to cause death. Therefore the case of the appellants fall under section 304 Part I and not Part II. Considering the entire evidence on record it appears that the appellant no.1. Tamizuddin is liable for conviction under section 304 Part I of the Indian Penal Code. 15. As regards the other appellants no. 2 to 11 it does not appear from the evidence on record that other accused had committed his murder. They have not caused any injury to Usman. The case of the prosecution that Safique Thasildar has given arrow blow has not been proved. In these circumstances, the appellants no. 2 to 11 could not be convicted under section 304 Part I of the Indian Penal Code. It was their individual Act, of giving injuries to the other injured persona, which has not been legally proved by the prosecution. Therefore, the appellant no.2 to 11 are entitled to be acquitted of all the charges. In these circumstances, the appellants no. 2 to 11 could not be convicted under section 304 Part I of the Indian Penal Code. It was their individual Act, of giving injuries to the other injured persona, which has not been legally proved by the prosecution. Therefore, the appellant no.2 to 11 are entitled to be acquitted of all the charges. 16. In the result the appellant no.1. Tamizuddin is convicted under section 304 Part I of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for ten years. His appeal is dismissed with the above modification. The appeal of appellants no. 2 to 11 is allowed. Their convictions and sentences are set aside and they arc acquitted of all the charges. They are on bail. They need not surrender. They are discharged from the liability of bail bonds. I agree. Appeal of App. No.1 dismissed with modification. Rest of the appeals allowed.