JUDGMENT : G.B. Patnaik, J. - The four Appellants have been convicted u/s 302/34, Indian Penal Code (hereinafter referred to as the "Code") for having caused the death of deceased Balaram Jena and have been sentenced to undergo rigorous imprisonment for life. Appellant Upendra Jena has been further convicted u/s 325 of the Code for having caused grievous hurt to Kartika Jena and has been sentenced to undergo rigorous imprisonment for three years. He has also been convicted u/s 323 of the Code for having caused simple hurt to Purna (P.W. 6) and Rukmini (P.W. 7) and has been sentenced to undergo rigorous imprisonment for six months. Appellant Hadibandhu has been convicted u/s 323 of the Code for having caused hurt to Purna (P.W. 6) and Rukmini (P.W. 7) and has been sentenced to undergo rigorous imprisonment for six months. Appellant Budhiram has been convicted u/s 323 of the Code for having caused hurt to Prabhakar (P.W. 5) and has been sentenced to undergo rigorous imprisonment for six months. The sentences passed against each of the Appellants under different sections have been directed to run concurrently. 2. The prosecution case, briefly stated, it as follows: On 30-7-1979 at 12 noon, the deceased Balaram was transplanting paddy plants on nine Gunths of land belonging to Huli Jena and he was being assisted by his two sons Prabhakar (P.W. 5) and Ramakanta (P.W. 9). It is alleged that Balaram had taken the said land from Huli Jena for that year on payment of salami of Rs. 200/-. It was agreed to between Balaram and Huli that Balaram would raise paddy for the year and would enjoy the usufructs without having any liability to pay bhag to Huli. At the end of the year, Huli would repay back Rs. 200/- without payment of any interest when Balaram would re-deliver the land. Huli gave possession of the land to Balaram and prior to the date of occurrence, Balaram had prepared the land for transplantation. The further prosecution case is that on a day prior to the date of occurrence, Huli Jena took the bullock from Balaram and went to cultivate his other land, but Balaram asked Huli not to cultivate the land on the same day since it was a Sankranti day. The further prosecution case is that on a day prior to the date of occurrence, Huli Jena took the bullock from Balaram and went to cultivate his other land, but Balaram asked Huli not to cultivate the land on the same day since it was a Sankranti day. As Huli did not return the bullock, Balaram himself went and brought back his bullock after unyoking the plough and this incident had enraged Huli. On the date of occurrence while Balaram was transplanting, the four accused-Appellants who were working in the neighbouring land of Appellant Upendra went to the filed where Balaram was transp lanting and then Upendra questioned Balaram as to why he was cultivating since the land had been given to Upendra by Huli. Immediately thereafter, Upendra dealt a lathi blow on the left side of the head of Balaram as a result of which Balaram fell down. The other accused-Appellants Gopal Jena, Hadibandhu Jena and Budhiram Jena assaulted on different parts of the body of Balaram. One Kartika Jena was transplanting paddy on his land at a short distance from the place of occurrence. When Balaram was assaulted, his son Prabhakar (P.W. 5) ran to Kartika Jena out of fear and the other son Ramakanta (P.W. 9) raised alaram. At this juncture, the four accused-Appellants ran to Kartika Jena (P.W. 8) and assaulted him as well as P.W. 5. After assaulting P.W. 8, Upendra Jena again came back to Balaram and while he was lying injured assaulted him further. Thereafter the accused persons left the place of occurrence. On the way they met Purnachandra Jena (P.W. 6) who was doing some agricultural operations on his field. The Appellants charged him as to why he gave his bullock to Balaram. When P.W. 6 was running away out of fear, he fell down whereupon accused Upendra dealt a lathi blow on his head and another blow on his left leg. Accused Hadibandhu Jena dealt two lathi blows on his both forearms. P.W. 7 Rukmini, wife of P.W. 6, on coming to know of the assault on her husband came to save him when she was assaulted by Hadibandhu. P.W. 5 lodged information at the Basta Police Station on the same day at 7-30 p.m. and the same was recorded by P.W. 20, the Sub-Inspector of Police attached to Basta Police Station and was treated as F.I.R. (Ext. 11). P.W. 5 lodged information at the Basta Police Station on the same day at 7-30 p.m. and the same was recorded by P.W. 20, the Sub-Inspector of Police attached to Basta Police Station and was treated as F.I.R. (Ext. 11). P.W. 20 then registered the case and took up investigation. He sent the injured persons to the hospital for examination but could not conduct the inquest on the same day as it was late at night. On the next day at 13 a.m. he conducted the inquest and then sent the dead body for post mortem examination through the constable (P.W. 4). The Investigating Officer then took further steps in the investigation by making some seizure and examining some witnesses. He received the post-mortem report and the injury report and after completion of the investigation submitted the charge sheet. 3. The defence of all the accused persons as appears from their examination u/s 313 of the Code of Criminal Procedure, is one of denial. On behalf of accused Upendra during arguments before the learned Sessions Judge an alternative plea of right of private defence of property was also taken. 4. P.W. 3 is the doctor attached to Headquarters Hospital, Balasore, as the Medicine Specialist and he had conducted the post-mortem examination over the dead body of Balaram. On external examination, he noted the following injuries on the dead body of the deceased: 1. One lacerated wound at the base of the left thumb in between index finger and thumb. Size of the injury was 2" x 1 1/2" x 1" 2. One lacerated wound at the tip of the left middle finger and it was complete. 3. Fracture of the left middle inter-phalangeal joint. 4. One bruise on the left cheek and neck and laceration of pinna of left ear. On examination of the skull he found the following injuries: 1. Depressed comminuted fracture of left frontal bone present at two places 1" apart and extending the whole of the bone. 2. Comminuted fracture of the left temporal bone just above the left ear. On dissection he found intracranial haemorrhage both in the form of liquid and haematoma on the brain surface and it was extradural in nature. According to the doctor, the injuries on the skull are fatal and are sufficient in the ordinary course of nature to cause death. The post-mortem report was exhibited as Ext. 6. On dissection he found intracranial haemorrhage both in the form of liquid and haematoma on the brain surface and it was extradural in nature. According to the doctor, the injuries on the skull are fatal and are sufficient in the ordinary course of nature to cause death. The post-mortem report was exhibited as Ext. 6. From the medical evidence indicated above, there cannot be any manner of doubt that the death is homicidal in nature. 5. To bring home the charge against the Appellants u/s 302/34, the prosecution relies upon the ocular statements of P.Ws. 5, 8, 9, 11, 12 and 13. P.W. 5 is the son of the deceased who was also present on the field along with his father on the date of occurrence. According to his evidence while they were transplanting paddy plants on the land, the four accused-Appellants who were working in the nearby field came to them and accused Upendra asked his father as to why he was cultivating the land and so asking he dealt a lathi blow violently on the left side of the head of his father. His father fell down being assaulted. Then accused Gopal, Hadibandhu and Budhiram assaulted on different parts of the body of the deceased with lathis. Nothing substantial has been brought out in the cross-examination of this witness to discredit his version. His evidence appears to us to be very natural and trustworthy. P.Ws. 8. 9, 11, 12 and 13 corroborate the evidence of P.W. 5 so far as the assault by the accused persons on deceased Balaram Jena is concerned in all material particulars. There is no inconsistency in the evidence of these witnesses as to the place of assault, manner of assault, weapons of assault and the different portions of the body where the accused persons assaulted. The defence has failed to elicit anything in the cross-examination of any of these witnesses so as to discredit their version. In our opinion, the evidence of these witnesses is entirely trustworthy and prove the prosecution case so far as the assault on the deceased is concerned beyond all reasonable doubt. Consequently, the defence plea of denial cannot be accepted. 6. In our opinion, the evidence of these witnesses is entirely trustworthy and prove the prosecution case so far as the assault on the deceased is concerned beyond all reasonable doubt. Consequently, the defence plea of denial cannot be accepted. 6. Even though the defence plea of denial is rejected and the prosecution story of assault on deceased Balaram is accepted, yet another contention which needs to be answered is the plea of right of private defence of property. This point was urged before the learned Sessions Judge and was vehemently argued in this Court. According to the learned Counsel for the Appellants the land in question admittedly belongs to Huli Jena and it is the evidence of Huli Jena that he had given the land to accused Upendra. In that view of the matter the accused had every right to drive away the deceased and his companions from the land even by use of force and, therefore, the assault on the deceased must be taken to have been given in exercise of the right of private defence of property. In support of the said contention, the learned Counsel places reliance on the Full Bench decision of this Court in the case of State of Orissa v. Rabindranath Dalai and Anr. 1973 C.L.R. 202 (F.B.), as well as the decision in the case of Ram Rattan and Others Vs. State of Uttar Pradesh. The Full Bench decision of this Court discusses the law on the subject at great length and in paragraph 15 of the judgment, the law on the subject has been summarised and eleven principles have been enumerated. The right of private defence of property presupposes that the person exercising the right is in possession of the property which has to be defended. A person who has no possession over the property cannot have any right of private defence of the same. The crucial test for deciding whether a right of private defence of property is available or not is whether the person who exercises the right is in physical possession of the same or not and whether the harm committed to the property is immediate or not. The concept will vary according to the facts and circumstances of each case and no hard and fast rule can be laid down to determine the character of the harm. The concept will vary according to the facts and circumstances of each case and no hard and fast rule can be laid down to determine the character of the harm. If an accused is not in physical possession of the property, there can be no danger to the property to give the accused a right to protect the property even if he has a title to the same. His remedy would be in such a case to seek possession from a court of law. Even when a trespasser has already established himself in the enjoyment of the property for some time, and there is no question of permanent deprivation of one's possession over the same but the question is of infringement of enjoyment of a mere right over the same, then in such a case, the rightful owner is enquired to take the help of public authorities for protection of his property unless the injury caused to the property is expected to be enhanced if he chooses to go to the public authority. It is also well settled that a person who takes up the plea of right of private defence must establish the same either, by giving evidence of even on the prosecution evidence. This being the parameter, we will now examine as to whether the defence has been able to establish the plea of right of private defence of property. There is no evidence led by the defence in this case to prove that accused Upendra was in possession of the property in question nor there is any material in the prosecution evidence in support of the said plea. On the other hand, the prosecution evidence establishes the fact that deceased Balaram was in possession of the said property and had made some agricultural operations on the field before the date of occurrence. It is further established from the prosecution evidence that when the accused persons first saw the deceased transplanting the paddy plants in the land in question, they did not do anything and went to the land of Upendra Jena where they engaged themselves in fixing paddy plants for about an hour and thereafter they came to the occurrence land and assaulted the deceased. This is the evidence of P.W. 5. This is the evidence of P.W. 5. Besides, it is the consistent evidence of all the prosecution witnesses that accused Upendra coming on the land in question asked Balaram as to why he was transplanting paddy plants on the land and so asking assaulted the deceased on his head with a lathi. In such circumstances, we fail to comprehend as to how the accused can be said to have assaulted the deceased in exercise of right of private defence of property. In our opinion, the plea of right of private defence of property cannot be at all be entertained and in the facts and circumstances of this case, none of the principles enunciated in Full Bench decision of this Court, referred to supra, has any application. The other Supreme Court decision on which the learned Counsel for the Appellants places reliance, in our opinion, goes against the defence contention. It has been held in that case: It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or precess of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.... Applying the aforesaid principle to the facts of the present case there can be any manner of doubt that accused Upendra had no right of private defence of property which would entitle to assault the deceased in the manner in which he has assaulted, as unfolded through die evidence of the prosecution witnesses. We would, therefore, have no hesitation in rejecting the contention of the learned Counsel for the Appellants on this score. 7. The learned Counsel has then submitted that this would at best be a case of exceeding the right of private defence of property. In our opinion, this contention is based on a thorough misconception of law. In view of our conclusion that the accused has no right of private defence of property, in the facts and circumstances of the present case, the question of exceeding the said right does not arise. We would, therefore, reject the said submission as being devoid of force. 8. In view of our conclusion that the accused has no right of private defence of property, in the facts and circumstances of the present case, the question of exceeding the said right does not arise. We would, therefore, reject the said submission as being devoid of force. 8. The learned Counsel for the Appellants then contends that the prosecution evidence is such that the Appellants other than Upendra cannot be said to have shared the common intention of killing the deceased and, therefore, the provisions of Section 34 will have no application. This submission of the learned Counsel is based on the ground that only Upendra assaulted the deceased on his head whereas all other persons assaulted on other parts of the body which are not vital parts. Section 34 of the Code does not create a distinct offence but only lays down the principle of joint criminal liability. The two necessary preconditions for the application of the said section are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that intention. It is true that a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that meeting of mind invite the application of Section 34, but the participation need not in all cases be by physical presence. Even though common intention presupposes prior concert, but the plan need not be elaborate nor a long interval of time is required. The essence of liability under the said section is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the said common intention and presence of the offender sought to be rendered liable may not be one of the conditions of its applicability, It has been held in several cases that mere distance from the scene of crime cannot exclude culpability u/s 34 which lays down the rule of joint responsibility for a criminal act performed by a plurality of persons. See Tuka Ram Ganpat Pandare v. State of Maharashtra (1974) S.C. (Cri.) 580. The intention of the accused is to be judged from the acts done by him. The said common intention may have suddenly developed and can be gathered from the conduct of the accused, the weapons used and the injuries caused. See Tuka Ram Ganpat Pandare v. State of Maharashtra (1974) S.C. (Cri.) 580. The intention of the accused is to be judged from the acts done by him. The said common intention may have suddenly developed and can be gathered from the conduct of the accused, the weapons used and the injuries caused. See State of Bihar v. Chukia Uraon and Anr. A.I.R 1969 Pat 411. The Privy Council in the case of AIR 1945 118 (Privy Council), has stated that it is difficult, if not impossible to procure direct evidence to prove the intention of an individual, in most cases it has to be inferred from his act or conduct Or other relevant circumstances of the case. It has been held by the Supreme Court in the case of Rishideo Pande Vs. State of Uttar Pradesh that the common intention in a given case has to be inferred from the surrounding circumstances and the conduct of the parties. Thus, the existence of a common intention alleged to have been shared by the accused persons is a question of fact to be inferred from the conduct of the parties and the surrounding circumstances. The facts that all the four Appellants were on the field of Upendra while the deceased was transplanting paddy plants on Huli Jena's land and all of them came together to the spot of occurrence and all of them assaulted the deceased with lath is and further even after the deceased fell down on receiving the blow from Upendra, the other accused-Appellants assaulted the deceased, in our view, attract the provision of Section 34 of the Code and consequently, the conviction of all the Appellants u/s 302/34, of the Code must be sustained. 9. Coming to the question of conviction of accused Upendra u/s 325 of the Code, we find that Upendra has been convicted for the said offence for causing grievous hurt to Kartik Jena (P.W. 8). The doctor (P.W. 2) examined P.W. 8 on 30-7-1979 and found five external injuries of which injury No. 2, namely, the swelling of the patella was suspected to be a fracture. P.W. 1, the other doctor, further examined P.W. 8 and found the patella bone of left knee joint fractured. P.W. 1 operated him and the fractured portion was removed on 5-8-1979 and P.W. 8 was discharged from the hospital on 19-9-1979. P.W. 1, the other doctor, further examined P.W. 8 and found the patella bone of left knee joint fractured. P.W. 1 operated him and the fractured portion was removed on 5-8-1979 and P.W. 8 was discharged from the hospital on 19-9-1979. According to P.W. 1 the said injury was grievous in nature and most probably was caused by direct blow with hard and blunt substance like lathi. This evidence of the doctor fully corroborates the evidence of P.W. 8 regarding the grievous injury sustained by him on account of the assault by accused Upendra. The learned Counsel appearing for the Appellants does not assail the conviction of accused Upendra u/s 325 of the Code and the sentence passed thereunder and in our view rightly so. In this view of the matter, the conviction and sentence passed by the learned Sessions Judge in respect of offence u/s 325 of the Code must be upheld. 10. Similarly, the learned Counsel for the Appellants does not challenge the conviction and sentence passed by the learned Sessions Judge in respect of the offence u/s 323, of the Code. Accused Hadibandhu and Budhiram as well as accused Upendra have been convicted u/s 323 of the Code. Budhiram's conviction u/s 323 is for causing simple hurt to Pravakar (P.W. 5). P.W. 5 was examined by the doctor (P.W.2). The oral evidence of P.W. 5 finds ample corroboration from the medical evidence of P.W. 2. The evidence of P.W. 6 regarding the injuries sustained by him on account of assault committed by Upendra and Hadibandhu gains full corroboration from the evidence of P.W. 7 as well as P.W. 18. The medical evidence of P.W. 2 who examined P.W. 6 on 30-7-1979 also corroborates the oral evidence. Similarly, the evidence of P.W. 7 to the effect that she was injured being assaulted by Upendra and Hadibandhu is corroborated by the evidence of P.W. 18 as well as the evidence of the doctor (P.W. 2). In that view of the matter, the conviction of accused Upendra, Hadibandhu and Budhiram of the offence u/s 323 of the Code has not rightly been assailed by the learned Counsel for the Appellants and, therefore, the conviction and sentence under that score must be upheld. 11. In the ultimate result, therefore, we do not find any merits in this appeal which is accordingly dismissed. B.N. Misra, J. 12. I agree. 11. In the ultimate result, therefore, we do not find any merits in this appeal which is accordingly dismissed. B.N. Misra, J. 12. I agree. Final Result : Dismissed