Lahiri, J. - This is also another criminal appeal which has come up for disposal about 10 years after the incident. The incident happened on 13.9.76 at 5 A. M. The accused has been convicted u/ss. 304 and 326, Indian Penal Code and sentenced to suffer rigorous imprisonment for three years on the first count, an rigorous imprisonment for another year on the second count. The sente­nces have been directed to run concurrently. 2. On his way to the High Court, the accused appellant who belongs to the lowest stratum of the society burdened with a large family with many cares had the ordeal of undergoing in­carceration, the police investigation, proceedings before the court and till to-day anxiously awaiting disposal of this appeal for the last six years. Such person, under similar circumstances can legitimately say that they are victims of "man made injustices''. The sword of Damocles still hangs over his head. It is perhaps more killing than the death penalty. Either we are to bear with such maladies or innovate drastic revolutionary means to dispense quick justice. The judiciary must react to enable itself to mete out 'judicial justice'. Is it possible to consider the me­rits of such appeals oblivion of the sufferings of the poor litig­ants ? Now, if the appeal is dismissed the accused shall have to undergo three years imprisonment after 10 years of the commission of the alleged offences. Let something be done as the pangs and agonies of the poor have become unbearable. This is the message tag which I append to the judgment for consideration of the learned and enlightened persons to do something positive, affirmative so that the Constitutional duties and obligations may be obeyed. The court system is being run in archaic 'bullock cart system'. Various scientific improvements have been made in other discip­lines since the independence. What about the judiciary ? The judi­ciary is an integral part of the Constitution. It is one of the three wings of the State. If the aphorism, "in determining the Nation's rank in socio-political civilization no other test is more decisive than the degree in which justice, as defined by law, is actually realised in its judicial administration'' is fractionally correct, I feel that the authorities cannot wait further to provi­de sufficient materials to inject and vibrate "the judicial system'' - help fulfil the aspirations of the people. A strong, trusted and vigilant judiciary can inject inspirations to millions of Indians. Is there any doubt that our little Indians are groaning under the suffocating pressures and octopus like tentacles of the forces trying to disrupt social ethics, fellow feeling, uprightness unity and integrity of India. The efficacy and efficiency of the judiciary can re-establish euphoria by removing the maladies, acce­lerate progress and developments of the Nation. I believe, it is the judiciary which can help achieving excellences of the pe­ople. The common cry is for social and economic justice, for peace and harmony which are directly related to the socio-eco­nomic injustice, want of peace and harmony. In the ultimate analysis, to a common, man, tossed, rocked, shaken and repre­ssed by various turmoil, the only saviour appears to be an impartial judiciary. I can not side track or shirk responsibilities to the nation, remain a silent spectator, and therefore, I emp­hatically say that the judiciary must receive congruous help and assistance from all. When the clock struck 12 in the mid-night of 14th/15th August 1947, Pandit Jawaharlal Nehru spoke for himself and the people of India. "Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially.'' Toe pledge was taken on behalf of the three wings of the State in-cluing the Judiciary. Indeed, the public interest litigations is a shining example how the Indian judiciary can put India to the apex. Sovereign, socialist, secular, democratic Indian republic is promise bound to secure to all citizen, justice, liberty, equality and fraternity. All these functions fall squarely within the ambit and jurisdiction of the judiciary. What is essential is not mere sche­mes, plans and programmes alone but their expeditious implement nation, to enable the judiciary to wipe tears from the eyes of many little Indians. I fondly hope that we can look for­ward to brighter tomorrow but it could be achieved if adequate care and attention is paid to the judiciary. The system may be experiencing a severe depression but I am sure that it will sur­vive, live and flourish eternally and help Indians to build India as the strongest nation. It is high time that all including pe­rsons within and outside law come forward and help streng­then the judicial system. The prologue is for the posterity. 3. The system may be experiencing a severe depression but I am sure that it will sur­vive, live and flourish eternally and help Indians to build India as the strongest nation. It is high time that all including pe­rsons within and outside law come forward and help streng­then the judicial system. The prologue is for the posterity. 3. The prosecution case is that on 13.9.76 at day break, aro­und 5 A.M., the accused Yad Ali was seen pouching the land of P. W. 3, Hatem Ali whereon Hatem had implanted Sesame Seeds two days earlier. P. W. 4, Nur Mahammad and P. W. 3, Hatem eyed the trespass. P. W. 4, Nur Mahammad physically ob­structed the appellant from ploughing. Yad picked up a stone and threw it at Nur Mahammad. Then Yad Ali whipped out a dagger and knifed Nur and the latter cried out for help. Upon hearing the cry, deceased Tahej Mandal, brother of P. W. 3. Hatem, came to help Nur Mahammad, but Yad knifed Tahej Mandal three to four times. P. W. 3, Hatem could not go to rescue as the women-folk of Yad Ali's family encircled and de­tained him. Thereafter, Yad left the place taking the dagger with him. The injured P. W. 4, Nur Mahammad and Tahej Mandal were sent for medical treatment. However, Tahej Man­dal succumbed to the injuries. An ejahar was lodged by P. W. 3, Hatem Ali. The police came, investigated the case and on completion of the investigation submitted a charge-sheet. The accused stood his trial before the Court of Sessions where he was charged u/ss. 302 and 326 I. P. C. The prosecution exami­ned as many as 9 witnesses. The accused examined three witnesses. Learned Sessions Judge bold that the incident happened on the land of the accused, who was in possession thereof. Learned Judge held that the accused had satisfactorily established that the prosecution witnesses went to evict him from the land in his possession and the accused bad the right of private defence to resist the attack. The accused sustained some superficial inju­ries. Learned Judge held that the dwelling house of the accused was ransacked by the prosecution side. Learned Judge held that the accused had satisfactorily established that the prosecution witnesses went to evict him from the land in his possession and the accused bad the right of private defence to resist the attack. The accused sustained some superficial inju­ries. Learned Judge held that the dwelling house of the accused was ransacked by the prosecution side. However, learned Judge held that the accused exceeded the right of private defe­nce and held the accused guilty u/s. 304 I.P.C., the offence of culpable homicide not amounting to murder in causing the death of Tahej Mandal and guilty u/s. 326 I.P.C. for causing grievous hurt to P.W. 4, Nur Mahammad. In the process of rea­ching the conclusions, learned Judge totally disbelieved the story of the prosecution that the disputed land belonged to PW 3, Hatem and also disbelieved that they had sowed Sesame seeds, as alleged by them. 4. The short point that falls for consideration is whether the accused exceeded the right of private defence of the person or property. Before entering into the question let me set out a synopsis of the disposition of the witnesses examined by the par­ties. P.W.1, Dr. A. Kundu, examined P.W. 4, Nur Mahammad and found 2 injuries, one incised looking penetrating wound and a swelling wound on the forearm. The doctor claimed that in­jury No. 1 was a grievous hurt. P.W. 2, Dr. D. N Sarma, held autopsy on the dead body of the deceased Tahej Mandal. He found five incised wounds on the dead body. He opined that the death was due to shock and haemorrhage resulting from injury No. 1. Indeed, injury No. 1 was on the abdomen but the rest of the wounds were on non-vital parts of the dead body. The injuries were ante-mortem. P.W. 3, Hatem Ali, claimed that he had purchased the land 3 years prior to the incident. He im­planted sesame seeds two days earlier to the incident. On the day of occurrence the accused Yad Ali was ploughing on that land and his son P.W. 4, Nur Mahamdad prevented the accused from ploughing but Yad picked up stone and pelted at Pw Nur Mahammad. The accused brought out a knife and stabbed Nur Mahamad who cried out for help. Upon hearing his cry, Tahej Mandal (the deceased) came and tried to prevent the ac­cused but he was also stabbed by Yad three or four times. The accused brought out a knife and stabbed Nur Mahamad who cried out for help. Upon hearing his cry, Tahej Mandal (the deceased) came and tried to prevent the ac­cused but he was also stabbed by Yad three or four times. Hitem Ali could not come to rescue his son and brother as he had been kept detained by the woman-folk of accused. He claimed that he had purchased the land from one Nur Islam and raised crops on it. He also stated that accused Yad Ali purchased 2 bighas of land from Nur Islam. After the purchase, Yad Ali, the acc­used, cultivated his own land. Nur Islam, the Vendor had his residential house on the land purchased by him (P.W. 3, Hatem) Nur Islam continued to live in the house hut later left the place putting Yad Ali in possession thereof. He claimed that he had demanded of Yad Ali to leave the house. He said that they had a standing dispute with the accused in respect of the possession of the land. The village elders were called 2 days before the occurrence to settle the dispute. Earlier, his three sons had gone to plough the land but the accused drove them out and slapped P.W. 4, Nur Mahammad. Thereafter, he called a few persons, who included P.W. 6, Abdul Gani and P.W.7, Abdul Gafur. Abdul Gafur is the father-in-law of Hatem's son P.W. 4, Nur Mahamad, and P. W. 6. Abdul Gani is the brother of Gafur. Although, P. W. 3, Hatem claimed that he had purchased the house which was in possession of the accused he could not say whether his sale deed showed that any house was purchased by him. It is revealed from his evidence that he had demanded vacant posse­ssion of the house in occupation of Yad Ali and his family, which consisted of women and children. Further, P. W. 3, claimed that the land just adjacent to the house had fruit bearing trees like plantation. He has admitted that the accused was living in the house which he had purchased and also admitted that plantains and usufructs of the land were being enjoyed by the appellant. Further, P. W. 3, claimed that the land just adjacent to the house had fruit bearing trees like plantation. He has admitted that the accused was living in the house which he had purchased and also admitted that plantains and usufructs of the land were being enjoyed by the appellant. His case is that apart from the house and the area in which the fruit bearing trees stood, there was a small adjacent plot which he claimed was in his possession and the accused trespassed upon that plot on the date of occurrence. The case of the accu­sed is that the house and the land were all along in his possession. They were never purchased by P. W. 3, Hatem Ali. I do not find from Ext. 5, the sale deed, that Hatem purchased any house. Further, it does not establish that the disputed land was purchased by Hatem. Another interesting feature is that the ab­sence of any injury on the witness, which the witness tried to explain by saying that he was physically detained by the women folk of Yad Ali, and, therefore, he could not go to the place of occurrence. However, his evidence clearly shows that he was not an eye witness to the occurrence as claimed by him. He had stated to the police during investigation that only upon hearing the cries of Nur Mahammad and Tahej Mandal he went to the place of occurrence. This shows that after the alleged assaults were over the witness went to the place of occurrence. He ad­mitted that the land was not mutated or registered in his name in the revenue records. He denied the suggestion that forming an unlawful assembly he along with others ransacked the house of Yad Ali and assaulted him P.W A, Nur Mohamad son of P.W. 3, Hatem corroborated the evidence of his father as he was bound to do, as the occurrence not only involved the ownership and possession of the land and house, but also to avert the serious charges brought against them by the accused. Interestingly, he denied the existence of any dispute with the accused on any count including the disputation over the possession of the land. He denied the suggestion that he along with others went in a body to forcibly oust the accused from his house. Interestingly, he denied the existence of any dispute with the accused on any count including the disputation over the possession of the land. He denied the suggestion that he along with others went in a body to forcibly oust the accused from his house. He made vari­ous contradictory statements in cross examination regarding the act of possession, which countered the testimony of P. W. 3, Hatem Ali. The witness had stated before the police that the land where the occurrence had taken place was "in the occupation of the accused Yad Ali although it was in the name of his father." P.W. 5, Kachironnessa Bewa, is the wife of the deceased Tahej Mandal. She claimed that the incident happened in the field and she saw Yad Ali stabbing her husband. Learned Judge has very rightly rejected her testimony for the reasons set out in the judg­ment. P.W. 6, Abdul Gani is not an eye witness. He was repor­ted about the occurrence by P. W. 4, Nur Mahammad. It is stated that he was not aware as to whether the land belonged to Nabirun Nessa. Nor did he know that Nabirun adopted and brought up the appellant and gave the landed property owned by her. He said that the accused was living with his old mother in the homestead land. He said that he was not aware of any prior dispute between accused and P. W. 3, Hatem in respect of the land and he never decided any dispute between the parties. P. W. 6, Abdul Gafur came after the incident and heard about it. He proved the seizure list. He said that P.W. 3, Hatem had purchased the disputed land from Nur Islam. The said Nur Islam was the nephew of Nabirunaessa. He admitted that accused Yad Ali's mother got some properties from Nabirun Nessa. He ad­mitted that Yad Ali purchased two bighas of land from Nurul Islam and occupied it. He claims that Yad Ali lived in the dilapidated house purchased by Hatem Ali and Nurul Islam, the vendor, had allowed Yad Ali to occupy the land. He stated that he had no knowledge about the sitting of any meal or panchayat to decide the right or possession of the parties in respect of any land. In cross-examination he admitted that he had no know­ledge about the land purchased by Hatem Ali. He stated that he had no knowledge about the sitting of any meal or panchayat to decide the right or possession of the parties in respect of any land. In cross-examination he admitted that he had no know­ledge about the land purchased by Hatem Ali. P.W. 8, Abdul Sattar proved the seizure of the dagger. P.W. 9, P. Chakraborty, is the S. I. of Police, who investigated the case. He stated, inter alia, that he found injuries on the body of the accused and sent him to doctor. It is seen from the sketch map and from the evidence of witnesses that on the disputed land stood two residential houses, few plantain trees and a compound cum-small area for cultivation, which may otherwise be described as a "kit­chen garden”. 5. The accused claimed that the prosecution side, including Nur Mahammad, Hatem, Tahej Mandal and 10 or 12 persons came to attack him. He entered inside the house but the prose­cution side damaged his house, tried to drag him out physically and assaulted him. The defence examined three witnesses. D. W.T, Dr. Nurul Islam proved that the accused sustained 2(two) incised wounds and 2 other wounds. D.W. 2, Samser Ali, brother-in-law of Nurul Islam, the vendor, stated that at dawn P.W. 4, Nur Mahammad and his party, in a body, trespassed upon the com­pound of Yad Ali and threatened him to quit and vacate the house in occupation of Yad Ali. He stated affirmatively that Yad Ali was in actual physical possession of the home stead land with the compound or the garden. Yad Ali grew vegetables on the land. After the incident he went to the place of occurrence and found the injured persons, saw the doors and walls of the Yad Ali's house in a broken state. He also noticed blood inside the house. In cross-examination it was suggested to the witness that he had authorised P.W. 3, Hatem to forcibly oust Yad Ali from his home-stead land, which he stoutly denied. He clearly states that he is related to both the parties. He denied the suggestion that Yad Ali had purposely broken the doors and windows of the house to frame up a case against the prosecution side. He clearly states that he is related to both the parties. He denied the suggestion that Yad Ali had purposely broken the doors and windows of the house to frame up a case against the prosecution side. The testi­mony of the witness who is related to both the parties disclose (i) that the accused was in actual physical possession of the dis­puted land and the residential houses; (ii) that the prosecution side had demanded of Yad Ali, vacant possession of the house and the land; (iii) that immediately after the occurrence the witness saw blood inside the house of Yad Ali, and (iv) that the witness found the residential house of the accused damaged. The Avidness is the brother-in-law of P.W. 3. Hatem Ali and uncle of P W. 4, Nur Mahammad. He was aged 60 years at the relevant time. D.W. 3, Osman Ali, aged about 62 years proved that the house and the land were in possession of the accused at all releva period. There was no cross-examination of the witness worth the name. 6. On scrutiny of the entire evidence learned Judge he that the land and house were in occupation of Yad Ali and the claim of possession of the prosecution side in respect of the land was untrue. Learned Judge held that the accused enjoyed the fruits of the trees, lived in the houses and the prosecution side as the aggressor who attempted to oust the accused forcibly from the land and house. In short, learned Judge reached the con­clusion that the claim of the prosecution that Hatem Ali was in possession of the land was untrue. Learned Judge also foun that the accused had injuries. Learned Judge also accepted the evidence of defence witnesses that the house of the accused was damaged and/or ransacked by the prosecution side. I find the defence witness No. 2 has affirmatively stated that he notice blood inside the house of the accused. Learned Judge concluded that the accused had the right of private defence but he was not legally justified to cause death or grievous hurt, as he had no "reasonable apprehension in his mind that death or grievous hurt would be caused to him'', and, accordingly found him guilty u/ss. 304 and 26 of the Indian Penal Code. Learned Judge concluded that the accused had the right of private defence but he was not legally justified to cause death or grievous hurt, as he had no "reasonable apprehension in his mind that death or grievous hurt would be caused to him'', and, accordingly found him guilty u/ss. 304 and 26 of the Indian Penal Code. The following facts have been proved by the accused : He was occupying the house along with his old mother, wife and children. He was the lone male member of the family, Hatem Ali had threatened to evict him from the house. It has also been proved that his house was ransacked by the prosecution side. 7. Now, the crucial question is the location of the place of the incident. Did it happen inside the house of the accused, or in the field as claimed by the prosecution ? In the sketch map I do not find that the investigating officer found any blood mark in the field where the dead body was lying. The defence witness who lived close by has affirmatively stated that inside the ran­sacked house of the accused blood was noticed immediately after the occurrence. As such, the statement of the accused that it was the prosecution side who went to his house to assault and forcibly evict him from the house appears to be more true than the prosecution version. It also reveals that early in the morning, about 5 a.m. or may be earlier, a lone male member found himself attacked by a number of persons inside his own house and the accused had none but a few women and children to back him up. The accused had injuries on his person, which had surely been inflicted on him before the fatal injury was given to Tahej Mandal. 8. How could the accused exceed the right of private defence of person and property in causing the injuries on P.W. 4, Nur Mahammad ? P.W. 1, Dr. Kundu has stated that one of the two injuries sustained by Nur was 'grievous'. However, the evidence does not clearly show that the hurt in question falls within any of the clauses covered by Sec. 320 I.P.C. I have doubt whether the prosecution has been able to prove beyond reasonable doubt as to whether it was a grievous hurt. As such, the question of exceeding the right, cannot arise. However, the evidence does not clearly show that the hurt in question falls within any of the clauses covered by Sec. 320 I.P.C. I have doubt whether the prosecution has been able to prove beyond reasonable doubt as to whether it was a grievous hurt. As such, the question of exceeding the right, cannot arise. Assuming that it was a grie­vous injury, the question of exceeding the right of private defence or person and property in inflicting even grievous hurt to P.W.4, Nur Mahammad, in the setting, can not be said to be an act in excess of his right. I leave the question aside, and proceed to consider whether the accused exceeded the right of private defence of person and property in inflicting the injuries on P.W.4, Nur Mahammad and Tabej Mandal, the deceased. Admittedly the defence has fully established the follo­wing circumstances - (i) he was the sole male member of his family residing in that house; the rest were helpless women and children; (ii) he was in actual physical possession of the land and the house; (iii) that the prosecution witnesses-not only attempted to inflict injuries and threatened the accused to forcibly evict him from the land and house but in pursuance of the said threat the prosecution party commenced the assaults late at night or early part of the dawn, an unearthly time, ass­aulted him, caused injuries and ransacked his house, and (iv) blood was found inside his house, which clearly indicates that the aggressors, which included Tahej and Nur Mahammad, had committed the offence of trespass, house trespass, house breaking at dawn, assault, and, he defended himself and his property within his own house and in that incident Nur and Tahej received the knife blows, inside his house. As such, the prosecution witnesses were the aggressors and/or offenders who had committed so many offences before the accused dealt the blows. The settings thus established clearly indicate that it was a case of do or die, more so when the accused was all alone and out-numbered by the aggressors. It was a sudden attack. The accused had no time to take recourse to obtain the pro­tection of the public authorities. The bare fact that the accused sustained some simple injuries with blunt weapon never took away his right to protect his limb and life and save himself from unlawful, forcible and illegal dispossession by the aggres­sors. It was a sudden attack. The accused had no time to take recourse to obtain the pro­tection of the public authorities. The bare fact that the accused sustained some simple injuries with blunt weapon never took away his right to protect his limb and life and save himself from unlawful, forcible and illegal dispossession by the aggres­sors. In my opinion the case of the accused is abundantly covered by sec. 97 of the Indian Penal Code. He had the right of private defence of person and property. In the instant case the accused, a peasant, took up the plea of right of private defence right from the very beginning and established the same. The prosecution story regarding possession of the land, the place of occurrence and the entire structure have been shattered by the testimony of the defence witnesses, who are disinterested. Under these circumstances, I am constrained to hold that the prosecution has failed to establish its case against the accused be­yond reasonable doubt. In Munshiram vs. Delhi Administration, AIR 1968 SC 102 , Rajani Kant (1970) 2 SCC 866 it has been well settled that even the accused does not plead self defence it is open to the Court to consider such a plea if it is availa­ble to the accused from the material on record. The accused was in settled possession of the land and the house; he was sought to be forcibly evicted without any authority of law, and therefore, he had the right to defend his property and person. Learned Judge has held that causing grievous hurt to Nur Mahammad and one fatal injury which caused the death of Tahej Mandal were uncalled for and unnecessary and, for those acts of the accused, learned Judge held that the accused had exceed­ed his right of private defence, overlooking the salient feature of the case in favour of the accused. 9. In the instant case, learned Judge has held that the acc­used had the right of private defence as the prosecution wit­nesses were the aggressors who committed the offence of tres­pass and there was reasonable apprehension of danger to the body of the accused. Some acts, which amount to offences under 'the Code', were committed by the prosecution witnesses and, therefore the accused had the right of private defence. Some acts, which amount to offences under 'the Code', were committed by the prosecution witnesses and, therefore the accused had the right of private defence. It is seen that in the course of the continuance of the assaults by the prosecution the accused dealt the blows. The right of the accused, therefore, was available against the dangers which were imminent, present and real. There is no finding that it was retributive. In fact, there is no material to reach the conclu­sion. It is difficult to expect from a person exercising the ri­ght, being outnumbered and attacked within his house to weigh with the golden scales what maximum amount of force was ne­cessary to keep himself within his right. All reasonable allow­ances must be given to a bonafide defender of person and pro­perty when he acts with the instinct of self preservation strong upon him but pursues his defence a little further than may be strictly necessary in the circumstances, to avert the attack. It is hardly possible to expect a person under assault to modulate his de­fence step by step according to the attack. The effect of the cumulative circumstances like house breaking by a large num­ber of persons at the unearthly hour, possibly at night, by so many person and, the injuries on the accused, simple hurt those might have been, necessarily caused, reasonable apprehension that at least grievous hurt would be caused to him and/ or he would be done to death. A person, who is in imminent and reasonable danger of losing his life or limb may inflict any harm even extending to death on his assailants when the assault is attempted or directly threatened. In the instant case, it was not an attempted or threatened assault, but the accrued exercised the right in the course of his struggle for survi­val. To judge whether the right of private defence has been exceeded, a person cannot weigh things in too fine a set of scales or use the golden scales; vide - Yogendra Morarji vs. State of Gujarat, AIR 1980 SC 660 ; Amjad Khan vs. State, AIR 1952 SC 165 and Biran Singh vs. State of Bihar, AIR 1975 SC 87 . The reasonable apprehension in the mind of an accused exercising the right of self defence is to be judged ob­jectively with inference to the events and deeds at that crucial time and in the total situation of surrounding circumstances. If the circumstances indicate that there was real apprehension to his body, life and property, a person acting in self defence cannot be said to exceed the right of private defence. The acc­used faced an imminent peril of limb and life of himself and the members of his family. He was all alone. The timing of the incident is also relevant. The fact that his house, was ran­sacked, doors and windows broken, injuries sustained by him in the attack by a number of able bodied persons are sufficient to hold that the accused had the right of private defence of person and property. It is difficult to expect from the accused to be careful and circumspect to modulate the precise force necessary to repel the attack to extricate himself from the grave situation. Even if the accused in the heat of the moment carried his defence a little further than what was precisely necessary when calculated with Decision and exac­titude by a calm and unruffled mind, the law makes due allo­wance for it; vide - Md. Ramzani vs. State of Delhi, AIR 19W SC 1341 : George Dominic Verkey vs. State of Kerala, AIR 1971 SC I20B and Jaidev vs. State of Punjab, AIR 1963 SC 612 . In fact, learned Sessions Judge has very rightly rejected the en­tire prosecution case. The story built up by the prosecution as to the place of occurrence, the cause and origin of the attack were disbelieved. The accused inflicted the injuries in the course of the attack by the prosecution since. Situated as he was, in my opinion, the accused had the right of private defence of person and property and never exceeded his right. Accordingly he is acquitted of the charges u/s. 304 and 326, I. P. C. 10. In the result, the conviction and sentences are set aside. The appeal is allowed.