JUDGMENT : B.K. Behera, J. - The appellan Dibakar Barik along with the co-accused Bimbadhar Barik and Siba Barik stood charged u/s 302 read with Section 34 of the Indian Penal Code ('the Code', for short) with having committed the murder of Radhamohan Barik (to be described hereinafter as the deceased Radhamohan) on April 25, 1981 in village Budhapanka in the district of Dhenkanal in furtherance of their common intention. The Appellant Lokanath stood separately charged u/s 302 of the Code with having committed the murder of Kastu Barik (to be described hereinafter as the deceased Kastu) on the same day and at the same place and time by assaulting him to death. The two Appellants with the co-accused Siba and Bimbadhar also stood charged u/s 324 read with Section 34 of the Code for having voluntarily caused hurt to Bhajaman Barik (P.W. 2) and Ranjan Barik (P.W. 4) at the same occurrence. To bring home the charges, the prosecution had examined seventeen witnesses and had placed reliance on a number of documents. The plea of the defence was one of denial of the allegations and of false implication and according to them, whatever had been done by the accused persons was in exercise of their right of private defence both of persons and property. 2. On a consideration of the evidence, the trial court held that the members of the Appellants party were in actual possession of the land on which the occurrence had taken place and that the party of the deceased had taken law into their own hands and had entered the land in the possession of the Appellants party and had been destroying the ridges and preparing new ones and the findings of the trial court would further show that the party of the deceased were the aggressors and were armed with weapons and had caused injuries to the co-accused Siba and Bimbadhar. The learned trial Judge has accepted the case of the prosecution that the Appellant Lokanath had killed the deceased Kastu by pushing a Barchha into the belly of the latter and that the Appellant Dibakar killed the deceased Radhamohan by attacking him on a vital part by means of the knife (M.O. II). The learned trial Judge has accepted the case of the prosecution that the Appellant Lokanath had killed the deceased Kastu by pushing a Barchha into the belly of the latter and that the Appellant Dibakar killed the deceased Radhamohan by attacking him on a vital part by means of the knife (M.O. II). He has held that the Appellants did not have the right of private defence of the persons of some members of their party and had also the right of private defence of their property, but the Appellants had exceeded their right. In addition, it has been held that the acts of the Appellants had been committed while they had been deprived of the power of self control by grave and sudden provocation. The learned Judge has held that the Appellants were not guilty of the charge of murder, but could be convicted u/s 304, Part I of the Code. They have accordingly been convicted and sentenced to undergo rigorous imprisonment for a period of eight years. The Appellants and the co-accused persons have been acquitted of the other charges. 3. The two Appellants who have been convicted have preferred the criminal appeal and the State is in appeal against the order of acquittal recorded in respect of the co-accused Siba and Bimbadhar. It has not preferred any appeal against the order of acquittal of the two Appellants with regard to the charge of murder. 4. It is not disputed at the Bar and indeed, it cannot be that the two deceased persons had died homicidal deaths. Appearing on behalf of the Appellants, Mr. Nayak has not challenged the findings recorded by the trial court that one of the Appellants had killed the deceased Kastu and that the other had killed the deceased Radhamohan. He has, however, strenuously urged that the Appellants had not exceeded the right of private defence of their persons and property and were, therefore, entitled to have an order of acquittal recorded in their favour. He has, however, strenuously urged that the Appellants had not exceeded the right of private defence of their persons and property and were, therefore, entitled to have an order of acquittal recorded in their favour. The learned Additional Government Advocate has supported the order of conviction against the two Appellants as well-founded and has contended that the learned trial Judge went wrong in not carefully discussing the evidence against the co-accused Siba and Bimbadhar and as both of them had pulled the deceased Radhamohan down before the Appellant Dibakar could attack and kill him, they had shared the common intention with the two Appellants and ought to have been convicted for the same offence. 5. The order of acquittal in respect of the charge u/s 324 read with Section 34 of the Code appears to be well-founded as the fact remains that the party of the deceased were the aggressors and had gone upon the land in possession of the Appellants party being armed with instruments and the party of the Appellants were within their rights to inflict injuries on P.Ws. 1, 2 and 4 in exercise of the right of private defence of their persons and property. 6. After a discussion of the evidence, the trial court has held that for about eighteen years past, the co-accused Siba had been in exclusive possession of the land in question till the date of occurrence and that this had been taken note of by the members of the village Panchayat who had advised the party of the deceased to take recourse to law. Instead of seeking redress in the court of law, the party of the deceased, as held by the trial court, took law into their own hands and were rank trespassers and aggressors. The learned trial Judge has further come to the conclusion that it could not be said in the facts and circumstances, that the Appellants had time to take recourse to the courts of law and as the deceased's party were the aggressors, the Appellants had the right to repel the aggression by use of such force as was required for the purpose. Apart from the question of right of private defence of property, as earlier indicated, the co-accused Siba and Bimbadhar had been assaulted at the hands of the party of the deceased. Apart from the question of right of private defence of property, as earlier indicated, the co-accused Siba and Bimbadhar had been assaulted at the hands of the party of the deceased. As the evidence would show, the deceased Kastu, being armed, had first given the challenge at the scene of occurrence. 7. The right of private defence is one of defence and not of retribution. It is not available against an unarmed and unoffending individual. It must, however, be kept in mind that this right is a valuable one provided in the Code with social purpose and as observed by the Supreme Court in Vidhya Singh Vs. State of Madhya Pradesh this right is not to be construed narrowly. It has been a settled principle of law that it is difficult to expect a person exercising this right in good faith to weigh with golden scales what maximum amount of force is necessary to keep within the right and every reasonable allowance should be made for the bona fide defender if with the instinct of self-preservation strong upon him he pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack. It would be wholly unrealistic to expect a person under assault to modulate his defence step by step according to the attack. 8. The burden of proof when the accused pleads to have committed an act in exercise of his right of private defence rests on the accused, but it is not of the same rigour as the burden on the prosecution to establish the charge beyond reasonable doubt. As in a civil case, it is enough for the accused to show that the preponderance of probabilities in favour of such a plea. 9. As provided in Section 99 of the Code, the right of private defence is no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. As in a civil case, it is enough for the accused to show that the preponderance of probabilities in favour of such a plea. 9. As provided in Section 99 of the Code, the right of private defence is no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 of the Code provides: The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: First: Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise by the consequence of such assault; Thirdly: An assault with the intention of committing rape; Fourthly: An assault with the intention of gratifying unnatural lust; Fifthly: An assault with the intention of kidnapping or abducting; Sixthly: An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. The law undoubtedly authorises a person who is under a reasonable apprehension that his life or that of another would be in danger or in risk of grievous hurt to inflict death upon the assaultant either when the assault is attempted or directly threatened, but the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self-defence. It must be proportionate to and commensurate with the quality and character of the act it is intended to meet and what is done in excess is not protected in law. It must be proportionate to and commensurate with the quality and character of the act it is intended to meet and what is done in excess is not protected in law. In the instant case, the facts and circumstances borne out by the evidence discussed in the body of the judgment of the trial court, which need not be re-stated, would not reasonably lead one to the conclusion that at the time the two deceased persons were killed, their acts were such as had endangered the life of anyone of the party of the Appellants or that there was apprehension that but for killing them, death or grievous hurt would be the consequence. The Appellants must, therefore be held to have exceeded their right of private defence of persons. 10. As to the right of private defence of property, the party of the Appellants were in possession of the land and the view of the trial court was that the party of the deceased had taken law into their own hands and had gone upon the land without taking recourse to appropriate authorities under the law. 11. Section 103 of the Code provides: 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 wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: First - Robbery; Secondly - House-breaking by night; Thirdly - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as place for the custody of property; Fourthly - 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. As provided in Section 104 of the Code, 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 the last preceding section, 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 wrong-doer of any harm other than death. In the instant case, the first three clauses of Section 103 of the Code have no application. The findings of the trial court would lead one to a reasonable conclusion that the party of the deceased had committed mischief within the meaning of the fourth clause of Section 103 of the Code. It cannot, however, be said that this offence had been committed under such circumstances as might reasonably cause apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised by voluntarily causing the death of the wrongdoer. The learned trial Judge was, therefore, justified, in my view, to record a finding that the Appellants had exceeded the right of private defence of their property. 12. It has been held by the learned trial Judge that what had been done by the Appellants had been done under the impulse of grave and sudden provocation within the meaning of the First Exception to Section 300 of the Code and the offence would be culpable homicide not amounting to murder as the two Appellants had the intention of causing the deaths of the two deceased persons by assaulting them to death by means of dangerous instruments by attacking and hitting on vital parts. For the foregoing reasons, I would uphold the order of conviction recorded against the two Appellants u/s 304 Part I of the Code. 13. As rightly submitted by the learned Additional Government Advocate, the learned trial Judge has not fully discussed the evidence separately against the co-accused persons Siba and Bimbadhar with regard to the charge u/s 302 read with Section 34 of the Code. A Court of Sessions should be alive to its responsibility of discussing the evidence against an accused in respect of a charge and should record a specific finding thereon. A Court of Sessions should be alive to its responsibility of discussing the evidence against an accused in respect of a charge and should record a specific finding thereon. This has not been Jane in the instant case in details and only a statement has been recorded in paragraph 21 of the judgment that the evidence points out that the Appellant Dibakar alone assaulted the deceased Radhamohan on a vital part of his body by means of a knife resulting in his death and even if it is believed that the co-accused Siba and Bimbadhar had pressed the deceased Radhamohan, it cannot be said that they had the common intention with the Appellant Dibakar to kill him. It is however, noticed by me that the prosecution has failed to establish by clear and acceptable evidence that the two acquitted co-accused had shared the common intention with the Appellant Dibakar in killing the deceased Radhamohan. 14. P.Ws. 1 to 4, 9 and 10 had been examined as witnesses to the occurrence. Of them, P.W. 1 was the first-informant and he was no other person than the brother of the Appellant Siba and the deceased Kastu. He had testified in the court that the two-co-accused Siba and Bimbadhar pressed down the deceased Radhamohan whereafter the Appellant Dibakar pierced knife below the right arm-pit of the deceased Radhamohan. P.W. 2 had also spoken about it. But this was conspicuous by its absence in the evidence of P.Ws. 3, 4, 9 and 10. 15. It is important to keep in mind that in the first information report lodged by P.W. 1 and his statement in the course of investigation, P.W. 1 had not spoken about this act on the part of the two-co-accused persons. No doubt, the first information report strictly speaking cannot be treated as substantive evidence and it can only corroborate or contradict the evidence of the maker of it, but as laid down by the Supreme Court in Ram Kumar Pandey Vs. State of Madhya Pradesh omissions of important facts in the first information report would affect the bona fides of the prosecution case being relevant u/s 11 of the Evidence Act. If P.W. 1 had seen this act on the part of two co-accused persons, he would certainly not omit to mention this fact in the first information report and in his earlier statement in the course of investigation. If P.W. 1 had seen this act on the part of two co-accused persons, he would certainly not omit to mention this fact in the first information report and in his earlier statement in the course of investigation. P.W. 2, the son of the deceased Radhamohan, would have certainly informed P.W. 1 and others that he had seen these two co-accused persons pressing down his father in which case P.W. 1 would have mentioned about it when he lodged the first information report. 16. For these reasons, it would appear that the allegation of pressing down the deceased Radhamohan by the two-accused persons is the product of an after-thought and the two co-accused persons could not be attributed with the common intention with the Appellant Dibakar in killing the deceased Radhamohan. The order of acquittal recorded in their favour is, therefore, justified although I should have been happy had the learned trial Judge discussed this aspect in greater details without mentioning about it in a cryptic manner in the concluding portion of the judgment. 17. The learned Counsel for the Appellants had submitted that in case the order of conviction recorded against the Appellants is maintained and for the reasons recorded by me, it should be maintained the sentences of imprisonment already undergone by the two Appellants would meet the ends of justice. The occurrence had taken place on April 25, 1981. The Appellants had been taken into custody immediately thereafter and have remained in custody throughout during the investigation and trial and thereafter. In the unfortunate circumstances in which the two deceased persons were done to death, it would be just and reasonable, in my view, if the sentence of imprisonment passed against the two appellate are reduced to the periods already undergone. 18. In the result, the Government Appeal fails and is dismissed. The Criminal Appeal preferred by the two Appellants is dismissed subject to the modification of sentence of imprisonment to the periods already undergone. The two Appellants be set at liberty forth with, if not required in any other case. H.L. Agrawal, C.J. 19. I agree. Final Result : Dismissed