By Court The appellants of this appeal who are' five in number have been convicted by Baleshwar prasad singh, Ist Addl. Sessions Judge, Giridih in session Trial no. 36/78 --------- 56/83 under different provisions of the Indian Penal Code. All the appellants were charged under section 148 of the Indian penal Code. The appellant nos. 2 to 5 were charged under section 302/149 of the Indian penal Code whereas the appellant no. 1 was charged under section 302 of the Indian penal Code for causing death of Mohan Singh as also under Section 307 of the Indian penal Code for attempting to kill Bhuneshwar Singh. Appellant no. 2, 4 and 5 were also charged under section 324 of the Indian penal Code and appellant no. 5 was charged for commission of an offence under section 325 of the Indian penal Code. 2. The genesis of the occurrence is a dispute over possession of land which was claimed by both he parties. Allegedly at about 7 a.m. on 3875 Ram Narain Singh, informant of the case wag ploughing his land along with hi&' sons Ayodhya Singh Mahesh Singh and brothers Bhuneshwar Singh, Mohan Singh and nephews Nagendra Singh and Puran Singh. Allegedly rat that Jagdish mahto who died during the pendency of the trial, Ganenath Mahto (accused no. 2) Dewa Mahto (accosed no. 3) and Luchan Mahto who also died during the pendency of the trial, Baijnath Mahto (accused no. 1). Sonaram Mahto (accused no. 5 and• another son of Luchan Mahto whose name he did remember came there arm' ed with Lathi, Sword, Farsa and Tabla and started abusing the informant and his family members Allegedly the informant told the accused person that they, would plough the land for sowing paddy. upon that informant told them that the dispute may be settled down in the village but they did Dot pay any heed thereto and accused Baijnath Mahto gave a sword blow on the head of Mohan Singh It was further alleged that Nagendra Singh was assaulted with Lathi by Luchan Mahto, Ayodhya Singh was assaulted by accused Dewa Mahto with Farsa and by Ganenath Mahto with Lathi. 3. 3. Allegedly Baijnath Mahto also gave a sword blow on the hand of the Bhuneshwar Singh Accused Sonaram Mahto gave blows of Lathi on the head and hand of the informant as a result whereof he sustained injuries on his head and hand and his right hand was also fractured. It was also alleged that accused Dewa Mahto gave a Farsa blow to the informant. It is stated that the accused persons further assaulted the family members of the informant with Lathi and other weapons and the said persons would be able to tell as to who was assaulted with what weapon. 4. Allegedly after the aforementioned occurrence the accused persons fled away towards karmatand, upon hearing hulla Binda Thakur and Mahabir Thakur came from the village at the time of occurrence' 5. Chandru Thakur, Surya prasad Thakur Ramu Thakur and others allegedly took the injured persons to their house and there after they were taken to hospital. 6. The fardbeyan was given by the informant aforementioned (EXt. 2) at the 'State Dispensary, petarbar which was at a distance of four miles from the village ordana where the occurrence took place at about 10 a.m. on the basis whereof the first information report was lodged (Ext. 6). 7. It was also alleged that as a result of the injuries sustained by Mohan Singh, he died in the hospital. 8. on the other hand, the defence version of the occurrence is that the plot in question namely plot nos. 3102 belong to them and they had all along been in possession thereof. Allegedly on 3.8.75 at about 7 am. when they had been ploughing the said plot which they allegedly purchased from one kamleshwar kuar in the year 1964; the informant Ram Narain Singh, Mohan Singh (since deceased) Bhuneshwar Singh (P. W.7), Nagendra Singh (P. W. 6), Ayodhya Singh (P. W. 1), Mahesh Singh (P.W.2) and Puran Singh (P.W. 3) came there armed with Tabla, sword etc and asked them not to plough the said land and upon that allegedly mohan Singh gave Tabla blow to Dilchand Mahto and Bhune shwar Singh also gave a tabla blow to Luchan Mahto (since deceased). Allegedly Nagendra and Puran also assaulted Sonaram and Ram Narain Singh assaulted Baijnath Mahte with tabla. 9. It is alleged that upon receiving the aforementioned assault, Baijnath mahto became unconscious. Allegedly Nagendra and Puran also assaulted Sonaram and Ram Narain Singh assaulted Baijnath Mahte with tabla. 9. It is alleged that upon receiving the aforementioned assault, Baijnath mahto became unconscious. The accused persons further denied that Baijoath Mahto had assaulted Mohan Singh. It is further the case of the defence that the injured persons were also taken to State Dispensary and they were examined by the doctor and a fardbeyan of the accused Baijnath Mahto was recorded by P.P. Singh, A.S.I and a case was instituted against the informant and others. It was further alleged that they have been implicated in the aforementioned case by the in formant and his party in order to save their skin. 10. From the facts stated hereinbefore, it is evident that there is no denial of the genesis of the occurrence and in short the defence of the accused person is they have exercised their right of private defence. 11. Eleven witnesses were examined on behalf of the Prosecution and five witnesses were examined on behalf of the defence including Baijnath Mahto (appellant no. 1). various documents were also filed on behalf of appellant in order to prove their title and possession over the aforementioned plot no. 3102 appertaining to khata no. 3 of village Ordana. 12. The learned court below in his judgment took into consideration the documentary as well as oral evidence on records and came to the conclusion the that accused persons had been in possession of the land in question. It was further held that they have got their title upheld in respect of the other lands also which were covered by two deed of sale (Ext. B. and B/1) in T. S. no. 760/66 EXt. D) which was affirmed in appeal in T. A. no 128/61 (Ext. E) 13. It has further been found by the learned court below that the rent in respect of the land in question had all along been paid by the accused persons. 14. Taking thus, all these documents into consideration the learned court below came to the conclusion that the accused persons had been in settled possession of the land where the occurrence took place and in respect whereof dispute arose between the parties. 15. 14. Taking thus, all these documents into consideration the learned court below came to the conclusion that the accused persons had been in settled possession of the land where the occurrence took place and in respect whereof dispute arose between the parties. 15. with regard to the assault of Mohan Singh (since deceased), the learned court below came to the conclusion that there are contradictory statements of the two doctors namely P.W.9 and P.W. 11 but held that the deceased was given Lathi blow after he fall down on receipt of sword blow of Baijoath. 16. However with regard to the number of injuries allegedly received by the deceased, it observed : "Hence in that view of the matter the evidence of the witnesses on fact is not fit to be accepted and on that ground also the entire case of the prosecution be comes highly suspicious. No doubt, both the doctors P.Ws. 9 and 11 have found two lacerated wounds on the dead body of the deceased but as I find from the evidence of Nagendra Singh who is P.W.6, that when deceased Mohan Singh fell down he was also givenlathi blows by other accused persons. These that the deceased was also assaulted with Lathi which it is clear hard and blunt sub stance and hence, the above submission made on behalf of the learned lawyer for the accused persons can not be accepted." 17. with regard to the plea of the defence that the accused persons had also received injuries and one injury suffered by Luchan Mahto was grievous one, the learned court below held that it has not been shown beyond any reasonable doubt by the accused persons that they had also received injuries as they did Dot put any question to the doctor who prepared the injury reports (Ext. I to I/4) in cross examination although the said doctor Shri Ram Sagar Chowdhary was examined as P. W. 9. The learned court below in this connection observed: In that view of the matter in my opinion this fact creates doubt regarding the fact that some of the accused person had also received injuries on their persons. Thus, in view of the fact that it is not established that the some of the accused persons had also received injuries on the in person alleged to have caused by the prosecution party." 18. Thus, in view of the fact that it is not established that the some of the accused persons had also received injuries on the in person alleged to have caused by the prosecution party." 18. The learned court below, therefore, came to the conclusion that all the accused persons formed unlawful assembly with a common object to kill the deceased and in prosecution of the common object/Baijnath Mahto gave sword blow to him on his head and on other Part as a result of which later on he died. 19. with regard to the accusation that the appellants are guilty of the offences under Section 323, 324 and 325 of the Indian penal Code, it was held by the learned court below that they can not be held guilty in respect thereof as they have exercised their right of private defence. 20. with regard to the charge under section 307 of the Indian penal Code as against Baijnath Mohto the learned court below held that the said charge has not been proved as the doctor who had examined the victim Bhuneswar Singh was not examined. 21 In short, the learned court below held that the accused have exceeded their right of private defence in causing the death of Mohan Singh. It was further held that the charge under section 148 of the Indian penal Code bas also been against all the accused persons. 22. Mr. R. K. Mahto, the learned counsel appearing on behalf of the appellants submitted that the learned court below misdirected it selt in passing a judgment of conviction inasmuch as having found that the appellant are owners of the property in question and having been in settled possession thereof and further in view of the fact that all the accused persons received injuries on their vital parts and one of the accused Luchan Mahto (since deceased) received a grievous injury, the learned court below ought to have held that the appellants rightly exercises their right of private defence both in respect of their property and persons. 23. The learned counsel further submitted that in any event in view of the findings arrived at by the learned court below itself to the effect that the appellants have only exceeded their right of private defence, they could not have been convicted under Section 302 of the Indian penal Code or under Section 302/149 of the Indian penal Code. 23. The learned counsel further submitted that in any event in view of the findings arrived at by the learned court below itself to the effect that the appellants have only exceeded their right of private defence, they could not have been convicted under Section 302 of the Indian penal Code or under Section 302/149 of the Indian penal Code. 24. with regard" to the charge under Sect. ion 302/149 of the India penal Code, the learned counsel submitted that from a perusal of the charge it would be evident that the appellants were charged for forming an unlawful assembly with a common object of trying to dispossess the informant Ram Narain Singh from plot nos. 3102, 3178 and 3093 appertaing to khata no.3 of village Ordana and as such as there was no common object on the part of the appellants to cause the death or grievous injury to any body and thus their conviction under Section 302/149 of the Indian Penal Code must be held to be bad in law. 25. Mr. K. K. Jhun jhunwala, the learned counsel appearing on behalf of the State and Mr. Sinha, the learned counsel appearing on behalf of the informant, on the other hand, submitted that the informant and other witnesses examined on behalf of the prosecution have been acquitted in the counter case in respect whereof the first information report was lodged by the appellant no. 1. It was further submitted that the learned court below has rightly convicted the appellants under Section 148, 302 and 302/149 of the Indian penal Code as they had assaulted the deceased with deadly weapons. 26. It was further submitted that even assuming that the informant and his associates tried to commence trespass upon property in dispute which had been in possession of the accused persons, they had no right to use more force than was necessary to prevent the commission of trespass. 27. Section 97 and 100 of the Indian Penal Code reads as follows: "97: Right of private defence of the body and of property-Every person has a right, subject to the restrictions contained in Section 99, to defend: First-His own body, and the body of any other person; against any offence affecting the human body; Secondly- The property. 27. Section 97 and 100 of the Indian Penal Code reads as follows: "97: Right of private defence of the body and of property-Every person has a right, subject to the restrictions contained in Section 99, to defend: First-His own body, and the body of any other person; against any offence affecting the human body; Secondly- The property. whether movable or immovable, of himself or of any other person, against any Act, which is an offence falling under the definition of theft, robbery, mischief or criminal trespass." "100: When the right of private defence of the body extends to causing death: The right of private defence of the body extends, under the restrictions mentioned in the last proceeding 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 be 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," 28. It is well known that a rightful owner is entitled to turn out physically a trespasser or one who tried to intrude upon his right. However, in doing so he is not entitled to use more force than is reasonable for his defence. 29. It is further well known that a right of private defence embraces within its fold not only to defend one's body but also to defend the body of other persons. 30. It is also well settled that for the purpose of invoking Section 97 of the Indian Penal Code a reasonable apprehension of death or grievous hurt to the victim concerned may give rise to right of private defence and it is not necessary that the apprehension must have materialised. 31. The instant case has to be judged keeping in view the aforementioned principles of law. 32. 31. The instant case has to be judged keeping in view the aforementioned principles of law. 32. From a bare analysis of the judgment passed by the learned court below, it would be evident that while it accepted the plea that the accused persons were in possession of the land in question and further accepted that they had rightly exercised their right of private defence for causing simple and/or grievous hurt to some of the prosecution party, it purported to hold that the accused persons have exceeded their right of private defence for causing murder of Mohan Singh inasmuch a1 the accused persons have not proved injuries on their persons and particularly the grievous injury on the person of Luchan Mahto (since deceased) by cross-examining Dr. Ram Sagar Choudhary (P. W. 9) although he is author of their injury reports (Exts. 1 to 1/4). 33. In our opinion, the learned court below has completely misdirected itself in coming to the conclusion that the accused persons have exceeded their right of private defence. 34. It is now well settled that in proving the right of private defence, the burden of proof on the accused persons is not as onerous as that of the prosecution. In a case where the accused persons have raised a plea of right of private defence, a mere probability of the existence of the ingredients of the provisions contained in Sections 96 to 105 of the Indian Penal Code would serve the purpose. In other words the burden of proof upon the accused persons to exercise right of private defence will be what is required in a civil case in contradistinction to the rigour of burden of proof upon the prosecution to prove the guilt as against the accused persons. 35. It is true, that when P. W. 9 was cross-examined, it was open to the accused persons to confront him with the injury reports prepared by him in respect of injuries found on the persons of the accused persons including that of Luchan Mahto (Since deceased). However it was for the accused persons to take a decision as to whether at that stage they would disclose their specific defence or not. 36. However it was for the accused persons to take a decision as to whether at that stage they would disclose their specific defence or not. 36. In any event au omission on the part of the accused persons to place before P. W. 9 the injury reports by itself would not result in failure of the defence case; particularly when they have brought on records all the injury reports which have marked as Exts 1 to 1/4 without there being any objection from the side of prosecution. 37. Ext. 1 show that Baijnath (appellant no. 1) received the following injuries: Inj. I One incised wound 4"X 11/2"X 1/4" right upper arm simple sharp cutting aged about within 24 hours, both tail down, word incised 4"X 1/4"X 1/6". Inj. II One incised wound 3"X 1"X skin deep, upper part of the right forearm. simple, sharp cutting aged about within 24 hours. Inj. III One incised would 21/2 X 1/6" X 1/6" right buttock simple sharp cutting aged about 24 hours. Inj IV On incised would 31/2"X1/4"X1/6" right keen simple sharp cutting, aged about 24 hours. Ext. 1/1 shows the injuries received by Sona Ram Mahto which were as follows: Inj. I One lacerated wound 3/4"X 1/4"X 1/6" cronny of head on left side simple, hard and blunt weapon aged about within 24 hours. Inj. II Incised wound 21/2"x 1/4"X 114" back side of the upper surface of the left shoulder scapular region, simple, sharp cutting weapon aged about within 24 hours. Inj. III Three incised wound 1/3"X1/6"X1/6" middle (ii) 1/4"X1/6Xl/6" ring and (iii) 1/4X1/6" little finger. The injuries received by Dilchand Mahto bas been proved by Ext. 1/2 which are as follows: Inj. I Only one incised wound 2"X1/4X (illegible) bone not fractured aspect of the left elbow, simple, sharp cutting weapons, aged about within 24 hours. Ext. 1/3 is the injury report of Luchan Mahto which reads as follows: Inj. I One incised wound 21/2 "X3/4"X1/2" upper part of the joint of the waist on right side kept under of segret, sharp cutting weapon aged about within 24 hours only. Inj. II One incised wound 11/2"X1/2”Xl/4" right keen inner side, simple, sharp cutting weapon aged about withen 24 hours only. Mark of identification one old seer 3/4"X 1/4" over left foot inj. no. I and II. W. S. The injury no. Inj. II One incised wound 11/2"X1/2”Xl/4" right keen inner side, simple, sharp cutting weapon aged about withen 24 hours only. Mark of identification one old seer 3/4"X 1/4" over left foot inj. no. I and II. W. S. The injury no. one I (ilIigible) was kept under observation regarding its nature. 38. From a perusal of Ext. 1/4 which was submitted latter on, it is clear that Luchan Mahto suffered a grivious injury i. e. injury no. 1 of Ext 1/3 at the hands of the prosecution party. 39. It, is therefore, clear that four persons on the side of the accused persons received injuries and some of them had multiple injuries on their persons. 40 It is, further, evident from the Ext. 1/4 that injury no. 1 suffered by Luchan (since deceased) was grievious in nature. Some of the injuries on the Persons of the accused had been caused by sharp cutting weapons. 41. It is, therefore, clear tat the prosecution party led by the informant and the deceased Mohan Singh had gone to the place of occurrence variously armed. 42. It is also evident from the evidence of D. W. 4 Baijnath who is appellant no. 1 in this appeal that the appellants had already been ploughing the field when the informant and his men Game there. 43. In fact the charge framed as against the appellant nos 2 to 5 show that they were charged for forming a common object to dispossess the deceased from some lands. 44. From the statements of D. W. 4 aforementioned it is further clear that he accused persons cannot be said to have a premeditation for causing the death of Mohan Singh or causing grievoius injuries of the others. 45. The learned court below itself found that the accused persons had been in settled possession of the properties in question from long before and if they had gone to the field for ploughing the field, they did so in their own right. The informant and his men, therefore had no right to commit trespass upon the said land. 46. 45. The learned court below itself found that the accused persons had been in settled possession of the properties in question from long before and if they had gone to the field for ploughing the field, they did so in their own right. The informant and his men, therefore had no right to commit trespass upon the said land. 46. Section 97 of the Indian penal Code which have been quoted hereinbefore clearly states that the right of private defence can be exercised in order to prevent an Act, trespass Such a right can also be exercised in order to driving away the trespassers from the land which is in settled possession of the accused. 47. However even assuming that for that purpose viz in order to prevent the Act, of trespass committed by the informant and his men, the accused persons could not have caused death of Mohan Singh but in the instant case as noticed hereinbefore the prosecution party came variously armed and when a fight took place, four persons from the side of the accused persons also received various injuries on their persons including one grievous injury received by Luchan. 48. The question, therefore, is as to whether in such a situation the accused persons were entitled to cause death of Mohan Singh in exercise of their right of private defence. 49. In our opinion the answer is in the affirmative. 50. from the bare perusal of Section 100 of the Indian Penal Code it would be evident that once a bonafide belief occurs in the mind of the accused persons by reason of some overt acts on the part of the prosecution that a grievious injury or death is likely to be caused in that situation it is open to cause death of the aggressor in exercise of his right of private defence which as noticed hereinbefore not only extends to his person but also to the extent of saving the body of other persons. 51. The learned counsel appearing on behalf of the respondents however, contended that in facts of the case, the accused persons must be held to have exceeded their right of private defence in terms of Section 99 of the Indian Penal Code in view of the fact that they could run to the police station in order to protect themselves. This submissions, in our opinion, is wholly misplaced. 52. This submissions, in our opinion, is wholly misplaced. 52. Relevant portion of Section 99 of the Indian Penal Code reads as follows:- "There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. 53. In Puran Singh v. State of Punjab reported in AIR 1975 SC 1674 a Division Bench of the Supreme Court stated the law thus:- "It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself of when his property has been the subject-matter of trespass and mischief he should allowed the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggre3sion on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation.” 54. This aspect of the matter has also been considered in Deo Narain v. State of U. P. reported in 1973 Cr. Law Journal 677 and in Abdul Kadir v. State of Assam reported in 1985 Cr. Law Journal 1898. 55 In this case such a plea appears to be absurd inasmuch as admittedly the distance of the police station is four miles from the place of occurrence. It is thus, not exepected on the accused persons to run to the public authorities by travelling a distance of four miles when the informant and his men had already come to their field with an intention to commit trespass and armed with various weapons and that too when assault of their persons had already started. It is thus, not exepected on the accused persons to run to the public authorities by travelling a distance of four miles when the informant and his men had already come to their field with an intention to commit trespass and armed with various weapons and that too when assault of their persons had already started. 56 Taking thus, all facts and circumstances of the case into consideration, we are of the view that the judgment of the learned court below to the effect that the accused persons had exceeded their right of private defence can not be sustained. 57. In view of our findings, aforementioned it is not necessary to consider the other points raised in this appeal. In the result, this appeal is allowed and the judgment of conviction and sentence passed by the learned court below is set aside and the appellants are discharged from the bail bonds. Appeal allowed.