Judgment SATYABRATA SINHA and DHARAMPAL SINHA JJ. 1. The appellants who are four in number were tried for commission of various offences along with Kanthe Mahto, Duble Mahto and Niran Mahto (since acquitted) for causing death of Sen Prasad Dogra and Bhagwati Dogra and for committing an offence for attempting to murder P.W. 1 Bijay Kumar Dogra and for causing voluntarily hurt to other persons. By reason of the impugned judgment, the appellant No. 1 has been found guilty for commission of murder of Sen Prasad Dogra ; whereas appellant Nos. 2 and 3 have been found to be guilty for causing murder of Bhagwati Dogra and have been sentenced to rigorous imprisonment for life. Appellant No. 1 has further been convicted under Section 307 of the Indian Penal Code for commission of an offence for making an attempt to murder Bijoy Kumar Dogra and has been sentenced to seven years rigorous imprisonment. However, the sentences imposed upon the said appellants was directed to run concurently. Appellant No. 4 has been convicted by the learned Court below for commission of an offence under Section 324, Indian Penal Code for causing injury to Ajay Kumar Dogra (P.W. 12) and has been sentenced to two years rigorous imprisonment. 2. On 10-9-1985 at 9.15 hours, P.W. 20, the Officer-in-charge of Saraikella Police Station received a message from the Saraikella Hospital whereby he was informed that four persons had been brought to the said hospital for treatment and out of them two persons, namely, Sen Prasad Dogra and Bhagwati Dogra had already died. Upon receipt of the said information, a station diary being station diary entry No. 171 was made by Shambhu Sharan Singh (P.W. 20) and he proceeded to the hospital. 3. On 10-9-1985 P.W. 12, Ajay Kumar Dogra gave a fardbayan before P.W. 20 aforementioned alleging inter alia therein as fallows : The informant at about 7.30 A.M. on that day along with his brother Dilip Kumar Dogra (P.W. 2), cousin Sen Prasad Dogra (deceased) and Bhagwati Pd. Dogra (deceased) had been blocking a Nala by putting earth therein which was flowing in the field of one Shankar Barik and which had been cut by the accused persons at about 7.30 A.M. The accused persons appeared at the scene being armed with Bhujali, bows and arrows, spade, rod, tangi, danda etc. Dogra (deceased) had been blocking a Nala by putting earth therein which was flowing in the field of one Shankar Barik and which had been cut by the accused persons at about 7.30 A.M. The accused persons appeared at the scene being armed with Bhujali, bows and arrows, spade, rod, tangi, danda etc. and asked therrr not to do the same and further threatened them with dire consequences. The informant and his party told them that they should irrigate their field by cutting a Nala from outside the lands of the informant. The informant further stated that the accused persons had been allowed free flow of water through the said Nala only for two days. It is stated that Balak Mahato assaulted the informant with Bhujali on his head causing bleeding injury whereupon his brother rushed to save him and then the accused Lakhan Mahato assaulted Bhagwati Prasad Dogra with tangi on his head and the accused Abhimunya Mahto assaulted him with a Bhujali on his stomach, as a result whereof he fell down on the ground. Seeing the same, Sen Prasad Dogra also rushed to same Bhagwati, when accused Congress Mahato assaulted him with Bhujali in his stomach, whereupon he fell down and become senseless. It was further alleged that when Bijay Kumar Dogra rushed to save them, when accused/appellant No. 1 assaulted him with Bhujali on his stomach. It was also alleged that accused Kantha Mahato shot an arrow on Dilip Dogra causing injury on his right hand and wrist. A hue and cry was raised whereupon Ashwini Dogra and Ban Bihari Dogra rushed to the spot and Ashwini Dogra was assaulted by Dubla Mahato with lathi. Sudhir and Judishtir also arrived and the accused Niran Mahato assaulted them with lathi. Allegedly the accused persons fled away thereafter. 4. It was further alleged in the first information report that after the occurrence, he and his father and other injured persons were removed to the hospital, but, on the way Bhagwati and Sen Prasad Dogra died. 5. The said fardbayan was marked as Ext. 1 and the formal first information report which was registered on the basis of the aforementioned fardbayan of P.W. 12 was marked as Ext. 6. 6. 5. The said fardbayan was marked as Ext. 1 and the formal first information report which was registered on the basis of the aforementioned fardbayan of P.W. 12 was marked as Ext. 6. 6. The accused persons before the learned Court below took a plea of right of private defence alleging therein that the informant and his party formed an unlawful assembly and stopped the flow of water on the Nala with which they had no concern for causing damages to the paddy grown by them. Allegedly on that, the accused persons made a protest ; in course whereof an altercation ensued and as the accused persons apprehanded that there was a danger to their lives also the paddy crop, the informant and others were assaulted. 7. In support of its case, the prosecution has examined 21 witnesses. P.W. 1 is Vijay Kumar Dogra who is also an injured witness ; P .W. 2 Dilip Kumar Dogra who is also an eye-witness was also injured in the occurrence ; P.W. 3 Yudhishthir Barik, P.Ws. 4 to 9, P.Ws. 15 and 17 were tendered; P.W. 10 is Ashwini Dogra who is also said to have received injuries ; P.W. 11 Himanshu Dogra is an Advocates clerk who is said to have arrived at the spot after hearing hulla ; P.W. 12 Ajay Kumar Dogra is the informant ; P. W. 13 is Mansa Ram Mahta and P.W. 14 is Pushpalata Dogra who are said to have arrived at the spot after the occurrence. P.W. 16 Dr. Narendra Kumar is the Deputy Superintendent of the Hospital, who held autopsy on the dead bodies of Sen Prasad Dogra Bhagwati Dogra and had also examined P.W. 1 Vijay Kumar Dogra and P.W. 12 Ajay Kumar Dogra. The post-mortem reports prepared by him of the deceased Sen Prasad Dogra and Bhagwati Dogra were marked as Exts. 3 and 3/1 ; whereas the injury reports of P.W. land P.W. 12 were marked as Ext. Nos. 4 and 4/1. P.W. 18 is a formal witness who proved seizure of certain garment from the house of Abhimunyu which have been marked as Exts. 5 and 56 as also seizure of Kulhari Ext. 5/2. P.W. 19 Keshaw Prasad is an Assistant Sub-Inspector of Police, who proved the signature on fardbayan Ext. 5/4 and inquest report (Ext. 7) and a sketch map. P.W. 18 is a formal witness who proved seizure of certain garment from the house of Abhimunyu which have been marked as Exts. 5 and 56 as also seizure of Kulhari Ext. 5/2. P.W. 19 Keshaw Prasad is an Assistant Sub-Inspector of Police, who proved the signature on fardbayan Ext. 5/4 and inquest report (Ext. 7) and a sketch map. P.W. 20 Shambhu Sharan Singh is the Investigating Officer. P.W. 21 Raj Kumar Jha, constable, is a formal witness. He proved the aforementioned Station diary No. 171, dated 10-9-1985, which was marked as Ext. 9. 8. Before the learned Court below, accused Balak Mahato, Lakhan Mahato, Abhimanyu Mahato, Kanthe Mahato, Dubla Mahato and Niran Mahato were charged for commission of an offence under Sections 302/149 and 148 of the Indian Penal Code. Accused Congress Mahto was further charged for commission of an offence under Section 302 of the Indian Penal Code for committing the murder of Sen Prasad Dogra as also under Section 307 of the Indian Penal Code for attempting to commit murder of Vijay Kumar Dogra. Accused Lakhan Mahato and Abhimanyu Mahato were charged for commission of an offence punishable under Section 302 of the Indian Penal Code for causing the death of Bhagwati Prasad Dogra. Accused Balak Mahato had further been charged for an offence punishable under Section 307 of the Indian Penal Code for attempting to cause death of one Ajay Kumar Dogra. Accused Kantha Mahato had been further charged under Section 324 of the Indian Penal Code for voluntarily causing hurt to Dilip Kumar Dogra by arrow ; Accused Niran Mahato was further charged under Section 323 I. P. C. for voluntarily causing hurt to Sudhir Raut and Judhishthir Barik. Accused Dubla Mahto was also charged under Section 323 of the Indian Penal Code for voluntarily causing hurt to Ashwini Dogra. 9. The learned Court below, as indicated hereinbefore, found appellant No. 1 guilty for causing death of Sen Prasad Dogra, and for commission of an offence of attempting to kill Bijay Kumar Dogra (P.W. 12). He further found appellant Nos. 2 and 3 for causing the death of Bhagwati Prasad Dogra by assaulting him with Bhujali and tangi respectively. Appellant No. 4 was found guilty for commission of an offence under Section 324, I. P. C, for causing hurt to Ajay Kumar Dogra (informant). 10. He further found appellant Nos. 2 and 3 for causing the death of Bhagwati Prasad Dogra by assaulting him with Bhujali and tangi respectively. Appellant No. 4 was found guilty for commission of an offence under Section 324, I. P. C, for causing hurt to Ajay Kumar Dogra (informant). 10. The learned Court below purported to have, by a queer process of reasoning, found that no unlawful assembly was formed and as such all the accused persons could not be held to be guilty for commission of an offence under Sections 302/149 as 307/147 of the Indian Penal Code. He, therefore, came to the conclusion that all the accused persons must be held guilty for their own individual acts He further purported to have found that the prosecution had not been able to prove its case as against the accused Kantho Mahto, Dubla Mahto and Niran Mahto and thus, they stood acquitted. 11. Mr. P. S. Dayal, learned counsel for the appellants submitted that in view of the fact that the prosecution has not been able to prove its case at least as against the aforementioned three persons, it must be held that it is tainted with falsehood and as such this appeal is fit to be allowed. In this connection, learned counsel has relied upon the decision by the Supreme Court in B. N. Singh and others v. State of Gujarat and others, (1990 Vol. 2 SCC 154) (equivalent to : 1990 SCC (Crim) 283). 12. It was next contended by the learned counsel that from the evidence on record, it would appear that sudden quarrel erupted and the appellants assaulted the prosecution party on a sudden provocation and, thus, the appellant Nos. 1, 2 and 3 cannot be said to be guilty of commission of murder of Sen Prasad Dogra and Bhagwati Dogra as their case squarely falls within Exception 4 of Section 300 of the Indian Penal Code. 13. According to the learned counsel, admittedly, the Nala was dug from much before and as such there was no justification for the prosecution party to make attempt to close the same. 13. According to the learned counsel, admittedly, the Nala was dug from much before and as such there was no justification for the prosecution party to make attempt to close the same. It was further submitted that in the facts and circumstances of this case the prosecution party must be held to be guilty for forming an unlawful assembly fcr the purpose of making an attempt to close the Nala, inasmuch as if the Nala had already been dug and if they were aggrieved by it, they could have taken recourse to law. Learned counsel further submitted that in any event as the accused persons had also been assaulted and as their right to irrigate their field was sought to be taken away by closing the Nala, the appellants had the right of private defence which they could exercise in law. According to the learned counsel, the accused persons had also been assaulted. In this connection, our attention was drawn to an application filed by Kantho Mahato before the Chief Judicial Magistrate wherein also the plea of exercise of right of private defence has been taken. The said application was proved by P.W. 17 and marked as Ext. A. 14. In this case, the fact that the Nala in question was dug about a week back prior to the date of occurrence by the accused persons is not in dispute. Further, it appears that the said Nala flew through the field of one Shankar Bari also. The Nala was extended up to the field of Congress Mahto (App. No. 1). It is also admitted that Congress Mahto has extensive lands in one block bearing Plot No. 214 and other plots. It is also admitted that the genesis of the occurrence arose out of| an act on the part of the prosecution party to close the Nala According to the prosecution party, the flow of water through the Nala had been causing damages to the standing crops of the field of Bhagwati and had been draining out the fish from Bhagwatis garha on the Nala bed. 15. In the first information report, it was categorically stated that when the accused persons objected to the prosecution partys attempt to close the Nala, they gave out that they should take water outside their land as if the same is allowed to remain the same would cause damages to their standing crops. 16. 15. In the first information report, it was categorically stated that when the accused persons objected to the prosecution partys attempt to close the Nala, they gave out that they should take water outside their land as if the same is allowed to remain the same would cause damages to their standing crops. 16. P.W. 1 in his evidence denied a suggestion that the Nala in-question was an old one. He further stated that the Nala in-question started from the land of Bhagwati Pd. Dogra and besides his land, the Nala had also been dug in the lands of Bhagru Barik. He further stated that the Nala in-question had been cut from the middle of the field of Bhagwati. He further stated that Bhagwati at that time had planted UJradh, Mircha and Bhindi. He further told that when the Nala was being dug, Bhagwati objected to it, and told that you may take water through this Nala for two days and thereafter, the same should be closed but the Nala was no closed. In his evidence, this P.W. has categorically denied that the accused persons were assaulted by the prosecution party. P.W. 2 and other prosecution witnesses also supported this fact. 17. P.W. 12 Ajay Kumar Dogra is the informant. He stated in his evidence that he along with the deceased and other injured persons went to the field of Shankar Barik for closing the Nala where the accused persons had cut a Nala in his field to take water in their field. As they had began to block the Nala, the accused persons armed with various weapons arrived. He stated that appellant Bala Mahto assaulted him with Bhujali causing injury on his head and Bhagwati Dogra came to save him when Lakhan Mahto assaulted him with a tangi and Abhimunyu assaulted him with bhujali in his stomach and at that point of time Sen Prasad Dogra rushed to the spot to save them and appellant Congress Mahto assaulted him with bhujali, as a result he became senseless. When Bijoy Dogra came to save them, appellant Congres Mahto assaulted him with a bhujali in his stomach. He further stated that Dilip Dogra was assaulted by Kantho Mahto (by an arrow on his right hand. Aswini Djogra and Binbihari Barik also came upon hearing hue and cry and they were also assaulted by Dubbal Mahto. When Bijoy Dogra came to save them, appellant Congres Mahto assaulted him with a bhujali in his stomach. He further stated that Dilip Dogra was assaulted by Kantho Mahto (by an arrow on his right hand. Aswini Djogra and Binbihari Barik also came upon hearing hue and cry and they were also assaulted by Dubbal Mahto. He further stated that Sudhir Raut and Judhistir Barik also came there and they were also assaulted by Niran with lathi. 18. Nothing has been pointed out by the learned Counsel to discredit this witness. P.W. 1 Bijoy Kumar Dogra, P.W. 2 Dilip Kumar Dogra are also injured witnesses. They also in their deposition gave a vivid description of the occurrence. According to these witness, when they along with father injured and deceased persons were at the place of occurrence, the accused persons came to the place variously armed. They alleged that Congres Mahto ordered to assault them and the assault followed. He also stated that Balak Mahto assaulted Ajay Dogra with bhujali; Lakhan Mahto assaulted Bhagwati with tangi; Aswini Mahto assaulted him with bhujali. It was further stated that when Sen Prasad Dogra rushed to save them, Congres Mahto assaulted him with bhujali and when Bijoy rushed to the place, he was also assaulted with bhujali by Congres Mahto. Dublal and Niran assaulted Aswini Dogra. 19. P.W. 13 Mansa Ram Mahto is an independent witness. He stated that on the date of occurrence he heard hulla and went to the place of occurrence and found Bhagwati Dogra fallen down. He also found Sen Prasad Dogra Bijoy Dogra and Ajay Dogra in injured condition He also found Congres Mahto, Balak Mahto and Lakhan Mahto and others running away. He further stated that thereafter when the police arrived, from the house of Bijoy Dogra, a blood-staind vest was recovered in presence of Sudhir Dogra and a seizure list was prepared wherein he and Sudhir Dogra signed, whcih was marked as Ext, 2. He also stated that the police recovered a towel and a vest spotted with blood from the house of Bhagwati Dogra which were also seized and the seizure list was prepared in which he and Sudhir Dogra put their signature. The said seizure list was marked as Ext. 2/1. 20. P.W. 16 is Dr. Narendra Kumar. He also stated that the police recovered a towel and a vest spotted with blood from the house of Bhagwati Dogra which were also seized and the seizure list was prepared in which he and Sudhir Dogra put their signature. The said seizure list was marked as Ext. 2/1. 20. P.W. 16 is Dr. Narendra Kumar. He found the following ante-mortem injuries on the deadbody of Sen Prasad Dogra : "One incised wound 1" x 1/2" x 5" on abdomen in the left side of lateral and above the umbilicus damaging the peritoreum as well as cut at two different places. On opening abdomenal cavity, it was found full of blood and intestinal fluid. The said injury could have been caused by sharp cutting weapon such as bhujali. The injury was sufficient in the ordinary course of nature to cause death. The death was caused due to shock and haemorrhage. Time elapsed since death was approximately within 24 hours." This witness had also conducted autopsy on the deadbody of Bhagwati Prasad Dogra and he found the following ante mortem injuries on his deadbody : "1. Incised wound 3" x 1" x 1/2" over head back portion. 2. Incised wound 1" x 1/2" x 4" over right side chest. On opening the abdominal cavity, it was found full of blood. On opening head, just at the site of head) injury haematoma amounting about 120 cc. blood causing pressure to brain. Injury No. 1 could be caused by Tangi and Injury No. 2 could be caused by bhujali. Both the injuries were sufficient in the ordinary course to cause death. Death was due to shock and haemorrhage combined with comma caused by head injury. Time elapsed since death was approximately within 24 hours." The post-mortem reports of Sen Prasad Dogra and Bhagwati Prasad Dogra were marked as Ext. 3 and 3/1 respectively. 21 The doctor (P.W. 16) further examined Ajoy Dogra and found the folliwing injuries : "One incised wound 3" x 1/2." X 1/3" over right side of head. The injury was caused by sharp cutting weapon such as bhujali, The injury was simple in nature. The age of the injury was within six hours." The said injury report was marked as Ext. 4. The injury was caused by sharp cutting weapon such as bhujali, The injury was simple in nature. The age of the injury was within six hours." The said injury report was marked as Ext. 4. On the same day, he further examined Bijoy Kumar Dogra and found the following injuries : "Incised wound 1" x 1/2" x 3" deep over right side of upper part of abdomen. The injury was caused by sharp cutting weapon such as bhujali. The age of the injury was within six hours from the time of examination." The injury report was marked as Ext. 4/1. 22 P.W. 18 Dhiren Deshmukh is also a seizure witness. He proved the seizure of a white shirt spotted with blood and fullpants from the house of Abhimanyu Mahto. The seizure list and his signature was marked as Ext. 5 and 5/1. According to this witness, a blood-stained kulhari was also recovered in their presence for which a seizure list was prepared and he and Abhimunya put their signature which have been marked as Ext. 5/2 and 5/3. 23. The Investigating Officer has further seized a danta stained with blood, a stone, blood-stained earth, one small tangi, three arrows one sabbal, one spade from the place of occurrence presence of Ban Bihari Barik and Shamu Dogra and the seizure list was marked as Ext. 2/2. It further appears that a blood-stained shirt and a toricotton pant were recovered from the house of Abhimanyu Mahto. The seizure list was marked as Ext. 2/3. It appears that various other articles and weapons were seized from the houses of the accused persons. 24. In view of the stand taken before the Court below, the occurrence is not disputed. The appellants either before the Court below or before this Court did not deny or dispute their presence. As noticed hereinbefore, they have taken up a plea of a right of private defence. 25. Learned Trial Court who, as indicated hereinbefore, acquitted three accused persons inter alia on the ground that one of the injured persons was not examined and Aswini Dogra did not say anything about the receipt of any injury by him. As noticed hereinbefore, they have taken up a plea of a right of private defence. 25. Learned Trial Court who, as indicated hereinbefore, acquitted three accused persons inter alia on the ground that one of the injured persons was not examined and Aswini Dogra did not say anything about the receipt of any injury by him. The learned Court below further purported to have proceeded on the basis that as the prosecution; party had began to block the nala in the morning, the accused persons appeared at the sence, resulting in the initiation of a dispute which culminated in the assault to various person and which caused the death of Sen Prasad Dogra and Bhagwati Dogra, no unlawful assembly was formed as the accused persons apprehended danger of life and property. The Court below further found that the appellants have exceeded their right of private defence at one place and at another place he held that they had no right of private defence. 26. Mr. Rajgarhia appearing for the State submitted that in the instant case, the learend Trial Court has wrongly acquitted the appellants as also others for commission of the offence u/S. 302/149, 307/149 and under Section 148 I P. C. in asmuch as from the evidence on report, it is clear that unlawful assembly was formed at the place of occurrence itself. According to the learned Counsel, in order to judge the question as to whether an unlawful assembly had been formed at place of occurrence itself or not, the conduct of the accused persons must be taken into const deration. 27. The learned Counsel appears to be correct. However, in view of the fact that no appeal has been preferred against, the order of acquittal of Kantho Mahto, Dubla Mahto and Naren Mahto it, is not possible for us to do anything in this matter. However, the submission of Mr. Dayal to the effect that the prosecution must be held to have not proved its case only because three persons have been acquitted, has to be negatived in the back ground of the case, as mentioned hereinbefore. 28. It is not a case where the presence of aforementioned three persons at the place of occurrence, who have been acquitted by the learned Court below, is in question. Their presence at the place of occurrence and their participation theirin have neither been denied nor disputed. 28. It is not a case where the presence of aforementioned three persons at the place of occurrence, who have been acquitted by the learned Court below, is in question. Their presence at the place of occurrence and their participation theirin have neither been denied nor disputed. Neither the learned Court below nor the learned Counsel appearing on behalf of the appellants have brought to our notice any material to show that the prosecution case should be disbelieved sofar as the presence of the aforementioned three persons and their participation in the occurrence is conrerned. 29. At the cost of the repetition, it may be stated that the learned Court below has wrongly proceeded on the basis that the accused persons did not form an unlawful assembly and thus they could not be convicted u/S. 302/149, 307/149 and 148 of the Indian Penal Code and thus all the accused persons were liable for their individual acts. 30. Although it could be had that the findings of the learned Court below to the effect that the prosecution has not been able to prove its case against the aforementioned three persons who have been acquitted were incorrect and although as noticed hereinbefore, in view of the fact that no appeal has been preferred from that portion of the judgment, no action can be taken in this regard but in our opinion, this Court as a Court of appeal can take into consideration all the material for the purpose of consideration of the evidences brought on record as to whether for proving the guilt of the appellants has been proved or not. 31. In this situation it must be held that acquittal of the aforementioned three persons do not in any way militate against the culpability of the appellants. The decision cited by the learned Counsel in 1990 (2) SCC 154 (supra) cannot be said to be applicable at all in the facts and circumstances of this case. Appreciation of evidence adduced in each case has to be judged on the facts thereof. The case have to be judged on the basis of totality of the circumstances and not with regard to a part of it which is reasonable from the main part of the occurrence. 32. In Appabhai and another v. State of Gujarat, reported in 1988 East Cr. C 288 (SO: 1988 Cr. The case have to be judged on the basis of totality of the circumstances and not with regard to a part of it which is reasonable from the main part of the occurrence. 32. In Appabhai and another v. State of Gujarat, reported in 1988 East Cr. C 288 (SO: 1988 Cr. L. J. 848, the Supreme Court has held that failure to examine independent witnesses to the murder cannot be thrown out or doubted on that ground. It has further been pointed out that some contradictions in evidence of factum of assault by itself will not be fatal to the prosecution unles tht contradictions go into the rout in the matter so as to demolish the entire prosecution story. It has been pointed out that the witnesses now a days go on adding embellishments to the versions, perhaps, due to the fear that of their testimonies being rejected by the Court and, thus the Court should not disbelieve the evidence of such witnesses, if they are otherwise trust-worthy. 33. In Gurnek Singh and another v. State of Punjab 1989 Cr. L. J. 299, the Supreme Court held that the evidences of the injured witnesses should not be discarded only on the ground that they are related to the deceased, as in view of the fact that they had received injuries go to show that they were present at the time of occurrence. 34. So far as the second submission raised by the learned Counsel is concerned, it is evident that a case of sudden provocation has not been made out at all. It is true that the nala had been cut a week back and that the same was being closed by the prosecution party. 35. There might not have been a pre-meditation amongst the accused persons, but the question as to whether they have been able to bring their case within the purview of Exception 4 to Section 300 of the Indian Penal Code must be viewed from the back-drop of the case. Exception 4 to Section 300 reads as follows : "Culpable homicide is not murder if it is committed without pre-maditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unsual manner," 36. Exception 4 to Section 300 reads as follows : "Culpable homicide is not murder if it is committed without pre-maditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unsual manner," 36. From the perusal of the aforementioned provisions, it is evident that in order to hold that the accused persons are not guilty of culpable homicide amounting to murder, it must be proved that there had been sudden quarrel and a sudden provocation. In our opinion, the appellants have neither been able to prove a case of sudden provocation nor a case of eruption of a sudden quarrel. Further it has been brought on record that the prosecution party were unarmed. 37. There is nothing on record to show that any provocation came from the side of the prosecution party on the basis of materials on records, it is further clear that the appellant have taken undue advantage of the helpless condition of the informant and others and they have acted in a cruel and unsual manner. 38. The prosecution has brought evidences on record to show that the victims were assaulted one after the other when they came forward to save their kith and kin. The way on which the victims were assaulted also suggests cruelty on the part of the appellants. 39. So far as the plea of exercise of right of private defence is concerned, Mr. Dayal has argued that the appellants were entitled to exercise the said right both in respect of their property as also in respect of their persons. 40. So far as the purported exercise of their right of private defence in respect of the property in-question is concerned, it is evident that the land where the nala, was being closed, was not the property of the appellants, but belonged to Shankar Barik. 41. The land also did not belong to the Government nor the appellants had any statutory right of irrigation of their field through the purported nala which was sought to be blocked. 42. There cannot be any doubt that right of private defence can be exercised even by a tresspasser if he has accomplished the act of encroachment. 41. The land also did not belong to the Government nor the appellants had any statutory right of irrigation of their field through the purported nala which was sought to be blocked. 42. There cannot be any doubt that right of private defence can be exercised even by a tresspasser if he has accomplished the act of encroachment. Thus if a tresspasser sown paddy in the disputed land, even the owner of land cannot make an attempt to harvest the crops grown by him. But in this case, the nala in question was dug only a few days back. Water in respect of the nala was flowing through the lands of Bhagwati as also other persons. According to P.W. 1 the appellants were permittd to irrigate their fields for two days and, therefore, they were asked to close the nala The prosecution party set out to do the said task as the appellants evidently did not fulfil their promise. 43. In Gottipulla Venkatasiva Subbrayanam v. State oj Andhra Pradesh reported in 1970 (1) SCC 235 upon which strong reliance has been placed by Mr. Dayal, has no application in the facts of this case. In that case, the kunta which was the subject matter of dispute was the property of the Government and it was registered as a source of irrigation. Both the parties occupied the hut for cultivating their land in an unauthorised manner and both the parties had obtained injunction order from the Civil Court against their opponent. The accused person also secured an order of injunction restraining the other side from cutting any breaches in the bandh. The state of affairs continued for long time. Further in that case the question was as to whether the appellants before the Supreme Court can exercise their right of private defence in view of the fact that the prosecution party had gone to the kunta in-question fully armed and in that case, it was found as a matter of fact that the conduct on the part of the prosecution party clearly was such as to give rise to a reasonable apprehension in the mind of the Accused No. 10 that he would have been killed had be not exercised his right of private defence. 44. In this case, it is evident from the materials on record that the prosecution party was not armed. 44. In this case, it is evident from the materials on record that the prosecution party was not armed. They had gone there to stop the flow of water by blocking the passage thereof. The appellants and their associates came on the land in-question variously armed and asked them to desist from blocking the water channel. Simply on the refusal on the part of the accused person, the appellants began assaulting the prosecution party. 45. In Vasanta v. State of Maharashtra, 1933 Cr. LJ, p. 693, the Supreme Court has held that mere verbal altercation cannot give rise to the exercise of the right of private defence. In that case also it was found that nothing had been brought on record to show that the altercation was of such a serious nature which could give rise to sudden provocation. 46. In the instant case, the prosecution has been able to show that the accused persons were determined to commit the murder and to cause grievious injury on them. Whoever came on the scene to protest against the act of the accused persons was assaulted one after another. Excepting the suggestion given to the witness the purported application which has been marked as Ext. A, there is nothing to suggest that the appellants or any other person on their side received injury of any kind whatsoever. Even no evidence has been brought on record to show that there had been even any show of force on the part of the prosecution party, In this situation, it must be held that evidently, the appellants were aggressors and, thus, in our opinion, they cannot claim any right of private defence. This aspect of the matter was also considered in Kanhaiya Lal v State oj Rajasthan, 1989 Cr LJ 1482 : AIR 1989 SC 1515 : 1989 East Cr 568 (SC). In Ramesh Raut v. State of Bihar, reported in 1977 BBCJ page 598 division bench of this Court held that when the prosecution visited the house of the accused persons to protest against the damages of that crops and not for the purpose of commission of an offence, the accuse persons had no right of private defence. 47. In Ramesh Raut v. State of Bihar, reported in 1977 BBCJ page 598 division bench of this Court held that when the prosecution visited the house of the accused persons to protest against the damages of that crops and not for the purpose of commission of an offence, the accuse persons had no right of private defence. 47. If what has been urged on behalf of the appellants was correct that the prosecution party started assaulting the accused persons, we do not think that they would have escaped with no injuries on their persons. The contents of Ext. A have not been proved inasmuch as P.W. 17 has merely proved the endorsement part on the application. 48. Taking thus all facts and circumstances of this case into consideration, we are of the view that no case for exercise if right of private defence by the appellants has been made out. 49. In the result, there is no merit in this appeal It is accordingly dismissed. Appellant No. 4 (Balak Das Mahato) is on bail. He must surrender forthwith to serve out the sentence.