S Haque, J.— Appellant No. 1 Girindra Namasudra (accused) was convicted under section 302 IPC for causing death of Ramesh Namasudra and the other 9 appellants (2) Nripen Namasudra, (3) Upen Namasudra, (4) Akromoni Namasudia, (5) Kufeswar Namasudra, (6) Ronjeet Namasudra, (7) Sushil Namasudra, (8) Lalmohan Namasudra, (9) Rishi Namasudra and (10) Parimal Namasudra had been convicted under sections 302/149 IPC and all the 10 are convicted under section 148 IPC vide impugned judgment dated 28.6.1982 passed by the Sessions Judge, Cachar, Silchar in Sessions Case No. 132/1981. Girindra died during pendency of this appeal and his name was struck off from the appeal. 2. Occurrence took place on 12.12.1979 at about 7 to 8 A. M. It was a harvest season and incident took place over reaping of paddy in the field. The prosecution case was that informant Naresh Ch. Namasudra (PW3) with his father Ramesh and brothers (witnesses) were harvesting paddy from their land, at that time the accused persons forming unlawful assembly attacked them with deadly weapons, caused injuries and killed Ramesh. Defence case was that accused party was in actual possession of that particular plot and grew that paddy and acted in exercise of right of private defence. 3. There was no dispute on the fact of death of Ramesh as a result of injuries in the incident. P.W. I Dr. R. S. Rajkumar held post mortem examination on the dead body of Ramesh and found 5 injuries of which injury No. 1 was fatal. It was an incised wound over the right fronto-parietal region of skull measuring 15 cm x 1cm x bone deep, causing fracture of frontal-parietal skull, raptured membrane with subdural haemorrhage, injuring the brain matters. This was the cause of death, according to Doctor. The other 4 injuries being a penetrating wound over the left forearm and 3 lacerated wounds were of simple nature caused by pointed and blunt weapons. The Sessions Judge accepted the opinion of the Doctor. In view of the nature of the injuries over the head, we fully endorse the finding of the Sessions Judge and accept the opinion of the medical expert. Cause of death was due to head injury. 4. The Sessions Judge accepted the opinion of the Doctor. In view of the nature of the injuries over the head, we fully endorse the finding of the Sessions Judge and accept the opinion of the medical expert. Cause of death was due to head injury. 4. Accused Akromoni and his wife Smti Lagnamoyee had litigation with Ramesh and his sons since long years for cultivable land and that litigation was pending at the time of occurrence and incident occurred on that plot which was full of ripe paddy. In the civil suit Ramesh got decree in respect of 2 Dags, one for ejmali possession and the other for Kha's possession. Being aggrieved Akromoni and his wife preferred appeals at stages and the Second Appeal before High Court was pending at the time of occurrence. Immedi­ately after decree by original Court, Ramesh had executed the decree and oh 18.5.1978 the officers of the civil Court delivered possession of one Dag in ejmali and the other Dag in khas possession in presence of witnesses. Document Exhibits 1, 2 and 3 in that regard had been received in evidence in the Sessions trial. The occurrence took place on 12th December, 1979. After about 7 months in December, 1978 wife of accused Akromoni instituted criminal case (C. R. No. 1257/1978) against Ramesh and his sons for theft of paddy from the disputed land claiming that she with husband Akromoni and their labourers grew the paddy. The judgment of that case (Ext.5) was also received in evidence. But Ramesh and his sons got acquittal on benefit of doubt in that complaint case. After about a year i.,e. on 12. 12. 1979 this occurrence took place in the harvest season. 5. Ramesh took delivery of possession from civil Court, but the accused party by filing complaint case after 7 months at the time of harvest and perusing the litigation in appellate Courts for that land continued their bonafide right of claim of ownership over the land. 12. 1979 this occurrence took place in the harvest season. 5. Ramesh took delivery of possession from civil Court, but the accused party by filing complaint case after 7 months at the time of harvest and perusing the litigation in appellate Courts for that land continued their bonafide right of claim of ownership over the land. Failure of the accused to substantiate beyond doubt in the incident of December, 1978 i.e. theft of their paddy from the field, would not be aground to infer that the actual posses­sion of the land at the time of occurrence on 12.12.1979 was with Ramesh and his sons, because it was the burden of prosecution to prove that Ramesh did continue actual possession with cultivation without break since taking delivery of possession on 18. 5. 1978. But evidence was short to prove these facts. 6. PWs 3, 4, 5, and 6 were the eye witnesses of the occurrence and sustained injuries at the occurrence. Three of them are sons of Ramesh and the other were relative. They claimed to have grown paddy and were harvesting that day and that accused in a group attacked them with weapons, caused injuries and death of Ramesh. On the other hand, the accused party through cross-examination as well as through the statement of Akromoni under section 313 CrPC claimed that Akromoni and his wife grew the paddy and they were harvesting the same, but the prosecution party Ramesh with witnesses attacked and caused injuries on them. Five accused persons Girindra, Nandalal, Nripendra, Upendra and Kuteswar sustained injuries caused by the sharp cutting/pointed weapons. The fact that 5 accused sustained injuries in the same incident had not been disputed. Going through the evidence on record, it was found that there was mutual marpit in between the both bides with weapons over the disputed land during harvest season and over the point as to which of them would harvest. Both sides used weapons. 7. The point for determination was whether the accused had right of private defence of properties and body at any stage of the occurrence. According to prosecution and evidence of the eye witnesses, they were harvesting and at that time accused party came armed with weapons and started marpit. Both sides used weapons. 7. The point for determination was whether the accused had right of private defence of properties and body at any stage of the occurrence. According to prosecution and evidence of the eye witnesses, they were harvesting and at that time accused party came armed with weapons and started marpit. On careful scrutiny of the evidence of these 4 eye witnesses except PW 4, it was found that accused Girindra was un-armed in the group till the marpit started between the parties in full swing and in the evidence of the 4 eye witnesses it was made out that suddenly Girindra took the dao from the hand of Akromoni and dealt a fatal blows on the head of Ramesh causing death. On the other hand, considering the facts that they (accused) continued their bonafide right of claim over the land, pursuing the civil litigation and criminal case and also their claim of actual possession and growing of the disputed crop were matters for consideration. If the prosecution story was true, had the accused right to resist and used force to protect the properties (paddy) and in doing so exercised right of private defence of paddy, if required. 8. The delivery of possession by Court process had been deposed by the eye witnesses who were interested with the land. Neither the Court Officers nor the Process Server had come forward to unfold the nature of delivery of possession executed on 18.5.1978. The witnesses to the delivery of possession named in the report of Process Server had not also been examined. The boundary witnesses who had really knowledge of the party in actual possession and growing that paddy had not been examined to give the true picture. It would not be justified in such a case to infer only with reference to the fact of delivery of possession from Court's papers that since that delivery of possession deceased Ramesh and his sons were in actual possession with continued cultivation till date of occurrence. The subsequent develop­ment as to continuance of the litigation through appeals and absence of essential evidence for non-examination of boundary witnesses reasonably obstructs us from accepting such inference. Thus reasonable doubt had existed if the prosecution party had in actual possession and grew the paddy ready for harvest. The subsequent develop­ment as to continuance of the litigation through appeals and absence of essential evidence for non-examination of boundary witnesses reasonably obstructs us from accepting such inference. Thus reasonable doubt had existed if the prosecution party had in actual possession and grew the paddy ready for harvest. Whereas the conduct of the accused party at all stages in the litigation and their claims of bonafide right over the land made out preponderance of probability that they might had continued with actual possession even after Court's execution and grew the standing crops that was ready fur harvest: and their claim that prosecution party was aggressors could not be undermind. 9. The First Information Report was lodged by PW 3. Omission of some important facts are evident in the information which were disclosed by the informant at the evidence. He being an injured eye witness, some more descriptions as to the genesis of the case or of assault were expected in the FIR. In FIR it was stated that he was in the field when attack was made; but in evidence be stated that he was at home and rushed on hearing cry. This was subsequent development. In FIR no description was given as to who assaulted whom, particularly who dealt fatal blow on the head of Ramesh and who actually assaulted him (informant) were expected. However, that he was present at the occurrence, participated in the marpit with weapon, sustained injuries had been established. Omission of important fact in the FIR by injured eye witness affecting probabilities of the prosecution case are relevant under section 11 of the Evidence Act for judging veracity of the prosecution story. Scrutinising the whole occurrence as found from the evidence on record, it appeared that suppression as to the genesis of the prosecution story could not be ruled out. Infirmity of some degree in the prosecution case existed at the inception. Omission or non-discloser of material and important facts in FIR when it is lodged by an eye Witness having knowledge of the same, creates doubts as to the genesis of the prosecution case. It may not be generalised, but may vary from case to case relying on facts of the occurrence. (Relied principle in AIR 1975 SC 1026 ). 10. Omission or non-discloser of material and important facts in FIR when it is lodged by an eye Witness having knowledge of the same, creates doubts as to the genesis of the prosecution case. It may not be generalised, but may vary from case to case relying on facts of the occurrence. (Relied principle in AIR 1975 SC 1026 ). 10. Another infirmity was that charge-sheeted witnesses of the neigh­ bouring and boundarymen competent to untold the material fact as to which of the party was in actual possession and grew the paddy had not been examined. The principle is that the prosecution is not bound to call all the witnesses to prove its allegations/charges but established exception to the principle is that the material necessary witnesses must be called to Unfold the genesis of the prosecution case whether the affect of such examination be for or against the prosecution case. In the instant case the boundarymen and neighbours were essential witnesses and tbeir non-examination had created doubt as to the actual state of affairs of the disputed plot and adverse presumption may be unhesitatingly drawn that had they been examined they would not have corroborated the prosecution story, but would have disclosed truth favourable to the, accused party. (Relied principle reported in (1) AIR 1963 SC 863 and (2) 1973 (1) SCC 490 and 513.) 11. Law does not require the possessor or grower of the property (paddy) in danger to wait or run for help from the authority that may not be readily available before the danger is over, at such stage they have right to enforce and exercise their right of private defence to the extent necessary for protecting property and drive out the aggressors and in doing so would apply necessary force ; but in the event of doing so it danger comes on their body, they shall have right to self defence by using force according to situation demand under the law prescribed in General Exception Chapter in the I.P.C. (Relied principle in AIR 1968 SC 702 and AIR 1086 SC 305.) 12. In the present case doubt remained as to which of the party was in actual possession and grew paddy. Thus two views are open on the fact of actual possession. It was either with the prosecution party or the accused. In the present case doubt remained as to which of the party was in actual possession and grew paddy. Thus two views are open on the fact of actual possession. It was either with the prosecution party or the accused. The principle of rule of evidence is that in a ease of two alternative views from the evidence on record, the views favourable to the accused should be accepted by the Court. In the instant case the evidence/circumstances as to the actual possession was comparatively towards accused. However when doubtful views being present with regard to the actual possession and growing of paddy, the view in favour of the accused is acceptable (Relied principle in 1973 (2) SCC 808 ) 13. Admitting but not accepting the prosecution version that they were reaping the paddy whereas accused party resisted armed with deadly weapons from the views and situation arrived above, the accused party firstly had right of defending their paddy in the field by resisting with required force and in doing so when they sustained injury by the attack of the prosecution party then their right of private defence of body became alive and enforceable. The prosecution party were also armed with deadly weapons; the marpit was mutual, both sides members sustained injuries. The accused party had positive occasion and compelling situation to exercise right of private defence of property and person simultaneously. The nine accused used minimum force and caused simple injuries on the prosecution party and had at no stage any of them exceeded their right, but they could do so because at such a situation one has no time to measure his each act with golden scale to calculate degree of force to be used or selection of part of body for infliction 14. Whether the 9 accused were liable for the act of Girindra under section 149 IPC. All the 9 were armed with weapons to resist Ramesh and his companions from taking away paddy from the field grown by accused. So when they proceeded armed with legal right of resistance to protect property they could not be attributed as members of an unlawful assembly merely because they were five or more than five and armed with weapons. They had right of private defence of their growing paddy. So when they proceeded armed with legal right of resistance to protect property they could not be attributed as members of an unlawful assembly merely because they were five or more than five and armed with weapons. They had right of private defence of their growing paddy. When they used force on Ramesh and witnesses to ach eve common object of resisting under lawful right and again used some more force to avert the cross criminal force/attack of the prosecution party ; they could not be attributed of forming unlawful assembly and none of them were members of unlawful assembly. There the object of an assembly did not come within the purview of section 141 IPC and the object was backed by general exception of right of private defence from inception so the group would not form an unlawful assembly. Again, the evidence proved that accused Girindra (since deceased) proceeded with the group unarmed and it showed that he had even no intention to use force with weapons, when the marpit between the two parties began and Girindra also sustained injuries, he then took the dao from the band of Akrumoni and dealt blows on the head of Ramesh resulting death. His act was independent and not connected with the object of the group. So, for his action the others were not jointly liable and application of section 149 IPC was not proper to bind other 9 accuseds. Girindra died and so charge and conviction under section 302 IPC against him abated. There is no scope now in the absence of Girindra to examine if his action was exceeding than permitted under the law. The other 9 accused had right of private defence of property and person and acted on such right, hence were entitled to acquittal. 15. The infirmities in the case with the case laws referred by the counsel of the parties have been considered and on careful scrutiny we decide to acquit the 9 accused appellants. 16. In the result, this appeal is allowed. The impugned judgment and order of conviction under sections 302/149 IPC and under section 148 IPC against 9 accused-appellants are set aside and they are acquitted of the charges and set at liberty forthwith. They are now discharged from bail bond. Send down the records immediately.