Judgment NAGENARA RAI, J. 1. The 18 appellants all residents of village Dhiba, P.S.Sarath, District Deoghar, were put on trial before 1st Additional Sessions Judge, Deoghar in Sessions Trial No. 147/5 of 1984 for the offences under Sections 302, 302/149, 307, 324, 147, 148 and 447 of the Indian Penal Code on the accusation of having committed the murder of Bindo Mahato alias Binda Mahto and causing injuries to several persons. Appellant Shambha Bhokta alias Shambha Nath Bhokta has been convicted under Sections 302, 307, 324, 148 and 447, IPC and has been sentenced to undergo rigorous imprisonment for life under Section 302, IPC. No separate sentence has been awarded under the other sections. Appellant Nos. 2 to 18 have been convicted under Sections 302/149, 147 and 447, I.P.C. and have been awarded sentence to undergo life imprisonment under Section 302/149, LP C. and no separate sentence has been awarded under the remaining sections. 2. The prosecution version, in brief, is that plot No. 476 of the Mauza Dhiba known as Barka Tilha was settled to the informant and other 9 persons by the Su-Divisional Officer 5 years prior to the occurrence. On 9-9-1981 at about 6 a.m. informant Pran Mahato (PW 1) along with PWs 2, 7, 9, 12, 13, 16, 17, 20, 21, 22, 23, 24 and 28 and others had gone to the aforesaid plot for the purposes of ploughing. When they started ploughing the field, all the 18 appellants and one Bhunashwar Bhokta, who died during the pendency of the trial, came at the aforesaid plot armed with deadly weapons. Appellant Shambha Bhokta was armed with a gun, appellant Krishna Bhokta was armsd with sword and other appellants were armed with lathis and stones. Appellant Sital Bhokta is alleged to have questioned as to why the prosecution party was ploughing the land. Thereafter the appellant Krishna Bhokta is alleged to have ordered to assault as a result of which Shambha Bhokta fired 7 to 8 rounds causing injuries to Bindo Mahato (deceased) and PWs 1, 3, 8, 9, 10, 12 and 17. Bindo Mahto after receiving the injury fell down and died at the spot. Appellant Krishna Bhokta gave blow by sword on the head of Kodo Mahto (PW 9) and appellant Sital Bhokta is alleged to have given lathi blow on the head of Arjun Mahto. Other accused persons were indulged in pelting stones. Bindo Mahto after receiving the injury fell down and died at the spot. Appellant Krishna Bhokta gave blow by sword on the head of Kodo Mahto (PW 9) and appellant Sital Bhokta is alleged to have given lathi blow on the head of Arjun Mahto. Other accused persons were indulged in pelting stones. The accused persons are alleged to have taken away the plough and the bullocks. On Hulla PW 2 Sakhi Mandal, PW 3 Lagan Mahto, PW 6 Kaleshwar Mahto and others came and witnessed the occurrence. 3. PW 26 Philman Minj was the Officer-in-charge of Sarath police station at the relevant time. Chowkidar Kedar Rai informed him about the occurrence and thereafter PW 26 reached at the place of occurrence. At 10.30 a.m. he recorded the Fardbeyan (Ext. 5) and sent it to the police station on the basis of which a formal first information report (Ext. 6) was drawn up. He took up the investigation and examined the injured persons. He also arrested appellant Arjun Bhokta and forwarded him to custody. The other accused persons surrendered and thereafter the police after completion of the investigation submitted the charge-sheet against the accused persons including one deceased accused, as mentioned above. 4. The prosecution in support of its case has examined 29 PWs out of whom PW 1 Pran Mahto, PW 3 Lagan Mahto, PW 8 Bhuneshwar Mahto, PW 10 Bhado Mandal and PW 12 Shashj Mandal are alleged to be the eye witnesses of the occurrence. PW 14 Satya Saran Sen examined the injuries on the persons of PWs 1, 8, 9, 10, 12, 13, 17, 20 and 21. PW 15 Ashok Kumar Chatterji held post-mortem examination over the deadbody of the deceased and proved the post-mortem report (Ext. 3). He also examined the injuries on the persons of the appellants Sital Bhokta, Rajgir Bhokta and Manoj Prasad Bhokta. PW 15 Paras Nath Rai is Advocates clerk who was proved the report of the Court Amin (Ext. 4) and PW 16, as stated above, is the Investigating Officer PW 27 Devendra Nath Mishra has proved the original notice (Ext. 11) and the report of Nazarat Amin (Ext. 12) on the said notice. PW 28 Baldeo Mahto is a formal witness and PW 29 Lalu Ram has proved the bed head tickets (Exts. 14 series). 4) and PW 16, as stated above, is the Investigating Officer PW 27 Devendra Nath Mishra has proved the original notice (Ext. 11) and the report of Nazarat Amin (Ext. 12) on the said notice. PW 28 Baldeo Mahto is a formal witness and PW 29 Lalu Ram has proved the bed head tickets (Exts. 14 series). The remaining prosecution witnesses, namely, PWs 2, 4, 5, 6, 7, 9, 11, 13,16, 17, 18,19, 20, 21, 22, 23 and 24 have been tendered by the prosecution. 5. The defence of the appellants is that the prosecution has not come out with a true version and the occurrence took place in a different manner. Appellant Arjun Bhokta had filed a written report (Ext. C) before the Officer Incharge (PW 26) at the place of occurrence on the basis of which a first information report was drawn up, According to the assertion made in the said written report (Ext C), the prosecution party had attacked the house of Arjun Bhokta, assaulted and looted away the articles. However, it appears that during the trial the defence filed certain documents and asserted that they were in possession over plot No. 476 and the prosecution party on the false pretext wanted to take forcible possession of the land in dispute and on the protest by the accused persons they assaulted four of them and in the said occurrence the members of the prosecution party also received injuries. The defence has examined 3 witnesses, namely DW 1 Dr. Mukesh Kumar, who examined the injuries on the person of appellant Arjun Bhokta, DW 2 Satyen Biswas, a police officer, who has submitted report (Ext. D) with regard to the land in question after the occurrence in a proceeding under Section 145, Cr.P.C. and DW 3 Baleshwar Bhokta, who has proved the settlement deed and the rent receipts. 6. Learned counsel for the appellants contended that the prosecution has failed to prove the manner of occurrence. It was also contended that plot No. 476 belonged to the accused persons as their ancestors had taken settlement and the settlement in favour of the prosecution party by the Sub-Divisional Officer was Dot permissible according to law and the same was a paper transaction only and they never came in possession over the land. It was also contended that plot No. 476 belonged to the accused persons as their ancestors had taken settlement and the settlement in favour of the prosecution party by the Sub-Divisional Officer was Dot permissible according to law and the same was a paper transaction only and they never came in possession over the land. On the day of occurrence they in a mob came and wanted to take forcible possession and on protest they assaulted four of the appellants, namely, Arjun Bhokta, Sital Bhokta, Rajgir Bhokta and Manoj Kumar Bhokta and in the same occurrence they also received injuries. The injuries to the members of the prosecution party were caused by the appellants in exercise of right of private defence of person and property. It was also submitted that even if their case of exercise of right of private defence of person and property is not found acceptable even then the non-explanation of injuries on the persons of the accused persons at least falsifies the manner and genesis of the occurrence or at any rate the prosecution has suppressed the material particular with regard to the occurrence in question. 7. The learned counsel for the State, on the other hand, submitted that the appellants heving come out with a definite case in Ext. C, according to which the occurrence took place at the house of Arjun Bhokta and not at the place of occurrence, they cannot be allowed to plead the right of private defence of person and property. It was also contended that the eye-witnesses consistently supported the prosecution case with regard to the manner of occurrence and the same has been proved by objective finding and the evidence of the Doctor and in that view of the matter if the injuries found on the person of four of the appellants which are simple and insignificant, are not explaiaed by the prosecution, that would not falsify the prosecution case. 8. Before adverting to the respective submissions advanced at the Bar, I would like to state in brief about the documents filed by the parties in support of their claim of possession over plot in question. Plot No. 476 is known as Barka Tilha under Khata No. 15, measures 13.70 acres. 8. Before adverting to the respective submissions advanced at the Bar, I would like to state in brief about the documents filed by the parties in support of their claim of possession over plot in question. Plot No. 476 is known as Barka Tilha under Khata No. 15, measures 13.70 acres. In the Khatian it is recorded as parti-kadim and in the remarks column 24 palm trees have been shown in possession of Ganga Ram Bhokta, ancestor of the accused and one Mahua tree has been shown in possession of Pochan Mahto. The prosecution has filed Ext. 15, which is the order passed by the Sub-Divisional Officer dated 31-12-1973 in Settlement Case No. 159/71-72. From the aforesaid order it appears that the settlement of plot No. 476 and other plots was made to the members of the prosecution party on the basis of the report of Amin Hurro Mahto and the Kanoongo. It further appears that the aforesaid Amin, after the settlement, was deputed to demarcate the land who demarcated the same and submitted map and the report (Ext. 4). Ext. 4/1 is the report submitted by Hurro Mahto, the Amin, to the effect that he has effected possession in favour of the settlees and the said report of the Amin was accepted and confirmed by S.D.O., Deoghar, by order dated 3-3-1978 (Ext. 15/2). According to PW 25, the Amin Hurro Mahto is dead. 9. The prosecution has further filed Ext. 11 which is a notice issued to the 16 annas raiyat before making the settlement in favour of the prosecution party. According to the prosecution, the notice was sent on three persons, namely, accused Haldhar Bhokta, Nagendar Bhokta and Tirath Bhokta father of accused Arjun Bhokta, Ext, 12 is the report of Bhagwat Dubey, Nazarat peon, and Ext. 13 is the certified copy of the notice. PW 27 has proved Ext. 13 and has stated that he has copied out the certified copy (Ext. 13) from the original notice (Ext. 11) and at the time of making the certified copy there were signatures of Nago Prasad Bhokta, Haldhar Prasad Bhokta and Tirath Nath Bhokta on the original notice, but, now the names of all the three persons have been penned through. 13 and has stated that he has copied out the certified copy (Ext. 13) from the original notice (Ext. 11) and at the time of making the certified copy there were signatures of Nago Prasad Bhokta, Haldhar Prasad Bhokta and Tirath Nath Bhokta on the original notice, but, now the names of all the three persons have been penned through. The prosecution has also led evidence through the mouth of PW 28 that Bhagwat Dubey, process-server, who has now retired, he had gone to village Dhiba to serve the notice to the 16 annas raiyat and the aforesaid three persons received the notice and put their signatures on the notice. Ext. 12 is the service report submitted by Bhagwat Dubey with regard to the service of notice on the aforesaid three persons. On the basis of these documents and on the basis of oral evidence of eye-witnesses who have stated that the land to be in possession of the prosecution party, it has been submitted on behalf of the prosecution that the land was in their possession. 10. The accused persons, on the other hand, have filed certain documents to show that the land of plot No. 476 was settled to them and it was in their possession. D. W. 3 Baleshwar Bhokta has proved the Amalnamas marked Exts. E and E/a which, according to him, were written by Ayodhya Prasad Thakur and signed by Ganga Ram Bhokta, the then Pradhan of the village. He has also proved the rent receipts bearing the signature of the Pradhan of the village, Ext. F series. Ext. E is dated 14-4-1936 and it shows fthat the settlement of the portion of plot No. 476 was made in the name of Sabitri Devi wife of Yamuna Bhokta and Ext. E/1 dated 14-8-1934 shows that the remaining portion of plot No 476 was settled in favour of Jhari Bhokta and Babulal Bhokta, ancestors of the appellants. On the basis of these documents the appellants stand is that the land was settled in the names of their ancestors and they were in possession. It was also stated that it was the Pradhan of the village who makes the settlement of the waste land. The Sub-Divisional Officer has no power to settle the land. On the basis of these documents the appellants stand is that the land was settled in the names of their ancestors and they were in possession. It was also stated that it was the Pradhan of the village who makes the settlement of the waste land. The Sub-Divisional Officer has no power to settle the land. According to the proviso of Chapter IV of the Santhal Parganas Tenancy (Supplementary Provision) Act, 1949, the power to settle the waste land vests in village Pradhan. The S. D. O. has power to confirm it. 11. The first question to be determined is as to who was in possession of the land on the date of occurrence because this question has important bearing in deciding as to whether the prosecution version is to be accepted or not. In case the prosecution version regarding possession is not accepted then the next question would be as to what offence the appellants are alleged to have committed on the facts proved in this case. As stated above, the records of right (Ext. H/1) shows that the plot in question was mentioned as parti land. Chapter IV of the aforesaid Act shows that the power to settle waste land lies with the Pradhan of the village and the person aggrieved has right to move before the Deputy Commissioner against the order of the aforesaid Pradhan. A copy of the standing order of the Deputy Commissioner dated 21 October, 1957 has been filed by the appellants during the hearing of the appeal. Our attention has been drawn to the last paragraph of the standing order ; wherein, it is mentioned that so far as the Pradhan, and Mulraiyati villages are concerned, the vesting of estates and tenures under the Bihar Land Reforms Act has made no difference and hence, settlement of waste and vacant lands in such villages will continue to be made as already laid down in the records of rights and in the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. Thus, from the aforesaid provisions it is clear that the competent person to settle the vancant lands is the Pradhan of the village and not the Sub-Divisional Officer and as such the Sub-Divisional Officer has no power to settle the land. Thus, from the aforesaid provisions it is clear that the competent person to settle the vancant lands is the Pradhan of the village and not the Sub-Divisional Officer and as such the Sub-Divisional Officer has no power to settle the land. Even assuming that the settlement could be made by the Sub-Divisional Officer, the question as to whether the prosecution has proved that they were in possession by virtue of the aforesaid settlement. According to the prosecution case, notices were served on two of the appellants and father of Arjun Bhokta. Ext. 11 (original notice) shows that the names of the aforesaid persons are penned through on it. P. W. 28 says that in his presence the notices were served on the aforesaid three persons. He has admitted in cross-examination that there was no drum beater at the time of service of the aforesaid notice. He does not remember how many copies of the notice were with the process-server. He has admitted that there are 18-19 Jamabandi raiyats. He has also admitted that he neither signed nor put his L. T. I. on the service report. Gogali Sah his father and Santu Mandal identified at the time of service of notice, but Gogali Sah did not put his signature or L. T. I. Gogali Sah and Santu Mandal are alive. They were the best persons to state about service of notices but they have not been examined. After reading the evidence of this witness as a whole it is difficult to accept that this person was present at the time of service of notice. On the basis of the aforesaid evidence, it cannot be said that the two of the appellants and father of appellant Arjun Bhokta were noticed before the making of the settlement by the Sub-Divisional Officer. This apart, according to the prosecution case, the Amin divided the plot into sub-plots and prepared map and thereafter possession was given to the members of the prosecution party. P. W. 1, the informant, in his evidence has admitted that at the time of inspection the I. O. has not seen the sub-plots in the disputed land The I. O. (P. W. 26), who visited the place of occurrence, has also stated that the place of occurrence is a parti kadim land and there was bush of Palash over the said plot. He has stated that he has not written that he found sub-plots in the said plot: Thus, the prosecution story that the plot was divided into sub-plots does not find support from the objective finding of the I. O. or the evidenee of the witnesses. According to the prosecution the settlement was made 5 years ago but from the statement made by P. W. 1 in paragraph 13 of his evidence it appears that on the date of occurrence for the first time the prosecution party had gone to plough the land. According to him, it was a parti land. Thus, from the aforesaid evidence it is clear that there was no sub-plots on the disputed land as alleged by the prosecution and though the settlement is alleged to have been made five years ago on the dates of occurrence the prosecution party went there for the first time to plough the land. It is also admitted by the prosecution witness that though the settlement was made 5 years ago, they have neither paid rent nor they have obtained receipts. The documents filed by the accused appellants, as mentioned above, clearly show that the accused persons were in possession over the land by virtue of settlement taken from the Pradhan of the village much prior to the occurrence. The evidencs on behalf of the prosecution is not sufficient to prove that the prosecution party had come in possession over the land in dispute prior to the alleged date of occurrence. 12. In the light of the above finding, it has to be seen as to what offence has been committed by the appellants. As noticed above, the prosecution has examined five eye-witnesses, namely, P. W. 1 Pran Mahton (the informant), P. W. 3 Lagan Mahton, P. W. 8 Bhuneshwar Mahton, P. W. 10 Mado Mandal and P. W. 12 Shashi Mandal, out of whom P. W. 3 Lagan Mahton is not an injured witness and the retaining are injured witnesses. Other injured members of the prosecution party, numely, P. Ws. 9, 13, 47 and 20 have been tendered. Evidence of the eye-witnesses has to be considered first to find out as to whether they have proved the manner of occurrence as alleged by them or not. P. W. 1, the informant, has stated same thing about the manner of occurrence as stated by him in the first information report. 9, 13, 47 and 20 have been tendered. Evidence of the eye-witnesses has to be considered first to find out as to whether they have proved the manner of occurrence as alleged by them or not. P. W. 1, the informant, has stated same thing about the manner of occurrence as stated by him in the first information report. He has stated that while the prosecution party was ploughing the land of plot No. 476, the accused persons came and appellant Shital Bhokta asked them not to plough the land. Thereafter, Krishna Bhokta ordered to assault, upon which Shambhu Nath Bhokta fired 7-8 rounds causing injury to the deceased Bindo Mahton and other 7 prosecution wit- nessesses including the informant, Sital Bhokta assaulted Arjun Mahton with lathi and Krishna Bhokta gave sword blow on the head of Kodo Mahto. This witness in his cross-examination has stated that when the firing was opened on 7 injured prosecution witnesses they were assembled at one place and the first firing made by Bindo Mahto caused injury to the deceased. The firing was made from the distance of 10 to 15 hands. P, W. 3 has stated that on the day of occurrence he was grazing the cattle near the place of occurrence. According to him also Krishna Bhokta ordered to fire and thereafter Shambha Bhokta fired causing injury to the deceased Bindo Mahto Thereafter appellant Shambha fired 7 rounds causing injury to the prosecution witnesses. This witness in cross-examination has admitted that he cannot give the boundaries of the field in which he was grazing cattle. He has also stated that he has no connection with the disputed land. According to him at the time of occurrence there was hurling of abuses from both sides. The persons who were ploughing were throwing brick-bats. After seeing the pelting of stones by the accused persons, he left the place. In view of the aforesaid statement that when the accused persons, started throwing he left the stones place and his inability to give the boundaries of the plot where he was grazing the cattle, his claims to have seen the occurrence appears to be not convincing and it is not safe to rely on his evidence as an eye-witness. P. W. 8 Bhuneshwar Mahton has stated that he had gone to plough the land of his uncle. P. W. 8 Bhuneshwar Mahton has stated that he had gone to plough the land of his uncle. He admits that he is resident of Baskupi and in the occurrence he received pellet injury on his right hand. He has also stated that at first round of firing the prosecution party had assembled at one place. P. W. 10 has stated the same firing as stated by the other injured witnesses with regard to the manner of occurrence. He had gone to plough the land of Birbal Mandal on the day of occurrence and received injury in his thigh. He has admitted that he has no connection with the disputed land, P. W. 12 has stated that he had gone to plough the land which was given in settlement to his father and he also received injury in the said occurrence. 13. From the evidence of P. Ws. 1, 10 and 12, who are injured witnesses, it is evident that the occurrence took place in the said field and one person died and seven persons received injuries from the prosecution side. P. W. 14 examined the injuries on the persons of the prosecution witnesses. He examined P. W, 1 and found three gun-shot injuries on the left arm on upper and front portion and on the left side of chest. According to him the aforesaid wounds were wounds of entrances caused by some gun shots. On the person of Bhuneshwar Mahto (P. W. 8) he found one bruise on the right wrist caused by hard and blunt substance. He also found gun shot injuries on the thigh of Kodo Mahato (P. W, 9) and lacerated wound on the right side of forehead. The lacerated wound was caused by hard and blunt substance. He found two gun shot injuries on the person of Shanti Mandal (P. W. 12) which were on the back of sacrum and on the left side of buttock. He found gun shot injury on the back of left thigh on the person of P. W. 10 Bhado Mandal. He found lacerated gun injury on the right index finger of Ritlal Mandal (P. M. 13) and swelling and bruise on the person of Arjun Mahato (P. W. 20) caused by hard and blunt substance. All the injuries caused by fire-arms on the persons of the prosecution witnesses were caused by pillets. 14. He found lacerated gun injury on the right index finger of Ritlal Mandal (P. M. 13) and swelling and bruise on the person of Arjun Mahato (P. W. 20) caused by hard and blunt substance. All the injuries caused by fire-arms on the persons of the prosecution witnesses were caused by pillets. 14. PW 15 held post-mortem over the deadbody of the deceased and found the following injuries ; (i) One semi-circular wound with lacerated and inverted margin of 1/2" in diameter into skull deep on the left side of temporal area of scalp 1" above left ear. On further dissection there was committed fracture of left temporal bone ; (ii) One semi-circular wound with lacerated and inverted margin of 3/4" in diameter in skull deep on the right side of temporal area of scalp about 1 1/2" above the right ear. On further dissection there was commutted fracture of right temporal bone. There was no charring on further dissection. Two wounds were found in continuation and the brain tissue was lacerated and punctured. The wound No. (I) was wound of entry and wound No. (II) was wound of exit of fore-arm. (iii) One semi-circular wound with lacerated and inverted margin with 1 1/2" in diameter in tissues deep on left side of lateral side of neck at its middle. (iv) One semi-circular wound with lacerated and ineverted margin of about 3/4" in diameter into tissue deep on the right side of lateral side of neck in its middle. There was no charring. On further dissection two wounds were found in continuation and overtine vessels and tissues were lacerated and hyoid cartilade was lacerated. The wound No. (III) was wound of entry and wound No.(IV) was wound of exist of fore-arm. According to him (PW 15) there were two injuries on the person of the deceased which were caused by pellets. The doctor holding post-mortem also stated that the firing was made from a distance. He has also stated that if 8 to 10 persons are collected together and firing from a distance is made then all of them may receive pellets injuries by one shot. 15. The investigating officer (PW 26) has also found blood at the place of occurrence. The doctor holding post-mortem also stated that the firing was made from a distance. He has also stated that if 8 to 10 persons are collected together and firing from a distance is made then all of them may receive pellets injuries by one shot. 15. The investigating officer (PW 26) has also found blood at the place of occurrence. Thus, the evidence of eye-witnesses finds ample support from the medical evidence as well as the objective findings of the Investigating Officer that one person died and prosecution witnesses received injuries in the said field. According to the prosecution party, the land was in their possession and when they went to plough the land accused appellants came and assaulted the prosecution party. 16. So far as possession is concerned, I have already held above that the land was in possession of the accused persons and it was the members of the prosecution party who had gone there to assert their right of possession for the first time on the aforesaid land. In such a situation the question is to be considered as to whether the claim of the accused that they killed one person and assaulted other members of the prosecution party in exercise of right of their private defence of person and property is probable one. 17. From the evidence of PW 15, who held the post-mortem over the dead body of the deceased, it appears that he also examined three appellants, namely, Shital Bhokta, Manoj Prasad Bhokta and Rajgir Bhaokta on the day of the occurrence and found injuries on their persons caused by hard and blunt substance on different parts of the body, i.e. head neck and scalp. The nature of the injuries were simple. 18. DW 1 Mukesh Kumar, who, at the relevant time, was posted as First Medical Officer at Sarath State Dispensary, examined the injuries of appellant Arjun Pd. Bhokta on the day of the occurrence at 10.10 a.m. and found one incised wound over right temporal bone. This Arjun Pd. Bhokta was arrested by PW 26, the Investigating Officer, soon after the lodging of the first information report by the informant. He referred him to Hospital and he was examined by the doctor. Bhokta on the day of the occurrence at 10.10 a.m. and found one incised wound over right temporal bone. This Arjun Pd. Bhokta was arrested by PW 26, the Investigating Officer, soon after the lodging of the first information report by the informant. He referred him to Hospital and he was examined by the doctor. Thus, these 4 appellants also received injuries at the time of occurrence, though PWs 1 and 8 have denied that all the 4 accused persons have received injuries in the said occurrence. 19. It is well settled that the prosecution is not obliged to explain the injury sustained by the accused in the same occurrence in each and every case. The burden of proving the guilt is, undoubtedly, on the prosecution and not on the accused. If the witnesses examined on behalf of the prosecution are believed by the Court and their evidence prove the guilt of the accused beyond reasonable doubt, the question of obligation on the prosecution to explain the injuries sustained by the accused will not arise. In this case, as noticed above, except one injury on the person of Arjun Bhokta, other injuries are of simple nature. Even assuming that these injuries were caused on the person of the accused persons at the time of the occurrence, the failure on the part of the prosecution to explain those injuries may not by itself be treated as a ground for disbelieving the prosecution case. However, as stated above, the accused persons have come out with a plea that the prosecution party was an aggressor and wanted to take forcible possession over the land inflicted injuries on their person and in that connection the members of the prosecution party received injuries. The law is well settled that the accused has not to prove his plea beyond reasonable doubt, on the other hand, he has only to show prepon-drance of probability in favour of his defence plea. The presence of injuries on the persons of the accused has to be taken note of while considering the question as to whether the accused persons were justified in inflicting injuries on the prosecution party in exercise of right of private defence of person and property. 20. It is the duty of the State to maintain law and order and to provide help to the citizens in case their lives are in peril. 20. It is the duty of the State to maintain law and order and to provide help to the citizens in case their lives are in peril. However, the State and its machineries are not readily available at all the times to protect the life and property of the citizens. In such a situation the citizens cannot be left at the mercy of wrong-doers. To meet the aforesaid situation, provisions have been made in the Indian Penal Code conferring right of private defence of person and property to the citizens. Section 96 of the Penal Code provides that nothing is an offence which is done by a person in exercise of right of private defence. This right is available against the offence under the Penal Code. Section 97 confers right of private defence of the body and of property subject to the restrictions contained in Section 99. Section 99 provides that right of private defence is not available against the certain acts mentioned in the said section. It also provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities and the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides, when the right of private defence of the body extends to causing death and Section 103 provides, when the right of private defence of property extends to causing death. 21. A reading of the aforesaid provisions it is clear that the exercise of right of private defence is a preventive measures to protect the person or property from the wrong-doers. Its exercise should not be vindictive or malicious. It is also clear that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. 22. However, it is to be made clear that when a person is claiming exercise of right of private defence of person and property then the Court should not weigh the conduct of the accused in golden scales and the Court should give weight to the feeling, excitement and confusion in the mind of the person exercising aforesaid right. 22. However, it is to be made clear that when a person is claiming exercise of right of private defence of person and property then the Court should not weigh the conduct of the accused in golden scales and the Court should give weight to the feeling, excitement and confusion in the mind of the person exercising aforesaid right. In the case of Jai Dev V/s. State of Punjab, AIR 1963 SC 612 , the Apex Court observed as follows : "There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the upper-most feeling in his mind would be to ward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing With the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room, for instance, long after the incidence has taken place. That is why in some judicial decisions it has been observed that the means which a threatened person adopts or the force which he use should not be weighed in golden scales. To begin with the person exercising a right of private defence must consider whether the threat to his parson or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require, as Mayne has observed, that "he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over. The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him the right to secure his victory over his assailant by using the necessary force. This necessarily postulates that as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing the right is there ; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence, (vide Sections 102 and 105 of the Indian Penal Code)." 23. In the present case, as noticed above, the prosecution party wanted to take forcible possession of the land. It is also evident that four of the appellants received injuries at the time of the occurrence. The prosecution story that appellant Shambha Bhokta fired 7-8 times does not appear to be correct. All the injuries found on the persons of the deceased and the other prosecution witnesses were caused by pellets. The evidence of the prosecution witnesses show that they were collected at one place at the time of firing. PW 15, the doctor, also states that if 8 to 10 persons collected together at one place and if firing is made from a distance then all of them may receive pellet injuries by one shot. The injuries of the deceased as well as of the other prosecution witnesses, in this case, appear to have been caused by one shot and not by 7 to 8 fire, as asserted by the prosecution. 24. The injuries of the deceased as well as of the other prosecution witnesses, in this case, appear to have been caused by one shot and not by 7 to 8 fire, as asserted by the prosecution. 24. The prosecution allegation that appellant Krishna Bhokta hurled a sword blow on the head of Kodo Mahto is falsified by the medical report, as the injuries were caused by hard and blunt substance. It appears that when the prosecution party had gone to take forcible possession of land and on protest by the accused some of the appellants were assaulted and in that connection one of the appellants fired and one or two also assaulted with hard and blunt substance, as such the appellants cannot be said to have exceeded the right of private defence of person in this case, nor it can be said that the action was vindictive or malicious. The facts and circumstances of the case clearly show that there was immediate and real threat to the life of the appellants and force used by them in the circumstances of the case cannot be said to be excessive and disproportionate. The action of the prosecution party was such as it reasonably caused an apprehension of death or grievous hurt in the mind of the appellants and aa they had no time to take recourse to the public authorities and in that view of the matter they were justified in assaulting the member of the prosecution party. Thus, I have no difficulty in holding that the prosecution has failed to prove its case against the appellants. 25. For the aforesaid reasons, the conviction of the appellants is not sustainable in law. Accordingly, their appeal is allowed and the conviction and sentence awarded against them are set aside. The appellant Shambha Bhokta shall be released forthwith, if not wanted in any other case. The other appellants are discharged from the liabilities of their bail bonds. I.P.Singh, J. 26 I agree.