JUDGMENT : B.N. Dash, J. - The appellants, 16 in number, have been convicted under Sections 148 and 304 read with Section 34 IPC and each has been sentenced to undergo rigorous imprisonment for one year on the first count and ten years on the second count. They have also been convicted u/s 304 read with Section 149 IPC but no sentence has been awarded inasmuch as sentence u/s 304 read with Section 34 IPC has already been imposed. 2. In short, the prosecution case is that on 21-1-1982 at about 11 or 12 a.m. while Ankura Mallik (PW 1) was in the tank of his village Chandipur for taking bath, his son Ramesh (PW 3) came and informed him that his elder brother Suresh (deceased) who was aged about 18 years as per the post mortem report (Ext. 4), was being assaulted near the sugarcane bari of Ananda Kar. Being so informed, he went there along with his son Ramesh and found that the appellants and some others were assaulting the deceased Suresh by means of Bhali. Tangias, Farsa and Lathis and his said son was crying. When he raised protest they also assaulted him with the weapons of offence they were holding. In the meanwhile, when his wife Kanchan (PW 2) who came from her nearby house hearing hue and cry raised protest, she was also not spread. In course of assaults, Ramesh (PW 3) concealed himself behind a stone lying at a little distance away, but when his father (PW 1) told him on raised voice to inform the incident to the villagers, he went inside the village and intimated the incident to some villagers. On receipt of such information, the villagers came to the spot but before their arrival at their sight all the appellants; took to their heels. It is further alleged that as a result of the assaults the deceased breathed his last at the spot and Ankura and his wife became injured. Sometime thereafter, Bairagi Malik, the maternal uncle of PW 3 (not examined), want to Banki Police Station and varbally reported the occurrence but no Station Diary Entry or report was produced as evidence. 3. At about 5 p. m. appellant Upendra Kar went to the aforesaid Police Station and lodged the FIR, Ext. Sometime thereafter, Bairagi Malik, the maternal uncle of PW 3 (not examined), want to Banki Police Station and varbally reported the occurrence but no Station Diary Entry or report was produced as evidence. 3. At about 5 p. m. appellant Upendra Kar went to the aforesaid Police Station and lodged the FIR, Ext. J alleging that on the said date at about 12 noon Ankura Mallik, his wife Kanchan, his son Ramesh and the deceased being aimed with Chheli, Farsa, Bhali and sword came to their sugarcane and brinjal baris and while others remained standing on an extremity of those baris, the deceased Suresh entered Inside the baris, cut some sugarcane plants and made over the same to his father Ankura. It was also alleged that about two months prior to the occurrence since Ankura had forcibly cut sugarcane plants from his bari claiming the bari to be his, a case had been instituted against him by his father Ananda Chandra Kar. It was further alleged that at the sight of such unlawful act of deceased Suresh when Puspasena Kar, his brother (since acquitted) raised protest, the deceased became angry and attacked him with the Chheli he was holding and as a result of such assault, there was severance of the left thumb of Puspasena and when Puspasena fell down on the ground, he along with others who had assembled there went to the spot. At that time, Ankura and his wife and sons attacked them with the weapons of offence they were holding and when they retaliated, they left the place. It was further alleged that as a result of the assaults by Ankura and his wife and their sons many of them sustained injuries. On receipt of such report the police went to the spot and found the deceased Suresh lying there dead. 4. At the spot Ankura verbally reported the incident which was reduced into writing at 9 p. m. vide Ext. 1. In course of investigation, the police sent the dead body of the deceased for post mortem examination which was conducted by PW 5 Dr. Nirmal Kumar Misra. Ankura and his wife Kanchan were also sent for medical examination and they were examined by PW 4 Dr. Prasanna Kumar Padhi. 1. In course of investigation, the police sent the dead body of the deceased for post mortem examination which was conducted by PW 5 Dr. Nirmal Kumar Misra. Ankura and his wife Kanchan were also sent for medical examination and they were examined by PW 4 Dr. Prasanna Kumar Padhi. After completion of investigation, charge sheet was submitted not only against the appellants but also against four others who have since been acquitted and the case having been committed, came to be triad in the Court of the Second Additional Sessions Judge, Cuttack. 5. It may be noted that in Banki P. S. Case No. 5 dated 21-1-1982 registered on the FIR (Ext. J) lodged by appellant Upendra Chandra Kar, a final report was submitted declaring the case as true on the ground that the accused Suresh was already dead. Out or 20 accused persons, accused Benudhar Panda and Jambeswar Rout took the plea of alibi, accused Ramesh Chandra Kar and Dinabandhu Pradhan denied their presence at the spot at the time of the alleged occurrence, accused Ananda Chandra Panda, Ananda Chandra Kar, Padma Charan Kar, Babuli Kar, Panu Rout, Kapali Rout, Bhikari Pradhan, Achuta Pradhan, Babuli Pradhan and Surendra Kumar Kar took the plea of denial and accused Upendra Kar, Gagan Behari Kar, Pitambar Kar, Puspasena Kar, Gopal Pradhan and Khali Pradhan took the plea that when the deceased Suresh assaulted Puspasena Kar, others went to his rescue and at that point of time they were assaulted by the deceased and his parents and brother for which some of them received injuries, in support of the defence plea, seven witnesses were examined of whom DW 1 Dr. Rabindranath Panda is the Doctor who examined accused Jambeswar Rout, DW 2 Dharanidhar Panda is another Doctor who examined accused Puspasena Kar; DW 3 Achutananda Choudhury is the Pharmacist who proved the entry in the indoor patient register of Banki Hospital indicating admission of accused Puspasena Kar; DW 4 S.R.K.L. Rao is the Officer-in-charge of Banki Police Station who was examined to prove some writings in the case diary relating to this case made by some police officers who was dead; DW 5 Puspasena Kar is one of the accused who was allegedly injured by the deceased; DW 6 Upendra Kar is another accused who deposed about the alleged occurrence and lodged the FIR Ext. J ; and DW 7 Baidhar Behera is the Head Pandit who proved the attendance register of Pasania U. P. School, Ext. K. 6. The prosecution, in order to prove its case, examined six witnesses of whom P Ws 1 and 2 are respectively the father and mother of the deceased and PW 3 is his brother; PW 4 is the medical officer who examined PWs 1 and 2; PW 5 is the medical officer who conducted the post mortem examination on the dead body of the deceased and PW 6 is the Investigating Officer. On a consideration of the entire evidence on record, the learned Addl. Sessions Judge believed the prosecution case and while convicting and sentencing the appellants, as stated above, acquitted accused Benudhar Panda and Jambeswar Rout accepting their plea of alibi and further acquitted accused Ananda Chandra Panda and Puspasena Kar primarily on the ground that their names did not find place in the FIR, Ext. 1. 7. In course of hearing on 28-3-1995, a memo filed by the learned counsel for the appellants stating therein that the appellant Nos. 4 (Ramesh Chandra Kar) and 13 (Babuli Pradhan) died during the pendency of the appeal was put up and the learned counsel for the State was given time to obtain instructions in the matter." On 26-4-1995, the learned Addl." Government Advocate stated on instruction that the information supplied by the learned counsel for the appellants in his memo was correct. In that view of the matter, the appeal against appellant Nos. 4 and 13 stands abated. We are, therefore, concerned about the remaining 14 appellants. Mr. G. N. Mohapatra, the learned counsel for the appellants has, urged that although the suggestions given by the defence to P Ws 1 to 3 and the evidence led by them clearly make out a case of right of private defence of person, the learned Addl. Sessions Judge went Wrong in his finding that the right of private defence was not the plea of the defence because the injuries on accused Puspasena Kar (since acquitted) and other accused persons took place at some place which is quite separate from the place where the deceased was attacked. Sessions Judge went Wrong in his finding that the right of private defence was not the plea of the defence because the injuries on accused Puspasena Kar (since acquitted) and other accused persons took place at some place which is quite separate from the place where the deceased was attacked. According to the learned counsel, the right of private defence of person was clearly available to the accused persons and as such, none of the accused persons could be convicted for having caused the death of the decessed Suresh. The learned Addl. Government Advocate, on the other hand, supports the impugned Judgment. In view of such rival contention, the first point for consideration is whether the right of private defence had not been raised by the accused persons and if the learned Addl. Sessions Judge was correct on discarding such plea. 8. Law is well settled that the right of private defence of person or property may not be boldly taken by an accused but if he gives suggestion to the prosecution witnesses, makes statement during his examination u/s 313 Cr PC or leads evidence which shows that he intends to raise such a plea, then his plea can be taken into consideration to find out if he is really protected by such right. As already indicated earlier, accused Upendra Kar first lodged the FIR, Ext. 3 on the same day at about 5 p. m. narrating, inter alia, that when accused Puspasena Kar protested to the cutting of some sugarcane plants from the bari of his uncle Ananda Chandra Kar, the deceased assaulted him by means of a Chheli causing injuries including amputation of his left thumb and on seeing such assaults when some of the accused persons went to his rescue, the parents and brother of the deceased (P Ws 1, 2 and 3) who were standing nearby being variously armed attacked them and on their retaliation they went away. Thus, it is clear that the FIR Ext. J makes out a case of right of private defence of person. Thus, it is clear that the FIR Ext. J makes out a case of right of private defence of person. Further, accused Puspasena Kar in his examination u/s 313 Cr PC stated that on the date in question at about 10 or 11 a. m. while he was going to the well situated near the sugarcane field for taking bath, Ankura Mallik with Farsa, Kanchan Dei with Bhala and Ramesh with Lathi were standing there and Suresh (deceased) was stealthily taking brinjal and sugarcane from the baris and giving them to his parents and on his protest Suresh assaulted him causing of severance of his left thumb and after he fell down on the ground also they assaulted him for which he lost his senses. Some of the accused persons namely, Khali Pradhan, Pitambar Kar and Gagan Bihari Kar also stated during their examination u/s 313 Cr PC that while they were in the 'SALAGHARA' (a shed in which sugarcane crushing takes place), they heard about the assaults on accused Puspasena Kar and on hearing as such, they went to the brinjal bari of their co-villager Budhi Barik and when they raised protest, Ankura Mallik, his wife and sons attacked them leaving Puspasena. In support of such statements, accused Puspasena Kar and Upendra Kar examined themselves as D Ws 5 and 6. When Ankura Mallik (PW 1) was examined in Court a denial suggestion was given to him by the defence that on the date of the occurrence at about 12 noon he and his wife and sons went in a body to the brinjal and sugarcane fields of accused Ananda Chandra Kar being armed with Chhela, Farsa. Bhali and Tarabari (sword) and when the deceased Suresh plucked brinjal and cut down sugarcane plants from the fields, accused Puspasena having raised protest. Suresh assaulted him with the weapons of offence held by him causing cut injuries and when some of the accused persons went to the rescue of Puspasena Kar, he and his parents and brother assaulted them with the weapons held by them near the brinjal bari of Budhi Barik. Similar denial and defence was also given to Kanchan Dei (PW 2) and Ramesh (PW 3). All these unmistakably point out that from the beginning till the end the defence has raised the plea of right of private defence of person. Similar denial and defence was also given to Kanchan Dei (PW 2) and Ramesh (PW 3). All these unmistakably point out that from the beginning till the end the defence has raised the plea of right of private defence of person. That being so, the finding of the learned Addl. Sessions Judge that the right of private defence had not been raised by the accused persons is unsustainable. 9. The correctness of the finding of the learned Addl. Sessions Judge in descarding the plea of right of private defence on the ground that the assaults on accused Puspasena Kar and some other accused persons occurred at a place separate from the place where the deceased was killed may now be examined. The learned Addl. Sessions Judge, while dealing with the liability of accused Upendra Kar has observed in Para-17 as under: "............ No independent witness having been examined by the defence in support of such plea, the accused has examined himself as DW 6 to speak of an incident which, as per his testimony, does not appear to have any connection with the occurrence of this case. It being neither party's case that there was collision, clash or fracas between both the parties at any particular place, the plea of the accused is not one of right of private defence. When the occurrence, according to the prosecution, as per the evidence of P Ws 1, 2 and 3 took place near the SALAGHAR of the occurrence village, the incident in respect of which this accused Upendra Kar claims to have lodged the FIR (Ext. When the occurrence, according to the prosecution, as per the evidence of P Ws 1, 2 and 3 took place near the SALAGHAR of the occurrence village, the incident in respect of which this accused Upendra Kar claims to have lodged the FIR (Ext. 3) is stated by him to have taken place in the Brinjal Kiari of one Budhi Barik adjoining the sugarcane field of Padma Charan Kar (accused), whereas accused Puspasena Kar having been examined as DW 5 to support the version of accused Upendra Kar has stated that the alleged incident had taken place near a well adjoining the sugarcane field of his uncle Ananda Kar (accused).........The discrepancies as pointed out above with regard to the place where the alleged incident relating to infliction of assaults by the deceased and the members of his family on the above named accused persons as stated in the FIR (Ext.3) lodged by this Excused Upendra Kar, are further contradicted in the FIR itself where the incident is alleged to have taken place in the sugarcane and Brinjal bari of accused Upendra Kar..................It shall, therefore, be irrelevant to probe into the truth or otherwise of any incident which took place at a different spot other than the place where the occurrence relating to the death of Suresh Mallik took place." From this observation, it appears that the learned Addl. Sessions Judge is of the view that unless the entire occurrence takes place at one and the same place, the question of right of private defence of person does not arise. No authority has been cited in support of such proposition which, in my opinion, is not at all sustainable. When an occurrence comprises of a quarrel followed by further quarrel and/or assaults and counter-assaults, the question of availability of the right of private defence of person becomes dependent on the further finding whether the entire occurrence is a continuous one or not. In such a case, a duty is cast on the Court to find out if the entire transaction is a continuous one and if it finds the same to be such, then it has to hold that the right of private defence, if raised, is available to the accused. On the other hand, if it will find that the entire transaction is not a continuous one, then it may hold that the right of private defence is not available. On the other hand, if it will find that the entire transaction is not a continuous one, then it may hold that the right of private defence is not available. The distinction may be clarified by giving example. Suppose 'A' quarrels with 'B' at a particular place and in course of such quarrel they move to a distance of about 500 yards where they again quarrel and inflict blows and counter blows. In such case, even if the subsequent quarrel and the blows and counter blows take place at a place distinct and far away from the place where they first quarrel, the right of private defence becomes available to the accused. If 'A' and 'B' disperse from the place after quarrelling with each other and dealing blows and counter blows and then two days after they quarreled with each other and exchange blows and counter-blows, the first and second occurrences cannot be said to be a continuous one because of the time gap and in such a case the accused cannot raise the right of private defence by saying that for the first occurrence he is entitled to such right for the second occurrence. 10. Keeping this in the background let us examine the evidence on record to find out if the entire occurrence is a continuous one or not. In this connection the topography of the spot may now be seen. According to Ankura Mallik (PW 1), 'SALAGHARA' is at a distance of about 500 cubits from the pond where he was allegedly informed by his son Ramesh (PW 3) about the assaults on his other son, the deceased. His evidence further shows that the brinjal kiari of Budhi Barik is close to the sugarcane field of accused Ananda Chandra Kar. The evidence of PW 5 is to the effect that there was a well near the sugarcane field of accused Ananda Chandra Kar where he was going to take his bath. According to PW 6 Upendra Kar, the place of assaults on Puspasena is about 150 cubits from 'SALAGHARA'. All these evidence leave no room for doubt that the pond, 'SALAGHARA', the brinjal field of Budhi Barik, the sugarcane field of accused Ananda Chandra Kar and the well were within a very small compass and the well, sugarcane field and the brinjal bari were adjoining one another. All these evidence leave no room for doubt that the pond, 'SALAGHARA', the brinjal field of Budhi Barik, the sugarcane field of accused Ananda Chandra Kar and the well were within a very small compass and the well, sugarcane field and the brinjal bari were adjoining one another. The prosecution case, as already indicated, is that while the decased Suresh was there near the sugarcane field of accused Ananda Chandra Kar, the accused persons being variously armed assaulted him. According to the defence, while accused Puspasena was going to take his bath to the aforesaid well he found the deceased Suresh plucking brinjals and cutting sugarcane plants and handing over them to his mother (PW 2) who was standing there with her husband Ankura Mallick (PW 1) and his other son Ramesh (PW 3), all being variously armed, and when he raised protest, the deceased Suresh assaulted him with the Chheli he was holding and on his raising alarm when some other accused persons came and raised protest they were also attacked. All these clearly point out that the entire occurrence took place at one place and the same is a continuous one. That being so, the finding of the learned Addl. Sessions Judge that the assaults on some of the accused persons took place at a separate and distinct place from the place where the deceased was done to death is not at all sustainable. 11. It is then to be found out whether the accused persons who assaulted the deceased resulting in his death are protected by their right of private defence. Section 97 IPC says, inter alia, that subject to the restrictions contained in Section 99, every person has a right to defend his own body, and the body of any other person, against any offence affecting the human body Section 99 contains three parts. The first two parts deal with situations where acts are done either by a public servant himself or at his direction and as such, they do not apply to the present case. The third part merely says 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. The third part merely says 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. After the third part, the section gives the extent to which the right may be exercised Section 100 IPC says as to when the right of private defence of the body extends to causing death. It consists of six clauses and the first and second clauses say that the right of private defence of the body extends to the voluntarily causing death or of any harm to the assailant, if the offence which occasions the exercise of the right be such an assault as may reasonably cause the apprehension that death or grievous will otherwise be the consequence of such assault. DW 2 Dharanidhar Pandaba was the medical officer attached to Government Hospital, Banki at the material time and his evidence is that on 21-1-1982 accused Puspasena Kar was treated by him at the said hospital for three injuries on his person. His evidence is, that accused Puspasena had a cut injury on his left thumb which had been amputed before his admission to the hospital, besides an incised wound on his left shoulder and Anr. incised wound on the dorsal aspect of his right thumb. According to him, the injury on the left thumb was caused by a Chhela. The evidence of accused Puspasena Kar (DW5) is to the effect that when he raised protest against the action of the deceased in plucking brinjals and cutting sugarcane plants, the latter assaulted him with the Chhela he was holding cutting his left thumb and further assaulted him with that Chhela on his arm even after he fell down on the ground. The evidence of accused Upendra Kar (OW 6) is that on hearing the alarm raised by accused Puspasen3 (DW 5) when he went running to the brinjal bari of Budhi Barik, he found DW 5 lying on the ground and Ankura Mallik (PW 1) and his wife and sons assaulting him with the weapons held by them. His further evidence is that when he raised protest along with some other accused persons he was assaulted by Ankura Mallik (PW 1) with a Farsa a little above his right waist and similarly accused Pitambar Kar and Gagan Bihari Kar were also assaulted. His further evidence is that when he raised protest along with some other accused persons he was assaulted by Ankura Mallik (PW 1) with a Farsa a little above his right waist and similarly accused Pitambar Kar and Gagan Bihari Kar were also assaulted. His categorical evidence is that if they had not arrived at the spot accused Puspasena would have been killed. Ankura Mallia (PW 1) and his wife and son (PWs 1, 2 and 3) have no doubt stated that they and the deceased were unarmed at the time of the occurrence, but it is difficult to believe their evidence for two reasons, the first being that at least three of the accused received injuries in that incident of whom occused Puspasena (DW 5) received three incised wounds and the second being that they have denied having seen any of the accused persons to have received any injury which is false. In view of the evidence of accused Puspasena Kar and Upendra Kar (DWs 5 and 6) and the medical evidence, as stated above, the presence of Ankura Mallik (PW 1) and his wife and sons with weapons of offence in their hands at the time of the occurrence can hardly be ruled out. Further, the positive evidence of DW 6 th3t if they had not gone to the spot, the accused Puspasen3 would have been killed cannot also be ruled out particularly when Puspasena had three incised wounds on his person. Again, the evidence of those witnesses that Ankura Mallik (PW 1) and his wife and sons also attacked when they came to the rescue of Puspasena cannot be ruled out when two other accused persons, besides Puspasena had also received injuries on their persons. Under these circumstances, it becomes very reasonable to hold that when accused Puspasena was being assaulted by sharp cutting weapons, the accused persons being apprehensive of his death or grievous hurt on him might have assaulted the deceased to death. Their acts are therefore, squarely protected by the first and second clauses of Section 100 IPC. That being so, their conviction cannot be sustained in law. 12. In the result, the appeal is allowed, the conviction and sentence passed against the appellants are hereby set aside and they are acquitted. The bail-bond filed by them stand cancelled. Final Result : Allowed