Sharfuddin Ahmed, J.- The respondents, ten in number, hereinafter called the accused were charged for offences punishable under sections 147, 148, 302 read with section 34 or 149, 326, 324, 323 read with sections 34 or 149 and 426, Indian Penal Code and under section 19(a) of the Indian Arms Act before the Additional Sessions Judge, Masulipatnam in Sessions Case No. 19 of 1962. It was alleged that having constituted themselves into an unlawful assembly with the common object of resisting any attempt on the part of the prosecution witnesses to remove a bund, the accused inflicted injuries on the prosecution witnesses and caused the death of three of them by the use of fire arms, while the latter attempted to remove the bund. The dispute relates to the cross-bunding of a portion of a small tank known as Gabbilalakunta in Surampally village, which as formerly a Mokhasa village lying in the Zamindari of Mirzapuram. A-1 to A-4 are Mukhasadars, i.e., sharers in the Mukhasa which has been acquired by the Government in 1950. They have wet cultivation on the south of the said Kunta. In Government records for some time this Kunta was registered as ‘A’ Register Poramboke and there is no controversy as regards its ownership vesting in the Government subsequent to the abolition of estates. A portion of this kunta was occupier by some of the prosecution witnesses, viz., P.Ws. 13, 14 and others who are referred to hereinafter asoccupiers. It is the case of the occupiers that they were cultivating eastern portion of the land and raising crops from a number of years even prior to the acquisition of the estate by the Government. The Kunta was rain-led and, therefore, due to paucity of rain water they did not cultivate the lands for three years 1958-1960. They resumed cultivation in 1961, but even prior to it, on the interference of the Mukhasadars they had filed a suit, O.S. No. 219 of 1957, on the file of District Munsif’s Court, Nuzvid, for restraining the Mukhasadars from interfering with their possession and obtained an interim injunction, which was ultimately confirmed. As stated earlier it was in June, 1961 the occupiers raised crop after a lapse of nearly three years. As stated earlier it was in June, 1961 the occupiers raised crop after a lapse of nearly three years. On 4th September, 1961 there was heavy rain ana it is the case of prosecution that on 5’h September, 1961, the accused-Mukhasadars put up a cross-bund on the western side of the Kunta with the result that the crop raised by the occupiers was completely submerged. The occupiers thereupon caused a breach in the bund, but it was restored by the other side. The Mukhasadars-accused apprehending further attempt on the part of the occupiers raised two huts by way of shelter near the bund and kept a watch over it armed with sticks, spears and a DBBL gun to meet any resistance on the part of the occupiers. The Mukhasadars claimed that this Kunta had been declared an irrigation source for their wet lands, that the bund was already there and the occupiers were trying to remove the bund so asto cause damage to their property. While so, the occupiers filed a petition before the Station House Officer on 6th September, 1961 complaining of the damage to their crop and a Constable P.W. 31 was deputed by the Station House Officer to have the bund removed. The said Constable along with P.C. No. 1340 went to the Kunta on 7th September, 1961 and found that there was a bund on the Western side which appeared to have been newly raised. There were two huts also near the said Kunta. A-1, A-2 and A-10 were present at the place of offence and on being apprised of the directions given by the Sub-Inspector they told him that if they were having any Government Order they were willing to abide by it, otherwise the bund could not beremoved. The constable returned to the Station House directing the parties to come to the Police Station to meet the Sub-Inspector and reported the matter to the Station House Officer. Two days later a Head Constable (P.W. 32) was deputed for the same purpose, obviously as the parties did not appear before the Sub-Inspector. This was on 9th September, 1961. He visited the spot along with the Village Officers and on his directions to remove the bund he was told that it will be removed only under Government Orders. He was told that if anyone tried to remove the bund he will be shot. This was on 9th September, 1961. He visited the spot along with the Village Officers and on his directions to remove the bund he was told that it will be removed only under Government Orders. He was told that if anyone tried to remove the bund he will be shot. The Head Constable took bonds from some of the accused and also from occupiers to appear before the Sub-Inspector, and not to dispute over the bund, and submitted a report (Exhibit P-82) to the Sub-Inspector. Having failed in their attempt to have the bund removed with the assistance of the Police the occupiers sought the help of respectable persons of the village and of the adjoining villages. In that connection they approached P.Ws. 1, 2, 3, 4, 5, 6, 7, 8, 11, 12 and the deceased to mediate on their behalf and to persuade the Mukhasadars-accused to remove the bund. They volunteered to do so and pursuant to it gathered at the village panchayat office on the morning of 10th September, 1961. A person was deputed to find out whether the Mukhasadars were in their house or at the site. They were told that the accused-Mukhasadars were at the disputed bund. Thereupon, the prosecution witnesses in company with the occupiers proceeded to the scene of offence. It is their case that they were unarmed and had gone there only to persuade Mukhasadars to remove the bund so as to save the crop of occupiers from damage and deterioration. The party reached the Kunta at about 10 a.m. ana found the Kunta full of water. On the Western side a new bund was visible. Two huts were also standing on one corner of the bund. A-1 to A-6 and A-8 to A-10 were near the huts. A-2 and A-4 were carrying spears and A-10 was standing at the south-east corner of the hut 25 yards away, carrying a DBBL gun. The others were carrying sticks. The prosecution witnesses approached A-1 to A-4 and requested them to remove the bund to save the crop of the poor occupiers, but the accused were adamant. Thereupon, the occupier and others tried to remove the bund themselves. The accused began to beat the prosecution party. Then these men snatched sticks from some of the accused and began to belabour them. Thereupon, the occupier and others tried to remove the bund themselves. The accused began to beat the prosecution party. Then these men snatched sticks from some of the accused and began to belabour them. A-10 who was standing at a vantage called his party men to fall back and then fired three shots in different directions hitting and killing three of the members of the prosecution party. Thereafter, the accused left the place and prosecution party proceeded in a bus to Vijayawada for treatment of the injured persons at the Government Hospital, Vijayawada. At about 1-30 p.m. on the same day the Deputy Superintendent of Police, Vijayawada, visited the hospital and recorded the statement of P.W. 1 under Exhibit P-1 and thereafter investigation proceeded. The accused meanwhile went to the village munsif of Surampalli and gave a report of the incident, Exhibit P-34. On these facts a charge-sheet was laid against the accused under various sections of the Indian Penal Code and also under section 19 of the Arms Act. The learned Sessions Judge on examining as many as 40 witnesses on behalf of prosecution acquitted the accused, as in his opinion the prosecution evidence was not believable and that the accused had acted in exercise of their right of private defence. The complaint filed by the accused which forms the subject-matter of Sessions Case No. 9 of 1963 was also dismissed. The State has now come in appeal against the order of acquittal. Before proceeding to examine the elaborate arguments advanced ineither side and the evidence on record some facts which do not admit of any controversy may be stated. The village of Surampalli is a Mukhasa Village in the Zamindari of Mirzampuram. It was taken over by the Government sometime in1950 under Estates Abolition Act. Gabbilalakunta (shortly referred to as Kunta) comprises of 11 acres of land. A-1 to A-4 are Mukhasadars and have lands to the south of this Kunta to the extent of 80 acres. There is also a tank called Erracheruvu north west of this Kunta about two or three furlongs away therefrom with a channel leading water from this tank to various fields. Subsequent to the abortion of the estates this Kunta was registered in Government records as ‘A Register Poramboke’ (Exhibit P-27) and consequently it vested in the Government. There is also a tank called Erracheruvu north west of this Kunta about two or three furlongs away therefrom with a channel leading water from this tank to various fields. Subsequent to the abortion of the estates this Kunta was registered in Government records as ‘A Register Poramboke’ (Exhibit P-27) and consequently it vested in the Government. The occupiers who are Harijans were cultivating a part of this kunta on the eastern side from considerably a long time and paying cist, though there is data on record to show that these were booked as encroachments by the authorities. The village Karnam. (P.W. 20) has deposed that subsequent to the inspection by the Tahsildar (P.W. 25) on 11th August, 1961, he prepared ‘B’ Memos. and eviction notices against the six occupiers and sent them to the Tahsildar for signature. However, these notices were never returned after the signature of the Revenue Divisional Officer. Be that as it may, the fact remains that the occupiers were in cultivation of the eastern portion of this Kunta and were paying cist. Subsequent to the settlement this Kunta was registered as an irrigation source This seems to be the starting point of the trouble which ultimately resulted in the clash between the parties. Exhibit X-1 is the plan prepared by the Settlement Department in 1957 wherein the Kunta is shown as irrigation tank in the Revenue accounts. Exhibit X-2 is the plan in the Fields Measurement Book relating to this Kunta which indicates that a channel from Erracheruvu passes along this Kunta There is however, nothing on record to show how the lands owned by Mukhasadars were being irrigated, but the Karnam and so also the Tahsildar (P.W. 25) have spoken to the facts that there was no ayacut under this Kunta and that the Kunta was purely fed by rain water, and that there is, one cement spout and two palmyrah spouts in the lands of Mukhasadars, through which rain water flows in to the lands from out of the Kunta. The lie of the Kunta seems to be from east to west and the existence of the cement spout and other spouts would suggest that there waft-some sort of bund or elevation on the western Side which permitted accumulation of rain water in the Kunta. The lie of the Kunta seems to be from east to west and the existence of the cement spout and other spouts would suggest that there waft-some sort of bund or elevation on the western Side which permitted accumulation of rain water in the Kunta. It is on the registration of this Kunta as an irrigation source by the Settlement Department, the Mukhasadars seem to have entertained an idea of developing this source to their benefit by laying or renovating the bund and preventing occupiers from cultivating any portion of this Kunta. The petitions filed by them to the District Collector, Krishna on 30th June, 1961 (Exhibits D-43 and D-44)-one in English, and the other in Telugu-and the suit filed by the occupiers in the D strict Munsif’s Court, Nuzvid (O.S. No. 219 of 1957) praying for a direction to the Mukhasadars and their men by means of a permanent injunction from interfering in any manner with their possession and enjoyment of the plaint schedule lands is a clear indication of the efforts on the part of the Mukhasadars. In Exhibits D-43 and D-44 the Mukhasadars complained to the Collector that ever since the Kunta was taken over by the Government there had been no repairs carried out to it due to which the bund is in a dilapidated condition. There were also four sluices and two breaches to the tank as a result of which water could not accumulate adequately and requisite water was not being supplied to its ayacut It was also mentioned that if the tank under reference was immediately repaired there was scope of another 50 acres of land being irrigated with the supply of water from this Kunta. There was also a prayer that the occupiers were trying to cultivate the tank bed by foul means and if they were not evicted from the tank bed the Mukhasadars will sustain heavy loss. This was on 30th June, 1961. There is nothing on record to show what the District Collector or Revenue authorities did in the matter apart from making endorsement for necessary action. This was on 30th June, 1961. There is nothing on record to show what the District Collector or Revenue authorities did in the matter apart from making endorsement for necessary action. It has been stated that the visit of the Tahsildar (P.W. 25) on 11th August, 1961 i.e., nearly two months later was pursuant to this direction but as mentioned above the report of the Tahsildar submitted to the Revenue Divisional Officer does not form part of the record, nor there is any indication of the Revenue Divisional Officer making any move in the matter. The suit filed by the occupiers (O.S. No. 219 of 1957) reveals that the occupiers were claiming possession of the tank-bed for the past seven years on payment of cist to Government. Their contention was that the Mukhasadars-defendants in the suit were attempting to trespass, on the land and spoil the crop, and the relief sought was to restrain the defendant-Mukhasadars by permanent injunction from ever interfering in any manner with the possession and enjoyment of the suit property. Subsequent to the filing of the suit, Exhibit P-5 (I.A. No. 1036 of 1957) was filed seeking interim orders under Order 39, Rules 1 and 2, Civil Procedure Code and an interim injunction was made on 21st August, 1957. It was made absolute on 3rd February, 1960 as the respondents i.e., the Mukhasadars had not been diligent to get the interna injunction vacated. The temporary injunction was for restraining the respondents from interfering with the possession and enjoyment of the plaintiffs-occupiers. It is to be noted that in the same suit interim injunction was obtained through Exhibit D-47 by the Mukhasadars-defendants as well. That was on 27th August, 1957 restraining the plaintiffs-occupiers from opening the sluices or out-lets or cutting any breaches to the bund of the tank situated in S. No. 44 if there was any found under it. This was subsequently confirmed. The parties thus had in their possession orders from a competent Court in support of their rival claim. The order in favour of the Mukhasadars, however, was subject to the existence of a bund. Whatever may be the criticism in regard to the feasibility of this order the fact remains that the existence of the bund in view of this injunction order assumed considerable significance, and before proceeding further, evidence on this aspect requires consideration. The order in favour of the Mukhasadars, however, was subject to the existence of a bund. Whatever may be the criticism in regard to the feasibility of this order the fact remains that the existence of the bund in view of this injunction order assumed considerable significance, and before proceeding further, evidence on this aspect requires consideration. According to the petitions referred to above (Exhibits D-43 and D-44) filed by the Mukhasadars themselves in June, 1961 it is evident that the bund to which a reference has been made in the petition was in a dilapidated condition. The reference is obviously to a bund which contains sluices and two breaches as a result of which water could not accumulate adequately. It would be presumed therefrom that the bund, if any, was in a dilapidated condition. The evidence of the Tahsildar (P.W. 25) and the Commissioner appointed in the Civil Suit (O.S. No. 219 of 1957) is of considerable importance in this regard. P.W. 25 visited the disputed Kunta on 11th August, 1961. According to him there was no bund on the western side of the Kunta and Ac. 2-47 cents of land was found under the cultivation of the occupiers the crop being four weeks old. The entire extent of the Kunta was Ac. 10-87 cents. Even in the cross-examination this fact was elicited from him and he emphatically stated that at the time of his inspection there was no bund to the West of the Kunta. The Commissioner, P.W. 27, a practising advocate at Nuzvid inspected the Kunta on 31st August, 1957 in accordance with the directions of the Court and filed a report, Exhibit P-13. According to him when he accompanied the Investigating Officer in October, 1961 he noticed a bund on the western side which was not in existence at the time of his previous visit. His report Exhibit P-13, however, indicates the existence of a cross-bund on the canal covered with new earth, but there is nothing to show that it referred to the bund in dispute. So that, the existence of the bund at least in the present condition does not find support from this evidence. The testimony of the village officials is also to the same effect. So that, the existence of the bund at least in the present condition does not find support from this evidence. The testimony of the village officials is also to the same effect. The injunction order in favour of the Mukhasadars, restraining the occupiers from opening sluices or outlets to the bund of the tank subject tothe condition that the order would operate only if there was any bund would also indicate that even in 1957, when the order was made, the existence of the bund was in dispute. The plea of the Mukhasadars-accused, therefore, that the bund was in existence for a long time is not acceptable and this is the conclusion reached by the lower Court on evidence. A further fact which lends support to this conclusion is that the occupiers were cultivating the land from a considerably long time. If the bund was in existence, probably they would not have been able to cultivate the said land. Obviously, the dispute had arisen either as Mukhasadars laid a bund or renovated it so as to cause accumulation of water to the detriment of the crop raised by the occupiers. This tampering with the bund led the occupiers to approach the Police for assistance and to the visit of the Constable and the Head Constable to the scene of offence some time prior tooccurrence. Even then the complaint was that water had been diverted from a neighbouring channel and made to accumulate in the Kunta by laying a cross bund with the result that the paddy crop grown by the occupiers had submerged. Exhibit P-2 was presented on 7th September, 1961, tothe Sub-Inspector of Police, Gannavaram who endorsed on it to send for the parties at once. It is in pursuance of this order that the Constable and later the Head Constable visited he spot. The plea of the accused also is to the effect that after heavy rains on the 4th September, 1961, the occupiers had breached the bund, but they restored the bund and were keeping a watch over it. It can, therefore, be safely concluded that the bund in its present form was not in existence and the Mukhasadars-accused had laid or repaired it to the annoyance of the occupiers. It can, therefore, be safely concluded that the bund in its present form was not in existence and the Mukhasadars-accused had laid or repaired it to the annoyance of the occupiers. It has been urged on behalf of the Mukhasadars-accused that in view of the injunction order they were within their bounds in maintaining the bund and preventing any damages to the said bund as it was the source of irrigation for their lands or at least they were bona fide exercising their rights. But, this argument overlooks the fact that the injunction order was subject to the existence of a bund and at the most the Mukhasadars-accused were entitled to the supply of water. If there was any attempt to breach the existing bund on the part of the occupiers they were responsible to the Court for disobeying the injunction order and similarly, if the source of irrigation was destroyed, they would be liable to damages. The persons injured would also have a remedy against the Government inasmuch as it had undertaken to supply water for the irrigation of their lands. In these circumstances, the question for consideration is how far the Mukhasadar, were justified in resisting the attempt on the part of the occupiers to breach the bund which as found above, had come into existence as a result of their own efforts. The other aspect which has to be borne in mind is whether the occupiers were competent to remove the bund of their own accord. This takes us to the consideration of the main events of the case. The incident took place on 10th September, 1.96.1 at about 10 a.m. A day earlier P.W. 32, the Head Constable of Station House, Gannavaram, visited the bund along with three Constables and the Village Officers. This was on the basis of a complaint filed by the occupiers, Exhibit P-2. He reached Surampalli by 11 a.m. and went to the Kunta and found A-1 to A-5, A-10 and others present round about the huts which had been set up on the edge of the bund. In one of the huts he noticed a gun also and enquired to whom it belonged. A-1 said, it belonged to him and admittedly he is a licence-holder. He found the crop in the Kunta under water. In one of the huts he noticed a gun also and enquired to whom it belonged. A-1 said, it belonged to him and admittedly he is a licence-holder. He found the crop in the Kunta under water. He questioned the accused as to why they had raised the bund and asked them to remove it. Thereupon, A-10 replied that the bund could not be removed so easily unless a Government Order to that effect was produced. He further said that if any one tried to remove the bund forcibly he would be shot dead with the gun. The Head Constable then asked the parties not to dispute in that manner and bound them over to appear before the Sub-Inspector of Police next morning. Exhibits P-79 and P-80 are the bonds. A-2 and A-3 signed in one bond and the occupiers executed the other bond. The witness returned to Gannavaram and after making entries in the General Diary, gave a report, Exhibit P-82, to the Station House Officer. One would expect that having regard to the tension he would have seized the gun.but probably did not have the courage to do so. Otherwise, his statement does not suffer from any infirmity and is fully corroborated by the report, Exhibit P-82 which he gave of the incident to his immediate superiors. The position that emerges from his statement is fairly clear viz., that the Mukhasadars were not inclined to remove the bund unless there were Government orders to that effect and to defy any attempt to remove it. It is the case of prosecution that the occupiers having failed to get the bund removed with the assistance of the Police sought the help of respectable people of their village and of the adjoining village to persuade the Mukhasadars to remove the bund and save them from damage. P.W. 13, one of the occupiers has described the subsequent events in considerable details. According to him after the Police left, he went behind them to Savarugudem. There he met P.W. 1 and told him that in spite ofa report the Police could not do anything. Then P.W. 1 took him to Gannavaram saying that he would meet the Tahsildar. At Gannavaram he met P.W. 11 at the coffee hotel and apprised him of the situation. There he met P.W. 1 and told him that in spite ofa report the Police could not do anything. Then P.W. 1 took him to Gannavaram saying that he would meet the Tahsildar. At Gannavaram he met P.W. 11 at the coffee hotel and apprised him of the situation. P.W. 11 told him that A-1 to A-4 were respectable persons and that they would persuade them to remove the bund. While returning via Mustabada he came across other witnesses who promised to come to his rescue. Then they went to the respectable people of Medarapalem and told P.W. 5 and others of their predicament. Next morning he went to the Panchayat office to see if any one had arrived there or not. P.W. 1 was there. A little later P.Ws. 4, 5, 7, 8, 11 and 12 came over there. One of them sent him to find out if the Mukasadars were at their house. Accordingly the witness went and found that the doors were closed. Somebody told them that they were at the Kunta. By that time other cultivators had also collected at the Panchayat Office. Then all of them numbering about 20 went to the Kunta. A-1 to A-9 were standing near the bund. A-2 and A-4 were carrying spears while others were having sticks. A-10 was standing 30 yards south-east of the huts with a gun in his hand. P.Ws. 1, 4, 11 and the deceased Rama Rao told the accused No. 1 and 2 that the bund might be removed and that thereafter they would discuss what was proper. The accused refused to remove the bund. Then the cultivators went to remove the bund. A-1 to A-9 coming from opposite directions began to beat them. P.Ws. 3, 5 and 7 intervened. A-1 to A-9 began to beat them also with sticks. P.Ws. 5, 7, and 8 snatched the sticks from some of them and began to beat A-1, A-2. and A-4. Then A-10 shouted his men to come back so that he might shoot. Then all the accused went back. P.W. 1 and Rama Rao deceased proceeded towards A-10 and challenged him to shoot saying that they were prepared to be shot in the interests of justice. A-2 exhorted A-10 to shoot. Thereupon, A-10 shot Rama Rao who fell down shouting “Amma” and P.W. 1 also sat down. A-10 then fired a shot westwards. Then all the accused went back. P.W. 1 and Rama Rao deceased proceeded towards A-10 and challenged him to shoot saying that they were prepared to be shot in the interests of justice. A-2 exhorted A-10 to shoot. Thereupon, A-10 shot Rama Rao who fell down shouting “Amma” and P.W. 1 also sat down. A-10 then fired a shot westwards. One person China Anjayya died. Then he fired a shot northwards. Lakshmaiah died and P.W. 10 and others were injured. The witness went away to Nekkalam out of fear and returned the next morning to the village after hearing that the Police had arrived. This is the version given by almost all the prosecution witnesses including the persons injured with minor deviations. But, the learned Sessions Judge has disbelieved their evidence as according to him they “had made strenuous efforts to give false evidence giving a twist to the whole case from beginning to end”. Most of discrepancies noted by him, however, are hardly material. No doubt it is a fact that almost all the witnesses examined on behalf of prosecution either belonged to Communist Party or had sympathies and affiliations with the said party. In other words, they are partisan witnesses and their testimony has to be carefully sifted before any weight can be attached to it. As against this version, the case of the Mukasadars-accused, as stated by A-1, is that on the morning of that day at about 8-30 members of the Communist Party were heard shouting slogans. They were shouting that they would kill Mukasadars. They were 200 to 300 strong and shouting “Jai to Communist Party. We shall kill Mukhasadars. We shall build tombs of Sivaiah and Babiah, etc.” Apprehending danger to their life and property he went to the bund taking the gun in his hand from his house but when he reached the bund he found that all his younger brothers had fallen down and one of them shouted: “We are dying elder brother”. Then he raised his gun and fired towards west and north to save their lives. One group came from western side saying: “Siviah came. Let us kill him”. They came near to him and hit him on his head. He turned to them and fired killing Rama Rao. Thereupon, the occupiers and others gave way and the Mukasadars went to the house of the V.M. and gave a report. One group came from western side saying: “Siviah came. Let us kill him”. They came near to him and hit him on his head. He turned to them and fired killing Rama Rao. Thereupon, the occupiers and others gave way and the Mukasadars went to the house of the V.M. and gave a report. It is their case that A-10 was not present and it was only A-1 who had used the fire-arm. On a careful perusal of the evidence, I am of the opinion that the contention of the prosecution witnesses that they had goneunarmed and for the purpose of mediation alone is no. acceptable. The injuries on the Mukasadars (respondents) as deposed to by P.W. 23, a Woman Assistant Surgeon, clearly establish that the prosecution witnesses, at least some of them, were armed with Sticks and possibly spears. A-1 had 10 injuries on his person, which were, however simple and could have been caused by a blunt weapon like stick. A-2 had eight injuries of which injuries Nos. 3 and 6 were grievous. While injuries Nos. 1 to 7 could have been caused with sticks, injury No. 8 was attributable to a Spear. A-3 had two injuries, which were simple in nature and Gould have been caused by a weapon like spear and Stick. A-4 had a grievous injury caused by a stick. A-5 had four simple injuries and A-6 had five simple injuries on his person, all caused by sticks. A-7 and A-8 had also simple injuries caused by sticks. A-9, however, did not have any injury. It is clear from this evidence that almost all the accused with the exception ofA-9 and A-10 had been severely dealt with. Obviously, this could not have happened by merely snatching the sticks from the accused. Further, the attempts on he part of the occupiers to produce the desired result, viz., of getting the bund removed had failed thrice previous to the occurrence. Once they had gone alone and requested the Mukasadars to remove the bund. The Mukasadars-accused had refused to oblige them. For the second time they went in company with a Police Constable. Even then they were unsuccessful. For the third time they took the Head Constable along with village officials. Even then the Mukasadars were adamant. Once they had gone alone and requested the Mukasadars to remove the bund. The Mukasadars-accused had refused to oblige them. For the second time they went in company with a Police Constable. Even then they were unsuccessful. For the third time they took the Head Constable along with village officials. Even then the Mukasadars were adamant. Having failed thrice, it is too much to expect that they were making a fourth attempt at mediation and had no intention of forcing the issue if necessary. Moreover, some of the prosecution witnesses have conceded that there was mutual beating and it was in the course of mutual beating that the shots were fired. The claim on behalf of the prosecution witnesses, therefore, that they had gone only for mediation and the accused started beating, and not satisfied with that used the fire-arm also does not stand to reason. On an analysis of the evidence the case appears to be that the prosecution party in sufficient number, some of them armed with sticks and spears, went to remove the bund or open the sluices. Thereupon, there was resistance by the other side. The prosecution witnesses then resorted to violence and the Mukasadars-accused retaliated in self-defence. The three shots were also fired in the same connection. The presence of gun-shots injuries on most of the prosecution witnesses would go to show that the Mukasadars were not fully prepared for the attack and they had mostly to rely on the gun for their defence. P.W. 1 no doubt has received injuries which could be caused by a blunt weapon, but injury No. 1 on his person according to the Woman Assistant Surgeon (P.W. 23) was caused by a gun-shot splinter. P.W. 9 had received a gun-shot wound; so also P.Ws. 3 and 8. P.W. 4 had simple injuries which could have been caused by a blunt and sharp-edged weapon. P.Ws. 5 and 7 also had similar injuries. P.W. 6 had again a gun-shot wound. Much has been made of the fact that three shots were fired in different directions hinting at deliberate shooting down of certain individuals, but there is nothing on record to suggest that the unfortunate individuals who lost their lives in the incident had anything particular to do with the land in dispute or were inimically disposed towards the accused. Much has been made of the fact that three shots were fired in different directions hinting at deliberate shooting down of certain individuals, but there is nothing on record to suggest that the unfortunate individuals who lost their lives in the incident had anything particular to do with the land in dispute or were inimically disposed towards the accused. Some of the prosecution witnesses have conceded that they did not give way and the fighting did not come to an end till the three shots were fired and it is only after the three shots were fired that the parties disengaged themselves. It has been all along the case of the accused that if the shots had not been fired, they would have been killed on the spot. The firing of the gun in three different directions therefore, cannot be considered a deliberate act on the part of the person who fired the shots. Having regard to the fact that both the parties had time to approach the appropriate authorities for redress instead of forcing the issue by taking law in their hands, I am inclined to treat the prosecution party as aggressors and, therefore, the respondents-accused would be deemed to have acted in exercise of their right of self and private defence. The question whether the respondents-accused have acted in excess of their right of private defence is not easy to decide. The matter has to be adjudged taking into consideration the background of the case, temper of the parties involved in the conflict, the position of arms, the nature of dispute, relative strength of the contestants and many other factors. In the instant case, much stress is laid on the fact that the bund which the accused were seeking to protect, did not belong to them-at the most they had the right to take water from the said Kunta. Secondly, the attitude of the accused was one of defiance-they had raised the huts and were guarding the bund armed with a gun threatening to shoot anybody who interfered or tried to meddle with the bund. Lastly, it is pointed out that the shots were fired after the members of the accused party had withdrawn and that explained the absence of any gun-shot wounds on the accused. It is urged therefrom that the shots were deliberately fired not in the heat of the moment or for self-preservation. Lastly, it is pointed out that the shots were fired after the members of the accused party had withdrawn and that explained the absence of any gun-shot wounds on the accused. It is urged therefrom that the shots were deliberately fired not in the heat of the moment or for self-preservation. No doubt the bund did not belong to the accused but the right to receive water could only be enjoyed if the bund was preserved. The accused could be labouring under the bona fide belief that the preservation of the bund was their liability having failed to secure relief from the authorities concerned. Further, there was a subsisting injunction in their favour restraining the other side from interference with the bund. The accused, therefore, felt justified in resisting any attempt on the part of the occupiers or their sympathisers to open the sluices or remove the bund. The defiant attitude of the accused seems to be the result of the mistaken notion that the preservation of the bund was their responsibility. That apart, no criminal liability could be imposed upon them merely because of their defiant attitude prior to the occurrence. At the most it indicated a preparedness on their part to meet any eventuality. The story set out by the prosecution witnesses that A-10 recalled his party-men and thereafter A-10 fired the shots has not been found to be acceptable as some of the prosecution witnesses themselves have conceded that the gun has been used while the mutual beating was going on. The absence of pellet wounds on any of the accused, however, lends support to the prosecution version, but that is not the only possible or reasonable explanation. The 1st explanation is that the accused might have fallen down while the shots were fired as alleged by some of them, particularly by A-1 in the case. According to him when he reached the spot armed with the gun, he found his brothers had fallen down and on seeing him they shouted for help. Thereupon, he claims to have fired the two shots and the third shot was fired when he was himself being belaboured. The second possible explanation is that the shots were fired at a very close range, i.e., before the pellets could spread out. The discovery of wad in the wounds of one of the injured persons justifies this inference. Thereupon, he claims to have fired the two shots and the third shot was fired when he was himself being belaboured. The second possible explanation is that the shots were fired at a very close range, i.e., before the pellets could spread out. The discovery of wad in the wounds of one of the injured persons justifies this inference. On an anxious consideration of the entire evidence, I am inclined to hold that notwithstanding the fact that three unfortunate persons lost their lives it is difficult to conclude that the respondents-accused had exceeded their right of private defence. It has been repeatedly held that the extent of the private defence cannot be weighed in too fine a set of scales or in golden scales. A third aspect to which I have adverted my attention is that both the parties were not justified in forcing the issue. In other words, both the groups were members of an assembly, the object of one of which was to protect a supposed right and the aim of the other was to preserve their crop by removing the obstacle. But from the evidence on record my conclusion is that the attempt on the part of the occupiers to forcibly remove the bund amounted to aggression. The accused therefore, who bad stationed themselves at the bund for maintaining by force or by a show of force a right which they bona fide believed to have possessed did not constitute an unlawful assembly. It could not, therefore, be a case of free fight and the right of private defence was available to the accused. In that context it is immaterial to consider whether the fatal shots were fired by A-10 or by A-1. This on a careful consideration of all the aspects of the case, I am not inclined to disturb the finding of acquittal recorded by the lower Court. In the result, the appeal filed by the State fails and is dismissed. Mohd. Mirza, J.-I regret I could not persuade myself to agree with the conclusions arrive dat by my learned brother Sharfuddin Ahmed, J. This is an appeal filed by the State against the acquittal of the respondents by the learned Additional Sessions Judge, Masulipatam. The respondents were A-1 to A-10 in the lower Court and they will be referred to as such in this judgment. The respondents were A-1 to A-10 in the lower Court and they will be referred to as such in this judgment. Shortly the facts of the case may be stated to appreciate the points involved. Surampalli is a village which is about 7 or 8 miles away from Vijayawada. It was a Mukhasa village before the advent of the Madras Estates Abolition Act when it was taken over by the Government some time in 1950. There is a small tank known as Gabbilalakunta within a mile towards the north of Surampalli which for the sake of brevity will hereinafter be referred to as the Kunta. There is another tank known as Erracheruvu towards the north-west of the said kunta. Subsequent to the abolition of the estates, this kunta was registered in Register ‘A’ of he Government records as a poramboke as is evident from Exhibit P-27. Some landless persons who were cultivating a part of this kunta on the eastern side will hereinafter be referred to as the occupiers. Among them were A-7, P.W. 13, P.W. 14, K. Subbiah, K. Maddiramayya, Punugumati Ramayya and others. They were cultivating it for a sufficiently long time a penalty cist was realised from them by the Government from 1361 F. to 1366 F. as is evident from Exhibit P-18 to Exhibit P-26. ‘B’ memos. were also issued and the occupation was noted in No. 2 Accounts as per Exhibits P-28 to P-33. The prosecution says that these lands are rain-fed. A-1 to A-4 are the Mukhasadars and they have wet lands to the south of the kunta. There are channels leading water from this tank to various other fields. One of the channels called a ‘vagu’ lies to the west of the kunta. There is a branch channel to the north of the kunta where there are some dry lands. According to the prosecution, the lands of A-1 toA-4 should be irrigated by the water of Erracheruvu flowing through a channel which is to the west of the kunta. But the case of A-1 to A-4 is that their fields should receive water from the kunta through the sluices in the southern bund. In August, 1957, P.Ws. According to the prosecution, the lands of A-1 toA-4 should be irrigated by the water of Erracheruvu flowing through a channel which is to the west of the kunta. But the case of A-1 to A-4 is that their fields should receive water from the kunta through the sluices in the southern bund. In August, 1957, P.Ws. 13, 14, A-7 and one Ramayya filed a suit being O.S. No. 219/57 on the file of the District Munsif’s Court, Nazvid for an injunction restraining A-1 to A-4 from interfering with their possession and enjoyment of the portions in the kunta alleged to be in their possession and also for damages. Along with this suit an application for interim injunction being T.A. No. 1036 of 1957 also was filed and it was granted on 21st August, 1957 under Exhibits P-5 to P-7. After service of notice A-1 to A-4 filed I.A. No. 1070 of 1957 for the appointment of a commissioner to note the physical features of the locality under Exhibits P-11 and P-12. A commissioner was appointed and he filed a report under Exhibit P-13. They also filed I.A. No. 1071 of 1957 to vacate the interim injunction order as is evident from Exhibits P-8 and P-9. The plaintiffs filed a counter that the bunds and sluices were newly put up A-1 to A-4 also filed I.A. No. 1072 of 1957 for an interim injunction restraining the plaintiff’s from opening sluices or cutting any breaches to the bund A counter was filed by the plaintiffs under Exhibit P-16. But the Court granted an injunction on 3rd February, 1960 under Exhibit P-17 restraining the plaintiffs (occupiers) from interfering with the sluices or the bund existing at the time. It is an admitted fact that the lands in the kunta were not cultivated in the years 1958, 1959 and 1960. P.Ws. 13 and 14 say that owing to the absence of rain in those years no cultivation was done. But A-1 to A-4 stated that the cultivation was stopped on the ground that the kunta was declared an irrigation source by the Government. Exhibit X-1 is the plan of Surampalli village prepared by the Settlement Department in 1957 wherein the kunta was shown as an irrigation tank in the revenue accounts. But A-1 to A-4 stated that the cultivation was stopped on the ground that the kunta was declared an irrigation source by the Government. Exhibit X-1 is the plan of Surampalli village prepared by the Settlement Department in 1957 wherein the kunta was shown as an irrigation tank in the revenue accounts. Exhibit D-2 is the plan in the Field Measurement Book relating to Gabbilalakunta which indicates that a channel from Erracheruvu passes along this kunta. From the evidence of the Karnam (P.W. 20) and that of the Tahsildar (P.W. 25), it is clear that there was no ayacut under this kunta and the kunta was fed by rain water. There was one cement spout and palmyrah spouts in the lands of the Mukhasadars through which rain water flowed into the lands from out of the kunta. From the time this kunta was registered as an irrigation source by the Settlement Department, the Mukhasadars seem to have entertained an idea of developing this source to their benefit by laying or elevating the bund and prevent the occupiers from cultivating any portion of the kunta. In this connection, the Mukhasadars filed petitions (Exhibits D-43 and D-44) before the District Collector, Krishna, on 30th June, 1961 one of which was in English and the other in Telugu. It was mentioned in these petitions by the Mukhasadars that ever since the kunta was taken over by the Government, no repairs had been carried out due to which the bund was in a dilapidated condition. It was also stated that there were four sluices and two breaches also to the tank as a result of which water could not accumulate adequately and the requisite water was not being supplied to the ayacut. It was further stated that if the tank was immediately repaired there was Scope of another 50 acres of land being irrigated with the supply of water from this kunta. An apprehension also was expressed that P.W. 13, A-7, Ponugumati Ramayya, K. Subbayya, Kandavalli Anandam (P.W. 14), K. Maddiramayya and Harikoti Tirupathayya who belong to the Communist Party were trying to occupy the tank bed by foul means and that if they were not prevented they might suffer a heavy loss. This petition as already stated was given on 30th June, 1961. No material is available on record to indicate what action was taken by the District Collector on this petition. This petition as already stated was given on 30th June, 1961. No material is available on record to indicate what action was taken by the District Collector on this petition. But it is stated that the visit of the Tahsildar for inspection to this place on 11th August, 1961 may be due to a direction by the District Collector. The Tahsildar states that he had submitted a report to the Revenue Divisional Officer but this report has not come on record. The suit filed by the occupiers which is O.S. No. 219 of 1957 shows that the occupiers were claiming possession of the tank bed for the last seven years on paying cist to the Government. Their contention was that the Mukhasadars, who were defendants in that suit, were attempting to trespass on the land and spoil the crop and the relief sought was to restrain the Mukhasdars by a permanent injunction from ever interfering in any manner with their possession and enjoyment of the said property. As I have adverted to earlier after the institution of the suit, I.A. No. 1036 of 1957 was filed seeking interim orders under order 39, rules 1 and 2, Civil Procedure Code and interim injunction was passed on 21st August, 1957 which was made absolute on 3rd February, 1960 as the respondents had not been diligent to get the interim injunction vacated. In the same suit, an interim injunction was obtained on 27th August, 1957 under Exhibit D-47 by the Mukhasadars restraining the respondents (occupiers) from opening sluices or outlets or cutting any breaches to the bund of the tank situated in S. No. 44 if there was any bund. This was later mads absolute. Both the parties, it will be seen had obtained orders of a competent Court in support of their respective claims. The order which was obtained by the Mukhasadars was subject to the existence of a bund and this in my view is a matter of considerable importance in the case. In this connection the evidence of P.Ws. 25, 26, 13, 14 and 16 is very relevant. P.W. 27, the commissioner appointed by the Court in O.S. No. 219 of 1957 has stated that when he inspected the kunta in S. No. 44 situated in Surampalli village, he submitted a report under Exhibit P-13 on 10th July, 1957. In this connection the evidence of P.Ws. 25, 26, 13, 14 and 16 is very relevant. P.W. 27, the commissioner appointed by the Court in O.S. No. 219 of 1957 has stated that when he inspected the kunta in S. No. 44 situated in Surampalli village, he submitted a report under Exhibit P-13 on 10th July, 1957. He has stated that in October, 1961, when he accompanied the Investigating Officer in this case and visited S. No. 44 his attention was drawn to a bund on the western side of S. No. 44 and that this bund was not in existence when he inspected the kunta in 1957. P.W. 25, the Tahsildar inspected the kunta on 11th August, 1961 and at that time there was no bund on the western side of the kunta. P.W. 16 has also stated that he saw a bund to the west of the kunta which appeared to be new. From this independent evidence, the testimony of P.Ws. 13 and 14 receives ample corroboration that the bund on the western side of the kunta was raised shortly before the occurrence. The case of the Mukhasadars is that the bund was in existence for a long time but it does not appear to be true. From the evidence of the Karnam (P.W. 20), it is clearly established the occupiers were cultivating the land in the kunta from 1953 to 1957 and they were raising wet and dry crops. The land was not cultivated from 1958 to 1960 and when again cultivation was started in 1961. A-7 dropped out and Tirupathayya came in his place. If the bund existed it would not be possible for the occupiers to cultivate the land. From the evidence of P.Ws. 13 and 14 it appears that on 4th September, 1961, they and the other occupiers went to Nuzvid in connection with their suit. On 5th September, 1961 in the morning they were returning and were coming along the kunta when they found a new bund raised on the western s[de of their fields preventing water from flowing westwards and submerging their crops. On 5th September, 1961 in the morning they were returning and were coming along the kunta when they found a new bund raised on the western s[de of their fields preventing water from flowing westwards and submerging their crops. In view of this evidence it is not difficult to hold that the buna was newly raised, and to this extent I am in agreement with my learned brother that the bund in its present form was not in existence at the relevant time and the Mukhasadars Iliad built or repaired it to the annoyance of the occupiers. In fact the trouble starts from this point because the construction of the bund led to the accumulation of water in the kunta with the result that the crop was in danger of being destroyed causing loss to the occupiers. On 7th September, 1961 the occupiers including P.Ws. 13 and 14 gave to the Sub-Inspector of Gannavaram a petition after getting it drafted by P.W. 12. It was mentioned therein that A-1 to A-4 in order to spoil their crop had brought water from Erracheruvu. Four acres of paddy crop and two acres of ploughed land of cholam crop were submerged. When they questioned the accused they were prepared to beat them. Therefore, it was requested that an inquiry may be made. The Sub-Inspector directed Police Constables No. 1545 (P.W. 31) and 1340 to go to the kunta and get the bund removed. They were also directed to bind over the parties. They went to the kunta and found a bund on the western side which was newly raised. The kunta was full of water almost submerging the paddy crop. There were two huts near the kunta and all the six occupiers were present. About 10 to 12 persons including A-1, A-2 and A-10 were also present. Police Constable No. 1340 told them that as per the directions of the Sub-Inspector the Western bund should be removed and the water should be allowed to flow. A-1, A-2, and A-10 asked him if he had any Government orders with regard to the removal of the bund and if they did not have any, in that case the bund will not be removed. A-1, A-2, and A-10 asked him if he had any Government orders with regard to the removal of the bund and if they did not have any, in that case the bund will not be removed. He then told both the parties not to quarrel over the matter and asked them to meet the Sub-Inspector the next morning by 8 a.m. The next morning neither party came to the Police Station. On 6th September, 1961 again the Sub-Inspector sent the Head Constable (P.W. 32) along with P.W. 31 and two other constables to Surampalli to inquire into the contents of Exhibit P-2 and to bind over the parties to appear at the Police Station. P.W. 32 arrived in the village at about 11 a.m. Taking with him the occupiers and the village officers he went to the kunta. There he saw A-1 to A-5 and A-10 and some others. On the western side of the kunta there was a bund and there were two small huts nearby. In one of the huts he found a gun leaning against the hut. He questioned to whom the gun belonged. A-1 replied that it was his and no doubt he is a licence-holder. Then he questioned A-1 and others why they raised the bund and asked them to remove it. Thereupon A-10 replied that the bund could not be removed so easily unless Government orders to that effect were produced. He also told him that if any one tried to remove the bund forcibly he would be shot with the gun. He asked both the parties not to quarrel over the matter and bound them over to appear before the Sub-Inspector the next morning. Exhibits P-79 and P-80 are the bonds which were signed by A-2 and A-3. The other bond was executed by the occupiers. After reaching the Police Station at Gannavaram by 8 p.m. P.W. 32 made an entry in the General Diary (Exhibit P-81) to the effect that he had inquired into the petition (Exhibit P-2), gave warnings to both the parties, and bound them over to appear before the Station House Officer, Gannavaram on 10th September, 1961. Perhaps it was felt by the occupiers that the police were not taking speedy action and their crop was in danger of being destroyed. Perhaps it was felt by the occupiers that the police were not taking speedy action and their crop was in danger of being destroyed. P.W. 14 that very evening accompanied by P.W. 13 went to the Police Station but the Sub-Inspector was not available. They then went towards the coffee hotel in search of some respectable persons. They saw P.W. 11 and Anne Rama Rao near the coffee hotel. P.W. 13 told them that A-2 had inundated their crops. P.W. 11 and Anne Rama Rao told him that A-1 to A-4 are respectable people and they would persuade them to remove the bund. He also apprised them that P.W. 1 also came to Gannavaram in connection with this matter. P.W. 11 and Anne Rama Rao promised to go to their village the next morning and asked P.W. 13 to collect some more respectable persons by that time. P.W. 13 was returning to his village via Mustabada. He saw P.W. 15 sitting on a pial and told him to come the next morning to his village as other respectable people also were coming. After coming home he met the other occupiers and told them that he had already informed some respectable persons and suggested that they should also go and collect some persons from Medarapalem. Thereafter he and P.W. 14 went to Medarapalem met P.W. 5 and B. Lakshmayya. On being requested they also promised to come and settle the matter. The next morning the occupiers went to the Panchayat Office to see if anybody has come. They found P.W. 1, P.W. 11, Anne Rama Rao, Anjiah and P.W. 15 there. A little later, P.Ws. 4, 5, 7, 8 and Lakshmayya also came there. P.W. 12 who is a Medical Practitioner and a sympathiser of the Communist Party was sent for and he too came. P.Ws. 1 and 12 then asked P.W. 13 to go and see if the Velamas (Mukhasadars) were at their houses. He found that the doors of their houses were closed. On getting information from some one that they had gone to the kunta, P.W. 13 returned to the Panchayat Office and told them that they were not at home. The other occupiers by that time had also come. Then all of them numbering about twenty went to the kunta by about 10 a.m. They found that the kunta was full of water. The other occupiers by that time had also come. Then all of them numbering about twenty went to the kunta by about 10 a.m. They found that the kunta was full of water. They saw A-1 to A-6 and A-8 to A-10 near the huts. A-2 and A-4 were carrying spears. A-10 was standing at the south-eastern corner of the hut about 25 yards away and he was having with him a double barrel breech loading gun. The other accused had sticks. Then P.W. 1, P.W. 4 and Anne Rama Rao requested A-1 to A-4 to remove the bund and to save the crops of the poor people but they refused to do so. Then K. Subbayya, K. Anandam, K. Maddiramayya, Madar Saheb, J. Rama Rao and Garimella Subba Rao went and tried to remove the bund themselves. A-1 to A-4 beat Jasthi Rama Rao and Garimella Subbayya. Then these persons snatched the sticks from them and gave them a counter-beating. Then A-10 shouted that those people would not go away unless shot and asked the remaining accused to come back. Then Anne Rama Rao and P.W. 1 proceeded towards A-10 challenging him to shoot and saying that in the interests of justice there might be no objection to be shot by him. Then A-10 stepped a little forward and released his gun. Anne Rama Rao shouting ‘Abba’ fell down. A pellet grazed across the nose of P.W. 1 who also fell down. Then A-2 hit him on the back with his spear stick and on the back of the head also. Again A-1 fired a shot westwards causing some injuries to people. After reloading his gun A-10 moved westwards and fired again which hit Chinna Anjayya who also fell down dead. A-10 again moved northwards and fired with the result that B. Lakshmayya fell down dead. The deceased persons Anne Rama Rao, Chinna Anjayya and B. Lakshmayya, hereinafter would be referred to during the courseof the judgment as D-1, D-2 and D-3 respectively. Thereafter all the accused went away. Then P.Ws. 11, 12 and 15 took the injured persons to the road side and boarding a bus they went to Vijayawada. They got the injured admitted in the hospital. Thereafter all the accused went away. Then P.Ws. 11, 12 and 15 took the injured persons to the road side and boarding a bus they went to Vijayawada. They got the injured admitted in the hospital. P.W. 36, Deputy Superintendent of Police at Vijayawada, got a telephone message from the Visalandhra office at 12-30 p.m., that there was a breach of the peace in Surampalli village during the course of which fire-arms were used resulting in the death of three persons and injuries to some others, and that the injured persons were brought to the Government Hospital. He hurried to the hospital reaching there at about 1-30 p.m. He found P.W. 1 being attended to by a doctor. He took a statement from him under Exhibit P-1 and sent it to the Sub-Inspector, Gannavaram to register a case and thereafter the investigation was taken on hand. P.W. 38 is the Circle Inspector who was camping at Gannavaram as the Deputy Superintendent of Police was expected to make an inspection of the Station House on 10th September, 1961. Hearing a rumour at Gannavaram that some persons were killed, he went to Surampalli taking along with him the Sub-Inspector of Police and readied there at about 1-30 p.m. He saw that the dead body of D-1 was lying at a place east of the two huts, 44 links away. The dead body of D-2 was lying on the west of the huts 40 links away and that of D-3 was lying to the north of the dead body of D-2, 122 links, away. Thereafter he held an inquest over the dead bodies from 3 p.m. to 6 p.m. and then the dead bodies were sent for post-mortem examination. He also searched the houses of A-2, A-3, A-4, A-6, A-7, A-8 and A-9.On inquiry it was found that A-10 was not in the village. He also examined P.Ws. 11, 15, 2, 10 and some others and found injuries on P.Ws. 2 and 10. He, therefore, sent them to the hospital. P.W. 17, the Civil Assistant Surgeon at the Government Hospital, Vijayawada, conducted the post-mortem on the dead body of D-1. All the injuries found on his body were gun-shot wounds. There was no tattooing and blackening of the surrounding skin. 2 and 10. He, therefore, sent them to the hospital. P.W. 17, the Civil Assistant Surgeon at the Government Hospital, Vijayawada, conducted the post-mortem on the dead body of D-1. All the injuries found on his body were gun-shot wounds. There was no tattooing and blackening of the surrounding skin. On dissection he found four pellets lying in the substance of the lung and three pellets were lying in the myocardium of the heart. He also found three pellets lying in the stomach. In his opinion, the death of D-1 was due to shock and haemorrhage as a result of the injuries to the heart and lung and all these injuries could have been caused by a gun-shot. P.W. 21, another Civil Assistant Surgeon at the Government Hospital, Vijayawada, conducted the autopsy on the body of D-2. He found nine circular punched out wounds on the body of D-2 but there was no tattooing or blackening around the wounds. On dissection of the trachea he recovered 5 pellets and a large number of pellets were recovered from the muscles of the right leg from wound No. 2. He also recovered pellets from wounds Nos. 3 to 9. In his opinion, the death of D-2 was due to shock and haemorrhage as a result of the injury to the carotid vessels by gun-shot wounds. P.W. 18, Civil Assistant Surgeon, Vijayawada, conducted the autopsy on the body of D-3. He found seventeen circular punched out wounds over the right side of the chest, five on the left side of the chest, two on the anterior aspect of the right shoulder, and five on the outer aspect of the right shoulder. All of them were circular in shape, and the surrounding skin was blackened to an extent of 1/8". On dissection, two pellets were found in the right auricle and one pellet in the left ventricle. Two pellets were removed from the substance of the right lung and four pellets were removed from the loose areolar and fatty tissues of the chest wall and the abdomen. In his opinion, the death of D-3 was due to shock and haemorrhage as a result of gun-shot wounds on the heart and lung. Two pellets were removed from the substance of the right lung and four pellets were removed from the loose areolar and fatty tissues of the chest wall and the abdomen. In his opinion, the death of D-3 was due to shock and haemorrhage as a result of gun-shot wounds on the heart and lung. From the evidence of these three Medical Officers it is quite clear that all the three deceased persons died of gun-shot wounds which may have been released from a short distance because the pellets had penetrated and embedded in different organs of the body. The injured who got themselves admitted in the hospital as well as the other injured persons, who were sent by the Circle Inspector, were also examined by the Medical Officers at the Government Hospital at Vijayawada. P.W. 2 examined P.W. 2 and found two circular abrasions on her person which were due to gun-shot splinters. P.W. 23, the Woman Assistant Surgeon, Government Hospital, Vijayawada, examined P.W. 1 at about 11-30 a.m. on 10th September, 1961. She found two lacerated wounds and three contusions on him which could have been caused by a blunt weapon. Injury No. 1 was a lacerated wound separating the tip of the nose and part of left alae of the nose from the rest of the nose. About this injury the has stated that it would not have been caused by a gun-shot splinter. She also examined P.W. 9 at about 11-40 a.m. on the same day. He had one circular bleeding injury on the dorsum of the left hand in between the wrist and base of the little finger. On X-ray, a small round radio opaque shadow probably of a lead shot with fracture of the base of the 5th metacarpal bone is been in the region of the left hand and this injury was grievous. She also examined P.W. 3 at about 11-50 p.m., on 10th September, 1961. Thirteen injuries were found on his person. X-ray photo revealed a number of small round and irregular radio opaque shadows with comminuted fracture of both the bones of the right fore-arm. These injuries according to her could have been caused by a gun-shot. She examined P.W. 8 at about 11-50 a.m. on 10th September, 1961. Four circular bleeding injuries were found on him. X-ray photo revealed a number of small round and irregular radio opaque shadows with comminuted fracture of both the bones of the right fore-arm. These injuries according to her could have been caused by a gun-shot. She examined P.W. 8 at about 11-50 a.m. on 10th September, 1961. Four circular bleeding injuries were found on him. X-ray photo revealed small round radio opaque shadow probably of lead shots in the region of the right shoulder and right side of the chest. P.W. 4 was examined by her at 12-15 p.m. He had one lacerated and one incised injury. In her opinion, the injuries could have been caused by blunt and sharp-edged weapons. P.W. 7 was examined by 12-40 p.m. by her, he had one contusion and one lacerated bleeding injury on his person. The injuries found on him were simple and in the opinion of the Medical Officer, they could have been caused by sticks. P.W. 6 was examined at 3 p.m. Two circular injuries in the region of the chest and one swelling on the left arm were found. X-ray photo revealed radio opaque shadow probably that of a lead shot in the region of the right lung with a fluid level at the base of the right lung. All these injuries, in her opinion, could have been caused by a gun-shot. The injuries received by the deceased persons and the other persons reveal not only the use of a gun but also sharp-edged and blunt weapons during the occurrence. After the accused left the scene, A-1 to A-5 went straight to the Village Munsif (P.W. 16) and gave him a report at about 10-20 a.m. P.W. 16 says that they had some injuries. A-3 and A-5 alone signed in the report given to him under Exhibit P-34. Then he sent copies on a plain paper to the police and the J.S.C.M., and at about 1 p.m. the Circle Inspector and the Sub-Inspector arrived. In this report it was mentioned that under the leadership of Yelamanchili Mallikarjuna Rao (P.W. 12), who was the leader of the Surampalli Communist Party, the residents of Atkur, Mustabada, Surampalli, Savaragudem and Gannavaram came armed with knives, spears and sticks. In this report it was mentioned that under the leadership of Yelamanchili Mallikarjuna Rao (P.W. 12), who was the leader of the Surampalli Communist Party, the residents of Atkur, Mustabada, Surampalli, Savaragudem and Gannavaram came armed with knives, spears and sticks. In the report names of sixteen persons were given and it is stated that they and many other people came along with the encroachers of Gabbilalakunta raising slogans and beat them who were watching the cross-bund. They tried to remove the cross-bund. When Gottipulla Venkata Siva Subrahmanyam (A-1) fired his gun in self-defence, some persons received injuries. There were about 200 people. Then they came to the house of the Village Munsif and gave the report. They have given the names of the injured persons on their side who are A-2 to A-9 and D.W. 4. They were sent to the hospital for examination and treatment. Their examination by P.W. 23 was started from g-40 p.m. On A-1 ten simple injuries were found, which could have been caused by a stick. A-2 had eight injuries out of which Injury No. 3 and Injury No. 6 were grievous. According to the Medical Officer, all the injuries could be caused by sticks excepting Injury No. 8 which could have been caused by a spear. A-3 had two injuries one of which could have been caused by a spear and the other by sticks. A-4 had one grievous injury. A-5 had four simple injuries which could have been caused by sticks. A-6 had five simple injuries which could be caused by sticks. A-7 and A-8 had only one simple injury each which could be caused by a stick. A-9 had no injuries on his person. In these circumstances the prosecution charge-sheeted both the parties. A-1 also filed a private complaint and both these cases were committed to the Court of Session being S.C. Nos. 9 and 10 of 1962. Now the case of the accused may be stated. A-1 has stated that the bund was always there and there is a canal flowing into the kunta on its northern side from Erracheruvu. There was a heavy rain on the night of 4th September, 1961, and the kunta was filled up. The occupiers removed the bund in the day time on 5th September, 1961. But again they repaired it. His younger brothers were keeping a watch over the bund. There was a heavy rain on the night of 4th September, 1961, and the kunta was filled up. The occupiers removed the bund in the day time on 5th September, 1961. But again they repaired it. His younger brothers were keeping a watch over the bund. On the morning of that day he came home from the huts. At- 8-30 a.m., he heard slogans of the Communist people. He came out of his house and sent oneGopala Rao toinform the Village Munsif. Those people were shouting that they would kill the mukhasadars. He took food at 9-30 a.m. and while he was thinking of going to Gannavaram, 300 people were shouting on the way, “Jai to Communist Party; we shall kill Mukhasadars, we shall build tombs of Sivayya, Bapaiah etc.,” and they were going. Thinking that some danger may be caused to his younger brothers he went there taking a gun with him. All his brothers had fallen down and they shouted, “we are dying, elder brother.” Then he fired towards the west and north to save their lives. When one group was coming from the western side shouting, “Sivayya came, let us kill him”, he fired towards the west. While he was loading the gun after turning to east, they hit him on the dead. Then he turned and fired when D-1 died. The place was left leaving a way for them to go. Then Lokam Subba Rao (D.W. 2) himself, A-2 to A-9 and Palati Kotiah together went to the house of the Village Munsif to give a report. Then Lokam Subba Rao went away. The other accused excepting A-9 have adopted what was stated by A-1 and all of them have denied the presence of A-10. A-9 in the Committal Court has stated that A-10 was not there. They had no sticks or spears with them. About 200 to 300 persons came with sticks and spears. They had come to kill Bapiah and Sivayya. Some went to cause a breach. They had beaten some people. Then A-1 came from the village and fired a gun. But in the trial Court he has stated that he does not know anything and the case is false. Although in answer to Question No. 16 he has stated that Bodapati China Anjiah (D-2) beat on his left hand, he is definite that A-1 and A-10 were not present at the time. But in the trial Court he has stated that he does not know anything and the case is false. Although in answer to Question No. 16 he has stated that Bodapati China Anjiah (D-2) beat on his left hand, he is definite that A-1 and A-10 were not present at the time. A-10 has stated that a week prior to the occurrence, he went to his maternal uncle’s house at Sivapuram in Cuddapah District. He has further Stated that he is a member of the Nunna Congress Mandali for which reason the Taluk Communists are angry with him and that is why he has been falsely implicated. He has also stated that he does not know how to fire a gun. From the statements of the accused excepting A-10 it will be seen that they have set up a specific plea of private and self-defence. When such a plea is taken two courses are open to the accused to establish it, (1) by eliciting circumstances from the prosecution witnesses themselves; and (2) by proving their case by examining witnesses. In the face of this plea, in my view, the question for decision narrows down, and the Court has to see whether the persons taking the plea have succeeded in establishing the circumstances which sustain the plea. In this particular case both these methods have been employed. But the defence could not succeed in eliciting circumstances from the prosecution witnesses which reasonably entitle them to the benefit of the right of private and self-defence. They have also examined four witnesses on their behalf. It will be useful to examine this evidence in the light of their plea to see how far it is reasonable and true. A-1 has admitted in his statement under section 342, Criminal Procedure Code, that the occupiers had cultivated the land in the kunta from 1953 to 1957. The non-cultivation of the land from 1958 to 1960 is attributed by him to the fact that the kunta was a Government irrigation tank and that it was not due to want of rains as is alleged by the prosecution. He has also stated that the bund was always there. The non-cultivation of the land from 1958 to 1960 is attributed by him to the fact that the kunta was a Government irrigation tank and that it was not due to want of rains as is alleged by the prosecution. He has also stated that the bund was always there. But in view of the evidence of P.W. 16, P.W. 25 and P.W. 27, who are independent witnesses it is proved that the bund was newly constructed and what has been stated by A-1 in this respect appears to be false. He has stated that it was he who had fired the gun. No doubt, he is a licence-holder. But from the evidence of the prosecution, it is well established that it was A-10 who had fired the gun. A-10 is his son-in-law and A-1 has made an attempt to save him. The trial Court also was of the view that A-10 was present and it was he who had fired the gun. He has further stated that there were about 300 people who were shouting and raising slogans and they had actually attacked his brothers who were lying down and on their shouting that they were dying, he fired towards the west and north to save their lives. This also cannot be true because none of the accused received any gun-shot injury. He has with a purpose failed to mention as to who received the gun-shot injuries when he fired towards the west and north. But he says that while he was loading his gun somebody hit him on his head. Then he turned and fired and D-1 died. If there were 300 people on the scene in the opposite camp and at least some of them had approached him so close as to hit him on the head he would have been prevented from using the gun without much effort. He has attributed to himself a leading part. He hadalso gone with A-2 to A-5 to give a report to the Village Munsif but he did not sign the report. Instead A-3 and A-5 signed it. The version given in this report (Exhibit P-34) is different from what has been stated by A-1 in his statement under section 342, Criminal Procedure Code. He hadalso gone with A-2 to A-5 to give a report to the Village Munsif but he did not sign the report. Instead A-3 and A-5 signed it. The version given in this report (Exhibit P-34) is different from what has been stated by A-1 in his statement under section 342, Criminal Procedure Code. In Exhibit P-34, it has been mentioned that the occupiers along with others of the surrounding villages beat them when they were keeping a watch over the cross-bund and tried to remove the bund and it was then that A-1 fired his gun in self-defence. This appears to me to be a thought-out story and the plea set up by A-1 and others does not appear to me to be true. Now I have to examine the evidence that has been adduced by the defence. D.W. 1 has stated that his house is in the eastern portion of the village about 20 yards, away from P.W. 12’s house. On that morning he saw about 200 Communists going from the house of P.W. 12 shouting slogans that Gottipulla people should be killed. Two of them had spears and the others had sticks and flags were tied to the sticks. They were proceeding from the main bazaar towards the kunta. He apprehended some trouble and went to the kunta across wet fields and standing on the southern bund of the kunta witnesses the occurrence. He says that the other party-men came from the western side. The occupiers and the others who had come with them approached the bund to remove it. A-2 to A-4 who were standing at the bund caused obstruction to the removal of the bund when all the Communist Party members beat the obstructionists. A-2 to A-4 on receiving the injuries shouted, “Sivayya Annayyo chachipoyyamu dabbuna ra”. On looking behind he saw A-1 coming across the fields armed with a gun and when he came near the huts, he fired the gun northwards towards the men who were standing near the bund. A boy fell down. The opposite party-men shouted that Sivayya had come and then the crowd rushed towards him. Thereupon A-1 fired westward;. Another man from Mustabada (D-2) fell down. Still some men were going towards A-1 to attack him. Thereupon A-1 turned towards east, and proceeded 10 or 15 yards re-loading his gun. A boy fell down. The opposite party-men shouted that Sivayya had come and then the crowd rushed towards him. Thereupon A-1 fired westward;. Another man from Mustabada (D-2) fell down. Still some men were going towards A-1 to attack him. Thereupon A-1 turned towards east, and proceeded 10 or 15 yards re-loading his gun. Then the opposite side people beat him on the back and the back of the head. As he was being beaten, A-1 reloaded the gun, turned westwards and fired a shot. Then D-1 fell down. But this story is hard to believe. If the persons of the prosecution party approached so close to A-1, the first things they would do would be to snatch the gun from his hand which he had already used. Moreover he had seen a procession of 200 men who were shouting slogans and were in an aggressive mood. Their intention was to kill Gottipulla people. In such a situation, it is unlikely that D.W. 1 who was not interested in either of the contending parties would go and endanger his own safety. D.W. 2 is alleged to have received injuries during the course of this incident. He was examined by P.W. 21 on 15th September, 1961, i.e., nearly five days after the occurrence. In the opinion of the doctor, the injuries found on him could have been caused by sticks and Injury No. 2 was grievous. But it is surprising that he went away home without meeting A-1 to A-9. He did not give any report or state to any one that he had received the injuries. It is doubtful whether he had received those injuries during the course of this occurrence. He says it was A-2 who went to prevent the removing of the bund and A-3 to A-5 followed him. Then P.W. 12 hit A-2 on the head with a spear. He also want there and stood behind A-5. Then P.W. 12 also beat him on the left hand with the spear stick and P.W. 5 hit him on the left side of the head. P.W. 11 hit him on the right shoulder. Then he fell down on the western bund. He also was not interested in the outcome of this struggle and it is not believable that he would go so near the scene of occurrence seeing that the beating was going on, and receive injuries thereby. P.W. 11 hit him on the right shoulder. Then he fell down on the western bund. He also was not interested in the outcome of this struggle and it is not believable that he would go so near the scene of occurrence seeing that the beating was going on, and receive injuries thereby. D.W. 3 has been examined only to say that he heard the slogans raised by the Communists and on the way he met A-1 who asked him to go and report to the Village Munsif about the incident, which he did. D.W. 4 has also come forward as an eye-witness. He was on that day returning from the mango garden and was passing along the kunta when he heard the shouts “Communist party ki jai, katta teg gottali”. Then he went near the western side of the bund. About 200 to 300 persons armed with sticks spears and flags with sticks were there and by the time he went there he saw them beating A-2. He saw at the place only A-2 to A-5. A-2 had fallen down. In the meantime A-1 came with a gun. A-2 was crying, “Chachi pothunna annayo”. Then A-1 fired a shot towards the north-western direction. Then the men of the opposite side shouted, “Sivayya vachadu, Pattandi oka pattu”. Then A-1 fired a shot towards the west. A-1 turned towards the east and was moving step by step reloading his gun. Some of the persons of the opposite group went behind him and dealt blows on his back. Then A-1 turned towards the west and fired a shot. He says that he did not see any one falling down due to the firing. Only on the third occasion he saw a man falling down. Then all the persons ran away. He is very definite that A-10 was not on the spot nor did he use a gun. His evidence also appears to me to be artificial and cooked up. The result of the above discussion of the evidence is that the accused have not discharged the burden which shifted on to them under section 105 of the Evidence Act. But it does not follow that because the plea of the accused fails, the prosecution is absolved of its responsibility to prove its own case. The prosecution to prove its case has examined 40 witnesses. But it does not follow that because the plea of the accused fails, the prosecution is absolved of its responsibility to prove its own case. The prosecution to prove its case has examined 40 witnesses. I have referred to the evidence of most of the witnesses earlier and I have held that the bund was newly raised by accused due to which water had accumulated in the kunta. This construction was illegal. No doubt the proper remedy for the prosecution party lay in approaching a civil Court to restrain the accused from interfering with their cultivation but it does not mean that the accused were free to defend an illegal act by committing some more illegal acts. Nor an illegal act can confer any rights, much less a right of self-defence. It can also be said about the accused that they could also approach the Court if an attempt was made to breach the bund. But it is clear from the evidence that they had made up their minds to prevent the breach of the bund by use of force. They cannot be allowed to take advantage under the injunction order that was directed against the occupiers restraining them from interfering with the sluices and the bund as they existed on the day of die order. On the 5th when the occupiers found that the kunta was filled with water because of the newly built bund, they made frantic efforts to get it removed. They approached the police whose intervention was lukewarm. Therefore, they approached respectable leading members of the village who happened to belong to the Communist Party to persuade the mukhasadars to drain off the water and save their crops. P.Ws. 13 and 14 have stated that P.W. 1, D-1 and P.W. 11 told them that the mukhasadars were good people and they would listen to their persuasion. For this purpose, the leading members of the Communist party and respectables came to Surampalli on that fateful morning. They had decided on persuasion rather than force. Therefore, I am not inclined to think that they had come armed with knives, spears and sticks. If such a huge body of persons consisting of 200 to 300 people had really come for the purpose of removing the bund, the accused party which was considerably smaller could have been very easily over-powered. Therefore, I am not inclined to think that they had come armed with knives, spears and sticks. If such a huge body of persons consisting of 200 to 300 people had really come for the purpose of removing the bund, the accused party which was considerably smaller could have been very easily over-powered. I am inclined to think that there may not have been more than 20 or 30 persons who had come and that too unarmed. P.Ws. 1 to 15 are the direct witnesses in this case. No doubt, most of them belonged to the Communist Party but hat does not mean that they are partisans or interested in getting the mukhasadars convicted. They thought that there was an opportunity for them to get the matter settled by seeking the intervention of respectable and leading members of the village and they collected as many of them as they could so that the mukhasadars may be persuaded to have some pity on the poor occupiers. Even if it is to be accepted that their testimony is interested it does not mean that it should be rejected on that ground alone. It is the duty of a Court to cull out the truth by applying the well-established tests for appreciation of evidence. It will be seen that P.Ws. 1 to 10 were injured and most of them had received gun-shot injuries. Their presence on the scene of occurrence cannot be ruled out. P.Ws. 13 and 14 are the occupiers who hap invited the respectables of the village to intervene and settle the matter. Their presence also in my view is well-established. P.Ws. 11, 12 and 15 are the leading members of the Communist Party and they were also present on the spot. They have stated that when they approached the kunta, they told A-1 and others that the bund must be removed and if there is any dispute it could be settled by discussion in the village but A-1 said that they had a right and would not remove the bund. The occupiers who were standing behind the respectables remarked that even after the respectable persons intervened the bund was not being removed and so saying they proceeded to remove it. At that time A-1 to A-9 rushed at them to beat them. A-2 and A-4 had spears and the others had sticks. Then according to P.W. 15, P.Ws. The occupiers who were standing behind the respectables remarked that even after the respectable persons intervened the bund was not being removed and so saying they proceeded to remove it. At that time A-1 to A-9 rushed at them to beat them. A-2 and A-4 had spears and the others had sticks. Then according to P.W. 15, P.Ws. 5, 7 and 8 who were standing behind him and others went to avert the beating. They snatched the sticks from the accused and gave a counter-eating. There must have been a mele at the time and it is likely that the witnesses may have made a mistake in mentioning as to who had beaten whom. But there can be no doubt that the accused were also given a beating. When the beating was going on A-10 who was standing near the huts called out his comrades to disengage themselves and accordingly me accused were coming back. D-1 and P.W. 1 then proceeded towards A-10 challenging him to shoot saying that in the interests of justice there might be no objection to their being shot. Then A-10 shot at D-1 who fell down crying ‘Abba’. Then moving a step forward, A-10 again fired towards the west causing injuries to some persons and D-2 was hit fatally. Then some persons moved towards the south toescape and some men moved northwards when again A-10 fired towards the north with the result that D-3 fell down. This is substantially the story of the prosecution which has been stated by P.Ws. 1 to 15. This story receives corroboration from the other surrounding circumstances. The fact that none of the accused received any gun-shot injury satisfactorily proves that there was a disengagement as spoken to by the witnesses. The medical evidence also is corroborative, and I am inclined to believe the evidence given by all these witnesses. All the prosecution witnesses have described the incident in a similar manner excepting for some small variations which do not affect the merits of their evidence. It is unnecessary to set out the evidence of each one of them. When a number of witnesses are examined on the same aspect of the case, there is every possibility of discrepancies cropping up. It cannot be expected that every one would have the same power of observation, manner of expression, and the way of description. It is unnecessary to set out the evidence of each one of them. When a number of witnesses are examined on the same aspect of the case, there is every possibility of discrepancies cropping up. It cannot be expected that every one would have the same power of observation, manner of expression, and the way of description. There is bound to be variation in this respect but that does not mean that their evidence is false. On the other hand, it is a sign of truth. I am conscious of the fact that this is an appeal against an order of acquittal and the presumption about the innocence of the accused is reinforced but I think that the approach of the trial Court to this case was incorrect and the appreciation of evidence is wholly erroneous. The accused some days; prior to the occurrence had made up their minds and also had prepared themselves; to take the law into their own hands. In view of the aforesaid discussion, I am satisfied in my mind that the drosecution has come with a true story and has proved it by overwhelming evidence. There was no reason for the prosecution witnesses to have attributed the act of shooting with a gun to A-10. A-1 to A-4 are the real persons who were vitally interested in the maintenance of the bund. A-10 only happens to be a son-in-law of A-1. The presence of A-10 is also established by the evidence of P.Ws. 31 and 32 who are the Constable and the Head Constable who had gone to the village under the orders of the Sub-Inspector to get the bund removed. There is not a shadow of doubt that it was A-10 who had done the shooting. He was standing at a distance from the bund and he released the shots at a time when disengagement had taken place. But A-1 to A-9 did not have the same intention as was entertained by A-10. Therefore, A-10 alone is responsible for shooting down D-1, D-2 and D-3. I, therefore, allow this appeal and convict A-10 under section 302, Indian Penal Code, under Charges Nos. 4, 5 and 6 for causing the death of D-1, D-2 and D-3 and sentence him to imprisonment for life. Therefore, A-10 alone is responsible for shooting down D-1, D-2 and D-3. I, therefore, allow this appeal and convict A-10 under section 302, Indian Penal Code, under Charges Nos. 4, 5 and 6 for causing the death of D-1, D-2 and D-3 and sentence him to imprisonment for life. The other accused A-1 to A-9 had clearly formed themselves into an unlawful assembly with the object of beating the occupiers and their supporters. A-2 and A-4 were armed with spears. In this view, I convict A-1, A-3 and A-5 to A-9 under section 147, Indian Penal Code and sentence them to undergo rigorous imprisonment for one year each. A-2 and A-4 are convicted under section 148, Indian Penal Code and sentenced to undergo two years’ rigorous imprisonment each. Pursuant to the difference of opinion, the Bench made the following Order.-In view of the difference of opinion between us, the matter may be placed before the learned Chief Justice for referring it to a third Judge. In pursuance of the above order the appeal was then heard by Basi Reddy, J., who delivered the following Judgment.-This appeal has been laid before me under section 429 of the Code of Criminal Procedure on a difference of opinion between two of my learned brethren composing the Court of Appeal which heard Criminal Appeal No. 636 of 1963, which was an appeal preferred by the State Government against an order of acquittal passed by the Additional Sessions Judge, who tried Sessions Case No. 19 of 1962, on the file of the Court of Session, Krishna Division. While both the learned Judges who heard the appeal were of the view that the judgment of the trial Judge was unsatisfactory in several respects in that while evaluating the prosecution evidence, he had made much of minor discrepancies and inconsequential variations Sharfuddin Ahmed, J., nevertheless reached the conclusion that the order of acquittal should be upheld and that the appeal should be dismissed, as in his view the accused had acted in the exercise of the right of private defence of person and property whereas Mohamed Mirza, J., was of the opinion that the judgment of the trial Court was vitiated by a gross misappreciation of evidence and by a misunder standing of the law of private defence, and as in his view the prosecution had come forward with a true story and proved it by overwhelming evidence, the order of acquittal should be set aside as regards the charge of rioting against all the ten accused and on three counts of murder as against Accused 10. He sentenced Accused 10 to undergo imprisonment for life; Accused 1, 3 and 5 to 9 to undergo one year’s rigorous imprisonment each and Accused 2 to 4 to undergo two years’ rigorous imprisonment each. Sharfuddin Ahmed, J., did not think it necessary to address himself to the vital question as to who it was that had fired the three fatal shots-whether it was Accused 10 as alleged by the prosecution, or Accused 1 (the father-in-law of Accused 10) as pleaded by the defence. This case and a counter-case (Sessions Case No. 9 of 1963) which were both tried by the Additional Sessions Judge, were the outcome of a serious rioting which took place on 10th September, 1961, at about 10 a.m. at a small rank known as “Gabbilala Kunta” (hereinafter referred to as ‘the Kunta’) which is about a mile from Surampalli village. In the course of that rioting on one side three persons were shot dead and ten persons sustained injuries out of whom seven received gun-shot injuries, and that formed the subject-matter of the present case; on the other side, eight persons were injured mostly by stick-blows, and that formed the subject-matter of the counter-case which also ended in acquittal. In the course of that rioting on one side three persons were shot dead and ten persons sustained injuries out of whom seven received gun-shot injuries, and that formed the subject-matter of the present case; on the other side, eight persons were injured mostly by stick-blows, and that formed the subject-matter of the counter-case which also ended in acquittal. An appeal preferred by the State Government against the order of acquittal in the counter-case was dismissed by the same Bench which heard the present appeal, and I am not concerned with that counter-case. In this case the ten respondents, who will be referred to as ‘the accused’ in the order in which they were arrayed before the trial Court, are all residents of Surampalli. Accused 1 to 4 are brothers; Accused 5 is Accused 2’s son-in-law; Accused 10 is accused 1’s son-in-law and is living with Accused 1; and Accused 6, 8and 9 are the farm-servants of accused 1 to 4. They were tried by the Court below on as many as twenty-two charges. Charge No. 1 was against Accused 1 to 4 under section 426, Indian Penal Code, on the allegation that on or about 5th September, 1961, they had committed mischief by raising a new bund on the western side of the Kunta causing damage to the crop which had been raised by the occupiers of the bed of the Kunta. Charges Nos. 2 and 3 were for rioting. Charge No. 2 was under section 147, Indian Penal Code, as against Accused 1, 3 and 5 to 9 that they along with Accused 2, 4 and 10 at about 10 a.m. on 10th September, 1961, had formed themselves into an unlawful assembly and in prosecution of the common object of such assembly viz., beating and killing the members of the party that came in support of the occupiers of the kunta, committed the offence of rioting. Charge No. 3 was against Accused 2, 4 and 10 under section 148, Indian Penal Code, alleging that at the time of rioting they were armed with deadly weapons to wit, Accused 2 and 4 with spears and Accused 10 with a D.B.B.L gun. Charges. Nos. Charge No. 3 was against Accused 2, 4 and 10 under section 148, Indian Penal Code, alleging that at the time of rioting they were armed with deadly weapons to wit, Accused 2 and 4 with spears and Accused 10 with a D.B.B.L gun. Charges. Nos. 4, 5, and 6 were under section 302, Indian Penal Code, against Accused 10, for having in the course of the rioting shot at and caused the deaths of Anne Ramarao Chinna Anjaiah and Lakshmaiah who will be referred to hereafter as Deceased 1, Deceased 2 and Deceased 3 respectively. Charges Nos. 7, 8 and 9 were against Accused Nos. 1 to 9 under section 302 read with section 149, Indian Penal Code. In respect of the three murders alleged to have been committed by Accused 10. Charges Nos. 10 to 17 were against Accused 10 directly on the one hand and the remaining nine accused constructively onthe other in respect of the gun-shot injuries caused by Accused 10 to P.Ws. 2, 6, 9, 10, 1, 3, 4 and 8 respectively. Charge No. 18 was against Accused 2 directly under section 323 and against the other accused constructively under section 323 read with section 149, Indian Penal Code in respect of the hurt caused by Accused 2 to P. W. 1. Similarly, charge No. 19 was against Accused 2 and 3 directly and the other accused constructively for having caused simple hurt to P.W. 5. So also charge No. 20 was against Accused 6 directly on the one hand and the remaining accused constructively on the other for having caused simple hurt to P.W. 4. Charge No. 21 was under section 323, Indian Penal Code as against Accused 6 and 8directly and the remaining accused constructively for having caused simple hurt to P.W. 7. Charge No. 22 which was the last charge was against Accused 10 under section 10(a)of the Indian Arms Act for being armed with a D.B.B.L. gun without a licence under the Arms Act. The case for the prosecution as unfolded at the trial was as follows. The village of Surampalli was a Mukhasa village in the erstwhile Zamindari of Mirzapuram. The kunta is situated within the limits of the village and is of an extent of about 11 acres. It is a rain-fed tank. The case for the prosecution as unfolded at the trial was as follows. The village of Surampalli was a Mukhasa village in the erstwhile Zamindari of Mirzapuram. The kunta is situated within the limits of the village and is of an extent of about 11 acres. It is a rain-fed tank. Under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the Zamindari of Mirzapuram was taken over by the Government in the year 1950 with the result that the entire estate, including of course the village of Surampalli and the Kunta, stood transferred to the Government and vested in them free of all encumbrances. Subsequent to the taking over, the Kunta was registered in the Government records as ‘A Register Poramboke’. (vide Exhibit P-27). A portion of this kunta on the eastern side came to be occupied by some poor, landless persons such as P.Ws. 13 and 14 who raised wet and dry crops therein. As it was unauthorized cultivation the Revenue authorities collected penalty cist from the occupiers from Fasli 1362 to Fasli 1366 (vide Exhibits P-18 to P-26) B. Memos. were also issued and the occupation was noted in No. 2 cultivation accounts. This unauthorized-occupation went on from 1953 to 1957. Accused 1 to 4, the former Mukhasadars, have lands to the south of the kunta of an extent of 80 acres. There is a big tank called Erracheruvu to the north-west of the Kunta about three or four furlongs away from it with a channel called a vagu leading from that tank to the lands of the Mukhasadars and running along the western side of the Kunta. The lands of the Mukhasadars were being irrigated by the water of Erracheruvu flowing through the channel west of the Kunta; but they were not irrigated by the water from the kunta. However in Fasli 1369, that is to say in the year 1958, the Settlement Authorities registered the Kunta as a source of irrigation for an ayacut of about 34 acres (vide Exhibit D-48). Even prior to that in August, 1957, the occupiers had filed a suit, O.S. No. 219 of 1957 in the District Munsif’s Court, Nuzvid, alleging that Accused 1 to 4 had spoiled the cops raised by them and seeking an injunction restraining Accused 1 to 4 from interfering with their possession, and enjoyment of the Kunta and also for damages. Even prior to that in August, 1957, the occupiers had filed a suit, O.S. No. 219 of 1957 in the District Munsif’s Court, Nuzvid, alleging that Accused 1 to 4 had spoiled the cops raised by them and seeking an injunction restraining Accused 1 to 4 from interfering with their possession, and enjoyment of the Kunta and also for damages. Along with the suit an application for an interim injunction was also filed and interim injunction was granted by the Court on 21st August, 1957. Accused 1 to 4 in their turn filed an application in I.A. No. 1072 of 1957 for an injunction restraining the occupiers from opening the sluices, outlets or cutting any breaches of the bund of the Kunta during the pendency of the suit, and the Court granted a temporary injunction on 29th August, 1957, in the following terms as per Exhibit D-47: “Pending disposal of this petition, the respondents are restrained from opening the sluices or outlets or cutting any breaches to the bund of the tank situated in S. No. 44; If there is any bund.” Ultimately on 3rd February, 1960 the Court passed orders on both the applications confirming both the orders of injunction on the ground that the parties did not evince any interest in the matter (Exhibits P-7 and P-17). The lands in the Kunta were not cultivated in the years 1958, 1959 and 1960, because of failure of rains. Cultivation was however, resumed by P.Ws. 13, 14 and four others in June, 1961. They raised paddy crop in a portion of the Kunta and got another portion ready for raising Jonna Crop. Here it is necessary and convenient to refer to the evidence of the Tahsildar of Gannavaram, P.W. 25, concerning the Kunta. He deposed that he was working as Tahsildar, Gannavaram from May, 1961. On a petition received from the Mukhasadars about some encroachment in the kunta, he visited the kunta on 11th August, 1961, i.e., a month before the occurrence. He noticed that a portion of the bed of the Kunta had been occupied and paddy crop had been raised in an extent of Acs. 2.41 cents. The crop was one week old. Another portion of the kunta had been got ready for raising crop. He asserted that at that time there was no bund on the western side of the kunta. 2.41 cents. The crop was one week old. Another portion of the kunta had been got ready for raising crop. He asserted that at that time there was no bund on the western side of the kunta. As the Settlement Department had classified the Kunta as an irrigation source,he was of the view that the encroachment was objectionable. This Kunta had no feeder source. Erracheruvu is two or three furlongs north-west of the Kunta and a channel from Erracheruvu comes along the western side of the Kunta running southwards and then enters into the paddy fields of Accused 1 to 4. The channel does not enter into the Kunta. The Kunta is fed by rain water alone. From the Kunta there was one cement spout and two palmyrah spouts by which water could be let into the lands of Accused 1 to 4. Rain water collecting in the Kunta flows through these spouts into the fields of Accused A.1 to 4. After the inspection the witness wrote his remarks in the Adangal. He also submitted a report to the Revenue Divisional Officer that the Kunta was not fit to be an irrigation source and the ‘ayacut’ area under it should be transferred to Erracheruvu. The lands of Accused 1 to 4 and the other lands south of the Kunta were always being cultivated by water from. Erracheruvu, but never by the water from the Kunta. He added that he never gave instructions to the village officers to proclaim in Surampalli by torn torn that nobody should encroach into the Kunta and that the occupiers should be evicted. The witness did not take any steps for evicting the encroachers. In cross-examination the witness said that for the first time he inspected the Kunta on nth August, 1961 and again only after the occurrence in this case when he accompanied the District Collector to that place. Exhibits D-43 and 44 dated 30th June, 1961 purport to be the petitions sent by accused 1 to 4 to the District Collector and to the Revenue Divisional Officer and in those petitions it was stated that the Kunta was an irrigation source to their lands and that the persons named therein were trying to encroach upon the land and raise crops. He said that he did not authorise the occupiers to continue their occupation. He said that he did not authorise the occupiers to continue their occupation. He reiterated that when he made the inspection, there was no bund on the west of the Kunta. Nobody raised any dispute about any such bund. He said that he could not say whether he noted in his report to the Revenue Divisional Officer about the absence of the western bund. He added that it was not true that at the north-western corner of the Kunta one bode from Erracheruvu enters into the kunta, but the bode running from Erracheruvu south-west is at a distance of 15 yards from the western end of the kunta. This bode takes a turn towards the east below the southern bund of the Kunta across the fields. He emphatically asserted: “It is not true that the lands of Accused 1 to 4 are irrigated by water flowing through the sluices in the southern bund of G. Kunta........” Much to the same effect is the evidence of P.W. 20, the Karnam of Surampalli. He stated in the course of his evidence that he had been the Village Karnam from the year 1953. Prior to 1959 settlement, the kunta was registered as a ‘A Register Poramboke.‘After the settlement in 1959 it was registered as an irrigation source. From 1953 to 1957 P.W. 13 and others were in possession of the Kunta. They were raising wet and dry crops therein. In 1958, 1959 and 1960 the bed of the Kunta was not cultivated. The witness did not know the reason why. In 1961 the occupiers cultivated the land. On 11th August, 1961, the Tahsildar made the inspection. Prior to 1959 settlement there was no ayacut area under the Kunta as an irrigation source. Settlement operations were completed in F. 1369 and the Kunta was registered as on irrigation source. By means of sluices through the southern bund of the Kunta water flows into the 80 acres of land of Accused 1 to 4, who were cultivating the same from 1953. Water from Erracheruvu and also rain water would be carried to the Kunta. In July, 1961 the Village Munsif got it announced by torn torn that the Kunta was recognised as an irrigation source and that nobody should occupy it. The Tahsildar told the encroachers that the occupation was objectionable. As per the remarks of the Tahsildar, the witness prepared B memos. In July, 1961 the Village Munsif got it announced by torn torn that the Kunta was recognised as an irrigation source and that nobody should occupy it. The Tahsildar told the encroachers that the occupation was objectionable. As per the remarks of the Tahsildar, the witness prepared B memos. He prepared six eviction notices against the six occupiers and sent them to the Tahsildar. The eviction notices were never served upon the occupiers. He went on to say that the Kunta bears the presentSurveyNo.638corres-ponding to the old Survey No. 44. From F. 1369 the Kunta is being shown as an irrigation tank in the revenue accounts. Accused 1 to 4 and members of their family own lands immediately to the south and east of the Kunta. Here I may also refer to the evidence of the Advocate Commissioner, P.W. 27. In August, 1957 he was appointed as Commissioner in I.A. No. 1070 of 1957 in O.S. No. 219 of 1957. He inspected the Kunta in S. No. 44 in Surampalli. He prepared a report and filed it into Court (Exhibit P. 13). Then in October, 1961 he accompanied the investigating officer in this case and visited the kunta. The investigating officer drew the attention of this witness to a bund on the western side of the Kunta. The witness stated: “That Bund was not in existence when I made my inspection as a Commissioner in 1957 on 31st August, 1957”. The suit, O.S. No. 219 of 1957 was still pending in the District Munsifs Court, Nuzvid. Accused 1 to 4 and the occupiers attended the Court on 4th September, 1961, but the matter was adjourned. (It would appear that the suit was ultimately dismissed on 31st August, 1964, vide the judgment filed in this Court as additional evidence. But this circumstance has no material bearing on the issues arising in this case). Now we come to the sequence of events culminating in the tragic occurrence at the Kunta on 10th September, 1961. There was heavy rain on the night of 4th September, 1961, and water had collected in the Kunta. On the morning of 5th September, 1961, when P.Ws. Now we come to the sequence of events culminating in the tragic occurrence at the Kunta on 10th September, 1961. There was heavy rain on the night of 4th September, 1961, and water had collected in the Kunta. On the morning of 5th September, 1961, when P.Ws. 13, 14 and some the other occupiers were returning to the village along the Kunta, they found that a new bund had been raised on the western side of the Kunta preventing the water which had collected in the Kunta from flowing westwards, with the result that the crop which had been raised by the occupiers in the eastern side of the Kunta, had been submerged. The bund ran north to south on the western side of the Kunta and was 3 feet in height, 2½ feet in width and 25 yards in length. There was no one at the bund. P.Ws. 13, 14 and others made a breach in the bund to let off water to the west and then went home. In the evening when they went back to the Kunta they found that the breach in the bund had been closed and the bund had been restored to its original position. Besides two improvised huts had been put up to the south of the bund and all the ten accused were there watching the bund. The occupiers pleaded with the Mokhasadars to removethe bund, as otherwise they would suffer inseparable loss, but the accused turned a deaf ear to their entreaties and threatened to beat them if they dared to interfere with the bund. Then P.Ws. 13, 14 and others went back to the village. On the next day i.e., on the 6th, they told P.W. 12 a Medical Practitioner at Surampalli and a leading member of the Communist party, to assist them in making a representation to the authorities against the high-anded action of the Mokhasadars. P.W. 12 prepared a report, Exhibit P-2, addressed to the Sub-Inspector of Police Gannavaram, and handed it to the occupiers who took the petition and presented it to the Sub-Inspector of Gannavaram Police Station. Exhibit P-2 read thus: "To The Sub Inspector of Police, Gannavaram. Petition submitted by (1) Khandavalli Anandam, (2) Khandavalli Subbayya, (3) Khandavalli Maddi Ramaiah (4) Ponugumaty Ramiah, (5) Arikoti Tirypatayya (6) Shaik Madar Saheb of Surampalli. Sir, We are Harijans, poor and cooly is our only occupation. Exhibit P-2 read thus: "To The Sub Inspector of Police, Gannavaram. Petition submitted by (1) Khandavalli Anandam, (2) Khandavalli Subbayya, (3) Khandavalli Maddi Ramaiah (4) Ponugumaty Ramiah, (5) Arikoti Tirypatayya (6) Shaik Madar Saheb of Surampalli. Sir, We are Harijans, poor and cooly is our only occupation. So we are living by raising paddy from the last 12 years in about Ac. 11.00 of poramboke lands in S. No. 44 in Surampalli village. Our neighbouring land owners and landlords (1) Gottepulla Bapayya (2) Gottepulla Venkata Siva Subbarayanam (3) Gottepulla Seshaiya (4) Gottepulla Subbarao, in order to spoil our crop brought water from Erracheruvu a nearby tank yesterday (i.e. 5th September, 1961), submerged Ac. 4-00 of paddy crop and the ploughed land for cholam crop in all about Ac. 6-00. When we questioned them, they Were prepared to beat us. We entertain fear of the grown up paddy crop in the wet land. So, have mercy on us, enquire into the matter and request you to do us justice." The Sub Inspector promised to send his Constables to the spot and on that assurance, the occupiers went back to their village. On 7th September, 1961, as directed by the Sub Inspector P.W. 31 a police Constable, accompanied by another Constable, proceeded to the Kunta with a view to get the bund removed and if possible to bind over the parties. At the Kunta P.W. 31 noticed a bund newly raised on the western side of the Kunta. The Kunta was full of water and the paddy crops was submerged. Two huts had been raised near the bund. Six of the occupiers were present at the Kunta. On the other side, ten or twelve persons including accused 1, 2 and 10 were there. P.W. 31 told them that the Sub-Inspector had given directions that the western bund should be removed and water should be allowed to flow westwards, so that the crops raised by the occupiers could be saved. Accused 1, 2 and 10 asked P.W. 31 if he had any Government order within directing the removal of the buna and if there was no such order, the bund could not be removed. P.W. 31 told both the parties not to quarrel over the matter and asked them to meet the Sub-Inspector the next day. However, on that day neither party went to the Police Station. P.W. 31 told both the parties not to quarrel over the matter and asked them to meet the Sub-Inspector the next day. However, on that day neither party went to the Police Station. Here it may be mentioned that according to the Tahsildar, P.W. 25, one AtluriSrimannarayana, Panchayat President of Atukur, met him on 8th September, 1961 and told him that the Mokhasadars had raised a cross-bund on the western side of the Kunta thus preventing the flow of water westwards and flooding the crops raised by the occupiers. He requested the Tahsildar to go and get that bund removed. The Tahsildar, however told him that it was not his business and that the Revenue Divisional Officer, Nuzvid, would look into it. Then on 9th September, 1961, the Sub-Inspector sent P.W. 32 the Head Constable and P.W. 31, Police Constable No. 1545 and two other Constables to Surampalli to enquire into the contents of Exhibit P-2 and bind over both parties to appear at the Police Station. The Police Party left Gannavaram at 9 a.m. and reached Surampalli by 11 a.m., the distance between the two being about eight miles. Accompanied by the occupiers and the village officers, the Police Party went to the Kunta. According to P.W. 32, the Head Constable, this is what he noticed and what happened at the Kunta: "There we saw Accused-1 to Accused-5, Accused-10 and others. We found a bund on the western side of the Kunta. He also fund two small huts. In one of those huts We found M.O. 1 (D.B.B.L. gun), leaning against the hut. I questioned to whom it belonged. Accused-1 said it belonged to him. I found the crop in the Kunta under Water. I questioned Accused-1 and others why they had raised the bund and asked them to remove it. Thereupon Accused-10 replied that the bund could not be removed so easily unless a Government order to that effect was produced. He also said that if any one tried to remove the bund forcibly, he Would be shot with the gun. I then asked both sides not to further dispute over it and bound over both sides to appear before the Sub-Ins-pector next morning. Exhibits P-79 and P-80 are the bonds. Accused-2 and Accused-3 signed in one bond, the occupiers executed the other bond. I then asked both sides not to further dispute over it and bound over both sides to appear before the Sub-Ins-pector next morning. Exhibits P-79 and P-80 are the bonds. Accused-2 and Accused-3 signed in one bond, the occupiers executed the other bond. I asked the Village Officers to bring any connected records relating to G. Kunta and Village plan to Gannavaram by next day. Leaving Surampalli by about 4p.m. I reached Gannavaram by about 8 p.m. I made an entry in the General Diary (Exhibit P-81) and prepared a report Exhibit P-82. I was later examined by the Sub-Inspector." The report, Exhibit P-82, contains a full and faithful record of what the Head Constable had seen and what he had done at the Kunta. P.W. 31, the Police Constable, who had accompanied P.W. 32, corroborated P.W. 32. P.W. 31 deposed: "On 9th September, 1961, myself and two Police Constables accompanied by Head Constable 644 Went to G. Kunta by 11 a.m. We took the two village officers with us to G. Kunta. Accused 1, 2.10 and the rest of them Were all present at that time. In one of the huts We saw a gun. Head Constables 644 asked them to remove the bund and allow the Water to flow out. Accused-10 said that unless a Government order directing the removal of the bund Was shown the bund could not be removed and if any one tried to remove it he would be shot. Head Constable 644 told both sides that they should not quarrel any further and that both sides should appear before the Sub-Inspector at 10 a.m. on 10th September, 1961. He obtained bonds from both sides. He directed the village officers to bring the plan the next day.". The significance of the testimony of these two independent Police Officials P.Ws. 32 and 31, and its bearing on the complicity and culpability of accused-10 will be seen in due course. He obtained bonds from both sides. He directed the village officers to bring the plan the next day.". The significance of the testimony of these two independent Police Officials P.Ws. 32 and 31, and its bearing on the complicity and culpability of accused-10 will be seen in due course. Finding that their representations to the authorities did not bear fruit and in view of the fact that the crop which they had raised, had been under water for five days since the 5th and was in imminent danger of being spoiled, the occupiers started making frantic efforts to get the bund removed somehow, and for that end approached respectable ryots of the surrounding villages to intervene on their behalf and persuade the Mokhasadars to remove the bund. After the Police Party left Surampalli on the evening of the 9th P.Ws. 13, 14 and the other occupiers proceeded to Gannavaram where some respectable and elderly persons belonging to the Communist party reside. On the evening of 9th September, 1961, the occupiers met P.W. 11, the President of the Gannavaram Panchayat and Deceased-1, who was the Vice-President of the Atkur Panchayat, and appraised them of their predicament and sought their help and intervention, lest they (the occupiers) should lose the entire crop they had raised. P.W. 1, a resident of Savaragudem, happened to be at Gannavaram at that time in the company of Deceased-1 and P.W. 11. P.W. 6 a resident of Devajigudem also happened to be at Gannavaram at that time and he was asked by P.W. 11 to accompany them to Surampalli the next day to settle the matter. P.W. 11 told the occupiers that he would collect some more elders and go to Surampalli the next morning and persuade the Mokhasadars to remove the bund. On the morning of the 10th, P.W. 11, accompanied by P.W. 6 and Deceased-1; went to Mustabada on their way to Surampalli. At Mustabada they contacted deceased-2 and P.W. 15, and all of them then proceeded to Surampalli. There at the Panchayat Board office, had gathered P.Ws. 1, 4, 5, 7, 8, 9 Deceased-3, the six occupiers and two or three others. P.W. 11 then sent for P.W. 12 also and he too arrived there. P.W. 12 then sent P.W. 13 to bring accused-1 to 4 to the Panchayat office. P.W. 13 returned saying that accused-1 to 4 were at the Kunta. 1, 4, 5, 7, 8, 9 Deceased-3, the six occupiers and two or three others. P.W. 11 then sent for P.W. 12 also and he too arrived there. P.W. 12 then sent P.W. 13 to bring accused-1 to 4 to the Panchayat office. P.W. 13 returned saying that accused-1 to 4 were at the Kunta. Then all those that had gathered at the Panchayat office, numbering about twenty, proceeded to the Kunta. It was about 10 a.m. then. They noticed accused-1 to 9 near the huts, while accused-10 was standing at a distance of about twenty-five yards to the south-east of the huts. Accused-10 had a gun with him, accused-2 and accused-4 had spears, while accused-3 and accused 5 to 9 had sticks. They P.W.s. 1, 4, Deceased-1, P.W. 11 and others requested accused 1 to 4 to remove the bund and save the crop of the poor men. The accused, however refused to do so. Thereupon the six occupiers went towards the bund some twenty-five yards to the north of the huts, and started removing a portion of the bund with their hands. Instantly, accused-1 to 9 rushed at them to beat them. At that stage P.Ws. 5 and 7 and some others who had come to mediate, intervened, and they were beaten by the accused. The former in their turn snatched the sticks from the hands of some of the accused and retaliated, causing injuries to some of the accused. At that juncture accused-10, who was standing near the huts, shouted that these people would not go away unless shot and asked his companions to get clear and come back. Accused 1 to 9 started retreating towards the huts. At that stage, Deceased-1 and P.W. 1, who were about ten yards south-east of the huts, went towards accused-10 defying him to shoot, saying that they were prepared to be shot for a just cause. Immediately accused-10 stepped forward and fired at Deceased-1 when the latter was at a distance of ten yards from him and to the south-east of the huts. Crying out “Abba” Deceased-1 fell down and died on the spot. A pellet graced across the nose of P.W. 11, who was a couple of yards behind Deceased-1, and he too fell down. Thereafter it is said that accused-2 hit P.W. 1 on the back and on thigh and with a spear-stick. P.W. 1 fell down unconscious. Crying out “Abba” Deceased-1 fell down and died on the spot. A pellet graced across the nose of P.W. 11, who was a couple of yards behind Deceased-1, and he too fell down. Thereafter it is said that accused-2 hit P.W. 1 on the back and on thigh and with a spear-stick. P.W. 1 fell down unconscious. Not content with that, Accused-10 fired another shot towards the west as a result of which P.W. 6 was injured. Accused-10 then reloaded his gun moved, a little westwards and fired a shot towards the west. This shot hit Deceased-2, who was at that time standing at a. distance of fourteen yards from the huts and he fell in his tracks and died. Accused-10 followed this up by firing a fourth shot in the north-western direction and this shot hit Deceased-3, who was standing twenty-five yards away from the huts and he fell down dead, and by the same shot P.Ws. 2, 3, 8, 9 and 10 received pellet injuries. Thus accused 10 fired four rounds in different directions in quick succession, killing three persons outright and causing injuries to seven others, This in substance is the version of the occurrence as spoken to with one voice by as many as fifteen eye-witnesses, who were examined as P.Ws. 1 to l5. The cross-examination of these witnesses followed a particular pattern and I shall advert to it at a later stage. It is material to note that none of the shots was fired in the direction where accused-1 to 9 and some of the prosecution witnesses were exchanging blows, that is to say, towards the northern side of the bund. That apparently was the reason-why none of the occupiers and none of the accused received any gun shot injury. Thereafter all the accused left the scene of occurrence. Then most of the injured persons were taken to the hospital at Vijayawada by P.W. 11 and some others who had escaped being hurt. At about 12-30 p.m. that day i.e., on the 10th, P.W. 36, the Deputy Superintendent of Police, Vijayawada (Rural) got a telephonic message from the Viasalandhra office that there had been rioting in Surampalli village and that the injured persons had been brought to the Government Hospital at Vijayawada. At about 12-30 p.m. that day i.e., on the 10th, P.W. 36, the Deputy Superintendent of Police, Vijayawada (Rural) got a telephonic message from the Viasalandhra office that there had been rioting in Surampalli village and that the injured persons had been brought to the Government Hospital at Vijayawada. He proceeded to the hospital and reached there at 1-30 p.m. He found P.W. 1, who had a bleeding injury in his nose, being attended to by a doctor. P.W. 36 then questioned P.W. 1 and the statement which the latter gave was recorded by P.W. 35, the camp clerk who had accompanied P.W. 36. The statement was then read over to P.W. 1 who admitted it to be correct and put his signature on it. Exhibit P. 1 is that statement. (It may be mentioned that Exhibit P. 1 contains a narration of the previous history of the dispute realting to the Kunta and as to the occurrence itself, it refers only to the first shot fired by accused-10 at Deceased-1 which killed him and caused an injury on the nose to P.W. 1. There is no reference therein to the subsequent events resulting in the deaths of Deceased-2 and 3, obviously because P.W. 1 fell down unconscious after being hit by the pellet and belaboured by accused 2). After recording Exhibit P-1, P.W. 36 sent it to the Sub Inspector, Gannavaram, to register a case and proceed with an armed reserve party to Surmampalli village. P.W. 36 himself reached the village at 3-15 p.m., and when he went to the scene of occurrence, he found that P.W. 38, the Circle Inspector of Police Vijayawada taluk, was investigating into the case. As he was told that the person who had used the gun had gone to the village, P.W. 36 being apprehensive of a breach of the peace, went into the village posted some of his men in various places while he himself was patrolling the village till 9-30 p.m. Thereafter he left the village. P.W. 38, the Circle Inspector of Police received information about the rioting in Surampalli village at about 1-30 p.m. on 10th September, 1961. Taking the Sub-Inspector with him, he proceeded to the village and reached the scene of offence at 2 p.m. At the scene he recovered two empty cartridge cases and four cardboard wads. P.W. 38, the Circle Inspector of Police received information about the rioting in Surampalli village at about 1-30 p.m. on 10th September, 1961. Taking the Sub-Inspector with him, he proceeded to the village and reached the scene of offence at 2 p.m. At the scene he recovered two empty cartridge cases and four cardboard wads. He found the dead body of Deceased-1 at a spot 44 links to the south-east of the two huts. (4½ links-1 yard). The dead body of Deceased-2 was lying to the west of the huts about 64 links away and the dead body of Deceased-3 was lying 122 links to the north of the dead body of Deceased-2 and 112 links towards the north-west of the huts and about 28 links to the west of the bund. There were gun shot injuries on all the dead bodies. Inquest ever the dead bodies was held between 3 and 6 p.m. At the inquest P.W. 3 and the relations of the deceased persons were examined. The bodies were then sent for post-mortem examination. At 7 p.m. P.W. 38 went to accused-1’s house and found accused 1 to 9 there. Accused-10 was not present. The clothes of accuseds-1, 2, 3 and 5 were bloodstained and they were seized by P.W. 38. At 7-30 p.m. he searched accused-1’s house and seized the gun (M.O. 1). He noticed that both its barrels were full of smoke indicating that it had been recently used. (It is to be mentioned that accused-1 held a licence for the gun). Thereafter he sent P.Ws. 1 to 9 to the Government Hospital, Vijayawada. Enquiries made by P.W. 38 revealed that accused 10 was not in the village. He then examined some witnesses including P.Ws. 2, 10, 11 and 15. He left Surampalli at 10 p.m., reached Vijayawada at 11-30 p.m. and proceeded to the hospital. There he found P.Ws. 1 and 4 to 9 who had been admitted in the hospital. He examined them and seized their clothes. Next morning he went to Surampalli again and examined some witnesses. At 2 p.m. that day P.W. 39, the Inspector of Crime Branch, C.I.D., tookover the investigation from P.W. 38 on being directed to do so by the higher authorities. P.W. 39 continued the investigation and examined several witnesses on the 11th and 12th. At. 5 p.m. on the 12th he arrested accuseds 1 to 9. As. At 2 p.m. that day P.W. 39, the Inspector of Crime Branch, C.I.D., tookover the investigation from P.W. 38 on being directed to do so by the higher authorities. P.W. 39 continued the investigation and examined several witnesses on the 11th and 12th. At. 5 p.m. on the 12th he arrested accuseds 1 to 9. As. accused-10 was found absconding he sent a Sub-Inspector to trace him. On 27th September, 1961, he, filed the preliminary charge-sheet and after completing the investigation he laid the final charge-sheet on 24th October, 1961. Acpused-10 surrendered before the judicial second class Magistrate, Gannavaram on 14th October, 1961. At about 10-20 a.m. on 10th September, 1961, shortly after the occurrence, accused-1 to 5 went to the house of P.W. 16, the village Munsif of Surampalli, and lodged a complaint. The complaint given by them was signed by accuseds-3 and 5 alone. It was marked as Exhibit P-34 and runs as follows: "(1) Gottipulla Bappaiah (A-2) (2) Gottipulla Venkata Siva Subbarayana, (3) Gottipulla Subbarao (A-4) (4) Gottipulla Seshaiah (A-3), (5) Korlagunta Narayanarao (A-5), came and told this information on 10th September, 1961 at 10-20 a.m. Under the leadership of Yalamanchili Mallikharjunarao (P.W. 12), the Communist Party leader of Surampalli, the residents of Atkur, Mustabada, Surampalli, Savaragudem and Gannavaram i.e. (1) Karragadda Peda Venkatrayudu (P.W. 11), Maddukuri Satyanarayana (P.W. 1), Kolanupaka Subbayyachari (P.W. 4), Paladugu Subbarao, Garimalla Narayya, Garimella Subbayya (P.W. 7), Jasti Nageswarao, Jasti Ramarao (P.W. 5), Jasti Krishnaiah, Jasti Raghavaiah, Barabothu Ramulu Mareodu Subbayya Chalamala Venkatesu, Paladugu Venkateswararao, Boddapati Venkata Subbaiah, Boddapati Lakshmiah (D-3) those who came from Atkuru, Mala of Mustabada and many other people, armed With knives, spears and sticks and along with the encroachers of Gabbilala Kunta came with slogans and beat us who were watching the cross-bund and tried to remove the cross-bund. When Gottipulla Venkata Siva Subbarayanam (A-1) fired his gun in self-defence, some persons received injuries. The persons are about 200. Gavendra Yesudasu. Gudditi Dharmaiah, Dayvari Balakotiah Veeram Subbarao also Were among them. We come tothe house of village munsif of Surampalli and are requesting to report this to Gunnavaram police. Some of as who gave this information are not able to sign. 1. (Signed) Gottipulla Seshaiah (A-3). 2. ” K. Narayanarao (A-5). 3. .. .. 4. .. .. Injured Persons: 1. Gottipulla Bapiah (A-2) 2. Gottipulla Seshaiah (A-3). 3. Gottipulla Subbarao (A-4). 4. Gottipulla Venkata Siva Subbarayanam (A-1). Some of as who gave this information are not able to sign. 1. (Signed) Gottipulla Seshaiah (A-3). 2. ” K. Narayanarao (A-5). 3. .. .. 4. .. .. Injured Persons: 1. Gottipulla Bapiah (A-2) 2. Gottipulla Seshaiah (A-3). 3. Gottipulla Subbarao (A-4). 4. Gottipulla Venkata Siva Subbarayanam (A-1). 5. Korlagunta Narayanarao (A-5). 6. Paleti Kotiah (D.W. 4.) 7. Thota Subbarao (A-8). 8. Paleti Venkataratnam (A-9). 9. Thota Seetaramiah (A-7). 10. Shaik Madar Saheb, son of Lal Ahmed (A-6)”. (I have supplied the key showing the rank of the witnesses and the accused.) It is to be noted that in this report which represented the earliest version of the accused, it is stated that it was accused-1 that had fired the gun in self-defence as a result of which some persons had received injuries. Accused.-10’s name is conspicusouly absent. Nor is there any reference to Deceased-1 or Deceased-2. On the basis of this complaint, the Village Munsif sent his reports to the Police and to the Judicial Second Class Magistrate. I shall now refer to the medical evidence in the case which throws light on the nature of the injuries sustained by persons on both sides in the course of the incident. P.Ws. 17, 21 and 18, the Civil Assistant Surgeons who were than working in the Government Hospital, Vijayawada, conducted autopsies on the dead bodies of deceased-1, deceased-2 and deceased-3 respectively. On deceased-1 seven gun-shot injuries were found and the pellets had penetrated into the heart, left lung and stomach. Some of the injuries were found lodged in those organs. The cause of death, according to P.W. 17 was shock and haemorrhage as a result of injuries to the heart and lung. On deceased 2, P.W. 21 found nine punctured wounds attributable to gun-shot. A good number of pellets had pierced into the face and trachea. Some pellets were found embeded in the muscles of the left side of the chest and one pellet was found lodged in the scalp. In the opinion of this medical witness deceased 2 appeared to have died of shock and haemorrhage due to injury to carotid vessels, caused by gun shot wounds. Some pellets were found embeded in the muscles of the left side of the chest and one pellet was found lodged in the scalp. In the opinion of this medical witness deceased 2 appeared to have died of shock and haemorrhage due to injury to carotid vessels, caused by gun shot wounds. P.W. 18 conducted the post mortem on deceased 3 and found multiple punched cut wounds seventeen in number over the right side of the chest, five on the left side of the chest, two on the anterior aspect of the right shoulder and five on the outer aspect of the right shoulder. The cause of death was shock and haemorrhage due to gun-shot wounds affecting the heart and the lung. P.W. 21 examined P.W. 3 also on the night of 10th September, 1961, and found two circular abrasions each ½ mm. in diameter one on the poster or aspect of left calf muscle and the other on the medial aspect of the left leg. The injuries were due to gun shot splinters and were simple in nature. P.W. 21 examined one Lokam Subbarao (who was examined by the defence as D.W. 2) at 11-30 a.m. on 15th September, 1961, and found five injuries on his person which were attributable to stick blows. One of the wounds which was over the dersum of the left hand was grievous in nature which had caused the fracture of the radius. The injuries were five days old. P.W. 23, the Woman Assistant Surgeon attached to the Government Hospital, Vijayawada, examined P.Ws. 1 and 4 to 9 on the forenoon of 10th September, 1961, She examined P.W. 2 on the same night at 11-50 p.m. On the person of D.W. 1 she found a lacerated bleeding injury separating the tip of the nose and part of the left ala of the nose from rest of the nose. It was transversely placed and 2” in length. There were three contusions-two of them on the back and one on the left side of the occiput. The fifth injury was a lacerated bleeding injury ½“x ¼” skin deep on the outer side of the left eye-brow. P.W. 1 was admitted inthe hospital and discharged on 20th September, 1961. P.W. 23 was of opinion that the injuries were simple in nature and could be caused by a blunt weapon. The fifth injury was a lacerated bleeding injury ½“x ¼” skin deep on the outer side of the left eye-brow. P.W. 1 was admitted inthe hospital and discharged on 20th September, 1961. P.W. 23 was of opinion that the injuries were simple in nature and could be caused by a blunt weapon. She did not think that injury No. 1 could have been caused by a gun-shot splinter. She did not give any reason for her opinion. In my view injury No. 1 could very well have been caused by a gun-shot splinter as spoken by P.W. 1. The other injuries could have been caused by a blunt weapon. On P.W. 2 the doctor noticed as many as thirteen gun-shot injuries. X-ray revealed a small number of round and irregular radio opaque shadow with comminuted fracture of the right fore-arm. P.W. 23, nevertheless, opined that all the injuries found on P.W. 2 were simple in nature. Clearly injury No. 13 was grievous in nature. On P.W. 4 she found a lacerated bleeding injury 3" x ½"scalp deep situated on the upper part of the occiput and another bleeding incised injury 1½" x ½" x ½" situated on the anterior aspect of the right shoulder joint. The whole of the right shoulder was swollen and was brownish red in colour and the movements of the joint were restricted. P.W. 23 opined that the injuries were simple in nature and could be caused by blunt and sharp edged weapons (P.W. 4, however, has stated in his evidence that he was hit on the right shoulder by a pellet as a result of one of the shots fired by accused 10. But, injury No. 2 on P.W. 4 was not a gun-shot injury. It looks as though P.W. 4 was one of those who was involved in the fight at the bund, but he was trying to suppress it). On P.W. 5 a contusion on the left fore-arm a lacerated bleeding injury on the right parietal bone were found. These injuries were simple in nature and could have been caused by sticks. On P.W. 6 three circular wounds were found which could have been caused by gun-shot. On P.W. 7 three injuries were found which could have been caused by stick blows. On P.W. 8 there were four circular bleeding injuries caused by gun-shot. These injuries were simple in nature and could have been caused by sticks. On P.W. 6 three circular wounds were found which could have been caused by gun-shot. On P.W. 7 three injuries were found which could have been caused by stick blows. On P.W. 8 there were four circular bleeding injuries caused by gun-shot. On P.W. 9 was found a circular bleeding injury situated on the dorsum of the left hand and X-ray examination revealed a fracture of the base of metacarpal bone. The injury was grievous in nature and could have been caused by a gun shot. P.W. 22, another woman Civil Assistant Surgeon, examined P.W. 10 on the forenoon of 11th September, 1961, and found five wounds on her person which could have been caused by gun-shot. One of the injuries which had damaged the lung, was grievous in nature. It is worthy of note that P.Ws. 5 and 7 who were stated to have snatched the sticks from the hands of some of the accused and beaten them, did not receive any gun-shot injuries for the obvious reason that the shots were not fired in the direction where the clash occurred. On a requisition sent by the investigating Police, accused 1 to 9 were examined by P.W. 23 on the night of 10th September, 1961, and wound certificates were issued On accused 9 however, she found no injury. Accused 1 had ten injuries on his person as per Exhibit P. 64. They were simple in nature and could have been caused by a stick. On accused 2 the doctor found eight injuries as per Exhibit P. 65 and out of them two injuries were grievous and the rest simple. According to P.W. 23, injuries Nos. 1 to 7 as shown in the wound certificate could have been caused by sticks, while injury No. 8 could have been caused by a spear. Injury No. 8 was described in the certificate as: "An incised wound transversely placed on the right half of centre of occiput at the back of head l½" x 1¼" scalp deep. Clotted blood found in the Wound". It seems to me that having regard to the nature of injury No. 8 and in particular its being a scalp-deep injury, it might very well have been caused by a stick and not by a spear as opined by P.W. 23. Clotted blood found in the Wound". It seems to me that having regard to the nature of injury No. 8 and in particular its being a scalp-deep injury, it might very well have been caused by a stick and not by a spear as opined by P.W. 23. It is well-known that incised injuries of this description can be caused by blunt weapons when the blows are dealt on the head. On Accused 3 two injuries were found as per Exhibit P. 66 and they were; "1. An incised wound 3" x ½"scalp deep situated diagonally in the front half of right parietal bone, early scab found in the Wound.................. 2. A contusion brownish red in colour with raised edges situated on the outer aspect of left thigh in its lower 1/6th." According to P.W. 23, injury No. 1 could have been caused by a weapon like a spear and injury No. 2 by a stick. Here again it is extremely doubtful that injury No. 1 was attributable to a spear it might well have been caused by a stick. On accused 4 the doctor found a contusion on the right fore-arm which had caused a fracture of the right radius. The injury could have been caused by a stick. On accused 5 there were four simple injuries all of which could have been caused by a stick as per Exhibit P-68. Similarly, accused 6 had five simple injuries; Accused 7 had one simple injury and accused 8 had one simple injury all of which could have been caused by sticks. The relevant wound certificates-are respectively Exhibits P-69, P-70 and P-71. I shall now notice the pleas of the accused and the evidence adduced by the defence in support thereof. In the committal Court accused 1 stated that the occupiers had cultivated the tank-bed for five years; that they had stopped cultivation thereafter as the Kunta was registered as a Government tank; that they had not stopped cultivating in the years 1958, 1959 and 1960 for want of rains, but because it was registered as a Government tank. He said that he and his brothers bad raised the bund in which the occupiers caused a breach and that after closing the breach, he and his people were watching the bund, but at that time they had no sticks, spears or a gun. He said that he and his brothers bad raised the bund in which the occupiers caused a breach and that after closing the breach, he and his people were watching the bund, but at that time they had no sticks, spears or a gun. He asserted that on 9th September, 1961, when the police went to inspect the Kunta, he was not there at all. As regards the occurrence on the 10th, this is what he said: “I was not there. When I was at my house 200 persons were going shouting that they would kill Bapayya (A-2) and his brothers. I expected some danger and Went there with a gun through the fields. My three brothers (A-2 to A-4), Narayana Rao (A-5) and Madar Saaheb (A-6) lay with injuries. Then I fired the gun. I saw my people and fired the gun once. When people came on me I fired second time and when I was loading my gun, I was beaten on my back. When they were beating me, I turned back and fired a third time. Then all of them ran away. I fell down. If I did not open fire they Would have finished off our crop, my self and my brothers.” When he was asked whether he had given his licensed gun to accused 10 knowing that the latter had no licence to use the gun, he replied; “I did not give. Accused-10 was not in the village that day.” He gave a similar statement in the Sessions Court also. He stated that the occupiers were not cultivating the tank-bed after Government had classified the Kunta as an irrigation source. He, however, admitted that the occupiers had raised crop in the tank-bed in 1961. As regards the bund, he asserted that the bund had always been there. He went on to say that heavy rain fell on the night of the 4th and the Kunta got filled with water. But the occupiers removed the bund on the 5th. The bund was, however restored and his younger brothers were keeping watch over it. He said he was not present on the 7th when P.W. 31, the Police Constable visited the kunta. So also on 9th September, 1961, when the Head Constable (P.W. 32) accompanied by the Constable (P.W. 31) went to the kunta, he was not present. The bund was, however restored and his younger brothers were keeping watch over it. He said he was not present on the 7th when P.W. 31, the Police Constable visited the kunta. So also on 9th September, 1961, when the Head Constable (P.W. 32) accompanied by the Constable (P.W. 31) went to the kunta, he was not present. As regards the happenings on the 10th he said he was not at the kunta in the beginning, but went there after his people had been beaten and fallen down. He said that the evidence of the eye-witnesses that it was accused 10 that had fired the shots and killed the three deceased persons was false. He admitted having gone to the Village Munsif in the company of Accused 2 to 5 at 10-20 a.m. on the 10th and lodged a complaint, Exhibit P-34. When asked whether he wished to say anything more, he stated as follows: “On the morning of that day I came home from the huts. At 8-30 I heard slogans of many communist people. On coming out and seeing it, I sent Gopalarao, Who was in front of my house, to tell the Village Munsif about this information. They shouted that they Would kill Mohasadars. I took food at 8-30. While I am thinking to go to Gannavaram 300 people wen shouting in the way Jai to Communist party; We shall kill Mokhasadars; We shall build tembs of Sivayya, Bapaiah, etc. and they were going. Thinking that some danger might be caused to my younger brother, I went then taking the gun from the house. I went to the huts and bund. All my younger brothers had fallen and shouted,”We are dying, elder brother.“Then I fired towards West and north to save their lives. Then when one group was coming from Western side shouting”Sivayya came, let us kill him,“I fired towards West. While I was loading the gun after turning to east, they hit on my head. Then I turned and fired. Ramarao (Deceased-1) died. The place was left leaving a Way to go for us. Then Lokam Subbarao (D.W. 2), myself, accused 2 to accused 9 and Palati Kotaiah (D.W. 4) together Went to the house of village Munsif Lokam Subbarao Went away. Then I turned and fired. Ramarao (Deceased-1) died. The place was left leaving a Way to go for us. Then Lokam Subbarao (D.W. 2), myself, accused 2 to accused 9 and Palati Kotaiah (D.W. 4) together Went to the house of village Munsif Lokam Subbarao Went away. We gave a report to the Village Munsif.” Thus, the plea of accused 1 was that the bund had always been in existence and it had not been put up for the first time on the 5th; that on the day of the occurrence he had gone to the village from the kunta in the morning and while in the village, he saw a large band of communists going towards the Kunta raising war-cries. Apprehending danger to his brothers, he took his gun and went to the Kunta. There he noticed all his younger brothers i.e., Accused, 2, 3 and 4 fallen down and raising plaintive cries for help. It was at that stage that he had fired his gun twice to safe their lives. Then when some persons of the opposite group came upon him, he fired another shot westwards. Then as he was loading the gun again he was beaten on the head. Thereupon he turned round and fired another shot which killed deceased-1. Accused-2 also asserted that the bund had always been there and that the Tahsildar was wrong in saying that there was no bund; that he, his brothers and farm servants had closed the breach on the 5th and were watching it from that date onwards. He denied that they had spears sticks or a gun. He admitted that on. 9th September, 1961, a Head Constable and some Constables had come to the Kunta and asked them to remove the bund as the crop raised by the occupiers was submerged. But he and his brothers told them that there was an injunction order from the Court in their favour. Then the Police took bonds from him and accused 2 ana 3 and told them to come to the station the next day. When questioned about the occurrence on 10th September, 1961, accused, 2 stated as follows: “At about 10 hours, the communists came shouting that they they Would kill Mohasadars. Myself and accused 3 were at the huts. On hearing those shouts, accused 4, 5, 6, 7, 8, 9 and Lokam. When questioned about the occurrence on 10th September, 1961, accused, 2 stated as follows: “At about 10 hours, the communists came shouting that they they Would kill Mohasadars. Myself and accused 3 were at the huts. On hearing those shouts, accused 4, 5, 6, 7, 8, 9 and Lokam. Subbarao (D.W. 2) came to us from the surrounding fields. The opposite persons came With Communist flags, sticks and spears and began to remove the bund. Then myself and accused 3 to 9 intervened. P.W. 12 beat me with a spear. P.W. 4 beat with a stick. P.W. 1 beat with a stick. P.W. 4 etc., beat. I fell down.” He went on to say: “Vijaya Ramarao (A-10) was not there. Venkatasivasubbarayanam (A-1) went away saying that he would go to Gannavaram. Meanwhile 200 persons came from the Vagu with spears, sticks and flags shouting they would kill Bapayya, Sivayya brothers. They Were not seen upto 50 yards. There Was no scope for us to run. Cultivators caused breach in the bund. People came on us and beat us. We had neither spears nor sticks. We had no idea of beating them. With a view to kill us, they came to us and beat. They have beaten us and accused 1 came and fired a gun. If he had not fired like that, we all would have been killed. If a breach was caused, we will be put to a loss of Rs. 25,000.” When questioned about his having beaten P.W. 1 and P.W. 5, he denied having done so. Accused 3 to 9 practically adopted the statement of accused 2. Each of one them asserted that accused 10 was not present at the kunta at the time of occurrence; that it was accused 1 that had fired the shots after his brothers had been beaten down, that all the other accused were unarmed and that none of them had a stick or a spear, and they had been beaten by one or other of the prosecution witnesses. Thus they made no attempt to explain the injuries found on some of the prosecution witnesses. They attributed the shooting to accused 1 and were emphatic that accused 10 was not there at all. Accused 10 himself pleaded alibi but did not adduce any evidence thereof. Thus they made no attempt to explain the injuries found on some of the prosecution witnesses. They attributed the shooting to accused 1 and were emphatic that accused 10 was not there at all. Accused 10 himself pleaded alibi but did not adduce any evidence thereof. He stated: “On knowing that my maternal uncle was ill, I went to Sivapuram Cuddapah district, a Week days prior to the offence. I do not know about this offence. I am a member of Nunna Congress Mandali. Therefore the Taluk Communists are angry with me. Due to that anger, I also was impleaded in this case. I was in Sivapuram for about one month. On knowing that a case was filed against me I surrendered in Gannavaram J. S.C. M’s. Court. I do not know about this case. I cannot fire a gun......” It is to be noted that accused 10’s case was that not only was he not present at the kunta on the day of the occurrence which was the 10th, but he had left Surampalli for a place over a hundred miles away in another district even a week earlier. That would be in direct contradiction to what was sworn to by P.Ws. 31 ana 32, the Police Constable and the Head constable, that the former had seen accused 10 at the Kunta on the 7th and that both of them had seen him again on the 9th when he uttered the ominous threat that anyone who dared to meddle with the bund, would be shot down. Four witnesses were examined on behalf of the defence. Of them D.Ws. 1, 2 and 4 sought to support that the accused’s version of the occurrence. D.W. 3’s evidence, however, is not material. D.W. 1 deposed that he lives in Surampalli and his house is about 20 yards away from that of P.W. 12. He owns 7 acres of land. On the morning of 10th September, 1961, about 200 Communists were proceeding from P.W. 12’s house shouting party slogans and crying out that Gottipulla people (meaning accused 1 to 4) should be killed. He saw two in the crowd carrying spears and the others carrying sticks and flags tied to sticks. They were proceeding along the main bazaar to the kunta. Apprehending some trouble the witness went to the kunta across the fields ana stood at the sou hern bund of the kunta. He saw two in the crowd carrying spears and the others carrying sticks and flags tied to sticks. They were proceeding along the main bazaar to the kunta. Apprehending some trouble the witness went to the kunta across the fields ana stood at the sou hern bund of the kunta. The occupiers and others who came with them approached the bund on the western side with a view to remove it. Accused 2 to 4 who were standing at the bund caused obstruction to the removal of the bund. Their farm-servants also came from the neighbouring fields and joined them in obstructing the occupiers. All the communist party members beat the obstructors. Accused 2 to 4 on receiving injuries cried out ‘Brother Sivayya, we are dying Come quickly.‘Then when the witness looked behind he saw accused 1 coming there across the fields armed with a gun. He came near the two huts and fired a shot northwards at the men standing near the bund, when the opposite party men were beating accused 1’s party-men. The beating was taking place at a spot north of the huts at the bund which had been raised by the Mokhasadars long time ago to prevent water from flowing out of the Kunta. When accused 1 fired a shot northwards one boy fell down. Someone among the opposite group shouted that Sivayya (accused 1) had come. Thereupon the crowd rushed at him. Then accused 1 fired a shot westwards. Deceased 2 fell down. Even thereafter some persons from the opposite side went towards accused 1 to attack him. Thereupon the latter turned towards east and proceeded 10 to 15 yards for reloading his gun. As he was going he was beaten on the back and on the back of the head. As he was being beaten, accused 1 reloaded his gun, turned westwards and fired a shot. That shot hit Deceased-1 and he fell down on the bund. After Deceased-1 fell down, all the members of the communist party turned tail and ran away from the scene. Then accused 1 fell down and got up immediately. Thereafter accused 1 went away into the village. The witness also went home. He added that when the communist party-men approached the western bund of the Kunta they went there straight to remove the bund and no conversation took place between them and accused 2 to 4. Then accused 1 fell down and got up immediately. Thereafter accused 1 went away into the village. The witness also went home. He added that when the communist party-men approached the western bund of the Kunta they went there straight to remove the bund and no conversation took place between them and accused 2 to 4. He asserted that he aid not see accused 10 at that place. It was accused 1 that had find the shots. Three days later the witness went to Vijayawada to see the injured persons on both sides in the hospital. One Atukuri Venkataratnam took him to the police station and he told the police about what he knew. Cross-examined by the Public Prosecutor the witness said that after witnessing the occurrence he remained in the village for three days before going to Vijayawada to see the injured men in the hospital. The police officers also came to the village; but he did not know why the police came to the village whether to enquire into the matter or to prevent any disturbance. He denied the suggestion that he is not a member of the Mandali Congress. He had known Atluri Venkataratnam for ten years as a congressman. He further denied the suggestion that Venkataratnam had given him money and made him give a statement to the police about the incident. He said that he had known accused 1 and his brothers for several years. When he heard shouts of the crowd, he anticipated some danger to accused 1 and his brothers. He, however, did not go to accused 1’s house to inform him. Accused 10 resides in the house of accused 1. The witness went to the Kunta just to see what would happen. When he reached the southern bund of the Kunta only accused 2 to 4 were there. They were near the huts. The men of the opposite party went straight of the bund and removed a portion in the northern side and as a consequence water was flowing westwards. Two hundred men belonging to the opposite group were near about that place. Then accused 2 to 4 went to that spot. Some persons of the opposite group were removing the bund, while some began to beat accused 2 to 4. Two hundred men belonging to the opposite group were near about that place. Then accused 2 to 4 went to that spot. Some persons of the opposite group were removing the bund, while some began to beat accused 2 to 4. At a place about a yard to the south of the place where the bund was opened, accused 2 to 4 were beaten. After accused 5 to 9 joined accused 2 to 4, all of them were beaten. Except accused 7 and 8 all the rest fell down. He, however, did not notice who heat them or with what weapons. Right through the incident he was standing at a place two or three yards south of the huts. Accused 2 alone cried out for help presumably on seeing his brother accused 1 with a gun. All the men of the opposite side were surrounding him at that time. Accused 1 is about 60 years old. The whole incident from the beginning to end took place in about two or three minutes. As the opposite side men were rushing towards accused 1, he (Accused 1) fired at them. The first shot was fired at the man who was attacking accused 2. Ten or twelve men who rushed at accused 1 beat him. They were carrying flag sticks and spears. As they were approaching him accused 1 fired at them from within two or three yards. Then accused 1 ran towards the east reloading his gun. He was walking but not running. Ten or twelve men went behind him and were beating him. He did not see spears in the hands of those ten or twelve men when they were beating accused 1. The latter did not fall down when he was being beaten from behind. None of them tried to snatch the gun from accused 1. None of the opposite group received any stick injuries. He went on to say that accused 1 ana 10 attend to accused 1’s lands. He stated that after going to the hospital to see the injured persons he did not actually see them. Finally to a suggestion put to him he said: “It is not true that A. Venkataratnam put me up as a fake witness to help these accused on account of his enmity with the communist party. He stated that after going to the hospital to see the injured persons he did not actually see them. Finally to a suggestion put to him he said: “It is not true that A. Venkataratnam put me up as a fake witness to help these accused on account of his enmity with the communist party. It is not true that accused 10 was there and fired the shots.” D.W. 2 claimed to have been cutting grass at the Kunta at the time of the occurrence. He stated that after sun-rise on the day of the occurrence he went to cut grass near the Kunta. He was cutting grass at a place some twenty-five yards east of the huts. Then he saw more than 200 communist coming there carrying flags, sticks and spears shouting out slogans. They went straight to the western bund of the Kunta towards its north. Near the huts accused 2 to 5 were standing. Accused 6 to 9 came there as the beating was going on. When the opposite side men were removing the bund at the northern point, accused 2 went there and asked them not to remove the bund. Accused 3 to 5 followed behind. Then P.W. 12 hit accused 2 on the head with a spear. The witness too went there and stood behind accused 5. After beating accused 2, P.W. 12 beat the witness on the left hand with a spearstick causing a fracture. While P.W. 10 hit him on the left side of the head with a stick, P.W. 11 also hit: the witness fell down on the western bund. Thereafter he heard some gun-shots, but he did not see anything more. When he regained consciousness, there was no one there. He did not see any dead bodies there. He saw accused 1 and others going away form the scene of occurrence some 50 yards away. He noticed that accused 1 was carrying a gun. But, he did not see accused 1 when he (the witness) was beaten. He asserted that accused 10 was not there at all. The witness went home without meeting accused 1 to 9. Next day he went to Nunna for having his injuries attended to. Two or three days later he went to Vijayawada to the hospital. He was examined by the police at the hospital. He asserted that accused 10 was not there at all. The witness went home without meeting accused 1 to 9. Next day he went to Nunna for having his injuries attended to. Two or three days later he went to Vijayawada to the hospital. He was examined by the police at the hospital. (It will be recalled that this person was examined by P.W. 21, one of the Civil Assistant Surgeons on 15th September, 1961, at about 11-30 a.m., that is to say, five days after the occurrence. There were five injuries on his body, one of which was a fracture of the radius. According to P.W. 21, the injuries were five days old). In cross-examination the witness said that four or five years prior to the incident, he and accused 1 had been partners in a mill. In the case filed by accused 2 against P.W. 12 and others he had given evidence on behalf of accused 2. Before he was examined by the police, he did not mention the facts spoken to by him to any-one else. He did not tell the doctor at Nunna how he had received the injuries. He was treated at Nunna for three days. He did not know what was happening in the village during those three days. He denied that on account of friendship with the accused’s party, he was giving false evidence. P.W. 4 is another witness, who speaks about the occurrence. He is a resident of Surampalli village. On the day of the occurence he was returning from his mango garden to the village along the Kunta. It was about 8-30 or 9 a.m. He heard shouts ‘Communist party ki jai, katta teg gottali’, meaning thereby that the bund should be cut. When the witness went near the western bund of the Kunta, he saw 200 or 300 persons armed with sticks, spears and flag sticks. He saw them beating accused 2. Accused 2 to 5 alone were there. Accused 2 had fallen down. Meanwhile accused 1 came there with a gun. He came near the huts. Accused 2 was crying ‘Chachi pothunna annaya‘, meaning thereby “Brother, I am dying.” Accused 1 first fiered a shot towards the north-western direction standing on the southern bund two yards tothe east of the huts. Some opposite menfrom the west shouted ‘Sivayya has come. Do not let him go’. He came near the huts. Accused 2 was crying ‘Chachi pothunna annaya‘, meaning thereby “Brother, I am dying.” Accused 1 first fiered a shot towards the north-western direction standing on the southern bund two yards tothe east of the huts. Some opposite menfrom the west shouted ‘Sivayya has come. Do not let him go’. He was proceeding towards the east in the direction of accused 1. Then accused 1 fired a shot towards the west. Thereafter accused 1 turning towards the east moved step by side ten yards reloading his gun. Some of the opposite men went behind him and dealt blows on his back. Then accused 1 turned back towards the west and a fired shot. The witness did not see if anybody fell down as a result of the first two shots. When the third shot was fired, he saw one man falling down. Then the opposite men ran away. Thereafter accused 1 fell down and got up. Then accused 2 and others came near him. The witness also joined them. They all went to the Village Munsif’s house. The witness asserted: “I did not see accused 10 at the scene of occurrence. He did not use the gun at all”. In cross-examination he stated that he did not inform the police at any time what he had seen. He went to the scene of offence merely to see what was going on. He admitted that he had no property and sometimes he goes for cooly work. But he never worked as a cooly under accused 1 to 4. He denied the suggestion that it was accused 10 who had fired the shots and that he (the witness) was giving false evidence. He admitted that he had no property and sometimes he goes for cooly work. But he never worked as a cooly under accused 1 to 4. He denied the suggestion that it was accused 10 who had fired the shots and that he (the witness) was giving false evidence. Such is the quality of the evidence adduced by the defence to support the plea of the accused that on that fateful morning, a large body of communists estimated at 200 to 300 had marched from the village armed with deadly weapons and had attacked accused 1 to 9, and that after accused 2 to 4 had been beaten down and were crying out for help, accused 1 who was not present then at the Kunta had appeared on the scene armed with a gun and fired several shots even as he was being beaten by the members of the opposite group;‘and that accused 10 was not present at the scene at all and had not fired the shots, and the allegation to the contrary was false. Here it will be convenient to refer to the lines on which the eye-witnesses were cross-examined; the points that were sought to be elicited and the points that were actually elicited from them. The cross-examination was in the main directed to showing that the eye-witnesses were all either active members of the Communist party or were fellow-travellers and as such partisan witnesses, and further that the defence version of the incident represented the truth. An attempt was also made to show that the bund which was the cause of all the trouble, was an old bund which had been in existence for several years and that it was not a new bund put up for the first time on 5th September, 1961. Out of the fifteen eye-witnesses, P.Ws. 1, 4, 11, 12 and 15 admitted that they were members of the Communist party. P.W. 5 said he was a sympathizer of the party. He also stated that likewise P.Ws. 7, 8 and Deceased 3 were sympathizers. P.Ws. 2 and 3 who are gang coolies, and P.W. 6 swore that they had no connection whatever with the Communist party. It was not even suggested to P.W. 9 that he was in any way associated with the Communist party. Out of the remaining eye-witnesses, P.Ws. He also stated that likewise P.Ws. 7, 8 and Deceased 3 were sympathizers. P.Ws. 2 and 3 who are gang coolies, and P.W. 6 swore that they had no connection whatever with the Communist party. It was not even suggested to P.W. 9 that he was in any way associated with the Communist party. Out of the remaining eye-witnesses, P.Ws. 13 and 14 were two of the six occupiers of the tankbed and P.W. 10 is the wife of one of the occupiers by name Ramayya. It appears from the evidence that Deceased-1 and 2 were prominent members of the Communist party. It will be seen, therefore, that even if it be assumed that such of the prosecution witnesses as were members or sympathizers of the Communist party were interested witnesses, inasmuch as they had espoused the cause of the occupiers, there is hardly any basis in the evidence for treating P.Ws. 2, 3, 6 and 9 as interested witnesses. Moreover, except in the case of P.W. 12 as between whom and accused 1 to 4 there appears to have been some previous enmity, there is not a shred of evidence to show that P.Ws. 1 to 9, 11 and 15 had any personal animosity against any of the accused. It was suggested to witness after witness that they had gone to the Kunta on the morning of the occurrence not with a view to settle the matter through mediation and by peacefully persuading accused 1 to 4 and their companions to remove the bund and save the crop raised, by the occupiers from being damaged, but that they had gone there in large numbers armed with dangerous weapons and tried to remove the bund and when accused 2 to 9 obstructed them, they were beaten; and that at that stage, accused 1 had come to the rescue of his brothers and fired several shots with a gun; and accused 10 was not at the scene of occurrence at all. All these suggestions were emphatically repudiated by every one of the witnesses. As regards the injuries caused to accused 1 to 8, P.Ws. 2 to 15 stated that while P.Ws. 5 and 7 were being beaten by accused 1 to 9. P.Ws. 5, 7 and others had snatched the weapons from the hands of the accused and given a beating to them. As regards the injuries caused to accused 1 to 8, P.Ws. 2 to 15 stated that while P.Ws. 5 and 7 were being beaten by accused 1 to 9. P.Ws. 5, 7 and others had snatched the weapons from the hands of the accused and given a beating to them. I shall now refer to the findings arrived at by the learned trial Judge and consider how far they are sustainable on facts and in law. In a discursive and somewhat meandering judgment, the learned Additional Sessions Judge has recorded the following findings: 1. Bund: The question was whether a bund had existed on the western side of the Kunta all through or whether it was newly put up shortly before the incident. After noticing that the evidence pertaining to the bund was conflicting, the learned Judge answered the question thus in paragraph 10(iii) of his judgment: “Apart from the evidence of the interested witnesses, there is the evidence of the Commissioner who stated that there was no bund on the west of the Kunta when he visited the place in 1957. The Tahsildar also stated that there Was no such bund when he went there on 11th August, 1961. There is no reason to reject their evidence on this part of the case. It may be noticed that on no prior occasion was any dispute raised over this bund. The occupation was there from Fasli 1363. If the bund existed and thereby water Was collected and stored in the kunta surely the occupiers could not have kept quit all along. It is clear that the Western bund in the form in Which it existed on 5th September, 1961, was raised by the accused; the occupiers opened a breach in it and the accused closed it on 5th September, 1961.” 2. Nature of the prosecution, evidence: On this point, the learned Judge gave the following finding in paragraph 5 of his judgment: “Thus, P.Ws. 1 to 12 and 15 are all mem forming one faction; some of them are prominent members of the Communist party; some were members; some were sympathizers; and some Were their friends. P.Ws. 13 and 14 are the occupiers backed up by all of them.” In reaching this conclusion, the learned Judge was not prepared to accept the categorical statement of P.Ws. P.Ws. 13 and 14 are the occupiers backed up by all of them.” In reaching this conclusion, the learned Judge was not prepared to accept the categorical statement of P.Ws. 2, 3, 6 and 9 that they had nothing to do with the political party. The learned Judge regarded P.Ws. 2 and 3 as partisan witnesses because they were gang coolies in the Railway just as Deceased 2 was and further because they had sustained gun-shot injuries. P.W. 2 who belongs to Mustabada, which is two miles from Surampalli, deposed that he and P.W. 3 were going to a neighbouring village and the path lay along the Kunta and when they reached the Kunta at about 10 a.m., they happened to witness the occurrence and that both of them received pellet injuries by the last shot fired by accused 10. P.W. 3 corroborated P.W. 2. Similarly, P.W.6 who belongs to Devajigudem, said that he did not belong to the Congress party or the Communist party and that on the day of the occurrence he had gone to the Kunta because on the previous day, P.W. 11 and Deceased-1 and others had asked him to go to Surampalli to settle the dispute between the occupiers and the Mokhasadars. After describing these sequence of events at the Kunta, he stated that when accused 10 fired a second shot towards the west after Deceased-1 and P.W. 1 had been hit by the first shot, he (the witness) sustained some gun-shot wounds on the chest and other parts of the body. Likewise P.W. 9 disclaimed any affiliation to the Communist party and swore that on the morning of the day of the occurrence he had gone from his village of Mustabada to Surampalli to meet one Gottupulla Kotayya, but not finding that person there, he had gone to the bazaar and at the Panchayat Office he saw several respectable persons belonging to different villages seated there, and when he asked them why they had all met, he was told that the velamas (meaning accused 1 to 4) hadsubmerged the crops of the poor ryots and so they were going to request the velamas to remove the bund. So saying they all proceeded to the Kunta and he too followed them and witnessed the incident. He said that the last shot fired by accused 10 caused injuries to him also. 3. So saying they all proceeded to the Kunta and he too followed them and witnessed the incident. He said that the last shot fired by accused 10 caused injuries to him also. 3. Unlawful assembly: On the question whether on the day of the occurrence the accused had formed themselves into an unlawful assembly actuated by an unlawful common object, the learned trial Judge was of the view that as the Kunta had been registered as an irrigation source for the lands of the Mokhasadars, they had the right to raise a bund to conserve the water and to keep watch over it fully armed with weapons, and in doing so they were merely maintaining a right and were not enforcing any right or supposed right. Consequently, there was no unlawful assembly within the meaning of section 141, Indian Petal Code. 4. Occurrence: On the question whether it was accused 10 or accused 1 that had fired the fatal shots, the learned Judge discussed it in paragraph 12 of his judgment in the following manner: “Although the 10th accused stated that he left for a village in Cuddapah District a few days before the incident and returned only a month thereafter, there is nothing but his interested statement to support that version. The other accused and the Defence witnesses also stated that the 10th accused was not present, but they are interested in saying so. The evidence of P.Ws. 31 and 32 supports the evidence of the other P.Ws. that he was present................There can, therefore, be no doubt that he was present throughout. As tothe version of the 1st accused that he went home in the morning of the 10th from the Kunta to go to Gannavaram there is nothing but the statements of the accused to support that version. If he was admittedly at the Kunta that night, he Would not have gone away home in the morning. The village munsif (P.W. 16) tried to support this version by saying that he saw the 1st accused in the village in the morning. Even if it were true, he Would surely have returned to the Kunta before the incident. Shortly after the incident, a report Was given by the accused to P.W. 16 (Exhibit P. 34). It reads that When all the accused Were there, the other side made an attack and then the 1st accused released gunshots. Even if it were true, he Would surely have returned to the Kunta before the incident. Shortly after the incident, a report Was given by the accused to P.W. 16 (Exhibit P. 34). It reads that When all the accused Were there, the other side made an attack and then the 1st accused released gunshots. There is not a whisper, in it that the 1st accused came running from his house to the rescue of the others; on the other hand it reads as if he Was already there along With the rest. He Was also injured having received as many as seven injuries on the back of his body and heads. They are simple in nature (Exhibit P-64). Injury No. 5 in Exhibit P-64 is a contusion 12” long. To produce such an injury the assailant must have been very near the victim. Such a blow should even make the victim fall. According to the Defence Witnesses, ten to twelve men attacked him with sticks from be hind when he was proceeding eastwards reloading the gun. If he had already killed two men and injured several others by gun-shots and yet, undaunted like wounded tigers, the opposite men chased him and beat him with sticks, it is incredible that all the time he Was allowed to reload the gun, use it after making a right about turn westwards. He is more than 60 years old. He Would not have the physical strength or the mental poise in such a situation to go on reloading the bund to turn back suddenly and to use the gun, if during all this time a number of men were beating him with sticks; nor Would the injuries be only simple if some men enraged at his prior shooting, gave him a chase and beat him. He would surely have fallen down in the process and Would have received some serious injuries just as some of his brothers did. Indeed, according to the defence version he did fall but he is said to have fallen only after the third shooting and after all the assailants ran away. This could not be true. The version of the accused cannot, therefore, be accepted. Indeed, according to the defence version he did fall but he is said to have fallen only after the third shooting and after all the assailants ran away. This could not be true. The version of the accused cannot, therefore, be accepted. ........................................................................................It is, therefore, clear that both the accused 1 & 10 were there; that the 10th accused released the gunshots but not the 1st accused.” Then again in paragraph 24 of the Judgment, the learned Judge observed as follows: “To begin with, they (the accused) asserted that they did not raise a new bund on 5th September, 1961, to collect Water in the Kunta. This is false. They also stated that on9th September, 1961 When P.Ws. 31 and 32 and another Police Constable came to the Kunta, the 10th accused was not there and that there Was no gun. This is also false. They further stated that not one of them carried any Weapon. Which is patently false. They again asserted that the 1st accused came there to their rescue When accused 2 to 9 were being beaten and the 1st accused shot in defence of himself and his men. This again is false. They did not explain the injuries on the prosecution witnesses, other than the pellet injuries. They gave a report to the Village Munsif as per Exhibit P-34. It nowhere refers to the fact that three men were shot dead. It does not mention that any person on the side of the prosecution received injuries with sticks. It does not refer to P.Ws. 12 and 15 by name and refers to only a few persons by name adding that there was a group of about 200 men. In the course of the evidence, this number Was raised to 300. Thus, while on the side of the prosecution a feeble attempt was made to explain the injuries on the accused by suggesting that P.Ws. 5, 7 and others gave a counter-beating causing injuries with sticks etc., there Was no attempt at all made on the side of the accused to explain the stick injuries on the prosecution Witnesses. Exhibit P-34 also alleges that the opposite men carried swords, spears and sticks. There is nothing at all in the evidence to show that they carried any sword." 5. Exhibit P-34 also alleges that the opposite men carried swords, spears and sticks. There is nothing at all in the evidence to show that they carried any sword." 5. Right of private defence: While holding that it was accused 10 and not accused 1 that had used the gun with deadly effect in the course of the occurrence the learned Judge was of the view that since accused 10 had fired the shots only after his associates, namely, accused 1 to 8 had sustained simple and grievous injuries at the hands of some of the prosecution witnesses, he was fully justified in firing several shots with his gun and causing the death of three persons and injuries to several others. The learned Judge observed in paragraph 20 of his judgment thus: ‘It is, therefore, clear from the evidence of these witnesses that when some of the accused were being beaten by men on the prosecution side and Were receiving grievous injuries, the 10th accused shouted asking his men to recede so that he could shoot and drive away the men on the other side. These shots were fired first northwards, then westwards and so on, in the course of a short time. It does not appear that they were directed against any particular individual, except on the first occasion according to the prosecution. On the first occasion Anne Ramarao and P.W. 1 were said to have challenged the 10th accused to shoot them when they came for justice and that was how Anne Ramarao was shot dead in the first instance. According to the accused, however, Anne Ramarao fell down last and it Was only then that the prosecution party Withdrew. This looks more probable. Otherwise, even When the first shot Was fired and one man fell down dead, it is incredible that any member of the prosecution party should have persisted in staying there, fully knowing What Was in store for them. Anne Ramarao is a leading Communist and once the leader fell down the rest of the people naturally withdrew. It looks more likely that the version of the accused that Anne Ramarao fell down last is true. Even this death of Anne Ramarao must have occurred when the 10th accused shot in various directions to disperse the opposite men and drive them away. It looks more likely that the version of the accused that Anne Ramarao fell down last is true. Even this death of Anne Ramarao must have occurred when the 10th accused shot in various directions to disperse the opposite men and drive them away. Aimlessly he shot in various directions, so that the prosecution party would not belabour his men any further and in the hope that on releasing gunshots, the prosecution party would withdraw. As stated by P.W. 8 it was not till the last shot was fired that they withdrew. This means that but for the firing the beating would have gone on, and it could not be anticipated when and where it Would end up.’ On this reasoning, he learned Judge held that accused 10 had acted in exercise of the right of private defence. In support of this appeal by the State Government, it was contended by the learned Public Prosecutor that on. the two principal questions that fell for determination, namely, whether the accused had constituted themselves into members ofan unlawful assembly and secondly, whether accused 10 had acted in the exercise of the right of private defence, the conclusions reached by the learned Additional Sessions Judge are manifestly wrong and the order of acquittal based thereon has resulted in grave miscarriage of justice. On the other hand Mr. Lingayya Choudary, who appeared on behalf of the accused, urged that although much of the reasoning of the trial Judge may not be sound, yet since he had ‘stumbled upon a just and correct decision,‘ the order of acquittal should not be disturbed. He frankly conceded that accused 10 had not succeeded in substantiating his plea of alibi and that the case may be judged on the footing that it was he and not his father-in-law (Accused 1) that had fired the gun in the course of the occurrence. After a careful consideration of the entire evidence in the light of the arguments advanced by both sides, and bearing in mind the conflicting views expressed by my two learned brethren, I have unhesitatingly reached the conclusion that the case as put forward by the prosecution, is substantially true and that the case set up by the defence is palpably false. I am also firmly of the view that in acquitting the accused of all the charges, the trial Judge has taken an unreasonable view of the evidence and has misdirected himself in regard to the law of private defence. I shall deal seriatim with the points as set out supra. I amin full agreement with the Court below on points 1 and 4, but not on the other points. On the question whether the bund was an old one or a newly raised one, the lower Court is plainly right in relying on the unimpeachable testimony of the Tahsildar (P.W. 25) and the Advocate-Commissioner (P.W. 27) and in holding that the ex-Mokhasadars had put up the bund for the first time on the 5th, after it had rained the previous night and as a consequence, the crop that had been raised by the occupiers and which was then about a month old, had been submerged. Point No. 2: As regards point No. 2, I am of the opinion that the learned trial Judge has tooreadily assumed that all the eye-witnesses were partisan witnesses. I have pointed out above that there is no basis for the assumption that P.Ws. 2, 3, 6 and 9 belong to the Communist party or are its sympathizers. They cannot be deemed to be interested or biassed witnesses. Furthermore, the lower Court erred, in holding that P.Ws. 1, 4, 5 to 8, 11, 12 and 15 had gone to the Kunta on the morning of the 10th to have a fight with the Mokhasadars over the bund and not to mediate and bring about a peaceful settlement. Their political affiliation had nothing to do with the mission which they undertook that morning, which was to save the crop of the poor occupiers through persuasion and not by the use of force. It will be remembered that when all these respectable persons from various villages gathered at the Panchayat Office in Surampalli on the morning of the 10th, the first thing they did was to send a messenger to bring accused 1 to 4 with a view to have talks with them; and only when they were informed that the accused were at the Kunta, all of them proceeded to the Kunta and tried to persuade accused 1 to 4 to remove the bund. On the other hand, the attitude of the accused was aggressive throughout and far from conciliatory. Having put up the bund a few days earlier, they were determined to protect the bund at any cost by resort to force if necessary, and for that purpose, had armed themselves and were guarding the bund for five days before the occurrence. Then, on the question whether there was an unlawful assembly, in my opinion, the lower Court fell into a patent error in taking the view that the accused had a right to put up the bund and resist by use of force any interference with it, and in so doing they were merely maintaining a right and not enforcing one, and as such they did not constitute themselves into an unlawful assembly within the meaning of section 141, Indian Penal Code. The truth of the matter, however, was that the accused had no right to put up a bund anymore than the occupiers had a right to encroach upon the tank-bund and raise crops thereon. But two blacks do not make a white. The estate had been taken over by the Government and the Kunta was the property of the Government. It is true that the Kunta had been registered as an irrigation source in the year 1958 or 1959. But P.W. 25 the Tahsildar, has stated categorically and emphatically and his evidence in entitled to great weight-that ‘the 1ends of accused 1 to 4 and other lands south of Gabbilala Kunta were always being cultivated by water from Erracheruvu but never by water from Gabbilala Kunta’ and that ‘it is not true that the lands of accused 1 to 4 are irrigated by water flowing through the sluices in the southern bund of Gabbilala Kunta.‘Moreover the ‘ayacutdars’ are entitled only to the accustomed supply of water and it is the right of the Government to regulate the supply of water to the ryots consistently with its other commitments. In the instant case, Accused 1 to 4 had no right to put up a cross-bund on the western side of the Kunta and destroy the crop that had been raised by the occupiers on the eastern side, and which was about a month old by then. The encroachers could be lawfully evicted only by the Government taking appropriate action under the Land Encroachment Act. The encroachers could be lawfully evicted only by the Government taking appropriate action under the Land Encroachment Act. Nor did the unfortunate injunction order passed by the District Munsif clothe the Mokhasadars with the right to put up a bund and cause damage to the crop that had already been raised in the Kunta. That injunction order was made subject to the express condition of there being a bund in existence; and in fact there was no bund in existence on the date when the injunction order was made absolute (i.e.) on 3-2-1960. It must be remembered that the occupiers also had an injunction order in their favour restraining accused 1 to 4 from interferring with their possession and enjoyment of the Kunta. It will thus been seen that the accused had no legal right in the Kunta which they could maintain by the use of force. By putting up a bund, they were really seeking to enforce a supposed right, which is an unlawful object within the meaning of the Fourth clause of section 141, Indian Penal Code. That section, so far as is material, runs thus: “An assembly of five or more persons is designated an unlawful assembly, if the common object of the persons composing that assembly is- * * * * * * Fourth: By means of criminal force, or show of criminal force..........................to enforce any right or supposed right.” The avowed object of section 141, Indian Penal Code, is to preserve public peace and tranquillity by preventing private warfare in vindication of rights or supposed rights. That object would be defeated if persons are permitted to gather in strength, take the law into their own hands and assert their rights by use of force. It would follow that in the present case by raising a bund and guarding it fully armed, with a firm determination to use force to prevent any interference with the bund, accused had formed themselves into an unlawful assembly animated by an unlawful common object, and by using force in prosecution of that common object-apart from the shooting resorted to by accused 101-all the accused were guilty of rioting. As accused 2, 4 and 10 were armed with deadly weapons, they would be guilty under section 148, while the rest of the accused are guilty under section 147, Indian Penal Code. As accused 2, 4 and 10 were armed with deadly weapons, they would be guilty under section 148, while the rest of the accused are guilty under section 147, Indian Penal Code. So also as regards the rival versions put forward by the prosecution and the defence as to who had used the gun in the course of the occurrence at the Kunta on the 10th, the trial Judge was perfectly right in finding on the evidence and on human probabilities, that it was accused 10 that had fired the shots and not accused 1, who was himself being badly beaten with sticks in the clash that took place at the bund. The version given by accused 1 in his statement under section 342, Criminal Procedure Code, which was adopted by accused 2 to 9 and was sought to be but tressed by the testimony of D.Ws. 1 and 4, that it was he (Accused 1) who had done the shooting in the circumstances so graphically described, borders on the ludicrous. It was nothing but a clumsy and desperate attempt on the part of the father-in-law (Accused 1) to save his son-in-law (Accused 10), with no serious risk to himself. I would add, that if, as alleged by accused 1 to 9 and D.Ws. 1, 2, and 4, a large body of communist desperadoes, numbering over 200, had marched from the village, vowing vengeance on the Mokhasadars, it is hard to believe that accused 2 to 9, who according to them were unarmed and had neither spears nor sticks with them, would have stood their ground at the kunta, resisted the mob when some among them tried to remove the bund and meekly suffered injuries in the pre-cess. In all likelihood, if that was the situation in which those accused were placed they would have run for their lives and would not have waited there, hoping that the brother (Accused 1) would appear on the scene in the nick of the time armed with a gun and rescue them from their predicament. In my opinion, the evidence of D.Ws. 1, 2 and 4 has only to be read to be disbelieved. In my opinion, the evidence of D.Ws. 1, 2 and 4 has only to be read to be disbelieved. Turning to the last point, namely, the right of private defence, it should be noted at the outset that it was neither pleaded nor proved by accused 10; nor have any circumstances been elicited in the prosecution evidence itself to sustain such a plea. It is nobody’s case that accused 10 was defending his own self. What was suggested on his behalf was that he had fired four shots and killed three persons in defending the bodies of accused 2 to 9, who were being attacked by the occupiers and their supporters. But, according to the prosecution evidence, which appears to me to be true, the accused were the first to attack the mediators who intervened to prevent the occupiers being beaten and it was then that P.Ws. 5, 7 and others beat them in retaliation. If that was the stage at which accused 1 to 8 came to be beaten, it is of little consequence whether P.Ws. 5, 7 and others had snatched the sticks from the hands of the accused or had used the sticks which they themselves might have carried, when they went to the Kunta. The mere fact that accused 1 to 8 had suffered injuries in the course of the occurrence, does not sustain and substantiate the plea of private defence put forward in the course of the arguments on behalf of accused 10. It was when the parties were exchanging blows at the northern side of the bund that accused 10, who was then standing with a gun in his hands some 25 yards south of the huts, cautioned his people to get back as he was going to teach the intermeddlers a lesson by shooting them down. Having said that, accused 10 did not shoot towards the northern side of the bund, but fired four successive shots in other directions. He fired the first shot in the south eastern direction, and the shot killed Deceased-1 and injured P.W. 1. He fired a second shot towards the west and that shot injured P.W. 6. Since the gun which he was using was a double barrel breach-loading gun, he must have reloaded it with two more catridges and then fired two shots in quick succession. He fired a second shot towards the west and that shot injured P.W. 6. Since the gun which he was using was a double barrel breach-loading gun, he must have reloaded it with two more catridges and then fired two shots in quick succession. He fired the third shot towards the west and caused the death of Decased-2. He fired a fourth shot in the north-western direction and this shot killed Deceased-3 and caused pellet injuries to P.Ws. 2, 3, 8, 9 and 10. All these persons must have been standing near Deceased-3 and probably behind him. It is thus obvious that the shooting indulged in by accused-10 was purposeful, vindictive and callous in highest degree. He had proclaimed his resolve the previous day to the Head Constable and he carried it out on the day of the occurrence regardless of consequences. The significant fact that none of the accused none of the occupiers and neither P.W. 5 nor P.W. 7 who were engaged in the melee at the northern side of the bund, received any gun-shot injuries, is proof positive that accused-10 had not fired in that direction but in other directions. Apparently he wanted to teach a lesson to those who had come to intercede on behalf of the occupiers. A person who shoots down three men with a view to teach them a lesson, cannot be heard to say that he was exercising his right of private defence. Malicious and vindictive acts are outside the protection afforded by law. The learned trial Judge has nevertheless held by a process of reasoning, which is difficult to follow, that Accused-10 had fired the fatal shots aimlessly and at random with a view to save his people. If he had fired the shots aimlessly, it is surprising that he hit the bulls’-eye every time he fired. The learned trial Judge has completely lost sight of section 105 of Evidence Act which throws the burden of proof on an accused in certain matters, and section 99, Indian Penal Code, which governs and controls the fasciculus of sections in the Indian Penal Code dealing with he right of private defence. The learned trial Judge has completely lost sight of section 105 of Evidence Act which throws the burden of proof on an accused in certain matters, and section 99, Indian Penal Code, which governs and controls the fasciculus of sections in the Indian Penal Code dealing with he right of private defence. Section 105 of the Evidence Act provides that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, is Upon him, and the Court shall presume the absence of such circumstances. Section 99 of the Penal Code lays down inter alia 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 that it is necessary to inflict for the purpose of defence. In the present case, there cannot be the slightest doubt that the claim on behalf of accused 10 that he was justified in shooting indiscriminately in the manner he did, causing the death of three persons and wounding several others, has not a leg to stand on. It follows that he is clearly guilty of the three counts of murder as also of having caused grievous hurt to P.W. 6. As P.W. 1 was injured by the shot which was fired at Deceased-1, and P.Ws. 2, 3, 8, 9 and 10 were injured by the shot which killed Deceased 3, separate convictions in respect of the injuries caused to those witnesses, are not called for. I am also of opinion that the shooting indulged in by accused 10 could not have been foreseen by the other accused and it was an independent and individual act of accused 10. In this view, the other accused cannot be made constructively liable for the wrongful acts committed by accused 10. I would therefore, in substantial agreement with the Mohamed Mirza, J., allow this appeal to the extent indicated above and set aside the order of acquittal in respect of those charges. In this view, the other accused cannot be made constructively liable for the wrongful acts committed by accused 10. I would therefore, in substantial agreement with the Mohamed Mirza, J., allow this appeal to the extent indicated above and set aside the order of acquittal in respect of those charges. As regards the charges pertaining to the injuries alleged to have been caused by some of the accused to some of the prosecution witnesses, those injuries were caused in the course of the melee at the bund when there must have been a good deal of confusion. I, therefore, think it not safe to act on that evidence and convict accused other than accused 10 of individual acts. As regards Charge No. 1 it must also fail for want of proof of the requisite intention or knowledge to constitute the offence of mischief. As regards the punishment for the offence of rioting, having regard to the fact that the occurrence took place about 41 years ago, and the further fact that there does not seem to be any trouble in that locality now at the present juncture over Gabbilala Kunta,the interests of justice do not require that accused 1 to 9 should be sent to jail. I consider the ends of justice would be amply met by imposing fines on them, in proportion to their means. It should never be forgotten that the interests of justice require as much that the guilty should be punished as that the innocent should be let off. In the words of Justice Cardozo in Synder v. Massachusetts1: “But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” As pointed out by that eminent Judge, if that is not done, there is danger that the criminal law itself will be brought into contempt. I shall now indicate the charges upon which the accused should be convicted and the sentences that should be imposed: 1. On Charge No. 2, I would convict accused, 1,3 and 5 to 9 under section 147, Indian Penal Code, and on Charge No. 3 accused 2, 4 and 10, and sentence each of accused 1, 2, 3, 4 and 5 to pay a fine of Rs. 500 in default each to suffer six months’ rigorous imprisonment. On Charge No. 2, I would convict accused, 1,3 and 5 to 9 under section 147, Indian Penal Code, and on Charge No. 3 accused 2, 4 and 10, and sentence each of accused 1, 2, 3, 4 and 5 to pay a fine of Rs. 500 in default each to suffer six months’ rigorous imprisonment. I would-sentence each of accused 6 to 9 (who are farm-servants) to pay a fine of Rs. 100, in default to suffer two months’ rigorous imprisonment. I would sentence accused 10 to suffer rigorous imprisonment for two years. 2. On each of Charges Nos. 4, 5 and 6 which pertain to the three counts of murder, I would convict and sentence accused 10 to suffer imprisonment for life under section 302, Indian Penal Code. 3. On Charge No. 11, I would convict and sentence accused 10 to suffer two years’ rigorous imprisonment under section 326, Indian Penal Code, for having caused grievous hurt to P.W. 6, by shooting at him with the gun. 4. On Charge No. 22, I would convict accused 10 under section 19(a)of the Indian Arms Act and sentence him to suffer one year’s rigorous imprisonment. I would direct all the sentences of imprisonment passed on Accused 10 to run concurrently. I would uphold the order of acquittal on the other charges. The net result will be that accused 10 will have to undergo imprisonment for life; Accused 1 to 5 will each have to pay a fine of Rs. 500; and accused 6 to 9 will each have to pay a fine of Rs. 100. Pursuant to the above opinion of Basi Reddy, J., the Appeal coming on for final judgment before the Honourable Mr. Justice Sharfuddin Ahmed and Mohamed Mirza, J., the Bench delivered the following: Judgment: An order in terms of the opinion given by our learned brother Basi Reddy, J., will follow. A period of one month is granted for payment of fine from the date of receipt of judgment in the lower Court. G.S.M. ----- Appeal allowed. accused convicted.