SUJIT BARMAN ROY, J. ( 1 ) - This appeal is directed against the judgment dated 12-8-1991 passed by the learned Sessions Judge, Maida in Sessions Case No. 102 of 1987 (Sessions Trial No. 21 of 1991) convicting all the appellants, namely, Ramdhani Chaudhury, Ramrup Chaudhury, Ramprobesh Chaudhury, Rainsi and Rani Singh Chaudhury, Sugrib Chaudhury, Ganesh Chaudhury and Hemraj Chaudhury under Sections 302/149, IPC and, sentencing them thereunder to suffer imprisonment for life. Appellants were also convicted under Section 148, IPC though no separate sentence was passed in respect of conviction under Section 148, IPC. ( 2 ) PROSECUTION case, in short, is that on 27-5-1986 at about 3. 15 p. m. P. W. I Khoka Chaudhury lodged an oral complaint before Officer-in-Charge of Maida Police Station alleging, inter alia that on that very day at about 8. 00 in the morning informant alongwith, his brother Jagannath Chaudhury (since deceased) and other family members. Namely, Gandhi Chaudhury, Nikhil Chaudhury, two sons of the deceased. Abhimanyu Chaudhury and Kailash Chaudhury came to and were cultivating their land under Sanjail mouza. After they cultivated their land for sometime at about 10/10. 30 a. m. P. Ws. Khiroda Chaudhury and Pushia Chaudhury being the wife of P. W. 1 and the deceased respectively came to the said land with food for P. W. 1, deceased and others. When they were taking the said food sitting on the land of occurrence where they did their cultivation work for sometime appellants and 10-15 other unknown persons formed an unlawful assembly being armed with deadly weapons like lathi, spear (ballam), farsha, hasua, bow and arrows etc. and came to the said land of deceased after crossing the western danra land (raised land) and suddenly appellant No. 1 Ramdhani Chaudhury assaulted the deceased with a farsha from behind on his neck and instantaneously the deceased received serious bleeding injury on his neck and as a result he died at the spot. Informant tried to flee away when appellant Ramprobesh Chaudhury chased him with a farsha. Ramprobesh assaulted informant with the said farsha and as the informant tried to resist the same by raising his right hand, he sustained injury on the forefinger of his right hand. Seeing this his wife P. W. 5 Khiroda Chaudhury came to save the informant. Appellant Ramprobesh Chaudhury then assaulted Khiroda Chaudhury with hasua on the neck. Ramprobesh assaulted informant with the said farsha and as the informant tried to resist the same by raising his right hand, he sustained injury on the forefinger of his right hand. Seeing this his wife P. W. 5 Khiroda Chaudhury came to save the informant. Appellant Ramprobesh Chaudhury then assaulted Khiroda Chaudhury with hasua on the neck. As a result she sustained severe bleeding injury and fell down on the ground and became senseless. Informant also saw that his son P. W. 4 Gandhi Chaudhury tried to flee away out of fear. However, appellant Ramrup Chandhury assaulted him with ballam from the backside. He also assaulted Chand Chaudhury with a ballam. Remaining appellants and other accused rounded up the party of the deceased and as a result initially they could not flee away. Ultimately, while fleeing away from the said land informant saw the deceased lying dead. He also saw P. W. 4 Gandhi Chaudhury lying on the ground. It has further been stated in the said oral information that at the time of occurrence near the land of the prosecution party P. W. 12 Jagannath Chaudhury and many others were working in their field and witnessed the occurrence. Informant I also mentioned in his said oral information that there was a dispute between the parties over 0. 57 decimal of land being a part of plot No. 1266 of mouza Balarampur and for that the trouble between the parties intensified. On the basis of the said oral complaint, which was reduced into writing by the Police Officer, an F. I. R. was registered at the said P. S. against the appellants under Sections 147/148/149/447/ 326/302, IPC. ( 3 ) AFTER usual investigation police submitted charge-sheet against the appellants only under Sections 148/149/302 IPC. In course of time, the case was committed to the Court of the learned Sessions Judge, Maida. ( 4 ) UPON commitment of the case to the said Court the learned Trial Court framed charges under Sections 447, 148, 324, 325, 302/149, IPC against all the appellants in course or the trial prosecution examined 25 P. Ws. Appellants examined only one D. W. Appellants also relied upon various circumstances appearing in prosecution evidence to show that they acted in exercise of their right of private defence of property. Appellants examined only one D. W. Appellants also relied upon various circumstances appearing in prosecution evidence to show that they acted in exercise of their right of private defence of property. Of course, though they did not expressly take any plea of self-defence, yet it appears from the cross-examination that it was defence version of the appellants that the occurrence took place on their own land covered by plot No. 1266 within Balarampur mouza under their own possession and not on the land covered by plot No. 4 78 under Sanjail mouza as claimed by the prosecution. In fact, appellant No. 1 stated in course of his statement under Section 313, Cr. P. C. that the occurrence took place on plot No. 1266 of Balarampur mouza which was possessed by the appellants at the time of occurrence. All the appellants in one voice stated during their examination under Section 313, Cr. P. C. that they are totally innocent. It, therefore, appears from the trend of cross-examination that defence of the appellants was that they all acted is exercise of right of private defence of property and hence they did not commit any offence whatsoever. It was specifically suggested to the prosecution witnesses on behalf of the appellants that the occurrence never took place on the plot of the land under Sanjail mouza belonging to the prosecution party. ( 5 ) ON conclusion of the trial appellants were convicted and sentenced as already stated. ( 6 ) WE have heard Mr. D. K. Dutta, learned Counsel for the appellants as well as the learned Counsel for the State. They have taken us through the evidence on record. ( 7 ) AS large number of eyewitnesses including tour injured witnesses gave evidence that appellant No. 1 assaulted the deceased on his neck with a sharp cutting weapon like farsha and as there is an abundance of evidence on record as to the participation of other appellants in the incident. We do not have even the slightest doubt in our mind that appellants. In fact, took part in the incident and they are authors of various injuries inflicted upon injured prosecution witness. Appellant No. 1 Ramdhani Chaudhury is the author of the injury found on the neck of the deceased which was ultimately found to be fatal injury. We do not have even the slightest doubt in our mind that appellants. In fact, took part in the incident and they are authors of various injuries inflicted upon injured prosecution witness. Appellant No. 1 Ramdhani Chaudhury is the author of the injury found on the neck of the deceased which was ultimately found to be fatal injury. The most important questions that fall for our decision in this case are: - (i) where exactly the incident occurred, whether on plot No. 4 78 or on plot No. 1266. (ii) whether appellants in fact acted in exercise of their right of private defence of property, (iii) if the first two preceding questions are answered in favour of the appellants next question would be whether the appellants can be vicariously held guilty under Section 149, IPC for the substantive, offences committed; and (iv) last question would be if the prosecution case under Section 149, IPC fails, who exceeded the right of private defence of property and what is exactly his liability? ( 8 ) SO, we must proceed on the assumption that all the appellants took part in the incident and examine the evidence on record on that basis to answer the questions formulated in the last paragraph and in that case it may not be necessary for us to discuss the evidence in greater details as to the participation of the appellants in the incident. In fact participation of the appellants has been proved beyond all doubts. ( 9 ) PLOT No. 478 of Sanjail mouza was admittedly in the possession of the deceased and his relations. Plot No. 1266 under Balarampur mouza is the contiguous plot of plot No. 4 78 of Sanjail mouza. It appears that the prosecution witnesses admitted though with great reluctance, that a part of plot No. 1266 was in the possession of the appellants. For reasons not far to seek there has been a persistent effort on the part of the prosecution witnesses to show that the incident took place on plot No. 4 78 under Sanjail mouza. We will now show from the evidence on record that the prosecution witnesses including the police witnesses failed to prove beyond reasonable doubt that the occurrence took place on plot No. 478 under Sanjail mouza. We will now show from the evidence on record that the prosecution witnesses including the police witnesses failed to prove beyond reasonable doubt that the occurrence took place on plot No. 478 under Sanjail mouza. It rather appears from the evidence on record that in all probability occurrence took place on plot No. 1266 under Balarampur mouza which was possessed by the appellants. It is true that the appellants could not prove affirmatively that the occurrence took place on plot No. 1266 under Balarampur mouza. Yet in view of the evidence on record, it would be evident that in all probability the occurrence took place on plot No. 1266 under Balarampur Mouza. ( 10 ) PROSECUTION story as originally set up in the F. I. R. lodged by P. W. 1 is that at about 8. 00 a. m. on the date of occurrence deceased alongwith P. W. 1 and other P. Ws. numbering about 10/12 persons went to their land under Sanjail mouza for cultivation. Sometime after that P. W. 5 Khiroda Chaudhury and P. W. 10 Pushia Chaudhury went therewith food for the deceased and his companions. Deceased and his party were then taking such food when appellants came over there and assaulted the deceased and others. Deceased died at the spot. Towards the end of the statement in the F. I. R. P. W. 1 further blurted out that since sometime past there was a dispute regarding 0. 57 decimal of land being a portion of plot No. 1266 of Balarampur mouza. ( 11 ) IN the evidence before the Court. P. W. 1 stated that deceased was murdered on their land covered by plot No. 478 of Sanjail mouza though this plot No. was not mentioned in the F. I. R. But in the very next sentence of his statement before the Court he stated that when we were having our breakfast sitting together on the disputed fieldtt, appellants came there after crossing danra which is in Balarampur mouza and that time same was in our possession and they started assault on the deceased and others. During his examination-in-chief this witness further admitted that trouble took place due to possession of TTDanra being plot No. 1266 within Balarampur mouza. Total area of the Danra is about 14/15 bighas and the deceased and his party possessed 1. 75 bighas of the said plot No. 1266. During his examination-in-chief this witness further admitted that trouble took place due to possession of TTDanra being plot No. 1266 within Balarampur mouza. Total area of the Danra is about 14/15 bighas and the deceased and his party possessed 1. 75 bighas of the said plot No. 1266. Over this issue there was a salish in the village about the one month/is days before the occurrence. It was decided in the TTsalish that P. W. 1 would pay Rs. 4. 700/- to the accused Ramdhani who in turn would execute a kobala in favour of P. W. 1 conveying the TTDanra. These are the admissions made by P. W. 1. It is, therefore, apparent that deceased or P. W. 1 or none of their relations were neither owner of plot No. 1266 nor they were in possession of the same as otherwise the question of paying the some amount of money to appellant No. 1 or execution of the sale deed would not have arisen. It is further apparent that P. W. 1 made series of contradictory and false statements that prosecution party possessed plot No. 1266 of any part thereof. This witness also admitted that trouble took place on plot No. 1266 being Danratt. It is also admitted by him that it was on this disputed land of plot No. 1266 where deceased and his party were allegedly taking food and the occurrence took place at that place on the disputed land where they were taking food. It is not the prosecution case that with regard to plot No. 4 78 under Sanjail mouza there was any dispute between the appellants and the prosecution party. Therefore, the land where they were allegedly taking food and the occurrence took place is admittedly not the disputed land. ( 12 ) DURING cross-examination, P. W. 1 admitted in clear terms that he mentioned the plot number in the F. I. R. where the occurrence took place. We find from the F. I. R. that only plot No. 1266 under Balarampur mouza was mentioned in the F. I. R. in respect of which a dispute existed between the parties. It has further been stated by P. W. 1 in his evidence that one Aghari Mondal had purchased entire Danra land. It must be mentioned here this danra land is the land covered by plot No. 1266. Subsequently. It has further been stated by P. W. 1 in his evidence that one Aghari Mondal had purchased entire Danra land. It must be mentioned here this danra land is the land covered by plot No. 1266. Subsequently. Feku Mondal being the son of said Aghari Mondal sold a portion of this danra land to the appellants Ramdhani, Ramrup. Ramprobesh. We are surprised to see that all these important admissions made by P. W. 1 were totally overlooked by the Trial Court in the impugned judgment. ( 13 ) IN view of the aforesaid clear and unambiguous admissions as also contradictory statements made by P. W. 1 in the F. I. R. and in his deposition, it appears to us that in all probabilities the prosecution version that the occurrence took place in plot No. 478 under Sanjail mouza is a false and concocted story. It seems to us that it has been persistent effort on the part of the prosecution witnesses to shift the place of occurrence from plot No. 1266 to plot No. 4 78. Reasons are of course not very far to seek. It is equally false that plot No. 1266 or any part thereof was ever possessed by the deceased or his relations. P. Ws. 2, 3, 4, 5, 6, 8, 10 and 12 in one voice like tutored parrots stated in their evidence that at about 8. 00 a. m. in the morning they alongwith the deceased. P. W. 1 and others went to their land under Sanjail mouza with as many as six bullocks and three Ploughs. At about 10. 30 a. m. when they were taking food sitting on the same plot of land appellants attacked them and killed the deceased and injured others. It must be remembered here that all these witnesses were family members and close relations of the deceased and P. W. 1. Story of taking food at 10. 30 a. m. appears to be quite doubtful as during post-mortem examination no undigested or half digested food material could be detected in the stomach of the deceased though case of the prosecution is that deceased was killed when he was taking food. Therefore, story of taking food together is clearly a concocted story. Story of taking food at 10. 30 a. m. appears to be quite doubtful as during post-mortem examination no undigested or half digested food material could be detected in the stomach of the deceased though case of the prosecution is that deceased was killed when he was taking food. Therefore, story of taking food together is clearly a concocted story. Their acts of ploughing with as many as six bullocks and three ploughs alongwith so many relations on a small plot of land do not appear to be that innocent. Evidence of these P. Ws. must be appreciated while keeping in mind their close relationship with the deceased and P. W. 1 and that they had a long dispute with the appellants over a portion of the land covered by plot No. 1266 under Balarampur mouza. We must also keep it in our mind as to what was the necessity for the deceased and his companions to take as many as six bullocks and three ploughs for ploughing a small plot of land? Equally, what could have been the necessity for the deceased and his party to collect on their land in such huge number including their women relations if their act of ploughing was really that innocent? These mute circumstances are too prominent to ignore in the context of series of admissions made by number of P. Ws. including P. W. 1 and the 1. 0. as regards actual place of occurrence. ( 14 ) P. W. 20 D. K. Chaudhury is the 1. 0. of this case. In his examination-in-chief like other witnesses he also stated that place of occurrence was on a plot of land under Sanjail mouza. He found the dead-body of the deceased at the place of occurrence and held inquest on the same. He also seized blood stained earth at the place of occurrence apart from one hasua and four bamboo sticks. It was, therefore, specific case of the 1. 0. during his examination-in-chief that the occurrence took place on a plot of land under Sanjail mouza and therefrom, he seized blood stained earth one hasua and four bamboo sticks. Admittedly, appellants had no land in their possession under Sanjail mouza. But during cross-examination P. W. 20 (1. 0.) had to admit that in the inquest report he noted that the dead-body was found at a place within Balarampur mouza. Admittedly, appellants had no land in their possession under Sanjail mouza. But during cross-examination P. W. 20 (1. 0.) had to admit that in the inquest report he noted that the dead-body was found at a place within Balarampur mouza. It is not noted in the inquest report that the dead-body of the deceased was found from a place within Sanjail mouza. We are surprised to see that a responsible Police Officer. P. W. 10 who was entrusted with the investigation of the case deliberately made false statement on oath before the Court that the dead- body was found on a plot of land under Sanjail mouza. This deliberate attempt on the part of 1. 0. to shift the place of occurrence from a plot of land under Balarampur mouza to another plot of land under Sanjail mouza must be deprecated. He is as zealous as other P. Ws. who were close relations of the deceased. A responsible Police Officer engaged in investigation of a serious case like that of murder is not expected to behave like private individual. He represents the State. He does not represent a private party. He is therefore, bound to act in an impartial manner. ( 15 ) SO, version of the appellants as to the exact place of occurrence impliedly stands admitted by the 1. 0. himself and the prosecution version on the same point stands belied. In the inquest report it was clearly noted by the 1. 0. and English translation whereof is given hereunder: Today i. e. 27-5-1986 at about 4. 30 p. m. after reaching Balarampur mouza started to prepare inquest report of deceased Jagannath Chaudhury as identified by Abhimanyu Chaudhury being the son of the deceased Jagannath Chaudhury in presence of marginally noted witnesses. ( 16 ) FROM the aforesaid circumstances and clear admissions made in this regard at least by P. W. 1 and P. W. 20, there should not be any doubt that prosecution has totally failed to prove its case that the occurrence took place on plot No. 4 78. Rather it appears to be more probable that prosecution deliberately tried to falsely shift the place of occurrence to a plot of land where no such incident took place. Rather it appears to be more probable that prosecution deliberately tried to falsely shift the place of occurrence to a plot of land where no such incident took place. Blood stained earth allegedly seized from the place of occurrence on Sanjail plot was never sent to Chemical Examiner to ascertain if it really contained any blood of human origin. If the sample of blood stained earth was really seized from a plot under Sanjail mouza and had it been sent to Chemical Examiner, it could have been ascertained as to whether such sample of earth contained blood of human origin or not. Failure to do so has rendered version of the appellants as to the place of occurrence to be more probable. It is strange as to how these prominent circumstances appearing in the evidence on record could escape notice of the learned Trial Court. Had these circumstances been considered by the learned Trial Court in the proper perspective, we are sure that his verdict in this case would have been quite different. ( 17 ) THE appellants also tendered in evidence during examination of D. W. a certified copy of a petition filed by the prosecution party in a proceeding under Section 145, Cr. P. C. before Sub Divisional Executive Magistrate, Maida. The land in dispute in the said proceeding is a part of the long covered by plot No. 1266 under Balarampur mouza. The prosecution party clearly admitted in the said petition that the appellants murdered deceased on the aforesaid plot of land being plot No. 1266 under Balarampur mouza. ( 18 ) THE appellants also tendered in evidence during examination of D. W. a certified copy of a police report submitted in connection with the aforesaid proceeding under Section 145, Cr. P. C. The said report clearly shows that it was submitted in connection with the promulgamation of some prohibitory order under Section 145, Cr. P. C. in respect of plot No. 1266 under Khatian No. 13 within mouza Balarampur, J. L. No. 1. It further appears therefrom that the deceased was murdered on that very land. But the Trial Court refused to act upon the aforesaid two certified copies on the ground that these are not public documents and hence certified copy thereof are inadmissible in evidence unless they are proved by their authors in usual manner. It further appears therefrom that the deceased was murdered on that very land. But the Trial Court refused to act upon the aforesaid two certified copies on the ground that these are not public documents and hence certified copy thereof are inadmissible in evidence unless they are proved by their authors in usual manner. ( 19 ) BUT the learned Trial Court failed to consider other facts and circumstances appearing in the evidence on record, which we have already referred to above and to draw appropriate inferences therefrom that the occurrence did not take place on plot No. 4 78. Rather it took place on plot No. 1266 under Balarampur mouza. ( 20 ) FURTHERMORE, the Trial Court may be correct in holding the view that the certified copy of the petition filed by the deceased and his party in the proceeding under Section 145, Cr. P. C. is not a public document and hence the same is inadmissible in evidence unless properly proved. But the police report submitted by the police in connection with the aforesaid proceeding under Section 145, Cr. P. C. is certainly a public document within the meaning of Section 74 of the Evidence Act. Section 2 (17) (h), Cr. P. C. defines public officer inter alia, to mean every officer in the service or pay of the Government or remunerated by fees or commission for the purpose of any public duty. The duty performed by a Police Officer is certainly a public duty and undoubtedly he is in the service or pay of the Government. Therefore, undoubtedly a Police Officer is a public officer and a report submitted by him in connection with a proceeding under Section 145, Cr. P. C. is certainly record of the acts of a Public Officer. In these circumstances, the learned Trial Court was clearly in error when it held that the police report is not a public document. In this connection, we may refer to the decision of the Apex Court in Khatri v. State of Bihar, where it was held that record of act of a Police Officer is a public document and certified copy thereof is admissible in evidence without any proof on oath. In this regard, we are fully fortified by two decisions of the Apex Court in 1981 Cr. L. J. 12 and A. I. R. 1963 S. C. 1633g. In this regard, we are fully fortified by two decisions of the Apex Court in 1981 Cr. L. J. 12 and A. I. R. 1963 S. C. 1633g. ( 21 ) THEREFORE, in our view, the contents of the aforesaid police report as well as admission made by some of the P. Ws. including P. W. 1 and 1. 0. in particular and also in view of the contents of inquest report it is evident that there has been a consistent effort on the part of the prosecution witnesses including the 1. 0. to falsely shift the place of occurrence to plot No. 478 under Sanjail mouza, though the incident did not occur on that plot. That has been done by the P. Ws. including the 1. 0. designably to deny the appellants to claim the right of private defence of property. It further appears to us more probable that the incident occurred on plot No. 12. 66 under Balarampur mouta and the appellants possessed it at the time of occurrence as admitted by some of the P. Ws. In these circumstances, it appears to us more probable that the deceased and his party including all material witnesses for the prosecution in this case went to the land of the appellants with six bullocks and 3 ploughs and large number of their relations to take forcible possession of the land under the possession of the appellants by ploughing the same as otherwise there was no occasion for the deceased and his party to take as many as six bullocks and 3 ploughs and large umber of his relation to plough a small plot of the land being plot No. 478 under mouza Sanjail. Therefore, the appellants had every right to use force against such invasion to defend, their existing possession over the property in question provided they acted within limitations/restrictions as provided by Sections 96 to 106, IPC. ( 22 ) AS the appellants were acting in self-defence of their property, they had every right to cause any harm to the aggressors short of death inasmuch as the appellants could not prove those circumstances in this case under which they could have caused even death. ( 22 ) AS the appellants were acting in self-defence of their property, they had every right to cause any harm to the aggressors short of death inasmuch as the appellants could not prove those circumstances in this case under which they could have caused even death. Right of private defence of property is; subject to certain limitations as provided in Section 103, IPC: Section 103, IPC reads as under: The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong doer. If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right, bean offence of any of the descriptions hereinafter enumerated, namely: Firstly Robbery Secondly House-breaking by night Thirdly Mischief by fire committed on any building, tent or vessel is used as a human dwelling, or as a place for the custody of property Fourthly Theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised ( 23 ) SURELY acts of the deceased and his party were not of the nature enumerated in various clauses of Section 103, IPC so as to provide necessary Justification to the appellants to exercise their right to private defence of property to the extent of causing death. Therefore, under the circumstances proved in this case, it appears to us that the appellants were certainly Within their lawful right to inflict any harm to the aggressors short of death. Therefore, the appellants did not commit any offence for inflicting other injuries which were not responsible for the death of the deceased. ( 24 ) IN view of the medical evidence on record it appears that the injury found on the neck of the deceased ultimately proved to be fatal. P. W. 25 Dr. B. K. Sanyal held post-mortem examination on the dead body of the deceased. On examination of the dead-body of the deceased P. W. 25 could detect the following injuries:1. Left side of face 2t1 x itt sharp cutting injury. 2. itt x 1/2tt sharp cutting injury just above one. 3. P. W. 25 Dr. B. K. Sanyal held post-mortem examination on the dead body of the deceased. On examination of the dead-body of the deceased P. W. 25 could detect the following injuries:1. Left side of face 2t1 x itt sharp cutting injury. 2. itt x 1/2tt sharp cutting injury just above one. 3. Left side of the neck 5_1/2tt x 3tt sharp cutting injury starting from middle of the neck extending upto the beick, direction of back portion lower, cutting bone, internal and external cerotid artery and vein. 4 411 x 1 bone deep sharp cut injury over left forearm. 5. Right thigh 2tt x itt abrasion. 6. Abrasion just below the left knee. In my opinion death was due to shock and haemorrhage as a result of neck injury which was ante mortem and homicidal in nature. T ( 25 ) DURING cross-examination P. W. 25 Dr. Sanyal admitted that he found stomach of the deceased empty. It is, therefore, apparent from the evidence of P. W. 25 that the neck injury of the deceased was found to be fatal. For such injury only the author can certainly be convicted under Section 304, Pt. I, IPC in as much as appellants were acting in self-defence of their property which clearly brings the case within Exception (2) to Section 300, IPC. Exception (2) provides that homicide, is not murder if the offender in exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes death of the person against whom he is exercising such right of private defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. Therefore, there cannot be any doubt that the author of the injury found on the neck of the deceased inflicted the same exceeding his right of private defence of property and hence, such author alone is liable to be convicted under Section 304, Pt. I, IPC. For other injuries the appellants cannot be convicted for any offence as they inflicted the same while exercising their lawful right of private defence of property. The injury found on the neck of the deceased was attributed to appellant No. 1 Ramdhani Chaudhury. There is an abundance of evidence on record on this point. I, IPC. For other injuries the appellants cannot be convicted for any offence as they inflicted the same while exercising their lawful right of private defence of property. The injury found on the neck of the deceased was attributed to appellant No. 1 Ramdhani Chaudhury. There is an abundance of evidence on record on this point. Hence, the appellant No. 1, Ramdhani Chaudhury is certainly guilty for committing offence under Section 304, Pt. I, IPC as he exceeded the right of private defence of his property. ( 26 ) BUT the question that arises, now for our decision is whether other appellants who were in no way connected with the neck injury of the deceased can be vicariously held guilty for the same by invoking Section 149? One of the essential ingredients of Section 149 is unlawful assembly as defined in Section 141, IPC. Section 141 designates an assembly of five or more persons as unlawful assembly,t if the common object of the persons composing that assembly is anyone of the following; Firstly, To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Secondly. To resist execution of any law, or of any legal process; or Thirdly. To commit any mischief or criminal trespass, or other offence; or Fourthly. By means of criminal force or show of criminal force to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right, or Fifthly. By means of criminal force or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do. Therefore, the instant case clearly does not come within the first three and the fifth clauses of Section 141. However, it needs some discussion to see whether the case can come under the fourth clause. Fourth clause clearly provides that no person is entitled to vindicate his right to possession of any property be resort to criminal force. Therefore, the instant case clearly does not come within the first three and the fifth clauses of Section 141. However, it needs some discussion to see whether the case can come under the fourth clause. Fourth clause clearly provides that no person is entitled to vindicate his right to possession of any property be resort to criminal force. ( 27 ) THE words vindicate by show or use of force occurring in the fourth clause do not include cases in which a party is forced to maintain or defend his existing possession. Federal Court in Kapil Deo Singh v. The King expressed the same view. In that case, the High Court had affirmed the conviction and sentence of the accused under Section 147 and Section 304 read with Section 149, IPC without considering the question as to who was actually in possession of the plot of the land at the time of occurrence. The High Court, observed, that the question of possession was immaterial and the appellants party were members of an unlawful assembly as both sides were determined to vindicate their right by show of force or use of force. Federal Court set aside the conviction and sentence after holding that the High Court stated the law too loosely if by use of the word vindicate it meant to include even cases where a party is forced to maintain or defend his right. In State of Bihar v. M. Mathu Pandey, the Supreme Court also expressed the same view and held that an assembly of 5 or more persons cannot be designated as unlawful assembly if its object is to defend property by use of force within the limitations prescribed by law. Defending an existing possession certainly cannot amount to to Indicate or enforce any right or supposed right. Here a distinction has been drawn between enforcing d right and maintaining a right. In fact one cannot take recourse to violence to recover possession even if he has right or tide over the property. But one can certainly maintain exiting possession over a property irrespective of whether he has any right or the over the same. To maintain possession one can of course take recourse to violence within the restrictions prescribed by law. In fact one cannot take recourse to violence to recover possession even if he has right or tide over the property. But one can certainly maintain exiting possession over a property irrespective of whether he has any right or the over the same. To maintain possession one can of course take recourse to violence within the restrictions prescribed by law. ( 28 ) IN view of the aforesaid position of law and in view of the facts and circumstances of the case, we are of the view that the prosecution could not prove its case that the appellants were members of any unlawful assembly or they shared any common object within the meaning of Section 141, IPC. This being the position, we have no hesitation in our mind that Section 149 in the instant case cannot be invoked for holding the appellants vicariously guilty for the injury inflicted by appellant No. 1 on the neck of the deceased. Therefore. it is only the appellant No. 1 Ramdhani Chaudhury who can be held liable for inflicting such injury and hence his conviction and sentence under Section 302 read with Section 149 and Section 148 cannot be maintained. After setting aside the aforesaid conviction and sentence, we hold the appellant No. 1 guilty under Section 304, Pt. I, IPC, Other appellants are bound to be acquitted and accordingly we set aside the conviction and sentence of other appellants. It appears that the impugned judgment was passed on 12-8-1991. Since then appellant No. 1 is in jail. That apart during investigation stage also he was in custody for quite sometime. ( 29 ) UNDER the circumstances, it is evident that the appellant No. 1 has already served out more than 8 years imprisonment. He is therefore, sentenced to imprisonment for the period already undergone by him as according to us this will meet the ends of justice keeping in mind that the appellant No. 1 also acted in self-defence of his property/though he exceeded the limit prescribed by law. ( 30 ) AS we have already set aside the conviction and sentence of other appellants and as also we have altered the conviction of appellant No. 1 to Section 304. Pt. It IPC and accordingly sentenced him to suffer imprisonment for the period already undergone by him. We direct that all the appellants shall be set at liberty forthwith. ( 30 ) AS we have already set aside the conviction and sentence of other appellants and as also we have altered the conviction of appellant No. 1 to Section 304. Pt. It IPC and accordingly sentenced him to suffer imprisonment for the period already undergone by him. We direct that all the appellants shall be set at liberty forthwith. The appeal is, therefore, partly allowed. Appeal allowed partly.