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2000 DIGILAW 300 (PAT)

Bada Marandi v. State Of Bihar

2000-02-22

ASHOK KUMAR VERMA, NAGENDRA RAI

body2000
Judgment Nagendra Rai, J. 1. Both the appeals arise out of the same judgment and order of conviction and sentence dated 7.4.1995 passed by the IIIrd Additional Sessions Judge, Deoghar, in Sessions Trial No. 234 of 1992 and as such, they have been heard together and are being disposed of by this common judgment. 2. There are five appellants in each of the appeals and all of them have been convicted under Section 302 read with Section 149 of the Indian Penal Code (hereinafter referred to as IPC) and sentenced to undergo rigorous imprison- ment for life. 3. The occurrence in this case took place on 27.7.1992 at 7 a.m. in Harin Dubba Bahiyar in village Simar-jore Nawadih within Mohanpur Police Station in the District of Deoghar. in which three persons, namely, Neema Hembram, Debasi Hembram and their father Bhajju Hembram, all residents of village Nawadih, were murdered and PW 6 Barki Murmu, wife of deceased Bhajju received injuries. The prosecution narration, in brief, is that on the day of the occurrence at 7 a.m., deceased Neema Hembram, deceased Debasi Hembram. PW 3 Fodka Hembram, PW 4 Jugal Hembram and PW 7 Puran Hembram, had gone to plough their land situated in Harin Dubba Bahiyar in the said village. Deceased Neema Hembram was sitting on the ridge of the field and others were ploughing the field. Deceased Bhajju Hembram was grazing she-buffalo near the field. A chouki/Henga (a piece of wood used for making the land even) was kept on the ridge. The prosecution party after ploughing one field began to plough another field. In the meantime, appellant Durga Besra came and wanted to take aforesaid Chouki. Deceased Neema Hembram prevented him from taking the same. In the meantime, all the appellants armed with deadly weapons; such as sword, Barchha, lathi etc. arrived there and surrounded them. Appellant Kaila Marandi was armed with a sword and caused injury by the same on the head of deceased Debasi Hembram, appellants Dhani Ram Marandi and Bad Marandi assaulted him by sword and barchha, respectively, as a result of which he fell down and, thereafter, he was brutally assaulted with lathi by other accused- persons. Seeing the occurrence deceased Bhajju Hembram and deceased Neema Hembram both pleaded to save injured Debasi Hembram, but the aforesaid accused-persons also assaulted both of them with lathi, sword, etc. Seeing the occurrence deceased Bhajju Hembram and deceased Neema Hembram both pleaded to save injured Debasi Hembram, but the aforesaid accused-persons also assaulted both of them with lathi, sword, etc. as a result of which they also fell down and, thereafter, the accused-persons fled away. 4. The motive for the occurrence, as alleged, was that a dispute with regard to land was going on for long between the parties. The said dispute has also resulted into filing of cases. 5. After retreat of the miscreants, all the three injured were taken to Mohanpur Hospital for treatment, where the Doctor, finding serious nature of injuries, advised to take them to Deoghar Hospital and, thereafter, they were taken to Deoghar Hospital. While being taken to Deoghar Hospital, deceased Debasi Hembram died in the way and two other injured were admitted in Deoghar Hospital. The fardbeyan (Ext 6) of one of the injured deceased, namely, Neema Hembram was recorded on the same day at 11 p.m. by ASI D.N. Paswan (PW 12), which was sent to Mohanpur Police Station, on the basis of which the First Information Report was drawn up on 28.7.1992 at 9 a.m. Thereafter, aforesaid two injured, namely, deceased Neema Hembram and Bhajju Hembram died. 6. The investigation was taken up by SI Ganesh Singh, who investigated the case for some time and. thereafter, the same was taken over by PW 11 Ashok Kumar Dalmia, who did major part of the investigation and handed over investigation to the officer-in-charge Arun Kumar as he was transferred and, thereafter, the latter submitted charge-sheet in this case on 31.7.1992. 7. After cognizance and commitment of the case, the appellants were put on trial, which ended in their conviction as stated above. 8. The defence of.the appellants is their false implication in this case due to enmity with a view to grabbing the land of appellants Kaila Marandi and Dhaniram Marandi. 9. The prosecution has examined 14 witnesses in this case, out of whom PW 1 Rijha Hembram, PW 3 Fodka Hembram, PW 4 Jugal Hembram and PW 10 Nunu Lal Hembram are alleged to be eye-witnesses to the occurrence and out of them PWs 1 and 10 are not named in the First Information Report PW 5 Biriya Soren, widow of deceased Debasi Hembram and PW 6 Barki Murmu. widow of deceased Bhajju Hembram have given hearsay account of the main occurrence and are witnesses on the point that while they were rushing to the place of occurrence on hearing about incident in the way, the appellants met and appellant Kaila Marandi assaulted Barki Murmu by sword and appellant Dhani Ram Marandi assaulted by lathi PW 8 Dr. Jugal Kishore Choudhary, at the relevant time, was posted as Civil Assistant Surgeon, Deoghar Hospital and held the post-mortem examination over the dead bodies of deceased Neema Hembram and Bhajju Hembram PW 13. Dr. Bindeshwar Panjiar examined four injured at Mohanpur Hospital. PW 14 is Dr. Jitendra Kumar, who held autopsy over the dead body of deceased Debasi Hembram. PW 11 Ashok Kumar Dalmia is the Investigating Officer and PW 12 Deep Narain Paswan recorded the fardbeyan of deceased Neema Hembram at Deoghar Hospital. PW 2 Jugal Baski is a formal witness and PW 9 Budhan Murmu is a witness to the seizure-list. PW 7 Puran Hembram has been tendered. 10. The defence has examined only one witness Govind Mandal, who has proved certain rent receipts. 11. The statement made by deceased Neema Hembram stating about the cause of his death is to be treated as a dying declaration. He has stated in his statement that on the day of occurrence, he along with other deceased Debasi Hembram and others had gone to plough the field and after ploughing one field, while they were ploughing another field the accused- persons came and they assaulted him and Debasi Hembram. They also assaulted deceased Bhajju Hembram, who was grazing his she-buffalo. The said version is supported by the eyewitnesses examined in this case. 12. PW 1 Rijha Hembram has stated that he was ploughing his own land along with his sons Puran Hembram and Chhotan. He witnessed the assault. Appellants Kaila Marandi, Dhani Ram Marandi, Bud Marandi and Sukhu Murmu assaulted the three deceased. Seeing the assault, he and his sons fled away. In cross-examination, he stated that at the moment, the assault (Marpit) started, but he fled away due to fear. In that view of the matter, his claim of having witnessed the occurrence is highly improbable and as such his evidence is to be rejected as an eye-witness. 13. Seeing the assault, he and his sons fled away. In cross-examination, he stated that at the moment, the assault (Marpit) started, but he fled away due to fear. In that view of the matter, his claim of having witnessed the occurrence is highly improbable and as such his evidence is to be rejected as an eye-witness. 13. PW 3 Fodka Hembram, who is son of deceased Neema Hembram, has also stated in his evidence that in the morning at about 8 a.m., he along with two deceased, PW 1 Rijha Hembram, PW 4 Jugal Hembram, PW 7 Puran Hembram and PW 10 Nunu Lal Hembram were in the field and they were ploughing the field. At that time, some of the members of the prosecution party were sitting at ridge. They had already ploughed one field. Deceased Bhajju Hembram was grazing his she-buffalo. The accused-persons were ploughing the disputed field. Deceased Neema Hembram protested them as to why they were ploughing the field, with regard to which a case was going on, upon which appellant Durga Besra demanded chouki (Henga). Deceased Neema Hembram did not give the same and then appellant Durga Besra assaulted deceased Neema Hembram with lathi on his head and, thereafter, other accused appellants, namely, Munshi Besra, Lal Besra, Sita Ram Besra, Rasik Besra, Kaila Marandi, Dhani Ram Marandi, Sukha Murmu, Bhola Hembram and Anil Hembram surrounded and assaulted deceased Neema Hembram. Appellants Dhani Ram Marandi and Kaila Marandi were armed with sword, appellant Lai Besra with barchha and appellant Munshi Besra with lathi. When deceased Debasi Hembram came to save him, he was also assaulted by the appellants. Deceased Bhajju Hembram, who was grazing his she-buffalo, also came to save them, and he was also assaulted by the appellants. He further stated that the accused-persons also chased him, tout he fled away towards his house and informed about the occurrence to his aunt (wife of Debasi Hembram PW 5) and his grand-mother (wife of deceased Bhajju Hembram PW 6) and, thereafter, they all proceeded towards the place of occurrence and in the way appellant Kaila Marandi assaulted his grand-mother Berki Murmu by sword, as a result of which she received injury in her leg and became unconscious. He has further stated that the injured persons were taken to Mohanpur Hospital and the Doctor advised them to take to Deoghar Hospital and, thereafter, they proceeded to Deoghar but in the way Debasi Hembram died. He further stated that in his presence, the Police took statement of his father deceased Neema Hembram in the Deoghar Hospital and his father after having been read over the contents thereof, put his thumb impression and he also signed as a witness. The accused-persons after committing the crime had left the sword, bow and arrows, which were brought by him at his house and they were handed over to the Police, which were seized by the Police under a valid seizure-list. 14. PW 4 Jugal Hembram who is son of the deceased Bhajju Hembram and brother of other two deceased, has also stated that on the day of the occurrence, he was ploughing the field. The deceased and others were also present there. Appellant Durga Besra was taking chouki (Henga), which was protested by deceased Neema Hembram. Thereupon, appellant Durga Besra assaulted him with lathi and, thereafter, other accused-persons assaulted him and other two deceased with their weapons. He has further stated the same thing, which has been stated by PW 3. 15. PW 10 is Nunulal Hembra, son of deceased Neema Hembram and he has also stated that he along with other family members was ploughing the field. There was a dispute between his father and appellant Durga Besra with regard to taking of chouki(Besra). Thereafter, appellant Durga Besra assaulted his father with lathi on his head, as a result of which he fell down. Thereafter, other accused-persons surrounded deceased Debasi Hembram, who came to save his father, but he too was assaulted by the appellants. Thereafter, his grand-father deceased Bhajju Hembram, who was grazing his she- buffalo in the nearby field, came to save them, but he too was assaulted. 16. All four injured were first examined by PW 13 Dr. Bindeshwar Panjiar on 27.7.1992 and he found the following injuries on their persons : BarkiMurmu (i) Incised wound l"xl/4"xl/4" on the right lower leg simple in nature caused by sharp-cutting instrument, may be by Tangi. Neema Hembram (i) Incised punctured wound 1/2"x1/2"x 1-1/2" on the right leg below knee. The injury was found simple in nature caused by pointed substance such a barchha. Neema Hembram (i) Incised punctured wound 1/2"x1/2"x 1-1/2" on the right leg below knee. The injury was found simple in nature caused by pointed substance such a barchha. Devasi Hembram (i) Incised wound on the scalp 4"x3"xl" on the occipital region cutting the scalp bone. The brain matter was coming out. (ii) Incised wound on right parietal region of scalp 4"xl"xl/2". (iii) Incised wound 2"xl/2"x 1/4" on the middle scalp. (iv) Incised wound in right forearm l"xl/2"xl/2". Bhajju Hembram (i) Incised wound with fracture of tibia of left leg 2"xl/2"xl/2". (ii) Incised wound in middle scalp l"xl/4"xl/4". (iii) Incised wound with cutting on olecranon process of right ulna 4"x4"xl". (iv) Lacerated wound l/2"xl/2"x 1/2" on right upper arm. 17. Thereafter, as stated above, three of them, namely, Bhajju Hembram, Debasi Hembram and Neema Hembram died. The post-mortem examinations over the dead bodies of two deceased, namely, Neema Hembram and Bhajju Hembram were conducted by PW 8 Dr. . Jugal Kishore Choudhary and the postmortem examination over the dead body of Debasi Hembram was conducted by PW 14 Dr. Jitendra Kumar. The injuries found by the said doctors who held the post- mortem examinations are as follows : Bhajju Hembram (i) Rigour mortis was found present in all the limbs. On external examination, he found abrasion 2" x 1" on occipital region. (ii) Incised wound 1" x 1/4" on right side of forehead. (iii) Incised wound 3" x 1" x bond deep on the back of upper part of right forearm below elbow. He also found fracture of radius and ulna upper end and bones protruding from the ulna. (iv) Incised wound 1" x 1/4" x bone deep on the back of left forearm 4" below elbow. (v) Incised wound 7" x 1/4" on back between both scapulas. (vi) Incised wound 3" x 1/4" on upper part of right scapular region. (vii) Lacerated wound 1" x 1 /2" x bone deep on upper part if front of right leg 4" below knee and compound fracture of tibia and tibula and protuding from the wound. Neema Hembratn (i) Swelling 4" x 3" on left parietal region extending to occipital region of skull. (ii) Swelling 3" x 2" on right side of lower chest. (iii) Bruise 10" x 1/2" on back of right scapular region extending below the back of chest. Neema Hembratn (i) Swelling 4" x 3" on left parietal region extending to occipital region of skull. (ii) Swelling 3" x 2" on right side of lower chest. (iii) Bruise 10" x 1/2" on back of right scapular region extending below the back of chest. (iv) Bruise 10" x 1/2" on right side of back of chest extending up to lumber region. (v) Bruise 6" x 1" on right side of back extending up to waist. (vi) Abraison 2" x 1" on left side of front of scrotune. (vii) Abraison 1" x 1/2" on right side of the front scrotune. (viii) Incised wound 1" x 1" x muscle deep on medical side of lower part of right leg. Debasi Hembram (i) Incised wound on the head over right parietal occipatal region 4 x 1 1/2" x. skull deep with brain matter protruding out. (ii) Incised wound on the head In the centre from left parietal to right parietal area 3" x 2" x skull deep with brain matter protuding out. (iii) Incised wound over the right scapular region upper part three in number, transversally parallel to each other 2" x 1" x 1/2" and 2.1/2" x 1" x 1/2" and 3 x 2" x 1". (iv) Lacerated Wound over the right ankle laterally 2" x 1" (v) Incised wound over the left glutteal region 3" x 2" x 1. 18. The first Investigating Officer, who visited the place of occurrence, namely, Ganesh Singh, has not been examined. PW 11 Ashok Kumar Dalmia has stated that after he took over investigation, he searched the houses of the accused-persons and during search, he seized one bhala from the house of appellant Sita Ram Besra and one tangi from the house of appellant Kaila Marandi and he examined the witnesses. 19. As stated above, the Investigating Officer, who visited the place of occurrence, has not been examined and as such there is nothing on the record to show as to the actual state of affairs at the spot at the time of occurrence, but the version given by the prosecution about the injuries on four-persons, which resulted into death of three persons, found ample support from the medical evidence. 20. 20. Learned counsel appearing for the appellants in both the appeals, however, submitted that in this case, the prosecution has not been able to prove the case against the appellants and in this connection it has been pointed out that the earliest version given by the prosecution to the police of Mohanpur Police station has been suppressed and the present First Information Report is a created or forged document; inasmuch as the deceased Neema Marandi after having received such serious injuries should not have made such a lengthy statement. The said fact is also proved by the fact that the First Information Report was received after inqrdinate delay in the Court of the Magistrate. The prosecution has failed to prove the genesis and manner of occurrence. The occurrence took place altogether in a different manner. The land was in possession of the accused persons and the members of the prosecution party came and wanted to take forcible possession and in that connection assaulted the accused and suppressing all these facts, they have come out with a concocted and false story before the Court. It was also submitted that as the prosecution has failed to prove the injuries on the person of the accused, which creates doubt about the version of the prosecution. He further submitted that only interested witnesses have been examined and no independent witness has been examined. Non-examination of the First Investigating Officer has prejudiced the accused persons. Lastly, it was submitted in any view of the matter, it was a free fight between two groups and as such only those appellants, against whom there are consistent and clear evidence of causing injuries to the deceased, are liable to be convicted and all the appellants cannot be convicted with the aid of Section 149 of the IPC. 21. The evidence on the record shows that the injured along with prosecution witness first went to Mohanpur Police Station and, thereafter, the Police Officer present there prepared injury reports and sent the injured to Mohanpur Hospital for treatment. PW 3 Fodka Hembram has said in his cross-examination that first they went to the Police Station. He has narrated about the occurrence to the Officer-in-Charge of Mohanpur Police Station. His father deceased Neema Hembram had also stated about the occurrence. PW 3 Fodka Hembram has said in his cross-examination that first they went to the Police Station. He has narrated about the occurrence to the Officer-in-Charge of Mohanpur Police Station. His father deceased Neema Hembram had also stated about the occurrence. PW 4 Jugal Hembram has also said that three injured at Mohanpur Hospital gave statement about the occurrence and made statements about the occurrence, which were written by SI of Mohanpur PS and he took thumb impression of all the three injured thereon. PW 5 Biriya Soren has also stated that he along with the injured went to the Police Station. They narrated about the occurrence to the Police present at Mohanpur Police Station. The Police Officer recorded his statement as well as the statement of PW 3 Fodka Hembram and he took also his signature and. thereafter, he prepared a paper and referred the injured to Mohanpur Hospital. 22. The aforesaid statements have been referred to and relied upon by the appellants in support of their statement that the earliest version has been suppressed by the prosecution. 23. The evidence of the Investigating Officer (PW 11) shows that after the injured persons reached the Police Station and a station diary entry was made and, thereafter, the injury reports were prepared, which have been marked as Exts. A series and they were referred to Mohanpur Police Station. Out of the four injured persons three had received serious injuries and one Debasi Hembram was unconscious. In such a situation, the first and foremost duty of the family members and the Police Officer was to get the injured properly treated. After having seen the injured at the Police Station, the Police Officer present there must have inquired about the occurrence and the witness present there might have stated about the occurrence. But, it appears that the statement was not recorded and the injured and other persons present there were immediately referred to the Mohanpur Hospital. The aforesaid statements made by the witnesses under the strain of cross-examination cannot lead to an inference that the fardbeyan or the First Information Report was recorded before referring the injured to the Hospital and as such, there is no question of suppression or withholding of the earliest statement by the prosecution. 24. The aforesaid statements made by the witnesses under the strain of cross-examination cannot lead to an inference that the fardbeyan or the First Information Report was recorded before referring the injured to the Hospital and as such, there is no question of suppression or withholding of the earliest statement by the prosecution. 24. The statement of deceased Neema Mahto was recorded on 27.7.1992 at 11 p.m. in the Sadar Hospital, Deoghar, by PW 12 Dip Narayan Paswan, ASI of Deoghar PS. He has stated that at the relevant time, he was posted as ASI of Deoghar PS and he recorded the fardbeyan of appellant Neema Hembram in presence of PW 1 Rijha Hembram and PW 3 Fodka Hembram and proved the fardbeyan (Ext. 6). He also prepared the inquest reports over the dead bodies of the deceased. He has stated that at the time of recording fardbeyan, he found three injured in the Male Ward of the Hospital. At the time of recording, the fardbeyan of appellant Neema Hembram was in fit state of mind and as such he did not think it proper to get his dying declaration recorded. He further stated that after recording the fardbeyan, he came to the Police Station, made a station diary entry and on the same day, he sent the fardbeyan to Mohanpur Police Station. 25. PW 13 Dr. Bindeshwar Panjiar, who examined the injured at the earliest in Mohanpur Hospital, has stated that while he referred the injured persons to Deoghar Hospital for better treatment, only appellant Debasi Hembram was unconscious. Thus, the injuries found on the person of appellant Neema Hembram by the doctors also do not show that the injuries were such that he could have become unconscious immediately after receiving the injuries. 26. However, learned counsel for the appellants drew our attention to the statements made by the witnesses to show that appellant Neema Hembram became unconscious after receiving the injuries and in that situation he died and as such it was not possible for him to make statement as alleged by the prosecution. 27. PW 3 Fodka Hembram has stated that at Mohanpur Hospital his father gave his statement to the Police Officer and, thereafter, he became unconscious and continued till he died. At the same time, he has also stated that after he was provided with saline, he regained consciousness and, thereafter, he put his LTI. 27. PW 3 Fodka Hembram has stated that at Mohanpur Hospital his father gave his statement to the Police Officer and, thereafter, he became unconscious and continued till he died. At the same time, he has also stated that after he was provided with saline, he regained consciousness and, thereafter, he put his LTI. On the basis of the said statement, it cannot be said that deceased Neema Hembram remained unconscious throughout, on the other hand, he regained his consciousness and gave statement and put his LTI. There was no reason for the doctor of Mohanpur Police Station and the ASI, who recorded the fardbeyan to speak falsehood specially when the fardbeyan of appellant Neema Hembram, who was recorded on 27.7.1992, was sent on the same date to Mohanpur Police Station and the Officer-in-charge of Mohanpur Police Station, registered a First Information Report on the next date, i.e., 28.7.1992 and which was received in the Court of the Chief Judicial Magistrate on 29.7.1992 and as such, there was no time to concoct or manufacture the fardbeyan as stated by the appellants. 28. The evidence on the record shows that deceased Bhajju Marandi and Chotka Hembram were brothers. Deceased Bhajju had three sons, namely, deceased Neema Hembram, Debasi Hembram and Jugal Hembram (PW 4). PW 3 Fodka Hembram and PW 10 Nunu Lal Hembram are the sons of deceased Neema. PW 5 Biriya Soren is the widow of deceased Debasi Hembram and PW 6 Barki Murmu is the widow of deceased Bhajju Hembram. Chotka Hembram is son of Rijha Hembram (PW 1), whose son is PW 7 Puran Hembram. Thus, all the witnesses examined in this case are family members of the deceased and as such they are interested and inimical witnesses. No independent witness has been examined in this case. No doubt, the occurrence had taken place in the day time in a field when agricultural operations were going on and the presence of independent witnesses also would be there, but non-examination of the independent witnesses cannot be a ground to reject the testimony of the interested witnesses. The Court cannot ignore the reality of life in the present days. The people are reluctant to come to the court specially in this State where the crime is committed from zero hours to twentyfour hours. The Court cannot ignore the reality of life in the present days. The people are reluctant to come to the court specially in this State where the crime is committed from zero hours to twentyfour hours. Due to threat to life and property, the witnesses, specially independent witnesses, are not helping the cause of administration of justice and they try to keep them away from the Court proceedings. If the Court starts disbelieving the prosecution case only on the ground that the independent witnesses have not been examined then there would be miscarriage of justice. The Court is to scrutinise the evidence as adduced by the prosecution and then to decide as to whether the evidence should be accepted or not. If the witnesses are interested or inimical ones, then their evidence is to be weighed with care and caution and if their evidence finds support from other materials on record, then the same is not to be rejected only on the aforesaid grounds. 29. Thus, the evidence of the prosecution witnesses in this case cannot be rejected only on the ground of their being interested and inimical as urged on behalf of the appellants. 30. According to the prosecution, the prosecution party had gone to plough the field and while they were ploughing field, one of the deceased, namely, Bhajju Hembram was grazing the cattle in a nearby field, one of the accused came and demanded chouki (Henga), which was not given by deceased Neema Hembram and, thereafter, the prosecution party is alleged to have been assaulted by the accused persons. This genesis of the occurrence appears to be doubtful. 31. PW 3 Fodka Hembram, son of one of the deceased, has admitted that the dispute was going on with regard to land of Devan between his family and the family of appellant Kaila Marandi and others and on the day of occurrence, they were ploughing their own land situated near the disputed land. However, he has admitted in cross-examination that the occurrence took place in the field of Devan itself, which land is in possession of the accused-persons. PW 4 Jugal Hembram has also admitted in his cross-examination that the land which they were ploughing belonged to devan, with regard to which there was a dispute between the parties. However, he has admitted in cross-examination that the occurrence took place in the field of Devan itself, which land is in possession of the accused-persons. PW 4 Jugal Hembram has also admitted in his cross-examination that the land which they were ploughing belonged to devan, with regard to which there was a dispute between the parties. PW 10 Nunu Lal Hembram has also admitted that the assault took place in the field of Devan and PW 6 Barki Murmu has also stated that the prosecution party had gone to plough the field with regard to which there was a dispute between the parties. 32. Thus, the evidence of the witnesses shows that the occurrence took place when the prosecution party was ploughing field with regard to which there was a dispute between the parties. Though it is stated by the prosecution that the dispute occurred due to taking of Henga by one of the appellants, namely, Durga Besra, but that appears to be an exaggerated or embellishment in the prosecution case. It appears from the record that the occurrence took place when the prosecution party had gone to plough the land of Devan, who was in possession of the accused and in course of the occurrence, three persons received injuries and later on died. 33. No doubt, in a case of plea of right of private defence to person and property, it is the accused to plead and prove the same, but it is not necessary that the accused should lead evidence. If there are materials on record to show that the right of private defence was available then the said question has to be considered. 34. The custodian of law and order is the State. However, it is not possible for the State and its machinery to be available at every time when the life of the citizens is in peril. The right of private defence to person and property has been provided under a statute to the citizens to protect their life and property when they are challenged by unlawful aggressors and it is not possible to take recourse to public authorities. As the law is preventive and protective one and not a punitive or retributive one, it is to be exercised in such a way as necessary to protect the life and property. As the law is preventive and protective one and not a punitive or retributive one, it is to be exercised in such a way as necessary to protect the life and property. In other words, the injury to be caused to the aggressors should not be disproportionate to the injury threatened or apprehended and it is to be exercised only when the apprehension exists at that moment. However, to decide a question as to whether a person has a right of private defence to person or property, the Court has to give latitude to the person exercising such right as at the time of exercising the right of private defence, he is in a perplexed state of mind and because of threatened danger to his life and property he is likely to give decisive blow. 35. The question is as to whether in this case, the accused-persons have right of private defence to person and property. The appellants have not come out with a definite case. The only material ihat has been brought on the record to show that the prosecution party were aggressors, they came upon the land and also assaulted the accused is Ext. B, proved by the Investigating Officer (PW 11). It is a forwarding letter by the Officer-in-charge of Mohanpur Police Station on 8.6.1992, i.e., after eleven days of the occurrence, wherein he has mentioned that he found injuries on the person of appellant Dhani Ram Marandi. The injuries mentioned therein were on the back of the head and an old injury on the waist. One black-spot on the left hand was also stated to be an injury. On the basis of this forwarding letter, it cannot be said that aforesaid appellant Dhani Ram Marandi received injuries in the same occurrence, which took place on 27.7.1992. Thus, there is nothing on the record to show that the said appellant received injuries in the said occurrence. 36. The evidence on the record further shows that the prosecution parry had gone in the morning at 7 a.m. and they had ploughed part of the land and thereafter, accused-appellants came and assaulted three of them, which resulted into their death and while retreating they also assaulted PW 6 Barki Murmu. 36. The evidence on the record further shows that the prosecution parry had gone in the morning at 7 a.m. and they had ploughed part of the land and thereafter, accused-appellants came and assaulted three of them, which resulted into their death and while retreating they also assaulted PW 6 Barki Murmu. Once the prosecution party had gone to plough the land and they were ploughing the land from before, even if the same were in possession of the appellants, they should have taken recourse to the public authorities specially when there is nothing in the record to show that anything was being damaged in the field. Even assuming that having seen that the pro- secution party was ploughing the field and their action amounted to criminal trespass, the same did not empower the accused persons in law to kill three persons in exercise of right of private defence to the person and property. 37. In the case of Maguni Charan Pradhan V/s. State of Orissa, reported in 1991 SCC (Cri) 580, there was a dispute between the prosecution party and the accused persons with regard to the land, which was in actual possession of the accused persons. The prosecution party went and started ploughing the land. The request made by the accused not to plough the land was not acceded to by the prosecution party and, thereafter, the accused assaulted the deceased on head which resulted into his death. The trial Court acquitted the accused on the ground of right of private defence to person and property. The High Court set aside the order of acquittal and convicted the accused under Section 302 of the IPC on the ground that no right of private defence was available to the accused and the apex Court held that a rightful owner having peaceful possession is entitled to throw out any person who threatens to dispossess him of such property. The law does not expect any cowardice on his part when there is real and imminent danger to his property from outside sources. Thus, the rightful owner is entitled to throw out by using such force as would in the circumstances of the case appear to be reasonably necessary, any person or trespasser who tries to invade his right to peaceful possession of his property. Thus, the rightful owner is entitled to throw out by using such force as would in the circumstances of the case appear to be reasonably necessary, any person or trespasser who tries to invade his right to peaceful possession of his property. But, if the trespasser has settled in his possession of the property, the recourse which the rightful person must adopt is to recover possession in accordance with law and not by force. 38. In the present case, the materials on the record show that the land was in possession of the accused and the prosecution party had gone to the land and ploughed the same for some time and, thereafter, the accused- persons came and assaulted the deceased. Section 99 of the Penal Code, inter alia, states that there is no right of private defence in cases, in which there is time to have recourse to the public authorities. It further provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The accused-appellants, after having seen the pro- secution party ploughing the land from before should have taken recourse to the public authorities, specially when the land was vacant one or even.if they would have gone to the land, they would have driven them out by use of some force, but law does not authorise them to brutally assault two persons who were in the field and to assault Bhajju Hembram, who, according to the prosecution evidence, was grazing his she-buffalo, and came to save other persons. 39. Thus, in my view, there is no right of private defence available to the appellants. On the other hand, they deliberately committed the murder of three accused persons in pursuance of a common object with which they had formed an unlawful assembly and proceeded to the place of occurrence. The nature of the injuries caused to the deceased clearly shows that the appellants were determined to kill and, thus, no right of private defence was available to the accused-appellants. 40. About non-explanation of the injury on the person of one of the appellants, as stated above, the only document produced is Ext. The nature of the injuries caused to the deceased clearly shows that the appellants were determined to kill and, thus, no right of private defence was available to the accused-appellants. 40. About non-explanation of the injury on the person of one of the appellants, as stated above, the only document produced is Ext. B forwarding letter of the Police Officer, which shows only some superficial and simple injuries noticed after eleven days of the occurrence and in such a circumstance, the prosecution is not bound to explain the injuries alleged to have been found on the person of one of the appellants, specially when there is nothing on the record to show that the said injuries were caused in the same occurrence. 41. So far as the dying declaration is concerned, as stated above, I have already held that the statement was made by deceased Neema Hembram while he was in fit state of mind. Even if the aforesaid dying declaration is kept out of consideration, there is ample evidence of three eye-witnesses, namely PWs 3, 4 and 10, who have given a vivid description about the assault on the persons of three deceased and their version found ample support from the medical evidence. The evidence of the said witnesses further show that while the accused-persons were retreating, one appellant Kaila Marandi assaulted PW 6 Barki Murmu by sword, who was running to the place of occurrence after hearing about the incident. 42. Thus, the prosecution has proved that the appellants participated in the crime in the manner as alleged by the prosecution and their action is not protected by the right of private defence to the person and property. 43. In the result, I find no merit in both the appeals and. accordingly, they are dismissed. 44. It appears that all the five appellants, namely, Sitaram Besra, Lal Besra, Rasik Besra. Munshi Besra and Durga Besra of Cr. Appeal No. 74 of 1995 are on bail. Let their bail-bonds be cancelled. They are directed to surrender before the Court below to serve out their sentences. If they do not surrender, coercive steps should be taken to secure their arrests.