JUDGMENT P.G. Agarwal, J. 1. This appeal is directed against the judgment and order dated 8.7.2002 passed by the learned Additional Sessions Judge No. 2, Sibsagar in Sessions Case No. 28 (S-C)/2001 [corresponding to Sessions Case No. 43(S-C) 88 (old)] convicting the accused appellants under Sections148/302/325/323/ 149 IPC and sentencing them to suffer two years imprisonment under Section148 IPC, to suffer rigorous imprisonment for life under Section 302 IPC read with Section 149 IPC and also to pay a fine of Rs. 500/- each, in default, to undergo further R.I. for six months. The accused appellants are also sentenced for 3 months R.I. under Section 323/149 and R.I. for 5 years each under Section 325 read with Section 149 IPC. All the sentences are to run concurrently. 2. In Sessions Case No. 28 (S-C) 2001 as many as 10 accused persons were tried under Section148/302/323/325/149 IPC. Accused Lakhi Pegu died during pendency of the case. During trial, prosecution examined as many as 14 witnesses. On conclusion of the trial, the learned trial Court found all the accused persons guilty of the offence under Section 302/149 IPC. They were also found guilty of offence under Section 323/325/149 IPC and sentences were imposed on them. 3. From time immemorial, land had played a devastating role in the life of human being and the present case is no exception, where land had taken the toll by taking life of 3(three) villagers and injuries to others. The disputed land is situated at village Deoghoria under Mahmara Mouza. It originally belong to one Gajendra Miri, and thereafter, Chandra Kalita (since deceased), the husband of the informant Sabitri Kalita (PW-1) claimed to have purchased the said land, which is a cultivable land, from the son of Gajendra Miri. As stated above, the incident in the present case took place on 1.12.1986. 4. Prosecution version of the case is that on that day at about 9.30 A.M. while Chandra Kalita along with his brothers, niece etc. were harvesting paddy over the said land (hereinafter referred to as 'the land') the accused persons armed with dao, spear etc. attacked them and caused injuries on the person ofNani Kalita, Botahi Kalita, Chandra Kalita, Kanpain Kalita, Kalia Kalita (PW6), Niren Kalita (PW-7), Kanpuma Kalita (PW-4) and Smti Ham Suali Kalita (PW-2). The injured persons were brought to hospital where Nani Kalita, Botahi Kalita and Chandra Kalita succumbed to the injuries. attacked them and caused injuries on the person ofNani Kalita, Botahi Kalita, Chandra Kalita, Kanpain Kalita, Kalia Kalita (PW6), Niren Kalita (PW-7), Kanpuma Kalita (PW-4) and Smti Ham Suali Kalita (PW-2). The injured persons were brought to hospital where Nani Kalita, Botahi Kalita and Chandra Kalita succumbed to the injuries. 5. PW 12 Dr. N. Sonowal, who held autopsy over the dead bodies, found as follows: Bothai Kalita Injury: 1. One lacerated wound present on the left parietal region. Cranium Spinal Canal: Blood clots were present under the scalp on the left side. Skull--6 x 2 c.m. size comminuted fracture on the left parietal bone. Membrance--congested and haemorrhage are present under the fracture area. Brain--Haemorrhage and blood clots were present. In the opinion of the Doctor the death was due to shock-and haemorrhage as a result of head injury leading to haemorrhage in the brain. Injuries were ante-mortem and homicidal in nature caused by hard blunt substance (weapon). The injury was sufficient in ordinary course of nature to cause the death of a person. Chandra Kalita Injuries: 1.9 c.m. x 1 c.m. x brain deep incised wound present on the left parietal running anterior and posterior ribs. Scalp, Skull, left parietal bond and left parietal lobe of the brain was cut with a depth of ½ c.m. on the left parietal side anterior. Lacerated wound 3" x 2" were present on the left side of the forehead. Lacerated wound 3 x 2 c.m. present just above the left eyebrows. Carnium & spinal canal--Scalp injury as described in external appearance. Skull 6 x 3 c.m. size depressed fracture on the left fronto running from left to right temporal present. Membrance--Ruptured & congested. Brain--Left frontal and left parietal ribs of the brain are lacerated. Haemorrhage and blood clots are present in the brain. *** *** *** *** Injuries were ante-mortem in nature In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of head injury leading to haemorrhage from the brain. Injuries were homicidal in nature caused by heavy sharp and hard blunt weapons. Injury No. 10 alone was sufficient to cause the death of a person in the ordinary course of nature. Nalia Kalita Injuries: Swelling 12 x 10 cm size present on the right side parietal and temporal region. Injuries were homicidal in nature caused by heavy sharp and hard blunt weapons. Injury No. 10 alone was sufficient to cause the death of a person in the ordinary course of nature. Nalia Kalita Injuries: Swelling 12 x 10 cm size present on the right side parietal and temporal region. Cranium & Spinal: Scalp injury as described above in injury No. 1 Skull - 4 x 2 cm size depressed fracture was present on the left parietal bone 6 x 4cm size depressed fracture present on the left parietal bone. Membrance-congested and haemorrhage. Brain-Haemorrhage and blood clots were present. In the opinion of the Doctor, the dealth was due to shock and haemorrhage as a result of head injury leading to haemorrhage from the brain. Injury were homicidal in nature. These injuries were sufficient to cause the death of a person in the ordinary course of nature. 6. PW 11, Dr. Tonkeswar Bhuyan, who had examined the injured persons i.e. PW4, PW6, PW9, PW7 and PW2 found the following injuries on the persons of the injured witnesses: 1. Kanpuna Kalita: On examination, I found the patient was fully conscious and he had sinesintoms of head injury. He had abrasion over back of left elbow. No boney lesion clinically. No other external injury and the nature of injury simple caused by blunt weapon…. 2. Kalia Kalita: No s/S or head injury. About ½ skin deep lacerated wound over back of the right elbow. No fracture clinically. The injury is simple caused by blunt weapon. 3. Naravan Bhuyan : About 2 long lacerated wound in parieto occipital region scalp deep. No active bleeding present. One abrasion over the left maxillary region. The injury is simple in nature and caused by blunt weapon. Tenderness present over left lower end of forearm and on clinically examination the fracture was suspected and X-Ray was done vide X-Ray Plate No. R-7632 and one fracture of the lower end of the left ulna was found…. 4. Niron Kalita: (1) about 2 long lacerated wound already stitched up over anterior part of right partial region of the head. (2) About 2" long lacerated wound already stitched up over the occipital of the head. (3) About ¼" lacerated wound over the left ear. (4) Multiple abrasion on the back of left shoulder. (5) Small bruise over left ankle. (6) Tenderness over left wrist and hand, boney lesion suspected. (2) About 2" long lacerated wound already stitched up over the occipital of the head. (3) About ¼" lacerated wound over the left ear. (4) Multiple abrasion on the back of left shoulder. (5) Small bruise over left ankle. (6) Tenderness over left wrist and hand, boney lesion suspected. (7)Tenderness left knee. X-Ray was done vide Plate No. 8390 dated 11.12.86 where fracture of left 5th metacarpal bone. 5. Sarusuwali Kalita: (1) Lacerated wound over right ear and elbow about ¼" caused by blunt weapon and in simple nature. (2) Swelling and tenderness lower end of the right forearm clinically fracture radious suspected. (3) Tenderness left shoulder joint boney lesion suspected. X-Ray was done vide plate No. 7546 and where fracture lower 3rd of radius detected and left shoulder dislocation left acromio clavicular. The injury No. 2 & 3 are grievous and injury No. 1 is simple in nature. 7. In view of the oral and medical evidence on record, the death of three persons as a result of the injuries and causing of grievous/simple hurt to other witnesses, as stated above, has not been challenged before us. The defence has come up with specific plea that the disputed land belong to them and it was in their possession and they had grown paddy over the said land and the incident of 'marpit' took place when the complainant side tried to forcibly harvest the paddy grown by the accused persons. There was a mutual 'marpit' and both side sustained injuries. 8. We find from the deposition of witnesses that the disputed land was attached in Misc Case No. 102/86. It is stated that the said order of attachment was vacated on 31.10.1986 and the present incident took place on 1.12.1986, just one month from the vacation of the attachment order. 9. Records of Misc. Case No. 102/86 were proved and exhibited as Ext.-2 and we find that proceedings were drawn up on the basis of an application filed by Chandra Kalita (since deceased) stating, inter alia, that while they were possessing the land as mortgager, the accused persons forcibly dispossessed them from the disputed land on 4.7.1986 and there is an apprehension of breach of peace. A police report was called for. As per the said police report, both the parties are claiming the disputed land and there is an apprehension of serious breach of public peace. A police report was called for. As per the said police report, both the parties are claiming the disputed land and there is an apprehension of serious breach of public peace. Thus, the disputed land was attached vide order dated 15.7.1986. As stated above, the earlier proceeding Misc. Case No. 14/85 under Section 145 Cr.P.C. was disposed of declaring possession of the disputed land in favour of the informant first party. The proceedings in Misc. Case No. 102/86 were disposed of on 22.10.1986. We also find that the order dated 22.12.1986 passed by the Executive Magistrate and affirmed by the learned Sessions Judge in Crl. Motion No. 6(4)/86 was set aside by the High Court in Criminal Revision No. 19/89 vide order dated 11.4.1991 and the matter was remanded back to the trial Court for fresh disposal. 10. We, thus, find that the possession of the land was allegedly handed over to the informant side on 31.10.86 and the paddy was ripe for harvesting on 1.12.1986 when the incident took place. Admittedly, paddy was not grown after vacation of the order of attachment and we also find that the paddy was grown prior to initiation of the proceedings under Section 145 Cr.P.C. Prosecution witnesses have deposed that said paddy was grown by them. Although, the defence claims to have grown the paddy, they have not adduced any evidence in support of their plea. The trial Court relying on a decision of the Apex Court in Ram Rattan v. State of U.P. 1977 CriLJ 433 held that the accused persons had no right to disturb the harvesting of paddy by the complainant side. However, we find that as per own admission of deceased Chandra Kalita, the complainant party was already dispossessed by the accused persons on 4.7.1986. We, thus, find that there was a dispute as to who had grown the paddy over the disputed land. Further, the impugned order passed by the Executive Magistrate was already challenged by the accused persons by filing revision before the learned Sessions Judge and as stated above, the said order was ultimately set aside by this Court. Hence, there is no enforceable order regarding actual physical possession of the land in favour of the complainant side. 11. Further, the impugned order passed by the Executive Magistrate was already challenged by the accused persons by filing revision before the learned Sessions Judge and as stated above, the said order was ultimately set aside by this Court. Hence, there is no enforceable order regarding actual physical possession of the land in favour of the complainant side. 11. In a case of this nature, the important question is who grew the paddy and as stated above, we find that there is a bona-fide dispute about the same and no finding had been recorded by the Executive Court or in the trial Court. The trial Court merely held that as the complainant had gone to harvest the paddy without being armed with any weapon, they cannot be deemed to be aggressors and as the accused persons were armed with heavy, sharp cutting and blunt weapons they were the aggressors. We hardly find any basis for such simplification. If the paddy was grown by the accused persons and there was existing dispute as regards ownership/possession of the land and as regards the question as to who grew paddy (as the dispute was already pending before the Sessions Judge in criminal revision) when the accused persons saw the paddy grown by them is being harvested by the complainant side, they definitely had a right to protect their property as they cannot remain a mute spectators. 12. There is no dispute at the bar that the above incident took precious life of three persons and caused injuries to five other persons. Although the plea of mutual 'marpit' was raised, in absence of any material to show that some of the accused persons received any serious injuries, the learned trial Court did not accept the same. We find from the prosecution evidence itself that some of the accused persons also sustained minor injuries. It may be mentioned here that for the above incident the accused persons had also filed an FIR registered as G.R. Case No. 789/86. The police filed a final report in the above case and the learned trial Court also observed that there was no proper investigation in G.R. Case No. 789/86. 13. In view of the above discussion, we have no hesitation to hold that the accused appellants had a right of private defence to protect the paddy grown by them. The police filed a final report in the above case and the learned trial Court also observed that there was no proper investigation in G.R. Case No. 789/86. 13. In view of the above discussion, we have no hesitation to hold that the accused appellants had a right of private defence to protect the paddy grown by them. The question that falls for our consideration is whether they had exceeded their right. As stated above, what the prosecution witnesses have admitted is that on the date of occurrence, they had gone to the disputed land to harvest the paddy and the incident took place while they were harvesting paddy. Even if we consider prosecution's claim that land was handed to them on 31st October the fully ripened paddy could not have been grown by them within a month period, from the date of alleged handing over of possession or release of attachment. 14. In the case of Maclan Mohan Pandey v. State of U.P. 1991 CriLJ 467, the Apex Court held in judging as to whether the accused had exceeded his right of private defence, the Court is to take into account the weapons used. The facts of the present case are more or less identical with that of Ram Rattan v. State of U.P. 1977 CriLJ 433. In Ram Rattan (supra) the Court relied on its earlier decision in Puran Singh v. State of Punjab AIR 1975 SC 1674 where the Apex Court has held: We, however, think that this is not what this Court meant in the defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act or possession would not amount to settled possession. There is no special charm or magic in the word 'settled possession'. Nor is it a ritualistic formula which can be confined in a strait-jacket but, it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. Nor is it a ritualistic formula which can be confined in a strait-jacket but, it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. …Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes. (i) That the trespasser must be in actual physical possession of property over a sufficiently long period; (ii) That the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case; (iii) The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) That one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having been taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence. 15. The question whether the accused persons have exceeded their right of private defence of property is altogether different proposition and the Court is required to consider the same. As stated above, three persons from the complainant side died and five others sustained injuries and although some of the accused persons had sustained minor injuries, none of them sustained any serious injury and the learned trial Court has rightly observed that there is no evidence that any of the accused persons sustained grievous hurt. We, therefore, have no hesitation whatsoever to hold that the accused persons had exceeded their right of private defence in causing death and under the facts and circumstances of the case, the right of private defence did not extend to causing death. We, therefore, have no hesitation whatsoever to hold that the accused persons had exceeded their right of private defence in causing death and under the facts and circumstances of the case, the right of private defence did not extend to causing death. We also find that in the present case the learned trial Court had taken help of Section 149 IPC to convict the accused under Section 302 IPC, but in the matter of 323 IPC the learned trial Court had resorted to Section 34 IPC. We hardly find any justification in the above proposition in respect to the same incident. However, considering the fact that the accused persons had right of private defence or property, we set aside the order of conviction and sentence under Sections 325/323/34 IPC and the conviction under Section 302 IPC is modified and altered to one under Section 304 Pt. II read with Section 149 IPC. The appellants are sentenced to rigorous imprisonment for five years each and the period undergone by them as undertrial be set off under Section 428 Cr.P.C. Appeal stands disposed of with the above modification in sentence. Send down the records.