Judgment Shiva Kirti Singh, J. 1. All the three appeals have been heard together because they arise out of same judgment and order dated 16.7.2002 passed by Additional Sessions Judge (Fast Track Court 1), Buxar in Sessions Trial No.326/84 arising out of Buxar (M) PS Case No.89/84. Altogether nine persons were tried, out of whom four have been acquitted by the learned trial court of all the charges, Sri Kant Singh and Ram Pujan Singh (Appellants in Cr.Appeal No.421/02) have been convicted for the offence under sec. 302 read with Sec. 149 of the Indian Penal Code (hereinafter referred to as IPC) and awarded life imprisonment, the sole appellant of Cr.Appeal No.459/02, Tarkeshwar Singh has been convicted for the offence aforesaid and awarded life imprisonment. He has also been convicted under section 307 and awarded Rl for seven years and also under sec. 27 of the Arms Act for which he has been awarded Rl for two years. The two appellants, Rarnanuj Tiwan and Sri Bhagwan Singh (Cr.Appeal No.505/ 02) were charged for the offence under section 302 IPC but have been convicted for the offence under sec. 302 read with Sec. 149 IPC and awarded life imprisonment and they have been also convicted for the offence under the Arms Act and awarded RI for two years for the same. 2. In the alleged occurrence three persons, namely, Gauri Shankar Missir, Ganesh Missir and Munilal Chamar were killed. The son of deceased Munilal Chamar, Ram Nath Ram, PW 1, is the informant. He has claimed to be an eye witness of the entire occurrence in which allegedly Gulzar Dusadh, PW2, also received grievous injury. He has also claimed to be an eye witness. The remaining two prosecution witnesses include PW 3, Dr R.P.Jaiswal who conducted autopsy on the three dead bodies and has proved the postmortem reports as Exhibits 2, 2/1 and 2/2. He had also examined the injuries of PW 2 soon after the occurrence and has proved the injury report as Exhibit 9. The only other prosecution witness is PW 4, Sub-Inspector of Police, Suresh Prasad Singh who has proved the Fardbeyan (Exhibit 3), inquest reports (Exhibits 4 to 4/2) and seizure lists (Exhibits 5, 5/1 and 5/2). 3. He had also examined the injuries of PW 2 soon after the occurrence and has proved the injury report as Exhibit 9. The only other prosecution witness is PW 4, Sub-Inspector of Police, Suresh Prasad Singh who has proved the Fardbeyan (Exhibit 3), inquest reports (Exhibits 4 to 4/2) and seizure lists (Exhibits 5, 5/1 and 5/2). 3. The first information report in this case is based upon Fardbeyan of Ram Nath Ram alias Ram Nath Chamar, PW 1, recorded on 28.3.1984 at 9.00 am at the village of occurrence, namely, Barki Kothiya more particularly at Tari Badhar situated north-east of the village, by Officer Incharge of Buxar Muffasil Police Station, SI Suresh Prasad Singh, PW 4. According to the Fardbeyan, the prosecution case, in brief, is that on the northeast of village Barki Kothiya in Tari Badhar, adjacent to a water channel (Nala), there is Khesari field of deceased Gauri Shankar Missir. On 28.3.1984 at about 6.00 am, the informant alongwith Gauri Shankar Missir, his brother deceased Ganesh Missir, informants father, deceased Munikal Chamar, Sukhlal Chamar, Sita Dusadh, Sheonath Dusadh, Gulzar Dusadh (PW 2) and Birodhi Dusadh, all residents of village Sonbarsa and some others had gone to harvest the crop of the said field of Gauri Shankar Missir and were engaged in harvesting under the supervision of Gauri Shankar Missir and Ganesh Missir. Some harvesting only had been done from northeast side when at about 7.00 am, six persons of village Barki Kothiya, namely, appellant Ramanuj Tiwari, Mahanth Tiwari (since dead), appellant Sri Bhagwan Singh, appellant Sri Kant Singh, appellant Ram Pujan Singh and appellant Tarkeshwar Singh alias Bua Singh alongwith 3-4 other persons came to the said field. Out of them Ramanuj Tiwari, Sri Bhagwan Singh and Tarkeshwar Singh were armed with rifles and they came to the field from north. The other three had lathi-bhala in their hands and they came from south and other 3-4 unknown remained towards west. The names of these unknown was known to other persons engaged in harvesting and it was disclosed as Naga Singh, Sri Ram Singh, Parmatma Singh and Mahesh Singh, all residents of Barki Kothiya. Immediately on their arrival, the three armed accused who came from the north started firing. Ramanuj Tiwari shot with his rifle causing injury to deceased Gauri Shankar Missir on his, right buttock due to which he fell down. Immediately on their arrival, the three armed accused who came from the north started firing. Ramanuj Tiwari shot with his rifle causing injury to deceased Gauri Shankar Missir on his, right buttock due to which he fell down. He fired second shot in the abdomen of deceased Ganesh Missir and he also fell down. Sri Bhagawan Singh fired his rifle at deceased Munilal Chamar due to which he sustained injury in his buttock and fell down. Tarkeshwar Singh fired a shot from his rifle at Gulzar Dusadh which caused injury in his right hand. On further indiscriminate firing, all the labourers ran towards east to save themselves. When they had run away then Ramanuj Tiwari went near deceased Gauri Shankar Missir who was still alive then and with his hand he tried to dissuade but Ramanuj Tiwari fired second shot in his abdomen. The informant saw this while hiding behind eastern ridge of the field. Thereafter all the miscreants fled towards village saying that the work was over. Thereafter the informant alongwith some of the labourers returned to the field and found Gauri Shankar Missir, Ganesh Missir and Munilal Chamar dead. They had bleeding injuries. Gulzar Dusadh was writhing in pain due to injury and hence he was taken to hospital. 4. In the Fardbeyan the informant also disclosed that he had earlier learnt from deceased Gauri Shankar Missir that widow of late Ratan Tiwari of village Barki Kothiya, Pawitra Kunwar had long ago gifted about four acres land including the land where the occurrence took place, to deceased Gauri Shankar Missir, her grandson (Nati) and accused Mahanth Tiwari (since dead) was contesting a civil suit in respect of that land against Gauri Shankar Missir since about 10-12 years. About three years earlier Gauri Shankar Missir had succeeded from Consolidation Office at Buxar and on that basis he had been tilling and growing crops on that land. Due to said dispute the alleged occurrence had been committed by the accused persons in which Gauri Shankar Missir, Ganesh Missir and Munilal Chamar were killed and Gulzar Dusadh sustained injury. 5. The Officer Incharge, SI Suresh Prasad Singh after recording the Fard beyan began the investigation. He prepared the inquest report of three deceased and sent the dead bodies to Buxar Hospital for autopsy. Gulzar Dusadh had already been shifted to Buxar Hospital before his arrival. 5. The Officer Incharge, SI Suresh Prasad Singh after recording the Fard beyan began the investigation. He prepared the inquest report of three deceased and sent the dead bodies to Buxar Hospital for autopsy. Gulzar Dusadh had already been shifted to Buxar Hospital before his arrival. After completing investigation, police submitted chargesheet against all the 10 accused persons named in the FIR for the offences under Sections 147, 148, 149, 302, 307 and 326 IPC and also under Sec. 27 of the Arms Act. Accordingly, cognizance of the offence was taken and the case was committed to the court of sessions. All the 10 accused pleaded not guilty to the charges and hence, they were put on trial. In course of the trial, accused Mahanth Tiwari died and hence, only nine accused persons faced trial. As noticed earlier, four of them were acquitted whereas the five appellants were convicted and sentenced leading to the appeals under consideration. 6. The defence of the appellants is of false implication on account of land dispute and although no defence witness has been examined but on the basis of documents exhibited on behalf of the defence it has been argued in the alternative that Gauri Shankar Missir did not have possession over the land and when he went alongwith others to take forceful possession, he with two other deceased appears to have been killed in an occurrence which took place on account of exercise of right of private defence of property. 7. As noticed earlier, there are only two eye witnesses in this case i.e. the informant Ram Nath Ram (PW 1) and the injured Gulzar Dusadh (PW 2). In his deposition in Court the informant has fully supported the prosecution case in respect of firings made by appellant Ramanuj Tiwari on the two deceased Gauri Shankar Missir and Ganesh Missir and also regarding firing made by appellant Sri Bhagwan Singh leading to death of deceased Munilal Chamar. He has also supported the allegation against appellant Tarkeshwar Singh that his rifle shot caused injury oh the right hand of Gulzar Dusadh (PW 2). Against remaining appellants, Sri Kant Singh and Ram Pujan Singh there is only an omnibus and general allegation that they alongwith some of the acquitted accused remained standing and this category of accused allegedly had lathi-bhala in their hands. No overt act has been alleged against these two appellants. Against remaining appellants, Sri Kant Singh and Ram Pujan Singh there is only an omnibus and general allegation that they alongwith some of the acquitted accused remained standing and this category of accused allegedly had lathi-bhala in their hands. No overt act has been alleged against these two appellants. Only a general allegation has been levelled that all the remaining accused had exhorted to assault and had wielded lathi- bhala although in the Fardbeyan even such allegation is conspicuous by its absence. He has proved his signature on the Fard beyan and has asserted that the PO field was cultivated by Gauri Shankar Missir. This witness is from village Sonbarsa and has deposed that the deceased were from his village which is situated at a distance of 11/2 kms from village Barki Kothiya. He has clearly admitted in cross-examination that he visits the house of deceased Gauri Shankar Missir infrequently and has no knowledge about the litigations with Mahanth Tiwari over the PO land. He has admitted that he had been to the PO land only for the first time and cannot say its plot number or boundary. He has admitted that he does not know the fathers name of most of the accused persons and has not been to their houses. According to paragraph 42 of his deposition, the accused persons were at a distance of 2-4 steps at the time of firing. According to him, after 30-35 minutes of the occurrence Lal Saheb Mishra son of deceased Gauri Shankar Missir went from the village to inform the police at the police station and he also came to the place of occurrence alongwith the police at 9.00 a.m. This witness has identified the accused persons in dock and had denied the suggestion that he has given their names on the asking of others. 8. PW 2, Gulzar Dusadh has deposed in Court as an eye witness and has fully supported the allegation of assault by firearms against appellants Ramanuj Tiwari alias Bhutan Tiwari, Sri Bhagwan Singh and Tarkeshwar Singh as alleged in the Fardbeyan and also in deposition by PW 1. He has claimed that the shot fired by Tarkeshwar Singh caused injury in his hands due to which his hand was severed. He has claimed that the shot fired by Tarkeshwar Singh caused injury in his hands due to which his hand was severed. He has disclosed that on receiving injury he fell down unconscious and gained consciousness in Buxar Hospital and there only his statement was recorded by the police. He has claimed to be a ploughman of Gauri Shankar Missir and Ganesh Missir and according to him, the PO field had been cultivated by Gauri Shankar Missir. He has given the area of the PO field as 7 1/2 bigaha but has expressed his inability to give its plot number or boundary. In his chief this witness has stated that after the occurrence his hearing has been impaired and his vision is also diminished. In paragraph 15 of his cross-examination, he has admitted that prior to the occurrence he had no acquaintance with any of the accused and the names of the accused persons were disclosed to him in the hospital by chaukidar who was not present at the time of the alleged occurrence. 9. PW 3, Dr R.PJaiswal, held autopsy on the three dead bodies and also examined the injured Gulzar Dusadh (PW 2). From his evidence it is clear that deceased Gauri Shankar Missir had sustained a charred wound of entry on the right side of the back and a wound of exit on the left part of abdomen besides one blackened wound on right buttock. It is significant to note that the postmortem examination on the dead bodies was conducted on the date of occurrence itself and as appears from postmortem reports, the time was between 3.45 pm and 4.15 pm. On the person of deceased Munilal Chamar the doctor found one charred and blackened wound of entry on the left buttock and a wound of exit just below the umbilicus. On the dead body of deceased Ganesh Missir the doctor found one charred wound of entry on the left side of the chest and a wound of exit on the back lower portion at the posterior auxiliary line. The injuries on all the three dead bodies were by firearm and time since death.was estimated to be 12-24 hours. The doctor opined that death of the three deceased was caused due to injuries sustained by them. He had also found several injuries to internal organs and bones on the basis of dissection. The injuries on all the three dead bodies were by firearm and time since death.was estimated to be 12-24 hours. The doctor opined that death of the three deceased was caused due to injuries sustained by them. He had also found several injuries to internal organs and bones on the basis of dissection. He also claimed to have examined the injuries of Gulzar Dusadh on 28.3.1984 at about 8.15 am. His injury was a lacerated wound with amputation of right wrist joint hanging with under portion of the skin. Margin of skin was charred, ragged and irregular at both ends with laceration of all soft tissues of amputated portion with multiple fracture of corresponding bones. The injury was grievous caused by firearm and the age was within six hours. 10. PW 4, SI Suresh Prasad Singh, was the Officer Incharge of the Buxar (M) Police Station. He has deposed that he heard rumour of murder in village Kothiya and went to that village in Tari Badhar of Barki Kothiya. He recorded Fard beyan of Ram Nath Chamar and sent the same for recording of FIR and took up investigation. He inspected the place of occurrence and prepared the inquest report of the dead bodies of Gauri Shankar Missir, Ganesh Missir and Munilal Chamar. He found uprooted crop of Jaw Khesari scattered in the field. The three dead bodies were lying smeared with blood. Near the dead body of Gauri Shankar Missir and Munilal Chamar, he found empties of rifle shots and he seized both the empties and prepared a seizure list (Ext.5). He also seized blood stained earth, four bundles of crop and a Hasua (sickle) from near the place of occurrence as per Ext.5. He searched the house of appellant Tarkeshwar Singh and seized a belt for keeping ammunition vide Ext.5/1. He also seized a similar belt from the house of appellant Ramanuj Tiwari vide Ext. 5/2. He found witness Gulzar in an injured condition in hospital on the next date. He sent the dead bodies for postmortem examination and after completing investigation, submitted chargesheet. According to him, village Sonbarsa was approximately at a distance of 2 kms and village Barki Kothiya at a distance of 1 km from the place of occurrence. 11. 5/2. He found witness Gulzar in an injured condition in hospital on the next date. He sent the dead bodies for postmortem examination and after completing investigation, submitted chargesheet. According to him, village Sonbarsa was approximately at a distance of 2 kms and village Barki Kothiya at a distance of 1 km from the place of occurrence. 11. In cross-examination, PW 4 has stated that on rumour about marpit between villagers of Barki Kothiya and Sonbarsa he, had prepared SD entry no.460 dated 28.3.1984 and he entered the plot number of the place of occurrence in the case diary on learning the same during investigation which was disclosed by widow of Gauri Shankar Missir as Khata no.46 and Khesra No. 219. He also looked into papers of the parties. According to PW 4, PW 2, Gulzar Dusadh had not stated to him that in the capacity of ploughman of Gauri Shankar he had tilled the PO field or that Bhutan Tiwari had fired a gun causing injury in the chest of Gauri Shankar or Bhutan Tiwari again fired gun which hit Ganesh Missir. Attention of PW 2 had been drawn to such statements made by him and he claimed that he had made such statement to the IO. In respect of PW 1, Ram Nath Chamar, the IO has deposed that PW 1 had not stated to him that the accused coming from the west had Iathi-bhala in their hands or that Sri Bhagwan Singh, Ramanuj Tiwari and Tarkeshwar Singh made indiscriminate firings or that shot fired by accused Ramanuj hit the thigh of Gauri Shankar. But according to PW 4, PW 1 had stated that the shot had hit Gauri Shankar in the buttock. 12. On behalf of the appellants, it has been submitted that evidence of injured witness, Gulzar Chamar, PW 2, is of no help to the prosecution because he has admitted that he did not know the accused persons from before and their names were disclosed to him in the hospital by choukidar. It was further submitted that even if the evidence of the injured witness PW 2 is accepted in respect of the time, place and manner of occurrence, it is of no value so far as identification of the accused persons is concerned. It was further submitted that even if the evidence of the injured witness PW 2 is accepted in respect of the time, place and manner of occurrence, it is of no value so far as identification of the accused persons is concerned. Developing this argument further, it was submitted that on the point of identification the solitary evidence of informant Ram Nath Ram, PW 1, should not be accepted as sufficient because he is from a different village and has admitted that he knew only the parentage of accused Ramanuj Tiwari and not of other accused persons whereas in the Fardbeyan the parentage of all the accused persons has been mentioned which could not have been in the knowledge of PW 1 and, therefore, had been furnished on the promptings of other persons. The aforesaid submission is partly correct inasmuch as PW 2, Gulzar Dusadh, cannot be relied upon for the purpose of identification of the accused persons. However, his evidence on the point of cultivation of the PO field by and on behalf of deceased Gauri Shankar Missir and also in respect of the time , place and manner of occurrence cannot be ignored. On these particulars, PW 2 has supported the prosecution case to a large extent. While appreciating the evidence of PW 2, it has to be kept in mind that in a very short span of time the firing by the accused persons was over and this witness sustained a grievous injury on account of which he fell unconscious. Hence, he cannot be expected to pay attention to the details of assault and injury upon the deceased persons but he is consistent in his deposition that he saw accused Ramanuj Tiwari firing at Gauri Shankar Missir and Sri Bhagwan Singh firing at Munilal Chamar even if one keeps in mind the contradiction elicited by the defence in respect of his statement made before the IO in course of investigation. Similarly, he is consistent in stating that shot fired by appellant Tarkeshwar Singh caused injury in his hand. 13. It remains to be seen whether the evidence of PW 1, Ram Nath Ram can be relied in respect of the accused persons, particularly appellants Ramanuj Tiwari, Sri Bhagwan Singh and Tarkeshwar Singh, who allegedly fired and caused injuries and were prominent among the accused persons as these three only carried firearms. 13. It remains to be seen whether the evidence of PW 1, Ram Nath Ram can be relied in respect of the accused persons, particularly appellants Ramanuj Tiwari, Sri Bhagwan Singh and Tarkeshwar Singh, who allegedly fired and caused injuries and were prominent among the accused persons as these three only carried firearms. Even at the cost of some repetition it needs to be highlighted that PW 1 is son of one of the deceased, Munilal Chamar. He has no litigation or property dispute with the accused persons and hence, he cannot be treated as an interested or inimical witness. As a close relation of one of the deceased he is expected to be interested in naming the actual assailants of the deceased and not in false implication of innocent persons. Although he is from village Sonbarsa but his deposition shows that he is not much concerned with the affairs of other two deceased Gauri Shankar Missir and Ganesh Missir. He is truthful to the extent that in his Fardbeyan itself he has indicated that he personally knew the names of only six persons including five appellants and name of some others were disclosed to him by some other labourers engaged in harvesting in the PO field. Since the history of previous litigation over the PO field was not in his personal knowledge, he admitted in the Fardbeyan that he had known those details from deceased Gauri Shankar Missir and later in Court he refrained from deposing regarding those facts which appear to be correct even from the documents filed as exhibits on behalf of the prosecution as well as from the defence. His claim in Court that he can identify all the accused persons has not been challenged by the defence. From paragraph 22 of deposition of this witness, it transpires that he passed matriculation examination in the year 1981 at the age of 17-18 years and he runs a cycle repair shop in Sonbarsa Bazar. On a careful appraisal of his evidence it is found that this witness is a natural, honest and truthful witness. From paragraph 22 of deposition of this witness, it transpires that he passed matriculation examination in the year 1981 at the age of 17-18 years and he runs a cycle repair shop in Sonbarsa Bazar. On a careful appraisal of his evidence it is found that this witness is a natural, honest and truthful witness. Since he was present at the place of occurrence and claimed to have seen the entire occurrence with his own eyes, the police appears to have preferred him for recording his Fardbeyan as the informant in this case although, as disclosed by this witness even the son of deceased Gauri Shankar Missir had arrived at the place of occurrence along-with the police. 14. On a careful perusal of the evidence of PW 2, Gulzar Dusadh, it is found that he is also a truthful witness who is a rustic villager and has no hesitation in admitting that he became unconscious after receiving injury in his hand and the names of the accused persons was supplied to him by the choukidar on the next day of the occurrence. Clearly by that time the FIR had been lodged and names of the accused persons had become common knowledge especially for a choukidar. PW 2 cannot be treated as a witness who had himself identified the accused persons but besides identification rest of the details given by this witness fully support the prosecution case and the presence of this witness at the time of occurrence cannot be doubted in view of his having sustained a grievous injury proved by the doctor, PW.3. 15. On behalf of the appellants it was strenuously argued that the prosecution case regarding identification of the appellants as persons who participated in the alleged occurrence should not be believed on the basis of the evidence of solitary witness on that point i.e. PW 1. The law is well settled that it is not the quantity but the quality of evidence which is material to prove a criminal charge. Keeping this principle in mind, the evidence of PW 1 has been subjected to careful scrutiny and appraisal and on that basis, as recorded earlier, he has been found truthful and reliable. Hence, I have no hesitation in holding that on the basis of evidence of PW 1, prosecution has succeeded in identifying the appellants to be among the miscreants who participated in the alleged occurrence. Hence, I have no hesitation in holding that on the basis of evidence of PW 1, prosecution has succeeded in identifying the appellants to be among the miscreants who participated in the alleged occurrence. The names of the appellants had been disclosed by PW 1 in his Fardbeyan also, the earliest version of the occurrence. Reliability and truthfulness of PW 1 as a witness is further strengthened by the fact that the manner of occurrence given by him is amply supported by the medical evidence of PW 3 and the place of occurrence is also corroborated by the evidence of the investigating officer, PW 4. 16. Since the allegation against the appellants levelled by the prosecution have been found acceptable as per discussion made above, it is now necessary to consider the alternative plea on behalf of the defence that there is no evidence to show that the PO field had been in possession of the prosecution party and that the deceased persons could have been killed on account of exercise of right of private defence of property. No doubt, an accused is not required to prove a plea of private defence of person or property to the hilt and beyond all reasonable doubt. For defence, it is sufficient if the facts and circumstances on record create a reasonable doubt that the occurrence might have taken place in somewhat different circumstances wherein the accused had to act in defence of person or property. Keeping in view the aforesaid principle it is to be examined and found whether the facts and circumstances brought on record in this case create any reasonable doubt that the accused persons naight have caused the occurrence acting in exercise of right of private defence of property or person or not. Since there is no injury on the side of the defence and no counter case has been lodged to that effect, the right of private defence requiring scrutiny in this case is only of property and not of person. When the property shown to be under some dispute is an agricultural field having crops grown over it, the most important issue is of possession and availability of evidence as to who had grown the crop whose harvesting led to commission of a criminal offence. 17. In this case the facts and circumstances relevant for the aforesaid issue need to be carefully examined. 17. In this case the facts and circumstances relevant for the aforesaid issue need to be carefully examined. PW 1, the informant, has disclosed in the Fardbeyan that from deceased Gauri Shankar Missir he had come to know that since succeeding before the consolidation authorities Gauri Shankar Missir had been cultivating and harvesting crops over the PO field. In Court, PW 1 has simply stated that he alongwith 25-30 other persons had gone for the work of harvesting in the field of Gauri Shankar Missir and Ganesh Missir which had been tilled and cultivated by them. PW 2, Gulzar Dusadh has claimed to be a ploughman of Gauri Shankar Missir and Ganesh Missir and has further claimed that he had in such capacity tilled the PO field. He has clearly stated that he had started working as such ploughman since 5-6 years. He has been able to give the area of the PO field which a ploughman is supposed to know but since the field was situated in another village, he could not give its boundary. From his evidence it has further come that besides PO field Gauri Shankar Missir had 10-11 bighas more land. On behalf of the appellants it was submitted that according to evidence of the IO, PW 4, PW 2 had not stated before the IO that in the capacity of a ploughman he had tilled PO field. This fact was not a material fact for PW 2 at the initial stage when he was examined by the police in respect of the occurrence in which three persons had lost their lives and this witness had sustained amputation in right hand, a grievous injury. Only if this fact would have been material at that stage, it could have been treated as a contradiction under sec. 162 of the Code of Criminal Procedure. All omissions are not contradictions. On this point reference may be made to judgment of the Supreme Court in the case of Shashi Purandher Hegde, AIR 2004 SC 5075 . The proviso to Sec. 162 (i) is clear in permitting use of statement recorded by the police, if duly proved, only to contradict such witness in the manner provided by Sec. 145 of the Indian Evidence Act which requires drawing the attention of the witness to his previous statement by way of cross-examination. The proviso to Sec. 162 (i) is clear in permitting use of statement recorded by the police, if duly proved, only to contradict such witness in the manner provided by Sec. 145 of the Indian Evidence Act which requires drawing the attention of the witness to his previous statement by way of cross-examination. From the evidence of the IO in this case it is clear that this witness had merely omitted to say about his ploughing the PO field and had not made any contradictory statement. As pointed out earlier, the omission, in the facts of the case, was not of a material fact and, therefore, cannot amount to a contradiction and cannot discredit PW 2 in respect of his claim of ploughing the PO field. 18. Besides the aforesaid oral evidence adduced on behalf of the prosecution to show cultivating possession of deceased Gauri Shankar Missir and Ganesh Missir over the PO field, a perusal of various judgments and orders marked as Exhibits A and A/1 produced on behalf of the defence and the judgments and orders brought on record by the prosecution as Exhibits 7, 7/A and 8 show that by order contained in Ext.A dated 1.8.1988 the Deputy Director of Consolidation, Bhojpur allowed the appeal of Mahanth Tiwari one of the accused against order of Consolidation Officer dated 28.7.1981 in favour of Gauri Shankar Missir. But by order dated 28.4.2000 passed by Deputy Director of Consolidation (Ext.7/A) the orders in favour of accused Mahanth Tiwari were set aside and the order of the Consolidation Officer in favour of Gauri Shankar Missir dated 28.7.1981 (Ext.7) was maintained. The orders in Ext.7 and 7/A show that the Consolidation Officer, Buxar, about three years prior to the alleged occurrence had accepted the case of Gauri Shankar Missir and had ordered for correcting the wrong survey entry in the name of Mahanth Tiwari by deleting his name and replacing it with the name of Gauri Shankar Missir. Those orders show that claim of Gauri Shankar Missir was based upon a registered deed of gift dated 24.10.1945 by Most. Pavitri Kunwar in favour of deceased Gauri Shankar Missir and the Consolidation Officer found that the said deed of gift had been acted upon and never challenged by anyone and on that basis rent receipts had been issued by the ex-landlord as well as the State of Bihar. Pavitri Kunwar in favour of deceased Gauri Shankar Missir and the Consolidation Officer found that the said deed of gift had been acted upon and never challenged by anyone and on that basis rent receipts had been issued by the ex-landlord as well as the State of Bihar. From the order dated 23.9.1986 of Commissioner, Patna Division in Mutation Appeal Case No.54 of 1985, Ext.8, it is clear that in mutation proceedings between the parties the claim of Gauri Shankar Missir was accepted by the Anchal Adhikah, Buxar vide his order dated 5.5.1982 and though this order was set aside by the DCLR, Buxar by appellate order dated 29.10.1983 (Ext.A/1) but this order dated 29.10.1983 was set aside by learned Additional Collector, Bhojpur by order dated 31.1.1985. Against that accused Mahanth Tiwari preferred Revision case no.54 of 1985 but the revision petition was dismissed by judgment and order dated 23.9.1986 (Ext.8). Thus, it is clear that before the initial authorities of mutation as well as consolidation Gauri Shankar Missir had succeeded in the year 1982 and 1981 i.e. before the alleged occurrence and ultimately he or his heirs finally succeeded in both the proceedings as per orders contained in Ext. 7/A and 8. In view of the relevant documentary evidence also, as discussed above, it is found that the PO field was in cultivating possession of deceased Gauri Shankar Missir and he had cultivated and grown the crop which was being harvested on the date of the alleged occurrence. 19. In fact, Defence Exhibits A/2, A/ 3 and B show that prior to proceeding before Consolidation authorities, Gauri Shankar Missir had .filed Title Suit No.72 of 1971 in which he got an ex parte decree and delivery of possession over the disputed land and although ex parte decree was set aside but there is no document to show that any further delivery of possession was effected by way of restitution. The title suit appears to have abated under sec. 4© of the Consolidation Act and thereafter Gauri Shankar Missir or his heirs succeeded in Consolidation proceeding initially on 28.7.1981 (Ext.7) and finally on 28.4.2000 (Ext.7/A). 20. The title suit appears to have abated under sec. 4© of the Consolidation Act and thereafter Gauri Shankar Missir or his heirs succeeded in Consolidation proceeding initially on 28.7.1981 (Ext.7) and finally on 28.4.2000 (Ext.7/A). 20. Even the circumstance that none of the deceased or their 25-30 labourers were carrying any weapons and nobody was injured on the side of the accused is a strong indicator of the fact that Gauri Shankar Missir and Ganesh Missir had not proceeded to take forceful possession over the PO field and the prosecution version that they had gone to harvest the crop of their field appears quite natural and reasonable. Nobody in his senses would go to another village to take forceful possession of a big field measuring about 7 1/2 bigahs without carrying arms so as to lose three lives. 21. Thus, on consideration of the relevant materials it is found that the defence has not succeeded in creating even a reasonable doubt that they might have assaulted the deceased and the injured persons of this case in exercise of right of private defence of property. The manner in which the occurrence was committed shows pre-determination because the accused persons carrying firearms not only started firing after reaching to the PO field killing as many as three persons and grievously injuring PW 2, the manner in which second shot was fired upon Gauri Shankar Missir by Ramanuj Tiwari while the former was lying in injured condition shows predetermination on the part of accused persons to prevent Gauri Shankar Missir and others from harvesting their field by any means. 22. In view of aforesaid discussions and findings there is no difficulty in holding the two appellants, Ramanuj Tiwari and Sri Bhagwan Singh guilty of the offence under section 302 read with Sec. 149 of the IPC as well as under the Arms Act, as found by the trial court. Similarly, in view of the fact that appellant Tarkeshwar Singh was also armed with a rifle and he also fired causing grievous injury to PW 2, there is no difficulty in holding him a member of the unlawful assembly, some members of which in prosecution of the common object committed murder of the three deceased persons. Clearly his firing caused grievous injury to PW 2 and hence, in his case also the charge under sec. Clearly his firing caused grievous injury to PW 2 and hence, in his case also the charge under sec. 302/149 and 307 IPC are successfully proved and also the charge under sec. 27 of the Arms Act, as held by the trial court. The sentences awarded to these three appellants are reasonable and require no interference. 23. So far as appellant Sri Kant Singh and Ram Pujan Singh of Cr.Appeal No.421 of 2002 are concerned, it is found that there is no specific allegation that they had lathi or bhala in their hands and that they committed any overt act. It is further found that they remained with other persons who have been acquitted and were merely standing and watching the occurrence. In such circumstances, it is not found safe to hold that they were members of the unlawful assembly and were sharing the common object of that assembly. Reasonable doubt arises in their case that they may not be a member of the unlawful assembly and may have been innocent or curious passersby. Lathi is a weapon which is commonly carried by the villagers in many areas when they go towards their agriculture field. Hence, appellant Sri Kant Singh and Ram Pujan Singh are given benefit of doubt and acquitted of the charge under sec. 302/149 of the IPC for which they were convicted by the trial court. Hence, their appeal stands allowed. They are discharged from liability of their bail bonds. As discussed above, the appeals of Tarkeshwar Singh (Cr.Appeal no.459/2002) and of Ramanuj Tiwari and Sri Bhagwan Singh (Cr.Appeal No.505/2002) are found to be without merit and are accordingly dismissed. Since the appellant, Tarkeshwar Singh is on bail, his bail bonds are cancelled and he is directed to be taken into custody forthwith to serve out the remaining sentence in accordance with law. Dharnidhar Jha, J. 24 I agree.