JUDGMENT Om Prakash-VII, J.: - This criminal appeal has been filed by the appellants against the judgment and order dated 01.05.1986 passed by Special Judge, Basti in Sessions Trial No. 273 of 1982 (State Versus Acharaj Nath & Others) and in Sessions Trial No.44 of 1983 (State Versus Krishan Nath alias Ram Krishna Pathak) whereby the appellants Acharaj Nath, Thunni Lal alias Dinanath, Bansh Bahadur, Subhag Koiri and Krishan Nath alias Ram Krishna Pathak were convicted for the offence under Section 148 I.P.C. and each of appellants was sentenced to undergo 1 year rigorous imprisonment and appellants Bhawnath, Jagarnath, Sant Ram, Ajore Pathak, Ghurey Koiri and Shatrughan were convicted for the offence under Section 147 IPC and each of them was sentenced to undergo rigorous imprisonment for six months. Further, all the appellants were convicted for the offence under Sections 302 read with 149 IPC and each of them was sentenced to life imprisonment. They were also found guilty for the offences punishable under Sections 307 read with 149 IPC, Sections 326 read with 149 IPC, Sections 324 read with 149 IPC and Sections 323 read with 149 IPC and were awarded 7 years rigorous imprisonment under Sections 307 read with 149 IPC, 2 years rigorous imprisonment under Sections 326 read with 149 IPC, 1 year rigorous imprisonment under Sections 324 read with 149 IPC and 3 months rigorous imprisonment under Sections 323 read with 149 IPC. 2. All the substantive sentences were directed to be run concurrently. 3. The prosecution story, as unfolded in the F.I.R., is that the incident took place on 11.04.1982 at about 8: 00 a.m. in the disputed field in village Panchmohini, P.S. Bansi, District Basti. 4. The informant Adalti S/o Khunno Kewat R/o village Phulwapur, P.S. Bansi, District Basti lodged the first information report (Ex.Ka.28) on 11.04.1982 at 11: 25 a.m. at P.S. Bansi, District Basti with the fact that litigation between the informant, his pattidars and accused Acharaj Nath were going on regarding the land in question. On 11.04.1982 at about 8: 00 a.m., accused Krishna Nath, Acharaj Nath, Jagarnath, Thunni Lal, Sant Ram, Arjun, Ajore Pathak, Bhullur Pathak, Bansh Bahadur of village Panchmohini and accused Subhag, Ghurey Koiri and Shatrughan of village Khadara, P.S. Bansi District Basti were cutting the wheat crop sown by the informant and his pattidars in the disputed field. On 11.04.1982 at about 8: 00 a.m., accused Krishna Nath, Acharaj Nath, Jagarnath, Thunni Lal, Sant Ram, Arjun, Ajore Pathak, Bhullur Pathak, Bansh Bahadur of village Panchmohini and accused Subhag, Ghurey Koiri and Shatrughan of village Khadara, P.S. Bansi District Basti were cutting the wheat crop sown by the informant and his pattidars in the disputed field. The informant along with his pattidars Chhotkan, Narain, Bhuwal, Ram Sanware and Pancham of village Phulwapur went to the field and asked the accused persons not to do so, but they did not pay heed and threatened the informant and his companions to kill. The informant and his fellow members again and again tried to stop the accused persons from cutting the crop, but they did not stop. An altercation took place between them and thereafter accused Krishna Nath armed with gun, Acharaj Nath and Dinanath armed with farsa, Bansh Bahadur and Subhag armed with spear and other accused armed with lathis assaulted the informant and his companions with their respective weapons. Accused Krishna Nath fired three gunshots which hit Bhuwal and Chhotkan. The informant and his fellow members sustained farsa, spear and lathi injuries. On alarm being raised, Kuber Pathak, Ram Khelawan, Bhagauti and so many other persons came there and saw the occurrence. On seeing the gathering of people, the accused persons ran away towards the village. All the injured were carried on cot by Ram Lakhan, Triloki Prasad, Suggi Lal, Narsing, Parasuram, Ganesh, Vishram, Gangadeen, Gunel and Bajrangi of the same village to the police station, but Bhuwal and Chhotkan were succumbed to their injuries on the way. 5. Chik FIR (Ex.Ka.28) was lodged on 11.4.1982 at P.S. Bansi at case crime no.99 of 1982 under Sections 147, 148, 149, 302, 307, 323, 324 IPC on the basis of written report Ex. Ka.1 against the appellants and two other accused. G.D. Entry was also made in the relevant register. 6. The investigating officer of P.S. Bansi started the investigation. He inspected the place of occurrence, prepared site plan (Ex.Ka.24) and samples of blood stained and plain earth (Ex.Ka.26 & 27) were lifted from the spot. He also prepared fard recovery of tikali, which is Ex.Ka.25. The inquest reports of the deceased Bhuwal and Chhotkan have also been prepared, which are Ex.Ka.14 and 19 respectively. He inspected the place of occurrence, prepared site plan (Ex.Ka.24) and samples of blood stained and plain earth (Ex.Ka.26 & 27) were lifted from the spot. He also prepared fard recovery of tikali, which is Ex.Ka.25. The inquest reports of the deceased Bhuwal and Chhotkan have also been prepared, which are Ex.Ka.14 and 19 respectively. Other police papers have also been prepared at the time of preparing the inquest report for conducting the postmortem. 7. Injured Adalti, Ram Sawanre, Narain and Pancham have been medically examined on 11.04.1982 at the respective time mentioned in the injury reports which are Ex.Ka.4 to Ex.Ka.7 by Incharge Medical Officer Dr. B.K. Srivastava (P.W.8) at P.H.C., Bansi. 8. Autopsy on the body of deceased Chhotkan was performed on 12.04.1982 at 4: 15 p.m. by Dr. G.N. Lal (P.W.7). The following ante mortem injuries were noted by the doctor in postmortem report Ex.Ka.2 : (i) Incised wound 10 cm. x 2 cm. x bone deep on the top of head, 15 cm. above the left ear. (ii) Incised wound 8 cm. x 2 cm. x bone deep across the injury no.(i). (iii) Incised wound 6 cm. x 2 cm. x bone deep 1 cm. below injury no.(i). (iv) Incised wound 6 cm. x 2 cm. x bone deep 2 cm. Below injury no.(iii). (v) Contusion 9 cm. x 5 cm. on the right shoulder with fraction of clavicle and scapular neck. (vi) Contusion 11 cm. x 4 cm. on the right side chest. (vii) Incised wound 3 cm. x 3 cm. on the left elbow x bone deep, fracture of right clavicle and scapular. 9. Dr. G.N. Lal (P.W.7) also performed autopsy on the body of deceased Bhuwal on 12.04.1982 at 5: 00 p.m. and the following ante mortem injuries were noted by the him in postmortem report Ex.Ka.3 : (i) Gunshot wound 1 cm. x 1 cm. x cavity deep on the right shoulder with a cliver of blackening on the margin. (ii) Gunshot wound 1 cm. x 1 cm. x cavity deep on the right side neck. (iii) Four gunshot wounds each measuring 1 cm. x 1 cm. x cavity deep with a cliver of blackening on its margins with dispersal in area of. (iv) Blast injury 10 cm. x 8 cm. x cavity deep with complete absence of skin and loop of intestines is coming out. (v) Gunshot wound 1 cm. (iii) Four gunshot wounds each measuring 1 cm. x 1 cm. x cavity deep with a cliver of blackening on its margins with dispersal in area of. (iv) Blast injury 10 cm. x 8 cm. x cavity deep with complete absence of skin and loop of intestines is coming out. (v) Gunshot wound 1 cm. X 1 cm. on the left elbow. 10. P.W.8 Dr. B.K. Srivastava found following injuries on the person of Adalti (P.W.1) : (i) Incised wound 5 cm. x 1 cm. x bone deep on the left side of head anterior posterior 10.5 cm. above the left ear 14 cm. From the outer angle of left eye. Oozing of blood present. (ii) Contusion 8 cm. x 1.5 cm. on the right scapula oblique in middle red. (iii) Punctured wound 1 cm. x 0.5 cm. x bone deep on the back of right forearm 1.5 cm. below the elbow joint vertical oozing of blood present. (iv) Multiple contusion in an area of 7 cm. x 7 cm. On the back of right elbow joint and upper part of right forearm red. Diffuse swelling present, kept under observation. Adv. X-ray. 11. He found following injuries on the person of Ram Sawanre : (i) Lacerated wound 3 cm. x .5 cm. x bone deep on the part of the head transverse 1 cm. Right to middle 7.5 cm. Above right eyebrow, oozing of blood present. (ii) Lacerated wound 2 cm. x .5 cm. x .5 cm. on the back of head oblique 1 cm. right to middle 11 cm. from the right ear, oozing of blood present, diffuse swelling present. (iii) Contusion 2 cm. x 1 cm. on the outer aspect of right shoulder joint. Red oblique. (iv) Punctured wound 2 cm. X 1 cm. X chest cavity deep on the right side of chest transverse 6 cm. medial to right nipple. Oozing of blood present. Kept under observation. Ref. To Distt. Hospital. 12. Injured Narain was also examined by P.W.8 Dr. B.K. Srivastava, who found following injuries on the person of Narain: (i) Incised wound 3 cm. x .5 cm. x bone deep on the right side of head oblique 8 cm. above the right ear 8.5 cm. from the outer angle of right eye. Oozing of blood present. (ii) Lacerated wound 2 cm. x .5 cm. B.K. Srivastava, who found following injuries on the person of Narain: (i) Incised wound 3 cm. x .5 cm. x bone deep on the right side of head oblique 8 cm. above the right ear 8.5 cm. from the outer angle of right eye. Oozing of blood present. (ii) Lacerated wound 2 cm. x .5 cm. x bone deep on the back of head in middle 14 cm. from the right ear. Oozing of blood present. (iii) Contusion 3 cm. x 1 cm. on the right scapula oblique in the middle of medial border of scapula. Red. (iv) Contusion 3.5 cm. x 1 cm. on the outer aspect of right leg oblique in middle red. 13. Dr. B.K. Srivastava also found following injuries on the person of injured Pancham : (i) Lacerated wound 2 cm. x .5 cm. x .5 cm. on the left side of head anterior posterior 10 cm. above the left year 14 cm. From the outer angle of left eye oozing present diffuse swelling around. (ii) Incised wound 6 cm. x 2 cm. x bone deep on the left shoulder oblique starting from shoulder joint running medially and backward. Cutting the lateral end of clavicle. Oozing present, directed laterally. (iii) Contusion 3.5 cm. x 1 cm. on the back of left elbow joint oblique. Red. (iv) Contusion 4 cm. x 1 cm. on the outer aspect of right leg oblique in middle red. 14. Prosecution has also filed chemical examination reports Ex.Ka. 30 & 31. 15. The investigating officer after investigation submitted charge-sheet Ex.Ka.12 & 13 against all the accused named in the F.I.R. 16. The Magistrate concerned committed the case for trial before the Sessions Judge concerned. Thereupon, the accused-persons appeared and charges were framed against them. 17. Charge was framed against accused Acharaj Nath, Dinanath, Bansh Bahadur, Subhag Koiri and Krishan Nath under Section 148 IPC and rest of the accused were charged for the offence under Section 147 IPC. All the accused were charged for the offence under Sections 302 read with 149 IPC for committing the murder of Chhotkan and Bhuwal. They were also charged for the offences committed by them under Sections 307 read with 149 IPC, Sections 326 read with 149 IPC, Sections 324 read with 149 IPC and Sections 323 read with 149 IPC. 18. The appellants pleaded not guilty and claimed to be tried. 19. They were also charged for the offences committed by them under Sections 307 read with 149 IPC, Sections 326 read with 149 IPC, Sections 324 read with 149 IPC and Sections 323 read with 149 IPC. 18. The appellants pleaded not guilty and claimed to be tried. 19. The prosecution, to prove the charges, has examined P.W. 1 Adalti, P.W.2 Shiv Saran, P.W.3 Narain, P.W.4 Bhagauti, P.W.5 Satish Chandra Khare, P.W.6 Triloki Singh, P.W.7 Dr. G.N. Lal, P.W.8 Dr. B.K. Srivastava, Medical Officer, P.W.9 S.I. Paras Nath Singh, P.W.10 Raj Kumar Singh, P.W.11 S.I. Atma Ram Dubey, P.W.12 Head Moharrir Ram Vriksh Ram. 20. Prosecution has also filed documentary evidence Ex.Ka.8 to Ex.Ka.10 showing the possession and ownership of the disputed land. 21. After prosecution evidence, the accused persons were examined by the trial court under section 313 Cr.P.C. 22. Accused Ram Krishna has denied the prosecution story. He has specifically stated that he does not know anything about the incident. Police have submitted the charge-sheet falsely. Specific statement under section 313 Cr.P.C. has been made by this accused that on the date of incident, he was posted at Allahabad in 229 Division LOC Battalion and was on duty and the gun belonging to this accused had been deposited in the malkhana. Thus, specific plea of alibi has been taken by this accused. 23. Accused Bhawnath has also denied the prosecution story and has specifically stated that plot no.254 was in their possession. Proceedings under section 145 Cr.P.C. were also decided in their favour. On the date of incident, the deceased and other persons, at about 4: 00 to 5: 00 a.m., were cutting the crop with the intention to steal the crop. When this accused and Acharaj Nath objected them, the informant side beat them. When they raised alarm, many persons gathered there and beat them, yet they stole the wheat crop. 24. The same fact has been stated by accused Acharaj Nath, Jagarnath, Shatrughan, Bansh Bahadur, Sant Ram, Ram Ajore, Ram Subhag, Bhurey and Dinanath. 25. Appellants in their defense have examined D.W.1 Hawaldar Gopal Singh, Artillery Training Centre, Hyderabad, D.W.2 Hawaldar Babu Singh, D.W.3 Dr. G.P. Agarwal, D.W.4 Constable Uday Shanker Mishra. 26. In documentary evidence, they have filed before the trial Court injury reports, extract of khasra & khatauni, charge sheet of case no.29/83 State Vs. 25. Appellants in their defense have examined D.W.1 Hawaldar Gopal Singh, Artillery Training Centre, Hyderabad, D.W.2 Hawaldar Babu Singh, D.W.3 Dr. G.P. Agarwal, D.W.4 Constable Uday Shanker Mishra. 26. In documentary evidence, they have filed before the trial Court injury reports, extract of khasra & khatauni, charge sheet of case no.29/83 State Vs. Adalti, judgment and order dated 18.12.1981 passed in the proceedings u/s 145 Cr.P.C. by Sub Divisional Magistrate, Bansi, order passed in criminal revision no. 104 of 1982 Bharat Vs. State before the Sessions Judge, Basti, order dated 11.11.1982 passed by Sessions Judge in criminal revision no.209 of 1982. 27. We have heard Sri Apul Mishra alongwith Sri Dinesh Kumar Chaubey, learned counsel for the appellants, learned counsel for the complainant as well as Sri Vimlendu Tripathi, learned A.G.A. for the State and perused the entire records. 28. Learned counsel for the appellants has submitted that it has become clear that appellants were in possession over the disputed plot. Informant side were cutting away the crop with intention to steal the crop, when accused side objected, they beat them. On raising alarm, many persons gathered there and did marpeet with the informant side. It has further been submitted that accused-appellants had right of private defence, as is clear from the impugned judgment and order itself. There was eminent dangerpprehension in the mind of the appellants that informant side would cause death or such bodily injury which was likely to cause death or grievous injuries of the appellants' side. Therefore, the conclusion taken by the trial Court that appellants-accused side have exceeded the right available to them is wrong. If the informant side were cutting away the crop of the appellants and they were checked by the appellants and also the informant side caused injuries, then this fact indicates that there was apprehension in the mind of the appellants that informant side would cause death or such bodily injury likely to cause death or grievous injuries of the appellants side, thus it can easily be assumed in the facts and circumstances of the case that appellants have not exceeded the right of private defense available to them. 29. It has further been argued by learned counsel for the appellants that the witnesses examined by the prosecution are not independent witnesses. Medical evidence also does not support the prosecution story. 29. It has further been argued by learned counsel for the appellants that the witnesses examined by the prosecution are not independent witnesses. Medical evidence also does not support the prosecution story. Referring the injury no.4 shown in the postmortem report of deceased Bhuwal, it has been argued that prosecution has not established that under what circumstances this blast injury has occurred when no such type of weapon has been used or assigned to any of the appellants. 30. Motive part has also not been established by the prosecution. Appellant Krishan Nath was not present on the spot. He was on duty. He has been wrongly implicated in this case. At this stage, learned counsel for the appellants referred the statements of defence witnesses. Prosecution has also not been able to establish the place, time and manner of the occurrence beyond reasonable doubt. 31. On the other hand, learned counsel for the complainant as well as learned A.G.A. have argued that the complainant side was in possession over the disputed land. Accused persons were cutting the crop at the date and time mentioned in the first information report. When informant side objected them, the appellants-accused have caused injuries to them resultantly two persons died and four persons sustained injuries. There is no question of right of private defence in favour of the appellants because they were not in possession over the disputed property. Blast injury may be occurred with the weapon used in the crime. Reference was made of the statement of Doctor B.K. Srivastava (P.W.8). It has further been argued that the investigating officer of this case tried to collect the evidence in regard to the plea taken by the appellant Krishan Nath, but no cooperation was extended on the part of the Army Officials. If the gun owned by the appellant Krishan Nath had not been used in the said crime, it must have been handed over to the investigating officer for chemical examination. The conclusion arrived at by the trial Court in regard to plea of alibi is in accordance with fact and law. If the gun owned by the appellant Krishan Nath had not been used in the said crime, it must have been handed over to the investigating officer for chemical examination. The conclusion arrived at by the trial Court in regard to plea of alibi is in accordance with fact and law. If, for the sake of arguments, the conclusion of the trial Court that appellants-accused were in possession over the disputed property be taken into consideration, then also appellants-accused had no right of private defence to cause death or such bodily injuries, which have been caused to the deceased and injured in the present case. Right of private defense exercised by the appellants is not in proportionate to the apprehension. 32. Learned counsel for the appellants has placed reliance on the following decisions : (i) Subramani & Others Versus State of Tamil Nadu reported in 2002 (3) ACR 2786 (SC) and; (ii) Janak Singh & Others Versus State of U.P. reported in 2013 (83) ACC 232. 33. We have carefully gone through the entire evidence/record, judgment and order passed by the trial court and the law laid down in the above-mentioned cases. 34. It is an admitted fact between the parties that litigations regarding the property in dispute was going on since long time. Proceedings under section 145 Cr.P.C. has also been ended in favour of the appellants. 35. As per defence version, appellant Krishan Nath had proceeded on leave from his duty on 7.4.1982 along with the S.B.B.L. Gun and had returned on duty on 9.4.1982 and he had also deposited his gun in the malkhana. 36. In this matter, first information report is lodged on the same day after few hours of the incident at police station concerned by P.W.1 Adalti. Two persons have been done to death and four persons are said to have been received injuries. Looking to the time of incident and distance between the police station and the place of occurrence, the time taken in lodging the first information report is probable. As far as place of occurrence is concerned, defence version is that local people have gathered on alarm and have beaten the informant side and prosecution case is that when they objected the accused persons from cutting away the crop, the accused persons have assaulted them. As far as place of occurrence is concerned, defence version is that local people have gathered on alarm and have beaten the informant side and prosecution case is that when they objected the accused persons from cutting away the crop, the accused persons have assaulted them. Thus, from the version taken by both the sides, place of occurrence is the same as has been described by the witnesses examined by the prosecution. 37. So far as the time of incident is concerned, defence version is that prosecution side were cutting away the crop either in the night or in the day and local people, on alarm, gathered there and beat them. Apart of this, prosecution has clearly put their case that at the time mentioned in the first information report when the accused-appellants were cutting away the crop, deceased and the injured witnesses came there and objected them, then accused appellants assaulted them with the deadly weapon and done to death to Chhotkan and Bhuwal and also caused injuries to other persons. On perusal of the trial court judgment, it is clear that trial court has found that accused-appellants were in possession over the disputed property and prosecution side were cutting away the crop, but the right of private defence available to the appellants were exercised exceeding the rights. 38. Prosecution has not filed any appeal or cross-objection to challenge the finding of the trial Court regarding possession of the accused-appellants over the disputed property and also finding of the lower court that prosecution side were cutting away the crop. Thus argument advanced by the learned counsel for the complainant is of no value. 39. As far as the motive part is concerned, when there are direct and ocular evidence, it is settled position that motive looses its importance, but at the same time, importance of the motive in such type of matter cannot be entirely ignored. As has been mentioned above there was a long pending dispute regarding possession and ownership of the disputed property between the parties and due to that fact, present occurrence is said to have been occurred. This motive part in the present matter has been taken by both the parties. As has been mentioned above there was a long pending dispute regarding possession and ownership of the disputed property between the parties and due to that fact, present occurrence is said to have been occurred. This motive part in the present matter has been taken by both the parties. Therefore, the finding arrived at by the trial Court regarding other part as to plea of alibi, injuries found on the body of the deceased, offences proved against each accused and also the plea taken by the defence have to be seen. 40. Learned counsel for the appellants vehemently argued that injury no.4 found on the person of the deceased Bhuwal is blast injury, which cannot be caused by the weapon assigned to the accused-appellants. Apart of this, learned counsel for the appellants have drawn the attention of the Court towards other injuries found on the body of the deceased at the time of postmortem and also the injuries shown in the injury reports of the injured. 41. P.W.7. Dr. G.N. Lal, who had prepared the postmortem report of deceased Bhuwal, has clearly stated before the Court that injury no.4 may be caused by firearm from the side. 42. Defence version is that only S.B.B.L. Gun is assigned with the accused Krishan Nath and as per statement of P.W.7, during cross-examination, there was a possibility that injury no.4 found on the dead body of the deceased Bhuwal might have been caused by explosive substance. 43. In the facts and circumstances of the case and after comparing the evidence available on record with the arguments advanced by learned counsel for the defence, the statement of P.W.7 Dr. G.N. Lal that injury no.4 can be caused by the appellant with the gun from the side of the deceased, thus involvement of the firearm said to have been used in committing the present offence cannot be ruled out and on this score, it cannot be said that prosecution version is not believable. Incident is said to have been occurred on 11.4.1982 at about 11: 30 a.m. Postmortem was conducted on the same day at about 4: 15 p.m. and 5: 00 p.m. As per P.W.7 Dr. G.N. Lal, death might have been caused just before 1½ day from the time of postmortem. Incident is said to have been occurred on 11.4.1982 at about 11: 30 a.m. Postmortem was conducted on the same day at about 4: 15 p.m. and 5: 00 p.m. As per P.W.7 Dr. G.N. Lal, death might have been caused just before 1½ day from the time of postmortem. If the time of the injuries of the injured is also compared with the time of death shown in the postmortem reports of the deceased, then also it is clear that all the injured have been examined on the same day of the incident within few hours of the incident and injuries found on the persons of the injured have been shown as fresh. 44. On evaluation of the entire evidence available on record and also going through the finding of the trial court, we are of the view that medical evidence fully supports the prosecution version and trial Court view is not liable to be interfered. 45. In the instant matter, defence has not been able to establish that injured or deceased were armed with any weapon. The finding of the trial court is that injured witnesses and the deceased were cutting the crop on the disputed field. Prosecution case is that appellants-accused were armed with deadly weapons. 46. Specific plea has been taken by the appellant Krishan Nath that he was not present on the spot and was on duty in his Battalion. Learned counsel for the defence has referred the statement of defence witnesses and had submitted that finding of the trial Court on the point of alibi is against the evidence available on record. Learned court below, after analyzing the evidence adduced by the parties in this regard including the evidence of the investigating officer, came to the conclusion that plea of alibi has not been proved beyond any shadow of doubt. Trial court has analyzed all the evidence adduced by the appellant Krishan Nath in this respect and was of the view that evidence adduced by the appellant Krishan Nath in this regard is doubtful. Before reaching on this conclusion, trial court has evaluated the entire evidence say for example, efforts made by the investigating officer, the documents referred by the prosecution and other circumstances which were not supporting the defence version. Before reaching on this conclusion, trial court has evaluated the entire evidence say for example, efforts made by the investigating officer, the documents referred by the prosecution and other circumstances which were not supporting the defence version. Since the investigating officer, to whom military officials have not extended cooperation, has stated that paper leaf of the register was torn and some other paper leaf was fixed on the place of that and there was no page number and serial number, therefore, there is a possibility that page may be replaced with other from the register. If such was the factual situation and the trial court has opined that statement of the investigating officer deposed before the court may be true, therefore the other possible views argued by the defence counsel cannot be substituted by the appellate court over the view of the trial court. 47. Plea of alibi can only be believed when there is clear evidence regarding the plea taken by the accused and has been established beyond any doubt. 48. It is pertinent to mention here that appellant Krishan Nath had taken railway concession voucher from 8.4.1982 to 20.4.1982 for Allahabad to Faizabad. The occurrence took place on 11.4.1982. He had proceeded on leave on 6.4.1982 and as per defence version, returned on 9.4.1982, but his returning has been doubted by the trial Court on the basis of statement of the investigating officer and document/evidence produced by the prosecution. We are of the view that learned trial Court with regard to plea of alibi taken by the appellant Krishan Nath has not committed any illegality and has not adopted a wrong finding. Thus, finding of the trial Court in regard to plea of alibi is not interferable. 49. Now we have to see whether right of private defence available to the accused persons for protecting the property and person has been exercised in proportionate or has been exceeded. The trial court finding that accused persons were in possession over the property and the informant side were cutting away the crop, therefore appellants-accused had right of private defence of the person and property is also not challenged. Therefore, we have to see only that the appellants have exercised the right available to them in proportionate or have exceeded. 50. The trial court finding that accused persons were in possession over the property and the informant side were cutting away the crop, therefore appellants-accused had right of private defence of the person and property is also not challenged. Therefore, we have to see only that the appellants have exercised the right available to them in proportionate or have exceeded. 50. The Supreme Court in the matter of Darshan Singh Versus State of Punjab and Another vide judgment and order dated 15.01.2010 passed in Criminal Appeal No.1057 of 2002 has held in paragraph 58 as under : "58. The following principles emerge on scrutiny ............... : (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened." 51. The defence version that one person who had sown the crop belonging to accused side had gone on the spot where the informant side were cutting away the crop with intention to steal it, the informant side have beaten that person and on alarm, local people gathered there and have beaten the informant side is not believable. Defence have not established that informant side were also armed with any weapon. Since the prosecution side were cutting away the crop, they were not armed with any such weapon, but the appellants were armed with firearm and other weapons and there was no any imminent and reasonable danger or apprehension of losing the appellants' life or limb, therefore, appellants were not legally authorized to inflict the injuries caused by them. 52. It is true that right of private defence is available to only one who suddenly confronted with the necessity of averting and impending danger and not of self creation. The court dealing with the plea has to weigh the material whether there was situation to exercise the right of private defence in the manner said to have been exercised or they have exceeded the right available to them. It is also settled legal position that the injuries received by the accused side and the imminence of threat to the safety, the injuries caused by the accused/informant side and the circumstances whether the parties had time to have recourse to public authorities have to be kept in mind while deciding these facts. It is also settled legal position that the injuries received by the accused side and the imminence of threat to the safety, the injuries caused by the accused/informant side and the circumstances whether the parties had time to have recourse to public authorities have to be kept in mind while deciding these facts. If the cause for the reasonable apprehension has disbelieved and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right to private defence, the situations put by the parties have to be judged from the subjective point of view in the excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot, it would be appropriate to adopt tests applicable in case of a perfectly cool bystander. 53. As is clear from the evidence available on record that appellant Krishan Nath has been assigned with firearm S.B.B.L. Gun. Dinanath (died), Achraj Nath, Bansh Bahadur were armed with farsa, Bhavnath was armed with pauna, appellants Jagarnath (died), Sant Ram, Ajore Pathak, Ghurey Koiri (died), Shatrughan were armed with lathi, Subhag Koiri (died) and Bansh Bahadur were armed with bhala. There is no evidence on record that persons belonging to prosecution side present on the spot were armed with any sort of weapons. Defenceppellants have tried to establish that informant side have assaulted a person belonging to the accused side, but there is no case of the appellants that persons belonging to the prosecution side, who were cutting the crop, have assaulted to the appellants and there was any threat or danger of the life or property of the appellants at the moment when the right of private defence is said to have been exercised. 54. For the sake of arguments, this fact be taken as follows: When the informant side were cutting away the crop, which had been sown by the accused persons and this fact had come to the knowledge of the appellants, in that situation, two options were available to the appellants. 54. For the sake of arguments, this fact be taken as follows: When the informant side were cutting away the crop, which had been sown by the accused persons and this fact had come to the knowledge of the appellants, in that situation, two options were available to the appellants. First to exercise the right of private defence of the persons and property available to the appellants in accordance with law, as has been mentioned above in the case of Darshan Singh (supra) and the second option was to take recourse of the law. From the close scrutiny of the statements of the witness P.W.1 Adalti, P.W.3 Narain, P.W.4 Bhagauti and also the statements of the defence witnesses, it emerges that right available to the appellants has not been exercised in proportionate to the danger or threat. When no any injury, threat has been caused or attempted to be caused nor any threat or intimidation has been given or attempted to be given on the part of the informant side, then only right of private defence of the property was available to the appellants. It may be possible that appellants have objected to the informant side, who did not pay heed to their objection. Then also the appellants were not entitled to cause death of Chhotkan and Bhuwal and to cause injuries to four other persons. Injuries found on the dead body of the deceased Chhotkan and Bhuwal clearly indicate that all injuries have been caused by the weapons armed by the appellants. The appellants had no right to assault the deceased persons and the witnesses in the manner in which they have assaulted in the exercise of right of private defence of their property. Accused-persons have exceeded their right of private defence. The trial court has rightly observed that right of private defence of their property was available to the appellants, but the appellants have exceeded in exercise of the right available to them. Thus, we are of the view that trial court finding on this point need not any interference. So far as the presence of witnesses on the spot is concerned, P.W.1 Adalti and P.W.3 Narain were present on the spot. They are injured witnesses. Two other injured Pancham and Ram Sawanre were also present on the spot. Thus, we are of the view that trial court finding on this point need not any interference. So far as the presence of witnesses on the spot is concerned, P.W.1 Adalti and P.W.3 Narain were present on the spot. They are injured witnesses. Two other injured Pancham and Ram Sawanre were also present on the spot. They are also injured, but these two witnesses named in the first information report have not been examined by the prosecution. P.W.4 Bhagauti is also eye account witness. Offence is said to have been committed in the morning at 8: 30 hours. This witness along with one Ram Khelawan was going to the market. As and when they reached near the place of occurrence, they saw the incident. Although defence has shown the enmity of the appellants with these witnesses and also with the other witnesses and has also shown the criminal prosecution launched against the prosecution witnesses, but on this score when appellants have admitted that informant side were cutting away the crop sown by them, the presence of the eye account witnesses examined by the prosecution is not doubtful. Apart to this, the deposition made by the eye account witnesses fully supports the prosecution case and the statements of these witnesses are also supported with the medical evidence. Non-examination of some of the witnesses present on the spot will not effect the credibility and veracity of the statements of the eye account witnesses examined by the prosecution. 55. For the sake of arguments, if contention raised on behalf of the appellants that prosecution case is not supported with any independent witnesses be taken into consideration, then also the prosecution case is supported not only with the statements of injured witnesses, but also with the statement of P.W.4 Bhagauti. 56. It is true that enmity may be a reason for false implication, but P.W.1 Adalti and P.W.3 Narain are the injured witnesses and their presence on the spot is not doubtful in any manner. Statements of these two witnesses are consistent and clear at all stages. Minor contradictions, omissions or improvement occurred in the statements of these witnesses are not of such importance which effect the consistent and clear statements made by these witnesses regarding the time, place and manner of the offence. Statements of these two witnesses are consistent and clear at all stages. Minor contradictions, omissions or improvement occurred in the statements of these witnesses are not of such importance which effect the consistent and clear statements made by these witnesses regarding the time, place and manner of the offence. It might be possible that during course of examination before the trial Court, the witnesses have made some contradictory statements regarding weapon assigned to the accused appellants, but considering the facts and circumstances of the case under which present offence exceeding the right of private defence has been committed by the appellants, the consistent statement of the eye account witnesses cannot be brushed aside regarding involvement of the appellants in committing the present offence. Involvement of the appellants in commission of the present offence is very much clear from very beginning i.e. lodging of the first information report, interrogation by the investigating officer and deposition before the Court. The testimony of the eye account witnesses examined by the prosecution can also not be doubted on the score that investigation officer has not fairly investigated the matter. If any laches have occurred during course of investigation on the part of the investigating officer, then Court has to see whether those laches affect in any way or prejudiced the right of defence of the appellants-accused. In the present matter no prejudice is caused to the appellants on the basis of laches done by the investigating officer. 57. As has been held above in the present matter, medical evidence fully supported the prosecution case and appellants have exceeded the right of private defence of the property therefore they have committed the present offence, then it is to be seen whether finding of the trial court on the point of offences committed by each and every accused are in consonance with the evidence available on record or not. 58. Learned counsel for the appellants has submitted that the accusedppellants were exercising their right of private defence, thus no occasion arise to form an unlawful assembly, therefore trial court finding on this point is against law and fact. 59. 58. Learned counsel for the appellants has submitted that the accusedppellants were exercising their right of private defence, thus no occasion arise to form an unlawful assembly, therefore trial court finding on this point is against law and fact. 59. In the backdrop of above submission, on close scrutiny of the entire evidence available on record, it is seen that when the informant side were cutting away the crop sown by the appellants, the appellants armed with firearms, lathi, danda, farsa and bhala have gone on the spot. A licensed firearm may be taken by a person for his personal and property defence, but the lathi, danda, bhala etc. which are not licensed weapons, cannot be said that the appellants, who were armed with these weapons, were authorized to carry them. Apart of this, appellants have assaulted to those persons, who were unarmed. Manner for exercising the right of private defence and circumstances under which the present offence has been committed clearly indicate that all accused-appellants have formed an unlawful assembly to commit the present offence. The arguments advanced by learned counsel for the defence is not acceptable. Thus, the trial court has rightly held guilty to the appellants Sant Ram, Ajore Pathak, Shatrughan and Bhawnath for the offence under Section 147 IPC because they were forming an unlawful assembly to commit the present offence in furtherance of common object along with other appellants namely Acharaj Nath, Bansh Bahadur and Krishan Nath, who have been rightly held guilty by the trial court for the offence under Section 148 I.P.C. The finding recorded by the trial court regarding offence committed as above under Sections 147, 148 IPC do not require any interference. Appellants Acharaj Nath, Bhawnath, Sant Ram, Ajore Pathak, Bansh Bahadur, Shatrughan and Krishan Nath have actively participated in furtherance of the common object of the unlawful assembly in committing the present offence and deceased Chhotkan and Bhuwal were done to death by these appellants along with other appellants, who have died and their case has been abated. Thus, the surviving appellants have rightly been held guilty for the offence under Section 302 /149 IPC and sentence awarded to them is also in accordance with the fact and law applicable in the present case. All the above-named appellants have also caused injuries to P.W.1 Adalti, P.W.3 Narain and other injured witnesses. Thus, the surviving appellants have rightly been held guilty for the offence under Section 302 /149 IPC and sentence awarded to them is also in accordance with the fact and law applicable in the present case. All the above-named appellants have also caused injuries to P.W.1 Adalti, P.W.3 Narain and other injured witnesses. On the basis of injury reports produced by the prosecution regarding the injuries of injured witnesses and the statement made by the Doctor in this regard, the trial court has rightly held guilty to all the accused-appellants for committing the offence under Sections 307/149 IPC, 326/149 IPC, 324/149 IPC and 323/149 IPC. The sentence awarded by the trial court to the appellants are in proportionate with the mitigating facts of the case and also in accordance with law. 60. Thus, on the basis of above discussion, we are of the view that the trial court's view that appellants have exceeded in exercising the right of private defence of the person and property and the appellants Acharaj Nath, Bhawnath, Sant Ram, Ajore Pathak, Bansh Bahadur, Shatrughan and Krishan Nath have rightly been held guilty and sentenced by the trial Court as mentioned above. 61. During pendency of appeal, appellants Thunni Lal alias Dinanath, Jagarnath, Subhag Koiri and Ghurey Koiri have died. The appeal in respect of the appellants Thunni Lal alias Dinanath, Jagarnath and Subhag Koiri has already been abated. The Appeal in respect of appellant Ghurey Koiri, who is also reported to be died, also stands abated. 62. In our considered opinion, the prosecution has succeeded in establishing its case against the appellants beyond reasonable doubt. We have no hesitation to agree with the findings of the trial court holding the appellants guilty of the charges leveled against them. We see no reason to interfere with the judgment of the trial court. 63. Thus, the Appeal preferred by the appellants Acharaj Nath, Bhawnath, Sant Ram, Ajore Pathak, Bansh Bahadur, Shatrughan and Krishan Nath alias Ram Krishna Pathak fails and is hereby dismissed as well as the judgment and order passed by the trial court is affirmed. 64. The appellants are on bail. Their bail bonds are cancelled. Trial court is directed to get the appellants arrested and sent them to jail to serve out the sentences awarded to them. 65. 64. The appellants are on bail. Their bail bonds are cancelled. Trial court is directed to get the appellants arrested and sent them to jail to serve out the sentences awarded to them. 65. The record of the trial court along with copy of the judgment be sent to the court concerned for immediate compliance. Compliance report be also submitted to this Court.