JUDGMENT : 1. Heard Mr. D.K. Prasad, learned lawyer appearing for the appellants and Mr. Saket Kumar, learned A.P.P. 2. This appeal is directed against the Judgment of conviction and order of sentence dated 13.08.1993, passed by Sri G.K. Verma, learned Additional Sessions Judge-II, Gumla, in connection with Sessions Trial No. 96 of 1988, arising out of Gumla P.S. Case No. 85 of 1987, corresponding to G.R. No. 295 of 1987, whereby and wherein, learned Additional Sessions Judge-II, Gumla held the appellants, guilty of the offences under Sections 302/149 and 307/149 of the Indian Penal Code and thereby sentenced them to undergo imprisonment for life for the offence under Section 302/149 of the Indian Penal Code and R.I. for 7 years for the offence under section 307/149 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 3. The prosecution case was instituted on the basis of fardbeyan of the informant Etwa Oraon alleging therein that on 03.06.1987 at about 10:00 A.M., he was sowing paddy in his field when he heard the sound of beating of drums, on which he went towards the Pokhar and saw that the appellants alongwith the other accused persons were ploughing the land for sowing paddy. When the villagers protested the appellants and 10 to 12 other accused persons started assaulting the villagers. Tulsi Sao assaulted Mangra Oraon by Balua due to which he succumbed to his injuries, appellant Ful Chand Sao assaulted Karma Oraon by lathi causing injuries and when the informant started fleeing from the place of occurrence. The appellant Radhe Sao shot an arrow causing injury on his hand. 4. After investigation, the investigating officer found the occurrence to be true and submitted charge-sheet against the appellants under sections 147/ 148/ 149/ 307/ 325 and 302 of the Indian Penal Code. The learned C.J.M., Gumla after taking cognizance of the case committed this case to the court of sessions on 18.01.1988 as it was exclusively triable by Sessions Court. 5. Charge was framed against the appellants on 08.05.1990, under Sections 302/ 149 and 307/149 of the Indian Penal Code. The contents of the charge were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has adduced both oral and documentary evidence. 7. The contents of the charge were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has adduced both oral and documentary evidence. 7. Sukar Bhagat P.W.1 has supported the prosecution case. Etwa Oraon P.W.2 is the informant of this case. He has also supported the prosecution case, he is an injured witness. Karma Oraon P.W. 3 is an eye witness. He is also an injured witness. He has also supported the prosecution case. Bhim Oraon P.W. 4 is witness of inquest, Shankar Bhagat P.W.5 is another eye witness who has supported the prosecution case. Krishna Bhagat P.W.6 is a witness of inquest. Budhni Kumari P.W.7 is wife of the deceased Mangra Oraon. She is a hearsay witness. Thuiya Oraon P.W.8. is a witness of seizure relating to seizure of blood stained soil and clothes from the place of occurrence. He has proved the seizure list which has been marked as Ext.-2. Bisu Kharia P.W.9. is a tendered witness, Kunda Bhagat P.W.11 is also a tendered witness. Dr. Hemant Kumar P.W. 12 has examined the injured persons. He has also proved the injury report of Karma Oraon which is Ext.- 3. He has also proved the injury report of Etwa Oraon which is Ext. 3/A. Pandru Bhagat P.W. 13 is another hearsay witness. Jaura Oraon P.W. 14 is also a hearsay witness Munshi Bhagat P.W. 15 is the son of the deceased Mangra Oraon. Dr. Jogendra Prasad Sanga P.W. 16 has performed the postmortem on the dead body of the deceased. He has proved the postmortem report which is Ext.- 4. Raj Narain Singh P.W. 17 is the investigating officer of this case he has proved the fardbeyan which is Ext.- 5. He has also proved the inquest report which is Ext.- 6. He has further proved the requisition for examining the injured persons namely Karma Oraon and Etwa Oraon which are Ext.- 7 series. He has proved the formal FIR which is Ext.- 8. He has also proved the place of occurrence. He has further proved the seizure list relating to the seizure of the blood stained soil and clothes from the place of occurrence which is Ext.- 9. Dr. Hemant Kumar P.W. 12 was again examined as a court witness no. 1. He has proved the formal FIR which is Ext.- 8. He has also proved the place of occurrence. He has further proved the seizure list relating to the seizure of the blood stained soil and clothes from the place of occurrence which is Ext.- 9. Dr. Hemant Kumar P.W. 12 was again examined as a court witness no. 1. He has proved the injury report of the accused persons. Prahlad Sahu has been examined as Court witness no. 2. The appellants have also adduced oral evidence. Sri Krishna Sahu is D.W. 1 and Basant Kumar Das is D.W.2. 8. Statement of the appellants were recorded under Section 313 Cr.P.C. Defence is general denial of the occurrence and false implication. 9. On the basis of the evidence, both oral and documentary, available on record, learned Additional Sessions Judge –II, Gumla held the appellants guilty and sentenced them accordingly. 10. Learned lawyer appearing on behalf of the petitioners submitted that the informant party were aggressors. It was submitted that the land in question was purchased by appellants and they were sowing paddy in their land. The informant and others had tried to dispossess them. It was further submitted that the appellants had also sustained injury and this fact has been proved by the court witnesses and also by the defence witnesses. It was finally submitted that the appellants were exercising their right of private defence from being dispossessed of their land due to which this occurrence has taken place and the learned Additional Sessions Judge-II Gumla has not considered this fact and has wrongly held the appellants guilty. 11. Learned A.P.P. submitted that all the prosecution witnesses have supported the prosecution case. It was further submitted that the land in question was a Gair Mazurwa Malik land and the appellants were encroaching upon the said land and when the villagers protested the appellants assaulted them and one of the villager Mangra Oraon died due to the injury sustained in the occurrence. On these Grounds it was prayed that this appeal be dismissed. 12. Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellants beyond the shadow of all reasonable doubt. 13. In order to come to the aforesaid finding, it has to be further ascertained: - (i) Whether the deceased Mangra Oraon died a homicidal death? 12. Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellants beyond the shadow of all reasonable doubt. 13. In order to come to the aforesaid finding, it has to be further ascertained: - (i) Whether the deceased Mangra Oraon died a homicidal death? (ii) Whether the appellants had caused the homicidal death of the deceased Mangra Oraon. (iii) Whether the injured Etwa Oraon had sustained injury due to the assault by the appellants and whether the occurrence has taken place in exercise of right of private defence of property by the appellants? 14. It is case of the prosecution that on 03.06.1987 at about 10:00 a.m. the appellants alongwith other co-accused persons had entered into the gair majurwa malik land and were sowing paddy. When the informant and other villagers protested, the appellants assaulted them causing injuries to the informant Etwa Oraon, Karma Oraon and Mangra Oraon. Mangra Oraon succumbed to his injuries. Sukar Bhagat P.W.1, Etwa Oraon P.W.2. Karma Oraon P.W. 3 and Shankar Bhagat P.W.5 all have stated that the appellants and the co-accused persons were sowing paddy on the village land. When the villagers alongwith the Mangra Oraon opposed, Mangra Oraon was assaulted by accused Tulsi Sao with balua due to which he succumbed to his injuries. Bhim Oraon P,.W.4, Krishna Bhagat P.W.6 are witnesses of the inquest. Bhim Oraon has identified his signature and that of Krishna Bhagat on the inquest report which was marked as Ext.- 1 series. The investigating officer has proved the inquest report which is Ext.- 6. From the perusal of the inquest report it appears that the deceased had sustained injuries on the back of shoulder and right hand. According to the investigating officer these injuries were caused by sharp cutting weapon. Dr. Jogendra Prasad Sanga P.W.116 had performed the post-mortem on the dead body of the deceased Mangra Oraon and found the following injuries on his person:- Incised Injury (i) 7”X1/2”X1”(1” deep laterally and 1/6” deep medially) in size over back left side with direction horizontally cutting in the lateral part of scapula partially. (ii) 1”X1/2”X1/2” in size over lateral aspect of left shoulder. (iii) 7”X3”X2” in size over anteromedial aspect of cubital fossa of right hand, cutting skin fascia muscles and vessels with cutting of lower part of humerous bone. (ii) 1”X1/2”X1/2” in size over lateral aspect of left shoulder. (iii) 7”X3”X2” in size over anteromedial aspect of cubital fossa of right hand, cutting skin fascia muscles and vessels with cutting of lower part of humerous bone. According to this witness all the injuries were ante-mortem in nature and were caused by balua and the deceased died due to the aforesaid injuries sustained by him. 15. From the perusal of the postmortem report Ext.- 4 it transpires that the ocular account of Dr. Jogendra Prasad Sanga P.W. 16 is corroborated by his finding in the postmortem report which is Ext.- 4 showing that the deceased Mangra Oraon died due to incised injuries sustained on his back left shoulder and right hand these injuries were caused by Balua. 16. From the aforesaid facts, it is evident that the deceased died due to injuries which were neither accidental nor self-inflicted. Accordingly I come to a finding that the deceased Mangra Oraon died a homicidal death. It is further case of the prosecution that the deceased appellant Tulsi Sao had given a Balua blow to the deceased Mangra Oraon, due to which he succumbed to his injuries. All the prosecution witnesses have supported this fact. There is nothing in their cross examination to doubt their veracity. Etwa Oraon P.W. 2 and Karma Oraon P.W. 3 are injured witnesses Etwa Oraon P.W.2 has stated that Radha Sao had shot an arrow causing injury on his hand while the appellants Ful Chand Sahu had assaulted Karma Oraon by lathi causing injury. Other prosecution witnesses have corroborated the aforesaid fact. Dr. Hemant Kumar P.W. 12 had examined Karma Oraon and found the following injuries on his person. (i) Swelling in left and Clavicular region with fracture on left clavicle bone size 2”X1”. (ii) Lacerated injury on right side of parietal region of head size 6”X1”X Scalp deep He has proved his injury report which is Ext.- 3. From the perusal of the injury report of Karma Oraon Ext.- 3 it appears that the findings of this witness as stated in the injury report fully corroborates his statement in the court on this point. Dr. Hemant Kumar P.W. 12 has further stated that on the same day he had examined Etwa Oraon and found the following injuries on his person. Dr. Hemant Kumar P.W. 12 has further stated that on the same day he had examined Etwa Oraon and found the following injuries on his person. (i) Incised wound on the back of left fore, size 3”X1”X1/2” (ii) Abrasion on the left side of the knee-cap, Size 1”X1/4” According to this witness both the injuries were caused within 24 hours by sharp cutting weapon like edge of an arrow head injury. Injury no. 2 were caused by hard and blunt substance like a Lathi. He has further proved the injury report of Etwa Oraon which is Ext.- 3/A. From the perusal of the Ext.- 3/A it transpires that the findings of doctor regarding the injury of Etwa Oraon is fully corroborated by his oral testimony in the court on this point. 17. From the aforesaid facts we come to a finding that the informant Etwa Oraon P.W.2. and the injured Karma Oraon P.W. 3 has sustained injuries on their person due to assault by the appellants and the other co-accused persons during the occurrence. Now it has to be ascertained whether the appellants can be held accountable for causing culpable homicide of the deceased Mangra Oraon and also for attempting to commit the murder of the injured informant Etwa Oraon and another injured Karma Oraon. Sukar Bhagat P.W.1 has stated at paragraph 4 of his cross examination that he cannot state the plot number and khata number of the land which was the subject matter of the dispute between the parties. He has stated that the disputed land was recorded as Gair Majurwa. He has denied that the said land was recorded in the name of Basant Kumar Das and wife of the co-accused Chaman Sao had purchased the land from Basant Kumar Das. He has also denied that he had seen the injuries on the person of the accused Chaman Sao. He has further denied that he is facing criminal trial in a counter case arising out of the same occurrence. Karma Oraon P.W.3 at paragraph 6 had admitted that the Basant Kumar Das pays rent to the state government for the land in question. He is not aware whether Basant Kumar Das has sold the land to the wife of co-accused Chaman Sao. Shankar Bhagat P.W.5 has stated that he had not seen any injury on the person of any of the accused person. Dr. He is not aware whether Basant Kumar Das has sold the land to the wife of co-accused Chaman Sao. Shankar Bhagat P.W.5 has stated that he had not seen any injury on the person of any of the accused person. Dr. Hemant Kumar has again been examined as Court witness no.1 he has stated that on 03.06.1987 he had examined the appellant Radhe Shyam Sahu and found the following injuries on his person. (i) Lacerated injury on the left side of parietal region of the head, size 1 ½” X ½” Scalp deep. (ii) Lacerated injury on the right side of the parietal region of head, Size 2”X1” Scalp deep. (iii) Lacerated injury on the middle of the parietal region of the head, size 2”X1/2X Scalp deep. (iv) Lacerated injury on the posterior part of the middle of parietal region of head, size 1”X1/2”X1/4”. (v) Lacerated injury on the frontal region of the head size 2”X1/2”X1/4” (vi) Swelling on left elbow region with posterior dislocation of left elbow joint size 2”X2”. (vii) Age of injuries was within six hours. All the injuries were caused by hard and blunt substance. Injury no. VI was grievous and rest of the injuries were simple in nature. On the same day he had also examined accused Tulsi Sahu and found following injuries on his person. (i) Lacerated injury on the left temporal region of head, size 3”X1”X Scalp deep. (ii) Lacerated injury on tip of nose size ½” X ¼” X ¼”. (iii) Bruise on left arm, size 2”X2”. Age of injuries was within six hours. All the injuries were caused by hard and blunt substance. All the injuries were simple in nature. On the same day he had also examined accused Chamru Sahu and found the following injuries on his person. (i) Lacerated injury on the back of right ear size 2½”X 1”x1/2”. (ii) Lacerated injury on the right parietal region of head, size 2”X1” X scalp-deep. (iii) Lacerated wound on right leg, size 1”X1” X (depth and clear). (iv) Bruise on right arm, size 2”X2”. All the injuries were simple in nature and were caused by hard and blunt substance and the age of injury was within six hours. From the perusal of the injury reports, which are court Ext.- 1 series, it appears that the finding of Dr. (iv) Bruise on right arm, size 2”X2”. All the injuries were simple in nature and were caused by hard and blunt substance and the age of injury was within six hours. From the perusal of the injury reports, which are court Ext.- 1 series, it appears that the finding of Dr. Hemant Kumar Court witness number 1 of the person of all these injured persons corroborates his oral testimony in the court on this point. Prahlad Sahu C.W.2 has proved the formal F.I.R. filed by the accused persons which has been marked as Court Ext.- No. 2. Basant Kumar Das D.W.2 has stated that the land in question, which was the subject matter of the dispute between the parties was his majhiyas land, which was recorded in the name of his father. He has further stated that he had sold the land to the wife of accused Chaman Sahu. He used to farm on the said land he has proved the registered sale deed which are Ext.- A series. He has also proved the rent receipt which is Ext.- C. He has further proved the land receipt which has been marked as Ext.-C series. 18. From the aforesaid facts, it is evident that the land in question which was known as pokhra done was raiyati land owned by witness Basant Kumar Das, which was recorded in the name of his father. He sold the same to the wife of accused Chaman Sahu. It further appears that Basant Kumar Das used to cultivate on the said disputed land and after he sold the land to the appellants they were cultivating it. Defence has also been pleaded to show that some of the accused persons had sustained injuries in the occurrence which has been denied by the prosecution. The prosecution has not come out with clean hands in this case. For the same occurrence, a counter case was also instituted by the accused person. From the aforesaid facts it is evident that the informant party and others were aggressor. They were trying to dispossess the appellants from their land and the entire occurrence has taken place due to the exercise of right of private defence by the appellants from being dispossessed from their land. The appellants were also injured, accordingly there was reasonable apprehension that they will sustain grievous hurt in the entire occurrence. 19. They were trying to dispossess the appellants from their land and the entire occurrence has taken place due to the exercise of right of private defence by the appellants from being dispossessed from their land. The appellants were also injured, accordingly there was reasonable apprehension that they will sustain grievous hurt in the entire occurrence. 19. From the facts and circumstances, the appellants were well within their right to exercise right of private defence of property as provided under section 103 of the Indian Penal Code. Accordingly we come to a finding that the deceased had sustained injury due to assault by the appellants in exercise of the right of private defence of property. The injured had also sustained injury in the same occurrence. 20. The learned trial court while holding the appellants guilty of offences under sections 302/149 and 307/149 of the Indian Penal Code has not considered this aspect of the case and has erroneously held the appellants guilty for the offences they were charged with. 21. This appeal is allowed. The judgment of conviction and order of sentence passed by the learned court below holding the appellants guilty of offence under Sections 302/149 and 307/149 of the Indian Penal Code is set aside. 22. The appellants are in custody, they shall be released forthwith if not wanted in any other case. 23. Pending I.A., if any, also stands disposed of.