I.D. DUA, J.
1. This is an appeal by special leave from the judgment of the Patna High Court dismissing two separate appeals presented by Ram Dahin Singh and the other five appellants against the conviction and sentence by the Additional Sessions Judge, Arrah.
2. The prosecution story may now be briefly stated. A little after sunrise on November 4, 1963, Ghurfekan Chamar (PW 1) along with his two sons Mangru (PW 12) and Somaru (PW 14) and also certain women including Rutkaiyan Kewatin, wife of one Kalu Kewat, went to harvest paddy crop standing on a portion of Plot No. 103 which had been sown by him. The harvesting was complete by mid-day. Thereafter the harvested crop was tied in bundles. Four such bundles were carried by Imrit, Doma, Natha and Navami to the Khalihan of Ghurfekan. Doma, Navami and Natha thereafter tied another three bundles and started with them for the Khalihan. They had hardly gone some distance towards the north of Ghurfekan's paddy field when a mob of about 30 or 40 persons, including the six appellants and the other accused persons (acquitted by the trial court) armed with gun, Bhalla and Lathis came from the north and surrounded them. Ram Dahin Singh, appellant, was armed with a gun, Loku Ahir, appellant, with a Bhalla and the others with Lathis. The three bundles of paddy were snatched by them from Doma, Navami and Natha and thrown on the ground. Ghurfekan rushed from his field and protested to Ram Dahin saying that the harvested paddy crop had been grown by him on the land which had been in his possession since a long time. Some other persons also arrived there to support Ghurfekan's claim. They included Sukhari, Behalia (since dead), Ghuran Khewat (PW 15), Barup Bahelia (PW 18), Chabi Chamar (PW 16), Banshi Bahelia (PW 11) and Subedar, caste Bind (PW 8). Sukhari joined in the protest against the highhandedness of Ram Dahin Singh and his companions. At the suggestion of Satyanarain Singh, appellant, Loku Ahir, appellant, gave a Ballam blow to Sukhari injuring him in the abdomen. As a result, Sukhari fell down. Umrao Singh, appellant, then gave two or three Lathi blows to Ghuran Kewat. The helpers of Ghurfekan then brandished their Lathis thereby injuring Chhedi Ahir, appellant. Seeing this Satyanarain Singh instigated Ram Dahin Singh to use his gun. Ram Dahin Singh thereupon fired several shots from his gun thereby killing at the spot Kutkaiyan, Natha, Doma and Navami. Soon thereafter Ram Dahin Singh and his party left the place. The chowkidar was thereupon called and Ghurfekan, accompanied by the chowkidar, Imrit (PW 7) and Balrup (PW 18) started for the police station. On their way to the police station near Village Lachumanpur a few persons assaulted Imrit with Lathis. But on alarm being raised by Ghurfekan and his companions, the chowkidar of that village came to the spot, whereupon the miscreants ran away. Ghurfekan then proceeded to Chainpur police station and there lodged the first information report, Ex. 6, at about 5 p.m. It was recorded by Baban Singh (PW 21), Assistant Sub-Inspector of Police in the absence of the officer-in-charge. At about 8 p.m. Chhedi Ahir, appellant, also appeared at the Police Station and made a statement on the basis of which the first information report Ex. 6/1 of the counter-case was recorded. After investigation a Chalan was put into court against 24 persons, including the six appellants. They were all committed to the Court of Sessions for being tried for various offences. Ram Dahin Singh and Loku Ahir were charged with offences under Section 302, IPC Satyanarain Singh was charged with an offence under Section 302 read with Section 109 IPC for the abetment of the murders with which Ram Dahin Singh and Loku Ahir were charged. All the accused, except Ram Dahin Singh, were further charged with offences under Section 302, read with Section 149 IPC. All the accused were also charged with the offence of rioting; Ram Dahin Singh and Loku Ahir under Section 148 IPC and the rest under Section 147 IPC Ram Dahin Singh and Satyanarain Singh pleaded alibi, the former alleging that on the day of the occurrence he was in Varanasi because he was required to appear in the case of one Munno in the Court of the Railway Magistrate and that he actually made a statement in that court. According to him, he has been falsely implicated in this case at the instance of one Kapil Deo Pathak, Carinda of Biswanath Pandey against whom he had appeared as a witness in his title suit against the Tarkeshwar Estate. Ram Dahin Singh stated that he had nothing to do with Plot No. 103 which was the land in dispute giving rise to the occurrence. According to Satyanarain Singh's plea he was at Bhabua on the day of the occurrence and had there attested a mortgage deed, Ex. A. The defence case generally was that a number of persons had purchased Plots 103, 106 and 121 of Village Kakri Kundi along with some other land estate. On the date of the occurrence Prabhu Narain Singh, armed with gun, with Kapil Deo Pathak came with a number of persons including Doma, Natha, Navami, Imrit, Sukhari, Sanari, Mangru and Ghurfekan and started taking forcibly the paddy crop of Survey Plot No. 121 which had been grown by the aforesaid purchasers and harvested by them. Chedi Ahir, Umrao Singh and Loku Ahir protested, whereupon Kapil Deo instigated his companions to use force. Several persons thereupon surrounded the accused and they were assaulted. On alarm having been raised, a number of people gathered there and Prabhu Narain Singh fired from his gun. The persons who had gathered there then dispersed. It was not known who was killed,by the gun fired by Pradhu Narain Singh. According to the statement of Chedi Ahir, appellant, the land claimed by Ghurfekan as his, had also been included in the sale of 1962 in favour of some of the accused persons. But the crop on that land was not being cut by Doma, Natha and others. That crop had been cut two days earlier. The reference is apparently to Plot No. 103. The crop which, according to this appellant, was being cut was on the adjacent land to the south. On this point the statement of Loku Ahir, appellant, is also to the same effect. The case of the accused in respect of Plot No. 103 was that the Tarkeshwar Estate had come into possession of the land in question on July 3, 1951 and it remained in its possession till 1962 when the land was sold to various persons including some of the cultivators and their relations by means of a registered sale deed, dated November 20, 1962.
3. The trial court on a consideration of the entire evidence came to the conclusion that Tarkeshwar Estate from whom Plot No. 103 was claimed to have been purchased under Ex. C had not got physical possession of that land till the sale in November, 1962 and the purchasers also did not get into possession of this land after 1962, there being no reliable evidence of their possession on the record. The documents relating to the fixation of rent of certain lands in the name of the deity on which the accused had relied did not carry much weight with the court because in a later order the names of Ghurfekan and others were directed to be entered in the Jamabandi on the ground that earlier their names had been erroneously omitted. The orders in the Tanaza matters relied upon by the accused were also held valueless as they were all passed in 1954 long after the occurrence. Exhibit V, an order dated July 13, 1964 also made during Tanaza proceedings by means of which, on the basis of the sale deed, dated November 20, 1962, the name of Dandiswami was directed to be entered in place of Mahant and Shebait of Tarkeshwar Estate was held to be of no effect as against Ghurfekan because he was no party to those proceedings. The trial court further observed that if the land had been in actual possession of the Tarkeshwar Estate then the accounts of the expenses incurred on its cultivation and of income therefrom must in the ordinary course have been maintained by it and it would also have secured receipts for the assessed rent paid by it to the State. As no such evidence was produced nor was reliable oral evidence of actual possession by the Tarkeshwar Estate led in the case the court nagatived the plea of its possession. The document Ex. C also did not impress the court. This is what the court said in this connection.
“The sale deed (Ext. C) is also a strange document by which as many as 21 persons belonging to 10 different families and 10 different villages purchased specified shares in respect of all the lands which was comprised in numerous plots situated in three different villages. The unusual nature of this sale deed lends support to the argument on behalf of the prosecution that these people of different villages banded themselves together pooling their resources in an attempt to take possession of land over which the title of Tarkeshwar Estate had been declared but of which the estate was not in possession. My attention has been drawn on behalf of the accused to the statement of PW 1 in cross-examination that he did not know that Tarkeshwar Estate was in possession of Survey Plots 103 and 121 till 1962, and it is argued that if Ghurfekan was in possession of Survey Plot 103 he would have categorically denied the suggestion. In my opinion, the argument is misconceived. PW 1 did not know the plot number and, therefore, he could not categorically deny the suggestion. Reliance is also placed on the following passage in the cross-examination of PW 15:
“I know Tarkeshwar Estate for sometime. They were Maliks for 4-5 years….
Q : Is it a fact that they were Maliks for 4-5 Years prior to the abolition of the zamindari and they were in possession?
I do not think this amounts to an admission of the actual cultivating possession of Tarkeshwar Estate. The question put was a composite one. The answer to the first part of the question whether they were Maliks were obviously in the affirmative and, therefore, the witness gave an affirmative answer.”
Upon a review of the entire evidence on record, and the facts and circumstances of the case I hold that it has proved beyond doubt that Ghurfekan was in possession of portions of plot 103 measuring 25 decimals or so and had grown paddy crops thereon which were harvested in 1964.”
The court accepted the evidence of Ghurfekan (PW 1), Mangru (PW 12), Somaru (PW 14), Imrit (PW 7) and Ghuran Khewat (PW 15) in regard the broad features of the prosecution version. While dealing with the case of participation of the individual accused persons in the occurrence it entertained doubt about the participation of 18 of them and gave them benefit of doubt. The guilt of the six appellants was held to have been fully established. As the firing was resorted to only as a last resort —though the appellants were held to be aggressors — Ram Dahin Singh was sentenced to imprisonment for life. Satyanarain Singh was also sentenced to imprisonment for life under Section 302 read with Section 109 IPC. The charge under Section 302 read with Section 109, IPC. The charge under Section 302, read with Section 149 IPC. was also held proved and the accused were sentenced to imprisonment for life on this count as well. Ram Dahin Singh and Loku Ahir were further convicted of an offence under Section 148 IPC and sentenced to rigorous imprisonment for two years. Satyanarain Singh, Umrao Singh and Chhadi Soba were held guilty under Section 147 IPC, and sentenced to rigorous imprisonment for one year. Umrao was further sentenced to six months rigorous imprisonment under Section 323 IPC, for causing hurt to Ghuram Kewat and Loku Ahir was sentenced to rigorous imprisonment for one year under Section 324 IPC, for causing injury to Sukhari.
4. Two appeals were presented in the High Court, one by Ram Dahin Singh (Cri.A. No. 423 of 1965) and the other by the remaining five appellants (Cri.A. 424 of 1965). Before the High Court the appellants pressed their defence of alibi on behalf of Ram Dahin Singh and Satyanarain Singh and also contended that it was Ghurfekan and his party who were the aggressors and that the accused were in lawful possession of their fields and Ghurfekan and others had attempted forcibly to remove the paddy crop harvested by some of the accused persons two days prior to the occurrence. The High Court in a detailed and exhaustive judgment, repelled these contentions and dismissed both the appeals. In regard to the place of occurrence the High Court said:
“The prosecution case, therefore, that the occurrence took place over the harvesting of the crop of Plot No. 103 appears to be more probable than the defence case that the crop of Plot No. 121 was harvested by Ghurfekan and others over which the occurrence took place. Although a number of witnesses have been examined on behalf of the defence no one has been examined to support the defence version of the occurrence. In my opinion the learned trial Judge has rightly rejected the defence version of the occurrence.”
The High Court also agreed with the trial court in rejecting the plea of the accused persons that they had the right of private defence and in upholding the right of private defence both of person and property on the part of Ghurfekan and his companions. Insofar as Ram Dahin Singh's plea of alibi is concerned the High Court entertained grave suspicion about the genuineness of the documents produced on his behalf and also did not feel impressed with the trustworthiness of the defence witnesses Bande Hasan and Shivaji. However, assuming that Ram Dahin Singh had actually deposed as a witness in the Court of the Railway Magistrate at Varanasi on November 4, 1963, the High Court felt that it did not prove Ram Dahin Singh's alibi because it was considered quite possible for him to have appeared in the court and also to have participated in the occurrence on the same day. In regard to the alibi of Satyanarain Singh also the High Court agreed with the view of the trial court that it was quite possible for him to have attested the document at Babua and also to have participated in the occurrence at Kaker Kundi, the distance between the two places by road being only 22 miles. The evidence of the eyewitnesses was considered by the High Court to be trustworthy and, therefore, acceptable. On the question whether all the appellants knew that the offence under Section 302 IPC, was likely to be committed the High Court expressed itself thus .
“If a member of the unlawful assembly is armed with a gun, the other members of the unlawful assembly must be attributed with the knowledge that murder is likely to be committed in prosecution of the common object of the unlawful assembly. The evidence on the record indicates that whole thing was pre-planned and Ram Dahin Singh though a resident of Village Niranjanpur, had come armed with a gun. It cannot, therefore, be said that the other members of the unlawful assembly had no idea about the firing. There is also nothing on the record to show that the other appellants ceased to be members of the unlawful assembly at the time when the gun was fired on the four victims, namely, Kutkaiyan, Doma, Natha and Navami by Ram Dahin Singh.”
5. On appeal in this Court Mr Nuruddin Ahmed repeated the contentions advanced in the courts below. According to him Plot No. 103 was in actual possession of the appellants and Ghurfekan and his party had not sown the paddy crop. In any event so argued the Counsel the title in Plot No. 103 which vested in Ghurfekan and others was only about 25 decimals or so but they were attempting forcibly to take away the harvested paddy crop from the entire field which was in possession of the purchasers from Tarkeshwar Estate. On the basis of this submission it was contended that the appellants had a right of private defence and, therefore, their conviction is unsustainable. Reliance in support of this plea was placed on a recent decision of this Court in Gottipulla Subbaramanyam v. State of Andhra Pradesh1. The plea of alibi on behalf of Ram Dahin Singh and Satyanarain Singh were also strongly pressed before us.
6. Insofar as the right of private defence is concerned in face of the concurrent findings of the two courts below that the actual possession of the land was with Ghurfekan and others and that there is no reliable evidence in regard to actual possession by the purchasers from Tarkeshwar Estate, this plea is difficult to sustain.
7. Mr Nuruddin learned Counsel for the appellant did not question the assessment of evidence by the two courts below which, he, in our opinion, rightly conceded, could not be questioned on appeal under Article 136 of the Constitution.
8. The point on which he laid stress was that the documentary evidence conclusively establishes that the actual possession of Plot No. 103 was not with Ghurfekan but was with some of the accused persons. Of course, as contended on behalf of the appellants, Ram Dahin Singh had nothing to do with this plot or with the land purchased from the Tarkeshwar Estate in 1962, but it is in evidence that he is a distant agnate of Loku who had as a co-vendee purchased a portion of the land sold on November 20, 1962. We are unable to agree with the appellants' learned counsel that the documentary evidence establishes the possession of the accused persons of the entire Plot No. 103 and that Ghurfekan was not in possession of any portion of this plot. The documentary evidence, in our opinion, does not establish anything more than passing of mere proprietary or paper in possession of considerable land including a portion of Plot No. 103. The trial court and the High Court have both taken the same view and have come to a positive conclusion that Ghurfekan was in possession of portion of Plot No. 103 on which he had grown paddy crop and which was harvested by him and the harvested crop was being carried in bundles from the field to the Khalihan on the date of occurrence. This conclusion is based on a consideration of the entire evidence, including oral evidence which is, in our opinion, more important than the documentary evidence on the question of actual physical possession in this case. It may be pointed out that no attempt was made in this Court to show that appreciation of oral and other evidence by the Courts below was in any way infirm exposing it to legitimate criticism and laid it open to re-assessment by this court. Once this conclusion is upheld the plea of the right of private defence by the appellants must lose its importance. But even otherwise this plea seems to be misconceived. According to Section 103, IPC, the right of private defence of property extends under the restrictions mentioned in Section 99 to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which or the attempting to commit which occasion the exercise of the right, is—
(ii) house-breaking by night;
(iii) mischief by fire committed on any building or vessel etc.;
(iv) or theft, mischief or house trespass under such circumstances as may reasonably cause apprehension with death or grievous hurt will be the consequence if such right of private defence is not exercised.
Our attention was not drawn to any material on the record which would bring the appellants case within this section. In regard to the right of private defence of body according to Section 100 IPC, so far as relevant for the present case, it extends under the restrictions mentioned in Section 99 to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be such as assault as may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault. We are in this case not concerned with the other offences which may give rise to this right. Now, if Ram Dahin Singh's party consisted of 30 or 40 persons, one of them undoubtedly being armed with a gun — and this circumstance cannot be lightly brushed aside — and the party of Ghurfekan being only a few persons carrying their harvested crops, it is difficult to appreciate how the plea of self-defence can reasonably be urged by the appellants with any show of plausibility. Our attention was not invited to any evidence on the record on which this plea can be sustained. On the conclusion of the two courts below arrived at on evaluation of evidence, which is not shown to be erroneous or otherwise unsupportable it is futile to attempt to sustain the plea of private defence. It may in this connection be pointed out that the onus of establishing the plea of the right of private defence is on the accused though as observed in the case of Gottipulla Subbaramanyam case he is entitled to show that this right is established or can be sustained on the prosecution evidence itself. In the present case no right of private defence is sustainable on the material on the record.
9. This takes us to the plea of alibi. It was strongly contended by Mr Nuruddin that Ram Dahin Singh is shown to have appeared on November 4, 1963, as a witness in the Court of the Railway Magistrate, Varanasi about 43 miles away from the place of occurrence and this, according to the argument, fully establishes his alibi. The trial court took the view that he could have taken part in the occurrence and also thereafter could have appeared in the court at Varanasi by travelling by a motor car or a jeep. Ram Dahin Singh, who owned a licensed gun, has been described by the trial court to be a rich man. The appellant's Counsel criticised this view by submitting that unless there is evidence on the record to show that Ram Dahin Singh did actually so travel by a jeep or a motor car this conclusion is unsustainable. The High Court agreed with the view taken by the trial court though it also entertained serious doubt about the genuineness of the documents produced in support of the plea of alibi.
The same criticism was levelled before us against the conclusions of the High Court. We do not find any cogent ground for not accepting the concurrent conclusions of the two courts below. It is a pure question of appreciation of evidence which does not seem to suffer from any infirmity and is certainly not unreasonable or improper. As against the plea of alibi the prosecution witnesses who identified Ram Dahin Singh as the man who used his gun in the occurrence were considered by both the courts below to be reliable, whose testimony was worthy of acceptance. No attempt was made in this court below. Once the concurrent conclusion on this point is accepted the plea of alibi seems to us to be difficult to sustain. In the consideration of this plea the conduct of Ram Dahin Singh in absconding soon after the occurrence would also have some relevance. He disappeared soon after the occurrence. His house was searched in his absence on November 6, 1963, by Paramanand Prasad Karan (PW 22), who was officer-in-charge of Chainpur Police Station in those days and who had taken charge of this case and the counter-case on November 5, 1963, from ASI Police, Baban Singh. Ram Dahin Singh's gun was not found in the house when it was searched nor were cartridges found there. According to the evidence of Bande Hasan (D. W. 1), for Ram Dahin Singh it was 10 to 15 days after the 4th of November, 1963, that Ram Dahin Singh went to him, Bande Hasan, it may be pointed out, is stated to be the Counsel in the case in which Ram Dahin Singh is said to have appeared as a witness on November 4, 1963 in the court of the Railway Magistrate at Varanasi. Ram Dahin Singh, according to this witness, told him when he met him after 10 to 15 days that a murder case had been started against him alleging the occurrence to have taken place on the date on which he had appeared as a witness. Bande Hasan advised Ram Dahin Singh to obtain certified copies of the relevant papers and to produce them in court in his defence. Ram Dahin Singh again went to Bande Hasan and thereafter Bande Hasan saw the accused only in court at his trial. When questioned whether Bande Hasan had made any statement to the police after November 4, 1963 and before Ram Dahin Singh met him 10 or 15 days thereafter he replied that he could not remember. The evidence of Bande Hasan seems to us to be unimpressive. There is evidence on the record that the gun belonging to Ram Dahin Singh was also damaged when recovered. It was not found in the house when it was searched on November 6, 1963. The fact that Ram Dahin Singh absconded soon after the occurrence and took the gun with him is relevant and can properly be taken into account by the court in appraising the evidence against him and also in appraising the evidence in regard to his plea of alibi. In this case, as generally in most cases, the prosecution evidence and the evidence of alibi is not to be considered in compartments. The evidence on one part will have impact on the other and the court has to consider the entire material on the record as constituting one complete picture. This is precisely what the courts below did. In view of the conclusions of the courts below we have no hesitation in disagreeing with the appellants' contention and we repel Ram Dahin Singh's plea of alibi.
10. Turning to the plea of alibi on behalf of Satyanarain Singh, appellant, the courts below have again concurrently held that this evidence is consistent with Satyanarain Singh's participation in the occurrence. The prosecution evidence that Satyanarain Singh instigated Ram Dahin Singh to use his gun has been believed by both the courts below and we are unable to hold that any doubt has been introduced in the prosecution evidence by the evidence produced in support of Satyanarain Singh's alibi. Indeed, all that is brought on the record is that on that day he had attested a mortgage deed at a place about 22 miles away from Kakar Kundi. The story deposed by the defence witness in support of Satyanarain Singh's alibi was considered by the trial court to be highly improbable and it was added that insofar as the attestation of the document was concerned he could have been present at the place of occurrence and could also have attested the document. The High Court agreed that the attestation of the document was not inconsistent with Satyanarain Singh's presence at the time and place of the occurrence. We do not find any defect or error in this conclusion which would justify interference by this Court under Article 136 of the Constitution. Indeed, we find ourselves in agreement with that view.
11. The appellant's learned Counsel lastly contended that in any event the offence of which Ram Dahin Singh has been charged and convicted does not fall under Section 302, IPC, because the gun was fired when there was a grave danger of grevious injury to the persons composing of his group. The Counsel emphasised that Ram Dahin Singh had no personal concern with the land purchased in 1962 and, therefore, he must be deemed to have acted purely with the object of defending his partymen against aggression at the hands of Ghurfekan and his companions. It is not possible to accept this submission. Once it is held that the party of the accused were the aggressors then merely because the gun is used after some of their partymen had received some injuries at the hands of those who were protecting their paddy crop and resisting the aggression on the part of the accused, can be no ground for taking the case out of Section 302 IPC. If otherwise the injuries caused bring the case within the definition of murder. As a matter of fact this argument is only another fact of the plea of self-defence which we have already rejected. While developing this argument Mr Nuruddin submitted that the appellants should be considered only to have exceeded their right of private defence and, therefore, they cannot be held guilty of murder. This submission is equally unacceptable. Exceptions 2 to 300 IPC, on which the submission seems to be founded postulates the exercise of the right of private defence in good faith and also without premeditation and intention to do more harm than is necessary for the purpose of self-defence. The number of members of Ram Dahin Singh's party and the fact that Ram Dahin Singh was armed with a loaded gun negatives absence of premeditation; similarly the number of shots fired by him and the casualties resulting therefrom militates against the suggestion that there was no intention of doing more harm than necessary for the purposes of self-defence. In this case there seems to be both premeditation and intention to do more harm than was necessary when the gun was fired more than once. The right of private defence, it may be remembered, is purely preventive and not punitive or retributive. No separate arguments were addressed on behalf of the appellants in regard to the other offences. In the result, therefore, this appeal fails and is dismissed.