B.N. Maitra, J.
1. The case for the prosecution is that plot No. 695 at Kenda known as Uparbahal or Jingasthan belonged to one Jadab Singh, who died leaving behind two sons, Gopal and Madhu Singh. Gopal is dead and his only son is Radhagobinda. Madhu died leaving behind his widow and three sons, Bhutnath, and (the two accused) Hikim and Mukunda, and two daughters, Giribala and Mukreswari. Bhutnath is dead. The Title Suit No. 100 of 1964 was filed in the Sub Judge's Court at Purulia for partition of the joint properties of Radhagobinda and of his co-sharers. The northern portion of that land bearing the plot No. 695 was in the actual possession of the accused Hikim and Mukunda and the southern portion belonged to Radhagobinda. Before that partition suit was filed he sold that southern portion to Kinu and the latter possessed it. A decree for partition was passed and the northern portion was allotted to Hikim and Madhu, while the southern block was given to Radhagobinda Singh. On the 15th Jaistha, 1382 B. S. corresponding to 30-5-1975 at about 7 a. m. Kinu his two sons, Manohar, Arun, and Radhagobinda went to the southern portion of the disputed plot No. 695, i. e., on the case land, for preparing the same for cultivation. Suddenly the accused Mukreswari, Hikim, Mukunda and their mother, Lakhi Bala appeared there being armed with tangi, axe and lathi and forbade Radhagobinda and others from cultivating the disputed land They did not pay any heed to the same. Thereupon they attacked Radhagobinda, Kinu, Manohar and Arun, Lakshmibala, Hikim and Mukunda struck Arun with lathi and tangis and Mukunda inflicted injuries on Radhagobinda with tangi. He also caused bleeding injury to Manohar. Mukreswari assaulted Manohar with a lathi. Arun expired at the spot. Hikim injured Kinu. Radhagobinda went to the police station and lodged the F. I. R. at 8 a. m. Charge was framed against Hikim, Mukunda and Lakhi Bala under Section 302/34 of the I.P.C. Hikim was further charged under Section 325 I.P.C. for voluntarily causing grievous hurt to Kinu Singh. Mukunda was also charged under Section 325 I.P.C. for voluntarily causing grievous hurt to Radhagobinda Singh. Mukunda was further charged under Section 352 of the Code for assaulting Manohar Singh. Mukreswari was also charged under Section 323 for voluntarily causing hurt to Manohar.
2. The defence was that the accused were not guilty. The plea was that Hikim and Mukunda were in actual possession of the disputed land. The land was already ploughed and kept ready by them. Arun, Radhagobinda and the members of their family were the aggressors. They filed a counter case for the injuries sustained by them, vide Ext. 13.
3. The learned Sessions Judge, Puru-lia, believed the prosecution version regarding the accused Hikim and Mukunda for the charge under Section 302/34 I.P.C. He found that the case land was in the possession of Kiriu. He acquitted the accused Lakhi Bala of the charge under Section 302/34 I.P.C. He acquitted Hikim and Mukunda of the charge under Section 325 of the Code. He found the accused Mukunda not guilty of the charge under Section 352 I. P. G. and he also found Mukreswari not guilty of the charge under Section 323 I.P.C. and he acquitted her. Hikim and Mukunda were convicted under Section 302/34 of the Code and sentenced to suffer imprisonment for life. The appeal is by these two accused from jail.
4. It has been argued by Mr. Prasun Chandra Ghosh appearing on behalf of the appellants that the disputed land was in the actual cultivation of Hikim and Mukunda. Radhagobinda did not live in that village and Kinu also did not possess the land. Radhagobinda, Kinu and their relations were the aggressors. The evidence given by P. Ws. cannot be believed. The entire family of the accused was falsely dragged in. At all events the court should find that there was a right of private defence because the evidence of doctor shows that Hikim and Mukunda sustained serious injuries on their persons. So they should be acquitted.
5. Mr. R.N. Bose, learned Senior Advocate appearing on behalf of the State, has stated that Kinu was in actual possession of the disputed land. Possession was found in his favour in a proceeding under Section 145 Cr. P.C. and so the appellants were rightly convicted by the learned Sessions Judge.
6. P. W. 1 Radhagobinda says that on the 15th Jaistha, 1382 B.S., in the morning Kinu's son Arun was murdered in the mouza Kenda. P. W. 23 Dr. D. K. Chandra held the postmortem examination on the dead body of Arun on 31-5-1975. He found the following injuries:
1. Sharp cutting wound over posterior aspect of the right mid thigh 5' X 2', muscle deep, blood clots present.
2. Tailing or two parallel linear abrasions over left eye posteriorly 6'.
3. Sharp cutting wound over right hypochondrium and right loin 10'X2' with fracture of lower four ribs with injury 2' long and 1/2' deep, blood clot present.
4. Sharp cutting wound over middle of the back 8' X 21/2' X bone deep.
5. Sharp cutting wound over posterior aspect of the left side the chest 6 1/2' X 21/2' lower four ribs cut tailing towards left side for 4'.
Regarding scalp injury, scalp and skull intact, fracture of lower dorsu quarry 12 dorsu with survical fifth vertebra fractured.
6. Sharp cutting wound over left side of back at its upper part l 1/2 X 3/4X bone cut.
7 Sharp cutting wound over back of the neck 8'X l1/2' muscle deep prolong towards anterior aspect of right side of the neck.
8. Lacerated injury with avulsion of skin over right shoulder, 3' X2 1/2'X muscle deep.
9. Sharp cutting wound over left scapular region 31/2'X 2'X bone deep with fractured scapula.
10. Sharp cutting wound over left mastoid region 2'X l' with fracture mastoid bone with left ear cut 2' X I' bone cut.
11. Sharp cutting wound over right lower jaw with fracture 81/2'X l' right neck vessles cut with survical vertebra fractured.
12. Lacerated injury over anterior aspect of left arm 2 X 1/2' X muscle deep. He has stated that death was caused by multiple sharp cutting injuries which were ante mortem and homicidal in nature and all those injuries were sufficient to cause the death in the ordinary course of nature. We accept this portion of the prosecution version and find that on 15th Jaistha 1382 B. S. Arun was murdered in the mouza Kenda.
7. Charge under Section 302/34 I.P.C. is that the three accused Lakhi Bala, Hikim and Mukunda had the common intention to oust Kinu and his sons Manohar and Arun from the disputed land No. 695. So the first question arises as to who were in the actual possession of the disputed land and whether the prosecution version in this respect is true. The report of the pleader commissioner in the partition suit, Ext. 8, has been proved by the pleader commissioner, P. W. 9, Kriti Bhusan Singh. It appears that the partition suit was decreed. Thereafter the process server Goed (P. W. 7) went to the locale and delivered possession. We can see from the evidence of P. W. 5 Bhan-dari Mahto, P. W. 8 Pandab Singh and P. W. 9 Kirti Bhusan Singha that the peon purported to deliver possession on the footing of the writ for delivery of possession, vide Ext. 3. But the evidence given by the process server P. W. 7 Goed is important because he has admitted in his cross-examination that initially it was written that the date of delivery of possession was 18-3-1973 and subsequently it was overwritten as 19-3-1973 without any authentication.
8. Here the evidence given by P. W. 16 Prasanna is relevant. Although the learned Senior Government Advocate appearing on behalf of the State, has put emphasis on the fact that Kinu's possession was found by a court in a proceeding under Section 145 Cr. P.C. But there is a lacuna in the prosecution case because the identity of the land of that case under Section 145 Cr. P.C. was not established. The learned senior Advocate further emphasized the fact that P. W. 13 Indiram Mahato has clearly stated that the case land was in the actual possession of Radhagobinda. Even if this evidence is accepted, it appears that this witness says that the southern portion of plot No. 695 was in the possession of Radhagobinda. But the prosecution case is otherwise because the allegation is that the portion was in the actual cultivation of Kinu and not of Radhagobinda because the latter had sold it to Kinu long before the partition Suit No. 100 of 1965 was filed in the Sub Judge's Court at Purulia. Therefore, the evidence of P. W. 13 Indiram is of no assistance to the prosecution.
9. P. W. 16 Prasanna holds the land to the contiguous south of the disputed plot No. 695. This witness says in his chief that to the north of his land is the land of Hikim Thakur and Radhagobinda. But he gives way in his cross-examination and is constrained to admit that the land to the north of his plot is being cultivated by Hikim and Mukunda all along. This cross-examination demolishes the prosecution case. We, therefore, find that the decision of the learned Sessions Judge that Kinu possessed that land, is erroneous Possession delivered by the pleader commissioner was merely a paper transaction.
10. The charge was that the common intention of the aforesaid accused was to oust Kinu and his two sons from the case land as stated before. If Kinu had no actual possession in that land, no question of ouster of Kinu from that land could arise. So the prosecution case is defective:
11. The matter does not end there because the learned Advocate appearing on behalf of the appellant has pointed out from the evidence of P. W 3 Kinu that this witness has admitted in his cross-examination that although he purported to purchase a portion of the disputed land from Radhagobinda, but he did not apply for mutation of that land in his name and obtain rent receipt therefor in his name and he did not pay any rent therefor.
12. P. W. 1 Radhagobinda has stated that he has no hut at Kenda, he has been living at Sasandih from his fifth year and after the sale of the land to Kinu he did not go there. He was requested by Kinu to go there and identify the land and deliver possession to him. If the land was in the actual possession of Kinu, no question of requesting P. W. 1 Radhagobinda to identify that land and to deliver possession to him could arise. So we have no hesitation in holding that the real facts were suppressed by the prosecution and the disputed land was in the actual possession of Hikim and Mukunda and not of Kinu.
13. P. W. 1 Radhagobinda, P. W. 3 Monohar and P. W. 4 Kinu have been examined to support the prosecution version. The former has stated that on the 15th Jaistha, 1382 B. S., he was ploughing the land and the accused Mukreswari, Hikim, Mukunda and Lakhi Bala appeared at the spot. Hikim told him not to plough the land and asserted that the same belonged to him. P. W. 3 Monohar and P. W. 4 Kinu denied that the accused Mukunda and Hikim forbad them to plough land.
14. P. W. 1 Radhagobinda says that since they did not pay any heed to Hikim's word Hikim dealt a blow on him and Mukunda struck Kinu on the head and there was a scuffle. He has stated that thereafter Arun was injured by Hikim, Mukunda and Lakhi Bala. He has admitted that the deceased Arun snatched away the axe from Lakhi Bala while he was being assaulted and with the axe he dealt blows on Mukunda and Hikim. It may be pointed out that this was denied by P. W. 4 Kinu in his cross-examination.
15. Here we can refer to the evidence given by P. W. 24 A. K. Bhattacharjee. He has stated that on 30-5-1975 at 3-45 p. m. he examined one Hikim Singh at Arsha Health Centre and found one incised injury 6'x1/2'X muscle deep on the left face from temporal region to the angle of the mandible and the wound was fresh and bleeding. He found one incised injury 2'X1/4'X muscle deep on the middle of the back over the spine and it was bleeding and fresh. He found another incised injury l1/2'X1/4'X muscle deep on the lateral aspect of the right arm and it was also bleeding and fresh. He has opined that all the injuries might have been caused with a sharp cutting weapon. This witness also says that on that day at-4 p. m. at Arsha Health Centre he examined Mukunda Thakur and found one perforated injury 21/2'X 1/2' in the right chest and that injury was fresh and bleeding. He says that this injury might have been caused with a sharp cutting weapon.
16. The evidence of P. Ws. has also been discussed. From the aforesaid discussions we hold that the P. W. 1 Radhagobinda, P. W. 4 Kinu, P. W. 3 Monohar (son of P. W. 4 Kinu) and Arun were the aggressors.
17. Here we can refer to the provisions of Section 100 of the Indian Penal Code. The decision of Gajendragadkar C.J., in the case of Jai Dev v. State of Punjab reported in : 3SCR489 may be cited in this connection. It has been stated that allowance has to be made for the feelings of the accused at the time of exercising the right of private defence because he will try to strike a decisive blow. In dealing with the question if more force is used than was necessary to adopt, tests of detatched objectivity which would be so natural in a court room, for instance long after the occurrence has taken place, should not be adopted. The means adopted or the force used should not be weighed in golden scales. The person must consider if the threat to his person or property is real and immediate. So long as the threat lasts he cannot be expected to modulate his defence step by step according to that attack. If the danger is continuing, the right is there.
18. We have discussed the evidence of P. Ws. The F. I. R. of the counter case is Ext. 13. The aforesaid aggressors went to take forcible possession of the disputed land. A fight ensued. The deceased Arun struck the two appellants Mukunda and Hikim on the chest, and face and spine respectively when the attack was going on. The aforesaid two accused had an apprehension of being killed with sharp cutting weapons by the aggressors or at least of sustaining grievous hurt. That apprehension did not cease to exist. The entire family was implicated. We, therefore, find that the two appellants had the right of private defence of person and property and the same was not exceeded. The argument advanced on behalf of the State, that the right of private defence was exceeded, cannot be sustained.
19. The charge is defective. In view of the facts and the circumstances, discussed above, we disbelieve the prosecution version and find that the charge under Section 302/34 I.P.C. was not brought home to the appellants beyond reasonable doubt.
20. The appeal is accordingly allowed. The conviction and sentence be set aside and the appellants are acquitted. Let them be released forthwith.
P.C. Borooah, J.
21. I agree.