ORDER [ENTITY], J.
1. [ENTITY] and his brother [ENTITY] were tried for murder in respect of the death of three person?, namely, [ENTITY], [ENTITY], [ENTITY] (who was living with [ENTITY] as his wife) and their daughter [ENTITY], They were also jointly tried for an attempt to commit murder of [ENTITY], a son of [ENTITY] and Mst. [ENTITY]. They were convicted of murder of [ENTITY], Mst. [ENTITY] and [ENTITY] and, for these offence3, each was sentenced Under [SECTION] or [SECTION] with [SECTION] of the [ACT] to a consecutive term of imprisonment for life. For the attack made on [ENTITY], [ENTITY] alone was convicted Under [SECTION] of the Code and sentenced to a consecutive term of imprisonment for one year. [ENTITY] and [ENTITY] have filed this appeal against their conviction and the sentences awarded to them.
2. The State Government have filed [CASE NUMBER] for enhance. ' ment of the sentences awarded to [ENTITY] and [ENTITY]. This judgment shall, dispose of that revision also.
3. The material facts appearing from the evidence, which are not now in dispute, may be shortly stated. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were four brothers who lived and messed jointly at village Kyoti. They also jointly held over 60 acres of laad in thats. village. It transpired that the eldest brother [ENTITY], who was blind, took in his keeping Mst. [ENTITY]. wife of his younger brother [ENTITY]. The bad name which [ENTITY] thereby required compelled him and Mst, [ENTITY] to leave the village ard go to Jabalpur where [ENTITY] became a professional beggar. That was some eight years ago. In the year 1936, he had re. turned to village Sam where he gave his daughter [ENTITY] in Marriage to a cousin of [ENTITY] P.W. 2. Later on, [ENTITY] thought of getting his share of his joint family land and accordingly made on August, 19, 1966 an application to the Tahsildar for partition and separate possession of his l/4th share in the land [Ex.P-17]. In due course, [ENTITY] was directed to produce evidence to show that there wag no partition. One of the dates fixed for the purpose was October, 27, 1966. At or about that time, [ENTITY] had erected a hut in one of the joint family fields and start. ed living there with [ENTITY], [ENTITY] and his two illegitimate children, [ENTITY] and [ENTITY]. On the morning of October, 31, 1966, at about 8 A. M. to be more precise, [ENTITY], Mst [ENTITY] and [ENTITY] were attacked and killed and their dead bodies lay in the adjacent field of [ENTITY] P.W. 1. Even the small boy [ENTITY] was not spared and he too received Borne injuries.
4. At 3 P. M. on the game day (October, 31. 1966), [ENTITY] [ENTITY] to the police station at Garh, some 15 miles away, a written first report Ex. P-7 to the effect that Lai. man and [ENTITY] had used a Lathi and a ramma to attack [ENTITY], Mst. [ENTITY] and their two children, that three of them had died on the spot and that only the son [ENTITY] had survived. In due. course, the usual inadequate were held and the 3 dead bodies were sent for post-mortem examination.
5. Dr. [ENTITY] P.W. 11, who performed the post-mortem examination of the 3 dead bodies of November 2, 1966, found as follows :
(i) Mst. [ENTITY] had the following external injuries attributable to hard and blunt weapons
(a) a lacerated wound, 3"x2"x 1/2", on the forehead, with fracture of frontal bone;
(b) a lacerated wound, 2" x 2" x 1", on the forehead;
(c) a lacerated wound, 4" x 2" x 1 1/2", on the left parietal bone, fracturing and crushing the parietal bone and causing the brain matter to flow out through it;
(d) a lacerated wound, 3" x 2" x 1", on the right parietal bone behind the ear;
(e) multiple bruises on the right hand extending from wrist to shoulder; and
(f) multiple bruises on the left radius, fracturing it and the ulna.
The doctor stated that the death was due to shock and haemorrhage caused by rupture of the brain owing to fracture of the skull bones. - In his opinion, the injuries were sufficient in the ordinary course of nature to cause the victim's death.
(ii) [ENTITY] had the following external injuries attributable to hard and blunt weapons: (a) a lacerated wound, 3" x 3" x 1", on the parietal bone resulting in fracture of the bone:
(b) a lacerated wound, 3" x 3" x 1", fracturing that bone;
(c) the lower and upper mandibles were fractured into many pieces; they were actually crushed;
(d) hematoma and lacerated wound on the right eye; the eye-ball was ruptured;
(e) multiple bruises on the posterior aspect of the back;
(f) multiple bruises on the chest, more particularly on the medial sternum :
(g) abrasions of various sizes on the anterior aspect of right know and lower left leg. The doctor stated that [ENTITY] died due to shock and haemorrhage caused by rupture of the brain owing to fracture of the occipital and parietal bones and crushed type fracture of jaw bones. In his opinion, the injuries were sufficient in the ordinary course of nature to cause the death of the victim.
(iii) The girl [ENTITY] had the following external injuries attributable to hard and blunt objects :
(a) a lacerated wound, 2" x 2" x 1 1/2 on the lower jaw with resulting fracture;
(b) left eye ball ruptured; there were bruises and hematoma locally;
(c) a lacerated wound, 3 x l 1/2" x 2, below the right ear; fracture of the right upper mandible;
(d) a lacerated wound, 2" x 2" x 1 1/2 fracturing the occipital bone;
(e) bruises over an area of 3" x 3 1/2 on the umbilical region;
(f) multiple abrasions on the chest;
(g) multiple abrasions over an area of 4" x 3 1/2" on the left thigh;
(h) multiple abrasions on the left knee; and
(i) multiple abrasions over an area of 4" x 2" on the right thigh.
The doctor stated that Mst. [ENTITY] died of shock and haemorrhage resulting from fracture of the occipital bone and the jaw bones. In his opinion, the injuries were sufficient in the ordinary course of nature to cause the victim's death.
6. Dr. [ENTITY] P.W. 12 examined the boy [ENTITY] (4 years) on November 1, 1966 and found that he bad the following external injuries attributable to hard and blunt objects:
(a) Multiple contusions on the thoracic region, over an area of 6" x 4 1/2. They were on the back side on either aide of the spine; and
(b) a lacerated wound 1" x 1/2" on the cheek, extending laterally from the left angle.
7. The prosecution case, shortly stated, was this. When [ENTITY] started living in a but erected in one of the fields belonging to the joint family, [ENTITY] approached him, told him that he had acquired a bad name for taking in bis keeping his younger brother's wife and asked him to leave the village, [ENTITY] refused to do so, [ENTITY] then called a Panchayat to induce [ENTITY] to adopt that course, but to no purpose. Thereupon, on. the morning of October. 31, 1966, [ENTITY] and [ENTITY] went to the but where [ENTITY], Mst. [ENTITY] and the children were living. While [ENTITY] was armed with a ramma, [ENTITY] carried a Lathi. They severely attacked [ENTITY], Mst. [ENTITY] and their children with the result that all but the small boy [ENTITY] died on the spot in consequence,
8. [ENTITY] and [ENTITY] abjured the guilt and pleaded that they were falsely implicated. According to them, [ENTITY] had already taken his share of the joint family property some 16 years ago.
9. In view of the direct evidence of the eyewitnesses and the medical evidence, there can be no question, and it is not disputed either, that [ENTITY], Mst. [ENTITY] and [ENTITY] died of homicidal injuries. It is equally clear that [ENTITY] received his injuries as a result of beating to which he was subjected.
10. In this case, there are 3 eye-witnesses, [ENTITY], W. 1, [ENTITY] P.W. 5 and [ENTITY] P.W. 6 who have attributed the attack made on [ENTITY] and the other 3 victims to [ENTITY] and [ENTITY]. These three persons were named as ocular witnesses in the first report itself. It is, however, argued that there were two other witnesses so named, namely, [ENTITY] and [ENTITY], but they were not examined by the prosecution. [ENTITY] was cited as a prosecution witness but was given up on May 25, 1967 because it is now stated that he had turned hostile to the prosecution. The other witness [ENTITY] was not named or called as a prosecution witness. It is not shown that he was a material witness in the sense that his examination was necessary for unfolding the prosecution case. It was open to the appellants to cite him as their own witness at the appropriate time: [PRECEDENT] . The appellants did not give any list of witnesses in the Court of the Committing Magistrate or even in the lower Court before the trial commenced. They were not entitled as of right to give any list of defence witnesses at the close of the trial. However, on May 29, 1987, the lower Court allowed them to file a list of eight witnesses, including [ENTITY], who had been cited and given up by the prosecution. Pour of these witnesses were examined and others were given up, In this list, neither [ENTITY] nor [ENTITY] was included. Even so, on May 30, 1967, an application was made for summoning as a defence witness [ENTITY], who was obviously not present. That application, which had been opposed also on the ground that it was made for the purpose of delaying the proceedings, was refused mainly because, in view of the provisions of [SECTION], [ACT] the appellants were not, m of right, entitled to have that witness summoned. It is, however, argued that the Additional Sessions Judge should have examined him Under [SECTION] of the Code and his failure so to do has introduced an infirmity in the trial. It is not shown that any eye-witnesses were kept back from an oblique motive: [PRECEDENT] . Indeed, two servants of the appellants, namely, [ENTITY] P.W. 5 and [ENTITY], W. 4, who were admittedly present on the spot, were cited as prosecution witnesses and, while the former bad to be cross-examined as a hostile witness, the latter was, presumably for the same reason, given up. In this context, we think that the omission of the Additional Sessions Judge to examine Under [SECTION], [ACT] [ENTITY], who does not appear to have been regarded as an important witness by the appellants themselves, is not an infirmity affecting the trial or the conclusions therein reached. So, in [PRECEDENT] , their Lordships The powers of the Court Under [SECTION] can and ought to be exercised in the interests of justice whenever the Court feels that the interests of justice so require, but that does not justify Mr. [ENTITY]'s contention that the failure of the Court to have exercised the powers Under [SECTION] has introduced a serious infirmity in the trial itself.
11. It is next argued that the three eyewitnesses examined by the prosecution should not be believed because they did not disclose how the attack commenced. In this connexion our attention is drawn to the evidence [ENTITY] P.W. 5 to the effect that, at thy material time, [ENTITY]'s wife bad gone to the field, that she bad asked [ENTITY] to leave the field because he had already taken his share, that [ENTITY] then threw a piece of stone at [ENTITY]'s wife and broke her bangles, that she went back and then the appellants, 'arrived, that the appellants did no more than give a few lathi blows to [ENTITY], they went away and thereupon 3 or 4 person [ENTITY] man's wife's village arrived there [ENTITY] and the other 8 victims. ', P.W. 5 did not attribute the att [ENTITY]. [ENTITY] and her children to those 3 or persons, though it receives support from [ENTITY]; [ENTITY] D. W. 3 and [ENTITY], D. W. 4. But [ENTITY] P.W. 5 admitted that he had not disclosed all these facts in his earlier statement Ex. P-6 before the committing Magistrate and [ENTITY] D. W. 4 altogether disowned his earlier statement Ex. P-44 in which he had not merely omitted these facts but actually made directly contrary statements. Their evidence on these points is, therefore, utterly unreliable. [ENTITY] D. AV. 3 also tried to support them in this respect but he had to admit that he reached the spot after an alarm was raised. Admittedly that was after the attack on [ENTITY] had commenced. Therefore, his evidence relating to the earlier part is plainly imaginary. Further, he admitted that, before he gave evidence, he had not disclosed to any one that some one other than the appellants had attacked or killed the victims in this case. We agree with the lower Court that the entire evidence of this witness, who did not even know which of his fellow villagers tried to approach the spot in response to the call for help, is unreliable and, indeed, worthless. In our opinion, the interested evidence led to show that another party had attacked the victims is altogether incredible,
12. [ENTITY].W. 1 and [ENTITY] P.W. 6 testified to the fact that the two appellants and none other attacked [ENTITY] and the other 3 victims. Even [ENTITY] P.W. 5 sup-ported their evidence with the minor variation that, some 3 or 4 other persons had joined in attacking [ENTITY] only. As shown, this variation belatedly made by the witness to support the defence of his masters is untrue. In these circumstances, we think that the lower Court rightly discarded the minor variation. Our attention was drawn to the fact that [ENTITY].W. 1 had denied a transaction established by a writing Ex. D. 2 and it was argued that he could not be regarded as truthful. The denial may well be attributed to the fact that the transaction had taken place some "ears ago. The witness frankly admitted his re on the document. In our opinion, ea not affect his being a trustworthy It was also urged that [ENTITY] P.W. 6 ,y a chance witness and his evidence A to have been believed without . A chance witness is not necessarily witness. In this particular case, the evidence of [ENTITY] P.W. 6 is corroborated. But do not regard him as a chance witness, the other residents of the village, he had heard the cry for help and proceeded towards the spot. That he was an eye-witness is mentioned in the first report itself. Further, his presence is supported by the appellants' servant, [ENTITY] P.W. 5. In our opinion, the lower Court rightly relied upon the evidence of these eye-witnessed to find it indubitably established . that the appellants and none other, had attacked [ENTITY] and the other 3 victims and thereby caused the death of 3 of them on the spot.
13. It was urged in the lower Court, though it is not argued before us, that there was a grave and sudden provocation because, some 3 years ago, [ENTITY] had taken in his keeping the wife of [ENTITY]. We do not, therefore, consider it necessary to dwell upon it.
14. On behalf of the appellants, the plea of right of private defence of property was force. fully '.argued before us and it was contended that, if they be found responsible for causing the death of 3 of the victims, they merely exceeded the right of private defence. It is true that [ENTITY] had left the village Kyoti 8 years ago and, thereafter, the joint family lands were in possession of the appellants. An endeavour was made to show that [ENTITY] had already received his share of the joint family lands. If true, this could be established by evidence of unimpeachable character. That was not done. [ENTITY], the evidence of [ENTITY] P.W. 10, Patwari of the village, shows that the disputed field, called Kalra Baqdh, continued to be jointly owned by [ENTITY] and his 3 brothers. As a matter of fact, [ENTITY] had applied to the Tahsildar for partition and separation of his l/4th share of over 60 crores of land, including the disputed field. We have no hesiation in holding that the joint family lands were undivided.
15. It would appear from the evidence of [ENTITY].W. 1 and [ENTITY] P.W. 2 that [ENTITY] had built a hut in the field called Kalra Bandh and started living there from October 28, 1966, though [ENTITY] P.W. 6, [ENTITY] D. W. 3 and [ENTITY] D. W. 4 stated that [ENTITY] had been living there for a week or before October 31, 1986. Indeed, in their statements Under [SECTION], [ACT], the appellants stated that [ENTITY] had been living there for about 2 months before that date. The contention is that Criminal trespass as defined in [SECTION] of the [ACT] is an offence against possession and even a bona fide and good claim to the property, which a person might be able to put forward, is not a valid answer to the exercise of right of private defence of property by the person actually in possession. It is difficult to accept this extreme proposition. A necessary postulate of the exercise of right of private defence in such cases is the commission of an offence of Criminal trespass. But mere entry en the property even by a bona fide claimant is not such trespass unless there be the requisite Criminal intent; [ENTITY]hri v. State of Punjab A.I.R. 1964 Punj 986. It is unnecessary for tin purpose of this case to dwell further on this aspect of the case because, in our view, the right of private defence was not available to the appellants for two reasons. In the first place, as we have shown, [ENTITY] had already entered on the land and was there for a number of days to the knowledge of the appellants. Indeed they wanted, and sought to induce, him to go away not because he had trespassed on the land but because his presence in the village was likely to revive the in dispute of the family of the appellants. Even a Panchayat had been called for the purpose [ENTITY].W. 1, [ENTITY] P.W. 2 and [ENTITY] P.W. 6.] In these circumstances, we think that there was sufficient time to have recourse to public authorities within the meaning of [SECTION] of the Code. So, in [PRECEDENT], the Supreme Court observed It has been found that the fence was put up three or four days before the day of occurrence. There was no immediate emergency which called for the removal of the fence by the appellants. It is true that going to a civil Court or a criminal Court would take time, but even so the law enjoins that if there is time to have recourse to public authorities, then those public authorities, must be approached first.
Secondly, on all accounts, the victims had ,run for safety to the neighbouring field of [ENTITY].W. 1, that they were chased and attacked in that field and that 3 of them died in consequence in that field and their dead bodies too were found there. In our opinion, the right of private defence of property, even if it was available, came to an end as soon as {the victims left the land on which they had entered and fled for safety. That being so, the two appellants were rightly convicted Under [SECTION] or [SECTION] of the Code of the offences of murder. Further, the conviction of [ENTITY] for causing simple hurt to [ENTITY] is also right.
16. [ENTITY] had, by his shameful behaviour of taking in his keeping his own younger brother's wife, disgraced the whole family. Indeed, the force of public opinion had compelled him earlier to leave the village. When, therefore, he returned to the village, the appellants did all they could to induce him to go away. Only when they failed to do so, they Committed these crimes. In these circumstances, we consider that the extreme penalty is not merited and the sentence of imprisonment for life is appropriate. Further, we are also of the view that the ends of justice would be met if all the sentences are directed to run 'concurrently.
17. In the result, we direct that the sen- tences of imprisonment for life awarded to each of the two appellants and the further sentence of rigorous imprisonment for one year awarded to [ENTITY] alone shall run con-currently. Subject to this modification in regard to the sentences, the appeal fails and is dismissed. For reasons already given, the application for enhancement of the sentences too is dismissed.