JUDGMENT S.D. Khare, J. - These two appeals are directed against an order dated 6th January, 1968, passed by the learned Additional Sessions Judge, Banda, convicting Raghunandan Singh, Rameshwar Singh, Malkhan Singh, Gajodhar Singh, Chandrapal and Bhulua (appellants in Criminal Appeal No. 72 of 1968) under Secs. 302/149, 325/149 and 324/149, I.P.C. and sentencing each to imprisonment for life for the offence of murder, to five years' rigorous imprisonment for causing grievous hurt and to three years' rigorous imprisonment for causing grievous hurt and to three years' rigorous imprisonment for causing simple hurt. The learned Additional Sessions judge further convicted Rameshwar Singh, Malkhan Singh and Gajodhar Singh, under Section 148, I.P.C. and sentenced each to two years' rigorous imprisonment and the remaining three appellants under Section 147, I.P.C. and sentenced them each to one year's rigorous imprisonment. All the sentences were ordered to run concurrently. The Government Appeal is directed against the order of acquittal passed in favour of Prabhu Singh and Balia, both of whom had stood charged for all the offences along with the six appellants named above. 2. The person, who lost his life was Ram Autar, a resident of village Kumharia Dera, within police circle Pailani, district Banda. In that very incident Chandan Singh (P.W. 1), the father of Ram Autar, and Shyam Sunder (P. W. 2), a brother of Ram Autar, also received injuries. One of the injuries received by Chandan Singh was grievous. 3. The appellants in Criminal Appeal No. 72 of 1968 belong to one and the same family. They are also the collaterals of Chandan Singh. Chandan Singh and Prabhu Singh (respondent in Government Appeal No. 806 of 1968) are real brothers. Raghunandan Singh, Rameshwar Singh, Malkhan Singh, Gajodhar Singh and Chandrapal Singh (appellants) are the sons of Prabhu Singh. while Bhulua (appellant) is a son of Raghunandan Singh and a grandson of Prabhu Singh. Balia (respondent in the Government Appeal) was a servant of Prabhu Singh at the time of the incident. 4. The prosecution case, briefly stated, was that on 7th May, 1966, about half an hour before sunset, when Chandan Singh and his sons, namely, Ram Autar and Shyam Sundar, were cutting the wood of some trees standing on plots Nos. Balia (respondent in the Government Appeal) was a servant of Prabhu Singh at the time of the incident. 4. The prosecution case, briefly stated, was that on 7th May, 1966, about half an hour before sunset, when Chandan Singh and his sons, namely, Ram Autar and Shyam Sundar, were cutting the wood of some trees standing on plots Nos. 822 and 823 in their village, all the eight accused persons reached there, armed with spears, pharsa and lathis and asked Chandan Singh not to cut and remove the wood of the trees because Prabhu Singh and his descendants had also a share in those trees. Chandan Singh asserted that he was the exclusive owner of those trees and did not agree to stop cutting the wood of those trees. On the refusal of Chandan Singh and his sons, Prabhu Singh and others started beating them with the weapons which they held. Ram Autar (deceased) received four injuries out of which one was a punctured wound, another a contused wound and other two abrasions; Shyam Sunder (P.W. 2) received eleven injuries out of which two were incised wounds, one a contused wound, another a contusion and other seven abrasions; and Chandan Singh received nine injuries, consisting of four contused wounds, three contusions and two abrasions, thus ignoring the abrasions which could have been caused due to fall or friction against hard substance, the members of the complainant's party received ten lathi injuries, one spear injury and two injuries which could have been caused with a gandasa. It was mentioned in the first information report that these three injured persons had used lathis and kulharis (axes) in the exercise of the right of private defence. 5. The prosecution case was that there had been a private partition between Chandan Singh (P.W. 1) and his brother Prabhu Singh about 40 to 45 years before the occurrence. and in pursuance of that partition Chandan Singh and his sons were in possession of plots Nos. 822 and 823 and had been holding that land in their exclusive possession. According to the prosecution case, Prabhu Singh and other accused persons had no concern with those plots or the trees, the wood of which was being removed by Chandan Singh and others at the time of the occurrence. 6. 822 and 823 and had been holding that land in their exclusive possession. According to the prosecution case, Prabhu Singh and other accused persons had no concern with those plots or the trees, the wood of which was being removed by Chandan Singh and others at the time of the occurrence. 6. The defence case, however, was that only four of the accused persons, namely, Rameshwar Singh, Gajodhar Singh, Chandrapal Singh and Bhulua had gone to the place of occurrence to protest against the action of Chandan Singh and others who were cutting and trying to remove the wood of the trees which had belonged jointly to both the Parties. According to the defence case plots Nos. 822 and 823 on which these trees stood had continued to be the joint property of both the brothers, namely, Chandan Singh and Prabhu Singh and one of them only, namely, Chandan Singh had no right to remove the wood of those trees. The defence case further was that Chandan Singh and his sons were the aggressors inasmuch as they started beating Rameshwar Singh and others, the four accused persons who admitted their presence at the time of the occurrence, and those accused persons wielded their weapons in the exercise of the right of private defence. 7. The learned Additional Sessions judge, after having considered the entire evidence on the record, arrived at the conclusion that the prosecution had succeeded in establishing that the plots on which the trees in question stood had been in continuous and peaceful possession of Chandan Singh and his sons. That fact indicated that these plots had fallen into the share of Chandan Singh at the time of the private partition between the two brothers. The learned Additional Sessions judge further held that Raghunandan Singh and others were the aggressors and the occurrence had taken place in the manner alleged by the prosecution. He, however, gave benefit of doubt to two accused persons, namely, Prabhu Singh and Bhulua Prabhu Singh was admittedly a very old person, older than Chandan Singh, who had claimed his age to be 75 years, and Bhulua was merely a servant at the place of Prabhu Singh. The learned Additional Sessions Judge acquitted Prabhu Singh and Bhulua as he considered their presence at the time of the occurrence somewhat doubtful. The plea of private defence raised by the accused persons was negatived. The learned Additional Sessions Judge acquitted Prabhu Singh and Bhulua as he considered their presence at the time of the occurrence somewhat doubtful. The plea of private defence raised by the accused persons was negatived. In this view of the matter six of the accused persons (appellants in Criminal Appeal No. 72 of 1968) were convicted and sentenced, as mentioned earlier. 8. Some of the facts of the case have not been disputed. Plots Nos. 822 and 823 on which the trees in question stood formed part of the ancestral property of Chandan Singh and Prabhu Singh. There had been no regular partition between them, but for more than forty years the two brothers had been living separate from each other and cultivating the fields of their shares separately. It is also not disputed that the incident took place on 7th May, 1966, about half an hour before sunset at the alleged place of occurrence. In that incident three members of the complainant's party, namely, Chandan Singh (P.W. 1) and his two sons, Shyam Sundar (P.W. 2) and Ram Autar (deceased) received injuries Ram Autar having died at the spot as a result of those injuries. On the side of the accused persons also injuries were caused in the same incident to some of the members of their party. The first information report of the occurrence was lodged by Rameshwar Singh (appellant) at 9-30 p.m., half an hour before Chandan Singly (P.W. 1) was able to reach the police station and give his version of the incident in the first information report lodged by him. According to Rameshwar Singh only two persons, namely Bhulua and Rameshwar Singh, had received injuries at the time of the occurrence. As mentioned earlier, Bhulua had received only one injury which was a contusion, while Rameshwar Singh had received four injuries out of which one was a contusion, two were incised wounds and one a contused wound. Thus five injuries in all had been received by the members of the party of Rameshwar Singh as mentioned by him in the first information report lodged by him soon after the occurrence. Gajodhar Singh and Chandrapal Singh (appellants) could not be arrested immediately after the occurrence. While they were still at large, they got their injuries examined by Dr. Thus five injuries in all had been received by the members of the party of Rameshwar Singh as mentioned by him in the first information report lodged by him soon after the occurrence. Gajodhar Singh and Chandrapal Singh (appellants) could not be arrested immediately after the occurrence. While they were still at large, they got their injuries examined by Dr. H.P. Jain (C.W. 1), Civil Surgeon, Banda, on 9th May, 1966, between 4-30 and 5 p.m. The doctor was of the opinion that the injuries appearing on the persons of Chandrapal Singh and Gajodhar Singh could be about two days old at the time of the examination. All the injuries were simple. Both these persons had multiple contusions on their shoulders and also some other simple injuries. The contention of the learned Deputy Government Advocate is that the injuries found by Dr. H.P. Jain (C. W. 1) on the persons Gajodhar Singh and Chandrapal Singh on 9th May, 1966, two days after the occurrence could have been self-inflicted of self-suffered and manufactured for the purpose of the case. 9. The presence of Gajodhar Singh and Chandrapal Singh at the time of the occurrence was alleged by the prosecution and not disputed by the defence. Therefore, it could be that both of them received one or two injuries of a very simple nature at the time of the occurrence. However, the presence of so many injuries on their persons, particularly when we find- (1) that they had produced themselves before the Civil Surgeon for examination two days after the occurrence. (2) that both of them had multiple contusions on their shoulders on a sufficiently wide area, (3) that the first information report lodged by Rameshwar (appellant) made a mention of the injuries received by two of the appellants, namely, Rameshwar Singh and Bhulua, and there was no mention by him of the injuries subsequently found on the persons of Gajodhar and Chandrapal Singh, Makes it more probable that those contusions were self-suffered and manufactured for the purposes of defence and not received at the time of the occurrence at the hands of the members of the other party. 10. Had Gajodhar Singh and Chandrapal Singh received fourteen injuries at the time of the occurrence, as now stated by the defence, the fact could not have gone unnoticed by Rameshwar Singh. 10. Had Gajodhar Singh and Chandrapal Singh received fourteen injuries at the time of the occurrence, as now stated by the defence, the fact could not have gone unnoticed by Rameshwar Singh. He could not have omitted to mention the fourteen injuries received by those persons when he was taking care to make a mention of the five injuries received by himself and his nephew Bhulua. 11. We are, therefore, inclined to accept the argument advanced by the learned Deputy Government Advocate that at least some of the injuries, if not all, appearing on the persons of Gajodhar and Chandrapal Singh must have been self-suffered and manufactured for the purpose of the defence. 12. The main points for consideration in these two connected appeals are- (a) which party was in actual possession of plots Nos. 822 and 823 and the trees in question; (b) who was the aggressor, and (c) who amongst the eight accused persons nominated in the first information report lodged by Chandan Singh (P. W. 1) had taken part in causing injuries to Ram Autar, Shyam Sunder and Chandan Singh. The prosecution has examined three witnesses, namely, Kalyan (P.W. 7), Bihari (P.W. 8) and Shiv Ram (P.W. 9) to establish that Chandan Singh and his sons had been in exclusive possession of the plots over which the trees in question stood from at least fourteen or fifteen years prior to the occurrence. These witnesses not being very old in age, could depose about facts which had been in existence from fourteen or fifteen years prior to their examination as witnesses. All these three witnesses are residents of village Kumharia and had their fields adjacent to the plots on which the trees in question stood. Nothing could be pointed out in their cross-examination to show that they could be interested in falsely supporting the case of Chandan Singh in preference to that of his brother Prabhu Singh. No evidence was led on behalf of the accused persons to show that Prabhu Singh or any member of his family had remained in possession of plots Nos. 822 and 823 the plots on which the trees in question stood and that Chandan Singh and his sons had not been cultivating those plots during the memory of the witnesses. 13. In the circumstances there can be no doubt that Chandan Singh and his sons were in peaceful possession of plots Nos. 822 and 823 the plots on which the trees in question stood and that Chandan Singh and his sons had not been cultivating those plots during the memory of the witnesses. 13. In the circumstances there can be no doubt that Chandan Singh and his sons were in peaceful possession of plots Nos. 822 and 823 from much before the time of the occurrence. 14. It is true that most of the properties belonging to Chandan Singh and Prabhu Singh were ancestral and these two plots also formed part of that property. It has come in evidence that there had been no formal partition between Prabhu Singh and Chandan Singh. Chandan Singh could not tell from memory which particular plot had been allotted to him at the time of the private partition. He also admitted that the rent of the joint khata was being paid by the two brothers half and half. He had also stated in his statement under Section 164 Cr. P. C.- though he did not admit that fact in the court of session that there used to be quarrel between the two brothers regarding the field in question and on various occasions the other party had forcibly ploughed the land covered by the mend (boundary) of that field. However, in our opinion these circumstances are not enough to disprove or render doubtful the established case of the prosecution that these fields had been in possession of Chandan Singh and his branch for more than fourteen years before the occurrence and that Prabhu Singh and members of his branch had no possession over the same. 15. It is also clear from the prosecution evidence that a few days prior to this occurrence Chandan Singh and his sons had cut and removed the wood of some of the trees standing on plots Nos. 822 and 823 and there had been no objection from the side of Prabhu Singh and his sons at that time. 16. In these circumstances it cannot be said that Prabhu Singh and his sons could have any right to the possession of the fields (plots Nos. 822 and 823) in question and the trees standing on them. In case Prabhu Singh and members of his family were of the view that the partition between the two brothers had neither been fair nor complete, they could certainly go to the court and ask for partition. 822 and 823) in question and the trees standing on them. In case Prabhu Singh and members of his family were of the view that the partition between the two brothers had neither been fair nor complete, they could certainly go to the court and ask for partition. However, they could have no right to forcibly dispossess Chandan Singh and his sons from those plots or to prevent them from cutting the trees standing on those plots. Sec. 99 of the Indian Penal Code provides that there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities. Prabhu Singh and members of his branch, not being in possession of plots Nos. 822 and 823, over which the trees in question stood, and those plots having remained in peaceful and continuous possession of Chandan Singh for more than fourteen years, there could be no right vested in Prabhu Singh and others to take the law into their own hands and to force Chandan Singh and his sons not to exercise their right of possession over these plots. Chandan Singh and his sons were not doing anything unlawful and the accused persons (appellants) (in Criminal Appeal No. 72 of 1968) had no right to use force against them. 17. It is clear from the prosecution evidence that the accused persons had gone to the place of occurrence, armed with spears, pharsa and lathis. They had gone there for the avowed object of preventing Chandan Singh and others from cutting and removing the wood of the trees. They were likely to have used force and committed aggression first. In these circumstances, we see no reason to doubt the testimony of Chandan Singh, Shyam Sundar Sigdar and Ram Narain (P.Ws. 1 to 4) who have fully supported the prosecution case. 18. It was contended by the learned counsel for the appellants that no reliance whatsoever should be placed on the testimony of these eye-witnesse for the simple reason that in case Chandan Singh and Shyam Sunder were the aggressors, they could not be expected to admit that fact. It was further contended that Sigdar and Ram Narain also appear to belong to the party of Chandan Singh and their presence at the time of the occurrence should be considered as doubtful. 19. In our opinion there is no force in these contentions. It was further contended that Sigdar and Ram Narain also appear to belong to the party of Chandan Singh and their presence at the time of the occurrence should be considered as doubtful. 19. In our opinion there is no force in these contentions. Chandan Singh and Shyam Sundar are no doubt interested witnesses, but their presence at the occurrence cannot be doubted and reliance can be placed on their statement to the extent it is corroborated by independent circumstances. Sigdar (P.W. 3), who belongs to the village of Chandan Singh, and Ram Narain (P.W. 4). who belongs to another village, three miles away from the place of occurrence, have fully explained how they happened to be near the place of occurrence at the time the occurrence took place. The learned Sessions Judge has not doubted their presence at the time and place of the occurrence, and we see no reason to differ from him. 20. It cannot be said with regard to Sigdar and Ram Narain (P.Ws. 3 and 4) that they are highly partisan witnesses, interested in falsely implicating the accused persons. 21. At the time of the occurrence Sigdar (P.W. 3) was returning to his house in village Kumharia from a nearby village, Sikaula, after having purchased a dhoti for his wife. He has, therefore, fully explained how he happened to be near the place of occurrence when the occurrence took place. It was contended that he is a partial witness because he has admitted that he works as a labourer and he had worked for Chandan Singh (P.W. 1) also. It was further contended that he could be interested in falsely implicating Raghu nandan (appellant) because the latter had a dispute with his brother Jugga regarding a particular field. The witness did not admit that there was any quarrel between him and jugga on the one hand and Rahunandan on the other. The documentary evidence filed on behalf of the defence revealed that Jugga and Shyam Lal are the sirdars of plot No. 990/16 and Raghunandan was shown to be in possession of that plot in the years 1372 to 1374 Fasli. From these facts it is sought to be inferred that this witness must he inimical towards the accused persons. 22. In our opinion the argument is a far-fetched one. From these facts it is sought to be inferred that this witness must he inimical towards the accused persons. 22. In our opinion the argument is a far-fetched one. All that can be said regarding Sigdar (P. W. 3) is that he could not be regarded to be a wholly independent or a wholly reliable witness. As regards Ram Narain (P.W.4), it has come in the evidence that his brother Raju had been arrayed on the same side with Chandan Singh in a case under Sec. 107/117 Cr. P. C. in the year 1960. The witness did not admit that he had any affinity with Chandan Singh. He also did not admit that his brother Raju and Chandan Singh had been arrayed on the same side in a case under Sec. 107/117 Cr. P. C. We can not infer from these facts that the witness was telling a lie in order to help the prosecution. He may not have remembered that fact. There could be no purpose in making a false statement on that point, particularly when Chandan Singh (P.W. 1) had admitted that fact. The mere fact that Raju, a brother of Ram Narain, had at one time been arrayed on the same side as Chandan Singh in a case under Sec. 107/117 Cr. P. C. will not show that Ram Narain is a highly partisan witness. All that could be said with regard to him is that he may not be regarded, out of abundant caution, to be a wholly independent witness. 23. We see no reason to discard the testimony of the eye-witnesses of the occurrence. Placing reliance on them we hold that the members of the appellants' party were the aggressors. 24. We now proceed to consider who amongst the accused persons must have participated in the assault on Chandan Singh and his sons. 25. Chandan Singh and his sons received as many as 24 injuries, out of which eleven are abrasions. If we do not take the abrasions into consideration, they appear to have received ten lathi injuries, one injury which could have been caused with a spear, and two injuries which could have been caused with a gandasa, that is to say, thirteen injuries in all. If we do not take the abrasions into consideration, they appear to have received ten lathi injuries, one injury which could have been caused with a spear, and two injuries which could have been caused with a gandasa, that is to say, thirteen injuries in all. In the circumstances of the case the ten lathi injuries could easily have been caused by two persons, who admit their presence at the time of the occurrence and are said to have been armed with lathis. 26. The prosecution has nominated two persons, namely, Gajodhar Singh and Rameshwar Singh, to have been armed with spears. Only one spear injury was caused to Ram Autar, a member of the complainant's party. In these circumstances it is doubtful whether two of the accused persons had wielded their spears at the time of the occurrence. The probability that there was only one accused person who was armed with a spear could not be ruled out. 27. Undoubtedly a sharpedged weapon, like a pharsa, must have been used at the time of the occurrence. According to the prosecution case, Malkhan Singh (appellant) was armed with a pharsa. Malkhan Singh (appellant) does not admit his presence at the time of the occurrence. Taking into consideration the fact that the prosecution has nominated two persons to have been holding spears and wielded the same and only one spear injury was caused, there, remains no doubt that an effort was made to nominate a larger number of persons than those who had actually taken part in the assault. The pharsa and the spear could have seen held by the two accused persons, namely, Rameshwar Singh and Gajodhar Singh who have admitted their presence at the time of the occurrence. The nomination of Malkhan Singh could be in order to implicate even those members of the family of Prabhu Singh who did not happen to be present at the time of the occurrence. 28. For the same reasons we do not consider it safe to hold that Raghunandan Singh (appellant) was present at the time of the occurrence and had taken part in the assault on Ram Autar and others. 28. For the same reasons we do not consider it safe to hold that Raghunandan Singh (appellant) was present at the time of the occurrence and had taken part in the assault on Ram Autar and others. Raghunandan Singh and Malkhan Singh might or might not have been there at the time of the occurrence, but in view of the fact that the eye-witnesses of the occurrence cannot be regarded to be wholly independent it will not be safe to hold that these two appellants also must have participated in causing injuries to Ram Autar and others. In our opinion both Raghunandan Singh and Malkhan Singh are entitled to benefit of doubt and acquittal. 29. The learned Additional Sessions judge doubted the presence of Prabhu Singh and Balia (respondents in Government Appeal No. 806 of 1968) at the time of the occurrence. We see no reason to differ from him. Prabhu Singh is about eighty years of age, while Balia is merely a servant of Prabhu Singh and others. It is not very likely that Prabhu Singh and Balia had also participated in the attack of Chandan Singh and others. They might or might not have been present at the time of the occurrence, and it would be safer to give them the benefit of doubt. 30. The only question that remains to be considered is what offence was committed by the appellants whose presence at the time and place of the occurrence was not disputed and has been fully established. These appellants are Rameshwar Singh, Gajodhar Singh, Chandrapal Singh and Bhulua, all of whom claim to have received injuries at the time of the occurrence. The spear injury caused to Ram Autar is, according to the post-mortem report, a very serious one. The wound caused was lung cavity deep on the left side of the chest and the upper part of the lung was punctured through and through. A person who caused that injury could be presumed to have caused it with the intention of putting an end to the life of Ram Autar. However, the prosecution has nominated two persons, namely Rameshwar Singh and Gajodhar Singh who wielded spears at the time of the occurrence and has failed to specify whose spear had caused this injury. A person who caused that injury could be presumed to have caused it with the intention of putting an end to the life of Ram Autar. However, the prosecution has nominated two persons, namely Rameshwar Singh and Gajodhar Singh who wielded spears at the time of the occurrence and has failed to specify whose spear had caused this injury. It is, therefore, not possible to convict any of the appellants under Section 302 read with Section 34 I.P.C. The appellants could only be convicted under Section 326 read with Section 34 I.P.C. with regard to the offence resulting in the death of Ram Autar. 31. The accused persons were charged under Sec. 302/149 I.P.C. However, the circumstances of the present case are such that the appellants, whose presence at the time of the occurrence is established, could also be charged under Sec. 302/34 I.P.C. Rameshwar Singh, Gajodhar Singh, Chandrapal Singh and Bhulua could, therefore, be convicted only under Sec. 326/34 I.P.C. with regard to the offence committed against Ram Autar. 32. In the result Government Appeal No. 806 of 1968 is dismissed and Criminal Appeal No. 72 of 1968 is partly allowed. So far as Raghunandan Singh and Malkhan Singh are concerned, Criminal Appeal No. 72 of 1968 is allowed in full and their conviction and sentences on all the heads of the charge are set aside. Raghunandan Singh is on bail. He need not surrender. His bail bonds are discharged. Malkhan Singh is in jail. He must be set at liberty forth with unless wanted in some other connection. 33. Criminal Appeal No. 72 of 1968, so far as it relates to Rameshwar Singh, Gajodhar Singh, Chandrapal Singh and Bhulua, is allowed in part, Their conviction and sentences for the offence of rioting are set aside. Their conviction and sentences under Sec. 302/149 I.P.C. are also set aside, and instead they are convicted under Sec. 326/34 I.P.C. and each sentenced to five years' rigorous imprisonment. The conviction and sentences of these appellants under Sec. 325/149 and 324/149, I.P.C. are also set aside, and they are convicted under Secs. 325/34 and 324/34, I.P.C. instead. The sentences of five years, rigorous imprisonment for having caused grievous hurt and three years' rigorous imprisonment for having caused simple hurt awarded to each of the said appellants are, however, maintained. All the sentences are ordered to run concurrently. 34. 325/34 and 324/34, I.P.C. instead. The sentences of five years, rigorous imprisonment for having caused grievous hurt and three years' rigorous imprisonment for having caused simple hurt awarded to each of the said appellants are, however, maintained. All the sentences are ordered to run concurrently. 34. Rameshwar Singh and Gajodhar Singh are in jail. They must serve out their sentences as modified by this Court. Chandrapal Singh and Bhulua are on bail. They must surrender to their bail forthwith and serve out the sentences as now imposed.