JUDGMENT JASWANT SINGH, J.:— This appeal by special leave is directed against the judgment dated March 10, 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No. 384 of 1968. 2. The fact leading to this appeal are: On July 1, 1961, Kishori Lal, the appellant herein, brought a suit in the court of the Assistant Collector. Baran, against Birdhi Lal, respondent No. 1, for possession of land comprised in khasra Nos. 513, 669 and 678 situate in village Balakhera of Anta Tehsil of Kota District under Sections 180 and 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). By his judgment dated December 24, 1962, the Assistant Collector dismissed the suit. The appellant thereupon preferred an appeal to the Revenue Appellate Authority who allowed the same by its judgment dated November 9, 1963, and reversing the judgment of the Assistant collector decreed the suit holding that Birdhi Lal was a trespasser. Aggrieved by the judgment and decree of the Revenue Appellate Authority, Birdhi Lal took the matter in further appeal to the Board of Revenue, Rajasthan, but remained unsuccessful as the members of the Board affirmed the view taken by Revenue Appellate Authority. Dissatisfied with the decisions of the Revenue Appellate Authority. Dissatisfied with the decisions of the Revenue Appellate Authority and the Board of Revenue, Rajasthan, Birdhi Lal approached the High Court of Rajasthan by means of a petition under Article 226 of the Constitution. The High Court by its aforesaid judgment and order dated March 10, 1975, allowed the petition and held that Birdhi Lal being a tenant within the meaning of Section 5 (43) of the Act and not a trespasser as conceived by Section 5 (44) of the Act, was not liable to be ejected from the land. Dissatisfied with this judgment, Kishori Lal has come up to this Court. 3. The learned counsel for the appellant has, while supporting the appeal, vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well-established principles of law, the impugned judgment cannot be sustained. 3. The learned counsel for the appellant has, while supporting the appeal, vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well-established principles of law, the impugned judgment cannot be sustained. Elaborating his submission, the learned counsel has submitted that since both the Revenue Appellate Authority and the Board of Revenue had on currently held that Birdhi Lal was a trespasser and there was no error apparent on the face of the record, the High Court was not justified in interfering with the aforesaid decisions of the Revenue Appellate Authority and the Board of Revenue. The contention advanced on behalf of the appellant is, in our opinion, wholly untenable. The expression trespasser is defined in Section 5 (44) of the Act as follows:- "5 (44). Trespasser shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him." 4. The above definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him. In the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him. The only point that we are therefore, left to determine is whether Birdhi Lal took possession or retained possession of the land without authority. The material on the record does not at all establish any of these elements. On the other hand, as rightly pointed out by the High Court, the Parch a logan, Exhibit A-3 and Pantinama, Exhibit A-4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent. As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High Court was perfectly right in rectifying the error of law apparent on the farce of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue. 5. As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High Court was perfectly right in rectifying the error of law apparent on the farce of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue. 5. It was next urged that even if the respondent Birdhi lal is held to be a tenant by reason of the Pantiname (Ex. A-4), he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under Section 180 of the Act. Reference to Section 180 of the Act shows that it applies only to suits for "ejectment or Khudkasht or Ghair-Khatedar tenants or sub-tenants." Khudkasht is defined in Section 5, sub-section (23) as land "cultivated personally by an estate holder." It also includes "land recorded as Khudkasht, sir, havala, niji-jot, gharkhed in settlement records" at the commencement of the Act as well as "land allotted after such commencement as Khudkasht under any law." Similarly, the components of rights to sub-tenancy and gair khatedari tenancies are also determined by the provisions of the Act. The High Court had recorded the finding, on this part of the case: "It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under Sections 180 and 183 of the Act as aforesaid, his claim was not upheld under Section 180 so that the suit was decreed as one under Section 183." In other words, the findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us. It required necessary averments and proof of facts which were absent in the case. It was therefore, a completely hopeless plea which we cannot entertain at this stage. 6. For the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs. Appeal dismissed. $ AIR 1976 SC 2013 11111 (From: Orissa)* 25-2-1976. R.S. SARKARIA AND P.N. SHINGHAL, JJ. Banka Naiko and others, Appellants v, State of Orissa, Respondent. Criminal Appeal No. 235 of 1971, D/- 25-2-1976. (A) Penal Code (45 of 1860), S.302 and S.34 - Conviction under - Legality - Dying declaration not proved by reliable evidence - Accused, held entitled to benefit of doubt. Criminal Appeal No. 82 of 1970, D/- 10-2-1971 (Orissa), Reversed. Banka Naiko and others, Appellants v, State of Orissa, Respondent. Criminal Appeal No. 235 of 1971, D/- 25-2-1976. (A) Penal Code (45 of 1860), S.302 and S.34 - Conviction under - Legality - Dying declaration not proved by reliable evidence - Accused, held entitled to benefit of doubt. Criminal Appeal No. 82 of 1970, D/- 10-2-1971 (Orissa), Reversed. Evidence Act (1 of 1872), S.32. Where the High Court after coming to the conclusion that the statements of eye-witnesses by them selves, were inadequate proof of the commission of the offences under Section 302/34 by the appellants upheld the conviction of the appellants on the basis that the evidence of eyewitnesses had been corroborated by the dying declaration as stated by other prosecution witnesses. Held, that as the dying declaration had not been proved by reliable evidence, the same could not corporate the statements of those who had been examined as eye-witnesses. The appellants, in the circumstances, were entitled to benefit of doubt. Criminal Appeal No. 82 of 1970, D/- 10-2-1971 (Orissa), Reversed. (Para 8) Although the witnesses to the alleged dying declaration had stated that the deceased told them that two appellants "pierced" him and the third appellant had assaulted on the head with a "kati", the Doctor who performed the post mortem examination nowhere stated that he found any such injury as could corroborate the version that piercing injury had been inflicted on the deceased. (Para 8) The witnesses to the alleged dying declaration had stated that they found deceased lying unconscious and he came to his senses temporarily when some water was put into his mouth. The Doctor had, however, stated that there was congestion of the brain of the deceased due to the head injuries and that having "lost consciousness the victim might not have regained consciousness." It could not thus be said with any amount of certainty that the deceased made dying declaration as stated by the witnesses to the alleged declaration. (Para 8) M/s. K. R. Chaudhari, K. Rajendra Choudhary and N. Venu Gopal Nayagar, Advocates, for Appellants; Mr. Govind Das, Sr. Advocate, and Mr. G. S. Chatterjee, Advocate with him, for Respondent. * Criminal Appeal No. 82 of 1970, D/- 10-2-1971 - (Orissa). (Para 8) M/s. K. R. Chaudhari, K. Rajendra Choudhary and N. Venu Gopal Nayagar, Advocates, for Appellants; Mr. Govind Das, Sr. Advocate, and Mr. G. S. Chatterjee, Advocate with him, for Respondent. * Criminal Appeal No. 82 of 1970, D/- 10-2-1971 - (Orissa). Judgment of the Court was delivered by Judgement SHINGHAR, J.:- This appeal of Banka Nayako, Radhakrishna Choudhury and Dandapani Choudhury, by special leave, is directed against the appellate judgment of the Orissa High Court dated February 10, 1971, upholding their conviction for an offence under Section 302/34, I. P. C. and sentence of rigorous imprisonment for life. 2. It is not in dispute, and is in fact admitted, that there was a long standing dispute between Ramchandra Choudhury (P. W. 1) on the one side, and appellants Radhakrishna Choudhury and Dandapani Choudhury on the other. Appellant Banka Nayako is the servant of Radhakrishna Choudhury. The dispute related to partition of joint family properties, and gave rise to several civil and criminal cases. Saita Naik was the servant of Ramchandra Choudhury (P. W. 1) and was his supporter in the litigation. He had also started some criminal cases against the appellants and was a witness for Ramchandra Choudhury (P. W. 1) in some cases against the accused. He was involved in some cases started by appellant Dandapani Choudhry. A dacoity case started by Ramchandra Choudhury (P. W. 1) was pending against the accused on the date of the incident. It is alleged that Ramchandra Choudhury (P. W. 1) started from his village Punando on March 5, 1969, at about 4 p.m., along with Saita Naik and reached Hinjilikatu at about 6 p.m. He then left for Aska by bus. Saita Naik, Nabadwipa Padhi (P. W.2) and Bishnu Gouda (P. W. 5) left for Punando. While they were passing through the dry bed of Ghodahada river, it is alleged that Saita Naik stayed back to answer the call of nature, while his two companions proceeded towards the northern bank of the river. When they reached the northern bank, it is alleged that Nabadwipa Padhi and Bishnu Gouda found that all the fourteen accused who were challenged in this case were present near a ditch armed with Khanatis, lathis and Katis. They began to attack Nabadwipa Padhi (P. W. 2) and Bishnu Gouda (P. W. 5) but they ran away. It is alleged that the accused then attacked Saita Naik. They began to attack Nabadwipa Padhi (P. W. 2) and Bishnu Gouda (P. W. 5) but they ran away. It is alleged that the accused then attacked Saita Naik. Appellants Dandapani Choudhury and Radhakrishna Choudhury are said to have pierced him with Khanatis, and Banka Nayako hit him with a kati on the head. Nabadwipa Padhi (P. W. 2) went to Hinjilikatu and then to Aska, and narrated the incident to Ramchandra Choudhury (P. W. 1). Both of them went to Pattapur Police Station and lodged a report at 2 a.m. It is alleged that, in the meantime, Golla Nahaka (P. W. 10), who was a nephew of Saita Naik, heard about the incident from Bishnu Gouda (P. W. 5) at mauza Puddo, and went to Ghodahada river along with some villagers including Saita Naiks son Musa Nayak (P. W. 3). They found that Saita Naik was lying unconscious in the bed of the river. Musa Nayak is said to have given him some water, and he regained consciousness. It is further alleged that, on inquiry, Saita Naik informed those present that Dandapani Choudhury and Radha Krishna Choudhury had pierced him with khanatis and Banka Nayako had struck him with a kati on his head and that be expressed a desire to be taken to Hinjilikatu where he said he would give further details of the incident. He was accordingly taken there, but he died by the time he reached Hinjilikatu. A report of the incident was lodged by Golla Nahaka (P. W. 10) at Hinjilikatu police station. A post-mortem examination was performed on the body of Saita Naik by Dr. K. K. Misra (P. W. 13). He found several injuries on his body, and his report is on the record as Ex. 5. All the injuries were found to be antemortem and Saita Naiks death was found to be due to the combined effect of synocope and coma. K. K. Misra (P. W. 13). He found several injuries on his body, and his report is on the record as Ex. 5. All the injuries were found to be antemortem and Saita Naiks death was found to be due to the combined effect of synocope and coma. Fourteen accused were challenged and the Sessions Judge of Ganjam-Boudh, Behrampur, convicted them all of the offence of rioting armed with deadly weapons under Section 148 and of murder under Section 302 read with Section 34, I. P. C. He sentenced them to undergo rigorous imprisonment for two years for the offence under Section 148, and to imprisonment for life for the offence under Section 302 read with Section 34, I. P. C. On appeal, the High Court upheld theconviction and sentences of the present appellants, but acquitted the remaining eleven accused. 3. The prosecution examined Nabadwipa Padhi (P. W. 2). Bishnu Gouda (P. W. 5), Ganapati Choudhury (P. W. 4) and Khalli Padhi (P. W. 8) as eye-witnesses of the incident. At the trial, Bishnu Gouda (P. W. 5) did not support the case of the prosecution. Of the remaining three witnesses, Nabadwipa Padhi (P. W. 2) has been held by the High Court to be an interested witness, and rightly so, for he has admitted that he looked after the cultivation of Ramchandra Choudhury (P. W. 1) for a period of five years. It will be recalled that Ramchandra Choudhury (P. W. 1) was the person who had employed Saita Naik and was involved in criminal and civil cases against the appellants. Nabadwip Padhi (P. W. 2) has also admitted that appellant Dandapani Choudhury had started two cases against him before the date of occurrence, and that he was a witness for Ramachandra Choudhury (P. W. 1) in four cases against the accused. Moreover Nabadwipa Padhi did not state in his report to the police that the accused were armed with khanatis or katis or that he had seen them surrounding Saita Naik. The High Court has not therefore found it possible to convict the appellants on his testimony. 4. Moreover Nabadwipa Padhi did not state in his report to the police that the accused were armed with khanatis or katis or that he had seen them surrounding Saita Naik. The High Court has not therefore found it possible to convict the appellants on his testimony. 4. Ganapti Choudhury (P. W. 4) has admitted that he accompanied Ramachandra Choudhury (P. W. 1) for canvassing for him in the election of Sarpanch in 1967, and that he had sworn two affidavits in his favour in two cases against Dandapani Choudhury under Section 145, Cri, P. C. He was also a witness in a criminal case started by Ramachandra Choudhury (P. W. 1) against Dandapani Choudhury. The High Court has therefore rightly taken the view that his evidence could not be accepted without sufficient corroboration. 5. Khalli Padhi (P. W. 8) has stated that when he was going from Hinjilikatu to the village he heard the shouts of Nabadwipa Padhi near the bank of Ghodahada river and saw that the accused were armed with khanatis and katis and they were assaulting or shouting to assault Saita Naik. He has stated further that when he protested he was asked by the accused not to disclose the incident to anybody. He went to his village. and talked about the incident to Dandapani Khanduel (P. W. 7), Murli Biswal (P. W. 9) and Suma in the morning. The statement of this witness has, however, not been held to be reliable because of the fact that there was not satisfactory explanation why he was not examined for a period of 18 days, and the further fact that he was taken to the police station by no less a person than Ramachandra Choudhury (P. W. 1). Moreover, Dandapani Khandual (P. W. 7) and Murli Biswal (P. W. 9) have not corroborated his statement. The High Court was therefore again right in taking the view that his statement could not be accepted without further corroboration. 6. It would thus appear that the High Court has found it possible to uphold the conviction of the appellants on the basis of the statements of Nabadwip Padhi (P. W. 2), Ganapati Choudhury (P. W. 4), Bishnu Gouda (P. W. 5) and Khalli Padhi (P. W. 8) without the aid of corroborative evidence. 6. It would thus appear that the High Court has found it possible to uphold the conviction of the appellants on the basis of the statements of Nabadwip Padhi (P. W. 2), Ganapati Choudhury (P. W. 4), Bishnu Gouda (P. W. 5) and Khalli Padhi (P. W. 8) without the aid of corroborative evidence. It was also not impressed by the statements of Dandapani Khandual (P. W. 7) and Murli Biswal (P. W. 9) that they had seen all the accused at the place of the occurrence. The High Court has however taken the view that the evidence of those who claimed to be eye-witnesses of the incident had been corroborated by the dying declaration of Saita Naik as stated by Musa Nayak (P. W. 3) and Golla Nahaka (P. W. 10), and it is on account of that corroboration that it has upheld the conviction of the appellants. The question is whether the dying declaration could be said to have been proved by reliable evidence? 7. Musa Nayak (P. W. 3) has stated that when he learnt about the incident, he went to the place of occurrence and found that his father was lying senseless in the bed of the river. He put some water in his mouth, and then he came to his senses. The witness has stated further that on inquiry Saita Naik told him that Dandapani Choudhury and Radhakrishna Choudhury pierced him with khanati and Banka Nayako assaulted him on his head with Kati. He has stated further that his father told him that he should be taken to Hinjilikatu where he would "tell the rest of the occurrence", but he died on the way. Golla Nahaka (P. W. 10) is the other witness who has deposed about the dyingdeclaration. He has corroborated the statement of Musa Nayak (P. W. 3). 8. As has been pointed out, Musa Nayak (P. W. 3) is the son of the deceased, while Golla Nahaka (P. W. 10) is his nephew. Their statements are to the effect that the deceased told them that Dandapani Choudhury and Radhakrishna Choudhury pierced him while Banka Nayako assaulted on the head with a kati. We however find that Dr. 8. As has been pointed out, Musa Nayak (P. W. 3) is the son of the deceased, while Golla Nahaka (P. W. 10) is his nephew. Their statements are to the effect that the deceased told them that Dandapani Choudhury and Radhakrishna Choudhury pierced him while Banka Nayako assaulted on the head with a kati. We however find that Dr. K. K. Misra (P. W. 13) has categorically stated that while there was one "incised looking" lacerated would on the forehead and side of the scalp and one similar lacerated wound on the forehead and side of the scalp and one similar lacerated would on the eye-brow and the left temple, they were lacerated wounds which could have been caused by a blunt weapon. There is nothing in the statement of the witness to show that he found any such injury as could corroborate the version that piercing injuries had been inflicted on the deceased. It appears that this important part of the statement of Dr. K. K. Misra (P. W. 13) was not brought to the notice of the High Court and it could not therefore take note of the fact that instead of corroborating the statements of Musa Nayak (P. W. 3) and Golla Nahaka (P. W. 10) regarding the alleged dying declaration, it went to discredit them altogether. It will be recalled that Musa Nayak (P. W. 3) and Golla Nahaka (P. W. 10) had stated that they found Saita Naik lying unconscious in the bed of the river and that he came to his senses temporarily when some water was put into his mouth, but he became unconscious once again. Dr. K. K. Misra (P. W. 13) has however stated that he found, on a post-mortem examination, that there was congestion of the brain of the deceased due to the head injuries and that having "lost consciousness the victim might not have regained consciousness." This part of the statement was also not noticed by the High Court and was also and taken into consideration even thought it had a great bearing on the question whether the deceased could regain consciousness and make a dying declaration. As it is, it cannot be said with any amount of certainty that the deceased made the dying declaration as stated by his son Musa Naik (P. W. 3) and his nephew Golla Nahaka (P. W. 10), and it could not therefore be held that it could corroborate the statements of those who had been examined as witnesses of the incident. So when the statements of the eye-witnesses have, by themselves, been held by the High Court to be inadequate proof of the commission of the offences by the appellants, they are entitled to benefit of the doubt. 9. The appeal is allowed and appellants Banko Nayako, Radhakrishna Choudhury and Dandapani Choudhury are acquitted. They are in jail and shall be released forthwith. In view of this, there could be no question of their condition for n offence under Section 148, I. P. C. and they are acquitted of that offence also. Appeal allowed. For Citation s: AIR 1976 SC 2011 Vikas Info Solutions Pvt. Ltd.