JUDGMENT 1. - This appeal arises out of the judgement of the learned Sessions Judge, Partabgarh Camp Chittorgarh, dated 17th August, 1971. I heard arguments and examined the record. 2. The facts of this case are as follows: There is a land measuring 29 Bighas 1 Biswa which originally belonged to the temple of Laxminarianji whose sewaks were Jagannath PW.12 and Laxmi Narain. They sold this land to Peeru and Mohammed Bhisti for Rs. 700/- by a sale deed Ex. P.11 dated 13.5.55. This document is unregistered but it appears from the3 statement of Jagannath PW.11 that the purchasers were in possession of the said land. This land was subsequently transferred to Vireshwar deceased of the Arya Gurukul Chittorgarh for Rs. 4500/- by a registered sale deed dated 14.3.1967 which is Ex. P4. According to the statement of Jagannath PW.12 on the date of this subsequent sale the land was in possession of the Musalman (Accused). When the previous purchaser were asked to hand over possession to Vireshwar they declined to do so. Vireshwar then told Jagan Nath that he may have the sale deed registered the possession they will take. It further appears that even after the sale deed was registered, Vireshwar or for that matter the Gurukul was unable to obtain possession of the land. Mahendra Singh PW.18 has stated that a case under section 145 Criminal Procedure Code was instituted in the court of the Sub Divisional Magistrate, Chittorgarh on 27.3.67. In this case a preliminary order was made on 27.3.67. On the application of the accused party, constables Govind Singh PW.1, Baluram PW.5 and Nand Singh were posted on the disputed land. The receiver of the land was appointed on 17.5.67 and he took over possession on 19.5.67. 3. But meanwhile both the parties appeared to have clashed on 15.5.67 in respect of which Vedanand PW.14 lodged a report with the police station, Kotwali, Chittorgarh that the Gurukul had sown Bajra on 23.3.67. On 15.5.67 Vireshwar deceased, Sanketanand PW.8 and Prakash Chand PW.7 were sitting in another piece of land of the Gurukul and were watching the crop in the disputed field. The site plan Ex.P.2 shows that the disputed field is shown by mark 'E' and the field from which Vireshwar and others were watching the crop is shown at point 'G'. On 15.5.67 Vireshwar deceased, Sanketanand PW.8 and Prakash Chand PW.7 were sitting in another piece of land of the Gurukul and were watching the crop in the disputed field. The site plan Ex.P.2 shows that the disputed field is shown by mark 'E' and the field from which Vireshwar and others were watching the crop is shown at point 'G'. In between these two fields there is the field shown by at point 'F' belonging to some Shanker Lal. The F.I.R. recites further that at about 11.30 a.m. all the three persons started for Gurukul in order to have their meals. When they were passing by the side of the disputed field, then Peeru and others, about 40-50 persons in number, attached them. Govind Singh PW.1, Baluram PW.5 intervened but the accused did not desist. The accused continued to beat the complainant party until they fell on the ground. At the time of the occurrence Vedanand himself PW.14 Ram Chandra PW.4, Satyadeo PW.15 and Baldeo PW.3 were coming from the Gurukul and were bringing meals for them. Sanketanand and Vireshwar were removed to the hospital both being unconscious. Upon this report Ex. P.1, Jatim Singh drew F.I.R. Ex. P.7, upon which a case under section 307, 148 and 149 was registered. After investigation the police submitted a challan of 15 persons, then of one person, and then of five persons more in all 21. All these persons came to be tried finally by the learned Sessions Judge, Partapgarh for offences under sections 302 read with 149, 325 read with 140, 148 and 323 read with 149 Indian Penal Code. It appears that during the trial two of the accused viz. Niaz Mohammed and Tajab Shah died. 4. The learned Sessions Judge by his impugned judgement, however, acquitted 13 of them of all the offences they were charged with. He convicted and sentenced the appellants as follows:- (1) Accused Nathu and Salim, under section 304 part II read with section 34 Indian Penal Code to five years rigorous imprisonment; under section 148, to rigorous imprisonment for two years. They were acquitted of the offence under section 302 Indian Penal Code. (2) Accused Noor Mohammed, Chandkhan and Sultan under sections 323 and 148 Indian Penal Code each to rigorous imprisonment for one year and to a fine of Rs. 100/- in default whereof to rigorous imprisonment for three months. They were acquitted of the offence under section 302 Indian Penal Code. (2) Accused Noor Mohammed, Chandkhan and Sultan under sections 323 and 148 Indian Penal Code each to rigorous imprisonment for one year and to a fine of Rs. 100/- in default whereof to rigorous imprisonment for three months. They were acquitted of the charge under section 302 Indian Penal Code. (3) Accused Rajak under section 323 and 148 Indian Penal Code to rigorous imprisonment for six months and to a fine of Rs. 50/- in default whereof to rigorous imprisonment for two months. He was acquitted of the charge under section 302 Indian Penal Code. 5. The prosecution case was that the occurrence took place near the disputed field but at the time of the trial, the witnesses took up the position that the occurrence took place in Patwari's field which is shown by mark 'A'. This patwari's field is on the west of the road which divides the disputed land 'E' and the other land 'G' which fall on the eastern side of road. The learned Sessions Judge discarded the story that the place of occurrence was in the partwari's field. He also did not believe that the occurrence took place in the disputed field. He was of the view that the occurrence took place near the disputed field though the learned Judge did not say specifically about the place at which the fight actually took place. 6. A question arose before the learned Sessions Judge whether it was a case of free fight and whether the accused had any right of private defence. The learned Sessions Judge observed that it was difficult to say as to whether the accused received injuries prior to the complainant side received injuries or otherwise. The most probable circumstances, according to him, could only be that it was accused party who being aggrieved came to take back their possession. The case did not fall under the right of private defence of person or property, and even if it did, it appeared to the learned Sessions Judge that the accused exceeded their right of private defence. He was particularly impressed by the fact that Vireshwar deceased, who was a physical instructor in the Gurukul, would have put to death at least one or two musalmans who tried to resist the possession. He was particularly impressed by the fact that Vireshwar deceased, who was a physical instructor in the Gurukul, would have put to death at least one or two musalmans who tried to resist the possession. But since the facts were otherwise, he must have been encircled by a large number of musalmans and was fatally wounded. He also held that it was not a case where the prosecution witnesses have exaggerated their version and/or have introduced any falsehood. 7. The learned counsel for the appellants has assailed the judgement of the learned trial Judge that the offences are not supported by the evidence on record. According to the evidence it has been well established that the accused party never parted with the possession of the land and the Gurukul party wanted to obtain forcible possession of the land. The evidence further shows that the prosecution story that the complainant party had gone to watch the crop in the disputed field yet from another field has been given a go-by at the time of the trial. The witnesses took up a stand that Vireshwar and other party had gone to the other field for clearing the same and for sowing Bajra. That changed version is also not proved by the evidence. Further, it was submitted that the presence of the so called witnesses is highly doubtful. In short, the argument is that the prosecution has changed the place of occurrence and that the eye witnesses being false, the whole story of the prosecution is false and the appellants deserve to be acquitted. 8. I have considered over these submissions. As the learned Sessions thought it proper, the witnesses can be divided into two sets, one comprising the police officials who were watching the crop in the disputed field and the another set consisting of the injured persons and the persons who were bringing meals for them. The learned trial Judge found that constable Govind Singh PW.2 had reached the place of occurrence immediately and he was able to correctly identify two persons namely Saleem and Nathu who had beaten Vireshwar. He further identified five more persons who inflicted injuries to Sanketanand and Prakash Chand. Balu Ram PW.5 identified five of the accused persons as the members of the assembly. But in the court he was able to identify only Noor Mohammed and Shafi correctly. He further identified five more persons who inflicted injuries to Sanketanand and Prakash Chand. Balu Ram PW.5 identified five of the accused persons as the members of the assembly. But in the court he was able to identify only Noor Mohammed and Shafi correctly. Govind Singh PW.2 deposed that he was deputed to watch the crop of wheat in the disputed field. When Vireshwar, Sanketanand and Prakash Chand were going towards the Gurukul for taking their meals 40-50 persons came from the side of the Novaties. They besieged Vireshwar and his colleagues and began to shower lathi blows on them. In cross examination,he stated that it was correct that the three persons of the Gurukul and the accused were grappling with each other. When he was confronted with his statement made before the committing court, he had to admit that when the arrived at the scene of occurrence he saw that the head of Saleem was bandaged. The injuries of Mohammed were also bandaged. He was also confronted with his police statement Ex. D3 where he omitted to mention that the occurrence took place in the patwari's field. In this state of deposition of this witness,it is very difficult to hold that he was an eye witness of the occurrence. Indeed he himself has admitted that by the time he reached, Vireshwar had already fallen. By the time he reached, two persons had already had been bandaged and if he were the eye witness of the actual occurrence then there was no question of his finding two of the accused person having bandages on their injuries. 9. Constable Balu Ram PW.5 also claims to have seen the actual occurrence. But Govind Singh PW.2 deposed that the other two constables had remained behind because they were old. However, Balu Ram PW.5 deposed that he cannot say which accused hit the deceased on what parts of the body. In cross examination he stated that the deceased Pahalwan meaning Vireshwar had the meals with him. But in the second breach he had to correct himself to say that the food was by being carried a small child, who ran away with it. He did not see any injury on the person of any of the accused person. In cross examination he stated that the deceased Pahalwan meaning Vireshwar had the meals with him. But in the second breach he had to correct himself to say that the food was by being carried a small child, who ran away with it. He did not see any injury on the person of any of the accused person. Though he admitted later on that he saw the accused going to the hospital for examination of their injuries with a requisition by the police.From a bare reading of the statement of this witness one is left with the feeling that he was not certainly an eye witness of the actual occurrence and appears to have reached the spot afterword. I am, therefore, unable to support the finding of the learned trial Judge that these two constables were eye witnesses and could be relied upon. 10. Let us now turn to the statements made by the two injured persons, Sanketanand PW.8 has deposed that he and Vireshwar had gone early in the morning to the field marked 'G' in the site plan. At about 11.30 O'clock they proceeded towards the Gurukul for taking their meals. Vireshwar was followed by him and then by Prakash. From the side of the Gurukul, Vedanand PW.14 Ram Chandra PW.4 and Baldeo PW.3 were coming with the meals for them. At that time Noor Mohammed gave a call to he persons in the huts to come and finish About 40 of the musalmans came armed with lathies which had wires fixed round them. They began to attack Vireshwar with lathies as soon as they came. He was able to identify only Saleem and Nathu. In his cross examination he was confronted with his police statement Ex. D4 wherein he had omitted to state that the occurrence took place in the patwari's field. He was further confronted with his statement Ex.D5 which he made before the committing Magistrate wherein at portion A to B he had stated that they had gone just to keep a watch. They had no other work. No tree was removed by them on that day nor was the land ploughed on that day. 11. Prakash Chandra PW.7 deposed that Vireshwar and Sanketanand had gone to the field where some work was going on. They had no other work. No tree was removed by them on that day nor was the land ploughed on that day. 11. Prakash Chandra PW.7 deposed that Vireshwar and Sanketanand had gone to the field where some work was going on. In cross examination he stated that he had gone there with the breakfast for Sanketanand and Vireshwar and he found that both of them were having the 'Kikar' tree cut and the field ploughed. 12. In reading the two statements together,it clearly emerges that Sanketanand and Prakash Chandra contradict each other. According to Sanketanand's statement in the committing court no tree was being removed and the field was also not being ploughed. But Prakash Chandra on the other hand, claims to have seen the tree being cut and the ploughs being employed. The learned counsel for the appellants therefore, submitted that it is not established for what purpose. Vireshwar and Sanketanand had gone to the field marked 'G' in the site plan. The prosecution began with the story that they had gone to watch the crop in the disputed field but perhaps having found that it was not possible to sustain this type of story as between the disputed field and the field 'G' there is one more field and it was simply not possible to keep a watch on the field 'E' from field 'G', the prosecution first altered its version to the effect that they had gone to have the land marked 'G' to be cleared but that story also, Sanketanand was not prepared to support at the time of the trial. They also introduced a new fact in respect of the presence of Prakash Chand that he had gone there with the breakfast. This appears to have become necessary because Prakash Chandra at the time of the occurrence was a student of 14 years or so and was not expected to be with Vireshwar and Sanketanand to watch the clearing operations. I find force in this argument that this part of the story that Prakash Chand and Sanketanand and Vireshwar had gone to field 'G' and were returning for the purposes of meals at the time the occurrence took place, is not correct. 13. Vedanand PW.14 is one of the four persons, who are alleged to have been carrying meals for Vireshwar and party. 13. Vedanand PW.14 is one of the four persons, who are alleged to have been carrying meals for Vireshwar and party. He has deposed that when he crossed the boundaries of the Gurukul, they saw a Tonga carrying several persons towards the hut. Some persons were going on bicycles. They started for the well. Then they saw Vireshwar, Sanketanand and Parkash Chand coming from the opposite direction. All the three were then surrounded by the accused. At that time he was about 400-500 yds. away from them. He claims that he was able to fix the identify of all the assailants. Vireshwar fell down after he received four five lathi blows. When Sanketanand lifted his bands in protection of Vireshwar he was also hit by Sultan Chand Khan, Noor Mohammed, Niaz Mohd. and Hafiz. Accused Mangu and Razik attacked Prakash Chand. He admitted in cross examination that the accused party had lodged a case under section 107 Criminal Procedure Code against them because they were bound in that case. He denied to have seen any injury on any of the accused persons. He also stated that he could not say whether he saw accused Noor Mohammed, Saleem and Mohammed as he was busy in looking after Vireshwar. He was put very searching questions as to how he happened to know the names of all the assailants which he had stated in his F.I.R. Ex.P1. The defence confronted him with the copy of the electoral roll Ex.D1. He was asked whether he had copied the names of the accused out of the electoral roll. He denied but the learned counsel for the appellants pointed out with reference to the electoral roll Ex. D1 that the names of the accused Peeru, Bafati, Chand Mohammed, Noor Mohammed, Mohammed, Peeru, Akbar, Alanoor, Razak and Mohammed appeared in the F.I.R. Ex.D1 exactly in the same order in which they appear in the electoral roll. Though this witness denied that he consulted the electoral roll even for knowing the parentage of the accused, the learned trial Judge was, however convinced that the electoral roll was consulted at least for the purpose of finding out the parentage of the accused persons. Indeed, it was pointed out to this witness at the time of the cross examination that one accused Hasan Khan named by him in Ex.P.1 was dead. Indeed, it was pointed out to this witness at the time of the cross examination that one accused Hasan Khan named by him in Ex.P.1 was dead. He tried to wriggle out of this glaring fact by explaining that Hasan Khan was not really dead. Further that he sometimes goes to Pakistan and sometimes returns therefrom. He was also questioned how it was that he did not mention in his F.I.R. the names of Saleem, Sultan, Mehammed, Sharif and Ibrahim. He explained that he was in hurry and failed to mention their names as one of their man was fatally wounded. In respect of the presence of the two constables at the scene of occurrence, he admitted that he did not now recollect whether they were present at the time of the Marpit but it was sure that he saw them carrying Vireshwar. The learned counsel for the appellants pointed out that these names could not have been in the knowledge of Vedanand because these names do not appear in the electoral roll and actually those people belong to a different village. 14. Baldeo PW.3 has stated that Vireshwar had gone to the Gurukul's land as it was being cleared and also for the purpose of keeping a watch because there was Bajra in the field. He was going with Vedanand and others. From the opposite direction were coming Virashwar, Sanketanand and Prakash Chand. When they were about 100-150 paces, then he saw that 40-50 persons came shouting that they should be done to death. 15. Ram Chandra PW.4 deposed that they did not go to the place of occurrence because the assailants were prepared to beat them too and they ran away. 16. Satyabrat PW.15 deposed that when they reached near the corner of the patwari's field they saw Vireshwar and others coming. At the same moment, 40-50 persons came and attacked them. He was watching the occurrence from 20' but in cross examination he admitted that they had run away from the scene of occurrence and saw from a distance the injured being carried. He even stated that Baldeo and Ram Chandra were not present at the time of the actual occurrence because they have been dispatched to the police to inform about 'Marpit'. They were sent to the police no sooner than the accused came running to beat. 17. He even stated that Baldeo and Ram Chandra were not present at the time of the actual occurrence because they have been dispatched to the police to inform about 'Marpit'. They were sent to the police no sooner than the accused came running to beat. 17. This evidence of Satyabrat, Vedanand, Ramchandra and Baldeo does not corroborate each other and it is very difficult to hold that these four persons were watching the actual occurrence. 18. The prosecution case suffers from two more infirmities. It appears from the evidence that the assailants were not known to the witnesses before hand. It was therefore, very necessary to conduct test identification in order to lend insurance to the investigation and to the identification which the witnesses made at the time of the trial. In the absence of test identification one cannot be satisfied that the identification which the witnesses made before the trial Judge was free from doubt. 19. It is also in evidence that the three of the accused persons were injured. According to Dr. B.P. Mathur PW.16, Mohammed got an incised wound 4"x 1/4" x bone deep in the middle of the head placed vertically. The edges of the wound were sharp and clean cut and it was caused by a sharp weapon. Noor Mohammed received five simple injuries one of which on his finger was by a sharp weapon. Saleem received a lacerated wound on his finger was by a sharp weapon. Saleem received a lacerated wound on the head and two contusions on his left arm. The prosecution witnesses have not given by any explanation regarding the injuries of these accused persons. They have even denied to have seen any injury on the persons. When the prosecution witnesses do not explain the injuries of the accused, there results follow:- (1). That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2). It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt, as the witnesses cease to be reliable. (3). It does not affect the prosecution case at all. In this connection reference may be made. To The State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 . (3). It does not affect the prosecution case at all. In this connection reference may be made. To The State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 . The result of non-explanation of injuries will depend upon the facts of each case. In this case the non-explanation of the injuries to my mind, in view of the other surrounding circumstances make the prosecution witnesses unreliable and it cannot be said that this non explanation is of no consequence. As regards the right of private defence the learned trial Judge was of the view that the accused party exceeded the right of private defence. The accused party was in possession of the disputed field and according to the evidence of the police constables, though they were posted to keep a watch, the crop was being attended to by the accused. In such circumstances if there was any grievance, it lay with the complainant party who were not able to get possession in spite of the sale deed and proceedings under section 145 Criminal Procedure Code. One can therefore, imagine that the lead in the fight must have been taken by the complainant party and not the accused. Let us now then see whether the accused exceeded the right of private defence as held by the learned trial Judge. 20. As regards the simple injuries which the accused caused to Sanketanand and Prakash Chand it is easy to say that in that case there was no excess in the exercise of such right. As regards Vireshwar Dr. B.P. Mathur PW.11 deposed that deceased Vireshwar had received 8 injuries namely (1) lacerated wound 1/2" x 1/4" x bone deep on the back of the head in the middle. (2) abrasion 1" x 1/4" in the middle of the head. (3) swelling 2" x 1" with an abrasion 1/4", in the middle of the swelling over left temporal region. (4) lacerated wound 1/2" x ⅙" x ⅙" over the back of the left hand in the middle. (5) abrasion 1/4' x 3/4" on the back of left index finger in the middle. (6) ecchymosis of the right upper eyelid; (7) contusion 12" x 1" in the middle of the back obliquely; and (8) contusion 6" x 1 " on the left side of the back in its upper one third vertically. 21. Dr. (5) abrasion 1/4' x 3/4" on the back of left index finger in the middle. (6) ecchymosis of the right upper eyelid; (7) contusion 12" x 1" in the middle of the back obliquely; and (8) contusion 6" x 1 " on the left side of the back in its upper one third vertically. 21. Dr. Ganpat Lal Mathur PW.17 who performed the post mortem examination found that the scalp had sub cutaneous effusion of blood and blood clots were present on both sides of temporal region more on the left side and on the occipital region. Left temporal bone was found fractured. The death was caused due to coma resulting from compression of the brain as a result of fracture of skull. The skull injury was sufficient to caused death in the ordinary course of nature. 22. The learned counsel submitted that the learned trial Judge was in error in holding that the said injuries caused to Vireshwar were in excess of right of private defence. The learned trial Judge observed in this connection as follows: "The evidence clearly shows that Vireshwar was beaten mercilessly. Vireshwar was a strong person and he was a wrestler but he was put to death. He had no lathi with him and there is nothing to show that Vireshwar used any force against accused. Under the circumstances I hold that even if the right of private defence exist, the accused who took part in beating Vireshwar exceeded in the exercise of right of private defence." 23. This finding of the learned trial Judge is not supported by the prosecution evidence. It is true that the prosecution witnesses have said that Vireshwar and party were unarmed but then how were the injuries to three of the accused persons caused? The injuries upon the accused persons clearly show that the complainant party at least some of them were armed with sharp weapons. That circumstances probables the defence plea that the accused had to hit back in exercise of right of private defence. In a fighting of the kind which took place, it is very difficult to expect that the accused will modulate their blows and will inflict injuries with an equilibrium of mind so as to weigh them in golden scales. That circumstances probables the defence plea that the accused had to hit back in exercise of right of private defence. In a fighting of the kind which took place, it is very difficult to expect that the accused will modulate their blows and will inflict injuries with an equilibrium of mind so as to weigh them in golden scales. Considering the entire circumstances of the case what emerges is that the party of Vireshwar were trying to take possession of the land which they purchased from the sewaks of the Laxmi Narain's temple which was in possession of the accused party. They changed the place of occurrence. At least there is no satisfactory explanation to say as to on which place the occurrence took place. I agree with the learned trial Judge that it was not possible to hold that the occurrence took place in Patwari's field which was the prosecution version. The reason given by the prosecution for the presence of Vireshwar and prosecution witnesses at the time of the occurrence does also not carry conviction. The reason given by the prosecution for the presence of Vireshwar and prosecution witnesses at the time of the occurrence does also not carry conviction. The injuries of the accused have not been explained. The names of the accused were not known to the witnesses before hand. They had to take help of the electoral roll in order to fix their identity, if for nothing else at least for knowing their parentage and there was no test identification conducted by the investigating agency. In these circumstances, it is very difficult to rely upon the identification which was made by the witnesses at the time of the trial. The entire prosecution therefore, is full of doubt and in spite of the fact that one man died in the occurrence and two were injured, the benefit of doubt has to be extended to the appellants. The true version of the occurrence has not been presented before the court. 24. I, therefore, accept this appeal, set aside the convictions and sentences of the appellant's and acquit them of all the charges they have been convicted of. They are on bail and need not surrender. The bail bonds are hereby cancelled. *******