JUDGMENT : ( 1. ) THIS is an appeal under section 374 (2) of the Criminal procedure Code against the order of conviction recorded by Sessions Judge morena, convicting and sentencing (1) appellant No. 1 under sections 353, 436 read with 34 and 506 (Part II) of the Indian Penal Code to one year rigorous imprisonment, two years rigorous imprisonment and fine of Rs. 50 and three months rigorous imprisonment respectively, (2) appellant No. 2 under sections 353 and 436 of the Indian Penal Code to one year rigorous imprisonment and two years rigorous imprisonment and fine of Rs. 50 respectively and (3) appellant No. 3 under sections 353 and 506 (Part II) of the Indian Penal Code to one year rigorous imprisonment and three months rigorous imprisonment respectively in Sessions Trial No. 101 /1977 through judgment dated 22-2-1978. ( 2. ) THE prosecution story, in short, is that the accused persons made construction over a portion of public lane in village Aenti. Ratanlal Vyas (P. W. 1), Additional Tehsildar, passed an order to demolish and remove that construction in Case No. 47/76-77 on 26-3-1977. In compliance of that order Rameshwardayal (P. W. 2), Nazir, visited the spot with four constables and some labourers. It is alleged that appellants Nos. 1 and 3 threatened them with guns and obstructed them. On receiving information, the Additional Tehsildar and the Station Officer reached there. The Station officer got the guns from the appellants No. 1 and 3. Thereafter Rameshwar (P. W. 2) started removing the construction. The prosecution story further alleges that all the accused persons objected and threw stones on the party which was with the Nazir. It is further alleged that all the accused persons threatened them and the appellant No. 2 set fire to the Karab lying in his house and threw the burning Karab outside his house and then all the accused persons ran away. It was further alleged that Gonda of Mahant Branda wan Das was damaged and one bullock received burn injuries. Rameshwar (P. W. 2) lodged the report about the incident. ( 3. ) THE appellants pleaded alibi. Their case was that they had gone to Karoli Mata. ( 4. ) THE prosecution examined Ratanlal Vyas (P. W. 1), Rameshwar (P. W. 2), Lakharam (P. W. 3), Ramesh Khandelwal (P. W. 4), Gafoor Khan (P. W. 5), Gendalal (P W. 6), Dr. ( 3. ) THE appellants pleaded alibi. Their case was that they had gone to Karoli Mata. ( 4. ) THE prosecution examined Ratanlal Vyas (P. W. 1), Rameshwar (P. W. 2), Lakharam (P. W. 3), Ramesh Khandelwal (P. W. 4), Gafoor Khan (P. W. 5), Gendalal (P W. 6), Dr. M. S. Sengar (P. W. 7), Vidhyaram sharma (P. W. 8), Shivpal Singh (P. W. 9) and Mahadeo Singh (P. W. 10) in support of the story put forward by the prosecution. The trial Court, believing the story of the prosecution, convicted the appellants as mentioned above. Against the judgment of conviction and sentence, the present appeal is filed. ( 5. ) BEFORE proceeding with the case, I may mention here that the learned Trial Court in its Judgment in para 23 has held that the story put forward by the prosecution that there was pelting of stones on the party which was accompanying the Nazir, is false. I may mention that the learned Trial court has stated in para 23 of its Judgment as under:- (translated into English) "shri Kushwah (P. W. 10), in para 20 of his statement, has stated that all the accused persons threw about 10 to 20 stones or it may be 50. But this fact he has not written down on any paper. The report regarding the incident (Ex. P/4) was written by Rameshwar (P. W. 2)and it was given by Kushwah (P. W. 10), but if the report is read, it does not mention the incident regarding pelting of stones. This fact is also supported by the statement of Shri Vyas and also by the statement of thanedar. No person was injured by the pelting of stones. There was no medical examination of any person who might have received stone injuries. " Therefore, taking into consideration all these facts, the learned trial Court came to the conclusion that the story put forward by the prosecution regarding pelting of stones by the appellants is false. ( 6. ) AS to setting fire to the Karab which was lying in the house of the appellant, I may mention here that the story put forward by the prosecution simply cannot be believed. It will be very difficult to hold that the appellant set fire to his own property. The person, who suffered damage because of fire, was not examined by the prosecution. It will be very difficult to hold that the appellant set fire to his own property. The person, who suffered damage because of fire, was not examined by the prosecution. In case of arson this Court has held in the case of Dhanka v. State, 1964 JLJ Note 183. as under:- "held : Having given my anxious consideration to the direct evidence led against the present appellant by the prosecution I am of opinion that it is inherently improper and discrepant in nature. It is not possible to place implicit reliance on it. Great care has to be exercised in deciding cases of arson, wherein it is not unlikely that after a fire is detected a concerted move is made by the complainant and his witnesses to fasten the responsibility for it on any one who has been on terms of enmity with the aggrieved party. Witnesses who happened to appear at an odd hour of night at the crucial moment and reached the scene of occurrence just in time to be able to see culprit in action ace more often than got up witnesses. Their evidence can be relied only if it is corroborated by some other evidence connecting the accused with the crime. Such is not the case here. Appeal allowed. " ( 7. ) THE prosecution has also not examined Mahant Brandawan who lost his bullock because of the alleged fire. Therefore, taking into consideration all these facts, I am of the view that the prosecution has not proved that the appellants were responsible for setting fire to the Karab as alleged by the prosecution witnesses in their statement. Therefore, I am of the view that the prosecution has not proved a case against the appellants under section 436 of the Indian Penal Code. Therefore, the conviction and sentence awarded to the appellants under section 436 or section 436 read with section 34 of the Indian Penal Code cannot be maintained and I set aside the conviction and sentence imposed upon the appellants under those sections. ( 8. ) THE question now remains that whether the appellants can be convicted under section 353 and 506 (Part II) of the Indian Penal Code. ( 8. ) THE question now remains that whether the appellants can be convicted under section 353 and 506 (Part II) of the Indian Penal Code. The learned counsel for the appellants submitted before me that the person, who wanted to remove the trespass, must have an authority under law to do the same and if the appellants were in possession of the property then they have right to resist the person who, without any authority, wants to demolish their property. The prosecution has produced the order given by the Tehsildar for removal of the alleged trespass. It is dated 26-7-1977. It does not mention any survey number, nor it indicates any plot or open piece of land by mentioning its boundaries. Subject of the order mentioned is: "subject-Removal of the trespass from the Government fend in village Aenti. Then it says that in the above mentioned subject 1 (that is the Additional Tehsildar) order that Balkishan and others, residents of village Aenti have committed trespass on the Government land and they have kept stone slabs over it. Therefore, Nazir should go on the spot and remove the trespass. It is signed by Additional Tehsildar, tehsil Morena M. P. " Shri Ratanlal Vyas, Additional Tehsildar, is examined as P. W. 1. In para 2 of bis statement he has admitted that the order which he passed regarding removal of trespass was not served on anyone. Along with him, when he went to the spot, Ramesh Khendelwal, Gafoor and two constables from Police Station Rithora Kala were with him. By Ex. P/2 he requested the Station Officer to send more constables to assist him in removing the trespass. Balkishan and others wanted to obstruct in his work and therefore he sent Gafoor to report the matter to Police Station Rithora Kala. When station Officer of Police Station Rithora Kala came there, he asked the accused persons to hand over the guns which were with them. The accused persons handed over the guns as they were asked to do by the Station officer. In a case of trespass, the procedure is laid down under section 248 of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the Code ). The accused persons handed over the guns as they were asked to do by the Station officer. In a case of trespass, the procedure is laid down under section 248 of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the Code ). From the evidence produced in the file, I am not in a position to see whether the Tehsildar, before removing the alleged trespass, has followed the provisions as laid down under section 248 of the Code. Moreover, when the notice was not served on the appellants, it will be difficult to hold that the finding of the Tehsildar that they have committed the trespass on the government land, was proper. If it is held that the Tehsildar has not followed the procedure as laid down under section 248 of the Code, then i have to see whether the accused persons have committed any offence as held by the trial Court. As I have mentioned earlier, the order itself does not indicate the portion on which the accused persons have committed trespass and if they are not intimated as to the place where they had committed the trespass, then they had a right to defend their property and in defending their property, if they had intimidated the Tehsildar or the nazir or the persons who were taken by the Nazir with him, it will not be an offence under section 353 or section 506 (Part II) of the Indian Penal code. Here, I will refer to a judgment given by this Court in the case of salim v. State, 1963 MPLJ Note 219 which is as under:- "held, that there was no satisfactory evidence to show that the decree-holders and the process-server were acting within the scope of the authority of the warrant for delivery of possession. It could not be denied on the facts of the case that there was an invasion of property either actual or threatened which justified the exercise of the right of private defence because otherwise the offence of Criminal trespass or house trespass would have been committed. A person had a right subject to restriction in section 99 to defend property against any act amounting to criminal trespass. The decree-holders had failed to show that they went to obtain possession of the house in the lawful exercise of the right conferred on them by the decree. Accused Was acquitted. A person had a right subject to restriction in section 99 to defend property against any act amounting to criminal trespass. The decree-holders had failed to show that they went to obtain possession of the house in the lawful exercise of the right conferred on them by the decree. Accused Was acquitted. " ( 9. ) FROM the evidence of Ratanlal Vyas (P. W. 1) Additional Tehsildar, it is abundantly clear that the accused persons had got their houses constructed, which, in the eye of Tehsildar, was trespass on Government land. But, I have already mentioned above that the Nazir has no authority to remove the trespass; so also the order issued by the Additional Tehsildar was not clear on the point as to on which place the accused persons had committed trespass. Therefore, it will be difficult to hold that the accused persons exceeded their right to defend their property, if they had got right to defend their property. Therefore, relying on the judgment as referred by me above, I am of the opinion that the prosecution has failed to prove that the accused persons can be liable under section 353 of the Indian Penal code. The action on the part of the accused persons to hand over the guns to the Police Officer also clearly indicates that the appellants had no intention to give a threat either to Nazir or the Police Officer. That being the position found on the facts which are before me, I am of the opinion that the offence under section 506 (Part II) of the Indian Penal Code is also not made out. ( 10. ) THEREFORE the result is that the appeal is allowed and the conviction and sentence recorded by the learned Trial Court is set aside and the appellants are acquitted of the charges on which they have been convicted and sentenced by the learned trial Court. Fine, if they have deposited, be refunded to them. Bail bonds are discharged. Appeal allowed.