JUDGMENT 1. - This is an appeal against the judgment dated 27/10/1975, passed by the Addl. Sessions Judge No. 2, Alwar in Sessions Case No. 38 of 1975 (249/1974), convicting and sentencing the accused-appellants as under:- (1) Banshi Under Sec.148,326 and 323 read with Section 149, IPC and sentenced to two years rigorous imprisonment on the first count, to four years' R.I. on the second count and three months' R.I. on the third count. (2) (3) (4) (5) Rohtas Kanhaiya Amar Singh Susu Under Secs. 148, 326, read with Section 149 and 333 and sentenced to two years' R.I. on the first count, two years' R.I. on the second count and six months' R I. on the third count. 2. All the sentences were ordered to run concurrently and acquitted the two persons Gagdu & Hira Lal of all the charges who were also involved in the incident. 3. The prosection story, in brief, is as under: The trial parties, complainant as well as the accused party are residents of two different villages Mundawar and Bulawas which are separate from each other by very short distance. The accused party along with other residents of village Baluwas purchased nearly 2000 bighas of land and used to graze their cattle therein. This was not liked by the villagers of Mundawar, adjoining village and, therefore, this created bad-blood between the two rival parties of two different villages and there used to be tension on this account and some altercations used to take place every now and then. On 3/4/1974, Ramji Lal son of Gordhan of Mundawar village was grazing his cattle (goat) near his filed and Deena and Jai Ram were working in the nearby field. The accused persons Banshi, Amar Singh, Rohtas, Kanhaiya, Gagdu, Susu and Hira Lal, formed an unlawful assembly and came armed with weapons such as axe and lathis to the place of occurrence. Banshi had a 'tanchiya' in his hand and others had lathis. They came and surrounded the sheeps and goats. Ramji La I protested, on which Banshi hit a 'tanchiya' blow on the head of Ramjilal and others gave lathi blows. On shouting of Ramji Lal, his brothers Deena and Jai Ram came on the spot,who were also given beating by lathis by the accused persons. They came and surrounded the sheeps and goats. Ramji La I protested, on which Banshi hit a 'tanchiya' blow on the head of Ramjilal and others gave lathi blows. On shouting of Ramji Lal, his brothers Deena and Jai Ram came on the spot,who were also given beating by lathis by the accused persons. Net Ram, Ramji Lal, Manohar Lal and Kishori also came on the field and by their intervention the accused went back. A report was lodged by Gordhan, the father of Ramji Lal, Deena and Jai Ram at the police Station, Mundawar at about 5.45 p.m. on the same day. Dr G.R. Khandelwal PW/9 attended the injured persons and examined their injuries and found the following injuries on the body of the injured persons: (1) Ramji Lal: (1) Lecerated wound 5 cm x A cm x 1 cm on the middle of parietal region of head; (2) Lacerated wound 5 cm x 1 cm x 1 cm on the right parietal temporal region of head; (3) Incised wound 8 cm x 1 cm x 1 cm on the middle of parietal region of head. Slightly towards right side. Under line this injury fracture of the bone was suspected; (4) Bruise 15 cm x 5 cm on the back surface of left shoulder; (5) Bruise 10 cm x 5 cm on the outer side of the lower ⅓rd part of left fore-arm. (2) Jai Ram: (1) Lacerated wound 3 cm x 1/2cm x 1/2cm on the outer ⅓rd part of left forearm. (2) Lacerated wound 1 cm x 1/2cm x 1/2cm on the inner surface of middle of right index finger. (3) Deena: (1) Lacerated wound 5 cm x 1/2cm x 1/2cm on the middle of parietal region of head; (2) Lacerated wound 3 x 1/2cm x 1/2cm on the right occipital region of head; (3) Lacerated wound 3 cm x 1/2cm x 1/2cm on the right parietal region of head. 2 cm away from injury No. 2. 4. The police after investigation challenged all the seven accused persons named above in the Court of Magistrate, Kishangarh, who committed the accused for sessions trial and the trial was held by Addl. Sessions Judge No. 2, Alwar. The accused persons pleaded not guilty and claimed trial. The prosecution examined PW/1 Dr. D.R. Sharma, PW/2 Ramji Lal, PW/3 Jai Ram,PW/4, Deena, PW/5 Gordhan. Sessions Judge No. 2, Alwar. The accused persons pleaded not guilty and claimed trial. The prosecution examined PW/1 Dr. D.R. Sharma, PW/2 Ramji Lal, PW/3 Jai Ram,PW/4, Deena, PW/5 Gordhan. PW/6 Manohar Lal, PW/7 Net Ram, PW/8 Roop Narain and PW/9 Dr. G.B. Khandelwal. The accused persons denied the allegations under Section 313, Cr. P.C. and have said that they were not present and that they have been falsely implicated because of group rivalry between the two villages. The accused persons did not lead any evidence in defence. After hearing the arguments, the learned Addl. Sessions Judge, No. 2 Alwar acquitted Hira Lal and Gagdu, but convicted the five accused-appellants as mentioned above. It is against this judgement that the accused-appellants feeling aggrieved have preferred this appeal before this Court. 5. I have heard Shri H.C. Ristogi, learned counsel for the accused-appellants as also the learned Public Prosecutor and have carefully gone through the record of the case. 6. Learned counsel for the accused-appellants has contended that there is no motive as to why the accused persons should have gone at the place of incident and inflicted the injuries on the complainant party. The defence as given in Ex D.2, a complaint filed by the accused-appellants Banshi against Deena, Jairam, Ramjl Lal Gordhan, Nandu on 5/4/1974, in the Court of Munsif and Judicial Magistrate Kishangarhbas is that on 3/4/1974, Banshi was cutting Sarson crop in his field and the accused persons draw their cattle-sheep and goats into his field and stated damaging the crop and thereupon Banshi protested, on which accused Deena gave a severe beating to Banshi by which his one of the tooth was broken Ramji Lal had lathi and inflicted a blow on the head of Banshi. Whereas Jairam had a jelly and gave an injury by the same on his shoulder. Gordhan had a lathi who gave an injury on his head. Nandu also had a lathi who also inflicted in,jury by the same. On his shouting other villagers came there who drove away the accused party. When Banshi went to file a report in the Police Station he found several villagers of Mundawar village were present there and gave threats and warning that they will murder him. Therefore, he had filed a private complaint in the Court. 7. Learned counsel for the accused has argued that the defence theory is more probable and plausible. When Banshi went to file a report in the Police Station he found several villagers of Mundawar village were present there and gave threats and warning that they will murder him. Therefore, he had filed a private complaint in the Court. 7. Learned counsel for the accused has argued that the defence theory is more probable and plausible. There was no occasion for the accused-appellants to have gone to the place of occurrence and gave beating as mentioned earlier. According to the defence story, Banshi had also received as many as 8 injuries. The injury report of Banshi has also been produced and marked as Ex. D/1, which shows that he had one injury by sharp edged weapon and other seven injuries by blunt object on his hand, chest, shoulder and parietal region Learned counsel for the accused-appellant further argued that the accused persons had a right of the private defence both for the property as well as of the person & even if they had exceeded right of private defence they cannot be held guilty under Sections 326, 324 and 323 read with section 149, IPC, as mentioned earlier. The prosecution has not explained the injuries on the body of the Banshi On the other hand, all the prosecution witnesses specially the so-called eye-witnesses have denied that Banshi had received any injury in the incident, and thus no explanation has been offered and so the prosecution case is wholly false and their conviction cannot be maintained. More ever, when a private complaint had already been field by the accused,appellant Banshi she trial of the two cases should have proceeded by the same court and simultaneously, But it was not done in spite of requests and written application on behalf of Banshi. Mr. Rastogi has further submitted that the prosecution witnesses have been tutored as their statements are mostly identical and in a seriatum which has been concocted after the receipt of medical evidence & they have involved all the five accused persons by assigning a particular blow to them corresponding with the medical evidence. Since Banshi had been injured earlier he could not have possibly watched and remembered as to who inflicted injuries on the other two injured persons. Since Banshi had been injured earlier he could not have possibly watched and remembered as to who inflicted injuries on the other two injured persons. Similary, two injured persons had come after hearing the cry of Ramji Lal and, therefore, trey could not have seen as to how Ramji Lal was injured, and by whom and in what manner and by what weapon and, therefore, his contention is that the accused-appellants are entitled to acquittal. I have carefully considered the arguments of Shri Rastogi as well as Mr. Mr. O.P. Sharma, learned Public Prosecutor and have also gone through the record of the case carefully and the various authorities cited by the other party. The fact that some incident happened on 3/4/1974 cannot be denied and the fact that accused Banshi received the injuries in the said incident is also fully established and also that Ramji Lal, Deena and Jai Ram received injuries in the incident. This is obvious by the injury reported in Ex. P/9, Ex. P/10 and Ex. P/11 as also Ex. D/1 and Ex D/2 and the statements of PW/9. The only question that requires determination is as to whether the accused-appellants are entitled to right of private defence or not and as to whether the incident as narrated by the prosecution happened or as mentioned by the defence in Ex. D/2. Even the prosecution witnesses have admitted that there was some dispute between the villagers of Baluwas and Mundawar in respect of Charagah for the last several years Villagers of Baluwas wanted to graze their cattle whereas Mundawar village people used to object and obstruct from their cultivation and that is why after the incident there was huge crowd near the police station Mundawar so that the complainant party could not approach the SHO and file their report. Even the investigating officer could not deny and gave an evasive reply that he does not remember that 100 villagers of Mundawar had collected at the Police Station on the date of incident. Moreover, the evidence of the three injured person PW/2 Ramji Lal, PW/3 Jai Ram and PW/4 Deena, is almost identical and this can happen only if they are tutoret, because it is very difficult to remember the various details of the incident after 17 months and to give in a graphic seriatum description of the whole incident. Moreover, the evidence of the three injured person PW/2 Ramji Lal, PW/3 Jai Ram and PW/4 Deena, is almost identical and this can happen only if they are tutoret, because it is very difficult to remember the various details of the incident after 17 months and to give in a graphic seriatum description of the whole incident. It appears that after receipt of the medical evidence and the injury report the prosecution has assigned one injury to each of the accused-appellants so as to implicate them all personally. PW/8 Ramji Lal, according to his own evidence, had received an injury on his head by tanchiya' and two mare injuries on his head One injury on his left shoulder and another injury on his left hand and when he shouted and cried his two brothers Jai Ram and Deena came- If what he say as is correct then it is not possible for either Jai Ram or Deena to give the details of the injuries, the manner and by whom the various injuries were inflicted on Ramji Lal. Similarly, it was not possible for Ramji Lal to have witnessed and remembered and depose in the court after 17 months as to how and by whom Jai Ram and Deena were injured. In this view of the matter, I am not inclined to rely on the evidence of either Ramji Lal or his two brothers Jai Ram and Deena. The prosecution has also examined two other eye-witnesses, namely, Manohar Lal and Net Ram who have deposed in the Court that they were busy in cutting their crop in their own fields, which were at a distance from the field of Ramji Lal and it was only after hearing the cry from Ramji Lal that they came to the field of Ramji Lal and then they further described as to how Ramji Lal had received various injuries and by whom they could not have seen and deposed in the Court, which also shows that they are also not truthful witnesses and this evidence also cannot be relied upon. In view of this sort of evidence, I am not persuaded to believe the story of the prosecution as mentioned in the First Information Report or deposed to by the three injured persons supported by two so called alleged eye-witnesses. In view of this sort of evidence, I am not persuaded to believe the story of the prosecution as mentioned in the First Information Report or deposed to by the three injured persons supported by two so called alleged eye-witnesses. Another reason as to why I am not able to rely on their evidence is that all of them were specifically questioned as to whether Banshi accused-appellant had received any injury or that they had seen any injury on the person of Banshi. But all of them have consistently denied having seen I any injury on the body of Banshi. That means that they are not coming with whole truth and their evidence is not reliable so as to warrant conviction of the accused-appellant. I will also like to refer some of the cases cited by the learned counsel for the appellants 8. Mr. Rastogi, learned counsel for the accused-appellants relied on Raja Khima v. State of Saurashtra, ( AIR 1956 SC 217 ) , wherein it has been observed as under: "There are two important factor in every criminal trial that weigh heavily in favour of an accused persons; one is that the accused is entitled to the benefit of every reasonable doubt and the other, on off-shoot of the same principal that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false". 9. He has also relied on Kadar Khan and Ors. v. The State of Rajasthan (1977 Cr. L R. (Raj) 83) , and his argued that since the prosecution has not been able to explain the injuries on the accused persons, but all the prosecution witnesses have denied that any injury was inflicted on Banshi, nor they had seen any injury on his body. Therefore, we cannot rule out the possibility of the plea of private defence. It was only when injury was inflicted on Banshi that in right of private defence the accused persons might have inflicted injuries on the complainant side as well. Mr. Therefore, we cannot rule out the possibility of the plea of private defence. It was only when injury was inflicted on Banshi that in right of private defence the accused persons might have inflicted injuries on the complainant side as well. Mr. Rastogi has also relied on Mohar Raj v. State of Bihar ( AIR 1968 SC 1281 ) and Ugar Ahir v. State of Bihar ( AIR 1965 SC 277 ) and argued that as the prosecution has not explained the injuries found on the person of Banshi we must discard the entire prosecution evidence. Even if we do not discard the entire prosecution evidence on the sale basis that the prosecution has not explained the injuries, but it makes the prosecution case doubtful and the evidence of such prosecution witnesses cannot be relied so as to convict the accused persons. Their evidence cannot be termed as wholly truthful witness and one untruthful witness cannot corroborate another untruthful witness. The learned counsel for the accused-appellant has also relied on Mana & Ors v. State of Rajasthan (1978 Cr. L.R. (Raj 380) , wherein historical background of the right of private defence has been explained and reference to ancient shastras and smritis have been given and it has been observed that the instinct of self preservation which causes so many creator s to fight back savagely when harmed or frightened was protected in the ancient laws of all the countries. The right of self preservation is the basic nuclous from which the right of private defence of property and person has been enacted in the IPC under Sections 96 to 106, Chapter 4 of the IPC. The accused on being injured was well within his right to inflict injuries on the complainant par y in their right of self defence and therefore, cannot be held guilty of causing grievous hurt in the circumstances of the case. Same view has been enunciated in Yogendra Morarji v. State of Gujarat (AIR 1980 SC 661) herein it has been further observed that it is difficult to accept from a person exercising this right in good faith to weight in with golden scales that maximum amount of force is necessary to keep within the right. Same view has been enunciated in Yogendra Morarji v. State of Gujarat (AIR 1980 SC 661) herein it has been further observed that it is difficult to accept from a person exercising this right in good faith to weight in with golden scales that maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bonafide defender" if he with the instinct of self-preservation strom upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack. 10. Keeping these observations in mind, I am fully convinced that looking to the facts and circumstances of the case that the accused-appellants were also entitled to right of private defence and they cannot be held guilty for inflicting injury on the complainant party. As such, the appeal deserves to be allowed. The conviction and sentence passed by the trial Court is set aside and the accused are acquitted. Bail bonds will stand discharged.Appeal allowed. *******