JUDGMENT 1. - The appellants Jagdish, Ladu, Bamdu, Copal, Devi Lal; Shivraj, and Smt Nosar wife of Jagdish have been convicted of the offences under Sections 147, 323/149, & 325/149, I.P C., by the learned Sessions Judge, Bhilwara, by his judgment. dated 25-8-1977,. On the first count as well as on the second count, they, except Nosar, have been sentenced to six months' rigorous imprisonment and on the third count they have been sentenced to one year's rigorous imprisonment and to pay tine of Rs. 1,00/- and in default of payment of fine to undergo further rigorous imprisonment for oPe month, Mst Nosar has been given the benfit of probation. The accused Jagdish was acquitted of the offence under Section 307, and the other accused persons were acquitted of the offence under Section 307/ 49, I.P.C. 2. In brief, the prosecution case is that at Pander there is a 'Bara'. According to the prosecution case the Bara' was purchased by Jagdish son Hardeo Jat for a sum of Rs 475/- in an auction held by the Panchayat. As per the accused appellant Jagdish son of Gokul. he had purchased half of this Bara and was in possession of western half of the Bara. Thus, whole of the Bara was claimed by the complainant party as their own, whereas one half of it was claimed by the appellant Jagdish. It is said that on 27-9-1975. at about 3.45 P.M., when the complainant party was putting its maize crop brought from their field, the accused party came armed with 'lathis' and exhorted that the Bara does not belong to the complainant party, so why they are putting Kadap of maize. Wordy wrangia followed. Bardu, Gopal and Ladu caught hold of Kalyan (P.W. 2) and thereafter Jagdish inflicted a 'lathe blow on the head of Kalyan and showered further blows. Hardeo son of Nanda P.W.( 4) also arrived at the scene of occurrence. The accused party inflicted 'Iathi' blows on Sukhdeo, Gatoo, Hardeo son of Dhula. Sukhdeo son of Hardeo Jat (P.W. 1) lodged a written report Ex. P/1 at the Police Station. Pander. Thereupon, a case under Sections 147, 447, and 323, I.P.C. was registered. Mangilal, S.H.O., conducted the investigation. The formal F.I.R. Ex. P/14 was drawn. He inspected the state vide memo Ex. 1/15. The accused persons were arrested. Medical examination was get conducted of the injured persons. P/1 at the Police Station. Pander. Thereupon, a case under Sections 147, 447, and 323, I.P.C. was registered. Mangilal, S.H.O., conducted the investigation. The formal F.I.R. Ex. P/14 was drawn. He inspected the state vide memo Ex. 1/15. The accused persons were arrested. Medical examination was get conducted of the injured persons. After completion of investigation, charge-sheet was presented against the accused persons. Charges under Section 107, I.P.C., against Jagdish and under Sec 307/149, I.P.C., against rests of the accused persons, were added. The accused persons were ultimately committed for trial to the Court of Sessions Judge, Bhilwara. The learned Sessions Judge framed the changes and recorded the plea of denial of the accused persons. At the trial, the prosecution examined P.W. 1 Sukhdeo, P.W. 2 Kalyan, P.W. 3 Dr Ved Prakash Gupta, P.W. 4 Hardeo, P.W. 5, Mst. Gatto, P.W. 6 Amritlal Parmar and P.W. 7 Mangilal. The statements of 'he accused persons were recorded, in which they denied the prosecution case. The accused Jagdish stated that half of the Bara belongs to him A false case has been foisted against the accused persons. In fact he was beaten by the complainant party. He received injuries on his head and he was medically examined. Vaidyanath Jat and Hussain Khan rescued him and he also reported the matter at the police station. On the other hand, the accused persons examined Dr. Chriranjilal (D.W. 1), Umraosingh (D.W. 2), Rajmal (D.W. 3), Ramniwas (D.W. 4) and Baijnath (D.W. 5). After hearing the arguments, the learned Sessions Judge frund that there was no right of private defence to person of property available to the accused party. He proceeded on the basis that the whole of the Bara came in to tee possession of the complainant party as far back as 6-8-1975. Even as trespasser, the complainant party was in settled possession, so in such a situation, right of private defence to reason and property was not available. Consequently, the learned Sessions Judge convicted and sentenced the accused persons, as aforesaid, and acquitted them of the offences under Section 307, I.P.C., and 307/149, I.P.C. Dissatisfied with their convictions and sentences the present appeal has been filed. 3. I have heard Shri M.M. Singhvi, learned counsel for the appellants, and Dr. S.S. Bhandawat, learned Public Prosecutor, for the State. 4. 3. I have heard Shri M.M. Singhvi, learned counsel for the appellants, and Dr. S.S. Bhandawat, learned Public Prosecutor, for the State. 4. The main question, which requires consideration, is as to whether the accused persons in the circumstances of the present case, had a right of self defence to person of Jagdish and right to defend the property of Jagdish. In the occurrence, which has taken place, Sukhdeo (P.W 1), Kalyan (P,W. 2), Hardeo son of Nanda (P.W. 4), Gatoo (P.W. 5) and Hardeo son of Dhula, who has not been examined, have sustained injuries, from the complainant side. From the side of the accused persons, the appellant Jagdish also had received injuries He had in all six injuries. First is the incised wound on the left side of the forehead 3" above the eye brow. The second is the bruise on the left parietal region of scalp. He further had three bruises and abrasions. One bruise was with abrasion also, as is evident from the injury report Ex. D/3, proved by Dr Chiranjilal (D.W, 1). Hardeo son of Nanda had one lacerated wound on the left fore arm, vide injury report Ex, P/2. Hardeo son of Dhula had two contusions, vide injury report Ex, P/3. Gatoo had in all seven injuries, all contusions, vide injury report Ex. P/4. Sukhdeo had three injuries, all contusions, vide injury report Ex. P/5, and Kalyan had five injuries, one was lacerated wound and four contusions, vide injuries report Fx. P/6. One of the injuries of Kalyan was grievous, as there was a fracture of left fore arm The other one grievous injury was sustained by Sukhdeo. He also sustained fracture of left forearm. 5. The whole question is as to how the occurence took place and what is the genisis of the occurrence. The matter has to be viewed in the light of the question, as to whether the amused Jagdish was at all in possession of any portion of the Bara in question. If it is found that the accused Jagdish was in possession of the Bara in question and the occurrence took place when he wanted to exercise his right to put his fodder of maize in the Bara, then the complex of the case would completely change. If it is found that the accused Jagdish was in possession of the Bara in question and the occurrence took place when he wanted to exercise his right to put his fodder of maize in the Bara, then the complex of the case would completely change. So the first question to he examined is as to whether the appellant Jagdish was at all in possession of the western portion of the Bara. In this connection, the evidence led in defence, is required to be examined along with the evidence, which has been led by the prosecution. Rajmal Sarpanch (D.W. 3) has stated that the highest bid was given by Jagdish son of Hardeo Jat for a sum of Rs. 475/- in respect of the land of the Bara in question. Ramniwas, Panchayat Secretary (D.W. 4) has also stated that the land was purchased by Jagdish son of Harden Jat in auction and possession was delivered to him, and the land was sold by Jagdish son of Harden to Jagdish son of Gokal, though this witness does not mention that half of the land was sold, but Baijnath (D W. 5), has stated that the land was divided half and half in between both Jagdish. The eastern portion was of Jagdish son of Hardeo and the western portion was of Jagdish son of Gokul. Ramniwas further stated that the accused Jagdish submitted an application for permission of construction of a house on 2-3-1973. Thereupon he visited the site and prepared the plan Ex. D/7. He also stated teat when he visited the spot, he found that the possession over the Bara was of Jagdish, son of Gokul. The accused Jagdish used to tic his cattle and a heap or stack of hay or grass, was there in the Bara, Another material evidence, which has been led by the accused consists of the statement of Umraosingh, Head Constable (D.W. 2). It would appear from his statement that the accused Jagdish lodged a report of the occurrence, which took place on 6.8-1975, the F.I.R. No of which is 54 of 1975 of Police Station, Pander, and under the orders of the Dy S.P., Umraosingh proceeded to conduct the investigation of the case. He had visited the spot on 6-8-1975 and he prepared the site inspection memo Ex. D/5 and site plan Ex. D/5. He noticed that Bara was divided into two portions. He had visited the spot on 6-8-1975 and he prepared the site inspection memo Ex. D/5 and site plan Ex. D/5. He noticed that Bara was divided into two portions. There appeared to he a dividing line in the middle of the Bara. There were fresh marks of removal of the thorny fencing, which was there in the middle of the Para. He also noticed the stack of Khakle (fodder) in the western portion of the Bara. He also noticed two gates, one on the eastern side. The eastern gate was open, whereas the western gate was found closed, as the Pati of the gate was covered under the fencing. In his cross-examination this witness further made it clear that the complainant party, in the present case, had wrongfully occupied some portion of the western part of the Bara belonging to Jagdish accused. This evidence led in defence, has to be read long with the evidence of the prosecution witnesses. The prosecution witnesses have been cross-examined on the point as to whether there existed a heap o' grass (Kharedi), the witnesses admitted the existence of Kharedi and pleaded ignorance, about since what time it exists I may refer to the statements of the witnesses in this regard. Sukhdeo (P.W. 1) stated that the wordy exchange took place on the point that Jagdish accused was claiming that the Barn belong to him, whereas the complainant party claimed that it belongs to them. Kalyan (P.W. 2) in cross-examination, admitted the existence of Kharedi of Khakalu and further stated that he does not remember since hew long this Khardi was put by Jagdish. He also admits that the accused Jagdish brought a cart loaded with Makki Kadap, which was not allowed to be put by Jagdish, as the complainant party claimed that the bara is theirs. Hardev (P.W. 4) also admits in his cross-examination that the accused Jagdish had brought the cart of maize Kadap to be put in the Bara and he claimed that the Bara belongs to him. He also admitted the presence of Kharedi in Bara, but he pleaded ignorance about its duration. He also pleaded ignorance about the division of the Bara and that a part of it is in possession of the accused Jagdish. Similarly is the statement of Mst. He also admitted the presence of Kharedi in Bara, but he pleaded ignorance about its duration. He also pleaded ignorance about the division of the Bara and that a part of it is in possession of the accused Jagdish. Similarly is the statement of Mst. Gatoo (P.W 5), who too admitted that a Khakhla (Kharedi) is there in the Bara and she does not know since how long that Kharedi exists. She also admitted that the accused had conic to put the maize Kadap in the Bara and they did not allow him to do so. Jagdish was exhorting to put the cut maize forcibly in the Bara. 6. From the evidence on record, it has to be seen as to whether the accused Jagdish was at all in possession over the western portion of the Bara. It is pertinent to note that Jagdish son of Hardao has not come into the witness box Had he come into the witness box the position would have become clear. It was he, in whose name the auction was knocked down and it was from him that, it is said, the accused Jagdish bought the half of the Bara. From the evidence of Umraosingh and from the site plan Ex.D/5 and site notes Ex.D/4 it is born out that there were two portions of the Bara and one of the pertions,that is western portion, was in possession of the accused Jagdish and the heap of hay of Jagdish was also lying there, which has not been disputed by the prosecution witnesses even. Rather, they have admitted the existence of that and that the hay stack belonged to the accused Jagdish The question is, whether can it be said that on 6-8-1975, the accused Jagdish as put out of possession? From the evidence of Umraosingh it does not appear that from whole of the western portion of the Bara, the accused Jagdish was put out of possession. What he stated is that only from some portion of the western Bara Jagdish was put out of possession wrongfully. His cattle fodder was very much lying there. From the evidence of Umraosingh it does not appear that from whole of the western portion of the Bara, the accused Jagdish was put out of possession. What he stated is that only from some portion of the western Bara Jagdish was put out of possession wrongfully. His cattle fodder was very much lying there. The presence of his fodder at the spot show that the accused Jagdish continued to be in possession of that portion of the Bara, & it is only because of his possession that Jagdish accused appears to have come at the spot to put his Kadap in that portion of the Bara,which wasinhis possession. To me it appears that the occurrence has not taken place in the manner, as alleged by the prosecution. It appears that when the accused Jagdish came to put his Kadap in the Bara, admittedly, he was not allowed to do so and when he tried to do so, he was belaboured. When fodder was already lying in the western portion of the Bara, it cannot be said that the accused Jaglish was not in possession of the Bara He was simply maintaining his Fight in putting the Kadap in that portion of the Bara. The whole incident has to be viewed in this light and if viewed in this light, then it would transpire that some one from the complainant party attacked on him and it appears that at this stage the accused persons appeared at the scene of occurrence. Out of seven accused persons, there belong to different communities. Ladu is Balai, Bardu is Gujar and Devilal is Sad, and he rests are Jats. How these accused of different communities, came to join Jagdish. It is note worthy that Hardeo son of Nanda, appears to be the person, who came at the scene of occurrence after the occurrence had started. He clearly stated that when he came, Kalyan Sukhdeo had already been given beating. So the genesis of the occurrence is not known to this witness. Barda (P.W. 7) has not supported prosecution. Sukhdeo, Kalyan and Gatoo are all partisans and interested witnesses. They have suppressed the story as to how the accused Jagdish received injuries on his person) The accused Jagdish had received two injuries on his head, one incised wound on his forehead and another bruise on left parietal rigion of scalp. Barda (P.W. 7) has not supported prosecution. Sukhdeo, Kalyan and Gatoo are all partisans and interested witnesses. They have suppressed the story as to how the accused Jagdish received injuries on his person) The accused Jagdish had received two injuries on his head, one incised wound on his forehead and another bruise on left parietal rigion of scalp. The probability appears to be that when Jagdish tried to maintain his right, he was attached and was not spared and his alarm attracted the accused persons in order to save Jagdish, the accused person; must have resorted to violance against the complainant party. If the injuries on the person of the complainant party is examined, it is significant to note that the injuries have only been attributed to Gopal and Jagdish and to none of the other accused persons, that is, in the actual assault, the prosecution witnesses have come out only with a version that Jagdish and Gopal alone took part in assaulting the members of the complainant party. The learned trial judge refused to concede to the accused party right of private defence of person and property only on the basis that Jagdish son of Hardeo had already come into occupation of the whole Bara and the accused Jagdish son of Gokul was not in possession of any portion of the Bara on the date of occurrence. The finding as to possession recorded by the learned Sessions Judge, does not appear to be correct. In any event, the accused Jagdish son of Gokul, in the circumstances, could consider himself to be in possession of the property and that being so, he had come to exercise his right of possession by bringing cart load Kadap in order to put the same in the Bara. In such circumstances of the case, non-production of Jagdish son of Hardeo becomes all the more significant and an adverse inference can be drawn on account of his non-production and it can be found that the western portion of the Bara. was in possession of the accused Jagdish. Being in possession, Jagdish was simply maintaining his prossession and acting in exercise of that right When he was attacked, he and his follow associaties were within their right to inflict blows in exercise of the right of self defence of person and property. was in possession of the accused Jagdish. Being in possession, Jagdish was simply maintaining his prossession and acting in exercise of that right When he was attacked, he and his follow associaties were within their right to inflict blows in exercise of the right of self defence of person and property. The accused persons, therefore, cannot be held to have formed any unlawful assembly with the common object of causing simple and grievous hurt. Their convictions, therefore, under Sections 147, 323/149 and 235/149, I.P.C., cannot be sustained. As such all of them deserve to hie acquitted. 7. In the result, the appeal is allowed, the convictions and sentences of the accused-appellants are set aside and they are acquitted of the offences, of which they are convicted. They are already on bail, so they need not surrender to their bail bonds. Their bail bonds are discharged.Appeal allowed. *******