N. N. SHARMA, J. ( 1 ) THIS appeal is directed against order dated 16/10/1978 recorded by Sri A. B. Hajela, learned IV Additional Sessions Judge, Varanasi in Sessions Trial No. 450 of 1976 by which appellant Bachau was convicted under Section 148 of Indian Penal Code and sentenced to one years rigorous imprisonment; he was further convicted under Section 324 of Indian Penal Code and sentenced to two years rigorous imprisonment. He was further convicted under Section 323 read with Section 149 of Indian Penal Code and sentenced to six months rigorous imprisonment. All the sentences were ordered to run concurrently. ( 2 ) REMAINING appellants, nine in number, were convicted under Section 147 of Indian Penal Code and sentenced to six months rigorous imprisonment each; they were further convicted under Section 324 read with Section 149 of Indian Penal Code and sentenced to one years rigorous imprisonment each; each appellant was further convicted under Section 323 read with Section 149 of, Indian Penal Code and sentenced to six months rigorous imprisonment. All the sentences were ordered to run concurrently. ( 3 ) NANGE and Jawahir appellants were released on probation of good conduct by entering into bonds of Rs. 1000/- with two sureties of tile like amount each to appear and receive sentence when called upon during the period of one year. ( 4 ) ADMITTEDLY, the parties are Harijans and next door neighbours. Appellants are connected with each other as shown in the pedigree detailed in the judgment of learned trial court. ( 5 ) THERE is no dispute on the point that occurrence took place on 3/5/1975 at about 5. 30 a. m. the scene of occurrence has been shown in site plan Ext. Ka. 4 by letter A prepared by investigator Sri Dharam Dev Singh (P. W. 5 ). In the said site plan, there is also a cross-mark (+) where there used to be one Mahuwa tree which according to the informant belonged to him but was not in existence at the time of occurrence. It is further alleged that the root of the tree was still intact and all the appellants wanted to - remove the same. In the said site plan, there is also a cross-mark (+) where there used to be one Mahuwa tree which according to the informant belonged to him but was not in existence at the time of occurrence. It is further alleged that the root of the tree was still intact and all the appellants wanted to - remove the same. Bachau appellant had an axe while the remaining appellants were armed with lathis; informant Moti (P. W. 1), Sita (P. W. 2) and Smt. Kharpatia and Smt. Mahaur, wives of Moti and his brother, reached there and protested about it. However, Bachau dealt blows with axe which landed on the person of Sita; the remaining appellants dealt lathi blows on the aforesaid witnesses and ladies; Toofani Singh (P. W. 3) and Nihore (P. W. 4) also arrived there and intervened. ( 6 ) WRITTEN report, Ext. Ka. 1, scribed by one Sita Ram (not examined in this case) to the direction of information, was made over at police station soon-after the occurrence; on the basis of that report, F. I. R. , Ext. Ka. 2 was drawn. A report about the counter version was also lodged by Lallan at the same police station soon after in the S1. me forenoon at 7-30 a. m. vide Ext. Kha. 4. It was against Moti, Sita and Lakhan. It was recorded under Section 323 of Indian Penal Code According to this report Ext. Kha. 4, informant and Sita etc. wanted to grab the land of the courtyard lying in front of their house settled with them by Gram Samaj; on the protest by Lakhan, he was belaboured by the accused nominated in the report with lathis. They have also filed another report dated 2-5-1975 lodged by Srnt. Sursatti, wife of Lallan alleging that on the earlier day while she was placing earth on the court-yard, Sita, Meeta and Moti belaboured her with lathis vide Ext. Kha. 5. ( 7 ) INJURIES were examined by Dr. B. Narain (P. W. 6) at S. S. P. Gupta Hospital, Varanasi in between 10-10 and 10-30 A. M. on the very day. ( 8 ) FIVE injuries were detected on the person of Sita vide injury report Ext. Ka. 8. ( 9 ) MOTI sustained six injuries as shown in the injury report Ext. Ka. 9 detailed in the judgment of the learned trial court. ( 8 ) FIVE injuries were detected on the person of Sita vide injury report Ext. Ka. 8. ( 9 ) MOTI sustained six injuries as shown in the injury report Ext. Ka. 9 detailed in the judgment of the learned trial court. ( 10 ) MEETA sustained one lacerated wound and another was complaint of pain in the knee joint as detailed in injury report Ext. Ka. 10. ( 11 ) MAHAUR sustained two injuries one of which was a complaint of pain as detailed in injury report Ext. Ka. 11. ( 12 ) THREE injuries were detected on the person of Smt. Kharpatia as detailed in injury report Ext. Ka. 12. ( 13 ) ALL the injuries were sustainable on that morning at the time of occurrence and were simple in nature and caused by some blunt weapon. ( 14 ) ON completion of investigation, Sri Dharamdev Singh (P. W. 5) submitted charge sheet Ext. Ka. 5 on 5-8-1975. ( 15 ) ALL the appellants denied their participation in the occurrence and pleaded alibi except Lallan who alleged that complainant Moti and his kith and kin wanted to grab the land of court-yard and in that connection a report has been lodged by his injured wife Smt. Sursatti and when at the time of occurrence he wanted to adjust the dispute about the courtyard, he was belaboured by Moti, Sita and Lakhan. He also wielded a small rod in selfdefence. Panna and Shri Nath witnessed the occurrence and intervened. ( 16 ) IN support of the prosecution version, as testified by Moti (P. W. 1) and Sita (P. W. 2) that the said land in between the house of Lallan and pond belonged to them and they were attacked when they obstructed to the cutting of the trunk of Mahuwa tree by Bachau etc, the accused party was aggressor; witnesses Toofani Singh (P. W. 3) and Sri Nihore (P. W. 4) were examined. Both these independent witnesses did not support the prosecution story nor nominated the presence of all the appellants, as assailants. They simply alleged that there was some dispute amongst the parties. I have already dealt with the testimony of Sri Dharam Dev Singh (P. W. 5) and Dr. B. Narain (P. W. 6) who examined the injuries on the side of informant. ( 17 ) DR. They simply alleged that there was some dispute amongst the parties. I have already dealt with the testimony of Sri Dharam Dev Singh (P. W. 5) and Dr. B. Narain (P. W. 6) who examined the injuries on the side of informant. ( 17 ) DR. Nar Singh Upadhya (D. W. 1) was examined to prove the injuries sustained by Laban appellant in this occurrence. The injury report is dated 3-5-1975; as many as nine injuries were detected on his person as detailed in injury report Ext. Kha. 2. All the injuries were simple and, caused by some blunt weapon. These injuries were also sustainable at the time of occurrence. ( 18 ) DR. R. N. Tewari (D. W. 2) examined the injuries of Smt. Sursatti on 4/5/1975 at 7. 00 P. M. and found three injuries on her person as detailed in injury report Ext. Kha. 3. This related to the incident of the first day. ( 19 ) THE learned trial Judge believed the prosecution case and recorded the conviction and sentence aforesaid. ( 20 ) I have heard learned counsel for the parties and perused the record. ( 21 ) APPEAL is allowed on account of following reasons: (1) According to the prosecution version, the motive for the occurrence was that at the time of occurrence, the appellants were removing the remnant of the trunk of Mahuwa tree; on the protest by informant. His brother and wife etc. they were belaboured with an axe by Bachau and with lathis by remaining appellants. ( 22 ) THIS allegation was denied by appellants who testified that the Mahuwa tree, if any, had already fallen more than six years prior to the occurrence as was conceded by informant Moti himself in cross-examination, and even damages sustained to their house were paid by the party of informant in the earlier litigation. He did not admit that they were cutting the Mahuwa tree at the time of occurrence. They also did not admit that any root of the Mahuwa tree was present on the spot. According to them, the party of informant wanted to grab the land of their court-yard which had been settled with them by Gram Samaj as was conceded by Moti (P. W. 1) himself in his cross examination. In this connection, they relied upon the entries in copies of Khasra Khetauni Exts. Kha. 6, Kha. 8 and Kha. According to them, the party of informant wanted to grab the land of their court-yard which had been settled with them by Gram Samaj as was conceded by Moti (P. W. 1) himself in his cross examination. In this connection, they relied upon the entries in copies of Khasra Khetauni Exts. Kha. 6, Kha. 8 and Kha. 15 to show that this land of plot No. 41/7 wail their court-yard and its one acre area had been distributed to Lallan, Gulab and other appellants by Gram Samaj. However, these documents were discarded by learned trial judge on the ground that accused did not connect these documents with the land in dispute. ( 23 ) LEARNED A. G. A. also pointed out that the site plan prepared by investigator in this case showed the place where the Mabuwa tree stood and the root of that tree was shown by cross marks and so the presence of such marks in site plan Ext. Ka. 4 is readable in evidence and adds cogency to the testimony of P. W. 1 and P. W. 2. This argument has no merit. In his statement, Investigator Sri Dharam Dev Singh (P. W. 5) did not utter a single word that when he reached the spot, he found any timber on the spot or recovered any wood from the house of appellants; he did not testify that he also not saw any mark of digging on the spot. So the mere fact that he made a cross mark in the site plan on the basis of the statements made to him by the witnesses does not carry weight. It is inadmissible in evidence as was observed in Tori Singh and another v. State of Uttar Pradesh1, which reads as below:a rough sketch map prepared by the Sub Inspector on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incident would not be admissible in evidence in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub- Inspector that the eye witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub- Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. ( 24 ) SO the motive put forward by prosecution for the assault falls through. (2) In cases of rival contentions, the main point to be determined is as to which party was the aggressor? It is not merely the number of injuries sustained by the party of informant which shall alone count. Learned A. G. A. pointed out that the number of injuries sustained by the party of informant was greater viz. , 18 than 9 injuries sustained by Lallan. This is not only material circumstance to determine as to who was the aggressor. In Nachhattar Singh v. State of Punjab2, it was held: The fact that prosecution side sustained more injuries than accused is not a material circumstance to prove the latter to be aggressor. Prosecution may have bargained for them and was the aggressor. I respectfully follow the said observations. (3) The venue of occurrence did not lie in front of the house of informant but lay definitely in front of the house of appellants. Mahuwa tree, if any, was no longer in existence. It was a party land which vested in the Gram Samaj. It was settled by Pradhan on behalf of Gram Samaj with appellants. The party of informant raided the house of Lallan and inflicted as many as nine injuries on his person in the outer court-yard of his house. It was conceded by informant that the appellants Lallan etc. were in possession over the land lying in between the pond and their house which had been leveled by them. He had absolutely no connection with the same. Learned trial judge himself observed that in the earlier litigation, it was held that this land lay in front of the house of Lallan and his brother Gulab. Houses of informant and his brother etc. were away from this place. So the venue of occurrence is another material circumstance to show that the party of informant could have initiated the attack. Houses of informant and his brother etc. were away from this place. So the venue of occurrence is another material circumstance to show that the party of informant could have initiated the attack. (4) It has been shown above that Lallan sustained as many as nine injuries at the time of occurrence. No explanation about those injuries wat3 laid in the first information report in the statements recorded under Section 161 of Code of Criminal Procedure during the investigation. It is difficult to believe that the informant and his brother did not see these injuries of Lallan in broad- day light. An explanation was offered at the belated stage by P. W. 2 Sita that his brother snatched the Jathi and dealt two lathi blows on Lallan. Such explanation was an after-thought and is inconsistent with the number of injuries found on the person of Lallan. That brother of Sita was not examined to testify that he was the author of the injuries sustained by Lallan. It does not appeal to common sense that unarmed brother of Sita should have dealt so many lathi blows on Lallan when Lallan etc. were armed with Gandas and lathis and attacked the party of informant. So in absence of explanation of the injuries of Lallan accused by informant; the court could successfully draw the following inferences: 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. Vide Lakshmi Singh and others v. State of Bihar Thus, the points which could have determined the person who was aggressor go in favour of appellants and show that attack: was initiated by informantts party first by inflicting lathis blows on La Ian. Vide Lakshmi Singh and others v. State of Bihar Thus, the points which could have determined the person who was aggressor go in favour of appellants and show that attack: was initiated by informantts party first by inflicting lathis blows on La Ian. (5) It is alleged that Bachau dealt blows with Gandas; such Gandas blows were not proved by the medical evidence. According to Dr. Brij Narain (P. W. 6), none of the injury sustained by any injured was with any sharp weapon like Gandasa and so a false explanation put forward was that the Gandasa was dealt from reverse side. It was not the statement of P. W. 1 or P. W. 2 before investigator also that Gandasa ever was not dealt in normal course but from reverse side. Such fact was not mentioned in the first information report also. It is improbable to believe that Bachau appellant dealt Gandasa blows only from reverse side. This again shows the falsity of interested witnesses P. Ws. 1 and 2. The number of injuries sustained by victim is uncompatible with the number of assailants also. (6) Learned A. G. A. pointed out that the accused-appellants could not successfully prove the alibi by any other cogent evidence. This contention is unsound also to prove the prosecution case to the hilt. They could not take advantage of the weakness in defence. Appellants were not bound to prove their plea successfully. They could succeed by merely creating a reasonable doubt about the genesis of occurrenc%vide Prabhoo and others v. Emperior4. The same view was reiterated in Rishi Kesh Singh v. State ( 25 ) THUS, it is obvious that the possibility that informant etc. might have initiated attack on Lallan first than the version of cutting trunk of the tree by appellants is more probable. In exercise of right of private defence of property and person, the appellants could have successfully retaliated. ( 26 ) NO other point was pressed before me. ( 27 ) IN the result, the appeal is allowed. Conviction and sentences of appellants recorded by the impugned order are set aside and the appellants are acquitted of the various charges leveled on them. Appellants are on bail. They need not surrender to their bail bonds which are discharged. Appeal allowed.