S. S. SHARMA. J. ( 1 ) THIS revision by the petitioner is directed against the - judgment dated 5-1-1983 passed by -Sessions Judge, Raipur in Criminal Appeal No. 155 of 1983; ( 2 ) BESIDES toe petitioner, two others namely Pyari and, Longo had also been convicted by the trial Magistrate - for - offence under Section 326/34 Indian Penal Code, but in appeal, the Sessions Judge, acquitted these two but up-held the conviction of petitioner Arjun. The trial Magistrate had sentenced the petitioner under Section 326 Indian Penal Code to R. I. for one year which was reduced by the Sessions Judge to R. I. for six months and fine of Rs. 200/- (Rs. Two Hundred), in default R. I. for one month. ( 3 ) PETITIONER Arjun and Samaruram (P. W. 1) are brothers. The prosecution story was that Arjun had assaulted Samaruram by a sharp edged weapon which resulted in grievous injury. The incident in question took place on 3-11-1979 at about 12. 00 noon. The report Ex. P 5 was lodged on the same day at about 8. 15 P. M. This report was in fact lodged by the petitioner himself and was recorded in Roznamcha Ex. P. 13. This Roznamcha was produced by Head Constable Ramsiya (P. W. 12 ). On the basis of that report some enquiry was made as a result of which the offence was registered. ( 4 ) IT has been, found by both the Courts below that the TIL crop on the field in question was sown by the petitioner. According to Samaruram (P. W. 1), this crop was sown unlawfully by the petitioner. At the time when the petitioner was getting the crop cut, Samaruram (P. W. 1) reached the field and obstructed to the cutting and taking away of the crop by the-petitioner. ( 5 ) THE version of Samaruram is that while he was going to call some persons for settling the dispute the petitioner and the acquitted accused Pyari obstructed him and felled him down. Thereafter the petitioner asked for an axe and a Tangiya was given to him by another acquitted accused. Thus the petitioner inflicted the blows by that Tangiya which resulted in the injuries. ( 6 ) DR. K. V. Rao (P. W. 11) examined Samaruram on 4-11-1979. He had incised wounds on different fingers of the left hand. Thereafter the petitioner asked for an axe and a Tangiya was given to him by another acquitted accused. Thus the petitioner inflicted the blows by that Tangiya which resulted in the injuries. ( 6 ) DR. K. V. Rao (P. W. 11) examined Samaruram on 4-11-1979. He had incised wounds on different fingers of the left hand. There also were incised wounds on the left foot. Dr. N. C. Hishnoi (P. W. M) had conducted X-Ray examination of Samaruram are found fractures in the second, third and fourth mata-corpal of the left hand. ( 7 ) BIRBAL (P. W. 6) has stated that while he was going to his field, Arjun had told him that Samaru was quarrelling with him. This witness had then told the petitioner that the field that been sown by him. At, that time, Samaru was also present and this witness had told Samaru that since the had been sown by Arjun, his grievance is baseless. He had, however, advised them to call persons from the village and settle the dispute. Dhalisai (P. W. 7) whose field adjoins the field in question also states that TIL had been sown by Arjun. According to him Samaruram had objected to petitioners cutting that TIL crop. Sukhru (P. W. 10), who had gone to cut the crop along with Arjun also states about the crop having been sown by the petitioner. His version is that Samaru on coming to the field started quarrelling and inspite of his advising to can a Panchayat and settle the dispute the petitioner and Samaru grappled with each other. In the meantime, he and others went away from there. In cross-examination he further stated that Samaru had given filthy abuses to Arjun and with Tangiya bad even chased Arjun, but fell down. Thereafter Arjun fled away from there. According to him at the time of grappling, Samaru with Tangiya, had chased Arjun. ( 8 ) THE evidence as has been referred to above clearly supports the finding of the Court below that the TIL crop had been sown by Arjun. It also stands borne out from the evidence that Samaru had gone to the field and bad objected to Arjun cutting and taking away the crop. According to the trial Magistrate, the fact that Arjun had sown the TIL crop is of no benefit to Arjun. It also stands borne out from the evidence that Samaru had gone to the field and bad objected to Arjun cutting and taking away the crop. According to the trial Magistrate, the fact that Arjun had sown the TIL crop is of no benefit to Arjun. He also found that Samaru had a right to object to the cutting of the crop by Arjun. For these reasons the trial Magistrate did not consider the plea of defence of person and property which could be available to the petitioner. Learned Sessions Judge has, however, observed that there must have been some exchange of hot words, but this by itself was not sufficient provocation to use a deadly weapon against Samaru. He also observed then There is no suggestion that the complainant had attempted to use weapon against the accused. There is no satisfactory proof that the complainant had attempted to assault the accused. ' He also held that causing of the repeated injuries was not justified in exercise of right of defence to person. He also held that this was a self invited dispute by the complainant. ( 9 ) IN my opinion the evidence and the circumstances have not been properly appreciated by both the Courts below. It is difficult to understand as to on what evidence or basis did the trial Magistrate find that the complainant Samaru had a right to object to the cutting and taking away of the crop by Arjun. As has been the concurrent finding which stands justified from the evidence, the field had been in possession of Arjun alone and he had sown the crop. It is, therefore, apparent that the field had been in possession of Arjun at least from last few months. If Samaru had any right over that field, he would have taken some proceedings against Arjun. There is nothing on record to show that Samaru had taken any such steps. ( 10 ) THE evidence further clearly indicates that it was Samaru who had come to the field which was in possession of Arjun and was not permitting Arjun to cut and remove the crop from that field. It is, therefore, amply borne out that Samaru was a trespasser and was unlawfully objecting to the cutting and removal of the crop which belonged to Arjun. These circumstances would clearly give a right of defence to property to Arjun. It is, therefore, amply borne out that Samaru was a trespasser and was unlawfully objecting to the cutting and removal of the crop which belonged to Arjun. These circumstances would clearly give a right of defence to property to Arjun. ( 11 ) IT bas rightly been found that it was a self invited trouble of the complainant Samaru himself there is evidence to show that Samaru had abused Arjun and had even grappled with him. Atleast one of the witnesses, namely, Sukhru (P. W. 10) has supported the defence inasmuch as he stated in cross-examination that Samaru with Tangiya had chased Arjun this would as well probabilise the exercise of right of private defence which had in the circumstances become available to Arjun. It is needless to say that the burden on the accused to prove the defence is not that Theavy as is on the prosecution. If from the evidence and/or the circumstances the defence gets probabilised, the accused bas to get the benefit. In my opinion, the probability of the accused having assaulted Samaru in exercise of right of private defence cannot wholly be ruled out. The injuries are not such which can be termed- as being the result of repeated blows. The injuries do not even go to show that the applicant had in any manner exceeded the rights both of defence to property and person. ( 12 ) IN my opinion, therefore, the conviction of the applicant cannot be up held and deserves to be set aside. ( 13 ) CONSEQUENTLY, this revision is allowed. The conviction and sentence of the applicant are set aside. The amount of fine if paid to refunded back to the petitioner. .