JUDGMENT 1. - Appellants Nanga and Prabhu have been convicted for the offence under Section 302 I.P.C. and have been sentenced to imprisonment for life. The other appellants were convicted under Section 302/149 I.P.C. and were sentenced to imprisonment for life. The appellant Gyarsa and Moolia were convicted under Section 324 I.P.C. and the remaining appellants were convicted under Section 324/149 I.P.C. and they were sentenced to one year's rigorous imprisonment. All the appellants were convicted under Sections 147 and 323 I.P.C. and on the first count they were sentenced to one years rigorious imprisonment and on the second count to six months rigorous imprisonment. The substantive sentences were directed to run concurrently. 2. The incident in this case took place on 2.9.72 at about 10 or 11 A.M. The appellants are the residents of village Urdain and the complainant party are the residents of village Bichpuri. The most of the appellants are Mali by caste, one is Brahmin and one is also Khati by caste. The members of the complainant party are Gujars by caste. The occurrence has taken place on account of construction of Dol on the land through which three passages pass, one leading to village Urdain, the other leading to Gurachandji and the third leading to the well of village Bichpuri. The case is that at a2. The prosecution case in brief is that on July 12, 1973 at about 9 P.M. at Dharamshala situated in village Santpura, a Ramila party was singing filmy songs. The Ramlila was over a day earlier and it ended with Bhog ceremony. It is said that the deceased Zeetsingh came and objected to the singing of such songs. Thereupon, Pavitrasingh and Gurudeepsingh sons of Munshi Singh who were listening to the songs, asked Jeet Singh as to who he is to prevent singing of songs. Then wrangle took place between them and Zeetsingh inflicted a lathi on the head of Pavitrasingh and they grappled with each other. Zeetsingh then caught hold of Gurdeepsing by his lock of hair. Then both Pavitrasingh and Gurdeepsingh grappled with Zeetsingh and his hair were also caught hold by both of them. According to the prosecution, at that time, the appellant came armed with a 12 bore double barrel gun. Zeetsingh then caught hold of Gurdeepsing by his lock of hair. Then both Pavitrasingh and Gurdeepsingh grappled with Zeetsingh and his hair were also caught hold by both of them. According to the prosecution, at that time, the appellant came armed with a 12 bore double barrel gun. It is said that Sukhdeo Singh (informant) and Jalawar Singh (P W.3), who were intervening and separating them, made themselves away and at that time, it is alleged that Gurdeepsingh and Pavitra Singh exhorted their father to fire a shot. Thereupon, Munshi Singh fired a shot, which hit Zeetsingh on the left side. Zeetsingh fell down. The persons assembled ran away from the spot. According to Sukhdeosingh, he went to the house of Zeetsingh and informed his mother. Zeetsinghs brother Baldeosingh was not available. Zeetsinghs mother informed that Baldeosingh had gone to Sri Ganganagar and he might have come to Nukcra and so, he may proceed to Nukera. Sukhdeosingh then went to Nukera He sent his brother Gurbachansingh to find out Baldeosingh at Sangariya. Two other persons viz., Gurdeosingh ad Gurbuxsingh were sent to Dholnagar to find out Baldeosingh. Baldeosingh was found at Dholnagar and he came to Santpura. The occurrence was narrated to him. They saw Zeetsingh lying dead. Govind Kotwal and two other persons were left near the dead body and Sukhdeosingh went to Sangariya to lodge the report. The report Ex. P was lodged on the same night at 2. 45 A.M. A case under s. 302/34 I.P.C. was registered by Niranjansingh (P.W.5). He proceeded to the spot and conducted spot investigations. He also visited the house of the appellant Munshisingh and recovered a double barrel muzzle loading gun. The investigation subsequent changed hands. It may be stated here that on July 17, 1973, Harnek Singh, the brother of the appellant Munshisingh made a complaint to Dy. S.P. that the appellant has been falsely implicated and the killer of Zeetsingh is Gurbachansingh. After investigation, challan was presented against Gurbachansingh. At this stage, a complaint was filed by Sukkdeosingh and after holding the enquiry, he was also committed to the court of Sessions for trial, Both the accused were tried by the learned Sessions Judge. S.P. that the appellant has been falsely implicated and the killer of Zeetsingh is Gurbachansingh. After investigation, challan was presented against Gurbachansingh. At this stage, a complaint was filed by Sukkdeosingh and after holding the enquiry, he was also committed to the court of Sessions for trial, Both the accused were tried by the learned Sessions Judge. In sessions case No. 68 of 1974, Gurbachansingh was acquitted and in sessions case No.281 of 1974, Pavitrasingh and Gurdeepsingh were acquitted and the appellant Munshisingh was found guilty of having shot Zeetsingh dead.About 8 or 9 A. M., the accused persons namely ; Gyarsa, Nanga, Bhajan, Ramnath and Molyan resident of Urdain planned to construct a dol (wall). Sanwalia (P. W. 5) made request to them not to raise a wall and obstruct the pathways, his request was acceded to and the said accused persons went back to the village. It is said that all the accused persons thereafter came back, armed with lathies and Farsa and also with spades and started raising the wall. They raised the voice of `Bala Ji Ki Jai'. Ramdhan the nephew of Sanwalia came there. Sanwalia was also present at that time. He again implored the appellants for not raising the wall but there was no effect. The accused persons ran after him but he entered into bada' and saved himself. Ramdhan tried to save himself but he was surrounded by the accused persons. Nanga, Prabhu inflicted lathi blows on the head of Ramdhan. Farsa blow was also caused to Ramdhan by one of the assailants. Sanwalia raised an alarm to save Ramdhan. Thereupon, Gujarmal, Ramniwas, Ramroop and Sardar rushed to the scene of occurrence to rescue Ramdhan. All these four persons were assaulted by Prabhu, Moolia, Gordhan, Ramswaroop, Moharu, Sampat, Harikishan, Ramjilal, and Ramdhan Khati appellant oxhorted to kill all of them. Ramdhan received serious injuries on his head. He was removed from the spot in a cot. First he was taken to the Bala Ghat hospital but the medical officer was not available, thereafter he was taken to Todabhim. The other injured persons also went to the hospital. The injuries of all the injured persons were examined at the Todabhim hospital. Sanwaliya (P. W 5) lodged the report Ex. P. 1 at the police station Toda Bhim. He submitted the injury report of Ramdhan, Sardar, Gujarmal, Ramniwas and Ramswaroop. The other injured persons also went to the hospital. The injuries of all the injured persons were examined at the Todabhim hospital. Sanwaliya (P. W 5) lodged the report Ex. P. 1 at the police station Toda Bhim. He submitted the injury report of Ramdhan, Sardar, Gujarmal, Ramniwas and Ramswaroop. On the report case under Sections 147, 148, 149, 307, 324 and 325 I.P.C. was registered by the S. H. O. Toda Bhim, Shri Govind Singh (P. W. 10). Govind Singh (P. W. 10) proceeded to the spot and prepared the site plan Ex. P. 2. The victim Ramdhan died at Jaipur hospital, on 7. 9. 72 at 3.55 P. M. Autopsy on the dead body was conducted on 8. 9. 72. Thereafter the case was converted under Section 302 I.P.C. Further investigation was conducted by P. W. 9 Shri Arjunlal. The accused persons were arrested and recoveries were effected on the information and at the instance of some of the accused persons. After completion of usual I investigation, charge-sheet was presented against the accused persons and the accused persons were committed for trial to the court of Addl. Sessions Judge, Gangapur - City. Charges were read over and explained to the accused persons f but they pleaded not guilty and claimed to be tried. At the trial, the prosecution examined in all 14 witnesses. The statements of the accused persons were recorded in which they denied the prosecution case and stated that they had put up wall with a view to prevent cattle from damaging their crop. Villagers of Bichpuri were annoyed by it. About 25 to 30 in number, came armed and opened an attack on them. One Nanga had brought the break-fast, he too was beaten and the report of the occurrence Ex. P. 12 was lodged by Gyarsa at the police station at 5 P. M. One witness Mangi was examined as D.W. in defence. The learned Addl. Sessions Judge after hearing the arguments, convicted and sentenced the accused persons as aforesaid. With regard to the common object, he recorded inconsistent findings. P. 12 was lodged by Gyarsa at the police station at 5 P. M. One witness Mangi was examined as D.W. in defence. The learned Addl. Sessions Judge after hearing the arguments, convicted and sentenced the accused persons as aforesaid. With regard to the common object, he recorded inconsistent findings. As regards the plea of the accused that an attack was opened on them and they sustained injuries, the learned Additional Sessions Judge expressed the opinion that P. W. 6 Shri Ram, P. W. 7 Shri Ramphal and P. W. 8 Shriphal saw the accused persons from distance, therefore, they were not in a position to see the injuries if any caused to the accused persons. Statements of the injured witnesses, however, do not speak of any injured on the person of the accused party and in absence of any proof that the injuries were caused in the same incident, no explanation was required from the prosecution witnesses. Thus it appears that the plea of the accused did not find favour with the learned Additional Sessions Judge. As a necessary corollary thereof, the learned Additional Sessions Judge entered into conviction of the accused persons. 3. We have heard Shri Doongar Singh, learned counsel for the appellants and Mr. L. S. Udawat, learned Public Prosecutor for the State and we have perused the relevant record. 4. It is common ground between the parties that the Dol had already been raised. It appears from the site notes that a Kachi Dol, 35 ft. long and 2 ft. in height had been raised which was quite fresh. The raising of this Kachi Dol became the reason for the present incident. It is also a common ground between the parties that there were three path ways which were obstructed by raising of this Dol. These three path ways are shown as E, H and K in the Site Plan. The path way is in the nature of a track. It goes from Abadi Bichpuri shown by point No. J to well. The other track (Pagdandi) is H which proceeds from village Bich puri to village Urdain shown by point No. J. and O. Point K denotes Rasta which passes through the land of Gyarsa and Nanga and proceeds to the jungle of village Urdain. Thus two tracks and one Rasta were obstructed by raising of the wall. The other track (Pagdandi) is H which proceeds from village Bich puri to village Urdain shown by point No. J. and O. Point K denotes Rasta which passes through the land of Gyarsa and Nanga and proceeds to the jungle of village Urdain. Thus two tracks and one Rasta were obstructed by raising of the wall. It is also an admitted case of the parties that the land was in the cultivators possession of Gyarsa and Nanga, the accused persons. These lands have been marked as G, L and M in the site plan. It is also shown in the site note that Bajra, Arhar, Til were growing in the field. These three fields are said to be Nanga and Gyarsa Malies of Urdain. According to the complainant the siwai Chack land was allotted to the Malies. Although the Patwari P.W. 12 Mithan Lal has stated that the malies of Urdain were trespassers of the land but he admits that it was under their cultivation. He had proved the Khasra Girdawari which shows that the land was under their cultivation. The Khasra Girdhari relates to the period Smt. 2025 to 2028. It is the Girdawari which is recorded in Kbasra-Girdawari. Thus, it cannot be denied that Gyarsa and Nanga were actually cultivating the land in question. It is significant that in the incident both the parties had received injuries. From the side of the complainant party, the deceased Ramdhan received four injuries. Gujarmal received four injuries, Ramnivas received two injuries, Sardar received two injuries and Ram Rup also received two injuries. From the side of the accused persons in all six persons were injured. Nanga received as many as 12 injuries, Amarchand one injury, Chiranjeet three injuries, Gyarsa two injuries, Prabhu three injuries and Ramswaroop one injury. Besides these accused persons Nangibai also received one injury, who has appeared as a witness in defence. From the side of the accused person report Ex. P. 12 was lodged on the very day at 5 P.M. along with the injury reports and a case was registered under Sections 147, 149, 307 and 324 I.P.C. against the members of the complainant party and they were also prosecuted in that case. 5. From the side of the accused person report Ex. P. 12 was lodged on the very day at 5 P.M. along with the injury reports and a case was registered under Sections 147, 149, 307 and 324 I.P.C. against the members of the complainant party and they were also prosecuted in that case. 5. It is to be seen as to whether the occurrence has taken place in the manner as alleged by the prosecution and whether the prosecution has been able to establish by clear & cogent evidence that the accused persons came armed at about 10 or 11 at that time they first chased the witness Sanwalia who was interrupted by Ramdhan and thereupon the four accused persons named above inflicted blows on Ramdhan followed by opening of the attack on the remaining four persons from the side of the complainant party. We have been carried through the statements of the injured witnesses and the other witnesses who were said to be present at the time of the occurrence. All the prosecution witnesses, in our opinion, have made false statements. They have deliberately concealed the part played by them. They uniformly stated that they were all unarmed. They have uniformly stated that no injury was caused by them on any of the accused persons. They have also uniformly stated that there was no crop standing over the land in question on the date of the occurrence. It appears from their uniform statements as if they have conspired to make such statements before the court so that their actual role may not come be fore the court. The most material aspect of the case which throws doubt on the entire prosecution story is as to who had the grudge against raising of the wall whereby the three passages were obstructed. The grudge or the grievance could only be with the Gujars of Bichpuri as according to them the passages were obstructed and that even the flow of water from the village abadi was obstructed. It appears that being annoyed with the raising of the wall they came armed prevent further raising of the wall and also to demolish the wall which must. In been resisted by the accused party, resulting in the present incident, wherein both the parties sustained injuries. It appears that being annoyed with the raising of the wall they came armed prevent further raising of the wall and also to demolish the wall which must. In been resisted by the accused party, resulting in the present incident, wherein both the parties sustained injuries. If the complainant party was unarmed it is inconceivable that as many as seven persons would have been injured from the side of the accused party. It was the duty of the prosecution to have explained the injuries on the person of the accused persons, they have not only explained the injuries on the persons of the accused persons but on the contrary, they have made false statements to the effect that no injuries were seen on the person of the accused persons by them. When the land was in possession of the accused party and when they were thinking that damage has already been caused to their crop by cattle and they were further apprehending that more damage will be caused to the crop, they thought it proper to obstruct the passage and obstruction was placed to the extent of 35 ft., thus there was no question of initiating any violence on the part of the accused party and it appears that by use of force, the complainant party intended to achieve their object. When the wall to the aforesaid extent was already constructed, it was an accomplished fact. The complainant party ought to have taken recourse to a lawful authority, instead of going to the spot and making a protest against the raising of the wall. It cannot be conceived that they simply went to make a protest and prevent further construction. Looking to the number and nature of the injuries on the person of the accused party, it can safely be inferred that the members of the complainant party went armed and it is they who committed an act of aggression. The accused party, in our opinion, could legitimately act in defence of their person. When the injuries on the persons of the accused party are not explained more particularly when the injuries are not superfluous in nature, the prosecution case as put forward cannot be taken to be truthful and the occurrence. The accused party, in our opinion, could legitimately act in defence of their person. When the injuries on the persons of the accused party are not explained more particularly when the injuries are not superfluous in nature, the prosecution case as put forward cannot be taken to be truthful and the occurrence. in our opinion, must have taken place not in the manner as alleged by the prosecution but in some other manner and that may be, that the complainant party opened an attack on the accused party and the accused party acted in exercise of the right of private defence of their person as well as property. The Doll was raised by the accused party in the land which was in their occupation and for removal of the Doll only legal remedy could have been availed and it was not open to the complainant party to take law in their own hands, as it appears that they had so taken. The accused persons have pleaded right of self defence. The burden of proof of right of private defence undoubtedly rests on the accused party but they are only required to probabalise their defence, thereby that burden stands discharged. In the present case, in our opinion, the accused persons have discharged their burden by proving that they were injured in the incident and the injuries on their persons have not been explained by the prosecution so the falsity of the prosecution evidence is fully established and in that situation the defence story stands probabalise. We, therefore, hold that the prosecution has failed to prove beyond all reasonable doubt that the accused party was aggressor. On the contrary, from the material on record, it can legitimately be found in the absence of explanation from the side of the prosecution that the complainant party was the aggressor party and whatever the accused party did, was done by it in exercise of the right of private defence of their person as well as property. They not only apprehended, sustaining of grievous hurts but in fact Nanga had sustained a grievous hurt as well. In any case there was a reasonable apprehension in the mind of the accused persons that grievous hurt will be caused to accused persons. As already stated Nanga had as many as 12 injuries. They not only apprehended, sustaining of grievous hurts but in fact Nanga had sustained a grievous hurt as well. In any case there was a reasonable apprehension in the mind of the accused persons that grievous hurt will be caused to accused persons. As already stated Nanga had as many as 12 injuries. There were two incised wounds, on the face, one inch below on the right eye and the other on nose. There were five lacerated wounds, one on the occipital region and the others on right hip bone, right leg and left leg and left index finger. There were three bruises on the right and left regions and on the left Nip Joint. He was admitted in the hospital in an unconscious state. Injury No. 8 was on the right elbow and a fracture was suspected and on X-ray examination, it was found as stated by the learned Public Prosecutor. It is true that X-ray reports have not been produced in proof but not only in case of injured Nanga but in case of some other accused persons as well as the injury reports show that the fractures were suspected. So it can safely be said that there was reasonable apprehension on the part of the accused persons that they would receive grievous hurts in such a situation their right of self defence extends to the causing of death. In the above view of the matter, in our opinion, the accused persons cannot be held guilty of the commission of any offence and they deserve to be acquitted of the offence of which they have been convicted. 6. In the result, this appeal is allowed. The convictions and sentences of appellants are set aside and they are acquitted of the offences with which they were charged. They are already on bail, so they need not surrender. Their bail bonds are discharged.Appeal allowed. *******