JUDGMENT 1. - Since the above three appeals arise out of the same judgment they have been heard together and are being disposed of by this common judgment, By his judgment dated 25th March, 1983, the learned Sessions Judge, Bundi, in Sessions Case No 51 of 1981, convicted and sentenced the accused-appellants, Nand Kishore, Kamlesh Kumar, Ram Dutta and Smt. Kamla as under:- Nand Kishore Ram Dutta Smt. Kamla - - - Under Sec. 302/34, IPC to imprisonment for life and to pay a fine of Rs, 500/- each and in default of payment of fine to undergo further rigorous imprisonment for one year. Kamlesh Kumar - Under Sec. 302, IPC to imprisonment for life and a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for one year. 2. In D.B. Criminal Appeal No 147 of 1983, accused Nand Kishore is the appellant In D.B. Criminal Appeal No 148/1988, Kamlesh Kumar, Ram Dutta and Smt. Knmla are the appellants. D.B. Cr. Appeal No. 485/1984. is the State appeal against the acquittal of Kamlesh Kumar, Ram Dutt, Nand Kishore and Smt, Kamla of the offences under Secs, 147, 148, 447 read with Section 149, IPC. 3. The brief facts giving rise to this appeal lie in a very narrow compass and may be stated thus: 4. On 10th March, 1981, at 10 a.m. a report was lodged at the Police Station Thana Sadar, Bundi by one Ashok Kumar son of Kanhaiyalal, wherein it was stated that out of agricultural land of Khasra No. 17, admeasuring 6 bighas 15 biswas,2 bighas were allotted in the name of Omprakash for establishing a factory by the Collector, Bundi. It was stated that the Patwari has given him the physical possession on 3rd March, 1981 and since then they had got the stones ditched on the spot and were getting construction work over it. Om Prakash is the eldear brother of the informant, Ashok Kumar It was further alleged in the first information report that Ram Dutta son of Gaind Behari, his son Kamlesh Kumar and his wife Smt. Kamla used to quarrel regarding the above land. The brother of the informant. Omparkash had also obtained a stay order against the accused persons from the court and proceeding under Section 107, Cr.P.C. had already been commenced against them. The brother of the informant. Omparkash had also obtained a stay order against the accused persons from the court and proceeding under Section 107, Cr.P.C. had already been commenced against them. It was further alleged that on 10th March, 1981, at about 7 or 8 a.m. the informant alongwith his father Kanahaiya Lal and 7 or 8 workers went to the field and at about 11 a m. the accused-appellants and one Shankar Lal Katara of Kishorepur, Kota and their other three four companions of Kota reached the hut of Ram Dutta from the site of Silore road and having come at the place where the labourers were working, they started hurling fifthly abuses. It is alleged that Gopal son of Birdhi Lal and Bharat Kumar son of Mahaveer Prasad, Kailash son of Bhairu, Babu Lal son of Ram Chandra. Ram Laxman etc. also came there It was further alleged in the report that the accused-appellants and Shankar Lal committed criminal trespass into the land of the informant and his brother. The accused-appellants scared away the workman by show of Gandasi and the co-accused Kailash Kumar is alleged to have done so with a knife. It is also alleged that Shankar Lal and Ram Dutta hid bombs in their hands and others were armed with lathis. The prosecution story as revealed in the First Information Report further goes that accused Ram Dutta threw bomb on the workman & Shankarlal threw another bomb which made a loud sound, on which they ran away. It is further the case of the prosecution that Ram Dutta Smt. Kamla and Shankar Lal caught the father of the informant and, Nand Kishore is alleged have exhorted that all members of the complainant party should be caught hold of and they would kill them all. It is further alleged that Kamlesh Kumar inflicted two or three knife blows on the abdoman and back of Kanhaiya Lal, as a result of which Kanahaiya Lal fell down. It is also further alleged that Kamlesh Kumar also attacked on Ashok Kumar, as a result of which he also got some blood on his shirt. Thereafter the informant, Bhart Kumar and Ramesh removed Kanhaiya Lal to the hospital. The father of the informant succumbed to the injuries on reaching the hospital. On the above report the police registered case No 14/1981. under Section 302/34, IPC and commenced investigation. Thereafter the informant, Bhart Kumar and Ramesh removed Kanhaiya Lal to the hospital. The father of the informant succumbed to the injuries on reaching the hospital. On the above report the police registered case No 14/1981. under Section 302/34, IPC and commenced investigation. Autopsy on the body of Kanhaiya Lal was conducted and the Doctor found three stab wounds and injuries on his person and the cause of death is said to be the injuries by a sharp weapon in lung and elbow which resulted in hemorrhage and shock After investigation, charge-sheet was submitted against five persons out of whom one Shankar Lal is alleged to have been absconding. The Learned Sessions Judge, Bundi framed charges for the offences under Sections 302, 447. 148, 336/149, IPC against Kamlesh Kumar and others with the aid of Section 149, IPC. 5. The prosecution examined 26 persons in support of its case of which PW/1 Ashok Kumar, PW/2 Kailash, PW/3 Balele PW/12 Uda and PW/21 Arjun Ram were produced as eyewitnesses. 6. Accused Kamlesh Kumar who is alleged to be the principal offender in the case, specifically pleaded the right of private defence of property and also that of person Ram Dutt accused took the defence that he was not at all present at the place of incident, i.e. he pleaded alibi. Ram Dutta examined as many as five prominent Advocates from the Bar of Bundi to show that approximately at the time of occurrence he was present in the court premises. Smt. Kamla admitted the incident giving her own version of the incident. The learned Sessions Judge appreciating the entire evidence on record recorded a funding that the prosecution has failed to substantiate its case under Sec 447, IPC against appellants Kamlesh Kumar, Ram Dutta Nand Kishore and Smt. Kamla and recorded acquittal for that offence. The learned Sessions Judge also recorded a finding of invoice in favour of the accused-appellants for the offence under Sec 336/34, or 3361 49. The learned Sessions Judge also held that formation of unlawful assembly was not proved and, thus, he did not put Section 149, IPC into operation However, the learned Sessions Judge convicted Kamlesh Kumar for the offence under Section 30 , IPC simplicitor and convicted Smt. Kamla, Ram Dutta and Nand Kishore uDder Sem 302, IPC with the aid of Section 34, IPC, vide his judgment and order dated 25th March. 1983. 1983. Aggrieved by the conviction and sentence, as aforesaid, the appellants have submitted the above appeals. The State has preferred the appeal against the order of acquittal passed by the learned Sessions Judge with respect to other offences with which the accused were charged. 7. There is a serious dispute between the prosecution and the defence with regard to the possession over the land alleged to have been allotted in favour of Om Prakash by the Collector. Bundi. The case of the prosecution is that possession over the piece of land of 2 bighas was delivered to Om Prakash. Om Prakash had applied to the Industry Officer, Bundi for the allotment of land measuring 2 bighas from Khasra No. 17 situated at Bundi-Bejula road for establishment of factory vide bis application dated 28th October, 1980, which is Ex P/20. There is similar application, which is Ex. P/17. The land was allotted vide order of the Collector dated 22nd January, 1981, which is Ex. P/16. Om Prakash also applied to the Tehsildar for delivering possession over the said allotted land vide his application dated 3rd March. 1981, which is Ex. P/15 The possession is said to have been delivered vide Ex.P/10. In Ex. P/10 no specification of the land alleged to have been given over of which possession was delivered to Om Prakash is mentioned. Ex. p.22 is the report regarding delivery of possession. In this report also, there ate specifications of the land over which the possession was given to Om Prakash. Ex. P/12 is the certified copy of the stay order passed by the SDO, Bundi, on 4th March. 1981. in the suit filed by Om Prakash against Ram Dutta and others. The learned SDO vide his order dated 4th March 1981, Ex P/12, directed the parties to maintain status quo. Ex. P/18A shows the land bearing Khasra Na. 17 Min, 17/1, 17/1/, 17/3 and 17/4 Ex. P/23-A is the certified copy of the application under Section 116(3), Cr. P.C. moved by Om Prakash against Ram Dutta and others in the proceedings under Sec 107, Cr. P.C. This application is dated 10th March 1981, through which Om Prakash made a request to the ACM-I, Bundi for taking interim bonds for keeping peace from Ram Dutta, Smt. Kamla and Kamlesh Kumar. P.C. moved by Om Prakash against Ram Dutta and others in the proceedings under Sec 107, Cr. P.C. This application is dated 10th March 1981, through which Om Prakash made a request to the ACM-I, Bundi for taking interim bonds for keeping peace from Ram Dutta, Smt. Kamla and Kamlesh Kumar. Ex D/5 is the certified copy of the application dated 7th March, 1981 moved by Kamlesh Kumar and others before the SDO, Bundi, categorically stating that Om Prakash has no legal right over the land alleged to have been allotted in his favour. It was also stated in the reply that Kamleth Kumar and others are in possession of the land On the land there ts a house for their living and shed for their cattle. It was also stated that they are continuing possession over the land since 1965 continuously and without interruption. Kamlesh Kumar, Ram Dutta & Smt. Kamla also desired that Commissioner may be appointed for inspection of the land for ascertaining the actual situation of the land. It was through this application it was specifically pointed out that Om Prakash in order to grab possession over the land was putting stones, with an intention that on 8th March, 1981, taking the benefit of the holiday at any time, may take forcible possession over the land. Ex. D/14 is the Khasra Girdawari for S.Y. 2036, in which the names of Kamlesh Kumar, Narendra Kumar and Kamlesh Kumar have been shown under the head tenant or sub-tenant who had cultivated the land bearing respective Khasra No. 17 Min/1, 17/2 and 17/3, The defence moved an application before the Tehsildar, Bundi for supplying a certified copy of the order by which possession over Khasra No. 17 was delivered on 3rd March. 1981 or 4th March, 1981 to Om Prakash, former MLA On this application, Ex P/19. there is a note which suggests that there is no record for delivery of possession in the Tehsil and, a direction that since the allotment was made by the Collector, the applicant may take a copy of the Dakhalnama from that office Ram Datta & ors. there upon moved an application through the Collector for giving them a copy of the Dakhalnama, if any. i Through Ex D/20, Ram Datta was informed that in fact there was no Dakhalnama. As such, his application for obtaining certified copy of the Dakhalnama was rejected. there upon moved an application through the Collector for giving them a copy of the Dakhalnama, if any. i Through Ex D/20, Ram Datta was informed that in fact there was no Dakhalnama. As such, his application for obtaining certified copy of the Dakhalnama was rejected. It is also worthy to note that Ex. P/10 was produced by Omprakash from his possession while he was being examined as a prosecution witness He did not give any satisfactory explanation for keeping Dakhalnama with him. The learned Session Judge after appreciating the oral as well as documentary evidence recorded a finding that the prosecution has failed to prove the specific area of land over which Om Prakash is said to have been given possession. The learned trial Court also observed that it may not be ruled out that in the facts and circumstances of the case, the accused asserted their bona fide right to claim possession over the property and apprehended the complaint party for making any construction or digging any foundation over the land in dispute. The learned trial Court also further observed that it cannot also be ruled out that the land where the complainant party had dug foundation might be part of the accuseds land. The learned trial Court further held that no offence under Section 447, IPC was committed by the accused. In view of the various findings, as aforesaid recorded by the learned Session Judge and in view of the documentary evidence referred to above, we are of the opinion that possession over the disputed land was never delivered by the Revenue authorities to Om Prakash. Ex. P/10. Dakhalnama and Ex. P/22 are of no use to the prosecution as they are incapable of delineating any specific area over which possession was delivered to Om Prakash. Further Khasra Girdawari Ex. D/14 proves possession of the accused party over Khasra No. 17 Min/1, 17/2 and 17/3. Further Ex. D/10 and Ex. D/20 make the position of Ex P/10 and Ex P. 20 valunerable, coupled with the fact that Ex. P./20 was produced by Om Prakash from bis possession. In case, the possession of the accused party is held to be proved, they would acquire a right of private defence of property. Further Ex. D/10 and Ex. D/20 make the position of Ex P/10 and Ex P. 20 valunerable, coupled with the fact that Ex. P./20 was produced by Om Prakash from bis possession. In case, the possession of the accused party is held to be proved, they would acquire a right of private defence of property. The law with regard to possession is that if there is settled possession with the party, even if he is a trespasser, he gets the right under the criminal law to defend his property against attack even by the true owner. We have no hesitation in holding that at the relevant time, the accused party was in possession of the land, though, the allotment was made in favour of Om Prakash, but possession was not delivered to him at any time. It appears that on the basis of allotment order, efforts were made to make out a case of delivery of possession of the disputed land in his favour. It would not be out of place to mention here that even the SDO while passing an interim order on an application for temporary injunction, directed the parties to maintain status quo on 4th March, 1981; but the prosecution story reveals that complainant parties continued digging of the foundation and pitching stones over the land. 8. First of all, we shall deal with the appeal of the State. In view of the discussions made above regarding possession of the land in dispute no case of criminal tress pass against the accused party can be made out against them. Shri Tibrewal counsel for the complainant party, on the basis of Ex P/10 & Ex P/22, tried to make out a case of lawful possession in favour of Om Prakash; but, in our opinion, the aforesaid documents in view of the circumstances stated above, were incapable of giving any help to Shri Tibrewal to make out a case of committing an offence under Section 447, IPC. 9. As regards the offence under Secs 147 & 143, IPC no arguments were advanced by Shri Tibrewal The finding of acquittal acquitting the accused of the offences under Secs 147, 447. 148,336 read with Sec- 149, IPC recorded by the learned Sessions Judge is based on proper appreciation of evidence and the view taken by the learned Session Judge is a plausible view. 148,336 read with Sec- 149, IPC recorded by the learned Sessions Judge is based on proper appreciation of evidence and the view taken by the learned Session Judge is a plausible view. In our opinion, the finding in this regard is not perverse or unreasonable in any manner. There is, thus, no force in the State appeal and the same deserves to be dismissed. 10. Arguing the appeal of Nand Kishore, Shri K.K. Mehrish, learned counsel g for the accused-appellant, very ably submitted that the conviction has been passed do against Nand Kishore & other accused persons mainly on the evidence, which can be summarised as follows: (1) That the accused had gone to the disputed land armed with gandasi in the company of others co-accused and had scared away the workmen who were working there. (2) That the accused-appellant had exhorted the other co-accused to catch hold of the deceased Kanhaiyalal and instigated them to finish all persons of the complainant party. (3) That while one accused, Kamlesh Kumar inflicted fatal blows on the person of Kanhaiyalal, accused Nand Kishore & other co-accused surrounded the deceased, Kanhaiyalal. 11. The learned trial Court, as pointed out above, has given a position finding that the accused had gone to the place where the construction was being don't by the complainant party in exercise of their bonafide claim and, thus, even if it be assumed that the accused-appellant had gone to the disputed land and had scared away the workmen, this act would not come within the ambit of any offence under the Indian Penal Code. As discussed in detail above, the possession was with the accused patty over disputed land. Thus, the circumstance No. 1, pointed out above, will not in any way help the prosecution. 12. As regards the second circumstance, Shri Mehrish, as well as Shri Gupta, learned counsel for the appellant, submitted that if the evidence of PW/12 Uda and PW/21 Arjun Ram is correctly appreciated, the whole occurrence can be segregated into two parts; the first part being the appellant going to the scene of occurrence and scaring away the workmen and second part being reaching of Kamlesh Kumar with a knife on the disputed and and inflicting fatal blows on the person of the deceased Kanhaiyalal. The learned counsel further submitted that the occurrence had taken place in two stages and there was no co-relation between the two stages of the prosecution saying Nand Kishore, Smt. Kamla & Ram Dutta could not be held liable for the second part of the occurrence and therefore, their conviction under Section 302/34, IPC is wholly baseless. Shri Mehrish further submitted that according to PW/12 Uda and PW/21 Arjun Ram, deceased Kanhaiyalal was not present on the scene of occurrence when accused Nand Kishore was alleged to have gone there armed with Gandasi and is alleged to have scared away the workmen Shri Mehrish farther submitted that it is also clear from the prosecution evidence that when deceased Kanhaiyalal and co-accused Kamlesh Kumar arrived on the scene of occurrence, Nand Kishore had already scared away the workmen who were alleged to be working on the disputed land. It is also clear from the evidence of PW/12 Udai and PW/21 Arjun Ram that accused Nand Kishore did not come to the place of occurrence in the company of Kamlesh Kumar. Shri Mehrish also submitted that the story of exhortation has not been supported by PW/1 Ashok Rumar. In the first information report, Ex. P/1, Nand Kishore is said to have yelled, "catch hold of every body", we will finish all of them In the statement made in the Court PW/1 Ashok Kumar has not supported the allegation regarding exhortation against Nand Kishore. Shri Mehrish, learned counsel for the accused-appellant, Nand Kishore, also submitted that the learned trial Court did not believe the story of bombs having been-applauded there. 13. We have considered carefully the submissions made by Shri Mehrish. There is substance in bis arguments. 14. The learned counsel for the accused-appellant, Shri Gupta, submitted that accused-Kamlesh Kumar, in the facts and circumstances of the case, has a right of defence of person and property and he exercised the right in a lawful manner and, as such, he cannot be held liable for any offence and, if he is not liable for any offence, consequently the other accused cannot be convicted under Section 302/34, IPC. 15. As regards the possession over the disputed land, we have already held that the accused-appellants were in possession of the land and there is positive evidence on record to prove this fact, PW/12 Abdul Sakoor has proved Ex. 15. As regards the possession over the disputed land, we have already held that the accused-appellants were in possession of the land and there is positive evidence on record to prove this fact, PW/12 Abdul Sakoor has proved Ex. D/14 Khasra Girdawari and even the statement of PW/23 Shivnath Singh is partly in favour of the accused-appellant. PW/23 Shivnath Singh has admitted that Kamlesh Kumar has trespassed upon the land measuring 2 bighas-10 biswas in Smt year 2035. In this view of the matter, accused-appellants Kamlesh Kumar, Ram Dutta and Smt. Kamla were entitled to exercise their right of private defence with regard to property in case their right to possession was heartened by any body. 16. The next question that arises is, whether accused Kamlesh Kumar could have exercised right of defence of person in the facts and circumstances of the case. Shri Gupta, learned counsel for Kamlesh Kumar, has submitted that the learned Sessions Judge erred in recording the finding that the injuries on the persons of the deceased. We are in agreement with the contention of Shri Gupta, learned counsel for Kamlesh Kumar that the injuries sustained by Smt. Kamla were of the same time when the deceased had received injuries. PW/17, Dr. Kamlesh has categorically stated that the injuries of the person of the accused, Smt Kamla, and the injuries on the person of the deceased might be of the same time and this fact has further been corroborated by the investigating officer PW/ 5 Arjun Singh, SHO. Accused Smt. Kamla was examined by Dr. Kamlesh (PW/17). There is injury report Ex. D/7 on record, which shows the following injuries on her person:- 1. Lacerated wound1/2" x 1/4" skin deep inflation present over the lateral side of right elbow 2. Abrasion 1" x 1/4" with brownish scab over the posterior surface of proximal phalange and 1st inter-phalangeal joint of right middle finger. 3. Subjective tenderness over the lower abdomen. 17. After the aforesaid injuries were examined by the Doctor, accused Kamla was not satisfied and, therefore, she moved an application on 12th March. 1981 before the Magistrate. Through her application she made a request that she be medically examined and X-ray of her injuries on her head be taken. She also desired that she be medically examined by a lady Doctor for her injuries on her private parts. 1981 before the Magistrate. Through her application she made a request that she be medically examined and X-ray of her injuries on her head be taken. She also desired that she be medically examined by a lady Doctor for her injuries on her private parts. It appears strange as to why the learned Magistrate did not direct the investigating officer to get her examined by a lady Doctor In criminal cases, the injuries on the person of the accused play an important role in deciding as to which party was assailant However, she Was administered medical treatment, but her injuries were not examined by the lady Doctor. Her examination, in fact, had taken place on 3rd April, 1981. There is evidence on record that she made complaint regarding pain on her private parts. The case of the defence is that deceased Kanhaiyalal inflicted injuries on the person of Smt. Kamla and. particularly, on her private parts. Thus, non-examination of Smt. Kamla on her own request tolls seriously upon the fairness of the trial. 18. It is trite that the onus which rests on an accused person under Section 105 of the Evidence Act to establish his plea of private defence is not a onerous as un-shifting burden which lies heavily on the prosecution to establish its case. The prosecution in required to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. It is a well established principle of criminal jurisprudence that a person faced with imminent peril to life and limb of himself or his relation or any other is not expected to weight in golden scales or calculate on a electronic calculator or computer the precise force needed to repel the danger. It is also a well established principle that even if he in the heat of moment carries his defence a little further then what would be necessary when calculated with precision and execute by a calm and unruffled mind, the law gives due allowance for it, as the benefit of doubt always goes to the accused. There is another principle which is also well established and that is where the prosecution fails to explain the injuries on the accused, two results always follow: (1) that the evidence of the prosecution witnesses is untrue and (2) the injuries probables the plea taken by the appellants. There is another principle which is also well established and that is where the prosecution fails to explain the injuries on the accused, two results always follow: (1) that the evidence of the prosecution witnesses is untrue and (2) the injuries probables the plea taken by the appellants. The Honble Supreme Court in a number of cases, namely Puran Singh v. State of Punjab, (1975) 4 SCC 518 ) ; State of Gujarat v. Bai Fatima, (1975) 2 SCC 7 ) ; Mohar Rai v State of Bihar, (AIR 1968 SIE 1281) and Laxman Singh & Ors. v. State of Bihar, (1976) 4 SCC 394 ) held that in murder cases non-explanation of injuries sustained by the accused at about the tire of the occurrence is a very important circumstance from which the court can draw the following inference:- 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. In the instant case, the prosecution has failed to given any explanation of the injuries on the person of the accused The presence of accused Kamla at the time of the occurrence is neither denied by the prosecution nor by the defence. Ex. P/4 also bears testimony to this fact. Ex. P/4 is site-plan. The prosecution has shown pieces of bangles, key, rudiax etc. at the oppose belonging to Smt. Kamla. See received some injuries shown in bar and, for other injuries she clearly pointed out that they were not examined by the Doctor even after her application on 12/3/1981. If the facts and circumstances of the case are viewed in the light of the principles of law enumerated above, we are satisfied that the defence, in the instant case, has been successful in establishing that when deceased Kanhaiyalal armed with lathi assaulted Smt. Kamla and inflicted injuries on her person, appellant Kamlesh Kumar who was none else than her son. could not have had 4 restrain upon himself as he was neither a super-human or a saint or a coward, i but an ordinary human-being 'n such circumstances, appellant Kamlesh Kumar, if assaulted the deceased by n flicking knife injuries to save his mother from further injuries, was entitled to do so. Even if it is assumed for arguments sake that the material on record fell short of discharging the nature of onus on the appellant, under Section 105 of the Evidence Act on account of failure to prove the injuries received on her private parts or injuries on her hand, as contended by the defence, then also the benefit of that deficiency and the doubt arising from there could not be given to the prosecution. 19. Shri Tibrewal, learned counsel for the complainant party submitted that the right of private defence on person and property was not available to the accused. His submission is that there was sufficient time for recourse to the public authorities and, as such, the right of private defence was not available to him. There is no dispute about the principle referred to by Shri Tibrewal, learned counsel for the complainant party. It is true that the right of defence of person 1 or property is to exercised under the following circumstances: 1. If there is sufficient time for recourse to the public authorities, the right is not available; 2. more harm than necessary should not be caused; 3. there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned. 20. But, it is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject-matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. 20. But, it is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject-matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession then there is obviously no room to have recourse to public authorities and the accused has the undoubted right to resist the attack and use even force if necessary The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extent to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation. 21. Om Prakash, undoubtedly, obtained an order for allotment in his favour. But the facts is that he was not given possession at any time as the possession rested with Kamlesh Kumar and others In the suit which was filed by Om Prakash against Kamlesh Kumar Kamla and Ram Dutta the learned Court directed the parties to maintain status quo, still Om Prakash and his party tried to dig out foundation by employing labourers on the field It is also true that Ram Dutt, Kamlesh Kumar and others did take recourse to the authorities concerned as much as they moved an application to the SDO for appointing a Commissioner to take stoke of the situation; but no order was passed. the grievance of the defence seems to be quite justified that the public authorities were influenced as he was a former member of Legislative Assembly. Anyhow whatever may be the position, in view of the circumstances discussed above, we are of the opinion that the prosecution story as disclosed in the evidence, is not correct. The prosecution involved Shankar Lal and the learned trial Court correctly observed (hat his presence was doubtful at the time of the incident. The presence of Ram Dutta was also doubtful in this case. The prosecution involved Shankar Lal and the learned trial Court correctly observed (hat his presence was doubtful at the time of the incident. The presence of Ram Dutta was also doubtful in this case. Ram Dutta has taken the plea of alibi, To prove his alibi, Ram Dutta has examined five Advocates of Buidi. All are senior Advocates of good repute. The Advocates are DW/3 Hari Mohan Sharme, DW/4 Ravindra Kumar, DW/5 Kailash Chandra Gupta and LW/7 Madan Lal. All the Advocates have stated that at 10.30 or so for about 15-20 minutes, they had seen Ram Dutta on 10th March, 1981 in the Court, There is no reason to disbelieve the testimony of these witnesses. Their statement undoubtedly creates doubt regarding the presence of Ram Dutta at the scence of occurrence. The prosecution has changed the version which has been adulterated in the FIR in respect of the incident having been taken place at one point.The incident has been segregated at two places as would be evident from Ex.P/4 and the statements of PWS 12 and 3. PW/12 Udai and PW/21 Arjun Singh did not support the prosecution story. The story of exhortation is not correct . The witnesses of the prosecution have not stated the correct version of the story and in one way or the other, either they are interested or inimical or are chance witnesses. We are of the considered opinion that the prosecution has failed to make out any case against Nand Kishore, and Ram Dutta and also against Smt. Kamla We are satisfied that the defence in the instant case has successfully established that the balance of probability that the injuries were inflicted by accused Kamlesh Kumar in exercise of right of private defence, as discussed above and, therefore, be has committed no offence. 22. In the result, the appeals filed by Nand Kishore, Kamlesh Kumar and Smt. Kamla are hereby allowed. The conviction and the sentence passed against the appellants are set aside. Appellant Kamlesh Kumar who is in jail is directed to be set at liberty forthwith, if not required in any other case. The other accused-appellants who are already on bail need not surrender to the their bail bonds. *******