JUDGMENT 1. - This appeal has been preferred against the judgment passed by learned Additional Sessions Judge, Ajmer dated 28th May, 1981 convicting the appellants, Sugna and Ram Nath, for offence under Sections 326 and 324 IPC respectively and sentencing the former to two years' rigorous imprisonment and a fine of Rs. 1,000/-. and under Sec. 324 IPC six months' rigorous imprisonment and a fine of Rs. 100/- and the latter under Sec. 324 IPC alone and sentencing him to six months rigorous imprisonment and a fine of Rs. 100/-. 2. Briefly stating, the prosecution case is that a report was lodged on 21st Sept., 1979 at 10.00 a.m. at Police Station Arain district Ajmer by one Kishan s/o Pokar wherein it was alleged by him that in his field they had harvested part of Jwar crop while the remaining was being harvested. When he and his father were grazing in that field at about 10.00 a. m., the accused persons named in the report armed with lathi and axes came there with 40-50 cattles and forced the cattles in their field. On protest, they attacked them and caused multiple injuries by axes and lathis. Details were also mentioned therein. On receipt of this report, a case under Sections 147, 148, 149, 321, 323 and 307 IPC was registered and investigation commenced. Both the injured Kishna and Pokar were medically examined and Doctor found multiple injuries of their persons by report Ex. P. 9, pertaining to Pokar and report Ex. P. 11 pertaining to Kishna. Pokar also sustained fracture on frontal bone and radius ulna which were proved by report Ex. P. 10. After investigation police filed a charge-sheet against seven persons who were committed to sessions. Various charges were framed against them to which they denied and claimed to be tried. Prosecution examined as many as 20 witnesses in support of its case. Accused-appellant in their statements recorded under Sec. 313 Cr.P.C. stated that they are the owners of the land & it was Pokar and Krishna who wanted to have forceably entered and taken possession and were also causing damage to the field. They also produced three witnesses in support of their case and proved the injuries sustained by Ram Nath. The accused set up a case of right of private defence of persons and property both. 3. They also produced three witnesses in support of their case and proved the injuries sustained by Ram Nath. The accused set up a case of right of private defence of persons and property both. 3. The learned trial Court did not accept the prosecution story as placed by prosecution and held that prosecution has failed to prove possession on the disputed land but instead of giving right of private defence of person and property held the case to be one of free fight and scrutinised the case of all the accused persons. He found the case proved against the accused-appellants and has convicted and sentenced them as indicated above and acquitted the remaining five accused-persons. Aggrieved by this judgment, the present appeal has been preferred. 4. Before I deal with this appeal, it is pertinent to mention here that on an inquiry from Public Prosecutor it is revealed that no appeal against acquittal of five accused-persons has been preferred by the prosecution and that neither of the learned counsel appearing on the either side know the fate of cross case which too was challaned on a report which was report regarding trespass and causing of injury on the person of Ram Nath. 5. Learned counsel for the appellant raised several points in this appeal. It is submitted by him that appellants are in peaceful cultivatory possession of the field bearing Khasra No. 210 for last over two and a half decades and for that documentary evidence was also placed on record. The submission is that on the strength of the prosecution evidence, the Court has given a categorical finding that prosecution has failed to prove the possession of the complainant party on the field and as such it was essential to have given credence to the defence evidence and in the alternative to have accepted the case of right of private defence of property. It is also submitted that it is bone out from the record and from the statement of the Doctor that Ram Nath also sustained several injuries on vital part of the body by sharp edged weapon and the same has not been explained by the prosecution, for that reason also, the accused is entitled for right of private defence of person. It was then submitted that the statement of both the injured complainant Krishna and Pokar are not worthy of reliance since they exaggerated the which story. Learned counsel's submission is that Pokar (p.w. 7) has given absolutely evasive answers in reply to the questions which were put to him in cross-examination and has even resiled from his police-statements Ex. D. 2 on material aspects. Even on the point of possession, it is submitted that the statements have not been correctly given and the case of right of private defence was put to the witnesses in cross-examination, of course, they denied the same. Similarly, Krishna (p.w. 8) has also avoided the answers to the suggestions made to him. It is submitted that once the prosecution has failed to establish his possession, the natural consequence was that benefit of doubt in the alternative should have been extended to the accused-appellants. 6. Learned Public Prosecutor supported the judgment of the learned trial Court but failed to answer the quarries advanced by the trial Court on the question of possession of the complainants on the field as well as on the point of explaining the injuries sustained by accused Ram Nath. 7. I have given my due considerations to the rival submissions and have perused the entire record. 8. This appeal can be decided on a very short point on the findings already given by the learned trial Court since it is fully covered by the decision of their Lordships of the Supreme Court in Gottipulla Venkata Siva Subhravanam and others v. The State of Andhra Pradesh and another (AIR 1970 SC 1979) wherein it has been held as under : "When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the Court would not be justified in ignoring that evidence and convicting the accused namely because the latter has set up a defence of alibi and set forth a plea different from the right of private defence. The analogy of estoppel or of the technical rules of civil pleadings is, in cases like the present, inappropriate and the courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preventive and not retributive." 9. In Mohar Rai and another v. The State of Bihar (AIR 1968 Supreme Court 1281) their Lordships of the Supreme Court of India have held as under : "The evidence of Dr. Bishun Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self-inflicted and further according to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries prohabilise the plea taken by the appellants." 10. It is a finding arrived at by the trial Court and in my opinion rightly so that it the prosecution has miserably failed to show its possession on the field of on the date of occurrence and as such the genesis of story is not correct. It is also bey and one's imagination that the complainant should be grazing therein cattle in the field where there was a crop at the time when the accused persons are alleged to have trespassed. In normal course, nobody is expected to take the cattle on the standing crop in a large number so that the same may be damaged. On the contrary, it would only be when they intend to damage the crop which has been sown by somebody else. In the instant case document Exhibits D-l to D-9 show that there could be possession of the petitioners on the land in dispute on the date of occurrence. It is not essential for the defence at all to prove their possession on the field on the day of occurrence in the given circumstances when the prosecution is asserting its own possession. If the prosecution has miserably failed to show its possession even then the slight evidence led by the defence for probalising its possession would be enough to consider the case in the light of right of private defence of property. In the instant case, the accused has been pleading right of private defence from the very beginning and they have even put the same case to the witnesses in cross-examination. In the instant case, the accused has been pleading right of private defence from the very beginning and they have even put the same case to the witnesses in cross-examination. Not only that, they have proved the injuries on the person of Ram Nath by examining D.W. 3, B.L. Phanan who has stated that the accused Ram Nath sustained the following injuries : 1- bUlkbZM oqUM 2,1/2" x 1/4" x ⅙" ck;ha Hkqtk ds ckgjh fgLls ij] 2- bUlkbZTM oqUM 2" x 1/2" x 1/4" nkfgus iSj ij Hkhrj dh rjQ] 3- bUlkbZTM oqUM 3" x 1/2" x 1/2" ck;ha isjkbZVy gM~Mh esa chp esa] 4- ,czstu 1/4" x 1/2" ck;ha dksguh ij] 5- ywt 2" x 1" ck;sa Ldsiqyk gM~Mh ds Hkhrj dh rjQA 11. These injuries obviously were neither self inflicted nor minor. The prosecution witnesses have not explained the injuries sustained by Ram Nath and there is every probability that the injuries to Ram Nath might have been caused in an attempt to stop committing trespass on the land which was in possession of the accused-persons. To me, it appears that case of the accused is not beyond the truth and they are entitled to the exercise of right of private defence of person and property both and/or otherwise also the prosecution evidence is not trustworthy to grove the genesis of its case. In any eventuality, the accused deserve acquittal. 12. The result is that the appeal is allowed, the judgment of the trial Court dated 28-5-81 is set aside, conviction and sentenced passed against accused Sugna and Ramnath are set aside. They are acquitted of the offence charged. They are on bail & need not surrender to bail bonds. Then same are discharged.Appeal allowed. *******