JUDGMENT 1. - This is an appeal directed against the judgment dated 6-3-81 passed by Sessions Judge, Tonk, whereby all the accused appellants have been found guilty for the offence u/s 147 & 323 IPC, and that apart, accused appellants Bhura, Ram Pratap, Goru and Sheoji have also been found guilty for the offence u/s 325 IPC. Various sentences have been passed against the accused appellants. 2. Brief facts giving rise to this appeal are that Nanda lodged a written report at Police Station, Toda Raisingh on 30-7-79 alleging therein that in his agricultural land situated in village Ghareda, he has got a decision in favour from the Revenue Appellate Authority, Jaipur and in pursuance of that order, he was handed over possession of the field by the Tehsildar on 1-2-78. On 29-7-79, he (informant) went to see filed, alongwith Harji, Krishna, Gopi and Deviya, and when these persons reached the field. 17 to 20 persons including the accused appellants came there only armed with weapons and inflicted injuries on the persons of Nanda, Harji, Krishna, Gopi and Deviya. 3. On this report, a case was registered and during the investigation, section 307 IPC was also added. After completing the investigation, the Investigating Officer submitted a challan against the present appellants in the Court of Judicial Magistrate, who committed the accused persons to the Court of Sessions to face the trial. The learned trial Court framed the charges under sections 147, 307, 149, 323 & 325 IPC against the accused appellants. They denied the charges and claimed to be tried. In all 14 witnesses were produced by the prosecution. The accused appellants were also examined u/s 313 Cr.P.C. The accused appellants denied allegations levelled against them by the prosecution witnesses, and further stated that the land in dispute was cultivated by them at the relevant time and the Jawar crop which was standing at the field on the day of incident was sown by them, and when they were looking after their crop, Nanda, Deviya, Sheoji, Harji, Krishna and Gopi who criminally trespassed the field cultivated and possessed by the appellants and caused injuries. They have got their injuries medically examined. The accused appellants in support of their private defence produced Ram Karan (DW 1) and 39 documents including the injury reports on the persons of all the 8 persons (appellants), the FIR (Ex. They have got their injuries medically examined. The accused appellants in support of their private defence produced Ram Karan (DW 1) and 39 documents including the injury reports on the persons of all the 8 persons (appellants), the FIR (Ex. D. 13) of the cross-case No. 53/79 registered at the instance of the accused persons against the complainant party with the copy of the challan (Ex. D. 14). The accused appellant also filed order (Ex. D. 15) of the Revenue Appellate Authority, report (Ex. D. 16) of Patwari dated 16-3-79, stay order of Board of Revenue dated 14-5-79 (Ex. D. 17). The accused appellants have also filed copies of the Revenue Records and the rent receipts to prove their possession on the day of occurrence, over the disputed land. 4. The main contention of the learned counsel for the accused appellants is that the land in dispute has been recorded in the Khatedari of Smt. Kamla widow of Jagannath as has been admitted by the informant (Nanda) in his statement. Learned counsel further contended that the land in dispute was being cultivated with the consent of Smt. Kamla by Ram Nath and his sons, as has been admitted by Nanda, in his statement before the trial Court. The learned counsel also submitted that in the report (Ex. D. 13) it has been stated that while the accused appellants who are members of the same family were looking after their crop, the complainant party tried to dispossess and destroy the crop, and at that moment the accused party tried to resist the complainant party and thereafter gave beating to the accused party, whereby all the accused appellants sustained in all 19 injuries. 5. Learned counsel then contended that the injuries on the persons of the accused appellants have not been explained by the prosecution, and that, the possession over the disputed field on the day of occurrence has also not been proved by the prosecution, and further that, in the present case, the learned trial Court failed to consider the right of private defence of person and property which has been claimed by the accused appellants. 6. Learned Public Prosecutor, on the other hand, contended that on the day of occurrence, the land in dispute was in possession of the complainant party and accused party gave beating to the complainant party without any reason. 7. 6. Learned Public Prosecutor, on the other hand, contended that on the day of occurrence, the land in dispute was in possession of the complainant party and accused party gave beating to the complainant party without any reason. 7. In view of the submissions made by both the learned counsel, it is an admitted fact that the occurrence took place and where both the parties sustained injuries and on the basis of reports lodged by both the parties the cases were registered at the Police Station and after investigation, challans were filed against both the parties. In their respective reports, both the parties claimed possession over the disputed fields. The case of the accused appellant was that they were in actual possession of the disputed fields and the complainant party wanted to dispossess them and for that purpose the complainant came there on the field with Kuli so as to destroy the crops sown by the accused persons. On the other hand, the case set up by the prosecution is that the complainant went to see the field and as soon as he reached the field, he and other persons who accompanied him, were beaten by the accused appellants and by the other persons, against whom challan has been filed. 8. In view of the facts alleged in the reports it, therefore, becomes necessary to examine as to which of the party was in possession of the disputed field at the relevant time. In order to prove possession over the disputed field, Ex.P. 1 is only document which has been produced by the prosecution. Nanda (PW 1) (informant) in his statement before the trial Court has stated that he had cultivated the Jawar crop which was standing there in the field on the day of occurrence. Deviya (PW 2), in his statement initially stated that the crop was cultivated by Nanda (PW 1) but in cross-examination he deposed that none of the party cultivated the land before him. No other witnesses from the side of the prosecution deposed anything about the cultivation of the crop in question. Nanda (PW 1) who is the contesting party for the disputed land, admitted that the land owned and possessed by Jagannath husband of Smt. Kamla is also disputed. He further stated that before delivery of possession on 1.2.78 whole of the land was being cultivated by the accused persons and Smt. Kamla. Nanda (PW 1) who is the contesting party for the disputed land, admitted that the land owned and possessed by Jagannath husband of Smt. Kamla is also disputed. He further stated that before delivery of possession on 1.2.78 whole of the land was being cultivated by the accused persons and Smt. Kamla. He further admitted that the land is in the Khatedari of Smt. Kamla and that possession was delivered to him in the presence of Harji, Lal Khan, Noor Khan & Abdu Khan. None of these persons have been produced by the prosecution. Nanda (PW 1) further admitted that at the time the possession was delivered to him, neither the accused appellant nor Smt. Kamla were present at that time. He further stated that Jawar crop in dispute was cultivated by him in the presence of Harji and Deviya. These two persons though appeared in the witness box but did not corroborate this part of his statement. Nanda (PW 1) denied this suggestion put from the side of the accused appellant that the crop in question was cultivated by the accused appellant, and at the time of incident the accused appellants were working in the disputed Jawar crop and at that time, he along with 13 persons came on the field in order to dispossess the accused appellant. Nanda (PW 1) also has stated that he or his companions did not inflict any injury on the person of the accused appellant and that he does not know as to whether any injury was sustained on the accused appellants. From the above statement of Nanda (PW 1), it is an admitted position that land in question was recorded in the khatedari of Smt. Kamla widow of Shri Jagannath, who was brother of accused appellant Ram Nath. He has also admitted the possession of Ram Nath and his son upto the time when possession is alleged to have been delivered to Nanda (PW 1) on 1.2.78. 9. Under these circumstances, it was necessary for the prosecution to have proved the possession of Nanda (PW 1), as on 1.2.78 and afterwards, because the incident took place on 29.7.79 when three crops had been shown after 1.2.78. The case set up by Nanda (PW 1) is that in execution of the order passed by the Revenue Authority, the possession was delivered to him by the Naib Tehsildar who prepared the memo (Ex. The case set up by Nanda (PW 1) is that in execution of the order passed by the Revenue Authority, the possession was delivered to him by the Naib Tehsildar who prepared the memo (Ex. P 1) copy of which has been filed by the prosecution. 10. As said earlier in the present case, the determination of possession is a material point and in that situation it was obligatory on the part of the prosecution to have proved the possession of Nanda (PW 1) and in this view of the matter, I am of the opinion that Ex. P 1 cannot be sufficient to have proved for that purpose, because it is an admitted fact that at the time when possession was delivered none of the accused appellants or the recorded tenant (Smt Kamla) were present. Moreover, the persons who were present at the time of delivery of possession and who were the attesting witness of Ex. P 1 have not been produced by the prosecution. Even, Naib Tehsildar, who prepared (Ex. P 1) has also not been produced before the prosecution. As against this, the accused appellants have produced order (Ex. D 17) of Board of Revenue passed in second appeal wherein it has been directed that status quo be maintained. In pursuance of this order, the Halka Patwari went to the village and prepared Ex. D 16, which states that after reaching the village, he read over the contents of the order passed by the Revenue Board, and at that time Nanda (PW 1) was not present so before the person present it was said that Nanda will not make any interference in the possession of Smt. Kamla wife of Jagannath. Ex. D 16 is dated 16.3.78 order passed by Board of Revenue (Ex. D 17) is dated 14.5.79. Ex. D 18 in the Jamabandi of the disputed field, wherein the land in dispute has been shown in the khatedari of Smt. Kamla. In Khasra Girdavari (Ex D 19), names of the accused appellant Ram Nath and his son have been mentioned. In Ex. D 20, the land in dispute has been shown in the khatedari and possession of Jagannath. The accused appellants have filed the rent receipts, wherein Smt. Kamla has been shown as the recorded tenant and as per Ex. D 39, the rent has been paid by Shri Kalyan. In the rent receipts (Ex. In Ex. D 20, the land in dispute has been shown in the khatedari and possession of Jagannath. The accused appellants have filed the rent receipts, wherein Smt. Kamla has been shown as the recorded tenant and as per Ex. D 39, the rent has been paid by Shri Kalyan. In the rent receipts (Ex. D 22 to Ex. D 39) which have come from the possession of accused appellants, Smt. Kamla has been mentioned as the khatedar tenant and it shows that the rent of the disputed fields was deposited by the accused appellant and the rent was never paid by Nanda (PW 1), otherwise he could have produced the rent receipts. 11. In view of the foregoing discussions, there is no evidence on record to show that the possession was physically handed over to Nanda. Ex. P1 should not have been used for physical possession specially when Lal Khan and Noor Khan alleged to be attesting witnesses of Ex. P 1 were not produced by the prosecution Prabhu (PW 14), in his statement admitted before the trial Court that crop in question was cultivated by the accused appellants. 12. Under these circumstances, this much can be said that the accused appellants by putting suggestive questions to the prosecution witnesses and by producing the documentary evidence have probablised their possession and create doubt in the assertion of the prosecution that the land in dispute was in possession of Nanda (PW 1) and in this view of the matter; the accused appellants were well within their right to protect their possession at the time when they were going to be dispossessed or their possession was going to be disturbed by the complainant party and in that process it can also be observed that the accused appellants sustained injuries which have not at all been explained by the prosecution witnesses nor has denied the injuries sustained on the persons of the accused appellants. The case set up by the prosecution was that Nanda (PW 1), who claimed himself to be the owner and claimed his possession of the field in dispute went to see the disputed fields. In the FIR as well as in the statement, it has not at all been explained as to why the other persons named in the FIR and in his statement before the trial Court accompanied the informant (PW 1). In the FIR as well as in the statement, it has not at all been explained as to why the other persons named in the FIR and in his statement before the trial Court accompanied the informant (PW 1). On the other hand, the accused appellants in their FIR have explained that the complainant accompanied by other relatives came on the disputed fields in order to dispossess the accused party. From the facts mentioned in the reports, the presence of the complainant party at the scene of occurrence has not satisfactorily been explained by the accused appellants in their reports and the reason given by the complainant party for the presence of these persons appears to be false. The accused appellants, on the other hand, have successfully explained their presence at the place of occurrence by showing that they were doing "Ninani" in the disputed field. 13. Under these circumstances, it can also be observed that in the present case the complainant party was aggressor and they tried to dispossess the accused party. In Kaliya v. The State of Raj., Cr. L.R. (Raj.) 1984 p. 321 , it has been observed that: "It is true that the burden to make out a plea of self defence rests on the accused. But the burden is not as heavy as it is on the prosecution to prove the charge. The accused is not required to prove his defence to the hilt. He can discharge the burden lying on him by showing a preponderance of probabilities in his favour. The fact that the accused had injuries on his person, is an important circumstance which has to be taken into account in judging the plea of self defence. The non-explanation of the injuries of the person of accused by the eye witness is an important circumstance probabilizing this plea." In view of the foregoing discussion, I am of the opinion that the learned Sessions Judge was wrong in convicting the accused appellants because the prosecution utterly failed to prove the charges beyond reasonable doubt against the accused appellants I, therefore, accept this appeal and set aside the judgment and the sentence passed by the learned Session Judge. The accused appellants are acquitted from all charges levelled against them. The accused appellants are on bail, their bail bonds stand cancelled. They need not surrender.Appeal allowed. *******