K. P. MOHAPATRA, J. ( 1 ) THIS appeal is directed against the judgment and order passed by the learned Sessions Judge, Baripada, acquitting the respondents of the charge under Section 302 read with Section 34 of the Indian Penal Code. ( 2 ) PROSECUTION case is that one Brundaban Panda of village Sainkula within Khunta Police Station of Mayurbhanj district had three sons named, P. W. 1 Somanath, Jagannath and Bholanath. Sanathan (referred to as the deceased) was gaged two Kiaris of paddy land measuring about Dei (D. W. 1) elder sister of the wife of respondent Sudam. Despite the mortgage, possession of the land was with Brundaban and after him, with his sons named above. In the year 1980, paddy crops had been raised on the land in question by P. W. 1 and his brothers. On 19-7-80 at about 8. 30 a. m. P. W. 1 and his brothers with the deceased and two labouers, P. W. 4 and another, came to the land the deceased was standing on the ridge. The three brothers were engaged inside the field itself. At that time, the respondents armed with lathis and followed by 10 to 12 persons, all of whom were similarly armed, arrived near the land. Respondent, Sudam enquired as to why they were engaged in an agricultural operation. P. W. 1 and the deceased said that they were ploughing their own land and that respondent Sudam had nothing to do with it. Inevitably an altercation took place during which respondent Sins dealt a lathi blow on the vertex and respondent Sudam dealt another lathi blow on the right side of the head of the deceased resulting in bleeding injuries. He fell down on the land. Respondent Sudam ran away and while respondent Sins attempted to assault others, P. W. 1 and his brothers snatched away the lathi from him. The persons who were following the respondents also left. Deceased Sanatan was carried to Khunta Public Health Centre where he was given treatment and as is condition became serious, he was removed to the Headquarters Hospital, Baripada where he succumbed to the injuries on 23-7-80. Information sent by the Medical Officer, Khunta Public Health Centre on 19-7-1980 about the injuries on the deceased and information sent through the Headquarters Hospital, Baripada about his death on 23-7-1980 were obviously treated as First Information Report and investigation commenced. Information sent by the Medical Officer, Khunta Public Health Centre on 19-7-1980 about the injuries on the deceased and information sent through the Headquarters Hospital, Baripada about his death on 23-7-1980 were obviously treated as First Information Report and investigation commenced. Ultimately, charge-sheet was submitted against the respondents for having committed an offence under Section 302 read with Section 34 of the Indian Penal Code. ( 3 ) DURING trial, the respondents, took the plea that Brundatan Panda sold the two Kiaris of land in favour of Sabitrimani Dei (D. W. 1) under a registered sale deed in which P. W. 1 himself acted as an identifier. After the sale, possession of the land was delivered in favour of respondent Sudam who accepted the same on behalf of his sister-in-law, D. W. 1. After the sale, respondent, Sudam was in possession thereof all through. In the year 1980 he had raised paddy crops on the land and by the time the occurrence took place weeding operation was already over. On receiving information that P. W. 1, his brothers, the deceased and their labourers were reploughing the land, both the respondents came to protest, but both of them were assaulted by the prosecution, party for which they received injuries. They lodged First Information Report on the basis of which a counter case was initiated against P. W. 1, his brothers and the labourers, According to them, a false case was brought against them. ( 4 ) THE learned Sessions Judge on the basis of the prosecution evidence formulated the following points: - (i) Whether the death of the deceased was homicidal. (ii) Who was in possession of the land (iii) Whether the respondents assaulted Sanatan with the intention of committing, murder. (iv) If the respondents were entitled to the right of private defence of property. (v) Was if the obligation of the prosecution to explain the injuries sustained by the respondents and (vi) Whether the statement of P. W. 2, the Medical Officer, Khunta Public Health Centre, can be accepted as a since of dying declaration implicating the respondents. ( 5 ) SO far as the first point is concerned it was not disputed during herein that the death of the deceased was homicidal in nature because of the assault and the serious head injuries as opined by the Medical Officer, P. Ws. 2 and 3. ( 5 ) SO far as the first point is concerned it was not disputed during herein that the death of the deceased was homicidal in nature because of the assault and the serious head injuries as opined by the Medical Officer, P. Ws. 2 and 3. ( 6 ) WITH regard to the possession of the land in question, the views expressed by the learned Sessions Judge is not wholly acceptable. After scanning the evidence of the prosecution witnesses he found that P. W. 1 and his brothers were not in exclusive possession of the land in the year of occurrence. At the Same time he observed that respondent. Sudam was also not in possession and that dispute was going on between the parties with regard to possession. So far as the first part of the finding is concerned, it is supported by adequate evidence and circumstance with which we agree and held that the prosecution failed to prove that P. W. 1 and his brothers were in exclusive possession of the disputed land in the year of occurrence. At the same time, as are bound to opine that some special feature with regard to possession were not taken into accounts by the learned Sessions Judge. They were execution of the sale-deed (Ext. B) by Brundaban in favour of Sabitrimani Dei (D. W. 1) as early as on 20-4-73. In the sale-deed there was clear recital that the vendor made the vendee the holder of title and the possessor of the land sold There is no document on the side of the prosecution to show that the transaction was not a sale, but a mortgage. Sabitrimani Dei (D. W. 1) stated in her evidence that she was the purchaser of the land and as a matter of fact, respondent, Sudam was in physical possession thereof. The recitals in the sale-deed, the evidence of D. W. 1 and the very fact of intervention of the. respondents, while. P. W. 1 and his brothers were performing puddling operation on the disputed land, will not only show that respondent Sudam was in possession of the land on behalf of D. W. 1 Sabitrimani, but had also raised paddy prior to the date of occurrence. respondents, while. P. W. 1 and his brothers were performing puddling operation on the disputed land, will not only show that respondent Sudam was in possession of the land on behalf of D. W. 1 Sabitrimani, but had also raised paddy prior to the date of occurrence. This essential fact was lost sight of by the learned Sessions Judge for the mere fact that in the record-of-right the name of Brundaban stood recorded as the tenant in respect to the land. It is settled law that an entry in the record-of-right does not create title. It is only a piece of evidence to show possession. In this case, however, the recitals in Ext. B regarding passing of title and possession would rebut the presumption arising of the record- of-right. In view of this there is no gain saying of the fact that there is good material available from the evidence, both oral and documentary, that in the year of occurrence respondent Sudam was in possession of the land on behalf of D. W. 1 Sabitrimani. ( 7 ) IT is true that all the eye-witnesses namely, P. Ws. 1,4 and 5 stated that respondent. Sins dealt a lathi blow on the vertex and respondent Sudam dealt a lathi blow on the right side of the head of the deceased. But the version of these witnesses before the investigating officer in their statement under Section 161 of the Criminal Procedure Code with regard to assault by respondent Sudam was quite contradictory. They stated that Sudam gave a push on the chest of the deceased by means of the lathi. They did not state that Sudam had dealt the lathi blow which hit the right side of the head of the deceased which occasioned: the death of the deceased. The above apart, P. Ws. 1, 4 and 5 inimical towards the respondents and although on that ground alone their evidence cannot be discarded yet, when their evidence is approached with caution, it will be found that they materially contradicted themselves thereby making their evidence unreliable. For this and other reasons assigned by the learned Sessions Judge we are unable to accept the eye-witness version of P. Ws. 1, 4 and 5. ( 8 ) THE land for which the occurrence took place had been purchased in the year 1973 by Sabitrimani (D. W. 1) and was in possession of respondent Sudam. For this and other reasons assigned by the learned Sessions Judge we are unable to accept the eye-witness version of P. Ws. 1, 4 and 5. ( 8 ) THE land for which the occurrence took place had been purchased in the year 1973 by Sabitrimani (D. W. 1) and was in possession of respondent Sudam. The purchaser of the land herself stated in evidence that respondent Sudam was in physical possession of the land. Finding has already been recorded that Sudam was possession and that P. W. 1 and his brothers, were not in possession of the land in dispute. Therefore when P. W. 1, his two brothers and the deceased came to re-plough the land on the plea that they were performing puddling operation, they become the aggressors. In such circumstances, being in possession of the land, respondent, Sudam as well as his brothers were quite justified in the defending their right of property for, law does not envisage that a person should run away like a coward without defending his own property. There was also no time to take recourse to public authorities because, if Student had to run to the Police Station or to the court of law, by the time he returned the mischief to the land would have been done. In such circumstance, it is a clear case where right of private defence was available to the respondents and in exercise of that right they might have dealt two blows by means of lathis which unfortunately resulted in death of the deceased. ( 9 ) LAW is well settled that prosecution is not obliged to explain simple and superficial injuries on the accused. In this case, however, both the respondent had sustained injuries. The injuries sustained by respondent Sudam were three simple bruises. They were superficial in nature and so the prosecution was not obliged to explain the injuries. Respondent Sins, however, had sustained eight bruises on different parts of his body, two of which were on the left mandible and on the right side of the chest. It seems, he was severely assaulted though fortunately he did not sustain any serious injury. In this connection the learned Sessions Judge correctly put reliance on Lakshmi Singh and ors. Respondent Sins, however, had sustained eight bruises on different parts of his body, two of which were on the left mandible and on the right side of the chest. It seems, he was severely assaulted though fortunately he did not sustain any serious injury. In this connection the learned Sessions Judge correctly put reliance on Lakshmi Singh and ors. v. State of Bihar, in which it was held as follows: in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (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 in 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. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where me evidence is so clear and cogent, so independent and disinterested, so probable: consistent and creditworthy, that it for cut weighs the effect of the omission on the part of the prosecution to explain the injuries. In this case the eye-witnesses to the occurrence P. Ws. 1, 4 and 5 were inimical to the respondents and there was no independent corroboration to their version. They stated that they did not assault the respondents. If they did not assault the respondents, it with ready mysterious as to how both of them sustained injuries on their person when examined on the date of occurrence itself by the Medical Officer (P. W. 2 ). They stated that they did not assault the respondents. If they did not assault the respondents, it with ready mysterious as to how both of them sustained injuries on their person when examined on the date of occurrence itself by the Medical Officer (P. W. 2 ). This shows that the prosecution has suppressed the genesis and the origin of the occurrence and did not present the true version. In not presenting the true version P. Ws. 1, 4 and 5 became hers on a most material point making this an additional ground to disbelieve their evidence. Therefore, on account of non-explanation of the injuries on respondent series and suppression of the true version, the prosecution case should be viewed with grave suspicion. ( 10 ) LASTLY P. W. 2 that Medical Officer of Khunta Public Health Centre stated that on his query the deceased told him that respondents Sudam Mohanty and Sisir Mohanty caused the injuries by dealing lathi blows. This statement was undoubtedly in the nature of dying declaration because, two days thereafter the injured died. On this point there was absolutely no cross-examination except that the witness stated that the injured was conscious and was able to talk till he became unconscious. In this connection reference is also necessary to the evidence of P. W. 3, the Medical Officer of Headquarters Hospital, Baripada. He stated that the patient mayor may not in a case of this nature be unconscious on receipt of the injuries. In the instant case he would have become immediately unconscious. It is also the evidence of P. W. 1 that the deceased had became senseless. In view of such evidence there is reason to doubt as to whether the deceased was in full Senses so as to make a dying declaration. In this connection, it is necessary to make reference to Munna Raja and anr. v. The State of Madhya Pradesh. It was laid down that although a dying declaration must be approached with caution for the reason that the maker of the statement of cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. So the Court must not look cut for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration. It was further held that in. order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by a deceased must be laid before the Court without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. In this case, the whole of the statement which has deceased made was not laid before the Court. There was also so corroboration as already pointed out above. It was doubtful whether and deceased was in full senses so as to make a dying declaration implicating the respondents. In such a event it is unsafe to convict the respondents solely on the basis of the dying declaration. ( 11 ) FOR the reasons stated above and while agreeing with all the material arid factual findings arrived at by the learned Sessions Judge, we held that the prosecution failed to bring the charge home to the respondents. The impugned judgment is so reasonable that while dealing with an appeal against acquittal in a serious case of murder, we do not consider it appropriate to interfere even though there may be possibility of reaching a different conclusion on the same set of facts. Appeal dismissed.