JUDGMENT - MANOHARAN L., J.:—This Appeal by the second accused in Sessions Trial No. 67 of 1987 of the Sessions Court, Bhandara, challenges the conviction of the second accused under section 302 and under section 325 of Indian Penal Code, and the sentences of imprisonment for life under section 302 and rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default rigorous imprisonment for six months under section 325 of Indian Penal Code. 2. Six accused persons were charged for various offences. Accused 1 to 6 were charged only under section 302 read with section 34 of Indian Penal Code; 3rd accused was charged again under section 323 of Indian Penal Code for having caused hurt to PW 5; and again 2nd accused was charged under section 325 of Indian Penal Code for having caused injury by means of an axe to P.W. 4 Drakshabai. Pending trial, the accused No. 1 expired. The learned Sessions Judge acquitted accused Nos. 3 to 6 and as indicated above, found the 2nd accused guilty of the offences punishable under sections 302 and 325 of Indian Penal Code and convicted and sentenced him as indicated above. 3. The whole dispute arose with respect to 2.71 acres of land comprised in Gat No. 39 of village Nilagondi. Baburao Maniram Bhalai, the deceased in this case, was a tribal. The aforesaid property belonged to him. He has sold the property to accused Nos. 2 and 3. As per the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, the concerned authority passed an order directing restoration of the said property to the aforesaid Baburao. As per the orders of the Tahsildar, Murlidhar (PW 3) delivered the property from 2nd and 3rd accused to Baburam Maniram Bhalai on 17-1-1986. Ex. 72 is the possession receipt. Ex. 73 is the panchanama. It is the case of prosecution that after the delivery of the aforesaid property Baburao was in cultivation and possession of land. While so, on 16-6-1987, at about 9.00 a.m. when Drakashabai (PW 4), the daughter of deceased Baburao, along with her minor daughter Devaka was engaged in uprooting the Tur stems accused Nos. 1 and 2 along with others came for ploughing the aforesaid land with two ploughs. While so, on 16-6-1987, at about 9.00 a.m. when Drakashabai (PW 4), the daughter of deceased Baburao, along with her minor daughter Devaka was engaged in uprooting the Tur stems accused Nos. 1 and 2 along with others came for ploughing the aforesaid land with two ploughs. As usual when Baburao went to the field, noticing the accused engaged as above, returned to his house and came back along with his son Parashram (PW 5). Further case of prosecution is that Baburao obstructed the ploughing and the 1st accused, who was in charge of one of the ploughs, dealt a blow with spade on the head of Baburao and 2nd accused who was having an axe dealt a blow on his chest. When PW 5 tried to interfere he was obstructed by other accused; and PW 4 prevented the accused persons from further attacking Baburao who fell on receipt of the blows by accused Nos. 1 and 2. PW 5 – the son on seeing that his father fell on account of attack by the accused left towards the village to fetch others. In the meanwhile P.W. 4 with the help of her daughter made Baburao to sit. The prosecution alleges that noticing Baburao is not dead, the 2nd accused reached there and again dealt a blow with an axe on the head of Baburao, receiving which he instantaneously fell and collapsed. 4. PW 5 tendered Ex. 82 the First Information Report on the same day at 1.35 p.m. A crime was registered against the accused persons. The Investigating Officer (PW 12) held inquest and sent the dead body for post-mortem. Dr. Lanjewar (PW 10) held the post mortem on the dead body and issued. Ex. 101 – post-mortem report. PW 12 after questioning the witnesses completed the investigation and submitted the charge-sheet. 5. The accused persons pleaded not guilty to the charge. The prosecution led evidence by examining PW 1 to PW 14. On the defence side DW 1 and DW 2 were also examined. 6. Prosecution mainly relied on the evidence of PWs. 4, 5, 8 and 11 — the eye witnesses — to bring home guilt to the accused persons. 5. The accused persons pleaded not guilty to the charge. The prosecution led evidence by examining PW 1 to PW 14. On the defence side DW 1 and DW 2 were also examined. 6. Prosecution mainly relied on the evidence of PWs. 4, 5, 8 and 11 — the eye witnesses — to bring home guilt to the accused persons. The thrust of the defence is private defence claiming that while the accused 1 to 3 were in possession of the property it was the deceased and his party who wanted to dispossess them and thus they were the aggressors. Reliance was also placed on Ex. 136 — the first information report — tendered by deceased 1st accused and also Ex. 139 the wound certificate concerning the 1st accused in support of their case of private defence. 7. It is settled position that the onus of prosecution to prove it case beyond shadow of doubt is not in any way reduced by the plea of the accused that he is entitled to private defence. For sustaining the plea of private defence under law the accused need not even make a specific plea nor need the accused lead evidence in support of the same. Though the accused is under obligation to prove the plea of private defence and discharge his burden under section 105 of Indian Evidence Act by the principle of preponderance of probability for discharging the said burden he can rely on the very prosecution evidence. That being the position, it becomes incumbent for us to deal with the evidence of occurrence witnesses to see whether the prosecution is successful in discharging its burden. As such there is no dispute that Baburao met with a homicidal death. This is amply proved by the evidence of PW 10 as well as the post mortem report Ex. 101. 8. Of course, PW 4 and PW 5 being the children of deceased Baburao they could be said to be interested in prosecution, but mere interestedness by itself is no reason to reject the evidence of an eye-witness provided that their presence at the time of occurrence is satisfactorily established. PW 4 has sworn to the effect that on the date of occurrence she along with her daughter went to the field of her father for uprooting the Tur stems. PW 4 has sworn to the effect that on the date of occurrence she along with her daughter went to the field of her father for uprooting the Tur stems. After about 10 to 20 minutes the second accused along with third and other accused came to the field. The second accused was having an axe with him. The 1st accused was having a spade with him. Accused No. 3 started ploughing the land. She would say that at that time Baburao came there and on seeing them returned to the village and after about 15 minutes came back with his wife and Parashram (PW 5). She swears to the sequence of events which ultimately resulted in the death of Baburao. She would maintain that when Baburao caught hold of plough, the 1st accused dealt a blow with the spade on the head of her father and the 2nd accused dealt a blow with the axe on the chest of her father. She tried to ward-off further attack; her father fell; at that time the 2nd accused hurled a blow on her left hand which resulted in fracture. Thereafter the accused persons went towards the village side. She would further swear that she along with her mother made Baburao to sit but at that time the 2nd accused rushed to the father and dealt a blow on his head with the axe and he again fell down. PW 5 – the brother of PW 4 – effectively corroborates PW 4. He support her stating that when he reached the paddy field along with his father deceased Baburao, on seeing the accused persons attempting to plough the field when his father obstructed them the 1st accused dealt a blow with a spade on the head of the father and it was followed by the 2nd accused inflicting a blow on his chest receiving which he fell and on seeing this he left towards the village to bring others. The attempt at cross-examination was aimed to show that Baburao trespassed into the property which was in possession of 2nd and 3rd accused. Two independent witnesses, viz. PW 8 and PW 11 were examined, but the learned Sessions Judge did not rely on the evidence of these witnesses on the ground that there are contradictions and omissions in their depositions. The attempt at cross-examination was aimed to show that Baburao trespassed into the property which was in possession of 2nd and 3rd accused. Two independent witnesses, viz. PW 8 and PW 11 were examined, but the learned Sessions Judge did not rely on the evidence of these witnesses on the ground that there are contradictions and omissions in their depositions. Though it could be said that the said view of the learned Sessions Judge with respect of PW 8 is sustainable, we do not see that the evidence of PW 11 suffers from the same defect. The omission brought out in the evidence of PW 8 is that he did not mention in his statement under section 164, Code of Criminal Procedure, to his having seen accused Nos. 1 and 2 standing on the road below a mango tree. The omission cannot be said to be a material omission so as to rob off the credibility of the evidence of PW 11. He is a natural witness inasmuch as he possessed paddy field in the neighbourhood, and according to him while he was proceeding to his paddy field on the way he saw the occurrence. We consider that the evidence of PW 11 ought to have accepted by the learned Sessions Judge. Thus the evidence of PW 4 and PW 5 gets independent corroboration from PW 11. The evidence of PW 4 gets corroboration from Exh. 82 first information report also; there is hardly any delay in tendering the first information report and the same does not bear any noticeable discrepancy between the occurrence sworn to by these witnesses and what is stated in the first information report. Therefore, the evidence of these witnesses, particularly that of PW 4 and PW 5, brings out that Baburao fell a victim to the attack of accused Nos. 1 and 2. The offence alleged against accused No. 1 has already abated on account of his death. Having found that the prosecution has established as to how the occurrence took place, now it is necessary to see as to whether the 2nd accused who has been found guilty is successful in discharging his burden under section 105 of Evidence Act in support of his claim of private defence. 9. Having found that the prosecution has established as to how the occurrence took place, now it is necessary to see as to whether the 2nd accused who has been found guilty is successful in discharging his burden under section 105 of Evidence Act in support of his claim of private defence. 9. The first question that falls for consideration in this regard is as to who was in possession of the land in question on the date of occurrence. As indicated earlier, PW 3 Murlidhar has sworn to the effect that pursuant to Ex. 78 he effected the delivery of 2.71 acres of land of paddy field from 2nd and 3rd accused. Ex. 72 is the receipt passed by Baburao on delivery of possession of land to him. Ex. 73 is the panchanama signed by the panchas as to the delivery of possession and Ex. 74 is the compliance report filed by PW 3. PW 3 is a Public Officer and he effected delivery in discharge of his public duty and his evidence is as to the factum of delivery of possession from accused Nos. 2 and 3 to deceased Baburao. 10. As against this, the learned Counsel, Mr. Gulhane, for the appellant, strongly contended that in spite of this fact the accused Nos. 2 and 3 continued to be in possession and they were cultivating the property. In support of the said argument the learned Counsel relied mainly on Ex. 75 – the copy of 7/12 extract – and also the order of the Civil Judge dated 28-10-1986 passed by him on an application under Order XXXIX, Rules 1 and 2, Code of Civil Procedure, filed by deceased Baburao. Reliance was also made on a portion of the statement by PW 5 in his evidence to the effect that in spite of the delivery the 2nd accused forcibly cultivated the property. Ex. 75 of course mentions that during 1986-87 Guldas Galma Hatwar was in possession of 2.71 acres of land in question. This Ex. 75 also notes the delivery of the said land in favour of tribal Baburao on 17-1-1986 from the non-tribal Guldas Galma Hatwar as per order dated 23-7-1985. What is important is not right to possession; but is actual possession. When the question of actual possession is considered it may be relevant to see the source of possession. This Ex. 75 also notes the delivery of the said land in favour of tribal Baburao on 17-1-1986 from the non-tribal Guldas Galma Hatwar as per order dated 23-7-1985. What is important is not right to possession; but is actual possession. When the question of actual possession is considered it may be relevant to see the source of possession. The source of possession claimed by prosecution is the delivery effected by P.W. 3. As regards possession the neighbouring field owners P.W. 8 and P.W. 11 also swear in support of the possession of Baburao. This possession is also mentioned in the first information report lodged by P.W. 5. The probative value of Ex. 75 has to be assessed and evaluated in the context of other evidence focusing on the possession of deceased Baburao. Of course it is true that Baburao, when his possession was threatened, filed a civil suit for injunction and also moved an application for interim injunction. The learned Civil Judge by the order dated 28-10-1986 dismissed the application taking the view that half of the share of the disputed land since belongs to second accused, even if the delivery was effected, he being the co-owner, no injunction can be issued against him. In our view, this order cannot, in the circumstances, mean that no delivery took place or under the delivery PW 3 did not put Baburao in possession of the property. What PW 5 said was that in spite of their obtaining possession Guldas continued to cultivate the same forcibly. But the said statement is immediately followed by his assertion that his father on such forcible cultivation by Guldas had reported the incident to police whereupon proceeding under section 145, Code of Criminal Procedure, was initiated. 11. The learned Counsel maintained that even a trespasser is entitled to continue in possession and when such possession is disturbed he is entitled to protect the possession and in that regard he will be entitled to right of private defence. In support of the said argument the learned Counsel for the appellant relied on the decision reported in the case of (Munish Ram and others v. Delhi Administration)1, A.I.R. 1968 S.C. 702. A reading of the said decision itself would show that the possession must be settled possession and it will not be constituted by stray or intermittent acts of trespass. A reading of the said decision itself would show that the possession must be settled possession and it will not be constituted by stray or intermittent acts of trespass. The possession of the trespasser must be extending over a sufficiently long period and acquiesced in by the true owner. A casual possession would not have the effect of interrupting the possession of rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. The evidence cannot support a case of settled possession muchless a possession in which Baburao had acquiesced in. Immediately on the challenge of possession, he filed a Civil Suit. He also reported the matter to police upon which proceeding under section 145, Code of Criminal Procedure, was started. With due regard to what is laid down in A.I.R. 1968 S.C. 702, which is reiterated in the case of (Puran Singh and others v. The State of Punjab)2, 1975 S.C.C.(Cri.) 608 one cannot say that the second accused had settled possession of the property in question. 12. In this connection it is necessary to advert to another contention raised by the learned Counsel for the appellant, Mr. Gulhane, to the effect that the true occurence is not placed by the prosecution before the Court with the oblique purpose of defeating the right of private defence of accused. In support of the said contention the learned Counsel relied on Ex. 136—the F.I.R. tendered by the 1st accused Sitaram and also Ex. 139 and the evidence of PW 9 which reveals that the 1st accused had sustained injury in the transaction. In Ex. 136 the first accused maintains that he had purchased ½ acre of agricultural land from Kandu Patil for Rs. 900/-; that he is cultivating the said land, and on 16-6-1987 when he had gone to the field for ploughing at about 10 O'clock Baburao came to the field with an axe and stick in his hand and attempted to cut the leather belt of the plough. He proceeded to state in the F.I.R. that Baburao dealt a blow with the axe on his head and he snatched the axe from the hand of Baburao and gave a forcible blow on the head of Baburao. Thus, according to Ex. He proceeded to state in the F.I.R. that Baburao dealt a blow with the axe on his head and he snatched the axe from the hand of Baburao and gave a forcible blow on the head of Baburao. Thus, according to Ex. 136 it was Baburao who made the first attack with the axe and that the 1st accused snatched the axe from Baburao and then dealt a blow. It need hardly be mentioned that the sequence of events mentioned in Ex. 136 is not supported by any of the witnesses examined by the prosecution, particularly the claim that deceased Baburao was armed with an axe. Reliance was also placed by the learned Counsel on Ex. 139 – the wound certificate of Baburao. Ex. 139 mentions the following three injuries - i) Lacerated wound on scalp 1½” x ½” and another of 2” x ½” size on vertex. ii) Contusion on back of 5” x ½” size. iii) Contusion on leg of 3” x ½” size. PW 9 stated that the said injuries are possible by the head of an axe. He clarified that there was no corresponding fracture. In the re-examination he stated that the injuries Nos. 2 and 3 can be caused if a person comes in contact with hard and rough surface with force. He also stated that the injury No. (i) which shows two injuries can be caused by the head of the spade. What is significant to note in this connection is that no depth of injury was given, there was no fracture and the injury described at Sr. No. (i) itself is only a lacerated injury and not an incised injury. Therefore the submission of the learned Additional Public Prosecutor that, in such circumstances the claim of the learned Counsel for the appellant that injury No. (i) could be caused only by an axe is not sustainable, gains enough force when one is aware as to the nature of injury No. (i). 13. Therefore, we are not inclined to accept the contention of the learned Counsel for the appellant when he maintains that the whole occurrence as taken place has not been placed before the Court or that the prosecution has suppressed portion of the occurrence so as to withhold the right of private defence of the accused. 13. Therefore, we are not inclined to accept the contention of the learned Counsel for the appellant when he maintains that the whole occurrence as taken place has not been placed before the Court or that the prosecution has suppressed portion of the occurrence so as to withhold the right of private defence of the accused. In this connection, we have to advert to another contention of the learned Counsel for the appellant that in the given circumstance the prosecution was obliged to explain the injury of the accused and that failure of prosecution to explain the injury sustained by the accused would inevitably support the claim of the accused that the assault by the accused was in exercise of right of private defence. In support of the said argument the learned Counsel for the appellant placed reliance on the decision reported in the case of (Makwana Takhat Singh v. State of Gujarat)3, 1993(1) Mah.L.R. 448 . A reading of the said decision itself would show that the interference that the prosecution has suppressed the very genesis of the incident is possible only on failure of the prosecution in explaining the serious injuries sustained by the accused. The said decision does not show that prosecution must explain each and every injury irrespective of the seriousness of the injury. The obligation of the prosecution would arise only if the injury sustained by the accused is of a serious nature. We have already adverted to the injuries sustained by the first accused. Injuries (ii) and (iii) are contusions while injury (i) is only a lacerated injury. With due regard to the nature and character of the said injuries, it cannot be said that they are of serious nature and we are of the view that the said injuries are only simple injuries. The learned Additional Public Prosecutor submitted, it was not obligatory on the part of the prosecution to explain the said injuries. The learned Additional Public Prosecutor made reliance on a decision reported in the case of (Jagdish v. State of Rajasthan)4, A.I.R. 1979 S.C. 1010. The learned Additional Public Prosecutor submitted, it was not obligatory on the part of the prosecution to explain the said injuries. The learned Additional Public Prosecutor made reliance on a decision reported in the case of (Jagdish v. State of Rajasthan)4, A.I.R. 1979 S.C. 1010. In that also Supreme Court held that when serious injuries are found on the person of the accused it becomes obligatory on prosecution to explain the injuries, but before such obligation is placed on the prosecution two conditions are to be satisfied – that the injury on the person of the accused is of a very serious and severe nature; and that the injury was sustained at the occurrence in question. The learned Additional Public Prosecutor made reliance on the decision in the case of (Hare Krishna Singh v. State of Bihar)5, A.I.R. 1988 S.C. 863 wherein it was held that even when there are such serious injuries, if the witnesses examined on behalf of prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, the obligation of the prosecution to explain injuries sustained by the accused will not arise. The plea of private defence thus is not sustainable. 14. In this connection, it is necessary for us to advert to the overt acts attributed to accused and the medical evidence as regards the injuries sustained by the deceased. Ex. 101 is the post mortem report which is proved by PW 10—the doctor who conducted the post mortem. PW 10 has noted as many as ten injuries on the person of the deceased of which three were lacerated injuries located on the head portion, injury No. 5 was on the left side of the chest just below the nipple and injury No. 7 was on the nasal bridge of the size of 1” x 2” m.m There were two internal injuries which are as under : (i) Fracture of frontal, nasal and left parietal bone into multiple pieces, going up to base. (ii) Irregular fracture of the base of small bone, transverse in direction. P.W. 10 stated that the aforesaid two internal injuries correspond to external injuries 1, 2, 3 and 7 in Col. No. 17 of Ex. 101 and the said injuries were sufficient in the ordinary course of nature to cause death. He also said that the said injuries were possible by hard and blunt object. P.W. 10 stated that the aforesaid two internal injuries correspond to external injuries 1, 2, 3 and 7 in Col. No. 17 of Ex. 101 and the said injuries were sufficient in the ordinary course of nature to cause death. He also said that the said injuries were possible by hard and blunt object. We have already adverted to the evidence of occurrence witnesses, particularly of P.W. 4 and PW 5. The first accused was armed with a spade and the second accused was armed with an axe. Evidence is to the effect that the second accused inflicted injury on the head as well as on the chest of Baburao. We have also noted that the external injuries Nos. 1, 2, 3 and 7 in Ex. 101 are situated on the head, and injury No. 5 is located on the chest of the deceased Baburao. The evidence would show that these injuries are the result of the attack by accused Nos. 1 and 2. In such circumstance, though one may not be able to fix as to which of the injuries was responsible for actual death of Baburao, once it is seen that those injuries were the cause of death of Baburao the said injuries were inflicted by accused Nos. 1 and 2. Though the 1st accused is no more, the second accused will be guilty of the offence punishable under section 302 read with section 34 of Indian Penal Code. The medical evidence also lends effective corroboration to the evidence of eye-witnesses. As the appellant/2nd accused is not successful in establishing the right of private defence, he is guilty of the offence punishable under section 302 read with section 34 of Indian Penal Code. 15. There is a conviction of 2nd accused for the offence punishable under section 325 of Indian Penal Code for causing injury to PW 4. PW 9 proved Ex. 85 — the wound certificate relating to PW 4. He noted two contusions and one laceration. The first contusion is on the scapula and the second is on the left forearm and the laceration was above the second injury. He opined that there was fracture in the radius of left forearm. P.W. 14 who examined the X-ray plate of P.W. 4, stated that he found that the same revealed fracture of lower 1/3rd left radius. The first contusion is on the scapula and the second is on the left forearm and the laceration was above the second injury. He opined that there was fracture in the radius of left forearm. P.W. 14 who examined the X-ray plate of P.W. 4, stated that he found that the same revealed fracture of lower 1/3rd left radius. The second accused used the handle of the axe for inflicting the said injuries. Injured PW 4 has supported the prosecution case and her evidence is corroborated by the medical evidence. Therefore, the conviction of the appellant for the offence punishable under section 325 of Indian Penal Code has to be confirmed. 16. Thus, except that the conviction of the appellant/2nd accused by the learned Sessions Judge under section 302 is to be altered into section 302 read with section 34 of Indian Penal Code, there is absolutely nothing in the judgment so as to be interfered with by this Court. We confirm the sentences awarded to the appellant. With the aforesaid modification we confirm the sentences awarded to the second accused. The Appeal fails and the same is therefore dismissed. Appeal dismissed. -----