S. K. VERMA, J. ( 1 ) IN Sessions Trial No. 419 of 1978 (State of U. P. v. Babu and Others), decided by lind Additional District and Sessions Judge, Badaun on 29. 2. 80, all the nine persons were sentenced to undergo four years rigorous imprisonment each under Sections 307/149 Indian Penal Code, one year R. I. each under Section 323/149 Indian Penal Code and the appellants Gutua, Sia Ram and Gindoo to undergo rigorous imprisonment for one and a half years under Section 148 Indian Penal Code and appellants Babu, Kisan Lal, Chhotey, Doomar and Sardar to undergo one year R. I under Section 147 I. P. C. with a direction that all the sentences of all the nine accused persons shall run concurrently. The present appeal had been filed against the aforesaid conviction and sentences. ( 2 ) THE prosecution story, in brief, is that on 6. 3. 1977 at about one hour before sun-set Complainant Lakhpat Singh PW 1 and his brother Amar Singh, PW 2 and his nephew Durvijai Singh, PW 3 were taking water from the tubewell by diverting it to Complainants field when appellants Babu, Kishanlal, Chhotey, Doomar and Sardar armed with Lathis and appellants Gultua, Gindoo and Sia Ram armed with spear and appellant Badri armed with gun came at the place of occurrence and stated that they would not permit the Complainant to divert the water to his field. They insisted that they would take the water first. The Complainant told them that the tube-well operator had permitted him to take water after the fields of Sia Ram are irrigated. Thereupon all the appellants started beating Lakhpat, Complainant, his brother Amar Singh and his nephew Durvijai Singh. On alarm being raised Ram Prasad, Lachchhoo and Hajari residents of village Ali Nagar came and saw the occurrence and saved the victims. The First Information Report of the incident was lodged on 6. 3. 1977 at 10. 00 p. m. , in Police Station, Islam Nagar, district Badaun. Investigation issued, the injuries of the three victims were examined by Dr. M. P. Gupta, PW 7 on 7. 3. 1977 between 4. 00 p. m. and 4. 30 p. m. , and he found three contusions on the person of Durvijai Singh all of which were simple. He also found one punctured wound, three contusions and one abrasion on the person of Amar Singh. M. P. Gupta, PW 7 on 7. 3. 1977 between 4. 00 p. m. and 4. 30 p. m. , and he found three contusions on the person of Durvijai Singh all of which were simple. He also found one punctured wound, three contusions and one abrasion on the person of Amar Singh. Injury No. 1 was kept under observation, the other injuries were simple. The Doctor examined Lakhpat Singh at 4. 30 p. m. , and found one punctured wound, one lacerated wound, one contusion and one abrasion on his person. Injury No. 4 contusion on the left upper back was found to be grievous on the basis of X-Ray report which indicated fracture of acronious process of the scapula. ( 3 ) THE prosecution examined PW 1 Lakhpat Singh, PW 2 Amar Singh and PW 4 Ram Prasad as eye witnesses. The tube-well Operator Badaruddin was examined as PW 5. Other fonnal witnesses were also examined. The appellants had pleaded not guilty and had claimed false implications. They examined DW 1 Constable 429 Amar Singh to prove the contradictions under Section 161 Cr. P. C. The Trial Court after considering the evidence on record convicted the appellants under Sections 323/149 Indian Penal Code, 307/149 Indian Penal Code and 147/148 Indian Penal Code as aforesaid. Hence this appeal. ( 4 ) I have heard the learned Counsel for the parties and have gone through the evidence on record carefully. The main arguments on behalf of the appellants is that the evidence of PW 5 Badaruddin, the tube-well Operator, makes it clear that it was the turn of the appellants to take water from the tube-well to their fields. The Complainant had no right to divert the water to his fields and when the Complainant inspite of the protest made by the appellants, refused to deter from taking water to his fields, an altercation ensued. Mr. P. N. Misra learned Counsel for the appellants has argued that since the Complainants side had no right to take water at that time but they were insisting to take water and also damaged to Gool, the appellants had a right to prevent them from doing so and in that process to cause simple injuries to them. Mr. P. N. Misra learned Counsel for the appellants has argued that since the Complainants side had no right to take water at that time but they were insisting to take water and also damaged to Gool, the appellants had a right to prevent them from doing so and in that process to cause simple injuries to them. Learned Counsel for the appellants had also argued that injury No. 4 of Lakhpat Complainant has not been proved to be grievous and injury No. 1 of PW 2 Amar Singh was not found to be grievous. Hence all the injuries received by three injured persons were simple and, therefore, in view of the decision of this Court in a Division Bench case of Ram Autar v. State, all the appellants are entitled to benefit of doubt and acquittal. ( 5 ) IN Ram Autar v. State (supra) one person was murdered and others were injured. The Complainant side in that case was going with the avowed object of up-turning the crop which had previously been sown by the appellant of that case. The appellant in that case had a right to prevent them hence the Complainant side was committing offence of mischief and criminal trespass. There was no time for having recourse to lawful authorities because the Police Station was far away, the restriction imposed by Section 99 I. P. C. did not come into play and the accused persons had a right to protect their property. It was held that: Persons who are asserting their right of private defence of property are doing a perfectly legitimate act and the assembly is not an unlawful assembly. Consequently the provisions of Section 149 I. P. C. , cannot be invoked so as to make every one of those persons vicariously liable for the acts of their comrades. If anyone of them exceeds that right and gives a blow which causes death that is his individual act and he alone would be liable for the consequences there of. If there is no evidence whatsoever to fix the identity of the individual who delivered that blow the result would be that no one of those persons could be convicted of an offence under Section 304. If there is no evidence whatsoever to fix the identity of the individual who delivered that blow the result would be that no one of those persons could be convicted of an offence under Section 304. Similarly as regards the grievous hurt and simple hurt caused, apart from the fact that the causing of them in legitimate in the exercise of the right of private defence, in the absence of evidence as to who caused the hurts, there can be no presumption that the Lathi wielded by every one of the appellants must have necessarily struck one or the other of the injured persons on the Complainants side. As those who did not hit anyone committed no offence, every one is entitled to the benefit of doubt. ( 6 ) ON examination of the evidence led by the prosecution the argument advanced by Mr. P. N. Misra, Advocate for the appellants appears to be correct Dr. M. P. Gupta, PW 7 has not said anything about the result of observation of injury No. 1 of PW 2 Amar Singh. In the absence of any evidence led by the prosecution to show that injury was grievous it will be presumed that it was simple injury. Similarly, although in respect of Lakhpat Singh, PW 1 Dr. Gupta has stated that his injury No. 4 was grievous because of fracture as per the supplementary report, the prosecution has led no evidence to prove that the X-Rayon the basis of which supplementary report was prepared, related to injury No. 4 of Lakhpat Singh. Hence the prosecution has failed to prove that injury No. 4 of Lakhpat Singh, PW 1 was grievous. That injury will also be presumed to be simple in the absence of supporting evidence. The result is that all the three injured received simple injuries during this occurrence. ( 7 ) REGARDING the right of private defence, the statement of PW 5 Badaruddin is relevant. Badaruddin has stated that the water of the tube-well which he operates reaches the field of Babu, appellant first and thereafter goes to the field of Complainant Lakhpat Singh. He has also stated during cross-examination by the prosecution that it is wrong to say that he had penuitted Lakhpat Singh, Complainant to take water from the tubewell after the field of Sita Ram had been irrigated. He has also stated during cross-examination by the prosecution that it is wrong to say that he had penuitted Lakhpat Singh, Complainant to take water from the tubewell after the field of Sita Ram had been irrigated. He has stated that he had written in his register that appellant Babu had to receive water first. He has also stated in further cross-examination by the Counsel for the accused persons that on 5th March, 1977 there had been resolution by the Management Committee of the village that after the fields of appellant Babu which are eight Bighas were irrigated, Lakhpat Smgh, Complainant has to receive water. In other words, the field of appellant Babu had to be irrigated first and the field of Complainant Lakhpat Singh had to be irrigated later on. There is no reason to disbelieve the testimony of Badaruddm who is the tube-well operator or and whose statement is supported by documents, namely Ext Kha-1 which he has proved during his cross-examination. The oral statement of four eye-witnesses against the same are of no avail in the face of documentary evidence and oral evidence of Badaruddin. ( 8 ) IT would, thus, be clear that the appellants had a right to take water first but the Complainant side was trying to take water first and has also diverted the water gools to their field. This is clear from the statement of PW 1 Lakhpat Singh who states that as soon as the field of Sita Ram was irrigated, he diverted the water to his own field. He has stated further that inspite of the protest of the appellants he insisted that he would take water first and then the appellants started beating the Complainant and his brother and his nephew. Even PW 2 Amar Singh has stated that after Lakhpat Singh had diverted the water to his field, and the water had proceeded for 80 or 90 steps, the assailants-appellants appeared and started beating them. Even the marpit commenced about on step from the water course (gool ). PW 3 Durvijai Singh has also stated that after the field of Sita Ram has been irrigated and the water was diverted to Lakhpat Singhs field, the appellant came and they stated that they have a right to take the water first and then they started beating the victims. PW 3 Durvijai Singh has also stated that after the field of Sita Ram has been irrigated and the water was diverted to Lakhpat Singhs field, the appellant came and they stated that they have a right to take the water first and then they started beating the victims. PW 4 Ram Prasad who is first cousin of Complainant Lakhpat Singh and is not an independent witness, has stated that he came on the place of occurrence after hearing the alarm raised by the victim hence he cannot say how the marpit started and his statement is, therefore, no guide to the manner of commencement of the occurrence. It is important to note that none of these prosecution witnesses have been able to say anything as to how the Complainant had a right to take water first. It has already been stated that the statement of PW 5 Badaruddin establishes without any manner of doubt that the appellants have the first right to take water from the tube- well. In the circumstances and when the incident had suddenly occurred, it can safely be presumed that there was no time for the appellants to take recourse to lawful authorities because the Police Station was four miles west from the place of occurrence. The restriction imposed by Section 99 I. P. C. , did not come into play and the appellants had a right to protect their property, namely, the right to take water to their field first. They had every right to prevent the Complainants side from taking water forcibly and, therefore, they had a right to cause simple hurt to the Complainant and his helpers. ( 9 ) MR. P. N. Misra, learned Counsel for the appellant has also argued that even if for arguments sake it is presumed that grievous injuries were caused to the Complainant side and the appellants exceeded the right of private defence, the particular appellant who exceeded the right of private defence can be convicted but where there is no evidence as to who caused which blow the benefit of doubt would go to all the appellants and there would be no application of Section 149 I. P. C. The argument is that persons who are asserting their right of private defence or property are performing legitimate act and the assembly is not an unlawful assembly. Consequently the provisions of Sec. 149 Indian Penal Code cannot be invoked so as to make every one of those persons vicariously liable for the acts of their comrades. The learned Counsel for the appellants had led me through the entire evidence of the four eye-witnesses and has, therefore, argued that none of them has given the details of the individual blows given by individual appellants. I fully agree with this line of argument and I find that the appellants are entitled to benefit of doubt because they were protecting their right to property and in that process they had a right to cause simple hurt and even if they cause grievous hurt for arguments sake, there is no evidence to fasten the liability of grievous hurt to individual appellant. ( 10 ) LEARNED Assistant Government Advocate has relied on Virendra Singh v. State of U. P. The facts of that case were different. Common object cannot be inferred in the present case against the appellants because they were defending their right to property. ( 11 ) LEARNED Assistant Government Advocate has also placed reliance on Surjeet Singh v. State of Punjab wherein it was held that injured witnesses are natural witnesses having suffered injuries in the occurrence. Accepting this argument the prosecution does not get any help from this decision because even if the eye-witness account of the injured witnesses is taken to be correct, the fact still remains in this case that the assault was to defend the right of property, hence even this decision is of no help to the prosecution. ( 12 ) CONSIDERING the discussion made above, the conviction of the appellants is liable to be set aside and they are liable to be acquitted. The appeal is, therefore, allowed. All the appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .