J. C. GUPTA, J. Each of the above named appellants has been convicted and sentenced to imprisonment for life under Section 302 read with Section 1491. P. C. to undergo 3 years R. I. under Section 325/149 I. P. C. two years R. I. under Section 324/149 I. P. C. and to undergo 6 months R. I. under Section 323/149, I. P. C. Appellants Babuwa Singh and Amar Singh nave further been sentenced to undergo R. I. for one year under Section 148 I. P. C. while the remain ing appellants have been sentenced to undergo R. I. for six months under Section 147 I. P. C. All the sentences are to run concurrently. 2. By means of this appeal, the appel lants have challenged the order of convic tion and sentence dated 19-12-1980 passed by the then IX Additional Sessions Judge, Kanpur in Sessions Trial No. 5/m of 1977. 3. In this particular case, there are two cross versions one put by the prosecu tion and the other by the accused persons. The incident occurred on account of a dispute relating to a piece of land belong ing to Gram Samaj having an area of about 5 biswas. Tbpography of the said land is depicted in the site plan Ex. ICa- 20 prepared by the Investigating Officer on spot inspection. The house of complainant Chhotey Singh, P. W. 1 opens on western side in an open piece of land. To the further west of this, a lane runs north-south. To the west of this lane, there is Bardwan (cattle shed) of the complainant Chhotey Singh. It has only one door, which opens in the east on a chabutara appurtenent to the lane running north- south and it has no out let in its west towards the disputed land. To the south of this cattle shed there is another cattle shed which belongs to ac cused Hardeo Singh. Door of this cattle shed opens in south. In front of this cattle shed there lies the house of accused Har deo Singh and others whose door opens in north in the passage leading to the dis puted land, i. e. , the access to the disputed land runs in between the cattle shed Har deo Singh and his house. 4. In front of this cattle shed there lies the house of accused Har deo Singh and others whose door opens in north in the passage leading to the dis puted land, i. e. , the access to the disputed land runs in between the cattle shed Har deo Singh and his house. 4. According to the prosecution case, the aforesaid piece of land which belongs to Gram Samaj was in possession of com plainant Chhotey Singh for the last about 6-7 years before the date of incident which occurred on 4-7-1975. Accused Daulat Singh and accused Sughar Singh wanted to occupy forcibly the said of land and, there fore, Chhotey Singh made a complaint to Virendra Veer Singh, the Pradhan of the village about one and half years ago. Whereupon Pradhan called both the par ties and told accused Daulat Singh that until the matter was finally decided by him nobody should cause any interference and who so ever was in actual possession would continue to held the same. However, about 15-20 days prior to the date of occurrence accused Daulat Singh forcibly fixed cattle pegs in the disputed land by the side of western wall of Chhotey Singhs cattle shed and also started tethering his cattle. Finding this, Chhotey Singh approached Virendra Veer Singh-Pradhan who in turn sent Brij Lal to accused Daulat Singh to inform that he should desist from doing any mischief in the disputed land but Daulat Singh paid no heed to it. Chhotey Singh then again met the Pradhan who called accused Hardeo Singh and Daulat Singh and told them not to occupy the aforesaid land forcibly. At that time ac cused Daulat Singh and Hardeo Singh as sured the Pradhan that they would neither quarrel nor take any forcible possession but despite this assurance the accused per sons neither removed cattle pegs nor stopped tethering their cattle in the dis puted land. Chhotey Singh then reported the matter to Pradhan who thereafter is sued notices to accused persons but they refused to accept them and told the Prad han that they would not receive them but would act as desired by him. 5. It is alleged that on 4-7-1975 at about 6 a. m. accused Manna Singh, Daulat Singh, Babuwa Singh, Amrit Singh, Har deo Singh, Raghunath Singh, Sughar Singh and Amar Singh formed a group and collected in the disputed land. 5. It is alleged that on 4-7-1975 at about 6 a. m. accused Manna Singh, Daulat Singh, Babuwa Singh, Amrit Singh, Har deo Singh, Raghunath Singh, Sughar Singh and Amar Singh formed a group and collected in the disputed land. Babuwa Singh was having kanta, Amar Singh a Phawara (spade), Sughar Singh an iron rod and the remaining accused had lathis in their hands. They asked accused Amar Singh to dig the foundation whereupon the said accused started digging founda tion by the side of the western wall of Chhotey Singhs cattle shed. Chhotey Singh, P. W. 1 also reached there and asked the accused persons to stop digging as Pradhan has already asked them not to cause any interference, but the accused persons did not listen and continued with the digging. An altercation then ensued between them. In the meantime Manni Singh son of Girdhari Singh younger brother of Chhotey Singh also arrived there and he also remonstrated but the accused persons were not prepared to suc cumb and abused him. They started as saulting him and Chhotey Singh with their respective weapons. When Girdhari Singh and Smt. Laxmi Devi, father and mother of Chhotey Singh came to their rescue they were also assaulted by the accused persons. After assaulting Chhotey Singh and his family members accused persons retreated to their houses. Chhotey Singh took Manni Singh, Girdhari Singh and Laxmi Devi to police station Sachendi and lodged an oral report Ex. Ka-1 at 8. 45 a. m. On the basis of this report a case was registered in the general diary. Its copy is Ex-Ka-6. Since the condition of Manni Singh was serious he was sent to U. H. M. Hospital with con stable Ram Naresh Mishra where his in juries were examined by Dr. Surya Prakash Dubey at 10. 10 a. m. Following injuries were found on the person of Manni Singh: (1) Incised wound 23. 5 cm. x 2 cm. x bone deep (skull) extending from tip of nose right side to the left parietal region. Posterior end of the wound is 9 cm. above the left ear. Bleeding was present. (2) Black eye left side. (3) Incised wound 3. 5 cm. x 1. 5 cm. x muscle on front of left fore arm lower part. 6. Injuries were kept under observa tion and X-ray of skull was advised. Injured was admitted in the Hospital. Posterior end of the wound is 9 cm. above the left ear. Bleeding was present. (2) Black eye left side. (3) Incised wound 3. 5 cm. x 1. 5 cm. x muscle on front of left fore arm lower part. 6. Injuries were kept under observa tion and X-ray of skull was advised. Injured was admitted in the Hospital. The injuries were fresh in duration. Injuries Nos. 1 and 3 were caused by a sharp object while in jury No. 2 by blunt object. His injury report is Ex. Ka-2. 7. Injuries of Girdhari Singh were examined at 11. 15 a. m. by thesame doctor and he noticed the following injuries: (1) Lacerated wound 1 cm. x. 5 cm. x skin on outer part of left eye brow. Clotted blood present. (2) Contusion 6 cm. x 1 cm. on right lower part back. In the opinion of the doctor injuries were fresh, simple in nature and were caused by blunt object. Injury report of Girdhari Singh is Ex. Ka-3. 8. Laxmi Devi was also examined by this doctor on the same day at 11. 30 a. m. and only one under noted injury was found on her person: (1) Lacerated wound. 5 cm. x 0. 25 cm. x muscle deep on dorsum of left hand. Bleeding present with diffused swelling on dorsum of hand. X-ray was advised of left hand. 9. Injury was caused by blunt object and was fresh in duration. Injury report of Laxmi Devi is Ex. Ka-4. 10. Chhotey Singh was medically ex amined by the same doctor at. 2 p. m. and the following injuries were found: (1) Incised wound 2 cm. x 0. 5 cm. x skull on right parietal region, 6 cm. above right ear Clotted blood present. (2) Linear abrasion 2. 5 cm. , on front of right arm middle. (3) Contusion 3. 5 cm. , on the outer part of right fore arm upper part. (4) Incised wound 1 cm. x 0. 25 cm. x skin on dorsum of left thumb. 11. Injury Nos. 1 and 4 were caused by sharp object while rest by blunt object. Duration of injuries was fresh and they were simple in nature. Injury report of Chhotey Singh is Ex. Ka-5. 12. Though in the first information report there was no mention of Km. x 0. 25 cm. x skin on dorsum of left thumb. 11. Injury Nos. 1 and 4 were caused by sharp object while rest by blunt object. Duration of injuries was fresh and they were simple in nature. Injury report of Chhotey Singh is Ex. Ka-5. 12. Though in the first information report there was no mention of Km. Hem-lata, daughter of Chhotey Singh and Smt. Rekha being present at the scene of occur rence or their receiving any injury in the course of incident but later the prosecu tion came up with the case that Km. Hem-lata and Smt. Rekha also received injuries in the course of the incident. Their injuries were medically examined after four days by Dr. Amar Bhupendra Mani Pandey on 8-7-1975 at 4. 30 p. m. He found following injuries on the person of Km. Hemlata: (1) Lacerated wound 1. 5 cm. x 0. 25 cm. with crush over it. Right side parietal eminence in line to ears. (2) Healed abrasion in middle 3. 5 cm. x linear dorsum of right fore arm. 7 cm. proximal to right wrist. (3) Complain of pain in lumber region. No mark of injury seen. 13. In the opinion of doctor injuries No. 1 and 2 were caused by hard and blunt object and their nature was simple. The injuries were about 4 to 4-1/2 days old. Injury report of Km. Hemlata is Ex. Ka-18. 14. Injuries of Smt. Rekiia were ex amined by Dr. Pandey on 8-7-1975 at 4. 20 p. m. and following injuries were noted: (1) Contused swelling behind left elbow 2 cm. x 2 cm. with two minor pointed crusted abrasions. (2) Linear abrasion 2 cm. (crusted) super-aspen or region of right scapula. (3) Contused abraided swelling left side forehead of 2cm. x 2 cm. bluish black 3 cm. above left eye brow with crusted abrasion 1. 5 cm. (4) Contused swelling right occipital region at top 1 cm. x 1 cm, (5) Complain of pain on lower portion of back. 15. All the injuries were simple and were caused by hard and blunt object and they were about 4 and half days old. Injury report of Smt. Rekha is Ex. Ka-19. 16. Shri Krishna Lal Verma P. W. 10 took up the investigation and he inter rogated Chhotey Singh at the police station before he was sent to Hospital for medical examination. Injury report of Smt. Rekha is Ex. Ka-19. 16. Shri Krishna Lal Verma P. W. 10 took up the investigation and he inter rogated Chhotey Singh at the police station before he was sent to Hospital for medical examination. Thereafter he went to the place of occurrence and interrogated Babu Singh, Lai Singh, Rati Ram and others, prepared site plan Ex. Ka-20 and took into his possession blood stained and simple earth through memo Ex. Ka-21. 17. Manni Singh who was admitted in the hospital on 4-7-1975 died there fin 6-7-1975 at about 1. 30 a. m. Information of his death was sent to police station Kotwali whereupon S. I. Markandey Singh came to the hospital and conducted inquest on the dead body and after preparing necessary papers sent it to mortuary for post- mor tem examination. The autopsy was con ducted by Dr. S. S. Agarwal, P. W. 6 on 6- 7-1975 at 3. 30 p. m. Following ante-mortem injuries were found: (1) Stitched wound 23. 5 cm. with 24 stitches extending tip of nose of right side to the left parietal region. Posterior side of wound is 9 cm. above left ear. (2) Blackness present in the left eye and lid. (3) Stitched wound 3. 5 cm. with four stitches front aspect of left fore arm lower end. 18. In the internal examination, left frontal, left parietal and left temporal bones were found fractured. The brain was congested and clotted blood was present on left side lobe on front side. Base of skull was found fractured on its frontal aspect. In the opinion of the doctor death was due to shock and haemorrhage as a result of head injuries. His post-mortem report is Ex. Ka-10. 19. During the course of investiga tion statements of other witnesses were also recorded and after completion of the same, all the accused persons were charge sheeted. 20. At the trial prosecution in sup port of its case produced 11 witnesses in all. Out of whom Chhotey Singh, P. W. 1 Rajit Ram Singh, P. W. 3 and Km. Hem Lata P. W. 4 are witnesses of fact. P. W. 2 Dr. Surya Prakash Dubey proved injury reports of Manni Singh, Girdhari Singh and Laxmi Devi while Dr. Amar Bhupendra Mani Pandey, P. W. 9 proved the injury reports of Km. Hem Lata and Smt. Rekha. Hem Lata P. W. 4 are witnesses of fact. P. W. 2 Dr. Surya Prakash Dubey proved injury reports of Manni Singh, Girdhari Singh and Laxmi Devi while Dr. Amar Bhupendra Mani Pandey, P. W. 9 proved the injury reports of Km. Hem Lata and Smt. Rekha. P. W 5 S. I. Nawab Singh who was at the relevant time posted as Head Moharrir proved check report and the general diary entry registering the case. P. W 6 Dr. S. S. Agarwal proved the post-mortem report, P W-7 Surendra Singh, X-ray technician proved the X-ray report of Laxmi Devi as Ex. Ka-7 which disclosed that there was a fracture in left third metacarpal, P. W 8 S. I. Markanday Singh conducted the inquest proceedings, P. W 10s. I. Krishna Lal Verma is the investigating officer and P. W. 11 Dr. R. P. Prakash proved the X-ray report of Laxmi Devi. 21. The defence of accused Daulat Singh and Hardeo Singh was that they were in settled and peaceful possession of the disputed land, Chhotey Singh and Manni Singh had no concern whatsoever with the said land and they wanted to for cibly occupy the said land and with this end in view they on the date of occurrence arrived at the scene alongwith their father and mother and Battu Lal. They were armed with Kanta, Kulhari and Lathi. Ac cused Daulat Singh and Hardeo Singh were digging foundation in the disputed land for raising their construction. Chhotey Singh and others asked them to stop digging foundation whereupon the accused told them that the foundation was being dug in their own land. This in furiated Chhotey Singh and other and they started assaulting Hardeo Singh and Daulat Singh with their respective weapons. Daulal Singh and Hardeo Singh saved themselves with Lathi and Pharsa as a result of which injuries were sustained on prosecution side. According to them the incident was witnessed by Babu Singh, Pradhan and Sitaram. Accused Hardeo Singh got prepared F. I. R. Ex. Kha-3 from Babu Singh and lodged the same at police station Kotwali at 4. 15 p. m. on 4-7-1975. On the basis of which case was registered in the general diary. Its copy has been proved as Ex. Kha 4. Injuries of accused Hardeo Singh and Daulat Singh were examined in police custody by Dr. Kha-3 from Babu Singh and lodged the same at police station Kotwali at 4. 15 p. m. on 4-7-1975. On the basis of which case was registered in the general diary. Its copy has been proved as Ex. Kha 4. Injuries of accused Hardeo Singh and Daulat Singh were examined in police custody by Dr. R. S. Pandey D. W. 2 accused Hardeo Singh was examined at 4. 50 p. m. on 4-7-1975 and following in juries were found on his person: (1) Lacerated wound. 5 cm. x muscle on left side elbow outer aspect. (2) Swelling 11 cm. x elbow on lower l/3rd of fore-arm left side. (3) Incised wound 4 cm. x 1. 5 cm. x muscle on right side elbow, 4 cm. above tip of elbow. 22. In the opinion of the doctor all the injuries were simple and were about 6-12 hours old. Injury Nos. 1 and 2 were caused by blunt object while No. 3 with sharp cutting object. Injury report of Hardeo Singh is Ex. Kha-1. 23. Injuries of accused Daulat Singh were examined at 5. 30 p. m. on 4-7-1975 and the following injuries were found: (1) Lacerated wound 1 cm. x. 5 cm. x scalp with swelling 4 cm. x 4 cm. on left side head. 11 cm. from left ear. (2) Complain of pain left thumb. No mark of external injury seen. (3) Swelling 8 cm. x 6 cm. on right side upper arm 1 cm. above elbow. (4) Contusion 1 cm. x 2 cm. on right side back middle, 1 cm. from mid line. 24. In the opinion of the doctor all the injuries were simple and caused by blunt object and they were about 6-12 hours old. Injury report of Daulat Singh is Ex. Kha 3. 25. Other accused persons, however, denied their presence at the scene of oc currence. They further denied the presence of Km. Hem Lata and Smt. Rekha at the place of incident. Prabhu Singh, D. W. 1, Dr. R. S. Pandey, D. W. 2 and Israr Ahmad, D. W. 3 were produced as defence witnesses. 26. On an appraisal of the evidence, learned Sessions Judge came to the con clusion that there was no dispute from the defence side regarding the date and place of occurrence and in the course of the said incident Manni Singh, Girdhari Singh, Chhotey Singh, Laxmi Devi, Km. 26. On an appraisal of the evidence, learned Sessions Judge came to the con clusion that there was no dispute from the defence side regarding the date and place of occurrence and in the course of the said incident Manni Singh, Girdhari Singh, Chhotey Singh, Laxmi Devi, Km. Hem Lata arid Smt. Rekha received injuries. Manni Singh died after two days asaresultof injuries sustained by him during the course of incident. With regard to the question as to which of the parties was aggressor the find ing recorded by the trial Court is that it could not be shown that the accused persons had taken actual physical possession pf the land in dispute, on the other hand, Chhotey Singh was in physical possession towards west of his cattle shed excepting that land over which accused Daulat Singh and Hardeo Singh had fixed their cattle pegs and that the injuries on the defence side have been satisfactorily ex plained by the prosecution witnesses. Inshort the plea of the accused that they were in actual physical possession of the land in question and had acted in right of private defence of person and property has not been accepted by the learned Sessions Judge. 27. We have heard learned counsel for the appellants, learned A. G. A. , for the State as well as the learned counsel ap pearing for the complainant. 28. The factum of death of Manni Singh is neither disputed nor challenged before us. It also could not be disputed that in the course of incident Manni Singh, Girdhari Singh, Laxmi Devi and Chhotey Singh, P. W. 1 had received injuries. The place of incident has also not been dis puted. However, the genesis and manner of incident has been seriously challenged so also the finding of the learned Sessions Judge regarding possession of the dis puted land. 29. In a case like the present one the primary question that arises for considera tion is whether from the evidence on record possession of complainant party over the disputed land has been estab lished beyond reasonable doubt and has if been proved affirmatively that the accused party tried to unsettle complainants pos session and was the aggressor? 29. In a case like the present one the primary question that arises for considera tion is whether from the evidence on record possession of complainant party over the disputed land has been estab lished beyond reasonable doubt and has if been proved affirmatively that the accused party tried to unsettle complainants pos session and was the aggressor? We now proceed to examine the evidence on record on this important question keeping in mind that the burden of proving the plea of self defence is not of the same standard as that rests upon the prosecution. If the evidence on record probablises the plea of self defence accused is entitled to get the benefit of a reasonable doubt. It may also be noted here that no one including the true owner has a right to disposes any person who is in settled and peaceful possession of the land even though he may be a trespasser and if such a person is tried to be evicted forcibly, the law gives him a right to defend his possession. 30. Keeping in mind these principles, we now proceed to examine the evidence on record to find out whether the com plainant party was in peaceful and settled possession over the land in question? 31. We have already placed the topog raphy of the disputed land in the beginning of this judgment. From the site plan Ex. Ka-20 it is apparent that no door of the cattle shed of complainant Chhotey Singh opens in the west over the disputed land. Towards the disputed land is the western rear wall of the cattle shed of the com plainant which has no out let on the dis puted land. The cattle shed of complainant has an opening in the east on a chabutara which is appurtenant to a lane running north- south. On the other hand, cattle shed of accused Hardeo Singhhas its door in the south in a chhappar. After this chhappar to the further sought there is a path way leading to the disputed land. If we advance further south of this pathway we would find the house of accused Hardeo Singh. The spot position is thus indicative of the fact that most likely the accused party was in possession of the land in question. 32. After this chhappar to the further sought there is a path way leading to the disputed land. If we advance further south of this pathway we would find the house of accused Hardeo Singh. The spot position is thus indicative of the fact that most likely the accused party was in possession of the land in question. 32. In support of the claim of the prosecution that complainant was in pos session over the land in question, we have before us the solitary statement of P. W. 1, Chhotey Singh. P. W. 3 Ranjit Ram Singh has not stated anything possession of Chhotey Singh and others rather he ad-milted in his cross- examination that when accused Amar Singh was digging founda tion Chhotey Singh tried to stop him but Amar Singh continued the digging. Similarly P. W. 4 Hem Lata, the daughter of Chhotey Singh has not stated a single word regarding possession of his father over the land in question. The solitary testimony of P. W. 1 Chhotey Singh is most inap propriate and insufficient to prove his pos session over the land in question. In his statement before the Court he admitted that the entire land lying to the west of his cattleshed belonged to Gram Samaj but he stated that for the last about 10 years the same was in his possession as he and his family members were throwing rubbish, prepared cow dung cakes and tethered their cattle on the said land. Accused per sons wanted to forcibly occupy this land when he came to know of their intention he made a complaint in writing to Pradhan, Virendra Veer Singh about one and half years prior to the date of occurrence. On his complaint Pradhan called accused Daulat Singh and accused Hardeo Singh and told them that u11 the matter was final ly decided by him status quo should be maintained. He admitted that about 15-20 days prior to the date of occurrence ac cused Daulat Singh had forcibly fixed cat tle pegs and started tethering his cattle (here. Chhotey Singh again approached the Pradhan whereupon the latter through his servant Brij Lal asked the accused per sons to desist from doing any unlawful activity in the disputed land but no heed was paid by the accused persons. Chhotey Singh again approached the Pradhan whereupon the latter through his servant Brij Lal asked the accused per sons to desist from doing any unlawful activity in the disputed land but no heed was paid by the accused persons. Chhotey Singh then again went to Pradhan and made another complaint whereupon the Pradhan called accused Daulat Singh and Hardeo Singh at his residence and told them not to occupy the land in question forcibly. Hardeo Singh and Daulat Singh at that time assured Pradhan that they would abide by his decision. Despite this assurance Daulat Singh continued to tether his cattle in the land in question and did not remove his cattle pegs from there. Chhotey Singh again went to Pradhan whereupon the Pradhan had sent a notice to accused Daulat Singh and Hardeo Singh through his servant Brij Lal but the notices were not received by the accused persons instead they went to Pradhan and promised to obey his command. P. W. 1 Chhotey Singh further stated that there after Daulat Singh stopped tethering his cattle in the land in question about 3-4 days before the date of occurrence. For the. reasons best known to the prosecuting agency, neither Pradhan Virendra Veer Singh nor is servant Brij Lal were ex amined in the trial Court who were most material witnesses to unfold the truth about possession or the land in question. Non production of these witnesses is a circumstances, which heavily militates against the prosecution. It is further in the statement of P. W. 1 Chhotey Singh that Pradhan had even issued notices in writing to the accused person but no such notice was produced at the trial nor was got sum moned. Who knows what were the contents of the said notice if at all the same was issued by Pradhan as alleged by Chhotey Singh. There seems to be weight in the submission of the learned counsel for the appellant that perhaps the contents of the notice were against the assertion of the complainant and the Pradhan and Brij Lal were not ready to support the complainant on his possession over the land in ques tion, hence the prosecution with an obli que motive withheld them from the Court. In the first information report Chhotey Singh clearly mentioned that about 15- 20 days prior to the date of incident accused persons had fixed their cattle pegs and had also started tethering their cattle. He even admitted this fact in his statement in Court. This averment clearly indicates that it was admitted to Chhotey Singh that ac cused Daulat Singh was in possession and had not vacated the plot in dispute despite complaints made to the Pradhan. Realiz ing this weakness in the prosecution case, Chhotey Singh, P. W. 1 developed for the first time a case at the trial that about 3-4 days prior to the date of incident accused had removed their cattle pegs and stopped tethering their cattle. The F. I. R. did not contain any such fact and when the atten tion of Chhotey Singh was invited to this material omission he admitted that he did not make any mention of this fact in his report. It may not be out of place to men tion here that Chhotey Singh has admitted in his statement that he is a postgraduate in Maths and Physics. In this view of the matter it is inconceivable that this impor tant fact would have been omitted from being mentioned in the F. I. R. It is also noteworthy that such an important fact was not even stated by him to the inves tigating officer in his statement recorded under Section 161 Cr. P. C. Apart from the same being a development at the trial, the contention of P. W. 1, Chhotey Singh that accused Daulat Singh had vacated his pos session 3-4 days prior to the date of occur rence would further appear to be false from his very admission made in his state ment before the Court where he stated that accused Daulat Singh and Hardeo Singh had assured the Pradhan some 4-5 days before the incident that they would not take possession of the land nor would quarrel and despite this assurance Daulat Singh did not stop tethering his cattle in the disputed land nor removed cattle pegs. Chhotey Singh further admitted that other persons had also witnessed the accused vacating the plot yet he did not remember their names and the falsity of his statement is further exhibited as he failed to disclose the date and time when the accused per sons vacated the plot in question. Chhotey Singh further admitted that other persons had also witnessed the accused vacating the plot yet he did not remember their names and the falsity of his statement is further exhibited as he failed to disclose the date and time when the accused per sons vacated the plot in question. In cross-examination Chhotey Singh further ad mitted that out of 5 biswas of land, accused Hardeo Singh was in possession of some area of vacant land which lie south west from the house of Hardeo Singh. He further admitted that the house of Hardeo Singh has two door, one opens in the east and the other in the south. It is thus admitted that one door of the house of accused persons opened towards the dis puted 5 biswas of land of Gram Samaj. It has also come in the cross-examination of this witness that there is a land measuring 30 x 30 paces in the north of his residential house in which he has his old abadi. His hand pipe and a fodder cutting machine are also installed in the said piece of land: Two neem trees also exist there and his cattle were tethered there. He also ad mitted in his cross- examination that he has no documentary proof of his having given any application to the Pradhan and he never made any complaint in writing to the police or the Pradhan when the ac cused persons fixed their cattle pegs nor any other action was taken against them. He further admitted that Pradhan had asked him to move an application for allot ment of the land in question in the next meeting of Gram Samaj. When the inves tigating officer made inspection of the site of incident he found that foundation had already been dug in the land in question by the side of western wall of cattle shed of complainant Chhotey Singh. He further found some cattle pegs fixed in the land in question which as per the evidence on record were of accused persons. He ad mitted that he did not find any cow dung cakes placed in the land in question and the heap of cow dung was found placed in another piece of land adjacent to the land in question, on the western side. He ad mitted that he did not find any cow dung cakes placed in the land in question and the heap of cow dung was found placed in another piece of land adjacent to the land in question, on the western side. On a careful analysis of evidence on record, we find that the assertion of P. W. 1 Chhotey Singh that accused party had withdrawn their possession about 3-4 days before the date of occurrence besides being a development at the trial stage is not supported by any other piece of evidence and is not believable. After having given our thoughtful consideration to the entire facts and circumstances appearing in the case we find it difficult to hold that the complainant party was in actual physical and settled possession of the land in ques tion. On the other hand, the evidence on record when examined in the light of spot situation indicates that most likely the ac cused party was in possession of the land in question at the time when the incident occurred. 33. Out of the three witnesses of fact examined at the trial, P. W. 1 Chhotey Singh and P. W. 4, Km. Hem Lata are highly inter ested witnesses, Chhotey Singh being the brother of the deceased Manni Singh and Hem Lata being daughter of Chhotey Singh. Undisputedly Chhotey Singh was an accused in the cross case which proceeded on the report made by accused Hardeo Singh. From the side of the ac cused F. I. R. lodged by Hardeo Singh has been proved as Ex. Kha 3 and also the copy of general diary whereby case was registered as Ex. Kha 4. This F. I. R. was lodged against Chhotey Singh, Manni Singh wife of Girdhari Singh and Babu Lai alleging that on 4-7-1975 at about 7 a. m. when Daulat Singh was digging founda tion for the construction of his house in his own land which was in his possession, the aforesaid persons came there armed with axe, lathi andkulhari and assaulted Daulat Singh and Hardeo Singh who defended themselves causing injuries on the prosecution side. This F. I. R. was also in vestigated and charge-sheet was sub mitted. This F. I. R. was also in vestigated and charge-sheet was sub mitted. D. W. 3 Israr Ahmad was posted as constable clerk at the police station Kot-wali who proved the check F. I. R. and the general diary entry and he further stated on oath that he had examined accused Hardeo Singh and Daulat Singh and found injuries on their persons. They were sent for medical examination through con stable Abdul Mui. Dr. R. S. Pandey, D. W. 2 was produced by the accused persons who has proved the injury reports of accused Hardeo Singh and Daulat Singh. In cross-examination Dr. Pandey categorically stated that the injuries of accused persons were not superficial nor could be self in flicted. He further denied the suggestion of the prosecution that the injuries of accused persons could have been sustained due to a fall. Injury No. 1 of accused Daulat Singh was a lacerated wound on left side of head that would indicate that the same was on a vital part of the body. In the F. I. R. no explanation whatsoever has been given regarding to the injuries suffered by aforesaid accused persons. Even at the trial prosecution totally failed to explain the injuries of accused persons. In cross-examination Chhotey Singh, P. W. 1 stated that neither he nor any person from his side assaulted any accused. He categorical ly stated that till the accused persons remained at the scene of occurrence he did not see any injury on the persons of Daulat Singh and Hardeo Singh. He even went on to state that he and his family members were all empty handed. Similarly P. W. 3 Raj it Ram also suppressed the fact of ac cused persons receiving injuries during the course of incident as he stated that no one assaulted accused Daulat Singh and Har deo Singh even in defence as Chhotey Singh and others were not having any weapons. The injuries of the accused per sons as per the statement of Dr. R. S. Pandey were not superficial nor self-inflicted. The injuries were examined on the same day and were even noted down in the general diary when case was registered on the basis of F. I. R. lodged by accused Har deo Singh. The injuries of the accused per sons as per the statement of Dr. R. S. Pandey were not superficial nor self-inflicted. The injuries were examined on the same day and were even noted down in the general diary when case was registered on the basis of F. I. R. lodged by accused Har deo Singh. It would thus appear that not only in the F. I. R. no explanation what soever with regard to the injuries sustained on defence side was given but the witnesses have also tried to conceal those injuries. We have already found above that it is highly doubtful that complainant party was in peaceful and settled possession of the land in question rather the evidence indicates that most likely accused party was in possession and as per the prosecu tion case the incident had occurred when accused Daulat Singh and Hardeo Singh were digging foundation in the land in question. According to the defence case those two accused persons were assaulted by Chhotey Singh and others and in defence they caused injuries on the prosecution side. It may be that accused persons have also not stated the whole truth about the manner in which injuries were sustained on the prosecution side but for that reason alone they cannot be held guilty. It is well settled that where neither the prosecution nor the defence come out with the whole truth and where persons on both sides received injuries the Court cannot make out a third case on the basis of surmises and conjectures. In such cases there is no op tion but to acquit the accused persons. In this view of the matter the argument of the State counsel that only two persons could not have succeeded in causing a good num ber of injuries on as many as six persons on prosecution side, therefore, the manner of assault as set up in the F. I. R lodged by accused is false, is of no avail. In this view of the matter the argument of the State counsel that only two persons could not have succeeded in causing a good num ber of injuries on as many as six persons on prosecution side, therefore, the manner of assault as set up in the F. I. R lodged by accused is false, is of no avail. Where the versions given by the prosecution as well as the defence are both unreliable and do not explain the situation at all inasmuch as according to the prosecution version there is no explanation of the injuries of accused persons and according to the defence ver sion, the explanation sought to be given regarding the injuries sustained on prosecution side is also not satisfactory, the accused would still be entitled to be given the benefit of doubt. The prosecu tion has to stand on its own legs and no weakness in the defence case can come to its rescue. Even though there may be a counter version of the incident which may not be found wholly true, it will have no bearing upon the prosecution case and the burden will still remain on the prosecution to prove its case satisfactorily beyond any shadow of doubt. In the present case the prosecution is guilty of suppressing the genesis and origin of the occurrence and of not presenting the true facts before the Court. In the circumstances the possibility of the complainant party being the aggres sor cannot be ruled out and accordingly the accused persons are entitled to get the benefit of doubt. 34. For the reasons stated above we find that the prosecution has not suc ceeded in establishing its case beyond reasonable doubt against the appellants and they are entitled to get benefit of doubt. Accordingly appeal is allowed, the order of conviction and sentence dated 19-12-1980 is set aside. The appellants are acquitted of the offences charged for. They are on bail, they need not surrender and their bail bonds are cancelled and sureties discharged. Appeal allowed. .