( 1 ) BY the order dated 20-6-1980 passed in sessions trial No. 232 of 1979 each of the appellants above named has been convicted and sentenced to undergo six months R. I. under Section 147, I. P. C. three year R. I. under Section 307/149, I. P. C. three months R. I. under Section 323/149 and to imprisonment for life under Section 302 read with Section 149, I. P. C. All the sentences have been ordered to run concurrently. Aggrieved by the said judgment this appeal has been preferred by the convicts. ( 2 ) IN order to appreciate the facts of the present case it is relevant to know the inter se relationship of the parties from the following pedigree :- ( 3 ) UNDISPUTEDLY all the accused are real brothers being sons of Lalloo. Moti and Gharroo were real brothers being sons of Mukundi. According to the prosecution case they were living together along with Tilakhdhari P. W. 1 Amardhari P. W. 2, Jagga and Babau. Moti had no issue. As per the prosecution case Lalloo, the father of accused persons Gharroo and Moti were having 1/3 share each in plot No. 165/2 in village Sheopurwa 1/3 share of Lalloo was in separate possession of his sons and rest of 2/3 share was in joint possession of Moti and Garroo while according to the defence they were in possession of 1/2 share and the other half was jointly possessed by Moti and Garroo. ( 4 ) THE prosecution case as set up in the first information report was that on 13-11-1977 when Tilakdhari P. W. 1 and his father Gharoo were ploughing the land of their at about 7 a. m. accused Banney, Binney Nanhey, Ramji and Bhola came there. Banney and Binney had iron rods while other possessed lathi. It is said that they asked Tilakdhari and Gharroo to go out of the field whereupon Tilakdhari and Gharroo told them that they were ploughing their own field as the same was in their possession since long and they would plough the same. On this accused Banney exhorted other accused persons to beat and drive them away. Gharroo ran towards the house of Khatkhat. Accused Ramji gave a lathi blow to Dhari alias Amardhari who in the meantime was attracted to the spot on the cries of Tilakdhari and Gharroo. On this accused Banney exhorted other accused persons to beat and drive them away. Gharroo ran towards the house of Khatkhat. Accused Ramji gave a lathi blow to Dhari alias Amardhari who in the meantime was attracted to the spot on the cries of Tilakdhari and Gharroo. Sahangoo and Narain P. W. 4 were also attracted to the scene of occurrence. Accused Banney gave a thrust in the abdomen of Dhari alias Amardhari with the iron rod which he was holding as a result of which intestines of Amardhari protruded out through the wound and he fell down on the ground, Sahangoo was attacked by accused Ramji, Bhola and Nanhey with Lathi and he received injuries on his head. He ran towards the house of Sahadeo P. W. 3 and fell down at his door step. Tilakdhari P. W. 1 was also assaulted by the accused persons. The incident was witnessed by Sahadeo P. W. 3, Narain P. W. 4 and Khatkhat who lived in the vicinity of the place of occurrence. On the intervention of witnesses accused persons ran away from the scene of occurrence. ( 5 ) TILAKDHARI P. W. 1 dictated the report which was reduced to writing as Ex. Ka. 1 by Sitaram. Tilakdhari then went to police station Manduadih taking Sahangoo and Dhari alias Amardhari with him. On the basis of report Ex. Ka. 1, Chick F. I. R. Ex. Ka. 13 was prepared by Head Moharrir Vishwanath Giri and case was registered under Sections 147, 307 and 323, I. P. C. through G. D. No. 14 at 8. 15 a. m. vide copy Ex. Ka. 14, Injured Amardhari, Sahangoo and Tilakdhari were sent to S. S. P. G. Hospital, Varanasi for medical examination. ( 6 ) DR. A. K. Dwivedi P. W. 8 medically examined Sahangoo on 13-11-1977 at 8. 45 a. m. and found the following injuries :- 1. Lacerated wound 6 cm. x 1/2 cm. x bone deep on right parietal, 11 cm. from right ear. Bleeding present. 2. Contusion 10 cm. x 5 on, Outer and lower part of right forearm. The Doctor opined that injury No. 1 was simple while in respect of injury No. 2 x-ray of right forearm was advised. Injury report of Sahangoo is Ex. Ka. 7. x 1/2 cm. x bone deep on right parietal, 11 cm. from right ear. Bleeding present. 2. Contusion 10 cm. x 5 on, Outer and lower part of right forearm. The Doctor opined that injury No. 1 was simple while in respect of injury No. 2 x-ray of right forearm was advised. Injury report of Sahangoo is Ex. Ka. 7. ( 7 ) THE same Doctor Dwivedi also examined injuries of Amardhari at 9 a. m. and found the following injuries :- 1. Lacerated wound 2 cm. x 1-1/2 cm. x depth not probed, on left side upper part of abdomen. 2. Contusion 5 cm. x 2-1/2 cm. on back of left shoulder. ( 8 ) INJURY No. 1 was kept under observation while injury No. 2 was reported to be simple. The injuries were fresh and caused by blunt weapon. Injury report of Amardhari is Ex. Ka. 8. ( 9 ) DR. Dwivedi on the same day also examined Tilakdhari at 12 noon and he found following injuries :- 1. Abrasion 8 cm. x 1/2 cm. , back and upper part of left leg. 2. Abrasion 3 cm. x 12 cm. , Upper and front of left leg. ( 10 ) INJURIES were simple, fresh and caused by friction. Injury report is Ex. Ka. 9. ( 11 ) SAHANGOO who was admitted in the Hospital died on the same day at 5. 45 p. m. Information of his death was sent to the police station whereupon case was converted to under Section 302, I. P. C. through G. D. Ex. Ka. 16. ( 12 ) INVESTIGATION was entrusted to S. I. Prem Bahadur Singh P. W. 10 who started the investigation on 13-11-1977 itself. He went to the Hospital and recorded the statement of Tilakdhari. He could not record the statements of injured Amardhari and Sahangoo as they were admitted in the Hospital and were unconscious. Accused Binney alias Vishwanath, Nanhey alias Narain and Ramjee alias Raman were also found in the Hospital from where they were taken into custody and were interrogated. The investigating officer then went to the place of occurrence and recorded the statements of Khatkhat, Budha Ram, Narain and Sahadeo. After making inspection of the scene of occurrence he prepared site plan Ex. Ka. 15. Statement of Amardhari was recorded by the Investigating Officer on 11-1-1978. The investigating officer then went to the place of occurrence and recorded the statements of Khatkhat, Budha Ram, Narain and Sahadeo. After making inspection of the scene of occurrence he prepared site plan Ex. Ka. 15. Statement of Amardhari was recorded by the Investigating Officer on 11-1-1978. S. I. Prem Bahadur Singh then was transferred and subsequent investigation was completed by S. I. Jai Prakash Mishra P. W. 9 who recorded the statement of Bhaggu witness on 5-5-1978 and then submitted charge-sheet Ex. Ka. 12 against all the accused persons. ( 13 ) DR. Nar Singh Sharma P. W. 7 conducted the post mortem examination on the dead body of Sahangoo on 14-11-1977 at 2. 30 p. m. The following ante mortem injuries were found on the deceased :- 1. Lacerated wound 6-1/2 cm. x 1/2 cm. x bone deep on the right side crown of head, 7 cm. above right eye brow. 2. Contusion 10 cm. x 4 cm. on the back of right forearm, 2 cm. above wrist joint, right Ulna bone fractured. 3. Abrasion 4 cm. x 1/2 cm. on the outer aspect of upper part of right thigh. 4. Abrasion 2/1/2 cm. x 2 cm. on the right shoulder top. 5. Lacerated wound 2 cm. x 1/4 cm. x muscle deep on the inner aspect left dorsum of foot, 2 cm. above the root of left foot big toe. ( 14 ) ON opening the dead body and in internal examination it was found that right side frontal and temporal bones were fractured and right fronto-parietal suture was separated. There was extradural haematoma on the dura mater in between both sides of frontal and parietal bones and dura mater. Blood-clots were present below right temporal bone also. Blood clot was also present on the frontal aspect of surface of brain. Brain was congested. Middle cranial fossa was also fractured. In the opinion of the doctor death was caused due to coma as a result of injury to brain. Post mortem report is Ex. Ka. 6. ( 15 ) AFTER submission of charge sheet case was committed to the Court of Sessions for trial. The accused appellants pleaded not guilty of the charges framed against them and claimed trial. In the opinion of the doctor death was caused due to coma as a result of injury to brain. Post mortem report is Ex. Ka. 6. ( 15 ) AFTER submission of charge sheet case was committed to the Court of Sessions for trial. The accused appellants pleaded not guilty of the charges framed against them and claimed trial. ( 16 ) IN order to establish its case, the prosecution examined 10 witnesses in all, namely, Tilakdhari, P. W. 1, Amardhari, P. W. 2, Sahadeo P. W. 3, Narain son of Antu P. W. 4, Constable Kutnu Prasad P. W. 5 who escorted dead body to mortuary for post mortem examination, S. I. Ram Chandra Pandey, P. W. 6 who conducted inquest and prepared panchayatnama Ex. Ka. 2, Photo Lash Ex. Ka. 3, Challan Lash Ex. Ka. 4 and other papers. Dr. Nar Singh Sharma P. W. 7 who conducted the post mortem examination and prepared post mortem report Ex. Ka. 6, Dr. A. K. Dwivedi P. W. 8 who medically examined Sahangoo, Amardhari and Tilakdhari and proved their injury reports as Ex. Ka. 7 to Ex. Ka. 9, S. I. Jai Prakash Mishra P. W. 9 the Investigating Officer who submitted charge sheet and S. I. Prem Bahadur Singh P. W. 10 the other Investigating Officer, who did the initial investigation. ( 17 ) ACCUSED persons in their statements denied the prosecution allegations. According to their case their father Lalloo and after him they were in possession of one half of the plot in dispute and not 1/3 as claimed by the prosecution. They have put a counter version of the incident and according to their case accused Banney was not present on the spot. They were in actual possession of half share of the plot in question which was divided by a Mend (small boundary) in the line of a tree of Sahjan standing towards East of the disputed plot. On the day of occurrence Moti, Gharroo, Jagga, Babau, Amardhari, Tilakdhari and Sahangoo came to the plot along with two or three associates and started ploughing the portion of the plot which was in possession of the accused persons. On being objected by Ramji accused they did not stop ploughing and started beating him with Lathi. Ramji ran towards his house raising cries which attracted his brother Bhola, Narain and Binney. On being objected by Ramji accused they did not stop ploughing and started beating him with Lathi. Ramji ran towards his house raising cries which attracted his brother Bhola, Narain and Binney. Moti, Gharroo and others attacked them as well. Bhola, Nanhey and Binney wielded lathi in self defence causing injuries on the prosecution side. The incident was witnessed by Lallu and Kanhaiya and they also intervened. Accused persons further stated that Sahadeo, Khatkhat and Narain were not present at the time of occurrence. From their side also first information report was lodged and a cross case was registered as Crime No. 397-A under Section 147/323, I. P. C. at 8. 25 a. m. This First Information Report was also investigated and charge sheet submitted resulting into a cross Session trial. Accused persons examined two persons in defence namely, Jata Shankar Singh, the then Medical Officer as D. W. 1 and Lalloo as D. W. 2 who testified the defence version of the incident. ( 18 ) IN cross-examination of P. W. 8 Dr. A. K. Dwivedi, the defence got proved injury report of Vishwanath alias Binney as Ex. Kha. 1. Injuries of Vishwanath were as follows :- 1. Abrasion 1 cm. x 1 cm. Right parietal, 12 cm. From right ear. 2. Abrasion 2 cm. x 2 cm. Back of left knee. ( 19 ) THESE injuries were examined at 1 p. m. on 13-11-1977 and were fresh in duration. ( 20 ) ON the same day at 1. 10 p. m. Dr. A. K. Dwivedi P. W. 8 also examined the injuries of accused Narain alias Nanhey and found following injuries :- 1. Lacerated wound 4 cm. x 1/2 cm. x bone deep on right parietal, 6 cm. above right ear. 2. Lacerated wound 2 cm. x 1/2 cm. x bone right ring finger back. In the opinion of the Doctor injury No. 1 was simple while X-ray was advised in respect of injury No. 2. Both the injuries were fresh and were caused by blunt object. Injury report of accused Narain is Ex. Kha. 2. ( 21 ) THE same Doctor also examined accused Ramji alias Raman on the same day at 1. 20 p. m. and found the following injury :- 1. Lacerated wound 4 cm. x 2 cm. x bone on left side parietal 14 cm. from left ear. Injury report of Ramjee is Ex. Kha. 2. ( 21 ) THE same Doctor also examined accused Ramji alias Raman on the same day at 1. 20 p. m. and found the following injury :- 1. Lacerated wound 4 cm. x 2 cm. x bone on left side parietal 14 cm. from left ear. Injury report of Ramjee is Ex. Kha. 3. ( 22 ) DR. B. K. Singh D. W. 1 medically examined accused Bhola on 14-11-1977 at 5 p. m. at Primary Health Centre and he found following injuries :- 1. Contusion 5 cm. x 4 cm. On the dorsum of left palm with tenderness at the base of II metacarpal bone, skin over it bluish pink restricted movement of left index finger. X-ray of palm was advised. 2. Contusion 3 cm. x 2 cm. On the left side of neck 6 cm. below the left ear, skin bluish pink. 3. Contusion 6 cm. x 1-1/2 cm. On the back towards right side 6 cm. below the right scapula. 4. Contusion 1 cm. x 1 cm. right side chest over 7th rib below the right nipple. 5. Abrasion 1 cm. x 1 cm. On the back towards right side 8 cm. below the right scapula. ( 23 ) IN the opinion of the Doctor all the injuries were simple caused by blunt object except injury No. 5 which was caused by friction against hard substance. Injury No. 1 was kept under observation and X-ray was advised. The duration of the injuries was one to one and half days. Injury report of Bhola is Ex. Kha. 12. ( 24 ) IN his statement before the Court Dr. R. K. Singh D. W. 1 stated that injuries of Bhola could be caused at about 7 a. m. on 13-11-1977 and they could be inflicted by blunt object such as Lathi/iron rod. Injury report of Bhola is Ex. Kha. 12. ( 24 ) IN his statement before the Court Dr. R. K. Singh D. W. 1 stated that injuries of Bhola could be caused at about 7 a. m. on 13-11-1977 and they could be inflicted by blunt object such as Lathi/iron rod. ( 25 ) ON appraisal of evidence, the learned Sessions Judge came to the findings that at the time of incident the prosecution party was in peaceful possession of the land in question and with the dismissal of suit the accused persons came there forming an unlawful assembly to extend their possession over 1/2 share and interfered in the peaceful possession of Gharoo and Moti in the southern portion of the plot and that they first assaulted and caused injuries to the deceased and other victims on prosecution side and injuries on the defence side were caused during the course of incident and that the defence version of the incident was false and accordingly the learned Sessions Judge has convicted and sentenced the appellants under various counts as stated already. ( 26 ) SHRI A. D. Giri, Senior Advocate appearing for the appellants and the learned A. G. A. appearing for the State and Shri Kamlesh Kumar appearing for the complainant were heard at length. ( 27 ) SHRI A. D. Giri, learned counsel appearing for the appellants made a number of submissions before this Court, the main being that the prosecution has not succeeded in establishing beyond doubt that the portion of the plot in question was in settled and peaceful possession of the complainant party and in any view of the matter there was a bona fide dispute with regard to the extent of the shares and possession of rival parties. It was further submitted by Shri Giri that in law it was not obligatory for the defence to prove their case beyond doubt and the accused persons were entitled to get the benefit of doubt if they succeeded in bringing on record circumstances to indicate that the accused persons had acted in right of private defence of property and person. It was also submitted that the prosecution has not satisfactorily explained the injuries sustained on the defence side which makes the prosecution version of the occurrence doubtful and that the prosecution has not presented true version of the incident. It was also submitted that the prosecution has not satisfactorily explained the injuries sustained on the defence side which makes the prosecution version of the occurrence doubtful and that the prosecution has not presented true version of the incident. ( 28 ) BEFORE coming to the evidence which has been brought on record, we may first state that it is well established that the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage the same shifts to the accused. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not for the accused at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which the accused is charged, and even where the onus shifts upon the accused and the accused has to establish his plea, like the plea of self defence, the standard of proof is not the same as that which rests upon the prosecution. The standard of proof which the accused may discharge in support of his plea in defence is not the same which the prosecution is required to adhere and once the probability of the accuseds plea is established he is entitled to the benefit of doubt. The requirement of law is not that the accused who pleads right at private defence must prove the same beyond all reasonable doubt. ( 29 ) KEEPING the above principle in mind, we have scrutinized the evidence which has been brought on record. The first question that arises for consideration is whether the prosecution has proved beyond doubt that the disputed land was in settled possession of the complainant party or there was a bona fide dispute regarding the extent of possession. The prosecution case is that Tilak Dhari, Gharroo and others were in possession of 2/3 portion of plot No. 162/2 while the defence case is that they were in possession of only 1/2 share and rest of the plot was in peaceful possession of accused persons and on the date of incident Tilak Dhari D. W. 1, Gharroo and others armed with Lathi, Iron Rods etc. came there on the aforesaid plot with an intention to encroach upon the land of the accused and forcibly started ploughing the land of the accused and when it was objected to by the accused persons and they required them to go out of their land, the complainant party started assaulting them. Tilak Dhari and Amar Dhari were armed with iron rods while Moti and Gharroo had brickbats in their hand and others possessed lathi. When Ram Ji protested against ploughing of land by Tilak Dhari and others, Sahangoo gave a lathi blow to Ram Ji who ran towards east. The hue and cry attracted Bhola, Vishwanath and Narain to the spot and they were also assaulted by Moti and their companions. The accused party wielded lathi in self defence. The disputed plot is divided into equal portions by a boundary in line with Sahjan tree. Northern portion was in possession of the accused while southern portion was in possession of Moti, Gharroo and others. The pedigree which has been given in the earlier part of this judgment is admitted to the parties. Some documents have been filed on behalf of the prosecution in support of their case that complainant party was in possession of 2/3 share of the aforesaid plot. The first document is copy of the order dated 28-2-47 of the Commissioner in the appeal filed against the order and decree passed in a suit filed under Section 49 of the U. P. Tenancy Act. This appeal was filed by Moti, Gharroo and Lalloo. The appeal was allowed and plaintiffs suit was decreed for a half share in the joint holding originally belonging to Chhakoo and his brother Panchoo. This judgment, however, does not indicate the shares of Lallu, Moti and Gharroo inter-se. Ex. Ka. 18 is the copy of the judgment dated 25-2-80 passed by the Dy. Collector for a preliminary decree that Moti, Lalloo and Gharroo will have 1/3 share each in the holding in question. The defence has also filed a number of documents. Ex. Kha. 13 is the copy of the plaint dated 16-6-80 filed by Moti against Lalloo and Gharroo under Section 138 of the U. P. Z. A. and L. R. Act praying for partition of his 1/3 share. Ex. Kha. The defence has also filed a number of documents. Ex. Kha. 13 is the copy of the plaint dated 16-6-80 filed by Moti against Lalloo and Gharroo under Section 138 of the U. P. Z. A. and L. R. Act praying for partition of his 1/3 share. Ex. Kha. 14 is the copy of written statement dated 10-5-67 filed by Lalloo to show that the defence of the accused party even in the year 1967 was that the plaintiff Moti and Gharroo have only 1/2 share and the rest of the half share belonged to and was in possession of Lalloo and he has already obtained an order to this effect on 9-9-65. Ex. Kha. 15 is the copy of application moved by Lalloo under Order 9 Rule 13, C. P. C. for setting aside ex parte decree dated 12-1-70 passed in the aforesaid suit. Ex. Kha. 16 is the copy of the order dated 19-2-73 allowing the restoration application of Lalloo and setting aside the ex parte decree dated 12-1-1970. Ex. Kha. 17 is the copy of the order dated 27-7-77 of the Asstt. Collector whereby the suit filed by Moti was dismissed in default. The next document Ex. Kha 18 is the copy of the order dated 21-2-1979 recalling the order dated 27-7-77 whereby the suit was dismissed in default and fixing 7-3-79 for evidence. Ex. Kha. 19 is the copy of grounds of appeal filed by the Sons of Lalloo against the judgment and decree dated 25-2-1980 passed by the Dy. Collector in the aforesaid suit. The next document is the copy of Khatauni Ex. Kha. 20 to show that the names of Vendees of Lalloo have been mutated in revenue records Ex. Kha. 24 and 25 are copies of sale deeds. ( 30 ) FROM the documents filed by the parties it would thus appear that Moti filed a suit for partition under Section 138 of U. P. Z. A. and L. R. Act on 6-1-1966 and the same was ordered to proceed ex parte on 28-9-69 and was decreed ex parte on 12-1-1970. This ex parte decree was however, set aside on the application moved by Lalloo, the father of accused persons and the suit was restored to its original number by the order dated 19-2-1973. This ex parte decree was however, set aside on the application moved by Lalloo, the father of accused persons and the suit was restored to its original number by the order dated 19-2-1973. The suit was initially dismissed in default of plaintiff Moti on 27-7-77 but then was restored on 21-2-1979 and thereafter the same was decreed in favour of Moti on 25-2-1980. It would thus appear that on the date of incident in question i. e. 13-11-1977 suit filed by Moti stood dismissed and had not been restored by that time. The judgment decreeing the suit of Moti is dated 25-2-1980 i. e. much after the date of present incident and, therefore, the same cannot be taken into account for determining the question of possession or the extent of shares on the date of occurrence. In any view of the matter it has further been brought on record that an appeal has been filed against the said judgment and the same was pending till the date of the judgment of the Sessions Court in the present case. A perusal of the copies of the sale deeds dated 22-1-1965 and 20-12-1965 would show that Lalloo the father of the accused persons even in the year 1965 had asserted his half share in plot Nos. 251/2 and 205/2 which are included in the joint khata to which plot No. 165/2 also belonged. The names of the purchasers had also been mutated as per the mutation order dated 27-10-1967 as is apparent from the copy of Khatauni. There seems to be force in the submission of learned counsel for the appellants that there had been a private agreement between the parties dividing the joint khata in two equal shares and this agreement had acted upon as a result of which sale deeds had been executed by Lalloo in the year 1965 which was followed by mutation order passed by the revenue Court and there is nothing on record to indicate that either the sale deeds or the mutation order had been set aside at the instance of Moti or Gharroo. It is true that Moti thereafter filed suit for partition under Section 138 of the U. P. Z. A. and L. R. Act claiming 1/3 share in the khata after depositing ten times land revenue but as already pointed out above the said suit stood dismissed in default on 27-7-77 and had not been restored upto the date of present incident. Therefore, from these documents it appears that there was a bona fide dispute with regard to the shares and extent of possession in between the parties as the suit filed by Moti had already been dismissed before the date of incident and since the year 1965 Lalloo the father of the accused persons had been asserting his claim to the extent of half in the joint holdings. In the circumstances and from the documents brought on record it is not possible to conclude conclusively that the complainant party was in peaceful or settled possession of 2/3 share in the plot in question. The learned Sessions Judge has acted on surmises and conjectures in holding that at the time when the suit had been decreed ex parte in favour of Moti, Lalloo the father of the accused persons was in jail hence Moti could have easily extended his possession to 2/3 share. The law is that it is for the prosecution to prove it affirmatively that the prosecution party at the time of incident was in settled and peaceful possession of the disputed land. In the present case the documentary evidence was not fully established that the complainant party was in settled and peaceful possession of 2/3 share of the plot in question on the date of incident. ( 31 ) APART from the documentary evidence the oral evidence brought on record also does not lead us to any other conclusion. P. W. 1 Tilakdhari in his cross-examination admitted that there has been partition by meets and bounds in plot No. 165 but they were cultivating the land by mutual agreement which mutual agreement had been arrived at before his age of understanding to him the plot was divided in three portions by separate Danda (Boundaries ). The portion of Lalloo was to the extreme North while that of Gharroo was on South and the middle portion was of Moti. The portion of Lalloo was to the extreme North while that of Gharroo was on South and the middle portion was of Moti. Investigating Officer Prem Bahadur P. W. 10 stated that during investigation he came to know that there was a dispute between the parties with regard to the partition of the said plot. He further admitted that he did not remember whether there has been any boundaries which divided the shares of the parties on the spot. He in clear words admitted that he did not find any Mends (Boundaries) running from East to West and thereby dividing the plot in three parts. From this oral evidence also, therefore, it is not safe to arrive at a definite conclusion that the prosecution party was in possession of 2/3 share or that the three share holders were in separate and exclusive possession of their respective shares. Narain P. W. 4 has admitted in unequivocal terms that the dividing Mend was in line with the Shehjan tree which supports the defence case that their half share was divided by a Mend running from Sehjan tree. On a careful examination of evidence on record we find it difficult to hold that the complainant party was in settled and peaceful possession of 2/3 share in plot in question on the date of incident and there seems to be weight in the defence argument that the accused party was in possession to the extent of 1/2 share and in any view of the matter there was a bona fide dispute between the parties regarding their shares and extent of possession. ( 32 ) DR. A. K. Dwivedi who had examined the injuries of the injured persons of prosecution side had also medically examined accused Vishwanath, Narain and Ramjee and he has proved their injury reports as Ex. Ka. 7 to 9. Accused Vishwanath sustained two abrasions one of right parietal and other on left knee. On the person of accused Narain, a lacerated wound measuring 4 cm. x 1/2 cm. x bone deep was found on his right parietal 6 cm. above right ear. The other injury was also a lacerated wound 2 cm. x 1/2 cm. x bone deep on the right finger. Accused Ram Jee also sustained a bone deep injury in the shape of lacerated wound on left side of parietal 14 cm. above the left ear. x bone deep was found on his right parietal 6 cm. above right ear. The other injury was also a lacerated wound 2 cm. x 1/2 cm. x bone deep on the right finger. Accused Ram Jee also sustained a bone deep injury in the shape of lacerated wound on left side of parietal 14 cm. above the left ear. The injuries of all these accused persons were examined on the date of incident itself between 1 p. m. to 1. 20 p. m. and the injuries were found fresh. By no stretch of imagination these injuries could be self inflicted or self suffered. Some of the injuries were on head and were bone deep. Injuries of accused Bhola were examined by Dr. Jata Shankar Singh D. W. 1 and he found as many as five injuries. Four of them were contusions and one was an abrasion. His injury report has been proved as Ex. Kha. 12. Dr. Singh has further stated that injuries of injured Bhola could be caused by a blunt object like Lathi or Iron Rod at about 7 a. m. on 13-11-1977. ( 33 ) IT has to be seen now whether the injuries found on the accused persons have been satisfactorily explained by the prosecution side. There is no whisper in the first information report about the accused persons receiving injuries at the hands of prosecution party while defending them. However at the trial an attempt was made in this regard as Tilakdhari P. W. 1 stated that at the time of incident he himself was having a danda (Stick) with which he defended. He further stated that Sahangoo also defended himself with lathi before he fell down on the ground, but in cross examination he in specific words admitted that he did see no injury on the person of any of the accused nor did he notice any blood on their person. The fact of use of danda or lathi in defence is conspicuous by its absence in the First Information Report and when maker of the report, Tilakdhari, was confronted with the report he could not explain the reason of such an important fact being not mentioned in the report. He was also confronted with his statement recorded under Section 161 Cr. He was also confronted with his statement recorded under Section 161 Cr. P. C. wherein he had not stated of Sahangoo using lathi in defence and he could not explain as to why that fact was not mentioned therein. P. W. 2 Amardhari alias Dhari stated that only Tilakdhari and Sahangoo used danda in their defence. He, however, admitted clearly that he himself did not use danda in defence. He further stated that he had told the investigating officer about the use of danda in defence by Tilakdhari but could give no reason why that fact was not mentioned in his statement recorded under Section 161 Cr. P. C. He in his cross-examination has also admitted that he did not see any injury on the accused persons. P. W. 3 Sahadeo, however, admitted that Ramjee, Binney and Narain accused did receive injuries during the course of incident but he went a step further by saying that Amardhari alias Dhari had wielded lathi in self-defence which fact has been categorically denied by Amardhari P. W. 2 himself in his statement before the Court. P. W. 3 Sahadeo did not state of the use of lathi in defence by Tilakdhari and Sahangoo in his statement during investigation as admitted by the Investigating Officer. Similarly P. W. 4 Narain in his cross examination in clear words stated that Dhari defended himself from the Danda which he was having but he had not wielded the same on any accused persons. It is his specific statement that he did not see Tilakdhari or Sahangoo wielding Danda in defence nor he saw any injury on the accused persons. Thus we find that apart from the fact that the witnesses have contradicted themselves on a material fact regarding the use of Danda, they have clearly stated that no one from the prosecution side inflicted any injury on the accused persons nor did they notice any injury on accused party during the course of incident. We, therefore, find that the injuries of the accused persons have not been satisfactorily explained by the prosecution evidence. We have already observed above that the injuries of accused persons were such which could not be self inflicted. We, therefore, find that the injuries of the accused persons have not been satisfactorily explained by the prosecution evidence. We have already observed above that the injuries of accused persons were such which could not be self inflicted. Therefore, the prosecution was bound to explain them specially in a case where incident had occurred between the parties on account of a dispute with regard to the extent of share and possession over the disputed land. As far as P. Ws. 1 and 2 are concerned it could be said that on account of a cross case being instituted against them they might have not specifically admitted of their having caused injuries to accused persons but the same reasoning cannot be applied to so far as P. Ws. 3 and 4 are concerned. They have also clearly stated that they did not see any injury on any of the accused nor any person on the prosecution had wielded Lathi, Stick or Danda on accused persons. P. W. 3 Sahadeo and P. W. 4 Narayan cannot be said to be totally independent witnesses as defence has filed documentary evidence to show that Lalloo, the father of the accused persons had lodged an F. I. R. against these witnesses for an offence under Section 308 IPC. These witnesses were, therefore, also somewhat inimical to the accused persons and their evidence cannot be given due weight especially with regard to the use of Lathis and Danda by the prosecution witnesses particularly when such an important fact had not been stated by them in their statements recorded under Section 161 Cr. P. C. and the statement being contradictory to each other with regard to the use of Danda by the prosecution witnesses. In the circumstances of the case and the evidence on record, we find that the injuries of the accused persons have not been satisfactorily explained and non explanation of injuries on accused persons is fatal to the prosecution case and lead us to an inference that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented true and correct version of the incident. The witnesses who have denied the presence of injury of accused persons are guilty of withholding the truth on a most crucial point. The resultant effect of this is that the prosecution version of the incident has been rendered doubtful. The witnesses who have denied the presence of injury of accused persons are guilty of withholding the truth on a most crucial point. The resultant effect of this is that the prosecution version of the incident has been rendered doubtful. On the other hand the defence evidence adduced in the case explains the injuries found on the accused persons. ( 34 ) ON a careful analysis of the evidence on the record, our conclusion is that it is highly doubtful that the complainant party was in settled and exclusive possession of the disputed land at the relevant time, that the parties have been litigating since before the incident claiming their respective shares much before the incident and there was a bona fide dispute regarding extent of share and possession over the property in question; that the prosecution has not satisfactorily explained the injuries of the accused persons which are proved to have been caused during the course of incident and that the prosecution is guilty of suppressing true facts. Therefore, it would not be safe to hold accused persons guilty of the offences charged for. The resultant effect is that the conviction and sentence of the appellants as recorded by the learned Sessions Judge cannot be sustained. ( 35 ) FOR the reasons stated above appeal is allowed. Conviction and sentences of the appellants are set aside and they 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. .