JUDGMENT 1. - The above named accused-appellants have preferred this appeal against the judgment and order dated 31.5.1983 passed by the learned Sessions Judge, Dungerpur in Sessions Case No. 53/-82 by which he convicted and sentenced the accused-appellants in the following manner : Name of accused-appellants Conviction under section Sentence awarded 1. Poonja 148 IPC One year R.I. 324 IPC One year R.I. Both sentences were ordered to run concurrently. 2.Haliya 326 IPC Three years' R.I. 324 IPC Two years' R.I. 148 IPC One year R.I. All sentences were ordered to run concurrently. Note.By the same judgment, the learned Sessions Judge also convicted Raju, Gavari and Hakri for the offence under sections 147 & 323 IPC. However, they were given the benefit of Section 3 of the Probation of Offenders Act, 1958and thus they have not preferred any appeal. 2. It arises in the following circumstances : On 26.9.1982 at about 6.30 a.m., a written report P/12 was lodged by one Bhanji to PW 10 Nasirudin in the Police Station Sagwad, District Dungerpur alleging that on 25.9.1982, he was at his field and at about 5.00 p.m. on that day in the evening, he heard hue and cry of PW 1 Smt. Naval from the field known as Ramawala and then he went to that field where he found PW 7 Deva, PW 2 Harji, and PW 5 Hakri and in that field, they were cutting the crops which were grown up by them. At that time accused persons having weapons in their hands came there in the field of Ramawala and accused-appellant-Poonja was having a sword in his hand, he made a war on PW 2 Harji with an intention to kill him and caused injuries to his body and other accused-appellant- Haliya was also having a sword in his hand and he caused injuries to PW 7 Deva with that sword and other accused (not relevant so far as the present appeal is concerned) were also having lathies in their hands and they also beat PW 1 Smt. Naval and PW 5 Hakri etc. and on hearing hue and cry, PW 3 Panna, PW 6 Haksi came there and they rescued the injured persons. and on hearing hue and cry, PW 3 Panna, PW 6 Haksi came there and they rescued the injured persons. On this report, a case was registered by the police and FIR Ex.P/13 was chalked out and injured persons in this case PW P Smt. Naval, PW 2 Harji, PW 5 Hakri and PW 7 Deva were got medically examined and, thereafter, a challan was filed in the Court of Magistrate and thereafter, the case was committed to the Court of Session. The learned Sessions Judge vide his order dated 17.2.1983 framed charges under sections 148, 307, 326 & 324 IPC against the accused-appellant-Poonja and under sections 148, 307/149, 324 & 326 IPC against accused-appellant-Haliya. Both accused-appellants pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 12 witnesses and many documents were got exhibited. Thereafter, statements of accused-appellants were recorded under section 313 Cr.P.C. one defence witness was produced. In defence, some documents were produced and it is also stated by accused-appellants in their statements that they also received injuries in the same incident and injury report of accused-appellant-Poonja is Ex.D/6 and that of accused-appellant-Haliya is Ex.D/7. After recording evidence and conclusion of trial, the learned Sessions Judge vide his judgment and order dated 31.5.1983 convicted and sentenced both accused-appellants, as stated above. Aggrieved from the said judgment and order dated 31.5.1983, the accused-appellants have filed this appeal. 3. In this appeal, the learned counsel for the accused-appellant has raised the following submissions:- 1. That the learned Sessions Judge has erred in holding that there was no right of private defence available to the accused-appellants. 2. That both accused-appellants have received injuries on their body during the incident, but prosecution witnesses have not explained these injuries and, therefore, actual incident has been suppressed by them and prosecution case should not be accepted. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. The learned Sessions Judge vide his judgment dated 31.5.1983 has come to the following conclusions : 1. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. The learned Sessions Judge vide his judgment dated 31.5.1983 has come to the following conclusions : 1. That in the incident, PW 7 Deva received nine injuries as mentioned in the injury report Ex.P/2 and out of these nine injuries, eight were incised wound and injury No. 3 is grievous caused by sharp-edged weapon and the same is on the left elbow joint. That PW 5 Smt. Hakri also received two incised wound, simple and one contusion. That PW 1 Smt. Naval also received one incised wound and three other simple injuries. That PW 2 Harji also received five injuries and out of them, four were incised wound and all injuries were simple. In this respect, he has referred to the statement of Dr. Mustaq Ali, PW 8. 2. That PW 1 Smt. Naval received injuries at the hands of accused-appellant-Poonja, PW 7 Deva received injuries at the hands of accused-appellant-Haliya and other accused-Gavari and Raju caused injuries by IOW, PW 2 Harji received injuries at the hands of accused-appellant-Poonja, and PW 5 Hakri received injuries at the hands of accused-appellants-Harliya and Poonja. 3. That the field in dispute is known as Ramawala and on the date of incident, there was joint possession on this field of complainant as well as accused party. 4. That the incident took place not in the field of Ramawala, but in the field of Dabiwala and, therefore, the learned Sessions Judge did not give the benefit of right of private defence to the accused party. 7. On the basis of the above findings, the learned Sessions Judge convicted and sentenced the accused-appellants as stated above. 8. So far as the fact that PW 1 Smt. Naval, PW 2 Harji. PW 5 Hakri and PW 7 Deva, who are injured in this case received injuries at the hands of the accused-appellants and others is concerned, it is not in dispute and the findings of the learned Sessions Judge in this respect are liable to be confirmed. 8. So far as the fact that PW 1 Smt. Naval, PW 2 Harji. PW 5 Hakri and PW 7 Deva, who are injured in this case received injuries at the hands of the accused-appellants and others is concerned, it is not in dispute and the findings of the learned Sessions Judge in this respect are liable to be confirmed. The findings of the learned Sessions Judge that the field Ramawala is in joint possession of the complainant as well as accused party are also liable to be confirmed as there is no dispute on this point also. 9. During the course of argument, the findings on point No. 4 have been challenged vehemently and the case of the learned counsel for the accused-appellant on this point is that the incident took place in the field of Ramawala and not Dabiwala and, therefore, the learned Sessions Judge has wrongly deprived the accused party of their valuable right of private defence. 10. In this respect, the statement of PW 2, Harji, who is an important witness of the complainant party and injured one may be referred to. He states that incident took place in the field known as Ramawala and when the crop was being harvested. Similarly, PW 5 Hakri, another injured witness, states in her examination-in-chief that she was harvesting the makka crop in the field of Ramawala and incident took place in that field. Another witness is PW 6 Haksi. He categorically stated that both accused-appellants were bearing PW 2 Harji in the field known as Ramawala. Another injured witness is PW 7 Deva. He states that incident took place in the field of Ramawala. Ex.P/15 is the site plan in this case, which also shows that incident took place in the filed of Ramawala. 11. Thus, there is ample evidence on record that the incident took place in the field of Ramawala and therefore, the findings of the learned Sessions Judge that incident took place in the field of Dabiwala are wrong one and they are set aside and it is held that incident took place in the field of Ramawala. 12. It has been stated earlier, as held by the learned Sessions Judge that the field Ramawala is ,in joint possession and on this point, there is ample evidence oral as well as documentary. In the file, there is a judgment dated 2.3.1982 Ex. 12. It has been stated earlier, as held by the learned Sessions Judge that the field Ramawala is ,in joint possession and on this point, there is ample evidence oral as well as documentary. In the file, there is a judgment dated 2.3.1982 Ex. D/8 passed by the learned District Judge, Dungerpur in Civil Appeal No. 30/80, where it has been clearly mentioned that Tehsildar, Sagwad was appointed as Receiver because of the dispute about the possession and ownership of the field Ramawala and as per the statement of prosecution witnesses, it is an admitted case by both the parties that the field Ramawala was in joint possession of both accused as well as complainant party on the date of incident. 13. Before proceeding further, something may be said about the injuries of accused-appellants. 14. Ex.D/6 is the injury report of accused-appellant-Poonja, which shows three injuries on his body and injury No. 1 is a stitch wound on his left side of occipital region of scalp. 15. Ex.d/7 is the injury report of accused-appellant-Haliya, which shows ten injuries on his body and there is one abrasion on left parietal bone of the head. 16. From the above injury reports of the accused-appellants, it is clear that on the date of incident, both accused-appellants received injuries and accused-appellant-Haliya received as many as ten injuries on his body.Injuries of accused persons not explained by the prosecution witnesses : 17. There is no dispute on the point that the prosecution witnesses are not explaining the injuries of the accused-appellants-Poonja and Haliya and especially in this respect, statements of PW 1, Smt. Naval, PW 2 Harji, PW 6 Haksa and PW 7 Deva may be referred to and out of them, PW 2 Harji and PW 7 Deva are injured witnesses and these witnesses have categorically stated that they have not seen the injuries on the body of the accused-appellants. Thus, they are suppressing the material fact that accused-appellants had also injuries on their body on the date of occurrence. 18. In Gajendra Singh v. State of AIR 1975 SC 1703 , the Hon'ble Supreme Court in a situation when the prosecution fails to explain the injuries on the person of an accused, any of the three results may follow:- 1. That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. 2. That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. 2. It make the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. 3. It does not affect the prosecution case at all." 19. In Lakshmi Singh & Ors. v. State of Bihar, AIR 1976 SC 2263 , the Hon'ble Supreme Court has further held that in such a case, if the prosecution witnesses do not explain the injuries sustained by accused party, it means they have suppressed the genesis and the origin of the occurrence and has thus not presented the true version and thus, such type of witnesses who are lying on a most material point, can be discarded as unreliable witnesses and furthermore, a doubt is created in such situation on the prosecution story as presented by police. 20. From the judgment of the learned Sessions Judge, it appears that the right of private defence of property as well as person was not given to the accused party in this case because of the simple reason that the incident took place in the field of Dabiwala and not in the field of Ramawala and this finding of the learned Sessions Judge has been set aside by this Court holding that the incident took place in the field of Ramawala. Therefore, since accused party especially both accused-appellants have received injuries during the incident and incident took place in the field of Ramawala, which is in dispute one between the accused as well as complainant party and furthermore, complainant party is suppressing material fact i.e. how the accused-appellant received injuries, in such circumstances, the cumulative effective would be that the accused-appellants had the right of private defence of property as well as of person. 21. Further, in this case, the right of private defence should be available to the accused-appellants for the simple reason that the accused party was suddenly confronted with immediate necessity of averting an impending danger not of their creation. 22. The Court is aware that onus is on the accused to establish the right of private defence of property or person not on the basis of standing of proving it beyond doubt but on the theory of preponderance of probability. 22. The Court is aware that onus is on the accused to establish the right of private defence of property or person not on the basis of standing of proving it beyond doubt but on the theory of preponderance of probability. In this case, by adducing evidence of the fact that accused-appellant received. injuries and looking to the ample evidence of the fact that incident took place in the field of Ramawala, which is in the joint possession of both accused as well as complainant party, accused-appellants have discharged their burden and looking to all the facts and circumstances of the case, it clearly appears that accused-appellants have right of their private defence and thus, whatever beating is given by them is justified in the exercise of right of their private defence of property or person.Thus, the findings of the learned Sessions Judge by which accused-appellants were convicted for the offences under sections 148, 324 & 326 IPC cannot be upheld and the same are liable to be set aside and the accused-appellants are entitled to acquittal of all the charges framed against them.Accordingly, this appeal filed by the accused-appellants-Poonja and Haliya is allowed and they are acquitted of the charges framed against them and the judgment and order of sentence dated 31.5.1983 passed by the learned Sessions Judge, Dungarpur against both the accused-appellants are set aside. Since both the accused-appellants are on bail, they need not surrender and their bail bonds stand cancelled.Appeal allowed. *******