JUDGMENT S.L. Kochar, J. 1. The appellants ten in number named above, being aggrieved by the judgment dated 14-1-1997 passed by the learned 1st Addl. Sessions Judge, Camp Biaora, in Sessions Trial No. 2/05 have preferred this appeal. The learned trial Court by this judgment found the appellants guilty, convicted and sentenced them each as under:- Appellants Sections Sentence Fine All the appellants Lakhansingh Parwatsingh, Amratlal Chandarsingh Bhagwatsingh Bhagwatsingh Dilipsingh Bhawarlal Section 148, Indian Penal Code Section 324, Indian Penal Code Section 323, Indian Penal Code R.I. for two years R.I. for two years R.I. for six months 1,000/- each, in default of pay of fine to R.I. for 2 months. 2. Briefly stated, the facts of the prosecution case as submitted before the trial Court were that prior to the date of incident complainant Bhagirath had taken the field admeasuring 14 Bighas from Dhanraj on Adhbatai basis and 4 to 5 days before he had sown the Jwar crop therein. On 24-6-1984, at about 12.00 in the noon deceased accused Harlal armed with a gun, deceased accused Madan, Bhagwatsingh, Amratlal, Narayansingh and Chandarsingh armed with Farsi, Lakhansingh armed with Kharamba, Dilipsingh, Bhawarlal and Premsingh armed with lathis and Parwatsing armed with a spear went to the said field and started damaging the standing crop. On this the complainant Bhagirath, Hanumantsingh, Moharsinmgh, Mangilal, Amarsingh also went to the said field and requested them, not to plough the said field. Thereupon the appellants threatened to kill them. Accused Harlal shot a gun fire at Mangiya as a result of which he fell down. Harlal also shot a fire and thereafter the appellants caused injuries to complainant Bhagirath, Hanumantsingh, Balram by Ballam, Farsi and Lathis. On hearing the hue and cry, villagers rushed there and thereupon the accused persons fled away from the spot. In this quarrel Amarsingh lost his life. Bhagirath lodged the report Ex. P/3 of this incident at the Police Station and the same was registered at 1.45 P.M. at Crime No. 137/84 under Sections 147, 148, 149, 302, 307 and 323 of the Indian Penal Code. The injured persons were sent to the hospital for examination and treatment. The dead bodies of Harlal and Amarsingh were seized. Police prepared the spot map Ex. P/6. The Post-mortem Report of Amarsingh is Ex. P/35. The injuries reports are Ex. P/48, and P/50, Ex. P/56. Ex. The injured persons were sent to the hospital for examination and treatment. The dead bodies of Harlal and Amarsingh were seized. Police prepared the spot map Ex. P/6. The Post-mortem Report of Amarsingh is Ex. P/35. The injuries reports are Ex. P/48, and P/50, Ex. P/56. Ex. P/47 is the X-Ray report of Moharsingh and that of Mangilal is Ex. P/49. After necessary investigation, charge-sheet was filed against the appellants. The appellants abjured their guilt and stated that they have been falsely implicated on account of rivalry. They did not examine any witness in defence whereas in order to establish its case the prosecution examined as many as 24 witnesses. The trial Court discharged the appellants from the offence punishable under Section 302 read with Section 149 of the Indian Penal Code by order dated 26-2-1985 and this order has been affirmed by the High Court in Criminal Revision No. 86/85 on 15-10-1987. The learned trial Court finding the appellants guilty, convicted and sentenced them as indicated herein-above. 3. We have heard learned counsel for the parties and perused the entire record carefully. 4. Learned counsel for the appellants submitted that the Appellant No. 9 Chandarsingh took the disputed land on Gallabatai from the owner of the field namely, Umraobai. To this effect, Umraobai had executed an agreement Ex. P/2. She was paid Rs. 10,000/- in cash by appellant Chandarsingh and part of this amount was to be adjusted from the crop of three years and the remaining amount she was to pay with interest and then she would get back her field. He has also submitted that the appellant Chandarsingh was in peaceful possession of the said land and the complainant party forming an unlawful assembly committed trespass over the said land and assaulted the accused party causing death of two persons namely, Madan and Harlal and injuries to some of the accused persons. At that moment, the appellants acted in right of private defence of their property and person. Therefore, their case is fully covered by law of private defence of person and property and they are entitled for acquittal. 5. Per contra, learned State counsel has submitted that the complainant party was in actual possession of the field and they had already sown the crop. Therefore, their case is fully covered by law of private defence of person and property and they are entitled for acquittal. 5. Per contra, learned State counsel has submitted that the complainant party was in actual possession of the field and they had already sown the crop. The appellants forming an unlawful assembly having deadly weapons in their possession, committed trespass over the land and started damaging the crop and they have not adduced any cogent and admissible evidence to establish that they were in possession of the field. Mere execution of agreement Ex. P/2 would not be sufficient to establish that the appellants were in peaceful possession of the disputed land. The learned trial Court, in para 31 of the impugned judgment, has held that the appellants have not adduced any evidence to establish the case of right of private defence. Their defence was that they were falsely implicated because of enmity and group rivalry and rivalry is proved on the basis of the evidence on record. It is also established that the cases were going on between both the parties from prior to the date of incident. In para 32, the learned trial Court has given finding on the basis of oral and documentary evidence that both parties were not in actual possession of the land and on the date of incident, both had entered into quarrel for taking possession of the land and assaulted to each other. The learned trial Court has given finding of free fight between both the parties and convicted the appellants accordingly. 6. It is well settled position that the accused persons can take alternative defence i.e. denial and acting in private defence of person or property or both. The accused/accused persons is/are required to prove his/their case by preponderance of probabilities on the basis of the evidence adduced by the prosecution as well as the defence. In the light of this legal position, we have to see whether there is evidence available on record in favour of the appellants to prove by preponderance of probabilities that they acted in right of private defence of their property and person. For this, the first question is to be considered regarding settled possession over the disputed land (Navat Khankara wala field). For this, the first question is to be considered regarding settled possession over the disputed land (Navat Khankara wala field). The learned counsel placed reliance on the Supreme Court j udgment passed by three judges Bench in the case of Munshiram v. Delhi Administration, AIR 1968 SC 702 wherein Hon'ble Shri Justice Hegde speaking for the Bench has observed in para 14 as under: It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case, unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force. (Emphasis supplied) 7. Keeping in mind the aforesaid legal proposition, now we proceed to appreciate the evidence on record. PW-1 Kishanlal, village Chowkidar has deposed that the police prepared spot map and seized the lathi, Farsi and gun lying in the field of Appellant No. 9 Chandarsingh. This witness has been declared hostile by the prosecution. Neither the prosecution nor the defence got proved the spot map and seizure memos from this witness. The prosecution has also not confronted him with seizure memos. This shows that he was not the witness of seizure of aforementioned articles from the field of Appellant No. 9 Chandarsingh. The suggestion given by the learned Prosecutor is denied by this witness in cross-examination that Farsi was not seized from the appellant Amratlal and lathis from appellant Chandarsingh. The prosecution has also not confronted him with seizure memos. This shows that he was not the witness of seizure of aforementioned articles from the field of Appellant No. 9 Chandarsingh. The suggestion given by the learned Prosecutor is denied by this witness in cross-examination that Farsi was not seized from the appellant Amratlal and lathis from appellant Chandarsingh. The prosecution has also condemned him that he joined hands with appellant Amratlal and Chandarsingh and because of which, he has given false evidence in the Court. Learned counsel for the appellants wanted this Court to rely on the statement of this witness Kishanlal to hold that Chandarsingh was in possession of the disputed land on which the incident occurred. We are unable to accept this argument, because this witness has nowhere stated that the appellants were in possession of the land and he has given contrary statement to the prosecution case for which, he was cited as witness. We are well aware of the law that part of the statement of hostile witness can be relied upon if found true on test. According to us, this witness is not a truthful witness who introduced all of a sudden a new story in the Court. 8. The next witness PW-2 Lakhansingh has deposed that the dead bodies of deceased Harlal and Amarsingh were lying in the field of Chandarsingh. The gun was also lying there which was seized by the police. On perusal of seizure memo, he stated that his signature is not on the seizure memo. This witness has not been declared hostile. In cross-examination he further deposed that the dead bodies were lying in the field of Chandarsingh and Chandarsingh was cultivating that field. This witness appears to be an independent witness and resident of the same village. There is no reason for disbelieving the evidence of this witness with regard to the possession of the appellant Chandarsingh. The learned trial Court has not at all discussed the statement of this witness on the question of possession over the disputed land. In paras 17 and 21 of the judgment, the trial Court has mentioned only fact that this witness has not supported the prosecution case and deposed that he did not witness the incident of assault. PW-3 Baijnath has been declared hostile. He was the witness of seizure of lathi. In paras 17 and 21 of the judgment, the trial Court has mentioned only fact that this witness has not supported the prosecution case and deposed that he did not witness the incident of assault. PW-3 Baijnath has been declared hostile. He was the witness of seizure of lathi. He has not given any statement in regard to possession of land. PW-4 Mangilal has also not stated anything about possession of the land. PW-5 Balram is an injured witness and is also facing prosecution in the counter case. He has been declared hostile by the prosecution. Though this witness has stated in his examination-in-chief that the crop was sown in the disputed land by the complainant Bhagirath before 8 to 20 days of the incident which was being damaged by 8 to 10 persons and also named the appellants, but since he has given contradictory statement to his case diary statement, therefore, he was declared hostile and was confronted with his previous statement. This witness appears to be an interested and partisan witness and hence, we do not consider his statement on the question of possession over the land. PW-6 Hanumant Singh is the brother of complainant Bhagirath. He suffered injuries in the same incident and is also facing prosecution for commission of murders of Harlal and Madan as well as causing of injuries to the appellant Chandarsingh, Parwatsingh, Premsingh, Narayansingh and Amrat. This witness in para 5 of his deposition has admitted the deceased persons and the appellants sustained injuries in the same incident. But, he has failed to explain as to how the deceased persons and the appellants sustained the injuries and who was the aggressor. He was confronted with his case diary statement in which it is mentioned that the disputed land was mortgaged with the appellant Chandarsingh by Umraobai and Umraobai after taking ten thousand rupees gave that land on Gallabatai. He failed to explain this contradiction in his statement. Same is the statement of PW-7 injured witness Prem. This witness has also admitted the death of Harlal and Madan in the same incident and sustaining of injuries by the appellant Chandarsingh, Premsingh, Parwatsingh, Narayansingh and Amrat, but failed to disclose as to how they sustained the injuries. He is also facing prosecution in counter case. Same is the statement of PW-7 injured witness Prem. This witness has also admitted the death of Harlal and Madan in the same incident and sustaining of injuries by the appellant Chandarsingh, Premsingh, Parwatsingh, Narayansingh and Amrat, but failed to disclose as to how they sustained the injuries. He is also facing prosecution in counter case. He denied giving of statement portion marked A to A to the police that the disputed land was given to the appellant Chandarsingh by Umraobai on Gallabatai after taking ten thousand rupees as well as portion marked A to A that at the time of incident on the spot Chandarsingh told that he paid ten thousand rupees to Umraobai and he will cultivate the land. The statement of this witness is full of contradictions and improvements. 9. PW-19 Bhagirath who lodged the report was also prosecuted for commission of murders of Harlal and Madan and also sustained injuries in the same incident. In his examination-in-chief para 4, this witness has stated that the report Ex. P/3 as well as their statements were not correctly recorded by the police. He also stated that he was giving documents of land, but the same were not taken by the police. He submitted one agreement written on the stamp paper and the same was taken on record by the trial Court. The statement of this witness is also replete with omissions, improvements and contradictions about possession and cultivation of land and receiving information regarding causing loss to the crop. He denied his case diary statement at portions marked A to A, B to B, C to C, E to E and F to F wherein it is mentioned that the disputed land was given to Chandarsingh by Umraobai after obtaining ten thousand rupees on Gallabatai. In para 8, he denied about death of Harlal and Madan in the same incident, but admitted his prosecution for commission of murders of these two persons and causing injuries to six appellants. 10. PW-20 Mangilal is also an injured witness and suffered with same infirmity as mentioned herein-above. PW-22 Inspector K. K. Sharma has admitted about preparation of spot map Ex. P/33 and seizure of blood stained and controlled earth through seizure memo Ex. P/34. He also got prepared the spot map Ex. P/5 from Patwari. 10. PW-20 Mangilal is also an injured witness and suffered with same infirmity as mentioned herein-above. PW-22 Inspector K. K. Sharma has admitted about preparation of spot map Ex. P/33 and seizure of blood stained and controlled earth through seizure memo Ex. P/34. He also got prepared the spot map Ex. P/5 from Patwari. The prosecution has filed agreement Ex, P/2 executed in favour of appellant Chandarsingh by PW-13 Umraobai, the step-mother of Dhanraj. She admitted that the land stands in the land record, in her as well as in the name of Dhanraj and the total land was 80 Bighas, out of which 25 Bighas were given to her on the basis of settlement between herself and Dhanraj by the Panchas and she was in possession of the said land. In cross-examination, she has stated that the dispute was going on in the Court between herself and Dhanraj, but finally the Village Panchas made intervention and she and Dhanraj compromised on the issue. She was given 25 Bighas of land and half portion of the house. After compromise, the disputed land was being cultivated through Adhbatai and prior to giving of the land to Chandarsingh-Appellant, the said land was cultivated for about four years by Mansingh, Badri, Amrat and Babru Kumhar. After agreement Ex. P/2, she handed over the possession of the land to Chandarsingh and Chandarsingh prepared the field by ploughing the same for sowing purposes. 11. PW-14 Dhanraj, the step son of PW-13 Umraobai, has deposed that the disputed land fell in his share and he gave that land to the complainant Bhagirath for cultivation and prior to that, the same was being cultivated by Babru Kumhar. In cross-examination, he has admitted that in the land records his name and Umraobai's name are mentioned. A civil dispute was going on between them. Ultimately the villagers got the dispute settled and they compromised the issue. He admitted giving of 25 Bighas of land to Umraobai as well as delivery of possession and Umraobai (PW-13) was cultivating the said land through Mansingh, Badrilal, Amrat and Babru Kumhar, alternatively. Prior to the present quarrel, said 25 Bighas land was being cultivated by Babru Kumhar on behalf of Umraobai. He admitted giving of 25 Bighas of land to Umraobai as well as delivery of possession and Umraobai (PW-13) was cultivating the said land through Mansingh, Badrilal, Amrat and Babru Kumhar, alternatively. Prior to the present quarrel, said 25 Bighas land was being cultivated by Babru Kumhar on behalf of Umraobai. He expressed his ignorance whether the land known as Khankra Ghati wala field was given to Umraobai or not, but he admitted that the said land was got cultivated through the aforesaid four persons by Umraobai and they gave share of the crop to Umraobai, He has also stated that he gave the disputed land to above mentioned four persons on behalf of his mother and after cultivation by Babru Kumhar, the land was given to the complainant Bhagirath. The further say of this witness is that before six years of giving the land to Bhagirath, there was marriage of daughter of Umraobai (PW-13) and in that marriage he did not incur the expenses. The expenses were incurred by Umraobai. He again expressed his ignorance that his step-mother Umraobai for the purposes of marriage took ten thousand rupees from the appellant Chandarsingh and gave the land for cultivation and prior to giving of the land for cultivation to the complainant Bhagirath by him, the appellant Chandarsingh prepared it for sowing the crop. This witness has not proved any document with regard to entering into the agreement with the complainant Bhagirath (PW-19), Bhagirath has filed this document directly in the Court which appears to be marked as Ex. D/19 and the learned trial Court in para 32 has discussed the evidence of PW-18 Ramprasad Verma Patwari who has stated in cross-examination that half of the share of the land was with Dhanraj and half was with Umraobai and in the land records (Khasra Panch Sala) apart from possession of Dhanraj and Umraobai, possession of anybody else was not mentioned and on the basis of the document Ex. D/19 and P/2 as well as oral evidence both groups entered into quarrel on the issue of possession. Therefore, the appellants are not entitled, for right of self defence of property and person. This finding of the trial Court, in our considered view, is not based on proper assessment of evidence available on record either oral or documentary. 12. D/19 and P/2 as well as oral evidence both groups entered into quarrel on the issue of possession. Therefore, the appellants are not entitled, for right of self defence of property and person. This finding of the trial Court, in our considered view, is not based on proper assessment of evidence available on record either oral or documentary. 12. It is trite law that the evidence, oral or documentary, adduced by the prosecution and the defence in counter case cannot be considered and looked into in another counter case. Each case is to be decided on the basis of the evidence available on record of the said case. (See: Nathulal and Ors. v. State of U. P., 1990 (supp) SCC 145, State of M. P. v. Mishrilal (dead) and Ors. (2003)9 SCC 426 , paras 6, 7 and 8 and Sudhir and Ors. v. State, (2001 )2 SCC 688). 13. The prosecution has failed to establish that the complainant party was in settled possession of the land and the prosecution witnesses have also not explained the death of two persons and injuries sustained by the witnesses in the same incident. Therefore, in our considered view, the prosecution has failed to prove its case beyond all reasonable doubt against the appellants for causing simple injuries to the prosecution witnesses and commission of offence punishable under Section 148 of the Indian Penal Code. 14. Resultantly, this appeal succeeds and is hereby allowed. The conviction and sentences of the appellants are hereby set aside. The appellants are on bail. Their bail and surety bonds shall stand discharged. Amount of fine, if recovered or realized, shall be refunded to the appellants by the trial Court. A copy of this judgment along with the record shall be sent to the trial Court for compliance. Appeal allowed.