JUDGMENT S.L. Kochar, J. The appellants have challenged their conviction under sections 302/34, 324/34 and 323/34 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs. 5,000/-, in default of payment of fine to suffer additional R.I. for one year, R.I. for one year and fine of Rs. 500/-, in default of payment of fine to suffer additional R.I. for one month and R.I. for six months and fine of Rs. 200/-, in default of payment of fine to suffer additional S.I. for 15 days respectively to each of the appellants by judgment dated 19-1-1998 passed by the learned Third Additional Sessions Judge, Dhar in Sessions Trial No. 157/1997. According to the prosecution case, on 17-2-1996 at 8.30 AM, the deceased Radhakishan lodged a report at Police Station Sadalpur that outside the village Sadalpur, he had a plot of land at the place known as Juhawada Kankad and also constructed a house. In front of his house, there was vacant land of the Government. On the said land in the morning the appellants having crowbar (Sabbal) and pick axe (Geti) reached over there. He asked the appellants not to put fencing of bushes. At that juncture, appellant Bahadursingh dealt a blow by crowbar on his back and also by lathi whereas the appellant Ramsingh caused him injury on his back and thigh by knife. PW-1 Kailash and PW-2 Ramkanyabai, son and daughter-in-law of the deceased reached for his rescue, but they too were assaulted by the appellants by lathi and knife. Upon hearing the noise of quarrel, so many persons of the village assembled and intervened, therefore, both the appellants while delivering threats to eliminate them, went away from the scene of occurrence. On report, Crime No. 29/96 was registered by PW-9 N.P. Tanda, Station House Officer vide FIR Ex. P/16. The injured persons were sent to the District Hospital, Dhar from where after primary treatment, referred to M. Y. Hospital, Indore where Radhakishan died on 20-2-1996. Thereafter offence u/s 302 of the Indian Penal Code was also added. After inquest proceedings, the dead body was sent for post-mortem examination which was performed by PW-13 Dr P.C. Jain. The post-mortem Report is Ex. P/32. PW-3 Dr P.C. Jain son of late Shri N.C. Jain initially examined Radhakishan and issued MLC report Ex. P/3. MLC report of Ramkanyabai (PW-2) is Ex. After inquest proceedings, the dead body was sent for post-mortem examination which was performed by PW-13 Dr P.C. Jain. The post-mortem Report is Ex. P/32. PW-3 Dr P.C. Jain son of late Shri N.C. Jain initially examined Radhakishan and issued MLC report Ex. P/3. MLC report of Ramkanyabai (PW-2) is Ex. P/4 while that of Kailash (PW-1) is Ex.P/5. The Investigating Officer also prepared the spot map Ex. P/18. After due investigation, the appellants were charge-sheeted for the offences indicated hereinabove. The appellants denied the charges and their defence was that they were in possession of the land on which the quarrel took place. They were putting fencing. At that moment they were attacked by the deceased and his son PW-1 Kailash. Appellant Bahadur was assaulted by lathi and knife. At that juncture, in exercise of right of private defence of their property and persons, they also assaulted the deceased and the witnesses. The learned trial Court on conclusion of trial, finding the appellants guilty, convicted and sentenced as already mentioned above. None appeared for the appellants though this appeal was listed on 14-5-2007, 15-5-2007, 16-6-2007 and 17-5-2007 in the weekly and daily causelists. They are on bail. Even today, they are not present and none appeared on their behalf. Therefore, in view of the judgments rendered by the Supreme Court in the cases of Bani Singh and ohters Vs. State of U.P., and Kishan Singh vs. State of U.P., (1996) 4 SCC 372 , this appeal is heard in the absence of the appellants and their advocate. We have gone through the memo of appeal and the evidentiary material available on record carefully. On perusal of the record, it emerged that the conviction of the appellants is based mainly on the testimony of eye witnesses PW-1 Kailash, PW-2 Ramkanyabai and PW-4 Babulal. All these three witnesses are related to each other PW-1 Kailash and PW-2 Ramkanyabai are the son and daughter-in-law of the deceased whereas PW-4 Babulal was the resident of a different village Salkanpur and had reached on the spot the same day. His daughter was married with the son of the deceased Radhakishan named Munna. It is apposite to mention here that the appellants have come up with a clear case of acting in right of private defence of property and person. The appellant Bahadur sustained injuries in the same incident proved by PW-3 Dr. His daughter was married with the son of the deceased Radhakishan named Munna. It is apposite to mention here that the appellants have come up with a clear case of acting in right of private defence of property and person. The appellant Bahadur sustained injuries in the same incident proved by PW-3 Dr. P.C. Jain son of late N.C. Jain vide MLC report Ex. D/1 in para 15 of his deposition. Bahadur sustained in all four injuries, out of which, injury No. 1 was a lacerated wound on the head and injury No. 2 was an incised wound on left parietal region. He advised X-Ray of skull bone. Injury No. 3 was on left ear and injury No. 4 was an incised wound on right ear near front side of the face on zygomatic region. These injuries could be caused by hard and blunt as well as sharp edged object. After medical examination Bahadur was admitted in the hospital. PW-1 Kailash, the son of deceased has tried to explain the injuries in his statement para 2 by saying that when he was assaulted by Bahadur, he picked up a stick lying nearby and dealt a blow to Bahadur, but looking to the injuries sustained by Bahadur, his statement stands belied. The abrasion and incised wounds could not be caused by lathi, therefore, his explanation appears to be an afterthought given for the first time in Court. In para 6, this witness has admitted that the appellants had erected cement columns on the place of incident prior to the date of incident, for which they lodged the report at the Police Station, but the police refused to take action saying that the offence was non-cognizable. He also submitted complaint before the Revenue Court vide Ex. D/6 and D/7. He further admitted that the cement columns were raised by the appellants one year prior to the date of incident of commission of murder of his father and beating of himself and PW-2 Ramkanyabai whereas this statement has been contradicted by PW-2 Ramkanyabai in para 3 other deposition. She also expressed her ignorance about receiving of any notice from the Revenue Court regarding raising of cement columns by the accused persons on the place of incident. She also expressed her ignorance about receiving of any notice from the Revenue Court regarding raising of cement columns by the accused persons on the place of incident. PW-4 Babulal has stated in para 5 that the incident occurred where the appellant Bahadur was putting bushes fencing and not on the place where the deceased Radhakishan was sitting. He further stated that when Bahadur was digging earth, Radhakishan got up and reached at him and raised objection, thereafter the incident of Maarpit commenced. Learned trial Court, after detailed appreciation of evidence of all the three eye witnesses, has held in para 56 of the impugned judgment that the place of incident was in possession of the appellants as encroacher and on the date of incident, they went to put fencing of bushes. In view of this finding and evidence of the prosecution eye witnesses as discussed hereinabove, it is crystal clear that the appellants were in settled possession of the land on which the incident had occurred and the deceased Radhakishan and after him, PW-1 Kailash and PW-2 Ramkanyabai reached over there and raised objection with regard to the work of putting bushes-fencing by the appellants. The law is well settled that for the purposes of claiming right of private defence of property, the accused is required to establish his settled possession and not the title and he can he in possession as encroacher. Therefore, the deceased and PW-1 Kailash as well as PW-3 Ramkanyabai had no business to commit trespass on the land in possession of the appellants and interfere in their work. The dispute was already pending before the Revenue Court lodged by the complainant party. Despite of this positive finding in para 56, the learned trial Court has failed to consider the right of private defence of the appellants and convicted them on the ground that the appellants have failed to establish that the complainant party was the aggressor and caused injuries to them first in point of time. This reasoning of the learned trial Court is wholly incorrect when the appellants were on the land in their possession and performing the work, the complainant party had no business to commit trespass and raise objection. This reasoning of the learned trial Court is wholly incorrect when the appellants were on the land in their possession and performing the work, the complainant party had no business to commit trespass and raise objection. The right of private defence accrues to the appellants immediately after trespass by the complainant party which was a criminal trespass and accused persons had right to oust them from the property in their possession. Coupled with this fact, the prosecution has also not explained the injuries sustained by the appellant Bahadur in the same incident on the land in his possession. He sustained three injuries on vital part of body like the skull. Looking to the size of injuries, nature of weapon and day-time of the incident, it was quite easy for the eye witnesses to had seen the injuries sustained by the appellant Bahadur. The incised injuries must be bleeding, therefore, the non-explanation of injuries sustained by Bahadur goes against the prosecution especially when the appellants have explained the injuries sustained by the deceased and the witnesses and also put up a specific defence of their acting in property and private defence of their persons. Under these circumstances, when the appellants appeared before the trial Court with a clear case and their case is established by the evidence adduced by the prosecution, therefore, in view of the Supreme Court judgment rendered in the case of Lakshmi Singh and Others Vs. State of Bihar, , they are entitled for getting benefit of exception of sections 100 and 105 of the Indian Penal Code. Looking to the evidence adduced by the prosecution and finding of the trial Court, it can be held without any hesitation that when sharp edged weapon was used for causing injury to Bahadur by the complainant, he could have had reasonable apprehension in his mind of sustaining grievous injuries or death and under such apprehension, he could exercise his right of private defence extending up to causing death of the deceased and the appellants could also use right of private defence of their property when the complainant party committed criminal trespass and continued in commission of criminal trespass as defined u/s 105 of the Indian Penal Code. In view of the foregoing discussion, we are of the considered view that the prosecution has failed to establish its case beyond reasonable doubt against the appellants and the appellants established their defence of acting in right of private defence of property and person, by preponderance of probability. Consequently, this appeal succeeds and is hereby allowed. The conviction and sentences of the appellants as passed by the trial Court are hereby set aside. The appellants are on bail. Their bail and surety bonds shall stand discharged. Let a copy of this judgment be sent to the trial Court along with its record. Final Result : Allowed