JUDGMENT :- The appellants have challenged their conviction u/S. 307 of the IPC and sentence of R.I. for three years with fine of Rs. 500/- and one year R.I. u/S. 342 of the IPC, in default of payment fine, additional R.I. for three months, passed by Sessions Judge, Dewas in Sessions Trial No. 46/97, judgment dated 13-1-1999. 2. The prosecution case in brief as unfolded before the Trial Court is that on 12-11-1996 in the evening at 6.15 a.m. in village Ohalya/Pipaliya complainant Makhan and his father Tolaram were in the field, at that time the appellants-Raisingh, Vikram and deceased-Nanuram reached over there. Raisingh and Vikram were having sword whereas Nanuram had lathi. They started abusing Tolaram and while saying to kill Tolaram, Raisingh and Vikram by sword and Nanuram by lathi assaulted him. When Makhan reached to save them, he too was assaulted by Vikram and Raisingh by sword. Wife of Tolaram, named Kasturibai was also assaulted by accused persons when she tried to save Tolaram. Because of loud outcry by Makhanlal on the spot, the appellants/accused persons fled away from the spot. There was dispute between both the parties regarding collection and stopping of water in the field. From the spot, injured Makhan and Tolaram were taken in bullock-cart to District Hospital, Dewas, where Makhan lodged Dehati Nalishi to Head Constable Hunnain Khan of police station, B.N.P. Dewas. On the basis of this report in the police station on 12-11-1996, crime was registered for offence u/Ss. 307, 323 read with 34 of the IPC. Dr. Sanjay Sharma (P.W. 9) medically examined Kasturibai, Tolaram and Makhan. Because of serious condition of Tolaram, he was referred to M. Y. Hospital, Indore. He remained hospitalized from 12-11-1996 to 8-12-1996. The police prepared spot map and also arrested the accused persons. From the possession of deceased/accused Nanuram lathi and from Vikram and Raisingh sword were seized. The seized articles were sent for examination to FSL, Indore and its report is Exhibit-P/36. On completion of investigation, accused persons were charge-sheeted for the abovementioned offences. 3. The appellants denied the charges and submitted that Tolaram, Makhan and others had entered in their field with bullock-cart and assaulted Nanuram and also to the appellants-Raisingh and Vikram when they tried to rescue the Nanuram. They had also lodged the report in the same police station. 4. 3. The appellants denied the charges and submitted that Tolaram, Makhan and others had entered in their field with bullock-cart and assaulted Nanuram and also to the appellants-Raisingh and Vikram when they tried to rescue the Nanuram. They had also lodged the report in the same police station. 4. The appellants have not examined any witness in defence, whereas prosecution has examined in all 10 witnesses and got proved 42 documents to prove its case. The learned trial Court found the appellants guilty convicted and sentenced as mentioned herein above. 5. The undisputed facts are that RaiSingh and deceased Nanuram were in relation. Vikram is the son of Nanuram. Tolaram is the real brother of Nanuram and injured Kasturibai is the wife of Tolaram whereas Makhan is the son of Tolaram. The counter-case on the basis of lodging of the report by the appellant-Raisingh for the incident occur on the same place, date and time, police registered the offences u/Ss. 302, 307, 325, 324 of the IPC against the complainant party i.e. Tolaram, Makhan Tammubai and Kasturibai. This counter-case was also tried by the same Court in Sessions Trial No. 100/97. Nanuram died after 14 days from the date of incident. Nanuram Raisingh and Vikram were medically examined by Dr. Sanjay Sharma (P.W. 9). Their medical reports are Exhibits-D/4, D/5 and D/6 respectively. The presence of the appellants as well as Tolaram, Kasturibai, Makhan and Nanuram on the spot was not disputed. The arguments of the learned counsel for the appellants are required to be considered in the light of these admitted factual position. The learned counsel for the appellants has submitted that genesis of the crime has not been established by the prosecution and the prosecution witnesses have not explained the injuries sustained by the appellants and the deceased-Nanuram, therefore, the appellants are entitled for getting benefit of acting in right of private defence of their person. The learned counsel placed reliance on Supreme Court's judgment in case of Bisna alias Biswadip v. State of West Bengal (AIR 2006 SC 302). 6. In oppugnation, learned counsel for the State has supported the impugned judgment arrived at by the learned Trial Court. The learned counsel placed reliance on Supreme Court's judgment in case of Bisna alias Biswadip v. State of West Bengal (AIR 2006 SC 302). 6. In oppugnation, learned counsel for the State has supported the impugned judgment arrived at by the learned Trial Court. Learned counsel for the State has also submitted that merely non-explanation of injuries on the person of the appellants by the prosecution witness could be sufficient to presume that the appellants acting in right of private defence in their person, the appellants as well as Nanuram sustained simple injury as evident from medical report Exhibits-D/4, D/5 and D/6, whereas witnesses, Tolaram and Makhan sustained grievous injury and Tolaram was hospitalized as injured person from 12-11-1996 to 7-12-1996 and that the appellants entered into the field and Tolaram had assaulted them. They were aggressor, therefore, complainant party Tolaram and Makhan in fact acted in right of private defence of their person and property. 7. Having heard the learned counsel for the parties and after perusing the entire record of the Trial Court, the core question for decision by this Court is "whether the appellants had any right of private defence of their person in their favour or not?" 8. Injured witness and complainant (P.W. 1) Makhan has deposed that on the date of incident in the evening at about 6.15 a.m. he was at his well and his father was present nearby field, at that moment the appellants and deceased-accused-Nanuram reached over there. The appellants were having sword whereas Nanuram had lathi. They started assaulting to his father Tolaram by their respective weapons and caused injuries on his left shoulder, left forearm, left wrist, left leg, right leg, right hand and head etc. that time, he was making ready the bullock-cart and reached on the spot upon hearing cry of his father. He tried to save his father, but he too was assaulted by sword by the appellants causing injury on his left hand and Nanuram by lathi on left leg knee joint and scapular. The further say of this witness is that his mother Kasturibai (P.W. 3) also reached over there and tried to rescue them and she was also assaulted by the appellants. She sustained injury on her left hand and back portion. The cry of this witness and other injured persons attracted Kailash and Ramchandra who reached on the spot on completion of incident. She sustained injury on her left hand and back portion. The cry of this witness and other injured persons attracted Kailash and Ramchandra who reached on the spot on completion of incident. This witness proved his report Exhibit-P/1 and also stated about his medical examination as well as of his father Tolaram and mother Kasturibai. It is pertinent to mention here that this witness (P.W. 1) Makhanlal, injured eye-witnesses (P.W. 2) Tolaram and (P.W. 3) Kasturibai were examined on 10-11-1996, but on that date, they were not cross-examined by the defence counsel and case was adjourned on the ground of sickness of defence counsel. Again, these witnesses were present on 4-4-1998 after about five months of their recording of examination-in-chief and on this date also, they were not cross-examined by the defence counsel, therefore, their cross-examination was closed and after examination of almost all other witnesses, an application was filed by the defence u/S. 311 of the Cr.P.C. for recalling of witnesses for examination and same was allowed by order dated 6-5-1998 wherein learned Trial Court has mentioned that twice opportunity was given to the defence for cross-examination of these witnesses and on both dates counsel for the accused persons was not present, therefore, application was not acceptable, but looking to the facts and nature of the crime in the Interest of justice, prayer was allowed and all the three injured eye-witnesses were cross-examined on 24-7-1998 after gaps of about nine months from recording of their examination-in-chief and the date of incident is 12-11-1996. 8A. In cross-examination, (P.W. 1) Makhanlal has admitted that all the agriculture land was ancestral and he was having nine to ten field (Khet) and land known as Kasaliya field, but was not recorded in Government Land Record and that above Kasaliwala Khet there was field situated known as Khalawala Khet. He admitted about non-mentioning of name of field in the FIR. He denied any dispute over the approach road and according to him, there was dispute of water. In paragraph-5, he has denied the defence suggestion that when Nanuram was going to his house from his field, he, his father, mother and Tammubai abused him and thereafter, assaulted him by Saliya (wooden-log used in bullock-cart to support the baggages of crops). He also denied that the appellant-Vikram reached on the spot after hearing cry of Nanuram and he was assaulted by Kasturibai (P.W. 3). He also denied that the appellant-Vikram reached on the spot after hearing cry of Nanuram and he was assaulted by Kasturibai (P.W. 3). He also denied assaulting to the appellant Rai Singh by Tolaram (P.W. 2) and Tammubai by lathi and threatened them that today they were saved but in future, they will be killed. In paragraph 9, he denied causing of any injury and oozing of blood on the person of the appellants Rai Singh and Nanuram died because of injuries sustained in this incident. In paragraph 10, he was confronted with his FIR Exhibit-P/1 regarding sustaining of injury by his father on his head caused by lathi by deceased/Nanuram. According to this witness, he mentioned in FIR of assaulting on the head of his father. On consideration, in the opinion of this Court, contradictions in substantial facts have been mentioned by this witness in the FIR. He was also asked about causing of injury on his left leg, knee and back portion by Nanuram and if same was not mentioned, he could not assign any reason. The overt act of causing injury to his mother by sword by Raisingh and Vikram has also not mentioned in the FIR. On going through the FIR Exhibit-P/1 substantial facts are mentioned by this witness. It contains name of weapons, time and place of incident causing of injuries to them by sword and lathi. It is well established legal position that FIR is not in encyclopedia which contains each and every minute details and all relevant and irrelevant fact. In the instant case, this witness was in injured condition. His father was also in serious condition. Under such circumstances, it could not be expected from him to concentrate and describe all major and minor details in the FIR. In the cross-examination of this witness, nothing substantial has come to discard his testimony except denial of injuries sustained by the appellants and Nanuram. According to this witness, incident occurred in his field and the appellants were the aggressor. In cross-examination, no suggestion was given to this witness by the defence that the appellants acted in right of private defence of their person. The only suggestion was given that this witness, his father, mother and Tammubai assaulted Nanuram and the appellants-Vikram and Raisingh which he has denied. In cross-examination, no suggestion was given to this witness by the defence that the appellants acted in right of private defence of their person. The only suggestion was given that this witness, his father, mother and Tammubai assaulted Nanuram and the appellants-Vikram and Raisingh which he has denied. It is noticeable that in cross-examination, no suggestion was given to this witness that the incident occurred in the field owned and in possession of the appellants. The place of incident, the field owned and in possession of the complainant party remained unchallenged. 9. Second injured eye-witness (PW-2) Tolaram has testified that on the date of incident in the evening at about 6.15 p.m. he was alone in his field. At that Juncture, all the three accused persons reached there. The appellants-Raisingh and Vikram were having sword and deceased-appellant Nanuram had lathi. All the three started abusing him and while saying to kill, the old man started assaulting him. They caused him injury by sword on his back portion, left leg. He fell on the ground, thereafter also assaulted by Raisingh by sword causing injury on left hand, right hand and Nanuram by lathi on his right leg and knee. His son (PW-1) Makhan reached on the spot after hearing his cry and saved him. He too was assaulted by the appellants Vikram and Raisingh by sword and Nanuram by lathi. On the spot Kailash and Atmaram had also reached. His wife (PW-3) Kasturibai also reached on the spot and tried to save him and she too also assaulted by the accused persons. The further say of this witness is that he was taken in bullock-cart to Dewas District Hospital and thereafter to Indore and remained hospitalized for 26 days and he was assaulted by the appellants just to grab his land. In cross-examination, he was contradicted with his statement Exhibit-D/2 regarding specific overt act by the appellants. These omission and contradiction are very insignificant especially when witness was examined in the Court and there was gap of seven to eight months between in examination-in-chief and cross-examination. There is no such material and important omission in his case diary statement which may fragile his testimony and cause dent to the prosecution case. These omission and contradiction are very insignificant especially when witness was examined in the Court and there was gap of seven to eight months between in examination-in-chief and cross-examination. There is no such material and important omission in his case diary statement which may fragile his testimony and cause dent to the prosecution case. In paragraph-6, this witness has stated that there was partition of ancestral land and property between him and deceased-accused-Nanuram but same was not recorded in Government Land Record and he denied of any kind of dispute regarding approach road or way to the land. In paragraph-7, he stated that there was darkness at the time of incident and he had not seen any injury on the person of the appellants and deceased-Nanuram. He admitted about lodging of report by the accused persons and pendency of case against him. He denied of assaulting by lathi to Raisingh and to Nanuram by Makhan (PW-1) and Nanuram died because of the said injury. He also denied assaulting of the appellant-Vikram by sickle by Kasturibai and Tammubai assaulting Raisingh by lathi when Nanuram was going to his house. This witness has also not been given any suggestion by defence about acting of the appellants in right of defence of their person and property and about place of incident or field in possession of the complainant party, where according to injured witnesses, incident occurred. Third injured witness Kasturibai (PW-3) has also stated that she was working at a distance in another field from her husband (PW-2). She overheard his cry and reached on the spot. The further say of this witness is that the appellants Raisingh and Vikram assaulted her husband by sword and Nanuram by lathi. Her husband sustained injuries on his shoulder, hand, finger, thigh, head and other part of his body. When she tried to save him, she was also assaulted them. Her son Makhan (PW-1) was also assaulted by the appellants when he also tried to save Tolaram. In cross-examination, she denied the suggestion that there was dispute of way from Kasaliya field and voluntarily stated that everybody was passing through the way nearby Kasaliya field. According to this witness, there was slight darkness at the time of incident and when she reached on the spot, she saw blood oozing from the head of accused persons. She denied about assaulting by sickle of Vikram. According to this witness, there was slight darkness at the time of incident and when she reached on the spot, she saw blood oozing from the head of accused persons. She denied about assaulting by sickle of Vikram. Her statement shows that she reached in the midst of the quarrel and she was silent as to how incident started. The another eye-witness (PW-5) Atmaram has not supported the prosecution case, therefore, declared hostile and cross-examined. In cross-examination, in paragraph-3, he stated that field of the appellants and injured Tolaram were situated nearby and there was embankment between their field. He reached on the spot upon hearing cry of Kasturibai and he saw Tolaram (PW-2) lying in pool of blood in his field. Kasturibai and Makhan were also present there, but he had not seen any injury on the person of Kasturibai and Makhan. The appellant/ Vikram and his father were at their well and Raisingh had also reached with bullock-cart. There was dispute between both the parties and the appellants are his family member and witness Kailash is his nephew and was also present on the spot. He admonished both the party. In cross-examination by defence in paragraph-6, say of this witness , is that bullock-cart of Tolaram was on the embankment of the appellant-Vikram and father of Vikram named Nanuram was unconscious, but there was no oozing of blood from his body and Vikram was saying that his father was assaulted. He had seen small injury on the head of Vikram. He was not knowing as to how father of Vikram died and dispute was going on between both the parties regarding land and property. On assessment, this Court is of the view that the statement of this hostile witness Atmaram is not useful to decide who was the aggressor and where incident occurred. When he reached on the spot, he saw both the parties in different field. Tolaram was lying in his field and father of Vikram deceased Nanuram was lying near his well. 10. (PW-7) Pradip Bhargav has proved admission card and bed-head ticket Exhibit-P/7 and P/8 of (PW-2) Tolaram, according to this witness on 12-11-96 Tolaram was admitted in Orthopedic Department or ward of M. Y. Hospital, Indore and he was discharged on 8-12-96. Dr. Bhargav found compound fracture at left ulna bone. The patient was unconscious. He was given one bottle blood and operated twice. Dr. Bhargav found compound fracture at left ulna bone. The patient was unconscious. He was given one bottle blood and operated twice. The lower portion of left ulna bone was taken out. The statement of this witness is clear that Tolaram suffered grievous injury and his condition was not good. 11. (PW-8) Hussain Head Constable proved FIR Exhibit-P/1 lodged by (PW-1) Makhan. In cross-examination, he has admitted lodging of report by the appellant Raisingh, but defence has not filed the report and got it exhibited so that same could form part of record of this case. If FIR lodged by the appellants would have been filed in this case, the Court could be in a position to know "what was their earliest version before the police?". The Supreme Court in the case of Bisna (AIR 2006 SC 302) (supra) in paragraph-20, in a similar situation observed that : "Strangely enough, the defence had not brought the said FIR on record. The said counter-case is said to be pending trial." In the case at hand, neither the FIR was brought on record nor a specific suggestions were given to the injured eye-witness or even hostile eye-witness Atmaram as to how the incident commenced on the place whereas all the three injured eye-witnesses have specifically stated that incident occurred in their field where (PW-2) Tolaram was present and was working. Learned counsel for the appellants have placed heavy reliance on paragraph-52 of the judgment passed in case of Bisna (AIR 2006 SC 302) (supra) which reads as under : "The fact as regard failure to explain injuries on accused vary from case to case, whereas non-explanation of injuries suffered by the accused probabilises the defence version that the prosecution side attacked first, in a given situation it may also be possible to hold that the explanation given by the accused about his injury is not satisfactory and the statements of prosecutions witnesses fully explain the same and, thus, it is possible to hold that the accused had committed a crime for which he was charged. Where injuries were sustained by both sides and when both the parties suppressed the genesis in the incident, or were coming out with the partial truth, the prosecution may fail. Where injuries were sustained by both sides and when both the parties suppressed the genesis in the incident, or were coming out with the partial truth, the prosecution may fail. But no law in general terms can be laid down to the effect that each and every case where prosecution fails to explain injuries on the person of the accused, the same should be rejected without any further probe. (See Bankey Lal and others v. The State of U. P. ( AIR 1971 SC 2233 ) and Mohar Rai v. The State of Bihar ( AIR 1968 SC 1281 )." 12. According to the learned counsel for the appellants, both the parties sustained injury and both have suppressed the genesis in the incident, but on consideration of statements of the three eye-witnesses and even hostile witness, it is crystal clear that the incident occurred in their field where appellants reached with weapons and assaulted them. So, the prosecution has come with a clear case regarding place of incident and the appellants were the aggressor. Out of three witnesses (PW-3) Kasturibai admitted presence of injury on the person of the appellants. But, no suggestion was given to her and all the eye-witnesses that the complainant party was the aggressor and the appellants caused injuries in their defence. 13. It is true that the prosecution is required to prove its case beyond reasonable doubt, at the same time burden lie upon the accused persons to prove that their case falls within exception. They are not required to discharge this burden beyond all reasonable doubt, but they have to establish the same by preponderance of the probability. Section 105 of the Evidence Act is clear on this aspect which is extracted as under : "(105) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the Act. (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the Act. The burden of proof is on A. (b) A, accused of murder, alleges that by grave and sudden provocation, he was deprived of the power of self-control The burden of proof is on A. (c) Section 325 of the Indian Penal Code (45 of 1860), provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under Section 325. The burden of proving the circumstances bringing the case under Section 335 lies on A." 14. In the instant case, neither the appellants have taken specific plea of acting in right of private defence, in their statement under Section 313 of the Cr. P. C. nor given any suggestion to this effect to the eye-witnesses, but they want the benefit of the only circumstance i.e. non-explanation of injuries sustained by them in the same incident. But the place of incident is fully and properly established by the prosecution through the statements of three injured eye-witnesses i.e. field of the complainant party. In this situation, the appellants could not get any right of private defence of their person because their entry would have been as criminal trespasser on the field of complainant and right accrued to the complainant party to use required force against trespasser. In case of Bisna (supra), the Hon'ble Supreme Court has considered in detail in the light of almost of earlier judgment up to what 'extent, the accused person can get benefit of circumstances of non-explanation of injuries on the person of accused by the prosecution and observed in paragraph-17 as under : "A plea of right of private defence cannot based on surmises and speculation. While considering whether the right of private defence is available to an accused. It is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor in order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting." 15. It is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor in order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting." 15. In the case at hand, there is clear evidence on record adduced by the prosecution that (PW-2) Tolaram was working in his field and accused persons reached over there having sword and lathi, assaulted him. His son Makhan (PW-1) came to rescue him and thereafter his mother Kasturibai. Both of them also assaulted. In the light of this evidence, mere non-explanation of injury on the person of the appellants would not be sufficient to describe the entire prosecution case and presume that the appellants/accused persons acted in private defence of their person. They are silent about their plea, about injuries sustained by the complainant party and about place of incident. At this juncture, it would be apposite to see what kind of injuries were sustained by the complainant party as well as the appellants. (PW-9) Sanjay Sharma medically examined, Kasturibai (PW-3), Tolaram (PW-2) and Makhan (PW-1) and proved their MLC report Exhibits-P/32, P/33 and P/34 respectively. Kasturibai (PW-3) 1) Lacerated wound 2 cm x 1 cm x ½ on left forearm caused by hard and blunt object. 2) Abrasion 4 cm x ½ cm on left scapular region caused by hard and blunt object. In the opinion of doctor the injuries were simple in nature and their duration was within six hours. Tolaram (PW-2) 1) Lacerated wound with skin deep, bleeding 3 cm x 2 cm x 1 cm on left leg by hard and blunt object. 2) Two incised wound, mussel cut, bleeding 10 cm x 3 cm x 3 cm on left thigh caused by sharp cutting object. 3) Incised wound, bleeding 3 cm x 2 cm x 2 cm on right upper arm caused by sharp cutting object. 4) Incised wound with skin cut, mussel cut, bone cut and protruding 5 cm x 3 cm x 3 cm on left wrist caused by sharp cutting object. 5) Incised wound 2 cm x 1 cm x 1 cm on left index finger caused by sharp cutting object. 6) Incised wound 5 cm x 2 cm x 1 cm on left middle finger caused by sharp cutting object. 5) Incised wound 2 cm x 1 cm x 1 cm on left index finger caused by sharp cutting object. 6) Incised wound 5 cm x 2 cm x 1 cm on left middle finger caused by sharp cutting object. 7) Incised wound 4 cm x 2 cm x 1 cm on left ring finger caused by sharp cutting object. 8) Incised wound 3 cm x 1 cm x 1 cm on right thenary caused by sharp cutting object. . 9) Incised wound, bone cut 5 cm x 3 cm x 3 cm on left scapular region caused by sharp cutting object. Dr. Sanjay Sharma advised X-ray of right upper arm, left wrist, left hand, left knee and leg and left scapular region. In the opinion of doctor duration of injuries was within six hours. Makhanlal (PW-1) 1) One incised wound, bleeding 3 cm x 1 cm x 1 cm on left little finger caused by sharp cutting object. 2) Incised wound, bleeding 2 cm x 1 cm x 1 cm on left little finger caused by sharp cutting object. 3) Incised wound, bleeding 2 cm x 1 cm x 1 cm on left right finger caused by sharp cutting object. 4) Lacerated wound ½ cm x ½ cm on left little finger caused by hard and blunt object. 5) Lacerated wound 1 cm x ½ cm on right parietal region caused by hard and blunt object and advised X-ray. Injury No. 5 was opined to be simple. Regarding injury Nos. 1 to 4 be referred for X-ray report. 16. Dr. Sanjay Sharma also answered to the queries put to him by the police vide Exhibit-P/35. He specifically stated in Court that injuries Nos. 4 and 9 sustained by Tolaram were dangerous to life and they could have caused death if no medical aid was given to him. Tolaram remained hospitalized from 12-11 -96 to 8-12-96 as already discussed (sic) the statement of (PW-7) Pradip Bhargav. The above medical evidence is sufficient to establish that Tolaram suffered as many as nine injuries out of which eight were incised injuries and one was lacerated wound and their dimensions were quite long. He suffered fracture under knee. (PW-1) Makhan also suffered three incised injuries and two lacerated injuries. Lacerated injuries was on right parietal region whereas Kasturibai suffered one lacerated wound and one abrasion. 17. The same Dr. He suffered fracture under knee. (PW-1) Makhan also suffered three incised injuries and two lacerated injuries. Lacerated injuries was on right parietal region whereas Kasturibai suffered one lacerated wound and one abrasion. 17. The same Dr. Sanjay Sharma (PW-7) medically examined the appellant-Vikram and found one incised injury on his fronto-parietal region. MLC report is vide D/4. The appellant-Raisingh suffered no external injury but on pressing of left thumb, he was feeling pain. His MLC report is Exhibit D/5. Deceased Nanuram suffered one abrasion on left parietal region. His MLC report is Ex-hibit-D/6. So according to doctor, the appellant-Vikram suffered one injury. Deceased accused-Nanuram also suffered one injury. No injury was found on the person of the appellant-Raisingh. Dr. Sharma has also specifically stated in cross-examination in paragraph 13 that accused-Nanuram died after 14 days from the date of his examination by him and he could not assign reason as to his cause of death. It is pertinent to mention here that defence has not filed postmortem report of Nanuram to establish "whether accused-Nanuram suffered any grievous injury or serious injury though the whole record of the counter case vide Sessions Trial No. 100/97 was available in the same Court" and medical reports of all the three vide Exhibits-D/4, D/5 and D/6 were exhibited in the said Court. True copies whereof were filed in this case vide D-4/C, D-5/C and D-6/C. Under these circumstances, the injuries sustained by the deceased appellant-Nanuram and Vikram can be considered as simple in nature and non-explanation of their injuries by the prosecution would not cause any dent to the prosecution case. All the injured witnesses in total suffered 16 injuries out of which 11 injuries were caused by hard and sharp edged weapon and rest of the injuries were caused by hard and blunt object whereas accused-party consisting three suffered only two injuries. One caused by sharp edged weapon and another by hard and blunt object. All the injured witnesses in total suffered 16 injuries out of which 11 injuries were caused by hard and sharp edged weapon and rest of the injuries were caused by hard and blunt object whereas accused-party consisting three suffered only two injuries. One caused by sharp edged weapon and another by hard and blunt object. The incident occurred in the month of November in the evening at 6.15 p.m., at that time there could be darkness and place of incident was the agriculture field of Tolaram where there was no source of any light, at least no evidence is available in this regard, therefore, when Tolaram was attacked by the three accused-persons by their respective weapons, at that time (PW-1) Makhan reached first in time, he was also assaulted, thereafter, Kasturibai reached and on her intervention she was also assaulted. (PW-1) Makhan and Tolaram (PW-2) could miss to see injury on the person of the appellants because of darkness and Kasturibai (PW-3) later on reached and she admitted of presence of injury on the person of accused and those injuries could have been caused prior to her reaching, therefore, she could not state as to how the appellant-Vikram and deceased accused-Nanuram sustained injuries. 18. (PW-10) Station House Officer/Investigating Officer Akhilesh Dwivedi proved memorandum and seizure memo regarding recovery of sword and lathi from the possession of the accused-persons, but in FSL report Exhibit-P/36 and articles D and E sword seized from the possession of the appellant-Raisingh and Vikram, simple blood was found and same was disintegrated according to serologist report Exhibit-P/37, therefore, blood group could not be determined. Hence in absence of human blood and blood group tallying with blood group of the injured prosecution witnesses, the recovery of weapon is of no consequence. The Investigating Officer has also proved spot map Exhibit-P/38. He simply proved the map vide Exhibit-P/38 and according to contents of this map, it was prepared at the instance of Pavitrabai wife of Makhan who has not been examined by the prosecution, therefore, the contents of this map cannot be read as evidence being the statement of Pavitrabai recorded as per provision of S. 161 of the Cr. P. C. And same can be used as per provision of Section 162 of the Cr. P. C. to impeach the credibility of this witness. P. C. And same can be used as per provision of Section 162 of the Cr. P. C. to impeach the credibility of this witness. In cross-examination, Investigating Officer has admitted that in the spot map Exhibit-P/ 38, he had not mentioned as to who was in possession of the place of incident. In the map, place of incident is shown as field of Tolaram known as Khalawala Khet but this cannot be read and considered being hit by provision of Section 162 of the Cr. P. C. Apart from this injured witness (PW-2) Tolaram and Vikram and Kasturibai have specifically stated that incident occurred in their field. Tolaram is the only witness regarding commencing of the incident. He stated that he was alone in his field at that moment, all the three appellants reached over their having sword and lathi and started abusing and assaulting him, thereafter, Makhan and Kasturibai hearing his cry reached there. Defence has not given any suggestion to all the three witnesses that the incident did not take place in the field of Tolaram or any their field and same had occurred in their field. 19. In view of the aforesaid discussion, this Court is of the considered opinion that there is clear, cogent and unambiguous evidence available in the record beyond reasonable doubt, especially, that the appellants committed criminal trespass on the land of complainant party and assaulted Tolaram, Makhan and Kasturibai. They were aggressor, therefore, they cannot get any benefit of right of private defence of their person. 20. In the result, the instant appeal having no merit is hereby dismissed. The appellants are on bail. They are directed to appear before the Trial Court on 24th October, 2007 and upon their surrender, the Trial Court shall send them to jail for serving remainder part of jail sentence. Upon failure of the appellants to appear on a given date, the Trial Court is directed to take suitable legal action against the appellants and their surety, under intimation to this Court. 21. Office is directed to send a copy of this order along with record of the Trial Court for immediate compliance to the Trial Court. Appeal dismissed.