JUDGMENT 1. - The accused-appellants Sampat Ram, Ramdhan, Asa Ram, Sardararam and Mangla Ram have filed this appeal under Section 374(2) Cr.P.C. against the judgment dated 15.9.1983 passed by Additional Sessions Judge, Nagaur in Sessions Case No.25/1982 by which accused Sampat Ram has been convicted and sentenced for the offence under Sections 302 and 147 I.P.C. and rest of the accused namely Ramdhan, Asa Ram, Sardararam and Mangla Ram have been convicted and sentenced for the offence under Sections 302, 149 and 147 I.P.C. The accused Sampat Ram has been sentenced to undergo life imprisonment for offence under Section 302 I.P.C. and to pay a fine of Rs.100/-; in default of payment of fine to further undergo 1 month rigorous imprisonment. He was also sentenced to undergo 2 years rigorous imprisonment for offence under Section 147 I.P.C. and to pay a fine of Rs.100/-; in default of payment of fine to further undergo 1 month rigorous imprisonment. All other accused namely Ramdhan, Asa Ram, Sardararam and Mangla Ram have been sentenced to undergo 2 years rigorous imprisonment for offence under Section 147 of the I.P.C. and to pay fine of Rs.100/-; in default of payment of fine to further undergo 1 month rigorous imprisonment. They were also sentenced to undergo life imprisonment for offence under Section 302/149 of the I.P.C. and to pay fine of Rs.100/-; in default of payment of fine to further undergo 1 month rigorous imprisonment. All the sentences were ordered to run concurrently. The trial court acquitted all the appellants alongwith one accused Bhinvraj for the offence under Section 120-B I.P.C. 2. Briefly stated the facts of the case are that on 21.5.1982 at about 11.30 p.m. Lala Ram lodged an oral report stating inter-alia that at about 4.00 p.m., he went to his field and while returning from his field at about 8.30 p.m., he stayed at piao of Padma Ji for water and smoking, he saw Bhagirath R/o Tausar was ploughing his field through tractor driven by Ram Karan. Beside him, one child was also sitting there on the tractor, whose name is not known. At about 9.00 p.m., while sitting at piao, he saw Mangla Ram, Ramdhan, Sampat Ram, Asha Ram, Sardara Ram and one more person armed with 'lathis' and 'kashi', by forming unlawful assembly entered into the field of Bhagirath. He identified all persons in the light of tractor. At about 9.00 p.m., while sitting at piao, he saw Mangla Ram, Ramdhan, Sampat Ram, Asha Ram, Sardara Ram and one more person armed with 'lathis' and 'kashi', by forming unlawful assembly entered into the field of Bhagirath. He identified all persons in the light of tractor. Mangla Ram came in front of the tractor and got it stopped, Bhagirath having shined down from tractor and when threw chilly powder towards the accused, Sampat Ram at that moment inflicted 'kashi' blow on the head of Bhagirath. Bhagirath immediately fell down and treating him to be dead, all the accused persons ran away. He went on the spot. The accused persons threatened him to kill. He remained seated there for an hour on the spot, but nobody appeared. The dead body of Bhagirath was lying in the field. 3. On this information initially the case was registered under Sections 302, 147, 148, 149 and 447 I.P.C. After investigation, the police filed challan against all these accused-persons along with one more Bhivraj for the offence under Sections 147, 148, 149, 302 and 120-B I.P.C. 4. The accused-persons denied the charges levelled against them. The prosecution in all produced 16 witnesses and also produced documentary evidence Exhibit-P/1 to Exhibit-P/3. The accused Sampat Ram in his statement under Section 313 Cr.P.C. pleaded that the land was in his possession and he ploughed the field and Girdhawari is in his name. A case under Section 91 of the Tenancy Act was registered against him. Under the pressure of police, the witnesses have deposed against them. 5. The learned trial court after going through the entire evidence oral as well as documentary, hold guilty all the accused-persons for the offence charged and punished them as aforesaid. 6. Both the parties were heard. The entire record was gone through. 7. The learned counsel for the accused-appellant pleaded that as per record there are two khasaras bearing No.596 and 601. Khasara No.596 belongs to the complainant party and Khasara No.601 is large one, out of which some bighas are in possession of the accused-appellants. The field was already ploughed by the accused-persons and the complainant party when encroached upon the possession on the said field by force, which was objected by the accused-persons. Khasara No.596 belongs to the complainant party and Khasara No.601 is large one, out of which some bighas are in possession of the accused-appellants. The field was already ploughed by the accused-persons and the complainant party when encroached upon the possession on the said field by force, which was objected by the accused-persons. Initially, the case was registered under Section 447 I.P.C. also, but after finding, land in question in possession of the accused, the police after investigation, dropped the charge under Section 447 I.P.C. The accused-persons have every right to defend their possession against any one except true owner. The said field was already ploughed by the accused-persons, so by defending their own possession they have committed no offence. Besides this, the informant Lala Ram on which learned trial court has relied has turned hostile and his evidence should not have been relied on because in one breath he say something and in the next he denied the statement. Somewhere he say that he has not seen any occurrence and on the other side he stated that the incident was seen by him but in next breath he stated that the accused-persons are also not identified. He also resiles from his previous statement recorded under Section 164 Cr.P.C. Overall its testimony is totally false and by relying on his evidence, learned trial court has committed illegality. More so, as per statement of Lala Ram one child was also sitting on the tractor but he is not aware about the name of that child witness, but that child turned out to be Ram Ratan stout person, whose name has not mentioned in the FIR and he is also not from the same vicinity and from another village, Ram Ratan has also not corroborated about the occurrence of incident. PW-4 Ram Karan's conduct who was driving the tractor at the relevant time is in all circumstances is beyond normal human conduct. He straightway went to his house on tractor after the incident and never reported the matter to anybody. The incident took place in dark night and Lala Ram could not have seen occurrence while sitting in piao in dark. He straightway went to his house on tractor after the incident and never reported the matter to anybody. The incident took place in dark night and Lala Ram could not have seen occurrence while sitting in piao in dark. Considering all, while the learned counsel pleaded that the prosecution testimony has not proved the guilt charge against the accused beyond reasonable doubt, moreover, the accused persons have a right of private defence to defend their possession against all except true owner. The prosecution has utterly failed in proving the charge against the accused-persons because there are material contradictions, discrepancies, infirmities which cast serious doubt about their presence at the time of incident. When there is doubt the benefit of which should always go to the accused-persons and the learned trial court while relying on the uncorroborated testimony has committed illegality and the accused-persons deserve to be acquitted. 8. Per contra, learned Public Prosecutor pleaded and supported the judgment of the learned trial court and argued that if the testimony of Lala Ram is discarded still the prosecution has produced PW-4 Ram Karan and PW-5 Ram Ratan and both these eye-witnesses have supported the prosecution story by corroborating each others statements. The testimony of hostile witnesses cannot be treated as effaced from the record and can be relied upon in part. Learned trial court after relying on the evidence of all these witnesses has rightly convicted and sentenced the accused-persons. Moreso, the possession over the disputed land has not been proved to be of the accused-person. So no question of right of private defence of property is available to the accused-persons. 9. By the prosecution only three eye-witnesses PW-3 Lala, PW-4 Ram Karan and PW-5 Ram Ratan have been produced. It is admitted that the time of occurrence was in between 8-9 p.m. and the night was dark, no test identification was conducted during investigation, the accused-persons are strangers to the witnesses. 10. 9. By the prosecution only three eye-witnesses PW-3 Lala, PW-4 Ram Karan and PW-5 Ram Ratan have been produced. It is admitted that the time of occurrence was in between 8-9 p.m. and the night was dark, no test identification was conducted during investigation, the accused-persons are strangers to the witnesses. 10. PW-3 Lala's statement if seen, it can safely be said that he is not a reliable witness as in chief he had stated that : " djhc 5-10 feuV ckn jksyk gqvk] eSaus rks dqN ugha ns[kkA Again eSa igpkurk ugha gwa fd ekjus okys ;gka gS ;k ughaA os yksx HkkxhjFk ds /kM+k/kM+ ekj jgs FksA Further he has stated that : izn'kZ ih08 iqfyl c;ku esa eSaus mUgsa igpkuuk ugha fy[kk;kA yky fepZ HkkxhjFk ds ikl FkhA vfHk;qDr dh vksj mNkyh ugha fy[kk;kA In cross-examination he admitted as under : jkr 9 cts FksA eSaus dqN Hkh ugha ns[kkA Fkkus ij dbZ ekyh cSBs gq, Fks] muds dgus ls izn'kZ ih0 2 o izn'kZ ih0 8 izn'kZ ih0 9 esa vfHk;qDrx.k ds uke fy[kk;s FksA ;g lgh gS fd vfHk;qDr eaxykjke] vklkjke] ljnkjk] lEir o jke/ku u rks [ksr esa vk;s vkSj u bUgksaus HkkxhjFk ds lkFk ekjihV dh vkSj u gh ?kVuk ds le; eSaus budks ns[kkA " 11. If such type of statement as given by PW-3 Lala Ram, if given effect to, certainly it would cause miscarriage of justice. Lala Ram is not a trustworthy witness and seems to have been implanted as eye witness by the prosecution and cannot be relied on. Learned trial court has committed a serious mistake on relying this witness. His testimony can safely be discarded. 12. Now remains another eye-witness PW-5 Ram Ratan, who is stranger to the accused-person and resident of another village Basada which is 8-10 kms. away from Village Tausar the place of occurrence. The accused-persons are not known to him. Ram Ratan has denied the allegation of throwing powder of chilly by Bhagirath towards accused Sampat whereas the site memo Exhibit-P/3 reveals that from the place of occurrence powder of chilly was recovered and deceased was having a plastic bag in which powder of chilly was available. Throwing powder of chilly is completely denied by this witness. No identification parade was conducted and the accused-persons were not known before and he has not seen them prior to occurrence. Throwing powder of chilly is completely denied by this witness. No identification parade was conducted and the accused-persons were not known before and he has not seen them prior to occurrence. How this witness is naming all the accused-persons in such circumstances is not believable. There are material contradictions. In the statement given during trial and recorded during investigation under Section 161 Cr.P.C. He even has denied that field was already ploughed whereas the other witness PW-4 Ram Karan who was tractor driver has admitted that the said field was already ploughed. He has admitted that there was pitch dark at the time of occurrence. In such state of affairs it could not have been possible for this witness to identify and named all the accused-persons. As per his statement, he has been hired by Bhagirath to accompany because Bhagirath was apprehending some dispute which could be conceived during plough of field so his testimony can also safely be discarded and cannot be relied on. 13. Now the third eye-witness PW-4 Ram Karan remains who has already stated that the accused-persons were not in front of tractor light. This witness is also not resident of Village Tausar but resident of Atiyasan which is 3-4 kms. Away and who is also not known to the accused-persons and his statement is also having material contradiction and omission between statement deposed before the Court and statement recorded during investigation. He has also denied about the presence of powder of chilly in the hand of Bhagirath and throwing the same towards accused and except accused-Sampat he is not aware that who inflicted the other injury on the person of deceased. His conduct is most unnatural because after incident, he immediately left and went to his village. No information whatsoever about this incident was given by him either to police or anybody else. He has also admitted that he has faced many criminal cases. When there is material contradiction, omission and discrepancy in the statement recorded during trial and police statement, then without any corroboration it is not safe to rely on the statement of such type of witness. All the eye-witnesses have not corroborated the statements of each other and it seems that the witnesses are planted and tutored one. The conduct of PW-4 Ram Karan is also against normal human behaviour. All the eye-witnesses have not corroborated the statements of each other and it seems that the witnesses are planted and tutored one. The conduct of PW-4 Ram Karan is also against normal human behaviour. The learned trial court after relying on such type of witnesses if convict the accused, commits a serious mistake, irregularity and illegality as the produced witnesses are unsafe for conviction. The witnesses are mostly unreliable, untrustworthy have material contradictions, omissions and lacks corroboration. All these facts resultantly cast a serious doubt, the benefit of which, should go to the accused. 14. Initially the case was registered under Section 447 of the I.P.C., but during investigation when it was found that the possession of field was of accused Sampat, who had already ploughed the field, the charge under Section 447 of the I.P.C. was dropped by the police. The complainant party is intruder and trespasser. The accused party has right of private defence of property and has right to protect the possession. Since the prosecution has failed to prove the charges against the accused-persons beyond reasonable doubt, the case of right to defend the property of the accused is not discussed. 15. From all these above discussion, it is found that the witnesses produced are planted and concocted and not supported each other's statement. There are material contradictions, omission in the statements given in the Court, under Section 161 Cr.P.C. and also under Section 164 Cr.P.C. Even the statement of Ram Karan under Section 164 Cr.P.C. was recorded before his statement under Section 161 Cr.P.C. were taken. The 'kashis' which is recovered at the instance of accused-Sampat does not bear the blood stains on it. The possession over the field was not of complainant party. Cumulative effect of all these circumstances goes to show that the prosecution has failed to prove the case against the accused-persons beyond any reasonable doubt. The benefit of which should go to the accused-persons, the appeal deserves to be allowed. 16. Accordingly, the appeal is allowed. The conviction and sentence against accused-appellants passed by the learned Additional Sessions Judge, Nagaur is set-aside. The accused-appellant Sampat is acquitted for the offence under Sections 302 and 147 I.P.C. and rest of the accused-appellants namely Ramdhan, Asha Ram, Sardararam and Mangla Ram are acquitted for the offence under Sections 302/149 and 147 I.P.C. They are on bail, their bail-bonds stand cancelled.Appeal allowed. *******