JUDGMENT (Surjit Singh, J.) - Appellants are aggreived by the judgment dated 15.6.2002 of the learned Sessions Judge, Bilaspur, whereby they have been convicted of offence, under Sections 307 read with Section 34 IPC, and sentenced to undergo rigorous impriosnment for a period of three years and to pay a fine of Rs. 3000/- each, in default of payment of fine to undergo rigorous imprisonment for a further period of three months. 2. Case of the prosecution, as emerges from the evidence adduced during trial, may be noticed. There was a person by the name Jainda, who used to live in village Makri, Pargana Baseh, Police Station, Talai, District Bilaspur, H.P. He had no male issue. He had land and cow-shed existing on a portion of that land. PW-1 Ratti Ram, claimed that the land and the cow-shed had been bequeathed to him by Jainda and that he had been in its possession after his death. Appellant Chet Singh, claimed that he being the legal heir, and the chow-shed and after the death of said Jainda, the land and the cow-shed were in his possession. On 4.9.1994, at 3.15 p.m., PW-1 Ratti Ram went to Police Post (City), Bilaspur and lodged report that on that day at 7.30 in the morning, when he went to cow-shed, appellants Chet Singh and Pritam Singh, who were already there in the cow-shed, attacked him with a ‘Drat’ which was wielded by Chet Singh and an axe which was held by Pritam Singh, as a result of which he sustained various injuries and that when he raised alarm his wife PW-2 Savitri Devi and PW-3 ampal came there and on seeing them, the appellants and two other persons, who too had joined the appellants in assaulting him, took to heels. Police got injured Ratti Ram medically examined. Following six injuries were noticed on his person by PW-5 Dr. J. Goswami :- “Injury No. 1. (1) Cut injury 2" long vertically across of occipital region of scalp, bleeding plus. (2) Cut injury 1/2" long extendign laterally from lateral angle of left eye brow, bleeding plus. (3) Cut injury 1" long over left parietal region, bleeding plus. (4) Cut 1/2" long over left fronto parietal region, oozing slight. (5) Local oedema over left fronto parietal region with deep seated tenderness. (6) Multiple contusions back and left arm.” 3. (2) Cut injury 1/2" long extendign laterally from lateral angle of left eye brow, bleeding plus. (3) Cut injury 1" long over left parietal region, bleeding plus. (4) Cut 1/2" long over left fronto parietal region, oozing slight. (5) Local oedema over left fronto parietal region with deep seated tenderness. (6) Multiple contusions back and left arm.” 3. PW1 Ratti Ram, remained in the hospital for 24 days. Out of the abvoementioned six injuries, first three were opined to be dangerous to life and hence grievous. This opinion was given on 19.12.1994 or say 3-1/2 months after the occurrence. On an earlier police request, the doctor had given the opinon that injury No. 1 being on vital part could have caused death if left untreated. On x-ray examination, no fracture was noticed. 4. On completion of the investigation, police challaned the appellants and one more person, named Ramesh Chand, under Sections 307, 323 and 452 IPC. The prosecution examined Ratti Ram, his wife Savitri Devi and also PW3 Ram Pal to prove the incident. As regards the nature of injuries, prosecution examined Dr. J. Goswami. Appellants took the plea that on the fateful day, PW1 Ratti Ram and PW2 Savitri Devi wife of Ratti Ram went to the house of Chet Singh, armed with Drat and Danda and assaulted him and Pritam Singh, who happened to be present there, as a result of which Pritam Singh sustained certain injuries and in the scuffle that had ensued, Ratti Ram sustained some injuries which, according to them, were simple in nature but using the influence of sitting MLA, Ratti Ram managed to remain admitted in the hospital for more than 20 days and procured the opinion that three of the injuries were dangerous to life. 5. Learned trial Court believed the version of the prosecution and discarded the defence version and held the appellants guilty of committing the offence under Section 307 read with Section 34 IPC and convicted and sentenced them, as aforesaid. 6. I have heard the learned Counsel for the appellants as also the learned Deputy Advocate General and gone through the record. 7. 6. I have heard the learned Counsel for the appellants as also the learned Deputy Advocate General and gone through the record. 7. Reasons given by the trial Court for disbelieving the defence plea is that while according to the suggestions thrown to the prosecution witnesses, namely, injured Ratti Ram (PW-1) and his wife Savitri Devi (PW2), the injuried and his wife armed with Drat and Danda went to the cow-shed, which was allegedly in possession of Chet Singh, in his own statement, recorded under Section 313 Cr.P.C., Chet Singh stated that they came at his residence to assault him. Another reason given by the trial Court is that the judgment Ex.DX, relied upon by appellant Chet Singh, in support of his claim that cow-shed was in his possession could not come to his rescue, becuase there is nothing on record indicating that pursuant to the said judgment, he had obtained possession of the said cow-shed from the injured and testimony of PW-3 Ram Pal also shows that the possession of the cow-shed, at the relevant time, was with the injured. 8. View taken by the learned trial Court does not seem to be correct. A reading of judgment Ex.DX, rendered by the Civil Court shows that Chet Singh had filed a suit for declaration that he was owner in possession of the property, which was earlier, owned and possessed by Jainda (deceased). Civil Court decreed the suit and declared that Chet Singh appellant was the owner in possession of the property which was owned and possessed by Jainda (deceased). Now, when Chet Singh appellant was in possession of the suit property, as per this declaration given by the Civil Court, where was the occasion for obtainng the possession of the cow-shed, pursuant to or execution of the decree, possession already being with the appellant, per Civil Court declaration. 9. No doubt, suggestions thrown to the injured and his wife were to the effect that they went to the house of Chet Singh, armed with a Drat and Danda and in his statement, under Section 313 Cr.P.C., Chet Singh stated that they came to his house, but this should not have made any difference, once it is made out from the judgment Ex.DX that Chet Singh was declared to be in possession of the suit land including the cow-shed. The reason is that Chet Singh appellant, had every right to defend his possession and in exercise of that right, he could use as much force as the circumstances warranted. 10. Rampal’s testimony that earlier, the possession of cow-shed was with the injured, but at present it was with appellant Chet Singh, could have also not been used to disbelieve the defence version. Ram Pal was a witness of the prosecution and hence interested in supporting the prosecution case. His oral testimony is contrary to the declaration of the Civil Court. Moreover, Ram Pal (PW3), did not state that at the time of the occurrence, the possession was with the injured. His saying that earlier the possession was with the injured and at present it was with appellant Chet Singh, could not have been stretched to mean that possession was with the appellants only after the occurrence and not prior to that. 11. Evidence on record shows that the appellants did not use more force than required. No doubt, PW5, Dr. J. Goswami, testified that injuries No. 1 to 3 were grievious and were dangerous to cause the death, if timely medical aid was not provided, but she herself has contradicted this testimony by admitting in her cross-examiantion that injuries No. 1 to 3 were superficial. It is not only her cross-examination to this effect which shows that injuries were superficial but the medico-legal report Ex.PW5/A also shows that the injuries were not serious, though injury No. 1 was on vital part, i.e. occipital region on scalp. The reason is that only the length of the injury is given which is 2 inches. Non-mention of its breadth, and depth indicates that depth of the injury was so negligible and that it could not be measured. Further in the MLC Ex.PW5/A, the doctor did not record that the injury was dangerous to life. On 8.9.1994, an application was submitted to the doctor by the investigating officer seeking the opinion, which she gave on that application Ex.PW5/C was to the effect that injury No. 1 was on vital part of the body and if remained untreated, it could have caused death. She did not opine that if timely and specialized treatment was not given it could have proved fatal. She did not opine that if timely and specialized treatment was not given it could have proved fatal. Thereafter another application was submitted on 19.12.1994 and it was on this application that the doctor gave her opinion that injuries No. 1 to 3 were grievous, because there was danger to life and patient was in agony with severe pain for many days. Even then she did not say that without timely and specialized treatment, the injuries could have proved fatal. The cross-examination of the doctor that the injuries were superficial is further corroborated by the fact that there is no evidence to the effect that stitches were applied to treat the injuries. 12. In view of the above stated position, appeal is accepted, judgment of the trial Court convicting the appellants of offence, under Section 307 read with Section 34 IPC, set aside and both the appellants are acquitted. M.R.B. ——————-