JUDGMENT Honble Mrs. Poonam Srivastav, J.—All the five appellants have been convicted in Session Trial No. 220 of 1980, State v. Mahendra Singh and four others vide judgment and order dated 12.2.1982 passed by the VIIIth Additional Sessions Judge, Azamgarh. The appellant Jainath Singh is now dead and his appeal stands abated vide order dated 25.11.2009. All the appellants Om Prakash, Mahendra Singh, Rajendra Singh, Sheo Nath and Jainath are convicted under Sections 307/149, I.P.C. and sentenced to five years R.I. Appellants Mahendra Singh, Om Prakash and Rajendra Singh have been convicted under Section 147 and sentenced to one year R.I. The appellant Jainath Singh (now deceased) and Sheonath Singh have also been convicted under Section 148, I.P.C. and sentenced to one year R.I. All the sentences are directed to run concurrently. 2. The occurrence is alleged to have taken place on 24.6.1977 at 8.00 A.M. in village Daulasepur, Police Station Mau, District Azamgarh F.I.R. was lodged on the same day at 9.40 A.M. by PW-1 Rampati Yadav. 3. The prosecution case in brief is that one Jai Singh, maternal uncle of accused Jainath was the owner of plot No. 192 situated in village Daulasepur. About one and half months prior to the occurrence in question, Jai Singh had transferred the said land to complaint Rampati. Before exeution of the sale deed accused Jainath Singh, maternal uncle of Jai Singh used to cultivate the said plot No. 192 on Batai. Accused Jainath Singh wanted to usurp the said plot but Jai Singh did not want to transfer it and accused Jainath Singh stopped supply of produce from his land given on Batai. There upon Jai Singh executed a sale deed in favour of complainant Rampati. Accused Jainath Singh became annoyed with the complainant and thereby said that he would not allow the complainant Rampati to plough and cultivate the said plot and also a case of mutation was pending before the Revenue Authorities and another civil Courts for cancellation of sale deed between the parties. 4. On 24.6.1977 at about 8.00 A.M. accused Jainath Singh, illegally encroached upon the said land and started to plough. 4. On 24.6.1977 at about 8.00 A.M. accused Jainath Singh, illegally encroached upon the said land and started to plough. When this came into notice of Rampati complainant, he went there and asked accused Jainath Singh to refrain himself from doing such illegal acts and thereupon the accused Mahendra Singh armed with lathi, Om Prakash armed with knife, Rajendra Singh being armed with a gun and Sheonath, arrived and on exhortation of accused Jainath Singh, his companions with an intention to kill Rampati assaulted. Accused Jainath Singh, Mahendra Singh, Om Prakash belaboured Rampati and caused injuries with lathis and knives. On receiving injuries Rampati fell down on the ground and accused Mahendra Singh and Om Prakash Singh inflicted knife injuries on complainant Rampati and that on raising alarm the villagers Jatiram, Ramdhani, Jamuna, Harashu and several others had arrived on the spot, in the meantime accused Rajendra Singh fired two shots with his gun which missed its target and after seeing large number of villagers, the assailants managed to escape. 5. Investigation of the case was entrusted to A.S.I. Ramjanam Giri, who recorded statement of the witnesses and thereafter arrived at the place of occurrence. On pointing out of the witnesses, site plan Ex. Ka-5 was prepared. He also went in search of the accused persons but they were not found at their houses. Thereafter he received the injury report and after completing the investigation, charge sheet Ex. Ka-6 was submitted against the accused persons. 6. The accused have denied that they did commit any such offence. They have attributed their false implication in the case on account of enmity and litigation. They have conceded that the complainant Rampati is the owner of plot No. 192 but they used to plough plot No. 191 and 192 both before the occurrence and on the date of occurrence they were ploughing the same and witnesses have deposed against them on account of cross case pending against them. 7. The prosecution examined Rampati PW-1, Jamuna PW-2, Jatiram PW-3 and Dr. A.U. Khan PW-4. 8. In defence one copy of statement of Dr. G.C. Upadhya Ex. Kha-1, one copy of F.I.R. Ex. Kha-2 and a copy of chik Ex. Kha-3 have been filed in the case. 9. On 24.6.1977 at 12.10 P.M. Dr. A.U. Khan examined the injured Rampati and found the following injuries on his person. 1. Lacerated wound 5.1/2 Cm. 8. In defence one copy of statement of Dr. G.C. Upadhya Ex. Kha-1, one copy of F.I.R. Ex. Kha-2 and a copy of chik Ex. Kha-3 have been filed in the case. 9. On 24.6.1977 at 12.10 P.M. Dr. A.U. Khan examined the injured Rampati and found the following injuries on his person. 1. Lacerated wound 5.1/2 Cm. x 1/2 cm. x scalp deep on the top of the skull 12 cm above the left ear. 2. Incised wound 3 cm. x 1 cm. x 3 cm deep on left side back of chest 6 cm below the left side from the yertoboal proxalmmary medial border of the left scapula. 3. Incised wound 2 cm. x 2.1/2 cm. x 1 cm. x 3.1/2 cm. on the mid line back of chest 13.5 cm. below the injury No. 2. Kept under observation Advised X-ray. 4. Lacerated wound 1.1/2 cm x 1/2 cm on the medial and of the right upper lip. 5. Contusion 10 cm. 2 cm on the right side of chest 4.1/2 cm above from right nipple. 6. Contusion 10 cm. x 8 cm on the top of right shoulder going upward. 7. Lacerated wound 1 cm. x 1/2 cm on the medial border of the lower half of the right fore-arm. 8. Lacerated wound 2.1/2 cm. x 1/2 cm. x 1/2 on the tip of the right little finger. 9. Contusion 23 cm x 11 cm on the front of right thigh directed left side. 10. Contusion 5 cm x 2 cm on the front of left thigh lower part. In the opinion of the doctor, the injuries were caused by lathis and knives and the duration of the injuries was fresh and further in the opinion of the doctor the injuries were caused on the same date at about 8.00 A.M. Ex. Ka-2 is the injury memo on record. 10. Sri Satish Trivedi, Senior Advocate assisted by Sri U.B. Singh Advocate have appeared on behalf of the appellants and learned A.G.A. for the State. 11. The first submission is that four appellants out of 5 have also received injuries in the incident which was proved in the cross version but this Court had issued summons to Dr. G.C. Upadhyay, Medical Officer, District Hospital, Azamgarh for recording his statement as DW-1 as the injuries on the side of the accused were not proved. 11. The first submission is that four appellants out of 5 have also received injuries in the incident which was proved in the cross version but this Court had issued summons to Dr. G.C. Upadhyay, Medical Officer, District Hospital, Azamgarh for recording his statement as DW-1 as the injuries on the side of the accused were not proved. Doctor was present in the Court on 14.9.2009 and thereafter on 13.11.2009. On the said date, statement of Dr. G.C. Upadhyay was recorded and he has proved the injuries on the side of the appellants. The statement of Dr. G.C. Upadhyaya is quoted below : “I Dr. G.C. Upadhyaya, do hereby solemnly affirm and state in the name of the God that I was appointed as Medical Officer, in District Hospital, Azamgarh, in the year 1977, where I was on emergency duty on 24.6.1977. I examined injuries of Jainath Singh at about 3.00 p.m., Mahendra Singh at about 3.15 p.m., Om Prakash Singh at about 3.30 p.m. and Rajendra Singh at about 3.40 p.m. Injury reports were prepared by me on the said date, which are part of record. I had given statement as PW-4 in the Court of VIIIth Additional Sessions Judge, Azamgarh, in Session Trial No. 221 of 1980.” 12. On the basis of these injuries, argument on behalf of the appellants is that the injuries caused to the injured PW-1 was in exercise of right of private defence and, therefore, the judgment and order of conviction is liable to be set aside. It is also submitted that perusal of the injury report of PW-1 shows that according to opinion of the doctor, all the injuries were simple, save injury No. 3 which was kept under observation. On perusal of the entire record, in absence of any supplementary injury report, it can safely be concluded that no internal damage was caused. It is argued next on behalf of the appellants that admittedly the prosecution has not stated anywhere in his cross examination including PW-1 that there was any intention to cause murder and, therefore, conviction under Section 307, I.P.C. cannot be maintained whatsoever. It is also brought to my notice that the Investigating Officer has not been examined. There is no recovery memo of blood stained earth or blood stained clothes of the injured. It is also brought to my notice that the Investigating Officer has not been examined. There is no recovery memo of blood stained earth or blood stained clothes of the injured. Though according to the prosecution, it is submitted that the incised injury which was kept under observation and, therefore, it is evident that the entire prosecution case is false for want of proof. 13. Learned A.G.A. has disputed each and every argument of the learned counsel for the appellants and placed the F.I.R. as well as examination-in-chief of PW-1 Rampat to substantiate the prosecution case at the very outset that the injuries were caused with an intention to cause death and, therefore, he has vehementally supported the adjudication by the learned Session Judge and conviction of the appellants under Section 307, I.P.C. 14. I have given careful consideration to the arguments advanced on behalf of the appellants as well as the State and have gone through record. It is true that there was a dispute regarding plot No. 192 which was given on Batai previously to the accused Jainath Singh, owned by his maternal uncle Jai Singh. He was in cultivatory possession and subsequently the same was sold to PW-1. On the date and time of occurrence, he had tried to plough the said plot which was objected by Jainath Singh accused and this led to the altercation. A close scrutiny of the evidence of PW-1, two or three points brought to my notice by Sri Satish Trivedi Senior Advocate stands substantiated. 15. Firstly PW-1 who is the single injured person, has not averred in his cross examination that the injuries were caused with an intention to cause death. This also stands corroborated on the basis of the statement of PW-1 that Jainath Singh accused was having his licensed gun but he was also armed with lathi and gun was not used in the incident and, therefore, if there would have been any intention to cause death, licensed arm in possession of the accused Jainath Singh would definitely have been used to cause the injury. 16. The next glaring aspect eloquent from the cross examination of PW-1 is that he admits that he had given blows to the accused but he does not remember that how many blows he had given and simultaneously he admits that he fell down after receiving injuries and became unconscious. 16. The next glaring aspect eloquent from the cross examination of PW-1 is that he admits that he had given blows to the accused but he does not remember that how many blows he had given and simultaneously he admits that he fell down after receiving injuries and became unconscious. Thus it is evident that it was PW-1 who caused the injuries on the side of the accused before he fell down and became unconscious and other witnesses arrived subsequent thereof. The fact that it was PW-1 who was the aggressor cannot be ruled out. It is also evident from the statement of the doctor that there is no supplementary injury report which could be substantiate that PW-1 has received any grievous injury. Besides there being no blood either on the clothes of the first informant or blood stained earth was recovered which lead to an irresistible conclusion, specially in absence of any recovery memo. Investigating Officer has not been examined and, therefore, a number of necessary requirement which was liable to be proved and substantiated is enough for setting aside the judgment of conviction. 17. The admitted case of the prosecution is that the disputed field was in cultivation of the accused Jainath Singh which was sold to PW-1 Rampati but not a single statement has been given as to when and on what date and how accused Jainath Singh was dispossessed from cultivatory possession. It has also come in the statement of PW-2 Jamuna that Jainath Singh was cultivating his field and no sooner did he proceed to plough the adjacent field which was purchased by Rampati, altercation ensued. 18. Sri Satish Trivedi, Senior Advocate has placed reliance on a decision of of the Apex Court in the case of Puran Singh v. State of Punjab, AIR 1975 SC 1674 . Paragraph 11 of the said judgment is quoted below : “11. In this case there was concurrent finding of fact that Jamun was in effective possession of the field on the date of occurrence and the prosecution had alleged that P.Ws. 17 and 19 had taken possession of the property but the finding of the Court was that P.Ws. 17 and 19 had not been put in possession by virtue of the delivery of possession given by the Court. It was against this context than the observations referred to above were made. 17 and 19 had taken possession of the property but the finding of the Court was that P.Ws. 17 and 19 had not been put in possession by virtue of the delivery of possession given by the Court. It was against this context than the observations referred to above were made. This Court dearly pointed out that where a trespasser was in settled possession of the land he is not entitled to be evicted except in due course of law and he is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him. The only condition laid down by this Court was that the possession of the trespasser must be settled possession. The Court explained that the settled possession must be extended over a sufficiently long period and acquiesced in by the true owner. This particular expression has persuaded the High Court to hold that since the possession of the appellants party in this case was only a month old, it cannot be deemed to be a settled possession. We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the words ‘settled possession’ nor is it a ritualistic formula which can be confined in a strait-jacket but it has been used to mean such clear and effective possession of a persons, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes : (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and them true owner will have no right of private defence. These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram’s case. AIR 1968 SC 702 :1968 Cri LJ 806 (supra). 19. The next decision relied upon by learned counsel for the appellants is Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs., AIR 2004 SC 4609 . This decision is in support of his contention that if a person is in settled possession has to be protected. This citation pertains to a decision on temporary injunction. 19. The next decision relied upon by learned counsel for the appellants is Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs., AIR 2004 SC 4609 . This decision is in support of his contention that if a person is in settled possession has to be protected. This citation pertains to a decision on temporary injunction. On the basis of this decision, learned counsel for the appellants has tried to advance his argument that since admitted position is that the appellant Jainath Singh was in cultivatory possession and this position continued even subsequent to the sale deed in favour of the first informant, if he was ploughing the field and PW-1 tried to stop him and caused the first assault, the appellants had every right to defend himself and injuries were caused only in self defence. 20. The next decision relied upon by learned counsel for the appellants is, Hanumantappa Bhimappa Dalavai and another v. State of Karnataka, JT 2009 (4) SC 634 which deals with right of private defence and to substantiate that right of private defence is a question of fact to be determined on the facts and circumstances of each case. The submission is that an accused taking plea of right of private defence is not required to call evidence, he can establish his plea by reference to circumstances transpiring from prosecution evidence itself. 21. Learned A.G.A. on the contrary has cited three decisions of the Apex Court in support of his argument. The first decision is Hare Krishna Singh and others v. State of Bihar, AIR 1988 SC 863 where it was held that non explanation of the injury on the side of the accused is not necessary in each and every case and the prosecution has not required to explain each and every injury sustained by the accused, it cannot be said to be an invariable rule that the prosecution has to necessarily substantiate and explain the injuries, if caused to the accused as well in the incident. The other decisions relied upon by the learned A.G.A. are Takhaji Hiraji v. Thakore Kubersing Chamansing and others, AIR 2001 SC 2328 and Surendra Paswan v. State of Jharkhand, 2004 (48) ACC 289 (SC). 22. The other decisions relied upon by the learned A.G.A. are Takhaji Hiraji v. Thakore Kubersing Chamansing and others, AIR 2001 SC 2328 and Surendra Paswan v. State of Jharkhand, 2004 (48) ACC 289 (SC). 22. After hearing the learned counsel for the appellants and learned A.G.A. and going through the decisions relied upon by both the learned counsels for the parties, I am not in agreement with the submission made by the learned A.G.A. Though I am in agreement with the principles laid down by the Apex Court that the prosecution is not entitled to explain even minor and superficial injuries but on a close reading of the decisions, it is evident that it was a murder case and the accused had tried to wriggle out of the situation by taking aid of minor injuries on their person. This is not a situation in the instant case. It is clear admission by PW-1 that he had also given blows and also that he had purchased the land which was previously in cultivatory possession of the accused Jainath Singh coupled with the admission that PW-1 had fell down unconscious immediately after receiving injuries, therefore, I am in agreement with the submission of the learned counsel for the appellants. The Apex Court ruled as far back as in the year 1979 in the case of Salim Jia v. State of U.P., AIR 1979 SC 391 , which is quoted below : “It is true that the burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence.” 23. In the circumstances, without taking into consideration the injuries on the side of the appellants and that too four persons have received injuries, the judgment of the learned Sessions Judge is not sustainable. The same Session Judge acquitted the accused in the connected trial in which four persons on the side of the accused have received injuries and convicted the appellants. The judgment is set at naught. The same Session Judge acquitted the accused in the connected trial in which four persons on the side of the accused have received injuries and convicted the appellants. The judgment is set at naught. The judgment dated 12.2.1982 passed by VIIIth Additional Sessions Judge, Azamgarh in Session Trial No. 220 of 1980 is quashed. The appeal is allowed and the appellants are acquitted. The appellants need not surrender. ————