JUDGMENT : Mr. Kanwaljit Singh Ahluwalia, J. On 19.5.1999, at 10:00 A.M, the complainant party had gone to, cultivate the land falling within Khasra No. 718 in village Bawari Gopinathi Police Station Govindgarh, Tehsil Chomu, District Jaipur. 2. Anil (PW. 1) in cross-examination has admit that there was a dispute between the complainant party and accused party over a land upon which on the fateful day, they had gone to cultivate the land. It has also come in the evidence that family members of the complainant had come from Arunachal Pradesh and Assam before the occurrence and had gathered for cultivation of the said land. admitly, the parties are embroiled in litigation over the land in dispute. 3. Gajanand (P.W. 2) is father of the complainant Anil (P.W. 1) and deceased Subhash, who died in the occurrence. Bhuramal, father of Gajanand 5 and Suwa Lal were brothers. The land in dispute consisting of 19 bighas and 71/2 biswa was sold by Suwa Lal and his sons to the family of the accused, allegedly along with possession. 4. As per the initial version of the prosecution and finding given by the trial court, site plan prepared and the conclusion drawn by the investigating agency, the occurrence on the fateful day had taken place in old Khasra No. 239 and new Khasra No. 718. 5. Today before us listed are three cases; (1) D.B. Criminal Appeal No. 1570/2007, wherein accused convict for murder have assailed their conviction for offence of murder and other offences. They have also questioned in this appeal sentence awarded by the trial court; (2) S.B. Criminal Misc. Petition No. 310/2001 has been filed to challenge acceptance of "Final Report in negative form and dismissal of protest petition filed by complainant in cross case (3) D.B. Criminal Revision No. 775/2004 has been filed by accused who was summoned as additional accused by the trial court. 6. In the present three cases listed before this court, following questions have been raised : (a) Whether the occurrence had taken place in old Khasra No. 239 and new Khasra No. 718. (b) Who was in possession of Khasra No. 239/718 ? (c) Whether the finding given by the trial court that accused already were in possession of old Khasra No. 239 and new Khasra No. 718, is just and appropriate or calls for the reversal. (b) Who was in possession of Khasra No. 239/718 ? (c) Whether the finding given by the trial court that accused already were in possession of old Khasra No. 239 and new Khasra No. 718, is just and appropriate or calls for the reversal. (d) If the accused party is held to be in possession of the land where the occurrence had taken place, whether the act of the complainant party amounted to criminal trespass or not ? (e) If it is held that the complainant party had committed criminal trespass, within meaning of Section 441 of Indian Penal Code, such criminal trespass is bound to cause annoyance to the accused or not ? (f) If the answer to the above questions is in affirmative, whether right of defence of property in view of grievous injuries suffered by Hanuman Sahai, the appellant No. 1 and apprehension of grievous injury to Jagannath @ Boduram, the appellant No. 2, extend and vest right in the accused party to cause death and injuries to the complainant party or not. (g) Whether the act of one of the family members of the accused party Tejpal to inform the police by lodging complaint (Exhibit-P/49) amount to cessation of right of self defence of property as held by the trial court or not. 7. In order to answer the above questions, we will have to dissect and analyse the evidence led by the prosecution and the defence. Before we make an endeavour to do so, it will be necessary to recapitulate brief facts of the case. 8. The occurrence in the present case, as stated earlier, had taken place on 19.5.1999. In the said occurrence, Subhash s/o Gajanand (PW. 2) died. 5 Seven persons from the side of the complainant, namely Anil (PW. 1), Gopinath Pareek (PW. 3), Ghanshyam Pareek (P.W. 4), Pradeep @ Pinto (P.W. 5), Bhagwan Sahai (P.W. 7), Radhey Shyam Pareek (P.W. 10, who was declared hostile) and Mahendra Kumar (PW. 25) had suffered injuries. On the side of accused, Hanuman Sahai and Jagannath @ Boduram had suffered injuries. 1), Gopinath Pareek (PW. 3), Ghanshyam Pareek (P.W. 4), Pradeep @ Pinto (P.W. 5), Bhagwan Sahai (P.W. 7), Radhey Shyam Pareek (P.W. 10, who was declared hostile) and Mahendra Kumar (PW. 25) had suffered injuries. On the side of accused, Hanuman Sahai and Jagannath @ Boduram had suffered injuries. For causing murder of Subhash and injuries to seven witnesses, the prosecution had sent seventeen persons for the trial, namely Hanuman Sahai, Jagannath @ Boduram, Kailash Chand @ Dabliya, Kalla @ Kalyan Sahai, Sitaram, Om Prakash, Jagan Lal, Badri Prasad, Harphool, Krishna, Shrawan Kumar, Jai Narayan, Ram Singh, Ganpat, Shiv Narayan @ Sonaram, Mahesh Kumar and Tejpal. Out of above said seventeen persons, the trial court on 3.9.2002 had discharged Ram Singh s/o Bhagirathmal and Shiv Narayan @ Sonaram s/o Nolaram. Tejpal s/o Jhoontharam was summoned as additional accused by the trial court after invoking Section 319 Cr.PC. Against the order calling Tejpal as an additional accused, he has preferred D.B. Criminal Revision Petition No. 775/2004. 9. In the cross complaint filed, investigating agency has submitted Final Report in negative form. The trial court accepted the Final Report presented in negative form and had rejected the protest petition filed by one of accused Hanuman Sahai. To assail the said order, Hanuman Sahai has filed S.B. Criminal Misc. Petition No. 310/2001 and the same is also listed before us today. 10. The trial court vide impugned judgment dated 18.8.2007, acquitted Sitaram, Om Prakash, Jagan Lal and Krishna. However, the trial court held that the prosecution has succeeded to prove its case against the accused Hanuman, Jagannath, Kailash Chand, Kalla @ Kalyan, Badri Prasad, Harphool, Shrawan Kumar, Jai Narayan, Ganpat and Mahesh Kumar, for the offences under Sections 147, 323/149, 325/149 and 302/149 IPC. 11. The trial court having convict the appellants for the above said offences, vide a separate order of even date sentenced them as under: U/s. 147 IPC - to undergo six months S.I. and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo additional one month S I. U/s. 323/149 IPC - to undergo three months S.I. and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo additional one month S.I. U/s. 325/149 IPC - to undergo one year S.I. and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo additional one month S.I. U/s. 325/149 IPC - to undergo one year S.I. and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo additional three months S.I. U/s. 302/149 IPC - to undergo life imprisonment and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo additional six months S.I. All sentences were ordered to run concurrently. 12. Aggrieved against their conviction and sentences, ten convict accused namely Hanuman Sahai, Jagannath @ Boduram, Kailash Chand @ Dabliya, Harphool, Kalla @ Kalyan Sahai, Mahesh Kumar, Badri Prasad, Shrawan Kumar, Jai Narayan and Ganpat, have preferred D.B. Criminal Appeal No. 1570/2007. We shall decide the D.B. Criminal Appeal 1570/2007, Cr. Misc. Petition No. 310/2001 preferred by Hanuman Sahai and Revision Petition No. 775/2004 instituted by Tejpal separately but simultaneously. 13. The criminal proceedings in the present case were set into motion on presentation of written report (Exhibit-P/1) by Anil (PW.1) before S.I. Ashok Kumar (P.W.31), who on 19.5.1999 was posted as SHO, Police Station Govindgarh. Ashok Kumar (P.W.31), in his deposition before the court, has stated that on 19.5.1999 at about 2:30 PM, Anil (PW.1) presented the written report (Exhibit-P/1). The true translation of written report (Exhibit-P/1) which led to the registration of the case reads as under: "To Incharge Saheb, Police Station Govindgarh, Sir, It is submitted that today on 19.5.1999, at about 10:00 AM, we had cultivated half share of our khatedari land, which is near our Dhani. Earlier upon this land, possession was of Tejpal Yadav and his family. On coming to know that we have cultivated the land, at about 12:00 p.m, 15-20 persons on four tractors came armed with lathis, Farsis and Kharwaria (a weapon like axe meant to cut wood) etc. At that time, our family was sitting in front of Dhani. They opened the attack by giving an open threat. My uncle Ghanshyam was encircled by Jagannath, Harphool and Kailash and he was assaulted by Farsi and lathi. They made him fall on the ground. Thereafter, Subhash, Bhagwan Sahai, Gopinath, Pintu and Radhey Shyam were caused injuries with lathis and Farsis by Siyaram Yadav, Hanuman Yadav, Kalla, Sivaram, Om Prakash, Dhanna, Kishan, Shrawan, Jai Narayan and Jagan Choudhary etc. Thereafter, accused went towards land already ploughed. They made him fall on the ground. Thereafter, Subhash, Bhagwan Sahai, Gopinath, Pintu and Radhey Shyam were caused injuries with lathis and Farsis by Siyaram Yadav, Hanuman Yadav, Kalla, Sivaram, Om Prakash, Dhanna, Kishan, Shrawan, Jai Narayan and Jagan Choudhary etc. Thereafter, accused went towards land already ploughed. When I intended to escape from the land, Mahesh Yadav gave a blow on my head. They after causing injuries considering our family members to be dead, have decamped from the spot When the occurrence was going on Om Prakash, Kalu, Bheru Gusai etc. of the village arrived and had witnessed the occurrence. Nobody came forward to separate us. In the occurrence besides me, Subhash, Ghanshyam, Bhagwan Sahai, Gopinath. Pintu and Radhey Shyam had suffered serious injuries. They have been taken to the hospital. Action be taken." 14. A perusal of above written report, highlights following facts : (i) The complainant had gone to cultivate the land on 19.5.1999 at 10:00 A.M. (ii) The said land was earlier in possession of family of Tejpal, however, the written report is totally silent as to when the possession from the family of Tejpal came to the complainant party, when and how the family of Tejpal was dispossessed. (iii) In the written report, it is stated that on the disputed land Tejpal and his family members were earlier in possession but so far assignment of injuries to deceased and injured witnesses are concerned, same are attributed to Siyaram Yadav, Hanuman Yadav, Kalla, Sivaram, Om Prakash, Dhanna, Kishan, Shrawan, Jai Narayan and Jagan Choudhary. (iv) That the written report is totally silent regarding presence of Tejpal at the spot and in FIR no specific injury has been attributed to Tejpal. We shall have a quick glance over the medical evidence. 15. Anil (P.W. 1) had suffered one injury which was complaint of pain. He was examined by Dr. Azizuddin Azad (P.W.27) vide injury report (Exhibit-P/37), Gopinath Pareek (PW.3) had suffered 19 injuries, out of which injury no. 6 was grievous. He was examined by Dr. Suman Dutta (P.W.29) vide injury report Exhibit-P/43. Ghanshyam Pareek (P.W.4) had suffered seven injuries and same were noted in injury report Exhibit-P/47 prepared by Dr. Suman Dutta (P.W.29). Pradeep @ Pintu (P.W.5) had suffered four injuries and same were noted in injury report (Exhibit-P/39). He was also examined by Dr. Suman Dutta (P.W.29). He was examined by Dr. Suman Dutta (P.W.29) vide injury report Exhibit-P/43. Ghanshyam Pareek (P.W.4) had suffered seven injuries and same were noted in injury report Exhibit-P/47 prepared by Dr. Suman Dutta (P.W.29). Pradeep @ Pintu (P.W.5) had suffered four injuries and same were noted in injury report (Exhibit-P/39). He was also examined by Dr. Suman Dutta (P.W.29). Bhagwan Sahai Pareek (P.W.7) as per injury report (Exhibit-P/45) had suffered ten injuries. He was also examined by Dr. Suman Dutta (PW.29). Radhey Shyam (P.W. 10) who had not supported the prosecution case had suffered five simple injuries. He was examined by Dr. Suman Dutta (PW.29) vide injury report Exhibit-P/48. Mahendra Kumar (PW.25) who suffered two simple injuries was also examined by Dr. Suman Dutta (P.W.29) vide injury report Exhibit-P/41. The deceased Subhash had suffered one injury on the head along with nine abrasions, bruises and lacerated wounds. Injury No. 1 on the head had proved fatal. Dr. Ashok Mathur (P.W.28) had conduced autopsy vide Post Mortem Report (Exhibit-P/38). 16. From the side of accused, Hanuman was examined by Dr. Azizuddin Azad (P.W.27) vide injury report Exhibit-D/55. He had suffered four injuries. Injury no. 1 was on the head and injury Nos. 3 and 4 were on chest and injury no. 2 was a fracture of right thumb. 17. Jagannath vide injury report Exhibit-D/56 had suffered four injuries. All injuries were simple in nature. 18. The prosecution in all had examined 33 witnesses. Thereafter, the statements of accused were recorded under Section 313 Cr.P.C. The accused in their defence had examined three witnesses. The trial court has assigned much importance to the testimony of Banshidhar (D.W.2). Banshidhar has also stated that the occurrence had taken place at 12:00 noon. This witness stated that at 12:00 noon Hanuman and Jagannath had gone to cultivate their land when deceased Subhash came with tractor along with Gopinath and 15 to 20 other persons. They were armed with lathis and Farsis and they had opened the attack. 19. Out of 33 witnesses examined, Ramkripal (P.W.9) uncle of Anil (PW.1) had submitted a subsequent report (Exhibit-P/7) in which place of occurrence has been shifted. Patwari, Vilas Prasad Meena (PW.11) had prepared the site plan. They were armed with lathis and Farsis and they had opened the attack. 19. Out of 33 witnesses examined, Ramkripal (P.W.9) uncle of Anil (PW.1) had submitted a subsequent report (Exhibit-P/7) in which place of occurrence has been shifted. Patwari, Vilas Prasad Meena (PW.11) had prepared the site plan. Dharmendra Pareek (P.W.16) who was posted as constable had deposed regarding receipt of wireless message at 11:00 AM from Hasteda police post to the effect that there is an apprehension of fight between Yadavs and Pareeks. Kamal Kumar Jain (PW. 17) has not supported the prosecution case and was declared hostile. He has deposed regarding alibi of Tejpal and stated that he was present in the court at the time of occurrence. Surajmal (P.W.18) has been declared hostile to the prosecution. He admit that there was a fight between two parties. Om Prakash Singh (P.W. 19) was then posted as Head Constable at Police Station Govindgarh. He stated that at 11:00 AM he received wireless message that family of Yadav (accused) and Pareek (complainant) are likely to fight. He further stated that Tejpal Yadav had come to Hasteda police post to inform that there is apprehension of fight. Constable Dashrath oingh (P.W.22) supported the testimony of Head Constable Om Prakash Singh (P.W.19). Ramkaran (P.W.24) had witnessed the arrest of the accused. Dayachand (PW.26) had carried various articles to FSL. He has been examined to prove link evidence. Dr. Ashok Mathur (P.W.28) as stated earlier had performed Post Mortem on the body of deceased Subhash. Dr. Azizuddin Azad (P.W.27) examined injured witness Anil (P.W.1) and two accused. Dr. Suman Dutta (PW.29) examined injured witnesses Pradeep @ Pintu (PW.5), Gopinath (P.W.3), Ghanshyam (PW.4), Bhagwan Sahai (P.W.7) and Mahendra (P.W.25). Dr. Basant Kishore Vyas (P.W.33) had conducted radiological examination. These doctors were examined by the prosecution to prove medical evidence. Out of total thirty-three witnesses, remaining witnesses are the eye witnesses of the occurrence. Dr. Suman Dutta (PW.29) examined injured witnesses Pradeep @ Pintu (PW.5), Gopinath (P.W.3), Ghanshyam (PW.4), Bhagwan Sahai (P.W.7) and Mahendra (P.W.25). Dr. Basant Kishore Vyas (P.W.33) had conducted radiological examination. These doctors were examined by the prosecution to prove medical evidence. Out of total thirty-three witnesses, remaining witnesses are the eye witnesses of the occurrence. As stated earlier, besides the injured witnesses, namely Anil (P.W.1), Gopinath Pareek (P.W.3), Ghanshyam Pareek (P.W.4), Pradeep @ Pintu (P.W.5), Bhagwan Sahai Pareek (P.W.7), Radhey Shyam Pareek (P.W.10), Mahendra Kumar (P.W.25), other non-injured eye-witnesses examined by the prosecution are Gajanand (PW.2) father of the deceased Subhash, Manoj (P.W.6) s/o Ghanshyam injured, Kaluram (P.W.8), Ratandeep (P.W.12) son of Bhagwan Sahai, Jagdish Prasad Sharma (P.W. 13), Shiv Kumar Sharma (P.W. 14), Surajmal (P.W. 18) (he was declared hostile to the prosecution), Om Prakash (P.W.21), Taramani (P.W.23) mother of the deceased and Kaluram (P.W.32). 20. All seven questions posed by us are interwoven, therefore, to answer above questions, we will analyse the prosecution case. 21. Anil (PW.1) in the court stated that there was a dispute between them and accused over the land. Accused intended to take possession over the land and uncle Ramkripal (PW.9) is more aware about the nature of the dispute. It will be apposite here to reproduce the following portion of the witness statement as under :- ^^tehu dk eqyfteku ls fookn FkkA gekjh tehu ij ;s yksx dCtk djuk pkgrs FksA bldh T;knk tkudkjh esjs pkpk jked`iky dks gSA** 22. Anil (P.W.1) further stated that he and his brother Subhash had come from Arunachal Pradesh along with his four uncles with whom they used to work. The exact words of the witness as under :- ^^eSa o esjk HkkbZ lqHkk"k v:.kkpy izns'k esa esjs pkjksa pkpkvksa ds lkFk dke djrs FksA fjiksVZ ntZ djokbZ ml le; eSa iwjs gks'k esa FkkA fjiksVZ izn'kZ ih&1 dk Hkkx lh ls Mh xyr fy[kk gS tks eq>s Fkkusnkj us /kedh nsdj fy[kokbZ Fkh] [kqn dgk fd mlus dgk fd og ,e0,y0,0 jgk gSA** 23. On specific question asked, this witness (Anil P.W.1) stated that he is not aware whether the occurrence had taken place in old Khasra No. 239 and corresponding new Khasra No. 718. On specific question asked, this witness (Anil P.W.1) stated that he is not aware whether the occurrence had taken place in old Khasra No. 239 and corresponding new Khasra No. 718. The witness stated as under: ^^fookfnr [ksr dk [kljk uEcj iqjkuk 239 vkSj u;k 718 gks rks eq>s irk ughaA mDr [kljk uEcj 718 guqeku ds [kkrsnkj esa gks rks eq>s irk ugha gSA ;g xyr gS fd >xM+k gekjs [ksr esa ugha gqvk gks vkSj [kljk uEcj 718 guqeku ds [ksr esa >xM+k gqvk gksA gekjs dPps edkuksa ds lkeus okys [ksr okyh tehu ij gekjk gCtk ugha gks vkSj 1983 ls eqyfteku dk dCtk gks ;g ckr xyr gSA** 24. This witness admit that they were having dispute with the family of the accused since 1985-86 and he had come few days before from Arunachal Pradesh, where he had gone to earn his livelihood since 1988. This witness further stated that their house is at distance of 100-150 yards from the field. 25. From the perusal of the written report (Exhibit-P/1) on the basis of which FIR was recorded, it is apparent that the complainant had stated therein that they had gone to cultivate the field which was earlier in possession of family of Tejpal and accused party came there at 12:00 PM. The complainant intended to wriggle out of the written report by alleging that the written report (Exhibit-P/1) was not recorded at his instance and same was manipulated by the Investigating Officer at the behest of Tejpal, who was an Ex-MLA. This witness was asked whether he had complained against the conduct of the Investigating Officer, the witness replied in negative. The witness stated as under:- ^^eSaus Fkkus ij fjiksVZ fy[kdj ugha nh Fkh vkSj u gh Fkkusnkj ds ekWaxus ij eSaus nh Fkh [kqn dgk fd tcjnLrh djds eq>ls fy[kokbZ FkhA vyx ls eSaus ;g ckr fy[kdj iqfyl ds mPp vf/kdkfj;ksa dks ugha fn;k fd eq> ls tcju fjiksVZ Fkkusnkj th us fy[kokbZ gSA esjh f'kdk;r ij gh rQ~rh'k ,Mh'kuy ,l0ih0 lkgc us vius ikl yh FkhA eSaus mudks fyf[kr esa rQ~rh'k cnyus dh izkFkZuk ugha dh Fkh c;kuksa esa gh crk;k Fkk fyf[kr ls vxj nh gks rks eq>s vkt ;kn ugha gSA fjiksVZ ntZ djkus ds 2&3 fnu ckn gh rQ~rh'k cnyus ds fy, f'kdk;r dh FkhA** 26. Curiously enough, Ramkripal (P.W.9) uncle of the complainant Anil (PW.1) as per his deposition in the court, on the next day, after being informed by others had presented application (Exhibit-P/7) and shifted the place of occurrence. He stated in the court as under :- ^^nwljs fnu esjs HkkbZ;ksa us ?kVuk ds ckjs esa crk;k FkkA mUgksaus crk;k fd ge ?kj ij cSBs gq, FksA rstiky ds vkneh ogkWa [ksr ij vk;s ge euk djus yxs rks gekjs lkFk ekjihV dhA eqyfteku esa ekjihV djus okyksa ds uke txUukFk] rstiky] gjQwy] dSyk'k] t;ukjk;.k] Jo.k] Jhd`".k] x.kir] guqeku vkSj Hkh dkQh yksx Fks ftuds uke ugha tkurkA fQj dgk ckdh ds uke eq>s ;kn ugha gS crk;s FksA fjiksVZ izn'kZ ih&7 gSA ftl ij , ls ch esjs gLrk{kj gSaA** 27. Thus, in consonance with the stand taken on the next date at the behest of Ramkripal (P.W.9), who was looking after the litigation and was well versed with law, all witnesses of the complainant including injured, on the next day of occurrence gave a new turn to the prosecution story and stated that they had gone to cultivate land at 10:00 AM. Thereafter, they returned to their house. They were sitting beneath the Khejari tree when all the accused came and caused injuries. Thus, the prosecution witnesses made conscious and deliberate effort to shift the place of occurrence, from old Khasra No. 239 corresponding to new Khasra No. 718. They shifted the place of occurrence, beneath the Khejari tree, opposite to their house in the Dhani. Dhani is a cluster of houses built in the fields. Typed copy of Exhibit-P/7 when translated into English reads as under :- "To Incharge Saheb, Police Station, Govindgarh. Subject : Causing injuries to our family members with Farsi and lathis after committing house trespass and death of my nephew 'Subhash and injuries to other persons. Sir, It is submitted that today on 19.5.1999, at about 1:00 PM, I along with family members was sitting inside our houses made in the fields. Number of persons namely Jagannath, Harphool, Kailash, Kalyan, Badri, Om Prakash, Mohan, Jai Narayan, Jairam, Sukha, Shrawan Gambharam, Krishna and other 10-15 members of their family led by Tejpal s/o Jhutharam, dragged us out of our houses and caused injuries with lathis, axe and Farsis. Number of persons namely Jagannath, Harphool, Kailash, Kalyan, Badri, Om Prakash, Mohan, Jai Narayan, Jairam, Sukha, Shrawan Gambharam, Krishna and other 10-15 members of their family led by Tejpal s/o Jhutharam, dragged us out of our houses and caused injuries with lathis, axe and Farsis. Tejpal s/o Jhoontharam and his sons namely Kailash, Jagannath, Harphool with Farsi and lathi opened a murderous assault upon Subhash and his family members were also seriously injured. Ghanshyam, Bhagwan Sahai, Gopinath, Radhey Shyam, Pradeep and Mahendra suffered grievous injuries. I brought all these injured to police station Govindgarh. They were immediately sent for treatment and were referred to Jaipur. Upon arrival at Jaipur, Subhash died. Others are seriously injured. It is requested immediately report be registered. Legal action be taken. 19.5.1999 Sd/- Ramkripal s/o Bhuramal Pareek R/o Village Bawari Gopinath, Tehsil Chomu, PS. Govindgarh, District Jaipur." 28. On the above written report (Exhibit-P/7), endorsement was given by the investigating officer that since already FIR has been registered, this application be made part of the FIR 29. Though Ram Kripal (PW.9) has stated that application (Exhibit-P/7) was given on the next day, but the application bears a date of 19.5.1999 and it is received by the investigating officer at 7:30 PM. 30. Ramkripal (P.W.9) is not an eyewitness of the occurrence. He stated in the court that at 9:00 AM, he had left for the police station to inform that there is apprehension of fight. 31. Gajanand (P.W.2) father of the deceased admit in the court that injured Bhagwan Sahai (P.W.7), Ghanshyam Pareek (P.W.4) and Gopinath Pareek (P.W.3) his brothers are residing in Arunachal Pradesh. ^^Hkxoku lgk;] ?ku';ke o xksihukFk v:.kkpy jgrs gSa vkSj jke d`iky xkao esa jgrk gSA** 32. Gajanand (P.W.2) further admit that his brother came from Arunachal Pradesh two or two and a half months before. His sons also came two/three months before the occurrence. ^^Hkxoku lgk;] ?ku';ke o xksihukFk v:.kkpy jgrs gSa vkSj jke d`iky xkao esa jgrk gSA** 32. Gajanand (P.W.2) further admit that his brother came from Arunachal Pradesh two or two and a half months before. His sons also came two/three months before the occurrence. This witness stated as under: ^^gekjh 39 ch?kk tehu Fkh ftlesa ls 19 ch?kk dh jftLVªh rstiky ds yM+dksa ds uke djkbZ FkhA tks gekjs ckck ds yM+dksa us djokbZ FkhA tks gekjs ckck ds yM+dksa us djokbZ Fkh D;ksafd og tehu muds uke ls FkhA 19 ch?kk tehu tks rstiky ds yM+dksa ds uke djokbZ Fkh og 11 ch?kk rks ?kVuk dh txg ij gS vkSj 8 ch?kk ?kVuk LFky ls ,d fd0eh0 nwjh ij gSA tehu tgkWa ?kVuk ?kVh ml tehu dk [kljk uEcj 239 gS tks iqjkuk uEcj gS ;k u;k uEcj ;kn ugha gSA rstiky th us ckg tks ugha dh FkhA jftLVªh 1984 esa gqbZ FkhA bl tehu ds ckcr 2&4 eqdnesa py jgs gSaA bl tehu ij dksbZ LVs dk ekeyk gks rks eq>s tkudkjh ugha gSA [kqn dgk fd 9 ch?kk ij LVs gS tks vk/kh tehu ij gSA vkSj vk/kh ij ugha gSA LVs }kjk fdl&fdl dks ikcUn fd;k gS eq>s irk ugha gSA tks jktLo okn py jgs gSa mldh tkudkjh eq>s o esjs HkkbZ jked`iky dks gSA** 33. However, Gajanand (P.W.2) denied that vide Exhibit-D/3 on 7.3.1986, they were restrained not to interfere in the possession of the accused. This witness admit that Lagaan of the land (revenue cess) was paid by Tejpal. This witness stated as under : ^^yxku rstiky th tek djkrs gksaxs] ge iSls ugha gksus ds dkj.k tek ugha djkrs Fks] [kqn dgk dh yxku dksbZ Hkh tek djk ldrk gSA** 34. Gajanand (P.W.2) further admit that Khasra No. 703, 717 and 718 are not on their name. ^^;g lgh gS fd [kljk uEcj 703] 717 o 718 gekjs uke ugha gSa] esjs nknk lk/kw ds uke ls FkkA** 35. Gajanand (PW.2) further admit in cross-examination that the occurrence had taken place in Khasra No. 718 was corresponding to an old Khasra No. 239 and the blood was also lying fallen in that Khasra and same had also drag marks. Gajanand (PW.2) further admit in cross-examination that the occurrence had taken place in Khasra No. 718 was corresponding to an old Khasra No. 239 and the blood was also lying fallen in that Khasra and same had also drag marks. ^^;g lgh gS fd ftl tehu esa >xM+k gqvk og tehu [kljk uEcj 718 ftldk iqjkuk [kljk uEcj 239 gS esa gqvk FkkA ;g Hkh lgh gS fd [kwu oxSjk tks iM+k gqvk Fkk vkSj tks lqHkk"k o et:cku iM+s gq, Fks os Hkh blh tehu esa iM+s FksA blh tehu esa [kwu iM+k Fkk o ?klhVus ds fu'kku FksA** 36. Gajanand (P.W.2) further admit that suddenly the occurrence had taken place and both the sides had suffered injuries. ;g lgh gS fd vpkud >xM+k gksus ls nksuksa i{kksa ds yksxksa ds pksVsa vkbZ gSaA 37. From marshaling of above evidence, it is apparent that few days before the occurrence, the complainant party had gathered to take possession of the land which was in possession of the accused party. It is undeniable fact that the occurrence had taken place in Khasra No. 718 and same was in possession of the accused party. Therefore, to that extent, the written report (Exhibit-P/1) is absolutely correct when it is stated therein that the complainant party had gone to cultivate the land at 10:00 AM and accused came there and the occurrence had taken place. However, it cannot be said with certainty whether accused came at 12:00 PM or immediately when the complainant party committed offence of criminal trespass. We cannot place implicit reliance upon the prosecution witnesses, as they by shifting the place of occurrence had shown no regard for the truth. 38. Gajanand (P.W.2) father of the complainant Anil (P.W.1) and the deceased Subhash have specifically stated that the occurrence was a sudden affair and both sides have caused injuries to each other. We cannot place implicit reliance upon the prosecution witnesses, as they by shifting the place of occurrence had shown no regard for the truth. 38. Gajanand (P.W.2) father of the complainant Anil (P.W.1) and the deceased Subhash have specifically stated that the occurrence was a sudden affair and both sides have caused injuries to each other. In view of this I admission, we can safely say and hold that the complainant party had trespassed into the land in possession of the accused party, to the insult and annoyance of accused party, the complainant party intended to cultivate the land to dispossess the accused party and when the accused came to know of the same, they went to their land to prevent the complainant party from taking possession of their land and than suddenly the occurrence had taken place in which Hanuman Sahai had suffered grievous injury along with accused Jagannath. Occurrence in all probability had taken in quick succession upon arrival of complainant party in the field in possession of the accused. Houses of accused and complainants are situated nearby. Vijendra Kumar Jhala (P.W.30) the Investigating Officer, who was posted as Additional Superintendent of Police and was assigned investigation, later admit that both the sides had received the injuries in the occurrence. It will be apposite to reproduce the following lines from the cross-examination of the witness as under :- ;g lgh gS fd bl okjnkr esa dqN eqyfteku ds Hkh pksVsa vkbZA nksuksa i{kksa ds Hkh pksVsa vkbZA 39. We can examine the prosecution case from another angle also. In written report, it is stated that family of Tejpal came to prevent them. Earlier the possession of the land was with family of Tejpal. In written report (Exhibit-P.W.1) no role has been assigned to Tejpal His presence at the spot has not been recorded in written report (Exhibit-P.1), even though it is stated that earlier possession on the land was of the family oi Tejpal. Later in the evening, Ramkripal (PW.9) submitted another written report (Exhibit-P/7) in which role has been assigned to Tejpal. Rather he has been named as author of the fatal injury. To overcome this, Anil (P.W.1) in the court took a stand that the Investigating Officer was under the influence of Tejpal, however, he admit that he had made no written report against the Investigating Officer. Rather he has been named as author of the fatal injury. To overcome this, Anil (P.W.1) in the court took a stand that the Investigating Officer was under the influence of Tejpal, however, he admit that he had made no written report against the Investigating Officer. The presence of Tejpal at the spot stands doubled by evidence of Head Constable Om Prakash Singh (P.W.19). This witness stated that on 19.5.1999 he received a wireless message from Head Constable Ramkaran (P.W.24) that there is apprehension of fight between Yadavs (accused) and Pareeks (complainants). 40. Om Prakash Singh (PW.19) stated that meanwhile Tejpal came and informed that force be sent as fight may erupt and thereafter he had reached at the spot. The exact words stated by this witness are as under: bl chp esa rstiky ;kno ,Dl0,e0,y0,0 pkSew vk;s] ftUgsa dgk fd >xM+k gksus okyk gS] ogkWa tkCrk djksA eSa pkSdh gLrsMk igqap dj jkedj.k dks ysdj xksjh dk ckl fookfnr tehu ij igqapk] mlls igys >xM+k gks pqdk FkkA vkSj et:c ogkWa ls jokuk gks pqds FksA bl ij eSa ogkWa ls jokuk gksdj lh/kk gh Fkkus ij vk;k esjs lkFk ujirflag] foiUnz flag Fks] Fkkus ij eSa vk;k rks et:c vLirky esa Fks] >xM+s dh lwpuk ,l0ih0 lkgc dks nhA 41. Constable Dashrath Singh (P.W.22) stated that at about 11:00-11:30 AM, Head Constable Om Prakash Singh (PW.19) was talking with a person. After the man had left, Head Constable Om Prakasfi Singh informed that the said person was Tejpal. 42. Constable Dharmendra Kumar (P.W. 16) also stated that he had sent a wireless message to Head Constable Om Prakasfi Singh (P.W.19) that the dispute is likely to erupt between the family of Yadav's and Pareek's. 43. The document Exhibit-D/49 which is Daily Diary Entry, being entry No. 215 recorded at 10:55 AM notices that Tejpal had informed the police that in spite of stay order, Pareeks of the village had gathered to dispossess them. Thus, Tejpal was not present at the place of occurrence. Thus, the prosecution witnesses including injured witnesses have scant regard for the truth. They specifically have not only made an attempt to shift the place of occurrence but introduced Tejpal as accused also, even though his presence is recorded in the police station, where he had made a report (Exhibit-D/49) at 10:55 AM on the day of occurrence. 44. Thus, the prosecution witnesses including injured witnesses have scant regard for the truth. They specifically have not only made an attempt to shift the place of occurrence but introduced Tejpal as accused also, even though his presence is recorded in the police station, where he had made a report (Exhibit-D/49) at 10:55 AM on the day of occurrence. 44. Exhibit-D/7 is the suit filed for partition and permanent injunction by Jagannath, Harphool and Kailash, sons of Tejpal against Gajanand (P.W.2), Ghanshyam Pareek (P.W.4), Bhagwan Sahai (P.W.7) and Ramkripal (P.W.9). In the said suit, vide Exhibit D/3, on 7.3.1986 injunction was granted against the family of Gajanand and in favour of accused Jagannath, Harphool and Kailash. The complainant party vide order Exhibit-D/3 on 7.3.1986 was restrained not to interfere in the possession of accused. Subsequently, another suit was also filed by the family of Gajanand (P.W.2), wherein order Exhibit-D/14 was passed on 12.8.1997 but the accused party was only restrained not to alienate the suit property. Therefore the trial court rightly in Para 65 had given a finding that the occurrence had taken place in Khasra No. 718 and the said Khasra was in possession of accused party. Accused party vide Exhibit-D/14 was only restrained not to alienate the suit property, whereas vide Exhibit-D/3, the complainant party was restrained not to interfere in the possession of the accused party. Accused party vide Exhibit-D/14 was only restrained not to alienate the suit property, whereas vide Exhibit-D/3, the complainant party was restrained not to interfere in the possession of the accused party. We will reproduce Para 65 to 69 of the impugned judgment as under:- ^^65- esjs fouez er esa loZizFke ;g fofuf'pr djuk gS fd ?kVukLFky fdl [kljk uEcj esa FkkA uD'kk ekSdk izn'kZ ih&8 o izn'kZ Mh&58 ftuesa ls izn'kZ ih&8 rks bl eqdnes dk uD'kk ekSdk gS tcfd izn'kZ Mh&58 eqyfteku }kjk nk;j fd, x, dsl ftlesa ,Q0vkj0 yxkbZ xbZ dk uD'kk ekSdk gSA nksuksa gh uD'kk ekSdksa esa [kljk uEcj&718 ?kVukLFky n'kkZ;k x;k gS] ;|fi uD'kksa esa ?kVukLFky dk [kljk uEcj Li"V ugha fd;k x;k gS] ijUrq ih0MCY;w0&11 foykl izlkn iVokjh us viuh lk{; esa Li"V fd;k gS fd tgkWa >xM+k gqvk o lqHkk"k dk vafre laLdkj fd;k x;k og [kljk uEcj 718 gSA vUos"k.k vf/kdkjh ih0MCY;w0 30 fotsUnz >kyk us Hkh mDr uD'kksa dks fl) fd;k gS] ftlls >xM+k [kljk uEcj 718 esa gksuk fl) ekuk tkrk gSA tgkWa rd [kljk uEcj 718 ds jsosU;w fjdkWMZ dk iz'u gS udy tekcUnh izn'kZ Mh0 4 rFkk izn'kZ ih0 10&, ls ;g Li"V gS fd lEor~ 2053 esa fooknxzLr [kljk uEcj 718 :Mk iq= lk/kq fgLlk vk/kk o x.kir] xksiky] cU'kh] thou] jkedqekjh] ySyk] guqeku dk fgLlk vk/kk FkkA izn'kZ Mh0&18 [kljk uEcj 2052 ls 55 rd dh [kljk fxjnkojh blh [kljk uEcj 718 ds iqjkus [kljk uEcj 239 dh gS ftlesa Hkh :Mk iq= lk/kq dk vk/kk fgLlk o lqvk] guqeku vkfn dk vk/kk fgLlk ntZ gSA bl izdkj mDr jktLo fjdkWMZ ls ;g Li"V gS fd [kljk uEcj 718 esa eqLrxhl i{k dh dksbZ [kkrsnkjh oDr ?kVuk ugha FkhA 66- vfHk;kstu }kjk izLrqr xokg ih0MCY;w0 11 foykl izlkn eh.kk us viuh fjiksVZ izn'kZ Mh0&31 dks fl) djrs gq, Hkh mDr jsosU;w fjdkWMZ dh rkbZn dh gSA vUos"k.k vf/kdkjh ih0MCY;w0 30 fotsUnz >kyk us Hkh izn'kZ Mh0&31 dks lgh ekuk gSA bl izdkj ih0MCY;w0 11 foykl izlkn o ih0MCY;w0 30 fotsUnz >kyk dh lk{; ls ;g Li"V gS fd >xM+k [kljk uEcj 718 esa gqvk rFkk oDr ?kVuk bl ij eqLrxhl i{k dk dksbZ [kkrsnkjh vf/kdkj ugha FkkA 67- fo}ku vij yksd vfHk;kstd us rFkk fo}ku odhy eqLrxhl us cgl esa tkfgj fd;k fd [kljk uEcj 718 dk iqjkuk [kljk uEcj 239 Fkk tks lsVyesUV ls iwoZ lEor~ 2017&18 esa vk/kk fgLlk lwvk] Hkwjk o lk/kq dh [kkrsnkjh dk FkkA lk/kq eqLrxhl i{k dk ckck gS] lgou ls ;g [kknsjk lsVysUV ds nkSjku jktLo fjdkWMZ esa lwvk] Hkwjk] lk/kq ds LFkku ij :Mk oxSjk ds uke gks xbZ] ftldh nq:Lrh dk rFkk caVokjs dk nkok eqLrxhl i{k us eqyfteku ds fo:) is'k fd;k ftlesa vLFkkbZ O;kns'k dk izkFkZuk i= Hkh U;k;ky; ,lh,e] pkSew esa is'k gqvk Fkk tks la[;k 157@97] xtkuUn@guqeku ds uke ls ntZ gqvk ftlesa eqyfte i{k dks ikcUn Hkh fd;k x;k FkkA 68- ;g lgh gS fd i{kdkjksa ds e/; izn'kZ Mh0&14 ds vuqlkj nkok pyuk fl) gSA izn'kZ Mh0&14 ds vk/kkj ij ;g ugha ekuk tk ldrk fd Hkwjk o lwvk fooknxzLr tehu [kljk uEcj 718 ds [kkrsnkj Fks vkSj buds okfjl gksus ds ukrs eqLrxhl i{k fooknxzLr tehu ds [kkrsnkjh vf/kdkj j[krk gS vkSj ml ij dkfcr FkkA fo}ku vij yksd vfHk;kstd us cgl ds nkSjku 9 fdrk nLrkost Hkh is'k fd;k ftuesa [kljk fxjnkojh o tekcUnh [kljk uEcj&239 dh is'k gqbZ gSA ftlesa [kljk uEcj 239 lEor~ 2017] 2021] 2032] 2035 esa xtkuUn] Hkxokulgk;] xksihukFk] jked`iky vkfn ds dCts dk'r esa n'kkZ;k x;k gS rFkk 239 dk iqjkuk uEcj 144 gS lwvk o Hkwjk filjku lk/kq tkfr czkg~e.k dh dk'r esa n'kkZ;k x;k gS tks lEor~ 1987 esa n'kkZ;k x;k gS fdUrq izFke rks ;g nLrkostkr vkSipkfjd rkSj ij fl) ugha djk;s x;s gSa nwljs lk/kq o Hkwjk ls eqLrxhl i{k dh fj'rsnkjh Hkh l'kiFk lk{; esa fl) ugha dh xbZ gSA ,slh voLFkk esa ;g nLrkostkr vfHk;kstu ds fy, fooknxzLr Hkwfe viuh [kkrsnkjh o dCtk fl) djus esa xzkgkz rFkk lgk;d ugha ekus tk ldrsA 69- ,Q0vkbZ0vkj0 izn'kZ Mh&1 vfuy dqekj ikjhd us ntZ djkbZ gS tks fd eqLrxhl ds dFkkud ds vuqlkj lk/kq dk okfjl gSA mlus ,Q0vkbZ0vkj0 ds lh ls Mh Hkkx esa ;g Li"V rkSj ij Lohdkj fd;k gS fd djhc 10-00 cts ge gekjh [kkrsnkjh ds fgLls dh vk/kh tehu tks gekjh <+k.kh ds ikl tksrh ml tehu ij igys rstiky o mlds ifjokj dk dCtk FkkA bl izdkj vfuy us fooknxzLr tehu ij rstiky ;kno o mlds ifjokj dk dCtk Lohdkj fd;k gS ;|fi vfuy ih0MCY;w0 1 us viuh ftjg esa ;g dFku fd;k gS fd mDr lh lh Mh bckjr mlls Fkkusnkj us nckdj] /kedkdj fy[kok nh Fkh vkSj ;g dgk Fkk rstiky ;kno] ,e0,e0,0 jgk gS blfy, eSa dgrk gwWa tSlk fy[kk] ijUrq jktLo fjdkWMZ ds vk/kkj ij vfuy dh lk{; dk ;g va'k fo'oluh; ugha jg tkrk gSA ;gkWa ;g fo'ks"k mYys[kuh; gS fd vfuy us Fkkusnkj }kjk izn'kZ Mh0&1 dk lh ls Mh Hkkx xyr fy[kus ckcr f'kdk;r fdlh mPp vf/kdkjh dks ugha dhA vr% ;g ekuk tkrk gS fd vfuy us LosPNkiwoZd fooknxzLr tehu esa izn'kZ ih0 1 esa rstiky ;kno o mlds ifjokj dk dCtk Lohdkj fd;k gSA bl izdkj ;g rF; Li"V gksrk gS fd ?kVuk ds oDr fooknxzLr tehu [kljk uEcj 718 eqyfteku ds dCts esa FkkA izn'kZ Mh0 14 vkns'k ,lh0,e0] pkSew fnukad 12-08-1997 muokuh vLFkk;h O;kns'k izkFkZuk i= xtkuUn cuke guqeku esa /kkjk 212 jktLFkku VhusUlh ,DV ftlds tfj, [kljk uEcj 703] 718] 717 ij eqyfteku dks mDr tehu ds fodz; djus ls ikcUn fd;k x;k Fkk rFkk izn'kZ Mh0&52 mDr vLFkk;h O;kns'k ds izkFkZuk i= dks [kkfjt djus ckcr gS tks fnukad 02-02-2006 dks [kkfjt fd;k x;k Fkk (Emphasis supplied) ls ;g Li"V gksrk gS fd eqLrxhl i{k Hkh fooknxzLr [kljk uEcj 718 esa viuk gd ekurk Fkk vkSj eqLrxhl o eqyfteku ds chp mDr tehu dks ysdj l)koh nhokuh fookn mDr ?kVuk vUrxzZLr FkkA** 45. Having held that complainant party had gathered thereafter constituted unlawful assembly to take over the possession of the land, which was with the accused, the trial court has denied right of self defence to the accused on the ground that they had an opportunity to take recourse to public authority and they had informed the police. Therefore, they could not take law into their own hands and thus, right to self defence cannot accrue to them. The trial court held that Tejpal had lodged the report Exhibit-D/49 at 10:55 AM and since the occurrence had taken place at 12:00 PM, therefore, the accused party having informed the police, had lost the right to defend their property and the same came to an end after police was informed. The trial court held that Tejpal had lodged the report Exhibit-D/49 at 10:55 AM and since the occurrence had taken place at 12:00 PM, therefore, the accused party having informed the police, had lost the right to defend their property and the same came to an end after police was informed. The trial court to deny right of self defence of property to accused has held as under:- ^^72- mDr fo'ys"k.k ls ;g Li"V gksrk gS fd [kljk uEcj 718 ij rstiky dh fjiksVZ izn'kZ Mh&49 ntZ djkus ls iwoZ ;kuh 10-55 ,0,e0 iwoZ fnukad 19-05-1999 dks eqLrxhl i{k us cktksr dj yh vkSj os [kljk uEcj 718 ij cSBs gq, Fks rFkk 10-55 ,0,e0 eqLrxhl o eqyfteku i{k esa dksbZ >xM+k ugha gqvk rFkk 10-55 ,0,e0 ij rstiky gLrsMk pkSdh igqap x;k vkSj mlus yksd izkf/kdkfj;ksa dh lgk;rk dh izkFkZuk iqfyl pkSdh gLrsMk ij dj nhA mDr fo'ys"k.k ls ;g Li"V gS fd rstiky }kjk yksd izkf/kdkfj;ksa dh lgk;rk ekWaxus ls iwoZ rd eqyfte i{k us dksbZ 'kjhj ;k lEifRr ds j{kk ds vf/kdkj dk iz;ksx ugha fd;k vkSj rstiky ds ifjokj dh vksj ls ntZ fjiksVZ izn'kZ Mh&55 ds vuqlkj eqyfte i{k fnu ds 12-00 cts ogkWa igqWapkA 73- esjs fouez er esa tc 10-55 ,0,e0 ij gh yksd izkf/kdkfj;ksa dh lgk;rk eqLrxhl i{k ds fo:) rstiky us ekWax yh Fkh rks yksd izkf/kdkfj;ksa ds vkus ls igys eqyfte i{k dk [kljk uEcj 718 ij gfFk;kjksa ls ySl gksdj tkuk o vius vf/kdkj dk izn'kZu djuk fdlh Hkh rjg vkRej{kk ds vf/kdkj dh laKk esa ugha vkrk gS D;ksafd 'kjhj ;k lEifRr dh vkRej{kk ds vf/kdkj Hkkjrh; n.M lafgrk dh /kkjk 96 ls 106 rd of.kZr fd;s x;s gSaA Hkkjrh; n.M lafgrk dh /kkjk 99 kjhj o lEifRr dh j{kk ds vf/kdkj dks lhfer djrh gSA Hkk0na0la0 dh /kkjk 99 ds vuqlkj 'kjhj o lEifRr dh j{kk dk vf/kdkj rc iSnk ugha gksrk tcfd yksd vf/kdkfj;ksa ls lqj{kk izkIr djus dk le; miyC/k gksA /kkjk 99 Hkk0na0la0 ds lqlaxr va'k bl izdkj gSa%& mu n'kkvksa esa] ftusa lqj{kk ds fy, yksd izkf/kdkfj;ksa dh lgk;rk izkIr djus ds fy, le; gS] izkbZosV izfrj{kk dk dksbZ vf/kdkj ugha gSA 74- vr% mDr izko/kku ds vuqlkj tc rstiky us iqfyl pkSdh] gLrsMk dh enn ekWax yh Fkh rks mlds ckn /kkjk 99 Hkk0na0la0 ds vuqlkj eqfYte i{k dks 'kjhj o lEifRr dh j{kk dk vf/kdkj lekIr gks tkrk gS D;ksafd rc rd eqLrxhl i{k [ksr dh tqrkbZ dj pqds Fks vkSj ,slk dksbZ vklUu ladV ugha Fkk] ftlls fd tehu ds u"V gksus dh lEHkkouk gksA vr% eqyfteku dk [kljk uEcj 718 ij gfFk;kjksa ls ySl gksdj tkuk lEifRr ds j{kk ds vf/kdkjLo:i ugha] cfYd cnys dh Hkkouk ls izfrdkj ysus gsrq tkuk izekf.kr gksrk gS tks fd ekuuh; mPpre U;k;ky; ds fofu'p; 'kkgtgkWa o vU; cuke LVsV vkWQ dsjyk ds vuqlkj fdlh Hkh rjg fof/klEer ugha ekuk tk ldrkA** 46. The trial court in Para 79 further held that the complainant party had reached in the disputed field at 7:00 AM and at 12:00 PM, the accused party had gone to the disputed field with weapons and thus, it cannot be held to be free fight or sudden fight. Para 79 of the impugned judgment reads as under:- ^^79- esjs fouez er esa tSlk fd mDr fo'ys"k.k esa vk;k gS fd eqLrxhl i{k lqcg 7-00 cts ls gh ?kVuk LFky ij ekStwn Fkk vkSj 12-00 cts eqyfte i{k us tkdj muls >xM+k fd;kA eqyfte i{k gfFk;kjksa ls ySl gksdj vk;s FksA ,slh voLFkk esa >xM+s dks Qzh QkbV ;k lMu QkbV dk ekeyk ugha ekuk tk ldrk gSA** 47. So far finding of the trial court that the complainant party had gone in the disputed field at 7:00 AM is concerned, that seems to be factually incorrect. In the written report, it is stated that the complainant party had cultivated the land at 10:00 AM. So far timing of the fight is concerned, it is 12:00 PM. We can lend certainty to this time. We have already held that on coming to know that complainant party had trespassed into their field, accused who are having houses nearby, immediately went to the disputed field and one of them, Tejpal proceeded to the police station. As per FIR, Police Station is at distance of 20 kms from the place of occurrence. Thus, arrival of Tejpal at police station at 10:55 AM fortify our inference that at 10:00 AM itself accused proceeded to the disputed field and Tejpal exactly at that time proceeded towards police station. Be that as it may, even if we accept the finding of the trial court that the complainant party after constituting unlawful assembly had gone to cultivate land at 7:00 AM or 10:00 AM, the matter of fact remains that members of complainant party were in the field which was in possession of the accused party at 12:00 PM, when accused party purportedly went to get their field vacated from the complainant party. Therefore, as per showing of trial court at 12:00 PM, offence of criminal trespass was continuing. 48. Law does not require the person who is in possession of the property to act as coward or meek. Section 441 of IPC which defines criminal trespass reads as under :- "441. Therefore, as per showing of trial court at 12:00 PM, offence of criminal trespass was continuing. 48. Law does not require the person who is in possession of the property to act as coward or meek. Section 441 of IPC which defines criminal trespass reads as under :- "441. Criminal trespass - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there (Emphasis supplied) with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass". 49. Section 105 IPC reads as under :- "105. Commencement and continuance of the right of private defence of property - The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues, in the commission of criminal trespass or mischief. (Emphasis supplied) The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues." 50. Second part of offence of criminal trespass as defined in Section 441 IPC, specifically states "unlawfully remains there with intent thereby to intimidate, insult or annoy any such person" in other words, when a person commits criminal trespass into the property in possession of the accused till he continues, right of self defence in the accused will survive. Second part of offence of criminal trespass as defined in Section 441 IPC, specifically states "unlawfully remains there with intent thereby to intimidate, insult or annoy any such person" in other words, when a person commits criminal trespass into the property in possession of the accused till he continues, right of self defence in the accused will survive. Legislature in his wisdom while defining offence of criminal trespass under Section 441 IPC, has specifically stated that unlawful entry into such property and unlawfully remains there (Emphasis supplied) Merely because one member from the family of accused Tejpal has gone to inform the police and had lodged the report (Exhibit-D/49), the right in the accused to get their land vacated will not come to an end. The law does not envisages that because police has been informed, the accused should file a civil suit for possession and continue to fight the suit for decades by losing their possession. From the finding given by the trial court, from averment made in written report (Exhibit-P/1), on the basis of which formal FIR was registered, grant of injunction (Exhibit-D/3) in favour of the accused, restraining the complainant party, leave no doubt that the complainant party had assembled to dispossess the accused party of their possession over the field of Khasra No. 718. The witnesses and members of the complainant party came from Arunachal Pradesh and had gathered to constitute unlawful assembly and commit offence of criminal trespass. 51. In the present case, we cannot pin-point that the occurrence had taken place at 12:00 PM. The complainant party had entered in the field of accused at 10:00 AM. Tejpal went to the police station, whereas other members of accused party went to the field in question to restrain and prevent the complainant party from taking possession of their property. At that time, as stated by Gajanand (PW.2), suddenly fight had erupted, in which accused party had reasonable apprehension that grievous injuries may be caused to, them. Thus, to uproot the criminal trespassers, under the apprehension of grievous injury which actually was suffered by Hanuman Sahai, accused had exercised their right of self defence of property. 52. From a bare reading of Section 97 IPC, it is apparent that right of private defence to defend personal property is available against an offence. Thus, to uproot the criminal trespassers, under the apprehension of grievous injury which actually was suffered by Hanuman Sahai, accused had exercised their right of self defence of property. 52. From a bare reading of Section 97 IPC, it is apparent that right of private defence to defend personal property is available against an offence. Thus, it is crystal clear that there is no private defence against any act, which is not an offence. It is evident from the provision of Section 441 IPC that unauthorized entry into upon the property in the possession of another or unlawfully remaining there, after unlawful entry as per the definition of criminal trespass, constitute criminal offence. From the fact and circumstances, it can be fairly gathered that the complainant started cultivation of the field in possession of the accused at 10:00 AM and immediately accused party also arrived there and one of them Tejpal went to Police Station. Even if we assume for sake of argument that the complainant party remained there unlawfully till 12:00 PM, and then accused came to get their land vacated, prove that offence of criminal trespass was persisting. Thus, in the present case, the complainant party had committed the offence of criminal trespass, they had unauthorisedly entered into the disputed land, which was in possession of the accused party and had not withdrawn from there and they continued to remain in the field to insult, intimidate and annoy the accused party. It is true that right to cause death shall accrue to the accused under Section 103 of Indian Penal Code, 'if the complainant had committed offence of house trespass. But since there are injuries on the person of Hanuman Sahai and one of the injuries on the person of Hanuman Sahai was grievous in nature, therefore, within the meaning of Section 99, it can be safely inferred that the accused entertained the apprehension that the grievous injuries will be caused to them by the persons who are criminal trespassers in the field of accused party. 53. In the present case, there was not only apprehension but indeed grievous hurt was also caused, therefore, right to private defence of property against criminal trespass after causing of grievous injury to Hanuman Sahai and other injuries to Jagannath vested in the accused to the extent of causing death. 54. 53. In the present case, there was not only apprehension but indeed grievous hurt was also caused, therefore, right to private defence of property against criminal trespass after causing of grievous injury to Hanuman Sahai and other injuries to Jagannath vested in the accused to the extent of causing death. 54. Section 105 of IPC is to be read in harmony and conjunction with the following portion of Section 105 which says "right of private defence of property against criminal trespass or mischief continues as long as offender continues in the commission of criminal trespass or mischief. 55. The trial Judge had committed grave error to rely upon Shahjahan & Ors. v. State of Kerala, 2007 RCC (SC) 595, as it is not a case of non-explanation of the injuries of the person of the accused alone. As stated earlier, Gajanand (P.W.2) and Vijendra Kumar Jhala (PW.30) both have not only received injuries in the occurrence, but in the present case, the complainant party having committed criminal trespass remained in the field in possession of the accused, and their continuation there within meaning of Section 105 IPC vested right of private defence of property in the accused also. For the reason that there is a presence of grievous injury on the person of Hanuman Sahai and apprehension was also entertained by the accused, it is to be deduced that the complete right of self defence of property shall vest in the accused along with right of self defence of person to the extent of causing death. Hence, it is not a case of exceeding right of private defence of property. 56. Therefore, by extending right of complete self defence to the accused, we accept the present appeal and set aside their conviction and sentence awarded by the trial court upon the appellants and acquit them of all the charges. 57. In view of the acceptance of the appeal, we order that the appellants namely Hanuman Sahai, Jagannath @ Boduram, Kailash Chand @ Dabliya, Harphool, Kalla @ Kalyan Sahai, Mahesh Kumar, Badri Prasad, Shrawan Kumar, Jai Narayan and Ganpat be released forthwith, if not required in any other case. 58. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs. 58. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Apex Court.