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2018 DIGILAW 1380 (RAJ)

Kalu Ram Son of Prasadi v. State of Rajasthan

2018-05-31

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal has been filed by eight appellants against the judgment of their conviction and sentence dated 26.7.1991 passed by Sessions Judge, Dausa in Sessions Case No.14/1988 convicting and sentencing the accused-appellants for different offences as detailed out here in under: Kalu Ram, Ram Bharosi @ Bharosi and Ram Niwas - Under Section 302/34 IPC – life imprisonment and fine of Rs. 100/- each, in default one month rigorous imprisonment. Under Section 148 IPC – six months rigorous imprisonment to each. Under Section 326/149 – three years rigorous imprisonment and a fine of Rs. 100/- each, in default one month rigorous imprisonment. Under Section 325/149 – one year rigorous imprisonment and a fine of Rs. 100/- each, in default one month rigorous imprisonment. Under Section 323/149 – three months rigorous imprisonment to each. Prasadi, Mst. Dhapa, Mst. Bhoti, Mst. Jalbai and Mst. Gallo - Under Section 148 IPC – six months rigorous imprisonment. Under Section 326/149 IPC – three years’ rigorous imprisonment and a fine of Rs. 100/- each, in default one month rigorous imprisonment. Under Section 325/149 IPC – one year rigorous imprisonment and a fine of Rs. 100/- each and in default one month rigorous imprisonment. Under Section 323/149 – three months rigorous imprisonment to each. 2. The facts of the case are that there was some dispute between the parties in connection with agricultural land of Khasra No. 110 situated in Village Meenapada, District Sawai Madhopur. The accused persons got this land in gift through a registered ‘baksheesh nama’ (gift deed) twenty five years back and they claimed that they were in possession of the land since then. This land was in the name of accused-appellant Prasadi and they were cultivating the same. Some of the accused appellants were also residing there and were having ‘Kachha’ houses. The complainant party got a sale deed of the disputed field registered in their favour from Ananda (PW17) for which the accused persons already filed a suit for getting this sale deed declared void. On 18.01.1988, Gordhan (PW3) submitted a written report to Police Station Manpur, District Dausa to the effect that they had the disputed land in Village Meenapada in their cultivatory possession. They had sowed the crop of wheat and coriander in that land. At about 8:00 AM, his father Budharam went to the field to guard the harvest from the peacocks. On 18.01.1988, Gordhan (PW3) submitted a written report to Police Station Manpur, District Dausa to the effect that they had the disputed land in Village Meenapada in their cultivatory possession. They had sowed the crop of wheat and coriander in that land. At about 8:00 AM, his father Budharam went to the field to guard the harvest from the peacocks. At that time all the accused persons named in the first information report gave beating to him and Budha died on the spot. It was alleged that the accused persons gave beating to Budha by ‘lathis’, ‘barchi’ and ‘kulhadi’. Chhota Meena informed him about the beating given to Budharam. Thereupon he alongwith Jangli (brother), and Seodan came on the spot where they were also beaten. After hearing the noise, Chotya, Hotilal, Parmi Meena and others came there and intervened. On the basis of this information, the police registered a regular First Information Report. The police after investigation, submitted a charge sheet against the accused persons. The learned trial court framed the charges. The accused persons denied the charges. The prosecution produced 24 witnesses and exhibited 35 documents. In defence three witnesses were produced and some documents were also got exhibited. The learned trial court after hearing both the sides, acquitted two of the accused persons of all the charges and also acquitted the accused appellants Prasadi, Mst. Dhapa, Mst. Bhoti, Mst. Jalbai and Mst. Gallo from the charge under Section 302/149 IPC but convicted the accused-appellants and sentenced them in the manner indicated above vide impugned judgment dated 26.07.1991. Hence this appeal. 3. It may be at the outset noted that appellant nos.4 and 5 namely; Prasadi and Dhapa have died. The appeal qua them abates and, therefore, now survives only in respect of six remaining appellants namely; Kalu Ram, Ram Bharosi @ Bharosi, Ram Niwas, Mst. Bhoti, Mst. Jalbai and Mst. Gallo @ Gillo. 4. Shri A.K. Gupta, learned senior counsel for the accused-appellants argued that the learned trial court has failed to consider that the prosecution has changed its version from the first information report during the trial. The prosecution has suppressed the true version of the occurrence and the genesis of the incident. The accused persons were in possession of the disputed land for near about 30 years and they have gift deed in their favour, which is a registered document. The prosecution has suppressed the true version of the occurrence and the genesis of the incident. The accused persons were in possession of the disputed land for near about 30 years and they have gift deed in their favour, which is a registered document. The learned trial court has further observed that this possibility cannot be ruled out that the engine installed on the well was not of the accused appellants. In these circumstances, there is probability of possession of the land being with the accused appellants. As per the first information report, the accused persons were in the field when Budha Ram came there. Thus, in these circumstances, the probability of right of private defence of the person or property cannot be ruled out specially when six accused persons have received more than 20 injuries on their person. This fact goes to show that the members of the complainant party attacked the accused persons and caused injuries to take possession of the disputed land which was in the possession of the accused persons. The learned trial court has not properly considered the material available on record in connection with the possession of the disputed land for the purpose of giving right of private defence to the accused appellants. The learned trial court has committed illegality in convicting the accused appellants with the aid of Section 34 and 149 IPC. It is very well settled that in a case of private defence, no accused can be punished with the aid of Section 34 or 149 IPC. 5. It is contended that the learned trial court has not at all considered this aspect of the case that the prosecution has not explained the injuries received by the accused persons Prasadi, Jalbai, Moti, Kalu Ram, Chhoti and Ram Kishan by both blunt and sharp edged weapons. These persons have received twenty injuries in all which have been proved by Dr. Thandi Ram Meena (PW24). Some of the accused persons have received injuries on their head also. In these circumstances, due to the non-explanation of the injuries on the accused persons, the case of the prosecution is unbelievable and the accused appellants are entitled to be acquitted. The trial court has erroneously observed that it is not necessary to explain the injuries sustained by the accused side in all cases. The accused appellants are entitled to be acquitted on this count alone. 6. The trial court has erroneously observed that it is not necessary to explain the injuries sustained by the accused side in all cases. The accused appellants are entitled to be acquitted on this count alone. 6. Learned counsel submitted that the prosecution case is that the accused-appellants Kalu Ram, Bharosi and Ramniwas caused injuries by sharp edged weapons to Budha. However, postmortem report (Ex.P1) shows only one injury by sharp edged weapon on the body of the deceased. Alleged participation of three accused-appellants becomes doubtful. Their conviction is bad in law and liable to be set aside. 7. Learned counsel submits that the learned trial court has not properly considered the statements of the eye witnesses produced by the prosecution. They have not stated the truth before the court and have also changed their version. From a bare perusal of the statement of Johari (PW4), Laxman (PW5), Hatila (PW6), Chotkya (PW7), Jangali (PW8), Chhotya (PW9), Kishori (PW10), Shyodan (PW13) and Rameshwar (PW14), it is clear that they have made improvements, omissions and contradictions in their testimonies. These witnesses have not explained the injuries received by the accused persons and they have also changed their version and contradicted the statement of each other. Thus, the conviction of the accused appellants on the basis of the testimony of these witnesses is bad in law. 8. Learned counsel argued that with regard to the incident in the present case, the appellant-party also filed FIR (Ex.D22) against the complainant party on 18th January, 1988 itself for illegally trespassing into the land of their possession. The police in that FIR filed charge sheet (Ex.D23) against the complainant party for offence u/ss.379 and 447 IPC, which clearly proves that the complainant party was the aggressor. The accused-party acted in exercise of the right of private defence of their property and person. Defence witnesses Kalu (DW1), Sukha (DW2) and Ram Kishore (DW3) have also proved that the possession was with the accused-party. Even Ram Sahai Sadav (PW11), Patwari of the area concerned has deposed that possession of the disputed land was earlier with Ananda and Punya, but now it was with the accused-party. Kailash (PW18) has also stated that the possession of the disputed land has always been with the accused-party. These witnesses are witnesses of the prosecution and, therefore, so long as they are not declared hostile, the prosecution would be bound by their testimony. Kailash (PW18) has also stated that the possession of the disputed land has always been with the accused-party. These witnesses are witnesses of the prosecution and, therefore, so long as they are not declared hostile, the prosecution would be bound by their testimony. Even Gordhan (PW3) when confronted with his statement u/s.161 Cr.P.C. (Ex.D2) where he stated that the land in dispute was being cultivated by Prasadi and members of his family i.e. accused-party, he failed to explain why he omitted to state so in the Court statement. He also could not explain that part of the statement u/s.161 Cr.P.C. where he stated that Prasadi, member of the accused-party had got a boring engine installed on the disputed agriculture land. Even Investigating Officer Ram Kripal Meena (PW22) has stated that the accused-party had a boring engine installed in the disputed agriculture land and they had kachcha house, thus implying that the possession was with the accused-party. It is argued that the accused-appellants have to merely probablise their defence and the evidence on record clearly not only probablise but also prove that accused-party was in possession and it was complainant party which tried to forcibly evict them from the land in dispute. 9. Shri A.K. Gupta, learned counsel further submitted that the complainant party along with Ananda and Punya filed an appeal in 1987 against the order dated 22.6.1987 passed by Tehsildar attesting mutation of the disputed land in favour of he accused-party. The said appeal was dismissed by Additional District Collector, Dausa vide his order dated 16.7.1990 as time barred (Ex.D26). Reference is made to the order dated 29.3.1989 passed by SDM-I, Dausa (Ex.D27), who while withdrawing the attachment under Section 145 Cr.P.C. restored back possession of the disputed land to Prasadi, member of the accused-party, who was found in possession. Prasadi, Ram Bharosi and Kalu Singh, members of the accused-party filed a suit for injunction in which they also filed an application on 20.11.1987 (Ex.D30) before the Additional District and Sessions Judge contending that the members of the complainant party on several occasions stole the harvest of the accused-party and owing to this, a quarrel has taken place between them and police report was also lodged. Prayer was therefore made to appoint the Receiver. The said application was pending when the incident in the present case took place on 18.1.1988. Prayer was therefore made to appoint the Receiver. The said application was pending when the incident in the present case took place on 18.1.1988. According to learned counsel, when the criminal case in the present case was registered, the accused-party was in jail and was not aware of the proceedings. The complainant party procured a fabricated report from Tehsildar that they were in possession of land and the learned Court of Additional District and Sessions, Dausa on the basis of that report dismissed the application for appointment of Receiver by order dated 7.8.1990 (Ex.D36). What is of relevance is possession on the date of incident. The factum of possession of the accused party on the disputed land at the time of incident is proved by overwhelming evidence, thus entitling them to the right of private defence. 10. Learned counsel in support of his arguments has relied on judgments of the Supreme Court in Mohd. Ramzani vs. State of Delhi- AIR 1980 SC 1341 , Tek Chand & Anr. Vs. State of Haryana- AIR 1972 SC 228 , Vidhya Singh vs. State of Madhya Pradesh (1971) 3 SCC 244 , Deo Narain vs. State of U.P.- AIR 1973 SC 473 , Chanan Singh vs. State of Punjab- AIR 1979 SC 1114 , Vajrapu Sambayya Naidu & Ors. vs. State of A.P. & Ors.- AIR 2003 SC 3706 , Munshi Ram & Ors. vs. Delhi Administration- AIR 1968 SC 702 , Laxman Singh vs. Poonam Singh & Ors.- AIR 2003 SC 3204 , State of Bihar vs. Nathu Pandey & Ors.- AIR 1970 SC 27 , Mitter (9 of 25) [CRLA-258/1991] Sen & Ors. vs. State of U.P.- AIR 1976 SC 1156 and Padam Singh vs. State of U.P.- AIR 2000 SC 361 . 11. Smt. Sonia Shandilya, learned Public Prosecutor has opposed the appeal and supported the impugned judgment. She argued that written report was submitted by Gordhan (PW3), who has categorically stated that Budha had alone gone to the agriculture field to protect the harvest from the peacocks. Chhotya (PW9) and Rameshwar (PW14) have narrated the first part of the incident, which prove what was alleged in the written report that Budha alone first went to the agriculture field. Budha therefore cannot be taken to be aggressor. The accused therefore cannot claim any right of private defence against him, who was a single person. Chhotya (PW9) and Rameshwar (PW14) have narrated the first part of the incident, which prove what was alleged in the written report that Budha alone first went to the agriculture field. Budha therefore cannot be taken to be aggressor. The accused therefore cannot claim any right of private defence against him, who was a single person. Learned Public Prosecutor referring to the site plan (Ex.P6) submitted that ‘kachcha’ house of Budha was indicated between the place of incident shown at S.No.1 and the adjoining agriculture field at S.No.7. 12. Learned Public Prosecutor argued that Chhotya (PW9) and Rameshwar (PW14) have proved that it was Budha, who used to cultivate the disputed agriculture field. Ananda (PW17), who has executed the sale deed vide Ex.P23 in favour of the complainant party has also proved that possession was simultaneously given to the complainant party. Ramshai Sadav, Patwari has also proved the ‘jamabandi khatoni’ (Ex.P11), ‘nakal jamabandi’ (Ex.P12) and ‘khasra girdawari’ (Ex.P13) showing that the land was in the name of Budha. From ‘jamabandi khatoni’ (Ex.P11), it is clearly evident that the complainant party was in cultivatory possession of the disputed land. As per order declining to appoint Receiver dated 7.8.1990, Tehsildar found possession of the disputed with the complainant party. Thus, the accused-appellants cannot claim the right of private defence in thier favour The impugned judgment is perfectly justified. The appeal deserves to be dismissed. Learned Public Prosecutor in support of her arguments has relied on the judgment of the Supreme Court in Triloki Nath & Ors. vs. State of U.P.- (2005) 13 SCC 323 . 13. We have given our anxious consideration to the rival submissions and perused the material on record. 14. We may at the outset observe that the possession of the land in dispute came to the accused party in 1964 when Ananda and Punya transferred the same in their favour by ‘bakshishnama’ (gift deed) dated 8.7.1964 (Ex.D20) pursuant to will dated 14.09.1964 (Ex.D19). The mutation of the land was attested in favour of the accused on 22.6.1987 pursuant to the order of the SDO dated 13.2.1987 as would be evident from Ex.P10. The ‘jamabandi’ khatoni (Ex.P11), nakal jamabandi (Ex.P12) and khasra girdawari (Ex.P13) also proved possession of the accused-party. Ananda executed a sale deed in favour of the complainant party (Ex.P23) on 15.7.1985. However, he could in that sale deed, sell the land of only his share. The ‘jamabandi’ khatoni (Ex.P11), nakal jamabandi (Ex.P12) and khasra girdawari (Ex.P13) also proved possession of the accused-party. Ananda executed a sale deed in favour of the complainant party (Ex.P23) on 15.7.1985. However, he could in that sale deed, sell the land of only his share. This sale deed appears to be a sham transaction because the possession of the land was throughout with the accused-party. The accused-party filed a suit for setting aside the sale deed on 6.2.1986. Copy of the plaint is Ex.D6. Learned counsel referred para 4 to 6 of the plaint, which gives complete background in which the land came in possession of the accused-party. The complainant’s written statement (Ex.D7) filed on 18.3.1987 does not effectively deny the factum of possession of the accused-party. Even then, the Court of the Additional District Sessions Judge, Dausa passed the status quo in favour of the appellant (Ex.D8), however, with the direction that no further alienation be made. In fact, police filed charge sheet for offence u/ss.447 and 379 of IPC on 9.4.1987 in the FIR registered by the accused-party against the complainant party on 1.2.1987 for destroying their crop of grain. 15. Many of the witnesses cited by the prosecution, on careful scrutiny of their statement, are actually not found to be eye witnesses except those, of course, who were injured eye witnesses namely; Gordhan (PW3), Chhotkya (PW7), Jangali (PW8) and Shyodan (PW13). This is evident from the statement of Chhotya (PW9). He in cross examination has stated that when he called, Gordhan, Shyodan and Jangali arrived at the scene of occurrence. By then, Budha had already fallen on the ground due to injuries caused by the accused. Gordhan (PW3) has also in his cross examination in chief has stated that when the accused subjected Budha to beating, Gurcha was there guarding the agriculture field. He was at that time in his house. Gurcha called him. Thereafter, he along with Jangli and Sheodan came rushing there. Johari (PW4) when confronted with his police statement (Ex.D3) where he stated that both parties had subjected each other to beating but who caused what injury to whom was not clearly visible, denied having given any such statement to the police. Laxman (PW5) has also stated that Budha fell on the ground due to the injuries caused by accused. Chotkya came there. Laxman (PW5) has also stated that Budha fell on the ground due to the injuries caused by accused. Chotkya came there. He too was beaten by Kalu and Bharosi and thereafter Gordan, Shyodan and Jangali came to save them, who were also beaten by the accused persons. When he was confronted with his police statement under Section 161 Cr.P.C. (Ex.D4) where he stated that both the parties were attacking each other by ‘lathis’. ‘farsis’ and ‘dhariyas’ and further part of the statement that while returning back home, he saw the dead body of Budha in the agriculture field and in later part of the statement, he also stated that who caused injuries to whom was not clear, this witness failed to explain the discrepancy between what he stated then and now in the Court. 16. Chhotkya (PW7) was also confronted with his police statement (Ex.D10) wherein he had stated that Prasadi Meena of Meenapada of accused-party had filed a criminal case at Dausa in which stay order was passed in their favour, he denied having given any such statement to the police. He also denied that it was stated by him that despite of the stay by the Court, Prasadi Meena wanted to run his boring engine installed in the agriculture field, which was resisted by Budha. Jangali (PW8) when confronted with that part of the statement given to the police in Ex.D11 where he stated that Prasadi and his family members received injuries from their own weapons and that such injuries could have been caused when the complainant party also tried to defend themselves, he denied having given such statement. Ananda (PW17) has stated that he sold his land to Gordan, Jangali, Budha and Chotkya. Then Prasadi and members of his family tried to create dispute on such land. In cross examination, this witness has completely denied having executed ‘bakshishnama’ (gift deed) in favour of Prasadi and others. Ananda (PW17) has stated that he sold his land to Gordan, Jangali, Budha and Chotkya. Then Prasadi and members of his family tried to create dispute on such land. In cross examination, this witness has completely denied having executed ‘bakshishnama’ (gift deed) in favour of Prasadi and others. When confronted with will (Ex.D19) and ‘bakshishnama’ (Ex.D20), he admitted in cross examination that he executed the sale deed in favour of the complainant party not only in respect of his share of land, but also eight and half bighas falling in the share of Punya without giving any explanation as to how when he and Punya had gifted their land to the accused by two separate registered gift deeds, he alone executed the sale deed for the land and that too not of his own share, but also the land in the share of Punya. It is trite that the burden which rests on an accused person under Section 105 of the Evidence Act to establish his plea of private defence is not as onerous as the unshifting of burden which lies on the prosecution to establish every ingredient of the offence of which the accused is charged, beyond reasonable doubt. It is further well-established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in "golden scales" the precise force needed to repel the danger. 17. As far as deceased is concerned, his postmortem report (Ex.P1) indicates that he sustained three injuries, of which only injury no.1 was fatal and the injury nos.2 and 3 were insignificant being simple in nature. The injuries are reproduced hereunder: (page 140). “1. Incised wound 7½cms×3cms in size and underlying fractured bone is visible on left parietal bone, margin of the wound are sharp, cutted & wound is spindle shaped, injury is dangerous to life caused by sharp weapon & ante-mortem in nature. 2. Lacerated wound of 2cm×½cm×¼ cm size on occipital bone, margins of the wound are irregular, injury is simple caused by blunt weapon & ante-mortem in nature. 3. Abrasion of 2cms×½cm size on dorsum of little finger of right hand.” 18. The postmortem report has been proved by Dr. Vivekanand (PW2). The cause of death was opined to be shock caused by hemorrhage and injury caused to vital organ i.e. brain. While Dr. 3. Abrasion of 2cms×½cm size on dorsum of little finger of right hand.” 18. The postmortem report has been proved by Dr. Vivekanand (PW2). The cause of death was opined to be shock caused by hemorrhage and injury caused to vital organ i.e. brain. While Dr. Prakash Santia (PW1) in postmortem report indicated three injuries, but in Column-II relating to Cranium and Spinal Cord, he with reference to previous column repeated the same injuries, but in different form by narrating that; 1.-Scalp-Injury nos.1 and 2 are present as mentioned in wounds in the previous column, 2.-Skull - Left parietal bone is fractured and embaded in left hemisphere of brain. 3.-Membrane are lacerated on left hemisphere of brain covered with clotted blood and 4-left hemisphere of brain is lacerated and fractured left parietal bone is embaded in brain. Dr. Prakash Santia (PW1) has stated that the injuries narrated by him on scalp and skull were the result of injury no.1. While injury no.1 was by sharp edged weapon, injury no.2 was lacerated wound. Apart from these injuries to the deceased, Chhotkya (PW7) as per his MLR (Ex.P2) received five injuries, three of which were simple. Injury nos.1 and 4 were grievous. Dr. Vivekanand (PW2) has proved his MLR. As per his x-ray report (Ex.P3), there was fracture of ulna and first metacarpal bone on the right hand and also there was fracture of fifth metacarpal bone over the right foot. Gordhan (PW3) as per his MLR (Ex.P29) sustained six injuries, all of which were by blunt weapon and were simple in nature. Shyodan (PW13) as per his MLR (Ex.P30) has sustained three injuries, two of which were simple and one is grievous. The x-ray report (Ex.P17) has shown fracture of lower end of ulna in P.O.F. slabe. Jangali (PW8) as per his MLR (Ex.P31) also received six simple injuries, all by blunt weapon. The injuries of the deceased and the injured members of the complainant party shall have to be therefore seen in the light of the injuries of the accused themselves. Accused Prasadi as per his MLR (Ex.D1A), sustained five simple injuries. Jal Bai as per her MLR (Ex.D2A) sustained four simple injuries. Chhoti S/o Prasadi as per her MLR (Ex.D3A) has sustained three simple injuries. Kalu Ram as per his MLR (Ex.D4A) received three simple injuries. Accused Prasadi as per his MLR (Ex.D1A), sustained five simple injuries. Jal Bai as per her MLR (Ex.D2A) sustained four simple injuries. Chhoti S/o Prasadi as per her MLR (Ex.D3A) has sustained three simple injuries. Kalu Ram as per his MLR (Ex.D4A) received three simple injuries. Chotti W/o Ram Bharosi (15 of 25) [CRLA-258/1991] as per her MLR (Ex.D5A) sustained three simple injuries. Ramniwas as per his MLR (Ex.D6A) sustained two simple injuries. Dhapa as per her MLR (Ex.D1A) sustained three injuries, out of which one injury was grievous. Apart from the fact that the complainant party has not at all given explanation of the injuries sustained by the seven members of the accused-party. 19. Now we have to see the testimony of eye witnesses to find out as to what role they have assigned to the accused-appellants and whether they are witnesses of truth. The informant Gordhan (PW3) has alleged that Kalu, Ramniwas, Bharosi, Prasadi, Dhapa, Mooli, Gallo, Chhoti, Moti and Jal Bai had subjected Budha to ‘marpeet’ in the agriculture field. Kalu had a ‘farsi’, Ram Niwas had a ‘dharia’ and Bharosi had a ‘kulhari’ and others had ‘lathis’. Gurcha, who was guarding the agriculture field called him (this witness). Thereupon, he along with Jangali and Shyodan reached there. Then he saw Kalu inflicting a ‘farsi’ blow on the head of Budha, Ramniwas inflicting a ‘dharia’ blow on head of Budha and Bharosi inflicting a ‘kulhari’ blow on the head of Budha. Others caused injuries to Budha by ‘lathis’. Johari (PW4) has also been cited as eye witness. He too has alleged that Kalu inflicted a ‘gandasi’ blow on the head of Budha, Ram Niwas inflicted a ‘dharia’ blow on the head of Budha and Bharosi inflicted a ‘kulhari’ blow on the head of Budha. Hatila (PW6) has also similarly stated that Kalu had ‘barchi’, Ramniwas had ‘dharia’, Bharosi had ‘kulhari’ and others had ‘lathis’. Kalu inflicted a ‘barchi’ blow on the head of Budha, Ramniwas inflicted a ‘dharia’ blow on the head of Budha and thereafter when he fell, all started beating him. Chhotkya (PW7) has also stated that actually Bharosi inflicted a ‘farsi’ blow on the head of Budha followed by Kalu inflicting a ‘dharia’ blow on his head. 20. Kalu inflicted a ‘barchi’ blow on the head of Budha, Ramniwas inflicted a ‘dharia’ blow on the head of Budha and thereafter when he fell, all started beating him. Chhotkya (PW7) has also stated that actually Bharosi inflicted a ‘farsi’ blow on the head of Budha followed by Kalu inflicting a ‘dharia’ blow on his head. 20. Chhotya (PW9) S/o Ram Bux Meena stated that Kalu inflicted a ‘farsi’ blow, Ram Niwas inflicted a ‘dharia’ blow and Bharosi inflicted a ‘kulhari’ blow on the head of Budha. He when confronted with his police statement (Ex.D12) where he stated that Gordan, Jangali, Shyodan and Chotkya on the onset of quarrel came their with ‘lathis’. He denied having given any such statement to the police. When a suggestion was put to this witness in cross examination that Budha and members of the party wanted to forcibly take possession of the disputed land, which was in possession of accused party, this witness denied such suggestion. Shyodan (PW13) has stated that Kalu inflicted ‘dharia’ blow on the head of Budha, followed by Bharosi, who delivered a ‘kulhari’ blow on the head of Budha and Ramniwas inflicted a ‘barchi’ blow on the head of Budha. Then all the accused started beating them with ‘lathis’. When he was confronted with that part of the statement given to the police wherein he stated that accused party received injuries on their own and further to some extent they (complainant party) defended themselves, this witness denied having given any such statement. In further cross examination, this witness has admitted that even prior to this incident, the police case was registered with regard to the stolen harvest of the wheat. Rameshwar (PW14) has also alleged that Kalu inflicted a ‘barchi’ blow on the head of Budha, Ram Niwas inflicted ‘dharia’ blow on his head and then all started beating him and other injured. When confronted with his police statement (Ex.D18) in which he stated that earlier this land was in possession of Prasadi and members of the family and they were cultivating it, but for last two years, Buddha, Chotkya, Gordhan, Jangali and Shyodan were cultivating the land, this witness denied having given such statement to the police. 21. When confronted with his police statement (Ex.D18) in which he stated that earlier this land was in possession of Prasadi and members of the family and they were cultivating it, but for last two years, Buddha, Chotkya, Gordhan, Jangali and Shyodan were cultivating the land, this witness denied having given such statement to the police. 21. Cumulative reading of the statement of the aforementioned eye witnesses by the prosecution make it clear that most of them are alleging that three accused namely; Ramniwas, Kalu and Bharosi delivered three repeated blows and some of them are saying that only Kalu and Ramniwas inflicted blows on the head of Budha, whereas as per postmortem report, he sustained only one fatal injury, being injury no.1. Obviously, these witnesses are exaggerating and not speaking the truth. Even in the written report (Ex.P4), Gordhan, who claimed to be eye witness has not attributed any specific injury to any accused as to cause death of Budha. Strangely, all the eye witnesses are silent about the injuries on the accused. The genesis of the incident has thus been completely suppressed by the prosecution for the court. 22. Coming back to the injuries caused to deceased Budha, as per his postmortem report (Ex.P1), the fatal injury i.e. injury no.1 that he received was incised wound in the size of 7 ½cm x 5cm x 3cm, but the other two injuries i.e. injury no.2 being lacerated wound of 2 cm x ½ cm x ¼ cm in size on occipital bone and the injury no.3 was abrasion of 2 cms x ½ cm in size on dorrum of little finger of right hand, were both simple in nature. In other words, only injury no.1 of Budha, which is an incised wound, could have been caused by anyone of the three sharp edged weapon ascribed to the three accused namely; Kalu, Ramniwas and Bharosi. 23. The Supreme Court in Chanan Singh vs. State of Punjab- AIR 1979 SC 1114 was dealing with a case where the High Court has clearly found that the prosecution has not presented the true version of the occurrence and therefore it was not possible for the court to find how the occurrence originated and who was the aggressor. 23. The Supreme Court in Chanan Singh vs. State of Punjab- AIR 1979 SC 1114 was dealing with a case where the High Court has clearly found that the prosecution has not presented the true version of the occurrence and therefore it was not possible for the court to find how the occurrence originated and who was the aggressor. Two persons on the side of the prosecution had suffered one grievous injury each, whereas five persons on the side of the accused were also injured and two of them had grievous injuries. The High Court also found that it was not a case of free fight and, therefore, it was difficult to hold that the appellant fired a shot from his gun merely to assault and not in self defence, particularly when the appellant himself had many injuries, one of which was grievous. Though the High Court did not accept the case of the defence, but the High Court observed that once there is a probability of the accused having acted in self defence, that is sufficient to entitle him of acquittal. The High Court repelled the argument of the prosecution that appellant could be convicted for individual assault as held by the Court of Sessions. The Supreme Court refused to interfere with the judgment of the High Court as in its view, the High Court had given cogent reasons for disagreeing with the view of the Sessions Judge. 24. In Vajrapu Sambayya Naidu & Ors. vs. State of A.P. & Ors.- AIR 2003 SC 3706 , the facts were somewhat similar to the present matter. As per the material on record, three of the accused were found in possession of the land in question. It was held that appellants were only defending their possession against the deceased and his family members. There is clear evidence on record that three of the appellants had also received injuries in the same incident. Once the members of the prosecution party started an assault on them with sharp cutting weapons, that gave rise to the right of private defence of person as well. Appellants are entitled to exercise their right of private defence of property and person and could not be held guilty of offence u/s.148 IPC. Once the members of the prosecution party started an assault on them with sharp cutting weapons, that gave rise to the right of private defence of person as well. Appellants are entitled to exercise their right of private defence of property and person and could not be held guilty of offence u/s.148 IPC. Further, it was held that appellants could not be held guilty of offence u/s.148 IPC because nothing is an offence which is done in the exercise of the right of private defence. Moreover, the evidence on record in that case was to the effect that death was result of cumulative effect of one injury. It was held that appellants in exercise of right of private defence of property were certainly entitled to use such force as was necessary, but not causing death. 25. The Supreme Court in Munshi Ram & Ors. vs. Delhi Administration- AIR 1968 SC 702 was dealing with a case where the appellants were convicted for offence u/ss.447, 324 read with 149 and 148 IPC. There was a dispute over the possession of the land. While the appellants-tenant of the land claimed that they were in possession, opposite party tried to take possession forcibly. The appellants resisted their effort, which resulted into death of one of the members of the opposite party. The appellants pleaded right to private defence, however, were convicted upto the High Court. Then the matter reached the Supreme Court. The Supreme Court in appeal held that their action would be covered by principle of private defence embodied in Section 96 to 105 of the IPC. The Supreme Court in para 15 of the judgment observed as under: “xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force.” 26. In Laxman Singh Vs. Poonam Singh & Ors.- AIR 2003 SC 3204 , it was held by the Supreme Court that to claim a right of private defence extending to voluntary causing death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had the right of private defence which extended to causing of death. Sections 100 and 101 of IPC defined the limit and extent of right of private defence. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. However, at the same time, the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. It was further held that the number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probablise the version of the right of private defence. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until there is a reasonable apprehension, but the right lasts so long as the reasonable apprehension of the danger to the body continues. 27. In Padam Singh vs. State of U.P.- AIR 2000 SC 361 , it was held by the Supreme Court that it is also well settled that when the prosecution does not explain the injury sustained by the accused at about the time of the occurrence or in the course of occurrence, the Court can draw the inference that the prosecution has suppressed the genesis and origin of the occurrence and has thus, not presented the true version. It is also well settled, where the evidence consists of interested or inimical witnesses, then, non-explanation of the injury on the accused by the prosecution assumes greater importance. In absence of such explanation, testimony of the prosecution witnesses became unreliable and accused is entitled to benefit of doubt. 28. The Supreme Court in Mohd. Khalil Chisti vs. State of Rajasthan- 2013 (2) SCC 541 has observed as under: “The analysis of the materials clearly show that two versions of the incident adduced by the prosecution are discrepant with each other. In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principles which we have already discussed, we are of the view that each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts.” 29. In the present case, the prosecution witnesses have not only not explained the injuries of the accused, but have rather denied that such injuries were caused in the same incident. Moreover, the prosecution witnesses have consistently alleged that three of the accused namely; Kalu, Bharosi and Ramniwas caused injuries to the deceased by sharp edged weapon and all on the head of deceased, whereas there was only one corresponding injury, being injury no.1, on the head of deceased by sharp edged weapon. Some of the witnesses are attributing such injury to two of the accused namely; Kalu and Ramniwas, out of the above named three accused and nevertheless the witnesses have not spoken the truth as to the manner in which the incident started and as to who is that single accused, who caused fatal injury to the deceased. In the facts of the case, the evidence completely proves that the accused-appellants were cultivating the disputed land for a long time and they have possession vis-a-vis claim of the possession of the complainant party. The prosecution and complainant party have not been able to deny that the accused came in possession of the land pursuant to the ‘bakshish nama’ executed in their favour by Ananda and Punya both. Merely because Ananda has executed a sale deed in favour of the complainant party, would not have the effect of divesting the appellants of the possession of land. Merely because Ananda has executed a sale deed in favour of the complainant party, would not have the effect of divesting the appellants of the possession of land. In fact, no evidence has been adduced to show as to how and in what manner, the complainant came to acquire the possession over the land. The Additional District Judge dismissing the application of the accused-party for appointing the Receiver prior to the date of incident relied on the finding recorded on report of Tehsildar, which is wholly misconceived. The said inspection was carried out by the Tehsildar after the incident in the present case when most of the accused were in jail or in fact, the order rejecting the application under Order 14 Rule 1 CPC itself was passed much after the incident. This order cannot be taken as a proof with regard to possession of the complainant on the day of incident. 30. The accused having proved their possession for a long time is, therefore, certainly entitled to defend the same and in that process, if one of them hit the deceased on the head but accused themselves received injuries in the scuffle that has ensued between both the sides in their apprehension of dismissal from the land in dispute. In such a scenario therefore if one of the blow of one of the accused hit the deceased, such injury cannot be held to have been delivered with the intention of causing culpable homicide amounting to murder. Besides, it cannot be held that one of the accused was responsible for his individual act of causing death given the nature of injury to the deceased. Even such finding cannot be recorded that it was a case of free fight where one of the accused exceeded the right of private defence. The evidence is such where the rule of segregating the grain from the chaff cannot be applied to segregate the truth from the falsehood as none of the prosecution witnesses especially, those who claimed themselves to be eye witnesses, including injured eye witnesses, are speaking the truth. There has thus been a deliberated endeavour on the part of the prosecutions witnesses to suppress the genesis of the incident from the Court, thus making it difficult to arrive at the truth. There has thus been a deliberated endeavour on the part of the prosecutions witnesses to suppress the genesis of the incident from the Court, thus making it difficult to arrive at the truth. All these circumstances taken cumulatively entitles the accused-appellants to not only the right of private defence of property and person, but also the consequential benefit of doubt. 31. In view of above discussion, the accused-appellants have been able to make out a case for extending them benefit of doubt. Charges for the alleged offences cannot be held to have been proved against accused-appellants beyond reasonable doubt. We, are, therefore, persuaded to allow this appeal and acquit the accused-appellants. 32. In the result, the present appeal qua accused-appellants Prasadi and Dhapa is dismissed as abated. The appeal qua accused-appellants Kalu Ram, Ram Bharosi @ Bharosi, Ram Niwas, Mst. Bhoti, Mst. Jalbai and Mst. Gallo @ Gillo deserves to be succeed and is accordingly allowed. The impugned judgment dated 26.07.1991 passed by Sessions Judge, Dausa in Sessions Case No.14/1988 is set aside. The accused-appellants namely; Kalu Ram, Ram Bharosi @ Bharosi, Ram Niwas, Mst. Bhoti, Mst. Jalbai and Mst. Gallo @ Gillo are acquitted from all the charges. The accused-appellants are on bail, therefore, their bail bonds are discharged. They need not surrender and are at liberty forthwith. 33. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, 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 Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.