Manna Singh and Others (In Jail) vs State of U.P.

J.C. Gupta, J.—Each of the above named Appellants has been convicted and sentenced to imprisonment for life u/s 302, read with Section 149, I.P.C. to undergo 3 years R. I. u/s 325/149, I.P.C. two years R. I. u/s 324/149, I.P.C. and to undergo 6 months R. I. u/s 323/149, I.P.C. Appellants Babuwa Singh and Amar Singh have further been sentenced to undergo R. I. for one year u/s 148, I.P.C. while the remaining Appellants have been sentenced to undergo R. I. for six months u/s 147, I.P.C. All the sentences are to run concurrently.

By means of this appeal, the Appellants have challenged the order of conviction and sentence dated 19.12.1980 passed by the then I Xth Addl. Sessions Judge, Kanpur, in Sessions Trial No. 5/M, of 1977.

In this particular case, there are two cross-versions one, put by the prosecution and the other by the accused persons. The incident occurred on account of a dispute relating to a piece of land belonging to Gram Samaj having an area of about 5 biswas. Topography of the said land is depicted in the site plan Ex. Ka-20 prepared by the Investigating Officer on spot inspection. The house of complainant Chhotey Singh, P.W. 1, opens on western side in an open piece of land. To the further west of this, a lane runs north south. To the west of this lane, there is Bardwan (cattle shed) of the complainant Chhotey Singh. It has only one door, which opens in the east on a chabutara appurtenant to the lane running north-south and it has no out let in its west towards the disputed land. To the south of this cattle shed, there is another cattle shed which belongs to accused Hardeo Singh. Door of this cattle shed opens in south. In front of this cattle shed, there lies the house of accused Hardeo Singh and others whose door opens in north in the passage leading to the disputed land, i.e., the access to the disputed land runs in between the cattle shed of Hardeo Singh and his house.

According to the prosecution case, the aforesaid piece of land which belongs to Gram Samaj, was in possession of complainant Chhotey Singh for the last about 6-7 years before the date of incident which occurred on 4.7.1975. Accused Daulat Singh and accused Sughar Singh wanted to occupy forcibly the said piece land and, therefore, Chhotey Singh made a complaint to Virendra Veer Singh, the Pradhan of the village about one and half years ago. Whereupon Pradhan called both the parties and told accused Daulat Singh that until the matter was finally decided by him, nobody should cause any interference and whosoever was in actual possession would continue to hold the same. However, about 15-20 days prior to the date of occurrence, accused Daulat Singh forcibly fixed cattle pegs in the disputed land by the side of western wall of Chhotey Singh''s cattle shed and also started tethering his cattle. Finding this, Chhotey Singh approached Virendra Veer Singh-Pradhan who in turn sent Brij Lal to accused Daulat Singh to inform that he should desist from doing any mischief in the disputed land but Daulat Singh paid no heed to it. Chhotey Singh then again met the Pradhan who called accused Hardeo Singh and Daulat Singh and told them not to occupy the aforesaid land forcibly. At that time, accused Daulat Singh and Hardeo Singh assured the Pradhan that they would neither quarrel nor take any forcible possession but despite this assurance, the accused persons neither removed cattle pegs nor stopped tethering their cattle in the disputed land. Chhotey Singh then reported the matter to Pradhan who thereafter issued notices to accused persons but they refused to accept them and told the Pradhan that they would not receive them but would act as desired by him.

It is alleged that on 4.7.1975, at about 6 a.m., accused Manna Singh, Daulat Singh, Babuwa Singh, Amrit Singh, Hardeo Singh, Raghunath Singh, Sughar Singh and Amar Singh formed a group and collected in the disputed land. Babuwa Singh was having ''kanta'', Amar Singh a phawara (spade), Sughar Singh an iron rod and the remaining accused had lathis in their hands. They asked accused Amar Singh to dig the foundation whereupon the said accused started digging foundation by the side of the western wall of Chhotey Singh''s cattle shed. Chhotey Singh, P.W. 1, also reached there and asked the accused persons to stop digging as Pradhan has already asked them not to cause any interference, but the accused persons did not listen and continued with the digging. An altercation then ensued between them. In the meantime, Manni Singh son of Girdhari Singh, younger brother of Chhotey Singh also arrived there and he also remonstrated but the accused persons were not prepared to succumb and abused him. They started assaulting him and Chhotey Singh with their respective weapons. When Girdhari Singh and Smt. Laxmi Devi, father and mother of Chhotey Singh came to their rescue, they were also assaulted by the accused persons. After assaulting Chhotey Singh and his family members, accused persons retreated to their houses. Chhotey Singh took Manni Singh, Girdhari Singh and Laxmi Devi to police station Sachendi and lodged an oral report Ex. Ka-1, at 8.45 a.m. On the basis of this report a case was registered in the general diary. Its copy is Ex. Ka-6. Since the condition of Manni Singh was serious he was sent to U.H.M. Hospital with constable Ram Naresh Mishra where his injuries were examined by Dr. Surya Prakash Dubey at 10.10 a.m. Following injuries were found on the person of Manni Singh:

(1) Incised wound 23.5 cm. ? 2 cm. ? bone deep (skull) extending from tip of nose right side to the left parietal region. Posterior end of the wound is 9 cm. above the left ear. Bleeding was present.

(2) Black eye left side.

(3) Incised wound 3.5 cm. ? 1.5 cm. ? muscle on front of left fore arm lower part.

Injuries were kept under observation and X-ray of skull was advised. Injured was admitted in the hospital. The injuries were fresh in duration. Injuries Nos. 1 and 3, were caused by a sharp object while injury No. 2, by blunt object. His injury report is Ex. Ka-2.

Injuries of Girdhari Singh were examined at 11.15 a.m. by the same doctor and he noticed the following injuries:

(1) Lacerated wound 1 cm. ? .5 cm. ? skin on outer part of left eye-brow. Clotted blood present.

(2) Contusion 6 cm. ? 1 cm. on right lower part back.

In the opinion of the doctor injuries were fresh, simple in nature and were caused by blunt object. Injury report of Girdhari Singh is Ex. Ka-3.

Laxmi Devi was also examined by this doctor on the same day at 11.30 a.m. and only one undernoted injury was found on her person:

(1) Lacerated wound .5 cm. ? 0.25 cm. ? muscle deep on dorsum of left hand. Bleeding present with diffused swelling on dorsum of hand. X-ray was advised of left hand.

Injury was caused by blunt object and was fresh in duration. Injury report of Laxmi Devi is Ex. Ka-4.

Chhotey Singh was medically examined by the same doctor at 2 p.m. and the following injuries were found:

(1) Incised wound 2 cm. ? 0.5 cm. ? skull on right parietal region, 6 cm. above right ear. Clotted blood present.

(2) Linear abrasion 2.5 cm., on front of right arm middle.

(3) Contusion 3.5 cm., on the outer part of right fore arm upper part.

(4) Incised wound 1 cm. ? 0.25 cm. ? skin on dorsum of left thumb.

Injury Nos. 1 and 4, were caused by sharp object while rest by blunt object. Duration of injuries was fresh and they were simple in nature. Injury report of Chhotey Singh is Ex. Ka-5.

Though in the first information report, there was no mention of Km. Hemlata, daughter of Chhotey Singh and Smt. Rekha being present at the scene of occurrence or their receiving any injury in the course of incident but later the prosecution came up with the case that Km. Hemlata and Smt. Rekha also received injuries in the course of the incident. Their injuries were medically examined after four days by Dr. Amar Bhupendra Mani Pandey on 8.7.1975, at 4.30 p.m. He found following injuries on the person of Km. Hemlata:

(1) Lacerated wound 1.5 cm. ? 0.25 cm. with crush over it. Right side parietal eminence in line to ears.

(2) Healed abrasion in middle 3.5 cm. ? linear dorsum of right fore arm. 7 cm. proximal to right wrist.

(3) Complain of pain in lumber region. No mark of injury seen.

In the opinion of doctor injury Nos. 1 and 2, were caused by hard and blunt object and their nature was simple. The injuries were about 4 to 4-1/2 days old. Injury report of Km. Hemlata is Ex. Ka-18.

Injuries of Smt. Rekha were examined by Dr. Pandey on 8.7.1975, at 4.20 p.m. and following injuries were noted:

(1) Contused swelling behind left elbow 2 cm. ? 2 cm. with two minor pointed crusted abrasions.

(2) Linear abrasion 2 cm. (crusted) superaspenor region of right scapula.

(3) Contused abraded swelling left side forehead of 2 cm. ? 2 cm. bluish black 3 cm. above left eyebrow with crusted abrasion 1.5 cm.

(4) Contused swelling right occipital region at top 1 cm. ? 1 cm.

(5) Complain of pain on lower portion of back.

All the injuries were simple and were caused by hard and blunt object and they were about 4 and half days old. Injury report of Smt. Rekha is Ex. Ka-19.

Shri Krishna Lal Verma P.W. 10 took up the investigation and he interrogated Chhotey Singh at the police station before he was sent to hospital for medical examination. Thereafter he went to the place of occurrence and interrogated Babu Singh, Lal Singh, Rati Ram and others, prepared site plan Ex. Ka-20 and took into his possession blood stained and simple earth through memo Ex. Ka-21.

Manni Singh who was admitted in the hospital on 4.7.1975, died there on 6.7.1975 at about 1.30 a.m. Information of his death was sent to police station Kotwali whereupon S.I. Markandey Singh came to the hospital and conducted inquest on the dead body and after preparing necessary papers sent it to mortuary for post-mortem examination. The autopsy was conducted by Dr. S. S. Agarwal, P.W. 6, on 6.7.1975 at 3.30 p.m. Following ante-mortem injuries were found:

(1) Stitched wound 23.5 cm. with 24 stitches extending tip of nose of right side to the left parietal region. Posterior side of wound is 9 cm. above left ear.

(2) Blackness present in the left eye and lid.

(3) Stitched wound 3.5 cm. with four stitches front aspect of left fore arm lower end.

In the internal examination, left frontal, left parietal and left temporal bones were found fractured. The brain was congested and clotted blood was present on left side lobe on front side. Base of skull was found fractured on its frontal aspect. In the opinion of the doctor death was due to shock and haemorrhage as a result of head injuries. His post mortem report is Ex. Ka-10.

During the course of investigation statements of other witnesses were also recorded and after completion of the same, all the accused persons were charge-sheeted.

At the trial, prosecution in support of its case produced 11 witnesses in all. Out of whom Chhotey Singh P. W. 1, Rajit Ram Singh P.W. 3 and Km. Hemlata P.W. 4, are witnesses of fact. P.W. 2 Dr. Surya Prakash Dubey proved injury reports of Manni Singh, Girdhari Singh and Laxmi Devi while Dr. Amar Bhupendra Mani Pandey, P.W. 9 proved the injury reports of Km. Hemlata and Smt. Rekha. P.W. 5 S.I. Nawab Singh who was at the relevant time posted as Head Moharrir proved chick report and the general diary entry registering the case. P.W. 6 Dr. S. S. Agarwal proved the post mortem report, P.W. 7 Surendra Singh, X-ray technician proved the X-ray report of Laxmi Devi as Ex. Ka-7 which disclosed that there was a fracture in left third metacarpal, P.W. 8 S.I. Markandey Singh conducted the inquest proceedings, P.W. 10 S.I. Krishna Lal Verma is the Investigating Officer and P.W. 11 Dr. R. P. Prakash proved the X-ray report of Laxmi Devi.

The defence of accused Daulat Singh and Hardeo Singh was that they were in settled and peaceful possession of the disputed land, Chhotey Singh and Manni Singh had no concern whatsoever with the said land and they wanted to forcibly occupy the said land and with this end in view they on the date of occurrence arrived at the scene along with their father and mother and Battu Lal. They were armed with kanta, kulhari and lathi. Accused Daulat Singh and Hardeo Singh were digging foundation in the disputed land for raising their construction. Chhotey Singh and others asked them to stop digging foundation whereupon the accused told them that the foundation was being dug in their own land. This infuriated Chhotey Singh and other and they started assaulting Hardeo Singh and Daulat Singh with their respective weapons. Daulat Singh and Hardeo Singh saved themselves with lathi and Pharsa as a result of which injuries were sustained on prosecution side. According to them the incident was witnessed by Babu Singh, Pradhan and Sitaram. Accused Hardeo Singh got prepared F.I.R., Ex. Kha-3 from Babu Singh and lodged the same at police station Kotwali at 4.15 p.m. on 4.7.1975, on the basis of which case was registered in the general diary. Its copy has been proved as Ex. Kha-4. Injuries of accused Hardeo Singh and Daulat Singh were examined in police custody by Dr. R. S. Pandey D.W.2. Accused Hardeo Singh was examined at 4.50 p.m. on 4.7.1975, and following injuries were found on his person:

(1) Lacerated wound .5 cm. ? muscle on left side elbow outer aspect.

(2) Swelling 11 cm. ? elbow on lower 1/3rd of forearm left side.

(3) Incised wound 4 cm. ? 1.5 cm. ? muscle on right side elbow, 4 cm. above top of elbow.

In the opinion of the doctor all the injuries were simple and were about 6-12 hours old. Injury Nos. 1 and 2, were caused by blunt object while No. 3, with sharp cutting object. Injury report of Hardeo Singh is Ex. Kha 1.

Injuries of accused Daulat Singh were examined at 5.30 p.m. on 4.7.1975, and the following injuries were found:

(1) Lacerated wound 1 cm. ? .5 cm. ? scalp with swelling 4 cm. ? 4 cm. on left side head. 11 cm. from left ear.

(2) Complains of pain in left thumb. No mark of external injury seen.

(3) Swelling 8 cm. ? 6 cm. on right side upper arm 1 cm. above elbow.

(4) Contusion 1 cm. ? 2 cm. on right side back middle, 1 cm. from mid line.

In the opinion of the doctor all the injuries were simple and caused by blunt object and they were about 6-12 hours old. Injury report of Daulat Singh is Ex. Kha-3.

Other accused persons, however, denied their presence at the scene of occurrence. They further denied the presence of Km. Hemlata and Smt. Rekha at the place of incident. Prabhu Singh, D.W. 1, Dr. R. S. Pandey, D.W. 2 and Israr Ahmad, D.W. 3 were produced as defence witnesses.

On an appraisal of the evidence, learned Sessions Judge came to the conclusion that there was no dispute from the defence side regarding the date and place of occurrence and in the course of the said incident, Manni Singh, Girdhari Singh, Chhotey Singh, Laxmi Devi, Km. Hemlata and Smt. Rekha received injuries. Manni Singh died after two days as a result of injuries sustained by him during the course of incident. With regard to the question as to which of the parties was aggressor, the finding recorded by the trial court is that it could not be shown that the accused persons had taken actual physical possession of the land in dispute, on the other hand, Chhotey Singh was in physical possession towards west of his cattle shed excepting that land over which accused Daulat Singh and Hardeo Singh had fixed their cattle pegs and that the injuries on the defence side have been satisfactorily explained by the prosecution witnesses. In short the plea of the accused that they were in actual physical possession of the land in question and had acted in right of private defence of person and property has not been accepted by the learned Sessions Judge.

We have heard learned Counsel for the Appellants, learned A.G.A. for the State as well as the learned Counsel appearing for the complainant.

The factum of death of Manni Singh is neither disputed nor challenged before us. It also could not be disputed that in the course of incident, Manni Singh, Girdhari Singh, Laxmi Devi and Chhotey Singh, P.W. 1 had received injuries. The place of incident has also not been disputed. However, the genesis and manner of incident has been seriously challenged so also the finding of the learned Sessions Judge regarding possession of the disputed land.

In a case like the present one, the primary question that arises for consideration is whether from the evidence on record, possession of complainant party over the disputed land has been established beyond reasonable doubt and has it been proved affirmatively that the accused party tried to unsettle complainant''s possession and was the aggressor? We now proceed to examine the evidence on record on this important question keeping in mind that the burden of proving the plea of self-defence is not of the same standard as that rests upon the prosecution. If the evidence on record probabilises the plea of self-defence, accused is entitled to get the benefit of a reasonable doubt. It may also be noted here that no one including the true owner has a right to dispossess any person who is in settled and peaceful possession of the land even though he may be a trespasser and if such a person is tried to be evicted forcibly, the law gives him a right to defend his possession.

Keeping in mind these principles, we now proceed to examine the evidence on record to find out whether the complainant party was in peaceful and settled possession over the land in question?

We have already placed the topography of the disputed land in the beginning of this judgment. From the site plan Ex. Ka-20, it is apparent that no door of the cattle shed of complainant Chhotey Singh opens in the west over the disputed land. Towards the disputed land is the western rear wall of the cattle shed of the complainant which has no outlet on the disputed land. The cattle shed of complainant has an opening in the east on a chabutara which is appurtenant to a lane running north-south. On the other hand, cattle shed of accused Hardeo Singh has its door in the south in a chhappar. After this chhappar to the further south, there is a pathway leading to the disputed land. If we advance further south of this pathway, we would find the house of accused Hardeo Singh. The spot position is thus indicative of the fact that most likely the accused party was in possession of the land in question.

In support of the claim of the prosecution that complainant was in possession over the land in question, we have before us the solitary statement of P.W. 1, Chhotey Singh. P.W. 3 Rajit Ram Singh has not stated anything about possession of Chhotey Singh and others rather he admitted in his cross-examination that when accused Amar Singh was digging foundation, Chhotey Singh tried to stop him but Amar Singh continued the digging. Similarly P.W. 4, Hemlata, the daughter of Chhotey Singh has not stated a single word regarding possession of his father over the land in question. The solitary testimony of P.W. 1 Chhotey Singh is most inappropriate and insufficient to prove his possession over the land in question. In his statement before the Court, he admitted that the entire land lying to the west of his cattle shed belonged to Gram Samaj but he stated that for the last about 10 years, the same was in his possession as he and his family members were throwing rubbish, prepared cow dung cakes and tethered their cattle on the said land. Accused persons wanted to forcibly occupy this land when he came to know of their intention, he made a complaint in writing to Pradhan, Virendra Veer Singh about one and half years prior to the date of occurrence. On his complaint, Pradhan called accused Daulat Singh and accused Hardeo Singh and told them that till the matter was finally decided by him status quo should be maintained. He admitted that about 15-20 days prior to the date of occurrence, accused Daulat Singh had forcibly fixed cattle pegs and started tethering his cattle there. Chhotey Singh again approached the Pradhan whereupon the latter through his servant Brij Lal asked the accused persons to desist from doing any unlawful activity in the disputed land but no heed was paid by the accused persons. Chhotey Singh then again went to Pradhan and made another complaint whereupon the Pradhan called accused Daulat Singh and Hardeo Singh at his residence and told them not to occupy the land in question forcibly. Hardeo Singh and Daulat Singh at that time assured Pradhan that they would abide by his decision. Despite this assurance, Daulat Singh continued to tether his cattle in the land in question and did not remove his cattle pegs from there. Chhotey Singh again went to Pradhan whereupon the Pradhan had sent a notice to accused Daulat Singh and Hardeo Singh through his servant Brij Lal but the notices were not received by the accused persons instead they went to Pradhan and promised to obey his command. P.W. 1 Chhotey Singh further stated that thereafter Daulat Singh stopped tethering his cattle in the land in question about 3-4 days before the date of occurrence. For the reasons best known to the prosecuting agency, neither Pradhan Virendra Veer Singh nor his servant Brij Lal were examined in the trial court who were most material witnesses to unfold the truth about possession on the land in question. Non-production of these witnesses is a circumstance, which heavily militates against the prosecution. It is further in the statement of P.W. 1 Chhotey Singh that Pradhan had even issued notices in writing to the accused persons but no such notice was produced at the trial nor was got summoned. Who knowns what were the contents of the said notice if at all the same was issued by Pradhan as alleged by Chhotey Singh. There seems to be weight in the submission of the learned Counsel for the Appellant that perhaps the contents of the notice were against the assertion of the complainant and the Pradhan and Brij Lal were not ready to support the complainant on his possession over the land in question, hence the prosecution with an oblique motive withheld them from the Court. In the first information report, Chhotey Singh clearly mentioned that about 15-20 days prior to the date of incident, accused persons had fixed their cattle pegs and had also started tethering their cattle. He even admitted this fact in his statement in Court. This averment clearly indicates that it was admitted to Chhotey Singh that accused Daulat Singh was in possession and had not vacated the plot in dispute despite complaints made to the Pradhan. Realizing this weakness in the prosecution case, Chhotey Singh, P.W. 1 developed for the first time a case at the trial that about 3-4 days prior to the date of incident, accused had removed their cattle pegs and stopped tethering their cattle. The F.I.R. did not contain any such fact and when the attention of Chhotey Singh was invited to this material omission, he admitted that he did not make any mention of this fact in his report. It may not be out of place to mention here that Chhotey Singh has admitted in his statement that he is a postgraduate in Maths and Physics. In this view of the matter, it is inconceivable that this important fact would have been omitted from being mentioned in the F.I.R. It is also noteworthy that such an important fact was not even stated by him to the Investigating Officer in his statement recorded u/s 161, Cr. P.C. Apart from the same being a development at the trial, the contention of P.W. 1, Chhotey Singh that accused Daulat Singh had vacated his possession 3-4 days prior to the date of occurrence would further appear to be false from his very admission made in his statement before the Court where he stated that accused Daulat Singh and Hardeo Singh had assured the Pradhan some 4-5 days before the incident that they would not take possession of the land nor would quarrel and despite this assurance, Daulat Singh did not stop tethering his cattle in the disputed land nor removed cattle pegs. Chhotey Singh further admitted that other persons had also witnessed the accused vacating the plot, yet he did not remember their names and the falsity of his statement is further exhibited as he failed to disclose the date and time when the accused persons vacated the plot in question. In cross-examination, Chhotey Singh further admitted that out of 5 biswas of land, accused Hardeo Singh was in possession of some area of vacant land which lie south west from the house of Hardeo Singh. He further admitted that the house of Hardeo Singh has two doors, one opens in the east and the other in the south. It is thus admitted that one door of the house of accused persons opened towards the disputed 5 biswas of land of Gram Samaj. It has also come in the cross-examination of this witness that there is a land measuring 30 ? 30 paces in the north of his residential house in which he has his old abadi. His handpipe and a fodder cutting machine are also installed in the said piece of land. Two neem trees also exist there and his cattle were tethered there. He also admitted in his cross-examination that he has no documentary proof of his having given any application to the Pradhan and he never made any complaint in writing to the police or the Pradhan when the accused persons fixed their cattle pegs nor any other action was taken against them. He further admitted that Pradhan had asked him to move an application for allotment of the land in question in the next meeting of Gram Samaj. When the Investigating Officer made inspection of the site of incident, he found that foundation had already been dug in the land in question by the side of western well of cattle shed of complainant Chhotey Singh. He further found some cattle pegs fixed in the land in question which as per the evidence on record were of accused persons. He admitted that he did not find any cow dung cakes placed in the land in question and the heap of cow dung was found placed in another piece of land adjacent to the land in question, on the western side. On a careful analysis of evidence on record, we find that the assertion of P.W. 1 Chhotey Singh that accused party had withdrawn their possession about 3-4 days before the date of occurrence besides being a development at the trial stage is not supported by any other piece of evidence and is not believable. After having given our thoughtful consideration to the entire facts and circumstances appearing in the case, we find it difficult to hold that the complainant party was in actual physical and settled possession of the land in question. On the other hand, the evidence on record when examined in the light of spot situation indicates that most likely the accused party was in possession of the land in question at the time when the incident occurred.

Out of the three witnesses of fact examined at the trial, P.W. 1 Chhotey Singh and P.W. 4, Km. Hemlata are highly interested witnesses, Chhotey Singh being the brother of the deceased Manni Singh and Hemlata being daughter of Chhotey Singh. Undisputedly Chhotey Singh was an accused in the cross-case which proceeded on the report made by accused Hardeo Singh. From the side of the accused, F.I.R. lodged by Hardeo Singh has been proved as Ex. Kha-3, and also the copy of general diary whereby case was registered as Ex. Kha-4. This F.I.R. was lodged against Chhotey Singh, Manni Singh wife of Girdhari Singh and Babu Lal alleging that on 4.7.1975 at about 7 a.m. when Daulat Singh was digging foundation for the construction of his house in his own land which was in his possession, the aforesaid persons came there armed with axe, lathi and kulhari and assaulted Daulat Singh and Hardeo Singh who defended themselves causing injuries on the prosecution side. This F.I.R. was also investigated and charge-sheet was submitted. D.W. 3 Israr Ahmad was posted as constable clerk at the police station Kotwali who proved the chick F.I.R. and the general diary entry and he further stated on oath that he had examined accused Hardeo Singh and Daulat Singh and found injuries on their persons. They were sent for medical examination through constable Abdul Mui. Dr. R. S. Pandey, D. W. 2 was produced by the accused persons who has proved the injury reports of accused Hardeo Singh and Daulat Singh. In cross-examination Dr. Pandey categorically stated that the injuries of accused persons were not superficial nor could be self inflicted. He further denied the suggestion of the prosecution that the injuries of accused persons could have been sustained due to a fall. Injury No. 1 of accused Daulat Singh was a lacerated wound on left side of head that would indicate that the same was on a vital part of the body. In the F.I.R., no explanation whatsoever has been given regarding the injuries suffered by aforesaid accused persons. Even at the trial prosecution totally failed to explain the injuries of accused persons. In cross-examination Chhotey Singh, P.W. 1, stated that neither he nor any person from his side assaulted any accused. He categorically stated that till the accused persons remained at the scene of occurrence, he did not see any injury on the persons of Daulat Singh and Hardeo Singh. He even went on to state that he and his family members were all empty handed. Similarly, P.W. 3 Rajit Ram also suppressed the fact of accused persons receiving injuries during the course of incident as he stated that no one assaulted accused Daulat Singh and Hardeo Singh even in defence as Chhotey Singh and others were not having any weapons. The injuries of the accused persons as per the statement of Dr. R. S. Pandey were not superficial nor self-inflicted. The injuries were examined on the same day and were even noted down in the general diary when case was registered on the basis of F.I.R. lodged by accused Hardeo Singh. It would thus appear that not only in the F.I.R. no explanation whatsoever with regard to the injuries sustained on defence side was given but the witnesses have also tried to conceal those injuries. We have already found above that it is highly doubtful that complainant party was in peaceful and settled possession of the land in question rather the evidence indicates that most likely accused party was in possession and as per the prosecution case, the incident had occurred when accused Daulat Singh and Hardeo Singh were digging foundation in the land in question. According to the defence case, those two accused persons were assaulted by Chhotey Singh and others and in defence, they caused injuries on the prosecution side. It may be that accused persons have also not stated the whole truth about the manner in which injuries were sustained on the prosecution side but for that reason alone, they cannot be held guilty. It is well-settled that where neither the prosecution nor the defence came out with the whole truth and where persons on both sides received injuries, the Court cannot make out a third case on the basis of surmises and conjectures. In such cases, there is no option but to acquit the accused persons. In this view of the matter, the argument of the State counsel that only two persons could not have succeeded in causing a good number of injuries on as many as six persons on prosecution side, therefore, the manner of assault as set up in the F.I.R. lodged by accused is false, is of no avail. Where the versions given by the prosecution as well as the defence are both unreliable and do not explain the situation at all inasmuch as according to the prosecution version, there is no explanation of the injuries of accused persons and according to the defence version, the explanation sought to be given regarding the injuries sustained on prosecution side is also not satisfactory, the accused would still be entitled to be given the benefit of doubt. The prosecution has to stand on its own legs and no weakness in the defence case can come to its rescue. Even though there may be a counter-version of the incident which may not be found wholly true, it will have no bearing upon the prosecution case and the burden will still remain on the prosecution to prove its case satisfactorily beyond any shadow of doubt. In the present case, the prosecution is guilty of suppressing the genesis and origin of the occurrence and of not presenting the true facts before the Court. In the circumstances, the possibility of the complainant party being the aggressor cannot be ruled out and accordingly the accused persons are entitled to get the benefit of doubt.

For the reasons stated above, we find that the prosecution has not succeeded in establishing its case beyond reasonable doubt against the Appellants and they are entitled to get benefit of doubt. Accordingly appeal is allowed, the order of conviction and sentence dated 19.12.1980, is set aside. The Appellants are acquitted of the offences charged for. They are on bail, they need not surrender and their bail bonds are cancelled and sureties discharged.