U.K. VERMA, J.
(1) SHRI D. N. Sharma,iii Additional Sessions Judge, Bulandshahar, while acquitting the appellants under Section 307 read with Section 149 of the I. P. C. had convicted them under Sections 323/325, read with Section 149, 147 and 452 I. P. C. Appellants Bhajana, Balwan and Kallu had been released on probation of good conduct for a period of two years and the remaining appellants had been sentenced, to one year rigorous imprisonment under Section 147, six months rigorous imprisonment under Section, 323/149, two years rigor our imprisonment under Section 325/149 and two years rigorous imprisonment under Section 452 of the I. P. C. The prosecution case, briefly stated is that on 5-10-1973 about 8:00 a. m. appellants Balwan and Balvir fixed cattle pegs on the common sahan land, when the informant Dharamvir and Dooli Chand protested, they agreeing to the advice given to them by the people of the village removed those cattle pegs. The appellants, because of the removal of the cattle pegs in the above manner, got infuriated and turned up at 4. 00 p. m. and threw challenge that they would see as to who could check them from refixing the cattle pegs. They also started hurling abuse. When Dccli Chand and Mehar Chand asked them not to abuse, they crossed the wall and tress passed into the Chaupal of Dccli Chand and assaulted Dharamvir Mehar Chand, Dooki Chand and Sardar. While being beaten Dharamvir and Sardar sanatched the lathis in the hands of Kallu and Badam and used them in self defence. The injured after the incident were taken to the police station Sikandara in a tractor trolley, where the report Ext. Ka-1, containing the above facts was lodged by Dharamvir at 5. 30 p. m. The medical examination of Dooli Chand was done at 7. 00 p. m. His injury report Ext. Ka-10 shows that he had sustained nine wounds, The medical examination report of Mehar Chandra is Ext. Ka-9 It follows from it that he was examined at 7. 15 P. M. and had in all sustained 18 injures. The medical report of Dharamvir is Ext. Ka-7 and indicates that he had suffered one injury. The medical report of Sardar Singh, Ext. Ka-8 reveals that he had been examined at 8. 30 p. m. and nine injures were found on his person. The total number of injures on the side of the informent were 37.
(2) THE prosecution had examined Dharamvir P. W. 1, Sardar Singh P. W. 3 and Sita Ram P. W. 4 and brought on record the copy of the judgment of II Munsif, Bulandshahar, dated 30-11-1961 to substantiate the charges against the appellants. The appellants had pleaded not guilty. They had produced the injury reports of the appellants Bhajan, Badam and Balwant, Marked Ext. Kha - 3, Kha-4 and Kha-5 respectively in support of their cross - case contained in Ext. Kha - 1, which was lodged at the same police station Sikandara at 8. 00 p. m. by Beg Raj Singh. It is to this purport that Dooli Chand, Sardar Mehar Chand, Roop Chandra, Chandra Pal and Dharamvir started uprooting the cattle pegs of Kallu and when his sons asked them not to do so, they assaulted them. Balwan, Bhajan Lal and Badam merely exercised their right of private defence. I have gone through the evidence on record and also the impugned judgment. The incident had taken place with regard to Sahan. According to the prosecution, there had been two incidents, one in the morning, when the cattle pegs were fixed and ultimately taken out by two of the appellants on the intervention of the people of the village and the second when the appellants without being, provided any cause, came armed with lathis on the Sahan land of Dooli Chand and caused injures to the above four persons, Dharam Vir, Dooli Chand, Mehar Chand and Sardar Singh. The accused pointed that there was no incident at all in the morning and that the incident in question took place when their old cattle pegs had been uprooted and on their protest they had been assaulted. The copy of the judgment, Ext. Ka-11, which the prosecution filed to show that the appellants could not fix the cattle pegs and that the informant and others on his behalf had a right to check the appellants shows that the II Munsif Bulandshahar had not interfered with the user of the land by Kallu, appellant no. I. The predecessor in interest of the informant had sought demolition of the Chapper of Kallu, but the same had not been allowed. They had merely been given a decree of joint possession over such part of the sahan land, in respect of which there was no exclusive user of Kallu on the ground that the land was sisable and their interest being one fourth in it, that would not suffer by the refusal of the mandatory injunction applied for. The statement of the 1. 0. shows that when he went to the scene of occurrence and inspected the Sahan land, which was the cause of the MARPEET, he found the signs of cattle pegs which had been uprooted and also noticed a number of cattle pegs which were intact on the sahan land and also the adjoining land with a number of cattle tied to them. He had also seen some bundles of harvested crop on the Sahan land, which was the bone of contention. The foremost point which required consideration was whether the disturbance by the information and his party men in the user of the Sahan and adjoining land by the appellants was tile cause of the MARPEET. The counsel for the appellants justifiably argued that the prosecution story about the appellants having themselves removed the pegs fixed by them before the incident looks ridiculous. The informant had not lodged any report regarding the quarrel in the morning nor produced any of the persons, through whose medication the appellants them selves had not only agreed to the removal of the cattle pegs, but actually removed then. It appears to be more probable that the story with regard to the removal of the cattle pegs by the appellants earlier in the morning had been set up to defect the pica of the right of the exercise of the right of private defence in respect of their user, If the appellants could have felt so hurt on account of the removal of the cattle pegs, they would not have condescended to their removal as is the prosecution story. The statement of Dharamvir about the appellants having not fixed any cattle peg earlier on the Sahan land, does not appears to be consistent with this fact which is beyond reproach that they had already their hut on the sahan land and had been using it and also a part of the open land, exclusively although there was still enough land which could be given to the other claimants if they brought suit for partition of their interest.
(3) THE prosecution witnesses Dharmvir P. W. I, Sardar Singh P. W. 3 and Sita Ram stated that all the injured were in the Sahan of Dooli Chand and just because they protested that they should not be abused, they were assaulted. The assault according to them had commended inside the tin shed. Dharamvir pointed that on receiving the lathi blow, he sat down and thereafter no one inflicted any lathi injury on him. He later, in his unguarded moment deposed that after he had used the lathi once or twice that he was assaulted. He admitted that he had not hunded over the lath is seized from the appellants to the Investigating Officer, and that 8. OOp. m. by Beg Raj Singh. It is to this purport that Dooli Chand, Sardar Mehar Chand, Roop Chandra, Chandra Pal and Dharamvir started uprooting the cattle pegs of Kallu and when his sons asked them not to do so, they assaulted them. Baiwan, Bhajan Lal and Badam merely exercised their right of private defence. I have gone through the evidence on record and also the impugned judgment. The incident had taken place with regard to Sahan. According to the prosecution, there had been two incidents, one in the morning, when the cattle pegs were fixed and ultimately taken out by two of the appellants on the intervention of the people of the village and the second when the appellants without being provided any cause, came armed with lathis on the Sahan land of Dooli Chand and caused injures to the above four persons, Dharam Vir, Dooli Chand, Mehar Chand and Sardar Singh. The accused pointed that there was no incident at all in the morning and that the incident in question took place when their old cattle pegs had been uprooted and on their protest they had been assaulted. The copy of the judgment, Ext. Ka-11, which the prosecution filed to show that the appellants; could not fix the cattle pegs and that the informant and others on his behalf had a right to check the appellants shows that the 11 Munsif Bulandshahar had not interfered with the user of the land by Kallu, appellant no. I. The predecessor in interest of the informant had sought demolition of the Chapper of Kallu, but the same had not been allowed. They had merely been given a decree of joint possession over such part of the sahan land, in respect of which there was no exclusive user of Kallu on the ground that the and was sisable and their interest being one fourth in it, that would not suffer by the refusal of the mandatory injunction applied for. The statement of the 1. 0. shows that when he went to the scene of occurrence and inspected the Sahan land, which was the cause of the MARPEET, he found the signs of cattle pegs which had been uprooted and also noticed a number of cattle pegs which were intact on the sahan land and also the adjoining land with a number of cattle tied to them. He had also seen some bundles of harvested crop on the Sahan land which was the bone of contention. The foremost point which required consideration was whether the disturbance by the informant and his party men in the user of the Sahan and adjoining land by the appellants was the cause of the MARPEET. The counsel for the appellants justifiably argued that the prosecution story about the appellants having themselves removed the pegs fixed by then: before the incident looks ridiculous. The informant had not lodged any report regarding the quarrel in the morning nor produced any of the persons, through whose medication the appellants themselves had not only agreed to the removal of the cattle pegs, but actually removed then. It appears to be more probable that the story with regard to the removal of the cattle pegs by the appellants earlier in the morning had been set up to defect the plea of the right of the exercise of the right of private defence in respect of their user, If the appellants could have felt so hurt on account of the removal of the cattle pegs, they would not have condescended to their removal as is the prosecution story. The statement of Dharamvir about the appellants having not fixed any cattle peg earlier on the Sahan land, docs not appears to be consistent with this fact which is beyond reproach that they had a ready their but on the sahan land and had been using it and also a part of the open, land exclusively although there was still enough land which could be given to the other claimants if they brought suit for partition of their interest.
(4) THE prosecution witnesses Dharmvir P. W. 1, Sardar Singh P. W. 3 and Sita Ram stated that all the injured were in the Sahan of Dooli Chand and just because they protested that they should not be abused, they were assaulted. The assault according to them had commended inside the tin shed. Dharamvir pointed that on receiving the lathi blow, he sat down and thereafter no one inflicted any lathi injury on him. He later, in his unguarded moment deposed that after he had used the lathi once or twice that he was assaulted. He admitted that he had not handed over the lathis seized from the appellants to the Investigating Officer, and that no blood had fallen inside the tin shed. Sardar Singh P. W. 3 stated that he had at a later stage of the marpeet made use of the lathi of Badam, but earlier had given out that he and the injured had done nothing. Unable to tell as to what happened to the lathis seized from the appellants, he gave out that he had become unconscious on account of the injuries sustained and he could not tell whether the injured had fallen on the lath is seized from the side of the informant shows that this part of the story also was cooked to nip in the bud the defence version that he and others on his side had removed the cattle pegs and had gone armed with lathi to attack if they were checked. Dharamvirs claim about his having seized lathi could not be true because the evidence shows that he was not fully fit physically and the assailants according to the case set up by him were far more in number than those present on the side of Dharamvir informant. The injuries sustained on the side of the appellants were also neither minor nor very few. The appellants Bhajan Lal, Badam Singh and Balwan Singh could not have got them without the prior preparation of Dharm Vir, Sardar Singh, Mehar Chand and Dooli Chand or at least some of them. Bhajan Lal had sustained four injuries all above his neck on vital parts. Balwan Singh had also been inflicted two of his four injuries on the head. It is difficult to conceive that these injuries could have been caused after seizing the lathis of the assailants who were stated to be eleven in number. The accused Balbir, Murari and Chetran took the defence that although they were not involved and were not present at the scene of the incident, they had been roped in the case. The plea of the accused Balbir, Munshi and Chatan is not without weight for with all the appellants being fully prepared from before and the informant and three others injured having been taken by surprise as is the prosecution story, the three appellants could not have been assaulted. The prosecution witness Sita Ram on his showing lived at a distance of fifty to sixty yards from the chaupal where the quarrel took place. In his cross examination he ultimately admitted that Beg Raj had filed a suit against him in respect of Nali three years back and it was decreed. It had been suggested to this witness that there had been dispute between him and the appellants from five to six years before the date on which he was being examined. The appellants did not bring on record the copy of the judgment of the civil court to show as to when their litigation had started with Sita Ram but it could safely by concluded that the quarrel of the appellants with Sita Ram must have started some time earlier. The observation of the learned Addi. Sessions Judge in his judgment that Sita Ram had no animus against the accused was not correct. On the other hand Sita Ram having been humbled by the appellants in the civil suit was proned to give a statement inculpating the appellants; as also indirectly flows from his rather unnatural statement that he had been present both in the morning and in the afternoon when the quarrel took place although his house was not in the neighborhood the non-production of independent witnesses in a case such as this where in the origin of incident had to be ascertained along with other material details about the place where the assaults were made, the names of persons who had actually participated and the manner in which they had assaulted has an un favourable effect on the point of acceptance of the prosecution story. The number of injuries on either side is certainly one of the factors which gives a clue as to which of the parties was the aggressor but i. e. not the end of the matter for if a person was justified in giving blow it was not expected of him to measure the force in golden scales and he could use it to the extent it was necessary to check its repetition. The prosecution version about some of the appellants having fixed cattle pegs in the morning and later removing them, does not inspire, confidence. On the other hand it appears more probable that the incident tool, place when the informant Dharmvir, Duli Chand, Sardar Singh and Mehar Chand interfered with some of the users of the appellants Kalloo. The fact as to who assaulted first is also shrouded in mystery. It is unlikely that the appellants could have inflicted injures first under the tin shed of Dooli Chand as it was not possible to wield lathis there under and the Investigating Officer too had not found any blood there on the ground. The presence of blood on the cot could as well be on account of the injured lying over them. The allegation about the appellants having committed trespass in respect of the sahan of Dooli Chand, does not appear to be probable for the incident had taken place on the common sahan. The counsel for the appellants, in view of the discussions above, was justified in arguing that the appellants in the circumstances of the case could not be held to be aggressors having committed the offences with which they were charged.
(5) HE appeal is allowed. The impugned judgment and order convicting the appellants under
Sections 147, 323, 325, 149 and 452 of the Indian Penal Code and sentencing them to various terms of imprisonment indicated above, are set aside. They are acquitted of the above charges. The appellants are on bail. They need not surrender to their bail bonds which are discharged.