Judgment

DUA, J. :- This appeal is by special leave and is directed against the conviction of the appellant Deo Narain, by the High Court of judicature at Allahabad on appeal by the State against the judgment and the order of the Sessions Judge of Ghazipur acquitting five accused persons, including the appellant of various charges including the charges under Sections 302/149, Indian Penal Code and in the alternative the charge against the appellant under Section 302, I. P. C.

2. It appears that there was some dispute with respect to the possession of certain plots of land in village Baruara, Police Station Dildarnagar, District Ghazipur. There were several legal proceedings between the rival parties with respect to both title and possession of the said plot. On September 17, 1965 after 12 noon there was a clash between the party of the accused and the party of the complainant. Both sides lodged reports with the Police. The appellant Deo Narain, along with Chanderdeo and Lalji, two of the other accused persons acquitted by the trial Court, whose acquittal was confirmed by the High Court, went to the Police Station Dildarnagar and made a report against the complainant s party about the occurrence at about 5.45 p.m. on September 17, 1965 but as the Station House Officer had already received information from the chowkidar that these accused persons had caused the death of one Chandrama he took them into custody. Ram Nagina on behalf of the complainant s party lodged the report with the Police Station Kotwali which was adjacent to the District Hospital, Chazipur and did not go to the Police Station Dildarnagar for making the report because of the long distance. The Sessions Judge, after an exhaustive discussion of the evidence produced both by the prosecution and the defence, came to the conclusion that the possession of the disputed plot of land was undoubtedly with the accused persons. The only further question which required determination by the trial Court was if the complainant s party had gone to the plot in question with an aggressive design to disturb the possession of the accused persons by unlawful use of force and if the accused persons had exceeded the right of private defence in beating and killing Chandrama and causing injuries to the other members of the complainant s party. According to the trial Court the complainant s party had actually gone to the plots in question for the purpose of preventing the accused persons from cultivating and ploughing the said land. After considering the evidence on the record the trial Court felt great difficulty in agreeing with either of the two rival versions given by the prosecution and the defence witness Mangla Rai about the manner in which the marpeet had taken place. The learned Sessions Judge however, considered himself to be on firm ground in holding that the injuries suffered by Chanderdeo and Deo Narain rendered it difficult to believe that they had inflicted injuries with their spears on Bansinarain and others. In his opinion, had the accused persons been the aggressors they would not have abstained from causing injury to Raj Narain who was actually ploughing the field. In view of this improbability the learned Sessions Judge did not find it easy to place reliance on the statements of the prosecution witnesses Tin Taus, Rajnarain, Suresh and Bansnarain. Again, after examining the injuries sustained by the members of both parties, the learned Sessions Judge felt that Deo Narain and Chanderdeo must have received injuries on their heads before they inflicted injuries on the members of the complainant s party. On this view the accused were held entitled to exercise the right of private defence, and to inflict the injuries in question in exercise of that right. On the basis of this conclusion the accused were acquitted.

3. On appeal by the State the High Court upheld the conclusions of the trial Court that the accused persons had the right of private defence and that they were jus