M. B. SHARMA, J. - (1.) LEARNED Sessions Judge, Tonk has convicted each of the accused petitioners under s. 323 IPC and each of the accused-petitioner has been sentenced to three months rigorous imprisonment and a fine of Rs. 100/- or in default of payment of fine to further suffer simple imprisonment for one month.
(2.) PYARELAL P. W. 1 lodged a report in police station Piplu Distt. Tonk on 27th February 1985 at 2. 15 p. m. wherein it was stated that he was sitting in the house of Hanuman where the accused petitioners came and stated taking possession of the house of his brother Hanuman and tried to fix the doors. He asked them not to do so, specially in the absence of his brother Hanuman. It was alleged that he was beaten by the accused petitioners and they also set fire on the house. A case was registered and investigation was set in motion. Injured Pyarelal was examined by Dr. Suresh Bhandari P. W. 10 who found that Pyarelal had as many as 5 injuries on his person, all simple by blunt weapon. The learned Judge tried the case and the plea of the accused petitioners was that in fact the possession of the house was in their possession who have been put in possession in execution of the decree of the civil court. It was Pyarelal and others who had actually come there and caused injuries to them. The accused-petitioners examined D. W. 4 Lala Ram, the then Nazir attached to the court of District Judge, Tonk to prove that he had put the possession of the properties with the accused-petitioners. They have also examined few other witnesses in defence. Not only this, when Dr. Bhandari came into witness box, he also proved injuries received by each of the accused-petitioners, namely Babu Khan and Basir Mohd. who had received as many as 5 and 6 injuries respectively, and most of them were simple by blunt weapon. The learned Sessions Judge in his judgement has said that so far as offence under Sec. 436 IPC is concerned, it is not proved and consequently he acquitted the accused petitioners of the offence under Sec. 436 IPC. It has been contended by the learned counsel for the petitioners that on the statement of Lala Ram DW. 4 it should have been held by the court that the petitioners had been put in possession of the land under execution of the decree of the civil court much before the incident took place. He also contended that the prosecution has not explained the injuries of the accused persons. In the case of Prabhoo V. Emperor (1), it was held that the accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused. The aforesaid view taken in the aforesaid case of Prabhoo v. Emperor (supra) was held to be a good law by a Full Bench of the Allahabad High Court in the case of Rishi Kesh Singh Vs. The State (2 ). In the instant case the accused had set up defence which was proved by the statement of Lala Ram, DW 4 who categorically stated that he had put the accused persons in possession of the property in execution of warrant of possession issued by the civil court. In view of his statement, it can be said that on February 18, 1985 it was Bashir Mohd, who had been put in possession of the property in dispute and on the date of incident i. e. February 27, 1985 the accused persons were in possession of the property in dispute. As said earlier, both the accused petitioners had received injuries which prima facie go to prove that the defence of the accused persons probablised. In the absence of any other material, it appears that the story set up by the defence is more probable. Both the accused petitioners received injuries. On behalf of the complainant Pyarelal received injuries. As stated earlier, the right of private defence to the accused petitioner is highly probablised. Consequently, I allow the revision petition and set aside the judgment of conviction and sentence passed against the accused petitioners by the learned Sessions Judge, Tonk. The accused petitioners are acquitted. They are on bail. They need not surrender to their bail bonds which are hereby discharged. The fine, if paid, shall be refunded to the accused petitioners on their application made in this behalf. . ;