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2. The prosecution story in nutshell is that on 08.08.2003 in the village Amaliya around 12 O' clock afternoon, complainant Ramadhar was grazing his cattle in the field near his house, seeing this appellant Gulab Prasad Dwivedi came there and asked Ramadhar to remove the cattle from his field. He claimed that the field belongs to him. Ramadhar refused to remove the cattle and a hot talk and verbal altercation took place between them. Meanwhile deceased Ashok, son of Ramadhar also reached on the spot and joined the quarrel. Thereafter, Gulab Pd. went to his house threatening Ramadhar to see the consequence. After 15 - 20 minutes, appellant, Ramadhar, his son Dharmendra and other accused persons Ram Lal, Praduman, Vikal and Virendra, armed with lathis came there, and started abusing Ramadhar and Ashok. Hearing the noise of quarrel, witnesses Nagendra and Prem Naraya came on the spot. Appellants Dharmendra and Gulab assaulted Ashok and Ramadhar by lathi. Witness Nagendra and Prem Narayan tried to intervene and save Ramadhar then they have also been assaulted by Ram Lal, Praduman Dhar and Vikal. Ramadhar and witnesses shouted for help, hearing the cry, Krishan Kant, Ram Padarath, Anil Kumar and Ram Bhuwan reached on the spot. Ashok had sustained fatal injuries on his head and became unconcious. After the incident appellants and other co-accused persons ran away from the spot.

6. It is argued by the learned counsel for the appellants that the land where the complainant was grazing his cattle belongs to appellant Gulab. He had raised a crop of gram there, which was being destroyed by the cattle. When Gulab objected to it and asked the complainant to take away the cattle out of field, complainant and his son deceased Ashok and other family members assaulted Gulab by lathi and inflicted injuries. During this quarrel, the deceased himself received injuries by complainant who was trying to beat the appellant. Thus, the appellants have right of private defense of their property. The prosecution has given no explanation of the injuries sustained by the appellant Gulab. The entire case of prosecution becomes suspicious on this count. There are material contradiction and discrepancies found in the statements of prosecution witnesses. They are members of one family and interested one. The trial Court has wrongly relied upon the testimony of these interested prosecution witnesses and committed error in holding the appellants guilty for commission of alleged offence. The Trial court has also committed error in denying the right of private defence of property to appellants.

It is opined by the doctor that the death was caused due to injuries of head. The statement of doctor is duly corroborated by postmortem report (Ex.P/13). Thus, the learned trial Court has rightly relied upon the statement of doctor and postmortem report and arrived at the conclusion that the deceased Ashok had expired due to injuries caused to him at the time of incident.

13. Now the question arises whether the appellants have formed the common intention to murder the deceased and assaulted him. The prosecution has examined Ramadhar (PW-1), Prem Narayan (PW-2) Ram Padarath (PW-3), Krishan Kant (PW-4), Lal Mani Mishr (PW-5) and Nagendra Prasad (PW-11) as eye witness to the incident. Nagendra Prasad is son of the complainant Ramadhar and other witnesses are also their close relatives. Ramadhar (PW-1) deposed that at the time of incident around 12 O' clock afternoon he was grazing the cattle on his field Khasra No.58. The appellant Gulab Prasad came there and asked him to remove his cattle from the field as it belongs to him. Ramadhar told him that this is his field where the cattle are grazing. A hot talk and heated arguments took place between them, meanwhile the deceased Ashok also arrived there. Appellant Gulab left the field and went towards his house threatening the complainant to face the consequences. After 15 minutes, appellant Gulab Prasad, Dharmendra, Ram Lal, Virendra, Vikal and Praduman Dhar armed with lathis came back on the field and started abusing Ashok and Ramadhar. It is deposed by the witness that Dharmendra gave a blow of lathi on left hand of Ashok, Ramadhar tried to save Ashok, Dharmendra inflicted a blow of lathi on head and shoulder of Ramadhar. Thereafter, Gulab had inflicted blows of lathi on face of Ashok. Appellant Gulab exhorted to beat Ashok and all accused persons had assaulted Ashok by lathi. Gulab made a shouted for help, hearing this his nephew Prem Narayan and son Nagendra reached on the spot. Accused Praduman Dhar and Vikal assaulted Prem Narayan by lathi. Hearing hue and cry the witnesses Ram Bhuwan, Ram Padarath, Krishan Kant and Lal Mani came on the spot. The appellants ran away. Ashok and other injured witnesses were brought to Police Station Chakghat where Ramadhar lodged the FIR (Ex.P/1).

17. Complainant Ramadhar (PW-1), Prem Narayan (PW-2), Ram Padarath (PW-3) and Krishan Kant (PW-4) deposed that at the time of incident Ramadhar was grazing his cattle on the field. Appellant Gulab objected to it and asked him to remove the cattle from his field. Gulab told that this land belongs to him. Thus, the dispute arose due to grazing of cattle by complainant. Although, Ramadhar (PW-1) has stated in his evidence that he was grazing the cattle on his field Khara No.58, but this fact is not mentioned in his report (Ex.P/1) and police statement (Ex.P/2). Other prosecution witnesses are not able to state the Khasra number of the land where the cattle were grazing. Patwari Ram Kripal Saket (PW-13) had prepared the map of scene of occurrence (Ex.P/33 and P/34). Ram Kripal deposed that the incident occurred in the land Khasra No.66 which belongs to Gulab Prasad. The land was recorded in the name of Gulab and was under his possession. At the time of incident the crop of Arhar and Juar were sown on the field, which was found grazed by animals. Thus, the evidence of Patwari Ram Kripal supports the defense and corroborates the fact that the complainant was grazing the cattle on the field of appellant Gulab.