JUDGMENT 1. Appellants Prithviraj and Bbag Chand were tried for the offences under sections 325 and 323. Indian Penal Code, by the learned Additional Sessions Judge, Udaipur. By his judgment dated June 30, 1971 the learned Additional Sessions Judge convicted appellant Prithvi Raj for the offences under sections 325 and 323, Indian Penal Code, and sentenced him to rigorous imprisonment for a period of two months, and a fine of Rs. 50/-, in default to undergo rigorous imprisonment for ten days, on the first count, and one month's rigorous imprisonment on the second count. Appellant Bhag Chand was convicted for the offence under section 323. Indian Penal Code, and sentenced to rigorous imprisonment for a period of one month, and a fine of Rs. 50/-, in default to undergo ten days' rigorous imprisonment. 2. Briefly stated, the facts of the case giving rise to this appeal are that there was a long standing enmity between the appellants and Ramlal regarding the field known as 'Lakadwala-Beed', bearing khasra No, 2403, situated at village Chandesra. The land is said to have been sold to Ramlal through sale-deeds Ex. P. 6 and Ex. P. 7 in Samwat Year 2014, and since then it was in his possession. That 'Lakadwala-Beed' was again sold by Bhag Chand and Hemarlal to Ambava, D.W. 5, and his brothers, through a registered sale-deed. That led to revenue and criminal litigation between the parties prior to the date of the occurrence. The accused party with the help of Ambava and others wanted to take forcible possession of the land from Ramlal. That on July 23, 1969 in the noon Ramlal P.W7. 7 along with his sons Kesholal P.W. 8 and Gograj P.W. 11 had gone to that field for sowing maize crop. Gograj was ploughing the field and Kesholal was sowing the seeds, and Ramlal was picking up the stones and thorns. At that time appellants Prithvi Raj and Bhag Chand along with ten others went there armed with axes and 'lathis'. All these persons started beating Gograj and Kesholal. Ramlal tried to intervene and Bhagchand inflicted axe blows to him. Gegraj lodged the report Ex. P. 3 at police station, Mavli, before Sawansingh P.W. 4, who made an entry in the daily diary and sent the three injured persons for medical examination to Udaipur. All these persons started beating Gograj and Kesholal. Ramlal tried to intervene and Bhagchand inflicted axe blows to him. Gegraj lodged the report Ex. P. 3 at police station, Mavli, before Sawansingh P.W. 4, who made an entry in the daily diary and sent the three injured persons for medical examination to Udaipur. Bhimsingh, Head Constable P.W. 12, in charge of the police station on that day, reached the police station at 9.00 p.m. and recorded the formal first information report Ex. P. 11. The blood-stained clothes of Ramlal, which constable Sawan Singh had kept at the police station, were taken in possession by the Head Constable vide memo Ex. P. 12. On July 25,1969 he went to village Chandesra, and inspected the site and prepared the site inspection memo Ex. P. 5. He recorded the statements of the witnesses and then handed over the investigation to the Station House Officer. Station House Officer Nandlal P.W. 13 arrested the appellants on September 11, 1973 vide memo Ex. P. 13. 3. Dr. R. C. Ojha, Medical Jurist, General Hospital, Udaipur examined the injuries of Gegraj on July 23, 1969, and noted six injuries on his person. All the injuries were simple in nature and caused by some hard blunt object. On the same day, the doctor examined Kesholal and noted six injuries on his person. Out of them, four injuries were caused by blunt hard object, and two injuries were caused by sharp weapon. The doctor also examined Ramlal on the same day and noted four injuries on his person. Three injuries were simple, and one injury on the left forearm was grievous in nature, as there was an oblique fracture of left ulna lower one third seen by Dr. Raghubir Singh, Radiologist, General Hospital, Udaipur (P.W. 15) under screening on July 24, 1969. The duration of the injuries, according to Dr. Ojha, was within 24 hours The injury reports of Gegraj, Kesholal and Ramlal prepared by Dr. Ojha are Ex. P. 14, Ex. P. 15 and Ex. P. Irrespectively. The screening report of injury of Ramlal is Ex.R 16/1. 4. After the completion of investigation charge-sheet against the two appellants only was filed in the Court of Munsiff Magistrate, Mavli. Ojha, was within 24 hours The injury reports of Gegraj, Kesholal and Ramlal prepared by Dr. Ojha are Ex. P. 14, Ex. P. 15 and Ex. P. Irrespectively. The screening report of injury of Ramlal is Ex.R 16/1. 4. After the completion of investigation charge-sheet against the two appellants only was filed in the Court of Munsiff Magistrate, Mavli. The learned Magistrate conducted the preliminary enquiry in the matter, and committed the two appellants to the Court of Sessions, Udaipur to face their trial for the charges under sections 325 and 323, Indian Penal Code. The necessity for committing the appellants to the Court of Sessions for the trial of the offences, triable by a Magistrate, arose for the reason that the complainant's party in this case had been committed to the Court of Sessions in a cross-case under section 302, 325, 323, 447 and 149, Indian Penal Code initiated on the report filed against them by the accused party in this case. The number of that sessions Case is 5/1970. The case was then transferred to the Court of Additional Sessions Judge, Udaipur. 5. The learned Additional Sessions Judge charge sheeted the appellants for the offences mentioned above, and recorded their pleas. Both the appellants denied the charges and claimed to be tried. To substantiate its case, prosecution examined 15 witnesses in all. Both the appellants in their statements under section 342, Code of Criminal Procedure (old) denied the allegation levelled against them. Prithvi Raj stated that Ramlal had filed a complaint against him in the Court of Munsiff Magistrate, Mavli. The copy of this complaint filed by him is Ex. D. 5. Bhagchand deposed that he and Hamerlal had sown 'til-crop' on 6th July, 1969 in that field and on 7th July, 1969, Ramlal filed a complaint against them in the Court. That, after 10, 15, 20 days, Gegraj, Ramlal, Bhanwarlal, Kesholal, Tarachand, Mst. Amri, Mst Leela and Samvli went to their field to demolish their crop and on being objected by them, Ramlal called him to decide the matter. He was made to sit in the field. Meanwhile, Kesholal went there, and threw chillies towards him. He tried to run away, but could not. because Kesholal had caught hold of his shirt. Ramlal asked the ladies to bring 'lathis' then, Ramlal, Kesholal and Gegraj gave a beating to him with 'lathis'. He was made to sit in the field. Meanwhile, Kesholal went there, and threw chillies towards him. He tried to run away, but could not. because Kesholal had caught hold of his shirt. Ramlal asked the ladies to bring 'lathis' then, Ramlal, Kesholal and Gegraj gave a beating to him with 'lathis'. Prithvi Raj came for his rescue, but he was also given a beating. Then Jalamchand also reached there. Jalamchand was also given a beating, Jai Shanker, Chhaganlal and Chunilal reached there. The assailants, on seeing those persons coming, ran away. Jai Shanker took him, Prithvi Raj and Jalamchand to the village in a bullock cart. Then they were taken to Mavli Police Station and from there to the hospital, Udaipur where they were admitted. He remained admitted in the hospital for nine days and Prithvi Raj for 6/7 days. Jalamchand died after one day of his being admitted in the hospital. Five defence witnesses were examined. 6. The learned Additional Sessions Judge placed reliance on the prosecution witnesses, and passed the judgment of conviction and sentenced the appellants, as stated above. Being dissatisfied by that judgment of conviction, the appellants have preferred this appeal in this Court. 7. We heard Mr. Dungar Singh, learned counsel for the appellants, and Mr. M. D. Purohit, learned public prosecutor. The learned counsel for the appellants has assailed the judgment of the learned Additional Sessions Judge, mainly on the ground that the learned Judge erred in taking into consideration the evidence of the cross-case. The learned counsel stressed that the learned Judge should have considered the evidence recorded in this case only, and his taking into consideration, the evidence recorded in the cross-case, has prejudiced the case of the appellants. Learned Public Prosecutor fairly agrees that this case should have been decided on its own merits, but his contention is that the prosecution has led reliable evidence in this case, which conclusively establishes the guilt of the appellants. 8. We have gone through the judgment passed by the learned Additional Sessions Judge. It is evident that the learned Additional Sessions Judge while considering the evidence of the witnesses recorded in this case, has compared that version with the version given by them in the cross case and brought on record the contradictions and inconsistencies of the two statements of those witnesses. It is evident that the learned Additional Sessions Judge while considering the evidence of the witnesses recorded in this case, has compared that version with the version given by them in the cross case and brought on record the contradictions and inconsistencies of the two statements of those witnesses. He has also taken into consideration the opinion expressed by him in the cross case, and in view of the findings in that case, has formed a particular opinion in that case. In our opinion, the proper course was to decide this case on the evidence, recorded in this case only. The evidence recorded in the cross-case, should not have been used to find out the inconsistencies in the statements of the witnesses recorded in this case. Despite this position, the whole case cannot be thrown away on this ground alone. The proper course, to be adopted, would be to ignore the opinion, of the learned Additional Sessions Judge, and then assess and weigh the evidence recorded in this case, and arrive at a conclusion whether the evidence on the file of this case is sufficient to hold the appellants guilty of the offences with which they were charged. 9. The learned counsel for the appellants has strenuously contended that the conviction of Prithvi Raj for the offence under section 325, Indian Penal Code, is not maintainable, because there is no evidence on the record to suggest that it was Prithvi Raj, who had caused grievous injury to Ramlal. We have carefully examined the evidence of Ramlal and other prosecution witnesses of the occurrence, in this connection, to find out, whether, the grievous injury of Ramlal, has been assigned to a particular person or not. The statements of all the witnesses are omnibus on the point. No-body has stated as to who had caused the grievous injury to Ramlal. Even Ramlal has not assigned his grievous injury to Prithvi Raj. The learned Public Prosecutor also could not controvert this fact. There is no specific evidence to connect any of the appellants with the grievous injury of Ramlal. Under these circumstances, we are inclined to hold that the prosecution could not prove the offence under section 325, Indian Penal Code, against Prithvi Raj and his convention and sentence for that offence is not sustainable. 10. There is no specific evidence to connect any of the appellants with the grievous injury of Ramlal. Under these circumstances, we are inclined to hold that the prosecution could not prove the offence under section 325, Indian Penal Code, against Prithvi Raj and his convention and sentence for that offence is not sustainable. 10. The learned counsel for the appellants challenging conviction for the offence under section 323, Indian Penal Code, vehemently argued that the field was in possession of Prithvi Raj and Bhagchand and Ramlal, complainant and his party were aggressors and therefore the injuries caused by the appellants, if any, were inflicted in defence of their property. It has also been submitted by the learned counsel that the accused party was given a beating by the complainant party and therefore the right of private defence of person was available to them. 11. We have gone through the oral as well as documentary evidence on the record. The prosecution has succeeded in establishing that Ramlal was in possession of 'Lakadawals-Beed' since Samwat Year 2014, and had sown crops in it regularly. There is, of course on record Ex. P. 9. the registered sale deed in favour of Ambava D. W. 5, but there is no convincing evidence to prove that the possession of the field was even with Ambava. This being the situation, Prithvi Raj and Bhagchand had no reason to trespass into the field in possession of Ramlal. It is evident from the facts of the case that the appellants had taken the law in their own hands and tried to oust Ramlal, from the field in his possession. Hence, the plea of private defence of person and property, was not available to the appellants and they were guilty of the offence under section 321, Indian Penal Code, as this offence is proved by cogent, convincing and unimpeachable evidence. 12. The learned counsel for the appellants prayed that the case relates to the year 1%9, and after the lapse of such a long time the appellants may not sent behind the bars. The incident relates to the year 1969. Prithvi Raj has been sentenced to one month's rigorous imprisonment, and Bhagchand to one month's rigorous imprisonment, and a fine of Rs. 50/- and in default to undergo ten days' rigorous imprisonment for the offence under section 323, Indian Penal Code. The incident relates to the year 1969. Prithvi Raj has been sentenced to one month's rigorous imprisonment, and Bhagchand to one month's rigorous imprisonment, and a fine of Rs. 50/- and in default to undergo ten days' rigorous imprisonment for the offence under section 323, Indian Penal Code. After a lapse of about ten years, we do not consider it proper to send the appellants behind the bars to undergo the substantive sentence. 13. In the result, the appeal is partly accepted. The conviction and the sentence of Prithvi Raj for the offence under section 325, Indian Penal Code is set aside and his conviction for the offence under section 323, Indian Penal Code, is maintained but the sentence of one month's rigorous imprisonment is altered to a fine of Rs. 50/-in default to undergo ten days' rigorous imprisonment. The conviction of appellant Bhagchand for the offence under section 323, Indian Penal Code is maintained, but the sentence of one month's rigorous imprisonment is set aside and the sentence of fine of Rs. 50/-. in default to undergo rigorous impressment for ten days is maintained. The appellants will deposit the amount of fine within a period of two months. In the case of their failing to do so, the Chief Judicial Magistrate, Udaipur w ill effect their arrest to find ergo the period of sentence awarded in default of payment of fine. *******