JUDGMENT 1. - This appeal is directed against the judgment of the learned Sessions Judge, Bharatpur, dated November 11, 1975, by which the appellants were convicted and sentenced for the following offences in the under mentioned manner:- Name of appellant Section under which convicted Sentences awarded 1. Babu Lal 307, I.P.C. 5 years R.I. and a fine of Rs. 200/-, in default two months R.I. 2. Hukam Chand 323, I.P.C. 6 months R.I. and a fine of Rs. 200/-, in default two months S.I. 3. Bhagirath 325, I.P.C. 2 years R.I. and a fine of Rs. 200/- in default two months S.I. 323, I.P.C. 6 months R.I. and a fine of Rs. 200/-, in default two months S.I. 1. Ram Dayal.(i) lacerated wound 11/2 x ⅕" x ⅕" transverse on lower jaw left side half inch away from mid line;(ii) lacerated wound 3" x 1/2 x bone deep verticle on occipital region of his scalp extending downwards from Choti region;(iii) abrasion 1" x 1/2 over spine of left scapula;(iv) contusion 1" x 1" on right shoulder anteriorly;(v) abrasion 1/10" x 1/10" on gum of left lower premolar second tooth with slight bleeding on outer part.All these injuries were simple except injury No. (ii) for which opinion was reserved for want of X-ray, and all were caused by some blunt weapon.2. Kalua.(i) T shape lacerated wound on left side of frontal region of scalp 1/2" away from left eye brow of size 3/4' x 1/2" x bone deep with black eye left side;(ii) lacerated wound 11/2" x 1/2" x bone deep on right parietal region vertical 1" 1" away from mid-line.Both these injuries were caused by some blunt weapon.3. Moti Ram.(i) fracture right humurous middle ⅓rd with swelling of right arm and abrasion 1" x 1/2" with pain and crepitus and restriction of movement of the right arm;(ii) contusion 4" x 1" on right scapular region medial aspect upper part obliquely.(iii) contusion 4" x 1" on medial aspect of left scapula obliquely in the upper part.Injury No. 1 was grievous. Injuries Nos. 2 and 3 were simple. All were caused by simple weapon.Kalua, Ram Dayal and Moti Ram, injured, were suspected to have received grievous injuries and so their injuries were X-rayed by Dr. D.P. Mishra. Injuries Nos. 2 and 3 were simple. All were caused by simple weapon.Kalua, Ram Dayal and Moti Ram, injured, were suspected to have received grievous injuries and so their injuries were X-rayed by Dr. D.P. Mishra. Upon X-ray examination fracture of right mandible of Ram Dayal and a fracture of the right humurous bone of Moti and a comminuted fracture of the right frontal bone together with fracture of left frontal bone of Kalua were detected. Kalua was unconscious at the time when he was medically examined. His blood pressure was 140.190 whereas his pulse beating was 80 per minute. He was bleeding from mouth and nostrils. All other injuries found on the persons of the 6 injured were simple in nature and caused. 2. A report of this incident was lodged with the police at police station, Bayana, by Ramesh, complainant, on the next day of the incident at about 12.05 p.m. The police registered a criminal case on the basis of this report and took up usual investigation into the matter. They collected other necessary oral as well as documentary evidence and after completion of the investigation, filed a challan against all the appellants and their companions, namely, Arjun Singh and Mst. Harbheji in the court of the Munsiff Magistrate, Bayana, under section 147, 307, 325, 323, 447 and 149, I.P.C. The learned Judicial Magistrate on finding a prima-facie case exclusively triable by the court of the Sessions, committed all the accused including the appellants who tried Arjun, Shri Chand, Smt. Shamanti, Hukam Chand, Smt. Harbheji and Mst. Dulari for the offence under sections 147, 447, 307, 323 and 149, I.P.C. while Bhagirath and Babulal were tried for the offence punishable under sections 147, 447, 307, 325, 323 and 325/149, I.P.C. Upon conclusion of the trial, the Sessions Judge heard arguments in the case and found all the appellants guilty of the offences mentioned above. He accordingly convicted and sentenced the appellants, in the manner stated above. Aggrieved by their convictions and sentences, the appellants have preferred this appeal. I have carefully perused the record and heard Mr. V.S. Dave, learned counsel for the appellants and Mr. S.B. Mathur and Mr. Heman Das, Public Prosecutors, for the State. 3. It has been strenuously urged before me by Mr. Aggrieved by their convictions and sentences, the appellants have preferred this appeal. I have carefully perused the record and heard Mr. V.S. Dave, learned counsel for the appellants and Mr. S.B. Mathur and Mr. Heman Das, Public Prosecutors, for the State. 3. It has been strenuously urged before me by Mr. V.S. Dave, appearing on behalf of the appellants that the Sessions Judge committed an error in not holding the complainant party as aggressors and in not giving the appellants the benefit of the right of private defence of person and property. It was further urged that the prosecution utterly failed to prove that the incident took place in the manner and at the place described in the first information report and in the statements of the prosecution witnesses. According to his submission two different places of one and the same occurrence were mentioned in the site plans prepared in both the cross-cases by the investigating agency and so, in these circumstances, it was very difficult to hold that the appellants entered the field of Ramesh complainant and caused injuries to him and his rescuers. Another contention put forward on behalf of the appellants is that the Sessions Judge reconstructed a new case of free fight between the parties in respect of the fact that there was nothing on the record to show that both the parties were determined to fight with each other over a Babul tree standing on the boundary wall in between the two fields comprised in Khasra Nos. 223 and 224 belonging to Arjun Singh and Ramesh Chand respectively. 4. The Public Prosecutors, on the other hand, vehemently argued that there is ample reliable evidence on the record that the appellants were responsible for causing injuries to 6 injured persons without any lawful excuse and so they were rightly convicted and sentenced by the Sessions Judge upon close and careful scrutiny of the entire evidence adduced in this case. 5. I have considered the rival contentions. At the outset I may observe that the learned Sessions Judge acquitted all the appellants of the charges punishable under sections 147, 447, 325 and 307 read with section 149, I.P.C. on the ground that the appellants and the complainant party fought with one another using unlawful force against each other and so the question as to who attacked and who defended in such a fight was wholly immaterial. The Sessions Judge, therefore, came to a conclusion that every member of each party would be liable for the injuries caused by him to any member of the opposite party. The learned counsel for the appellant has challenged before me the correctness of the aforesaid finding on the ground that there is not an iota of evidence on the ground to show that the appellants and the complainant party were determined to fight for vindicating their rights or supposed rights to possess the Babul trees standing on the boundary wall in between their fields by use of unlawful force. I have considered the above contention in the light of the evidence adduced in this case. It is undoubtedly true that the prosecution case was that the appellants and their companions formed an unlawful assembly with a common object to encroach upon the field of Kalua and to murder him by use of unlawful force and in prosecution of the said common object they entered the field of Ramesh and forcibly cultivated a portion thereof and caused injuries-simple as well as grievous-to him and his rescuers with such intention and knowledge that if they had died, the appellants and their companions would have been guilty of the offence of murder. It was the duty of the Sessions Judge to have found out after careful and close scrutiny of the entire evidence on the record of this case whether the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. What he did was that he reconstructed a new case by holding that the two parties were determined to fight from the start and had a free fight and, therefore, every member of each party was liable for the injury caused by him to any member of the opposite party. The Sessions Judge, in my opinion, could not arrive at such a conclusion without there being any evidence on the record in support therefore, but as he had acquitted the appellants of the charges under sections 147, 447, 325, and 307 read with section 149, I.P.C. and has held them individually guilty of the following offences:- 1. Hukam Chand u/s 323, IPC. 2. Shrichand u/s 323, IPC. 3. Babulal u/s 307, IPC. 4. Chagirath u/ss. 325 and 323, IPC. 5. Mst. Samanti u/a 323, IPC. 6. Mst. Dulari u/s 325 IPC. Hukam Chand u/s 323, IPC. 2. Shrichand u/s 323, IPC. 3. Babulal u/s 307, IPC. 4. Chagirath u/ss. 325 and 323, IPC. 5. Mst. Samanti u/a 323, IPC. 6. Mst. Dulari u/s 325 IPC. for causing injuries to the members of the opposite party and as the State has not filed an appeal against the acquittal of the appellants of the aforesaid sections of the Penal Code with the leave of this Court, it is not possible for me to go into the question whether the appellants and their companions constituted an lawful assembly with the common object of encroaching upon the field of Ramesh by using unlawful force and to murder Kalua. Hence, I proceed to find out whether each appellant has been rightly found individually guilty of the offence for which he has been convicted and sentenced. 6. First take up the case of Babu Lal appellant, who has been held guilty of an offence, of attempt to murder Kalua punishable under section 307, I.P.C. Kalua, P.W. 4 stated in his deposition that Babu Lal inflicted two blows with his lathi on his head. The first blow fall on the left side of the skull and the second hit his right parietal region. The testimony of Kalua stands fully corroborated by the statements of the eye-witnesses, viz., P.W. 3 Ramesh Chand, P.W. 5 Mst. Dhanni P.W. 6 Mohan Lal and P.W. 12 Shiv Lal. Dr. S.L. Agrawal, who medically examined Kalua, also testified to the presence of two injuries on his head. According to his version at the trial, the first injury was a T shaped lacerated wound on left side of frontal region of the skull 11/2" away from left eye-brow of size of 1/2" x 1/2 x bone deep with black eye left side and another was a lacerated wound 11/2" X 1/2 X bone deep on right parietal region vertical 1" away from mid-line. The Doctor opined that both the injuries were caused by blunt weapon. On account of these injuries, Kalua became unconscious and his pulse was 80 per minute, blood-pressure was 140/90, pupils were normally reacting and there was blood from mouth and nostrils. These two injuries were, in the opinion of the doctor, sufficient to cause Kaluas death in the ordinary couse of nature. These two injuries were X-rayed by Dr. On account of these injuries, Kalua became unconscious and his pulse was 80 per minute, blood-pressure was 140/90, pupils were normally reacting and there was blood from mouth and nostrils. These two injuries were, in the opinion of the doctor, sufficient to cause Kaluas death in the ordinary couse of nature. These two injuries were X-rayed by Dr. D.P. Mishra, who detected comminuted fracture of right parietal bone together with a fracture of left parietal bone of Kalua. As Dr. D.P. Mishra had died after X-ray examination, his report was proved at the trial by Dr. G.K. Chaudhary, who was well acquainted with his handwriting and signatures. Hence, it is proved to his hit by the prosecution that Babu Lal was responsible for causing these injuries to the head of Kalua. 7. The next question that crops up for determination is whether Babu Lal had the intention or knowledge referred to in section 307, I.P.C. in causing these two injuries to the head of Kalua. It may be observed in this connection that this question depends upon the facts of each case. The nature of the weapon used, expression of intention of the accused at the time of committing the act, motive of the accused and where injuries are caused, the nature of the injuries and the severity of the blow given are all necessary factors to be taken into consideration in coming to a finding whether the accused had the intention or the knowledge referred to in section 307, I.P.C. In the instant case, there is no reliable evidence from the side of the prosecution that Babu Lal announced his intention of killing Kalua before giving him this beating. It appears that Kalua was attacked by Babu Lal owning to a sudden quarrel rather than as a result of any prearranged plan. The weapon used by Babu Lal in causing injuries to the head of Kalua was an ordinary lathi which did not necessarily indicate a deliberate intention to cause death of Kalua. The prosecution could not ascribe any motive to kill Kalua on the part of Babu Lal. From the prosecution evidence, it transpires that Babu Lal struck two blows only on the head of Kalua thereafter did not cause any injury to him. The prosecution could not ascribe any motive to kill Kalua on the part of Babu Lal. From the prosecution evidence, it transpires that Babu Lal struck two blows only on the head of Kalua thereafter did not cause any injury to him. Hence, the intention referred to in section 307, I.P. C. cannot be inferred merely from the nature of the two injuries in the absence of proof of other circumstances, because intention to constitute an offence under section 307, I. P. C. must precede the act and Is to he proved independently of the act. Consequently, I am of the view that intention to kill Kalua has not been proved beyond reasonable doubt and Babu Lala conviction under section 307, I. P. C. cannot be maintained and the appropriate section applicable to his case is section 325, I. P. C. and not section 307, IPC. 8. Now I take the case of Bhagirath and Mst. Dulari, who have been convicted under sections 325 and 323 and 325, I.P.C. respectively. It is proved by the prosecution beyond reaconable doubt that Bhagirath caused two simple injuries to the body of Moti Ram and two injuries to the person of Ram Dayal. One of the injuries inflicted on the face of Ram Dayal with a lathi was designated grievous, because it fractured his left mandible. Likewise, there is ample reliable evidence on the record that Mst. Dulari inflicted one injury on the right arm of Moti Ram, which was found grievous upon medical examination Upon careful review of the entire evidence on the record. I see no reason to disbelieve the evidence of the eye-witnesses relating to the role played by Bhagirath and Mst. Dulari in attacking Moti Ram and Ram Dayal. Learned counsel for the appellants could not succeed in assailing the evidence of the eye-witnesses with regard to the part played by Bhagirath and Mst. Dulari in the commission of the crime. The evidence of the eye-witnesses stands corroborated by the statement of Dr. S.L. Agrawal, who, upon medical examination detected one fracture of the right humurous middle one third with swelling of left arm of Moti Ram and two contusions-one on his right scapular region and the other on middle aspect of left scapula. Injury No. 1 was found grievous upon x-ray examination by Dr. D.P. Mishra, whose refort has been duly proved by Dr. Injury No. 1 was found grievous upon x-ray examination by Dr. D.P. Mishra, whose refort has been duly proved by Dr. G.K. Chaudhary as he had died after x-ray examination. Likewise, Dr. S.L. Agrawal examined Ram Dayal also and found one lacerated wound on left side of his lower jaw 2" away from midline and one lacerated wound on occipital region of his scalp. The injury was found grievous upon x-ray examination. Consequently, Bhagirath and Mst. Dulari were rightly convicted by the Sessions Judge under sections 325 and 323 section 325, I.P.C. respectively. 9. Next I take up the cases of Hukamchand, Shri Chand, and Smt. Samanti, who have been convicted under section 323, I.P.C. only. There is cogent proof on the record from the side of the prosecution that Hukam Chand inflicted one blow on the head of Laxman and another blow on the right shoulder of Ram Dayal with his lathi. Shri Chand caused an injury on the right scapula of Ramesh and another injury on the left scapula of Ram Dayal near spine. Likewise, it is proved by the prosecution that Smt. Samanti was responsible for causing one injury to Laxman on his left elbow. Upon careful scrutiny of the evidence of the eye-witnesses I find no reason absolutely to discard their evidence relating to the part played by Hukam Chand, Shri Chand, and Smt. Samanti in the attack on Ramesh, Laxman and Ram Dayal. 10. Mr. V.S. Dave, learned counsel for the appellants, however, contended that even if the appellants are held responsible for causing injuries to the members of the complainant party, they succeeded in showing by preponderance of evidence that in the instant case the incident took place in the field of Ramesh and so the complainant party could very well be held to have been the aggressors. The above contention has no force, because there is no material on the record of this case to show that the complainant party entered the field of Ramesh and cultivated a portion thereof after demolishing the boundary wall and caused injuries to him and his companions in the first instance. In the absence of any such material I am unable to hold that any right of private defence of person and property accrued to the appellants and they were justified in causing injuries to Ramesh and his party. The more production of a certified copy Ex. In the absence of any such material I am unable to hold that any right of private defence of person and property accrued to the appellants and they were justified in causing injuries to Ramesh and his party. The more production of a certified copy Ex. D. 13 of the site plan and the inspection memo Ex. P. 2 of the cross case is not sufficient to show that any right of private defence of property or person accrued to the appellants, especially when Shravan Kumar, Investigating Officer, P. W. 14 clearly admitted that he did not mention in Ex.D. 13 that the portion of the land near the Babul tree was found ploughed at the time of site inspection. His above admission is quoted below in his own words:- " isM+ ds ikl dk tqrk gqvk fgLlk ,DthfoV Mh@13 esa vyx ls ugha crk;k x;k gSA exj ekSds ij tqrk gqvk FkkA ,Dl ckbZ ls iwoZ dh rjQ jes'k dk [ksr gSA bl MksVsV ykbu ds ikl esa isM+ ds ikl dk fgLlk tqrk gqvk gksus dk dksbZ uksV eSaus ,DthfoV Mh@13 esa ntZ ugha fd;kA " Had it been a fact that some portion of the field of Ramesh was ploughed by the complainant party after demolishing the boundary wall, Shravan Kumar Investigating Officer would have surely found some portion of the land of Ramesh ploughed near Babul tree. This fact negatived the plea of the appellants that the complainant party ploughed some portion of the field of Ramesh after committing trespass on it and when they were asked not to do so, they started beating the appellants with lathis and, in this manner, they were aggressors. Consequently, I have no hesitation in holding that the plea of right of private defence of property and person setup by the appellants does not stand substantiated by any preponderance of oral evidence or material on the record. 11. Lastly, it was contended by Mr. V.S. Dave, learned counsel for the appellants that even if Hukam Chand, Babu Lal, Bhagirath are held guilty under sections 323, I.P.C. 307, 325 and 323, I.P.C. respectively, the sentences awarded to them are excessive. I have considered the above contention. I have hold above that Babu Lal could be convicted under section 325, IPC* for voluntarily causing grievous hurts to Kalua and his conviction should be altered from section 307, IPC to section 325, IPC. I have considered the above contention. I have hold above that Babu Lal could be convicted under section 325, IPC* for voluntarily causing grievous hurts to Kalua and his conviction should be altered from section 307, IPC to section 325, IPC. Babu Lal was convicted and sentenced under section 307, I.P.C, to undergo rigorous imprisonment for five years and to pay a fine of Rs. 200/-, in default of payment of fine to further suffer simple imprisonment for two months. As his conviction is altered from section 307, I.P.C. to section 325, I,P.C. end of justice would be met if he is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further suffer simple imprisonment for two months. Bhagirath has been sentenced by the trial court to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/-, in default of payment of fine to suffer simple imprisonment for two months under section 325, I.P.C. and under section 324, I.P.C. to suffer rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to suffer simple imprisonment for two months. The sentences inflicted upon Bhagirath under section 325, I.P.C, and 323, I.P.C. are excessive circumstances of this case. Hence, the ends of justice would be met, if substantive sentence of rigorous imprisonment for two years awarded to him under section 325, I.P.C. by the trial court is reduced to a term of six months rigorous imprisonment and the sentence of fine of Rs. 200/, and in default two months simple imprisonment imposed upon him by the court is maintained. Likewise, the substantive of sentence of six months rigorous imprisonment awarded to him under section 323 I.P.C. is set aside and the sentence of fine of Rs. 200/-, in default of payment therefore to suffer simple imprisonment for two months under section 323, I.P.C. is maintained. Likewise Hukam Chand has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further suffer simple imprisonment for two months under section 323, I.P.C. for voluntarily causing an injury to the head of Laxman and another injury to the right shoulder of Ram Dayal. Likewise Hukam Chand has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further suffer simple imprisonment for two months under section 323, I.P.C. for voluntarily causing an injury to the head of Laxman and another injury to the right shoulder of Ram Dayal. In my opinion, the ends of justice would be met if the substantive sentence of six moths rigorous imprisonment awarded to him by the Sessions Judge is set aside and the sentence of fine of Rs. 200/-, in default of payment of fine to suffer simple imprisonment for two months is maintained. Shri Chand and Mst. Samanti and Dulari have already been released on probation of good conduct. They have furnished requisite bonds and so no question of reduction of sentence in their case arises. 12. The result of the above discussion is that I partly accept the appeal filed by Babu Lal and alter his conviction from section 307, I.P C. to section 325 I.P.C. and sentence him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further suffer simple imprisonment and sentence under section 307, I.P.C. are set aside. Further I partly accept the appeal filed by Bhagirath and while confirming his conviction under section 325, I.P.C, and while maintaining the sentence of fine of Rs. 200/-, in default of payment of fine to suffer further simple imprisonment for two months reduce the substantive sentence of two years rigorous imprisonment to a term of six months rigorous imprisonment only. Father confirm his conviction under section 323, I.P.C, also out set aside the sentence of six months rigorous imprisonment and maintain the sentence of fine of Rs. 200/-, in default of payment of fine to suffer simple imprisonment for two months under that section. I further partly accept the appeal of Hukam Chand and while confirming his conviction of fine of Rs. 200/-, in default of payment of fine of Rs. 200/-, to suffer simple imprisonment for two months, set aside the substantive sentence of six months rigorous imprisonment awarded to him by the trial court. Babu Lal and Bhagirath are not present in court today. 200/-, in default of payment of fine of Rs. 200/-, to suffer simple imprisonment for two months, set aside the substantive sentence of six months rigorous imprisonment awarded to him by the trial court. Babu Lal and Bhagirath are not present in court today. The Chief Judicial Magistrate, Bharatpur, is directed to get them arrested' and sent to jail for serving out the sentence of rigorous imprisonment under section 325, I.P.C. Two months time is given to Hukam Chand appellant to deposit the fine of Rs. 200/-, in the trial court, failing which necessary action shall be taken against him in accordance with law. The appeal filed by Dulari, Mst. Samanti and Shri Chand fails and is hereby dismissed.Order accordingly. *******