Judgment I.P.Singh, J. 1. Appellant no.2 Birendra Singh and appellant no.3 Mohan Singh have been convicted under Sec.324 ot the Indian Penal Code and were sentenced to R.I. for one year. However, they have been convicted under Sec.148 of the Indian Penal Code and were sentenced to R.I. for six months. However both the sentences were ordered to run concurrently. 2. Appellant no.1 Arjun Singh, appellant no.4 Bachan Singh and appellant no.5 Ramdas Singh have been convicted under Sec.147 of the Indian Penal Code and were sentenced to R.I. for six months each. 3. The prosecution case as disclosed from the fardbeyan of informant Ashlok Singh is that on 14.5.90 at about 9.00 A.M. he was getting a drain repaired which was originating from his house in its northern side. This drain was situated in a lane in between the house of the informant and that of accused Arjun Singh. The informant was further getting constructed a septic tank in one of the rooms in the northern portion of his house. It has been alleged that suddenly in protest against this cleaning of the drain, his neighbours Arjun Singh. Bachan Singh, Bhagwan Singh, Ramdas Singh, Birendra Singh and Mohan Singh along with Prasidh Singh came there and surrounded him and his son Ram Vinay Singh. All the above named accused persons were armed with deadly weapons. They snatched the spade and Chapra from the hands of the informant and when it was asked by them as to why they were doing like that, the accused persons started to assault the informant with lathi, bhala and farsa. In the meantime, the informants son and sister Mantaran Devi came to intervene but they were also subjected to assault with lathi and garasa by the accused persons and as alleged, Mantaran Devi was hit on her head and his son Ram Vinay was also hit on his head. It has been alleged that when Mantaran Devi fell down her ear-rings were snatched by the accused persons. The informant any how escaped from the scene of occurrence and then Birendra Singh instigated that let Ram Vinay be killed as it was the right occasion for this act. Thereupon, all the accused persons trespassed into the house of the informant and searched for the informants son in order to kill him. The informant any how escaped from the scene of occurrence and then Birendra Singh instigated that let Ram Vinay be killed as it was the right occasion for this act. Thereupon, all the accused persons trespassed into the house of the informant and searched for the informants son in order to kill him. The son of the informant Ram Vinay Sharma however, hid himself somewhere inside the house and, thus, saved his life. The accused persons started pelting brickbats and stones. It has been stated that the accused Arjun Singh was armed with rifle from which he fired one shot which terrified the family members of the informant. Thereafter on hulla the villagers came there and intervened and saved the informants family members from any further untoward incident. The sister of informant, Mantaran Devi and Ram Vinay went to Paraiva State Dispensary where they were given first aid. The fardbeyan of the informant was recorded in Paraiva Hospital. 4. The Police started investigation and after completion of investigation chargesheet was submitted. Accordingly, cognizance was taken and case was committed to the Court of Sessions for trial. 5. The accused denied the charges levelled against them and have stated that they have been falsely implicated in this case and took the defence through their counter case and the F.I.R. and fardbeyan which have been brought on record of this case (Exts. A & C). According to this fardbeyan, the case is that on 14.5.90 itself at about 10 A.M. Ashlok Singh was opening a door on the land of Arjun Singh. Arjun Singh went there and protested whereupon Ashlok Singh retorted that he would open the door because he was doing so in his own house. Subsequently, Ashlok Singh called out the members of his family who came there variously armed and then Ashlok Singh ordered for assault on the informants men. Thereafter Vinay Singh fired from his rifle which hit Bhagwan Singh on his waist. It has been alleged that Vimal Singh fired from his gun upon Arjun Singh twice but the target missed because Arjun Singh sat down in order to avoid the attack. Thereafter. Sri Niwas Singh and Firangi Singh assaulted him with lathi. It has been stated that the occurrence was seen by Mohan Singh, Ramdas Singh, Bachan Singh, Madan Singh and other villagers. 6. The prosecution, in support of its case, examined altogether nine witnesses. 7. Thereafter. Sri Niwas Singh and Firangi Singh assaulted him with lathi. It has been stated that the occurrence was seen by Mohan Singh, Ramdas Singh, Bachan Singh, Madan Singh and other villagers. 6. The prosecution, in support of its case, examined altogether nine witnesses. 7. P.W.1 is Braj Kishore Sharma, he is a hearsay witness. P.W.2 is Ram Nandan Prasad, he is a formal witness and he has proved Ext. 3. P.W.3 is Mantaran Devi, sister of the informant, injured, P.W.4 is Run Vijay Singh @ Vijay Singh, he has been tendered. P.W.5 is Vinay Sharma, son of the informant, injured. P.W.6 is Ashlok Singh, the informant of this case. P.W.7 is Ashok Kumar, formal witness. He has proved the signature of informant. P.W.8 is Dr. Arjun Prasad, he has examined the informant and P.W.9 is Sheo Pujan Singh, the I.O. of this case. 8. The defence has also examined D.W.1 Arjun Singh. He has stated that he was also subjected to assault by the men of informant. 9. P.W.6 Ashlok Singh, the informant of this case has fully supported the case of prosecution as stated in his fardbeyan. He has stated that adjacent north of his house there is a lane about 7 to 9 feet in width and 100 feet in length east-west. According to him, on 14.5.90 at about 9.30 in the morning he was cleaning drain of his house which flows in the street. P.W.5 Vinay Sharma was also with him. While they were cleaning drain the accused Arjun Singh, Bachan Singh, Ramdas Singh, Birendra Singh, Bhagwan Singh and Mohan Singh came there. The accused Arjun was armed with rifle. Birendra and Mohan were armed with" garasa, Bachan Singh and Ramdas were having lathi with them. They commanded not to clean the drain upon this there was hulla on which his sister Mantaran Devi came there. Thereafter, Bhagwan Singh came and he ordered to kill, upon which the appellant Birendra gave a garasa blow to Ram Vinay on his head. Mohan gave another garasa blow on his sister Mantaran Devi and Arjun took away ear-ring from the ear of Mantaran Devi. By that time Ram Vinay entered into the house. The miscreants also entered into the house and they could not find him. They came out and Arjun fired from his rifle when he came from his house. Mohan gave another garasa blow on his sister Mantaran Devi and Arjun took away ear-ring from the ear of Mantaran Devi. By that time Ram Vinay entered into the house. The miscreants also entered into the house and they could not find him. They came out and Arjun fired from his rifle when he came from his house. They also took away spade and other cleansing tools. After they came out. Mantaran and Ram Vinay were taken to Paraiya Hospital where they were given first aid. In the house itself his statement was recorded on which he put his signature. 10. PW5 Vinay Sharma has also supported the case of prosecution and has stated that on the day of occurrence he along with his father were cleansing the drain of their house. He has stated that appellant Arjun Singh armed with rifle. Birendra and Mohan armed with garasa, Ramdas and Bachan armed with lathi came and abused them. They also got stopped not to clean drain which resulted in altercation on which his aunt Mantaran Devi came out from the house. Then Bhagwan Singh ordered to kill upon which accused Birendra gave garasa blow on his head and accused Mohan gave garasa blow to Mantaran Devi on her head and she fell down.The accused Arjun took out her ear tops from her ear. He has stated that he somehow hid himself in the house. The miscreants also entered into his house to search him and when they could not find him they came out and fired. 11. P.W.3 Mantaran Devi has also supported the case of prosecution and has stated that Mohan gave garasa blow on her head when she came out from her house on hearing altercation. She has stated that accused Birendra gave garasa blow to Vinay. She has also stated that her ear tops were taken away by Arjun. According to her, her brother and nephew were cleansing Naali in the morning which miscreants tried to stop. There was altercation between them and initially the occurrence took place. 12. RW.8 is Dr. Arjun Prasad. According to him on 14.5.90 he examined injured Mantaran Devi at 11.15 A.M. and found following injuries on her person: I. Sharp cutting wound over right parietal bone of the dimension 2" x 1/8" scalp deep. In the opinion of Doctor the nature of injury was simple caused by sharp cutting weapon. 12. RW.8 is Dr. Arjun Prasad. According to him on 14.5.90 he examined injured Mantaran Devi at 11.15 A.M. and found following injuries on her person: I. Sharp cutting wound over right parietal bone of the dimension 2" x 1/8" scalp deep. In the opinion of Doctor the nature of injury was simple caused by sharp cutting weapon. It may be garasa. On the same day he also examined Vinay Sharma. He too had simple injury but was caused by sharp cutting weapon. 13. P.W.9 Sheo Pujan Singh who was Officer-in-Charge of Paraiya Police Station is the I.O. of this case has stated that he recorded the statement of P.W.6, the informant. In Paraiya Hospital he took up the investigation and inspected the place of occurrence. He has given full description of the same. According to him, he got information that Bhagwan Singh (in counter case) was also admitted in Paraiya Hospital and he went there for verification and found him in injured condition. He has stated that he investigated both the cases i.e. this case and counter case together. According to him he did not find drain broken and also did not find any sign of cleaning of drain. 14. P.W.1 Braj Kishore Sharma is a hearsay witness has stated that on the day of occurrence he was at his shop and at 10.30 A.M. one Uday Sharma came to him and told him about the occurrence. Thereafter he went to the hospital and he met his brother Ashlok. Mantaran and Vinay. He also saw Vinay Sharma in unconscious state. According to him, Ashlok Singh, the informant stated him about the cause of occurrence. He told him that Birendra assaulted Vinay Sharma on his head with garasa. Thereafter Bhagwan came and ordered to kill him. He also stated that when his sister Mantaran Devi came out from her house she was assaulted on her head with garasa by Mohan thereafter Vinay went inside the house to hid himself and the miscreants also went there for searching him but he was not found. Thereafter they returned back and Arjun fired from his gun. He was also told by the informant that after assault they were brought Paraiva Hospital where they were treated. His statement was recorded by the Police. He has stated that he had told the Police that he heard about the occurrence from the informant, Ashlok Singh. 15. Thereafter they returned back and Arjun fired from his gun. He was also told by the informant that after assault they were brought Paraiva Hospital where they were treated. His statement was recorded by the Police. He has stated that he had told the Police that he heard about the occurrence from the informant, Ashlok Singh. 15. Learned counsel for the appellants has submitted that there was a case and counter case and a person from appellants side has also died which shows that the informants side was aggressor as such the trial Court should have appreciated that the appellants had exercised their right of private defence and as such the conviction and sentence passed by the Court below in this case is illegal. It has also been submitted that the appellants were first offender and Court below should have considered the provision of Sec.360 of the Code of Criminal Procedure (in short the Code) and should have released them on furnishing bond for keeping good behaviour. 16. From the record it appears that the learned Court below after appreciation of evidence and also appreciation of fardbeyan of counter case, observed that there was a case and counter case in which there was assault and counter assault by both sides in which Bhagwan Singh died. The Court has also discussed that the injury on the person of the victim Mantaran Devi and Vinay cannot be ignored and ruled out. The learned Court below has also observed that it was difficult to assess who were the aggressor as such the plea of private defence is not significant in this case. The prosecution in this case has been able to provide its cause of assault on the person of Vinay and Mantaran. Accordingly, the Court below found Birendra Singh and Mohan Singh guilty for the offence punishable under Sections 324 and 148 of the Indian penal Code and also found appellants Arjun Singh, Ramdas Singh and Bachan Singh guilty under Sec.147 of the Indian Penal Code forming an unlawful assembly. Accordingly, they were convicted under Sec.147 and were sentenced to undergo R.I. for six months each. 17. However, the occurrence took place in 1990 and there was admittedly a case and counter case. Both the sides assaulted each other. Accordingly, they were convicted under Sec.147 and were sentenced to undergo R.I. for six months each. 17. However, the occurrence took place in 1990 and there was admittedly a case and counter case. Both the sides assaulted each other. It has been stated by the learned counsel for the appellants that appellant Mohan Singh is an old man aged about 74 years and Bachan Singh is a patient of leprosy. The appellants do not have any criminal antecedent. The court below has not considered the provision of Sec.360 of the Code. Under this circumstance they have submitted that recourse to Sec.360 of the Code should be taken. From judgment it appears that the court below has not considered to apply the provision of Section 360 of the Code and has not even stated the reason for not doing so, as required by Sec.361 of the Code. However, in the facts and circumstances of the case. I find that in the interest of justice the appellants should be given the benefit of Sec.360 of the Code. Accordingly, they are directed to be released on their entering into a bond to appear and to receive sentence whenever called upon during a period of one year and in the meantime, they are directed to keep peace and be of a good behaviour. With the aforesaid observation and modification this appeal is allowed.