Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of criminal Procedure has been filed by the appellants being aggrieved by the impugned judgment, finding and sentence dated 21. 04. 1999 passed by Sessions Judge, Rewa in Sessions trial No. 36/98, whereby the appellants have been convicted under Sections 323/34 of I. P. C. and sentenced to fine of Rs. 250/-each, in default of payment of fine R. I. for 2 months and also convicted under Section 325/34 of I. P. C. and sentenced to R. I. for 6 months each with fine of Rs. 100/-, in default of payment of fine R. I. for 1 month. ( 2. ) THE prosecution case in short is that on 04. 07. 1997 at 13:00 p. m. Ramesh Kumar Verma lodged F. I. R. at Police Station chorahta to the effect that agriculture land bearing Khasra no. 630 area 0. 63 acre was purchased by his father from ramnath Verma (appellant No. 1) at the cost of Rs. 5500/-prior to 14 years of the incident and they were in possession but mutation has not been effected. On the day of incidence at about 10:30 a. m. he and his father were cultivating this land, at the same time, appellants armed with lathi-danda came there, abused and caused their marpeet on account of which they sustained injuries. On this information Crime No. 98/97 under section 341, 294, 323, 506-B and 34 of I. P. C. was registered at Police Station Chorahta. Injured persons were sent for medical examination. They were examined by Dr. A. A. Siddiqui (PW-4) and found the injuries as detailed in medical report Ex. P-3 and Ex. P-4. On x-ray of Rampyare Verma linear fracture (left) fronto parietal region of skull and dislocation of coraco acrononia joint of shoulder were found. Spot map was prepared. Statements of the witnesses under Section 161 of cr. P. C. were recorded. Accused persons were arrested. Fardi was seized from accused Shivshankar. After completing the investigation, the charge sheet was filed under Section 341, 294, 323, 506-B and 307/34 of I. P. C. in the Court of C. J. M. , rewa who committed this case to the Sessions Court for trial. ( 3. P. C. were recorded. Accused persons were arrested. Fardi was seized from accused Shivshankar. After completing the investigation, the charge sheet was filed under Section 341, 294, 323, 506-B and 307/34 of I. P. C. in the Court of C. J. M. , rewa who committed this case to the Sessions Court for trial. ( 3. ) ACCUSED persons were charged under Sections 325/34, 307/34, 294 and 506-Part-II of I. P. C. and accused Shivshankar was further charged under Section 307 of I. P. C. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 7 witnesses and appellants also examined 3 witnesses in their defence. After appreciating the evidence trial Court found appellants guilty under section 323/34 and 325/34 of I. P. C. and sentenced thereto as stated hereinabove in para no. 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellants on the grounds mentioned therein. ( 4. ) LEARNED counsel for the appellants submitted that the disputed land belongs to Ramnath Verma-appellant No. 1. He has never sold this land to the complainant party. Prosecution has not produced any document regarding the transfer of this land. The complainant Ramesh Kumar Verma and his father rampyare Verma encroached upon the land and, therefore, the right of private defence of property was accrued in favour of the appellants. Learned counsel further submitted that there is no any evidence regarding causing marpeet by appellant No. 1 Ramnath. The prosecution has failed to prove the case beyond reasonable doubt against the appellants. The finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. ( 5. ) ON the contrary, Shri T. K. Modh, learned Deputy advocate General appearing on behalf of the respondent/state supported the impugned judgment, finding and sentence and submitted that there is ample evidence against the appellants regarding causing of marpeet of Ramesh Kumar Verma and his father Pyarelal Verma. Both the parties belong to the same family. The right of private defence will not be available in the circumstances of this case. No injury has been caused to appellants. Prosecution has proved the case beyond reasonable doubt against the appellants. Both the parties belong to the same family. The right of private defence will not be available in the circumstances of this case. No injury has been caused to appellants. Prosecution has proved the case beyond reasonable doubt against the appellants. The appellants have been rightly convicted and sentenced hence does not call for any interference. ( 6. ) THE main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under sections 323/34 and 325/34 of I. P. C. ? ( 7. ) THE complainants and appellants belong to the same family and are related to each other. Rampyare Verma (PW-2)and appellant Ramnath are real brothers. Complainant ramesh Kumar Verma is the son of Rampyare Verma and appellant No. 2, 3 and 4 are sons of appellant Ramnath Verma. It has been brought on record that partition has been effected in between them long back and they are living separately. ( 8. ) THE cause behind this incident is with regard to possession of agricultural land bearing Khasra No. 630 area 0. 63 acre situated at village Chorahta. According to prosecution, this land was purchased by Rampyare Verma from appellant Ramnath Verma at a cost of Rs. 5500/- prior to 14 years of this incident and since then they were in the cultivating possession over this land. Their name could not be mutated hence it remained continued in ownership of appellant Ramnath Verma in the revenue record. So the dispute is regarding possession and ownership of the land which is purely of civil nature. ( 9. ) THE incident is of 04. 07. 1997 at about 10:30 a. m. Ramesh Kumar Verma (PW-1) and his father Rampyare Verma (PW-2) had gone to plough this land and the appellants came there armed with lathi and danda etc and caused marpeet to them on account of which they sustained injuries. They raised alarm. Ramayan Prasad Tiwari (PW-3) and Kaleshwar Singh (PW-5) reached there to intervene. These two witnesses have also given evidence in support of complainant Ramesh Kumar verma (PW-1) and Rampyare Verma (PW-2) by deposing that these appellants caused injuries by lathi, danda and fardi to the complainant party. ( 10. ) THESE witnesses were subjected to lengthy cross examination and attempts have been made to bring out the contradictions and omissions from their earlier statements ex. ( 10. ) THESE witnesses were subjected to lengthy cross examination and attempts have been made to bring out the contradictions and omissions from their earlier statements ex. D-1 to Ex. D-4 and most of the cross examination has been done on the point that as to who is the owner and possession holder of the disputed land but their evidence is intact on the point that the complainant party was in possession of the disputed land and they all say in one voice that appellants caused marpeet by lathi and danda on account of which ramesh Kumar Verma and Rampyare Verma sustained the injuries. Thus, both injured as well as eyewitnesses have given the evidence against the appellants regarding causing of marpeet. There is nothing to disbelieve their statements. ( 11. ) F. I. R. (Ex. P-1) was lodged promptly which was recorded by D. R. Sharma (PW-6 ). The injured persons were immediately sent for medical examination. Their medical examination was done by Dr. A. A. Siddiqui (PW-4) who has deposed that on 04. 07. 1991 he medically examined Rampyare verma and found the following injuries on his person: (i) Lacerated wound of 8 x 2 x 1 cm on the scalp on the fronto parietal region (left ). (ii) Bruise on the right shoulder anterior aspect. (iii) Bruise of 6" x " on the back right side. According to his opinion, these injuries were caused by hard and blunt object within 24 hours of the examination. The patient was admitted in hospital. Medical report is Ex. P-3. On the same day he also examined Ramesh Kumar Verma and found the following injuries on his person: (i) Bruise of 6"x1" on the right arm lower 1/3rd. (ii)Bruise of 1 x 1 cm on the scalp behind the left ear. According to his opinion, these injuries were caused by hard and blunt object within 24 hours of the examination. Medical report is Ex. P-4. This witness in cross examination has clearly stated that the injury to Rampyare Verma could not have been caused by fall. Thus, by the evidence of Dr. A. A. Siddhiqui it is proved that the aforesaid injuries were found on the person of rampyare Verma and Ramesh Kumar Verma. ( 12. ) DR. Atul Singh (PW-7) on 05. 07. P-4. This witness in cross examination has clearly stated that the injury to Rampyare Verma could not have been caused by fall. Thus, by the evidence of Dr. A. A. Siddhiqui it is proved that the aforesaid injuries were found on the person of rampyare Verma and Ramesh Kumar Verma. ( 12. ) DR. Atul Singh (PW-7) on 05. 07. 1997 examined the x-ray of Rampyare Verma and found linear fracture (left)fronto parietal region of skull and dislocation of coraco acromian joint in right shoulder. X-ray report is Ex. P-10 and x-ray plates are Ex. P-11 to Ex. P-13. Thus radiologically, it is also proved that Rampyare Verma sustained fracture in skull and right shoulder. ( 13. ) THUS, the ocular evidence of prosecution finds support from the medical evidence. ( 14. ) THE question is whether the appellants were justified in exercising the right of private defence of property. ( 15. ) NO doubt, any written document has not been filed and proved regarding the possession and ownership of the disputed land but it is reflected from the oral evidence adduced in the case that this land was in the ownership of appellant No. 1 Ramnath but its possession was with complainant party. Whether it was sold or was mortgaged would be determined in the civil suit. But the fact is that complainant party was in cultivating possession of this land, therefore, they were not encroacher on the land because they were exercising their right on the pretext that they have purchased this land from appellant Ramnath. They have not only gone to cultivate the land for the first time but were also cultivating the same from before. Accepting the case of the appellants even if there were no such circumstances as to compel them to exercise their right of private defence, there was ample opportunity to approach the public authority. But, instead of doing so, they took the law in their hands, went there armed with weapons and caused marpeet to them. The complainant party was not having any weapons with them. They have sustained the injuries. No any injury was sustained by any of the appellants. This clearly goes to show that the appellants were aggressor and even if there was any right of private defence the same has been exceeded. There was no justification to cause such injuries to complainant party. ( 16. They have sustained the injuries. No any injury was sustained by any of the appellants. This clearly goes to show that the appellants were aggressor and even if there was any right of private defence the same has been exceeded. There was no justification to cause such injuries to complainant party. ( 16. ) THE appellants have also taken alternative plea that appellants No. 2, 3 and 4 were not present at the spot. They have not taken part in this incident. The appellants have examined Shyamlal Tiwari (DW-1), Raghunath Prasad (DW-2)and R. S. Pathak (DW-3) who have given evidence in their support but their evidence is not acceptable for the simple reason that both the injured as well as eyewitnesses have given evidence against these appellants regarding their presence at the spot and participation in the incident. Thus, plea of alibi has not been proved. Their evidence is an after thought hence unreliable. Trial Court has rightly rejected their evidence. ( 17. ) FROM the foregoing discussion, it is found that the prosecution has established the guilt beyond reasonable doubt against the appellants. Trial Court has discussed every aspect in great detail and has rightly arrived at the conclusion regarding the guilt of appellants. There is no infirmity, illegality or perversity in the finding of the trial Court hence can not be set aside. ( 18. ) LEARNED counsel for the appellants submitted that appellant No. 1-Ramnath is an aged person. His age is about 75 years. The appellants are first offenders, therefore, benefit of Probation of Offenders Act, 1958 be given to them. ( 19. ) IT is evident that Rampyare Verma (PW-2) sustained linear fracture in left fronto parietal region of skull and also dislocation of coraco acromonia joint of right shoulder. It goes to show that he was mercilessly beaten. Keeping in view the facts and circumstances of this case, the appellants are not entitled to get the benefit of Probation of Offenders Act. The sentence passed by the trial Court is not excessive hence does not call for any interference. The appeal is meritless which deserves to be dismissed. ( 20. ) CONSEQUENTLY, the appeal fails and is dismissed accordingly. The conviction and sentence passed by the court below are hereby maintained. The appellants are on bail. Their bail bonds are cancelled. They be directed to surrender before C. J. M. Rewa on 01. 06. The appeal is meritless which deserves to be dismissed. ( 20. ) CONSEQUENTLY, the appeal fails and is dismissed accordingly. The conviction and sentence passed by the court below are hereby maintained. The appellants are on bail. Their bail bonds are cancelled. They be directed to surrender before C. J. M. Rewa on 01. 06. 2009 for serving out the remaining part of the sentence.