Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of criminal Procedure has been preferred by the appellants being aggrieved by the impugned judgment, finding and sentence dated 26/7/1999 passed by the First Additional Sessions Judge, chhindwara in ST No. 352/1995, whereby the appellants have been convicted under Section 325 read with Section 34 of IPC and sentenced to R. I. for two years with fine of Rs. 500/- each, in default of payment of fine, additional R. I. for two months. ( 2. ) THE prosecution case in short is that on 31/5/1995 at about 10:00 AM Vedwati Bai Lodhi lodged a report at Police Station chourai District Chhindwara to the effect that she resides at village machagora. She has given her land to Mohru and Sher Khan on batai. On the date of incident at about 7:00 AM her bataidar were ploughing the field. She was also with them. Appellants came there and prevented to plough. She tried to convince them, but they started causing marpeet. Khemlal and Neelkanth inflicted lathi blows, on account of which she sustained injuries and fell down. Mohru and sher Khan tried to intervene the matter, but Narbada inflicted ballam blow, which hit at his ribs. Neelkanth and Khemlal also inflicted lathi blows to Sher Khan, on account of which he also sustained injuries. Ramkrishna Lodhi and Momin Musalman witnessed the incident. ( 3. ) ON this information, Crime No. 76/1995 under Sections 307/34 of IPC was registered against the appellants at Police Station chourai. Injured persons were sent for medical examination to the primary Health Centre, Chourai where they were medically examined by the doctors who found the injuries on their persons as detailed in the medical reports. Thereafter they were referred to District Hospital, chhindwara for X-ray, where their X-rays were taken by Dr. D. Moitra (PW-10 ). In the X-ray of Vedwati, fracture of the left patella bone, and in the X-ray of Sher Khan, fracture of the right ulna bone was found. In the X-ray of Mohru, he found surgical emphysema with effusion on the right chest. Ballam was seized and the query was made to concerned doctor, who opined that the injury to Mohru could have been caused by this ballam. Spot map Ex. P-8 was prepared. The statements of witnesses were recorded under Section 161, Cr. In the X-ray of Mohru, he found surgical emphysema with effusion on the right chest. Ballam was seized and the query was made to concerned doctor, who opined that the injury to Mohru could have been caused by this ballam. Spot map Ex. P-8 was prepared. The statements of witnesses were recorded under Section 161, Cr. P. C. After completing the investigation, the charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, amarwara who committed the case to the Sessions Court for trial. ( 4. ) APPELLANTS-ACCUSED persons were charged under Section 307 read with Section 34 of IPC. They denied the guilt and claimed to be tried mainly contending that they have exercised the right of private defence in protecting their property and they have also sustained grievous injuries. Prosecution examined as many as twelve witnesses and appellants-accused examined one witness. After appreciating the evidence, trial Court acquitted them from the charge under Section 307/34 of IPC, but found guilty under Sections 325/34 of IPC and sentenced thereto as stated hereinabove in para 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 in the memo of appeal. ( 5. ) SHRI Rakesh Mishra, Advocate was engaged by the appellants as their counsel but he did not appear on the date of hearing on 23/6/2009 to argue the case. The appeal was pending since 1999. Therefore, Ku. Manisha Shrivastava, Advocate has been appointed from the panel of the High Court Legal Aid Services committee to argue the case on behalf of the appellants so that the appeal may be disposed of expeditiously. ( 6. ) KU. Manisha Shrivastava, learned counsel for the appellants submitted that trial Court has not appreciated the evidence in proper perspective. The trial Court ought to have accepted the right of private defence against Vedwati Bai also. Learned counsel for the appellants further submitted that the prosecution has not explained the injuries of the appellants, hence finding of guilt is erroneous, which deserves to be set aside and appellants are entitled for acquittal. ( 7. The trial Court ought to have accepted the right of private defence against Vedwati Bai also. Learned counsel for the appellants further submitted that the prosecution has not explained the injuries of the appellants, hence finding of guilt is erroneous, which deserves to be set aside and appellants are entitled for acquittal. ( 7. ) ON the contrary, Shri Jaideep Singh, learned counsel appearing on behalf of the respondent/state supported the impugned judgment, finding and sentence mainly contending that the trial Court has rightly convicted the appellants, hence does not call for any interference. ( 8. ) 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 325/34 of IPC. ( 9. ) THE disputed land originally belonged to one Damdi. Vedwati Bai is his daughter-in-law. Husband of Vedwati Bai expired during the life time of Damdi. Appellant-Khemlal is his son-in-law. Appellants Neelkanth and Narbada are sons of Khemlal. They are grand sons of Damdi, so the dispute is in between the daughter-in-law and grand sons of Damdi. ( 10. ) AS per prosecution on the day of incidence Mohru (PW-2)and Sher Khan (PW-3) were ploughing the disputed land. Vedwati bai (PW-1) was also present there. It is alleged that appellants came there and prevented them to plough the field, for which Vedwati Bai objected. They inflicted lathi blows to Vedwati Bai on account of which she sustained injuries and fell down. Mohru and Sher Khan tried to intervene but appellant Narbada inflicted ballam blow to mohru, at his ribs. Neelkanth and Khemlal also inflicted lathi blows to sher Khan, on account of which he also sustained injuries. ( 11. ) PAPPU @ Sheikh Jameel (PW-9), brother of Mohru reached there who carried Ballam and informed his family members about this incident. They came at the spot and carried injured persons in a bullock-cart to Police Station Chourai where Vedwati Bai lodged FIR (Ex. P-1 ). Thereafter they were sent for medical examination. Concerned doctors of Primary Health Centre medically examined them and found injuries on their persons. They X-rays were also taken. Dr. D. Moitra (PW-10) after perusal of X-ray reports found that Vedwati Bai suffered fracture of left patella bone, Sher Khan suffered fracture of right ulna bone and there was surgical emphysema with effusion on the right chest of Mohru. Concerned doctors of Primary Health Centre medically examined them and found injuries on their persons. They X-rays were also taken. Dr. D. Moitra (PW-10) after perusal of X-ray reports found that Vedwati Bai suffered fracture of left patella bone, Sher Khan suffered fracture of right ulna bone and there was surgical emphysema with effusion on the right chest of Mohru. ( 12. ) VEDWATI Bai (PW-1), Mohru (PW-2), Sher Khan (PW-3)ad Ramkrishna (PW-8) have given the evidence in this regard. The defence of the appellants is that they were ploughing the field and the complainant party reached there and intervened in the matter. They have examined Rameshwar @ Chhotu (DW-1) in this regard. ( 13. ) NONE of the prosecution witnesses has admitted the incident occurred as stated by the appellants and there is ample evidence that the complainant party was ploughing the field and the appellants reached there and tried to plough the field on account of which this incident occurred. ( 14. ) NO doubt, the parties have not adduced the documentary evidence showing their title or possession. It reveals that appellant neelkanth instituted a civil suit against Vedwati Bai before the Civil court, who granted temporary injunction in his favour and against vedwati Bai. This injunction order was in force at the time of incident. In such situation it was obligatory on the part of Vedwati Bai to comply the order. The question is that whether the appellants were justified in exercising the right of private defence. It is evident that the appellants were having ample opportunity to approach the public authorities and also to initiate the proceeding for breach of injunction against Vedwati Bai, but instead of doing so they assaulted and caused marpeet to Vedwati Bai and his bataidar Mohru and Sher khan. ( 15. ) IT is evident that Vedwati Bai, Mohru and Sher Khan received injuries. The medical reports of Vedwati Bai and Sher Khan have not been marked exhibited. The injury report of Mohru has been exhibited and Dr. Shiv Kumar Nema (PW-7) has given the evidence that on 31/5/1995 he examined Mohru and found penetrating wound 2 " x " x 1" in front of right chest and abrasion was also found. Medical report is Ex. P-9 wherein the detailed description of the injuries have been mentioned. The injury report of Mohru has been exhibited and Dr. Shiv Kumar Nema (PW-7) has given the evidence that on 31/5/1995 he examined Mohru and found penetrating wound 2 " x " x 1" in front of right chest and abrasion was also found. Medical report is Ex. P-9 wherein the detailed description of the injuries have been mentioned. He has also deposed that one Ballam was sent to him for his opinion for which he answered that injury to mohru may be caused by this Ballam. Quarry report is Ex. P-10, which contains his signature. Thus medical report of Mohru has been proved by Dr. Shiv Kumar Nema (PW-7 ). ( 16. ) DR. D. Moitra (PW-10) after examining the X-ray reports found that there was a fracture of left patella bone of Vedwati Bai, fracture of right ulna bone of Sher Khan and there was also surgical emphysema with effusion at the right chest of Mohru. Thus by the evidence of Dr. D. Moitra (PW-10) it has been proved that these witnesses suffered grievous injuries. ( 17. ) IT is born out from the record that the appellants have also suffered grievous injuries in the same incident. Dr. Shiv Kumar nema (PW-7) has deposed that his wife Smt. Shashi Prabha was posted as Woman Assistant Surgeon at the Primary Health Centre, chourai, who examined the appellants and found injuries as mentioned in the medical reports Ex. P-9, P-10 and P-11 filed in the counter case ST No. 273/1996. According to him medical report of appellant Neelkanth is Ex. P-9 (Ex. D-4), of Narmada is Ex. P-10 (Ex. D-5) and of Khemlal is Ex. P-11 (Ex. D-6 ). According to this witness, his wife Smt. Shashi Prabha Nema had expired on 18/1/1997 and he knows her hand writing and signature, therefore he proved the medical reports of these appellants. Thus it is evident that these appellants also sustained injuries as detailed in Ex. D-4, D-5 and D-6. ( 18. ) DR. D. Moitra (PW-10) on perusal of X-ray reports found fracture in the right parietal bone of Khemlal, fracture in the left parietal bone of Narbada and fracture in the fore-arm of Neelkanth. These reports are Ex. D-7, Ex. D-8 and Ex. D-9. He has given this evidence on the basis of these reports filed in the counter case ST no. 273/1996. These reports are Ex. D-7, Ex. D-8 and Ex. D-9. He has given this evidence on the basis of these reports filed in the counter case ST no. 273/1996. Thus, it is evident that these appellants also sustained grievous injuries. ( 19. ) ON perusal of the entire evidence, it reveals that it was a case of free-fight, wherein they tested their strength and tried to settle the dispute by physical force. In such situation, there was no question to exercise the right of private defence and the question of being aggressor was also immaterial. The finding of trial Court that the appellants were not having any right of private defence against vedwati is justified. Since all the appellants have caused marpeet to vedwati Bai on account of which she sustained grievous injury. They have rightly been convicted for offence under Section 325/34 of I. P. C. Such finding does not call for interference. The finding of guilt under section 325/34 of I. P. C. is hereby affirmed. ( 20. ) KU. Manisha Shrivastava, learned counsel for the appellants submitted that the incident is of the year 1995 and since then appellants have suffered a lot physically, mentally and economically. They also sustained grievous injuries in this incident. The injunction order by the competent Court was also in their favour. They have also suffered jail sentence 23. 06. 1995 to 17. 10. 1995 therefore they should be released on the period of jail sentence already undergone by them. ( 21. ) KEEPING in view the facts and circumstances of the case and submission made by the learned counsel for the appellants, interest of justice would be sub-served, if they are released on the period already undergone. ( 22. ) CONSEQUENTLY, this appeal is partly allowed. The conviction passed under Section 325/34 of IPC by the Court below is hereby maintained. However, the sentence is reduced to the period already undergone by them. Appellants are on bail. Their bail bonds are discharged.