Judgment ( 1. ) Appellants have preferred this appeal challenging their conviction and order of sentence passed by Fifth Additional Sessions Judge, Rewa in S.T.No.206/96, decided on 3.12.99. ( 2. ) Appellants have been convicted under Section 147, 148, 323/149, 324/149, 325/149 of IPC and sentenced to rigorous imprisonment for two years for the offence under Section 148 of IPC and to rigorous imprisonment for six months and two years respectively under Section 323/149 and 324/149 of IPC and to rigorous imprisonment for three years with fine of Rs.1,000/- each, in default further rigorous imprisonment for three months, under Section 325/149 of IPC, by the impugned judgment. The sentences were directed to run concurrently. ( 3. ) Appellant No.1 Umashanker having died during the pendency of appeal, his appeal having abated, his name has been deleted from the array of appellants. ( 4. ) According to prosecution, on 11.7.95 about 2.30 in the noon at village Guthwa when complainant Madan Mohan was ploughing his land, appellants Shiv Shankar, Umashanker, Satish Kumar, Dilip Kumar, Sushil Kumar and Patai @ Ramjee, residents of Gurh, armed with lathi, danda and ballam came there and on account of old land dispute, rushed to assault him. When complainant Madan Mohan tried to escape and ran towards his house, appellants besieged him, then appellant Dilip Kumar gave him a lathi blow on his head, which started bleeding, appellant Dilip Kumar then again gave repeated lathi blows on his hand and scapular region. Injured Madan Mohan shouted for help, then his wife Vedwati, Sushil Kumar and Satyendra came to his rescue. When Vedwati tried to rescue her husband, appellant Satish gave her a lathi blow causing injuries in her left hand. The FIR of the incident was lodged by complainant Madan Mohan Pandey at Police Station, Gurh, which was recorded in Rojnamcha. Injured Madan Mohan and Vedwati were sent for medical examination. Upon receipt of their medical reports and the X-ray report, an offence was registered against the appellants and was investigated. After due investigation, appellants were prosecuted under Section 148, 147, 325, 324, 323, 307 of IPC and were put to trial. ( 5. ) Appellants abjured the guilt and pleaded false implication. The stand of appellants was that complainant falsely implicated them with intent to grab the land of appellant Dilip Kumar. After due investigation, appellants were prosecuted under Section 148, 147, 325, 324, 323, 307 of IPC and were put to trial. ( 5. ) Appellants abjured the guilt and pleaded false implication. The stand of appellants was that complainant falsely implicated them with intent to grab the land of appellant Dilip Kumar. The plea of alibi of the other appellants was also put forth in the case and defence evidence was also led in this behalf. ( 6. ) Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted all the appellants of the charge under Section 307/149 of IPC, but found them guilty under Section 147, 148, 323/149, 324/149, 325/149 of IPC, convicted and sentenced them as aforesaid, by the impugned judgment, which has been challenged in this appeal. ( 7. ) Arguments of both the sides were heard. Record of the lower court perused. ( 8. ) The conviction of the appellants is founded mainly on the evidence of four eyewitnesses, namely, Madan Mohan (P.W-2), his wife Vedwati (P.W-3), Sushil Kumar Pandey (P.W-4) and Satyendra (P.W-5) coupled with other evidence. Learned counsel for the appellants submitted that the trial court did not appreciate the evidence properly and erroneously convicted the appellants on the basis of unreliable evidence of interested and related witnesses, discarding their defence evidence. Learned counsel for the appellants further submitted that the trial court failed to consider that appellant Dilip Kumar had acted in exercise of the right of private defence of the person and property and the other appellants were not present on place occurrence and the plea of alibi was erringly rejected. ( 9. ) Learned counsel for the State, on the other hand, justified and supported the conviction of the appellants. ( 10. ) Perused the entire evidence on record. The so-called four eyewitnesses are inter se related witnesses. Madan Mohan (P.W-2) is the complainant, who lodged the report of the incident at Police Station, Gurh, which was recorded in Rojnamcha on 11.7.95 by Head Constable Umesh Pratap Singh (P.W-8), the copy of which (Ex.P-7A) is on record, on the basis of which FIR (Ex.P-3) was registered by S.H.O. S.M.Upadhyaya (P.W-9). Madan Mohan (P.W-2) is the complainant, who lodged the report of the incident at Police Station, Gurh, which was recorded in Rojnamcha on 11.7.95 by Head Constable Umesh Pratap Singh (P.W-8), the copy of which (Ex.P-7A) is on record, on the basis of which FIR (Ex.P-3) was registered by S.H.O. S.M.Upadhyaya (P.W-9). On perusal of the contents of the first information report and the entire evidence of complainant Madan Mohan (P.W-2), it is quite evident that complainant Madan Mohan (P.W-2) has given an improved and exaggerated version as against his initial version made in the first information report (Ex.P-7). ( 11. ) Complainant Madan Mohan (P.W-2) deposed in his evidence that when he was sitting and taking tea in his courtyard, all the appellants came there, hurled abuses and then appellant Dilip Kumar gave him two lathi blows on his left hand and scapular region, while appellant Shiv Shankar gave him a farsa blow on his head, and on his wife Vedwati coming to his rescue, appellant Satish gave her two lathi blows and appellant Sushil Kumar also ran with Bhala, its blow was averted. However, the farsa blow on his scalp by appellant Shiv Shankar and lathi blow on his wife by appellant Satish and bent of assault by Bhala/barchhi by appellant Sushil Kumar were never attributed to them in the FIR (Ex.P-7) lodged by him. Head Constable Umesh Pratap Singh (P.W-8), who recorded the report of the complainant in Rojnamcha as well as S.H.O S.M.Upadhyaya (P.W-9), who registered the first Information report and also recorded the statement of Madan Mohan (P.W-2), clearly stated that complainant Madan Mohan had not given such version while lodging the report. It is significant to note that although the presence of all the appellants was mentioned in the Rojnamcha report (Ex.P-7) lodged by complainant Madan Mohan (P.W-2) with the police, assault by lathi blows was attributed only to appellant Dilip Kumar. Evidently, complainant Madan Mohan (P.W-2) has thus given an improved, invented and embellished version against all the appellants attributing farsa blow to appellant Shiv Shankar and lathi blow to appellant Satish Kumar as well as a gesture of Bhala blow by appellant Sushil Kumar. ( 12. Evidently, complainant Madan Mohan (P.W-2) has thus given an improved, invented and embellished version against all the appellants attributing farsa blow to appellant Shiv Shankar and lathi blow to appellant Satish Kumar as well as a gesture of Bhala blow by appellant Sushil Kumar. ( 12. ) It is also borne out from the evidence of Dr.Mohit Tavar (P.W-7) that he found a lacerated wound of 7cm x 1cm x .5cm over left parietal region of Madan Mohan (P.W-2) besides an abrasion on his left forearm and an injury on his left shoulder caused by hard and blunt object. Dr. S.K.Pathak (P.W-1), who claimed to have found an incised wound on the occipital region of complainant Madan Mohan (P.W-2) caused by sharp object, besides a contusion on his left forearm and another contusion on his left scapular region, also conceded in cross-examination that after cleaning of the wound, lacerated wound also resembles an incised wound and he was not in a position to say with exactitude whether injury no.1 was lacerated or incised wound. In view of such shaky medical evidence, particularly when Dr. Mohit Tavar (P.W-7) described the injury on the scalp of complainant as lacerated wound caused by hard and blunt object, it could not be safely concluded that any incised wound was caused by sharp object like farsa on the head of the complainant (P.W-2); rather it appears that in view of the medical report (Ex.P-2) as given by Dr.S.K.Pathak (P.W-1) about incised injury over his head, complainant Madan Mohan (P.W-2) modulated his version and attributed farsa blow to appellant Shiv Shankar. ( 13. ) Be that as it may, in view of the shaky medical evidence plus improved and modulated version of complainant Madan Mohan (P.W-2) as against his initial version narrated in the first information report, his statement that appellant Shiv Shankar gave farsa blow on his head, cannot be believed and accepted beyond periphery of doubt. ( 14. ( 13. ) Be that as it may, in view of the shaky medical evidence plus improved and modulated version of complainant Madan Mohan (P.W-2) as against his initial version narrated in the first information report, his statement that appellant Shiv Shankar gave farsa blow on his head, cannot be believed and accepted beyond periphery of doubt. ( 14. ) Although the other so-called eyewitnesses like Vedwati (P.W-3), who is the wife of the complainant, Sushil Kumar Pandey (P.W-4) and Satyendra Kumar Pandey (P.W-5), who are admittedly inter se related witnesses, have also given similar statement like that of complainant Madan Mohan (P.W-2) and on the same line attributing farsa blow to appellant Shiv Shankar and averted spear blow by appellant Sushil, the same could not be believed and accepted as true, as the possibility of their giving similar statements as against the appellants, in connivance with complainant Madan Mohan (P.W-2) cannot be ruled out. Moreover, none of the weapons like farsa, ballam or Barchhi etc. was ever recovered from any of the appellants during investigation. In view of the aforesaid facts and the infirmities in ocular and medical evidence, the conviction of the appellants under Section 148 and 324/149 of IPC for causing injury to Madan Mohan (P.W-2) by sharp weapon cannot be safely maintained. ( 15. ) However, it is clearly borne out from the medical evidence that besides injury on the head of injured Madan Mohan (P.W-2), some injury on his left forearm caused by hard and blunt object, as also a fracture in his scapular region was also detected. Dr. R.N.Tripathi (P.W-6), upon X-ray examination of the left scapular region of complainant Madan Mohan (P.W-2), had found a fracture in the acromion process of the scapula; his X-ray report in this behalf (Ex.P-4) is also placed on record. Although part of the evidence of complainant Madan Mohan (P.W-2) has not been found to be wholly reliable, but his statement that all the appellants came to his courtyard and appellant Dilip Kumar gave him lathi blows, cannot be doubted in view of the injuries found on his person, particularly a fracture in his scapular region by Dr. Mohit Tavar (P.W-7) and Dr. R.N.Tripathi (P.W-6) respectively. Moreover, so much of the testimony of complainant (P.W-2) is also quite consistent with the initial version given by him in the first information report. Mohit Tavar (P.W-7) and Dr. R.N.Tripathi (P.W-6) respectively. Moreover, so much of the testimony of complainant (P.W-2) is also quite consistent with the initial version given by him in the first information report. The presence of all the appellants, five/six in number, on the place of occurrence and their involvement in the assault at complainant by appellant Dilip Kumar, being consistent with his initial version, also cannot be doubted. The names of all the appellant and their presence on the place of occurrence was clearly mentioned in the first information report. Needless to emphasize that a part of the testimony of a witness can be accepted, if it is found reliable and acceptable on a careful scrutiny thereof. ( 16. ) As regards the plea of alibi of some of the appellants and the plea of exercise of right of private defence by the appellants, that has been rightly rejected by the trial court. The defence evidence led in this behalf is not found to be cogent and convincing. Although, it is reflected from the impugned judgment that a counter case was also there against complainant party on the basis of report lodged by appellant Dilip Kumar Dubey, but there is no such cogent evidence on record that complainant party was the aggressor or tried to encroach upon or dispossess appellant Dilip Kumar of his land or tried to commit any mischief or criminal trespass on his land so as to give rise to or occasion the exercise of right of private defence by appellant Dilip Kumar. The evidence of Narayan Prasad Pandey (D.W-4) in this behalf is not found to be cogent and trustworthy and it does not inspire confidence. ( 17. ) Moreover, it transpires from the evidence on record that actual incident of assault at complainant Madan Mohan (P.W-2) took place in the courtyard in front of his house and not on the disputed land. ( 17. ) Moreover, it transpires from the evidence on record that actual incident of assault at complainant Madan Mohan (P.W-2) took place in the courtyard in front of his house and not on the disputed land. Although, there is some inconsistency on this point in the version of the complainant (P.W-2) as against his initial version in the first information report, in as much as in his evidence complainant Madan Mohan (P.W-2) said that he was sitting and taking tea in his courtyard, whereas from the first information report, it is gathered that he was ploughing his land when the appellants came to assault him; but the fact of chasing him by the appellants towards his house is also mentioned in the first information report (Ex.P-7), which indicates the place of occurrence to be open courtyard before the house of the complainant (PW-2). Therefore, when the actual incident of assault at the hands of the appellants took place in front of house of complainant (PW-2) causing him injuries, it cannot be said that right of private defence of property was available to appellant Dilip Kumar or the other appellants to come and chase the complainant till his courtyard and to assault him. Under Section 105 of IPC the right of private defence of property against criminal trespass and mischief continues as long as the offender continues in the commission of criminal trespass or mischief. Needless to repeat, that the act of criminal trespass or mischief on the land of appellant Dilip Kumar by the complainant is not established by the defence evidence or otherwise, nor it was established that complainant party was the aggressor. There is also nothing on record to suggest that appellant Dilip Kumar or any other appellant sustained any injury in the incident. The trial court thus rightly held that the right of private defence of property or person was not available to the appellants. ( 18. There is also nothing on record to suggest that appellant Dilip Kumar or any other appellant sustained any injury in the incident. The trial court thus rightly held that the right of private defence of property or person was not available to the appellants. ( 18. ) In view of the aforesaid facts, when the appellants, five or six in number, conjointly came to the point of courtyard of complainant Madan Mohan (P.W-2) and one of them/appellant Dilip Kumar assaulted him by lathi causing injuries on his person as well as a fracture in his scapular region, it could well be deduced that grievous hurt was caused to complainant Madan Mohan (P.W-2) in prosecution of the common object of the unlawful assembly formed by the five/six appellants. Needless to emphasize, as reiterated by the Apex Court in the case of State of Rajasthan Vs. Nathu and others (2003)5 Supreme Court Cases page 537 and Kallu @ Masih and others Vs. State of M.P. reported in (2006)10 Supreme Court Cases page 313 that under Section 149 of Cr.P.C. each member of unlawful assembly is vicariously liable for the criminal act of any other member of that assembly committed in prosecution of common object of such assembly and it is not necessary to record a definite or specific finding as to which one of the members of unlawful assembly caused particular injury. No infirmity is thus found in the conviction of the appellants under Section 325/149 of IPC. ( 19. ) As regards injury to Vedwati (P.W-3), for the reasons stated earlier, the prosecution evidence that appellant Satish Kumar gave a lathi blow to Vedwati, is also not found to be acceptable beyond periphery of doubt. Moreover, the possibility of her sustaining injury on her left hand, as found by Dr. S.K. Pathak (P.W-1), while intervening in the assault at her husband Madan Mohan (P.W-2), cannot be ruled out. Therefore, the conviction of the appellants under Section 323/149 also cannot be safely maintained. ( 20. ) In view of the foregoing discussion, the conviction of the appellants under Section 147, 148, 323/149, 324/149 of IPC, being unsustainable, deserves to be set aside. However, their conviction under Section 325/149 of IPC, as discussed above, deserves to be maintained. ( 21. Therefore, the conviction of the appellants under Section 323/149 also cannot be safely maintained. ( 20. ) In view of the foregoing discussion, the conviction of the appellants under Section 147, 148, 323/149, 324/149 of IPC, being unsustainable, deserves to be set aside. However, their conviction under Section 325/149 of IPC, as discussed above, deserves to be maintained. ( 21. ) As regards the sentence, it was submitted that the incident of the case occurred way back in the year 1995 and the appellants have settled in their life and appellant Shiv Shankar is presently more than 77 years of age, they should not be sent back to jail after such a long lapse of time. ( 22. ) Considering the submissions as advanced and the facts and circumstances of the case, especially the fact that the incident of the case occurred nearly fifteen years back, interest of justice would be subserved if the impugned sentence of imprisonment awarded to the appellants under Section 325/149 of IPC, in the peculiar facts and circumstances of the case, is modified and reduced to imprisonment till rising of the court with an additional fine of Rs.4,000/- (four thousand only). ( 23. ) Appeal is, therefore, partly allowed. The conviction of the appellants and sentence passed on them under Section 147, 148, 323/149, 324/149 of IPC are set aside. The conviction of the appellants under Section 325/149 of IPC is maintained. However, the impugned sentence of imprisonment awarded to the appellants under Section 325/149 of IPC is modified and reduced to imprisonment till rising of the court with an additional fine of Rs.4,000/- (four thousand only) each, to be deposited by each of the appellants within four months from today, failing which they shall undergo simple imprisonment for three months. ( 24. ) Appellants shall appear before the trial court on a date to be fixed by it for undergoing the sentence of imprisonment till rising of the court. ( 25. ) Out of the total amount of fine, if realized, a further sum of Rs.6,000/-(six thousand only) shall be paid to complainant Madan Mohan by way of compensation for injuries caused to him Appeal is accordingly disposed of.