JUDGMENT : Ram Krishna Gautam, J. 1. This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by Shyam Bihari, Ram Shiroman, Dharm Nath and Madan against judgment of conviction and sentence made therein in Sessions Trial No. 98 of 2005, State of U.P. Versus Shyam Bihari and others, arising out of N.C.R. No. 14 of 2004, under Sections 323/34, 504 I.P.C., Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi, passed by court of Additional Sessions Judge, Court No. 3, Bhadohi-Gyanpur, wherein convicts-appellants have been sentenced with six months' simple imprisonment and fine of Rs.500/-and in case of default one month's additional simple imprisonment for offense punishable under Section 323/34 I.P.C. and one year simple imprisonment with fine of Rs.1,000/-each and in default one month's additional simple imprisonment under Section 504 I.P.C. with a direction for concurrent running of sentences. 2. The memo of appeal contends that trial court failed to appreciate facts and law placed before it. Prosecution story was fabricated. According to evidence on record, no case was made out against appellants. Even then, they have been convicted and sentenced, as above. Medical evidence was against oral testimony, which was with all inconsistencies and contradictions. No specific motive was assigned for commission of alleged offence. Impugned judgment was based on surmises and conjectures. Hence, this appeal is with a prayer for setting aside impugned judgment of conviction and sentence dated 17.09.2011 with a further prayer for grant of acquittal against charges levelled against appellants. 3. From the very perusal of record of trial court and impugned judgment, it is apparent that a report of non-cognizable offence bearing No. 14 of 2004, under Sections 323/34, 504 I.P.C. was got registered at Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi against Shyam Bihari, Ram Shiroman, Dharm Nath and Madan, upon report of informant Ram Sajivan Harijan, S/o Banshiram Harijan, R/o Gangarampur, P.S. Durgaganj, District Sant Ravidas Nagar, Bhadohi on 12.07.2004 at 10.30 A.M. for the occurrence of 9.30 A.M. of the same day by detailed narration that chak road was being constructed over spot for use of complainant and his family members, but this was being obstructed and damaged by accused persons. It was protested. They assaulted informant and other members of his family by lathi-danda, therein Ram Ujagir, Shyamlal, Hubraji, Udairaj and Pintu were badly injured. This was Ext.Ka-1. It was protested. They assaulted informant and other members of his family by lathi-danda, therein Ram Ujagir, Shyamlal, Hubraji, Udairaj and Pintu were badly injured. This was Ext.Ka-1. In compliance of order of Court under Section 155 Cr.P.C. (Ext.Ka-2), matter was investigated, wherein Site Map (Ext.Ka-3) was prepared and after recording statement of witnesses, under Section 161 Cr.P.C., Charge Sheet (Ext.Ka-4) was filed. Magistrate took cognizance over it and held that above occurrence was a cross case version of Case Crime No. 162 of 2004, under Sections 147, 304, 149, 325, 323, 504 I.P.C., Police Station Durgaganj. Learned Judicial Magistrate-I, Bhadohi-Gyanpur vide order dated 15.07.2005, committed this file to the court of Sessions for trial as cross-case of above sessions trial, from where this file was transferred to Court of Additional Sessions Judge, Court No. 3 Bhadohi at Gyanpur. After hearing learned Public Prosecutor as well as learned counsel for defence, accused Shyam Bihari, Ram Shiroman, Dharm Nath and Madan were charged for offences punishable under Sections 323/34, 504 I.P.C. It was read over and explained to accused persons, who pleaded not guilty and claimed for trial. 4. The prosecution examined PW-1 informant Ram Sajivan, PW-2 injured witness Shyamlal, PW-3 injured witness Udairaj Singh, PW-4 injured witness Ram Ujagir, PW-5 Constable Moharrir 193 Chandrabhan Singh, PW-6 Sub Inspector S.P. Chandra, Investigating Officer, PW-7 Nagendra Prasad Mishra, Chief Pharmacist, PW-8 Head Constable Jiyalal, PW-9 Sub Inspector Radhey Shyam Pushkar and PW-10 Dr. Shri Prakash Singh. 5. With a view to have explanation over incriminating materials, produced by prosecution, against accused persons and for getting the version of accused persons they were examined under Section 313 Cr.P.C., wherein each accused said the accusation to be false and fabricated and falsely implicated in counter blast of cross-case, wherein accused side were injured by the assault made by complainant side and one Ravindra had died in it. This quarrel occurred on 12.07.2004 at about 9.30 A.M. when chak road was being constructed, wherein Shyamlal, Kallu @ Ram Ujagir, Udal @ Udairaj, Bachai @ Ram Sajivan, Awadhraj, Sudama Prasad and Girdhari gave assault by pelting of stones and bricks coupled with lathi-danda, wherein Ravindra died out of above injury and informant, Madanlal, Sursatti Devi, Sunita Devi, Shrinath, Balraji, Kamla Devi, Photo Devi and Chhabbi Devi were having injuries of lathi-danda. Pelting of stones were made by accused side for getting themselves saved from assailants and out of this, they could be saved. This false cross-case has been got registered in it. The papers of cross case in certified copies were filed in defence of accused persons. Those were first information report of Case No. 108 of 2004, arising out of Case Crime No.162 of 2004; State Vs. Shyamlal and others, Police Station Durgaganj, copy of charge sheet of Case Crime No. 162 of 2004, copy of autopsy examination report of deceased Ravindra Kumar, copy of medico legal injury report of Balraji, wife of Ram Manorath, copy of injury report of Photo Devi, copy of Site Map of Case Crime No. 162 of 2004 coupled with copies of injury reports of Shrinath, Sursatti Devi, Kamla Devi and Chhabbi Devi. Learned Sessions Judge after hearing learned counsel for both sides passed judgment of conviction against each of accused appellants for offences punishable under Sections 323/34 and 504 I.P.C. After hearing over quantum of sentence, each of convicts-appellants Shyam Bihari, Ram Shiroman, Dharm Nath and Madan were sentenced with six months simple imprisonment and fine of Rs.500/-in default one month additional simple imprisonment for offence punishable under Section 323/34 I.P.C. with further sentence of one year simple imprisonment and fine of Rs.1,000/-and in default one month additional imprisonment under Section 504 I.P.C with a direction for concurrent running of sentences, against which this appeal. 6. Learned counsel for appellants argued that it was a cross-case of Case Crime No. 162 of 2004, of which certified copy of first information report, charge sheet, inquest proceeding, autopsy examination report, injury reports of accused persons were filed on record in defence and this was said by accused persons that on the same date, time and place quarrel regarding construction of chak road took place, wherein present prosecution side gave assault by lathi-danda, bricks and stones pelting, wherein deceased Ravindra had sustained injuries. Other family members have also sustained injuries. Investigation resulted submission of charge sheet and this trial was conducted with present trial, wherein accused persons have been convicted for charges levelled in it including culpable homicide not amounting to murder. Other family members have also sustained injuries. Investigation resulted submission of charge sheet and this trial was conducted with present trial, wherein accused persons have been convicted for charges levelled in it including culpable homicide not amounting to murder. The accused side, who have been convicted in above cross-case, were held to be aggressor, whereas it has been specifically said by prosecution witnesses in above trial that in personal defence of person and property, the pelting of stone was made by present accused side and in it present prosecution side were injured. Injuries were of trifling nature and the conviction is for offence punishable under Sections 323/34 and 504 I.P.C., which were for simple hurt. Injuries were brought in existence in exercise of right of self defence. Moreso, present accused side were not aggressor. Rather complainant side were held aggressor and have been convicted and sentenced for other offences including offences of culpable homicide not amounting to murder for ten years rigorous imprisonment and fine. Hence, trial court in utter failure to analyze facts and evidence placed on record has convicted and sentenced on the basis of surmises and conjectures, which is apparently against facts on record. Hence, this appeal with above prayer. 7. Learned A.G.A. has vehemently opposed the appeal and argued that it was a case of free fight, wherein one side sustained injuries including injury to Ravindra Nath, resulting his death and other side sustained injuries, for which this trial. The trial court has convicted both sides holding that it was a case of free fight in which no side took care of law and order situation. Rather, they became offensive and gave assault to each other resulting injuries to both sides. Hence, this conviction and sentence was based on evidence placed on record. 8. The trial court has convicted both sides holding that it was a case of free fight in which no side took care of law and order situation. Rather, they became offensive and gave assault to each other resulting injuries to both sides. Hence, this conviction and sentence was based on evidence placed on record. 8. Admittedly, it was tried as a cross-case with Session Trial No. 108 of 2004, arising out of Case Crime No. 162 of 2004, under Sections 147, 304/149, 325/149, 323/149 I.P.C., wherein vide detailed and elaborate judgment passed by Session Judge as well as present Court in appeal has held that those convict-appellants were aggressor, who committed above offences under furtherance of common intention for commission of assault by lathi-danda, for which offences punishable under Section 323/149 as well as 147 I.P.C. i.e. affray has been proved against all the members of unlawful assembly and beside being in common object of that unlawful assembly, three of them i.e. Kallu, Bachai and Shyamlal did assault over Ravindra by riding over his chest and causing injuries, resulting his death for which, they have been separately punished for offence punishable under Section 304 I.P.C. In present case the place, time and date of occurrence was undisputed. Injured and their injuries were not disputed. The cause and motive of this quarrel was undisputed. Construction of chak road on the place of occurrence, resulting this quarrel, was also undisputed fact. PW-1 Ram Sajivan informant in his statement has said that on 12.07.2004 at about 9.30 A.M., this quarrel occurred towards north of house of Shyam Bihari, where chak road was being constructed and the land of Jagannath and Sudama was taken by Gram Sabha under their consent for construction of this chak road. One day before i.e. on 11.07.2004 soil was thrown for construction of chak road. On the date of occurrence at about 7 A.M. Shyam Bihari, Ram Shiroman, Dharm Raj and Madanlal, armed with lathi-danda and spade, went there and started cutting that chak road. This was reported at Police Station Durgaganj. At about 9.30 A.M., police of Durgaganj reached on spot. Awadhraj and Sobhnath were taken at police station for this quarrel, but after police left the place, Ram Shiroman, Shyam Bihari, Madan and Dharm Raj again reached at above chak road and started cutting it. This was reported at Police Station Durgaganj. At about 9.30 A.M., police of Durgaganj reached on spot. Awadhraj and Sobhnath were taken at police station for this quarrel, but after police left the place, Ram Shiroman, Shyam Bihari, Madan and Dharm Raj again reached at above chak road and started cutting it. This was protested by informant side and this resulted quarreling, wherein many persons rushed and this occurrence took place. The pelting of stones from both sides has been admitted by this witness, but it has been said that it was used in right of self defence for saving themselves. Both sides sustained injuries. They were got medically examined. Same is the testimony of PW-2 injured Shyamlal, who too has said that there was no road for the community of this witness at their village and for their conveyance this chak road was proposed to be constructed under the resolution of Gram Sabha, wherein Sobhnath, Shrinath, Shyam Bihari, Jagarnath, Jainath, Sudama and many other persons were present. The land of Jagarnath and Sudama was taken for construction of this chak road and they were ready for it. Soil was to be thrown over this chak road, thereafter, it was to be constructed and one day before, this was done. On the date of occurrence, on 12.07.2004 this quarrel took place and the place of occurrence was that chak road. Prior to it, Shyam Bihari, Ram Shiroman, Dharm Raj and Madan, armed with lathi-danda and spade, had gone at above chak road and they were damaging the same. When police was reported and it reached on spot, Sobhnath and Awadhraj were taken at police station, but after this both side entered in this quarrel, wherein they were injured. The same is the testimony of PW-3 Udairaj Singh and PW-4 Ram Ujagir. Other witnesses PW-5 Constable Moharrir 193 Chandrabhan Singh, PW-6 Sub-Inspector S.P. Chandra, PW-7 Nagendra Prasad Mishra, Chief Pharmacist, PW-8 Head Constable Jiyalal, PW-9 Radhey Shyam Pushkar and PW-10 Dr. Prakash Singh are formal witnesses, who have proved prosecution case formally regarding registration of case crime number, occurrence of above date, time and place, registration of both cases, investigation being made, injury suffered by both sides, their medico legal examination reports on record. Hence, from the appreciation of those evidence, it is apparent that this occurrence took place at about 9.30. Hence, from the appreciation of those evidence, it is apparent that this occurrence took place at about 9.30. A.M. of 12.07.2004 and this was owing to construction of chak road on spot. Both sides had rushed at above chak road, where this quarrel occurred, wherein both sides were armed with lathi-danda, which is very usual in village life. The dispute had arisen because of abuse being extended from both sides to each other. Subsequently, brick pelting started, which resulted injuries to both sides. Thereafter, overt act by three of prosecution side were made, which was not the purpose of common object of that unlawful assembly, wherein they ride over chest of Ravindra and caused injury, resulting his death. Hence, the aggressor were held to be those, who caused above offence, for which they have been convicted in cross-case. In present case, accused persons were not aggressor. Rather, they were victim of that aggression, wherein they had exercised their right of self defence by pelting stones and bricks, resulting injuries to other side, which have been proved by PW-10 Dr. Prakash Singh. Moreso, accused persons from both sides were present on spot. They were pelting stones over each other. These injuries occurred and this was by aggression made by present complainant side. Under above facts, who was aggressor and who suffered that aggression is to be seen and in present case aggression was by present complainant side. Hence, certainly trial court failed to appreciate facts and evidence placed on record. 9. Accordingly, this appeal succeeds and is allowed. The impugned judgment and order of conviction dated 17.09.2011, passed by the Trial Court, is hereby set aside and the appellants Shyam Bihari, Ram Shiroman, Dharm Nath and Madan are acquitted of all the charges. They are on bail. They need not to surrender. Their sureties are discharged. 10. Keeping in view the provisions of section 437-A Cr.P.C. appellants are directed to forthwith furnish a personal bond and two reliable sureties each in the like amount to the satisfaction of trial Court before it, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 11. 11. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance.