JUDGMENT : Dinesh Kumar Singh, J. 1. Heard the arguments of Sri Anwar Husain and Sri P.K.S. Chauhan, learned counsel for the appellants and Sri S.B. Maurya, learned A.G.A. for the State. 2. The Present Criminal Appeal has been preferred against the judgment and order dated 6.07.1981 passed by the Sessions Judge, Fatehpur in S.T. No. 231 of 2018, State Vs. Balaiyan @ Balaiyan Singh and two others by the appellants who have been held guilty under section 325 I.P.C. read with section 34 I.P.C. and section 323 I.P.C. read with section 34 I.P.C. and have been awarded punishment under Section 325 I.P.C. read with 34 I.P.C. of four years R.I. each and one year R.I. each under section 323 read with section 34 I.P.C. and both the sentences are directed to run concurrently. 3. The facts in brief of this case are that the real nephews of the informant, Ram Prasad (PW-1) namely Ram Khelawan @ Ram Krishna, Sankatha Prasad and Ganesha Prasad, all sons of Mahaveer Prasad were contesting a case with respect to land against accused, Balaiyan @ Balaiya Singh, Vishal, Krishna Pal and Nanku @ Nanku Singh, sons of Shiv Narayan Singh and despite the fact that many times decision has been given in favour of his nephews, Vishal and others were not allowing them to plough the land and were forcibly cultivating the said piece of land. On 9.11.1979 at about 09:30 a.m., when the above accused were cultivating the said field then his nephews went there and asked them not to plough the said land but the accused would not listen and started abusing and also started beating them which resulted in large number of injuries being caused to the nephews of the informant. At the scream of his nephews, the informant and other villagers i.e. Harnam Singh s/o Shiv Saran Singh, Jalesar Singh s/o Kashi Singh and Ram Asre s/o Ram Kishun Singh and others reached the spot and counselled the accused not to indulge in beating but they would not calm down and went away from there saying that they would not stop until they beat them to death. After much persuasion of the informant and the witnesses, accused went away towards village. The condition of Ganesh Prasad was extremely delicate. After picking all the injured in the Tonga, the informant went to lodge the F.I.R. 4. After much persuasion of the informant and the witnesses, accused went away towards village. The condition of Ganesh Prasad was extremely delicate. After picking all the injured in the Tonga, the informant went to lodge the F.I.R. 4. At the written report, Exhibit Ka-1, Constable No. 28, Suresh Chand, PW-6 prepared the chik F.I.R. Exhibit Ka-7 after registering the Crime No. 200 of 1979 under Section 308 I.P.C. against all the three accused at 10:30 a.m. at P.S., Hussainganj, District Fatehpur and entry of this case was made in G.D. by him as report no. 19 time 10:30 p.m., Exhibit Ka-8. This witness has also prepared "Mazroobi Chitthi" Exhibit Ka 4/1, Exhibit Ka 5/1 and Exhibit Ka 6/1. All the three injured were examined at 9.11.1979 at 11:20 a.m. and 11:30 a.m. and 11:45 a.m. respectively by Dr. R.K. Katiyar, PW-5 who prepared the injury memos of Ganesh Prasad, Exhibit Ka-4, Sankatha Prasad, Exhibit Ka-5 and Ram Khilawan, Exhibit Ka-6 who found following injuries on the injured, Ganesh Prasad:- (i) Lacerated wound on left side of scalp on lower middle part, 4 c.ms. x c.m. Bone deep, 11 c.ms. from root of nose with depression in an area of 7 c.ms. x 3 c.ms. on the left parietal and frontal region, which were in his opinion, caused by blunt object and were fresh and x-ray was advised. 5. The other injured Sankatha Prasad was found to suffer following injuries:- (i) Lacerated wound on the left side of scalp, 5 cms. x .5 cms. bone deep in the occipital and parietal region vertical in shape parallel to mid line 13 cms. from the mastoid process left side. The margins were irregular and everted, bleeding there was present. The injury was kept under observation. (ii) Multiple contusion on the upper the of the back, both side nine in number measuring from 4 cms. x 2 cms. to 20 cms. x 2 cms. Reddish in colour, transverse and obliquely present. (iii) Contusion on left fore arm lower 2/3rd, 11 cms. x 2 cms. obliquely placed, 3 cms. from the wrist joint. Reddish in colour. It was kept under observation and x-ray was advised. Injury no. 2 was simple in nature while all other injuries were found to have been caused by some blunt object and were fresh. 6. On third injured i.e. Ram Khilawan, following injuries were found:- (i) Lacerated wound 12 cms. obliquely placed, 3 cms. from the wrist joint. Reddish in colour. It was kept under observation and x-ray was advised. Injury no. 2 was simple in nature while all other injuries were found to have been caused by some blunt object and were fresh. 6. On third injured i.e. Ram Khilawan, following injuries were found:- (i) Lacerated wound 12 cms. x 0.5 cms. Bone deep on the right side, 1 c.m. lateral to mid line, 15 cms. from the mastoid process right side. It was kept under observation and x-ray was advised. The margins were irregular and everted and bleeding was present. (ii) Contusion 20 cms. x 2 cms. vertical on the left side, 5 cms. lateral to mid line 16 cms. below the cervical 7th vertebra. Reddish in colour. (iii) Contusion 7 cms. x 2 cms. obliquely placed on the back of left side in the scapular and infra-scapular region, 4 cms. lateral to injury no. 2. Reddish in colour. (iv) Complaint of pain in the left fore arm. All the injuries were simple and caused by blunt object and duration was fresh. 7. Dr. R.K. Katiyar also conducted x-ray of the injuries of two injured persons. In X-ray, (Exhibit Ka-9) of Sankatha Prasad of his skull, nothing abnormal was found but in his chest x-ray, he has found fracture towards right side of scapula below spine. In x-ray of Ganesh Prasad, Exhibit Ka-10, he has recorded to have found fracture of fronto parietal bone. 8. The investigation of this case was assigned to S.I., Jai Karan, PW-4 on the same day and he recorded the statement of Head Mohorrir and, thereafter, he went to the place of incident and there, he recorded statement of the informant, Ram Prasad witnesses Harnam Singh, Jalesar Singh and Ram Asre Singh and also that of driver of tractor and some other persons and prepared site-plan, Exhibit Ka-2. On 11.11.1979, he recorded the statement of injured, Sankatha Prasad and Ram Khilawan but could not record the statement of third injured, Ganesh because he was unconscious till then. His statement could be recorded on 3.12.1979 at the police station when he had recovered and, thereafter he concluded the investigation and submitted the charge-sheet, (Exhibit Ka-3) against the accused appellants. On 11.11.1979, he recorded the statement of injured, Sankatha Prasad and Ram Khilawan but could not record the statement of third injured, Ganesh because he was unconscious till then. His statement could be recorded on 3.12.1979 at the police station when he had recovered and, thereafter he concluded the investigation and submitted the charge-sheet, (Exhibit Ka-3) against the accused appellants. Learned trial court framed charges against the accused appellants under section 308 I.P.C. read with section 34 I.P.C. on 5.08.1980 to which he pleaded not guilty and claimed to be tried. 9. The prosecution examined Ram Prasad, informant as PW-1, Ram Asarey Singh, eye-witness of the incident as PW-2, Sankatha Prasad, the injured as PW-3, Investigating Officer, Jai Karan Singh as PW-4, Dr. R.K. Katiyar who conducted the medical examination as well as x-ray of the injured persons as PW-5 and the Constable no. 28, Suresh Chand Dubey as PW-6 who has registered the case, to prove the prosecution case. As documentary evidence, from the side of prosecution, two papers have been filed in which Exhibit Ka-11 is a certified copy of the order dated 31.03.1978 in Revision No. 28/146 passed by Commissioner, Allahabad Division while Exhibit Ka-12 is a certified copy of the order dated 16.02.1978 passed by District Magistrate, Fatehpur in case under section 198 U.P. Z.A. & L.R. Act. 10. Thereafter, the evidence of prosecution was closed and the statement of accused were recorded under Section 313 Cr.P.C. in which they have stated the entire prosecution to be false and the accused appellant, Vishal in particular has stated that he had obtained stay order from the Board of Revenue which has been filed in respect of disputed land regarding which accused, Krishan Pal had lost the case and denied that the accused side had forcibly taken possession over the disputed land and further stated that the possession over the said piece of land continued to remain with accused side. It was the informant side which was trying to interfere in their possession and when the complainant side came to the spot and tried to restrain the accused side from ploughing the land, they started abusing and also attempted to beat the accused, Balaiyan, then all the accused tried to stop them and even then when the informant side started beating, in self-defence, the accused side took steps. It is also stated that written statement was submitted from his side. The accused-appellant Balaiyan has also stated the same version as has been mentioned by the other two accused above. From the side of the defence/appellants, two papers were submitted vide list-27 A which are Exhibit Kha-1 and Exhibit Kha-2. Exhibit Kha-1 is a certified copy of Khatauni nos. 1382 to 1387 fasli and Exhibit Kha-2 is certified copy of stay order passed in Revision No. 106 of 78-79, Fatehpur. 11. On the basis of above evidence, learned trial court has convicted and sentenced the accused appellants as mentioned above and this Court has to see as to whether on the basis of material available on record, the said conviction order is justified or does it require any modification or reversal for which the relevant statements need to be taken into consideration. 12. PW-1 in support of prosecution version as mentioned in the F.I.R. has stated in examination-in-chief that all the three nephews have won the case against the accused appellants from the Court of District Magistrate as well as Commissioner against which accused side has filed an appeal before Board of Revenue. On the disputed field, some-times nephews and some-times, accused side used to sow the crop and reap the same. About 4 or 5 days prior to the occurrence, the disputed land was ploughed by his nephews. About 10-11 months ago at about 9:30 a.m. when he was about to go to Jagan Ka Purwa for bringing labourers and as he reached near culvert of the canal, he found Ram Asre Singh, PW-2, Jalesar Singh and Harnam Singh who were sitting there and all three nephews also reached there and on being asked, his nephews told him that the accused were ploughing the said disputed land and that they were going to prohibit them and after telling so, his nephews went away and behind them, PW-1 and other witnesses also followed. At that time, his nephews did not have any lathi or danda in their hands. When his nephews reached the disputed land and restrained the accused from ploughing the same, who were ploughing the said land by tractor, then all the accused who were present in Court started abusing his nephews and, thereafter, started beating them with lathis. At that time, his nephews did not have any lathi or danda in their hands. When his nephews reached the disputed land and restrained the accused from ploughing the same, who were ploughing the said land by tractor, then all the accused who were present in Court started abusing his nephews and, thereafter, started beating them with lathis. His nephew, Ganesh Prasad fell unconscious as soon as PW-1 reached there and was lying on the ground and the other nephews, Sankatha Prasad and Ram Khilawan also fell down on the ground after getting injured. PW-1 and the other witnesses with him intervened and tried to stop the accused from beating them at which the accused proceeded towards the village. He called for a 'Tonga' from Jagan Ka Purwa and also called for a paper through Ram Narayan at the tube-well of his nephews and, thereafter, Ram Narayan jotted down the report of the incident at his dictation and this witness was shown as Exhibit Ka-1, he identified the report as the same report which he has dictated. He further submitted that all the three injured were taken on a 'Tonga' to the police station for lodging the report where they had reached about 10:30 a.m. and their report was written and from the police station, all the three injured were sent for medical examination. In cross-examination, this witness has stated that the 'patta' of the disputed land was written in favour of the accused but he could not tell the year when it was written. The said 'patta' was executed by 'Gram Samaj' but the possession on the said land remained with his nephews. Prior to the incident, his nephews were cultivating the said land but after the 'patta' having been executed in favour of the accused, as and when they got opportunity, they started ploughing the same and also used to reap the crop. The said 'patta' was executed by 'Gram Samaj' but the possession on the said land remained with his nephews. Prior to the incident, his nephews were cultivating the said land but after the 'patta' having been executed in favour of the accused, as and when they got opportunity, they started ploughing the same and also used to reap the crop. Main dispute between his nephews and accused persons related to the fact as to who had the right to cultivate the said land and he denied that after execution of the said 'patta' the accused were in possession over the said land and would not allow his nephews to plough the same ever and reiterated that the facts mentioned by him in the written report were correct and also denied to have given the statement to the police that Vishal and others did not allow the plough of the said land and were doing the cultivation on it on their own, if the same had not been written by Investigating Officer, he could not tell its reason. Further he has stated that a case was filed by his nephews to get the 'patta' cancelled; he does not know the exact number of the land and after winning the case, he and his nephews had told the accused persons not to plough that land but they would not listen and the situation remained like as it was before. He admitted that four to five days prior to the incident, his nephews had ploughed the disputed land, was being stated by him for the first time before Court today and had not got it written in F.I.R. not had told about it to the Investigating Officer. He further stated that he was going to bring labourers, this fact was being stated by him before Court today but in his report and the statement given to Investigating Officer, he had stated that he had gone for the some important work. When he proceeded towards the field of his nephews then he had got the sense along with his companions that there could be a quarrel but he denied that he sensed about the quarrel to take place because his nephews were in anger and were wielding 'lathis'. Not only one accused had beaten his nephews rather all the three accused had beaten them. Not only one accused had beaten his nephews rather all the three accused had beaten them. He further stated that he had mentioned in his report as well as in his statement to the Investigating Officer that the persons who were assaulting were saying that 'Mar kar hi dam lunga' which meant that all the three accused were saying so not one of them only. He denied that after winning the case of the said land, he and his three nephews wanted to oust the accused forcibly from the said land and also denied that they had gone armed with 'lathi' to drive out the accused from the said land. It was also denied that the accused did not concede to leave their possession, the complainant side assaulted them and in defence, the accused side had also beaten them. 13. The PW-2, Ram Asre who is also an eye-witness has stated that in examination-in-chief about 10-11 months ago at about 9:30 a.m. he, Harnam Singh, Jalesar Singh were sitting in Jagan Ka Purwa near a culvert of canal, right then Ram Prasad, PW-1, reached there and some-time thereafter that Ram Khilawan, Sankatha Prasad, PW-3, and Ganesh Prasad also reached there and started saying that the accused were forcibly ploughing their land with tractor and that they were going to restrain them and, thereafter all the three left the place. The accused started abusing these three brothers and then PW- 2 along with his companions mentioned above, got up and went towards the land where quarrel was taking place. All the three accused persons in Court were beating Ganesh Prasad, Ram Khilawan and Sankatha Prasad with 'lathis' while the injured were empty handed and had not done any 'marpeet' with accused. After getting injured, Ganesh Prasad became unconscious and Ram Prasad and Ram Khilawan also fell on the ground, then PW- 2 and his companions restrained the accused from beating, thereafter, all the accused fled from there. Report regarding this incident was prepared at the said land itself and all the three injured were taken to the police station on 'Tonga'. The Court had made a query before commencing the cross-examination to which this witness responded by saying that the place of occurrence was at the distance of 100 yards from the culvert where they were sitting. 14. The Court had made a query before commencing the cross-examination to which this witness responded by saying that the place of occurrence was at the distance of 100 yards from the culvert where they were sitting. 14. In cross-examination, this witness has stated that he has no land or grove near the disputed land. He had seen the disputed land being ploughed by the accused persons and it was also ploughed some-times by Sankatha Prasad and others. Further he stated that when Sankata Prasad and others were going towards the said land while they were sitting at culvert he had not sensed that there could be any quarrel between them and the accused. He was interrogated by the Investigating Officer but he had not disclosed to him that they thought that there could be a quarrel and, hence, they should go and restrain them but if the same was not found written in his statement, he could not tell its reason. He further stated that Ganesh and others restrained the accused persons from ploughing the said land when he had reached there, the accused have stated that they were ploughing the said land because they had got 'patta' in their names. He denied as to when accused stated that as they had 'patta' in their names, hence, they will plough the land. Sankatha Prasad and others assaulted the accused side and that Sankatha Prasad and his companions were abusing and saying that they would not allow the accused to plough the said land. Further he has stated that he is a gate keeper at Bus Station, Fatehpur and his duty starts from 4 p.m. till 12 in the night but the said time keeps changing and he denied that on the date of incident, he was on duty from 8 a.m. to 4 p.m. and had not seen the occurrence. He also stated that the name of his uncle, Mahaveer and long ago Shiv Das had lodged the case against Mahaveer and Girdhari in which case, Balaiyan accused was a witness or not, he could not tell. 15. PW-3, Sankatha Prasad, injured witness has stated that the number of disputed land is 705 regarding which litigation is going on between him and his brothers on the one hand and the accused on the other. 15. PW-3, Sankatha Prasad, injured witness has stated that the number of disputed land is 705 regarding which litigation is going on between him and his brothers on the one hand and the accused on the other. This number was earlier a grove, but Gram Pradhan had executed illegal 'patta' of this land in favour of Krishna Pal and others. He with his brothers has possession over the said land prior to the execution of the said 'patta' and even today, they are in possession. Subsequent to the execution of 'patta' whenever he ploughed the said land, the accused Krishna Pal and others used to replough them. When PW-3 used to reap the crop, the accused used to stop them. On the said land, there were number of trees standing which were cut down by the accused persons after the execution of 'patta' and then only PW-2 came to know that such a 'patta' has been executed about 4 to 5 days prior to the incident, when they had ploughed the said land, soon thereafter, the accused also went there and started ploughing it with their tractor. About 10/11 months ago between 9 to 9:30 a.m. when the accused were ploughing the said land by their tractor, Ram Khilawan, Ganesh Prasad along with him went there to stop them. They did not have any weapon in their hand and when they reached near culvert of canal, they found Ram Prasad, his uncle Jalesar Singh, Ram Asre Singh and Harnam Singh sitting there, who on being enquired, were apprised that the accused who were present in Court, were forcibly ploughing the said land and they were going to restrain them. When they reached the said land and restrained them from ploughing, the accused side started abusing and beating them with 'lathis' and at the said point of time, all the four witnesses named above had also reached the place of incident. All the three accused had beaten them with 'lathis' as a result of which, Ganesh Prasad turned unconscious and his brother Ram Khilawan also fell down on the ground. He himself had received injuries in head, hand and chest. Ganesh Prasad had also received injury on his head and hand while Ram Khilawan had received injuries on his head and back. When the witnesses intervened the accused went away from there leaving them in injured condition. He himself had received injuries in head, hand and chest. Ganesh Prasad had also received injury on his head and hand while Ram Khilawan had received injuries on his head and back. When the witnesses intervened the accused went away from there leaving them in injured condition. Further he stated that his uncle Ram Prasad called a 'Tonga' from Jagan Ka Purwa and also called for a paper from his nephew, Ram Narayan at the tube-well and prepared the written report of the incident, which they all had taken to P.S. Hussainganj at about 10:30 a.m. and after lodging the report, all the three injured were referred to Sadar hospital where they were medically examined and x-rayed it and remained admitted in hospital. Ganesh Prasad could regain consciousness about five to six days of the incident. He and his other two brothers had not assaulted the accused side. 16. In cross-examination, this witness has stated that the disputed land was with them right from the time of abolition of 'Zamindari' in the name of their father and it is wrong to say that the name of his father was not recorded in any official paper. The Gram-Sabha did not have any authority to execute the 'patta' of the said land and because of this reason only, the said 'patta' was cancelled. He denied that after the execution of 'patta' the accused came in possession of the said land and continued to remain in its possession till the date of the incident. He had given statement to the I.O. whom he had stated that they had won the case but the land was being ploughed forcibly by them (accused) and were not permitting them (complainant side) to plough the land. He had also told the Investigating Officer that the said land was some-times being ploughed by the accused side and some-times by complainant side but if the same is not written, he could not tell its reason. Whenever the accused side re-ploughed the said land, PW.3 and his side used to reap the crop and the accused side used to restrain them but even then, they used to reap the crop. 17. He does not know as to who had executed the 'patta' in favour of the accused person nor does he know as to what orders were passed on their appeal by the Board of Revenue. 17. He does not know as to who had executed the 'patta' in favour of the accused person nor does he know as to what orders were passed on their appeal by the Board of Revenue. He denied that they did not have possession over the disputed land prior to the execution of 'patta' and on the day of incident. He admitted that prior to execution of 'patta' disputed land was not being ploughed, although some trees were standing on it. He also stated that he had told Investigating Officer four to five days prior to the incident that he had ploughed the land, if the same was not mentioned by him, he could not tell its reason. He also showed ignorance as to the contents of the report lodged at the police station but did say that Ram Prasad, uncle had got the report written by Ram Narayan at the field itself but he had not heard what was written in the said report. He has further stated that he had told the accused person that he (PW-3) had won the case, hence they should leave their possession, at this, the accused became aggressive. The accused used to resist them from taking possession. He denied that on the date of incident all the three accused gone armed with 'lathis' to the spot with a view to dislodge the accused from the possession. It was stated by him that prior to the incident he has stated to the accused that they should wait for decision in the case and till then let the land remain as such and when this was stated to the accused, he and his brothers were abused and were beaten. 18. On the basis of above evidence, it transpires that there was dispute with regard to the land in question between the two sides regarding which litigation was pending before the Board of Revenue as the complainant side had won the case up to the level of Commissioner and it is also clear that the order which was passed in favour of the complainant side regarding cancellation of 'patta' was appealed before the Commissioner and Commissioner also upheld the same but against that order, revision was filed before Board of Revenue and in the said proceedings, operation of the order of the Commissioner had been stayed. These facts are clear from the documentary evidence filed from the side of either party. The complainant side is claiming ownership of that land right from the period of 'Zamindari' abolition as being their grove but no documentary evidence has been provided from the side of the complainant in this regard. It is also evident from the evidence that prior to the execution of 'Patta' the said land was not ploughed by anyone rather the same was having few trees and after the execution of 'patta' those trees were felled by the accused side and they started cultivating the same. It is also apparent from the evidence that the complainant side were acknowledging the possession over the said land of the accused side and have stated that some-times the complainant side and some-times the accused side used to cultivate that land and the situation was continuing as such. But if documentary evidence be taken into consideration, the 'patta' which was executed in favour of the accused, though has been cancelled by the District Magistrate as well as by the Commissioner but the said order was stayed by the Board of Revenue, therefore, the final judgment over the said piece of land was still awaited from the Board of Revenue as against to this, complainant side has been unable to show any documentary evidence to prove their ownership, prior to that execution of 'patta' therefore by the principle of pre-ponderance of evidence, the ownership of said land appears to vest in accused side as of now and it appears from the evidence on record that the complainant went to the said land when they heard about the said land being ploughed by the accused to restrain them from doing so and this led to 'marpeet' between two sides. Learned counsel for the appellants has argued vehemently that since the trial court has given finding that the accused side were in possession of the disputed land and the complainant side were tress-passing upon the land of the accused, they had a right to private defence to defend their property and in exercise of the same, they had tried to restrain the complainant side from entering their property at which the complainant side started abusing and beating them, therefore, in his defence they were left with no choice but to defend themselves and in the process, several injuries were caused to the complainant side and, therefore, learned trial court has committed error in convicting the appellants erroneously. 19. I have gone through the judgment of the trial court in this regard and find that the learned trial court has very meticulously evaluated the evidence on record as well as has taken above-mentioned points into consideration and has opined that it was true that the complainant side was entering upon the field which was in possession of the accused side which amounted to criminal tress-pass but the resistance which was required to be there from the side of accused ought to have been proportionate because section 99 I.P.C. provides that right to private defence in no case extends to the inflicting of more harm than it is necessary to inflict, for the purpose of defence. The learned trial court has written finding that the complainant side were unarmed when they approached the accused side to restrain them from ploughing the land and, therefore, it could not be concluded that the complainant side had gone there with an intention to drive out the accused side at any cost even if that involved beating them or causing injuries to them, had that been their intention, they would certainly have gone there well-armed which is not the case. The learned trial court has also found that from the side of accused, large number of injuries have been caused to the complainant side which do not appear to have been caused in self-defence because had there been any aggression from the side of complainant, some injuries or scratches certainly would have been found on the persons of the accused but in this case, no injuries were found to have been suffered by the accused side, not even a scratch nor any cross case has been lodged from their side against the complainant side. It is also found by the learned trial judge that the proper course available to the accused side was to either approach the police authorities to seek help or could have forcibly removed them (complainant side) without causing injury, particularly when they were unarmed. I am totally in agreement with the said finding given by the learned trial court and find that the argument made by the learned counsel for the appellants that the said ground of right of private defence was not properly considered by the trial court in the light of evidence on record is not found to have any substance. This Court finds that there are three injured from the side of complainant and three assailants from the side of accused side. All the injured have received grievous injuries which are mentioned above except one Ram Khilawan, therefore, the finding of the learned trial court is found to be in accordance with law as regards conviction of all the three accused under Section 325 I.P.C. read with Section 34 I.P.C. because all the three accused with common intention to cause grievous injury to the complainant side have beaten them with 'lathis' and also causing them simple injuries, hence, they have also been held guilty under Section 323 I.P.C. read with Section 34 I.P.C. as well, instead of Section 308 I.P.C. because it was rightly concluded by the trial court that there was no intention or knowledge or such circumstances where the said act was committed so that if by that act, death was caused, the accused would be guilty of culpable homicide not amounting to the murder. It was rightly held by the trial court that the accused were armed with 'lathis' only by which they had assaulted the complainant side, the beating by 'lathis' would not lead this Court to draw the inference that the intention of the accused side was to cause death of the injured, therefore, the conviction made under Section 325 I.P.C. read with Section 34 I.P.C. and Section 323 I.P.C. read with Section 34 I.P.C. is found to be in accordance with law and the appeal deserves to be dismissed as regards their conviction and is dismissed, accordingly. Although learned counsel for the appellants has not sought any relief to be granted to the appellants in terms of the provision under Section 4 of the Probation of Offenders Act but this Court deems it proper that having regard to the circumstances of this case and age of the accused-appellants on date that the accused were held guilty and awarded punishment way back on 06.07.1981 i.e. about 37 years ago with above punishment when the age of the accused-appellant, Balaiyan was 30 years, accused Vishal was 35 years and accused Nanku was 22 years, 37 years down the line their age would now be 67 years, 72 years and 59 years respectively, which appears to be too harsh a punishment to direct the accused appellants to serve out the sentence of imprisonment at such distant point of time and, therefore, it is found appropriate to grant them benefit under Section 4 of Probation of Offenders Act which is permissible for an offence not punishable with death or imprisonment of life having regard to the circumstances of the present case, as well as the nature of offence. As regards nature of the offence, this offence appears to have taken place on the spot at the spur of the moment during quarrel between two sides in which beating has been made from the side of the accused to the complainant side, there does not appear to be any prior conviction as is reflected from the judgment itself, therefore instead of awarding punishment as recorded by the trial court, it is deemed proper to give them benefit of Section 4 of the Probation of Offender's Act instead of awarding punishment in terms of imprisonment. 20. Record reveals that the accused are on bail, hence, their surety stands discharged. 20. Record reveals that the accused are on bail, hence, their surety stands discharged. They shall be taken into custody and shall be released on probation for a period of three years on their entering into personal bonds and two sureties each to the satisfaction of the trial court to appear and receive sentence when called upon during such period as the Court may direct and in the meantime, they shall keep the peace and be of good behaviour. 21. They shall remain under supervision of the District Probation Officer of the concerned district for this period. It is further directed that each accused shall deposit a sum of Rs. 10,000/- to be paid to the injured by way of compensation for the injury suffered by them which would be distributed equally to all the injured by the trial court within one month from the date when the said amount is deposited in the Court. In case of default, the accused appellants shall serve out the sentence as has been awarded by the trial court. 22. This appeal is accordingly, partly allowed in respect of sentence. 23. Office is directed to send a copy of this judgment forthwith to the trial court for its immediate compliance.