N.S. Gupta, J. - (1.) This criminal appeal is directed against the judgement and order dated 11.12.79 passed by Sri S.N. Lal, the then II Additional Sessions Judge, Azamgarh in Sections Trial No. 238 of 1976, convicting and sentencing the appellant under Section 323, 436 Indian Penal Code read with Section 34 Indian Penal Code to 4 years R.I. under Section 436 Indian Penal Code and 1 year R.I. under Section 323 Indian Penal Code. The prosecution story briefly stated is as follows:- P.W. 1 Ram Saran was a resident of village Gajendra Patti, Bhadaura, P.S. Akrauli District Azamgarh. He claimed to have obtained a piece of land measuring about 5-6 Biswas situate in the said village some 30 years back before the date of the occurrence of this case from Gokul Singh after paying a nazrana of Rs.1000/-. Ram Saran who was a Kumhar by profession put up a Mundai, check and Aawa to prepare earthen pots in the said land. He also fixed his Haudi and Charwa on this land and was tethering his cattle therein. He had planted Neem and Bamboo trees. The prosecution claimed that accused Ram Bhuj, Birai and their associate viz. Pheru, Samuj, Kumar, Triloki, Jeet and Beru were strong hold Person. Pheru, Ram Bhuj, Samuj and Santu had damaged the crop of the complainant Ram Saran S/o Phool Chand on 16.3.76 about which Phool Chand had instituted a criminal complaint against Pheru, Ram Bhuj, Samuj and Santu which had ended into acquittal. According to the prosecution version accused Ram Bhuj, Birai and Kalu the Bhange of accused Santu had obtained a sale deed from Ram Chandra Singh and Sheo Murat Singh the descendants other of Gokul Singh on 12.9.74 in respect on the land in dispute which was held by Ram Saran, about which Ram Saran had filed a civil suit No. 147 of 75. It is said that on the move of the plaintiff Ram Saran P.W.1 a commission was appointed to visit the spot. When accused Ram Bhuj and his associates viz. Birai, Pheru, Kumar, Triloki, Jeet, Samuj and Santu came to know about the said suit and the visit of the commissioner, they formed an unlawful assembly on 16.3.75 at about 4.30 P.M. and in prosecution and the common object of the said unlawful assembly accused Ram Bhuj set fire to the Mandai of Ram Saran and reduced it to ashes. The said Mandai was used by Ram Saran for his dwelling as well as for keeping his earthen posts. The accused persons caused a damage of Rs.1000/- to Ram Saran, when Ram Saran protested about the same, accused Ram Bhuj had assaulted him by means of lathis. Hearing shouts raised by Ram Saran, Mankoo P.W.2, Ram Nihore P.W.3 came there. They were also assaulted by the accused persons. Accused Ram Bhuj and Birai also took away two Haudies of the complainant Ram Saran P.W.1 from the land in question. Ram Saran P.W. 1, Ram Nihore, P.W.3 went to Atraula Hospital on 16.3.75 at about 4.45 p.m. for their medical examination and treatment Dr. R.P. Singh P.W.5 who was then working as medical officer found following injuries on their person:- Injury of Ram Saran: 1. Lacerated wound 1/4" x ⅛" x skin deep on left temple 2" above left ear (bleeding). 2. complained of pain on right shoulder and right knees. Injuries of Nihore: 1. Lacerated wound 3.5" x 1/4" x muscle deep on right temple, 3" above right ear. It was bleeding. He complained of pain on back lower part. The injury was simple and caused by some blunt weapon. It was fresh. A written report Exh. Ka.1 scribed by Fateh Bahadur Singh was lodged by Ram Saran at P.S. Atraula at about 8.45 P.M. on 16.3.75. The defence of the accused persons was that the Marpeet was initiated by Ram Saran about which a cross case was filed by Ram Bhuj against Ram Saran, Ram Nihore, Manohar, Mohan, Mankoo, Rajdeo, Kamla Singh, Birgunath Singh, Fateh Bahadur Singh and Rajendra under Section 147/323/436 Indian Penal Code. The accused persons pleaded that from their side Birai and Ram Bhuj had sustained the following injuries at the hands of the complainant Ram Saran and others. Injuries of Birai: 1. Abrasion with contusion 11/2" x 1/2" on front of lower part of chest, 31/2" below the right ancola. 2. Contusion on whole of right upper lid. He also complained of pain on left knee, and right second toe. Injuries of Ram Bhuj: 1. Abrasion with contusion 1/2" x 1/2" on left lower cheek, 1" below left ear. 2. Contusion 1" x 1/2" on left hand, on its back at the root of thumb. 3. Contusion 2" x 1" on left dorsum part. 4. He made complaint of pain on right side back of knee. The police after needful investigating into the matter submitted charge sheet in both the cases. The case initiated by accused Ram Bhuj had ended into acquittal whereas the case initiated by the complainant Ram Saran P.W.1 ended into conviction of the two accused revisionist viz. Ram Bhuj and Birai under Section 436/34 Indian Penal Code and 323/34 Shri S.N. Lal the then II Additional Sessions Judge who tried this case sentenced the accused Ram Bhuj and Birai to R.I. for 4 years under Section 436 Indian Penal Code and one years R.I. under Section 323 Indian Penal Code as per his judgement and order dated 11.12.79. Aggrieved by the said judgement and order, the accused Ram Bhuj and Birai have come up in appeal before this Court. I have heard Sri Ravinder Singh, the learned counsel for the Appellants and Sri V.B. Singh, learned Additional Government Advocate for the State; considered their contentions and perused the records of the case. It was argued by the learned counsel for the appellants that there were cross cases in between the parties. The cross case in which the complainant party and others were arrayed as the accused persons had ended into acquittal and therefore, accused appellants of the present case ought to have been acquitted. I am unable to agree with the contention of the learned counsel for the accused appellants. I find from the record of the case that the factum of Marpit in between the parties stand fully proved by the evidence of Ram Saran P.W.1, Mankoo P.W.2 and Nihore, P.W.3. Ram Saran and Nihore are the injured eye witnesses of the occurrence. They have stated to have sustained injuries found on their person by Dr. B.P. Singh, P.W.5 and noted above which consisted of lacerated wound on the temple region of these two witnesses. It has been testified by Dr. B.P. Singh, P.W.5 that he had medically examined the accused Ram Bhuj and Birai on 17.3.75 and found abrasion with contusion measuring 11/2" x 1/2" on the front lower part of the chest of accused Birai and abrasion with contusion measuring 11/2" x 1/2" on left lower cheek; contusion 1" x 1/2" on the left hand and contusion 2" x 1" on the left dorsum part of Ram Bhuj. Specific overt act of causing injury to Ram Saran P.W.1 and Nihore P.W.3 has been assigned in the statement of these two injured witnesses to accused Ram Bhuj. The overt act of removing Haudi from the land in dispute has been assigned to accused Birai. The circumstances that accused Ram Bhuj and Birai went to police station soon after the occurrence to lodge the report of their version and the circumstance that on medical examination injuries were found on their person, leave no room to doubt their participation in the occurrence in question. The pertinent question which arises for consideration before this court is to see as to whether the accused appellants were the aggressors or complainant Ram Saran and his party were aggressors. The clear case of the prosecution is that the complainant Ram Saran P.W.1 was occupying the land in dispute for the last about 30 years before the date of occurrence of this case. He was having his Mandai and Aawa etc. for preparing earthen pots over the land in dispute. Shri Ram Saran stated that accused Ram Bhuj and Birai has got a sale deed in respect of land in dispute executed by the successor of Gokul and in the garb of the said sale deed they tried to occupy the land in dispute. Ram Saran further stated that he had filed a civil suit to safeguard his possession over the land in dispute and that a commission was to visit the spot for investigation and inspection. The accused appellants with a view to remove the evidence of the possession of the complainant Ram Saran, set fire to his Mandai and removed his haudies etc. The circumstances that the complainant was in possession of the land in dispute and that the commission was appointed by the civil court for spot inspection got to prove then the criminal mind of the accused Ram Bhuj and Birai worked in the direction of taking the law into their hands and to set fire to the Mandai of the complainant which existed over the land in dispute and further to remove the Haudies etc. of the complainant from the place of occurrence. It thus becomes obvious that the accused Ram Bhuj, Birai were the aggressors and were responsible for causing mischief by setting Mandai of the complainant into fire and causing hurt to the complainant Ram Saran and Nihore. I should state here that the injuries found on the person of the complainant Ram Saran and Nihore were on the vital part of the body. They being lacerated wounds were much more grave in nature than the injury found on the person of accused Ram Bhuj and Birai. The F.I.R. lodged by Ram Saran P.W.1 as also the medical examination of Ram Saran and Nihore were prior in time. All these facts therefore, amply go to prove the guilt of the accused appellants. It was argued by the learned counsel for the accused appellants that the learned court below gave benefit of doubt, and had acquitted six of the co-accused persons viz. Pheru, Jeet, Samuj, Kumar, Santu and Triloki. It was argued that the role of Birai was also similar to these accused persons. He, therefore, also deserved the benefit of doubt. I am unable to agree. As stated above the evidence of Ram Saran P.W.1, Mankoo P.W.2 and Nihore P.W.3 amply go to prove that the accused Birai was responsible for removing the Haudi of complainant from the scene of occurrence. His participation in the occurrence is well established by the existence of the injury on his person. I am, therefore, of the opinion that the case of accused appellant Birai stands on a different footing than the other 6 accused persons who have been acquitted. Since the accused Birai had actively participated in the occurrence in question, he would be deemed to have shared the guilty intention of accused Ram Bhuj for setting the Mandai of Ram saran to fire as also in causing hurt to him and also to his own person. Under the circumstances, I am of the opinion that the accused appellants Ram Bhuj and Birai were rightly convicted by the trial court, the IInd Sessions Judge, Azamgarh on the charges framed against them under Section 436/323/34 Indian Penal Code. Their conviction is accordingly affirmed. Coming to the point of sentence, I find that the accused appellants were sentenced to undergo R.I. for a period of 4 years under Section 436 Indian Penal Code and one year under Section 323 Indian Penal Code. A period of about 15 years has since elapsed when the accused appellants were convicted. Keeping in view the old age of the accused appellants and the fact that during all this period of 15 years, the accused appellants have suffered mental agony, I am of the opinion that it would meet the ends of justice, if the sentence of imprisonment passed against the accused appellants is reduced to two years R.I. under Section 436 Indian Penal Code and 6 months R.I. under Section 323 Indian Penal Code. With these observations, I hold that the appeal has go no force. It is hereby dismissed, but the sentence is reduced as aforesaid. Appeal Dismissed.;