JUDGMENT : M. Hidayatullah, J. 1. The two Appellants, Sukhnath Singh and Shamsher Singh were prosecuted in the Court of Session, Sultanpur Under Section 307 read with Section 34 of the IPC, but were convicted each Under Sections 324 and 323, IPC and sentenced to rigorous imprisonment for two years and one year respectively. Their appeal to the High Court of Allahabad was dismissed. They now appeal to this Court by special leave. 2. The prosecution was in respect of an offence said to have been committed on 15-7-1961 at 8 A.M. in what is described as plot No. 512 of Jamooria, Police Station Musafirkhana, District Sultanpur. Originally one other person, by name, Shambhoo Singh was also prosecuted, but he was acquitted in the Court of Session. The Appellants and Shambhoo Singh are three brothers. They are said to have assaulted Kalapnath Singh (PW 1) and his nephew Rajnarain Singh (PW 2) in the field with lathies. The evidence shows that Kalapnath Singh received three injuries of which two were on the head and one on the fore arm. Kalapnath Singh bled from his ear which indicated that he had received some internal injury as well. Rajnarain Singh received two injuries, one on the head and the other on the shoulder. Kalapnath Singh became unconscious and it seems he remained so for some time. In one place Kalapnath Singh says that he was unconscious for 12 days and in another that he was unconscious for two days. It is obvious that he was improving the case in the Court of Session, but it is equally obvious that the injury was serious. 3. The case stands proved by the evidence of these two victims of the assault. There were other witnesses who had arrived on the scene and some of them had them selves been assaulted but they were not examined on the plea that they had turned hostile. There is nothing to show whit their statement would have been if they had been called. They were just dropped from the list of witnesses. The case, therefore, rests upon the testimony of the two victims that they were injured goes without saying because they were immediately examined by the doctor and their first information report was also made at 11 A.M. within three hours of the occurrence. They were just dropped from the list of witnesses. The case, therefore, rests upon the testimony of the two victims that they were injured goes without saying because they were immediately examined by the doctor and their first information report was also made at 11 A.M. within three hours of the occurrence. The names of these assailants were mentioned in it including that of Shambhoo Singh who, however, received benefit of the doubt in the Court of Session. 4. In this appeal it is contended that there was a right of private defence which had not been noticed by the Court of Session and the High Court and even if it was exceeded the punishment which is meted out cannot be so severe as two years in the aggregate. It is also contended that the offence was not one Under Section 324, IPC but Under Section 323 IPC. 5. As regards the first question, namely, defence of property we may say at once that there is very little material on which the Learned Counsel for the Appellants attempted to set up such a plea. The plea was not clearly taken by the accused themselves in the Court of Session. It was mentioned in the High Court but was rejected. In this Court no substantial evidence has been brought to our notice on which we can say that the Appellants had exercised any right of private-defence either of person or of property. There is some confusion as to which field it was in which the occurrence took place. Kalapnath Singh in one place said that he had ploughed his own field and then moved to another but evidence of the sub-inspector read with the seizure memo shows that it was in the field of Kalapnath Singh himself that the occurrence took place. If this were so, it would go to show that the Appellants went to the field of Kalapnath Singh to beat him and his nephew. There is evidence to show that there was enmity and litigation had taken place between the rival parties. There was thus motive for the Appellants to have taken this action. We do not accept the plea of the right of private defence of person or property which was raised belatedly and has been reject ed in the High Court and was not considered in the Court below. 6. There was thus motive for the Appellants to have taken this action. We do not accept the plea of the right of private defence of person or property which was raised belatedly and has been reject ed in the High Court and was not considered in the Court below. 6. The only question is what was the offence committed. The Sessions Judge looked alternately at the weapon and the place where the injury was caused and came to the conclusion that in the case of Kalapnath Singh, the offence was one Under Section 324 and in the case of Rajnarain Singh the offence was Under Section 323. The High Court also in deciding upon the offence looked at the actual injury caused and reasoned from it that the offence was one Under Section 324. The High Court went further and said that probably the acquittal Under Section 307 was not justified. 7. In our opinion the approach of the High Court and the Sessions Judge was not correct. The Penal Code divides hurts into two categories, simple and grievous. All hurts which are not grievous are simple and to determine what hurts would be regarded as grievous the indicia of grievous hurts is given in Section 320 of the Penal Code. In apportioning punishments for hurt and grievous hurt the Code again classifies them into two each, namely, those committed with dangerous weapons and those not so committed. Hurts which are caused with dangerous weapons fall to be considered Under Section 324 and simple hurts are considered Under Section 323. Similarly, grievous hurt caused by dangerous weapons is treated in Section 326 and grievous hurt not so caused is treated in Section 325. From this it follows that if Section 324 is to be applied regard must be had not to the injury caused nor even to the part of the body on which it is caused but to the weapon with which it is caused. The other consideration may be taken into account in assessing the punishment but not in determining the applicability of Section 324. 8. In the present case no injury has been described to be grievous. The other consideration may be taken into account in assessing the punishment but not in determining the applicability of Section 324. 8. In the present case no injury has been described to be grievous. The doctor was not questioned even with regard to Clause (8) of Section 320 to determine whether it was a hurt which endangered life or which caused the person injured to suffer during the space of 20 days severe bodily pain or prevented him from following his ordinary pursuits. In the absence of such evidence it was impossible to hold that the offence fell within Section 326 or even Section 325 much less Under Section 307. The choice, therefore, was between Section 324 and Section 323. In determining whether it should be the one section or the other regard must be had primarily to the nature of the weapon used and not to the injury caused or the part of the body on which the injury is caused. Here the weapons used have been described only as lathies. But there are lathi's and lathi's. There is no special description of the lathi's such as, their length, weight or whether they were iron shod or tied with wires etc. They have just been described as lathi's. No doubt, a lathi may, in certain circumstances, be regarded as a weapon which is lively to cause death but the likelihood has to be one of near probability and not mere possibility. Lathi's are used every day and the offence is held to be Under Section 323. It depends on the nature of the lathi which as a weapon can be regarded as dangerous to life and for that some more evidence is necessary than has been given in this case. The witnesses who were themselves injured did not even care to give the length of the lathi or their diameter or any other particular. Lathi's were also not seized and produced before the Court. From this, therefore, it was impossible to say that the weapons which were used were those which, if used, as weapons of offence were likely to cause death. In the circumstances, we think that the offence falls within Section 323 rather than Section 324 and the High Court and the Court below erred in paying too much attention to the site of the injury which is an irrelevant factor in the application of Section 324. In the circumstances, we think that the offence falls within Section 323 rather than Section 324 and the High Court and the Court below erred in paying too much attention to the site of the injury which is an irrelevant factor in the application of Section 324. 9. We accordingly alter their conviction from Section 324 to Section 323, IPC. In the circumstances the punishment of two years' rigorous imprisonment in the aggregate becomes inappropriate because Section 323 carries a maximum punishment of one year. We think that of these two accused Sukhnath Singh, who caused the serious injuries to Kalapnath Singh which made him remain unconscious for two days, does not deserve to be treated leniently. We accordingly sentence him to the maximum term under that section, namely, rigorous imprisonment for one year. As regards Shamsher Singh we think his case deserves a slightly more lenient treatment and we sentence him to six months' rigorous imprisonment. With this modification, in respect of the offence against Kalapnath Singh, the appeal of Sukhnath Singh in respect of the offence against Rajnarain Singh is dismissed. The sentence of Shamsher Singh in respect of the offence against Kalapnath and Rajnarain Singh is reduced to six months' rigorous imprisonment. With this modification his appeal is also dismissed. The two sentences shall run concurrently in both cases.