JUDGMENT - R.L. AGGARWAL, J.:---The two appellants in this Criminal Appeal are original accused Nos. 1 and 2. They along with accused Nos. 3 and 4 were charged for offences punishable under section 452 read with section 34 and section 307 read with section 34 of the Indian Penal Code. Accused No. 1 was separately charged for the offence under section 324 of the Indian Penal Code. Accused No. 2 was separately charged for the offences under sections 324 and 326 of the Indian Penal Code. Accused Nos. 3 and 4 were separately charged under section 325 and 323 of the Indian Penal Code respectively. 2. The learned Sessions Judge, Jalgaon by his judgement and order dated 27th June, 1975 convicted accused No. 1 under section 452 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/-, in default to suffer further rigorous imprisonment for one month. Accused No. 1 was further convicted under section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for two months. Accused No. 2 was convicted under section 452 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for one month. He was also convicted under section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for one month. Accused Nos. 3 and 4 were convicted under sections 452 and 324 read with section 34 of the Indian Penal Code and instead of sentencing them at once to any punishment, they were released under section 4(1) of the Probation of Offenders Act, 1958. All the accused were acquitted of the rest of the charges brought against them. Substantive sentences of accused Nos. 1 and 2 was ordered to run concurrently. 3. Accused Nos. 1, 2 and 3 are brothers and accused No. 4 is their distant relation. All of them hail from village Lasure and so do prosecution witnesses. The map (Ex. 5) shows the location of the houses of the accused and the prosecution witnesses. Substantive sentences of accused Nos. 1 and 2 was ordered to run concurrently. 3. Accused Nos. 1, 2 and 3 are brothers and accused No. 4 is their distant relation. All of them hail from village Lasure and so do prosecution witnesses. The map (Ex. 5) shows the location of the houses of the accused and the prosecution witnesses. Most of them are living near to each other and can, therefore, be loosely described as neighbours. 4. The prosecution case reveals that the relations between accused No. 1 and Dashrath (P.W. 3) were strained, on Madhavrao was the Sarpanch of the village and during his absence (P.W. 3), was officiating as a Sarpanch. Accused No. 1 belonged a function and in that connection cement platform had been put up on which the name of Madhavrao, Sarpanch, was inscribed. On 29th March, 1973 (P.W. 3), noticed that the name of Madhavrao was defaced with tar. In this connection (P.W. 3), made an inquiry and learnt that accused No. 1 was responsible for the mischief. A report (Ex. 9) was made by (P.W. 3) to Pimpalgaon Police Station and the Police made inquiries on the basis of that report. This seemed to have annoyed accused No. 1. A few days after the lodging of the report, while (P.W. 3) was sitting on a stone with Ramzan (P.W. 11), in front of the house of Ramzan accused No. 1 came there from the said of the house of (P.W. 3) and started abusing (P.W. 3). Accused No. 1 said, “Bhadvya, why you gave a report against me ? You are witness against me in the two Chapter Casses”. So saying, accused No. 1 held (P.W. 3) by his shirt near the throat. Ramzan intervened and separated them. (P.W. 3) in the circumstances apprehended quarrel. He therefore, got up and went towards his house. At that time, accused No. 1 again threatened (P.W. 3) saying, “Bhadvya, how for you will go ? This night I am going to kill you”. Hearing this (P.W. 3) lost courage and went home quietly. This incident occurred at 6.00 p.m. 5. The further description of the prosecution case can be narrated in the words of (P.W. 3) himself : “I came home. I drew the cot. I sat on it and started thinking as to what further I should take in the matter. Hearing this (P.W. 3) lost courage and went home quietly. This incident occurred at 6.00 p.m. 5. The further description of the prosecution case can be narrated in the words of (P.W. 3) himself : “I came home. I drew the cot. I sat on it and started thinking as to what further I should take in the matter. A thought came in my mind that I should make a report to the Police. I was frightened. While I was thinking, Ananda Dhanaji, Vasant Dhanaji, Devidas Dhanaji and Shivram Ziparu all of a sudden came. They came from the side of the house of Ananda Dhanaji. I saw sticks in the hands of Devidas and Shivram and an axe in the hands of Vasanta and open Jambiya in the hand of Ananda. Immediately, Ananda and Vasanta climbed the Ota. Devidas and Shivram stood near the steps of the Ota. I heard Shivram shouting, “Pull him. Beat him. Kill him. He has put you in the catastrophe.” Ananda raised the hand in which he had a Jambiya. He was about to deal the blow. I leaned forward. Therefore, I received the blow on the back side of my left shoulder. (While giving this reply, the witness took out his shirt and showed the injury). (A long horizontal scar is visible on the left scapular region.) I attempted to grapple and hold Ananda. But Ananda held my right wrist with his left hand. Then I raised my left hand. At that time I received the second blow of the Jamibya on the left shoulder. Accused Vasanta started punishing me down the Ota. Then Vasanta kept his hand on my neck and Ananda pulled me. I was dragged in the Angan. Then Ananda aimed the third blow of the Jambia on my throat. I leaned ahead. I received the blow on the back side of the neck. Immediately Ananda dealt the fourth blow of the Jambiya on me. I received the stroke in my left armpit, In all received six blows of the Jambiya. Ananda sweeped the blow to deal it on my neck, but I shrugged the shoulder to parry the blow. Therefore, I received the blow on the right arm in the struggle. I struggle to save myself.” 6. I received the stroke in my left armpit, In all received six blows of the Jambiya. Ananda sweeped the blow to deal it on my neck, but I shrugged the shoulder to parry the blow. Therefore, I received the blow on the right arm in the struggle. I struggle to save myself.” 6. According to the prosecution, when (P.W. 3) was attacked in his house by the four assailants ( the four accused) (P.W. 3), raised an alarm which attracted his son Shantaram (P.W. 13), and his daughter Hirkani (P.W. 7). Shantaram threw himself on his father (P.W. 3) to save him when accused No. 1 dealt with a blow of Jambiya on the left thigh of Shantaram. Hirkani also received a blow of Jambiya. She was hit on her right middle finger. Waman (P.W. 8), brother of (P.W. 3), and Raghunath (P.W. 10), son-in-law of Waman, also arrived on the scene to rescue (P.W. 3). Accused No. 2 dealt an axe blow on Waman. Accused No. 3 gave a stick blow on Waman. Raghunath received two blows of axe at the hands of accused No. 2. Hearing the hue and cry, Kadu Shankar (P.W. 6), Ashok (P.W. 12), Tukaram (P.W. 9). and Baburao Shahadu and Nana Chindhu among others arrived at the scene. The accused made their escape. (P.W. 3) asked Ashok (P.W. 12), to go to the Police Station to lodge information. At Varkhedi S. T. Stand, Ashok met P.S.I. Kadam (P.W. 14), and told him about the occurrence. P.S.I. Kadam was accompanied by constables and he immediately proceeded to the scene offence and reached there by 7.45 p.m. P.S.I. Kadam went to the house of (P.W. 3). and found him, Shankar, Hirkani, Waman and Raghunath, the injured. He recorded the complaint of (P.W. 3), the first information report (Ex. 10). He forwarded (Ex. 10). with a constable for registering the offence. He drew a panchnama (Ex. 27) and sent the injured persons to the hospital. She P.S.I. also found that accused No. 1 had head injuries and, therefore, sent him to the hospital for treatment. Next morning spot panchnama (Ex. 28) was drawn. Blood-stains were seen on the Ota: but it was not possible to collect the scrappings of dry blood. Blood could not be noticed in the Angan. 7. She P.S.I. also found that accused No. 1 had head injuries and, therefore, sent him to the hospital for treatment. Next morning spot panchnama (Ex. 28) was drawn. Blood-stains were seen on the Ota: but it was not possible to collect the scrappings of dry blood. Blood could not be noticed in the Angan. 7. P.S.I. made a search of the house of accused No. 1 in the presence of the wife of accused No. 1 and found a Jambiya from a cupboard in the northern wall of the house in one of the tins lying in the cupboard. Blood-stains were noticed on the blade of the Jambiya and also a big smudge of blood thereon. The Jambiya (Article No. 1) was sealed in the presence of the panchas. The P.S.I., it seems neglected to forward it to the Scrologist and thus this piece of evidence was lost by the prosecution. It may be stated here and now that this act was a mere omission and no more. On the search of the house of the other No. 2. was arrested at 11.00 a.m. and his blood-stained clothes were seized under panchnama (Exhibit 20). P.S.I. Kadam recorded the statements of the various witnesses and arrested accused No. 1 on 7-4-1973. Neither the Jambiya (Article No. 1) nor the clothes of accused No. 2. or of accused No. 1 were sent to the Chemical Analyser. 8. Dr. Kotwal (P.W. 4), on examination of Dashrath (P.W. 3) noticed five incised wounds of the following description : 1. Incised wound on the left arm upper third portion, 5 1/2"X4". The injury was tapering at the lower end. Deltoid muscle was noticed cut. 2. Incised wound 2"X1"X1/2" just below the outer end of the left clavicle. 3. Incised wound on the occipital region. It was 1/2" and skin deep. 4. Incised wound 2 1/2"X1/2", vertical and on the nape. 5. Incised wound 1/2"X1/4" by skin deep on the right arm and lower third region. According to Dr. Kotwal, injury No. 1 showed that on that portion there were in fact two injuries. Both the injuries almost ran into each other and, therefore, he described it as one injury. Dr. 4. Incised wound 2 1/2"X1/2", vertical and on the nape. 5. Incised wound 1/2"X1/4" by skin deep on the right arm and lower third region. According to Dr. Kotwal, injury No. 1 showed that on that portion there were in fact two injuries. Both the injuries almost ran into each other and, therefore, he described it as one injury. Dr. Kotwal was shown the scar on the person of Dashrath in the Court and on examining the same he confirmed his earlier statement and further stated that in the long scar there was a vertical stitch which indicated that there were two distinct injuries. Deltoid muscle is a major muscle in the body. When it is cut or damaged, the movements of the hands are affected or restricted. Therefore, according to Dr. Kotwal, injury No. 1 was serious. He had put Dashrath on anaesthesia to repair the muscle and for suturing the injury. The remaining five incised wounds were simple in nature. All the six injuries, according to Dr. Kotwal, were, possible by Article No. 1 Jambiya. In this opinion, injury No. 1 considered along with other injuries was sufficient in the ordinary course of nature to cause the death of Dashrath (P.W. 3) had he not stopped the bleeding immediately. (P.W. 3) was an indoor patient from 5th April, 1973 to 29th April, 1973. For about six day he was not in a position to follow the normal routine. Dr. Kotwal also opined that (P.W. 3) must have received not less than three blows in the occurrence. 9. The examination of Hirkanbai (P.W. 7) showed that she had one incised wound on the middle finger of the right hand. The injury was on the middle portion and on the joint of second and third phalanx, the size being 2"x1/4"x1/2". This injury, according to Dr. Kotwal, could have been caused by any hard and sharp object like Article No. 1 and a similar weapon. The injury was simple in nature. 10. The examination of Waman (P.W. 8) showed that he had one incised wound on the left side back, 4" away from the third lumber vertebra of the size of 2"x1/2"x1/2". Dr. Kotwal, on clinical examination, noticed the lower one third region of the humerus fractured. The injury was simple in nature. 10. The examination of Waman (P.W. 8) showed that he had one incised wound on the left side back, 4" away from the third lumber vertebra of the size of 2"x1/2"x1/2". Dr. Kotwal, on clinical examination, noticed the lower one third region of the humerus fractured. The incised wound could have been caused by a hard and sharp object while the fracture by any hard and blunt object including a fall. The fracture could have been caused by a stick blow. If the edge of an axe is sharp, then the incised injury is possible. Waman remained as an indoor patient till 29th April, 1973. On account of the fracture, he was not in a position to follow his normal pursuits. 11. On examining Shantaram (P.W. 13), Dr. Kotwal noticed one incised injury on the lower third of his left thigh, of the size of 3"x1/2". The injury was caused on account of the muscle being exposed, but was of a simple nature and could have been caused by any hard as sharp instrument like the Jambiya shown to him. Shantaram was hospitalised till 13th April, 1973. 12. Dr. Kotwal also examined Raghunath (P.W. 10), and found the following three incised wounds of a simple nature which could have been caused by any hard and sharp instrument like the Jambiya or a sharp edged axe :--- 1. Incised wound on the upper portion of the occipital region. It was 3 1/2"x 3/4". It was gaping and the skul bone was visible. 2. Incised wound on the right side of the neck. It was just behind the right lobe. It was 3"x skin deep. 3. Incised wound on the left palm. It was on the base of the little finger. It was half inch x1/4" x skin deep. Raghunath was discharged from the Hospital on 13th April, 1973. 13. Accused No. 1 was also examined by Dr. Kotwal and the following three contused wounds were noticed : 1. Contused lacerated wound on the top of the head. It was 1/2"x1/2". It was surrounded by abrasions. 2. Contused lacerated wound on the occipital region. It was 1/2"x1/2"x1/2". Haemotoma was also notice. 3. Contused lacerated wound on the left temporal region 1/2"x1/2". The above injuries were simple but could not be termed as minor. Contused lacerated wound on the top of the head. It was 1/2"x1/2". It was surrounded by abrasions. 2. Contused lacerated wound on the occipital region. It was 1/2"x1/2"x1/2". Haemotoma was also notice. 3. Contused lacerated wound on the left temporal region 1/2"x1/2". The above injuries were simple but could not be termed as minor. These injuries were not possible by a pestle because it is a heavy object. Such injuries were not also possible by a stick if forceful blows are dealt. Dr. Kotwal also stated that as regards injury No. 1, if a stick is used for the blow, then abrasions around the contusion are not possible. Injury No. 2 was possible by a stick blow. Accused No. 1 kept under observation in the Hospital for 24 hours and was discharged on 7th April, 1973. Accused No. 1 was also examined by Dr. Chaudhari (P.W. 5), Medical Officer in pimpalgaon Dispensary, on 10th April, 1973 and according to him accused No. 1 took treatment for some head injuries as on out-door patient till 16th April, 1973 and he issued a certificate (Ex. 24). Dr. Chaudhari also noticed swelling on the right ankle joint and left knee of accused No. 1 and these injuries could be caused by a fall on the ground for or by external impact of any hard and rough object and the injuries on the head could be caused by a Adav stick. 14. After completion of the investigation, the accused was charge-sheeted. The defence of accused No. 1 as disclosed in the cross-examination of the prosecution witnesses and as taken up by him in his statement under section 313 of the Code of Criminal Procedure, 1973, is not consistent. When questioned if he wanted to say anything more in his defence, accused No. 1 answered thus :--- “I left my house and was going to the house of my brother Devidas. On the way, I came near the corner of the house of Maharu Kashiram. I saw Dashrath Sula, Waman Dula and Raghunath standing on the road near the corner of the house of Maharu Kashiram. They had sticks in their hands. All of a sudden, Dashrath Dula started beating me with sticks. They abused me. I asked them “why are you abusing?” I could not go to the house of my brother. I had knife with me. They had sticks in their hands. All of a sudden, Dashrath Dula started beating me with sticks. They abused me. I asked them “why are you abusing?” I could not go to the house of my brother. I had knife with me. I took it out and made the movements of my hand to scare those persons. By that time, Shantaram and Hirkan came and intervened. Raghunath states that I caused injuries on his palm. That is false. He attempted to hold my knife. In that process he received the injury on his palm. Hirkanbai attempted to hold my knife and, therefore, she received the injury. The Raghunath went behind me and dealt a blow of a pipistle on my head. Then I fell on the ground. They felt that I died. So, they went home. Vasanta, Devidas and Shivaram were not present when all this happened. In the Gram Panchayat, Dashrath Sula and Madhavrao are in one party. I am only member opposing them. Therefore, we are not pulling on well.” 15. Accused No. 2s defence was that he was in the field and came late. His mother told him that Ananda was lying unconscious. So he went to that place and saw Ananda lying injured on the ground and blood coming out from his injuries. He lifted him and took him home and the blood of Anandas injuries fell on his clothes. He stated that he had no axe and denied that he had beat anybody with the axe. 16. The learned Sessions Judge raised eight issues for determination and on a careful consideration of the oral and documentary evidence, found accused Nos. 1 and 2 and others guilty of the offences mentioned above and sentenced them as indicate above. Being aggrieved by their conviction and sentence, the appellants have come in appeal. 17. Mr. Tipnis, the learned Counsel for the appellants, has taken me through the evidence of the eye-witnesses, who are P.Ws, 3,6,7,8,9,10,12 and 13, for assessment of the eye-witness account of these witnesses. P.W. 3 confirms the prosecution story. He also stated that he saw two or three injuries on the head of accused No. 1. Some person might have dealt a blow on the head of accused No. 1 at the time of the occurrence, but the witness could not say who the assailants were. P.W. 3 confirms the prosecution story. He also stated that he saw two or three injuries on the head of accused No. 1. Some person might have dealt a blow on the head of accused No. 1 at the time of the occurrence, but the witness could not say who the assailants were. The witness also identified Article No. 1 as the very Jambiya with which he was attacked by accused No. 1. He was cross-examined at length but nothing could be elicited from him to shake his credibility or the probability of the prosecution case. Several suggestions were put to the witness and in particular it was suggested that in the beginning accused No. 1 was going towards the house of Devidas accused No. 3 and at that time the witness saw accused No. 1 and the witness then stood on his Ota and started abusing accused No. 1 and then accused No. 1 stood on the road near the corner of the house of accused No. 4 near the gutter. Accused No. 1 asked the witness as to why he was abusing and at that time Waman and Raghunath were sitting on the Ota of the witness. The witness stepped down from the Ota with a stick in his hand and Waman and Raghunath followed him. Waman was armed with a stick and Raghunath with a Musal and then three of them rushed near accused No. 1. The witness denied all these suggestions. It was also suggested to the witness that the witness gave the first blow of the stick on the head of accused No. 1 and that Raghunath dealt a blow with the Musal on the back side of the head of accused No. 1 and than Raghunath threw aside the Musal and attempted to hold accused No. 1 from the back side around the waist. These suggestions were also turned down. It was next suggested to the witness that Waman was drunk and when Raghunath had held accused No. 1 round his waist, then accused No. 1 pushed aside Raghunath, whereupon accused No. 1 took out a knife and dealt blows of the knife on the witness in self-defence. The witness emphatically denied these suggestions. These suggestions were also turned down. It was next suggested to the witness that Waman was drunk and when Raghunath had held accused No. 1 round his waist, then accused No. 1 pushed aside Raghunath, whereupon accused No. 1 took out a knife and dealt blows of the knife on the witness in self-defence. The witness emphatically denied these suggestions. Another suggestion made was that at the time of the occurrence on iron cot was on the road near the house of accused No. 4 and the Waman rushed on accused No. 1, and therefore accused No. 1 pushed Waman when Waman fell on the iron cot and received the injury. It was next suggested that Waman and Raghunath Suggested to attack accused No. 1 while rescuing the witness and therefore, accuse No. 1 dealt blows of knife on Waman and Raghunath. These suggestion were also denied by the witness. He did not agree with the suggestion that accused Nos. 2 and 3 did not at all take part in the beating or that they were not present on the spot. The witness refuted the suggestion that he, Waman and Raghunath were the aggressors and they started the fight and that it was therefore that accused No. 1 got excited and frightened. The witness did not agree that Shantaram and Hirkani received injuries of the sweeping blow of the knife when they intervened to hold and separate the witness. It was next suggested that accused No. 1 became unconscious and later accused No. 2 and his mother came on the spot and removed accused No. 1 to his house .It was also denied by the witness that they mistook accused No. 1 as dead and ran away or that due to darkness that witness could not properly see whether accused No. 1 had a Jambiya of knife. The witness categorically stated that light was clear and he could see weapon clearly. The witness stated that the P.S.I. told him that accused No. 1, had three injuries on the head and therefore had said that accused No. 1 had three injuries on his head. His attention was drawn to the F.I.R. (Exhibit 10) in which the witness had stated that accused No. 1 had received head injuries. The evidence of this witness has been commented upon by Mr. Tipnis. His attention was drawn to the F.I.R. (Exhibit 10) in which the witness had stated that accused No. 1 had received head injuries. The evidence of this witness has been commented upon by Mr. Tipnis. The first ground of attack is that the evidence is unnatural because the witness has identified the Jambiya (Article No. 1) in Court and given a detailed description thereof when no such description is to be found in the first information report. Now, in so far as the question of giving description of the weapon in the F.I.R. is not a document in which the information is expected to give all and singular details. What is expected of an eye-witness and an injured witness like P.W. 3 is that he should give the broad details of the incident, the names of the assailants, the names of other eye-witnesses and the weapons carried by the assailants. Therefore, the mere absence of the detailed description of Jambiya in the F.I.R. is not a ground to disbelieve the witness. According to the witness there was sufficient light to see the weapon it the hand of accused No. 1. The witness had shown presence of mind in the face of the deadly weapon. He had successfully dodged to elude the blows aimed at particular parts of his body. Having regard to his cogent evidence of the manner of assault at the Ota and Angan, it cannot be said that it was unnatural to have ventured to recognise the weapon used against him. This does not undermine the weight of his evidence. 18. The second ground of attack was that the witness was himself injured and yet he has given an account of the injuries received by other. It is highly improbable in this circumstances that he could have noticed the injuries on others. Going back to the narration of the incident, we notice that the incident did not take place at one spot. It commenced at the Ota and ended at the Angan in front of the house of P.Ws. 3,7, and 13. Again all the injured were not attacked at one and the same time. The assaults were spread out. The sequence of the assault brings out that P.W. 3. It commenced at the Ota and ended at the Angan in front of the house of P.Ws. 3,7, and 13. Again all the injured were not attacked at one and the same time. The assaults were spread out. The sequence of the assault brings out that P.W. 3. was attacked at Ota and Angan, P.W. 7 his daughter and P.W. 13 his son received injures when they intervened and thereafter his brother Waman (P.W. 8) and Wamans son-in-law Raghunath (P.W. 12) were the victims. The injures received by the witness were not such as to make him giddy or unconscious. There was on cross-examination of the witness in this context nor is there any material on record to hold that the witness could not have been capable physically or mentally in observing the attack on his dear and near ones who came to his rescue. We have already discussed above his presence of mind in trying to tible-table the blows. There is no inherent improbability in this aspect of the evidence. 19. The other ground of attack was about the enmity between the parties, viz., P.W. 3 and accused No. 1. Now, despite lengthy cross-examination of the witness there is nothing to show that he had falsely implicated the appellants or any one of them. Far from this, he has given satisfactory evidence of the incident which took place in front of the house of Ramzan (P.W. 11). Ramzans evidence is also satisfactory although he did not mention the other cause, viz., the defacing of the name of Madhavrao for which P.W. 3 had lodged a complainant. Ramzan spoke only about Chapter cases. There is no reason to disbelieve Ramzan and to discard the incident. Accused No. 1 has held P.W. 3 by his shirt near the collar and frightened him with his utterances. Enmity is a double edged weapon and it seems probable that accused No. 1 harboured feelings of hostility towards the witness on account of chapter cases and the complaint to the police. In these circumstances it is likely that he wanted to teach the witness a lesson by physical attack with a deadly and come to his house to carry out his earlier threats. 20. The other criticism levelled was that the witnesses are relations and there is a possibility of their involving the accused. In these circumstances it is likely that he wanted to teach the witness a lesson by physical attack with a deadly and come to his house to carry out his earlier threats. 20. The other criticism levelled was that the witnesses are relations and there is a possibility of their involving the accused. In the present case, the prosecution does not entirely depend upon the account of the close relatives of P.W. 3 or of the injured who are related to each other inter se. It is well known that merely because the witnesses are close relations is no ground to discard their evidence wholesale. The correct approach is to closely or critically examine their evidence bearing in mind that on account of blood or near or friendly relationship there might be a tendency to rops in the innocent to oblige the relatives or friends as the cases may be. We have noticed the blood relationship of the witnesses. The son and daughter were inside the house and they come out on hearing the hue and carry of their father. Waman and Raghunath stay together near by and, they came on hearing the alarm. Moreover, all of them received injuries and there is nothing on record to indicate that they have falsely involved the appellants and allowed their real assailants to escape. Therefore, there is no merit in this critism. 21. It was next argued that in the Court the witness stated that he did not see the head injury of accused No. 1 and that the P.S.I. had told him about the head injuries or accused No. 1 and, therefore, he said so whereas in the F.I.R he had mentioned that accused No. 1 had injuries. This contradiction has been duly proved. Mr. Tipnis submitted that the statement in the F.I.R should be given importance. Now, in the first place, the witness stated in para 9 of his evidence that he saw two or three injuries on the head of accused No. 1 and that some person might have dealt a blow on the head of accused No. 1 at the time of the occurrence, but he did know who the assailants were. Now, in the first place, the witness stated in para 9 of his evidence that he saw two or three injuries on the head of accused No. 1 and that some person might have dealt a blow on the head of accused No. 1 at the time of the occurrence, but he did know who the assailants were. At another place he stated that he did not see the head injuries of accused No. 1 and learnt about it from the P.S.I. In the F.I.R. the witness did refer to the injuries on the head of accused No. 1. There is certainly inconsistency in these statements. At the earliest opportunity the witness made a mention of the injuries on accused No. 1 in the F.I.R. and had no hesitation in adhering to that position, in his examination-in-chief. But latter on in the course of cross-examination he took a contrary stand. According to the P.S.I. Kadam (P.W. 14) he went to the house of the witness and found him and others injured and stated recording the complaint There is no material to suggest that P.S.I. Kadam had an opportunity to see accused No. 1 before reaching the house of the witness. Therefore the say of the witness that he learnt from the P.S.I. cannot be believed. This discrepancy, in my opinion, is minor and does not render his evidence unreliable. The account given by the witness is cogent and convincing and I have no hesitation in accepting his testimony. His account is further corroborated by the other injured witness. Their evidence was generally commented upon by Mr. Tipnis on the ground that they are near and close relations; but as pointed out before, that is no ground for rejecting their evidence. I have carefully considered the evidence of P.Ws. 7,8,10 and 13 their account appeals to me as genuine. As regards the participation of accused No. 2, he is sought to be held reasonable for the injuries on Waman (P.W. 8) and Raghunath (P.W. 10). I have carefully considered the evidence of P.Ws. 7,8,10 and 13 their account appeals to me as genuine. As regards the participation of accused No. 2, he is sought to be held reasonable for the injuries on Waman (P.W. 8) and Raghunath (P.W. 10). Accused No. 1 is sought to be implicated for the injuries on Dashrath (P.W. 3), his daughter (P.W. 7) and his son (P.W. 13) The witnesses have involved accused No. 1 and 2 for house - trespass for the purposes of their unlawful act narrated by them .It is to be borne in mind that after the incident Ashok (P.W. 12) was deputed to lodge the information and the injured witnesses were together in the house of P.W. 3. There was sufficient time for them to hold deliberations to involve the accused. But the examination of their evidence show that their eye -witness account does not suffer from any embellishment of coloured version or infirmities so as to raise doubt in may mind. They have referred to the roll of accused Nos. 3 4 as well. Taking into consideration their evidence as a whole. I have no manner of doubt that the account given by them is reliable. They also receive support from the medical evidence. Further corroboration is also available from three other eye-witness, viz., P.Ws. 6,9 and 12. 22. P.W. 6 endorses the prosecution case. He knows both sides, but is not related to P.W. 6. The evidence of P.W. 6 has been commanded upon by Mr. Tipnis; his evidence suggests that the witness arrived before the assault commenced; secondly, it is ridiculous to suggest that this witness would not have intervened; thirdly, the witness refers to the injuries on the head of accused and this shows that there was a free fight in which accused No. 1 received serious injuries and fourthly, there was a tendency on the part of the witness of deny the bleeding injuries on accused No. 1 inasmuch as the witness has stated that the shirt (Article 12) was largely smeared with blood and yet he said that could not be the shirt of accused No. 1. Now this witness knows all the accused and his house is near the house of accused No. 2. While sitting on the Ota of his house, the Angan and Ota of P.W. 3 are with in his sight. Now this witness knows all the accused and his house is near the house of accused No. 2. While sitting on the Ota of his house, the Angan and Ota of P.W. 3 are with in his sight. It appears that the witness saw all the four accused armed and out of curiosity followed them. It is in these circumstances that the witness gives details of the movements of the accused and of that happened from the beginning. He stated what accused No. 4 told accused No. 1 and also referred to the shouting of P.W. 3. There is no reason for the witness to implicate the accused. Nothing has been brought on record in the lengthy cross- examination to discredit him. He has stated in the cross -examination that accused Nos. 1 to 3 are his Bhaubands and his relation are good and he does not visit their houses unless there is some occasion. It was not necessary for the eye-witness to intervene. In the present case as many as four relations of P.W. 3 had intervened and sustained injuries and, therefore the witness might have thought that it was risky to separate the parties. It is also possible that since accused Nos. 1 to 3 were his Bhaubands and accused No. 4 was his neighbour, he did not think it proper to interfere in the matter. It is true that the witness did not mention about accused No. 1 receiving stick blow at the hands of accused Nos. 3 and 4 both in his statement before the police and before the learned Magistrate, but it might be due to his failure to realise the importance of disclosing this feature of the incident. On account to this lapse on his part ,I am not inclined to disbelieve his version . There was no reason for the witness to invent this statement. This fact was disclosed by him in cross-examination on behalf of accused Nos. 1 to 3. There is no warrant to draw on inference from the evidence of this witness that there was a free fight in which accused No. 1 received head injuries as urged by Mr. Tipnis As regards the blood smeared shirt (Article 12) it is to be remembered that this witness acted as a panch to a large number of panchanamas Exhibits 27 28,29,30 and 31. Tipnis As regards the blood smeared shirt (Article 12) it is to be remembered that this witness acted as a panch to a large number of panchanamas Exhibits 27 28,29,30 and 31. Panchanama Exhibit 31 relates to the blood stained clothes Articles 12,15 and 17 of accused No. 1. It seems, the witnesss impression was that the shirt of accused No. 1 was not profusely blood stained and, therefore, he did not agree that Article 12, Which was largely smeared with blood was that of accused No. 1 This was his bona fide stand because he had witnessed the incident and no oblique motive can be attributed to this stand having regard to his entire testimony. 23. I am not impressed by any of the comments offered on behalf of the appellants. In my opinion the whole evidence is satisfactory and reliable. 24. P.W. 9 Tukaram has his cattle-shed adjacent to the house of Waman (P.W. 8) He used to gather cattle therein. He had known the accused by their names for several years. He testified that accused Nos. 1 and 2 climbed on the Ota of (P.W. 3) and that they were armed with Jambiya and axe respectively. The witness heard Shivram saying “Pull that Bhadvya down. Kill him. He has brought a catastrophe on you” At that time P.W. 3 was sitting on the cot. In the meantime, the witness went near the house of P.W. 3 and saw accused No. 1 dealing two blows of Jambiya on (P.W. 3). Then accused Nos. 1 and 2 pulled and dragged (P.W. 3) in the Angan. The witness confirms the assault on (P.W. 3) and other injured witness. Nothing could be elicited in his cross-examination. When questioned about the injuries on accused No. 1, he stated that he was not attentive as to who beat accused No. 1. He was also not attentive as to whether blood came out or not from the head of accused No. 1. He denied the suggestion that P.Ws 3,8, and 10 first attacked accused No. 1 with sticks His evidence was commented upon by Mr. Tipnis on the ground that the witness was intelligent enough to deny the injury on accused No. 1 In this connection, Mr. Tipnis also drew my attention to the question put by the Court to the witness. He denied the suggestion that P.Ws 3,8, and 10 first attacked accused No. 1 with sticks His evidence was commented upon by Mr. Tipnis on the ground that the witness was intelligent enough to deny the injury on accused No. 1 In this connection, Mr. Tipnis also drew my attention to the question put by the Court to the witness. The Court had remarked that one has to pay sometime if he commits the sin of stating a falsehood. After this remark, he was asked if he saw who beat Ananda. The witness answered in the negative. It does strike the mind in appreciating the evidence of this witness that how he could have missed the infliction of the injuries on the head of accused No. 1 when he saw other prosecution witness being assaulted by the side of the accused. The witness has adhered to his story both in the cross-examination on behalf of the accused and when question by the Court specifically on this question after the Court has reminded the witness of the saying that one has to pay sometime if the commits the sin of stating a falsehood. In order to find an answer to this question, one has to search out for some valid reason as to why the witness should withhold this part of the story. Was he trying to shield (P.W. 3.) and the members of his family? This question can be answer only by examining the material on record. There is nothing in the cross-examination of the witness to warrant an inference that the witness was trying to shield the injured. I have therefore no hesitation in accepting his testimony. 25. Ashok (P.W. 12) also confirms the prosecution story. His evidence was sought to be challenged on the ground that he is the son of Madhavrao, who was the Sarpanch at the relevant time and (P.W. 3) was officiating in his place. The witness was near the house of Sukhdeo around 6.30 p.m. and he saw accused No. 1 and others and followed them and stood at a distance of 15 feet from the Ota of (P.W. 3) from where he saw what happened at the Ota. He tried to intervene when accused No. 1 was dealing blows on (P.W. 3) and attempted to separate them, but did not receive any beating. He tried to intervene when accused No. 1 was dealing blows on (P.W. 3) and attempted to separate them, but did not receive any beating. There is no reason to discard the evidence of this witness. His presence is mentioned by other prosecution witnesses and his name is also mentioned in the First Information Report. He was deputed by (P.W. 3) for lodging the information with the police when he met P.S.I. Kadam on the way to whom he gave information about the occurrence. All these factors tend support to his testimony that he was present at the time of the incident. The mere fact that he is the son of Madhavrao is not a valid ground for rejecting his evidence. Moreover in his cross-examination he has stated that his relations with accused No. 1 were good. 26. To sum up, the prosecution evidence of both types, one of injured witnesses and the other non-injured eye-witnesses is convincing and satisfactory and the same establishes the prosecution case. In spite of the fact that the injured eye-witnesses are closely related, their evidence is trustworthy and dependable. They are corroborated by the other set of non-injured eye-witnesses. The medical evidence is also consistent with the oral account. I have therefore no hesitation to accept their evidence entirely. 27. Mr. Tipnis strongly urged that on the facts on the basis of the evidence it is very clear that accused No. 1 was attacked and he received three injuries on a vital part of his body like head and, therefore, this clearly shows that he had a right of private defence and as such the conviction is bad. The circumstances giving rise to the right of private defence, according to Mr. Tipnis, were firstly the injuries found and proved on the head of accused No. 1 by the evidence of Dr. Kotwal and Dr. Chaudhari and secondly, the police did not arrest accused No. 1 till 7th April, 1973. 28. Before examining the plea of the right of private defence of the body of accused No. 1 it is to be borne in mind that such a right arises when an aggressor has stuck or reasonable apprehension of a grievous hurt arises depending on the facts and circumstances of each case. 28. Before examining the plea of the right of private defence of the body of accused No. 1 it is to be borne in mind that such a right arises when an aggressor has stuck or reasonable apprehension of a grievous hurt arises depending on the facts and circumstances of each case. But such a right in no case extends to the inflicting to more harm than it is necessary to inflict for the purpose of defence. Such a right allows to the voluntary causing of death or of any other harms to the assailant if the offence which occasions the exercise of the right by any description mentioned in the six clauses to section 100 I.P.C. The secondary clause says that such assault as may reasonable cause apprehension that grievous hurt will otherwise be the consequence of such and this is the relevant clause for our purposes. The question is whether there is material indicating that P.Ws. 3, 8 and 10 were out to attack accused No. 1 so that a genuine apprehension could arise in his mind to ward off the attack by means of a dangerous weapon like Jambiya or knife used for stabbing or cutting. According to accused No. 1, these three witnesses attacked him. They were together and standing on the road with sticks in their hands. They suddenly attacked him and beat him with sticks. Thus, according to accused No. 1, when he was all alone, the three witnesses were looking for him with predetermination to beat him up. In these circumstances, if all the three blows were aimed at the head of accused No. 1 that would have rendered an attack by him on P.Ws. 3, 8, 10 as well as P.Ws. 7 and 13 rather impossible if regard could be had to the eleven injuries inflicted on the five witnesses. The plea set up seems to be highly improbable. Another angle from which the plea can be examined is that in such circumstances accused No. 1 would have received a thrashing at the hands of (P.Ws 3, 8 and 10), who were in waiting for accused No. 1. As aggressors, they would have the upper hand and there could have been hardly any opportunity for accused No. 1 to take out his knife and use it so freely on five members of (P.Ws. 3), party. As aggressors, they would have the upper hand and there could have been hardly any opportunity for accused No. 1 to take out his knife and use it so freely on five members of (P.Ws. 3), party. According to the medical evidence, the three injuries on the head of accused No. 1 were simple. I am not inclined to accept that accused No. 1 fell unconscious on the spot and was later picked up by accused No. 2 and his mother. He was discharged from the hospital on the next day and received treatment as an out door patient for a few days. The injury No. 1 on (P.W. 3), was serious, and (P.W. 3) had on fracture. Both of them remained in hospital for 23-24 days. (P.W. 10) was hospitalised for over a week. The story of swinging the knife to scare his assailants and P.Ws. 7 and 13, who came to intervene is flimsy. The circumstances narrated in the statement under section 313 Cri.P.C. are also materially different from those on which the witnesses were cross-examined to discredit them or falsify their account. P.W. 3, according to accused No. 1, was sitting on his cot and seeing accused No. 1 he had started abusing accused No. 1 and accused No. 1 questioned him about the abuse. It was also suggested that P.W. 8, Waman fell on the iron cot in front of the house of accused No. 4 and thereby suggesting the injuries were not caused to him by accused No. 1 or any other accused and that Waman was injured as a result of the fall on the cot. In my opinion, the story of the exercise of right of private defence of body, is devoid of any merit and truth. Mr. Damle, the learned Public Prosecutor appearing for the State, urged that the story is utterly untenable and the question of accused No. 1 inflicting more harm than was necessary for the purpose of defence has to be weighed. Mr. Damle, the learned Public Prosecutor appearing for the State, urged that the story is utterly untenable and the question of accused No. 1 inflicting more harm than was necessary for the purpose of defence has to be weighed. There is merit in his submission, but, in my opinion, these are no circumstances giving rise to a genuine and reasonable apprehension to accused No. 1 that he was placed in circumstances and fear in which it could be said that he was anticipating grievous hurt and as such there is no question of considering the point of his exceeding his right of private defence by causing more harm than the circumstances permitted. 29. In my judgment, the prosecution succeeds in establishing the charges against accused No. 1 and also against accused No. 2 to the hilt and, therefore, the conviction of each of them must be upheld. 30. On the question of sentence, Mr. Tipnis urged that accused No. 2 is a young boy shown to be aged 21, though there is no proof. He submitted that both the accused be granted benefit of Probation of Offenders Act. There was rivalry between the parties and accused No. 1 received three injuries which fact had been suppressed by the prosecution witnesses. Now, in order to bring the case under section 6 of the Probation of Offenders Act, the proof of age must be positive, authoritative and beyond doubt. This is not the case here. In my judgment, the benefit of this Act should not be handed out in cases of voluntarily causing hurt by dangerous weapons and means nor for house trespass where the accused enter the place after having made preparation for causing hurt or for assaulting the dweller as in the present case. Having regard to the incident in front of Ramzans house, accused No. 1 is a bully (tyrant) and could have driven P.W. 3, into the grave if the bleeding of injury No. 1 had not controlled in time as pointed by Dr. Kotwal. Releasing an offender in such type of cause will weaken the hands of the law and order machinery. I am not inclined to give the benefit of the Probation of Offenders Act to accused Nos. 1 and 2 having regard to the nature of the offence and the circumstances of the present case. They must receive the sentence provided under the Penal Code. I am not inclined to give the benefit of the Probation of Offenders Act to accused Nos. 1 and 2 having regard to the nature of the offence and the circumstances of the present case. They must receive the sentence provided under the Penal Code. 31. Mr. Tipnis next urged that the sentence awarded is excessive and that the same should be reduced in the case of each of the two accused. Now, fixing quantum of sentence is often a difficult and complex question. The appellate Court should be slow to interfere with the discretion exercised by the trial Court in fixing the quantum of sentence. Sentence should neither be too harsh nor too lenient. I have persuaded myself to reduce the sentence. As regards accused No. 1, his substantive sentence for the offence under section 452 I.P.C. is reduced from one year to nine months and the sentence of fine is maintained. Accused No. 1s, substantive sentence for the offence under section 324 I.P.C. is reduced from two years to 18 months and the sentence of fine is maintained. 32. As regards accused No. 2, his substantive sentence for the offence under section 452 I.P.C. is reduced from one year to nine months and the sentence of fine is maintained. His substantive sentence under section 324 I.P.C. is reduced from one year to nine months and the sentence of fine is maintained. The substantive sentences of both the accused shall run concurrently. 33. Accordingly, the appeal is partly allowed and the conviction of the appellants are confirmed and their sentences are reduced in the manner indicated above. 34. Both the accused to surrender to their bail forthwith. -----