JUDGMENT - R.A. JAHAGIRDAR, J.:---The appellant in this appeal was accused No. 1 in Sessions Case No. 1 of 1976 in which he had been tried along with one Hanumant Bajirao Deshmukh. The accused was charged for an offence punishable under section 301 of the Indian Penal Code and the other accused who was accused No. 2 was charged for an offence punishable under section 307 read with section 109 of the Indian Penal Code. 2. According to the prosecution, one Rajaram Genuji Naikade (who will hereinafter be referred to as 2 "the complainant") was working for sometime as a driller in the construction job at Bhatsai Dam in Shahapur Taluka of Thana district. That work was being carried on by a Company known as Jolly Brothers Pvt. Ltd. Prior to the date of the incident, he had been dismissed from service and, therefore, was not being allowed to enter the labour colony established by the Jolly Brothers Pvt. Ltd. (hereinafter referred as "the Company") for their employees. The incident in which the complainant was injured took place on 6th January, 1972, which was a Thursday. According to the complainant, at about 8.30 or 9.00 he tried to enter the labour colony when at the check-post the accused obstructed him as the complainant was not according to the accused, allowed to enter the area of the labour colony. The complainant swears that he told the accused that he must have writing to that effect, whereupon accused No. 1 and accused No. 2 both gave in writing that they had instructions from the management not to allow the complainant to enter the labour colony. The complainant has given later contradictory statements regarding the where about of this writing. At one place he has stated that he had given it to a friend of his from whom he was not able to collect it; at another stage he has mentioned that it was stolen when he was travelling in the train and he had lodged a complaint about its theft at the Kalyan Railway Police Station. The question whether he had taken such a writing from accused Nos. 1 and 2 is not of much consequence. But, I must proceed on the basis that the complainant was prevented by the accused from entering the labour colony. 3. The question whether he had taken such a writing from accused Nos. 1 and 2 is not of much consequence. But, I must proceed on the basis that the complainant was prevented by the accused from entering the labour colony. 3. It is then the prosecution case that sometime thereafter when the complainant was going in the labour colony near a common water tap, the accused appeared there all of a sudden from the side of a shop and rebuked him for having entered to colony unauthorisedly. The accused had in his hand what has been described as danda by all the witnesses and with that danda the accused is alleged to have given several blows on the different parts of the body of the complainant. Anticipating the prosecution evidence, I may state that this part of the complainants story is hopelessly unbelievable because the medical evidence shows that not more than one or two blows could have been given on his body. Be that as it may, the blow given by the accused on the right leg of the complainant resulted in the fracture of the bone in the leg. Some women who were present at the common water tap, came to the assistance of the complainant by lifting him and placing him on a cot. Within a shortime thereafter, says the complainant the police arrived on the scene and recorded his complaint, which is at Exhibit 26. In this complaint he has disclosed the name of the accused as his assailant and he has also disclosed the weapon which was used for causing injury to him. Thereafter the complainant was taken to different doctors for treatment and ultimately he was treated in the Thana Civil Hospital for the fracture of his leg bone. The police had registered a complaint under section 325 of the Indian Penal Code. But the complainant was dissatisfied with the same and, therefore, he filed a complaint in the Court of the Magistrate charging the accused with the offence punishable under sections 307, 326 and 109 of the Indian Penal Code. In this complaint, besides the present appellant to whom I am making reference as the accused, several other accused were joined, but ultimately the learned trial Magistrate committed the present appellant and Hanumant Bajirao Deshmukh to the courts of Sessions. 4. In this complaint, besides the present appellant to whom I am making reference as the accused, several other accused were joined, but ultimately the learned trial Magistrate committed the present appellant and Hanumant Bajirao Deshmukh to the courts of Sessions. 4. In support of its case, the prosecution examined the complainant and three alleged eye-witnesses who were all ladies. Two doctors who had treated the complainant at different times have also been examined. P.S.I. Kulkarni of Shahapur was examined as defence witness. It may be also mentioned that the prosecution has failed to examine the Investigating Officer on its behalf. 5. Broadly speaking the complainant has given evidence relating to the incident in the manner in which I have outlined the prosecution case above. He has insisted that the accused gave him several blows on all parts of his body and not merely one or two blows on his leg. He has also mentioned that one Shantabai who was at that time near the water tap covered him by falling upon him so that he may be saved from further beating at the hands of the accused. The three eye-witnesses, examined by the prosecution are Shantabai, Jenabai Pathan and Baby Kalidas. They all speak about the assault that was launched by the accused on the complainant. Broadly accepting the prosecution case, the learned Additional Sessions Judge of Thane by his judgment and order dated 30th July, 1976 held the present appellant guilty of the offence punishable under section 325 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-. In default of the payment of fine, rigorous imprisonment for two months was directed. Both the accused were acquitted of the offence punishable under section 307 with which they were charged. It is this order of conviction and sentence that is challenged by accused No. 1 in this appeal supported before me by the learned Advocate Mr. Gogte. 6. Before I deal with the testimony of Rajaram Genuji, the complainant himself, it would be profitable to dispose of the testimonies of the so-called three eye-witness whom I have no difficulty in characterising as unreliable witnesses. Gogte. 6. Before I deal with the testimony of Rajaram Genuji, the complainant himself, it would be profitable to dispose of the testimonies of the so-called three eye-witness whom I have no difficulty in characterising as unreliable witnesses. Shantibai examined as P.W. No. 5 talks about the incident which took place four and half years before the she gave evidence and says that accused No. 1 who had come near the water tap with a danda in his hand, held the shirt of the complainant and gave two or three blows on the back of the complainant with that danda. She thereafter goes to graphically describe that the accused went on raining blows on the different parts of the body of the complainant. Shantabai who was about 50 years old at that time became brave enough to fall upon the complainant and to take the risk of the blows that may be rained upon the complainant by the accused. It is unnecessary to refer in any great details to the testimony of this witness, because her story that several blow were rained upon the complainant is hopelessly inconsistent with the medical evidence which has come on record. It is superfluous to refer to the medical testimony in any great details except to mention that all the three doctors are unanimous on this that the injury that was caused on the leg of the complainant was due to the blow of a hard and blunt substance and that it would not have been by a fall. They are, however, equally unanimous that several blows have not been administered to the complainant as deposed to by Shantabai and the other, two other prosecution witnesses to whom I will now make a reference. 7. Jenabai Pathan examined as P.W. No. 7 is another resident of the labour colony and she says that about 10.00 a.m. she was taking water from the public water tap when there were 7-8 women near the said tap. At this stage I may mention that, according to Shantabai, when the incident took place there were no other persons near the water tap, except herself. On this point there is a direct contradiction between these two witnesses. Jenabai then proceeds to say that accused came there with a danda and gave two blows with the same to the complainant on his right leg. On this point there is a direct contradiction between these two witnesses. Jenabai then proceeds to say that accused came there with a danda and gave two blows with the same to the complainant on his right leg. After the complainant fell down, the accused is alleged to have given 10 or 12 more blows on the right leg again. Then she proceeds to make an attempt to corroborate Shantabai regarding Shantabai giving protection to the complainant. This witness, namely, Jenabai has categorically mentioned that though she was near the scene of the offence. When the police arrived there, she did not mentioned anything about the incident to the police. She of course hastens to add that the police did not ask her anything at that time. She also mentions that police also did not ask Shantabai in her presence. In the cross-examination which has been fairly successful. She has admitted that when she and Shantabai went near their houses, they heard a cry of "Melo Melo". This is sufficient in Mr. Gogtes submission to show that it is only after the assault had taken place that this witness and Shantabai must have arrived on the scene. There is considerable substance in what Mr. Gogte says and after I refer to the evidence of P.W. No. 6 Baby Kalidas. I haver no hesitation in accepting the criticism of Mr. Gogte that all the so-called eye-witnesses examined on behalf of the prosecution are hopelessly unreliable and have been brought only for the purpose of living a story which had been for them moulded and prepared by the complainant-himself. 8. Baby Kalidas P.W. No. 6 was about 24 years old at the time she gave evidence. She was residing in the labour colony and at about 10.00 a.m. when she was busy cooking in her house, she heard the cries which naturally made her to come to the door of her house. According to her, she saw accused beating the complaint near a hotel. Like her the other two eye-witnesses, she also does not fail to mention that the accused gave 10 or 12 more blows to the complainant on his right leg. According to her, she saw accused beating the complaint near a hotel. Like her the other two eye-witnesses, she also does not fail to mention that the accused gave 10 or 12 more blows to the complainant on his right leg. In the cross-examination which again must be said to be successful, she has admitted that she heard the cries of "Melo Melo" when she was busy cooking in the room, and after a little bit of persuasion admitted that she did not see the incident with her own eyes. One sentence on which Mr. Gogte rightly placed some reliance is that according to this witness, Shantabai told the Police Officer about this incident. Shantabai herself protects that she was not interrogated by the police. So also Jenabai that she was not interrogated by the police. It is somewhat unusual that these three ladies who were present when the police arrived at the scene of the offence did not care to mention to the police what they had seen; it is equally strange that the police could not find out a single eye-witness of the incident which took place in the broad day light. Having said all this in favour of the accused, it is still not possible for me to agree with Mr. Gogte when he proceeds to say that the entire prosecution case must be thrown overboard. 9. It is undoubtedly true that the complainant has been able to procure witnesses who were prepared to do his bidding; it is equally true that he has in his own evidence exaggerated the incident of the assault that was committed upon him. His testimony undoubtedly contains several falsehoods. But merely because he has not told the whole truth and nothing but the truth it is impossible to say that there is no truth in his testimony at all. The doctrine of falsys in uno, falsus in omnibus is not applicable to the criminal trial in this country. I must, therefore, proceed to examine whether there is in the testimony of the complainant the basic truth about the identity of the assailant. 10. I have already mentioned that the assault took place in broad day light in the labour colony itself. It is, therefore, impossible to say that the complainant was unable to identify the assailant. I must, therefore, proceed to examine whether there is in the testimony of the complainant the basic truth about the identity of the assailant. 10. I have already mentioned that the assault took place in broad day light in the labour colony itself. It is, therefore, impossible to say that the complainant was unable to identify the assailant. The complainant went to incriminate more persons than were actually involved, but he would not fail to incriminate the person who actually assaulted him in such broad day light. In the statement which was recorded by the police at the earliest opportunity the name of the accused as the assailant and the weapon with which the accused assaulted him have been mentioned with sufficient clarity. Mr. Gogte has been unable to demolish this part of the testimony of the accused which is corroborated by contemporaneous document. With this evidence and despite the fact that the complainant was given to flights of imagination in his deposition, I am satisfied that the present appellant-accused was the assailant who wielded the blow with the danda on the right leg of the complainant which resulted in the fracture attracting the charge under section 325 of the Indian Penal Code. The conviction of the accused of the offence recorded by the learned Sessions Judge, therefore, will have to be upheld. 11. Mr. Gogte then submitted that though the offence under section 325 can be said to be a serious offence in the instant case, the harsh punishment of imprisonment is not called for. He has pointed out that, according to the prosecution itself, the accused obstructed the complainant from entering into the labour colony an hour or so before this incident took place. Admittedly the accused was the watchman employed by the Company from preventing unauthorised persons from entering into the labour colony. If, therefore, the accused saw the complainant inside the labour colony despite the warning given by the accused, it could not be said that he was totally unjustified in wielding the lathi which was in his hand. Unfortunately some force more than what was contemplated was put in the blow and the fracture resulted. Considering the background pointed by the prosecution itself and the circumstances in which this assault took place, it is impossible, says Mr. Gogte to hold that the accused intended to cause a grievous hurt to him. Unfortunately some force more than what was contemplated was put in the blow and the fracture resulted. Considering the background pointed by the prosecution itself and the circumstances in which this assault took place, it is impossible, says Mr. Gogte to hold that the accused intended to cause a grievous hurt to him. Though I am unable to agree with Mr. Gogte that the intention to cause grievous hurt is absent, it may be said in favour of the accused that the assault which he launched on the complainant was not with what is normally regarded as a criminal intention though legally it was so. 12. It has also been brought to my notice by Mr. Gogte that at the time of the trial in 1976 the accused was of about 59 years and today he must be over 60 years. The accused has also apparently retired from service of the Company about this time. Taking all these facts into consideration, Mr. Gogte pleaded that the accused should be admonished or at least be released on a bond under the Probation of Offenders Act. I am unable to agree that this offence should be unpunished altogether. However, after hearing Mr. Chopda, the learned Public Prosecutor, and after taking into consideration the facts and circumstances which have been mentioned by Mr. Gogte above, I think that the ends of justice will be met in the instant case by retaining the sentence of fine only and quashing the sentence of imprisonment. 13. In the result, this appeal is partly allowed. The conviction of the appellant-accused under section 325 of the Indian Penal Code recorded by the learned Additional Sessions Judge of Thane in Sessions Case No. 1 of 1976 is confirmed. The sentence of two years rigorous imprisonment awarded to the accused is set aside. The sentence of fine of Rs. 500/- and the sentence of rigorous imprisonment in default of the payment of fine are, however, retained. The bail bond of the accused shall stand cancelled after the fine is paid. The accused is given time to pay the fine upto 30th of September, 1978. -----