JUDGMENT - V.S. KOTWAL, J.:---The two petitioners, who are original accused Nos. 1 and 2, were tried for offences under sections 326 and 342 read with section 34 of the Indian Penal Code in Criminal Case No. 4 of 1977 in the Court of the Judicial Magistrate, first class, Ambad, for having assaulted the complainant who is the son and brother of the said two petitioners respectively by means of axe and caused grievous injuries. The wife and the mother of the 1st and 2nd petitioner respectively by name Sonabai was also initially impleaded as accused No. 3. 2. The complainant, who is the son of the 1st petitioner, stays separate but in the same premises at the village Awa in Ambad Taluka in the District of Aurangabad and it appears that he was claiming partition and his separate share therein which perhaps was not acceded to by the father. 3. It is alleged that on 20th November, 1976 at about 6.30 or 7.00 a.m., three accused persons entered the room where the complainant was residing, which is adjacent to the house of the accused persons, bloted door from inside and assaulted the complainant. The two petitioners were armed with two axes while the mother Sonabai had a stone in her hand. The prosecution case further is that while the 1st petitioner raised the axe, it was the 2nd petitioner who at that stage inflicted two axe blows on the person of the complainant, one having been launched on the left hand and the other on the right foot. It is thereafter that the 1st petitioner hit the axe on the left foot of the complainant causing severe injury which immediately resulted in the severance of the flour fingers of the right foot. The mother Sonabai is alleged to have hit the complainant on his head by means of a stone that was in her hand. It is also alleged that some people had collected outside the house on hearing the commotion from inside, but nobody had come to rescue as the door was closed. After sometime the complainants injuries were bandaged by the two petitioners themselves and it is alleged that both these petitioners along with one another person carried the complainant to the Medical Officer at Jalna. 4. At Jalna dispensary, the complainant was treated by Medical Officer, Dr. After sometime the complainants injuries were bandaged by the two petitioners themselves and it is alleged that both these petitioners along with one another person carried the complainant to the Medical Officer at Jalna. 4. At Jalna dispensary, the complainant was treated by Medical Officer, Dr. Miss Kaisar Alikhan, who noticed five injuries sustained by the complainant out of which two were incised and two were contused laterated and the age of the injuries was described as being within 24 hours. She also found that the said two injuries were caused by sharp cutting instrument while the contused wounds were caused by hard and blunt object. It is the prosecution case that the said Medical Officer reported the matter immediately to the police attached to Jalna Police Station and in pursuance thereof, the Head Constable who visited the dispensary recorded the statement of the complainant wherein he in clear terms mentioned that he sustained the injuries on account of a fall while he had climbed the tree to cut the branches and in that process the axe accidentally fell on his leg causing the said injuries. The Medical Officer appears to have advised the accused persons to transfer the complainant to Aurangabad Hospital and accordingly the petitioners themselves brought the complainant on the same day to Aurangabad Hospital, where he was detained as an indoor patent for about 25 days. 5. It is further the allegation of the prosecution that on the 25th November, 1976 the complainant sent an application to Ambad Police Station where for the first time he made out a case about the assault at the hands of the three accused persons. The police at Ambad, though having been seized of the matter, did not very swiftly but had started investigation of the matter two days thereafter. It is alleged that the 1st petitioner produced an axe as also some pieces of flesh indicating that those were the cut fingers, but were in a highly decomposed condition. It may be mentioned that on the 20th of November that is, on the date of the incident itself, while the complainant was removed to Jalna dispensary, Police Patil Bhaurao sent his own report to the Police Station at Ambad and the said report is at Exh. 15, but the Police also did not appear to have done anything on the basis of that report immediately. 15, but the Police also did not appear to have done anything on the basis of that report immediately. The police thereafter commenced the investigation, recorded various panchanama and also examined some witnesses and ultimately charge-sheeted the petitioners as well as Sonabai in the Court of Judicial Magistrate, First Class Ambad, for the said offences. 6. In the trial Court, all the three accused persons denied their complicity in the offence in any manner. They further contended that the version given by the complainant before the Jalna police was the correct and truthful one and the injuries were sustained by him in the manner as described in that statement and that he has falsely given the application on the 25th of November, 1976 involving the parents and the brother. The alleged discovery of the axe and the cutfingers was also denied by the accused persons. As regards the Police patil and one witness Tajrao, it was contended that they were inclined against the accused persons. 7. The learned trial Magistrate accepted the prosecution evidence and recorded a finding that accused Nos. 1 and 2, who are the present petitioners, assaulted the complainant by means of axes causing grievous injuries as described in the Medical Certificate. He also recorded a finding that the accused persons wrongfully confined the complainant. On these findings, he convicted the present two petitioners for offences under sections 326 and 342 I.P.C. and sentenced each of them to suffer R.I. for three months and a fine of Rs. 25/- in default further R.I. for seven days, on each of the two counts, the substantive sentences being made on run concurrently. The original accused No. 3 Sonabai was acquitted on both the charges. 8. The convicted accused persons then took the matter in the Sessions Court at Aurangabad by way of appeal, being Criminal Appeal No. 207 of 1977, which was heard by the learned Additional Sessions Judge, Aurangabad, who by his order dated 3rd of May, 1978, dismissed the appeal and confirmed the order of conviction and sentence except with the modification that in so far as accused No. 2 was concerned, his conviction under section 326 I.P.C. was converted to one under section 326 read with section 34 of the Indian Penal Code. It is this order that is being impugned before me in this revisional application by both the petitioners. 9. It is this order that is being impugned before me in this revisional application by both the petitioners. 9. Shri Joshi, the learned Counsel for the petitioners, argued that both the courts below have not taken into account several material features and infirmities in the prosecution case and if those had been considered, then the findings would have been certainly different. He has also contended that the process of appreciation adopted by the courts below is thoroughly unjustified and not warranted by law and is, therefore, improper, illegal and incorrect. On that submission, he took me through the judgments of both the courts below and, in particular, the judgment of the lower Appellate Court. I have also found that there has been much substance in the submission made by the learned Counsel as I found from the judgments that both the courts below have unfortunately ignored several material aspects and, therefore, notwithstanding that there are limitations on this Court in the revisional jurisdiction, I was persuaded to go into some part of the record and the evidence which was necessary in the interest of justice. 10. The prosecution have examined several witnesses out of whom three are important, viz. the complainant Raosaheb, who was examined as P.W. 6, and the alleged eye-witnesses Bhaurao Police Patil (P.W. 1) and Tajrao (P.W. 2). The Medical Officer at Jalna, Miss Kaisar is examined as P.W. 4, and the Medical certificate is at Exh. 25. The Medical Officer at Aurangabad is one Dr. Bhise, who is examined as P.W. 5, and has tendered his certificate at Exh. 27. Then we have the evidence of panch witness Shaikh Mahomed Dagdu (P.W. 3), as regards the alleged discovery of the axe, pieces of flesh and the stone alleged to have been discovered by accused No. 1. The last witness in Gulam Mehboob Mahomed Isa (P.W. 7), who was the Police Constable attached to Ambad Police Station and he was the investigating officer in this case. 11. I have already indicated the prosecution case as such. To establish the said case, the prosecution mainly rely on the testimony of the complainant Raosaheb. The other two alleged eye-witnesses have actually not seen the incident inasmuch as, on their own admission, the door of the house was closed throughout. 11. I have already indicated the prosecution case as such. To establish the said case, the prosecution mainly rely on the testimony of the complainant Raosaheb. The other two alleged eye-witnesses have actually not seen the incident inasmuch as, on their own admission, the door of the house was closed throughout. It was sought to be suggested on behalf of the State that it may be that in spite of the said fact they might have been able to witness the incident, may be by peeping thought the windows. However, apart from the fact that there is no evidence in that behalf, there is a clear admission of both these witnesses their evidence to the effect that they have not seen any part of the incident at all. I will deal with the evidence of these two eye-witnesses a little latter. 12. Referring to the evidence of the complainant, I find from the circumstances that it is rather unsafe to accept the said sole testimony in view of certain infirmities annexed to his evidence. In the first instance, there is really no motive for the father to assault the son as also the brother to join hands with the father. Even the mother has not been spared. It was faintly contended by Raosaheb that the accused persons did not approve of the idea of his asking his share in the property and, therefore, with that object they assaulted the complainant. For this purpose, there is absolutely no evidence. On the contrary, it has been suggested to the witness that the partition was effected about 3 or 4 years back and that since then the complainant has been staying separate. The complainant then wants us to believe that the old mother hit a stone on his head. We find that even in the application, Exh. 29, which he claims to have made to the Ambad Police on the 25th of November, this fact is not mentioned and in spite of this, he has referred to this aspect in his evidence at the trial. 13. Apart from the improbable feature of the mother lifting a stone and hitting her son and apart from this lapse with reference to the complaint to the police, the medical evidence does not support the complainant on that point. 13. Apart from the improbable feature of the mother lifting a stone and hitting her son and apart from this lapse with reference to the complaint to the police, the medical evidence does not support the complainant on that point. No such injury was noticed by the Medical Officer when the complainant was examined at Jalna or was further examined at Aurangabad. Therefore, on a substantial part of the case, the complainant is not only not support his evidence is indicative of the fact that he had no record for truth. This necessarily will have some impact on the case as against the other accused persons. 14. Further, according to the complainant, accused Nos. 1 and 2, that is the present petitioners, were armed with axes and it was the 1st accused who first raised the axe in order to hit him when accused No. 2 inflicted two axe below one on the left hand and one on the right foot and it is thereafter that accused No. 2 inflicted one below with the axe which landed on the left foot resulting into severance of four fingers partially. Significantly the complainant is very specific in his evidence as well as in the application that except these three strokes and the fourth below by means of the stone on the head, there was no further assault. If we peruse the medical evidence, we find that about five injuries were noticed by the Medical Officer. Therefore, in the account given by the complainant, the additional two injuries are not sought to be explained at all. Further, it is very interesting to note that only two out of the five are incised wounds which could have been caused by a weapon like an axe while three are, according to the medical evidence, such which could have been caused by means of hard and blunt object. The complainant all along has deposed that the axe was used from the sharp edge and he has nowhere stated that it was again used by the blunt end. As i have already pointed out, only three blows are referred to, meaning thereby that two other injuries are not explained. The complainant all along has deposed that the axe was used from the sharp edge and he has nowhere stated that it was again used by the blunt end. As i have already pointed out, only three blows are referred to, meaning thereby that two other injuries are not explained. This apart, it is very difficult to accept that in the assault as claimed by the complainant, three contused injuries could have been caused by means of hard and blunt object when admittedly no hard and blunt object was utilised by any of the accused persons. 15. The learned Public Prosecutor, Shri Barday, faintly argued that it could be that the contused injuries were caused on account of a fall. However, there is a serious difficulty in accepting that submission, because the entire assault took place while the complainant was in the room along with the assailants. Therefore, even assuming that he fell on the ground after receiving blows while he was standing, looking to the height and the momentum that he gets, it is very difficult to believe that the contused wounds could have been caused if he had just fallen on the ground in the room. Therefore, in my opinion, not only the non-explanation of the said injuries but not fitting of those injuries in the account of the prosecution case is a strong circumstances in favour of the defence. It is also significant to note that immediately when the complainant was taken to Jalna dispensary and when the Medical Officer had apprised the police in response to which the Police Head Constable arrived and recorded complainants statement in, the dispensary, in the said statement entirely differently version which fits in with the defence suggested by the accused was given by the complainant. The complainant has stated that he sustained a fall from a tree while he was cutting the branches and the axe, which was in his possession for the purpose of cutting the branches, accidentally fell on the leg or the foot which caused the said injuries. Now, this statement is the earliest in point of time and, therefore, has its own importance. It is true that it was sought to be explained on the basis that it was a product of threats administered by both the accused persons. Now, this statement is the earliest in point of time and, therefore, has its own importance. It is true that it was sought to be explained on the basis that it was a product of threats administered by both the accused persons. I am not impressed by that submission as there are no indications that any threats were actually administered or could have been administered by the accused persons. It may be that the complainant, who was in agonies, was in the company of the two accused persons, but the evidence itself indicates that one more person was also present when he had gone to Jalna and the said third person has not been examined at all. 16. The further conduct of the complainant has its own implications. It is to be noted that when the complainant was transferred to Aurangabad Hospital on the same day, i.e. on 20th itself, and though he had a desire to make a complaint against the accused persons, he waited till 25th on which day for the first time he made an application sending it to Ambad Police Station immediately as his complaint against the accused persons. Therefore, the said second statement, which is made after a lapse of five days, is according to me not of much assistance. The said delay has not been explained by the prosecution at all and no circumstances have been brought on record to indicate that some features beyond the control of the complainant prevented him or deterred him from lodging his report prior to 25th November, 1976. 17. This is undoubtedly a case of a single witness. It is true that there is no rule which prevents a Court from accepting the testimony of a single witness. However, prudence requires that normally it should be acceptable on merits and at least should be corroborated to some extent. As I have already pointed out, the story adopted by the complainant is itself improbable, it is wholly falsified by the medical evidence and also the earliest information which is of the authorship of the complainant completely falsified his case. 18. Corroborative support is sought to be derived by the prosecution from the evidence of P.W. 1 and P.W. 2, that is Bhaurao Police Patil, and Tajrao and reliance is also placed on the report of the Police Patil Exh. 18. Corroborative support is sought to be derived by the prosecution from the evidence of P.W. 1 and P.W. 2, that is Bhaurao Police Patil, and Tajrao and reliance is also placed on the report of the Police Patil Exh. 15, which was immediately made on the same day to Ambad Police Station. I have already indicated above that initially the Police Patils evidence gave an impression that he had actually witnessed the incident, but later on he had to admit that he had not seen the incident at all. As regards the scribing of the report, Exh. 15, he has clearly admitted in his cross-examination that he incorporated the recitals therein only as per what the persons who had collected there were saying subsequently. In other words, the recitals in the said application are not of his personal knowledge nor are they proved to have been of anybodys personal knowledge. It is not as if that the passers-by or the persons who were present at the scene of offence had immediately disclosed something to the Police Patil. On the contrary, the evidence indicates that the said application was scribed much later after the entire incident was over and that too when he had gone to his house. In my opinion, therefore, the recitals in the said application are not of much substance or importance as sought to be made out by the prosecution. 19. The evidence of Tajrao as well as that of the Police Patil indicate that it is doubtful whether they could have really been present on the spot. It is nowhere stated by both the witnesses as to where there residential houses are situate. Their conduct at the time of the incident and subsequent thereto is also significant. As a responsible Police Patil as also witness Tajrao, both of whom should have at least made some attempt to see as to what was the matter, and if possible they should have tried to intervene in the incident. On the contrary, their evidence, through which I have carefully gone, indicate that they were only passive on-lookers. None of them even bothered to knock on the door so as to caution the people inside that several people have collected outside. 20. On the contrary, their evidence, through which I have carefully gone, indicate that they were only passive on-lookers. None of them even bothered to knock on the door so as to caution the people inside that several people have collected outside. 20. Tajraos evidence is still more interesting when he admits that after a few minutes he left the spot and went to his house and thereafter did not bother to see what was the matter nor did he bother to enquire with the complainant or the accused persons, despite the fact that he had seen that the complainant was being removed in a bullock cart. The same criticism would apply to the evidence of the Police Patil. 21. In my opinion, the said conduct is indicative of the fact that they may not have witnessed the incident. It is not as if that the said report, Exh. 15, was made by the Police Patil immediately; but it actually reached the Police Station at about 1.30 p.m. No details are also mentioned in the said application, and as I have pointed out it is problematic as to how the recitals in the said application came to be incorporated. Witness Tajrao obviously appears to be a chance witness as he says that when he had gone to fetch water he happened to see the commotion. In my opinion, the witness appears to have created a situation artificially to make his presence natural. 22. It is also interesting to note that the Police Patil may have some grudge against the accused persons. The complainants first wife by name Suman is the sister of the wife of Police Patils brother. It is true that further cross-examination indicates that Suman was deserted by the complainant who married a second wife and perhaps she also might have been deserted as is indicated in the evidence. It is, therefore, true that this circumstances would not be helpful to hold that the Police Patil had a grudge against the accused persons or had an interest in the complainant and prima facie it may appear that the Police Patil perhaps had some grievance against the complainant for deserting Suman who is his relation. It is, therefore, true that this circumstances would not be helpful to hold that the Police Patil had a grudge against the accused persons or had an interest in the complainant and prima facie it may appear that the Police Patil perhaps had some grievance against the complainant for deserting Suman who is his relation. But the further cross-examination makes the picture very clear, in that it has been admitted by Raosaheb, the complainant himself, that it was accused No. 1 who insisted that the complainant should desert Suman and should marry a second wife. It is, therefore, this statement which justified the defence suggestion that on account of this feature the Police Patil was harbouring a grudge against accused No. 1 for disturbing material relation of one of his relations, viz. Suman. The police also do not appear to have recorded statements of these witnesses immediately. Under the circumstances, I am not inclimbed to accept the testimony of the said three witnesses as proving guilt of the accused beyond reasonable doubt. 23. The next price of evidence consists of the alleged discovery of the axe, a stone and pieces of flesh at the hands of accused No. 1. For that purpose the prosecution relies on the evidence of Shaikh Mahomed (P.W. 3) and the panchanama, Exh. 21. In the first instance, so far as axe and stone are concerned, no blood stains are detected. The pieces of flesh, which are claimed to be part of the fingers which were out and severed in the assault, were in a highly decomposed condition. This apart, the evidence of the panch witness in that behalf does not inspire sufficient decree of confidence. He has admitted in his cross-examination that when he was called at the house of the 1st accused, some persons were present there and that the police told him that a panchanama of axe, fingers and stone is to be drawn and that he was to act as a panch. He stated that at first he refused to act as a panch, and when he was assured by the police that he will not be harassed, he agreed. He has further admitted in cross-examination that he merely signed the panchanama and went home without actually seeing the axe or any article. He stated that at first he refused to act as a panch, and when he was assured by the police that he will not be harassed, he agreed. He has further admitted in cross-examination that he merely signed the panchanama and went home without actually seeing the axe or any article. He also felt satisfied on the assurance of the police that no one would harass him for signing a panchanama. He has further clearly admitted that it is of the police without realising anything as to what it related to. The axe is alleged to have been found in the house which was admittedly inhabited by persons in addition to accused No. 1. It was lying in one corner in a room and no blood stains were detected on the blade or the handle. 24. Accused No. 2 is alleged to have discovered other axe from his house on the same day, that on 8th December, 1976, under the panchanama, Exh. 20. I find that both the panchanama are more or less on the same lines and the recitals are also more or less identical especially the recitals in the memorandum which contains the statement of both the accused persons. There is, therefore, reason to inter that both the memorandum and panchanamas might have been mechanically prepared or otherwise at least in the memorandum as also substantially in the panchnama the wording would not have been identical. I am, therefore, not inclined to attach much importance to these discoveries as such. 25. So far as the stone is concerned, it is now established that it was not utilised in the incident and therefore, loses all its significance. 26. The courts below have not considered many of these infirmities as discussed above and some aspects have been decided in favour of the prosecution more on conjectures rather than on evidence. Thus, for instance, there is no details discussion as to why the lower Appellate Court was inclined to discard the earliest statement of the complainant made before Jalna police and the same having been brushed aside on only one premise that the Court was inclined to believe the explanation of the complainant that it was a product of threat. Thus, for instance, there is no details discussion as to why the lower Appellate Court was inclined to discard the earliest statement of the complainant made before Jalna police and the same having been brushed aside on only one premise that the Court was inclined to believe the explanation of the complainant that it was a product of threat. As regards the injuries, the lower appellate Court has observed : "It is true that only 2 injuries were probable by sharp weapon, while the remaining three were probable by blunt weapon. However, on that account it cannot be said that the version of Raosaheb should be disbelieved. The probability that certain blows of axe were given by the blunt side cannot be ruled out. In brief, the medical evidence of injuries a lends support to the evidence of Raosaheb P.W. 6." 27. I am afraid, the said observations are absolutely untenable in view of the clear evidence on record and it was not proper to indulge in conjecture that in all probability the blunt side of the axe might have been used which resulted in the infliction of three additional injuries, for the reasons which I have already stated. 28. As regards the question as to where the two eye-witnesses were residing, the lower Appellate Court has observed : "If is, however, apparent that village Awa is a small village. Considering that fact, it is reasonable to hold that both the said witnesses must be residing in the vicinity of the house of the accused and Raosaheb. It is, therefore, believable that they had heard the commotion and had reached in front of the house of Raosheb." This also entirely rests on conjecture with no iota of evidence. As regards the suggested enmity to the witnesses, the lower Appellate Court has observed : "The accused then took no efforts to lead evidence in an attempt to prove the suggestions of enmity." 29. I am afraid such approach is thoroughly unwarranted in a criminal trial. This apart, the cross-examination of witness Tajrao as also that of Raosahab would indicate that the Police Patil at least had a grudge against accused No. 1 which I have referred to above have not been considered at all. The unnatural conduct and improbable feature in the account given by Tajrao and the Police Patil has also not been considered by the courts below. The unnatural conduct and improbable feature in the account given by Tajrao and the Police Patil has also not been considered by the courts below. The medical evidence is also not considered in its proper perspective. 30. I need not go into the other aspects of the judgments below, as I have already indicated that non-consideration of several aspects have necessitated me to interfere even in this revisional jurisdiction. 31. Lastly, it is to be considered that the defence adopted by both the accused persons is quite probable. I have taken it at the end inasmuch as, in my opinion, the proper approach would be to consider the prosecution case on its own merits and I have already held that on that premise no offence has been made against the petitioners beyond reasonable doubt. However, incidentally I am also considering the defence of the accused which have been set out earlier. That defence, in my opinion, renders itself quite probable and at least in contrast to the prosecution case. The three contused wounds could have been caused by means of a fall on the ground from a high if the complainant had earlier climbed a tree or could have been on account of his coming into contact with force against some log of wood that might be lying anywhere. It is also not unreasonable or absolutely impossible to accept that the injuries on the leg or the foot might have been caused accidentally in the sense that in the process of cutting the branches of the tree the axe landed on that part. The courts below have not given a serious consideration to this aspect except by saying that these injuries are not possible in that process. Now, it is true that no questions have been put in that behalf to the Medical Offical. However, from the probability point of view the said defence cannot be said to be completely ruled out, particularly in view of the fact that this defence was disclosed by the complainant himself at the earlier possible opportunity before the Jalna police. It is also interesting to note that most of the injuries are on the left side which, in my opinion, is also indicative of the fact that a person might have sustained a fall and in that process he might have fallen on one side of the body. It is also interesting to note that most of the injuries are on the left side which, in my opinion, is also indicative of the fact that a person might have sustained a fall and in that process he might have fallen on one side of the body. As against the injuries having been sustained in an assault, in that behalf the locations could not have been restricted to one side and the injuries could have been generalised. The conduct of the petitioners in taking the complainant to Jalna and Aurangabad dispensary has its own significance. However, on the evidence I have already held that the prosecution have not established the offence beyond reasonable doubt and, therefore, it is not necessary to go into all these details. 32. I may add one aspect which may not be quite relevant so far as my findings are concerned. It must be said that the investigation in this case has not been quite proper, in that the police have not swiftly taken charge of the matter and commenced investigation. The offence appears to have been registered as late as on the 29th of November, 1976 and the statements were recorded thereafter. However, as I have recorded a finding against the prosecution on other points, I need not refer to all these aspects. As regards the statement made by the complainant before Jalna police, it may be observed that though it is true that the said original statement has not been produced in Court, in spite of the request made by the defence in their application, Exh. 29, still that will not make much of difference mainly because the complainant has admitted on oath that he did make such a statement and the same has been accepted by both the courts below. 33. In the result, the revision petition must succeed. The rule is made absolute, the order of conviction and sentence imposed by the trial Court and confirmed by the lower Appellate Court is hereby set aside and both the petitioners-accused are acquitted of the charge levelled against them. Fine, if paid, to be refunded to them. Their bail-bonds stand cancelled. -----