Judgment V.Mishra, J. 1. This is an appeal against acquittal arising out of a complaint case (No. 119 of 1968-Tr. No. 295/70) which has been tried by Shri S.K. Sinha, Munsif - Magistrate, First Class, Jamui. 2. The appellant was the complainant. Briefly stated the case is that he had sold onion seedlings worth Rs. 11/- to Bhikhan Dhobi, the price of which had not been paid to him. On 28-2-1968, at about 7-30 A. M , when the complainant Sanichar Mahton was returning after answering the call of nature, he found the accused respondents Bhikhan Dhobi and Kishun Dhobi going to their fields. Sanichar demanded from Bhikhan the sum of Rs. 11/-. Bhikhan felt offended at the demand made on that occasion when he was on way to field and there was some altercation between them, in course of which Bhikhan inflicted a lathi blow on his right thigh and Kishun gave him another lathi blow on his left side. Accused Buniyad and Dalip also reached the place of occurrence in support of Bhikhan and Kishun and they also assaulted Sanichar with lathis. The occurrence was seen by some of the people who were near about in the fields and also came on hearing hulla. The accused persons, however, ran away from there. Sanichar was brought in injured condition to Jamui Sub-divisional hospital. Information was sent to the police from the hospital. The police came and recorded the fardbeyan, but did not institute any case as the injuries were all simple and the offence was non-cognizable. On the 29th February, 1968 itself the complainant sent a complaint to the Sub-divisional Magistrate, Jamui. 3. In the hospital Sanichar was examined by Dr. D.P.S. Mauar (P.W. 8). On his person he found the following injuries: (i) Abrasion 1/4" X 1/4" on tips of right little finger. (ii) One bruise 8" X 2" horizontal across middle of left side of back. (iii) One bruise 6" X 1" oblique in the lower aspect of right side of back. (iv) One swelling 2" X 1" on the right scapular region on its upper part. (v) One abrasion 1/2" X 1/4" with swelling 2" X 1" around it on outer aspect of lower third of left forehead. (vi) One abrasion 1" X 1/4" with swelling 2" X 1" around it on outer aspect of lower third of right thigh. Out of these injury Nos. (v) One abrasion 1/2" X 1/4" with swelling 2" X 1" around it on outer aspect of lower third of left forehead. (vi) One abrasion 1" X 1/4" with swelling 2" X 1" around it on outer aspect of lower third of right thigh. Out of these injury Nos. (i), (iv)(v) and (vi) were found to be simple, but the opinion about injury Nos. (ii) and (iii) was reserved. Sanichar had been admitted in the hospital for the treatment of these injuries and on 6-3-1968 he was referred to Monghyr Sadar hospital for X-ray examination. He remained at Monghyr Sadar hospital from 7-3-1968 to 19-3-1968 and in between this period he was twice X-rayed. It was found that injury No. (ii) was a fracture of the 7th rib and as such this was a grievous injury. Injury No. (iii) was, however, found to be simple. 3(a) When Sanichar was sent back from Monghyr hospital, he was again admitted in Jamui Sub-divisional hospital where he was treated for a few days. It was on 26-3-1968 that he was examined on solemn affirmation in support of the complaint which he had filed on 29-2-1968. Cognizance was taken and the case was thereafter tried in course of which accused Kishun Dhobi, who had inflicted the grievous injury was charged under Sec.323 of the Indian Penal Code (hereinafter referred to as the Code) and all the rest were charged under Sec.323 of the Code. 4. The defence is the denial of the occurrence in the manner it had been alleged. It is said that accused Kishun Dhobi had negotiated for purchase of some land from one Kewal Mahto, who has, however, nothing to do with this criminal case. Kewal was a Koeri by caste and the Koeris of the village did not relish that a Dhobi should purchase land from a Koeri. Sanichar, the complainant being a Koeri went to the place of the Dhobies for protesting against this negotiation in course of which there was some scuffle when Sanichar fell down on the ground receiving the injuries mentioned above. The date of this occurrence, according to the defence, was a date before the date of occurrence alleged in the complaint. 5. The case was ultimately tried by Shri S.K. Sinha, who acquitted all the accused giving them benefit of doubt. Hence this appeal. 6. The date of this occurrence, according to the defence, was a date before the date of occurrence alleged in the complaint. 5. The case was ultimately tried by Shri S.K. Sinha, who acquitted all the accused giving them benefit of doubt. Hence this appeal. 6. I may mention here itself that even though appearance had been filed on behalf of the accused respondent in the case, no body turned up to argue the case on their behalf on any of the dates when the appeal was argued. I have, however, examined the case thoroughly myself in course of the argument made by learned Counsel for the appellant. 7. The only point that arises for decision in this case is whether the charges have been brought home to the accused respondents beyond all reasonable doubts ? 8. The prosecution in support of its version has examined as many as nine witnesses, out of whom P.Ws. 8 and 9 are formal witnesses being the doctors of Jamui and Monghyr hospitals, and P.W. 7 is the son of the complainant who has only been tendered. The remaining six witnesses are the witnesses of occurrence and I would, therefore, proceed to discuss their evidence. 9. P.W. 1 is Sanichar the complainant. He has taken oath to say how he made his demand of the price of onion seedlings on the date of occurrence, how Kishun and Bhikhan assaulted him, how Buniyad and Dalip also joined them and assaulted him, how the witnesses came on hulla and how he was removed to the hospital thereafter. He has also said about the treatment that was given to him at Jamui and Monghyr. He has said that when he was being treated at Jamui the accused persons filed an application before the Civil Surgeon Monghyr to say that he was trying to manipulate a certificate and that is the reason why he was sent from Jamui to Monghyr at the instance of the Civil Surgeon. There is no corroborative evidence of the fact that the defence had filed any such application before the Civil Surgeon or that the Civil Surgeon had intervened in the matter, but there is no dispute on this point that the complainant had been sent from Jamui to Monghyr. There is no corroborative evidence of the fact that the defence had filed any such application before the Civil Surgeon or that the Civil Surgeon had intervened in the matter, but there is no dispute on this point that the complainant had been sent from Jamui to Monghyr. It, however, makes no difference whether he was sent to Monghyr, at the instance of the Civil Surgeon or he was sent there in the interest of his treatment. In cross-examination it was taken from him that he had filed a case against accused Buniyad on the basis of a handnote. That, however, is neither here nor there because enmity cuts both ways. He has been cross-examined at sufficient length, but so far as the occurrence is concerned, he seems to have fully stood the test of cross-examination. He has denied the suggestion about the purchase of land by Dhobi from Koeri and any dispute in regard thereof. 10. P.W. 2 is Ishwar Mahto, who had also gone to answer the call of nature at the time of occurrence. He saw that when Sanichar was returning Bhikhan and Kishun were going to their field. He has taken oath in support of the demand of the price of onion seedlings and has said that Bhikhan gave a lathi blow on the right thigh of Sanichar and Kishnu gave a lathi blow on his left side. He has further said that they were further joined by Buniyad and Dalip and they also assaulted him on different parts of his body. He has also denied the suggestion about the purchase of land and any dispute therefor. The onion seedlings had not been sold in his presence, but that is of no importance. He has given full description of the place of occurrence. This also clear from his evidence that he saw the occurrence from a distance of only about 15 cubits from the complainant. Some contradictions between his statement in Court and his statement before the police were sought to be taken, but they have not been proved. Hence no reference need be made to them. 11. P.W. 3 is Prasadi Mahto, who has also fully supported the complainant s version. He has also said which accused inflicted which assault. There is no discrepancy on that point between him and any other witness. He was coming from his own field when he saw the occurrence. Hence no reference need be made to them. 11. P.W. 3 is Prasadi Mahto, who has also fully supported the complainant s version. He has also said which accused inflicted which assault. There is no discrepancy on that point between him and any other witness. He was coming from his own field when he saw the occurrence. He has also given the location of other witnesses at that time. He stayed there for some time. There are some other minor details which need not be referred to here. 12. P.W. 4 is Horil Mahto. He has not been named in the petition of complaint, but he has still supported the complainants version. 13. P.W. 5 Nageshwar Mandal is a witness named in the petition of complaint. He was also close to the place of occurrence and he saw that Bhikhan inflicted the first blow and Kishun the second blow. He has also said about the blows given by others. He said that a Gram Panchayat had been constituted in his village, but that was not functioning for the officials had not taken oath. At the time of occurrence he was working in his own onion field close by. 14. P.W. 6 is Sukhdeo Mahto, who is also not named in the petition of complaint, but he appears to have corroborated all other witnesses on material points. 15. It also thus appear that out of six witnesses of occurrence even if P.Ws. 4 and 6 are left out, there are four persons to prove the complainants case. 16. P.W. 8 is Dr. P.P.S. Mauar. He has taken oath in support of the examination of Sanichar done by him on 28-2-1968. He has also said that on 6-3-1968 he had sent the injured to Monghyr Sadar Hospital for X-ray examination. He has proved the two bed head tickets (Exts. 1 and 1/1. ) After feeing the X-ray plate he gave his opinion about injury No. (ii) which was a fracture and as such a grievous injury. P.W. 9 is Dr. Amreshwar Prasad of Monghyr Sadar Hospital. He (has said that Sanichar has been X-rayed on 11-3-1968 and then again on 12-3-1968. It was on the basis of the second X-ray plate that he gave his opinion about the fracture of the 7th rib. P.W. 9 is Dr. Amreshwar Prasad of Monghyr Sadar Hospital. He (has said that Sanichar has been X-rayed on 11-3-1968 and then again on 12-3-1968. It was on the basis of the second X-ray plate that he gave his opinion about the fracture of the 7th rib. He has given the reason for taking the second X-ray plate that first one had not been taken before him. There is, however, nothing to discredit the evidence of the doctors. 17. The defence had. also examined four witnesses in the case. D.W.I is Vivekanand Singh, the Assistant Sub-Inspector of Police. He has only proved the final report (Ext. A) which he had submitted in the case. According to him, the occurrence had taken place in some other manner. That is, however, neither here nor there, because in this case the cognizance had been taken on the complaint petition. P.W. 2 Basuki Singh, a stamp vendor. He has simply come to say that some stamps had been purchased by Kewal Mahto from him. The statement that he made was, however, on the basis of a kacha register maintained by him, D. W. 3 Borhan Tanti, who has said that on Tuesday there had been some altercation between Koeris and the Dhobis. According to the prosecution, the occurrence had taken place on Wednesday. D. W. 4 Sahdeo Paswan has also supported D. W. 3. There is nothing in the evidence of D. Ws. 3 and 4 to disprove the statements made by the P. Ws. in the case. 18. The learned Magistrate has discussed the evidence of the P.Ws. and he does not seem to have given any reason for disbelieving them in course of his discussion. There is nothing in their evidence on the basis of which they can be disbelieved outright. The learned Magistrate has, however, given benefit of doubt on the following four grounds:- (i) In the complaint petition there was no mention of the police case lodged by the complainant. (ii) There was delay in the examination of the complainant on solemn affirmation and that was because the complainant was trying all the time for obtaining a medical certificate in his favour. (iii) It has not been explained as to why the second X-ray plate was taken and the opinion should have been given on the first X-ray plate. (iv) No treatment was given at Monghyr hospital. (iii) It has not been explained as to why the second X-ray plate was taken and the opinion should have been given on the first X-ray plate. (iv) No treatment was given at Monghyr hospital. (v) The defence case cannot be brushed aside. 19. No doubt, the complaint petition does not show that any case had been lodged at the police station, but when, as said by the complainant, the police did not institute a case. Obviously he must have been directed to go to file a complaint, as at that time there was no case of any grievous injury, and the case as it was a non-cognizable case. No doubt, after the receipt of X-ray report the police also registered a case, but at the time when the complaint petition was filed, there was nothing before the police to start an investigation and naturally the police had not started investigation. In that view of the matter, if the fact that the complainant had informed the police was not mentioned in the complaint petition. I do not think it is such an omission, for which, the case if otherwise proved, should be rejected. The Magistrate also thinks that the delay in examination of the complainant on solemn affirmation has not been explained and he further thinks during the intervening period he was manipulating to get a medical certificate in support of a grievous injury. The complaint petition had been filed as far back as 29-2-1968, i. e. just on the next day of the occurrence. It is only this petition which has been solemnly affirmed on 26-3-1968. If there had been a delay in filing the complaint itself, that would have been material, but the delay in making solem affirmation and in only saying what he had said in the complaint petition should be no ground for discarding the prosecution case. The evidence here is that during this period he was admitted both in Jamui and Monghyr hosptials. There are bed head tickets in support of his illness. In my opinion, therefore the Magistrate has erred in taking this ground as one for acquitting accused persons. 20. So far as X-ray plate is concerned, I do not understand why the Magistrate has drawn adverse inference because the medical opinion was not based on the first X-ray plate, but on the second X-ray plate. In my opinion, therefore the Magistrate has erred in taking this ground as one for acquitting accused persons. 20. So far as X-ray plate is concerned, I do not understand why the Magistrate has drawn adverse inference because the medical opinion was not based on the first X-ray plate, but on the second X-ray plate. The reason has been clearly given by P.W. 9, Dr. Amreshwar Prasad, who said that the first X-ray plate had been taken by the technician in his absence which was irregular. What Dr. Amreshwar Prasad did was just proper and the Magistrate was certainly wrong in doubting the medical report on that basis. It also weighed with the Magistrate as to why medical treatment was not given at Monghyr and why he was sent back to Jamui. The reason is very simple. The patient had been forwarded by Jamui Sub-divisional Hospital to Monghyr Sadar Hospital and if after taking the X-ray plate he was sent back to Jamui, there is no irregularity in it. I also do not subscribe with the finding of the Magistrate that the complainant was making delay in the matter and was all the time trying to obtain a false medical certificate. There is absolutely no evidence on the record to show that the medical report was in any way incorrect, It is not clear from the record as to on what basis the Magistrate thinks that the defence case could not be brushed aside. The evidence of P.Ws. 3 and 4 is absolutely insufficient to discredit the evidence of the P.Ws. in the case. 21. In view of my discussions aforesaid, I have no room for doubt left that the prosecution has been able to bring home the charge under Sec.325 of the Code against accused Kishun Dhobi and charge under Sec.323 of the Code against the other accused persons beyond all reasonable doubts and it is a fit case for allowing the appeal. I have already said that no body represented the accused respondents at the time of argument and nothing has been shown to me in relation to the sentences which may be passed in the case. I also examined if the respondents could be released on probation of good conduct. All the respondents are sufficiently grown up persons and the way in which the occurrence took place does not justify a lenient approach. I also examined if the respondents could be released on probation of good conduct. All the respondents are sufficiently grown up persons and the way in which the occurrence took place does not justify a lenient approach. It is a matter, however, to be kept in mind in awarding sentence that the case has now become twelve years old, and the parties have been considerably harassed. 22. In the result I set aside the acquittal of the respondents, convict respondent Kishun Dhobi under Sec.325 of the Code and sentence him to undergo rigorous imprisonment for a period of three months. I further convict respondents Bhikhan Dhobi, Dalip Dhobi and Buniyad Dhobi under Sec.323 of the Code and sentence them to pay a fine of Rs. 50.00 each, in default to undergo rigorous imprisonment for one month each. Out of the fine, if realised Rs. 100.00 would be paid to the complainant by way of compensation. The appeal is accordingly allowed.