JUDGMENT 1. - This is an appeal against the judgment dated 28/7/1982, passed by the learned Sessions Judge, Sawai Madhopur, Camp Gangapur City, in Sessions Case No. 55 of 1980, convicting and sentencing the accused-appellants as under:- (1) Tohi Ram : u/s 323, IPC to 6 months' R.I. and a fine of Rs. 100/- (2) Balbir : u/s 326, IPC to 3 years' R.I. and a fine of Rs. 500/- (3) Harbir : u/s 324, IPC to one year's R.I. and a fine of Rs. 200/- 2. The facts giving rise to this appeal briefly stated, are as follows: An FIR was lodged in the Police Station, Garhmoran, District Sawai Madhopur on 1/1/1980, at 1.00 p.m. by Aram Singh son of Shriphal Gujar, accompanied by Ram Singh, against the accused-appellants under Sections 452, 324, 323 read with Section 34, IPC, wherein it was alleged that Aram Singh with his farher Shriphal was at his house and they were taking meals. Suddenly, Harbir, Balbir and Tohiram came there. Harbir and Balbir had dhariya in their hands and Tohiram had a lathi. All the three accused-appellants abused them and when they were requested not to hurl abuses they started beating. Balbir and Harbir inflicted injury on Shriphal by 'dhariya' who started bleeding and fell down on the ground and,Tohi Ram gave a lathi blow on the head of Aram Singh. Hari Singh, Prabhu & Ramdhan came there and stopped them, otherwise they would have killed them. Shriphal was taken to the hospital at Karauli where he was admitted and was unconscious. An injury report was also filed along with the FIR. The police registered a case under Sections 452, 324 and 323 read with Section 34, IPC. The police after investigation challaned the case. It was committed to the Sessions on 29/7/1980 and the charges were framed on 25/1/1980. 3. The prosecution examined PW/1 Dr. Suraj Lal Gupta, PW/2 Dr. Subhash, PW/3 Sardar, PW/4 Shriphal, PW/5 Aram Singh, PW/6 Ramdhan, PW/7 Hari Singh, PW/8 Mohan Singh and PW/9 Gauri Shankar. 4. Accused Balbir and Harbir in their statement under Section 313, Cr. P.C. deposed that there was some dispute between them and Hari Singh son of Ramdhan, who is the brother of Shriphal. Shripha, Aram Singh and a few others attacked the accused persons and inflicted injuries on them. Some villagers arrived and, therefore, they were saved. 4. Accused Balbir and Harbir in their statement under Section 313, Cr. P.C. deposed that there was some dispute between them and Hari Singh son of Ramdhan, who is the brother of Shriphal. Shripha, Aram Singh and a few others attacked the accused persons and inflicted injuries on them. Some villagers arrived and, therefore, they were saved. When they waived to make the report in the Police the village people got the matter compromised and, therefore, they did not make a report of the incident to the police, whereas Aram Singh filed an FIR against he accused persons. Accused Tohiram has denied that he was present at the time of incident and has pleaded ignorance about the incident. 5. The accused examined DW/1 Ram Swarop and DW/2 Ratan in support of their defence story. 6. The learned Sessions Judge, Sawai Madhopur, after hearing the arguments, convicted and sentenced the accused-appellants as stated above. It is against this judgment that the accused-appellants, feeling themselves aggrieved, have filed this appeal under Section 374;2), Cr. P.C. before this Court. 7. I have heard the learned counsel for the accused-appellants and also the learned Public Prosecutor and have also gone through the record of the case carefully. 8. The main contention of the learned counsel for the accused-appellants is that the FIR was lodged after a great delay. The incident took place on 30/1/1979, at 10 a m., whereas the FIR has been lodged on 1/1/1980 at 1 p m., i e after nearing 51 hours. Moreover, it was received by the Magistrate only on 3/1/1980 at 12 O'Clock at Gangapur City and, there is no explanation for the delay in filing the FIR, or for sending the same to the Magistrate. He has further argued that P/W5 Aram Singh, who has lodged the FIR Ex P./4, in his statement as PW-5, has stated that he lodged a written report Ex.P/4 in the Thana Garhmoran after one day of the incident and that he and his relation Ram Singh had also signed the FIR at the Police Station. In cross-examination he has further clarified that he had started from Karauli for Police Station, Garhmoran on the next day in the morning and reached Garhmoran at about 11/12 in the day and lodged the report to the Thanedar immediately thereafter. In cross-examination he has further clarified that he had started from Karauli for Police Station, Garhmoran on the next day in the morning and reached Garhmoran at about 11/12 in the day and lodged the report to the Thanedar immediately thereafter. As far as he remembers he had filed the report in the Police Station on the next day of the incident and on further cross-examination he says that he does not remember if he had filed the report on the third day of the incident. The learned counsel for the accused-appellants has further argued that there are material contradiction between the evidence of the two injured persons. PW/4 Shriphal and PW/5 Aram Singh and the two so called eye-witnesses, PW/6 Ramdhan and PW/7 Hari Singh and, therefore, their evidence cannot be relied so as to convict the accused persons. He has further argued that the police has recovered one Dhariya at the nst ance of Harbir and one Lathi at the instance of Tohiram. But no weapen has been recovered at the instance of Balbir. Moreover, the weapons recovered have also not been connected with the offence as they were neither shown to the Doctor to depose whether these weapons can inflict the injuries on the person of Shriphal and Aram Singh, nor there is any evidence that these weapons had any blood-stains much less human-blood. The investigating officer did not find any blood-stains sent from the piece of the incident. He has argued that in the face of such type of evidence the accused-appellants cannot be convicted for the offence alleged against them and they are entitled to acquittal. 9. I have given my thoughtful consideration to the arguments of the learned counsel for the accused-appellants and have also gone through the statement of PWs 4, 5, 6 and 7. 10. The FIR in this case was lodged on 1/1/1980, whereas the incident is alleged to have happened on 30/12/1979, at 10 a.m , i.e. after nearly 51 hours of the incident, though, the police station is nearly 25 kilometers from the place of incident. Then it reached the Magistrate on 3/1/1980 at 12 O'Clock, i.e. after two days, though, the Court is quite near to the police station. Then it reached the Magistrate on 3/1/1980 at 12 O'Clock, i.e. after two days, though, the Court is quite near to the police station. This circumstance creates some doubt as no explanation has been given by the prosecution for the delay, especially in view of the statement of PW/5 Aram Singh, who has lodged the FIR, has deposed that he had lodged the report in Garhmoran Police Station next day at about 11-12 in the morning; that means that the FIR should have been registered on 31/12/1979 itself. At another place, he his again asserted that he had filed it on the next day of the incident; but he does not remember that it was filed after two days. This creates suspicion. 11. While coming to the evidence of eye-witnesses and injured, PW/4 in his statements has stated that accused Balbir with a farsi in his hand, Harbir had a 'dhariya' and Tohi Ram had a stick. PW/4 Shriphal has further stated that Balbir gave a 'dhariya' blow on his head and Harbir also gave a 'dhariya' blow on his head. Thereafter he became unconscious and some more injuries were inflicted on his body, though, he is unable to say as to who inflicted those injuries. In cross-examination, he has clarified the difference that were 'dhariya' and 'farsi'. Therefore, it cannot be said that he was confused between 'dhariya' and 'farsha. While PW/5 Aram Singh says that Tohiram had a lathi in his hand and whereas Harbir and Balbir both had 'dhariya'. He further deposed that Harbir inflicted a 'dhariya' blow on his head, whereas Balbir inflicted a blow by 'dhariya' on the shoulder near 'hasali' and Tohiram did not inflict any lathi's injury on Shriphal, but inflicted two lathi blows on his head. 12. Coming to the two alleged so-called eye-witness PW/6 Ramdhan states that Tohiram had a lathi. Balbir had a 'farsi' and Harbir had a 'dhariya'. He reached the spot after hearing the cries and when he reached the house of Shriphal' he saw that all the accused were beating Shriphal. Shariphal had received injuries on his had and chest and was bleeding. But he further states that Tohiram had inflicted a lathi blow. Balbir had farsi in his hand & Harbir had 'dhariya' and inflicted injury on the shoulder. Shariphal had received injuries on his had and chest and was bleeding. But he further states that Tohiram had inflicted a lathi blow. Balbir had farsi in his hand & Harbir had 'dhariya' and inflicted injury on the shoulder. His statement does not inspire confidence because he could not have seen the accused persons inflicting any injury when he reached the spot after hearing the cries. However, there is a contradiction also as to whether Balbir had a 'farsa' or 'dhariya' and whether the injury was inflicted on his head or his shoulder. In cross examination, he has further asserted that Shriphal had two injuries on his head, on by 'dhariya' and another by 'tarsi'. The other alleged eye-witnesses PW/7 Hari Singh, who is none the less the son of Ramdhan PW/6, has deposed that after hearing the cries he along with his father Ramdhan went to the house of Shriphal and saw that Harbir had a 'dharia', Balbir also had a 'dhariya' and Tohiram a stick. Harbir inflicted a blow on the shoulder of Shriphal, to Balbir on his head and Harbir had inflicted another blow on the head of Shriphal and Tohiram inflicted a lathi blow on the shoulder of Shriphal also. 13. Now, coming to the Doctor's evidence, PW/1 Dr. Suraj Lal Gupta has deposed that Shriphal had received one simple injury 1 oblique incised wound 10 cm x 10 cm x 5 cm on the upper right side of the chest by a sharp-edged weapon and one simple injury by blunt object. A vertical lacerated wound on upper surface of head in midline and another injury by sharp edged weapon verticle incised wound semi-circular on the left parietal region of the head, which was found to be grievous as a fracture was discovered after x-ray; and one simple injury by blunt object swelling on his left leg. Thus, we see that the statement of the two injured and the two eye-witnesses is not only contradictory to each other but is also not in consonance with the medical evidence; and without discussing any case law cited at the bar. I feel it is a case in which the accused-appellants are entitled to the benefit of doubt. Thus, we see that the statement of the two injured and the two eye-witnesses is not only contradictory to each other but is also not in consonance with the medical evidence; and without discussing any case law cited at the bar. I feel it is a case in which the accused-appellants are entitled to the benefit of doubt. So far as it is not certain as to who inflicted which injury, and since there is no evidence of any prior concert, or any common intention as to the incident which happened at the spur of the moment, none of the accused persons can be convicted under Section 326 or even under Sec, 324. IPC The fact remains that some incident happened, Shriphal and Aram Singh were injured; but, since it is not possible to assign any particular injury to either Balbir or Harbir, in my opinion, none of them can be convicted under Section 326 or under even Section 324, 1PC. However, all the three accused are guilty of inflicting injuries under Section 323, IPC. 14. I, therefore, partly accept the appeal, set aside the judgment dated 28/7/1982, passed by the learned Sessions Judge, Sawai Madhopur, camp Gangapur City, acquit the accused-appellant of the offences under Section 326 and 324, IPC and convict all the three accused-appellants under Section 323, IPC Accused Balbir and Harbir are young persons, whereas Tohi Ram is an old man of 70 years. Accused Tohi Ram and Harbir are on bail, whereas accused Balbir is in jail since 26/8/1982, for nearly 31/2 months. Accused Tohiram and and Harbir were arrested on 13/7/1980 and remained in custody for about a week during investigation. It will be of no use to send them to jail again looking to their age and the nature of the case and the manner in which the incident had occurred. Therefore, 1 convict all the three accused-appellants under Section 323, IPC and sentence them to the sentence already undergone by them and a fine of Rs. 500/- each and in default to undergo rigorous imprisonment for one month. In these terms the appeal is partly allowed. The conviction of the accused-appellants under Sections 326 and 324, IPC is quashed and all the three accused-appellants are convicted under Section 323, IPC and sentenced to the term already undergone and a fine of Rs. 500/ each. 500/- each and in default to undergo rigorous imprisonment for one month. In these terms the appeal is partly allowed. The conviction of the accused-appellants under Sections 326 and 324, IPC is quashed and all the three accused-appellants are convicted under Section 323, IPC and sentenced to the term already undergone and a fine of Rs. 500/ each. Tohiram and Harbir are already on bail They need not surrender. Balbir may be released from jail, if not required in any other case The accused-appellants are allowed one month's time to deposit Rs. 500/- and. it' they do not deposit the fine within one month, the learned Sessions Judge, Sawai Madhopur, camp Gangapur City, should see that they are arrested and undergo imprisonment for one month (R.I.) in default of payment of fine.Appeal partly accepted. *******