JUDGMENT 1. - Jalaludin and Rasulbux appellants have filed this appeal against their conviction by the Sessions Judge Merta by judgment dated 29th August, 1977 in Sessions case No. 14 of 1976. In the Sessions case aforesaid six persons including the appellants were prosecuted. Appellant Jalalu was charged with offence under sections 307 and 326 I.P.C. whereas appellant Rasulbux was charged with offence under section 307 read with section 34 and section 326 read with section 34 I.P.C. Another co-accused Mohad. Bux was also charged with offence under section 307/34 and 326/34 I.P.C. The other three accused, namely, Smt. Rehmat, Smt. Khatoon, and Smt. Ramji were charged with offence under section 323 I.P.C. The Sessions Judge white acquitting the other five accused convicted the appellant Jalaludin of the offence under section 324 I.P C. and sentenced him to rigorous imprisonment for a period of one and a half years and to a fine of Rs. 100/- and in default of payment of fine to undergo simple imprisonment for a period of one month Appellant Rasulbux was convicted for the offence under section 323 I.P C. and was released after admention under section 360(3) Cr. P C. 2. The case of the prosecution is that the appellants and accused Mohd. Bux are real brothers and the other three co-accused, namely, Smt. Rehmat, Smt. Khatoon and Smt. Ramji are their wives. There exists a dispute between Barkat Ali P.W. 1, on the one hand, and the accused persons on the other, in relation to a house situated in Ward No. 11. at Makarana. Barkat Ali wants to construct a mall between his portion of the said house and the portion belonging to the accused persons. On 10th June, 1974 between 12 and 1 P.M. Barkat Ali and his wife were putting bricks which they had obtained for the construction of wall inside the house. Accused Mohd. Bux objected to it and the other accused persons arrived there. Appellant Jallaludin asked the other accused persons to give a good beating to Barkat Ali and thereupon appellant Rasoolbux and accused Mohd. Bux caught hold of Barkat Ali and appellant Jallaludin brought a Kulhari and inflicted a blow with a Kulhari on the head of Barkat Ali. Mohd. Bux gave a blow with a Danda on the left shoulder of Barkat Ali and Rasool Bux gave a fist blow on his cheek. Bux caught hold of Barkat Ali and appellant Jallaludin brought a Kulhari and inflicted a blow with a Kulhari on the head of Barkat Ali. Mohd. Bux gave a blow with a Danda on the left shoulder of Barkat Ali and Rasool Bux gave a fist blow on his cheek. Smt. Jamila P.W. 2 the wife of Barkat Ali, tried to intervene and she was assaulted by Smt. Rehmat, Smt Khatoon and Smt. Ramji. According to the prosecution the aforesaid incident was seen by Mohd. Shafi P.W.3 and Mohd. Jalani P.W. 4 who have their house nearby and were watching the incident from their houses. The case of the prosecution is further that Smt. Jamila was also assaulted by the other accused persons except appellant Jallaludin. Mohd. Shafi and Mohd. Jalani came to the house of Barkat Ali and first they took him to the police out post at Makarana, but the Head Constable In-charge of the Police outpost did not lodge the report and the Deputy Superintendent of Police was not present at Makarana on that day. Barkat Ali was then taken to the hospital at Makarana but the medical officer was not found and thereupon Barkat Ali was taken to Kuchaman city. Injuries of Barkat Ali were examined at Government Hospital Kuchaman city by Shri Saratchand P.W 5 Medical Officer In-charge of the said Hospital on 10th June, 1974 vide injury report Ex P. 3 at 3 30 P.M. and Barkat Ali was admitted in the said hospital. A telegram sent by Barkat Ali from Kuchaman city was received at Police Station Parbatsar on 11th June, 1974 at 8:05 A.M. and on the basis of the said telegram a case under section 307 and 147 I.P.C. was registered at Police Station Parbat Sat. and Lvestigation was commenced. Nathukhan P.W 6 Head Constable who was Incharge of Police Station Parbatsar on 11th June, 1974 went to the hospital at Kuchaman city and met Barkat Ali and recorded the statements of witnesses. He seized the blood stained clothes of Barkat Ali vide seizure memo Ex P 5. He also visited the scene of occurrence and prepared the site plan Ex. P. 2 and the memo of site inspection Ex.P. 6. The injuries of Smt. Jamila were medically examined by Dr. Saratchand at Government hospital Kuchaman city on 11th June, 1974 at 2 P.M. vide injury report Ex P. 4. He also visited the scene of occurrence and prepared the site plan Ex. P. 2 and the memo of site inspection Ex.P. 6. The injuries of Smt. Jamila were medically examined by Dr. Saratchand at Government hospital Kuchaman city on 11th June, 1974 at 2 P.M. vide injury report Ex P. 4. After completing the investigation the police filed a charge-sheet against the accused persons in the court of Munsif and Judicial Magistrate Merta who committed the accused for trial to the court of Sessions Judge and thereupon the accused persons were tried by the Sessions Judge Merta on the charges referred to above. 3. The prosecution, in support of its case, examined seven witnesses out of whom Barkat Ali P.W. 1, Smt. Jamila P.W. 2, Mohd. Shafi P.W. 3, and Mohd. Jalani P.W. 4 have been examined as eyewitnesses of the occurrence. Dr. Sarat Chand P.W. 5, is the medical officer in-charge of Government Medical Hospital Kuchaman City who has proved the injuries found on the person of Barkat Ali and Smt. Jamila. Nathu Khan P.W. 6 conducted the investigation in the case and has proved the remaining memoes that were prepared by him. 4. The appellant Jallaludin, in his statement recorded under section 313 Cr P.C., has denied that Barkat Ali was living in the house in dispute, and has stated that Barkat Ali was residing at Gwarion-ka-bas. He has, however, admitted that Barkat Ali wanted to construct a wall and has stated that on hearing the noise he had come down and found Barkat Ali, Jamila. Modh. Shafi, Mohd Jalani and certain other persons were assaulting Modh. Bux and Smt. Sakina and that when he tried to intervence he was also assaulted. Jallaudin has also stated that he had lodged a report about the incident before the police and the police has filed a challan against the assailants in that case. Thus, according to appllant Jallaludin, Barkat Ali, Smt. Jamila, Modh. Shafi and Mohd Jalani were the aggressors and they had assaulted Modh. Bux, Smt. Sakina as well as himself. Appellant Rasool Bux pleaded alibi and submitted that on the date of the incident he had gone to Barawad. The accused persons in their defence examined Jamaludin D.W.1, Genda D.W.2, Dr. Jwala Prasad Udawat D.W.2 and Dr, Prakase Dayal D.W. 4. 5. Bux, Smt. Sakina as well as himself. Appellant Rasool Bux pleaded alibi and submitted that on the date of the incident he had gone to Barawad. The accused persons in their defence examined Jamaludin D.W.1, Genda D.W.2, Dr. Jwala Prasad Udawat D.W.2 and Dr, Prakase Dayal D.W. 4. 5. The Sessions Judge, after considering 'he evidence adduced by the prosecution, held that reliance can be placed on the testimony of Barkat Ali P.W. I. Smt. Jamila P.W.2, Mohd. Shafi P.W.3 and Mohd. Jalani P.W. 4 and that from the evidence of the aforesaid witnesses it was established that Jallaludin had inflicted injuries on the person of Barkat Ali with a Kulhari and that appellant Rasool had given a fist blow on the cheek of Barkat Ali. The Sessions Judge was however, of the view that in his police statement Ex. D.3 Barkat Ali had not mentioned that accused Modh. Bux had inflicted an injury on his person with a Danda and, therefore, accused Mohd Bux could not be held responsible for causing any injury on the person of Barket Ali As regards the injuries found on the Persons of Smt. Jamila the Sessions Judge held that Smt. Jamila had only stated that she was caught by the women accused who fell her down and Smt. Jamila had not stated that she had been assahulted by them. Nor had Mobd. Jalani P.W. 4 stated that Smt. Jamila was assaulted. The Sessions Judge has found that only one injury bad been inflicted by appellant Jallaludin with a Kulhari and Barkat Ali (P.W.1) and from the evidence of Dr. Jawala Prasad Udawat P.W. 3 and Dr. Prakash Dayal D.W. 4 it appeared that there was no fracture of the bone as a result of the said injuries. In view of the aforsaid medical evidence the Sessions Judge felt that it had not been established beyond doubt that the aforesaid injury was a grievous injury. The Sessions Judge, therefore, held that the offence under section 326 I.P.C. was not established against appellant Jallaludin beyond reasonable doubt and an offence under section 324 I.P.C. only could be said to have been made out. The Sessions Judge also observed that Dr. The Sessions Judge, therefore, held that the offence under section 326 I.P.C. was not established against appellant Jallaludin beyond reasonable doubt and an offence under section 324 I.P.C. only could be said to have been made out. The Sessions Judge also observed that Dr. Sarat Chandra P.W 5 had stated that the injury which was caused by Kulhari on the head of Barkat Ali P.W.1 was not sufficient in the ordinary course of nature to cause death and since only one injury had been inflicted by the appellant Jalalludin the offence under section 307 I.P.C. cannot be said to have been established as against appellant Jalalludin and that the offence under section 307/34 was also not established against accused Mohd. Bux and appellant Rasool. The Sessions Judge has further held that the quarrel bad started all of a sudden on account of the dispute about the bricks and that there was no prior meeting of minds or prior concert or per arranged plan between the accused persons and that appellant Jallaludin had suddenly inflicted an injury on the had of Barkat Ali with a Kulhari and that it could not be said that Mohd. Bux and Rasool Bux were sharing the common intention with appellant Jallaludin when he assaulted Barkat Ali. The Sessions Judge was, therefore, of the view that Mohd. Bux and Rasool Bux could not be held guilty of the offence under section 326/34 or section 324/34 I.P.C. The Sessions Judge therefore acquitted the other co-accused of all e charges and convicted appellant Jallaludin of the offence under section 324 I.P.C. and appellant Rasoolbux of the offence under section 323 I.P.C. 6. After the Sessions Judge had passed the order of conviction of the appellants he gave to the appellant an opportunity to make their submissions in the question of sentence. At that stage the appellants examined Dr. B.P. Gupta D W.5 and Nathukhan D.W.6 Dr. B.P. Gupta has proved the injury reports Ex.D 6/1 ana Ex.D/7/1 regarding the injuries found on the persons of appellant Jallaludin and accused Mohd Bux Nathu Khan has proved the charge sheet Ex.D./8 submitted by him in the court case filed by appellant Jallaludin. 7. Thereafter the Sessions Judge passed the order of sentence where by appellant Rasool Bux was released after admonition under section 360(3) Cr. 7. Thereafter the Sessions Judge passed the order of sentence where by appellant Rasool Bux was released after admonition under section 360(3) Cr. P.C. and the sentence of rigorous imprisonment for one and a half year and a fine of Rs. 100/- was imposed, on appellant Jallaludin for the offence under section 324 I.P.C. Feeling aggrieved by their conviction for the offence aforesaid as well as the sentence imposed for the offence under section 324 I.P.C. on appellant Jallaludin the appellants have filed this appeal. 8. I have heard Shri. M.S. Singhvi the learned counsel for the appellant Shri M.C. Bhati the learned Public prosecutor for the Sate. I have also perused the evidence on record. 9. As noticed earlier the case of the prosecution rests upon the evidence of Barkat Ali (P.W.1), Smt. Jamile, (P.W.2), Mohd. Shafi (P.W.)3 and Mohd Jilani P.W.4 who have been examined as eyewitnesses of the occurrence. Barkat Ali and Smt. Jamila had sustained injuries during the course of the occurrence and Mohd Shaft and Modh. Jilani are the neighbours who had seen the occurrence from their houses. The evidence of these witnesses find corroboration from the medical evidence, namely, the testimony of Dr. Sarat Chandra P.W 2, who was medical officer in-charge of the Government Medical Hospital Kuchaman city at the time and mho examined the injuries of Barkat Ali on 10th June, 1974 at 3 30 P.M. and had prepared the injury report Ex P.3 and had also examined the injuries of Smt. Jamila on 11th June 1974 at 2 P.M. and had prepared injury report Ex P.4. According to the injury report Ex P 3 Barkat Ali had four injuries on his person out of which one was incised wound, two were contusions and one was abrasion. The incised wound was 11/4" x 0 2" from the right parietal region of the region of the scalp. More or less transversely placed and about 3" away from mid line. According to Dr. Saratchandra the aforesaid incised wound could be caused by Kulhari. According to the injury report Ex P.4 Smt. Jamila had four abrasions and one contusion on her person. 10. Shri Singhvi has submitted that reliance should not be placed on the testimony of PWs.1,2,3 and 4. According to Dr. Saratchandra the aforesaid incised wound could be caused by Kulhari. According to the injury report Ex P.4 Smt. Jamila had four abrasions and one contusion on her person. 10. Shri Singhvi has submitted that reliance should not be placed on the testimony of PWs.1,2,3 and 4. In this regard the first contention urged by Shri Singhvi was that even though the incident is said to have taken place at about between 12 and 1 P.M on 10th June, 1974 the report about the incident was not lodged with the police till the next day and that no effort was made either to lodge the report Makarana where the incident had taken place or at Kuchman city where Barkat Ali was undergoing treatment. In my view there is no substance in the aforsaid contention of Shri Singhvi. From the statement of Barkat Ali P.W. 1 it appears that after the incident Barkat Ali was first taken to the police out post at Makarana and thereafter he was taken to the hospital at Makarana but since no doctor was found there, be was taken to Kuchaman city. Barkat Ali has also stated that the Deputy Superintendent of Police was not in Makarana on that date and that after reaching Kucheman city and after he was given medical treatment he had sent information about the incident by telegram to police station Parbatsar. Mohd Shafi P.W.3 has stated that he had accompanied Shri Barkat Ali and Smt. Jamila to the police out post and at the police out post Nathukhan Constable asked then to bring a certificate and thereupon after leaving Barkat Ali and Jamila at the police out post he went to meet the Deputy Superintendent of Police but he was not found and thereafter he went with Barkat Ali and Jamila to the hospital but the doctor was not found and only a compounder Mohd, Umar was there who bandaged the injury of Barkat Ali and expressed his inability to do anything more and thereupon he took Barkat Ali and Jamila to Kuchaman city where medical aid was given to him by the medical officer. The aforesaid evidence which has been adduced by the prosecution shows that an effort was made to lodge a report about the incident at police out post Makarana immediately after the occurrence but no report was recorded at the said police out post because the constable in-charge of the out post insisted on a medical certificate and a medical certificate could not be obtained at Makarana because the medical officer in-charge of the hospital at Makarana was not in town and, therefore, Barkat Ali and Smt. Jamila was taken to Kuchaman city where medical aid was given to them and after reaching Kuchaman city a telegram was sent by Barkat Ali to Police Station Parbatsar, whereby the information about the incident was given. The said telegram reached Police Station Parbarsar on 11th June, 1974 at 8.05 A.M. In the facts and circumstances of case it cannot be said that the delay in lodging the F.I.R. has not been satisfactorily explained by the prosecution. 11. The next contention urged by Mr. Singhvi was that Barkat Ali (P.W.2) was admittedly not residing in the house in dispute and, therefore, the case of the prosecution with regard to the genesis of the occurrence cannot be held to be true. In support of his aforesaid submission Shri Singhvi has placed reliance on portion marked A to B of the affidavit Ex.D 1 filed by Barkat Ali in proceedings under section 145 Cr.P.C. in the court of S.D.M. Parbatsar wherein Barkat Ali stated that for the past 16 to 17 months he, along with his wife and family, was residing in the field in dispute. The aforesaid contention of Shri Singhvi is contrary to the statement of appellant of Jallaludin recorded under section 313 Cr P.C. wherein Jallaludin has admitted the presence of Barkat Ali, P.W. 1 and Smt. Jamila in the house at the time of the occurrence. Moreover, Barkat Ali, in his statement during i the course of cross. examination, has explained that he has agricultural land I also and that 21/2 months prior to the date of the incident he, along with his wife and children was staying in the field but every second or third day he used to come to his house and that the field is situated at a distance of 1/2 mile from the house. This would show that Barkat Ali used to come to the house in dispute every 2nd or 3rd day, and, therefore, his presence in the house on the date of the occurrence cannot be disbelieved merely on the ground that be along with his wife and children bad been staying on the field. 12. Another contention that was urged by Shri Singhvi was that injuries were also found on the person of appellant Jallaludin, accused Mohd. Bux and Smt. Sakina and that no explanation whatsoever had been offered by the prosecution for the aforesaid injuries and that in view of the failure on the part of the prosecution to explain the injuries found on the person of the accused the version of the incident given by the prosecution cannot be accepted as the true version. In support of his aforesaid submission Shri Singhvi has referred to the testimony of Dr. B.P. Gupta D W. 5 who was working as medical jurist Jawaharlal Nehru hospital Ajmer on 10th June, 1974 and has proved the injury report Ex D/6/1 relating to the injuries found on the person of appellant Jallaludin and injury report Ex.D 7/1 relating to the injuries found on the person of accused Mohd. Bux. As regards the evidence of Dr. B P Gupta it may be observed that the said witness was examined by the accused persons on 27th September, 1977 after the Sessions Judge had passed the judgment on 29th August, 1977, whereby the Sessions Judge had convicted the appellant Jallaludin for the offence under section 324 I.P.C. and appellant Rasoolbux for the offence under section 323 IPC This would show that the evidence of Dr. B.P. Gupta and the injury reports with regard to injuries found on the persons of Jallaludin and Mohd. Bux were adduced in evidence by the appellants on the matter of sentence only and not on the question of the truth of the prosecution case and that was the reason why the injuries of appellant Jallaludin and accused Mohd. Bux have not been considered by the Sessions Judge while appreciating the evidence of the eyewitnesses examined by the prosecution. In my view no fault can be found with the judgment of the Sessions Judge on this score and the injuries found on the persons of Jallaludin and Mohd. Bux can he taken to account only on the matter of sentence. In my view no fault can be found with the judgment of the Sessions Judge on this score and the injuries found on the persons of Jallaludin and Mohd. Bux can he taken to account only on the matter of sentence. Even otherwise I am of the opinion that the injuries which were found on the persons of Jallaludin and Mohd. Bux as pointed in the injury reports Exs. D/6/1 and D./7/1 were very minor in nature and the non-explanation of the said injuries by the prosecution witnesses is is not of much significance. According to the injury report Ex D 6/1 Jallaludin had four linear abrasions on the front of left shoulder and an abrasion and a bruise on the back of right shoulder, a bruise and abraded surface on the middle and front of the left side chest, an abrasion on the left knee and that he was complaining of pain in the abdomen but there were no external marks. Similarly the injury report Ex D.7/1 relating to Mohd. Bux indicate that there was an abrasion on the lower part of the right leg and an abrasion on the left cheek and he was complaining of rain on the left side chest but there were no external marks of the injury. This would shows that all the injuries which were found on the persons of Jallaludin and Mohd. Bux were in the nature of abrasions which might have been sustained during the course of scuffle & since they were all of very minor in nature the non-explanation of the said injuries by the prosecution witnesses cannot be of very material significance, so as to affect the credibility of the testimony of the eye witnesses examined by the prosecution. 13. Thus none of the submission of Shri Singhvi merits acceptance. At this stage it may be mentioned that I have carefully perused the evidence of Barkat Ali P.W. 1, Smt. Jamila P.W. 3 and Mohd. Jilani P.W. 4 and I find that all of them have consistently deposed that appellant Jallaludin had inflicted an injury with a Kulhari on the head of Barkat Ali. In my opinion, the testimony of these witnesses, which finds corroboration from the medical evidence of Dr. Jilani P.W. 4 and I find that all of them have consistently deposed that appellant Jallaludin had inflicted an injury with a Kulhari on the head of Barkat Ali. In my opinion, the testimony of these witnesses, which finds corroboration from the medical evidence of Dr. Saratchandra P.W. 5, must be accepted and it must be held that it was appellant Jallaludin who had inflicted an injury on the bead of Barkat Ali with a Kulahari. From the evidence of Barkat Ali it is also established that appellant Rasool Bux gave a first below on the cheek of Barkat Ali. The aforesaid testimony of Barkat Ali and appellant Resool Bux having given a first blow on the cheek of Barkat Ali finds corroboration from medical evidence in as much as according to the injury report Ex.P 3 Barkat Ali had a contusion on the right side of the face near the lateral orbital margin. The Sessions Judge was, therefore, right in convicting appellant Jallaludin of the offence under section 324 I.P.C. and appellant Rasool Bux of the offence under section 323 IPC. 14. Shri Singhvi submitted that the learned Sessions Judge has erred in not extending the benefit of provisions of section 360 Cr.P.C. to appellant Jallaludin and has not given any reason why the benefit of section 360 Cr.P.C.could not be extended to the said appellant. In support of his aforesaid evidence Shri Singhvi has pointed out that occurrence took place as a result of family dispute relating to the house and that and that only one injury had been inflicted by appellant Jallaludin and that there is no previous conviction against appellant Jallaludin. 15. Taking into consideration the facts and circumstances of the case and specially the fact that accused persons and the complainant are related to each other and the occurrence had taken place as a result of sudden quarrel arising out of a dispute relating to the joint house and only one blow was given by appellant Jallaludin I am of the opinion that this is a fit case in which the benefit of the provisions of section 360 Cr.P.C. may be given to appellant Jallaludin and he may be released on probation of good conduct. 16. In the result, the appeal is partly allowed. 16. In the result, the appeal is partly allowed. The conviction of the appellant Rasool Bux for the offence under section 323 I.P.C. and the order passed by the learned Sessions Judge releasing him after admonition under section 360 Cr. P.C. is upheld. The conviction of appellant Jallaludin for the offence under section 324 I.P.C. is upheld. It is directed that he may be released on probation of good conduct on his entering into a bond in the sum Rs. 2000/- and a surety in the like amount to keep peace and be of good behaviour for a period of two years. In the event of the said appellant's failure to furnish the bonds or committing a breach of the bond he would be called upon to undergo the sentence that has been imposed upon him for the offence under section 324 I.P.C. by the Sessions Judge Merta. The said bonds should be furnished within a period of two months.Appeal partly allowed. *******