JUDGMENT 1. - This is an appeal against the judgment of the learned Sessions Judge, Pali dated June 27, 1978 whereby the learned Sessions Judge has held the accused- appellant Shankerlal guilty of the offences under sections 325 and 323 IPC and has sentenced him to two years rigorous imprisonment together with a fine of Rs. 1,000/- and in default to undergo two months rigorous imprisonment on the first count and six months rigorous imprisonment together with a fine of Rs. 250/- and in default, to undergo 15 days simple imprisonment on the second count. Both the substantive sentences have been ordered to run concurrently. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that: accused Shankerlal and injured Hardeo are neighbours in their fields with a common boundary. It is alleged that one Babul tree was standing on the boundary of these two fields, which Hardeo claimed that it belonged to him whereas accused Shankerlal cut that tree and utilised it. This actually became a bone of contention between the two and their relations became strained for the past about 4-5 years. Hardeo has shifted to village Devli. One of his fields at Banakudi was given on Batai to P. W. 9 Pukhraj, Gram Sewak. On 6.10.1977, at about 8 A M., Hardeo went to the house of Pukhraj Gram Sewak to enquire about the fact whether the crop has been cut or not? It is alleged that when he was sitting on the Chabutri of the house of Pukhraj, accused Shankerlal came from behind. He was armed with a lathi. He struck blows on the head and other parts of the body of Hardeo causing as many as 8 injuries, four of which were lacerated wounds, two were bruises and two were abrasions. Two of the injuries situated on the head of injuries Hardeo and they have resulted in fracture of the front parietal bone and injury No. 3 has resulted in comminute fracture of left tibia. Out of the blunt weapon injuries, injuries Nos. 2 and 3 were grievous and rest were found to be simple. Two of the injuries situated on the head of injuries Hardeo and they have resulted in fracture of the front parietal bone and injury No. 3 has resulted in comminute fracture of left tibia. Out of the blunt weapon injuries, injuries Nos. 2 and 3 were grievous and rest were found to be simple. It is alleged that Pukhraj Gram Sewak tried to intervene and cried for help whereupon, P W. 5 Sajjansingh followed by P. W. 4 Bharatsingh and P. W. 6 Hanuta who were sitting on the hotel of Banshi came running to the place of the occurrence. P. W. 4 Bharatsingh and P. W. 5 Sajjansingh tried to save Hardeo whereupon, the accused went away with his lathi towards his own house. Before P. W. 6 Hanuta reached the place of the occurrence, the beating was already over. The condition of the injured became serious and, therefore, he was immediately taken to Jetaran where the medical aid was given to him by P. W. 1 Dr. Mansingh Bhandari. He found the condition of the injured serious and, therefore, he advised for X-ray examination of his skull and left leg and asked the persons who accompanied him to shift him to Beawar. The injured was taken to the Hospital at Jetaran at 9 A. M. The report of the incident was lodged at Police Station, Jetaran at 12 in the noon and after that, he was shifted to Beawar, where his radiological examination was also conducted by Dr. R.S. Gahlot. The F.I.R. was lodged by one Sanwal Ram who is cousin brother of Hardeo. This report scribed by Pukhraj has been marked Ex. P. 3. on the basis of which a formal F.I.R. Ex. 6 was drawn. The injury report of Hardeo has been marked Ex. P. 1. His X-ray reading report has been marked Ex. P. 2. The site inspection memo and the site plan have been marked Ex. P. 4 and 5 respectively. 3. After usual investigation, the case against the accused was challaned in the court of learned Munsif and Judicial Magistrate Jetaran under s. 307 I.P.C. The learned Magistrate committed the case for trial to the court of learned Sessions Judge, Pali. P. 2. The site inspection memo and the site plan have been marked Ex. P. 4 and 5 respectively. 3. After usual investigation, the case against the accused was challaned in the court of learned Munsif and Judicial Magistrate Jetaran under s. 307 I.P.C. The learned Magistrate committed the case for trial to the court of learned Sessions Judge, Pali. The learned Sessions Judge charged the accused with the offence under s. 307 I.P.C. The accused did not plead guilty to the charge and claimed trial, whereupon, the prosecution examined in all 10 witnesses in support of its case. The statement of the accused was recorded under s. 313Cr. P.C. He has completely denied the incident and has alleged that he has been falsely implicated in the case on account of the previous enmity. He led no defence and hence, after hearing the parties, the learned lower court decided the case as aforesaid. The learned lower court has held that requisite intention to kill was not present in the mind of the accused and, therefore, it has held him guilty only of the offence under sections 325 and 23 I.P.C. and has sentenced him as aforesaid. 4. Aggrieved against this judgment, the accused-appellant has preferred this appeal. 5. I have heard Mr. K. S. Rathore, learned counsel for the accused appellant and Mr. S.K. Mathur, learned Public Prosecutor for the State. I have meticulously gone through the record of the case. 6. P. W. 3 Hardeo himself was injured in this case. He has stated that he had a dispute with the accused on account of one Babul tree standing on the boundary existing between their fields. This tree has been removed by the accused and, therefore, relations between them became strained. They even fought with each other at the time when this tree was cut by the accused. He has further stated that for the past about 2-4 years, he has shifted to village Devli and, therefore, he entrusted one of his fields to Pukhraj Gram Sewak. At the time of the occurrence he came to Badnyakudi to check up the crop standing in the field. He reached there on the previous evening of the day of the occurrence and in the morning at about 7-8 A. M he went to the house of Pukhraj Gram Sewak. Pukhraj Gram Sewak was present in his house. At the time of the occurrence he came to Badnyakudi to check up the crop standing in the field. He reached there on the previous evening of the day of the occurrence and in the morning at about 7-8 A. M he went to the house of Pukhraj Gram Sewak. Pukhraj Gram Sewak was present in his house. He then sat on his Chabutri. At that time, the accused came from behind and struck blows on his left side of forehead on which, he cried for help and fell down on the ground. Pukhraj immediately came out and tried to intervene but the accused continued inflicting blows to him with lathi. Pukhraj too cried for help whereupon, Bharatsingh, Sajjansingh and Hanuta came there and they rescued him. Two injuries were inflicted on his head and others were inflicted on his arms, legs and back etc. He became unconscious. Had the witnesses not intervened, he would have been killed. He was then shifted to Jetaran and then to Beawar where he remained in the hospital as an indoor patient for about 18-19 days. His X-ray was also taken. According to him, when the first blow was struck on his head, Pukhraj was inside his house and he came out from his house only when he cried for help whereas P.W.9 Pukhraj has stated that the attack was opened by accused Shankerlal on the head of Hardeo in his presence when he was sitting with Hardeo on his Chabutri. This minor discrepancy in the evidence of the witnesses when they have been examined after about a year is not very material because even Pukhraj has stated that it was accused Shankerlal alone who struck blows to Hardeo. Even if he has come out of his house after the first blow was struck, he has seen the remainder of the occurrence and all other eye witnesses have stated that they heard the cries of Pukhraj and then they came to the scene of the occurrence. The occurrence took place on the Chabutri of Pukhraj and, therefore, his presence there was quite natural. Pukhraj has stated that when Shankerlal did not stop inflicting blows to Hardeo, he cried for help whereupon the other three witnesses who were present on the hotel of Banshi came there and they also intervened and thereby, Hardeo could be rescued. The occurrence took place on the Chabutri of Pukhraj and, therefore, his presence there was quite natural. Pukhraj has stated that when Shankerlal did not stop inflicting blows to Hardeo, he cried for help whereupon the other three witnesses who were present on the hotel of Banshi came there and they also intervened and thereby, Hardeo could be rescued. The first two witnesses who arrived at the spot were P. W. 5 Sajjansingh and P. W. 4 Bharatsingh. Both these witnesses viz. P.W.5 Sajjansingh and P. W. 4 Bharat Singh have categorically stated that they were sitting on the hotel of Banshi which is owned by Chimandass Sad. They then heard the cries of Hardeo and Pukhraj from the Chabutri of Pukhraj. They immediately ran to rescue him. When they reached the place of the occurrence they found accused Shankerlal lending blows to Hardeo with a lathi. Hardeo was lying on the ground near the Chabutri of Pukhraj. Pukhraj was trying to rescue him but he was unsuccessful. In their presence, Shankarlal struck one lathi blow on the thigh of Hardeo. 7. P. W. 6 Hanuta has stated that he reached the place of the occurrence some time after Sajjansingh and Bharatsingh reached there and by that time, the occurrence was over and Hardeo was lying on the road in an injured condition. He had injuries on his head, back, arms and legs and some of which were bleeding. His turban was also lying on the ground. On enquiry, he was told that accused Shankerlal has inflicted these injuries to Hardeo. 8. P.W. 9 Pukhraj has, of course, added certain things in his statement which did not find mention in the F.I.R. which has been lodged by P. W. 2 Sanwal. This F.I.R. was scribed by P. W. 9 Pukhraj himself. He has stated that Shankerlal was accompanied by his wife and after inflicting 8-10 injuries, he tried to take Dantli from his wife in order to cut the nose of Hardeo but Hardeo put his hand on the nose and therefore, he could not do so. This is an after-thought improvement which does not find mention in the F I.R. Ex. P. 3 scribed by him. This fact also does not find mention in his police statement. Simply because of these unwanted after-thought improvements made by him, this entire testimony cannot be thrown out. This is an after-thought improvement which does not find mention in the F I.R. Ex. P. 3 scribed by him. This fact also does not find mention in his police statement. Simply because of these unwanted after-thought improvements made by him, this entire testimony cannot be thrown out. He has categorically stated that it was accused Shankerlal who has inflicted injuries to injured Hardeo when he was sitting on his Chabutri and later, when he fell dow on the ground near his Chabutri. All these witnesses thereafter shifted him to Jetaran. 9. It has been alleged by P. W. 5 Sajjansingh, P. W. 6 Hanuta that when they went to Jetaran they first went in front of the police station, Jetaran. The Head Constable advised them first to take the injured to the hospital and then come to the Police Station whereas P.W. 2 Sanwal has stated that they immediately took him to the Hospital because his condition wan serious. This slight inconsistency in the statements of the witnesses does not weaken the case of the prosecution. Even if they have gone in front of the Police station at Jetaran and the Head Constable, looking to the condition of the injured, has advised them to take him to the Hospital to provide him with immediate medical aid to save the a life of the injured before they report the matter to the Police, it only shows the anxiety of the Police to save the life of a man because the report of the incident at the Police Station could even be lodged after taking the man to the hospital and handing him over to the custody of the Doctor, who may look after his injuries. This much is very clear from the testimony of all these witnesses that F. I. R. Ex P. 3 was scribed by P. W. 9 Pukhraj and then, it was presented at Police Station, Jetaran by P. W 2 Sanwal. This delay of about three hours has not been utilised in fastening a false case on the accused but looking to the condition of the patient. the person who took him to Jetaran and the Police Head Constable also felt that this man must first get the medical aid and then, the matter be reported to the Police. This delay of about three hours has not been utilised in fastening a false case on the accused but looking to the condition of the patient. the person who took him to Jetaran and the Police Head Constable also felt that this man must first get the medical aid and then, the matter be reported to the Police. In such cases, where there is only one assailant who has caused all the injuries to the victim, substitution hardly takes place. 10. P.W. 1 Dr. M. S. Bandari has categorically stated that he found eight external injuries on the person of injured Hardeo, which are as follows : 1. Wound with bleeding 21/2"X ⅓"X 1/4" on right temporal region 4" above ear on scalp. 2. Wound with bleeding 1/4"X 1/2" X ⅓" 2" above right eye brow on right side of forehead. 3. Wound with bleeding3/4 X 1/4"X 1/2" at centre on medial side of left leg. 4. Wound with bleeding 3/4" X ⅛" X ⅛" at centre on dossal side of left palm 5. Bruise with redness and swelling 5" X 3/4" on lateral part of right arm at centre. 6. Abrasion with redness 1/2"X 1/2 on posterior part of left elbow joint. 7. Abrasion with redness (three in number) varying from 2" X 1" to 1" X l/2" on posterior part of right shoulder. 8. Bruise with swelling 4" X 1" on lateral part of right thigh at centre." He has proved his injury report Ex. P. 1. The radiological examination of the injuries was advised regarding injuries No. 2 and 3. P. W. 10 Dr. R.S. Gahlot has been examined to prove the X-ray plates Ex. P. 7A to Ex. P. 7C and the X-ray reading report Ex. P. 2. According to him the skigrams showed fracture of the frontal and right parietal bones and it indicated commuted fracture of the left tibia. Thus, the testimony of the eye witnesses is fully corroborated by the testimony of P. W. 1 Dr. M. S. Bhandari and P. W. 10 Dr. R. S. Gahlot. P. 2. According to him the skigrams showed fracture of the frontal and right parietal bones and it indicated commuted fracture of the left tibia. Thus, the testimony of the eye witnesses is fully corroborated by the testimony of P. W. 1 Dr. M. S. Bhandari and P. W. 10 Dr. R. S. Gahlot. Under these circumstances, the learned lower court was perfectly justified in holding the accused appellant Shankerlal guilty of the offence under sections 325 and 323 I.P.C. Rather, looking to the condition of the injured and the nature of the injuries received by him, the accused could have been held guilty of the offence under s. 307 I.P.C. but since there is no appeal against his acquittal under s. 307 I.P.C. nothing can be done now. 11. Now, so far as the sentence is concerned, looking to the nature of the injuries, the learned lower court has already taken a very lenient view regarding sentence Mr. K.S. Rathore, learned counsel for the accused-appellant however, submitted that the occurrence took place in the year 1977 i.e. almost eight and half years have elapsed from the date of the occurrence and therefore, some lenient view regarding sentence may be taken. Actually at the time of hearing of this appeal, learned counsel for the accused-appellant took time to file a compromise in the case and so the judgment was reserved but no compromise has been filed and, therefore, taking into consideration the fact that the occurrence has taken place on 6.10.1977, some lenient view may be taken regarding sentence. I, therefore, feel that the end of justice would be met if the accused is sentenced to one and half years rigorous imprisonment together with a fine of Rs. 1,000/-for the offence under s. 325 I.P.C. His sentence under s. 323 I.P.C. should be maintained. 12. In the result, this appeal is partly accepted and the conviction of the accused-appellant for the offences under sections 323 and 325 I.P.C. recorded by the learned lower court is maintained. However, for the offence under s. 325 I.P.C., his sentence is modified from two year's rigorous imprisonment together with a fine of Rs. 1,000/- to one and half year's rigorous imprisonment together with a fine of Rs. 1,000/- and in default, to undergo two months rigorous imprisonment. His sentence recorded by the learned lower court regarding the offence under s. 323 I.P.C. is maintained. 1,000/- to one and half year's rigorous imprisonment together with a fine of Rs. 1,000/- and in default, to undergo two months rigorous imprisonment. His sentence recorded by the learned lower court regarding the offence under s. 323 I.P.C. is maintained. Both the substantive sentences shall run concurrently. 13. The accused-appellant Shankarlal is already on bail. His bail bonds are hereby cancelled. He is directed to surrender before the learned Sessions Judge, Pali to serve out the remaining sentence imposed against him. The learned Sessions Judge, Pali is also directed to effect the arrest of the accused-appellant Shankarlal to serve out the remaining sentence imposed against him.Appeal partly allowed. *******