JUDGMENT (ORAL) A.D. Mane, J. - The appellants are the original accused Nos. 1, 2 and 3. The appellant Nos. l to 3have been convicted under Section 323 read with Section 34 of the Indian Penal Code and each of them has sentenced to suffer Rigorous Imprisonment for the period of three years and fine of Rs. 300/- in default further Rigorous Imprisonment for six months. The appellant No. 3 has been convicted under Section 304, Part II, and has been sentenced to suffer Rigorous Imprisonment for five years with the direction that the substantive sentences shall run concurrently. The appellant No.2 has, however, been sentenced till rising of the court with fine of Rs. 400/- in default Rigorous Imprisonment for three months. The judgment of the learned trial Judge is, however, not clear for what offence the appellant No.2 has been sentenced. 2. The incident has taken place of March 26, 1984 in field survey No. 147 in village Badnapur, in taluka Sangamner. The complainant P.W. 1 Karbhari had found that the accused No.3 who is his cousin broke the canal meant for irrigation of his land while transporting the fodder across this canal. That was morning time. The complainant had left, for Ashwi, but before going to Ashwi, he had asked his wife to see that the canal was got repaired by the accused. The complainant returned from Ashwi at about 6.45 P.M. He saw that there, was no water in the canal. He got angry with his wife. He asked his wife why land was not irrigated. She told him that the accused No. 1 did not repair the canal. It appears that, thereafter, the complainant started abusing. Then the accused Nos. 1 and 3 came armed with sticks and started assaulting the complainant. In the course of said beating the complainant's mother Bhimabai came and tried to request the accused not to assault the complainant. It is the prosecution case that the accused No. 3, however, hit with stick on head of Bhimabai and the accused No.1 also assaulted her with the stick. At that time the accused No.2 came to the scene. The complainant was removed in his hut by his wife and daughter Chayabai. At that time the accused No.2 gave first blow on nose of his daughter. 3. At that time the accused No.2 came to the scene. The complainant was removed in his hut by his wife and daughter Chayabai. At that time the accused No.2 gave first blow on nose of his daughter. 3. It appears that the complainant thereafter, left the village and went to his family Doctor at Sangamner. There Dr. Saraf, treated him and on the next day at about 10.00 A.M. the complainant reached his hut, where he saw that his mother was dead. He sent his son Popat to police, and the police came at about 12 noon. It was then the complainant gave his First Information Report Exh.15 narrating the above incident. 4. The defence of the accused was one of total denial, and according to them, the complainant's mother Bhimabai got injured when she fell down at the time when she was intervening the quarrel. In this context, it has also been alleged by the accused that because of canal which was broken by passing of the bullock cart, the complainant assaulted the accused No.1 for which he had filed his complaint earlier with the police. The complainant has, therefore, filed his First Information Report subsequently in order to save himself from the assault which he has made or the accused. 5. In answer to a question whether Bhimabai received the injury with stick blow or due to fall, the learned trial Judge did not accept the opinion of P.W.4 Pathak that injuries such as C.L.W. left frontal to left parietal region and abrasion on left forearm frontal aspect could have been caused by fall. The only reason for not accepting the opinion of the medical officer, according to the learned trial Judge, was that in absence of any corresponding injury as found in post-mortem, the injuries on head and forearm cannot be said to have been sustained by fall. 6. Shri Loya, the learned Counsel for the appellants had made a great deal of criticism on the view taken by the learned trial Judge in discarding the opinion of the expert in regard to the manner in which the injuries can be said to have been received by the deceased Bhimabai. In this context, it has been pointed out that had Bhimabai received injuries by reason of stick blows inflicted by either of the accused Nos. In this context, it has been pointed out that had Bhimabai received injuries by reason of stick blows inflicted by either of the accused Nos. 1 to 3, it does not stand to reason that the complainant would have shown his total dis-regard to his mother's condition and got himself admitted in a private hospital without seeking aid of police or lodging his First Information Report, narrating the incident, to the, police. 7. There is merit in the submission of the learned Counsel. The complainant fails to explain his conduct as to why he thought it proper to get himself admitted in the private hospital for treatment without approaching police and informing the police of the incident disclosing the assault on his mother. Indeed, the delay in lodging the First Information Report by the complainant has also not been explained and delay of this kind casts a serious doubt in regard to the truthful version of the complainant, when he has stated that the accused No.3 gave stick blow to his mother. It cannot be forgotten that the incident of beating has occurred on account of breaking of canal which was used by the complainant for irrigating his crop from the common well water. It can be inferred from the evidence of the complainant and his wife that because of the failure of the accused to repair the canal, the complainant got angry and had first quarrelled with his wife. It was not unlikely that the complainant must have abused the accused also and the accused who reside nearby protested the complainant and that is why, it appears, that a sudden scuffle has taken place, between them. The deceased Bhimabai was an old lady. It was quite possible that on seeing the scuffle she must have come forward to intervene the scuffle. The possibility of her falling on hard floor near the hut, therefore, cannot be ruled out, and it is in that view of the matter, coupled with the conduct of the complainant, it is perfectly clear that opinion of the expert can be acted upon it. The possibility of her falling on hard floor near the hut, therefore, cannot be ruled out, and it is in that view of the matter, coupled with the conduct of the complainant, it is perfectly clear that opinion of the expert can be acted upon it. In that event the finding of the learned trial Judge, that the deceased died homicidal death is difficult to accept, inasmuch as the evidence on record, suggests two possible views, namely injuries sustained by the deceased may be due to stick blow or due to fall accidently, and, therefore, the conviction of the appellants 1 and 3 for 'Offence Section 304, Part II is difficult to sustain. The appellant Nos. 1 and 3 are entitled to benefit of doubt. 8. In regard to the injuries received by the complainant, there is however, more than satisfactory evidence to show that the complainant has received in all four injuries. Out of these four injuries, injury No. 2 was proved to be grievous i.e. swelling tenderness over the left hand front aspect unable to move. The evidence corroborates the complainant's version that he was assaulted with the stick. The complainant's testimony is also corroborated by his wife and daughter P.W. 6 Chayabai. 9. In this context, Shri Loya, the learned counsel for the appellant, however, invited my attention to an un-disputed fact that the accused No.3 has received equally serious injury namely, contused lacerated wound 4 cm. X 1/2 cm bone deep on right parietal region. For this injury, the prosecution has failed to offer any explanation. The evidence of Doctor shows that the injury received by the accused No.3 can be caused in assault either with stick or stons. Taking into account the injury received by the accused N9. 3, it has been contended that the learned trial Judge was not correct in coming to the conclusion that the offence punishable under Section 326 of the Indian Penal Code was brought home to the accused Nos. 1 and 3. According to the learned counsel for the appellants, failure of the prosecution to explain injury on the person of the accused No.3 may be regarded as a factor to discard the entire prosecution version. 10. I have considered the material evidence of the witnesses to the occurrence. 1 and 3. According to the learned counsel for the appellants, failure of the prosecution to explain injury on the person of the accused No.3 may be regarded as a factor to discard the entire prosecution version. 10. I have considered the material evidence of the witnesses to the occurrence. Indeed the evidence of the complainant suggests that because of non-repairs of the canal he was got angry and, therefore, according to him, he had started abusing his wife. He, therefore, wants to suggest that on hearing his abuses the accused had appeared and started assaulting him. Perhaps, it is not possible to accept that part of his version that the accused had come there only when they heard him abusing his wife. Possibility of the complainant abusing the accused cannot be ruled out. If the incident of maramari has taken place suddenly, in that event, the accused cannot be entirely held guilty, especially when the accused No.3 has received injury in course of the same incident. It is no doubt true that none of the accused has raised a plea of right of private defence perhaps of a sudden fight. While considering the nature of offence made out in the evidence of the prosecution, in my view, at the most it can be said that an offence under Section 324 of the Indian Penal Code can be said to have been proved against the accused. The complainant was alone whereas the evidence shows that the accused Nos. 1 and 3 together participated in the incident of assault. 11. In the view that I take, the appeal must partly be allowed. The appellant Nos. 1 and 3 are acquitted under Section 304, Part II of the Indian Penal Code, and their conviction and sentence passed by the learned, trial Judge is hereby set aside. The conviction of the appellants under Section 326 read with Section 34 of the Indian Penal Code is set aside and instead they are convicted under Section 324 read with Section 34 of the Indian Penal Code. 12. At this stage Shri Kadiwal, the learned Counsel appearing for the original complainant presents his application to compound the offence with which the appellants have been found guilty: Taking into account the relations of the parties, and the genesis of the occurrence, there is no reason why permission should not be granted. 12. At this stage Shri Kadiwal, the learned Counsel appearing for the original complainant presents his application to compound the offence with which the appellants have been found guilty: Taking into account the relations of the parties, and the genesis of the occurrence, there is no reason why permission should not be granted. Permission to compound the offence is granted. The joint application of the appellants and the original complainant, which is presented today in the Court is taken on record, and permission to compound is hereby accorded. In view of the compromise between the parties, the appellants are also acquitted under Section 324 read with Section 34 of the Indian Penal Code. Fine, if paid, be refunded. The appeal, thus stands disposed of. Appeal disposed of