JUDGMENT G.D. Dube 1. Third Additional Sessions Judge Muzaffarnagar has convicted Zamil and sentenced him to one year R.I. under section 324 IPC, and one years rigorous imprisonment and a fine of Rs. 1000/- for the offence punishable under section 325 read with section 34, IPC. Appellants Riaz, Muda and Manzoor were also found guilty and thereby convicted and sentenced to one year R.I. each under section 324 read with 34, IPC and one years rigorous imprisonment and a fine of Rs. 1000/- each under section 325 read with section 34, IPC. In default of payment of fine all the appellants were directed to undergo R.I. for three months. All the sentences were directed to run concurrently. Aggrieved by this order the present appeal has been filed. 2. The prosecution case is that the appellants were intending to take water through the filed of Farjan. Farjan had not permitted this taking of water. Consequently the appellants were highly infuriated. It is alleged that at about 9 a.m. on 17-3-1975 the injured Farjan PW 2 was cutting 'Barsim' in his field situated in village Jangal Qasba P. S. Kerana district MuzafarNagar. Appellant Zamil armed with Palkati and Riaz, Muda and Manzoor armed with Lathi arrived. Zamil exhorted his companions that Farjan be taught a lesson for stopping the water through his field. The appellant started assaulting Farzan with their weapons. Farjan ran for his life. The accused chased him and caused hurt to him in the field of Muda appellant. After injuring Farjan quite seriously appellants ran away. The persons working in neighbourhood viz., Barhu, Liyakat, Abbuikim challenged the assailants. The accused-appellants ran away. The whole incident was narrated by Liyaqat to Yameen near the brick klin of Chaudhari Lehari Singh. Yameen arrived at the spot and found Farjan in a critical condition. Hence he was carried in a Buggi to Primary Health Centre, Kerana. Farjan was examined by Dr. R. K. Khanna PW 1 at 10.45 a.m. on 17-3-1975. The doctor had found 35 injuries on the person of Farjan. All these injuries have been mentioned in detail by the lower court in paragraph 3 of its judgment; hence it is not at all necessary to quote them again in this judgment. 3. After getting Farjan medically treated and examined Yameen came to police station Kerana and lodged report at 12.20 p.m. same day. 4. All these injuries have been mentioned in detail by the lower court in paragraph 3 of its judgment; hence it is not at all necessary to quote them again in this judgment. 3. After getting Farjan medically treated and examined Yameen came to police station Kerana and lodged report at 12.20 p.m. same day. 4. The investigation had been taken up by Suraj Pal Singh, Sub-Inspector PW 8 of Police Station Kerana. He was present at the police station when the report was lodged. He went to the hospital and interrogated Farjan and Yameen. He took blood stained 'Kurta', 'Tahmad' and 'Baniyain' of Farzan and prepared a memo Ext. Ka. 4. He went to the spot, interrogated other witnesses and prepared a site plan. He collected blood stained earth and plain earth from the spot and prepared memo Ext. Ka. 6. After perusing the supplementary medical report and completing other formalities a charge- sheet was submitted on 9-4-1975. The appellants were charged for the offence punishable u/Sec. 307, IPC read with section 34, IPC. The prosecution had examined PW 1 Dr. R. K. Khanna, who had examined injured in P. H. C. Kerana. PW 2 Farjan, PW 4 Yameen, PW 5 Abbuikim, PW 6 Majeed and PW 7 Barhu were examined as eye witnesses. PW 3 Dr. Madan Mohan Sharma had x-rayed the right hand Farjan and found that the 4th meta-corpal bone of right hand had fractured. PW 8 Suraj Pal was the Investigating Officer PW 9 Kavidutt, Head Constable had registered the case and proved Chik report Ext. Ka 8. 5. Accused had pleaded not guilty to the charges. They had alleged that they had been falsely implicated in this case on account of enmity. They had examined DW 1 Hazi Sareen and DW 2 Ratiq. On appraisal of the evidence produced before it the lower court, came to the conclusion that the offence u/Sec. 307, IPC was not made out. The lower court however, held that injuries were caused by sharp cutting weapon, therefore, offence under section 324, IPC was made out. Since grievous hurt had been caused the lower court opined that the offence u/Sec. 325 was also made out. Since Zamil was held to be possessing a Palkati it was held by the lower court that he was guilty u/Sec. 324, IPC simpliciter. Since grievous hurt had been caused the lower court opined that the offence u/Sec. 325 was also made out. Since Zamil was held to be possessing a Palkati it was held by the lower court that he was guilty u/Sec. 324, IPC simpliciter. The other appellants were held guilty, convicted and sentenced as stated in the opening paragraph of this judgment. 6. It has been contended by the learned counsel for the appellant that Farjan was cutting 'Barsim' with a sickle (Daranti.). Thus Daranti ought to have been taken into possession by the investigating Officer. IT ought to hive been found at the spot. The prosecution has not explained as to what happened to this Daranti. IT was also contended that according to Farjan he had fallen on the ground on his back. IT was urged that if it was so then the injury on the back could not have been caused. Out of 35 injuries the first three were on the head. Incised wound, no. 4, was 3/4" posterior to the left ear. injury nos. 5, 6, 7, 8, 9, 10 and 11 were on the left hand. injury no. 12 a round wound was on the back of the palm of right hand. injury nos. 13, 14, 15, lb and 17 were on the right arm. Injury nos. 18, 19, 20, 21 and 22 were on the back. Injury no. 23 a bruise was on the left thigh, injury no. 24 and 25 were bruises on hip region. Injury nos. 26, 27, 28, 29 and 30 were on the left leg and thigh. They were bruises and abrasions, injury nos. 31 to 33 were on the back region. Injury no. 34 was bruise on the right half of back of hip region. Injury no. 35 was on lateral side of light thigh its lower l/3rd. The above argument of the learned counsel for the appellants is based on a solitary statement occurring in the statement of Farjan at the end that he had fallen on the back and in that condition he had been beaten. This solitary statement should be read with other statement just above the sentence regarding falling in the field of Muda. The witness had stated that he had received 5 to 10 Lathis in his 'Barsim' held. During this beating Farzan could have received injuries all over his body. This solitary statement should be read with other statement just above the sentence regarding falling in the field of Muda. The witness had stated that he had received 5 to 10 Lathis in his 'Barsim' held. During this beating Farzan could have received injuries all over his body. While being assaulted a person will not remain lying on the ground like a log of wood. He will toss and try to save himself even if he had been previously badly beaten. Even during the assault in the field of Muda injured Farjan must have turned on the sides also and thus received injuries on both the left and right side of his back. 7. The occurrence had taken place at 9 a.m. The injured was examined just after 1 hour 43 minutes. Dr. R. K. Khanna had stated that injuries were about 2 hours old and could be caused at 9 a m. This part of his statement has not been challenged by the defence. It was also not suggested to Farjan that he had been assaulted at some other place and time. Only this much was suggested that he (Farjan) his son and nephew had involved themselves in thefts and another mischiefs so Farzan had been beaten at some other time. There is no basis for this suggestion. It can not amount to an evidence. The evidence of doctor indicates beyond doubt that Farjan had received injuries at 9 a.m. and not earlier or at any other time as alleged by the defence. 8. Farzan PW 2 is the injured witness. The appellants had examined DW 2 Rafiq who stated that the field on which occurrence took place was of Yamin PW 4 Yamin is the real brother of FARZAN. He has stated that ell the land belong to him and FARZAN, are joint land and they have partitioned mutually. The field in which occurrence took place was in possession of FARZAN. Hence these circumstances indicate that FARZAN was in possession of the land on which occurrence took place. Nothing else was elicited in his cross-examination to show that whatever FARZAN has stated is not correct. There is no good ground to disbelieve him. Yamin is not an eve witness. He soon after the occurrence found Farzan lying in the field of Muda in an injured condition. Thus the evidence of PW 4 established the place of occurrence. Nothing else was elicited in his cross-examination to show that whatever FARZAN has stated is not correct. There is no good ground to disbelieve him. Yamin is not an eve witness. He soon after the occurrence found Farzan lying in the field of Muda in an injured condition. Thus the evidence of PW 4 established the place of occurrence. There is a note in injury report Ext. Ka 1, that Farzan was brought by Yameen. These facts corroborate the prosecution story that Farzan was assaulted by the appellant in the field where the occurrence is said to have taken place. 9. Abukim PW 5 had given his age as 90 years on the date of his statement, i.e. 29-3-1979. The occurrence had taken place about four years back. He admitted in cross-examination that since about 3 to 4 years he is not able to see properly. He was then not able to recognise a person standing by his side. This statement does not help the appellants. It does not exclude the capacity of the witness to recognise person in broad day light in open on the date and time of occurrence. The occurrence had taken place in March at 9 a.m. when the sun shines bright. It, therefore, can not be said that at the time of occurrence ABUKIM was not able to recognise the assailants. He had stated in his examination-in-chief that he had recognised Manzoor and Zamil as the participants in the occurrence. He had stated that he had taken the field adjacent to the field of Muda appellant on rent of Rs. 500/- for one year. It has not been shown that this part of the statement is incorrect. 10. Majid (PW 6) stated that he was keeping a watch of Beria in the grove adjacent to the field of Farzan. He has corroborated the prosecution story. He stated in cross-examination that he had purchased the crop of Beria from Lala Sumant Prasad Jain. It was only suggested to him that he had not taken any crop in order to contradict his statement. The appellants had examined Rafiq as DW 2. He tried to state that Lala Sumant Prasad had died 78 years before the date of occurrence. He had also denied that he had not given his field on Batai to Abukim. Rafiq is real brother of Zamil. The appellants had examined Rafiq as DW 2. He tried to state that Lala Sumant Prasad had died 78 years before the date of occurrence. He had also denied that he had not given his field on Batai to Abukim. Rafiq is real brother of Zamil. The learned Sessions Judge has rightly stated in his judgment that taking of crop from Lala Sumant Prasad Jain was loosely described by Majeed. Sometime, even after death, the ownership of the field is associated with the dead persons and it takes time for the villagers to associate with the new descendent owners. Thus the statement of Rafiq is of no help to the appellants. I do not find any justification to disbelieve the statement of this witness Majid His name finds place in the first information report which was lodged quite promptly. It has not been shown that the name of Majid has been introduced as a witness after consultation with the witness and after he has agreed to become a witness in the matter. 11. Baroo (PW 7) is a last witness. He has stated that he was pealing sugar-cane leaves in the nearby field. He had stated that all the four appellants were possessing lathis. He was cross-examined by the prosecution because he had not stated that Jamil was possessing a Palkati. In order to discredit the presence of this witness at the spot, the defence has examined Haji Sharif who had stated that he had not engaged BAROO for pealing sugar-cane leaves. In his cross-examination, this witness had stated that he could not remember as to which labour was called by him on the date of occurrence for pealing sugar-cane leaves. In these circumstances, it is obvious that he could not remember that he had not called BAROO on the date of occurrence. The statement of Haji Sharif is only with an intention to oblige the appellants by making them escape the effect of the statement of BAROO. 1 find that the statement of BAROO as far as it pertains to the causing of hurt by the appellant is concerned is believable. 12. It is true that sickle was not found at the spot and it was not taken into possession by the Investigating Officer. 1 find that the statement of BAROO as far as it pertains to the causing of hurt by the appellant is concerned is believable. 12. It is true that sickle was not found at the spot and it was not taken into possession by the Investigating Officer. This omission on the part of the Investigating Officer is not going to make any effect on the prosecution story when the prosecution version is corroborated by the statements of the injured witnesses as well as other witnesses whose presence at the spot cannot be doubted. The lower court had considered the statements of the two doctors and had rightly come to the conclusion that the appellants were guilty of the offence punishable under sections 324 and 325, IPC. 13. This appeal has come for hearing after 12 years. Hence after such a long time it is not desirable to ask the appellants to undergo R I. for one year. The appellants were taken into custody by the lower court on 22-6- 1989. They were granted bail by this Court on 10th July, 1989. It would have taken one or more days for them to get released from the jail. Consequently, they have remained in jail for about 20 days. I feel that keeping in view the circumstances of the case and the nature of the offence, it would be appropriate to reduce the sentence of imprisonment to the period already undergone. However, the sentence of fine should be maintained and each of the appellants must pay it. 14. For the reasons mentioned above, the appeal is dismissed. The sentence of imprisonment is reduced to the period already undergone. The sentence of fine is maintained. The appellants are directed to pay the fine within three months from the date of this order failing which they may surrender before the lower court for undergoing their sentence imposed against them in lieu of fine. Appeal dismissed.