JUDGMENT 1. - This appeal is directed against the judgment dated June 18, 1980, passed by the Additional Sessions Judge, Nohar, by which the learned Additional Sessions Judge convicted the accused Hanuman under Section 307 IPC and sentenced him to undergo five years' rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine, further to undergo six months rigorous imprisonment. He, however, acquitted the other three accused Hari Singh, Ram Swaroop and Har Lal. 2. Appellant Hanuman, alongwith accused Hari Singh, Ram Swaroop and Har Lal, was tried by the learned Additional Sessions Judge, Nohar, for the offences under Sections 307/34, 325/34 and 324/34 IPC. An FIR of the incident was lodged at Police Station, Bhadra on October 16, 1978 on the basis of the statement of PW 1 Sohan Lal, which was recorded at the Government Hospital, Bhadra. The case of the prosecution, as unfolded in the FIR, is that at about 9.00 p.m. on October 15, 1978, when he was coming from his field, accused Hanuman, Harlal, Ramswaroop and Hari Singh and one more person, armed with Lathis and Sela, inflicted injuries upon him. Hanuman was armed with Lathi, who inflicted an injury on his head and Hari Singh, Ramswaroop and Harlal, who were armed with Sela, inflicted injuries on his legs. On receiving these injuries, he fell down and raised an alarm "MAARE RE MAARE RE", and on hearing the alarm, PW 3 Poorna Ram and PW 2 Ramji Lal came there and rescued him. The cause of this beating, according to the informant, was that sometime before he asked Nathu Ram, the Seeri (partner) of accused Hanuman, Hari Singh, Ramswaroop and Harlal not to take water from the illegal Naka. The prosecution, in support of its case, examined six witnesses. PW 1 Sohanlal is the injured eye witness, while PW 2 Ramjilal and PW 3 Poorna Ram are the two eye witnesses of the occurrence, who came at the scene of the occurrence after the accused gave beatings to PW 1 Sohanlal and rescued him. PW 4 Dr. Vijay Kumar Batra is the Medical Jurist, who examined the injuries of PW 1 Sohanlal at the Government Hospital, Bhadra. PW 5 is Panna Ram, Sub-Inspector of Police, who investigated the case and presented the challan. PW 6 is Dr. PW 4 Dr. Vijay Kumar Batra is the Medical Jurist, who examined the injuries of PW 1 Sohanlal at the Government Hospital, Bhadra. PW 5 is Panna Ram, Sub-Inspector of Police, who investigated the case and presented the challan. PW 6 is Dr. S.L. Kaushik, who took X-ray plates of the injuries of PW 1 Sohanlal and gave his opinion regarding the nature of the injuries. According to Dr. S.L. Kaushik (PW 6), there was a fracture of lower ⅓rd of right and left tibia and, also, a fracture of left front-parietal bone. He, also, found fracture of right 8th rib on the chest of PW 1 Sohanlal. The learned trial Court, after trial, acquitted the other three accused, namely, Harisingh, Ramswaroop and Harlal of the offences under Sections 307/34, 325/34 and 324/34 IPC, but convicted the accused-appellant Hanuman under Section 307 IPC and sentenced him to undergo five years rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine further to undergo six months' rigorous imprisonment. It is against this judgment dated June 18, 1980, convicting and sentencing the accused-appellant that the present appeal has been filed. 3. Heard learned counsel for the appellant and the learned Public Prosecutor. 4. It is contended by the learned counsel for the appellant that the witnesses, produced by the prosecution, are wholly unreliable witnesses and no reliance can be placed on their testimony. There are material contradictions in the statements of the prosecution witnesses. The learned counsel for the appellant has further argued that no independent witness of the locality has been produced though, according to the prosecution itself, the place where the incident took place, the house of other persons are, also, situated, but no witness of the locality has been called and PW 2 Ramjilal and PW 3 Pooran Ram, who are related to PW 1 Sohanlal, were produced though they were not the persons residents of the vicinity and are residents of another area. The learned counsel for the appellant has, also, submitted that the FIR in the present case reached in the Court on October 17, 1978 at about 10.30 a.m. while it was recorded at the Police Station on October 15, 1978, at about 12.30 a.m. though the distance between the police station and the Court has not come in evidence, but it is an admitted fact that the Police Station and the Court, both, are situated within the town of Bhadra and the distance between these two places cannot be more than one kilometre. The learned counsel for the appellant has further argued that according to the prosecution, the accused-appellant Hanuman inflicted only one injury with Lathi on the head of the injured PW 1 Sohanlal and, therefore, the conviction of the appellant under Section 307 IPC is uncalled-for. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned lower Court. 5. I have considered the rival submissions made by the learned counsel for the parties and perused the record of the case as well as the statements of the witnesses, produced by the prosecution. 6. There are three eye witnesses of the occurrence.PW 1 Sohanlal is the injured witness, who has stated that at about thirteen months before, in the night at about 8.00 p.m., he was coming to his house from the field. When he reached near the Nobra of Nand Ram, accused-appellant Hanuman along with Hari Singh, Ram swaroop and Harlal inflicted injuries upon him. Accused Hanuman was armed with Lathi and the remaining three accused were armed with Selas. Hanuman inflicted injury with a Lathi on the left side of his head and the remaining accused persons inflicted injuries by Sela from the front as well as from the reverse side. He raised alarm "MAARE RE MAARE RE", upon which PW 2 Ramjilal and PW 3 Pooran Ram came there and rescued him. If these two persons would not have come and rescued then the accused would have killed him. 7. PW 2 Ramjilal has stated that at about 9.00 p.m. he was coming from the mill. He raised alarm "MAARE RE MAARE RE", upon which PW 2 Ramjilal and PW 3 Pooran Ram came there and rescued him. If these two persons would not have come and rescued then the accused would have killed him. 7. PW 2 Ramjilal has stated that at about 9.00 p.m. he was coming from the mill. When he reached near the Joda (pond) near the Nohra of Nandram he heard the alarm "MAARE RE MAARE RE" when he reached there running, he saw accused Hanuman inflicting injury on the head of PW 1 Sohanlal with a Lathi and the other three accused inflicting injuries by Sela on the legs of Sohanlal. The presence of this witness, at the time of the occurrence, does not appear to be probable. Even as per PW 1 Sohan Lal, he raised alarm after receiving the injury and according to him, only one injury was inflicted by accused-appellant Hanuman on his bead and the remaining injuries were inflicted by other three accused persons, who have been acquitted by the trial Court. When the alarm was raised after receiving the injury, the statement of this witness that he saw accused Hanuman inflicting injury on the head of PW 1 Sohanlal when he reached there after hearing the alarm, does not inspire confidence. Moreover, the house of this witness is not near the house of the complainant PW 1 Sohan Lal and his presence at that time, also, does not appear to be probable. Moreover, according to this witness, he left the cane there and ran towards the place of the incident. A critical reading of the statement of this witness does not inspire confidence and it appears that he is a cooked-up witness, 8. So far as PW 3 Pooran Ram is concerned, he has stated that he was sitting on the Chabutara of his house and heard the cries "MAARE RE MAARE RE". When he went there, he saw accused Hanuman inflicting injury on the head of PW 1 Sohan Lal and the other accused Har Lal, Ram Swaroop and Hari Singh were inflicting injuries on the legs of PW 1 Sohan Lal. He and Ramji Lal rescued the injured. If we see the statement of this witness, the presence of this witness at the scene of the occurrence at the time of the incident, was not probable. He and Ramji Lal rescued the injured. If we see the statement of this witness, the presence of this witness at the scene of the occurrence at the time of the incident, was not probable. He appears to be a chance witness and came there only after hearing the cries. The statement of this witness is, also, not in consonance with the statement of PW 1 Sohan Lal the injured eye witness of the occurrence. According to PW 1 Sohan Lal, he raised alarm only after receiving the injury, while according to this witness when he went there, he saw the accused-appellant Hanuman inflicting injury on the head of Sohanlal. Moreover, according to the prosecution, only one injury was inflicted by accused Hanuman. Therefore, this witness, also, could not have witnessed the inflicting of the injury by the accused-appellant Hanuman on the head of PW 1 Sohanlal. This witness is related to the complainant Sohanlal and, also, does not inspire confidence. Therefore, there remains the statement of PW 1 Sohanlal only, who is the injured eye witness. 9. A lengthy cross-examination has been conducted with PW 1 Sohanlal, but nothing could be elicited to shake the testimony of this injured witness. To me, he appears to be a truthful witness and the injuries received by this witness, justifies his presence at the scence of the occurrence. It is not necessary for me to consider the case of other accused because they have already been acquitted of the offence charged with by the learned Additional Sessions Judge. But so far as the present accused-appellant Hanuman is concerned, the testimony of this witness clearly shows that the accused-appellant Hanuman inflicted an injury with a Lathi on the head of Sohan Lal (PW 1). 10. The learned counsel for the appellant has further argued that the First Information Report in the present case reached in the Court of the Munsif and Judicial Magistrate, Bhadra, on October 17, 1978, at about 11.30 a.m., i.e., after about the delay of 35 hours though the Police Station and the Court are situated within the same town and, therefore, this raises a suspicion on the truthfulness of the prosecution version. It is, no doubt, true that the FIR reached at the Police Station after the delay of 35 hours and a cross-case was, also, filed against the complainant party. It is, no doubt, true that the FIR reached at the Police Station after the delay of 35 hours and a cross-case was, also, filed against the complainant party. Both these circumstances do create a doubt in the prosecution case regarding the initiation of the incident, but from the statement of PW 1 Sohan Lal, it is clear that it was the accused-appellant Hanuman, who inflicted injury on the person of injured Sohanlal (PW 1). 11. Now comes the question; what offence has been committed by the accused-appellant. As per the prosecution case, the accused inflicted one injury on the head of PW 1 Sohanlal and he did not repeat any blow on the person of PW 1 Sohanlal. All the other injuries, according to the prosecution, were inflicted by accused Hari Singh, Ram Swaroop and Harlal, who have been acquitted by the learned lower Court. The accused never repeated the blow. Though the injury inflicted by the accused-appellant Hanuman was on the head of PW 1 Sohanlal, but according to PW 4 Dr. Vijay Kumar Batra, who examined the injured immediately after the occurrence, the injury was grievous in nature only. Though on a Court question, he has stated that the injury No. 1 could cause the death in the ordinary course of nature, but in the cross-examination, he has admitted that in the report he has not made any mention that the injury No. 1 was sufficient in the ordinary course of nature to cause death. He has, further, stated in the cross-examination that if any injury was sufficient in the ordinary course of nature to cause death then he would have mentioned it in the report. He has further stated that if the injuries are sufficient in the ordinary course of nature to cause death then in the report there would have been a mention that the injury was dangerous to life. As no such remark was given by the Medical Jurist in the injury report and even in examination-in-chief he has not stated that the injury was sufficient in the ordinary course to nature of cause death and in this view of matter, it cannot be said that the accused-appellant Hanuman had any intention to kill the injured PW 1 Sohanlal. As no such remark was given by the Medical Jurist in the injury report and even in examination-in-chief he has not stated that the injury was sufficient in the ordinary course to nature of cause death and in this view of matter, it cannot be said that the accused-appellant Hanuman had any intention to kill the injured PW 1 Sohanlal. For proving the case under section 307, IPC, it is necessary for the prosecution to prove that the act of the accused was done with the intention of causing the death or that it was done with the intention of causing such bodily injury as the accused knew to be likely to cause death or was sufficient in the ordinary course of nature to cause death. There is no such attempt on the part of the accused-appellant in the present case, from which it can be gathered that the accused had any intention or knowledge to inflict any such injury which could have resulted in the death of injured PW 1 Sohanlal. If the accused appellant Hanuman had any intention then he had sufficient opportunity to repeat the blow, but as the accused remained satisfied only by inflicting one injury and did not repeat any blow, therefore, the intention of the accused appellant to kill Sohanlal (PW I) cannot be gathered from the circumstances of the case and the accused can be convicted only under Section 325, IPC. The accused-appellant Hanuman is, therefore, acquitted of the offence under Section 307 IPC., but is convicted under Section 325 IPC. 12. The last contention, raised by the learned counsel for the appellant, is that the accused is about 70 years of age and is suffering the agony of prosecution for about last thirteen years. He is not a previous convict nor is any case pending against him, and he therefore, submitted that he may be sentenced to undergo the imprisonment for a term already undergone by him. He is not a previous convict nor is any case pending against him, and he therefore, submitted that he may be sentenced to undergo the imprisonment for a term already undergone by him. Looking to the facts and circumstances of the case, the age of the accused-appellant, the period for which he is suffering the agony of the prosecution and the fact that the accused is neither a previous convict nor is any criminal case pending against him, and the fact that the incident took place at the spur of moment, a cross-case was, also, filed by the accused against the complainant party and the fact that the FIR reached the Court of the Magistrate after the delay of about 36 hours, I think it proper to sentence the accused-appellant Hanuman for the substantive sentence already undergone by him. 13. In the result, the appeal, filed by the accused-appellant Hanu Man, is partly allowed. The accused-appellant is acquitted of the offence under Section 307 IPC., but he is convicted under Section 325 IPC, and I sentence the accused-appellant under Section 325 IPC for the term already undergone by him. He is on bail. He need not surrender. His bail bonds are discharged.Appeal partly allowed. *******