Judgment 1. The petitioners / accused 1 and 2 have preferred the revision, aggrieved against the dismissal of the appeal in C.A.No.4 of 1997 by the learned Principal Sessions Judge, Dindigul confirming the conviction and sentence imposed by the learned Principal Assistant Sessions Judge, Dindigul in S.C.No.108 of 1995, wherein the 1st accused under Sec.307, I.P.C. and the 2nd accused under Sec.307 read with 109, I.P.C. were found guilty and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000 in default to suffer rigorous imprisonment for 15 months. 2. The case of the prosecution in brief is as follows: On 11.9.1992 at about 9.00 a.m. there was wordy alteration relating to the petitioners and P.W.I Gopal relating to the cutting offence. On 12.9.1992 when witness Mohan was proceeding to the shop, he was threatened by the petitioners. On the morning of 13.9.1992 at about 00.30 hours when prosecution witnesses Gopal (P.W.I) Mohan (P.W.10) and their father were sleeping in the farm shed, the 1st accused armed with aruval accompanied with the 2nd accused came there and at the instigation of the 2nd accused, the 1st accused cut witness Mohan with Aruval on his left and right shoulder and also on the neck. P.W.1 gave a complaint under Ex.P-1. Ex.P-7 is the printed first information report. P.W.11 investigated the case and after completing the investigation, laid charge sheet against the accused. 3. On behalf of the prosecution, P.Ws.1 to 11 were examined and Exs.P-1 to 8 were marked and M.Os.1 to 10 were produced. Believing the case of prosecution evidence, both the courts found the petitioners guilty, convicted and sentenced them as aforesaid and aggrieved against this, they have come forward with the present revision. 4. The learned counsel for the petitioners contended that the courts below erred in relying upon the evidence of P.Ws.1, 3 and 10 ignoring the material contradictions. They are only interested and partisan witnesses. There is inordinate delay in sending the first information report to the concerned court. There was also delay in giving the complaint to the police and they were not properly explained by the prosecution. No corresponding injury has been noticed by the doctor relating to the evidence of the eye witnesses. The weapon said to have been used by the 1st accused viz., aruval was also not seized. There was also delay in giving the complaint to the police and they were not properly explained by the prosecution. No corresponding injury has been noticed by the doctor relating to the evidence of the eye witnesses. The weapon said to have been used by the 1st accused viz., aruval was also not seized. As there was previous enmity, there is every possibility for the petitioners being implicated in the case. The prosecution has miserably failed to prove the case against the petitioners. 5. P.Ws. 1 and 10 are brothers. P.W.1 alone gave a complaint under Ex.P-1 relating to the occurrence since P.W. 10 was not in a position to give any statement. P.W.3 is the mother of P.Ws.1 and 10. P.W.2 is also related to the injured person. There is no dispute that some time prior to the occurrence, there was wordy altercation between the family of P.W.I as well as the petitioners relating to the cutting offence. According to the prosecution, on the relevant date when P.Ws.1, 10 and their father was sleeping in the farm shed, the 1st accused armed with aruval accompanied with the 2nd accused came there and at the instigation of the 2nd accused, the 1st accused cut with aruval on the left and right shoulder as well as the neck of P.W. 10 and as a result of which, he sustained grievous and simple injuries. The accused have committed the offence with an intention to murder P.W.10. The enmity between the parties is practically conceded. 6. According to the prosecution case, the occurrence took place at about 00.30 hours on 13.9.1992. As the occurrence took place in the farm shed of P.Ws.1 and 10, naturally the incident could not have been witnessed by any other independent witnesses. P.Ws.1 and 10 speak about the incident and they are the competent persons. The light was also burning at the relevant point of time has been spoken to by the prosecution and documents were also filed to prove the same. There cannot be any dispute relating to the identity of the assailants. Moreover, there was no necessity for P.W. 1 to implicate the petitioners, leaving the real culprit. Simply because the prosecution case mainly rests upon interested witnesses, their evidence cannot be brushed aside. No doubt, their evidence has to be weighed with due care and caution. There cannot be any dispute relating to the identity of the assailants. Moreover, there was no necessity for P.W. 1 to implicate the petitioners, leaving the real culprit. Simply because the prosecution case mainly rests upon interested witnesses, their evidence cannot be brushed aside. No doubt, their evidence has to be weighed with due care and caution. There is no material discrepancy in their evidence relating to the incident. 7. The learned counsel for the petitioners pointed out that at one point of time it is stated that P.W. 1 and his father were sleeping in one cot, but subsequently stated that only one person was lying in the cot and another person was lying in the ground. It is only a minor contradiction and this cannot be made use of to disbelieved the prosecution case. However, it is manifestly clear that P.Ws.l, 10 and their father were present at the relevant point of time. Immediately, after the incident, P.W. 10 was taken to the nearby hospital and subsequently for further management, he was shifted to the Government Hospital at Madurai. The complaint Ex.P-1 was recorded from P.W.1 since P.W.10 was not in a position to give any statement. Ex.P-1 was recorded at about 9.00 a.m. on the next day and the case was registered at about 10.30 a.m. on the same date. It is further stated that Ex.P-1 reached the court only on the next day at about 3.50 p.m. Because of this, the learned counsel pointed out that there is inordinate delay not only in giving the complaint but there is inordinate delay also in reaching the court and there is no satisfactory explanation on the part of the prosecution. 8. It is necessary to point out that the occurrence took place during midnight and naturally it would take considerable time for them to make arrangements for taking the injured to the hospital. The hospital authorities also would have sent communication to the concerned station. But if there is any delay on the part of the police in coming to the hospital and recording the statement, it cannot be made use of the to threw out the prosecution case. Under the circumstances, at the earlest point of time, Ex.P-1 was recorded from P.W.1 similarly there is some delay in Ex.P-1 reaching the court, but because of this delay also, the case of the prosecution cannot be disbelieved. 9. Under the circumstances, at the earlest point of time, Ex.P-1 was recorded from P.W.1 similarly there is some delay in Ex.P-1 reaching the court, but because of this delay also, the case of the prosecution cannot be disbelieved. 9. The next contention put forward by the learned counsel is that there is no specific evidence to implicate the 2nd accused in this case. No doubt, the eye witnesses stated that the 2nd accused was also present when the 1st accused assaulted P.W.10 with aruval. It is significant to point out that P.W.I in the course of evidence stated that the 2nd accused was simply present whereas P.W.10 in his statement stated that the 2nd accused instigated the 1st accused to cut. It appears to be a material contradiction in the evidence of P.Ws.l and 10, thereby indicating that they want to implicate the 2nd accused in this case. 10. Considering the fact that there is already enmity between the parties and also the material contradiction in the evidence of P.Ws.l and 2, I am of the view that the 2nd accused has been implicated in this case and, as such, there is no satisfactory evidence to bring home the guilt against the 2nd accused in this case. However, there is consistency in the version of P.Ws. 1 and 10 relating to the part played by the 1st accused in this case. Their evidence is also fully supported by the medical evidence. The Radiologist was also examined to prove about the nature of injury. No doubt, in Ex.P-1, it is stated that the 1st accused again attempted to cut and while warding of, P.W.10 had sustained some injury in the right hand. But no corresponding injury was seen. As adverted to, the occurrence took place during midnight and, as such, every incident cannot be explained fully and some margin has to be given relating to the evidence of the prosecution witnesses. The doctor had also noticed injuries on the left and right shoulder as well as the neck, thereby indicating the intention of the 1st accused in cutting P.W.10 with an aruval. It is because of this only, both the courts came to the conclusion that the 1st accused has committed an offence under Sec.307, I.P.C. There is absolutely no illegality or infirmity relating to the part played by the 1st accused in this case. It is because of this only, both the courts came to the conclusion that the 1st accused has committed an offence under Sec.307, I.P.C. There is absolutely no illegality or infirmity relating to the part played by the 1st accused in this case. However, there is no acceptable material to come to the conclusion that the 2nd accused has committed any offence and, as such, the conviction and sentence imposed on him are liable to be set aside. 11. The learned counsel further pointed out that the sentence imposed on the accused is excessive. The first petitioner is found guilty under Sec.307, I.P.C. and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000 each. The learned counsel pointed out that the 1st petitioner was in custody for a period of 42 days and this also can be taken into consideration. It is further stated that the weapon has not been seized by the prosecution. The non-seizure of the weapon by the prosecution is not a ground to disbelieve the prosecution case. Taking into consideration the fact that the 1st accused with a deadly weapon viz., aruval caused hurt not only on the neck but also on the left and right shoulder, one can easily visualise the intention on his part, and when once it is pointed out that the 1st accused has committed an offence under Sec.307, I.P.C. the sentence should be severe. The ends of justice would be best met by imposing the sentence of three years rigorous imprisonment for the 1st accused. 12. In the result, the revision is allowed in part and the 2nd accused is found not guilty under Sec.307 read with 109, I.P.C. and the conviction and sentence imposed on him are set aside and he is acquitted. So far as the 1st accused is concerned, the conviction is confirmed but the sentence is modified to suffer rigorous imprisonment for three years. The fine imposed by the courts is confirmed. Consequently Crl.M.P.No.6467 of 1997 is closed.