JUDGMENT 1. - By his judgment dated 9.8.1983 learned Additional Sessions Judge, Raisinghnagar convicted appellant Om Prakash for offence under Section 326 IPC and sentenced to four years rigorous imprisonment with a fine of Rs. 2000/- and in default to undergo six months' rigorous imprisonment and convicted appellant Shankar for offence under Section 323 IPC and punished him with a fine of Rs. 500/- and in default to undergo simple imprisonment for two months. They have assailed the said convictions and sentences in this appeal. 2. Briefly stated, Prithvi Raj lodged a report at police station Vijay Nagar on 1.9.1981 at 5.00 A.M. to the effect that he is the eldest brother in his family. His three brother Mani Ram, Shenker and Om Prakash live separately but they are neighbours to each other. About eight months before Mani and Om Prakash were married and at that time Om Prakash had borrowed some wooden planks from him, Prithvi Raj demanded them back and on 31.8.1981 at about 9.00 P.M. Om Prakash exhorted him. Prithvi Raj did not come out of his house but Mani Ram went to Om Prakash to intervene. Then Om Prakash told Mani Ram that he would beat Prithvi Raj by lathis and that Mani Ram used to favour Prithvi Raj and inflicted a kasia blow on the head of Mani Ram. Shankar also gave blows by lathi to Mani Ram. Mani Ram fell down on the ground even then they went to giving beatings to him. Prithvi Raj then intervened and then both the appellants wanted to beat him. But he entered into the house and Om Prakash and Shankar came therein. They gave beatings to his wife Smt. Kailash. Om Prakash also gave beatings to wife of Mani Ram. Mani Ram was brought from the place of occurrence by two ladies. In the morning Mani Ram was shifted to hospital and then report was lodged. 3. Police registered a case under Sections 307, 448 and 323 IPC and started investigation. Site plan Ex.P/7 was prepared along with memo Ex.P/8. Blood smeared soil as well as control soil were seized. Shirt of Mani Ram was seized vide Ex.P/11. Appellants were arrested. Om Prakash made a disclosure statement on the basis of which kasa Art. 2 was recovered on the basis of disclosure statement of Shankar. Site plan Ex.P/7 was prepared along with memo Ex.P/8. Blood smeared soil as well as control soil were seized. Shirt of Mani Ram was seized vide Ex.P/11. Appellants were arrested. Om Prakash made a disclosure statement on the basis of which kasa Art. 2 was recovered on the basis of disclosure statement of Shankar. Injuries of Mani Ram as well as two ladies were examined by a doctor. X-ray examination of Maniram's skull was done. It was found that there was a linear fracture of frontal bone on right side. The shirt of injured Mani Ram was sent to the FSL on which human blood was found. 4. After investigation challan was submitted before the Magistrate having jurisdiction who committed the case to the learned Additional Sessions Judge. Learned Additional Sessions Judge framed charges under Sections 307/34, 326/34 and 323 IPC against appellant Shankar and under Sections 307, 326 and 323/34 against Om Prakash Both of them denied their indictment and claimed trial. Prosecution examined as many as 11 witnesses in support of its case. Accused appellants were examined under Section 313 Cr.PC. Their defence was that Mani Ram wanted to plough the field all alone. He came to the field under intoxication and when Smt. Rukma and Smt. Kailash were taking him, he fell down on a kassi and suffered injury. They have been implicated because of land dispute. They examined two witnesses in defence. Learned Additional Sessions Judge, after hearing both the parties. convicted and sentenced the appellants as stated above. 5. I have heard the learned counsel for the appellants as well as learned Public Prosecutor at length. 6. Learned counsel for the appellants did not challenge the conviction and sentence of appellant Shankar seriously but for Om Prakash he contended that since there prevailed darkness at the time of occurrence, nobody could have seen the occurrence. He also submitted that as per report of expert there already existed an old fracture in the skull of Mani Ram and linear fracture detected by PW 11 Dr. Ram Lal Goyal in the head of Mani Ram might have been the earlier one which might not have pacified and, therefore, it cannot be regarded as a grievous injury. He further submitted that Mani Ram was not present when Dr. Ram Lal Goyal PW 11 was examined and identity of Mani Ram is, therefore, doubtful. Ram Lal Goyal in the head of Mani Ram might have been the earlier one which might not have pacified and, therefore, it cannot be regarded as a grievous injury. He further submitted that Mani Ram was not present when Dr. Ram Lal Goyal PW 11 was examined and identity of Mani Ram is, therefore, doubtful. He, therefore, submitted that in case the injury is not regarded as grievous, appellant Om Prakash cannot be punished for offence under Section 326 IPC and at the most a case under Section 324 IPC is made out against him for which the sentence of the period already undergone is sufficient. 7. On the other hand learned Public Prosecutor has supported the judgment of learned trial court. 8. So far as appellant Shankar is concerned, there is positive evidence that he inflicted injuries by lathi to Smt. Kailash and Smt. Rukma. PW 5 Smt. Kailash stated that it was Shankarial who gave her a lathi blow when she went out of the house matter hearing noise. Prithvi PW 8 corroborated that Shankarlal inflicted a lathi blow on his wife. The injury on the person of Smt. Rukma is said to have been caused by Om Prakash. Both of them were examined by Dr. Suresh Kumar Sharma PW 2 according to whom Kailash had a bruise mentioned in Ex.P/5. Thus it is proved that it was Shankar who so committed an offence under Section 323 IPC. Learned counsel for the appellants rightly did not press the case of this appellant. Mani Ram has stated that Shankar inflicted 5-7 blows by lathi. 9. So far as appellant Om Prakash is concerned, we have first to see as to what is evidence against him. PW 7 Mani Ram the most important witness. He has stated that Om Prakash borrowed five wooden planks at the time of his marriage but he did not return. Prithvi asked four or five times but even then they were not returned. At about 9 P.M. on the day of incident Om Prakash was standing in the chowk infront of his house and was abusing Prithvi. At that time Prithvi was at his residence. Prithvi asked four or five times but even then they were not returned. At about 9 P.M. on the day of incident Om Prakash was standing in the chowk infront of his house and was abusing Prithvi. At that time Prithvi was at his residence. Mani Ram then came out of his house and went to Om Prakash and asked him not to quarrel as they were all brothers Thereupon Om Prakash told him that since he was to favouring Prithvi he should be taught a lesson. Om Prakash then inflicted a kasia on his head. Thereupon he fell down. When cross examined, Mani Ram maintained that On Prakash gave a kasia blow ors his head but did admit that there was darkness but he maintained that when he went to Om Prakash, Prakash was having a kasia in his hand. Thus, it is found from his statement that he suffered an injury of kasia which is a sharp edged weapon caused by Om Prakash. 10. Prithvi PW 8 who lodged the FIR, stated that Om Prakash was abusing while standing in the chowk in front of his gate. When Mani Ram went to him not to do so then appellant Om Prakash inflicted a kasia blow on the head of Mani Ram. Prithvi also reached there. Then both the appellants chased him but he saved himself. He further stated that it were the two ladies who brought Mani Ram to his house and then this witness tock Mani Ram to Vijay Nagar hospital and also reported to the police. He maintained in the cross examination that occurrence took place in the lane where he was present at the time when appellant Om Prakash inflicted kassi biow on Mani Ram. 11. PW 5 Smt. Kailash did see a kassi in the hand of Om Prakash but admitted in cross examination that when she went out of her house she found that Mani Ram had already suffered injuries. So she is not the eye-witness of the injury caused on the head of Mani Ram. 12. PW 6 Smt. Rukma Devi who is the wife of Mani Ram stated that when Mani Ram intervened, appellant Om Prakash inflicted a kasia blow on his head. She maintained in the cross examination that quarrel took place for about 15-20 minutes during which Om Prakash inflicted kassi blow on the as head of Mani Ram. 12. PW 6 Smt. Rukma Devi who is the wife of Mani Ram stated that when Mani Ram intervened, appellant Om Prakash inflicted a kasia blow on his head. She maintained in the cross examination that quarrel took place for about 15-20 minutes during which Om Prakash inflicted kassi blow on the as head of Mani Ram. My attention was drawn to her cross examination when she stated that when she came out of her house she saw both the appellants running. Since they were near relations she could very well identify them and she has stated that Om Prakash came towards her, inflicted a blow and then entered into the house of Prithvi. Therefore, it was possible for her to see that appellant Om Prakash was having a kassi in his hand. 13. It was contended that there was darkness and the witnesses could not have seen appellant Om Prakash inflicting injuries. Shri Venkateshwar Shatabdi Panchang edited by Pandit Ishwar Dutt Sharma published by Shri Venkateshwar Press Bombay (1st Edition 1962) has been seen by me. According to it moon was visible at about 9.30 PM. on 31.8.1981. The occurrence is said to have taken place at about 9.00 P.M. but nobody has stated that it was exactly 9.00 P.M. It is PW 5 Smt. Kailash who stated that the occurrence took place at about 7 or 8 P.M. According to PW 6 Rukma Devi it so was the time when sun was setting Mani Ram stated that it was 9.00 P.M. and according to PW 8 Prithvi who is the first informant it was at about 8 or 9 P.M. when the occurrence took place. So when there is no definite evidence. it cannot be presumed that it was complete darkness and the witnesses could not have identified the appellants. Appellants are relations of the witnesses and are real brothers of Mani Ram and Prithvi they could be very well Identified. Smt. Rukma Devi and Smt. Kailash also knew Om Prakash from before and it was possible for them to identify in the darkness though accordingly to them it was the time when sun set when occurrence took place. If it was so, then they could have very well identified the appellants. Accused appellant Om Prakash does not get any benefit of this argument. 14. If it was so, then they could have very well identified the appellants. Accused appellant Om Prakash does not get any benefit of this argument. 14. So far as injury No. 1 on the head of Mani Ram is concerned, it is an incised wound caused by sharp weapon. It was of the size of 21/2"x1/2"x bone deep obliquely on the centre of scalf as per Dr. Suresh Kumar Sharma PW 2 who examined him on 1.9.1981 at 4.45 PM. and prepared injury report Ex.P/3. It was suggested to him that this injury could be caused by fail on kassi; but he replied in negative. 15. Two witnesses brought in defence DW 1 Ishar and DW 2 Kalu Ram have stated that Mani Ram was under Intoxication and fell down on a kassi. In case the injury could be caused by fall on kassi as stated by DW 1 Ishar; then there should not be only one injury as stated by him. According to Ishar DW 1, Mani Ram was himself having a kassi which fell when Prithvi's wife and Mani Ram's wife were taking him and then Mani Ram suffered injury. This theory is not acceptable firstly because none of these witnesses were suggested such a theory and secondly question of fall of kassi from the possession of Mania Ram himself does not arise as he was caught by as many as three persons who were carrying him as stated by this witness. Then thirdly DW 2 Kalu Ram has given another story that Mani Ram was being carried by Prithvi, his wife and Mani Ram's wife. He does not say that Mani Ram was himself carrying a kassi instead he says that Kassi was lying on the ground on which Mani Ram fell. He saw it as per his statement from outside of his door. If the argument of learned counsel is accepted that it was a dark night then DW 2 Kalu Ram could not have seen even the fall of Mani Ram. So the theory of defence is an after thought and cannot be accepted. 16. It is PW 11 Dr. Ram Lal Goyal who stated that X-ray plates No. 1072 and 1072-A were taken in his presence in the Radiology Department of Ganganagar. He saw a linear fracture on right frontal bone of Mani Ram. He mentioned identification mark of Mani Ram in Ex.P/16. 16. It is PW 11 Dr. Ram Lal Goyal who stated that X-ray plates No. 1072 and 1072-A were taken in his presence in the Radiology Department of Ganganagar. He saw a linear fracture on right frontal bone of Mani Ram. He mentioned identification mark of Mani Ram in Ex.P/16. It is fount front Ex.P/16 that there was a tatoo mark of OM on right hand dorsum of Mania Ram. It was not necessary to bring injured Mani Ram before this witness when he was examined in the court. There is no such law of evidence or of prudence. The case of Mani Ram was referred to the hospital of Ganganagar for X-ray examination by medical in charge of Government Dispensary Srivijay Nagar. It is so stated by PW 2 Dr. Suresh Kumar Sharma. Therefore, the argument of the counsel does not help appellant Om Prakash. 17. It was contended by learned counsel for the appellants that there as already existed fracture in the skull of Mani Ram as stated by PW 11 Dr. Ram Lal Goyal. I have carefully gone through the statement of Dr. Ram Lal Goyal. He admitted that there was an old healed calcified fracture on the right parietal bone but he used eight lead pieces to localise the injury. According to him the old healed calcified fracture was on some other bone. So to say that this fracture which was found by Dr. Ram Lal Goyal on 7.9.1981 was caused earlier and not in this incident, is not a helpful argument to the appellant. From the above evidence I find that appellant Om Prakash inflicted a kassi blow on the head of Mani Ram who suffered a grievous injury by sharp weapon. 18. PW 1 Shankartal and PW 3 Tara Ram were the attesting witnesses of the memo of recovery of kasia but they have not supported the case of the prosecution and they were declared hostile. it is PW 9 Mani Ram, Investigating Officer, before whom appellant Om Prakash made a disclosure statement which was recorded in Ex.P/15 and on its basis kassi was recovered vide Ex.P/2. Kassi is not blood stained. So its recovery is not much material. The shirt of Mani Ram was seized vide Ex.P/11 and chemical to examiner's report Ex.P/19 proves that blood was found on it. Ex.P/20 proves that it was human blood. Kassi is not blood stained. So its recovery is not much material. The shirt of Mani Ram was seized vide Ex.P/11 and chemical to examiner's report Ex.P/19 proves that blood was found on it. Ex.P/20 proves that it was human blood. Blood smeared sail was also seized from the place of occurrence vide Ex.P/9 by Mani Ram PW 9 and the same was sent for chemical examination. The report Ex.P/19 and Ex.P/20 prove that human blood was found. Thus it is well proved that appellant Om Prakash committed offence under Section 326 IPC. 19. So far as sentence is concerned, it has been submitted by learned counsel that injured and the appellants are real brothers and that appeal has taken a long period to be decided. In the circumstances I am of the view that sentence of four years may be reduced to the period of two years under Section 326 IPC but the fine should be enhanced from As. 2000/- to Rs. 5000/-.Consequently, appeal is partly allowed. While maintaining conviction of appellant Om Prakash he is sentenced to two year' rigorous imprisonment with a fine of Rs. 5,000/- and in default to undergo six months rigorous imprisonment. He is on bail. His bail bonds are cancelled. He is directed to surrender before learned trial Judge who shall take him in custody and send to jail so that he may undergo remaining part of sentence. Appeal of Shankar is dismissed.Appeal of `O' Partly allowed - Appeal of `S' dismissed. *******