JUDGMENT 1. - The abovenamed accused appellants have filed this appeal against the judgment and order dated 24.2.1982 passed by the learned Additional Sessions Judge, Nagaur in Sessions Case No. 26/81 by which he convicted and sentenced to accused appellants in the following manner:- Name of accused appellant Conviction under section Sentence awarded 1. Birbal Ram 307 IPC 4 Years R.I. and fine of Rs. 100/-, in default of payment of fine, 3 Months R.I. 323 & 324/34 IPC One year R.I. Both sentences were ordered to run concurrently. 2. Ratna Ram 307 IPC 4 Years R.I. and fine of Rs. 100/- in default of payment of fine, 3 Months R.I. 323/34 & 324 IPC One Year R.I. Both Sentences were ordered to run concurrently. Note:- Accused appellants were acquitted of the charges under section 325 and 325/34 IPC. 2. It arises in the following circumstances:- 3. PW 1 Jaganath lodged a report Ex.P/1 in the Police Station Panchodi District Nagaur on 25.1.1981 at about 4.45 PM stating that there is a truck which is used for carrying dairy milk. The driver of the truck is accused appellant Ratna Ram and owner of that truck is accused appellant Birbal Ram. The owner of that truck took 25 litres oil on credit before fifteen days back and he also took some money on loan from PW 3 Rajuram. On 24.1.1981, when PW 3 Rajuram demanded the oil which was taken on loan from him by accused, accused told that there is nothing outstanding against them and there were some hot exchanges between them also. On the same day, in the evening at about 7.00 PM, accused appellants and one more person Ganpat parked the truck in front of the old fort and came in front of the flour mill belonging to the Sunars. They also blew the horn of the truck and asked PW 3 Rajuram to come out to take the oil. Upon this, PW 3 Rajuram, PW 5 Lichmanram and PW 4 Shivnarayan came out. As soon as they came, accused appellant Ratna Ram, who was having Kawada in his hand, gave blow on the person of PW 3 Rajuram by that Kawada and accused appellant Birbal Ram, who was having an iron rod, gave a blow on PW 5 Lichmanram and then, accused Ratna Ram gave a blow on the head of PW 4 Shivnarayan. Thereafter, Dungar Singh, PW 2, Himmatram, PW 6 and PW 8 Bhagirath came there and accused persons ran away from the scene. Bhagirath, PW 8 and Dungar Singh, PW 2 took the injured to the hospital of Nagatir where they were admitted and it was further stated that Birmaram, was armed a report in the police station and since Birmaram, PW 10 does not know full incident, that is why, the report has been lodged now by PW 1 Jaganath. 4. On this report, the police chalked out FIR Ex. P/2 PW 4 Shivnarayan, PW 3 Rajuram and PW 5, Lichmanram were got medically examined and their X-rays were also taken and after usual investigation, police submitted challan against the accused before the court of Magistrate and, thereafter, the case was committed to the court of Session. Thereafter, the learned Sessions Judge vide his order dated 24.7.1983 framed the following charges against the accused appellants:- 1. Birbal-under sections 307, 323, 324/34, 325 2. Ratna Ram-under sections 307, 323, 324, 325/34 5. The charges were read over and explained to the accused appellants, who denied the charges and claimed trial. Thereafter, as many as 16 witnesses were examined on behalf of the prosecution and several documents were got exhibited and statements of accused were recorded under section 313 Cr.P.C. and 13 documents were produced and three witnesses were produced in defence by the accused appellants before the lower court. 6. After recording evidence and conclusion of trial, the learned Sessions Judge vide his judgment and order dated 24.2.1982 convicted and sentenced the accused appellants in the manner as stated above.The learned Sessions Judge vide his judgment dated 24.2.1982 came to the following conclusions:- 1. That though the prosecution witnesses have not explained the injuries on the person of accused appellants, but this fact does not affect the prosecution case at all. 2. That no right of private defence is available to the accused appellants. 3. That it is proved that the accused persons caused injuries on the person of' PW 3 Rajuram and PW 4 Shivnarayan with an intention to murder them. 4. The offence under section 323 IPC also proved against the accused appellant Birbal, but against accused appellant Ratnaram, offence under section 323/34 IPC is proved. 5. 3. That it is proved that the accused persons caused injuries on the person of' PW 3 Rajuram and PW 4 Shivnarayan with an intention to murder them. 4. The offence under section 323 IPC also proved against the accused appellant Birbal, but against accused appellant Ratnaram, offence under section 323/34 IPC is proved. 5. That offence under section 324 IPC is proved against accused appellant Ratna Ram for the injuries of PW 3 Rajuram, but against to accused appellant Birbal offence under section 324/34 IPC is proved. 6. That the learned Sessions Judge in para 29 of the judgment has held that accused appellants caused injuries on the person of PW 3 Rajuram and PW 4 Shivnarayan with intention to murder them, but in para 34 of the judgment, it is held by the learned Sessions Judge that offence under section 307 IPC is proved against the accused appellant for injuries caused by them on the person of PW 4 Shivnarayan. Since accused has been convicted under section 307 IPC, they 20 were not convicted under section 325 and 325/34 IPC. Hence, they were acquitted of the charges under section 325 and 325/34 IPC. 7. That injuries on the person of accused Ratna Ram and Birbal were not caused during the alleged incident, hence, no reliance can be placed on the statements of DW 2 Birbal and DW 3 Ratna and accused we held to be aggressor. On the basis of the above findings, the learned Addl. Sessions Judge vide his judgment and order dated 24.2.1982 convicted and sentenced accused appellants in the mariner stated above. Aggrieved from the said judgment and order dated 24.2.1982 passed by the learned Addl. Sessions Judge, the present appeal has been filed by the accused appellants. 7-8. In this appeal, the learned counsel for the accused appellants has raised the following contentions:- 1. That accused appellants have been wrongly convicted by the learned Sessions Judge for the offence under section 307 IPC, inasmuch as, there was only one injury on the head of PW 4 Shivnarayan and since both accused appellants received many injuries and they have not been explained by the prosecution witnesses, therefore, in light of this, the prosecution case should not be accepted. 2. That in this case, report Ex. P/1 has been lodged with considerable delay and from this point of view, prosecution case should not be accepted. 3. 2. That in this case, report Ex. P/1 has been lodged with considerable delay and from this point of view, prosecution case should not be accepted. 3. That the statement of PW 3 Rajuram was recorded on 25.1.1981 at about 12.35 PM by the Magistrate and his statement is marked as Ex. D/4 acid in that statement, he has stated that accused appellant Birbal gave a Kulhari blow on his head, while in the statement recorded in the Court, PW 3 Rajuram has stated that accused Ratna Ram beat him. Thus there is a material contradiction and similarly, statement of PW 4 Shivnarayan was also recorded by the Magistrate on 25.1.1981 at about 12.40 PM and the same is marked as Ex. D/6. In the said statement, he has stated that four accused persons beat him and he has not mentioned the names of the accused appellants. Hence, the case of the prosecution in light of these two documents should not be accepted. 4. That the injuries on the person of the accused appellants have not been explained by the prosecution witnesses and there is a cross FIR Ex. D/11 and injury report of accused appellant Birbal is Ex. D/12 and that of accused appellant Ratna Ram is D/13 and is light of these, right of private defence was available to the accused appellants and the to learned Addl. Sessions Judge has committed illegality in not giving the benefit of this right to the accused appellants. Therefore, it was argued that the findings of the learned Addl. Sessions Judge by which accused appellant were convicted should be set aside and they should be acquitted of the charges framed against them. 9. On the other hand, the learned Public Prosecutor supports the impugned judgment and order passed by the learned Addl. Sessions Judge.I have heard the learned counsel for the accused appellants and learned Public Prosecutor and perused the record of the case.Before proceeding further, it would be appropriate to discuss first medical evidence in the present case.To prove the injury reports of PW 3 Rajuram, PW 4 Shivnarayan and PW 5 Lichmanram, PW 14 Dr. Vijay Singh has been produced.Injury of PW 4 Shivnarayan10. PW 14 Dr. Vijay Singh has been produced.Injury of PW 4 Shivnarayan10. PW 14 Dr. Vijay Singh states in his examination-in-chief that on 24.1.1981 he examined PW 4 Shivnarayan and found a cross lacerated wound on the left parietal region of scalp 7 cm above the upper border of pinna of left ear. Transfer limb of cross wound is 6 cm x 0.5 cm x Bone deep and longitudinal limp of cross wound is 5 cm x 0.5 cm x Bone deep. Underlying bone is fractured and he has proved his injury report Ex. P/13 and also stated that this injury of PW 4 Shivnarayan was grievous one and in this respect Ex. P/16 may be seen. Thus, the learned Addl. Sessions Judge has rightly held that PW 4 Shivnarayan received grievous injury on his head. Injury of PW 3 Rajuram11. PW 14 Dr. Vijay Singh also examined PW 3 Rajuram and found following two injuries: 1. Incise wound 3 cm x 0.4 cm x bone deep on the left side of the forehead. 2. Lacerated wound 5 cm x 2 cm x bone deep on the left side of the forehead. 12. He has proved Ex. P/17 and he has further stated that injury No. 2 of PW 3 Rajuram was grievous one and in this respect, X-ray report P/18 may be seen. Thus, the learned Addl. Sessions Judge has rightly found that PW 3 Rajuram received two injuries and injury No. 2 which was caused by blunt object is found grievous.Injury of PW 5 Lichmanram13. PW 14 Dr. Vijay Singh has also examined PW 5 Lichmanram and found the following three injuries on his person:- 1. A lacerated would 3.5. cm x 0.2 cm x skin deep on the left parieic,1 region of scalp. 6 cm behind the front line. Longitudinally placed 1 cm left to midline. 2. A lacerated wound 5 cm x 2 cm x bone deep on the right parietal region of scalp, 5 cm behind the hairline. Longitudinally placed, 3.5. cm right to midline. 3. A lacerated wound 3 cm x 0.5 cm x bone deep in the medial aspect of Distal ⅓rd of left index finger. There is fracture of terminal (distal) Phalanx of left index finger. 14. He has proved injury report Ex. Longitudinally placed, 3.5. cm right to midline. 3. A lacerated wound 3 cm x 0.5 cm x bone deep in the medial aspect of Distal ⅓rd of left index finger. There is fracture of terminal (distal) Phalanx of left index finger. 14. He has proved injury report Ex. P/21 of PW 5 Lichmanram and he has further stated that injury No. 3 of PW 5 Lichmanram was found to be grievous as there was fracture of terminal (distal) Phalanx of left index finger. He has also proved X-ray report Ex. P/22.15. PW 14 Dr. Vijay Singh has further stated in his statement that injury No. 2 of PW 3 Rajuram and injury No. 1 of PW 4 Shivnarayan were also found as dangerous to life.16. Before proceeding further, some thing about the injuries on the person of accused appellants may also be mentioned here.17. The injury report of accused appellant Birbal Ram is Ex. D/12, which shows that he was examined on 26.1.1981 and from this injury report, it appears that he received two injuries, (i) lacerated wound on occipital region 15 and (ii) abrasion.18. The injury report of accused appellant Ratna Ram is Ex. D/13 which shows that he received four simple injuries.19. Ex. D/11 is a cross FIR which was lodged by accused Ratnaram against PW 8 Bhagirath, PW 3 Rajuram and wife of PW 3 Rajuram etc. and on this report, police registered a case under sections 147, 336, 342, 427, 323 IPC.20. From the above it appears that some sort of injuries were also found on the person of both accused appellants and FIR Ex D/11 was also lodged by them. In that FIR Ex. D/11, the occurrence is also dated 24.1.1981. 21. Therefore, the findings of the learned Addl. Sessions Judge that the accused did not receive injuries on their person in the incident alleged by the prosecution are not acceptable and it is, therefore, held that both accused appellants received injuries in the same incident.22. The next point to be considered is whether statements of PW 3 Rajuram, PW 4 Shivnarayan and PW 5 Lichmanram should be accepted or not in respect of the fact that who has caused injuries to them and if they are to be accepted to what extent. Injury of PW 3 Rajuram.23. PW 3 Rajuram, in his statement Ex. The next point to be considered is whether statements of PW 3 Rajuram, PW 4 Shivnarayan and PW 5 Lichmanram should be accepted or not in respect of the fact that who has caused injuries to them and if they are to be accepted to what extent. Injury of PW 3 Rajuram.23. PW 3 Rajuram, in his statement Ex. D/4, which is recorded by the Magistrate on 25.1.1981, states that accused Birbal Ram gave a Kuihari blow on his head and he does not say accused Ratnaram also caused injury to him. PW 1, Jaganath, who lodged report Ex. P/1, has clearly stated that accused Ratna Ram caused injuries with Kulhari on the head and eye of PW 3 Rajuram. PW 2 Dunger Singh, whose name is also found in the report Ex. P/1, states that on the. head of PW 3 Rajuram, accused Ratna Ram gave a blow with the back of Kulhari. PW 4 Shivnarayan states that accused Ratna Ram gave a Kulhari blow on the head of PW 3 Rajuram. Similar is the statement of PW 5 Lichmanram.24. PW 3 Rajuram himself states in his statement recorded in the Court that accused Ratna Ram gave a Kawada blow or his head and he does not say accused Birbal caused any injury on his person.25. Thus, from the above it is clear that there is material contradictions between the statements of witnesses. PW 3 Rajuram in his statement Ex. D/4 recorded by the Magistrate has stated that accused Birbal Ram gave a Kulhari blow on his head and he does not say accused Ratnararn also caused injury to him, while in his statement recorded in the Court, he has stated that accused Ratna Ram gave a Kawada blow on his head and he does not say accused Birbal caused any injury on his persons and, therefore, in these circumstances, it is very difficult to say out of two accused persons, who has caused injuries to PW 3 Rajuram.26. It may be remembered that from the statement D/6 of PW 4 Shivnarayan, it appears that four persons were there and from Ex. P/1, it also appears that some persons were also sitting in the truck. In such circumstances, especially when there is contradictions on material point, the case of prosecution with respect to injuries of PW 3 Rajuram cannot be accepted.27. P/1, it also appears that some persons were also sitting in the truck. In such circumstances, especially when there is contradictions on material point, the case of prosecution with respect to injuries of PW 3 Rajuram cannot be accepted.27. PW 4 Shivnarayan, in his statement D/6, which is recorded by the Magistrate on 25.1.1981, states that four persons have beaten him, but he did not know their names. In FIR Ex. P/1, it is stated that accused appellants Ratna Ram gave blow to PW 4 Shivnarayan with the back of Banda. PW 1 Jaganath states that accused Ratna Ram gave a blow with back to Kulhari on the head of PW 4 Shivnarayan. PW 5 Lichmanram, who is injured witness, states that accused Birbal Ram beat PW 4 Shivnarayan with lagga and at the same time, accused Ratna Ram also gave a blow on his head with Kulhari.28. PW 4 Shivnarayan himself states in his statement recorded in court that accused Ratna Ram gave a blow on his head with the back of Kawadi. He further states that in the meantime accused Birbal Ram also came and he gave blow on his head with lagga.29. It may be stated here that PW 4 Shivnarayan has only one injury on his head.30. From the above, it is clear that there are material contradictions in the statements of prosecution witnesses. PW 4 Shivnarayan, in his statement D/6 recorded by the Magistrate, states that out of four persons, he did not know who gave blow to him, while in his statement recorded in the Court, he himself states that he was beaten by accused appellants though he has only one injury on his head and part from this, there is also no similarity in the statements of other prosecution witnesses.31. Thus, the case of the prosecution with respect to injury of PW 4 Shivnarayan cannot be accepted. Injury of PW 5 Lichmanram32. Another injured witness is PW 5 Lichmanram. As already stated above, he received three injuries which were all caused by blunt object and, out of these three injuries, injury No. 3 was found grevious. PW 5 Lichmanram in his statement recorded in Court, states that he was beaten by accused Birbal and all injuries on his person were caused by accused Birbal. The statement of PW 5 is further corroborated by PW 4 Shivnarayan and other witnesses.33. PW 5 Lichmanram in his statement recorded in Court, states that he was beaten by accused Birbal and all injuries on his person were caused by accused Birbal. The statement of PW 5 is further corroborated by PW 4 Shivnarayan and other witnesses.33. Thus, it is held that injuries on the person of PW 5 Lichmanram as mentioned in Ex. P/21, were caused by accused appellant Birbal.34. For causing injuries to PW 5. Lichmanram, the learned Addl. Sessions Judge had come to the conclusion that accused appellant Birbal has committed offence under section 323 IPC.35. Though out of three injuries of PW 5 Lichmanram, injury No. 3 was found grievous one, but since injuries Nos. 1 and 2 were found simple by the learned Addl. Sessions Judge and the learned Addl. Sessions Judge has so come to the conclusion that accused appellant Birbal has committed offence under section 323 IPC, in this appeal now after 19 years, this Court would not like to disturb these findings.36. Thus, from the discussion made above, it is held that the prosecution has failed to prove as to which accused caused injuries on the person of PW 3 Rajuram and PW 4 Shivnarayan and thus, findings of conviction recorded by the learned Addl. Sessions Judge against accused appellant Birbal Ram for the offence under sections 307, 324/34 IPC and accused appellant, Ratna Ram for the offence under sections 307 and 324 IPC are liable to be set aside, but the findings of the learned Addl. Sessions Judge convicting accused appellant Birbal Ram for the offence under section 323 IPC and accused appellant Ratna Ram for the offence under section 323/34 IPC are liable to be upheld.37. From perusing the warrant of the Court, it appears that accused appellant Ratnaram has remained in PC and JC for the period from 16.1.1981 to 5.2.1981, 6.2.1981 to 27.2.1981 and 6.2.1981 to 15.2.1982 and similarly accused appellant Birbal Ram has remained in PC and JC for the period from 26.1.1981 to 5.2.1981 and 6.2.1981 to 27.2.1981 and in my opinion, awarding of sentence to the accused appellants for the above period would be sufficient for the offence under section 323, 323/34 IPC.38. Since the charges under section 307 and 324, 324/34 1PC are not held to be proved against the accused appellants, other contentions raised by the learned counsel for the accused appellants are not being considered. 39. Since the charges under section 307 and 324, 324/34 1PC are not held to be proved against the accused appellants, other contentions raised by the learned counsel for the accused appellants are not being considered. 39. In the result, the appeal filed by the accused appellants Birbal Ram and Ratna Ram is partly allowed ; and 1. the judgment and order dated 24.2.1982 passed by the learned Addl. Sessions Judge convicting and sentencing accused appellant Birbal Ram for the offence under section 307 and 324/34 IPC and accused appellant Ratna Ram for the offence under section 307 and 324 IPC are set aside and they are acquitted of the said charges; 2. the judgment dated 24.2.1982 passed by the learned Addl. Sessions Judge convicting accused appellant Birbal Ram for the offence under section 323 IPC and accused appellant Ratna Ram for the offence under section 323/34 IPC is upheld, but the period of sentence awarded to the accused appellants by the learned Addl. Sessions Judge vide order dated 24.2.1982 for the said offence is reduced to the period already undergone by them. 3. since both the accused appellants are on bail, they need not surrender and their bail bonds stand cancelled. Appeal partly allowed. *******