Judgment Amar Bir Singh Gill, J. 1. This appeal is against judgment dated 29.9.1992 acquitting accused-respondents Bir Singh and his wife Charanjit Kaur of charges under Sections 326/325/324 read with section 34 of the Indian Penal Code, Section. 2. Briefly stated, the case of the prosecution against Bir Singh and his wife Charanjit Kaur aforesaid was that on 10.11.1987, at about 5.00 p.m., Balkar Singh was standing in the street in front of his house and so also Bhupinder Singh and Sukhwinder Singh were standing in the street in front of their house. In the meantime, Bir Singh accused-respondent armed with gandasa and in drunken condition came out of his house in the same street and started hurling abuses at Balkar Singh. When Balkar Singh questioned him as to why he is abusing him and entered his house, then Bir Singh accused-respondent gave two blows with gandasa simultaneously from its sharp side on the neck and head of Balkar Singh as a result of which he fell down. Bir Singh gave two more gandasa blows from its sharp side on his head. Balkar Singh raised alarm for his safety. Thereafter, Charanjit Kaur wife of Bir Singh also came out from her house with a stick in her hand and gave blow on the left elbow of Balkar Singh. Bhupinder Singh, who was sitting nearby, tried to intervene. Bir Singh then gave a gandasa blow from its sharp side on the right to of Bhupinder Singh. Sukhwinder Singh raised alarm. Charanjit Kaur and Bir Singh returned to their house with their respective weapons. Bir Singh and his wife had caused injuries to Balkar Singh because 10-12 days earlier Charanjit Kaur had quarrelled with Surinder Kaur wife of Balkar Singh and Balkar Singh had reported the matter of the local panchayat which pacified the parties. After the occurrence, the injured were brought to Dayanand Medical College and Hospital, Ludhiana, for treatment. Next day morning, at about 11.30 a.m., Balkar Singh made statement Exhibit PA regarding the occurrence before Assistant Sub Inspector Nirbhey Singh on the basis of which a case was registered against Bir Singh and his wife Charanjit Kaur. 3. Before the trial Court, the prosecution produced Bhupinder Singh as PW1 and Balkar Singh as PW2. Dr. Paramvir Singh, who conducted medico-legal report in respect of injuries of on Balkar Singh, and Dr. 3. Before the trial Court, the prosecution produced Bhupinder Singh as PW1 and Balkar Singh as PW2. Dr. Paramvir Singh, who conducted medico-legal report in respect of injuries of on Balkar Singh, and Dr. S.K. Dhawan, who had prepared the injury report of Bhupinder Singh, were not produced by the prosecution in the witness-box and instead Dr. Murari Lal, Registrar Orthopedics of Dayanand Medical College and Hospital, Ludhiana, was examined as PW5 who made statement from the record proving medico-legal report Exhibit PW5/A and pictorial diagram pertaining to the injuries of Bhupinder Singh PW and likewise injury statement Exhibit PW5/B and pictorial diagram Exhibit PW5/B/1 in respect of the injuries observed on the body of Balkar Singh PW were also proved. 4. Bir Singh accused-respondent took the following plea in his statement under section 313 of the Code of Criminal Procedure which was also taken by Charanjit Kaur accused-respondent :- "On the day of occurrence, my wife Charanjit Kaur was standing in the lane outside her house. Balkar Singh teased her. At this, she raised an alarm. At that time, I was inside the house. On hearing it, I came out and checked Balkar Singh from doing so, but he did not relent. Instead he picked up a quarrel with me and attacked me. Out of fear, my wife ran inside the house. Bhupinder Singh witness, who belonged to the party of Balkar Singh, also opened an attack on me in support of Balkar Singh. I might have caused minor injuries to Balkar Singh while I was defending myself. I am innocent. A false case has been registered against me and my wife." 5. They produced DW1 Shisha Singh s/o Piar Singh and DW2 Malook Singh s/o Dewa Singh in support of their plea under section 313 of the Code of Criminal Procedure. 6. The learned Magistrate dismissed the case of the prosecution mainly on the ground that the prosecution failed to prove the injuries on the person of both the prosecution witnesses since the doctors who had examined them were not produced in the witness-box, besides the x-ray report in respect of the injuries on Balkar Singh was not proved. 7. We have heard learned counsel for the parties and perused the record of the case. 8. 7. We have heard learned counsel for the parties and perused the record of the case. 8. The occurrence took place in the broad day light at about 5.00 p.m. in front of the house of Balkar Singh injured in which he received injuries. Bhupinder Singh, a neighbour of Balkar Singh, living in the same street also received injuries when he tried to intervene and stop Bir Singh accused- respondent assaulting Balkar Singh. The occurrence has not been disputed by the accused-respondents. In the plea taken by them in their statements under Section 313 of the Code of Criminal Procedure, reproduced above, although they have not specifically stated if they had caused injuries to Balkar Singh and Bhupinder Singh PWs, yet vaguely accepted the injuries on their person by saying that he (Bir Singh) might have caused minor injuries to Balkar Singh while defending himself. Admittedly, in this case the accused-respondent Bir Singh or his wife Charanjit Kaur did not receive even scratch on their bodies whereas Balkar Singh received the following injuries as per injury statement Exhibit PW5/B :- "1. Moderate amount of diffuse swelling around the left elbow. Two circular marks about 1/2 cm each in diameter 1" appear placed side by side over the posterior aspect of left elbow over the olecranon. A 1 cm gap palpable over the olecranon surface. Abnormal mobility, crepitus present over the olecranon. 2. A 4 cm cut wound with lacerated margins, 1 cm deep, placed obliquely 8 cms below the occipital protruberance. 3. A 4 cm lacerated wound, 3 mm deep placed vertically over the left side of forehead, 1 cm from the mid line. 4. A 8.0 cm lacerated cut wound, bone deep, stripping of the periosteum placed over the left scalp 9 cms from left eye brow 2.4 cm from mid line. 5. A lacerated wound 3.0 cm in length, 2 mm deep, placed 3 cms away from upper end of wound No. 1. 6. A 7.0 cms long lacerated cut wound on right side of scalp 4.0 cm away from mid line, 10 cms above the right eye brow, bone deep. 9. Bhupinder Singh received the following injury as per injury statement Exhibit PW5/A;- "Obliquely placed sharp cut wound cutting tendon and bone deep of calcaneum posteriorly. Contamination minimum. Crushing, minimum. Tendo- accules along with posterior 1/3rd of calcanum is sharply cut. Blood ooze + ve. 9. Bhupinder Singh received the following injury as per injury statement Exhibit PW5/A;- "Obliquely placed sharp cut wound cutting tendon and bone deep of calcaneum posteriorly. Contamination minimum. Crushing, minimum. Tendo- accules along with posterior 1/3rd of calcanum is sharply cut. Blood ooze + ve. Full Active planter flexion not possible." 10. The testimony of Bhupinder Singh and Balkar Singh injured are consistent in so far as the manner which Bir Singh accused-respondent attacked Balkar Singh and caused injuries by gandasa blows with its sharp side and also the blow given with stick by Charanjit Kaur accused-respondent on the left elbow of Balkar Singh, besides gandasa blow injury from sharp side on the toe of Bhupinder Singh PW. The learned Magistrate also rejected the prosecution case for non-examination of Sukhwinder Singh PW who also was standing along with Bhupinder Singh and had raised alarm noticing Bir Singh accused-respondent causing injuries to Balkar Singh PW. It is not necessary for the prosecution to examine each and every witness of the occurrence but for the material witnesses and in this case both the witnesses produced by the prosecution had received injuries at the hands of the accused-respondents and they are the stamped witnesses of the occurrence. Non-production of Sukhwinder Singh does not affect the case of the prosecution, moreso when the time and place of occurrence is not disputed nor the injuries received by these two PWs in this case. The defence witnesses only supported the plea of the accused when they stated that Balkar Singh had teased Charanjit Kaur and on her alarm Bir Singh accused-respondent arrived and questioned Balkar Singh whereupon a scuffle ensued. They, however, admitted that during the investigation of the case, they did not come forward and informed the police about the manner in which the occurrence took place nor they complained to the local panchayat about alleged false implication of Bir Singh and his wife in this case. The motive for the occurrence although is immaterial when causing of injuries is not disputed, yet in this case both the witnesses examined by the prosecution i.e. Balkar Singh and Bhupinder Singh, have categorically stated that 10-12 days earlier to the occurrence, Charanjit Kaur had quarrelled with the wife of Balkar Singh and the matter was reported by Balkar Singh to the local panchayat which intervened and effected the compromise. Balkar Singh, no doubt, admitted that there was no written complaint or written decision by the panchayat but such like incidents are verbally reported and the elders of the village pacify the parties in their presence and effect the compromise verbally. 11. In respect of the injuries received by both the injured witnesses, it has categorically come in the statement of PW2 Balkar Singh and PW1 Bhupinder Singh alias Pinder Singh that Bir Singh accused-respondent had opened the attack by giving a gandasa blow from its sharp side on the neck of Balkar Singh. He further gave three gandasa blow injuries with its sharp side on his head and one injury was given by Charanjit Kaur with her stick on the left elbow and so also Bhupinder Singh received one injury from sharp side of gandasa on his left toe. Both the witnesses are, thus, unanimous that Bir Singh gave gandasa blows with its sharp side, which is a cutting weapon, on the person of Balkar Singh PW and one injury on the left toe of Bhupinder Singh PW. It is, no doubt, true that Dr. S.K. Dhawan and Dr. Paramvir Singh, who conducted the medico-legal examination on the persons of these two injured PWs., have not been examined and their evidence as expert witnesses regarding their opinion so far as the injuries on the person of these two witnesses is not available on the record. The trial Court considered that the statement made by PW5 Dr. Murari Lal from the record in respect of the injury statement is hit by the provisions of Section 45 of the Indian Evidence Act as identification of handwriting and signatures on the documents does not prove the contents thereof and cannot be admitted into evidence. To hold this opinion, the trial Court relied upon the decision in the case of Bommidala Poornaish v. The Union of India, AIR 1967 Andhra Pradesh 338 and State v. Bhausa Hanmantsa Pawar, AIR 1962 Bombay 229 and ruled out the admissibility of the evidence of PW5 Dr. To hold this opinion, the trial Court relied upon the decision in the case of Bommidala Poornaish v. The Union of India, AIR 1967 Andhra Pradesh 338 and State v. Bhausa Hanmantsa Pawar, AIR 1962 Bombay 229 and ruled out the admissibility of the evidence of PW5 Dr. Murari Lal as to the contents of injury statement Exhibits PW5/A and PW5/B. It is, no doubt, true that statement by a person not examined in the court is not admissible in evidence unless it is under section 32(1) of the Indian Evidence Act and this can be used only for the purpose of contradiction or corroboration when person making it is examined under section 44 or 45 of the Indian Evidence Act. Supreme Court in the case of Vijender v. State of Delhi, 1997(2) RCR(Crl.) 256 (SC) : 1997 Supreme Court Cases (Cri) 857, has held that if the doctor, who performed the post mortem report is available, the testimony of the Clerk on the basis of the record of that post mortem report would not prove the post mortem report since the case is not covered by Section 32 of the Indian Evidence Act. Whether the Court, in the absence of the statement of medical expert regarding his opinion in respect of the injuries sustained by the victim of assault, is helpless from considering the prosecution case in so far infliction of injuries from other evidence on record ? Somewhat similar question came up before the Supreme Court in the case of Anant Chintaman Lagu v. State of Bombay, AIR 1960 S.C. 500 wherein their Lordships observed as under :- "To rely upon the findings of the medical man who conducted the post-moryem and of the chemical analyser as decisive of the matter is to render other evidence entirely fruitless. While the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examination. But bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances an irresistible inference of guilt can be drawn......." 12. But bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances an irresistible inference of guilt can be drawn......." 12. Yet in another case reported as Brij Bhukhan and others v. The State of Uttar Pradesh, AIR 1957 S.C. 474, the doctor though was examined but had failed to give his opinion regarding sufficiency of the injuries to cause death in the ordinary course of nature. In the cited case, the Supreme Court observed as under :- "Although the medical evidence does not say that any one of the injuries on the body of the deceased was sufficient to cause death in the ordinary course of nature, it is open to the Court to look into the nature of the injuries found on the body of the deceased and infer from them that the assailants intended to cause death of the deceased. Even if none of the injuries by themselves was sufficient in the ordinary course of nature to cause the death of the deceased, cumulatively they may be sufficient in the ordinary course of nature to cause his death." Relying upon the principle laid down by the Apex Court in the above noted decisions, we find that the case of the prosecution in respect of infliction of injuries by Bir Singh and his wife Charanjit Kaur on the person of Balkar Singh and Bhupinder Singh alias Pinder Singh is fully established. It is in the sworn testimony of both the witnesses that Bir Singh accused-respondent caused injuries with gandasa which is a sharp edged weapon. Section 324 of the Indian Penal Code reads as under :- "324. It is in the sworn testimony of both the witnesses that Bir Singh accused-respondent caused injuries with gandasa which is a sharp edged weapon. Section 324 of the Indian Penal Code reads as under :- "324. Voluntarily causing hurt by dangerous weapons or means :- Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or..........., shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 13 The offence, as defined above, is fully attracted in this case even in the absence of any expert opinion of the doctor as to the nature of injuries sustained by Balkar Singh at the hands of Bir Singh accused-respondent. 14. The evidence on record indicates that Charanjit Kaur did not share the common intention of causing injuries by Bir Singh accused-respondent to injured PWs since she is stated to have come out of the house only when Bir Singh had already caused gandasa blows to Balkar Singh and Bhupinder Singh PWs. She is stated to have given stick blow subsequently on the left elbow of Balkar Singh PW and, thus, caused simple hurt on his person which attracts an offence punishable under section 323 of the Indian Penal Code. The trial Court, thus, fell in error in ignoring the sworn testimony of PWs regarding the injuries sustained by them and caused by these two accused-respondents. The judgment of acquittal, thus, is not legally sound and the same is set aside. 15. In view of the discussion above Bir Singh s/o Bal Singh resident of Kasba Bharal is held guilty of the offence punishable under section 324 of the Indian Penal Code and is convicted accordingly. Charanjit Kaur w/o Bir Singh is held guilty of the offence punishable under section 323 of the Indian Penal Code and stands convicted accordingly. 16. The occurrence in this case took place on 10.11.1987. The trial Court passed the judgment of acquittal on 29.09.1992 and the appeal against acquittal is being disposed of today. The punishment provided under section 324 of the Indian Penal Code can be fine only as well as punishment under Section 323 of the Indian Penal Code. 16. The occurrence in this case took place on 10.11.1987. The trial Court passed the judgment of acquittal on 29.09.1992 and the appeal against acquittal is being disposed of today. The punishment provided under section 324 of the Indian Penal Code can be fine only as well as punishment under Section 323 of the Indian Penal Code. Instead of directing any term of imprisonment to the accused-respondents at this stage, it shall be appropriate to impose the sentence of fine only. Bir Singh accused-respondent is accordingly sentenced to pay a fine of Rs. 2000/- and in default of payment fine, he shall suffer simple imprisonment for two months. Charanjit Kaur accused-respondent is sentenced to pay a fine of rs. 500/- and in default of payment of fine, she shall undergo simple imprisonment for one month.