JUDGMENT 1. - This criminal appeal under Section 374 Cr.RC. arises out of the judgment and order dated 13.4.2001 passed by the Additional Sessions Judge No. 2, Jaipur District, Jaipur, whereby the learned trial Judge convicted and sentenced the appellants in the manner stated below : Appellant Jagdish U/s 307 IPC Seven years rigorous imprisonment with a fine of Rs. 10,000/-, in default thereof, to further undergo one years rigorous imprisonment. Appellant Nanag Ram U/s 307/34 IPC Four years rigorous imprisonment with a fine of Rs. 10,000/-, in default thereof, to further undergo one years rigorous imprisonment. 2. On 18.4 93 at 5.40 PM an FIR No. 54/93 (Ex.P1) came to be registered on the oral report of PW1 Jagdish S/o Ladhuram at Police Station Shivdaspura, Jaipur. Informant Jagdish informed the police that at 5.00 PM, while he was sitting at the Chabutara in front of his house, his neighbour injured Jagdish S/o Nanu Ram was busy in connection with laying foundation and raising construction and his son was helping the masons. Injured Jagdish went inside his house. In the mean-time, accused Nanagram, Chhajuram, Jagdish Narain S/o Ghasiram, Lala Ram, Hanuman, Babu and ladies of their families came at the spot and demolished the construction already raised. In the meanwhile injured Jagdish came out of his house and when he objected to the demolition of construction at the hands of accused, the accused persons belaboured injured Jagdish Narain and his son with lathies. Thereupon, he, his brother Gopal, Latif and Jai Narain etc. intervened and saved. Thereafter both the injured were taken to the hospital at Chaksu. 3. The police after having registered a case for offence under Sections 323, 447 and 147 vide FIR Ex.P1, inspected the place of incident and prepared site plan, Ex.P3 and arrested the accused persons. Pursuant to the information, Ex.P10 furnished by accused Jagdish, police recovered a hammer vide memo Ex.P6 and also prepared site plan, Ex.P7 of the place of recovery. Accused Chhaju Ram also furnished information Ex.P11 and pursuant to this information, police recovered a lathi vide memo Ex.P4. 4. As per injury report, Ex.P14, injured Jagdish S/o Nanu Ram had following 7 injuries on his person: 1. Stitched wound 1 cm on left temporal region with ill defined swelling with left blue eye (black eye), 2. Lacerated wound 0 5X0.1 cmX skin seep on left maxillary region, 3. 4. As per injury report, Ex.P14, injured Jagdish S/o Nanu Ram had following 7 injuries on his person: 1. Stitched wound 1 cm on left temporal region with ill defined swelling with left blue eye (black eye), 2. Lacerated wound 0 5X0.1 cmX skin seep on left maxillary region, 3. Abrasion left foot centrally and medially 2cm X 1cm, 4. There is no abrasion on Rt foot, 5. Abrasion 3 X 2cm on Rt thigh laterally upper ⅓, 6. Abrasion 6X2cm on Rt thigh laterally middle ⅓, and 7. Abrasion 5 X 2cm on Rt thigh laterally lower ⅓. 5. Injury No. 1 on left temporal region was advised for X- ray, while injuries No. 2 to 7 were found to be caused by blunt object and all were simple. 6. injured Shrawan had following injuries on his person : 1. Lacerated wound 0.5 X 0.2cm X skin deep on back of left elbow 2. Abrasion 4X3cm on Rt knee ankle 3. Lacerated wound 3 X 0.3cm X skin deep on Rt foot medially. 4. Bruise with abrasion 2 X 2cm on right abdomen centrally 5. Abrasion 0.1 X 0.1 cm on nose. 7. All these injuries were found to be caused by blunt object and were simple in nature. 8. Injured Jagdish Narain was also subjected to surgery. PW13 Dr. Yogesh Sharma on considering the operation notes Ex.P12 expressed his opinion about the nature of injury. According to his opinion, injury No. 1 of Ex.P14 was dangerous to life. 9. Having completed entire formalities as regards investigation, the police submitted a charge sheet in the court of Judicial Magistrate, Jaipur District, Jaipur. The learned Magistrate having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions. 10. The trial court, on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the parties, framed charges against 5 accused persons including the appellants for offence under Sections 147, 323, 307 and 307/149 IPC. The accused denied the charges and claimed trial. 11. In order to prove its case, the prosecution examined as many as 14 witnesses and got exhibited some documents. After the prosecution evidence was over, the accused were examined under Section 313 Cr.RC. In defence, the accused also examined DW1 Jai Narain, DW2 Prithvi Singh and DW3 Dr. Yogesh. 12. The accused denied the charges and claimed trial. 11. In order to prove its case, the prosecution examined as many as 14 witnesses and got exhibited some documents. After the prosecution evidence was over, the accused were examined under Section 313 Cr.RC. In defence, the accused also examined DW1 Jai Narain, DW2 Prithvi Singh and DW3 Dr. Yogesh. 12. At the conclusion of trial, the learned trial court did not find the charges established as against accused Lala Ram, Babulal and Chhaju Ram and accordingly acquitted them of the charges. However, the learned trial Judge found the accused appellants guilty and accordingly, vide its impugned judgment convicted and sentenced the appellants in the manner stated herein above. Hence the present appeal against conviction. 13. I have heard Mr. SR Bajwa, Sr. Advocate appering on behalf of the appellants, the learned Public Prosecutor and the counsel appearing for the complainant. I have also gone through the judgment under appeal and the evidence available on record. 14. From the judgment under appeal, it appears that the learned trial court did not believe the prosecution case to the extent that the accused formed an unlawful assembly in order to commit the crime and accordingly, acquitted 3 co-accused persons of the offence under Sections 147, 323 and 307/149 IPC. But, relying on the evidence of injured himself, PW1 Jagdish, PW2 Hari Narain, PW3 Gopal, PW7 Om Prakash and PW8 Shrawan and seeking corroboration with medical evidence, it came to a conclusion that appellant Jagdish struck hammer blow on the head of injured Jagdish Narain thereby causing fracture of temporal parietal region and that brain matter came out. As regards appellant Nanag Ram, the trial court came to a conclusion that he caught hold of injured Jagdish Narain and as such he acted in furtherance of common intention with appellant Jagdish. 15. Before proceeding further, I deem it appropriate to have re-appraisal of the relevant evidence, which led the trial court in arriving at a conclusion of guilt against the appellants. 16. PW1 Jagdish, author of the FIR has deposed that on the day and at the time of incident while he was standing on Chabutara out side his house, the accused persons came out of their house, duly armed with lathies etc. and the construction work of the house of injured was under progress. 16. PW1 Jagdish, author of the FIR has deposed that on the day and at the time of incident while he was standing on Chabutara out side his house, the accused persons came out of their house, duly armed with lathies etc. and the construction work of the house of injured was under progress. The accused persons soon after reaching the place of incident, started demolishing the wall of injured Jagdish. Shrawan and his wife were also present there and they intercepted. Injured Jagdish came out of his house and asked the accused as to what was going on. On saying so, accused Jagdish inflicted hammer blow on the left side of head of injured Jagdish, as a result thereof, injured fell down and blood oozed out from his head and mouth and an eye vulge out. Thereafter some persons intervened and saved injured Jagdish. 17. In cross examination, the witnesses stated that the land on which foundation was being ied was in physical possession of injured. However, he could not say about ownership nor he saw the relevant documents. He further stated that except accused Jagdish, all were armed with lathies. On a question being put, the witness stated that he was not in a position to state as to which accused inflicted injuries on what part of the body of injured persons. He also could not stated as to whether the hammer was already lying there or that it belonged to Hari Narain. This witness, who lodged the FIR has not stated either in his court statement or in the statement before the police that Nanag Ram caught the injured. 18. PW2 Hari Narain, another eye witness, who was laying foundation for 5-6 days, has deposed that accused Jagdish struck hammer blow on the head, near ear of injured Jagdish. The hammer was already lying there. After sustaining injury, Jagdish fell down and blood had also oozed out. Jagdish had aiso sustained injury on his eye and it had swelling. In cross examination, the witnesses stated that Balita (fire wood) was lying at the place where foundation was being led. According to him, accused Nanag Ram, Jagdish and Chhaju had come empty handed. Lastly, the witness stated that accused Jagdish struck single blow. He has not stated that appellant Nanag Ram caught injured Jagdish. 19. PW3 Gopal has also claimed to have witnessed the incident. According to him, accused Nanag Ram, Jagdish and Chhaju had come empty handed. Lastly, the witness stated that accused Jagdish struck single blow. He has not stated that appellant Nanag Ram caught injured Jagdish. 19. PW3 Gopal has also claimed to have witnessed the incident. According to him, the work of laying foundation was going on for 5-7 days. He has deposed that accused Jagdish struck hammer blow on the left side of head of injured Jagdish, which also resulted in grievous injury on his eye. Blood started oozing out from the injury. The other accused persons belaboured Shrawan by lathies. After sustaining hammer injury, the accused belaboured Jagdish with lathis also. In cross examination, the witness stated that there was no Balita (fire wood) at the place where foundation was being led and he did not notice any injury on the head of accused Jagdish at the time of incident. He further stated that only one blow was struck on the head of injured Jagdish. The accused persons ran away with the hammer. According to him, there was exchange of abuses about 2-3 minutes prior to the happening of incident. Injured Jagdish alone was present at the place of incident and neither any of his relation or any known person was present at the time of incident. 20. PW 7 Om Prakash, grand son of injured Jagdish has deposed that soon after arrival, accused Nanag Ram caught hold of his grand father and accused Jagdish struck hammer blow on the left side of head of his grand father. Other accused also belaboured his grand father with lathies. In cross examination, the witness admitted that accused had disclosed that they will not permit raising of wall on their land and that incident took place on this issue. On being confronted with his police statement Ex.D2, the witness stated that he had disclosed to the police about catching hold of his grand father by Nanag Ram, but could not say as to why this fact did not find place in his police statement. 21. PW8 Shrawan, an injured eye witness has deposed in his examination in chief that accused Nanagram caught hold of his father and thereafter accused Jagdish S/o Ghasi lifted the hammer and struck blow on the left side of head of his father. His father held his head and sat and then fell down. 21. PW8 Shrawan, an injured eye witness has deposed in his examination in chief that accused Nanagram caught hold of his father and thereafter accused Jagdish S/o Ghasi lifted the hammer and struck blow on the left side of head of his father. His father held his head and sat and then fell down. Thereafter accused Nanagram, Chhaju Ram, Lala Ram, Hanuman and Babu continued to belabour him with lathies. In cross examination, he stated that accused Jagdish struck blow on the head of his father and other accused also belaboured him, however he could not state as to which accused inflicted injury on which part of the body. 22. PW14 injured Jagdish, a dumb witness, has stated by signals that appellant Jagdish struck hammer blow on his head. He has stated that appellant Nanag Ram caught hold of him however, this fact does not find piace in his police statement, Ex.D4. 23. PW13 Dr. Yogesh Sharma, Medical Jurist has stated that he had examined the injuries of Jagdish S/o Nanu Ram and had prepared the injury report. He noticed as many as 7 injuries on the person of injured and advised X-ray for injury No. 1. He could not state about the kind of weapon of offence used in causing injury No. 1. According to the Medical Jurist, injury No. 1, as per operative notes, was found to be dangerous to life. The witness stated that he had also examined injured Shrawan and noticed 5 injuries on his person. All injuries were simple in nature and were caused by blunt object. 24. PW11 Dr. Vimal Sardana, who at the relevant time was posted as Assistant Professor, Neuro Surgery, SMS Hospital and had operated injured Jagdish and prepared the operation note, Ex.P12 has deposed that there was fracture of left temporal and parietal bone and the bone pieces had pierced in the brain. 25. Thus, from the evidence discussed above, following facts emerge out: 1. Injured Jagdish was laying down foundation and construction work was in progress for last 6-7 days. 2. On the day and at the time of incident the appellants raised objection and there was exchange of hot words and abuses between the parties. 3. Appellants came on the spot unarmed and after exchange of hot words and abuses, appellant Jagdish inflicted hammer blow on the head of injured Jagdish. 2. On the day and at the time of incident the appellants raised objection and there was exchange of hot words and abuses between the parties. 3. Appellants came on the spot unarmed and after exchange of hot words and abuses, appellant Jagdish inflicted hammer blow on the head of injured Jagdish. It is also evident that hammer was laying at the spot. 4. Appellant Jagdish inflicted solitary injury on the head of injured, which resulted in fracture of temporal and parietal bone and in the opinion of Medical Jurist the injury was dangerous to life. 5. Except injured PW14 Jagdish, PW7 Om Prakash and PW8 Sharwan no other eye witness of the incident viz., PW1 Jagdish, PW2 Hari Narain and PW3 Gopal have stated that Nanag Ram caught hold the injured while appellant Jagdish struck hammer on the head of injured. It is worthy to mention that the above fact did not find place in the police statements Exs.D4 and D2 of injured Jagdish and Om Prakash, respectively. 26. Therefore, from the above fact situation it can safely be concluded that injured Jagdish and eye witnesses Om Prakash and Shrawan have made improvements in their court statements and have tried to implicate appellant Nanag Ram by stating that he caught hold of injured Jagdish. The omission of the above important fact in the statements of these witnesses under Section 161 Cr.RC. made before the investigating agency would come under the category of and, therefore, appellant Nanag Ram deserves to be extended benefit of doubt. 27. In the alternative, if the evidence led by the prosecution is analysed critically in the scenario in which attack was mounted, then also it cannot be inferred that appellant Nanag Ram knew that appellant Jagdish would inflict the injury by hammer, inasmuch as they all were empty handed and appellant Jagdish picked up the hammer lying on the spot and at the spur of moment inflicted the injury. Therefore, appellant Nanag Ram cannot be connected with the aid of Section 34 IPC for the act done by appellant Jagdish. 28. The main thrust of the argument of learned counsel is that the prosecution has utterly failed to prove the injuries sustained by appellant Jagdish. Therefore, appellant Nanag Ram cannot be connected with the aid of Section 34 IPC for the act done by appellant Jagdish. 28. The main thrust of the argument of learned counsel is that the prosecution has utterly failed to prove the injuries sustained by appellant Jagdish. Learned counsel argued that the alleged injury on the person of injured Jagdish was inflicted by appellant Jagdish in exercise of right of private defence of person and property of incident, inasmuch as Balita (fire wood) belonging to appellant was lying at the place of incident. 29. I have given my thoughtful consideration to the above argument. Suffice it to say that failure to explain the injuries on the person of accused ipso facto cannot be said to be fatal to the prosecution if the evidence led by the prosecution is otherwise clear, cogent and trustworthy. In other words, non-explanation of injuries on the person of accused lose its importance where evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood. In the case at hand, the prosecution by adducing clear, cogent and creditworthy evidence has been able to prove beyond that appellant Jagdish was aggressor and he went to the house of injured, demolished the construction ready raised and inflicted hammer blow on the head of injured Jagdish who was unarmed. Therefore, reasonable inference which could be drawn in the facts and circumstances of the case is that accused received injuries during the course of occurrence and that some members of the complainant side counter attacked the assailant and caused injuries to the appellant. Therefore, the argument of the learned counsel that the appellant inflicted injury on the person of injured in exercise of right of private defence of person and property, being devoid of merit stands rejected. Even otherwise, a glance at the injury report of appellant indicates that injuries were superficial and could be caused even by fall. In this view of the matter, I do not find any evidence on record to probabilise such defence. 30. it is also worthy to note that as per the prosecution version itself, construction work at the place of incident was already under progress for 5-6 days. This fact was well within the knowledge of appellant as he being neighbour of the injured. 30. it is also worthy to note that as per the prosecution version itself, construction work at the place of incident was already under progress for 5-6 days. This fact was well within the knowledge of appellant as he being neighbour of the injured. Therefore, had there been any grudge, ,the appellant could have taken legal recourse so as to prevent or restrain the injured from raising construction, for which he had ample opportunity to do so during these 5-6 days. That apart, I do not find any evidence to show that the property belonged to the accused. The only evidence is that of PW2 Hari Narain. This witness is a mason and is a resident of some other village. He lias deposed that Balita (fire wood) belonging to appellant Jagdish was already lying at the place of incident. But I am not prepared to accept this statement only on the ground that except Hari Narain, no other witness has stated about Balita either belonging to appellant or some one else was found lying at the place of incident. 31. The question which now emerges for consideration is as to what offence is made out against appellant Jagdish? It has come on record that appellant Jagdish went to the place of incident unarmed and after exchange of hot words and abuses, he inflicted hammer blow on the head of injured Jagdish. Therefore, it can well be said that the incident occurred at the spur of moment without any premeditation and solitary blow on the head of injured was inflicted. As per the medical evidence, the injury inflicted on the person of injured was dangerous to life. Thus it can safely be inferred that appellant Jagdish did the act of inflicting injury on the head of injured with the knowledge that his act was likely to cause death. Had the injuried died, there would have been (sic.) no option but to convict the appellant under Section 304 IPC. As such appellant is liable to be convicted for offence under Section 308 IPC instead Section 307 IPC. 32. Resultantly, the appeal stands partly allowed. The conviction of appellant Jagdish under Section 307 IPC and the sentence awarded thereunder are set-aside. Instead, he is convicted under Section 308 IPC and is sentenced to undergo four years rigorous imprisonment and pay a fine of Rs. 10,000/-. 32. Resultantly, the appeal stands partly allowed. The conviction of appellant Jagdish under Section 307 IPC and the sentence awarded thereunder are set-aside. Instead, he is convicted under Section 308 IPC and is sentenced to undergo four years rigorous imprisonment and pay a fine of Rs. 10,000/-. In default of payment of fine, he shall have to undergo six months imprisonment. The conviction of appellant Nanag Ram under Section 307/34 IPC is set aside and he is acquitted of the charge. Nanag Ram is already on bail and he need mot surrender to his bail bonds, which are hereby discharged.Appeal Partly allowed. *******