JUDGMENT 1. Appellants, father and son stand convicted under sections 307 and 323 of Indian Penal Code ('Code' for short) and sentenced to undergo RI for five years, fine of Rs.2,000/- in default to undergo RI for five months and R.I. for three months, fine of Rs.300/- in default to further undergo RI for 15 days with the direction of concurrent execution of both substantive sentences. Both had been in detention between 26.11.1996 and 10.1.1997 during trial. They were sent to jail on date of impugned judgment i.e. 2.11.1998. They were ordered to be released on bail on 16.12.1998. In other words they have been in custody for about three months each. 2. With these appellants, Manabai wife of Hameera (A 1) and Babloo S/o Hameera (A 4) were also tried and found guilty under sections 307/34 and 323/34 of the Code. They have been released on probation of good conduct on execution of bond for three years under section 360 of the Code of Criminal Procedure. 3. Kalyan (PW 2) is brother of Guddibal (PW 3) Asharam the husband of Guddibai (PW 3) is real brother of Hameera (A 1) Santosh (A 2) is son of Hameera (A 1) Kalyan (PW 2) and his son Pappu alias Ramkishan (PW 5) used to reside in the house of Asharam as tenant. On 10.10.1996 at about 9.00 p.m. in night Hameera (A 1) with his wife Manabai and two sons i.e. Santosh (A 2) and Babloo came to Kalyan (PW 2) and told that Pappu alias Ramkishan (PW 5) had beaten his wife, they should leave the village. Pappu alias Ramkishan (PW 5) had also come on spot. He was checked by the appellants and co-accused. Pappu alias Ramkishan (PW 5) tried to run away, Kalyan (PW 2) rushed to his rescue, whereupon Hameera (A-I) gave a blow of luhangi on the head of Kalyan (PW 2), who fell down. Santosh (A-2) and Babloo, who had lathi and Sickle in their hands caused multiple injuries on the person of Kalyan (PW 2). When Pappu alias Ramkishan (PW 5) and Guddibai (PW 3) rushed to the rescue of Kalyan (PW 2), they were also beaten by Santosh (A 2) and co-accused Babloo and Manabai by lathi and luhangi. Hameera (A 1) was threatening to cause his death and was abused and withdrew with others. When Pappu alias Ramkishan (PW 5) and Guddibai (PW 3) rushed to the rescue of Kalyan (PW 2), they were also beaten by Santosh (A 2) and co-accused Babloo and Manabai by lathi and luhangi. Hameera (A 1) was threatening to cause his death and was abused and withdrew with others. Kalyan (PW 2) was taken to PS Isagarh situated at distance of 4 km. at cot. He lodged FIR Ex. P-5 in the same night. 4. Dr. Kailash Narayan Sharma (PW 8) medically examined Kalyan (PW 2) and noted following injuries vide Ex. P-17 : (i) Lacerated wound forehead sized 1" x 1/2" scalp deep in middle line. Adv. X-ray skull. (ii) Lacerated wound 1 cm.x.5 cm. just above eyebrow right side. Adv. X-ray skull. (iii) Lacerated wound left side parietal region of scalp obliquely placed sized 2-1/2"x1/2" scalp deep. Adv. X-ray. (iv) Lacerated wound Parietal region left side scalp 1-1/2" Post to injury No. (iii) sized 2" x 1/2" scalp deep. (v) Contusion right side lat. thoracic wall sized 3"x1" with railroad pattern extending upto liver region -- illeg -surgical emphysema present air creptation present on right half of chest, Pt. is deysmic and in agony, air entry is absent. Adv. X-ray chest. (vi) Contusion left forearm lower 1/3 sized 2" x 3/4". Adv. X-ray left forearm. (vii) Abrasion Lt. side clavicle lat. 1/3 sized 1". (viii) Abrasion Lt. side leg and knee rad. sized 2" . (ix) Contusion Lt. side back lower region sized 2" xl". (x) These injuries were caused by hard and blunt object within 24 hours. Dr. R.K. Jain (PW 1), Radiologist noted fractures on 8th and 9th ribs, parietal bone of skull and lower end of ulna, left side vide Ex. P-l. Dr. Kailash Narayan Sharma (PW 8) had opined that injury No.3, 5 and 6 were grievous and injury No.5 could be dangerous to life also vide his report Ex. P-7. X-ray plates (Ex. P-2 to P-4) are also on record. Doctor found following injuries of person of Pappu alias Ramkishan (PW 5), vide Ex. P-8 : (i) Contusion Left hand ulnar side size2" x 3/4". (ii) Contusion Lt. thigh Lower 1/3 ant. aspect. (iii) Abrasion Rt. knee ant. sized 1 cm x 1 cm. (iv) Contusion Lt. side back sized 2" x 3/4" . (v) Abrasion sized 1 cm x 1 cm on scalp parietal region. P-8 : (i) Contusion Left hand ulnar side size2" x 3/4". (ii) Contusion Lt. thigh Lower 1/3 ant. aspect. (iii) Abrasion Rt. knee ant. sized 1 cm x 1 cm. (iv) Contusion Lt. side back sized 2" x 3/4" . (v) Abrasion sized 1 cm x 1 cm on scalp parietal region. All these injuries were caused by hard and blunt object within 24 hours. He noted a complaint of pain in back of Guddibai (PW 3) vide Ex. P-19; though no external injury was to be seen. 5. The blood stained kurta and angochha was seized from Kalyan (PW 2) vide Ex.P-6. A luhangi was seized from co-accused Manabai vide Ex. P-14. FSL found blood marks on kurta and angochha of Kalyan (PW 2) and luhangi seized from co-accused Manabai. 6. Appellants have a different story to tell. According to them, Bablu and Santosh (A 2) on 10.10.1996 at 9 p.m. were going to their field. Kalyan (PW 2) and Pappu alias Ramkishan (PW 5) met them in the way and challenged why did they abuse. On protest both started abusing and Kalyan (PW 2) wielded his tega cutting the ear of Bablu. Mamta co-wife of Guddi Bai (PW 3) gave a blow of handle of Axe to Bablu. When Santosh (A 2) came forward a blow was given on his right knee. Toran Singh (DW 6), Mankunwarbai were present on spot. Bablu reported the matter to Police vide Ex. D-5. Dr. Kailash Narayan Sharma (DW 8) noted following injuries on person of Bablu vide Ex. D-3 : (i) Contusion of left forearm lower 1/3" sized 1/2" x 1/2". (ii) Abrasion left elbow size 1/2 cm x 1/2 cm. (iii) Lacerated wound left ear sized 2" x 1/2" x whole thickness. Cartilages were separated up to root of lobe. All these injuries were caused by hard and blunt object within 24 hrs. Nature of injuries no. 3 could be told only after treatment of the same while others were simple. Doctor noted a contusion on left knee of Santosh (A 2) of size 3/4" x 1/2" vide Ex. D-4. Such injury was caused hy hard and blunt object and was simple. It was suggested that Kalyan (PW 2) had fallen from first floor and was injured. Umrao, father of Asharam and Hameera (A 1) being dissatisfied with the treatment of Asharam had gone to live with Hameera (A 1). D-4. Such injury was caused hy hard and blunt object and was simple. It was suggested that Kalyan (PW 2) had fallen from first floor and was injured. Umrao, father of Asharam and Hameera (A 1) being dissatisfied with the treatment of Asharam had gone to live with Hameera (A 1). Umrao 'had executed a sale deed of the land in name of sons of Hameera (A 1) only 7 or 8 days before his death. This gave rise to bitter enmity between the two brothers and complainant party indulged in fabrication of false cases. The appellants have examined in all 9 witnesses in their defence. 7. The Court below believed the prosecution version and held both the appellants and co-accused Manabai and Bablu guilty and sentenced the appellants as aforesaid while co-accused were released on probation. Kalyan (PW 2) has supported the case of prosecution. According to him Pappu alias Ramkishan (PW 5) and Santosh (A 2) and Bablu had quarrelled. He went to pacify. Hameera (A 1) told that he be beaten. Santosh (A 2) gave a blow of luhangi on his head. Co-accused Bablu and Hameera (A 1) also wielded lathis. He became unconscious. Asharam and Pappu alias Ramkishan (PW 5) had gone to lodge report.. He was taken to hospital Isaragh and from there to Police Station. FIR (Ex. P-5) was lodged the same day. His sister Guddibai (PW 3) deposed that Pappu alias Ramkishan (PW 5) had gone to ease himself. Bablu and Santosh (A 2) had beaten him and brought him beating to the house. Kalyan (PW 2) came out. Hameera (A 1) gave a blow of luhangi on head of Kalyan (PW 2) who was injured in head and legs. Santosh (A 2), Bablu and others had assaulted Kalyan (PW 2) and beaten him. Pappu alias Ramkishan (PW 5) claimed that Bablu and Santosh (A 2) had checked him in the way. Bablu had given a blow of lathi on his head. He rushed to his house. His father Kalyan (PW 2) intervened. Hameera (A 1) gave a blow of luhangi on the head of Kalyan (PW 2). Bablu had a lathi. Santosh had a Sickle. Manabai had a lathi. Guddibai (PW 3) was hit with lathi by Bablu. This prosecution version is corroborated by prompt FIR (Ex. P-5) lodged by Kalyan (PW 2). His father Kalyan (PW 2) intervened. Hameera (A 1) gave a blow of luhangi on the head of Kalyan (PW 2). Bablu had a lathi. Santosh had a Sickle. Manabai had a lathi. Guddibai (PW 3) was hit with lathi by Bablu. This prosecution version is corroborated by prompt FIR (Ex. P-5) lodged by Kalyan (PW 2). The FIR gives graphic and vivid version of the case of prosecution. The same has been lodged without any previous deliberations or consultations. Kailash Narayan Sharma (PW 8) who medically examined Kalyan (PW 2), Pappu alias Ramkishan (PW 5) and Guddibai (PW 3) the same day had noted injuries on their person detailed above which clearly support the case of prosecution. Certainly such injuries are not self-inflicted. All these witnesses have been cross-examined at great length yet nothing material has come out to either discredit them or hold them unreliable. 8. Certainly, due to property dispute relations between Hameeni (A 1) and his brother Asharam are strained. Civil litigation is pending between them. Meharban Singh (DW 1), Parvat Singh (DW 2), Mahesh Kumar (DW 4), Amar Sing (DW 5), Toran Singh (DW 6) have amply proved such strained relations. Guddibai (PW 3) has also admitted such disputes and strained relations in Para 3 of her statement Pendency of civil litigation is also admitted by her. The appellants have put a definite case of assault by Kalyan (PW 2) and Pappu alias Ramkishan (PW 5) on Bablu and Santosh (A 2). Toran Singh (DW 6) and Dulla Khan (DW 7) have supported such a case. FIR (Ex. D-5) was scribed by Narendra Singh (DW 9) lodged the same night by Bablu. However, Dulla Khan (DW 7) was not named as an eye-witness in such report. Dr. Kailash Narayan Sharma (DW 8) has noted injuries on person of Bablu and Santosh (A 2) vide Ex. D-3and D-4. Certainly, injuries of Bablu and Santosh (A 2) were also not self-inflicted or artificial. Parvat Singh (DW 2), Mahesh Kumar (DW 4) have also tried to suppor1 such a case though they themselves have not seen the occurrence and their deposition are based on hearsay only and thus are not of much value. It is noteworthy that this incident had happened in the field and not at the house of Kalyan (PW 2). Certainly, the episode relied upon by the appellants had been earlier to the present episode. It is noteworthy that this incident had happened in the field and not at the house of Kalyan (PW 2). Certainly, the episode relied upon by the appellants had been earlier to the present episode. Place of occurrence of both the episodes have been different. Thus, it could not be said that Bablu and Santosh (A 2) had sustained injuries in the same incident. Certainly, in such a case explanation of injuries of Bablu and Kalyan (PW 2) was not mandatory for the prosecution witnesses. Principles laid down in Lakshmi Singh v. State of Bihar [ AIR 1976 SC 2263 ] relied upon in State of M.P. v. Gurmukh Singh and others [1977 (1) MPWN 573], Narendra Singh v. State of M.P. [2001 (II) MPWN 70] were not applicable. Such a duty could be imposed only when such injuries could be proved to have been caused in the same incident. No question of any right of private defence had arisen in the present case. First there had been a brawl in the field. When attempt to pacify the same was done at the house, Kalyan (PW 2) was beaten mercilessly. His son Pappu alias Ramkishan (PW 5) was also beathen. Guddibai (PW 3) was not also spared. It is true that the appellants have tried to explain the injuries of Kalyan (PW 2) by claiming that he had fallen from the first floor. Parvat Singh (DW 2) claimed that Kalyan (PW 2) had ascended with his sword and had somehow fallen down. Chandrabhan (DW 3) has claimed that Kalyan (PW 2) was drinking sitting on first floor and had fallen from there. Toran Singh (DW 6) and Dulla Khan (DW 7) have suggested that Kalyan (PW 2) had jumped from first floor and got injured. Certainly, the defence version which has variable does not explain the injuries on person of Kalyan (PW 2). Thus, learned trial Court has not erred in holding the appellants guilty for be belabouring Kalyan (PW 2), Pappu alias Ramkishan (PW 5) and Guddi Bai (PW 3). 9. There has been no material on record to suggest that the complainant party was aggressor. As such reference to Smt. Rukma and others v. lala and others [1997(2) Supreme (Cr.) 180] is irrelevant. X-ray report has been proved by Dr. R.K. Jain (PW 1), radiologist. 9. There has been no material on record to suggest that the complainant party was aggressor. As such reference to Smt. Rukma and others v. lala and others [1997(2) Supreme (Cr.) 180] is irrelevant. X-ray report has been proved by Dr. R.K. Jain (PW 1), radiologist. Thus, Ramnihore v. Ramsajeevan [ 1985 MPWN 104 ] where X-ray report was not proved by the Surgeon who took X-ray photographs is also not applicable. No serious discrepancy as to weapons used, time of occurrence and time of starting investigation could be pointed out to invite Mathura Yadav @ Mathura Mahato and other State of Bihar [2002(2) Supreme (Cr) 36]. However, in the facts of the case no fatal injury was caused to Kalyan (PW 2) or Pappu @ Ramkishan (PW 5) or Guddibai (PW3). Though certainly, there were fractures of 8th and 9th ribs, parietal bone of skull and ulna bone of Kalyan (PW 2). Thus, no offence under S. 307 of the Code is proved against the appellants. Their conviction is altered to S. 325 and 323 of the Code. 10. Certainly, immediately before the incident the complainant party had assaulted in the field of Bablu and Santosh (A 2) who were also injured. As already seen, appellants have been in custody for about 3 months each. Co-accused have been released on probation. Seven yean have elapsed since after the incident. In Kanhaiyalal v. State of M.P. [ 1985 MPWN 336 ] accused had suffered Jail of 15 days. Such jail sentence with fine was held sufficient to meet the ends of justice. In all these facts of the case it is not expedient to send the appellants once again to Jail to undergo imprisonment Hence, their jail sentence is reduced to that already undergone by them. However they shall pay a fine of Rs.1,000/- each under S. 325 of the Code and 1,000/- each under S. 323 of the said Code in case of default they shall undergo S1 for 6 months and 3 months. Out of fine amount deposited an amount of Rs.6,000/- be paid to Kalyan (PW 2), Rs.1,500/- be paid to Pappu alias Ramkishan (PW 5) and Rs.500/- be paid to Guddibai (PW 3) as compensation under S. 357 of the Code of Criminal Procedure. These sentences are substituted for sentence awarded by the Court below. 11. Thus, appeal allowed in part. Out of fine amount deposited an amount of Rs.6,000/- be paid to Kalyan (PW 2), Rs.1,500/- be paid to Pappu alias Ramkishan (PW 5) and Rs.500/- be paid to Guddibai (PW 3) as compensation under S. 357 of the Code of Criminal Procedure. These sentences are substituted for sentence awarded by the Court below. 11. Thus, appeal allowed in part. Conviction of appellants is modified from under S. 307 to under S. 325 of the Code. Conviction under S. 323 of the Code is maintained as it is. Sentence modified.