JUDGMENT Virender Singh, J. - Sheru and Sharfu sons of Abhey Singh have been convicted vide impugned judgment of learned Additional Sessions Judge, Gurgaon dated 6.9.1991 under Section 307/34 Indian Penal Code and 324/34 Indian Penal Code and have been sentenced to undergo RI for five years each and to pay a fine of Rs. 500/- each under section 307/34 Indian Penal Code. In default of payment of fine to further undergo RI for three months. Both the sentences have been ordered to run concurrently. 2. The prosecution case in short is that on 17.4.1990, Zakir the injured in this case was watering his fields at about 3 PM. Sheru appellant diverted the said water flow. Zakir consequently stopped that diversion. Both the appellants then reached there and started abusing Zakir. Zakir asked them not to do so. Sheru appellant was armed with a tabbal (a sharp edged cutting weapon) in his hands. He inflicted a tabbal blow on the head of Zakir and then inflicted another blow from the reverse side of tabbal on the eye of Zakir. Sharfu appellant also gave a lathi blow which hit on the back of Zakir and another blow hit on his left eye. Umar and Harun PWs who were incidently present in the nearby fields reached the spot after hearing raula. Both the appellants then ran away. Injured was removed to the hospital by the witnesses. 3. After the investigation both the appellants were challaned in the present case. They were consequently charged. 4. In support of its case the prosecution has examined as many as eight witnesses. 5. PW1 Rampal SI is a formal witness. He had recorded the first information report and had also prepared the report under Section 173 Criminal Procedure Code PW2 is Dr. BB Aggarwal. He on 28.4.1980 had radiologically examined Zakir, the injured in this case and found that there were multiple fractures over parietal area of skull on right side. His report is Ex. PB. PW3 is Dr. Jai Kishan who had on 17.4.90 at 7.15 PM had medico-legally examined Zakir and found the following injuries :- "1. An incised wound of size 2.5 cm x 0.5 cm present on left parietal temporal region. Margins were regular. Oozing of fresh blood was present. Advised x-ray skull, AP & lateral view. Injury kept under observation. 2. PW3 is Dr. Jai Kishan who had on 17.4.90 at 7.15 PM had medico-legally examined Zakir and found the following injuries :- "1. An incised wound of size 2.5 cm x 0.5 cm present on left parietal temporal region. Margins were regular. Oozing of fresh blood was present. Advised x-ray skull, AP & lateral view. Injury kept under observation. 2. A bruise of size 2 cm x 1 cm present above left eye pain and swelling were also present. 3. Patient was unable to open left eye. Swelling was present on whole of the left eye. On examination of left eye congestion of conjunctive was present. Pupil normal. 4. A bruise of size 2 cm x 1 cm present on left arm. Swelling was present. Advised x-ray AP & lateral view. 5. A bruise of size 5 cm x 2 cm present of back. Pain and swelling was also present. Advised x-ray thoracic cage, AP & lateral view." 6. He had also given opinion Ex. PH/1 that the injuries on the person of Zakir could cause death if proper treatment has not been given. He had also opined that the injuries on the person of Zakir were possible by lathi Ex. P1 and tabbal Ex. P2. PW4 is Saphed Khan Patwari. He had prepared the scaled plan. Umar is PW5. He is an eye witness of the occurrence. PW6 is Zakir the injured witness. He has disclosed the prosecution story to the effect that Sheru had diverted the water flow when he was watering his fields and when he (Zakir) had stopped diversion both the appellants gave him injuries. He has then stated that he was referred to Civil Hospital, Gurgaon where he remained admitted for 15/16 days. PW7 is S.A. Nasir who has stated that Sheru appellant in pursuance of his disclosure statement has got recovered tabbal from his kotha and Sharfu has got recovered lathi. SI Siri Chand has been examined as PW8. The investigation has been conducted by him. He also talks about various applications on which he had obtained the opinion of the doctor. He also recorded the statements of witnesses, prepared site plan of the occurrence. He then talks about the arrest of both the appellants and the recovery of tabbal and lathi effected in pursuance of the disclosure statement of the appellants. Ex. He also talks about various applications on which he had obtained the opinion of the doctor. He also recorded the statements of witnesses, prepared site plan of the occurrence. He then talks about the arrest of both the appellants and the recovery of tabbal and lathi effected in pursuance of the disclosure statement of the appellants. Ex. PK is affidavit of HC Jagbir Singh showing that the lathi and tabbal were not tampered with. 7. The stand by both the appellants under section 313 Criminal Procedure Code is that they denied all the allegations against them and pleaded innocence. They alleged that on the date of occurrence it was a turn of their uncle Umrao Singh for irrigation and that in fact Zakir injured had no field there and that they have been falsely implicated on account of party faction. In defence the appellants have examined Attar Khan Ex-Sarpanch as DW1 and Dr. Subhash Khanna as DW2. 8. After considering the whole evidence both the appellants have been convicted and sentenced as indicated above. Hence, this appeal. 9. I have heard Mr. J.S. Malik, learned counsel for the appellants and Mr. Sanjiv Sheokand, learned Assistant Advocate General, Haryana. With their assistance I have gone through the entire evidence. 10. Learned counsel for the appellants has vehemently contended that section 307 Indian Penal Code is not made out in this case at all. In this regard, he has drawn my attention to the evidence of Dr. Jai Kishan PW3 where he has stated that on 25.4.90 on police application Ex. PF, he had given his opinion Ex. PF/1 to the effect that the possibility that the injuries on the person of Zakir could cause his death cannot be ruled out. The learned counsel for the appellants has further drawn my attention to the statement of this witness who has stated that on 2.5.90, he had given an opinion Ex. PG/1 that the injuries could cause death of Zakir if proper treatment had not been given at that time. Mr. Malik then contends strenuously that Zakir was taken to Civil Hospital, Gurgaon where he remained admitted for about 15/16 days and the best doctor who could give the opinion about the seriousness of the injured was Dr. Subhash Khanna, DW2 Medical Officer, General Hospital, Gurgaon who had been treating the injured in the hospital. Mr. Malik then contends strenuously that Zakir was taken to Civil Hospital, Gurgaon where he remained admitted for about 15/16 days and the best doctor who could give the opinion about the seriousness of the injured was Dr. Subhash Khanna, DW2 Medical Officer, General Hospital, Gurgaon who had been treating the injured in the hospital. The said doctor was not produced by the prosecution as being unnecessary and as such was examined as one of the defence witnesses who has categorically stated that on 2.5.90 the police had sought his opinion about injures No. 1, 2, 4 and 5 and he gave his opinion Ex. DB to the effect that these injuries were not dangerous to life. Mr. Malik thus contends that the opinion of PW3 Dr. Jai Kishan Medical Officer of C.H.C. Nuh who had just prepared the MLR of Zakir injured at the first instance cannot be made the basis of arriving at the conclusion that the injury on the head of Zakir was dangerous to his life which was sufficient to cause death in the ordinary course of nature but for timely aid. He thus contends that section 307 Indian Penal Code is not at all attracted and at the most the offence would fall within the mischief of section 326 Indian Penal Code. 11. Mr. Malik then contends, that taking the prosecution story to be true, section 34 Indian Penal Code is not attracted in this case as the matter had flared up all of a sudden when the water was being diverted by Sheru appellant and Zakir injured stopped the diversion. He then contends that over this trivial matter, an altercation ensued all of a sudden and Zakir received injuries at the hands of present appellants. Learned counsel, thus, contends that section 34 Indian Penal Code is not at all attracted in this case and both the appellants are at the most can be convicted for their individual act. He further submits that in this eventuality Sharfu who had caused simple injuries to Zakir can be convicted under section 323 Indian Penal Code substantively instead of section 307/34 Indian Penal Code. 12. Mr. Malik in the alternative prays for leniency in the quantum of sentence as the present occurrence relates to the year 1990 and both the appellants have already suffered the rigor of protracted trial of about 13 years. 13. 12. Mr. Malik in the alternative prays for leniency in the quantum of sentence as the present occurrence relates to the year 1990 and both the appellants have already suffered the rigor of protracted trial of about 13 years. 13. On the other hand Mr. Sanjiv Sheokand, learned Assistant Advocate General, Haryana has contended that both the appellants duly armed with tabbal and lathi have caused five injuries on the person of Zakir and as such they have been rightly convicted under Sections 307/34 Indian Penal Code and 323/34 Indian Penal Code. He then contended that both the appellants do not deserve any leniency qua quantum of sentence as well. 14. After hearing the rival contentions of both the sides, I am of the considered view that the section 307 Indian Penal Code cannot be diluted in this case. As per the statement of Dr. Jai Kishan PW3, Zakir the injured herein has received as many as five injuries. Injury No. 1 is an incised wound on left parietal temporal region. This injury has resulted into multiple fractures over parietal area of skull as is clear from the radiological examination conducted by PW2 Dr. BB Aggarwal. The other injuries are, however, simple in nature. Injury No. 1 is attributed to Sheru with tabbal. It is used from its sharp edged side. No doubt there are two conflicting opinions of two doctors in this case. Dr. Jai Kishan PW3 states that the injuries on the person of Zakir could cause death if proper treatment had not been given. On the other hand Dr. Subhash Khanna, Medical Officer DW2 has stated in his opinion Ex. DB that the injury was not dangerous to life. Both the opinions are dated 2.5.90. Zakir was admitted in Government Hospital on 18.4.90 and was discharged on 6.5.90. Injury No. 1 on the person of Zakir is on parietal area of skull resulting into multiple fractures. This injury was in fact was very serious injury and one can very well visualise that a very forceful blow with sharp cutting weapon was given on the head of Zakir resulting in multiple fractures of skull. The circumstances show that this blow was given with such an intention and knowledge that it could cause death. Dr. Jai Kishan has categorically stated that patient remained unconscious, his blood pressure and pulse was also down. The circumstances show that this blow was given with such an intention and knowledge that it could cause death. Dr. Jai Kishan has categorically stated that patient remained unconscious, his blood pressure and pulse was also down. On 17.4.90, Zakir was not fit to give the statement. On 18.4.90, he was again declared unfit to make statement. On 20.4.90, he was again stated to be unfit to make statement. On 22.4.90 Dr. Subhash Khanna DW2 also gave the opinion that the patient was semiconscious and was not even speaking and as such unfit to make statement. On 23.4.90 also injured was unfit to make statement. This all goes to show that the patient was not in a position to speak for about a week. This circumstance also speaks volumes of the fact that the injury on the head of Zakir was of such a serious nature that it kept the patient unfit to utter a word. In fact Zakir gained consciousness after 13 days and his statement was then recorded after 15 days of the occurrence. 15. At the cost of repetition, it may be mentioned that there were multiple fractures on the skull of Zakir and this all clearly shows that injury No. 1 on the head of Zakir which was attributed to Sheru appellant does fall within the mischief of Section 307 of Indian Penal Code. The argument of Mr. Malik in this regard is, thus, repelled. 16. So far as section 34 is concerned, I find force in the argument advanced by the learned counsel for the appellants. Admittedly the present occurrence flared up all of a sudden over the diversion of water. Sharfu was allegedly armed with a lathi and he gave lathi blows on non-vital part of the body. I have once again perused the statement of Dr. Jai Kishan PW3. Injury No. 2 is bruise, injury No. 3 is swelling on the left eye. Injury No. 4 is also bruise on the left arm and injury No. 5 is also bruise on the back. The case of the prosecution is that when the altercation ensued, Sheru caused one injury from the sharp of his tabbal on the head of Zakir and thereafter he and his brother Sharfu caused other injuries to Zakir. 17. Injury No. 4 is also bruise on the left arm and injury No. 5 is also bruise on the back. The case of the prosecution is that when the altercation ensued, Sheru caused one injury from the sharp of his tabbal on the head of Zakir and thereafter he and his brother Sharfu caused other injuries to Zakir. 17. Taking into consideration the totality of the facts and circumstances of the case, it cannot be said that section 34 Indian Penal Code is attracted in this case. Both the appellants, thus, would be liable for their individual act. Injuries attributed to Sharfu appellant, thus, would fall within the purview of section 323 Indian Penal Code. His conviction under section 307/34 Indian Penal Code as recorded by the trial court is, thus, bad and cannot be sustained. Sharfu appellant consequently, is acquitted of charge under section 307/34 Indian Penal Code and instead is convicted under section 323 Indian Penal Code only. Sheru appellant is consequently convicted under section 307 Indian Penal Code substantively and 323 Indian Penal Code substantively. So far as the quantum of sentence is concerned, it is stated by the learned counsel that both the appellants remained in custody for about three weeks. The present occurrence relates to the year 1990. The appellants have already faced the rigor of protracted trial of long 13 years. Since, Sharfu appellant has been convicted under section 323 Indian Penal Code only, I am of the view that ends of justice would be adequately met if his substantive sentence is reduced to the period already undergone. It is ordered accordingly. 18. So far as Sheru appellant is concerned, keeping in view all the facts and circumstances of the present case, his substantive sentence of five years is reduced to two years under section 307 Indian Penal Code. The fine is imposed upon him is, however, enhanced from Rs. 500/- to Rs. 5000/-. In default of payment of fine he shall undergo further RI for six months. The sentence under Section 323 Indian Penal Code awarded to Sheru appellant is reduced to the period already undergone. Fine if recovered shall be handed over to the injured by the trial court. 19. Resultantly, the appeal is partly allowed in the terms indicated above. 20. In default of payment of fine he shall undergo further RI for six months. The sentence under Section 323 Indian Penal Code awarded to Sheru appellant is reduced to the period already undergone. Fine if recovered shall be handed over to the injured by the trial court. 19. Resultantly, the appeal is partly allowed in the terms indicated above. 20. Since the substantive sentence of Sheru appellant was suspended by this Court after his conviction and he was granted bail, necessary steps shall be taken to take him in custody to serve out his remaining part of substantive sentence. 21. Intimation of this judgment be sent to learned trial court, Chief Judicial Magistrate concerned and jail authorities. Appeal partly allowed.