ORAL JUDGMENT : 1. Heard learned counsel, appearing on behalf of the respective parties. 2. This is an appeal by the State under section 377 of the Code of Criminal Procedure against the inadequacy of sentence recorded by Judicial Magistrate First Class, Mukhed in Regular Criminal Case No. 192/1993 whereby the accused/respondents have been convicted for the offence under section 325 r.w. 34 of IPC and sentenced to suffer imprisonment till rising of the court and fine of Rs. 200/- each, in default to suffer rigorous imprisonment for one month, each, as well as convicted for the offence under section 324 and 323 r.w. 34 of IPC and sentenced to suffer imprisonment till rising of the court and fine of Rs. 100/- and Rs. 50/- each, respectively. 3. The incident in question was alleged to have taken place on 12-09-1993 at 8.00 a.m. Informant PW1 Ramrao was ploughing his field. Accused No. 1 Manik had gone there and had quarrel with him on account of grant of way to their land. After that quarrel, when Ramrao was coming to the village to inform this incident to his father Mashana, he was restrained near the village gate. Accused No. 2 Tukaram was having a harrow share in his hand and accused No. 3 Venkat was having a katti. Accused No. 3 Venkat gave a blow by katti on the mouth of Ramrao and caused injury including fracture of teeth. At the same time, accused No. 2 Tukaram assaulted Mashana and caused injuries including fracture of nozal bone. Other accused were also alleged to have assaulted them. PW4 Pandurang was also assaulted and he had sustained injuries. At the next morning, PW1 Ramrao lodged complaint on which offence came to be registered. All the injured were sent to Rural Hospital, Degloor for medical examination. PW7 Dr. Vinayak Munde, Medical Officer examined them and issued medical certificates (Exh-31 to Exh-34). In the investigation, PW8 ASI Dattatraya Kadam got recovered weapons of assault which were produced before him by the accused under panchanamas (Exh-26 and Exh-27). Injured PW2 Mashana was referred to General Hospital, Nanded for treatment. He was treated there and on taking X-rays, doctor noticed fracture to nozal bone of Mashana. Thereafter, the Investigating Officer submitted chargesheet against the accused alleging offence under sections 325, 324, 323 of IPC. 4. Injured PW2 Mashana was referred to General Hospital, Nanded for treatment. He was treated there and on taking X-rays, doctor noticed fracture to nozal bone of Mashana. Thereafter, the Investigating Officer submitted chargesheet against the accused alleging offence under sections 325, 324, 323 of IPC. 4. At the trial before learned Judicial Magistrate First Class, Mukhed, the prosecution examined all three injured, PW1 Ramrao, PW2 Mashana PW4 Pandurang and eye witness PW3 Sheshabai. Panch witness PW5 Dhondiba and PW6 Babanrao were examined, but they turned hostile. PW7 Dr. Vinayak Munde examined these witnesses and proved the medical certificates and the fact of witnesses sustaining injuries. Relying upon the evidence of three injured witnesses, corroborated by medical evidence all three accused were held guilty of offence punishable under sections 325, 324 and 323 of IPC. After hearing the accused on the point of sentence, a lenient view has been taken and sentence of imprisonment till rising of the court and fine of Rs. 200/-, Rs. 100/- and Rs. 50/-, respectively was imposed for the offence under section 325, 324 and 323 of IPC. The State preferred this appeal against inadequacy of sentence under the provisions of Section 377 of the Code of Criminal Procedure, which came to be admitted by this court by order dated 22-11-2002. 5. On behalf of the appellant/State, learned APP Smt. Reddy advanced submission that for the serious offence under section 325, 324 and 323 of IPC, learned Magistrate imposed sentence of imprisonment till rising of the court and megre fine amount only. Hence, this is a case of inadequate sentence. The sentence imposed on the accused, therefore, needs to be enhanced. On the other hand, on behalf of the accused/ respondents, learned advocate Shri Sharma advanced submission that the prosecution witnesses, injured exagerated the story. They alleged that the injuries have been caused by sharp cutting instruments; however, medical evidence did not support their contention because the doctor has specifically stated that none of the witnesses had sustained an injury which is incise wound in nature and also gave positive opinion that the injuries sustained by all the injured are possible by fall. According to Shri Sharma, the witnesses have suppressed the genesis of the evidence. Their evidence is not corroborated by medical evidence. Hence, the order of conviction is not sustainable and accused are entitled for acquittal. According to Shri Sharma, the witnesses have suppressed the genesis of the evidence. Their evidence is not corroborated by medical evidence. Hence, the order of conviction is not sustainable and accused are entitled for acquittal. Alternative submission has been made that in case this court finds that the conviction is justified, then the incident being occurred thirteen years back, considering the age of the accused persons, the sentence imposed on them by the trial court should not be enhanced. He also submitted that the trial court ought to have given benefit of probation as the accused were first offenders. 6. This is an appeal by the State against inadequacy of sentence. It is well settled law that in such an appeal, the accused can claim acquittal. Let us first consider as to whether this judgment of conviction is sustainable or whether the accused are entitled for acquittal. . The order of conviction is recorded relying upon the evidence of four witnesses, out of which three are injured witnesses. It is an admitted fact that all the injured are related to each other and they are interested. It is also not disputed that in relation to this incident, a counter case i.e. Criminal Case No. 199/1993 was filed by the police. Investigating Officer PW8 ASI Pawar admitted that in this incident, the accused also sustained the injuries and on their complaint, offence was registered against these witnesses and the Investigating Officer had submitted chargesheet. With this background, as all the witnesses are interested and they are also accused in another criminal case, a careful scrutiny of their evidence is necessary. The cases being the counter cases, the learned Magistrate ought to have decided both the cases simultaneously, but the judgment shows that this course is not adopted as the judgment indicates that the counter case was pending before the same Magistrate when this case came to be disposed. In such cases, the court was supposed to find out as to who is the aggressive party. It may be mentioned here that the accused in the present case did not come with a defence of right of private defence. Hence, it is necessary to see as to whether injured witnesses examined at the trial are reliable or not and whether the conviction is justified. 7. PW1 Ramrao lodged complaint of this incident with the police. It may be mentioned here that the accused in the present case did not come with a defence of right of private defence. Hence, it is necessary to see as to whether injured witnesses examined at the trial are reliable or not and whether the conviction is justified. 7. PW1 Ramrao lodged complaint of this incident with the police. Incident did occur on 12-09-1993 in the morning at 9 a.m. and the offence came to be registered on the same day at 12.30 noon. According to PW1 Ramrao, he was ploughing his field. Accused No. 1 Manik had gone there in the field and raised dispute with Ramrao in relation to right of way to their field. This is the only statement made in relation to the incident which did occur in the field. For that incident, prosecution is not lodged, but according to Ramrao, while he was coming to the village to give intimation of the said quarrel in the field, as soon as he entered in the village, at village gate, all accused restrained him in front of Gram Panchayat office and thereafter, they have assaulted him and other witnesses. According to him, he was caught hold by accused Nos. 1 Manik, accused No. 2 Tukaram and juvenile offender Maroti and thereafter accused No. 3 Venkat gave a blow by one katti on his mouth because of which, he lost his one incisor and another one got damaged. When the assault was going on, his father Mashana arrived there and tried to intervene, but he was caught hold by accused No. 1 Manik and accused No. 3 Venkat and accused No. 2 Tukaram assaulted PW2 Mashana and caused injuries on his nose. Thereafter, PW4 Pandurang came to the spot and he was also assaulted by accused No. 3 Venkat. His father PW2 Mashana has stated that he was at the house of carpenter and hearing commotion, he arrived on the spot and noticed the quarrel between accused No. 1 Manik and PW1 Ramrao. Other accused also arrived there. Accused No. 2 Tukaram and juvenile offender Maroti caught hold his son complainant Ramrao and thereafter, accused No. 3 Venkat assaulted his son by katti and caused damage to his right teeth. It may be mentioned here that in view of the statements of these witnesses, this act cannot be said to be a pre-planned attack. Accused No. 2 Tukaram and juvenile offender Maroti caught hold his son complainant Ramrao and thereafter, accused No. 3 Venkat assaulted his son by katti and caused damage to his right teeth. It may be mentioned here that in view of the statements of these witnesses, this act cannot be said to be a pre-planned attack. According to PW1 Ramrao, when he entered the village gate, all accused restrained him and this incident occurred thereafter. However, his father who had arrived on the spot after hearing commotions, stated that quarrel was going on between accused No. 1 Manik and PW1 Ramrao and thereafter, other accused arrived on the spot and this incident did occur. Under these circumstances, it cannot be said that the assault on the injured witnesses is an assault in furtherance of their common intention. Thus, every individual will be responsible for their own acts. As per evidence of these two witnesses, accused No. 3 Venkat caused injury to PW1 Ramrao and accused No. 2 Tukaram caused injuries to PW2 Mashana. The act alleged against accused No. 1 Manik and juvenile offender Maroti is the act that they had caught hold and no overtact was attributed to them. As regards the act of accused No. 2 Tukaram and accused No. 3 Venkat, causing injuries to PW1 Ramrao and PW2 Mashana, the evidence of witnesses is consistent. As to which injuries have been caused and which offences came to be committed will be considered independently. 8. PW3 Sheshabai is the mother of PW1 Ramrao. According to her, she was at her house and after hearing commotion, she came to the spot. She had seen accused No. 3 Venkat holding katti and accused No. 2 Tukaram had an iron share of a harrow. Accused No. 2 Tukaram assaulted her husband Mashana and caused injury to his nose and accused No. 3 Venkat gave blow by katti to her son Ramrao on his lip. In the cross-examination, an omission has been brought on record as to whether in this incident, PW1 Ramrao had to lose his one incisor teeth and another was fallen on the ground. But as regards the alleged assault on Ramrao (PW1) by accused No. 3 Venkat and assault by accused No. 2 Tukaram on PW2 Mashana, there are no omissions or contradictions. 9] PW4 Pandurang is an injured witness. But as regards the alleged assault on Ramrao (PW1) by accused No. 3 Venkat and assault by accused No. 2 Tukaram on PW2 Mashana, there are no omissions or contradictions. 9] PW4 Pandurang is an injured witness. According to him, after hearing commotion, he arrived on the spot and he had seen accused No. 3 Venkat assaulting his brother Ramrao by katti and causing injury on his lip. He stated that because of this blow, one teeth of Ramrao was fallen. As regards assault on PW2 Mashana, he has stated that accused No. 2 Tukaram caused injury to Mashana. When he tried to intervene, accused No. 3 Venkat gave a katti blow on him. He has also not attributed any overtact to accused No. 1 Manik. However, his evidence is also consistent that accused No. 3 Venkat gave blow by katti on the mouth of Ramrao and caused injuries. Accused No. 3 Venkat also caused injury to PW4 Pandurang and accused No. 2 Tukaram caused injuries to Mashana. No overtact is attributed by anyone of the witnesses to accused No. 1 Manik except vague allegatino that accused No. 1 Manik had caught hold PW1 Ramrao. That statement cannot be accepted and accused No. 1 Manik cannot be held responsible for the assault by his sons on the witnesses. But each one of them who caused injuries to the witnesses will be responsible for thier own acts. As such, the conviction of accused No. 1 Manik is not found justified. Though he has not challenged his conviction, accused No. 1 Manik is entitled for acquittal of all the charges. 10. As discussed to above, the evidence of three injured eye witnesses and their mother PW3 Sheshabai is consistent and cogent and it proved the fact that accused No. 3 Venkat caused injury to Ramrao by a katti and also caused injury to PW4 Pandurang by same weapon. Accused No.2 Tukaram caused injury to PW2 Mashana. All the witnesses made an attempt to show that by a blow given by accused No. 3 Venkat on the mouth of Ramrao, Ramrao lost one teeth and second teeth was broken or fractured. But it was found to be an improvement because at the time of their earlier statements, they have not stated the loss of one incisor, but they have consistently deposed that the teeth was broken. But it was found to be an improvement because at the time of their earlier statements, they have not stated the loss of one incisor, but they have consistently deposed that the teeth was broken. Medical evidence also does not corroborate their version about the loss of two tooth by Ramrao. PW7 Dr. Vinayak Munde examined PW1 Ramrao and issued medical certificate (Exh-34) and he also stated that on examination of Ramrao, Ramrao found sustained two contused lacerated wounds, one over upper lip and one over right cheek. According to him, first incissor of right side was found fractured with fresh bleeding. There is no reference in the certificate nor the witness stated that besides this fracture of first incissor, any other teeth of Ramrao was found lost or damaged. Hence, the story narrated by the witnesses that Ramrao lost two tooth is an exagerated version. However, it is established by the medical evidence that in this incident, Ramrao sustained two contused lacerated wounds, one over upper lip and another over right cheek and first incissor was found fractured and it was a fresh injury. As regards assault on Ramrao, learned advocate Shri Sharma pointed out that this injury was alleged to have been caused by katti, a sharp edge weapon. PW1 Ramrao also states that this injury is caused by a sharp edge weapon. PW7 Dr. Munde stated that none of the injuries of PW1 Ramrao was found to be an injury by a sharp edge weapon as it was not an incise wound. According to learned advocate Shri Sharma, the story narrated by the witness that injuries caused by katti, a sharp edge weapon as deposed by the witnesses is not reliable. The doctor has admitted that the injury sustained by PW1 Ramrao was not an injury by any sharp edge instrument, like katti. Considering the nature of the injuries, it is clear that these are not the injuries caused by sharp edge weapon. But the evidence shows that the blow by katti has been given to Ramrao and injury has been caused on his lip and cheek and one teeth was fractured. It can be said that it was not a blow by sharp edge weapon. But the evidence that this injury is grievous, caused to Ramrao cannot be discarded on this count. . It can be said that it was not a blow by sharp edge weapon. But the evidence that this injury is grievous, caused to Ramrao cannot be discarded on this count. . Thus, it is established by the evidence of eye witnesses and the medical evidence that in this incident, PW1 Ramrao sustained injury fracture of his teeth and it was caused by accused No. 3 Venkat. Hence, accused No. 3 Venkat is found guilty of the offence under section 325 of IPC. 11. In this incident, PW4 Pandurang and PW2 Mashana also sustained injuries. According to PW2 Mashana, after he arrived on the spot, accused No. 1 Manik, accused No. 2 Tukaram and juvenile offender Maroti caught hold his son Ramrao and accused No. 3 Venkat assaulted Ramrao by katti. PW2 Mashana was caught hold by accused No. 1 Manik, accused No. 3 Venkat and juvenine offender Maroti and accused No. 2 Tukaram gave blow by an iron bar (share) on his nose and on left eye. When his son PW4 Pandurang arrived there, he was also beaten. He states that other accused had also beaten him by sticks, kicks and blows. However, he has admitted that at the time of his earlier statement, he has not stated that he had sustained any injury on his eye. He also admits that at the time of his earlier statement, he has not stated that he has sustained injury on left hand and left leg. His version is found consistent about the assault on him by accused No. 2 Tukaram only. PW1 Ramrao, PW3 Sheshabai and PW4 Pandurang also corroborated his version. His testimony is also found corroborated by PW7 Dr. Vinayak Munde, who examined PW2 Mashana and noticed contused lacerated wound over root of nose as well as fracture of nozal bone and two contusions on the left hand and left leg as certified by him in certificate (Exh-32). He claims that Mashana was referred to General Hospital and he produced on record X-ray plates and he states that X-ray revealed the fracture of nozal bone of Mashana. He has admitted in the cross-examination that he has not personally taken the X-ray. He also admits that he has not received opinion of Radiologist about this fracture. He claims that Mashana was referred to General Hospital and he produced on record X-ray plates and he states that X-ray revealed the fracture of nozal bone of Mashana. He has admitted in the cross-examination that he has not personally taken the X-ray. He also admits that he has not received opinion of Radiologist about this fracture. The conclusion arrived at by him on clinical examination suspecting the fracture, as mentioned in Exh-32, positively it cannot be held that there was fracture. Hence, accused No. 2 cannot be held guilty of the offence under section 325 of IPC, but it will amount to an offence under section 324 of IPC. (14) 12. The assault on PW4 Pandurang as disclosed by him is an assault by accused No. 3 Venkat. All the witnesses have stated that PW4 Pandurang had arrived on the spot and when he was trying to intervene, accused No. 3 Venkat caused injury to him. His version is corroborated by medical evidence of PW7 Dr. Munde who has examined PW4 Pandurang and noticed one contused lacerated wound over cheek and it was a simple injury. By the said assault, accused No. 3 Venkat has committed offence under section 323 of IPC. 13. On scrutiny of the evidence, the judgment of conviction as against accused No. 1 Manik for any offence is not found justified because except his presence, no overtact is attributed to him. In this appeal, conviction of accused No. 1 Manik needs to be set aside. However, as stated above, accused NO. 3 Venkat caused injury - grievous hurt to PW1 Ramrao and also caused injury to PW4 Pandurang by a sharp cutting instrument. Hence, his conviction under sections 325 and 324 of IPC is perfect and needs to be maintained. 14. From the evidence, referred to above, accused No. 2 Tukaram is found to have assaulted PW2 Mashana and caused injury on his nose. It was a suspected fracture, but it cannot be said that there was fracture. Hence, the conviction against accused No. 2 Tukaram for the offence under section 325 of IPC is not justified, but he is found guilty of the offence under section 324 of IPC for causing hurt to PW2 Mashana. . Accused No. 3 Venkat is also found to be guilty of the offence under section 324 of IPC for causing injury to PW4 Pandurang. 15. . Accused No. 3 Venkat is also found to be guilty of the offence under section 324 of IPC for causing injury to PW4 Pandurang. 15. The learned Magistrate while awarding the sentence took a lenient view and awarded sentence of imprisonment till rising of the court and imposed fine. Hence, the State came in appeal alleging inadequacy in the sentence. The learned Magistrate in his judgment paragraph No. 23 observed that accused No. 1 is a person of more than sixty years of age, but conviction against accused No. 1 is not found justified, hence his case needs no consideration for enhancement of sentence. Further the learned Magistrate observed that accused No. 3 is the son of accused No. 1 and accused No. 2 is the nephew of accused No.1. No reasons have been recorded for taking lenient view except mentioning the fact that accused No. 1 is a old man and others are his sons. However, from paragraph No. 21 of the judgment, it appears that on behalf of the accused, submission was made that it was the first offence of the accused and they are repenting for the same. Submission was also made that except the accused persons, no one was there to look after their respective families and on that count, leniency was prayed. Admittedly, the sentence of imprisonment till rising of the court and payment of megre fine can not be said to be an adequate sentence. Hence, question remains as to whether now, it needs to be enhanced. Accused No. 2 Tukaram at the time of incident was a boy of twenty two years and accused No. 3 Venkat was of twenty five years old. The prosecution did not allege that they were involved in the activities in commission of crimes and this was found to be their first offence. This being the first offence and considering the conduct and age of the accused, the trial court could have given benefit of probation; however, that course has not been adopted. The incident in question did occur in the year 1993 i.e. about thirteen years back. Admittedly, there were counter cases. The prosecution witnesses and the accused are the neighbouring land owners. The incident did occur on account of some dispute of a way to their field. It is not known as to what had happened to other case which was a counter case. Admittedly, there were counter cases. The prosecution witnesses and the accused are the neighbouring land owners. The incident did occur on account of some dispute of a way to their field. It is not known as to what had happened to other case which was a counter case. Now, to convict the offenders after about thirteen years and send them to jail, will give cause to strain their relations in future also. Considering this lapse of time and the age of the offenders at the time of commission of offences, this case is not found to be a fit case to enhance the sentence imposed on the accused by the trial court. Hence, the appeal of the State for enhancement of the sentence as against these appellants/accused needs to be dismissed. However, as stated above, the conviction of accused No. 1 Manik is not found justified. The conviction of accused/appellant No. 1 Manik, therefore, needs to be set aside. Accused No. 2 Tukaram is found guilty of offence under section 324 of IPC only. Accused No. 3 Venkat is found guilty of the offence under sections 325 and 324 of IPC, but the trial court has convicted both accused Nos. 2 and 3 for all three charges. Hence, it is necessary to modify their sentence also. 16. In the result, a] The appeal of the State for enhancement of the sentence against the respondents/original accused Nos. 1 to 3 is dismissed. However, the conviction of respondent/accused No. 1 Manik is not found justified for any offence, hence, accused/appellant No. 1 Manik is acquitted of all the offences with which he was charged by setting aside the sentence recorded against him. Fine amount, if any found paid by respondent/accused No. 1 Manik is ordered to be refunded to him. b] The order of conviction against accused/respondent No. 2 Tukaram for the offence under sections 325 and 323 of IPC is set aside and he is acquitted of the said offences. However, the conviction against him for the offence under section 324 of IPC is maintained. The fine amount, if any found paid by respondent/accused No. 2 Manik for the offence under sections 325 and 323 of IPC be refunded to him. c] The conviction of accused/respondent No. 3 Venkat for the offence under sections 325 and 324 as well as sentence for the said offence is confirmed. The fine amount, if any found paid by respondent/accused No. 2 Manik for the offence under sections 325 and 323 of IPC be refunded to him. c] The conviction of accused/respondent No. 3 Venkat for the offence under sections 325 and 324 as well as sentence for the said offence is confirmed. However, the conviction against him for the offence under section 323 of IPC is set aside and he is acquitted of the offence under section 323 of IPC. The fine amount, if any found paid by accused/respondent No. 3 Venkat for the offence under section 323 of IPC, be refunded to him. d] The bail bonds of all the accused/appellants shall stand cancelled.