JUDGMENT :- Criminal Appeal No.197 of 1998 preferred by nine accused persons who were convicted out of thirteen put to trial before the learned Second Additional Sessions Judge. Akola in Sessions Trial No.21 of 1994 for the offences punishable under Sections 147, 148, 325 read with 149, 326 read with 149 and 307 read with 149 take exception to their conviction by the learned Additional Sessions Judge, for the offence punishable under Section 147. 148, 326 read with 149 of the Penal Code and the resultant sentence imposed upon them. Criminal Revision No.118 of 1998 seeks to give vent to the anguish of the complainant for the trial Court not having held the appellants guilty of the offence punishable under Section 307 of the Penal Code. 2. The facts in the context of which the appellants came to be prosecuted alongwith other accused are as under: The complainant Walayatali as well as all the accused are residents of village Panaj. On the second day of Id in the year 1981 when the complainant was returning from the house of one Sheru and was passing by the house of accused Abdul Samad all the accused attacked him, Accused No, 1 Sheikh Mehboob hit him on his head by axe and Accused No.3 Sheikh Adil gave a stick blow on his neck. Other accused were also armed with sticks. Accused No.5 Sk. Yusuf was armed with spear and gave a blow by spear on his right hand. All the accused beat him up. Accused No.1 Sk. Mehboob also hit the complainant by axe on his right leg. The complainant fell unconscious. In the course of assault on complainant when his daughters tried to intervene they were also beaten up. Police Officers reached the spot and accused took to heels. Police Constable Maheshwar informed the Police Station on telephone. Police force reached the spot. The victim was shifted to Hospital at Akot and from there to Civil Hospital, Akola. 3. An offence was registered and after recording statements of witnesses, performing spot panchnama, causing victim to be examined and on completion of investigation, the police sent charge-sheet against fourteen persons. Of them one Samad Patel, died during pendency of the trial, and hence, after commitment the learned Additional Sessions Judge charged remaining thirteen accused persons of various offences, as aforementioned. An offence was registered and after recording statements of witnesses, performing spot panchnama, causing victim to be examined and on completion of investigation, the police sent charge-sheet against fourteen persons. Of them one Samad Patel, died during pendency of the trial, and hence, after commitment the learned Additional Sessions Judge charged remaining thirteen accused persons of various offences, as aforementioned. In its attempt to bring home guilt of the accused the prosecution examined in all 12 witnesses. Upon consideration of evidence of these 12 witnesses the learned Second Additional Sessions Judge, Akola held accused No.1 Abdul Mehboob Abdul Samad guilty for the offence punishable under Sections 147, 148 and 326 r/w 149 of the Penal Code and sentenced him to suffer Rigorous Imprisonment for one month and to pay a fine of Rs. Two Hundred on the first two counts and Rigorous Imprisonment for three years and fine of Rs. Two Thousand or in default of payment of fine R.I. for six months for the third count. Accused No.2 Abdul Asif, Accused No.3 Abdul Adil, Accused No.4 Abdul Najim, Accused No.6 Altaf Hussain, Accused No.8 Himayat Hussain, Accused No.9 Shahid Khan Tamizkha Accused No.10 Nazakatali and Accused No.13 Sharafatali were convicted for the offence punishable under Sections 147, 148 and 149 of the Penal Code and sentenced to suffer Rigorous Imprisonment for one month and to pay a fine of Rs.Two Hundred. All the accused were acquitted of the offence punishable under Section 307 of the Penal Code and Accused No.5 Abdul Yusuf, Accused No.7 Imdad Hussain, Accused No.11 Musaratali and Accused No.12 Mustaqali were acquitted of all the charges. As already stated, aggrieved thereby the present proceedings have been filed. 4. I have heard learned counsel for the appellants, the learned counsel for Revision Petitioner as also learned Additional Public Prosecutor for State. 5. With the help of all the learned counsel I have gone through the entire evidence tendered before the trial Court, in order to examine the correctness of the course taken by the learned trial Judge. P.W.6 Dr. Bhinge was working as Medical Superintendent of Rural Hospital, Akot on 18-4-1991 when the complainant Walayatali was referred to him for examination. 5. With the help of all the learned counsel I have gone through the entire evidence tendered before the trial Court, in order to examine the correctness of the course taken by the learned trial Judge. P.W.6 Dr. Bhinge was working as Medical Superintendent of Rural Hospital, Akot on 18-4-1991 when the complainant Walayatali was referred to him for examination. Upon examination he found that the victim has contused lacerated wound over right side of parietal temporal region, incised wound over right side of middle 1/3rd of upper arm, deformity on middle 1/3rd left upper arm with suspected fracture, contused lacerated wound with right tibia fabula and compound fracture with contused lacerated wound over lower 1/3rd of left tibia and fabula. He proved Medical Certificate issued by him at Exh.99. He had referred the patient for radiological examination and after examining X-ray plates found that there was fracture of lower 1/3rd of tibia and fabula on the left side. He also found that there was fracture of left humerus bone. He proved his certificates and X-ray· plates at Exhs.100 and 101. He found that there was no fracture of skull bone. He also found that there was fracture of right tibia and fabula and proved certificate and X-ray plates at Exh.102, 103-A, 103-C and 103-D. According to Dr. Bhinge all the injuries could have cumulatively caused death of the victim in ordinary course if timely curative aid was not given. All the injuries had been caused within six hours of examination of Dr. Bhinge. 6. In cross-examination Dr. Bhinge admitted that there was no facility of taking Xray at Rural Hospital, Akot, therefore, he referred the patient to General Hospital, Akola. He could not state as to who was X-ray Technician who had taken X-ray. He stated that though he was Master in Surgery he was not a Radiologist. 7. P.W.9 Santosh Kumar Agrawal, X-ray Technician at General Hospital, Akola had brought original register of X-ray plates. He stated that he had personally taken X-ray of Walayatali and had given numbers on the Xray plates corresponding to the numbers recorded in the register. He stated that the xray plates which are at Exh.103-A, B, C & D were the same. He also proved X-ray Plate at Exh.101. He produced xerox copy of concerned pages of the register at Exhs.112 and 113. He stated that the xray plates which are at Exh.103-A, B, C & D were the same. He also proved X-ray Plate at Exh.101. He produced xerox copy of concerned pages of the register at Exhs.112 and 113. The cross-examination of this witness would show that there was some confusion in his mind about the X-ray Plate numbers of Walayatali and also about another patient Deepak, but he denied the suggestion that X-ray plates were not of Walayatali. The learned counsel for the appellants sought to take advantage of this confusion in the evidence of P.W.9 Santosh Agrawal. However, it must be seen that the Medical Superintendent P.W.6 Dr. Bhinge had personally examined the patient and then referred the patient for radiological examination. Since Dr. Bhinge has already expressed suspicion of fracture on the particular parts of the body upon clinical examination which was corroborated by the X-ray plates, there is no scope for confusion. In any case, the learned trial Judge has himself brought down the gravity of the offence from one punishable under Section 307 of the Penal Code to 326 of the Penal Code and therefore, not much weight need be given to the discrepancies in the evidence of P.W.9 X-ray Technician. It must be held as proved that Walayatali has sustained grievous hurt in the incident dated 18-4-1991. 8. P.W.6 Dr. Bhinge had also examined Nasiruddin Shamsuddin on 19-4-1991 and found that Nasiruddin had contusion on left lower limb, vide certificate, proved by him at Exh.104. However, this injury to Nasiruddin is not relevant because of his own evidence as P.W.3 at Exh.95 where he stated that the injury was caused to him because belt of floor mill had struck him. He denied that any of the accused persons had beaten him. 9. With this prelude about the injuries observed on the victim it would be necessary to go to the question of authorship of those injuries. P.W.4 Walayatali had identified accused No.1 Sk Mehboob, Accused No.2 Sk. Asif, Accused No.3 Sk. Adil, Accused No.4 Sk. Nazim, Accused No.5 Yusuf Ali, Accused No.6 Altaf Hussain, Accused No.7 Imdad Hussain, Accused No.8 Himayat Hussain, Accused No.9 Shahid Khan. Accused No.10 Nazakatali, Accused No.ll Nusaratali and accused No.12 Mustaq Ali in his deposition. However, he stated that he was actually hit by an axe by accused No.1 Sk. Asif, Accused No.3 Sk. Adil, Accused No.4 Sk. Nazim, Accused No.5 Yusuf Ali, Accused No.6 Altaf Hussain, Accused No.7 Imdad Hussain, Accused No.8 Himayat Hussain, Accused No.9 Shahid Khan. Accused No.10 Nazakatali, Accused No.ll Nusaratali and accused No.12 Mustaq Ali in his deposition. However, he stated that he was actually hit by an axe by accused No.1 Sk. Mehboob, with stick by accused No.3 Adil and by spear by accused No.5 Yusuf. He did not attribute any specific overt act to the other accused who allegedly participated in the assault. 10. Cross-examination of Walayatali would show that there was enmity between Walayatali, who belongs to Mulla clan and other Muslims in the village. He admitted that Mullas had abused Samad Patel. He denied the suggestion that only Abdul Gaffar and Samad Patel beat him up. He admitted that about a year after the incident Samad Patel died. Though he denied having known as to how Samad Patel died, he admitted that he, Mohd. Ali Master, Adam Ali, Shafakat Ali, Mahefus Ali, Hamid Ali, Nazim Ali were involved in murder case and were convicted and sentenced to life imprisonment. Walayatali admitted that his statement was recorded on 24-4-1991 i.e. after six days of the incident. He claimed to have stated that names of Accused No.2 Asif. Accused No. No.4 Nazim, Accused No.5 Yusuf, Accused No.11 Nusarat Ali and Accused No.I2 Mustaq Ali. However, he could not assign any reason as to why these names were not recorded in the police statement. He also claimed to have stated to the police that accused No.3 Adil gave stick blow on his neck, as also about involvement of other accused person who caught him and beat him up, but could not assign any reason as to why these facts are not recorded in his police statement. 11. His claim towards the end of the cross-examination that all 13 accused were continuously beating him and at least 3-4 strokes were given by each of them would have to be rejected outright as thoroughly exaggerated because such a violent beating with each of thirteen persons giving 3-4 strokes each would have possibly extinguished the flame of life of Walayatali and caused numerous injuries on Walayatali. In view of this, it is clear that the statement of Walayatali cannot be taken for its face value and in the context of previous enmity, possibility of his roping in innocent persons from the rival group cannot be ruled out. 12. P.W.2 Najma is daughter of victim Walayatali. She stated that on learning that her father was being beaten she and her elder sister ran towards the spot. She named aI1 the accused persons as involved in beating her father. She claimed that she and her sister feI1 on the person of the victim to save the victim but the accused persons pulled them aside and started beating her father. She stated that accused No.6 Altaf Hussain, Accused No.10 Najakat Ali and Accused No.11 Nusarat Ali pulled them apart. She too admitted in cross-examination that her statement was recorded about six days after the incident. 13. As already recounted the statement of Mohd. Nasiruddin who had infact, sustained injury is of no use because, he denied having sustained injury in course of the incident. He stated that the victim Walayatali was beaten by Samad Patel and that none of the other accused persons were present. He was therefore, declared hostile. 14. P.W.5 Jamanabai Jiwanwar is an independent witness. She had seen the assault. She stated that the accused persons were beating victim Walayatali with sticks, axes etc. She named Samad Patel, Mehboob, Adil, Nazim, Asif, Nazakat, Musrsat, Yusuf Patel, Shahid, Altab, Himayat and Imdad as persons who had beaten the victim. However, while actually identifying the accused she could identify Adil, Asif, Nazim, Nazakat, Musrat and Shahid correctly. She admitted in cross-examination that her son had filed case against Nazakat Ali for committing theft of bullock and Nazakat Ali has filed case against her son. 15. P.W.7 P.S.I. Maheshwar Chavan states that he was present in the village when the incident took place and when he rushed to the spot he found 9-10 persons beating Walayatali. He recognised Appellant No.1 Mahboob. Appellant No.3 Adil and Appellant No.8 Nazakat Ali as persons assaulting the victim. 15. P.W.7 P.S.I. Maheshwar Chavan states that he was present in the village when the incident took place and when he rushed to the spot he found 9-10 persons beating Walayatali. He recognised Appellant No.1 Mahboob. Appellant No.3 Adil and Appellant No.8 Nazakat Ali as persons assaulting the victim. Now since there is no reason for disbelieving the word of Maheshwar who had nothing to do with local bickering, his identification of three accused may be taken to lend reliable corroboration to the evidence of other prosecution witnesses and it may be safe to conclude that participation of these three persons namely Accused/Appellant No.1 Mahboob. Accused/Appellant No.3 Abdul Adil and Accused No. 10/ Appellant No.8 Najakat Ali is conclusively proved. In the context of factional fight in the village, delay in recording statements and omissions and exaggeration it may be unsafe to rely on the prosecution evidence in respect of other appellants. In this view of the matter, convictions of Appellant No.1 Abdul Mehboob, Appellant No.3 Abdul Adil and Appellant No.8 Nazakat Ali cannot be said to be in any manner vitiated. 16. The learned counsel for revision petitioner questioned the wisdom of the learned Judge in convicting Appellant No.3 Abdul Adil and Appellant No.8 Nazakat Ali (among other convicts) of the offence punishable under Section 149 of the Penal Code without specifying any substantive offence. True it is that while convicting two appellants of the offence punishable under Section 149 of the Penal Code the learned trial Judge should have specified whether it was offence punishable under Section 325 read with Section 149 or 326 read with 149 of the Penal Code that was in his mind. 17. However, considering the nature of assault and the injuries sustained by the victim it may be taken that the learned trial Judge wanted to hold these two persons vicariously liable for the injuries caused to Walayatali by Appellant No.1 in prosecution of the common object of the assembly. It has to be made clear that even P.W.7 P.S.I. Chavan, an eye-witness and author of Exhs.106 and 107 had spotted a mob of about 9-10 persons. It has to be made clear that even P.W.7 P.S.I. Chavan, an eye-witness and author of Exhs.106 and 107 had spotted a mob of about 9-10 persons. Therefore, though the members of unlawful assembly might not have been identified, the fact that the assault was launched in prosecution of common object of unlawful assembly has to be inferred and since names of Adil, Mahboob and Nazakat are specifically mentioned in F.I.R. their convictions have to be upheld. In view of this, there is no force in the revision which seeks to have all accused persons also convicted for even attempt to commit murder. 18. The learned counsel for the appellant submitted that in Naib Singh Vs. State of Punjab, reported at AIR 1986 SC 2192 the Court had reduced sentence of rigorous imprisonment for one year imposed to that till rising of the Court because the incident was 13 years old. Relying on the decision in Kailash Prasad Vs. State of Bihar, reported at AIR 1980 SC 106 the learned counsel submitted that since the injury was not on a vital part, the Court may increase the quantum of fine and reduce the substantive sentence to the imprisonment already undergone. 19. I have carefully considered the contention advanced. There cannot be any inflexible rule emerging from previous decisions in the matter of sentence to be inflicted. However, the fact that the appellants whose conviction is being upheld would be suffering a sentence in respect of an incident which took place about 15 years ago cannot be lost sight of. In view of this, considering the specific role assigned to Appellant No.1 Abdul Mehboob, it may be appropriate to reduce the substantive sentence of rigorous imprisonment for three years imposed upon him to that of rigorous imprisonment for one year while increasing fine from Rs.2,000/- to Rs.25,000/-, in default whereof the appellant Abdul Mehboob would undergo R.I. for further period of one year. Appellant No.3 Abdul Adil and Appellant No.8 Nazakat Ali had been sentenced to suffer R.I. for one month and to pay a fine of Rs.200/- by the trial Court. Considering the passage of time and possibility that these appellants had undergone sentence of imprisonment and had been in jail for about ten days, it would be inappropriate to send them to jail now after fifteen years of the incident to suffer the imprisonment of remaining twenty days. Considering the passage of time and possibility that these appellants had undergone sentence of imprisonment and had been in jail for about ten days, it would be inappropriate to send them to jail now after fifteen years of the incident to suffer the imprisonment of remaining twenty days. Instead, their substantive sentence is reduced from R.I. for one month to that of rigorous imprisonment for ten days, while increasing fine imposed upon them to Rs. One Thousand each. In view of this following order is passed. The appeal is partly allowed. The Conviction of appellant No.2 Abdul Saif S/o Abdul Samad, No.4 Abdul Najim S/o. Abdul Samad, No.5 Altaf Hussain S/o. Tafazul Hussain. No.6 Himayat Hussain S/o. Tafazul Hussain, No.7 Shahid Khan S/o. Tamiz Khan and No.9 Sharafat Ali S/o. Shaukat Ali for the offence punishable under Section 147, 148 and 149 of the Penal Code and the resultant sentence are set aside. The conviction of appellant No.1 Abdul Mehboob S/o. Abdul Samad for the offence punishable under Section 326 read with Section 149 as also Sections 147 and 148 of the Penal Code is maintained. The sentence of rigorous imprisonment for one month and fine of rupees two hundred for offences punishable under Sections 147 and 148 of the Penal Code is also maintained. The sentence for offence punishable under Section 326 read with Section 149 of the Penal Code is set aside and substituted by rigorous imprisonment for one year and fine of rupees twenty five thousand, or in default rigorous imprisonment for one year. The conviction of appellants No.3 Abdul Adil S/o. Abdul Samad and No.8 Nazakat Ali S/o. Shaukat Ali for the offence punishable under Sections 147. 148 and 149 of the Penal Code is maintained. However, their sentence is altered to that of rigorous imprisonment for ten days and fine of rupees One thousand each, or in default rigorous imprisonment for a further period of three months each. Appellants No.1, 3 and 8 shall surrender to their bail and if they do not surrender to their bail within eight weeks, the learned Sessions Judge shall take the steps to have arrested the said appellants and committed to prison to serve the sentence. Bail bonds of appellants No.2,4,5,6,7 and 9 shall stand cancelled. Fine, if paid by them, shall be refunded to them. Fine, if recovered, shall be paid to Walayatali as compensation. Bail bonds of appellants No.2,4,5,6,7 and 9 shall stand cancelled. Fine, if paid by them, shall be refunded to them. Fine, if recovered, shall be paid to Walayatali as compensation. In view of above, the Revision Application No.II8 of 1998 is dismissed. Order accordingly.