Judgment :- (Criminal Appeal filed under Section 374 of Criminal Procedure Code against the judgment of conviction dated 21.10.1998 and made in S.C.No.50 of 1998 on the file of the Additional Sessions Court, Pondicherry at Karaikal.) The appellants are A1 and A2 in S.C.No.50 of 1998 on the file of the Additional Sessions Court, Pondicherry at Karaikal and the appeal is directed against the conviction and sentence imposed to the appellants to undergo rigorous imprisonment for four years for the offence under Section 307 I.P.C. 2. The brief facts that led to the filing of this appeal are as follows:- "(a) The appellants/A1 and A2 are brothers. P.W.2 is the injured witness. P.W.3 is the wife of P.W.2. P.W.4 is the elder brother of P.W.2. P.W.1 is the farm servant (gz;izahs;-tptrha Typ). (b) On 8.6.1997 at 5.00 p.m. P.W.1 was returning with P.W.2 to the house of P.W.2. A1 was coming in the opposite direction in cycle and A1 was warned by P.W.2 that he should not talk with his younger sister Manjula and if he made any attempt to talk with her, it will be dealt with suitably. (c) At 10.00 p.m. on 8.6.1997 P.W.2 came to Nedungadu Market and joined P.W.1 as already informed and both returned in the cycle of P.W.2, in which P.W.2 seated at the carrier. At the junction of Usupoor and Vadakattalai road, both the accused suddenly appeared from the bushes nearby and A1 attacked P.W.2 on the head with aruval M.O.5 and on receiving such assault P.W.2 fell down. A2 also attacked P.W.2 with iron rod M.O.6 stating that "Are you still alive?". P.W.1 cried for help. The house of P.W.2 was at a distance of about 250 feet from the scene of occurrence and on hearing the noise of P.W.1, the father, mother and sister of P.W.2 and P.W.5 Karthikeyan and some others came to the scene of occurrence. P.W.2 was taken in the tyre bullock cart of one Subramaniyam of Usuppur to the hospital near Nedungadu. When they were proceeding to hospital, the younger brothers of P.W.2, viz., by name Selvam and Nadarajan came and asked P.W.1 what had happened. P.W.1 informed them about the occurrence. The younger brother of P.W.2 Nadarajan went in a scooter and brought a taxi, in which P.W.2 was taken to hospital. When they were proceeding to hospital, the younger brothers of P.W.2, viz., by name Selvam and Nadarajan came and asked P.W.1 what had happened. P.W.1 informed them about the occurrence. The younger brother of P.W.2 Nadarajan went in a scooter and brought a taxi, in which P.W.2 was taken to hospital. Thereafter P.W.1 went to police station and gave complaint Ex.P-1 to P.W.14, Sub Inspector of Police, who registered the same in Crime No.38 of 1997 under Section 307 I.P.C. read with Section 34 I.P.C. The printed F.I.R. is Ex.P-20. (d) P.W.14 went to the scene of occurrence and since it was 11.45 p.m. and since it was night time, he could not proceed further and thereafter went to the residence of the accused and found them absconded. P.W.14 went to the Government Hospital, Karaikal, where P.W.2 was admitted in the Emergency Ward. Since the injured P.W.2 was unconscious, P.W.14 returned to the police station at 2.00 a.m. on 9.6.1997 and examined P.W.1 and recorded his statement. P.W.14 went to the Government Hospital at Karaikal at 7.00 a.m. and recovered bloodstained Dhothi (M.O.1) and bloodstained white coloured full sleeved shirt (M.O.2) of the injured P.W.2 under mahazar Ex.P-2 in the presence of witnesses one Ramakrishnan and P.W.4 and recorded their statements. P.W.14 again went to the scene of occurrence at 4.00 p.m. with photographer P.W.7. P.W.14 recovered M.O.3 sample sand and M.O.4 bloodstained sand under mahazar Ex.P-3 in the presence of the witnesses P.W.5 and one Paramasivam and recorded their statements and made arrangement to take photos through P.W.7. P.W.14 drawn rough sketch Ex.P-21. (e) P.W.9 Dr.Mathivanan, attached to Community Health Centre, Thirunallar, examined P.W.2 brought by his relative with head injury and heavy blood bleeding from his head on 9.6.1997 at 00.05 hours and P.W.9 sent intimation to the police. On examination of the injured P.W.2, Dr.Mathivanan(P.W.9) suspected intracronial haemorrahage and referred the case after noting down medicolegal importance to nearby Government Hospital, Karaikal. P.W.9 noted the following injuries: "1) Lacerated injury 15 cm x 1 cm x 1 cm seen over vault region of scale. 2) Lacerated injury 2 cm x 0.5 cm x 0.5 cm over left index finger. 3) Lacerated injury 5 cm x 1 cm x bone deep seen over vault region of scalp behind injury No.1" P.W.9 has opined that the injuries are grievous and he issued wound certificate Ex.P-15. 2) Lacerated injury 2 cm x 0.5 cm x 0.5 cm over left index finger. 3) Lacerated injury 5 cm x 1 cm x bone deep seen over vault region of scalp behind injury No.1" P.W.9 has opined that the injuries are grievous and he issued wound certificate Ex.P-15. (f) P.W.10 Dr.Suboth Kumar Lakra, attached to the Government Hospital, Karaikal on receiving the case referred from Community Health Centre, Thirunallar, examined the injured P.W.2 at 00.30 hours on 9.6.1997 and he noted the following injuries:- "(1) Lacerated injury 15 cm x 1 cm x 1 cm seen over vault region of scalp. (2) Lacerated injury 2 x 0.5 cm x 0.5 cm over left index finger. (3) Lacerated injury 5 cm x 1 cm x bone deep seen over vault region of scalp behind injury No.1." P.W.10 admitted P.W.2 in the Emergency Ward. (g) P.W.12 is the Doctor, Specialist in Surgery in Government General Hospital, Karaikal and examined the injured P.W.2 on 9.6.1997 at 1.45 a.m. on 9.6.1997 in the Emergency Ward, who sustained head injuries on his vavit region. P.W.12 gave opinion that though the injured P.W.2 was conscious, he was not in a fit condition to give statement. Since there is no CAT Scan facilities available in Government Hospital, Karaikal, P.W.2 was referred to High Institution at 11.00 a.m. on 9.6.1997. (h) P.W.11 is running P.K. Nursing Home and also Karthick Scans and Diagnostic Centre, opposite to new Bus Stand at Tanjore. P.W.11 has stated in his evidence that P.W.2 was brought to the Nursing Home on 18.6.1997, who had features of head injury. CT Scan was taken which has the following findings:- "SCALP fracture left temporal parietal region normal. CEREBRAL HEMISPHERES small area of hypodensity in right occipito temporal cortex. Small biconves hyperdense lesion in the right temporal cortes with AV of +49 HU. Rest of the areas normal. SELLA shows normal contour. Smooth walls. Pitutary gland normal. No erosion. ORBITS Normal anatomy of the globes. Both optic nerves normal. Orbital muscles are normal. No intra or extraconal mass lesion. POSTERIOR FOSSA Both cerbellar hemispheres are normal. Vermis normal. Pons, midbrain and medulla appear normal. Cerebello pontine angle cisterns appear normal. VENTRICLES: 4th, 3rd and lateral ventricles show normal size and position. No pressure effect. No mass or bleed. IMPRESSION: 1. Linear fracture, left temporo parietal region. 2. Small EDH right temporal region with brain Odema. 3. POSTERIOR FOSSA Both cerbellar hemispheres are normal. Vermis normal. Pons, midbrain and medulla appear normal. Cerebello pontine angle cisterns appear normal. VENTRICLES: 4th, 3rd and lateral ventricles show normal size and position. No pressure effect. No mass or bleed. IMPRESSION: 1. Linear fracture, left temporo parietal region. 2. Small EDH right temporal region with brain Odema. 3. No mass effect." P.W.11 has also stated in his evidence that P.W.2, who was admitted at P.K.Nursing Home in Tanjore, was discharged in good condition on 28.6.1997. P.W.11, doctor is of the opinion that the injury is grievous in nature. Ex.P-16 is the scan report. (i) In the meanwhile on 11.6.1997 at 5.00 a.m. at Thalatheru, Karaikal, P.W.14 arrested A1 and A2 at the residence of their aunt and both were brought to police station, where P.W.14 recorded confession statements of both the accused, the admissible portions are Exs.P-4 and P-5 respectively in the presence of the witnesses P.W.6 and Paramasivam and both the accused took P.W.14 to the scene of occurrence and A1 took out M.O.5 Aruval from a bush and A2 took out M.O.6 iron rod from the same bush and both were produced to P.W.14, which were recovered under mahazar Ex.P-6 in the presence of the above witnesses. Thereafter both the accused took P.W.14 to their residence and produced bloodstained shirt (M.O.7) and bloodstained white Dhothi (M.O.8) of A1 and colour shirt (M.O.9) and colour lungi (M.O.10) of A2, which were recovered under mahazar Ex.P-7 in the presence of the said witnesses. P.W.14 sent both the accused for remand. He also sent the Material Objects to the Court. (j) On 26.6.1997 P.W.14 went to P.K. Nursing Home, Tanjore, along with PC 1100 and gave a requisition Ex.P-22 to the Medical Officer K.Arumugam with a request to record the statement of injured P.W.2 and also requested to take the blood sample of the injured. Dr.Arumugam of P.K. Hospital took sample blood from the injured which was seized under Form 95(Ex.P-23). P.W.14 examined the injured P.W.2 and Dr.Arumugam. On 27.6.1997 the blood sample was handed over to Judicial First Class Magistrate Court, Karaikal. On 30.6.2997, P.W.14 sent a requisition Ex.P-24 to the Court requesting to send the Material Objects to CFSL, Hydrabad. He deputed P.W.8 and PC 1252 to collect the Material Objects from CFSL, Hydrabad on 14.10.1997. M.O.11 is the remains of victim blood bottle. On 27.6.1997 the blood sample was handed over to Judicial First Class Magistrate Court, Karaikal. On 30.6.2997, P.W.14 sent a requisition Ex.P-24 to the Court requesting to send the Material Objects to CFSL, Hydrabad. He deputed P.W.8 and PC 1252 to collect the Material Objects from CFSL, Hydrabad on 14.10.1997. M.O.11 is the remains of victim blood bottle. On 23.10.1997 he received the copy of the CFSL report (Ex.P-17). Ex.P-18 is the serological report. P.W.14 examined witnesses and recorded their statements and after completing investigation, he filed charge-sheet." 3. In order to prove the case, the prosecution examined P.Ws.1 to 14 and marked Exs.P-1 to P-25 and M.Os.1 to 11. 4. When the accused were questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against them by the respondent, they denied the offence and stated that false case has been foisted against them. 5. The trial Court, in appreciation of such evidence let in on the side of the prosecution, found both the accused guilty and convicted and sentenced as set out above and challenging the same, this appeal is filed. 6. Heard the learned counsel for the appellants/A1 and A2 and the learned Government Advocate (Criminal side) for respondent/State. 7. The learned counsel for the appellants/A1 and A2 made several submissions. Firstly, it is argued that there have been delay in the F.I.R. (Ex.P-20), registered on 8.6.1997 at 11.00 p.m., reaching the Court of Judicial First Class Magistrate, Karaikkal on 9.6.1997 at 5.00 p.m. and the same was not explained by the prosecution and as such, it is fatal to the case of prosecution. Then, it is argued that though in the complaint Ex.P-1 P.W.1 has stated that after occurrence A1 dropped the aruval M.O.5 and ran away from the scene of occurrence, it is not stated so in the evidence. Then by referring the evidence of P.W.14, Investigation Officer that on 8.6.1997 he did not go to the scene of occurrence since it was night time, but in Ex.P-2, mahazar it is stated that he visited the scene of occurrence at 11.45 p.m. on 8.6.1997 and as such, it creates a doubt with regard to the alleged occurrence. Then by referring the evidence of P.W.14, Investigation Officer that on 8.6.1997 he did not go to the scene of occurrence since it was night time, but in Ex.P-2, mahazar it is stated that he visited the scene of occurrence at 11.45 p.m. on 8.6.1997 and as such, it creates a doubt with regard to the alleged occurrence. As regards the assault said to have been made by the accused that suddenly the accused appeared from the bush and attacked, it is contended by the learned counsel that such evidence is unbelievable in view of the fact that the accused could not have known that P.Ws.1 and 2 were coming in the cycle. As regards the assault said to have been made by A1 with M.O.5 aruval and A2 with M.O.6 iron rod to P.W.2, there could have been only two injuries on the head, but in Ex.P-15, wound certificate issued to P.W.2 by P.W.9, three lacerated injuries over vault region of scalp, left index finger and bone deep over vault behind injury No.1 are noted. As per Mahazar Ex.P-2, which also contains crime details and dated 9.6.1997, bloodstained white full sleeved coloured shirt(M.O.2) and bloodstained white dhothi(M.O.1) of P.W.2 were recovered and in the crime details both the weapons have been described as "Sharp edged weapon use of vettaruval and blunt weapon use of iron rod, even before they were recovered on 11.6.1997 after arrest of the accused under mahazar Ex.P-6. It is also noted that the sister of P.W.2 Manjula, in whose connection, P.W.2 warned A1 that he should not talk with her, has not been examined. It is then submitted that P.W.1 did not make any attempt from rescuing P.W.2 at the time of attack by both the accused. It is also argued that in Exs.P-2, P-3, P-6 and P-7, it is mentioned about the presence of electric posts with tube lights fitting, but it is not stated in the said documents as to whether the lights are burning. The learned counsel submitted that there have been delay in rough sketch Ex.P-21 reaching the Court on 18.6.1997 though it was prepared on 9.6.1997. 8. The learned counsel submitted that there have been delay in rough sketch Ex.P-21 reaching the Court on 18.6.1997 though it was prepared on 9.6.1997. 8. The learned Government Advocate submitted that clinching evidence let in on the prosecution side through P.W.2 injured witness and supported by P.W.1 ocular witness and though P.W.1 is the farm servant of P.W.2, his evidence is very much reliable and supported by the F.I.R. and medical evidence. Therefore, considering all these aspects, the trial Court has rightly convicted and sentenced both the accused as set out above and the same does not call for any interference. 9. The occurrence took place on 8.6.1997 at 10.00 p.m. at the junction of Usuppur and Vadakattalai road near Beat No.2, during which time P.W.1 was riding in the bicycle with the pillion rider, the injured witness P.W.2. At that time, in the observation mahazar, it is mentioned, that both A1 and A2 came from the bush nearby and A1 attacked P.W.2 on his head with M.O.5 aruval and A2 attacked P.W.2 on his head with M.O.6 iron rod. In the complaint Ex.P-1 made by P.W.1 to P.W.14, the said fact is referred to that both A1 and A2 came from nearby bush and when P.W.1 turned, A1 attacked P.W.2, who was sitting as a pillion rider in the cycle on the head of P.W.2 with M.O.5 aruval and P.W.2 fell down and P.W.1 also fell down with cycle. Then, A2 by saying "eP brj;jhy;jhd; v';fSf;F epk;kjp" attacked P.W.2 with M.O.6 iron rod. P.W.2, unable to get up, was lying on the ground and blood was oozing out. A1 had run away after leaving M.O.5 aruval and A2 had also run away with M.O.6 iron rod. 10. No doubt, there is some dispute with regard to recovery of M.O.5 aruval by P.W.14. In the complaint Ex.P-1, it is stated that after the attack, A1 left the scene of occurrence leaving M.O.5 aruval. As per the evidence of P.W.14, the Investigation Officer, the said weapon M.O.5 aruval was recovered when A1 was arrested on the basis of the confession statement, the admissible portion is Ex.P-4. It may be that after A1 left the scene of occurrence leaving M.O.5 aruval, there could have been possibility by coming back and taking the same and to hide in nearby bush and as such, the same could have been recovered as stated by P.W.14. It may be that after A1 left the scene of occurrence leaving M.O.5 aruval, there could have been possibility by coming back and taking the same and to hide in nearby bush and as such, the same could have been recovered as stated by P.W.14. 11. The evidence of ocular witness P.W.1 is very much believable. It is supported by the evidence of P.W.2, the injured witness and such evidence tallies with F.I.R. and medical evidence let in through P.Ws.9 to 13 and wound certificate Ex.P-15. P.W.1 has stated in his evidence that there was a tub light burning and he had seen the attack made by both A1 and A2 with M.O.5 aruval and M.O.6 iron rod. In the rough sketch Ex.P-21 also two electric posts are shown wherein it is mentioned that in both the electric posts tube lights were burning. 12. As per Ex.P-2, mahazar, bloodstained white colour full sleeved shirt (M.O.2) and bloodstained white colour dhothi (M.O.1) of P.W.2, were recovered by P.W.14 on 9.6.1997 at 7.00 p.m. from Emergency Ward of Government Hospital, Karaikal, where the injured P.W.2 was taking treatment and therefore, further crime details describing the weapons might have been stated by P.W.2, the injured, even before the weapons are recovered by P.W.14 on the basis of the confession statements of A1 and A2. So, it is clear that there is nothing irregular in describing weapons in Ex.P-2. 13. As regards the delay of F.I.R Ex.P-20 registered on 8.6.1997 at 6.00 p.m. reaching the Court on 9.6.1997 at 5.00 p.m., it cannot be said that there have been much delay and in any event it is not fatal to the case of prosecution, in view of the clinching evidence of prosecution about the occurrence supported by ocular witness P.W.1 and injured witness P.W.2. Further, P.W.14 has not been cross-examined with regard to such delay of the F.I.R. reaching the Court. 14. In his evidence P.W.14 has stated that he visited the scene of occurrence on 8.6.1997 at 11.45 p.m., but he did not proceed further since it is night time. 15. As regards Ex.P-21 prepared on 9.6.1997 by P.W.14 and which reached the Court on 18.6.1997, though it appears some delay, it is not fatal to the case of prosecution. 16. In his evidence P.W.14 has stated that he visited the scene of occurrence on 8.6.1997 at 11.45 p.m., but he did not proceed further since it is night time. 15. As regards Ex.P-21 prepared on 9.6.1997 by P.W.14 and which reached the Court on 18.6.1997, though it appears some delay, it is not fatal to the case of prosecution. 16. It reveals from the evidence of P.Ws.9 to 13 and wound certificate Ex.P-15 and scan report Ex.P-16 that in the assault made by both the accused with M.O.5 aruval and M.O.6 iron rod, the injured P.W.2 suffered grievous injuries and he was discharged from the hospital within ten days from the Government Hospital, Karaikal and thereafter also he took treatment for ten days in a private nursing home, viz., P.K. Nursing Home in Tanjore where he was admitted on 19.6.1997 and discharged on 28.6.1997 and as such, it is clear that P.W.2 suffered such grievous injuries for about 20 days. As per Section 320 I.P.C. such grievous hurt is eighth grievous hurt as described and therefore, only the offence under Section 326 I.P.C. will attract, in that at the time of occurrence A1 attacked P.W.2 with M.O.5 aruval and A2 attacked P.W.2 with M.O.6 iron rod resulting grievous injuries to P.W.2. Accordingly both the appellants/A1 and A2 found guilty under Section 326 I.P.C. 17. Learned counsel for the appellants/A1 and A2 submitted that the appellants are aged 35 and 31 respectively and they are brothers and they have to maintain their family and so some mercy may be shown on them. 18. In the result, considering the facts and circumstances of the case, the Criminal Appeal is partly allowed and the appellants/A1 and A2 are convicted and sentenced to undergo two years rigorous imprisonment for the offence under Section 326 I.P.C. instead of four years under Section 307 I.P.C. The bail bonds executed by both the appellants/A1 and A2 are cancelled. The Additional Sessions Judge, Pondicherry at Karaikal is required to secure the custody of the appellants/A1 and A2 to undergo the remaining period of sentence.