Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of Criminal procedure has been filed being aggrieved by the judgment, finding and sentence dated 19. 01. 1994 passed by VIII Additional Sessions judge, Bhopal in Sessions Trial No. 135/86, whereby the appellants have been convicted under Section 307 read with section 34 of I. P. C. and sentenced to R. I. for 4 years each with fine of Rs. 200/-in default of payment of fine R. I. for 6 months respectively. ( 2. ) PROSECUTION case in short is that on 14. 11. 1981 at 12. 30 p. m. one bharat resident of Mugaliya Chhap lodged the F. I. R. at Police station, Bairagarh to the effect that his brother Veerbhan has gone to answer the call of nature. On hearing the cries of his niece geeta he awakened and rushed and saw that Raghunath, shankar, Jagannath, Ghisilal and Kanhaiya were assaulting veerbhan with Farsi, axe, Lathi and iron Salang. His brother sustained injuries on head, legs and feet. Raju, Kewal and several other persons have witnessed the incident. On this report Crime no. 261/81 under Sections 148, 149 and 326 of I. P. C. was registered. Injured was sent for medical examination to P. H. C. Bairagarh. Dr. K. C. Dodaniya found that the general condition of the patient was not good, therefore, the detailed examination of the injuries could not be done. He was referred to Hamidiya Hospital, bhopal for Medico Legal Examination and needful treatment. Dr. N. S. Ubeja medically examined him and found four incised wound and one lacerated wound as detailed in his medical report. Dr. K. N. Agrawal examined him and found traumatic amputation of left leg with the multiple injuries on right knee, right forearm and head and admitted in hospital. X-rays were also taken and Dr. Mrs. Rashmi Muttar found fracture of lower end femur, right tibia upper, fracture of upper surface tibia and fracture of both tibia and fibula and fracture of right parietal bone and in his skull. Map was prepared. Statements of the witnesses were recorded. Accused persons were arrested. The weapons of offence were recovered. After completing the investigation chargesheet was filed in the Court of J. M. F. C. , Bhopal from where the case was committed on 21. 08. 1986 to the Sessions Court for trial. ( 3. Map was prepared. Statements of the witnesses were recorded. Accused persons were arrested. The weapons of offence were recovered. After completing the investigation chargesheet was filed in the Court of J. M. F. C. , Bhopal from where the case was committed on 21. 08. 1986 to the Sessions Court for trial. ( 3. ) THE accused persons were charged under Sections 148 and 307/149 of I. P. C. They denied the guilt and claimed to be tried. Prosecution examined as many as 13 witnesses whereas the accused persons did not examine any witness in their defence. After appreciating the evidence trial Court acquitted three accused persons namely Shankar Dayal, Ghisilal and Kanhiram @ kanhaiya. These appellants were also acquitted from the charge under Sections 148 and 149 of I. P. C. but convicted under Section 307/34 of I. P. C. and sentenced as stated hereinabove in para No. 1 of the judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 4. ) LEARNED counsel for the appellants submitted that it has not been proved that any injury was caused by sharp edged weapon. No weapon was shown to doctor to question him as to whether injuries could be caused by the seized weapons. Appellant raghunath has also sustained injuries which indicate that the complainant party was aggressor. The case of the appellants are similar to those who have been acquitted by the trial Court. Bharat (PW-2) is not an eyewitness. Kasam Khan (PW-6) has not been declared hostile. Raju who has been shown as an eyewitness in F. I. R. , has not been examined by the prosecution, therefore, the adverse inference should be drawn against the prosecution. No offence under Section 307 of I. P. C. is made out. The finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. ( 5. ) ON the contrary, Shri Deepak Awasthy, learned Govt. Advocate appearing on behalf of the respondent/state supported the impugned judgment, finding and sentence mainly contending that veerbhan (PW-1) is an injured witness. He has clearly stated that he was assaulted by the appellants. The theory of complainant being aggressor has not been raised before the trial Court. ( 5. ) ON the contrary, Shri Deepak Awasthy, learned Govt. Advocate appearing on behalf of the respondent/state supported the impugned judgment, finding and sentence mainly contending that veerbhan (PW-1) is an injured witness. He has clearly stated that he was assaulted by the appellants. The theory of complainant being aggressor has not been raised before the trial Court. Apart from it, there is no question of complainant being aggressor because he was not having any weapons with him. Trial Court has given the reasons for acquittal of other co-accused persons. There is positive evidence against the appellants. They have used the deadly weapons. The offence under Section 307 of I. P. C. has been proved against the appellants and trial Court has rightly convicted them hence no interference is called for. ( 6. ) THE main point for consideration in this appeal is that whether trial Court has committed any illegality in convicting and sentencing of the appellants under Section 307/34 of I. P. C. ? ( 7. ) VEERBHAN (PW-1) has stated that on 14. 11. 1981 at about 7. 00 a. m. he has gone to answer the call of nature. Accused persons came there. Appellant Jagannath inflicted Farsa blow at his head and raghunath inflicted axe blow at his leg. Other accused persons also inflicted Farsa blow at his shoulder. On his cries Bharat (PW-2), Bhawarji (PW-4) and Hajari Lal (PW-5) came there then the accused persons fled away. He was carried to Hamidiya Hospital, bhopal where he was treated. This witness has further stated that the accused persons caused his marpeet because of some land dispute. ( 8. ) INSPITE of lengthy and piercing cross-examination no contradiction has been brought on record with respect to the weapons which these appellants were having at that time and causing marpeet. Only the contradictions and omissions have been brought on record with respect to other accused persons regarding weapons which they were having at that time and its advantage has already been given to the acquitted accused persons. He has denied the suggestive questions that the appellants have been falsely implicated on account of the land dispute. Thus, this witness is giving the evidence against these appellants regarding the manner and method in which they caused injuries to him. ( 9. He has denied the suggestive questions that the appellants have been falsely implicated on account of the land dispute. Thus, this witness is giving the evidence against these appellants regarding the manner and method in which they caused injuries to him. ( 9. ) LEARNED counsel for the appellants submitted that since there is enmity in between the parties, therefore, the evidence of Veerbhan (PW-1) be not accepted. Learned counsel for the appellants has placed reliance on the decision rendered in Uma Shankar Vs. State of uttar Pradesh, A. I. R. 1979 SC 1456. ( 10. ) IN the cited case enmity between the parties was admitted. In f. I. R. it was mentioned that three accused persons shouted that deceased should be killed but prosecution witness attributed overt act of incitement to only one accused. Therefore, the benefit of doubt was given to the convicted accused. ( 11. ) THE facts of the case in hand is quite distinguishable from the cited case. Here, in this case, Veerbhan (PW-1) has clearly stated that appellants inflicted Farsa and axe blows to him. It is established principle of law that enmity is double edged weapon. It may be used from any side if there is possibility to falsely implicate the appellants then the possibility of beating by them cannot be ruled out. The cited case is of no help to the appellants in the facts and circumstances of this case. ( 12. ) GEETA Bai (PW-13) is the daughter of Veerbhan (PW-1 ). She has stated that her father has gone to answer the call of nature in the morning. She heard the cries of her father. She went there and saw that appellants were causing marpeet of her father also. Raghunath was having axe, Jagannath was having Farsi and other accused persons were also having Farsi. She rushed towards the house of elder brother of her father. Thereafter Bharat (PW-2), Bhawarji (PW-4) and Hajari Lal (PW-5) went there to save her father. She saw the injuries on the person of her father. In cross-examination some contradictions have been brought from her police statement (Ex. D-5) but they are of no significance. Her evidence is intact on the point regarding causing marpeet of her father by the appellants. ( 13. She saw the injuries on the person of her father. In cross-examination some contradictions have been brought from her police statement (Ex. D-5) but they are of no significance. Her evidence is intact on the point regarding causing marpeet of her father by the appellants. ( 13. ) LEARNED counsel for the appellants submitted that the name of geeta Bai (PW-13) is not mentioned as an eyewitness in the F. I. R. and her father has also not stated that she reached there, therefore, the evidence of Geeta Bai is unreliable. Learned counsel has placed reliance on the decision rendered in Ram Kumar pande Vs. State of M. P. , A. I. R. 1975 SC 1026. ( 14. ) IN the cited case (PW-2), (PW-6) and (PW-7) were not mentioned in f. I. R. as eyewitnesses of the murder. It was held that omission of important facts affecting the probability of the case are relevant under section 11 of the Evidence Act judging the veracity of the prosecution case. ( 15. ) SO far as the present case is concerned, it is clearly mentioned in f. I. R. (Ex. P-1) that Geeta Bai (PW-13) cried that her father is being killed and hearing her cries Bharat (PW-2) reached there, therefore, the cited case is quite distinguishable from the facts of this case. ( 16. ) BHARAT (PW-2) has stated that after hearing cries of his brother veerbhan (PW-1) he reached at the spot and saw that he was lying down. Appellant Raghunath was having axe, Jagannath was having farsa and other accused persons were also having Farsa. Accused persons tried to chase him also but he ran away towards his house. Thereafter he saw that his brother was not in senses and he was having injuries on his person. Thereafter he lodged the report Ex. P-1. In cross-examination this witness has stated that Geeta Bai (PW-13)told him that the appellants are assaulting her father and he also heard the cries, therefore, he went at the spot. Some contradiction has been brought on record from his police statement Ex. D-2 but they are inconsequential so far as these appellants are concerned. It reveals from his evidence that he saw these appellants having deadly weapons there and also seen injuries on the person of Veerbhan (PW1 ). ( 17. Some contradiction has been brought on record from his police statement Ex. D-2 but they are inconsequential so far as these appellants are concerned. It reveals from his evidence that he saw these appellants having deadly weapons there and also seen injuries on the person of Veerbhan (PW1 ). ( 17. ) LEARNED counsel for the appellants submitted that Bharat (PW-2) has not witnessed the incident, therefore, his evidence is unreliable. But it is a fact that he reached at the spot and saw the appellants there having armed with deadly weapons. The appellants chased him, therefore, he ran away and thereafter saw the injuries on the person of his brother and lodged the report. In such circumstances, it cannot be said that he has not witnessed the incident. ( 18. ) BHAWARJI (PW-4) has also stated that he reached at the spot after hearing the cries of Veerbhan (PW-1) and saw that accused persons were assaulting Veerbhan (PW-1) with axe, Ballam, Farsi etc. They ran away after seeing them. Thereafter the report was lodged and police prepared the spot map Ex. P-3. This witness has been subjected to lengthy cross-examination wherein the contradiction and omission has been brought on record from his police statement Ex. D3 regarding the weapons which accused persons were carrying. No doubt some inconsistency is there but the same is not sufficient to discredit his testimony. ( 19. ) HAJARI Lal (PW-5) has also supported the version of Veerbhan (PW-1 ). He saw the accused persons causing marpeet to Veerbhan. They were armed with axe and Farsi. He has clearly stated in cross-examination that he saw the accused persons running after assaulting Veerbhan. Thus the testimony of this witness is unrebutted on the material point. ( 20. ) KEVALRAM (PW-3) is also an eyewitness. He has deposed that he has seen the injuries on the person of Veerbhan but he has not supported the prosecution case, therefore he has been declared hostile. ( 21. ) LEARNED counsel for the appellants submitted that in F. I. R. Kevalram (PW-3) and Raju (not examined) witnesses are shown to be an eyewitness. Out of them Kewalram (PW-3) has not supported the prosecution case and Raju has not been examined. ( 22. ( 21. ) LEARNED counsel for the appellants submitted that in F. I. R. Kevalram (PW-3) and Raju (not examined) witnesses are shown to be an eyewitness. Out of them Kewalram (PW-3) has not supported the prosecution case and Raju has not been examined. ( 22. ) LEARNED counsel for the appellants submitted that the testimony of the hostile witness should not be discarded for the reasons that he has not accepted the prosecution case. Learned counsel has placed reliance on the judgment rendered in Radha Mohan Singh @ Lal saheb v. State of U. P. , AIR 2006 SC 951 . ( 23. ) IN the cited it has been held that statement of the hostile witness can not be rejected in toto merely because prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. ( 24. ) SO far as the present case is concerned, in F. I. R. it is mentioned that kewal, Raju and several other persons have witnessed the incident. Injured Veerbhan (PW-1) has given the evidence against the appellants. He is a good eyewitness. The evidence of Kewalram can be accepted to the extent he supports the prosecution case. ( 25. ) LEARNED counsel for the appellants submitted that Raju has not witnessed the incident, therefore, his evidence should not be relied by the prosecution. Learned counsel has placed reliance on the decision rendered in Ishwar Singh v. State of U. P. , AIR 1979 SC 2423. ( 26. ) IN the cited case the effect of non-examination of witness essential for unfolding prosecution case has been considered. But so far as the present case is concerned, the several eyewitnesses have unfolded the prosecution case and stated how occurrence took place, therefore, the cited case is of no help to the appellant. ( 27. ) LEARNED counsel for the appellant submitted that Veerbhan has not suffered any injury by sharp edged weapon. It has not been proved that which of the appellants caused which injury and who gave the fatal blow. Learned counsel has placed reliance on the decision rendered in Deoka v. State of Maharashtra, 1993 Supp (1) 447. ( 28. ( 27. ) LEARNED counsel for the appellant submitted that Veerbhan has not suffered any injury by sharp edged weapon. It has not been proved that which of the appellants caused which injury and who gave the fatal blow. Learned counsel has placed reliance on the decision rendered in Deoka v. State of Maharashtra, 1993 Supp (1) 447. ( 28. ) IN the cited case it was held that in absence of any evidence showing when and by whom the fatal injury was caused to the deceased none could be convicted substantively for offence of murder with the aid of section 34. ( 29. ) SO far as the present case is concerned, Veerbhan (PW-1) has specifically stated that appellant Jagannath inflicted Farsa blow at his head and appellant Raghunath inflicted 2-3 axe blows at his legs. Veerbhan was medically examined by Dr. N. S. Ubeja who has not been examined in the trial Court but the report given by him is lying unexhibited in second part of the record which clearly indicates that the victim was having four incised wounds on the parts mentioned in this report. Since the concerned doctor has not been examined, therefore, it could not be exhibited and proved. But it cannot be said that the victim was not having injury of the sharp edged weapon. ( 30. ) DR. K. C. Dodaniya (PW-9) on 14. 11. 1981 examined the injured and found that the condition of Veerbhan was serious, therefore, he referred him to Hamidiya Hospital, Bhopal. Medical report is Ex. P/6. ( 31. ) DR. K. N. Agrawal (PW-10) has also examined Veerbhan (PW-1) and found traumatic amputation of left leg with multiple injuries on right knee, right forearm and head. His general condition was poor. He was admitted in hospital. R. S. O. Surgery was asked to note the details of injuries. Ex. P/7 is report written and signed by him. ( 32. ) DR. Rashmi Muttar (PW-12) after examining the x-ray reports of veerbhan (PW-1) found fractures of lower end of femur, upper surface of tibia in right leg, fracture of both tibia and fibula in left leg and fracture of right parietal bone. ( 33. ) THUS from the evidence adduced it is clearly established that veerbhan suffered grievous injuries. ( 34. ) LEARNED counsel for the appellants submitted that Raghunath has also sustained injuries, therefore, the complainant was aggressor. ( 33. ) THUS from the evidence adduced it is clearly established that veerbhan suffered grievous injuries. ( 34. ) LEARNED counsel for the appellants submitted that Raghunath has also sustained injuries, therefore, the complainant was aggressor. Dr. M. S. Thakur (PW-8) on 17. 11. 1981 examined Raghunath and found one hamatoma at his right middle finger with blackness of nails and a bruise over left shoulder. These injuries were simple in nature. This witness has admitted in cross examination that injury No. 2 described in medical report Ex. P/5 can be caused by fall on hard object. ( 35. ) LEARNED counsel for the appellants submitted that the question has not been asked by the concerned doctor showing the weapons as to whether injuries to Veerbhan can be caused by these weapons. But it is evident that Dr. N. S. Ubeja who found the injuries on the person of veerbhan could not be examined, therefore, there was no question to show the weapon to him. This argument is not acceptable in the facts and circumstances of this case. ( 36. ) IT is manifestly clear that appellant Raghunath sustained simple injury whereas Veerbhan (PW-1) has suffered several fractures. In such situation, it was not obligatory on the part of prosecution to explain as to how appellant Raghunath sustained injuries. Moreover, it is also evident that Veerbhan has also gone to answer the call of nature. He was not having any weapon whereas the appellants were having deadly weapons, therefore, there was no question of the complainant being aggressor. ( 37. ) LEARNED counsel for the appellants submitted that the appellants were in possession of the land, therefore, they have exercised the right of private defence of property. But it has not been brought on record as to what the complainant was doing at the disputed land at that time. Moreover the fact is that he has gone to answer the call of nature, therefore, there was no question of exercising the right of private defence of property. The defence is baseless and cannot be accepted. ( 38. ) B. D. MISHRA (PW-11) has seized the axe and Farsi from these appellants vide Ex. P/11. Thus the weapon of offence has been seized from these appellants. ( 39. ) LEARNED counsel for the appellants submitted that Kasam Khan (PW6) has not supported the seizure of weapons. The defence is baseless and cannot be accepted. ( 38. ) B. D. MISHRA (PW-11) has seized the axe and Farsi from these appellants vide Ex. P/11. Thus the weapon of offence has been seized from these appellants. ( 39. ) LEARNED counsel for the appellants submitted that Kasam Khan (PW6) has not supported the seizure of weapons. He has also not been declared hostile, therefore, the seizure of weapons is not proved. But the contention of the learned counsel is not acceptable for the simple reason that Kasam Khan (PW-6) is the seizure witness of the weapons from the accused persons who have already been acquitted by the trial Court. He is not the seizure witness of the weapons seized from these appellants. ( 40. ) LEARNED counsel for the appellants submitted that appellants have been convicted from the same set of evidence on which the other accused persons have been acquitted, therefore, the benefit of the same be also extended to the appellants. But the contention of the learned counsel for the appellants is not acceptable because there was discrepancy regarding the weapons, which acquitted accused persons carrying on at the time of incident. As per prosecution case they were having the lathi and rods at that time but in the evidence before court the witnesses have stated that they were having the farsi, therefore, giving its benefit the trial court acquitted them from the offence. But so far as the present appellants are concerned, there is specific evidence that Raghunath was having axe and Jagannath was having Farsi by which they assaulted Veerbhan, therefore, no such benefit can be extended to these appellants. ( 41. ) LEARNED counsel for the appellants further submitted that the offence under Section 307 I. P. C. is not made out from the evidence adduced by the prosecution. No doubt there is no evidence that the injuries caused to Veerbhan were dangerous to life or was sufficient in the ordinary course of nature to cause his death. In such circumstances, offence under Section 307 I. P. C. is not made out. Instead of it the offence under Section 326 of I. P. C. is made out because the appellants have caused the injuries by deadly weapons such as axe and Farsi and Veerbhan suffered the grievous injuries. In such circumstances, offence under Section 307 I. P. C. is not made out. Instead of it the offence under Section 326 of I. P. C. is made out because the appellants have caused the injuries by deadly weapons such as axe and Farsi and Veerbhan suffered the grievous injuries. Thus the appellants are held guilty under Section 326 of I. P. C. instead of section 307 of I. P. C. ( 42. ) LEARNED counsel for the appellants submitted that the appellants have already suffered jail sentence of more than 6 months, therefore, they be released on the period already undergone. Learned counsel has relied on the decision rendered in Naib Singh v. State of Punjab, AIR 1986 SC 2192 and Pashora Singh and another v. State of Punjab, air 1993 SC 1256 . ( 43. ) BUT keeping in view the facts and circumstances of this case, the period already undergone would not meet the ends of justice. It is evident that Veerbhan was mercilessly beaten and suffered several fractures. Since the appellants have suffered the mental agony for a long period, therefore, the sentence deserves to be reduced from 4 years to 3 years. ( 44. ) CONSEQUENTLY, the appeal is partly allowed. The conviction under section 307 of I. P. C. is converted into Section 326 of I. P. C. The sentence is reduced from 4 years R. I. to 3 years R. I. The fine amount imposed by the trial Court is hereby maintained. The appellants are on bail. Their bail bonds are cancelled. They be directed to surrender before C. J. M. , Bhopal on 13. 10. 2008 for serving out the remaining part of the sentence.