Judgment ( 1. ) THIS appeal has been preferred against the judgment dated 31-3-2001 passed by First Additional Sessions Judge, Seoni in S. T. No. 2/2000 whereby each one of the appellants was convicted and sentenced as under:- In addition, the appellant No. 2 Chainsingh also stands convicted under section 323 read with Section 34 of the Code and sentenced to undergo simple imprisonment for two months and to pay fine of Rs. 300/- and in default, to suffer si for 15 days. ( 2. ) PROSECUTION story, in short, may be narrated as under:- (i) On 1-8-1998 at about 5 p. m. , after entering into house of bijanlal (P. W. 1), a she-calf belonging to appellant No. 1 beniram (for short a1) had eaten rice. On being asked to take care of the cattle, A1 started hurling filthy abuses; trespassed into Parchhi of the house; dragged Bijanlal to the courtyard and assaulted him repeatedly with an axe. At this point of time only, the appellant No. 2 Chainsingh (hereinafter referred to as a2) arrived at the spot. He also dealt successive blows with a lathi on Bijanlal. Archana (P. W. 3), the daughter-in-law of Bijanlals younger brother and her sister-in-law Jasanbai (P. W. 2) came forward to intervene but Jasanbai was also hit on her back by A1 with handle of the axe. (ii) It was upon the FIR lodged by Archana that a case under sections 326 and 323 read with Section 34 of the Code was registered against the appellants. Injured Bijanlal and jasanbai were immediately taken to the hospital where they were examined by Dr. S. N. Soni (P. W. 8 ). (iii) Injuries sustained by Bijanlal included fracture in the mid-shaft of right radius bone. ( 3. ) IN addition to the offence of house trespass to commit offence punishable with life imprisonment, A1 was charged with the offences under sections 326 and 323 of the Code for causing grievous hurt to Bijanlal with an axe and simple hurt to Jasanbai by using blunt side of the weapon whereas charges of the offences under Sections 326 read with Sections 34 and 323 of the code for sharing a common intention to inflict grievous injury with an axe to bijanlal and for causing injuries to Bijanlal only with a lathi were framed against a2. They denied the respective charges. They denied the respective charges. According to them, it was the complainant party that was aggressor and they had acted in self-defence. For this, attention was invited to the fact that both of them were subjected to medical examination with reference to a counter report (Exh. D-5) lodged by A2 against bijanlal and his companions. ( 4. ) THE prosecution sought to prove the charges by examining as many as 11 witnesses whereas defence was substantiated by calling Constable Vijay baghel (D. W. 1), Chandanlal (D. W. 2) and Dr. A. K. Sarawgi (D. W. 3 ). However, learned Trial Judge, losing sight of the fact that Dr. A. K. Sarawgi had already been examined as a prosecution witness, permitted the appellants to examine him as a defence witness despite a well-settled position of law on the point that such a juxtaposition is not contemplated under Section 233 of the code of Criminal Procedure (See : State of M. P. Vs. Badri Yadav, AIR 2006 SC 1769 ). ( 5. ) UPON consideration of the entire evidence on record, learned Trial judge, for the reasons assigned in the impugned judgment, rejected the plea of self-defence. Nevertheless, he acquitted the appellants of the major offences punishable under Sections 450 and 326 of the Code. Instead, both of them were adjudged guilty for criminal trespass and also for causing injuries to Bijanlal with axe and lathi respectively. A2 was further convicted for having a common intention with A1 to inflict injuries to Bijanlal with an axe. ( 6. ) LEARNED Counsel for the appellants has strenuously urged that the order of conviction is not sustainable in the wake of- (i) apparent inconsistencies between the evidence of the injured and the prosecution version as recorded in the FIR (Exh. P-l) at the instance of the eye-witnesses Archana (P. W. 3 ). (ii) variance between ocular and medical evidence. (iii) non-explanation of the injuries received by the appellants. In response, learned Government Advocate has submitted that the impugned convictions are well-merited. ( 7. ) WITH a view to appreciating rival contentions in the right perspective, it is necessary to first consider the medical evidence available on record. ( 8. ) DR. S. N. Soni (P. W. 8) proved existence of the following injuries, as described in the report (Exh. ( 7. ) WITH a view to appreciating rival contentions in the right perspective, it is necessary to first consider the medical evidence available on record. ( 8. ) DR. S. N. Soni (P. W. 8) proved existence of the following injuries, as described in the report (Exh. P-8), on the person of Bijanlal:- (i) Lacerated wound on mid of scalp about 3" x I" x bone deep. (ii) A punctured wound in a diameter of I" on right arm with contusion. (iii) One contusion on right forearm just below elbow. (iv) An incised wound on right middle finger 1/2 cm * 1/2 cm. In his opinion, the injury Nos. (ii) and (iv) above could be caused by a sharp and pointed object. ( 9. ) RADIOLOGIST Dr. A. K. Sarawgi (P. W. 9) confirmed the grievous nature of injury No. (iii) above by stating that he had noticed fracture on the mid-shaft of the right radius bone. It was this medical expert only who corroborated the fact that on 2- 8-1998 at about 3. 50 p. m. , the under-mentioned injuries were found on the body of A1:- (i) A lacerated wound 2 1/2cm*1/2* fascia deep just above hair line of mid-forehead with marginal edema. (ii) Abrasion superficially epidermis above left wrist 3" * 1/2" vertically placed with upward trailing. (iii) Abrasion 2 *1/2 cm over dorsum of right middle finger, mid-phalange with dried serum. According to the medical expert, A1 also complained of pain in right shoulder and left forearm. He categorically stated that A2 had not sustained any external injury. ( 10. ) AS per statement of Bijanlal (P. W. 1), after dragging him out of the house, the appellants jointly assaulted him with axe and lathi respectively and when Archana and Jasanbai tried to save him, A1 struck a lathi blow on the back of Jasanbai. First informant Archana (P. W. 3) as well as injured Jasanbai (P. W. 2) also corroborated the factum of the joint attack on Bijanlal with axe and lathi. However, their statements suffered from the following discrepancies with reference to the other evidence adduced by the prosecution:- (i) As asserted by Bijanlal and supported by Jasanbai and archana, A1 had dealt an axe blow on his head whereas the injury found on his scalp was in the form of a lacerated wound. However, their statements suffered from the following discrepancies with reference to the other evidence adduced by the prosecution:- (i) As asserted by Bijanlal and supported by Jasanbai and archana, A1 had dealt an axe blow on his head whereas the injury found on his scalp was in the form of a lacerated wound. (ii) The statements of Bijanlal, Jasanbai and Archana are consistent on the point that A2 had assaulted him with lathi on right hand and right leg but no injury on the right leg was detected in the medical examination. (iii) According to Bijanlal and Archana, A1 was the author of the injury sustained by Jasanbai on her back whereas jasanbai clearly stated that the injury was caused by A2 only. (iv) As admitted by Dr. S. N. Soni (P. W. 8), the punctured wound noticed by him on Bijanlals right arm could not be caused by axe (Article A1) or lathi (Article A2) seized by Head constable Jitendra Singh (P. W. 11) from the possession of the appellants respectively. (v) Amongst the eye-witnesses named in the FIR, Doolanbai (P. W. 4) alleged that Jasanbai was beaten by both the appellants whereas Durga Prasad (P. W. 10) clearly admitted that he was not able to see the beating of Jasanbai. ( 11. ) VIJAY Baghel (D. W. 1) supported the plea of defence by admitting that before sending the appellants to hospital for medical examination, the report (Exh. D-5) was recorded at S. No. 76 of the Rojnamcha of P. S. Barghat only upon the information furnished by A1, who was in an injured condition. ( 12. ) ADVERTING to the legality of the impugned convictions, it may be observed that the evidence of Bijanlal (P. W. 1), corresponding medical evidence and the eye-witness account given by first informant Archana (P. W. 3) and other witnesses viz. , Jasanbai (P. W. 2), Doolanbai (P. W. 4) and Durga Prasad (P. W. 10) were cumulatively sufficient to establish the offence of voluntarily causing hurt to Bijanlal. This apart, the evidence of these witnesses also proved the guilt of the appellants in respect of the offence of criminal trespass punishable under section 447 of the Code beyond a reasonable doubt. ( 13. This apart, the evidence of these witnesses also proved the guilt of the appellants in respect of the offence of criminal trespass punishable under section 447 of the Code beyond a reasonable doubt. ( 13. ) ALTHOUGH, Chandanlal (D. W. 2) came forward to substantiate the defence version yet, his assertion that A2 had also received injury on hand, did no gather support from the medical evidence. In absence of any other cogent and creditworthy evidence as to the counter account, learned Trial Judge concluded that appellants were the aggressors. This finding was justified in view of the fact that the number of injuries, described by the medical experts, was not the only criterion for determining who the aggressor was [state of M. P. Vs. Ramesh, (2005) 9 SCC 705 ]. As explained by the Apex Court, it cannot be stated as a universal rule that whenever the injuries arc on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilistic the version of the right of private defence. ( 14. ) SINCE the injury on Bijanlals head could be caused by blunt side of the axe being carried by A1, it fell under the second category of conflict between oral testimony and medical evidence as enumerated by the Apex Court in thaman Kumar Vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380 . Accordingly, the learned Trial Judge did not commit any illegality in ignoring the absence of any incised wound corresponding to the axe blow allegedly dealt by a1. However, having recorded the finding that the injury on Bijanlals head was inflicted by using blunt side of an axe, the learned Trial Judge ought to have convicted the appellants respectively for the offences punishable under sections 323 and 324 read with Section 34 of the Code (Jai Narain Mishra Vs. State of Bihar, AIR 1972 SC 1764 referred to ). Further, in the effort to separate chaff from the grain, he rightly came to the conclusion that charges of the offences under Sections 450, 326 and 323 of the Code for causing injuries to jasanbai could not be regarded as proved in the face of the discrepancies highlighted above. State of Bihar, AIR 1972 SC 1764 referred to ). Further, in the effort to separate chaff from the grain, he rightly came to the conclusion that charges of the offences under Sections 450, 326 and 323 of the Code for causing injuries to jasanbai could not be regarded as proved in the face of the discrepancies highlighted above. Learned Trial Judge, therefore, proceeded to convict the appellants under Sections 447 and 323 of the Code for the offences of criminal trespass and causing hurt to Bijanlal with axe and lathi respectively. He further convicted A2 under Section 323 read with Section 34 of the Code for sharing a common intention with A1 to cause injuries to Bijanlal with an axe. Thus, viewed from any angle, none of the contentions raised against the impugned convictions deserves acceptance. ( 15. ) WHILE passing sentences, learned ASJ completely overlooked that both the offences for which A2 was found guilty related to assault upon a single person and further, by virtue of the principle of joint liability, embodied in section 34 of the Code, A2 was liable for the criminal act done by A1 in the same manner as if it were done by him alone. This had led to a ridiculous result inasmuch as A1, after being held guilty of causing the head injury to Bijanlal with an axe, was subjected to single punishment whereas A2, who was found guilty of inflicting injuries by means of a lathi received double punishment, that too in contravention of Section 71 of the Code. This Section, which is in consonance with the rule of double jeopardy enshrined in Article 20 (2) of the Constitution of India, prohibits double punishment for the same criminal act. ( 16. ) TO sum up, only the impugned sentences passed against A2 for the offence under Section 323 read with Section 34 are not legal as being violative of section 71 of the Code. However, no useful purpose would be served in sending the appellants again to jail in view of the fact that they have already suffered imprisonment for a period of 16 days for the offence under Section 323 of the code allegedly committed as early as on 1-8-1998. Interest of justice would be met if the custodial sentence is reduced to the period already undergone by the appellants and the fine amount is enhanced to Rs. Interest of justice would be met if the custodial sentence is reduced to the period already undergone by the appellants and the fine amount is enhanced to Rs. 1,000/ -. Besides this, the fine sentence under Section 447 of the Code deserves to be affirmed as appropriate. ( 17. ) IN the result, the appeal is allowed in part. The impugned convictions are hereby affirmed. The fine sentence under Section 447 of the code is maintained and the custodial sentence under Section 323 of the Code is reduced to the period already undergone by the appellants but the fine amount is enhanced from Rs. 300/- to Rs. 1000/ -. The defaulter shall suffer imprisonment for a period of one month. ( 18. ) THE impugned sentences of fine and imprisonment passed against a2 Chainsingh for the offence punishable under Section 323 read with Section 34 are set aside. The fine amount, if deposited, may be adjusted against the enhanced amount of fine for the offence under Section 323 of the Code.