JUDGMENT 1. - Appellants aggrieved of their conviction and sentence awarded of four years rigorous imprisonment and fine of Rs. 400/- for the offence of Section 307 read with Section 34 I.P.C. as per above judgment, have preferred this appeal. 2. Heard learned counsel for the appellant and learned Public Prosecutor. 3. Brief alleged events leading to prosecution appear to be that on 9.8.1984 at 11 A.M., Kanhaiya Lal PW-6 lodged a written report Ex.P-7 averring that on that morning around 6 O'clock when Prabhu Lal with buffaloes was on way to grazing fields, Heer Das, Bhagwan Das, Shyam Das, Mohan assaulting did severely beat Prabhu Lal with an intention to kill him who because of injuries fell down unconsciously there on way - on information and loud cries he, the first informant, going there found Prabhu Lal in such a state so he taking a jeep from Begu brought him to Begu hospital and now is lodging information/report. 4. As per endorsement on Ex.P-7 of Incharge Police Station PW-13, on query Kanhaiya Lal informed that yesterday between these persons occurred some altercation regarding a "rody" (some very little pond like for preparing fertilizer) made near Bada of Bhanwar Lal and the pond was small. This incident of beating was observed by Ms. Panni, Shankar and other children who informed in village, then he Nana Lal, Kashi Lal etc. went and by that time, assailants run away. 5. Registering F.I.R. Ex.P-8 No. 161/1984 for the offence of Sections 341, 323, ASI PW-13 requested the Medical Officer for examination of injuries - inspecting the place of occurrence on 13.8.1984 prepared memo Ex.P- In course of investigation, appellant Shyam Das arrested on 22.8.1984 and on his disclosure statement Ex.P-22 a lathi recovered from his house - respective memos are Ex.P- 3, 22 and 5. Appellant Heer Das who was arrested on 22.8.1984 and on his information a lathi recovered from his house respective memos are Ex.P-2, 19 and 4. Accused-appellant Mohan Das was also arrested on 22.7.1984 and on his information also a lathi recovered from his house - respective memos are Exx.P- 17, 20 and 21. One other accused Bhagwan Das was arrested on 27.9.1981. 6. Injured at Begu Hospital was examined by Dr. Das PW-10 who finding some injuries of grievous nature referred injured for X-ray etc. to Chittorgarh where in a clinic of PW-12 Dr. One other accused Bhagwan Das was arrested on 27.9.1981. 6. Injured at Begu Hospital was examined by Dr. Das PW-10 who finding some injuries of grievous nature referred injured for X-ray etc. to Chittorgarh where in a clinic of PW-12 Dr. Kothari, X-rays of right hand, left hand, right leg were taken of injured which are Ex.P-12 to Ex.P-14. Dr. Das PW-10 prepared injury report Ex.P-6 and also opined as per Ex.P-16 that out of total 12 injuries, four are grievous and some could have been grave. Recording statement of witnesses and after usual investigation a charge-sheet submitted for offences of Section 307 read with Section 34 I.P.C. in Sessions Case No. 124/1984. 7. Appellants charges for the offence of Section 307 read with 34 I.P.C. that they on 9.8.1984 in morning around 6 O'clock with an intention of causing death of Prabhu Lal concertedly inflicting severe injuries to Prabhu Lal, attempted to murder him. 8. Prosecution examined 13 witnesses. Prabhu Lal PW-5 is injured, Kanhaiya Lal PW-6 taking injured to hospital lodged F.I.R. who is also motbir of inspection of place of occurrence - Shanti Lal PW-11 Kashi Ram PW-4, Ms. Panni PW-8, Ms. Sumitra PW-9 witnesses declared hostile by prosecution - Prakash Chandra PW-2 15 years is a eye-witness of arrest etc. and although PW-3 also declared hostile a motbir of arrest, recoveries etc. admits his signatures on memos - Nana PW-11 reached to injured soon after incident - and Dr. Das PW-10 the Medical Officer, Government Hospital, Begu examining and treating injured also prepared injury report at the clinic of and before Dr. Kothari PW-10 X-rays of injured were taken. ASI PW-13 registering F.I.R. did investigation. 9. In their explanation, appellants expressed that in Magisterial Court, a case between Prabhu and Heer Das is pending, therefore created this false case and witnesses telling lie. As per appellant, Shyam Das he being neighbour of Heer Das - and as per Mohan, he being share cultivator of land of Heer Das and for above reason, are falsely implicated. 10. In defence appellant Heer Das examining himself deposed that earlier Prabhu, Kanhaiaya Lal and other two had severely beaten him causing injury on his head of which F.I.R. lodged and charge-sheet are Ex.D-4, 5 and 6 and stated that no such incident as is alleged by prosecution occurred. 11. 10. In defence appellant Heer Das examining himself deposed that earlier Prabhu, Kanhaiaya Lal and other two had severely beaten him causing injury on his head of which F.I.R. lodged and charge-sheet are Ex.D-4, 5 and 6 and stated that no such incident as is alleged by prosecution occurred. 11. Learned trial judge arrived at conclusions that all three appellants with intention of killing Prabhu Lal caused him large number of injuries of which six on vital part and the injuries if not treated timely would have caused death, convicted and sentenced for the offence of Section 307 read with 34 I.P.C. 12. It appears that accused Bhagwan Das is acquitted because of his involvement being doubtful. 13. Learned counsel for the appellants argued that (i) Ms. Panni PW-8 named witnesses in F.I.R. has in no way supported prosecution and other named Shankar not among prosecution witnesses (ii) said eye-witness Prakash Chandra PW-2 is a child of 15 years who is not named in F.I.R. and his evidence if carefully evaluated not at all reliable - other said eye-witnesses do not support prosecution on any point (iii) Kanhaiya Lal PW-6 who lodged F.I.R. is close relative being son of elder brother of father of injured cannot be relied upon - he was not present at the time of alleged occurrence - witness Nana PW-11 is also nephew also not present at the time of occurrence (iv) the injuries cannot be accepted to be grievous one - X-rays neither taken nor report of a Government Hospital Medical Officer and opinion on such X-rays are of no evidentiary value (v) on the same type and nature of evidence, an accused is acquitted so no reason to hold appellants guilty. For appellants argued that only on the basis of number of injuries, conclusion of attempt of a very big offence is wholly erroneous, particularly, when no weapon other than lathi is alleged to have been used and as no injury on vital part, so if at all any appellant held guilty should only be for causing injuries. Residuarily, argued that incident is of about 25 years ago - appellants remained in custody for some days; so it will not be in the interest of justice and appropriate to award sentence of imprisonment and imprisonment only for the period already undergone is sufficient and/or benefit of probation may be given. Residuarily, argued that incident is of about 25 years ago - appellants remained in custody for some days; so it will not be in the interest of justice and appropriate to award sentence of imprisonment and imprisonment only for the period already undergone is sufficient and/or benefit of probation may be given. In support of contention, learned counsel cited following decisions: (i) Cr.L.R. (Raj.) 1976 650 Bapu v. State (ii) 2006(1) CJ (Raj.) Cr. 322 Narain & Ors. v. State (iii) 2002(2) R.Cr.D. 211 (Raj.) Jepa v. State (iv) 2000 Cr.L.R. (Raj.) 643 Dhanji v. State (v) 2001(1) R.Cr.D. 185 Balu Ram & Ors. v. State 14. Learned Public Prosecutor countering above arguments submitted that Bhagan Das is acquitted on entirely different grounds and evidence which has no bearance in relation to appellants and appellants have inflicted as many as 24 injuries of big dimensions. 15. Thoughtfully considering above arguments, perused record and impugned judgment. 16. For properly appreciating oral evidence, it will be appropriate to mention injuries caused and nature. Dr. Das PW-10 deposed that on 9.8.1984 he being doctor in Government Hospital, Begu on request of SHO, Begu examined injuries of Prabhu Lal who was admitted in the hospital at 9 A.M. who was examined and treated by him. Dr. Das PW-10 depose that injury report Ex.P-6 in his handwriting and as four injuries were grievous, he referred and asked (injured) for X-ray and the injured was brought back after X-ray at 7 P.M. same day with X-ray Plates Ex.P-12, 13 and 14. As is deposed by doctor PW-19 and also mentioned in injury report Ex.P-6, injured Prabhu Lal had sustained following injuries : All except Nos. As is deposed by doctor PW-19 and also mentioned in injury report Ex.P-6, injured Prabhu Lal had sustained following injuries : All except Nos. 15 and 24 are bruises (i) 7.5 cm x 2 cm oblique and middle of right arm (ii) 8 x 2 cm lateral surface of right arm (iii) 8 x 2 cm lateral side of right fore arm - 5 cm below elbow - fracture near right radius extremely swollen and blisters at places (iv) 6.5 x 2 cm obliquely placed at middle - lateral place on right fore arm (v) 6 x 2.5 cm - lower on third of lateral surface of right fore arm (vi) 6.5 x 2 cm posterior surface right palm - fracture of the base right third metacarpal whole palm swollen (vii) 5.5 x 2 cm left elbow (viii) 6.5 x 2.5 cm posterior surface middle of left forearm (ix) 4 x 2 cm back of left palm (x) 5.5 x 2 cm lateral surface at middle fore arm whole hand swollen (xi) 7 x 3 cm obliquely on anteriomedial surface of right one third of right thigh (xii) 6 x 3 cm horizontal anteriomedial surface of lower one fourth of right thigh (xiii) 8 x 2.5 cm horizontally on right iliac region of hip (xiv) 10 x 2 obliquely on lateral surface upper one third of left thigh (xv) abrasion 2 x 2 cm left ingunal region (xvi) 7 x 3 cm horizontal on lateral surface of middle of left thigh (xvii) bruise 8 x 2.5 cm horizontally on lower lateral surface of left knee jointly (xviii) 6 x 2 cm - anterior middle surface of lower one third of right leg - complete linear fracture of right tibia at this level vertically (xix) 2 x 2 cm lateral surface lower part of right leg - incomplete fracture of lower end of right fibula (xx) 2 x 2 cm - vertically on right half of thoracic region of back (xxi) 21 cm x 2.5 cm - vertically on left half of thoracic region of back (xxii) 8 cm x 2 cm - on the right shoulder (xxiii) 7 cm x 2 cm - horizontally on the left shoulder joint (xxiv) Abrasion - 2.5 c 0.5 cm - vertically on the mandibular prominence of face 17. On this report Ex.P-6 is mentioned and is also deposed by doctor PW- 10 that injured was admitted at 9 A.M. because of above injuries and he was referred to Chittorgarh for X-ray at 12 noon and after treatment (X-rays) injured returned back at 7 P.M. On Ex.P-6, mentioned is time of examination as 9 A.M. Doctor PW-10 definitely and straightly says that injured patient was admitted at 9 A.M. and treated by him. All the above injuries were of three hours duration and he returned back with X-ray at 7 P.M. - in cross-examination states that as essential first was treatment so he did not spontaneously at that very time or soon after made medical slip but some time after and injured did not have any injuries on frontal part or abdomen area. The above description shows that no injury on head was and X-ray not taken in PW-10's presence. Dr. Kothari PW-12 depose that his is the clinic at Chittorgarh and X-rays 1, 2, 3, 4 all bears his signatures and of Prabhu done by him on 9.8.1984 - Dr. Kothari PW-12 describes nature of injuries on the basis of X-rays is (i) fracture of radius bone i.e. Cortex bone X-ray Ex.P-12 (ii) fracture of tibia shaft - fibula bone - X-ray Ex.P-14 (iii) fracture by third metacarpal - X-ray Ex.P-13. All the plates bear his signature and written by him is report on same day. 18. Dr. Das PW-10 also categorically says that on examining X-ray Ex.P- 12, P-13, P-14, fractures were found and on cover of X-ray plates are his signatures. As per PW-10 fractures of (i) radius head (right arm) (ii) fracture of base of third metacarpal right hand (iii) fracture of tibia right leg (iv) fracture of fibula right leg. 19. Contention on behalf of appellants are that X-ray neither in any Government establishment nor any police personnel accompanied injured and not definite is the evidence that X-rays taken are of the same person referred by PW-10. 20. Thoughtfully considered the contention, in the opinion of the Court, the argument is devoid of merit. As above from the evidence of the doctor PW-10 who very first treated and examined injured, proved is swelling blister formation etc. 20. Thoughtfully considered the contention, in the opinion of the Court, the argument is devoid of merit. As above from the evidence of the doctor PW-10 who very first treated and examined injured, proved is swelling blister formation etc. on both palm - not very such specific mention is for legs but for these it is to be observed that fractures are vertical one and not is whole complete length of tibia or fibula and referred for X-ray within 2-3 hrs. Here it is also worth significant that doctor treating a patient with such number and nature of injuries is not supposed to and definitely not at the peril of the injured to first care for preparing injury report. Very conveniently be defined only description of the injuries are memo and after reporting to Medical Officer till treatment by him for these injuries also becomes matter of personal knowledge. 21. For obvious reasons of injured in severe pain and plight of such large injuries - the injured and persons concerned to him cannot be expected to care for relatively very minor matters as to whether or not any police man is being accompanying them or the clinic (hospital) is private. There seems no such established practice that treatment and specialised investigation/ tests are to be only in Govt. Hospital. This is rightly a practice roughly followed. Here in the matter at hand, the injured was forwarded absolutely for the purpose of X-ray. Naturally this was to be hurriedly done and return, so naturally will make every endeavor to complete within less possible time. 22. For the reasons above and related factors, the argument of non- reporting for X-ray at Government Hospital etc. cannot be tenable. 23. Here out rightly it may also be mentioned that looking to injuries, arguments or possibility of complainant sustaining injuries being involved in herd of cattle or in any other like way become baseless. Similarly, considering injuries, admission in hospital of Begu within three hours and almost soon lodging of F.I.R. at a distance of 5 km. substantially reduces almost eliminates possibilities of any manipulation or exaggeration for the incident. 24. Similarly, considering injuries, admission in hospital of Begu within three hours and almost soon lodging of F.I.R. at a distance of 5 km. substantially reduces almost eliminates possibilities of any manipulation or exaggeration for the incident. 24. Looking to the evidence of Kanhaiya Lal PW-6 and ASI PW-1 stands proved that written report Ex.6, 7 of the incident was lodged by PW-6 at about 11 A.M. Kanhaiya Lal PW-6 states that at around 6-6.30 in morning when he was on way to field near school, some students were talking of beating by accused to Prabhu Lal, so he quickly reached intersection of way where Prabhu Lal was lying unconscious who was brought home and then in jeep to hospital - states that came to know name of accused by students. In cross-examination states that Prabhu Lal attained consciousness at home - statement of this witness recorded in course of investigation Ex.D-3 and also F.I.R. P-7 do not mention of his coming to know names, of assailants by students but this is completely ignorable a fact. PW-6 admits that for assault, a case is pending against him for last 7-8 years which was initiated by appellant Heer Das. 25. Nana PW-11 nephew of injured states that in morning, when he was near temple Sumitra came and told him that appellants are beating Prabhu so he and Kashi Ram going there saw that three appellants were going from there and Prabhu Lal lying in bleeding injured state unable to speak who told that appellants had beaten him - who then taken to Begu Hospital. In cross- examination states that they seen appellants going away from a distance of about 200 yds.- injured first taken to home admits that a case of beating, initiated by appellant Heer Das against Prabhu Lal is proceeding in Begu Court. 26. Mst. Panni PW-8 named in F.I.R. and also Ms. Sumitra PW-9 who as per PW-11 informed him both do not support prosecution. But for this reason, other evidence cannot be said to be non-reliable. Both these witnesses may have had their own reasons and consideration for not telling for or against any one after four years of the incident. 27. Argued in defence is that injured dug a certain pond near wall of the compound and the wall fell down. But for this reason, other evidence cannot be said to be non-reliable. Both these witnesses may have had their own reasons and consideration for not telling for or against any one after four years of the incident. 27. Argued in defence is that injured dug a certain pond near wall of the compound and the wall fell down. Kanhaiya Lal PW-6 and also PW-11 Nana both and complainant PW-5 too have outrightly rejected this suggestion. Further as is observed from the nature of injuries, as not a single wound or scratch is, this possibility do not stand. Other witnesses too even hostile one have uttered a single word for any such. Prakash Chandra PW-2 is not named in F.I.R. but consistently from the entire evidence surfaces that it were school boys who witnessed the incident and through whom the very first information of the incident reached to the concerned, so Prakash Chandra PW-2 not named in F.I.R. is in-consequential. Prakash Chandra PW-2 in November, 1987 stated his age to be 13 years and Court observed as 15 states that he was a student of Vth class and at around 7 A.M. was on way to school and (on way) accused were beating by sticks to Prabhu Lal. In cross-examination states that he observed the incident from a distance of 5-10 steps and was acquainted with Prabhu Lal. This witness when confronted with statements under Section 161 Cr.P.C. Ex.D-1 denies of his stating that Mohan stopping Prabhu Lal asked as to why yesterday he went to Police Station to which Prabhu denied, then Mohan inflicted blow of lathi on neck and all did beat with lathis uttering of killing. Witness PW-2 denying certain portions of Ex.D-1 says that minute details of who inflicted where and why were not mentioned by him - this does not mean that he did not witnessed the incident or is telling something untrue. 28. Prabhu Lal PW-5 states that on a day prior to the incident at around 8-9 A.M. he dug a rodi (a little pond for pouring cow dung etc.) on land near stone wall of bada of appellant Heer Das and the pond which filled up by appellants, was small one about a feet length and appellants objected for the same. Prabhu Lal PW-5 states that on a day prior to the incident at around 8-9 A.M. he dug a rodi (a little pond for pouring cow dung etc.) on land near stone wall of bada of appellant Heer Das and the pond which filled up by appellants, was small one about a feet length and appellants objected for the same. He telling of lodging a complaint in police because of having a patta left - then went to Begu in noon from where came only in the night after watching night movie at about 12-1 P.M. reaching in the night he found that, all accused were standing out of house of Dunga and he simply went to own home. As per PW-5 in morning he going with cattle on way was intercepted by Mohan Lal who asked him of lodging report at Police Station - and despite his denial of lodging report Mohan Lal telling that he has lodged the complaint inflicted blows of lathi on his neck as the injured getting up tried to run away, Mohan gave a blow on legs and other three coming with sticks all started severely beating him with lathis did not let him go despite requests accused went away only after severely beating him - at that time students were going to school and he taken to home then to Begu Hospital by Kanhaiya Lal from where went for X- rays at Chittorgarh and returned Begu Hospital same day. This witness confronted with certain portions of his investigational statements Ex.D-2 stated ignorance or denied of stating as to who beat at which particular organ or portion of body - states that it was only appellant Mohan who first inflicted injuries. For obvious reasons, where such large number of injuries by 3-4 inflicted are, very minute description cannot be expected. PW-5 admits that only after Mohan inflicted first blow came other three and also that Mohan stopping him first talked to him and they together smoked and talked and then injuries inflicted to him. Taking best for appellants, it appears that prior to inflicting blows they talked on some point presumably and as is emphatically stated by PW-5 regarding lodging of report of prior day incident. Taking best for appellants, it appears that prior to inflicting blows they talked on some point presumably and as is emphatically stated by PW-5 regarding lodging of report of prior day incident. This fact of talking and smoking together for few minutes not followed by any intercalation like of brawl - not even is alleged by the appellant and no injury even of name sake is to any appellant - these facts totally eliminate possibility of any brawl struggle or quarrel. So conversation of few minutes do absolutely, in no way, help the appellants - except probably regarding intention as to result of beating. 29. For the reasons above, conclusions of the learned trial Judge that appellants did collectively with common intention inflicted above injuries to Prabhu Lal do not require any interference. 30. Now coming to question as to whether appellants intended to cause death or cause any such injury as to lead to death. The injuries, as above, though 24 in number with four fractures but all are bruises with two abrasions. No wound or scratch is caused. From the oral evidence, firmly established and as also the nature and dimension of injuries suggest that all the injuries are caused by lathi. The incident happened near agricultural field and injured was also with his cattle. Keeping such bamboo sticks, particular in rural area and more particularly amongst agriculturists, is a routine. Not only that no weapon or other than lathi used but no injury is caused on abdomen, chest, face or head. Only a abrasion at the chin so it can be said that probably no attempted and not is inflicted any injury on very vital part of the body. Considering all these, it cannot be said that intention to cause death or intention to cause any injury to cause death was. 31. So in totality of the circumstances and in the opinion of the Court, proved is the commission of offence of Sections 325 and 323 both read with Section 34 I.P.C. and not that of Section 307 I.P.C. 32. Now is the question of quantum and nature of sentence to be awarded - considering that above 25 years have elapsed to the incident and 20 years the sentence was suspended the question of sentence becomes ticklish. Now is the question of quantum and nature of sentence to be awarded - considering that above 25 years have elapsed to the incident and 20 years the sentence was suspended the question of sentence becomes ticklish. As many as 24 injuries caused of which four are fracture at forearm, linear fracture of tibia, incomplete fracture of fibula, and fracture of metacarpal bone - injuries in large number - injured had to remain hospitalized in intensive care - unable to follow any normal and essential pursuits for at least a month or two and may be more - so normally may be to award appropriate sentence of imprisonment. But here a long period has elapsed and any sentence so as now to imprison appellants may not only tend to reviving animosity between the parties but probably may initiate some more differences over-coming all good-will which may have been created during this long period which shall certainly not be in interest of any one. Simultaneous care is to be taken that appropriate punishment is so as to discourage involvement in such activities. From the record, it transpires that appellants suffered custody from 22.8.1982 to 11.9.1982 and then from 22.4.1989 to 8.5.1989, that is about 40 days. So trying to strike balance, in the opinion of the Court, appropriate amount of fine should be imposed. For determining fine payable now, pain and plight of injured, difficulties and inconveniences to all concerned, inabilities of which some may be of duration - expenses of treatment with loss of earning not only of sufferer but of other may be quite relevant. The amount of fine considering number and nature of injuries and fractures is determined total Rs. 63,000/- - Rs. The amount of fine considering number and nature of injuries and fractures is determined total Rs. 63,000/- - Rs. 21,000/- payable by each of appellants Heer Das, Shyam Das and Mohan Das.For the reasons and as above, altering the conviction and sentence, the appeal deserves to be partly allowed.Allowing appeal partly, altering conviction and sentence of appellants for the offence of Section 307 read with Section 34 I.P.C. each appellant (i) Heer Das S/o Mathur Das, (ii) Shyam Das S/o Ram Das, and (iii) Mohan Das S/o Mangi Lal are convicted for the offence of Section 325 read with Section 34 I.P.C. and Section 323 read with Section 34 I.P.C. and each of appellants is sentenced - (i) for offence of Section 325 read with Section 34 I.P.C. for the period already undergone with a fine of Rs. 20,000/-, in default of payment to undergo five months' simple imprisonment; (ii) for offence of Section 323 read with Section 34 I.P.C. for the period already undergone and fine of Rs. 1,000/-, -in default of payment to seven days' simple imprisonment. Appellants are acquitted of the charge of Section 307 read with 34 I.P.C. Out of the total amount of fine of Rs. 63,000/-, if realized, Rs. 48,000/- shall be paid to injured, in such manner that Rs. 40,000/- be invested in Fixed Deposit in the name of injured for a minimum period of two years, interest payable quarterly. As each of the appellants has to pay Rs. 21,000/-, each shall deposit Rs. 11,000/- by 15.7.2009 and remaining Rs. 10,000/- by 31.8.2009 and on realisation of the entire fine as above, their bail bonds shall stand discharged.Appeal partly allowed. *******