JUDGMENT H.G. RAMESH, J.—Aggrieved by the order of conviction and sentence passed by the II Addl. Sessions Judge, Bangalore Rural in SC 83/2003, accused 1 to 4 have come up in this appeal. 2. In all, about thirteen accused were charge sheeted by the Dobbaspet Police for the offences punishable under Section 143, 147, 148, 326, 307 read with Section 149, IPC. According to the prosecution, one Thirumalaiah the injured, who is a resident of Devaganahali, while he was going alongwith his daughter Chandramma to their land situate at Devaganahali, and by the time he reached near the house of Gangappa, the accused, alongwith the deceased accused, i.e., accused 6 and 13, having formed themselves into an unlawful assembly, armed with deadly weapons like chopper, sickle and clubs, attacked Thirumalaiah/P.W. 2 on the mud road expressing to butcher him and sacrifice him for the newly built house. So saying, accused Ramakrishnaiah assaulted the injured with a machhu on the left leg as such the injured suffered bleeding injury and once again when accused 4-Shivanna came forward to assault P.W. 2 with a sickle on his neck, to ward of the blow P.W. 2 raised his left hand and the blow fell on the left hand and he sustained fracture. Accused 2 and 3 and other accused assaulted with clubs and stones. Hearing the screams, P.W. 3, wife of the injured and their neighbour Narayana Gowda came to the spot and on seeing them, the accused ran away throwing the weapons on the spot. The motive behind the commission of the offence, as per the prosecution, is about seven years prior to the alleged incident, this Chandramma and her friend by name Suvarana were grazing sheep and at that time, some sheep strayed into the garden land of the 6th accused Dodda Mariyappa, as such, the 4th accused Shivanna and his mother Lakkamma and Dodda Mariappa, the deceased accused, abused Suvarna at the instigation of the 6th accused. Also, the 4th accused assaulted Suvarna. In that regard, Chandramma/P.W. 1 had lodged a complaint. Due to the ill will, the 4th accused alongwith others assaulted P.W. 1 on the date of the incident. Chandramma having rushed to the police station, filed a complaint against twelve of the accused. The case came to be registered in Crime No. 180/1993 for the above said offences. In that regard, Chandramma/P.W. 1 had lodged a complaint. Due to the ill will, the 4th accused alongwith others assaulted P.W. 1 on the date of the incident. Chandramma having rushed to the police station, filed a complaint against twelve of the accused. The case came to be registered in Crime No. 180/1993 for the above said offences. The police based on the complaint, after investigation, filed charge sheet before the JMFC, Nelamangala against thirteen persons for the offences under Sections 143, 147, 326 read with Section 149, IPC. Learned Magistrate took cognizance and also proceeded to inquire into the matter. On the application made by the prosecution under Section 323, Cr.P.C. to commit the case to the Sessions Court as at the time of adducing evidence, offence under Section 307, IPC was made out, learned Magistrate having allowed the application, committed the case to the Sessions Court including the offence under Section 307, IPC. As such, the Sessions Court dealt with the case against the accused for the above said offences. Ultimately, during pendency of the matter, accused 6 and 13 have died and accused 1 to 4 were convicted and remaining accused were acquitted. Accused 2 and 3 were convicted for the offence under Section 324, IPC and accused 1 and 4 were convicted for the offence under Section 326, IPC while acquitting the accused for the offence under Section 307, IPC and sentencing accused 1 and 4 to undergo simple imprisonment for two years and to pay fine of Rs. 20,000/- each and default sentence of one year simple imprisonment for the offence under Section 324, accused 2 and 3 were convicted and sentenced to undergo imprisonment for one year and to pay fine of Rs. 10,000/- each and default sentence of three months and, ordered to deposit fine amount of Rs. 50,000/- which shall be paid to the injured Thirurnalaiah, as compensation. As against the order of conviction suffered by accused 1 to 4, they are before this Court in appeal on various grounds. 3. According to the appellants’ counsel, the order of conviction against accused 1 to 4 is without there being any legal evidence on record. The statement of P.W. 2, injured has been recorded after nine days of the incident. 3. According to the appellants’ counsel, the order of conviction against accused 1 to 4 is without there being any legal evidence on record. The statement of P.W. 2, injured has been recorded after nine days of the incident. Although there is mentioning of several names in the complaint filed by P.W. 1, she has not deposed about the involvement of the accused. There is inconsistency in the version of P.W. 1, P.W. 2 and P.W. 3 and the injuries sustained by P.W. 2, i.e., injuries 1 and 3 which are grievous in nature could not have been caused by chopper or sickle. Neither the injured witness nor the wife of the injured/P.W. 3 nor his daughter P.W. 1 complainant have mentioned about the involvement of accused 2, 3 and 4. Such being the case, trial Court has convicted the accused only based on presumption without there being legal evidence on record. It is also submitted, in view of the inconsistency in the material evidence on record and also in the MLC Register though the names of accused 4, 12, 11, 9 and one Raja was mentioned, but the complainant has not whispered anything about the accused and with ill-will and previous motive, this P.W. 1 had filed a complaint against the 4th accused who is alleged to have assaulted one Suvarna, friend of P.W. 1 and in a similar fashion, these accused have been falsely implicated in the case and there is no motive for the offence and accordingly, learned counsel sought for acquittal of the accused as there is no legal evidence on record. 4. Government Pleader submitted that P.Ws. 1, 3 and 4 are the eye-witnesses to the incident. Though P.W. 4 has turned hostile, P.W. I who is the complainant, has also mentioned the names of accused I and 4 regarding the assault. So also, the name of the 4th accused is also mentioned by P.W. 2, the injured alongwith the 1st accused. Apart from that, P.W. I has also stated about accused 2 and 3 in general regarding their involvement and assault. The trial Court while acquitting the other accused, having found legal evidence as against accused 1 to 4, has convicted them which does not call for any interference. Accordingly, he has sought for dismissal of the appeal. 5. Apart from that, P.W. I has also stated about accused 2 and 3 in general regarding their involvement and assault. The trial Court while acquitting the other accused, having found legal evidence as against accused 1 to 4, has convicted them which does not call for any interference. Accordingly, he has sought for dismissal of the appeal. 5. In the light of the arguments advanced, the points that arise for consideration are: “Whether the prosecution has proved beyond reasonable doubt that the accused assaulted P.W. 2, the injured from a sickle, clubs and chopper and thereby, caused grievous and simple injuries as alleged; Whether the order of the trial Court in convicting and sentencing accused 1 to 4 is sustainable; What offence if any, the accused have committed, and What order. First, let me dilate the evidence on record of some of the witnesses who have supported the version of the prosecution.” 6. P.W. 1-Chandranmma, daughter of the injured P.W. 2, on seeing the accused, has identified all the accused stating that they are all from the same village and have got houses in the village. Her evidence is that on 1.11.1993, around 8.00 a.m., herself and her father were going to their land. On the way, near the house of one Gangappa. they saw the accused persons having formed themselves into an unlawful assembly, armed with deadly weapons like Machhu and sickle standing and on seeing them, when they tried to go by the side of the road and when they neared the house of one Appaiah, all the accused having followed them, expressing to butcher P.W. 2 and sacrifice him to the newly built house, the 1st accused assaulted P.W. 2 on his leg with a machhu, as a result, P.W. 2 fell down and the 2nd accused tried to assault P.W. 2 with a sickle on his neck, at that time, in order to ward of the blow when P.W. 2 raised his hand, the blow fell on the left hand and he suffered injuries to his left palm. All the accused assaulted him with clubs and the 3rd accused was expressing by way of instigation, to assault on the head as such, other accused persons assaulted P.W. 2 on his hands and leg with an intention to commit murder. All the accused assaulted him with clubs and the 3rd accused was expressing by way of instigation, to assault on the head as such, other accused persons assaulted P.W. 2 on his hands and leg with an intention to commit murder. This witness has also identified accused 1 and 2 and stated, they are the persons who have assaulted and on witnessing the incident she cried, her mother came there alongwith one Narayana Gowda. It is also stated by her, the scene of offence is hardly 300 ft. away from their house and on seeing her mother and her neighbour, the accused ran away from the spot. Further, according to her, she went to Dobbaspet Police Station and filed a complaint. The police came to the spot and drew the mahazar and also the injured was shifted to the hospital. She has also identified the machhu which was said to be in the hands of the 1st accused and MO 2-sickle which, according to her, was in the hands of the 2nd accused. The weapons were also identified by her. The injured was shifted to government hospital at Dobbaspet and from there, to Victoria Hospital, Bangalore. 7. The witness was cross-examined at length and she has stated that the complaint was written as per her dictation and was read over to her. In the detail cross-examination, the defence tried to elicit that accused have been falsely implicated in this case. However, she has admitted regarding the motive, i.e., her father P.W. 2 was asking other persons for right of pathway over their lands but, accused 5 to 7 refused to give any such right to their property. Also, a suggestion has been got denied to the effect that the 7th accused on such demand, refused to give way. Soon after the incident, she left immediately from the spot to the police station and lodged a complaint. Her father was shifted to hospital without any loss of time and also a suggestion was got denied to the effect that accused had also filed a complaint in connection with the murder of Suvarna. She has also specifically stated in the cross-examination that one Shivanna s/o Dodda Mariappa also assaulted her father with a machhu. She has also stated that accused 2 and 3 assaulted him with a club. She has also specifically stated in the cross-examination that one Shivanna s/o Dodda Mariappa also assaulted her father with a machhu. She has also stated that accused 2 and 3 assaulted him with a club. Thus, even in the cross-examination, she has asserted that the 1st accused Ramakrishnaiah and the 4th accused Shivanna s/o Dodda Mariyappa and accused 2 and 3 assaulted her father with chopper, club and sickle. Apart from that, what is being noticed is, P.W. 1 is the daughter of the injured and also an eye-witness to the incident. Complaint is also filed within one hour from the date of the alleged incident and the distance between the village and police station is about 4.00 kms from the scene of offence. The defence version is, in connection with the murder of Suvarna, her friend, she has falsely implicated the accused and also with previous ill-will, a false complaint against other accused is filed which, of course, she has denied. 8. As per the evidence of P.W. 2, the injured, at the time of admission some of the names of the accused were entered in the MLC Register and thumb impression of P.W. 2 was taken. Once again, the statement of the injured was recorded after nine days of the incident. This statement of P.W. 2, according to the defence, is not trustworthy and there is contradiction in the version regarding the overt act of the accused, who assaulted P.W. 1 and what is being mentioned in the MLC Register and what is stated in the complaint. It is his specific evidence that, alongwith his daughter on the day of the incident, he left the house around 8.00 a.m. to go to his land and while they were going, the accused who constituted themselves into an unlawful assembly, holding clubs and machhu came and, when they were nearer the house of Appaiah, all the accused followed them and expressed to butcher him. His evidence is, Ramakrishnaiah/1st accused assaulted him with a machhu on his left leg as such, he sustained a fracture and bleeding injury. Accused 2 and 3 assaulted with a club and the 4th accused tried to assault him with sickle on his neck as such, to ward of the blow when he raised the left hand, the blow fell on the left hand resulting in grievous injury to the left hand and a fracture. Accused 2 and 3 assaulted with a club and the 4th accused tried to assault him with sickle on his neck as such, to ward of the blow when he raised the left hand, the blow fell on the left hand resulting in grievous injury to the left hand and a fracture. According to him, he regained consciousness only in the hospital. He has stated, he regained consciousness after three months and also identified the clubs at MOs 1 to 5, which were used for the commission of the offence. His specific evidence is, due to previous ill-will as the 4th accused committed murder of his daughter’s friend by name Suvarna and in this regard, since he had filed a complaint against the 4th accused, with that motive, the accused have committed the offence. 9. Of course, this witness was also cross-examined. He has asserted that Ramakrishnaiah/1st accused assaulted on his left leg and 4th accused Shivanna assaulted on the left hand and also on the fingers of the left hand. There appears to be some exaggeration. According to him, none of the neighbours had come to rescue him. He asserted, when he fell on the ground, he knew the accused who assaulted him. It is also stated by him that the 3rd accused assaulted him with a club measuring about 2-3 yards. In the lengthy cross-examination, he tried to assert that accused assaulted. 10. P.W. 3 Giriyamma is the wife of the injured Thirumalaiah. According to her, P.W. 1 and 2 were going to the fields and on hearing the screams, she went lo the spot and found the accused there in front of the house of Hanumappa. Also she has noticed the accused, in an unlawful assembly, holding sickle and machhu. She has stated, her husband has suffered injuries on his left hand, on the neck portion, on the lower limb of the left leg and there is a fracture. Also, her husband had lost consciousness and later, her husband was shifted to Dobbaspet Government Hospital and from there, to Victoria Hospital, Bangalore. In the detail examination, P.W. 3 has denied the suggestion that her husband fell down from a moving bullock cart and sustained injuries due to the cart wheel running over him. 11. Of course, P.W. 4 is also an eye-witness to the incident. In the detail examination, P.W. 3 has denied the suggestion that her husband fell down from a moving bullock cart and sustained injuries due to the cart wheel running over him. 11. Of course, P.W. 4 is also an eye-witness to the incident. But, he has not supported the prosecution version, P.W. 4 is said to be a pancha for the scene of offence panchanama and he has turned hostile to the said version. 12. P.W. 5 is the pancha for the scene of offence panchanama but, he has turned hostile. P.W. 6 who is the son of the injured is a hearsay witness and he states that his father had sustained injuries and fracture on the left leg and hand and right hand and that his shirt was blood stained. 13. P.W. 7 is one Abdul Gaffar who is the Police Sub-Inspector who has received the complaint and registered the same and conducted the scene of offence panchanama as per Ex. P2 and lodged the complaint, sent the FIR and also recovered the machhu, sickle, stones and three clubs found near the scene of offence. Also, he has identified them before the Court. However, in the cross-examination, he has denied all the suggestions contrary to his evidence regarding receiving the FIR and conducting scene of offence mahazar. P.W. 8 is a pancha for the recovery of the blood stained clothes of the injured and he has supported the version. 14. P.W. 9 is Dr Narayana Reddy who has examined the injured on 1.1.1993 around 2.25 p.m. and found that the injured had tenderness over the left forearm and tenderness over the left upper arm and lacerated wound measuring about 2? x 1? on the left leg middle third and lacerated wound of 1? x ½? on the right leg and has opined that injury 1 and 3 are grievous in nature and 2 and 4 are simple in nature. Based on the X-Ray report, he has given the opinion and also, entry was made in the accident register regarding who has brought the injured to the hospital. The opinion of the doctor is, injury No. 3 (lacerated wound) on the leg is possible, if assault is by a chopper and, injury 1 and 2 could be caused by a blunt weapon. The opinion of the doctor is, injury No. 3 (lacerated wound) on the leg is possible, if assault is by a chopper and, injury 1 and 2 could be caused by a blunt weapon. However, in the cross-examination regarding assault by MO 1-chopper is concerned, it is suggested that if assaulted from the weapon in order to commit murder, it would cause incise wound or cut injury for which, answer given is, if the blow was inflicted from the blunt side, it may not be an incise or cut wound. 15. On behalf of the accused, one of the witness by name Kambaiah was examined. He has stated, P.W. 2 had filed civil suit against accused 4 and 7 claiming right of way. The suit was dismissed. Out of animosity P.W. 2 lodged a complaint against the accused. In the case on hand, the trial Court relying upon the evidence of P.W. 1 and 2 and also the supporting evidence and recovery of weapons, convicted accused 1 to 4. Although it is the argument of the appellants’ counsel that such injuries like lacerated wound could not have been caused by weapons like chopper and sickle, but what is noticed in the evidence of the doctor is that, such injuries are possible by using a blunt weapon. 16. In the instant case, as to the assault by accused 1 and 4 are concerned, there are corresponding injury on the left leg and left hand wherein from a chopper the lst accused is said to have assaulted, causing grievous injury. Similarly, the 4th accused has also caused injury from a sickle aiming at the neck and in order of ward of the blow when the left hand was raised, the blow fell on the left hand and he has sustained grievous injury. In the course of cross-examination, it is specifically stated by P.W. 1 that accused 2 and 3 have assaulted from a club. Of course, there were as many as thirteen accused and two of them, i.e., accused 6 and 13, have died during pendency of the matter. There is specific evidence by way of description, about the involvement of accused 4, 12, 11 and 9 and one Raja as per the entries in the MLC Register. Of course, there were as many as thirteen accused and two of them, i.e., accused 6 and 13, have died during pendency of the matter. There is specific evidence by way of description, about the involvement of accused 4, 12, 11 and 9 and one Raja as per the entries in the MLC Register. Although the involvement of other accused is there, the trial Court has acquitted them on the ground that there is no cogent evidence on record to convict them. Even P.W. 2, the injured has spoken about the overt act of the other accused and it is also suggested in the cross-examination. The evidence of P.W. 1, eye-witness to the incident and P.W. 2, the injured, appears to be natural regarding the overt act. Though in the examination in chief reference is not made to the involvement of accused 2 and 3 but, she has asserted in the cross-examination that accused 2 and 3 assaulted her father from a club. That cannot be ignored. Might be there is a dispute between the accused and the complainant’s father regarding path way but, what is noted is, several years prior to the alleged incident, when P.W. 1 was grazing sheep alongwith her friend Suvarna, at that time the 4th accused is said to have assaulted Suvarna and P.W. 1 had filed a complaint. However, as per the wound certificate issued by Dr./P.W. 9 who has examined the injured, there are two simple and two grievous injuries and as is noted, it refers to the involvement of the accused persons. However, so far as involvement of accused 2 and 3 are concerned, they have assaulted from a club due to which the injured P.W. 2 sustained simple injuries. In the context, although they were rightly convicted, leniency could be shown in sentencing these two accused. So far as accused 3 and 4 are concerned, although it is tried to mention by the defence counsel that there is no mention of the names of accused 1 and 4 by P.Ws. 1 and 2, but, there is a specific reference to accused 1 and 4 and rightly, the trial Court has noted the evidence of P.Ws. So far as accused 3 and 4 are concerned, although it is tried to mention by the defence counsel that there is no mention of the names of accused 1 and 4 by P.Ws. 1 and 2, but, there is a specific reference to accused 1 and 4 and rightly, the trial Court has noted the evidence of P.Ws. 1 and 2 that the accused assaulted from machhu and sickle and accused 2 and 3 assaulted with clubs on P.W. 2 and there is corroboration in the examination in chief and as well as in denying suggestion regarding non-involvement of these accused. Might be there would be some animosity between the accused and the complainant regarding land dispute. But, the manner in which the incident has taken place and the conclusion arrived at by the trial Court based on the specific evidence against the accused cannot take away the strength of the prosecution version. 17. In the circumstances, the order of conviction imposed against accused 1, to 4 would sustain. In so far as accused 2 and 3 is concerned, trial Court has convicted these accused for the offence under Section 324, IPC wherein it has ordered to undergo one year simple imprisonment and to pay fine of Rs. 10,000/- each. At this state, counsel for the appellants submitted, the incident has taken about seventeen years back and also in the course of time they have become old and in the circumstances, in stead of sentencing them to undergo imprisonment, fine may be imposed. The order to undergo imprisonment for one year as against accused 2 and 3 is deleted and it is ordered, they shall pay fine of Rs. 10,000/- each and in default, to undergo simple imprisonment for three months. 18. In so far as accused 1 and 4 are concerned, they have been sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 20,000/- each and in default, to undergo simple imprisonment for six months. Out of the fine amount that would be deposited, an amount of Rs. 25,000/- be paid to the injured, as compensation. Further, the accused are entitled to the benefit of set of as per Section 428, Cr.P.C. for the period of detention already undergone. Appeal is allowed in part.