Judgment KANWALJIT SINGH AHLUWALIA, J. 1. Three brothers, Karnail Singh, Jarnail Singh and Janak Singh were named as accused in case FIR No.41 dated 14.12.1994 registered at Police station Talwara under Sec.308 read with section 34 and section 316 IPC. Janak Singh was acquitted by the trial Court. The present appeal has been filed by Karnail Singh and Jarnail Singh. They have assailed the judgment rendered by additional Sessions Judge, Hoshiarpur whereby they were convicted and sentenced under Sec.308/34 IPC to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/- each, in default of payment of fine to further undergo rigorous imprisonment for three months. Both accused were further sentenced under Sec.316 IPC to undergo rigorous imprisonment for three and a half years and to pay fine of Rs.2000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months. Both the sentences were ordered to run concurrently. 2. In the present case, Sheela Devi had made a statement Ex. PA before Head Constable Harbans Lal on 20th November, 1994. The statement when translated reads as under: "stated that I am resident of Bhambotar and do domestic work. On 16th September, 1994 at about 6.00 p. m. I had gone from my house to fetch water from the tap, which was a Govt. tap installed at a distance of our house. On my turn, when I was going to take the water then karnail Singh, Jarnail Singh and Bablu, sons of Charan Singh also came there and said that it is their turn to take water. On protest, Karnail Singh caught hold of me from my hair and made me fall on the ground. Karnail Singh and Jarnail singh gave fist blows. Jarnail Singh gave one fist blow below the right eye. At that time, Bablu was saying that she should be given more beating as she is not allowing us to take water. " Complainant raised noise and his nephew Sanjeev kumar was attracted at the spot. Leaving the complainant at the spot, the accused decamped. Sheela Devi complainant was got examined by her husband tirath Ram in the hospital. The above said statement was recorded in the Daily diary Register. " Complainant raised noise and his nephew Sanjeev kumar was attracted at the spot. Leaving the complainant at the spot, the accused decamped. Sheela Devi complainant was got examined by her husband tirath Ram in the hospital. The above said statement was recorded in the Daily diary Register. According to the Doctor all the four injuries suffered were simple and blunt, therefore, it was opined by the Investigating Officer that no cognizable offence is made out and only an entry of the statement was made in the Daily Diary Register. It will be pertinent to notice here that the occurrence had taken place on 16th November, 1994 at 6.00 p. m. Sheela Devi had made her statement to the police on 20th November, 1994 and one month later statement Ex. PH of Tirath Ram husband of Sheela Devi was recorded and on the basis of same FIR Ex. PH/1 was registered. In the statement of Tirath Ram, following two facts were introduced: (a) Jarnail Singh had given a kick blow in the abdomen of Sheela devi. (b) Due to the kick blow given by jarnail Singh, bleeding started and at that time Sheela devi was pregnant. 3. The matter was investigated and report under Sec.173 Cr. P. C. was submitted against the accused. The Court of Additional Sessions Judge, hoshiarpur on 24th April, 1995 charged the appellant for offence under Section 308/34 IPC for having caused fist blows to Sheela Devi who was pregnant. They were further charged for offence under Sec.316 IPC for causing death of a quick unborn child by giving kick blows to Sheela Devi. Prosecution examined Sheela Devi as PW-1. In her examination in chief, she stated as under: "on 16.11.94 at about 6 PM, I went to fetch the water from the government tap. It was my turn to get the water from the tap. Karnail Singh, jarnail Singh, Janak Singh accused present in the Court were present there. They lifted my pitcher and started saying that it is their turn. Karnail Singh gave mukka blow on my breast and thereafter caught hold me from my long hair and all the accused gave me fist blows in my abdomen. I was pregnant for three months at that time. I received injuries in my abdomen, breast and on my eyes. Sanjeev kumar, my nephew was present on the spot. He raised an alarm. I was pregnant for three months at that time. I received injuries in my abdomen, breast and on my eyes. Sanjeev kumar, my nephew was present on the spot. He raised an alarm. Accused were giving the threats to my nephew. I became unconscious. I reached to my house and during the night bleeding had started from my private part. There was no body in my house to take me to the Hospital as my husband was working on Thien Dam. On 20.11.94, my husband came per chance and took me to Hospital, where I lost my pregnancy due to the injuries. My statement Ex. PA was recorded on 20.11.94. It was read over to me and I signed the same after admitting its contents to be correct. I was medically examined at B. M. B. Hospital at Talwara. I narrated the entire story to my husband. " 4. She was confronted with her statement ex. PA, where it was not stated that Karnail Singh accused gave a fist blow on the chest and also caught hold of her long hair. She was also confronted with her statement Ex. PA where she had not stated that all the accused gave fist blows on her abdomen. She was further confronted with her statement Ex. PA where she had not stated that duration of her pregnancy was three months. She was again confronted with her earlier statement where this was not stated that she started bleeding at night time. She was further confronted with her previous statement where it was not stated that due to injuries, there was abortion. In cross examination, she stated that she had narrated the occurrence to the sarpanch on 16th November, 1994. She did not get any medical aid from 16th november, 1994 to 20th November, 1994 i. e. till the arrival of her husband. Dr. Harman Preet, Medical Officer appeared as PW-2. She conducted medico legal examination of Sheela Devi on 20th November, 1994 at 2.50 p. m. and observed as under: "uteris ante-verted 8 to 10 week size bleeding from vagina was present. Complained of pain in lower abdomen. Blue discolouration of the right eye present. Conjuntival haemmorhage was present. Complaint of pain in the chest both sides. Injuries No.1 and 2 were dangerous and third and four were simple. The kind of weapon used was blunt and probable duration was within a week. Ex. Complained of pain in lower abdomen. Blue discolouration of the right eye present. Conjuntival haemmorhage was present. Complaint of pain in the chest both sides. Injuries No.1 and 2 were dangerous and third and four were simple. The kind of weapon used was blunt and probable duration was within a week. Ex. PB is the correct carbon copy of the M. L. R. which is correct according to original and it bears my signatures. Ex. PB/1 is the pictorial diagram showing the seats of injuries. " On 30th January, 1995 this witness on police request Ex. PF, opined that Sheela devi had pregnancy of 2 1/2 months when she was medico legally examined. To appreciate whether offence under Section316 ipc is made out or not it will be necessary to reproduce the cross examination of PW-2 Dr. Harman Preet, which reads as under: "there was no apparent injury at the time of examination of Sheela Devi PW. Fist blows is not the only cause for the abortion, there may be other causes such as exertion, tension and by doing hard work, and manual work. At the time of discharge, that is, 12.12.94 there was no abortion. The police brought her for examination check up and she herself told me that she had abortion at her residence after the discharge from the hospital. " Roshan Lal ASI appeared as PW-3. He proved formal FIR Ex. PH/1, which was recorded on the basis of statement Ex. PH made by Tirath Ram. Harbans Lal HC appeared as PW-4. He stated that on 20th November, 1994, while posted at Police station Talwara, he received MLR of Sheela Devi. He reached the hospital and the Doctor opined Sheela Devi to be fit to make statement and he had recorded statement of Sheela Devi Ex. PA and the same was recorded in DDR No.22 dated 20th November, 1994 Ex. PJ. Tirath Ram husband of Sheela Devi appeared as PW-5. He is not a witness of the occurrence. On the basis of information received from his wife Sheela Devi he had lodged the report Ex. PH. Paras Ram Sarpanch appeared as PW-6. He stated that no talk in the village took place between the accused and the complainant about the compromise. He was declared hostile and was confronted with his statement Ex. PJ. He denied that he had ever made any effort to effect compromise. PH. Paras Ram Sarpanch appeared as PW-6. He stated that no talk in the village took place between the accused and the complainant about the compromise. He was declared hostile and was confronted with his statement Ex. PJ. He denied that he had ever made any effort to effect compromise. Sanjeev Kumar PW-7 stated that he was attracted at the spot and his aunt Sheela Devi was caused fist blows by the accused. Chhajju ram ASI appeared as PW-8. He deposed regarding various aspects of the investigation. Thereafter, statement of the accused under Sec.313 Cr. P. C. was recorded. Accused Jarnail Singh in his statement recorded under Sec.313 cr. P. C. gave following version: "i am innocent and have been falsely implicated in this case. A minor verbal altercation had taken place of Sheela Devi with me. I did not cause any injury to Sheela Devi. I have been falsely implicated in this case by Sheela Devi. " Karnail Singh and Janak Singh denied their presence at the spot. In defence piar Chand was examined as DW-1. He stated that on 16th November, 1994 no occurrence had taken place. I have heard counsel for the parties. 5 Mr. HEMANT Saini, appearing for the appellant, has stated that a minor altercation had taken place regarding the turn of water near the government tap and no reliance can be placed upon the testimony of witnesses, who appear to have given false version. Mr. A. S. Jattana, Additional Advocate general, Punjab, has stated that implicit reliance should be placed upon the testimony of witnesses, who are truthful and have deposed against the accused. In the present case, occurrence had taken place on 16th November, 1994 at 6.00 p. m. Injured Sheela Devi was got admitted in the hospital on 20th November, 1994. For four days, she remained in her house. At the time of her admission in the hospital, her statement Ex. PA was recorded. According to her statement, jarnail Singh had caused no injury, Karnail Singh had pulled her hair and thereafter, Karnail Singh and Janak Singh had given fist blows. Janak Singh has been acquitted by the trial Court on the ground that in the Court witnesses have not assigned any role to Janak Singh. PW-2 Dr. PA was recorded. According to her statement, jarnail Singh had caused no injury, Karnail Singh had pulled her hair and thereafter, Karnail Singh and Janak Singh had given fist blows. Janak Singh has been acquitted by the trial Court on the ground that in the Court witnesses have not assigned any role to Janak Singh. PW-2 Dr. Harman Preet had specifically stated that fist blow is not the only cause for abortion and there may be other causes, such as exertion, tension, doing of hard work and manual work. She further stated that on 12th December, 1994 when Sheela Devi was discharged there was no abortion. The Medical Officer further stated that sheela Devi had stated to her that the abortion took place at her residence after the discharge from the hospital. Furthermore, in the first statement, it was nowhere stated that any injury was caused by the accused in the abdomen. Thus, alleged injuries cannot be cause of abortion, therefore, no offence under Sec.316 IPC is made out. Therefore, the opinion of the Doctor Ex. PG/1 that injuries may have caused the abortion, is to be taken with a pinch of salt, especially when vide opinion Ex. PF/1, medical Officer on 30th January, 1995 stated "patient had 2 1/2 months pregnancy when she got her Medico Legal Examination. After that she had abortion at home after being discharged. " In case the injuries were caused on 16th November, 1994 and they had contributed towards the abortion, the abortion would have taken place before 20th November, 1994. In the present case, when Sheela Devi was admitted on 20th November, 1994, no abortion had taken place. Sheela Devi aborted after 12th December, 1994, i. e. one month after the occurrence. There was no external mark of the injury in the abdomen. Blunt injury by fist blows by the accused was given on the eyes. It had only caused discolouration of the right eye, as conjuntival haemmorhage was present. The witness had only complained of the pain in the chest. Therefore, even no offence under Sec.308 IPC is made out. The offence if any committed by the appellants, falls under Sec.323 IPC. The occurrence, in the present case, had taken place in year 1994. The appellants have already undergone ten days of their actual sentence. The witness had only complained of the pain in the chest. Therefore, even no offence under Sec.308 IPC is made out. The offence if any committed by the appellants, falls under Sec.323 IPC. The occurrence, in the present case, had taken place in year 1994. The appellants have already undergone ten days of their actual sentence. No useful purpose will be served by sending them behind the bars, when now, they stand convicted for offence under Sec.323 IPC. Therefore, both the appellants are ordered to be released on probation for a period of one year. They will furnish the necessary bonds before the Court of chief Judicial Magistrate, Hoshiarpur that they will maintain good conduct, behaviour and peace during the period of probation for one year. However, both the appellants are burdened with cost of litigation of Rs.10,000/- each. In case appellants fail to deposit the cost of litigation, they will be called upon to serve the sentence of six months rigorous imprisonment. The amount of cost so deposited shall be reimbursed to sheela Devi as compensation. With the observations made above, present appeal is disposed of.