Judgment 1. This appeal is directed against judgment and order dated 20.07.1998 passed by 2nd Additional Sessions Judge, Khamgaon in Sessions Case No. 31/1993 whereby the accused nos. 1 to 4; (appellant nos. 1 to 4 herein) were convicted and sentenced as under: (a) For the offence punishable under section 341 read with section 34 of the I.P.C. each was sentenced to suffer Rigorous Imprisonment for fifteen days and to pay a fine of Rs.200/-each, in default to suffer R.I. for seven days; (b) For the offence punishable under section 323 r/w 34 of the I.P.C. each was sentenced to suffer R.I. for three months and to pay a fine of Rs.200/-each, in default to suffer further R.I. for fifteen days; (c) For the offence punishable under section 324 r/w 34 of the I.P.C. each was sentenced to suffer R.I. for one year and to pay a fine of Rs.500/-each in default to suffer R.I. for three months; (d) For the offence punishable under section 337 r/w 34 of the I.P.C. each was sentenced to pay a fine of Rs.200/-each, in default to suffer S.I. for seven days. (e) For the offence punishable under section 307 r/w 34 of the I.P.C. each was sentenced to suffer R.I. for five years and to pay a fine of Rs.1000/-each in default to suffer R.I. for six months; The learned Sessions Judge further directed that out of the fine amount realized, Rs.3000/-be paid to the injured-Rambhau Sitaram Dhule as compensation. All the substantive sentences were ordered to run concurrently. 2. The facts of the case are thus: One Sitaram Dhule and Sakharam Hage are residents of village Sungaon, Tq. Jalgaon Jamod, Dist. Buldhana. Their agricultural lands are adjacent to each other. Two months prior to the incident, there was dispute between Sitaram and Sakharam. The dispute was on the issue of boundary between their fields. On 06.01.1993 at about 5.30 p.m., Tulsabaicomplainant, her father-Sitaram and brother-Rambhau were carrying bullock-cart loaded with fodder to their house. When the bullock-cart reached near nullah, the accused persons, Kisan (A1), Shalikram (A2), Ramesh (A3) and Ananta (A4), appeared there and started pelting stones at Tulsabai-complainant, Sitaram and Rambhau. They restrained the bullock-cart to pass ahead. Rambhau was hurt by stone and fell down from the bullock-cart. At that time, Kisan (A1) dealt blow of an axe on the head of Rambhau. They restrained the bullock-cart to pass ahead. Rambhau was hurt by stone and fell down from the bullock-cart. At that time, Kisan (A1) dealt blow of an axe on the head of Rambhau. Shalikram (A2) dealt blow of sickle on the person of Rambhau as well as Sitaram. Ananta (A4) caused injuries by a goad-stick (a bamboo stick fixed with pointed nail to irritate bullocks to move or to run fast and also called as Purani). Tulsabai had sustained injury because of stones pelted at her by Shalikram (A2). Ananta (A4) also caused injuries by purani. Ramesh (A3) gave blow of sickle on the person of Rambhau and Sitaram. On basis of first information report lodged by Tulsabai, offence came to be registered. 3. Injured namely Tulsabai, Sitaram and Rambhau were sent for medical examination. After registering offence, Police visited the spot and drew spot panchanama on 07.01.1993. Samples of blood stained earth lying on the spot were collected. Stones which were pelted on the complainant and others were also seized. Statements of witnesses were recorded. Accused no.1 was arrested on 07.01.1993. On 07.01.1993, from his possession blood stained shirt was seized. Samples of blood of the accused persons were collected. Blood stained clothes, which were on the person of the injured were also seized. Kisan (A1) on 07.01.1993 made discovery statement, which resulted in recovery of axe stained with blood. On the same day, at the instance of Ramesh (A3), sickle stained with blood was seized. Shalikram (A2) made disclosure statement on 07.01.1993, which resulted in recovery of blood stained sickle. Ananta (A4) carried panchas and police to his house and produced a Purani. Muddemal articles were dispatched to Chemical Analyser and, thereafter, reports were received. On completion of investigation, charge-sheet was submitted. As many as twelve witnesses were examined by the prosecution. Learned Addl. Sessions Judge held that there was common intention on the part of the accused persons, to commit offence of causing hurt, attempted to cause death and, therefore, proceeded to convict all accused persons for the offences, as stated above. 4. Mr. Navlani, learned counsel for the appellants, took me through the evidence brought on record and contended that there are number of discrepancies crept in the evidence of the prosecution on material particulars and, therefore, the learned Addl. Sessions Judge ought not to have convicted the accused persons. 4. Mr. Navlani, learned counsel for the appellants, took me through the evidence brought on record and contended that there are number of discrepancies crept in the evidence of the prosecution on material particulars and, therefore, the learned Addl. Sessions Judge ought not to have convicted the accused persons. It is his contention that the testimony of the witnesses is not consistent and trustworthy. All witnesses examined by the prosecution are relatives of each other. There being no independent evidence examined by the prosecution, the contention of accused persons cannot be sustained. 5. The learned A.P.P. supported the judgment and order of conviction. It is contended that the testimony of all the three injured witnesses is supported by medical evidence. Absolutely, they had no reason to falsely implicate the accused. It is, therefore, submitted that the appeal may be dismissed. 6. Considering the fact that four accused persons are involved in the offence and three persons had suffered injuries and also considering the contention of the learned counsel for the defence that there are inconsistencies in the evidence of Tulsabai (PW1), who had sustained injuries at the hands of the accused persons, it is necessary to scrutinise depositions of the witnesses, in detail. Tulsabai (PW1) deposed that on the day of incident, she had been to the field of Sitaram (PW3)-her father. In the evening, they were returning to home in their bullock-cart loaded with fodder. When the bullock-cart reached near nullah, it was intercepted by the accused persons. They started pelting stones at them. Rambhau (PW2), who was sitting on the fodder loaded in the bullock-cart, fell down after he was hit by the stones. According to her, Kisan (A1) gave two blows of axe on the head of Rambhau (PW2). Shalikram (A2) and Ramesh (A3) gave blows of sickle on the person of Rambhau (PW2). Ananta (A4) caused puncture/stab wounds with the help of purani, on her person and also on the person of Rambhau (PW2) and Sitaram (PW3). Shalikram (A2) had also dealt blow of sickle on her right palm. Thereafter, all accused persons ran away. Before adverting to the other part of testimony, it is thought appropriate to deal with the testimony of other two witnesses mainly on the point of role played by each accused in assaulting them. 7. Rambhau (PW2) deposed that after stones hit the head, he fell down. Thereafter, all accused persons ran away. Before adverting to the other part of testimony, it is thought appropriate to deal with the testimony of other two witnesses mainly on the point of role played by each accused in assaulting them. 7. Rambhau (PW2) deposed that after stones hit the head, he fell down. Kisan (A1) gave blow of axe on his head. Shalikram (A2) and Ramesh (A3) hit him with sickle. Ananta (A4) hit him with purani. Shalikram (A2) also gave blow of sickle on the right palm of Tulsabai (PW1). Ananta (A4) dealt blows of purani on the person of Sitaram (PW3). Thereafter, all the accused persons left the spot. 8. Sitaram (PW3) deposed that accused nos. 1 to 4 obstructed them when they have seen Rambhau (PW2) and his daughter Tulsabai (PW1) proceeding towards their house and carrying fodder in bullock-cart. The stones pelted by accused person hit Rambahu and he fell down. Shalikram (A2) and Ramesh (A3) caused injuries on the person of Rambhau (PW2) with sickle. Ananta (A4) was holding purani and he dealt its blow on the person of Rambhau (PW2). Kisan (A1) dealt blow of axe on the person of Rambhau (PW2). Shalikram (A2) assaulted Tulsabai (PW1) by sickle. Ananta (A4) assaulted him by Purani. Thereafter, all the accused fled away. In order to appreciate the ocular account given by all the three injured witnesses, it is necessary to make reference to the medical evidence. 9. Dr. Ramesh Kalpande (PW9) attached to Public Health Center, Jalgaon Jamod had examined all the three injured witnesses and opined thus: (a) Tulsabai (PW1): 1) Contusion on right parietal bone size 3” X 3”, reddish in colour, irregular margin without any bleeding. 2) Contused lacerated wound over the base of right index finger size 1 ¼“ X 1 ¼“, margins are irregular. 3) Contusion on epicasum size ½” X ½” reddish in colour irregular margins. (b) Rambhau (PW2): 1) Incised wound/suspected fracture of skull of left side of head on left temporal parietal bone and it goes up to occipital bone 6” away from left ear pinal towards junction of midline of occipital region-size 5”X2”X2” placed obliquely marginal are in cut with bleeding. Bleeding is such that there is connection under scalp. (b) Rambhau (PW2): 1) Incised wound/suspected fracture of skull of left side of head on left temporal parietal bone and it goes up to occipital bone 6” away from left ear pinal towards junction of midline of occipital region-size 5”X2”X2” placed obliquely marginal are in cut with bleeding. Bleeding is such that there is connection under scalp. 2) Incised wound on head on left temporal starting at the junction of forehead and hair in between line and extending towards medial side of left eye-brow; size 3”X ½” X ½”, margin are clean cut placed obliquely with bleeding. 3) Incised wound on right forearm lateral aspect 4” away from right wrist size 1” X 1 ¼” margins are clean cut with bleeding. 4) Punctured wound on right elbow, lateral aspect size 1 ¼” X 2. 5) Punctured wound on epigestur size 1 ¼” cm X1 ¼ cm 6) Incised wound above the right nipple of right memoray grand size ½” X 1 ¼” margins are cleancut. 7) Contusion on sacra size 3” X 1 ½” reddish in colour without any bleeding. (c) Sitaram (PW3): 1) Contusion on right forearm near right elbow on lateral aspect size 4” X 4” reddish in colour without bleeding. 2) Contusion on right thigh size 6” X 4” reddish colour without bleeding. 3) Abrasion on epigestum size 1 ¼” X 1 ¼”. 4) Contusion on left eye size ½” X 2” reddish in colour. 5) Contusion on left thigh size 3” X 3” reddish in colour. 6) Contusion on right hypocardium size 2” X 3” reddish in colour. 7) Small punctured wound three in number below right memory joint size 1 ¼” X 1 ¼” X ¼ situated 1 cm. below each other. Dr. Ramesh Kalpande (PW9) issued certificate Exh.-47, 48 and 49. All the injuries were within six hours. In respect of injuries nos. 1 to 6 found on the person of Rambhau (PW2) (Exh.-47) it was opined that they were sufficient to cause death, if not treated properly. He further opined that such injuries were possible by hard and blunt object like axe, purani etc. 10. The defence tried to dislodge the testimony of these witnesses by suggesting that there was enmity between Sitaram (PW3) and his brother namely Dhondu. Both are having lands with common boundaries. He further opined that such injuries were possible by hard and blunt object like axe, purani etc. 10. The defence tried to dislodge the testimony of these witnesses by suggesting that there was enmity between Sitaram (PW3) and his brother namely Dhondu. Both are having lands with common boundaries. It was also suggested that on the date of incident, they were assaulted by Dhondu and his sons. However, Dhondu being influential person, they foisted false case on the accused persons. It was also brought in the cross-examination that Sitaram (PW3) had sold his half land to his brother Dhondu. However, it was denied that because of the harassment of Dhondu this land was sold. It is pertinent to note that after the incident, Tulsabai (PW1) lodged FIR Exh.-21. Averments in the F.I.R. are consistent with her testimony and thus, corroborate her version. Immediately, they were sent for medical examination. Injuries noticed on the person of all the three injured persons are consistent with the testimony of all these three witnesses. The defence raised by accused persons that Tulsabai (PW1), Rambhau (PW2) and Sitaram (PW3) were assaulted by Dhondu and his sons and still no complaint was lodged against them appears improbable and without any foundation. Normally, conduct of any reasonable person would be to see that those, who are guilty of causing such extensive injuries, are brought to the book. All these injured persons are rustic villagers, who cannot even dream of concocting the story in such a manner. On the contrary, action on the part of complainant in approaching the Police Station, promptly lodging the F.I.R. naming all the accused, explaining the manner in which the accused persons caused injuries and also disclosing about the weapons, which were used in the attack, makes the prosecution case trustworthy and reliable. 11. Rambhau (PW2) admitted in his cross-examination that in the year 1992, a private complaint case was filed by Kisan (A1) before Judicial Magistrate First Class, Jalgaon Jamod against him, his father and brother and further admitted that since year 1992 they were not on good terms with the accused. Similar suggestion was put to Sitaram (PW3). He also admits that the relations between his family and family of the accused are strained on account of dispute over boundaries in between their agricultural lands. In fact, this appears to be the genesis of the incident. Similar suggestion was put to Sitaram (PW3). He also admits that the relations between his family and family of the accused are strained on account of dispute over boundaries in between their agricultural lands. In fact, this appears to be the genesis of the incident. It is quite understandable that because of the enmity, accused nos. 1 to 4 decided to wait for the complainant, her brother and father and then they opened attack on them. It was pre-arranged plan and then the same was executed. 12. Tulshiram Bawaskar (PW5) is Police Constable, who was present in Police Station, Jalgaon-Jamod on 06.01.1993 and particularly when Tulsabai (PW1) had gone there to lodge report. He then carried all the three injured to hospital and collected Injury Certificate. ASI Onkar Jadhav (PW6) had arranged for collecting blood samples of accused nos.1 to 4. Namdeo Khawale (PW7) is a witness to the spot panchanama. However, he turned hostile. According to him, he did not visit the spot, although he admitted the signature on the spot panchanama. He is also witness to the discovery of weapons at the instance of accused persons. On this point also, he did not support the prosecution case. Samadhan Bajare (PW10) is a Panch witness to the seizure of clothes, which were on the person of Kisan (A1) and seized under Panchanama (Exh.-51). According to him, the shirt stained with blood was seized. On 15.01.1993, police seized one shirt, which was worn by Rambhau (PW2). The turban, which Sitaram (PW3) had put on was also seized in his presence under panchanama Exh.-25. Maroti Dhurde (PW11) is another pancha witness to the recovery of an axe at the instance of Kisan (A1), recovery of sickle at the instance of Shalikram (A2), recovery of another sickle at the instance of Ramesh (A3) and also recovery of purani at the instance of Ananta (A4). He did not support the prosecution on any count. 13. ASI Bhaurao Dhawde (PW12) was attached to Police Station, Jalgaon Jamod. On 06.01.1993 at 7.00 p.m., Tulsabai (PW1) came to the Police Station and lodged report Exh.-21 and on that basis, he registered offence. He had referred injured to the hospital. On 07.01.1993, he visited the spot and made spot panchanama. He seized stones, blood stained earth from the spot. On 07.01.1993, he arrested accused nos.1 to 4. On 06.01.1993 at 7.00 p.m., Tulsabai (PW1) came to the Police Station and lodged report Exh.-21 and on that basis, he registered offence. He had referred injured to the hospital. On 07.01.1993, he visited the spot and made spot panchanama. He seized stones, blood stained earth from the spot. On 07.01.1993, he arrested accused nos.1 to 4. It was suggested to him that Dwarkabai had witnessed the incident but purposefully her name did not appear in the list of witnesses since she was not supporting the prosecution. He denied this suggestion. He further denied that there was quarrel between Dhondu and injured persons and in that Dhondu had assaulted the injured persons. 14. Frankly speaking, the defence is wholly unfounded. This follows that the testimony of three injured persons being consistent and corroborated by medical evidence and by their conduct in rushing to the Police Station and unfolding the true story proved beyond reasonable doubt that they were assaulted by accused by means of axe, sickles and a weapon like purani. Although, the learned Additional Sessions Judge held the accused guilty for an offence punishable under Section 307 read with Section 34 of the I.P.C., I am of the view that case under this section has not been proved. The learned Sessions Judge in para 27 observed that, “....Though it is not mentioned in certificate (Ex.47) that the injuries mentioned therein are serious in nature, it cannot be said that those injuries were not sufficient to cause death of Rambhau....” It is, therefore, obvious that for the first time, it is brought on the record that the injury nos. 1 to 6 seen on the person of Rambhau (PW2) were sufficient to cause death. The Medical Officer did not say that individually or cumulatively, in ordinary course these injuries were sufficient to cause death. The circumstances point out that the accused persons were four in numbers and when they opened assault, there was no resistance by any of the injured. The act was committed in a broad daylight without taking any precaution to hide their identity. The sickles and axe used are agricultural implements. Except the incised wounds on the person of Rambhau (PW2), the injuries on the person of Tulsabai (PW1) and Sitaram (PW3) are in the nature of contusion or puncture wounds caused by that “purani”. The act was committed in a broad daylight without taking any precaution to hide their identity. The sickles and axe used are agricultural implements. Except the incised wounds on the person of Rambhau (PW2), the injuries on the person of Tulsabai (PW1) and Sitaram (PW3) are in the nature of contusion or puncture wounds caused by that “purani”. From the evidence, it is not clear that due to any of the injury victim was required to be an indoor patient. Dr. Ramesh (PW9) also did not speak whether any of the injured person was required to be an indoor patient and for what period. Under Section 307, I.P.C. what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. Therefore, in the facts and circumstances, it would be appropriate to convict the accused for the offence punishable under Section 326 of the I.P.C. i.e. causing grievous hurt to Rambhau (PW2) by means of weapon like axe, sickles and purani etc. Undoubtedly, with the aid of section 34 of I.P.C. all are to be held guilty of the said act. 15. As regards conviction of the accused, Section 323 of I.P.C. for voluntarily causing simple hurt, it appears correct. Similarly, the conviction of accused persons under Section 324 read with section 34 of the I.P.C. for voluntarily causing hurt to Sitaram (PW3) is also justified. However, there was no necessity of convicting the accused for the offence punishable under Section 341 read with section 34 of the I.P.C. This is a case where the accused opened assault on Tulsabai (PW1) and others when they reached at a particular place i.e. nullah. Therefore, there is nothing like causing wrongful restrain. Similarly, it is not understood as to how conviction under Section 337 is recorded particularly, when the charge is to the effect that the accused persons did an act negligently. Therefore, there is nothing like causing wrongful restrain. Similarly, it is not understood as to how conviction under Section 337 is recorded particularly, when the charge is to the effect that the accused persons did an act negligently. Section 337 of I.P.C. is attracted only when the act is done rashly or negligently as to endanger human life. Thus, conviction of the accused for the offence punishable under Section 337 read with Section 34 of the I.P.C. cannot be sustained. 16. So far as conviction of the accused persons under Section 323 read with 34 of I.P.C. and 324 read with 34 of I.P.C. is concerned, sentence imposed upon them appears reasonable and proper. On the point of sentence for an offence punishable under Section 326 read with section 34 of the I.P.C., the contention of the learned counsel for the appellant is that the accused persons are small agriculturists and because of the dispute going on between both the parties over the boundaries of the fields, the incident occurred. He further contended that a period of about 20 years has elapsed since the date of incident and for this reason sentence imposed may be reduced to the period already undergone by them. The record shows that accused nos.1 to 4 were in jail during period from 06.01.1993 to 15.01.1993 and from 11.07.1998 to 04.08.1998. 17. The period undergone by the accused is so short that reducing the sentence of the accused persons to the extent of period undergone by them would not meet the ends of justice. Rambhau (PW2) had sustained four incised wounds, three on head and one on chest. In addition to that he had sustained two punctured wounds, one on the right elbow and other on uppermiddle region of abdomen. He had also sustained contusions, possibly caused by stone. The evidence points out that the incident was not an outcome of sudden quarrel but the accused persons were waiting at a particular place for the arrival of Rambhau (PW2) and others. Even the age of the accused persons cannot be the factor to take a lenient view. At the time of incident, Kisan (A1) was aged about 35 years, Shalikram (A2) was aged about 33 years, Ramesh (A3) was aged about 25 years and Ananta (A4) was about 26 years. Even the age of the accused persons cannot be the factor to take a lenient view. At the time of incident, Kisan (A1) was aged about 35 years, Shalikram (A2) was aged about 33 years, Ramesh (A3) was aged about 25 years and Ananta (A4) was about 26 years. In that light of the matter, sentencing them to suffer Rigorous Imprisonment for three years each and to pay a fine of Rs.1,000/-each would meet the ends of justice. 18. The appeal is allowed partly. Judgment and order of conviction and sentence passed against accused nos. 1 to 4 for the offence punishable under section 341 read with section 34 and section 337 read with section 34 of the I.P.C. is quashed and set aside. Fine amount, if any paid, on these counts be refunded to them. Judgment and order of conviction and sentence passed against the accused nos. 1 to 4 for the offence punishable under Section 323 read with section 34 and section 324 read with 34 of the I.P.C. is affirmed. Judgment and order of conviction and sentence passed against the accused nos. 1 to 4 for the offence punishable under Section 307 read with section 34 of the I.P.C. is set aside and instead, the accused nos. 1 to 4 are convicted for the offence punishable under Section 326 read with section 34 of the I.P.C. and each of them is sentenced to suffer Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/-(Rs. One Thousand Only) each, in default to suffer further Rigorous Imprisonment for six months each. All the substantive sentences shall run concurrently. The period of detention undergone by the accused from 06.01.1993 to 15.01.1993 and from 11.07.1998 to 04.08.1998 be set off. Accused nos. 1 to 4, who are on bail shall surrender to their bail bonds to serve out remaining part of the sentence. Four weeks time is granted to surrender.