JUDGMENT A.I.S. Cheema, J. 1. The Appellant (hereinafter referred as accused) has been convicted by 3rd Additional Sessions Judge, Ahmednagar in Sessions Case No. 8 of 2000, for offence punishable under Section 325 of the Indian Penal Code, 1860 (for short IPC) and has been sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2000/-. In default, he has to suffer rigorous imprisonment for three months. Aggrieved by the conviction and sentence, this Appeal has been filed. 2. The complainant – Khalil Dilawarkhan Pathan filed the complaint registered at Crime No. 215 of 1998 with Kotwali Police Station, Ahmednagar. It related to assault by the Appellant-accused. The Appellant-accused also filed a counter case against the complainant Khalil and his sister Naushadbee regarding assault by knife, leading to filing of Sessions Case No. 182 of 1998 under Section 307 of I.P.C. Consequently, both the cases were tried by the Court of Sessions and in both the matters the Sessions Court convicted respective accused. Khalil Pathan – accused in counter case expired during pendency of his Criminal Appeal No.147 of 2000 which, consequently abated. 3. The case of prosecution, in brief, is as under:- Complainant Khalil Pathan, resident of Pathardi in District Ahmednagar had come to visit his sister Naushadbee, residing in Rangar lane of Ahmednagar. On 13th July, 1998 he had come to his sister and stayed with her. On 14th July, 1998 in the afternoon at about 1.00 p.m. he was talking with his sister and another person while they were in the narrow lane near the house of his sister. At that time, from front a person came (later on identified as the accused) and told the complainant giving abuse on his mother, to give him side. There was exchange of words and then the complainant and his sister and that person i.e. accused went away to their respective homes. Complainant Khalil in the evening, went for a movie in Asha Talkies between 6.00 – 9.00 p.m. He was returning from the movie between 9.00 – 9.30 p.m. to go to the place of his sister. There was exchange of words and then the complainant and his sister and that person i.e. accused went away to their respective homes. Complainant Khalil in the evening, went for a movie in Asha Talkies between 6.00 – 9.00 p.m. He was returning from the movie between 9.00 – 9.30 p.m. to go to the place of his sister. He was near a temple in one of the lanes near Rangar lane and suddenly the same person (i.e. accused) came from front having hockey stick in his hand and picked up quarrel regarding the earlier incident and hit the complainant Khalil Pathan by hockey stick on his head, right hand as well on his left leg. Later, Complainant, under a note from police, was sent to hospital and complainant came to know from his sister Naushadbee the name of the accused as Sikandar Pathan. Complainant gave the complaint while he was admitted in the Civil Hospital, Ahmednagar. Complaint to above effect was filed by the complainant Khalil which was recorded as F.I.R. (Exhibit 6) by PW7 Head Constable Raghuveer Gaikwad and offence came to be registered. The investigation was then done by PW8 Head Constable Bansi Sale. He drew Spot Panchnama. Statements of witnesses were recorded. The accused on 17th January, 1999 produced the hockey stick before this witness and it was seized vide Panchnama Exhibit 13. The accused was arrested and after completing the investigation, chargesheet came to be filed. Charge was framed under Section 325, 504 and 506 of I.P.C. Accused pleaded not guilty. Prosecution brought on record evidence of eight witnesses. The defence of the accused, as is appearing from the cross-examination of the witnesses and statement under Section 313 of the Code of Criminal Procedure, 1973 (Cr. P.C. in brief), is that due to the earlier incident it was rather the complainant Khalil, helped by his sister Naushadbee and another person, who had beaten the accused and given him knife blow. Defence is that seeing blood of the accused, complainant had run away from the spot and while running he fell in lane on stone and also dashed against a wall and thus sustained his injuries. 4. Sessions Court, after considering the evidence of witnesses and the defence, has convicted the accused for offence under Section 325 of I.P.C. as mentioned above. 4. Sessions Court, after considering the evidence of witnesses and the defence, has convicted the accused for offence under Section 325 of I.P.C. as mentioned above. For offence under Section 504 and 506 of I.P.C. the accused came to be acquitted. 5. I have heard learned counsel for the Appellant-accused and the learned A.P.P. for the State. It has been argued for the Appellant-accused that it was rather the complainant who had attacked the accused and while running away, suffered his own injuries. Argument is that the PW-2 Dr. Pravin admitted in the cross-examination that the injuries of the complainant were possible by fall on stone if the person has consumed liquor. Regarding the incident, there is evidence only of the complainant. PW-4 Laxman Gaikwad only saw the complainant and accused pulling hockey stick from each other and did not see the actual assault. PW-5 Naushadbee was interested witness and her evidence that she saw the accused on the spot and going away carrying hockey stick, is doubtful as omission in that regard was proved. The other witness PW-6 Laxman Khatade turned hostile. There were contradictions and omissions in the statements of witnesses and thus the case of prosecution was not proved. 6. Against above arguments of the learned counsel for the Appellant-accused, learned A.P.P. referred to the evidence on record and submitted that the complainant was not knowing the accused before the incident and had no reason to speak against the accused. The evidence shows that the complainant suffered injuries on his head, to the face and had fractures of the right hand as well as left leg. There is nothing to show that Complainant had consumed liquor. The complainant would not have attributed such injuries to the accused, had the same not been inflicted by the accused. According to the learned A.P.P. the evidence shows that at the time of incident there was free fight between the complainant and accused and in the incident even the accused was injured, for which separate Sessions Case was conducted against the complainant. According to the learned A.P.P., the trial Court has rightly weighed the evidence in both the matters and in present matter the accused came to be convicted. The A.P.P. supported the reasonings recorded by the trial Court. 7. According to the learned A.P.P., the trial Court has rightly weighed the evidence in both the matters and in present matter the accused came to be convicted. The A.P.P. supported the reasonings recorded by the trial Court. 7. Having heard counsel for both sides and gone through the record, what appears is that there is evidence of PW-1 complainant Khalil Pathan as well as his sister PW-5 Naushadbee Shaikh which discloses that before taking place of the present incident (for which the accused is charged), there was earlier an incident in the afternoon, in which on the count of giving way there was exchange of words between the complainant and the accused. Although contradictions and omissions have been brought on record regarding details of that incident in the afternoon, it is not material as the fact that some incident took place in the afternoon, is hardly in dispute. The complainant PW-1 Khalil deposed that in the afternoon at about 1.00 p.m. he was standing in front of the house of his sister and talking with her when accused Sikandar came that side and abusing the complainant on his mother, asked for side so as to pass, as it was a narrow lane. This led to exchange of words. The complainant is corroborated in this regard by his sister, who claims that when the accused started abusing, she had pacified both of them and accused had gone away to his house which is about 300-400 feet away from the house of PW-5 Naushadbee. In the cross-examination of complainant it was suggested to him and he deposed that it was true that accused had told him to get aside so as to make way for him to pass through that lane and that at that time there was altercation with the accused. Thus some incident took place in the afternoon is not disputed. 8. Then there is evidence of PW-1 Khalil Pathan that after the incident in the afternoon he went to Asha Cinema Theatre for seeing movie between 6.00 to 9.00 p.m. The movie was over at about 9.00 p.m. and he started to go to the house of his sister at Rangar lane. He came near Mangal Karyalaya. He saw the accused on the road. According to the complainant, the accused told him that he will show what is Dadagiri. He came near Mangal Karyalaya. He saw the accused on the road. According to the complainant, the accused told him that he will show what is Dadagiri. Accused had a hockey stick and had consumed liquor and started beating the complainant with the hockey stick. PW-1 has deposed that the accused gave a blow of hockey stick on the head of the complainant and thereafter on the left leg and yet another blow was given on the right palm. He deposed that he sustained injury on his face also with the hockey stick. PW-1 complainant Khalil deposed that he then ran to the house of his sister and his sister brought him out of the house at which time the accused ran away. 9. The above evidence of complainant PW-1 Khalil is corroborated by PW-5 Naushadbee. Regarding the incident of evening, she deposed that her brother had gone to Asha Cinema Theatre to watch a movie between 6.00 – 9.00 p.m. and she was at home. Thereafter her brother came to her house at about 9.30 p.m. and blood was oozing from his head. She asked him as to what happened and her brother told her that the boy who had abused him in the afternoon had beaten him with the hockey stick. PW-5 Naushadbee deposed that immediately she came out of the house and her evidence shows that she saw the accused walking away towards Chitale road. She deposed that accused had a hockey stick in his hand. 10. The complainant PW-1 Khalil was cross examined and it was suggested to him that rather – he and his sister and another person had at about 10.00 – 10.30 p.m. near Gauri Ghumat assaulted the accused. The suggestion was denied by the complainant. Complainant denied that due to vengeance of earlier incident, he had beaten the accused and injured him with knife. Similarly the suggestions that after seeing blood of accused, complainant ran away and fell on stone and that he dashed against wall, were denied by the complainant. Thus, the evidence of complainant that the accused gave him blows by hockey stick has not been shaken. As regards PW-5 Naushadbee, learned counsel for Appellant-accused argued that in her cross-examination it was suggested to her that she did not state in her statement to police that she saw accused going towards Chitale road holding hockey stick. Thus, the evidence of complainant that the accused gave him blows by hockey stick has not been shaken. As regards PW-5 Naushadbee, learned counsel for Appellant-accused argued that in her cross-examination it was suggested to her that she did not state in her statement to police that she saw accused going towards Chitale road holding hockey stick. The suggestion reads as under:- “I have stated in my statement before police that I saw accused leading towards Chitale road holding hockey stick in his hand. I cannot say why it is not so appearing in my statement before the police.” The learned counsel argued that the omission in this regard is proved and thus according to him presence of Naushadbee at the time of incident or that he had hockey stick is doubtful. I find that in the cross-examination of the witness PW-5 above suggestion was improperly recorded. At the time of arguments in this Court the statement to police was taken out and perused. She had stated to police (in Marathi, of which translation would be) that:- “I immediately came out of house. At that time, outside, Sikandar Pathan, resident of Rangargalli holding hockey stick in his hand was there. Seeing me he ran away.” Thus, the omission was limited to the fact that she had not stated that accused went “towards Chitale Road”. In isolation it was not material also. This shows that the trial Court was not careful while recording the evidence, and left scope to misread the evidence. In the cross-examination the investigating officer PW-8 Bansi Sale was asked and he stated that Naushadbee had not stated before him that the accused ran towards Chitale road. At the time of this cross-examination also the trial Court was not careful while recording the evidence. The statement did show that the witness had seen the accused run away. What however, was recorded was that she did not state that the accused ran away towards Chitale road. The omission was limited to towards Chitale road. The same, however, was recorded as if the accused was not seen by her running away. While recording evidence it is necessary that the trial Courts should themselves peruse the statement concerned. The omission or contradiction should be recorded highlighting or stressing specific portion so that there is no confusion. This can be done by careful framing of sentence. The same, however, was recorded as if the accused was not seen by her running away. While recording evidence it is necessary that the trial Courts should themselves peruse the statement concerned. The omission or contradiction should be recorded highlighting or stressing specific portion so that there is no confusion. This can be done by careful framing of sentence. Simple way can be by putting inverted commas to pin point portions. The above suggestion to PW-5 Naushadbee in Evidence could have been recorded as under:- “I have stated in my statement before police that I saw accused leading (even this should have been walking away) towards Chitale road holding hockey stick in his hand. I cannot say why reference of Chitale Road is not so appearing in my statement before the police.” It would have made it clear that the omission was limited to the portion towards Chitale road. It is necessary that trial Courts recording evidence are careful on this count so that recording of evidence should not be defective. 11. Coming back to the evidence of Naushadbee, she does corroborate the complainant that after the incident he ran up to his sister's house and when she came out, she saw that the accused was there with the hockey stick and then the accused went away. 12. PW-6 Laxman Khatade turned hostile and did not support the prosecution, except to the extent that he heard hue and cry near Mangal Karyalaya. As regards the evidence of PW-4 Laxman Gaikwad, he deposed that he has a hotel in Anandi Bazar, Rangar lane near Mangal Karyalaya. At the time of evening of incident, he was in his hotel and heard noise of exchange of abuses from Gauri Ghumat side. He claimed that complainant and accused were there and they were trying to pull a hockey stick in between themselves and were abusing each other. He then deposed that both of them went away towards Mangal Karyalaya and does not know what happened thereafter. No doubt witness was declared hostile and in the cross examination by A.P.P., denied the suggestions that he saw the actual assault on the complainant. However, the fact remains that this witness was knowing the accused for many days and the accused resides in the same lane is admitted by the witness. As such, the witness does not appear to have fully supported the prosecution. However, the fact remains that this witness was knowing the accused for many days and the accused resides in the same lane is admitted by the witness. As such, the witness does not appear to have fully supported the prosecution. However, fact remains that the incident took place, is corroborated partially by this witness also. 13. The evidence of PW-2 Dr. Pravin shows that the complainant had come to the Civil Hospital, Ahmednagar on 14th July, 1998 with a police yadi and he examined the complainant at about 11.45 p.m. and found the following injuries:- “1. CLW right parietal region 5 cm. X ½ cm muscle deep, blood was seen. The age of injury was within 6 hours. It was simple injury caused by hard and blunt object. 2. Fracture of 3rd metacarpol bone of right hand. It was caused by hard and blunt object. Age of injury was within 6 hours. Nature of injury was grievous. 3. Fracture of left fibula bone, age of injury was within 6 hours, caused by hard and blunt object. Nature of injury is grievous. 4. CLW on lower lip ½ cm. X ¼ cm. X 8 m.m. Deep. The nature of injury is simple, age of injury was within 6 hours and caused was by hard and blunt object.” Thus, the complainant is corroborated even by the doctor and medical evidence regarding the injuries. The oral evidence of the complainant regarding how the injuries were caused, matches with the medical evidence. In the cross-examination the doctor did depose that all these injuries are possible by fall on stone after person consumed liquor. The doctor admitted that the injuries were also possible by dash against otta. However, the evidence cannot be read to say that the doctor admitted that all the four injuries of the complainant were possible by one fall. It has to be remembered that there was contused lacerated wound to the parietal region as well as to the lip. While there was fracture of the metacarpol bone of right hand, the other injury was a fracture of left fibula bone. Apart from this, there is no reason why the complainant would attribute these injuries to the accused who was not even known to him a day before the incident of afternoon leading to the incident in the evening. 14. While there was fracture of the metacarpol bone of right hand, the other injury was a fracture of left fibula bone. Apart from this, there is no reason why the complainant would attribute these injuries to the accused who was not even known to him a day before the incident of afternoon leading to the incident in the evening. 14. The trial Court weighed all the evidence and came to the conclusion that offence under Section 325 of I.P.C. was proved. From the given evidence, the view taken by the trial Court is a possible view and thus there is no reason why this Court should take a different view. 15. The counsel for Appellant-accused submitted that if the conviction is to be maintained, the benefit of Probation of Offenders Act, 1958 may be given to the Appellant-accused, considering his age at the time of incident. At the time of framing of charge on 13th January, 2000, Appellant-accused claimed his age to be 27 years. Looking to facts of the matter where quarrel is picked up for petty matters like asking of way or claim of Dadagiri i.e. bossing around, I do not find that this is a fit case to extend benefit of Probation of Offenders Act. Age of accused at time concerned is hardly a ground to invoke the provisions. 16. There is no substance in the Appeal. The Appeal stands rejected. 17. The accused shall surrender to his Bail Bonds and undergo sentence as is remaining.