JUDGMENT A.I.S. Cheema, J. 1. Appellant No.1 Suryanakt Chandrakant Gade and Appellant No.2 Shashikant Chandrakant Gade (original Accused Nos.1 and 2 respectively, hereafter referred as accused No.1 and accused No.2) were prosecuted before the Additional Sessions Judge, Kopargaon in Sessions Case No. 118 of 1993 for offence punishable under Section 307, 326 read with 34 of the Indian Penal Code, 1860 (IPC in brief). They have been convicted for offence under Section 307 and 325, both read with Section 34 of IPC. For offence under Section 307 of IPC each of them has been sentenced to suffer rigorous imprisonment for four years and fine of Rs. 5000/ in default to suffer simple imprisonment for one year, and for offence under Section 325 of IPC each of them has been sentenced to suffer rigorous imprisonment for one year and fine of Rs. 2000/ in default to suffer simple imprisonment for four months. The Substantive sentences are to run concurrently. The trial Court directed the amount deposited by the accused to be paid as compensation to the victim Rajendra Laxman Gade. Thus, this Appeal. 2. The case of prosecution in short, is as under:- (A) On 17th March, 1992 complainant Kankarbhai Amirbhai Shaikh, resident of Maygaon Devi, Tq Kopargaon filed First Information Report (FIR in brief) at Crime No. 60 of 1992 under Section 326, 324 read with 34 of IPC at 20.15 hours with Police Station Kopargaon. He reported that he was working since seven years with one Laxmanrao Gade on the field at Maygaon Devi. The field has facility of water from well as well as water channel of irrigation. On 15th March 1992, a Sunday, he was informed by Rajendra, son of Laxman Gade @ Dada that they will be getting irrigation water and thus after meals he went and waited near Vasti i.e. farm house of the field. After little while Rajendra Gade (hereafter referred as victim) came along with labour Bhagwanta Karbhari Kadam on motorcycle. All the three then proceeded further on motorcycle towards field of one Sudam Gade which is on the Shiv of Nali. The supply of water of irrigation to the field of Sudam was already complete and in order to divert water to their field, they closed the Bare i.e. outlet. All the three then proceeded further on motorcycle towards field of one Sudam Gade which is on the Shiv of Nali. The supply of water of irrigation to the field of Sudam was already complete and in order to divert water to their field, they closed the Bare i.e. outlet. Bhagwanta (Bhagwan Kadam – PW3) was asked to proceed towards the field which was downstream and Rajendra Gade and complainant Kankar proceeded on motorcycle towards farm house which was on the lower side. After stopping the motorcycle there, Rajendra Gade and complainant started proceeding for closing Bare – outlet walking upstream. They reached the field of Chandrakant Gade (father of accused persons). At that place near the Bare – outlet, which was leading water to their field, the accused No.2 Shashikant and accused No.1 Suryakant were present. Accused No.2 Shashikant had a stick and accused No.1 Suryakant had spade with wooden handle. They were near the outlet from where water was going in their field. At that time, victim Rajendra asked complainant to close the outlet which was there. At that time both the accused objected and claimed that their Bare – outlet should not be closed and they have to water their field. At that time victim Rajendra stated that Patkari (i.e. Channel Incharge) had permitted him to take the water and so they will be taking water to their field, which is downstream. The victim thus explained to the accused persons and asked the complainant to close the Bare – outlet. Complainant entered the water channel to close the Bare – outlet. At that time accused No.2 Shashikant gave a stick blow near the hip of complainant. Because of this, victim Rajendra started explaining to accused No.2 Shashikant. At that time accused No.1 Suryakant charged with spade in hishand, towards the victim and so victim Rajendra gave a slap to accused No.1 Suryakant. At that time, accused No.2 Shashikant gave a blow by stick which he was holding, to the head of victim Rajendra with force. Immediately complainant tried to take away the stick of accused No.2 Shashikant, at which time accused No.1 Suryakant gave a severe blow on the head of victim Rajendra by the blunt side of spade he was holding in his hand. Victim Rajendra got injured and fell on the ground and then both the accused ran away with the instruments they had. Victim Rajendra got injured and fell on the ground and then both the accused ran away with the instruments they had. The incident was seen by Bhagwan Kadam (PW3) also. The complainant called out to Sunil Radhakishan, who had farm house nearby. He came along with his brother Shantaram and father Radhakishan as well as one Netaji Eknath. The incident was told to them. A bullock cart was brought and those persons as well as Bhagwan Kadam took victim Rajendra in the bullock cart towards residence of the owner. Complainant stayed at the farm house. When the incident took place there was moon light and the incident was clearly seen. Similarly, both the accused reside at some distance from the field of the owner in their house built on the farm and are of daily acquaintance, being related to the owner. Victim Rajendra was taken to Kopargaon and from there to Nashik, was learnt by the complainant. Complainant felt that the owner would file report to Police and so the complainant himself did not come to the Police Station earlier. (B) F.I.R. with the contents as above, was received by A.S.I. Murlidhar Dhondiba Karale (PW7). The A.S.I. sent the complainant for medical examination and took up the investigation. Regarding the same incident, accused No.1 Suryakant also filed a complaint which was registered as non cognizable case No.188 of 1992 (Exhibit 46). The A.S.I. PW7 Murlidhar recorded Spot Panchnama. The station diary entry 76 of 1992 shows that the victim Rajendra had been taken to the hospital at Kopargaon in the same night of incident and the medical officer had sent intimation to the Police which was received at 1.45 a.m. (Exhibit 15). A Police Station Entry No.72 of 1992 of Kopargaon Police Station shows that Police wanted to record statement of the victim but the doctor found that the victim was not in a position to give statement (Exhibit 15). The victim being serious, was shifted to Nashik and Police from Nashik also verified from Police Station, Kopargaon whether any offence was registered, as the victim had suffered serious head injury. Station Diary Entry in this regard at 77 of 1992 dated 17th March 1992, was made at 12.15 hours at Kopargaon Police Station. The victim was then shifted from Nashik to Bombay Hospital at Mumbai, looking to the serious injury he had to his head and was treated there. Station Diary Entry in this regard at 77 of 1992 dated 17th March 1992, was made at 12.15 hours at Kopargaon Police Station. The victim was then shifted from Nashik to Bombay Hospital at Mumbai, looking to the serious injury he had to his head and was treated there. (C). PW7 A.S.I. Murlidhar had visited the victim when victim was at Nashik and had found him to be unconscious. After the F.I.R. was registered, accused No.1 Suryakant was arrested on 17th March 1992 (Exhibit 16) and accused No.2 Shashikant came to be arrested on 20th March 1992, (Exhibit 17). After accused No.2 Shashikant was arrested, he gave discovery of the spade and stick used at the time of incident, vide Memorandum and Panchnama (Exhibit 34 and 35), on 22nd March 1992. The clothes of victim Rajendra were seized by Police (vide admitted Panchnama Exhibit 21) on 14th April 1992. The Police sent the seized clothes having blood stains to the Chemical Analyzer. Subsequently, chargesheet came to be filed. The offence was found to be Sessions triable and the matter was committed to the Court of Sessions. 3. Charge was framed under Section 307, 326 read with 34 of I.P.C. against both the accused. They pleaded not guilty. Their defence as is appearing from the crossexamination of the prosecution witnesses, does not appear to be of denial of incident taking place but according to the accused persons, it was the complainant Kankarbhai and victim Rajendra who had tried to forcibly divert the water, although the accused persons asked them not to do so, and there was scuffle in which victim fell on rock of the Bare and sustained injury. In statement under Section 313 of the Code of Criminal Procedure, 1973 (Cr. P.C. in brief), it is tried to say that due to political reasons the accused persons have been falsely implicated. 4. Prosecution brought on record evidence of seven witnesses. There are certain documents, genuineness of which was not denied and thus they were exhibited in terms of Section 294 of Cr. P.C. These documents include intimation dated 16th March 1992 from medical officer Kopargaon to P.S.I. Kopargaon regarding admitting victim Rajendra in hospital and the receipt of intimation at 1.45 hours on 16th March 1992. The same document has endorsement by the doctor that the patient is not able to give statement. P.C. These documents include intimation dated 16th March 1992 from medical officer Kopargaon to P.S.I. Kopargaon regarding admitting victim Rajendra in hospital and the receipt of intimation at 1.45 hours on 16th March 1992. The same document has endorsement by the doctor that the patient is not able to give statement. Endorsement is of 2.00 a.m. of 16th March 1992. Arrest Panchnama of accused No.1 Suryakant dated 17th March 1992 has been admitted at Exhibit 16, which recorded that there was no sign of any injury on his person. The Spot Panchnama dated 18th March 1992 was admitted at Exhibit 36. Arrest Panchnama of accused No.2 Shashikant dated 20th March 1992 was admitted and is at Exhibit 17. He also did not have signs of any fresh injury on his person. The injury certificate of victim Rajendra from Kopargaon Municipal Hospital dated 19th March 1992 was admitted by accused and is at Exhibit 18. The certificate recorded history of assault by spade dated 15th March 1992 at 10.00 p.m. The patient was mentioned to be semiconscious. The injury noted was C.L.W. Parietal region to scalp, size 3 c.m. X 2 c.m. X bony deep. Xray of skull showed fracture of parietal bone. The injury certificate of complainant Kankarbhai was also admitted by the accused and was marked Exhibit 19. The certificate recorded history of assault by weapon stick. There was a contusion to lumbar region, 5 c.m. X 3 c.m. with tenderness and restricted movements. The Xray showed fracture of L5 with dislocation of lumbosacral joint leading to spondylitis. Exhibit 20 is letter by Police to medical officer at Nashik dated 16th March 1992, where doctor endorsed that the patient was not in a condition to give statement. This was at 10.15 a.m. of 16th March 1992. This document has been admitted by the accused. It appears that the victim Rajendra was treated by Dr. Ujwala Pathak at Nashik and her certificate was admitted by the accused at Exhibit 22. Medico Legal report of victim Rajendra from Nagji Medical Hospital dated 16th March 1992 was also admitted. The same is at Exhibit 23. It shows that the victim had been forwarded after treatment at Kopargaon Municipal Dispensary and found the patient to be semiconscious with contusion having sutured wound on temporal parietal region on the left side. Medico Legal report of victim Rajendra from Nagji Medical Hospital dated 16th March 1992 was also admitted. The same is at Exhibit 23. It shows that the victim had been forwarded after treatment at Kopargaon Municipal Dispensary and found the patient to be semiconscious with contusion having sutured wound on temporal parietal region on the left side. The C.T. Scan shows hematologic contusion of left temporal parietal region depressed fracture of left temporo parietal region. The patient was transferred to Bombay Hospital for further treatment. 5. The trial Court after considering the oral and documentary evidence and the defence as well as the admitted documents, referred above, found both the accused guilty for offence under Section 307 of I.P.C. read with Section 34 of I.P.C. Although the injury caused to the complainant Kankarbhai was also found to be grievous injury caused by stick, which when used as weapon of offence must be stated to be dangerous weapon, the trial Court convicted the accused persons under Section 325 of I.P.C. and not under Section 326 of I.P.C. The State has not filed appeal seeking conviction under higher Section and thus, I will not enter into this aspect. 6. The Appeal raises various grounds and it has been argued by the learned counsel for the Appellants accused that although the victim claimed that he had taken permission from the irrigation channel incharge to divert water to his field, no such permission was proved on record. The evidence shows that land for which the water was tried to be taken, was not a land under irrigation block. The learned counsel for the Appellants initially argued that the defence of the accused is not of self defence but it is only of denial, but when the argument proceeded, at another stage, the learned counsel submitted that the circumstances proved on record, justified right of private defence by the accused. It is argued that the accused persons each of them gave only one blow to the victim and there were no successive blows and so offence under Section 307 of I.P.C. is not made out. The blow given by spade was also from the blunt side. According to the learned counsel, complainant PW2 Kankar and the victim PW1 Rajendra were the aggressors in the field of accused persons and they damaged the water inlet of the accused persons. The blow given by spade was also from the blunt side. According to the learned counsel, complainant PW2 Kankar and the victim PW1 Rajendra were the aggressors in the field of accused persons and they damaged the water inlet of the accused persons. It is argued that the examination in chief of the victim was suo moto and closed for cross-examination, but subsequently the A.P.P. applied for further examination-in-chief and according to learned counsel, this should not have been allowed and he stated that prejudice was caused to the accused. The victim PW1 Rajendra referred to the accused persons in his examination-in-chief with wrong numbers. PW5 Laxman Shankar Gade, the father of victim Rajendra accepted that one of his relative was a Police Inspector. According to the learned counsel, the accused persons had spade, does not mean that they were armed. Referring to the evidence of PW4 Panch Ashok regarding discovery of stick and spade from accused No.2, it has been argued that he admitted in cross-examination that when he was called, Police had told him that Panchnama of seizure of weapons is to be done. Thus, according to the learned counsel, the Police already knew about the weapons. The complaint given by the accused persons was not inquired into and registered only as non cognizable case. There was no sufficient motive for the assault. The accused should be acquitted or if the conviction is maintained, the accused should be given benefit of Probation of Offenders Act. 7. Against this, learned A.P.P. submitted that the evidence of complainant PW2 and victim PW1 Rajendra as well as witness PW3 Bhagwan is consistent regarding the incident of assault. The accused persons left only after the victim fell unconscious. The main incident taking place is not denied. The presence of accused at the spot of incident is also not disputed. The defence is not specific. The medical evidence in respect of complainant as well as the victim shows that they had grievous injuries. The victim was unconscious for long period and the evidence shows that even now he is suffering due to the injuries. The presence of accused at the spot of incident is also not disputed. The defence is not specific. The medical evidence in respect of complainant as well as the victim shows that they had grievous injuries. The victim was unconscious for long period and the evidence shows that even now he is suffering due to the injuries. The learned A.P.P. argued that the trial Court properly discussed the evidence and rightly came to the conclusions that the accused persons deserve to be convicted under Section 307, 325 read with 34 of I.P.C. According to learned A.P.P. while recording evidence of PW1 victim, as the evidence was recorded suo moto, there was some confusion with reference to the Number given to accused persons which was due to the error of the Court and the Court corrected it, can be seen from the evidence Para 8. According to the A.P.P. there is no substance in the Appeal and the same deserves to be rejected. 8. Before discussing the oral evidence, the spot may be kept in view. The Spot Panchnama Exhibit 36 is not disputed. The evidence of PW1 Rajendra in crossexamination shows that near the fields of the parties, there is Godavari Left Canal which flows in SouthNorth direction. The Canal comes from Dhamori limits and irrigates lands at village Maygaon. The first land to be irrigated in Maygaon limits is of one Sudam Gade and the last land in Dhamori Shivar is of one Keshav Gade. The lands of the accused persons are in between the land of victim Rajendra and land of Sudam Gade. The Canal has a width of 56 ft. and depth of 1½ ft. The Baras – outlets are on both sides of the Canal and a person who has a turn to take water, may open the outlet and get the water. Some outlets are of cement pipe and some have been created by putting stones and mud. The cross-examination of PW1 further brings on record, that when the outlet of upper side is closed, then the water flows down to the fields on the down side and Patkari i.e. Channel Incharge decides who should get the water in preference. The water is supplied in two manners, called perennial block and 8 months block. If the block is not allotted, a Form No.7 has to be filled in for asking water from the Canal. The water is supplied in two manners, called perennial block and 8 months block. If the block is not allotted, a Form No.7 has to be filled in for asking water from the Canal. Thus, upstream there was land of Sudam Gade and between the land of Sudam Gade and the victim, there was land of the accused persons. Naturally, the water had to flow from upstream towards downstream lands. 9. Evidence of PW1 Rajendra (victim), PW2 Kankarbhai (complainant) and PW3 Bhagwan Kadam shows that the incident took place in the evening of the day of incident dated 15th March 1992. PW1 Rajendra deposed that Canal Inspector had permitted him to draw the water for his crop after the turn of Sudam Gade. He deposed that he had obtained permission of Canal Inspector in that regard. At about 8.15 p.m. PW1 Rajendra started to go on his motorcycle to his land which was situated at about 23 k.m.s from his residence. He was accompanied by PW3 Bhagwanta Kadam. The evidence shows that the complainant PW2 was picked up on the way and they came near Nali Phata. Evidence shows that it was verified that Sudam Gade had taken his turn of water and after verifying the same, the victim sent PW3 Bhagwan Kadam by walk from the side of irrigation canal and PW1 and PW2 proceeded on motorcycle towards land of the victim and the motorcycle was left near old Vasti (i.e. farm house) and PW1 asked PW2 Kankarbhai to remove obstructions in the channel so that there is no impediment in getting water. In the process when they reached near the field of accused persons, they found the accused persons were standing on the bank of Canal. The obstruction near the field of accused was to be removed to get the water to the field of victim. PW1 Rajendra (victim) told the accused persons that Canal Inspector has permitted him to take the water and so he be allowed to take the water. Evidence shows that then the victim asked the complainant to remove obstruction i.e. Bare which would be closure of outlet. Evidence is that at this time the accused persons objected, claiming that it was their turn to take the water as per order of the Canal Inspector. Evidence shows that then the victim asked the complainant to remove obstruction i.e. Bare which would be closure of outlet. Evidence is that at this time the accused persons objected, claiming that it was their turn to take the water as per order of the Canal Inspector. Evidence shows that by such time PW2 Kankarbhai entered the water hannel to remove the obstruction and at such time when PW2 was bending for the purpose, accused No.2 Shashikant who had a stick, gave blow near the waist of PW2. As per evidence of PW1 Rajendra, he tried to convince the accused persons but accused No.2 Shashikant gave him a blow of stick on his head and when he tried to recover, accused No.1 Suryakant hit spade by blunt side on the head of the victim and then the victim fell down unconscious on the ground. Evidence of the witnesses shows that when accused No.2 hit stick on the head of the victim, PW2 Kankarbhai tried to snatch the stick from the hand of the accused No.2 Shashikant, but at the same time accused No.1 Suryakant gave blow by spade to the head of the victim. 10. PW's 1 to 3 corroborate each other with regard to the evidence of main incident as above. 11. If the crossexamination of PW1 victim Rajendra is perused, it can be seen that the presence of the accused at the time of incident is not denied. It was suggested and PW1 Rajendra accepted it to be true that when he asked the accused to close their outlet, they refused. He accepted that it was true that when accused refused to close the outlet, PW1 directed Kankarbhai to go ahead and close the outlet. It was suggested to PW1 whether he did not feel that prior to asking Kankarbhai to close the outlet, he should go and report to the Canal Inspector. PW1 deposed that he felt so but he did not anticipate the incident to take such a serious turn. PW1 admitted that there was verbal exchange and the accused were saying that they would not close the outlet and PW1 directed that outlet should be closed. PW1 admitted that there was a Bara i.e. outlet created in the width of the Canal at the sides towards the land of the accused and unless the Bara was dismantled, water would not have flown to his field. PW1 admitted that there was a Bara i.e. outlet created in the width of the Canal at the sides towards the land of the accused and unless the Bara was dismantled, water would not have flown to his field. Bara i.e. outlet was made of mud and stones. PW1 denied that there was scuffle with the accused No.1 or that he fell in the scuffle on the rock and sustained injury. 12. Omission proved in the cross-examination of PW1 is regarding his evidence that the blow of spade given by accused No.1 fell "at the same place" where the stick blow was given by accused No.2. The omission is only regarding his evidence that the blow was at the same place. However, the evidence remains that both the hits were on the head and regarding this fact, there is consistent evidence of PW's 1 to 3. Thus, the omission is not material. 13. In the cross-examination of the PW2 Kankarbhai (complainant), also there are similar suggestions. It was put to PW2 and he accepted that it was true that accused No.1 Suryakant had said at the time of incident that until he completes irrigation of his land, he would not allow the victim Rajendra to take the water. PW1 victim Rajendra as well as PW2 Kankarbhai denied that at the time of incident victim Rajendra had slapped the accused No.1 Suryakant. However, the F.I.R. Exhibit 31 does show that it was reported that at the time of incident after accused No.2 Shashikant gave stick blow to the hip of complainant, victim Rajendra tried to make accused No.2 understand and at that time accused No.1 Suryakant rushed towards victim Rajendra with spade, at which time Rajendra gave slap to accused No.1 Suryakant. Although these witnesses denied this aspect, still even if it is to be said that this is mentioned in the F.I.R. and so should be considered, it would still show that when accused No.1Suryakant charged, victim in defence slapped him. It would be no license for the accused persons to cause such grievous injuries to the victim as has been done in this matter. 14. The corroborative evidence of PW3 Bhagwan is hardly challenged in the cross-examination. He deposed in the cross-examination that the incident might have lasted 510 minutes and as he was frightened, he did not intervene. It would be no license for the accused persons to cause such grievous injuries to the victim as has been done in this matter. 14. The corroborative evidence of PW3 Bhagwan is hardly challenged in the cross-examination. He deposed in the cross-examination that the incident might have lasted 510 minutes and as he was frightened, he did not intervene. He accepted in cross-examination that while accused were beating, they did not shout, but after victim fell on the ground, they shouted for help. Suggestion was given to PW3 Bhagwan but he denied that he had not seen the incident. He further denied that he was deposing on the say of victim Rajendra. 15. Looking to the above, the evidence of PW's 1 to 3 regarding how the incident took place, cannot be said to be shattered. There is no reason why this evidence should not be accepted. 16. The argument that further examination-in-chief of PW1 was allowed on 16th December 1999 and so prejudice was caused to the accused, has no substance. The evidence of PW1 shows that his examination-in-chief was recorded suo moto. The orders below Exhibit 29 passed by the trial Court show that both the sides had been protracting this old matter in the trial Court for many years and ultimately the Court had put the witness in Box and let him depose suo moto. Although the accused No.1 in person was called upon to cross-examine the witness, on request of Advocate, time was given and on the adjourned date further examination-in-chief was allowed. By this itself, it cannot be said that there was any prejudice to the accused. Before further examination-in-chief was allowed, there had been no cross-examination and I do not think that accused can claim prejudice. 17. It has been argued that PW1 Rajendra Gade admitted that the land for which he was taking water on that night, was not a land under irrigation block. I do not find that this helps the accused in any manner, as the evidence of PW1 itself shows that if the Block is not allotted, Form No.7 has to be filled in for asking water from the Canal. The evidence of PW1 Rajendra is that Canal Inspector had permitted him to draw water for his crop after Sudam Gade has taken the water. The evidence of PW1 Rajendra is that Canal Inspector had permitted him to draw water for his crop after Sudam Gade has taken the water. In the cross-examination of PW1, it does not appear that it was denied that he had taken permission from the Canal Inspector. What was suggested and the witness denied is that the victim had manipulated the Canal Inspector to get the water. In any case, if there was dispute regarding turn of taking water, it was no reason to go to the extent of causing such grievous injuries to PW1 and PW2, as the medical evidence, (hardly denied in the matter) shows. 18. The evidence of PW2 Kankarbhai shows that after the victim fell down on the ground, both the accused fled from the spot. His evidence shows that one Sunil brought a bullock cart. The F.I.R. mentions that Sunil Gade has his residence in farm which is nearby the spot and when called out he had come along with others and taken the victim in bullock cart. The Spot Panchnama also shows residence of this Sunil at about 1500 ft. from the spot. PW2 complainant deposed that although the victim was taken, he remained at the lower Vasti. It appears that there was provision of residence for him there. According to him, on next day he remained in the house as he was not feeling well. On Tuesday (incident took place on Sunday) he went to upper Vasti and came to know that the victim had been shifted to Nashik Hospital and persons from the family of the victim had accompanied him. According to him, he then went to Kolpewadi Outpost and informed the Police about the incident and his F.I.R. Exhibit 31 was recorded. His evidence gives explanation that he did not go to the Police Station earlier in belief that father of victim must have already lodged report to the Police. His evidence is that Police then referred to him to Kopargaon Municipal Hospital. Such explanation of the delay given by PW2 does not appear to have been challenged in the cross-examination. The F.I.R. also gives reason for the delay. Medical Evidence (Exhibit 19) supports this witness that he was not feeling well as he suffered fracture in the incident. His evidence is that Police then referred to him to Kopargaon Municipal Hospital. Such explanation of the delay given by PW2 does not appear to have been challenged in the cross-examination. The F.I.R. also gives reason for the delay. Medical Evidence (Exhibit 19) supports this witness that he was not feeling well as he suffered fracture in the incident. There is evidence of PW5 Laxman Gade, the father of victim, which evidence shows that he came to know about the incident of beating of victim Rajendra by the accused persons. According to him, he was told that he will have to shift the victim by hiring a Jeep. According to him, he found that when the victim was brought in bullock cart he was unconscious and a scarf has been tied on his head. According to him, witness Bhagwanta told him about the incident. He shifted the victim to Chas Hospital and from there victim was taken to Kopargaon. At Kopargaon the medical practitioner opined that the patient should be immediately shifted to Nanji Hospital, Nashik. Evidence of PW5 Laxman shows that he, his brothers and his wife went to Nashik along with victim. At Nashik, the brain specialist was not available and so the victim was shifted to Bombay in the night of 17th March 1992 and operation was conducted. The evidence shows that victim was admitted at Bombay Hospital for fifteen days and then brought to Nashik and kept at Hospital of Dr. Pathak for about three weeks. According to PW5 Laxman, victim gained consciousness after 810 days of the operation. In the cross-examination of PW5 Laxman, portion of his statement dated 14th April 1992 is proved at Exhibit 51. The portion is regarding the witness telling Police that victim was taken to Kopargaon Government Hospital and at that time Police Head Constable had come to inquire and so he had felt that Police might have filed a case. About this portion of his statement, the witness stated that he could not say if he had said so to the Police. I find that this is hardly material. The further cross-examination of PW5 Laxman shows that when he had taken the victim from one hospital to another, he was not mentally stable and he was bothered if or not his son would survive. I find that this is hardly material. The further cross-examination of PW5 Laxman shows that when he had taken the victim from one hospital to another, he was not mentally stable and he was bothered if or not his son would survive. The evidence of PW5 accepting in cross-examination that his brotherinlaw was police inspector is no reason to doubt the otherwise reliable evidence available on record. The evidence on record, specially of PW7 A.S.I. Murlidhar shows that Police were tracking the victim for recording his statement when he was being shifted from one hospital to another but as the victim was not in a condition to make statement, they could not record so. Looking to all such evidence, the delay in filing of the F.I.R. is duly explained. Looking to the facts of the present matter, it cannot be said that delay is fatal to prosecution. The trial Court has discussed these aspects and also considered the defence of the accused persons where the incident, except the actual assault, is hardly denied. The trial Court rightly found that the first information report cannot be said to be suffering from concoction. 19. The evidence of PW6 Dr. Gita Dattatraya Parulekar who was working as Neuro Surgeon at Bombay Hospital, shows that the victim was admitted in the hospital on 17th March 1992 and had been transferred from Nashik. She deposed that she had seen the report received as well as the C.T. Scan. The report showed extensive haemorrhagic contusion of left fronto temporal region with depressed fracture of left temporo parietal bone. The patient was still in semiconscious condition and was responding to painful stimulie. Her evidence shows that the patient was taken up for surgery on 18th March 1992. It was found that there was crack fracture going up to the base. There was a sizable extra dural haemotoma i.e. it was a haemotoma of large size which was evacuated. The dura was torn which was closed with dura plasty. Bone flap was removed in order to give maximum decompression for odema i.e. brain swelling. Treacheostimy was done for secreation. The evidence of doctor shows that the injury was severe as even the dura was found to have been torn and had penetrated into the brain. The injury would have been fatal if it had not been tackled by specialist. Bone flap was removed in order to give maximum decompression for odema i.e. brain swelling. Treacheostimy was done for secreation. The evidence of doctor shows that the injury was severe as even the dura was found to have been torn and had penetrated into the brain. The injury would have been fatal if it had not been tackled by specialist. She has proved certificate in this regard at Exhibit 42. Her evidence is that the injury is sufficient, in ordinary course of nature, to cause death. The instrument of spade was shown to her and she stated that the injury was possible by such instrument. In the cross examination she stated that Hemi paresis is also possible on account of cerebral vaxullar stroke. She deposed that because there was head injury, they had diagnosed that Hemi peresis is on account of the same. She admitted that such injury is also possible in mechanical, accident or other violences or self infliction. Regarding such evidence of the witness, trial Court observed (in Para 13) that such injuries may be possible in mechanical accident or other violences but that itself is not reason to believe that such injury is not possible by assault. The trial Court discussed the evidence to discard the defence of accidental fall. The trial Court reasoned out that if the person was to fall, he would try to save his head though he may succeed or otherwise. It is not a defence of self infliction or mechanical accident. The trial Court is right in its observation that if a person is about to fall, he would try to save himself. In such situation, there would be injuries to other parts of body also like hands. There was no such injury on the person of the victim. The injury was to the head and there is reliable evidence of PW's 1 to 3 that the same was caused due to the blows given by the accused persons. 20. The evidence of complainant PW2 Kankarbhai shows that he was given blow by stick on his hip. His medical certificate has been admitted at Exhibit 19. he had contusion to lumbar region 5 c.m. X 3 c.m. and tenderness was there with restricted movements. The Xray showed fracture to L5 with dislocation of lumbosacral joint leading to spondylitis. The injury was classified as grievous injury. His medical certificate has been admitted at Exhibit 19. he had contusion to lumbar region 5 c.m. X 3 c.m. and tenderness was there with restricted movements. The Xray showed fracture to L5 with dislocation of lumbosacral joint leading to spondylitis. The injury was classified as grievous injury. History given was of beating by wooden stick. Thus, the complainant suffered grievous injury at the hands of accused No.2 Shashikant. 21. There is evidence of PW4 Panch Ashok Bairagi and evidence of PW7 A.S.I. Murlidhar, which shows that the accused No.2 Shashikant gave statement to Police that he will produce the stick and spade with reference to the offence. The statement was recorded at Exhibit 34. Accused No.2 who was in custody, took the Police and Panchas in Police Jeep by Kolpewadi Gautamnagar road to further proceed by Maygaon Devi Yewla road to an isolated place and from bushes showed the place where a stick and spade were hidden. It was bamboo stick of about 4 ft. and spade with wooden handle. The spade had been welded for strength. These instruments seized were identified by the witnesses in the Court. The evidence was questioned by the learned counsel for Appellants accused by referring to the cross-examination of PW4 Ashok that he deposed in the cross-examination that he resides about 6 k.m.s. from the Kolpewadi Outpost and when Police called him, they had told him that they want to effect Panchnama of seizure of weapons. From this, it is tried to argue that Police already knew about the instruments. I do not think that the evidence can be read in the manner in which the learned counsel for Appellants is trying to do. When from the interrogation of accused in custody, Police can make out that the accused is willing to disclose, Police calls Panchas and further interrogation is done in presence of Panchas. This by itself, does not mean that Police already knows where the instruments are. I do not find that discovery of instruments given by the accused No.2 can be discarded only because when the Police called Pancha, they had told him that they want to effect Panchnama about seizure of weapons. What would ultimately be discovered, or not discovered cannot be predicted. 22. The learned counsel for the Appellants accused argued that the report given by the accused persons was not inquired into. What would ultimately be discovered, or not discovered cannot be predicted. 22. The learned counsel for the Appellants accused argued that the report given by the accused persons was not inquired into. Evidence of PW7 A.S.I. Murlidhar shows that accused No.1 Suryakant had, on 17th March 1992, given report regarding the same incident but claimed that the victim had slapped him and given him kick blow in the stomach and had also beaten accused No.2 Shashikant by hand. The Police registered the report of accused No.1 as non cognizable case. The accused do not appear to have pursued their grievance by filing any private complaint if the Police did not take action. 23. The argument of the accused persons acting in self defence has no substance. The argument that PW1 and 2 committed criminal trespass has no force. The incident occurred at the place of common water channel. Even if the complainant and victim went ahead to divert the water, it would be no reason for the accused persons to go to the extent of causing such grievous injuries to the complainant and victim, as can be seen in the present matter. 24. It is argued that only single blows are attributed to the accused persons and it could not be said that offence under Section 307 of I.P.C. is made out. Trial Court discussed the evidence in this regard in Para 16 of the Judgment and has given elaborate reasons for holding that if the victim would have expired, it would have been offence under Section 302 of I.P.C. and had it not been that by specialist treatment life of victim was saved, he would have expired. The trial Court came to the conclusion that offence under Section 307 of I.P.C. has been made out. The trial Court also discussed that the accused persons were acting in furtherance of common intention. Going through the evidence which is on record, it is clear that accused No.2 Shashikant first gave stick blow to the complainant when he entered the water channel so as to divert the water and caused grievous injury to the complainant. Motive for incident is revealed in course of incident and evidence shows that accused acted in furtherance of common intention. When the victim tried to intervene, severe blow was given on the head of the victim by accused No.2. Motive for incident is revealed in course of incident and evidence shows that accused acted in furtherance of common intention. When the victim tried to intervene, severe blow was given on the head of the victim by accused No.2. When complainant tried to snatch the stick from accused No.2 Shashikant, accused No.1 Suryakant gave severe blow on head of the victim using the spade. Both the injuries were inflicted on the head of the victim with force, as is apparent from the medical evidence available. Water is a sensitive issue for the farmers and there is evidence of PW1 victim Rajendra that the accused persons were envious of their family. His evidence is that as regards financial condition, the family of victim has flourished and so accused were envious of them. He claimed that he was Graduate in Science (Botany). The argument that each of the accused gave only single blow on the head and so it should be held that there was no intention to commit murder, is fallacious. The record shows that the blows given were severe and on sensitive part of the body. The medical evidence is that injury was sufficient, in ordinary course of nature, to cause death. When an accused gives severe blow with dangerous weapon to sensitive part of the body, even if the accused does not follow up the same with further blows, that conduct by itself is not enough to hold that he did not have intention to kill. The accused may not follow up the initial blow by further blows for various reasons. After giving the first blow on the vital part of the body, the accused may feel that the same is enough to achieve the intention he had to kill the person or the accused may develop cold feet after having given the first severe blow with intention to kill. Thus, merely because after giving first blow the accused does not follow it up with another blow, itself is not sufficient to show that the accused had no intention to kill when he gave the first blow. The accused persons chose sensitive part of the head and each of them gave severe blow on the head with dangerous weapons like stick and spade and ran away when the victim fell on the ground. The accused persons chose sensitive part of the head and each of them gave severe blow on the head with dangerous weapons like stick and spade and ran away when the victim fell on the ground. Looking to the medical evidence and facts of the matter, I find that the trial Court rightly came to the conclusion that offence under Section 307 of I.P.C. is established. No interference is called for with regard to finding of offence under Section 325 of I.P.C. also. In the facts of the case, benefit under the provisions of the Probation of Offenders Act cannot be given to the accused persons. 25. Before parting, it is necessary to refer to a procedural aspect regarding which there was error. I have already discussed that the victim PW1 Rajendra recorded his examination-in-chief suo moto. In Para 2 of his evidence when the incident was being referred, reference to accused persons was recorded by the trial Court only by Numbers without, atleast at first place clarifying name of the accused who was being referred. Because of this error in procedure, at subsequent stage, the trial Court itself put questions to the victim for the purpose of clarification. It was clarified that accused Shashikant had beaten victim by stick and accused Suryakant had beaten him by spade. The witness was referred to earlier part of his evidence and he deposed that in place of accused No.1 shown as holding stick and accused No.2 shown as holding spade, it must be read that accused No.2 was holding stick and accused No.1 holding spade. Chapter VI, Para 23 of the Criminal Manual reads as under:- "23. It is desirable in judicial proceedings to prevent, as much as possible, doubt as to the identity of the person referred to therein. It frequently happens that the same individual is known by more names than one. Thus sometimes only the surname, sometimes only the name of the caste, or occupation or the village of the individual is mentioned or he is spoken of by a nickname, such as Bapu Saheb, Nana Saheb or Bahau Saheb. Such variations in description require explanation to render them intelligible to an appellate Court. Thus sometimes only the surname, sometimes only the name of the caste, or occupation or the village of the individual is mentioned or he is spoken of by a nickname, such as Bapu Saheb, Nana Saheb or Bahau Saheb. Such variations in description require explanation to render them intelligible to an appellate Court. A court of first instance should, therefore, take care not only to ascertain, but to make clear by evidence duly recorded, the identity of any individual who is so referred to under varying appellations and if such an individual is an accused person, his name and serial number according to the chargesheet should be cited in any passage in which he is otherwise designated." It is clear that High Court has laid down guidelines requiring reference to be made to accused person by name as well as serial Number according to the chargesheet, in the proceedings. Had the above guidelines been strictly followed, the obvious discomfort to the Court could have been avoided. In the Marathi version of the evidence, it is clearly recorded that the error was on the part of the Court. No specific guidelines are required for trial Courts to understand that judicial records need to be clear and specific. Still, the High Court has in clear terms prescribed guidance in this regard, as mentioned above. It is expected that the trial Courts should strictly follow the Manual. 26. For reasons discussed above, there is no substance in this Appeal. The Appeal is dismissed. Both the accused persons shall surrender to their Bail Bonds and suffer the punishment imposed by the trial Court.