JUDGMENT P.B. Varale, J. 1. Heard Mr. R.N. Khare, learned counsel for the appellants and Mr. R.S. Nayak, learned Additional Public Prosecutor for the respondent/State. By the present appeal, the appellants are challenging the judgment and order passed by the learned Additional Sessions Judge, Wardhain Special Case No. 05/1995 on 08.10.2001, there by convicting both the appellants for the offence punishable under Section 308 of the Indian Penal Code. 2. Brief facts of the case are as follows: On receiving an information by PSI Rautwar, then attached to Pulgaon police station on 03.11.1994 that one person of village Nagzari is admitted in Rural Hospital, Pulgaon in injured condition, he rushed to Rural Hospital, Pulgaon and recorded the statement/dying declaration of that person. The name of that person was Deepchand. It was stated by the victim-Deepchand that at about 10.00 am, accused persons/appellants reached his house and took him in front of their house and then by taking him inside the house, made an attack and assaulted him by giving fist and kick blows and also caused injuries by weapon 'Rampuri' knife. It was further stated by the victim that the attack was on flimsy ground and under the influence of liquor. On the basis of said statement, Crime No. 279/1994 was registered by PSI Rautwar and he then started investigation. During the course of investigation, PSI Rautwar effected arrest of the accused persons, issued requisition letter to the Medical Officer for examination of the victim. The investigation was then entrusted to ASI P.U. Deshpande. ASI Deshpande conducted further investigation by preparing the spot panchanama, seizure of weapons i.e. knife and spade at the instance of the appellants/accused, forwarded the weapons to Dr. Tannirwar and received his opinion. ASI Deshpande found in the statement of complainant Deepchand that the accused persons abused him on his caste and the complainant was belonging to 'Buddha' caste and as such, an offence under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was added. On completion of the investigation, the charge-sheet was filed. Though, initially the offences under Sections 324 and 326 of the Indian Penal Code were attracted, on the basis of material, charge against the appellants/accused was framed for the offence punishable under Section 307 of I.P.C. 3. The prosecution examined in all five witnesses. The defence of the appellants/accused was of total denial. Though, initially the offences under Sections 324 and 326 of the Indian Penal Code were attracted, on the basis of material, charge against the appellants/accused was framed for the offence punishable under Section 307 of I.P.C. 3. The prosecution examined in all five witnesses. The defence of the appellants/accused was of total denial. The learned Additional Sessions Judge, Wardha, on an appreciation of the evidence, arrived at a conclusion that the prosecution though failed to prove the guilt of accused persons for the offences punishable under Section 307 of the I.P.C. and Section 3(1)(x) of the Atrocities Act and acquitted them, but found that the accused/appellants are guilty of the offence punishable under Section 308 r/w section 34 of I.P.C. and accordingly, convicted them for the said offence. 4. Mr. Khare, learned counsel for the appellants, by inviting my attention to the evidence placed on record submitted that the evidence falls too short to make out a case against the appellants/accused for commission of offence punishable under Section 308 of the IPC. He submitted that on a perusal of the medical evidence, the injuries caused to the victim are admittedly simple in nature. He further submitted that the oral testimony of P.W. 4 Mainabai, the mother of the victim, is full of omissions, so also the panch witnesses are not supporting the case and as such the evidence of seizure of weapons at the instance of appellants/accused is of no consequence. According to him, therefore, no reliance can be placed on the oral evidence brought by the prosecution. Learned counsel further submitted that the investigating agency has not forwarded the weapons allegedly used in commission of offence for the chemical analysis. He further submitted that the First Information Report is the basic piece of evidence in the case of prosecution and the same is missing in this case, which shows that the story put up by the prosecution is false and imaginary. In support of his submissions, learned counsel for the appellants placed reliance on the judgment of the Apex Court in 2007 (4) Crimes 177 (SC): [2008 ALL MR. (Cri) 577 (S.C.)], in the case of Bishan Singh and another v. the State; and the judgment of Orissa High Court reported in 1991 Cri.L.J. 220, in the case of Benudhar Routra v. Raula alias Maheshwar Sahu and another. 5. (Cri) 577 (S.C.)], in the case of Bishan Singh and another v. the State; and the judgment of Orissa High Court reported in 1991 Cri.L.J. 220, in the case of Benudhar Routra v. Raula alias Maheshwar Sahu and another. 5. Per contra, learned Additional Public Prosecutor for the State supports the impugned judgment and order passed by the learned Additional Sessions Judge. In support of his submissions, learned APP placed reliance on the judgment of the Apex Court reported in AIR 1983 Supreme Court 305, in the case of State of Maharashtra v. Balram Bama Patil and others. 6. With the assistance of the learned counsel for the appellants and learned APP for the State, I have gone through the record and the evidence, oral as well as documentary. 7. P.W. 1 Prabhakar Chaudhari is the panch witness to the spot panchanama as well as seizure panchanama of weapons. This witness did not support the prosecution and was declared hostile. Though, learned counsel for the appellants submitted that as P.W. 1 Prabhakar is not supporting the prosecution case and other panch is not examined by the prosecution, the version of the prosecution is not reliable, the submission cannot be accepted because panch witness turning hostile is no reason to throw away the prosecution case. In the present case the prosecution examined P.W. 5 ASI Deshpande, who conducted the investigation. The spot panchanama and seizure panchanama of weapons are proved through P.W. 5 ASI Deshpande. In view of these facts, the contention of Mr. Khare, learned counsel that the spot panchanama and seizure panchanama are not proved by the prosecution, holds no water. 8. It will be useful to refer to the oral testimony of P.W. 3 Deepchand Gadling, who is the victim of the incident as also the complainant. The version of this witness in respect of appellants/accused reaching at his house on 03.11.1994, assaulting him by means of knife, spade and the victim receiving injuries in the said attack, is unshaken. Though, there are certain omissions in the testimony of said witness, the same are in respect of abuses given to him on his caste and on account of these omissions, the appellants/accused were acquitted of the offence under the Atrocities Act. Though, there are certain omissions in the testimony of said witness, the same are in respect of abuses given to him on his caste and on account of these omissions, the appellants/accused were acquitted of the offence under the Atrocities Act. On a perusal of the testimony of this witness, it is clear that his version in respect of holding weapons by the appellants/accused, assaulting the victim and victim receiving injury, is unshaken. As such, the version of P.W. 3 Deepchand is trustworthy. 9. On the backdrop of the version of P.W. 3 Deepchand, if the oral testimony of the Medical Officer P.W. 2 Dr. R.Y. Tannirwar, is perused, his version is supported by the evidence of P.W. 3 Deepchand. P.W. 3 Dr. Tannirwar states in his deposition about the injuries caused to the victim Deepchand. The injuries observed by P.W. 3 Dr. Tannirwar on the examination are - 1] Lacerated wound on frontal reason of scalp vertical in direction, having size 2" x 1/2" x 1/2". 2] Lacerated wound on frontal region of scalp transverse in direction having size 2 1/2" x 1/2" x 1/2". 3] Incised wound on occipital region of scalp behind right ear oblique in direction having size 1.75" x 1.25" x 1.25". 4] Incised wound just above injury No. 3 oblique in direction 1" x 1/2" x 1/2". 5] Incised wound just above injury No. 4, oblique in direction 1/2" x 1/4" x 1/4". 6] Incised wound on dorsal aspect of upper 1/3rd left forearm transverse in direction size 1/2" x 1/4" x 1/4". 7] Abrasion on top of left shoulder 1 1/2" x 1/4" x superficial. 8] Abrasion on dorsal aspect of lower 1/3rd right forearm, 3/4" x 3/4" x superficial. 9] Incised wound on occipital region of scalp, oblique in direction, having size 1/2" x 1/2" x 1/4". 10] Scratch type abrasion on dorsal aspect on right elbow size 1" x 1/2" x superficial". 11] Incised wound on occipital region of scalp oblique in direction 1" x 1/2" x 1/4". P.W. 2 Dr. Tannirwar then states that injuries 3, 4, 5, 6, 9 and 11 are by sharp cutting object. The injuries are fresh. He further deposed that the weapons Spade and Knife were forwarded to him for examination and for giving opinion. On an examination of the weapons, he gave his opinion that injury Nos. P.W. 2 Dr. Tannirwar then states that injuries 3, 4, 5, 6, 9 and 11 are by sharp cutting object. The injuries are fresh. He further deposed that the weapons Spade and Knife were forwarded to him for examination and for giving opinion. On an examination of the weapons, he gave his opinion that injury Nos. 3 to 6, 9 and 11 are possible with knife and injury Nos. 1, 2, 7, 8 and 10 are possible by spade. A query report is placed on record at Exh. 19. Perusal of the said report show a graphic reflection of the weapons namely knife and spade. 10. P.W. 4 Mainabai Gadling is the mother of victim-Deepchand. In her cross-examination, by bringing certain omissions on record, it was an attempt of the defence to show that she had not witnessed the actual incident and she rushed on the spot after the alleged incident of beating was over. Thus, even considering the fact that P.W. 4 Mainabai had not witnessed the actual incident, the prosecution story cannot be said to be imaginary one. 11. P.W. 3 Deepchand gives clear account of the incident, the role played by the appellants/accused, the weapons used by them and injuries sustained by him. The version of P.W. 3 Deepchand is supported by the medical evidence. It is settled position of law that it is not the quantity of the witness, but the quality of the witness, which is material for appreciation of the evidence. 12. Perusal of the record shows that the statement of P.W. 3 Deepchand was recorded under the title 'Dying Declaration'. It also shows that the FIR was forwarded to the Court of J.M.F.C., Pulgaon. Learned counsel for the appellants, by placing reliance on the judgment of Orissa High Court in Benudhar Routr's case, submitted that the prosecution failed to place on record material documents/evidence, causing prejudice to the appellants/accused. I am unable to accept the submission of the learned counsel. In the reported case, the Orissa High Court has observed that it is the duty of the prosecution to prove the FIR as well as the formal FIR. I am unable to accept the submission of the learned counsel. In the reported case, the Orissa High Court has observed that it is the duty of the prosecution to prove the FIR as well as the formal FIR. When the witnesses examined in the case could have very easily proved, such material documents as the FIR and the formal FIR but for whatever reason, the Public Prosecutor fails to get them examined, it is the duty of the Court to see that the same are duly proved and exhibited in the case, as the court's function is not merely to observe the proceeding before it as a passive disinterested spectator. The Orissa High Court further observed that if the FIR is not duly proved, or if a statement recorded as an FIR cannot be used as an FIR on legal grounds merely for that reason the evidence of the eyewitnesses cannot be rejected if the same is found to be otherwise reliable. The rejection of FIR would not detract the testimony of the eyewitnesses which will have to be assessed on its own merits. (see Somappa v. State of Mysore) (emphasis supplied). Thus, on the backdrop of these observations and on the backdrop of the fact that in the present matter, oral evidence of P.W. 3 Deepchand, who is the eye-witness and victim of the incident, is truthful and reliable, the judgment or Orissa High Court is of no help to the appellants/accused. 13. Learned counsel for the appellants also placed heavy reliance on the judgment of the Apex Court in Bishan Singh's case, 2008 ALL MR. (Cri) 577 (S.C.)] (supra). The Apex Court on the backdrop of an overt act attributed to the accused, who were having lathis and seven injuries and out of them one was grievous being fracture on the arm opined that the accused could not be said to have committed any offence under Section 308 of the IPC. The same would fall under Section 323 and 325 thereof. The Apex Court then observed that while imposing punishment in case of such nature, the Court is required to take into consideration the factors which may weigh with the court for taking a lenient view in the matter. The Apex Court further observed that the incident is of 1984, 23 years have elapsed. The appellants had all along remained on bail. The Apex Court further observed that the incident is of 1984, 23 years have elapsed. The appellants had all along remained on bail. It is not stated that they had ever misused the privilege of bail. In such situation, the Apex Court further observed that it will not be proper to send the accused persons back to prison. However, the injured had suffered pains at the hands of the appellants and accordingly, the Apex Court reduced the period of substantive sentence and directed the appellants to pay fine of Rs. 15,000/- each. 14. Considering the evidence, in my opinion, the offence committed by the appellants/accused cannot attract offence punishable under Sections 324 or 325 of IPC and no fault can be found with the conclusion arrived at by the learned Additional Sessions Judge that the appellants/accused are guilty of the offence punishable under Section 308 of IPC. At the same time, admittedly, the incident is of year 1994, the appeal was preferred in 2001 and by the decision of this appeal, period of 20 years has been lapsed. It is not in dispute that the appellants/accused have not misused the liberty of bail granted to them. Considering all these facts, in my opinion, the ends of justice can be met with modifying the impugned judgment and order by directing the appellants/accused to suffer rigorous imprisonment for six months and to pay fine of Rs. 5,000/- each, failing which they should undergo rigorous imprisonment for a period of one month each. Hence, I pass the following order: The appeal is partly allowed. The judgment and order passed by the learned Additional Sessions Judge, Wardha, in Special Case No. 05/1995, dated 08.10.2001, so far as it convicts and sentence the appellants/accused, is modified as under - The appellants/accused are convicted of the offence punishable under Section 308 read with Section 34 of the Indian Penal Code and they are sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 5000/- each (Rupees Five thousand only) and in default of payment of fine, further to suffer rigorous imprisonment for one month. With these observations, the appeal is disposed of.