JUDGMENT : 1. Appeal No.222/2003 has been preferred by the appellant/original accused no.5–Parasram Chaudhari, whereas Appeal No. 233/2003 has been preferred by the appellant-original accused no.4-Arun Chambhare, against the judgment and order passed by learned 1st Adhoc Additional Sessions Judge, Wardha in Sessions Trial No. 78/2002 on 5th March 2003 in Sessions Trial No. 78/2002, thereby convicting the appellants under Section 324 read with Section 34 of the Indian Penal Code. They were sentenced to suffer R.I. for two years and to pay a fine of Rs.2,000/-, in default, to suffer further R.I. for six months. 2. I have heard Shri R.M. Daga, the learned counsel for the appellants as well as Shri S.B. Bissa, the learned Additional Public Prosecutor for the respondent-State. With their assistance, I have perused the entire record of the case. 3. The learned counsel for the appellants vehemently argued that the impugned judgment and order passed by the learned trial Judge is illegal and perverse, inasmuch as the learned trial Judge has failed to consider the discrepancies in the testimony of PW 3-Sunanda Chapale, who is an alleged eye witness to the incident and who lodged the FIR (Exh.36) and due to the discrepancies in her testimony, it cannot safely be said that the appellants have has committed the offence as such. He further submitted that so far as the appellants are concerned, no weapon has been recovered at their instance and the accused are not at all involved in the alleged offence. 4. Per contra, the learned A.P.P. submitted that the learned trial Judge has rightly convicted the appellants as the involvement of the appellants is seen from the testimony of the eye witness, who is the wife of the deceased and a natural witness as well as author of the the complaint/FIR (Exh.36). The learned APP submitted that there was no reason for the wife of the deceased to falsely implicate the appellants in the present case and her presence on the scene of the offence is a natural one. The learned APP submitted that there is no question of any improvements made in the testimony of PW3-Sunanda, as her complaint was recorded on the same day so also her statement was recorded on the very next day of the incident. The learned APP submitted that there is no question of any improvements made in the testimony of PW3-Sunanda, as her complaint was recorded on the same day so also her statement was recorded on the very next day of the incident. In order to consider the rival contentions of the respective parties, it is necessary to go through the testimony of alleged eye witness PW3-Sunanda Chafle, carefully. 5. First, coming to the prosecution case which can be gathered from the testimony of PW 3-Sunanda, briefly stated thus: Deceased-Ganesh Barkuji Chafle along with his wife PW3-Smt. Sunanda Chafle (complainant) and his children was residing at village Dorli. The accused persons were also from the same village. They all were agriculturists. Deceased-Ganesh was mentally weak. On the date of the incident i.e. on 29.12.2001 at about 12.30 p.m. the complainant along with her husband went to their field to harvest the toor crop. As Ganesh was feeling somewhat uneasy, he took rest in the field. They returned to their house from the field at about 3.30 p.m. After about an hour Ganesh proceeded towards his field to bring two sickles from the field as he had forgotten to bring them from the field. Sunanda was at home. After some time, Sunanda heard the shouts and therefore, she rushed to that direction. The spot was near the cattle-shed of appellant-Parasram and one Arun Chambhare. When Sunanda reached the cattle-shed, to her utter dismay, she saw that Arun had caught hold of both the legs of Ganesh, who was lying on the ground in a position back towards the sky. Parasram was assaulting Ganesh on his head by means of a stick. After some time, Dilip Patil, Raja Patil and Deva Patil (original accused nos. 1 to 3) came to that place and asked Ganesh as to why he obstructed their sister. After abusing him, they all started assaulting on his head and back by means of sticks. Ganesh became unconscious. After some time Ganesh was brought to the house of Sunanda. Sunanda proceeded to the Police station and lodged her complaint, which was reduced into writing by Head Constable Taksande (PW 4). PW 4-Taksande, then, registered the offence on the basis of the said complaint vide Crime No.307/2001. Ganesh was taken to the hospital; however he was declared as dead. After conducting the investigation the chargesheet was filed. Sunanda proceeded to the Police station and lodged her complaint, which was reduced into writing by Head Constable Taksande (PW 4). PW 4-Taksande, then, registered the offence on the basis of the said complaint vide Crime No.307/2001. Ganesh was taken to the hospital; however he was declared as dead. After conducting the investigation the chargesheet was filed. The charge was framed by the learned trial Judge. In all, seven witnesses were examined by the learned trial Judge and he convicted the accused, as aforesaid. The charge was framed against all the five accused. Out of them original accused nos. 1 to 3 namely, Dilip Patil Raju Patil and Devidas Patil, were acquitted by the trial court and the original accused nos. 4 and 5 were convicted, as aforesaid. 6. The prosecution has heavily relied upon the testimony of PW3-Sunanda, who is the sole eye witness to the incident. According to PW3, the incident took place on 29.12.2001 at about 12.30 p.m. PW3 along with her husband went to the field for harvesting of Toor crops. After some time her husband fell unconscious, therefore, he was taking rest in the field. At about 3.30 p.m. both of them returned back to their house and after about half-an-hour her husband proceeded to the field as sickles remained in the field. After some time, PW 3 heard the shouts and therefore she hurriedly came out and of her house and reached near the cattle-shed of Parasram(appellant). She saw that Arun (appellant) had caught hold the legs of her husband and made him to fall down in prone position. Parasram then gave a stick blow on the head of her husband, which caused injury. After some time Dilip Patil, Raja Patil and Devidas Patil arrived at that place with sticks. Thereafter Arun and Parasram lifted her husband and brought him to her house and kept him in the courtyard. Her husband was shifted to Rural Hospital at Pulgaon. The Doctor examined him and declared as dead. PW3 proceeded to the Police Station, Pulgaon and lodged her complaint (Exh.36). During the cross-examination, a case was put up to PW3 that as her husband was suffering from epilepsy, he fell down and received injury to his head. It was also put up that when Ganesh went to his field he saw one lady proceeding towards the field of appellant-Parasram. Ganesh followed her. During the cross-examination, a case was put up to PW3 that as her husband was suffering from epilepsy, he fell down and received injury to his head. It was also put up that when Ganesh went to his field he saw one lady proceeding towards the field of appellant-Parasram. Ganesh followed her. However as soon as that lady realised that Ganesh was following her, in order to hide herself, she went in the cattle-shed of Parasram and Ganesh fell down as he received an epilepsy stroke. The suggestions put up to PW3 in this regard were denied by her. No discrepancies are noticed in the cross-examination of PW3. 7. On careful scrutiny of testimony of PW3, it is noticed that there are no material discrepancies in her deposition before the Court. No doubt, PW3 has stated before the Court that Dilip Patil, Raja Patil and Devidas Patil were holding sticks when they reached the place of the incident, whereas the complaint (Exh.36) reveals that those three persons started beating Ganesh on his head and back. It is noticed that although in the complaint PW3 has not stated about these three persons Dilip, Raja and Devidas, holding sticks in their hands; however the said fact has not been challenged in the cross-examination by the defence by pointing out to the witness that it was an improvement made by her. Significantly, the learned counsel for appellant has not disputed that the said fact has been noticed in the statement before the police which was recorded on the very next day. Thus, it appears that the PW 3 has given the details about the incident on the next day to the police and accordingly the police recorded her statement. As mentioned hereinabove, the complaint was recorded on the same day. Thus, holding of the sticks by Dilip, Raju and Devidas cannot be termed as improvement in the version of PW3. The only discrepancy which can be seen is that in the complaint a role is assigned to Dilip, Raja and Devidas that they were beating Ganesh on his head and back, whereas the role attributed by PW3 in the Court to these persons is that they were holding sticks and standing besides Ganesh. The only discrepancy which can be seen is that in the complaint a role is assigned to Dilip, Raja and Devidas that they were beating Ganesh on his head and back, whereas the role attributed by PW3 in the Court to these persons is that they were holding sticks and standing besides Ganesh. So far as the role of the appellants-Parasram and Arun is concerned, PW3 has specifically stated that Arun had caught hold of the legs of her husband and made him to fall down facing towards the ground and Parasram gave stick blow on the head of her husband. The said testimony has not been shattered in the cross-examination. On careful scrutiny of testimony of PW3, it is found that she is found to be a reliable and trustworthy witness and her testimony is corroborated on material aspects with the FIR (Exh.36) which was promptly lodged on the very same day. 8. Mr. Daga, the learned counsel for the appellants urged that the inquest panchnama (Exh.40) does not reveal any injury to the head of the deceased, whereas the medical certificate shows only one injury on the occipital region of the deceased. Shri Daga, submitted that there is discrepancy in the description of the injury caused to the deceased in the inquest Panchnama and the P.M. report (Exh.26). On perusal of the Inquest Panchnama (Exh.40), it is noticed that the hair of the deceased was smeared with blood. However the head is intact. The Inquest Panchnama shows that the blood was seen oozing from the injury mark caused on the back side of the head of the deceased. In view thereof, it cannot be said that there was no injury to the head of the deceased. 9. As far as the medical evidence is concerned, the prosecution has examined PW 1-Pravina Tekam, who is the Medical Officer and who conducted autopsy on the dead body of Ganesh, found the following external injuries on the body of Ganesh: “(1) Lacerated wound over occipital region on scalp 4” behind left ear, size 2” x1/2x1/2” (2) Contusion – (a) Lateral aspect of thigh, approximately 6” x 1” size. (b) over right arm of the size 5” x 1”. (c) right elbow region of t6he size 4” x 1” (d) over middle third of left leg of the size 5” x 1” . (b) over right arm of the size 5” x 1”. (c) right elbow region of t6he size 4” x 1” (d) over middle third of left leg of the size 5” x 1” . (e) Contusion over left thigh region approximately 6” x 1” . (f) Contusion over left arm of the size 6” x 2”. (g) Contusion over back over four regions (g-1) over right side or right aspect of the size 6” x1” (g-2) over left side of size 6” x 1” (g-3) Two contusions over middle region 5”x1” in size. 2. Fracture over skull parietal region”. The Doctor opined that the above injuries were ante-mortem in nature. On internal examination, PW1 found that there was haematoma under scalp extending over frontoparietal region of scalp. There was fracture over parietal region of skull. Both right and left parietal bones were involved in the size approximately 4” x 1.5” It was depressed type of fracture. The brain was found congested. There was subdural haematoma present. PW 1 examined the sticks and opined that the injuries in column no. 17,18 and 19 of P.M. report could be caused by the said sticks. 10. On going through the medical evidence, it is noticed that the medical evidence corroborates with the testimony of PW1. 11. No doubt, the sticks which were taken charge of by the Investigating agency were from Raju Patil (accused no.2) and Devidas (accused no.3). PW 5-PSI Dindayala Gupta, had specifically stated that stick (art.1 and 2) were taken charge from Raju (accused no.2) and Devidas (accused no.3), at their instance, vide Panchnama Exhs. 67 and 69 respectively. No weapons were taken charge at the instance of the present appellants. It is significant to note that seizure panchnama (Exh.46) depicts the bloodstains on the pyzama of appellant-Parasram and the seizure Panchnama (Exh. 47) reveals bloodstains on pyzama as well as shirt of accused-Arun, but no blood group is detected in the CA report. There is no explanation on record as to how the clothes of appellants were stained with blood. It confirms their presence on the spot and their involvement in the offence. 12. On careful scrutiny of the testimony of the entire evidence on record, it is noticed that both the appellants are involved in the alleged offence. There is no explanation on record as to how the clothes of appellants were stained with blood. It confirms their presence on the spot and their involvement in the offence. 12. On careful scrutiny of the testimony of the entire evidence on record, it is noticed that both the appellants are involved in the alleged offence. Specific roles to both the appellants were attributed by PW3-Sunanda in her testimony before the Court which corroborates with her complaint which was lodged promptly. The medical evidence also corroborates the testimony of PW 3. From the evidence on record, it is clear that both the accused shared the common intention. 13. So far as the quantum of sentence is concerned, Shri Daga, the learned counsel submitted that both the appellants are aged about 70-years old as on today and no fruitful purpose would be served by asking them to undergo the remaining sentence awarded to them. He further submitted that the incident is of 2001, whereas the sentence has been awarded by the trial Court in the year 2003. Shri Daga urged that even the weapons are not recovered from the present appellants. In these circumstances, he submitted that leniency be shown and the sentence of the appellants should be restricted to the period which they have already undergone. Shri Daga submits that the appellants were in jail from 2.1.2002 till 15.5.2003 i.e. they were in jail for a period of one year four months and thirteen days. When the appellants preferred appeal, they were released on bail on 15.5.2003. In these circumstances, Shri Daga submitted that the quantum of sentence be restricted to the period which they have already undergone. 14. Considering the submissions of Shri Daga and also taking into consideration that the State has not preferred an appeal against the accused, I am of the view that ends of justice would be met if the sentence of the appellants is reduced to the period already undergone. Needless to add, Shri Daga submitted that the appellants have paid the amount of fine on 5.3.2003. 15. In this regard, an useful reference can be made to the judgment reported in 1995 Cri.L.J. 2630 in the matter of Babu Singh and others vs. State of Haryana. In that case, the accused were tried for the offence u/s 307, 324 r/ws. 34 IPC. 15. In this regard, an useful reference can be made to the judgment reported in 1995 Cri.L.J. 2630 in the matter of Babu Singh and others vs. State of Haryana. In that case, the accused were tried for the offence u/s 307, 324 r/ws. 34 IPC. The Hon’ble Supreme Court altered the conviction of the appellants to one punishable u/s 324 r/ws. 34 of IPC and instead of allowing the appellants to execute the bond as directed by the trial court, sentence was reduced to the period already undergone. 16. In the case of Amruta Deshmukh and another vs. State of Maharashtra, reported in 2011 Cri.L.J. 1157, the appellants were convicted under section 324 of IPC. The injuries caused to the accused were not explained by the prosecution. The recovery of weapon of offence was not proved by the prosecution. The sentence was awarded in the year 1999 and the appeal was heard in the year 2011. In view of the mitigating circumstances, this Court reduced the sentence up to six months which was already undergone by the appellants. 17. In the result, the following order is passed: (a) The Appeal is partly allowed. (b) The conviction of the appellants for offence punishable u/s 324 read with Section 34 of the IPC, is maintained. However the sentence is reduced to the period already undergone by the appellants. (c) The bail bonds of the appellants shall stand cancelled.