JUDGMENT : This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 09.09.1999 passed by the IIIrd Additional Sessions Judge, Ratlam in S.T.No.161/1998 wherein the appellant has been convicted for offence under Section 326 of IPC and sentenced to undergo R.I. for 4 years with fine of Rs.1,000/- and in default of payment of fine to further undergo four months S.I. 2. As per the prosecution story, on 01.10.1998 near about 11 A.M. in Gram Barkheda the complainant Gul Mohammad was talking to Ramju who was standing in the shop of Kailash Porwal, at that time, appellant Shabbir @ Kalu came there and said to the complainant that the field in which he took the tractor belongs to him, on refusal of the same, the appellant saying that complainant wanted to capture his field, took an axe and gave blow with it due to which the complainant fell down and appellant threatened him to kill if he reported the matter to the police. Hence, the case was registered against the appellant. 3. During investigation, medical examination of the complainant was conducted, spot map was prepared and on the memorandum under Section 27 of the Indian Evidence Act, axe was recovered. The blood stained clothes of the complainant was also recovered. The seized articles were sent to the Forensic Laboratory and after taking the statements of the witnesses the matter was committed to the Court of Judicial Magistrate First Class, Alot and thereafter received by the Court of Sessions. 4. The prosecution has examined total 13 witnesses namely Gul Mohammad (PW-1), Shafi Mohammad (PW-2), Jujhar Singh (PW-3), Hatmakhan (PW-4), Kailash (PW-5), Yakub (PW-6), Dr.S.K.Varun (PW-7), Ramju (PW-8), Dr. Prakash Upadhyay (PW-9), Mohanlal (PW-10), Bharat Kumar Yadav (PW-11), Naseebkhan (PW-12), and Ramgopal Joshi (PW-13). The appellant/accused abjured his guilt and he took a plea that he is innocent. 5. The appellant was tried and charged under Section 326 of IPC. The learned Court below, after considering the evidence and material available on record has convicted the appellant, as stated above. 6. Learned counsel for the appellant submits that the judgment of the learned Court below is contrary to law and facts on record. The judgment is neither legal, nor proper nor correct. The learned Court below has erred in believing the prosecution witnesses and discarding the defence version. 6. Learned counsel for the appellant submits that the judgment of the learned Court below is contrary to law and facts on record. The judgment is neither legal, nor proper nor correct. The learned Court below has erred in believing the prosecution witnesses and discarding the defence version. The learned Court below has erred in not appreciating the material omissions and contradictions in the statement of the prosecution witnesses. Hence prayed that the judgment of the lower Court may kindly be set aside and the appellant be acquitted. 7. Learned Government Advocate has opposed the prayer. Inviting my attention towards the conclusive paragraphs of the impugned judgment, he has submitted that the injuries caused by the appellant is serious in nature. He supported the impugned judgment by submitting that there is clear evidence against the appellant, therefore, the appeal deserves to be dismissed. 8. I have heard the learned counsel for the parties and have also perused the record. 9. The case of the prosecution is based on the direct testimony of Gulmohammad(PW-1)(Complainant/Injured), Shafi Mohammad (PW-2), father of PW-1, eye witness Kailash (PW-5), Dr.S.K.Varun (PW-7) medical officer, Dr. Prakash Upadhyay (PW-9) medical officer. The incident is stated to have taken place at 11 A.M.in front of shop of Kailash Powral (PW-5). The incident occurred due to some dispute regarding the field. The presence of the appellant was admitted by the defence in para 16 of the cross examination of Gul Mohammad (PW-1). As per defence due to quarrel between the appellant and Gulmohammad, he fell down and got hurt. Dr. Prakash Upadhyay (PW-9) examined Gul Mohammad and held as under:- "An incised wound head mid parietal region horizontally placed 9x1 1/2 cm. bone deep clavicle injury to the bone." 10. Dr. S.K.Varun (PW-7) stated that in X-ray he found fracture in parietocarpetal bone of the skull of Gul Mohammad. In his cross examination he clearly stated that such type of fracture cannot be caused due to falling on the floor. The testimony of Gul Mohammad (PW-1) is fully supported by PW-5, who is the owner of the shop where the incident had taken place. Although Ramju (PW-8) and Mohanlal (PW-10) have turned hostile, but from the testimony of these witnesses it is proved that Gul Mohammad (PW1) sustained injuries. The testimony of Gul Mohammad (PW-1) is fully supported by PW-5, who is the owner of the shop where the incident had taken place. Although Ramju (PW-8) and Mohanlal (PW-10) have turned hostile, but from the testimony of these witnesses it is proved that Gul Mohammad (PW1) sustained injuries. An axe was seized from the appellant and therefore, it cannot be said that the prosecution story is doubtful and the learned trial Court has rightly convicted the appellant. 11. Now, we come to the question of sentence. The appellant is on bail. He remained in jail during the course of trial and after conviction for some period. For the offence under Section 326 of IPC there is no mandatory requirement of imposing minimum jail sentence. In view of the mitigating circumstances, this Court deems just and proper in the interest of justice and looking at the young age of the appellant at the time of incident i.e. 25 years according to the charge sheet and the nature of incident, and the fact they are cousin brothers, the sentence of the appellant is reduced to the period already undergone with fine of Rs.50,000/-. No useful purpose will be served to send the appellant again in jail after 24 years of the incident. 12. Learned counsel for the appellant informed this Court that at present if he is sent to jail his whole family would be uprooted because now he is married person having responsibility of his wife, children and other family members. 13. In view of the aforesaid, this appeal is allowed in part. The appellant is found guilty for offence under Section 326 of IPC for causing grievous hurt to Gul Mohammad and he is sentenced to the period already undergone by him with fine of Rs.50,000/- and out of this amount, a sum of Rs.40,000/- shall be paid to the complainant/injured Gul Mohammad as compensation. The appellant is granted two months time from today to deposit the fine amount. On deposit of the fine amount, his bail bonds shall stand discharged. In default of payment of fine, the appellant shall suffer R.I.for four years.