M.L. Shrimal, J.
1. Accused-appellants, Ram Chandra and Kishan Das, were tried along with Ramotar and Smt. Ladi under Sections 307, 326, 147, 149 and 323, IPC, for causing, on 24-3-1971, simple injuries on the person of Sita Ram and simple and grievous huts to Guljari (P.W. 3). Learned Sessions Judge, after trial, acquitted accused Ramotar and Mst. Ladi of the charges framed against them. Accused-appellant Ram Chandra was acquitted of the charges punishable under Sections 307, and 147, IPC. He was convicted under 326, IPC. and sentenced to six months rigorous imprisonment and a fine of Rs. 100/- and in default of payment of which to suffer imprisonment for 15 days. Kishan Das has convicted under Section 323, IPC and sentenced to pay a fine of Rs. 280/- in default of payment of which to suffer simple imprisonment for two months.
2. Aggrieved by the judgment of conviction and sentence the accused-appellants have come up in appeal before this Court.
3. Facts giving rise to this appeal are that on 24-3-1971 Ganesh Chaturdashi day) some school boys, namely, Om Prakash, Shyam, Vinod Sajjan and others came to Sita Ram (PW 2), who was sitting under a mango tree in village Lohargal. The boys made a complaint to their school teacher Sita ram that Ram Chandra's son Vinod had spoiled sweets and coconut by throwing on them ashes. The articles were brought by them for celebrating the function of Ganesh Chauth. Sita Ram reprimanded Ram Chandra and asked him either to replace the sweet and coconut or to pay the cost thereof to the boys. Prosecution case further is that such a reprimand infuriated Ram Chandra. Exchange of hat words between Sita Ram and Ram Chandra attracted Kishan Das, appellant. Ramotar and Ladi (acquitted by the trial Court) appeared on thy sceme of the occurrence. Sita Ram was belaboured by them with stones, and lathis. The complainant's father (PW/3 Guljari) came to rescue his son, but he was also not spared. Ram Chandra rushed to his house, brought an axe & inflicted an axe blow on the head of Guljare. In this scufflue Guljan sustained seven inflicted, out of which injury No. 1 was an incised wound measuring 1' X 1/4', semicircular in nature with fracture of underline bone i.e. frontal bone on the right side of the front of head. Sita Ram also sustained simple injuries. In the course of investigation the accused, Ram Chandra, was arrested on 27-8-1971 and in consequence of his information as axe was recovered. But as the same was not found blood stained, its recovery was of no consequence to the prosecution. The police after usual investigation submitted a challan against the accused. The learned Magistrate after preliminary inquiry committed the accused for trial to the Sections Judge at Jhunjhunu. All the accused pleaded not guilty to the charges. The prosecution examined five witneses in support of its case. Out of these witnesses PW/1 Nathu,PW/2 Sita Ram (injured, PW/3 Guljari (injured) and PW3 Brij Mohen were examined as eye-witnesses PW/4 Bhanwar Singh is the investigating officer of this case. The injury reports Ex. P/4, Ex. P/5 were proved by Dr. S.S. Agarwal's statement recorded by the committing Court. His statement was ordered to brought on record under Section 509, Cr. P.C., 1898. The accused denied their complicity in the crime. They pleaded that the complainant raided the shop of Kishan Das accused and injuries on his person. They also produced an injury report, Ex. P/3 relating to Kishan Das No witness was examined in defence. defence, As the Doctor who clinically examined accused was not examined in Court the certificate is of no avail to the defence. At best, such a certificate would have a corroborative value. But it is not a substantial piece of evidence from which an opinion of medical expert can be proved or established. The learned Sessions Judge held that the case set up by the defence was not reliable. Accused Kishan Das was clinically examined on 29-8-1971, i.e. five days after the occurrence. Complaint filed by Kishan Das against the members of the complainant's party was an after thought. Placing reliance on the statements of Sita Ram (PW/2) Guljari (PW/3) and Nathu (PW/1) corroborated by the medical evidence, learned Sessions Judge convicted and sentenced the accused-appellants, as mentioned above. Heace, this appeal.
4. Learned Counsel for accused-appellants vehemently urged that the following circumstances brought forth on the record of the case proved that the entire prosecution case was unreliable and the narration of the case made by the Prosecution was unnatural. Counsel further added that the FIR was made arter considerable delay without any reasonable explanation, that the prosecution x-ray report relation to PW/3 Guljari's injuries, that the injuries sustained by the accused had not been explained, and that independent eye-witnesses had not been examined.
5. Learned Counsel appearing on behalf of the State has supported the judgment of the trial Court.
6. A perusal the record shows that injured Sita Ram PW/2 and Guljari PW/3 were medically examined by Dr. G.S. Agarwal on the date of the occurrence at 8.30 p.m. at Nawalgarh Hospital. The injured Guljari was advised to obtain x-ray report and, as such, he was taken to Sikar. X-ra of the injured was taken by the Hospital authorities at Nawalgarh in the morning of 31-8-1971. Anxiety of the relatives to get the injured examined by a Doctor and provide him with medical aid was of first and foremost importance. It could not be expected from them that they would rush to the police station for making first information report before providing medical aid to the injured. In the instant case, the delay in filing the First Information Report thus stands explained.
7. Now, I proceed to deal with eye-witnesses. Injured Guljari (P/W 3) stated that at the time of the occurrence he was sitting on 'chabutari'. When he came to know that his son was being beaten, he rushed to the site of the occurrence. He was intercepted by the assailant. Kishan Das delivered a lathi blow and the lady accused three stones at him. Ram Chandra rushed & brought on axe with which he inflicted an injury on his hand as a result of which the latter fell down and became unconscious. The witness further goes on to state that he was clinically examined by Doetor G.S. Agarwal at Nawalgarh. There after he was x-rayed at Sikar. No doubt, there are certain contradictions in the statement of this witness regarding the details of the talk which had taken place between the school children and Sitaram. There is also contradiction on the point as to which of the persons present there intervened and rescued the injured. Such minor contradictions do appear in the statement of truthful witnesses unless they are tutored (Vide : 1976CriLJ677 ). His statement regarding inflicting a blow with an axe by Ram Chandra is thorought consistent. Almost to the same affect is the statement Sita Ram. Both Sita Ram and Guljari were injured persons. Their presence on the scene of the occurrence at the time of incident cannot be doubted Harprasad v. State of M.P. : 1971CriLJ1135 . The scuffle had taken place in front of the house of Guljari. As such, his reaching the scene of the occurrence at the time of incident or just after, when the accused were quarrelling with his son Sita Ram, cannot be said to be unnatural. There is nothing on the record to show that either Sita Ram or Guljari bore a grudge against accused Ram Chandra. Simply because a witness is a close relative of the victims, his statement cannot be disbelieved. Besides, Sita Ram and Guljari's statements stand corroborated by the statement of PW/1 Nathu as well as by medical evidence, vide AIR 1971 SC 1086. In the first information report it has been specfically mentioned that accused Ram Chandra in the course of fight left the place of incident, brought an axe and inflicted a blow on the head of Guljari. Thus, the evidence of the eye-witness is backed by the medical opinion. The trial Court had the advantage of seeing the witnesses in the witness box. Believing their statements, learned Sessions Judge held that accused Ram Chandra inflicted an axe blow on the head of Guljari and I have no reason to differ from this finding.
8. As regards non-examination of the boys and other persons of the locality, suffice it to say that it is well known that in rural areas where quarrel takes place independent villagers are generally averse to give evidence because they are afraid of the fact that giving evidence may invite wrath of the assailant and may expose them to serious consequences. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and help the administration of criminal law with a view to bring the offenders to book. But it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court, it should be treated as an infirmity in the case, so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground. Reference in this connection may be made to Darya Singh v. State of Punjab AIR 1965 SC 328 12.
9. The real question is not as to what is the effect of non-examination of certain witnesses as the question whether the witnesses examined in Court is believable or not. Once the witness examined on oath by the prosecution is believed and the Court comes to the conclusion that his evidence is trustworthy, the non-examination of further witnesses does not affect the credibility of the witnesses relied upon. Narpal Singh v. State of Haryana : 1977CriLJ642 , Pat Singh v. State of UP : 1979CriLJ917 .
10. Now remains the question whether the injuries sustained by Guljari on his head can be said to be grievous or not. Dr. G.S. Agarwal in his statement before the Court said that he examined Guljari and noticed the following injuries on his person:
Incised wound 1' x 1/4' semi-circular in nature with fracture of underline bone i.e. frontal bone on right side of front of head.
11. Rest of the injuries were described by him as simple. The witness further stated that in his opinion, injury No. 1, sustained by Guljari, was grievous. No doubt, the prosecution has not cared to produce the x-ray plate, but simply because x-ray report has not been produced in a case, it cannot be held that the statement of the Doctor should not be believed. In his statement, Dr. Agarwal has positively disclosed the reasons as to why the injury was grievous. According to him there was a fracture of the underlying bone i.s. frontal bone on the right side of the front of head. Even in cases where the Doctor does not disclose reasons for an injury being grievous, it cannot be held that the Doctor was not aware of the nature of the injuries . Reference on this point may be made to Nori Lal v. State U.P. : 1970CriLJ1665 wherein similar arguments as advanced before me by the learned Counsel for the appellant, was repelled by the Supreme Court
12. For the reasons mentioned above, I hold that the head injury sustained by PW/3 Guljari was grievous in nature. It stands covered by the definition of grievous hurt given in Clause 7 of Section 320, IPC. Consequently, conviction of accused Ram Chandra under Section 326, IPC is maintained.
13. Placing reliance on the statements of PW/1 Nathu and Sita Ram PW/2 I maintain the conviction of accused Kishan Das under Section 323, IPC keeping in view the nature and the circumstances of the case, I consider it proper to given Kishan Das the benefit of Section 4 of the Probation of Offenders Act (hereinafter referred to as 'the Act'). On behalf of the respondent, it has been conceded by the learned Counsel for the State that this Court can make an order under the Act' on the existing material on the record without remitting the case to the trial Court and without seeking any further information. Accordingly, I affirm his conviction under Section 323, IPC. His sentence is, however, set aside. He is directed to execute a bond within two months from today, of Rs. 500/- to appear in the trial Court and receive the sentence, whenever called upon to do so by the trial Court within a period of three months and during that period to keep peace and be of good behaviour. The trial Court is directed to obtain necessary bond to its satisfaction from the appellant and from his one surety in the like amount. The bail bonds of appellant Kishan Das will enure till the time above mentioned directions are carried out after which it will be deemed to have been cancelled. The sentence awarded to Ram Chandra by the trial Court cannot be said to be excessive, rather it tilts towards leniency. Reference in this connection may be made to State v. Durga (2) 1979 Cr. L.R. Raj. 629 (relevant portion para 30 page 638 and Ashok Kumar v. State of Punjab 1977 (1) SCC 746 wherein allowing the appeal of Ashok Kumar their Lordships made the following observations regarding the term of sentence awarded to Kewal Krishan under Section 326, IPC. Kewal Krishan was also conade the iio(tm), section 326, IPC. IPC read with Section 34, But surprisingly enough, the High Court let him off with a ridiculously light sentence of years rigorous imprisonment.<
14. However, it is made clear that the accused-appellant Ram Chandra will be entitled to the benefit of Section 428, Cr. P. C., 1973 for the term of imprisonment undergone by him during investigation, inquiry or trial shall be set off against the term of imprisonment awarded by the trial Court and confirmed by this Court is directed to issue a warrant of arrest and send him to jail after giving him the benefit of Section 428, Cr. P.C.
15. The appeal is partly allowed as indicated above.