M.M.Punchhi, J.:-

(1) This is an appeal by a father, named jai singh and his two sons; chandi and ramji lal. They have been convicted under sections 325,324, 323, indian penal code, with the aid of section 34, indian penal code; by shri m. K. Bansal, additional sessions judge, kurukshetra, vide his order dated 7th august, 1980. The first appellant jai singh was released on probation for a period of two years, which obviously has expired. The remaining two appellants were sentenced to 11/2 years rigorous imprisonment and to pay a fine of rs. 200/ - , each in default of payment of fine to undergo three months rigorous imprisonment under section 325/34, indian penal code, to one years rigorous imprisonment under section 324/34, indian penal code, and to six months rigorous imprisonment under section 323/34, indian penal code. All the sentences of imprisonment were ordered to run concurrently.

(2) The prosecution case is straight and simple. On 25th may, 1979, at 5 - 45 p. M. Nasib singh (p. W. 2) was going to his house from dhand mandi. He was accompanied by his brother prem (p. W. 5) who had lagged behind for taking water. When nasib singh (p. W. 2) reached near the crossing known as dhand bus - stand, he found all the appellants in the shop of a barber. Jai singh appellant exclaimed that the enemy had come and he be taken care of. At this nasib singh (p. W. 2) started going at a fast speed towards his house but jai singh appellant who was armed with a spear gave him a blow therewith on his head. The appellants nos. 2 and 3 chandi and ramji lal who were armed, with laties assaulted nasib singh pw, as a result of which he fell down. Then he was given a volley of blows by the accused. On alarm being raised, pawan kumar (p. W. 6) and one parma nand were attracted to the scene. Then the appellants left the spot with their respective weapons.

(3) The motive for the occurrence was that a theft had taken place about 5 - 6 months back at the petrol pump of nasib singh pw, regarding which a report had been lodged at the police station. Laying suspicion on jai singh, the police had called him as a suspect but seemingly he was not sent up for trial. The other grudge, as suggested at the trial, but regarding which no mention was made at the stage of investigation, was that the father of the victim had appeared as a witness in a case under section 110 of the code of criminal procedure against jai singh appellant. Whatever be the motive, one or the other or both, even the absence thereof, would, in the instant case, not affect the prosecution case if the victim is to be believed.

(4) P. W. 5 prem immediately brought a taxi and put his brother nasib singh in an injured condition to be taken to the hospital. In the meantime assistant sub inspector jati singh (p. W. 6) arrived at the scene who recorded statement exhibit pb of the injured at 6 - 35 p. M. Within 15 minutes of the occurrence. On the basis of that statement formal first information report was recorded within minutes thereafter. The injured was taken to the hospital and was medically examined by dr. N. K. Bedi (p. W. 3) at 7. 00 p. M. The doctor found as many as 19 injuries on the person of nasib singh p. W. Vide his report exhibit pd. When the learned additional sessions judge has not listed those injuries in the judgment under appeal, it has become necessary to incorporate the details thereof herein, so that their magnitude seats extent and nature become self - explanatory. Those 19 injuries are as under:

(1) incised wound over the parietal region transversely placed 2 xt x bone deep situated 5 from the right mastoid and 5 from the occipital tubriosity. Margins were cleanly cut and there was a corresponding cut in the bone underneath the wound. Fresh bleeding was present. X - ray skull part was advised. (2) incised wound over the centre of the head 1/4! x 1/6 x bone deep situated vertically from injury no. 1. Fresh bleeding was present. X - ray skull of the part was advised. (3) lacerated wound over the left parietal region 2 xl/6xt bone deep situated obliquely 5 from the right tragus and 31/4 from the right eye - blow. It bled on cleaning. X - ray was advised. (4) lacerated wound over left parietal region 1 x x bone deep situated obliquely 4 from the left tragus and 41/2 from the left eye blow. Bled on cleaning. X - ray was advised. (5) lacerated wound on the right side of fore - head, 1 xt x bone deep situated vertically 2 above the right eye blow. Bled on cleaning. X - ray of the part was advised. (6) lacerated wound over the ulnar side of right ring finger over the distal phalanx 1/2 x 1/6. Clotted blood was present. X - ray was advised. (7) lacerated wound over the dorsal side of right foot 11/2 x 1/6 tvt shaped, sub - cotaneous tissue deep, situated 3 from the tip of right great toe. (8) contusion over the right side of back lit! x 1/2 obliquely placed extending from right shoulder back 5 away from spine. It was red in colour. (9) contusion over back transversally placed across the spine, 6 x 1/2 situated 6 above the lumbo sacral region. It was reddish in colour. (10) contusion over the lateral side of right arm reddish in colour 3 x 3/4 situated transversally %ti below the right shoulder. (11) contusion reddish in colour situated over the postero lateral surface of right arm 3 x it! situated 3 above the right elbow. (12) contusion reddish in colour situated obliquely over lateral surface of right elbow, 3 x 3/4. (13) diffused swelling over the dorso - lateral surface of right wrist 2 x it!. X - ray was advised. (14) contusion reddish in colour situated obliquely over the posterior surface of left arm 21/2 x 1/2 placed 31/2 above the left elbow. (15) contusion reddish in colour situated obliquely over the outer side of left elbow 11/2 x1/2t1. (16) contusion reddish in colour situated obliquely over the outer side of right thigh 8 x 1/2 placed 3 above the right knee. (17) contusion reddish in colour situated transversely over the outer side of right leg 3t1 x 1/2t1 situated 3t1 below the right knee. X - ray was advised. (18) contusion reddish in colour situated transversely over the outer side of left thigh 3 x 1/2t1 situated 3 above the left knee. (19) contusion reddish in colour situated over the front of left leg 3/4t1 x 1/2 situated 6 below

The left tibial tuberosity.

(5) Injuries nos. 1 to 6, 13 and 17 were kept under observation. Rest were declared simple. Finally injuries nos. 6 and 17 were declared, grievous, as there was fracture of the right ring finger relating to injury no. 6 and fracture of the fibula relating to injury no. 17. The doctor, however, when examined at the trial gave the opinion that the injuries were not, dangerous to life of the victim. It is on that score that the charge from section 307/34, indian penal code was brought down to lesser offences, as has been noticed in the opening part of this judgment.

(6) During the course of investigation the police picked up blood - stained earth from the spot. It also recorded disclosure statement of jai singh appellant in pursuance of which he got recovered his spear allegedly used in the crime.

(7) P. W. 2 nasib singh, the victim of the crime fully supported the prosecution case. He was amply supported by p. W. 4 pawan kumar and p. W. 5 prem. The minor discrepancies as regards to the point of exhortation made by jai singh appellant or with regard to the number of shops where the occurrence took place, appearing in the statements of the witnesses were of no avail to the defence. The defence on the other hand took a positive stand in the statement of jai singh appellant. He stated that on the day of the occurrence, he and his son chandi were going to, their fields; he had a lathi fitted with a sua and his son chandi had a stick; that they, had altercated with nasib singh about the voting pattern in the election of som nath and ram kishan. During verbal altercation nasib singh (p. W. 2) abused him in the name of mother and sister - and on being enraged, he and his son chandi assaulted nasib singh while ramji lal appellant was not there. This was the case of the remaining appellants as well.

(8) As it is, the occurrence is not disputed by the defence, except for the participation of ramji lal appellant. It stands to no reason as to why his name should figure in the first information report which was recorded at the earliest possible opportunity and with utmost promptitude. It is equally understandable as to how within such a short span of time the victim got weaved out a story to implicate the appellants. It cannot be forgotten that he had as many as 19 injuries on his person and must be writhing in pain at the time when his statement was recorded by a. S. I. Jati singh (p. W. 6). The twist as introduced by the defence is wholly unbelievable. Learned counsel for the appellants could offer no reason as to why the victim of the crime should not be believed with regard to the assault, leaving apart all other evidence of the prosecution appearing on the file. But even so, there is no reason to discard the evidence of pawan kumar (p. W. 4) and prem (p. W. 5) who were natural witnesses to the scene of occurrence; more so when pawan kumar (p. W. 4) was a disinterested witness. The mere fact that he knew the injured earlier or that he was on visiting terms with him is of no consequence. He was also a witness to the recovery of spear at the instance of jai singh appellant. Thus, finding that the victim has given a truthful account of the prosecution case and additionally he was corroborated by other evidence, i am of the firm view that the appellants were the assailants of the crime.

(9) Though it is true that dr. N. K. Bedi (p. W. 3) has said that the injuries were not dangerous to life at that time, but he was also of the view that those might have been dangerous to life if had been inflicted with greater force. It has to be remembered that the opinion evidence of the doctor in this regard is entitled to some weight and value; yet for adjudging the criminality of the offender the courts have to apply tests which are innate in the ingredients of section 307, indian penal code. In a case relating to a murderous assault, it has to be seen from the act of the accused the manner in which it was executed, the surrounding circumstances as also the result achieved together the intention of the accused. It seems that the learned trial judge judged the matter one sided i. E. From the point of result orientation. The law on the other hand enjoined on him a duty to examine a case like this intent - oriented. With regard to the medical experts, it can safely be said that opinion of theirs is mere evidence but the ultimate judgment is of the judges in the cases of crime. If opinion of medical experts were to settle the degree of crime then i am afraid it would be abandoning judicial function of courts, a course which has to be avoided at all costs.

(10) As is patent from the seats of injuries on the person of the victim quite a few of them were on vital parts of his body. For instance injury no. 1 on his head was caused by a sharp edged weapon and was attributed to jai singh appellant, which was rather the injury by which the assault was opened. This injury coupled with the other injuries which followed, when examined in the true perspective could have given occasion to the learned trial judge to discern the intention of the appellants. But, as is plain, the learned trial judge did not direct his intention to these, particulars. He just on the basis of the opinion of the doctor let the offence slip down to minor heads. However, no appeal against the judgment and order under appeal was preferred by the state, and thus, it would have to rest in relation to this aspect of the case, which need not be carried any further.

(11) Having convicted the appellants under section 325, 324, 323 with the aid of section 34 of the indian penal code, the learned trial judge while imposing sentences on chandi and ramji lal appellants released jai singh appellant on probation, solely on the ground of his being 70 years of age. It is not the number of years which makes a man old. The manner in which jai singh participated in the occurrence, rather spear - heading it with the help of his sons, did go to show that a cautious approach was needed by the learned trial judge to see to his character and antecedents before granting probation. It cannot be forgotten that a suggestion had been given in the evidence of the pw5 that jai singh had been proceeded against under section 110, code of criminal procedure at one stage in which the father of the victim had appeared as a witness. The learned trial judge should have, in that situation, required the defence to dispel that doubt with regard to the antecedents of jai singh appellant. In addition thereto the circumstances in which the crime was committed had also to be put on scales as a weight to counter mind the age factor. To my find the learned judge did not exercise the required reasonable caution. But now, since the period of the bond has expired, which period of course was in lieu of the sentence to be imposed, i am helpless to take the matter any further with regard to jai singh appellant. But with regard to chandi and ramji lal appellants, there can be no manner of doubt that they have been dealt with quite leniently by the learned trial judge and thus there is no scope for reduction of their sentence as prayed for by the learned counsel for the appellants.

(12) With these observations, this appeal merits dismissal. It is dismissed accordingly. Appeal dismissed.