( 1 ) THIS is an appeal under Sec. 378 (1) of the Criminal Procedure Code, 1973 ( for short "cr. P. C.) filed by the State of Gujarat, challenging judgment Ex. 40 dated 5th September, 1992 rendered by the Judicial Magistrate, First Class, ( Mr. V. J. Mehta), Umargam (who will be referred to hereinafter as the learned Magistrate) in Criminal Case No. 1944 of 1988 which was on his file. Here in this appeal, appellant -the State of Gujarat, was the Prosecution and respondents were the accused. For the sake of convenience, parties will be referred to hereinafter as the complainant and accused respectively.

( 2 ) THE facts leading to this Criminal Appeal, in a nutshell, are as follows:-COMPLAINANT -Mohanbhai Ramabhai Halpati is residing in Faliya, near School at village Pali - Dhua. He is serving as a teacher in Gujarati school, since about 8 years before the date of complaint i. e. 4/7/1988. Complainant has four sons. Eldest is Rajendra who is examined as prosecution witness No. 5 at Ex. 22. Second son is Natu, third son is Kamlesh and the fourth youngest son is Vilas, and his four sons are residing together under one roof in one house. Complainant has one brother Bhuliyabhai who is accused no. 1 in the case. It is an admitted fact that both the parties are related interse. It is also an admitted fact that there is a dispute with regard to lands, in between complainant and accused no. 1 and in connection with that dispute, cases have been filed interse in between complainant and accused no. 1, as a result of which, accused no. 1 Bhuliyabhai was having enimical relations with the complainant.

( 3 ) ON or about 3rd July, 1988 at about 3-00 p. m. , complainant was doing a work relating to making of fence in his field, and at that time, accused no. 1 Bhuliyabhai told complainant that if he (complainant) would claim for his share in the agricultural land, he (accused No. 1) would kill him (complainant), and he would cut him into three pieces. After giving such threats, accused no. 1 left that place. Thereafter, the complainant went to his home and at about 4-00 p. m. complainant, by driving his motor cycle, went to village Pali -Karmbali to purchase fertilizer. From that village Karmbali, he purchased one bag of fertilizer, and when he came to Rayani Falia in village Pali, he put down that bag of fertilizer from the motor cycle, and at that place, complainants friend Magan Radaka Varli (P. W. 9 Ex. 35) who was standing there at that time, asked complainant to give him a lift on motor cycle as he wanted to go to his house. Therefore, the complainant gave a lift to Magan Radaka by allowing him to sit on the seat of pillion rider of Motor Cycle, and when they both were coming to the village of the complainant, and when they were about to reach near the school, near Falia of complainant, at about 6-00 p. m. accused no. 1 Bhuliyabhai raised his hand giving signal to complainant to halt his motor cycle. Therefore, the complainant halted his motor cycle there where Bhuliyabhai was standing on the road. Magan radaka alighted from the motor cycle, and complainant was about to alight from the motor cycle, but in the mean while, accused no. 1 inflicted two to three blows of blades of axe on left portion of the chest near the ribs of the complainant. As it was a sudden attack, the complainant fell down on road and at that time, one Arjun Nana (accused No. 2) inflicted two to three blows of iron-rod on left leg just below the knee portion, as a result of which the complainant sustained fracture injuries, and he was bleeding. It is further the case of the complainant that Puna Manchhu (accused no. 3) inflicted the blows of "kosh" of plough on both the thies of the complainant. At that time, Sandesh Bhikhu (accused No. 4) caused injury on the shoulder of the complainant with the help of iron-rod. All the four accused, by utterring filthy language, gave abuses to the complainant, and thereafter, they had gone away from that place. At th