JUDGMENT
Vinod Prasad, J.
1. The three uterine sibling brothers Arun Kumar, Hare Krishna and Sanjai Kumar, all sons of Hari Mohan Vyas resident of village Sikri Vyas police station Kotra district Jalaun at Orai have invoked the revisional jurisdiction of this Court under Sections 397/411 IPC, challenging their convictions under Section 321/34 and 325/34 IPC and sentences for six months simple imprisonment and a fine of Rs. 500/= each on the first count and two years simple imprisonment with fine of Rs. 1000/- each on the second count recorded by Judicial Magistrate / Civil Judge ( Jr. Division) Jalaun at Orai by his impugned judgement and order dated 18.4.2006 passed in criminal case number 95 of 2005 State v. Arun Kumar and Ors. relating to crime number 30 of 2002, PS Kotra ,District Jalaun at Orai which conviction and sentence have been confirmed in Criminal Appeal Number 13 of 2006 Arun Kumar and Ors. v. State, by Session’s Judge, Orai vide his impugned judgment and order dated 5.2.2007.
2. Prosecution case against the revisionists as is perceptible from the facts mention in both the judgements are that Rajesh Kumar Vyas (injured) son of Madsudan Vyas (informant) had gone to search for his buffalo on 24.3.2002 at 10 AM when near his filed in village Sikri Vyas his relatives Arun Kumar Vyas, Hare Krishna Vyas and Sanjai Kumar Vyas, the three accused revisionist, vetuparised him because the injured asked them as to why they had stopped his labour from cutting the crops and accused revisionist Sanjai with axe and rest of the two accused revisionist with Lathis assaulted him at 11 AM that day. Cry for help from the injured attracted Govind Das, Udai Pal Singh, Nand Kishore and many other co villagers who saved his life.
3. Informant scribed the FIR ( Ext.Ka 1) and lodged it at police station Kotra fifty minutes later the incident. Chik FIR, Ext. Ka 4, was prepared as crime number 30 of 2002 under Sections 323, 325, 504, 506(2) and GD entry for recording of FIR, Ext. Ka 5, was made. Investigating officer started the investigation and dispatched the injured for his medical examination. Medical examination of the injured Rajesh Kumar was conducted by Dr. Lalit Kumar Niranjan on 24.3.2002 at 3.30PM. His medical examination report Ext. Ka 3 showed that the injured had sustained 11 injuries in all with three lacerated wounds, five contusions, two swellings and one abrasion. His X- ray examination was got done by Dr. M.C. Mittal and his X- ray Plate and report- Ext. Ka 2 indicated that his Radius and Ulna bones of right wrist joint, Femur bone of right knee, and Fibula bone of right ankle joint were fractured. Investigating officer during further investigation prepared site plan Ext. Ka 6, made inspection note, recorded statements of witnesses and injured and after completion of investigation submitted charge sheet against the accused revisionists as Ext. Ka 7 in the court. Trial Magistrate on 1.5.2003 charged the accused revisionist with offences under Sections 323/34, 325/34, and 506(2) IPC which they denied and claimed to be tried.
4. In the trial prosecution, to bring home the charge against the accused, examined Rajesh Kumar (injured) as PW 1, Madsudan (informant) PW 2, Govind Das (eye witness) PW 3, Dr. M.C. Mittal (Radiologist) PW 4, Dr. Lalit Kumar Niranjan (Doctor) PW 5,and Babu Lal, constable as PW 6.
5. Accused revisionist in their statement under Section 313 Cr.P.C. pleaded the usual defense of denial and false implication.
6. Trial Magistrate finding the case of the prosecution proved to the hilt and guilt of the accused revisionist cemented by cogent and reliable evidences convicted them for the charged offences under Sections 323/34, 325/34 and 506(2) IPC and sentenced them to under go 6 months simple imprisonment and to pay a fine of Rs. 500/= each on the first count, 2 years simple imprisonment and a fine of Rs. 1000/= each on the second count and 1 year simple imprisonment and a fine of Rs. 500/= each on the last count vide his impugned judgement and order dated 18.4.2006. Aggrieved by their aforesaid convictions and sentences revisionists preferred Criminal Appeal No. 13 of 2006 before Session’s Judge Orai which as allowed in part. Lower Appellate court set aside their conviction and sentence under Section 506(2) IPC but dismissed their appeal in respect of convictions and sentences for offences under Sections 323/34 and 325/34 1PC vide it’s impugned judgement and order dated 5.2.2007. Hence this revision challenging both the impugned orders for the said convictions and sentences.
7. I have heard Sri Vivek Shandilya, learned Counsel for the revisionist accused in support of this revision and the learned AGA in opposition and have gone through both the impugned judgments and orders.
8. Learned Counsel for the revisionists hankered with idea of acquittal harangued strenuously that judgment of conviction record by both the courts below are wrong and against the evidence on record but failed to point out any defect in both the judgements either in appreciation of facts or applicability of law. He could not point out any evidence which was unworthy of credence and ultimately yielded to the said submission and conceded that conviction of the revisionists recorded by both the courts below are unassailable. He therefore focused on sentence part of the -impugned judgments and submitted that the occurrence had occurred in the year 2002 and four years had lapsed since then and revisionist does not have any criminal history and this was their first offence and therefore a lenient view should be taken while sentencing them. He submitted that both the rival sides belong to the same family and are relatives and by lapse of time bickering amongst them must have diminished. He further submitted that revisionists are real brothers and not previous convicts and all of them are of young age. He further submitted that injuries were caused to the injured on limbs and in fact prosecution evidences indicates that the intention of the accused was only to chastise the injured and not to cause him grievous hurt. He, therefore, submitted that remaining part of imprisonment of the revisionists accused should be altered into fine as the revisionist had already under gone two months of imprisonment.
9. Learned AGA contrarily submitted that seeing the nature of injury caused to the injured the sentence is neither excessive nor it is unjust and therefore it does not call for any interference by this Court.
10. I have considered the submission by the rival sides on the question of sentence. It is not in dispute that both the sides belongs to the same family and the incident had occurred at the spur of the moment with out any pre meditation. It is also clear that the revisionist does not have any criminal history nor they were previous convicts and all of them are real brothers. No doubt they have caused grievous injury to the injured and caused him fractures but since the incident had taken place four years ago and both the ‘ rival sides are relatives that I consider it appropriate to award adequate compensation to the injured in lieu of remaining, part of imprisonment of the revisionists. It is also clear that both the courts below have not awarded any compensation to the injured who had suffered most.
11. Resultantly this revision is allowed in part. While convictions of the revisionists are maintained for offences under Section 323/34 and 325/34 IPC but their sentences are altered to the period of imprisonment already under gone by them and to pay a compensation of Rs. 50,000/= each to the injured Rajesh Kumar Vyas. For realising the compensation amount the revisionist shall be released on bail on their furnishing a personal bond and two solvent sureties each in the like amount to the satisfaction of trial Magistrate concerned. Both of the sureties shall be their near kith and kin. The revisionist accused are allowed two weeks time to deposit compensation amount from the date of their release from jail. As soon as compensation amount is deposited by them, trial “court” is directed to summon the injured and hand him over compensation amount with a period of one week there after. In the event of default in depositing the compensation with in the time allowed by this judgement, the revisionists shall be cause to be arrested by the trial Magistrate to be sent to jail to serve out the sentence awarded to them by the lower appellate court by his impugned judgment.
12. With the said modification in sentence this revision is partly allowed.