JUDGMENT
Khem Chand Sharma, J.
1. The appellants have preferred this criminal appeal under Section 374 CrPC against the judgment and order dated 30.10.1984 passed by the Additional Sessions Judge No. 2, Ajmer, thereby convicting and sentencing them for offence under Section 326 and 324 IPC in the following manner:
under Section 326, IPC Each to under go rigorous imprisonment for 3 years with a fine of Rs. 3000/-. in default thereof, each to further undergo six months rigorous imprisonment.
under Section 324, IPC Each to under go rigorous imprisonment for 1 year with a fine of Rs. 1000, in default thereof, each to further undergo one month’s rigorous imprisonment.
The substantive sentences were ordered to run concurrently. The trial Court ordered that the period spent by the appellants in judicial/police custody shall be adjusted as per the provisions of Section 428, CrPC. It was further ordered that the sentences awarded in default of payment of fine shall be undergone severally.
2. As per the prosecution case on 8.6.1983, PW-7 Mahendra Singh informed the police at Police Station, Alwar Gate, Ajmer of the incident alleged to have taken place in the morning. The information was in regard to the beating with his father and brother. This information was recorded as Ex. P. 3 in the Rojnamcha. Having received the information, police along with the informant, first rushed to the place of incident, but by that time the injured were taken to the hospital. Thereafter, PW-11, Ramesh Chand, Assistant Sub-Inspector reached the Hospital, and recorded the Parcha Bayan Ex. P. 6 of injured Bhagwan Singh.
3. PW-6 injured Bhagwan Singh stated in his Parcha Bayan that on the day of incident, at about 6.45 AM his father Uda Ram PW-10 had gone for urinating and he followed him. While they were entering into the house, the accused appellants duly armed with Sword and Pharsa belaboured them. He stated that PW-8 Sohan and PW-9 intervened and saved them.
4. After usual investigation, police submitted challan against the appellants for offence under Section 307/326, 323 and 324 IPC and Section 4/25 of the Arms Act in the Court of Additional Chief Judicial Magistrate No. 2, Ajmer.
5. The accused appellants were tried for offence under Section 307 IPC and Section 4/25 of the Arms Act. At the conclusion of trial, the learned trial Court found the accused appellants guilty of having committed offence under Sections 326 and 324 IPC and accordingly convicted and sentenced them in the manner stated above.
6. I have heard Mr. Shailendra Balwada, learned Counsel for the accused appellant and Mr. Madhav learned Public Prosecutor and gone through the impugned judgment and the evidence on record. Mr. Balwada has challenged the finding arrived at by the trial Court on merits and has contended that the impugned judgment is legally not sustainable as it being contrary to the evidence on record. In the alternative it is contended that if this appeal does not succeed on merits, in that event, lenient view may be taken in the matter of sentence.
7. On the other hand, learned Public Prosecutor has supported the impugned judgment and has contended that the finding of guilty recorded by the trial Court is based on proper appreciation of evidence and therefore. It calls for no interference.
8. I have considered the rival submissions. Having gone through the impugned judgment and scrutinizing the prosecution evidence on record, it appears that as per the categorical version of injured Bhagwan Singh PW-6, accused appellant Govind inflicted injury by Pharsa on his right, and left shoulder and appellant Brijlal inflicted injury by sword on his hand, back and head. Similarly PW-10 Uda Ram injured has categorically deposed that accused Govind inflicted Pharsa blow. PW-12. Dr. B.L. Bhatia, Medical Jurist examined the injuries of both Bhagwan Singh and Uda Ram. He found 5 injuries on lumber area of back side, back of left forearm, back of left shoulder, posterior fold of axilla and on top of the scalp. He advised all injuries to be X-rayed. PW-13 Dr. G.L. Verma, Radiologist has stated that he found fracture of acromion-process of left scapula and fracture of lumbar in 2nd and 3rd vertebrae. He also found fracture of upper end of Ulna. The injuries on lumber area and back of left shoulder were found to be grevious in nature. PW-12 Dr. Bhatia also examined the injuries of Uda Ram and prepared injury report Ex. P. 13. He noticed two incised wounds on left parietal region of scalp and on occipital area of scalp. He found two lacerated wounds on left toe and on dorsum of left toe. One contusion on right side of back was also noticed. In his opinion the injuries on left parietal region and on occipital area were caused by sharp edged weapon and rest three injuries were caused by blunt object.
9. It is true that PW-9 Raju has not supported the prosecution case and has been declared hostile and PW-8 Sohan Lal is a relative witness. Likewise, PW-7 Mahendra Singh who claimed himself to have witnessed the incident and had informed the police of the incident has admitted in his cross-examination that the appellants did not cause any injury in his presence on the persons of his father and brother. In my view the evidence of these three witnesses cannot be said to be fatal to the prosecution case nor can the genesis of the prosecution version be doubted in view of the statements of two injured persons namely, PW-6 Bhagwan Singh and PW-10 Uda Ram. As discussed above, the statements of these two injured witnesses find full support by the medical evidence.
In this view of the matter, I have no hesitation in upholding the finding of guilty arrived at by the learned trial Court, which is based on proper appreciation of evidence. Therefore, the conviction of the appellants for offence under Sections 326 and 324 IPC is maintained.
10. On the question of sentence, Mr. Shailendra Balwada. counsel for the appellant has contended that the appellants have been facing trial for more than 19 years. It is contended that it would not be proper to send them behind the bars after such a long interval. learned Counsel prayed that taking into consideration the long span of 19 years lenient view on the question of sentence may be taken. According to him, it would be in the interest of justice to sentence the appellants for the period already undergone by them, instead sending them to jail. On the question of leniency in awarding sentence, learned Counsel has relied upon Roopa and Ors. v. State of Rajasthan, 2002(1) CrLR (Raj.) 523; Surendra Nath Mohanty and Anr. v. State of Orissa, 1999 CrLR (SC) 324; Hardeep Singh v. State of Rajasthan, 1999(1)-6-RCC 299; Babu Lal v. State of Rajasthan, 1997 (Suppl) RCC 94 and Kajod v. State of Rajasthan, 1999 RCC 456.
11. I have given my anxious consideration to the above submission and have gone through the case laws cited at the bar.
In Roopa and Ors. (supra), this Court acquitted the accused appellants of the offence under Section 326 IPC and while maintaining conviction under Section 323 IPC, sentenced the accused to the period already undergone by them. It may be stated that in Roopa’s case the term of sentence awarded to the accused under Section 323 IPC was only one month. Therefore, this case is of no help to the accused appellants.
In Surendra Nath Mohanty (supra), the accused were convicted under Section 326 read with Section 34 IPC and the Apex Court while maintaining conviction under Section 326/34 IPC sentenced each of the appellants to the period already under gone i.e. 3 months. In the case at hand, the accused were convicted for offence under Section 326 IPC simplicitor and the period already undergone by them is only 15 days. As such this case is also of no help to the appellants.
In Hardeep Singh (supra), the accused was convicted for offence under Section 326 IPC and was sentenced to undergo imprisonment for 1 year. On appeal, the Appellate Court reduced the sentence to a term of 9 months and increased fine from Rs. 200/- to 4000/-. In Revision, this Court while maintaining conviction, sentenced the accused to the period already undergone i.e. about one month. Hence this case is also not applicable to the facts and circumstances of the present case.
In Babu Lal’s case (supra), the accused was convicted for offence under Sections 341, 324 and 326 IPC and the maximum sentence awarded by the trial Court was 2 years. The Appellate Court confirmed the judgment of the trial Court. On revision being preferred, this Court acquitted the accused of the offence under Section 341 IPC and while maintaining conviction under Sections 324 and 326 IPC sentenced the accused to the period already undergone i.e. about 5 months. Evidently, the facts and circumstances of this being entirely different that those involved in the instant case the Babu Lal’s case is also of no assistance to the appellants.
Lastly, in Kajod’s case (supra) the accused was held guilty for having committed offence under Sections 323, 325 and 326 IPC and the maximum term of sentence awarded to the accused was 2 years. The Appellate Court upheld the judgment of the trial Court. In revision petition, this Court while maintaining conviction and enhancing the amount of fine imposed, sentenced the accused to the period already undergone i.e. more than 15 days. This case also has no application to the facts and circumstances of the present case.
12. Taking into consideration the entire facts and circumstances of the case, the manner in which the incident took place, the weapon of offence used in the commission of offence, the parts of the body of two injured selected for inflicting injuries and the nature of injuries sustained by them, I do not consider it appropriate to sentence the appellants to the term already undergone by them i.e. only 15 days. However, keeping in view the fact that the appellants have been facing trial for last about 19 years. I feel that it would be too hars to send, the appellant behind the bar for 3 years and, therefore, some leniency be extended. The ends of justice would be met if the appellant is sentenced to a period of one and half years.
13. In the result, the appeal is partly allowed. The conviction of the appellants under Sections 326 and 324 IPC is maintained and the sentence of 3 years awarded to them for offence under Section 326 IPC is reduced to one and half years. The sentence awarded to the appellants under Section 324 IPC and remaining part of the judgment of the trial Court shall remain intact. The substantive sentences shall run concurrently. The accused appellants are on bail. Their bail bonds stand cancelled. They are directed to surrender themselves before the trial Court to undergo the sentences awarded to them. In case the accused appellants fail to surrender themselves the trial Court shall initiate proceedings in accordance with law for their arrest and to send them to jail for serving out remaining part of the sentences as awarded by the trial Court and confirmed by this Court.