JUDGMENT
V.S. Dave, J.
1. This is an appeal against the judgment of Sessions Judge Jhalawar, dated January 15,1982 convicting the accused-appellants as under:
Jagdish Under Section 326, IPC 3 years' R.I. and a fine of
Rs. 600/-. in default thereof
9 months' R.I.
Under Section 323, IPC 1 month's S. I. and a fine of
Rs. 100/- in default thereof
10 days' S I.
Under Section 323/34, IPC 15 days' S.I. and a fine of
Rs. 50/- in default thereof 5 days' S. I.
Prahlad Under Section 325, IPC 2 years' RI. and a fine of Rs.
500/- in default there of 6 month's R.I.
Under Section 323, IPC 1 month's S.I. and a fine of
Rs. 100/- in default thereof 10 day's
S.I.
Under Section 323/34, IPC 15 day's S.I. and a fine of
Rs. 50/- in default thereof 5 day's S.I.
2. Brief facts giving rise to this case are that a report Ex. P 1 was lodged by one Mansingh son of Balvant Singh at Police Station, Jhalawar at 11.45 a.m wherein it was mentioned by him that today morning at about 11.00 a.m. he protested to Bheru as his cattle had damaged his maize crop. He had warned him that he should keep them properly tied else he will take them to the cattle-pond, Bheru thereupon gave him filthy abuses and to retaliate in the evening at about 5-6 p.m. when he was sitting on stone-slabs near outpost and was busy talking to Jaswant Singh and Gani Forest Guards. He accompanied by 7 other accused who were armed with various weapons arrived there. Bheru called him with bad names and exhorted that he should be beaten. Saying so Bheru gave one blow by an axe on his left parietal region. Balchand also gave a Fursi blow on his head which hit him on the right temporal region. Jagdish inflicted Farsi blow on the left side back. Prahlad gave injuries by Lathi. Harji came to his rescue but he too was beaten. His son-in-law Kalian Singh also arrived who too was beaten by Balchand, as a result of which he fell down. Then Jaswant Singh, Hemraj etc. took them to Suket and from there they were taken Co the Police Station where the report was lodged. On receipt a case for offence under Sections 147, 148, 149 and 307, IPC was registered and investigation commenced. The complainant-injured was got medically examined by Medicolegal Jurist of Government Hospital, Jhalawar. Some of the injuries on the person of Man-smgh and Kalian Singh were found to be grievous, The police after investigating the case submitted a charge-sheet against as many as 7 accused persons, namely, Balchand, Jagdish, Bhagchand, Devilal, Prahlad, Chhotia and Bheru for offence Under Sections 147, 323, 325 and 307 read with Sections 149, IPC. Accussd were committed to the Court of Sessions where charges were read over to the accused to which they denied and claimed to be tried. The prosecution examined 9 witnesses in support of its case. Accused did not lead the defence evidence Learned Sessions Judge acquitted Devilal, Bhagchand and Chhotia of all the offences and cancelled their bail bonds. He how ever, convicted the remaining four accused namely, Bheru, Prahlad, Jagdish and Balchand. Bheru and Balchand given benefit of Section 360, Cr. PC. While the accused-appellants Jagdish and Prahlad have been convicted and sentenced as mentioned above. Aggrieved by the aforesaid conviction and sentence this appeal preferred.
3. It is contended by the learned Counsel for the accused-appellants that the trial court has erred in not taking into consideration that as per FIR accused Jagdish gave a Farsi blow on the left side of the back of PW 1 Mansingh but no injury has been found by sharp edged weapon on that place and since the injury is not corroborated same cannot be attributed to Jagdish, his conviction therefore, is bad in law. It is submitted that FIR itself has been lodged by Mansingh and it cannot be accepted for a moment that he will not: mention about particular injuries before the police which infact never existed. Thus, he was either not an eye witness or makes deliberately a false statement Similarly Kalian Singh is alleged to have received only one injury on his back which is attributed to Prahlad. While on record Prahlad and Chhotia both have been attributed one blow each on the back of Kalian Singh by lathi and there being only one injury it is difficult to say as to who is the author of that particular injury. It is then submitted that adverse inference should be drawn against the prosecution for not examining material witnesses like Gani, who, according to the FIR, saw the entire occurrence. Number of persons are alleged to have arrived on the spot but none has been examined. It is then submitted that in the circumstances of the case when the incident took place because of grazing of the crop and consequently using filthy abuses which resulted in this quarrel in which the complainant party sustained injuries and, therefore, there is lack of intention to murder and offence at best can be under Section 304B, IPC instead of offence under Section 326, IPC against the accused Jagdish.
4. Learned Public Prosecutor supports the judgment of the trial court and submitted that the accused persons had gone after deciding that they have to take revenge from the complainant party who had deprived them from grazing their cattle in their field and threatened to take cattle-pond. It is submitted that there is over-whelming evidence on record to the story given in the FIR and the medical evidence also corroborates the same. It is submitted that there is no warrant for interference in the findings of the trial court.
5. I have considered the rival contentions and have perused the entire record.
6. PW 1 Mansingh has stated about the incident in details in his examination-in-chief. According to him Bheru gave an axe blow on his head and Raichand gave blow with a Farsi According to him Jagdish gave a blow on his left shoulder and Prahlad injured his little finger. Prahlad and Chhotu gave multiple injuries on the person of Kalian Singh. In cross examination he admits that he was formarly serving in police but denies the suggestion that sine then he and Kalian have forcibly grabbed the land of Jagdish, Prahlad and Chhotu and turned then out of the village. He how ever, admits that the land belonging to these persons has not been cultivated for five years. He denies the suggestion that in the morning he and Kalian have given beating to Bheru and prevented him forcibly from going to the police station for lodging the report He also denied the suggestion that it was he and his party who had inflicted injuries on the accused. Harji PW. 2 has also given almost similar statement but he does not know as to why the quarrel started. He also does not know that Prahlad caused any injury to Kalian. He denies the suggestion that Mansingh had forcibly grabbed the land of Bheru. Jaswant Singh PW 3 has stated that on the person of Mansingh Bheru had given an axe blow and then Balchand gave a Gandasi blow Jagdish gave a Gandasi blow on the back and Prahlad on the finger. According to him Kalian was beaten by Balchand and Prahlad. He how ever, admits in cross examination that Bheru had filed a suit against Mansingh for possession of the land. He how ever, denies that they are in forcible possession of the land belonging to Bheru etc. He also denies the suggestion that is was because of the dispute of the land that the incident took place. Hemraj PW 4 has been declared hostile and PW 5 Ghasilal also does not say any thing about the main incident. PW 6 is Doctor According to him the complainant injured persons received the following injuries:
Mansingh:
1. Incised wound 2.5 x 1/4″ x bone deep on scapular region left side back.
2. Incised wound 4-1/4 x 1/2″ x bone deep on forehead.
3. Incised wound 2 x 1/4″ x bone deep on right side of forehead and extending upper towards scalp.
4. Swelling on finger of left hand.
Kalian Singh:
1. Lacerated wound with swelling 1-1/2 x 1/4″ x facia deep on left side scalp.
2. Bruise 8 cm x 3 cm on back on lower side of left scapula region
Harji:
1. Lacerated wound 2.5 cm x 0.5 cm x muscle deep on forehead near midune.
2. Lacerated wound 2 cm x 0.5 cm x muscle deep on right side of scalp.
3 Swelling on wrist right side.
4. Swelling on right arm.
7. On X-ray injury No. 1 on the person of Mansingh was found to be grievous as there was fracture of scapula bone. Similarly injury No. 2 on the person of Kalian Singh also was grievous as there was corresponding fracture of 7th and 8th ribs. PW 7 Kalian Singh has also narrated the story in details and has attributed injury No. 1 on Mansingh to accused Jagdish, his own injury to Prahlad PW 1 Chaturbhuj and PW 9 Bhanwarlal are police officials who are connected with the investigation of the case. They prepared the documents which also corroborate the story that maize crop of the complainant was damaged. A complete reading of the prosecution evidence is thus corroborated by the medical evidence on record, leaves no doubt in my mind that the prosecution has succeeded in proving its case beyond all manners of reasonable doubt and has established that grievous injury by sharp edged weapon on the person of Man Singh has been inflicted by accused-appellant Jagdish, while grievous injury by blunt object on the person of Kalian Singh has been caused by the Prahlad and they have rightly been convicted by the trial court for offence under Sections 326 and 325 IPC respectively
8. Now remains the question of sentence. The appellants are agriculturists and the incident has taken place in an impulsive moment and there was no premeditation about the same. The trial court has acquitted the accused persons of offence under Sections 147 and 148 IPC. The trial court has also come to the conclusion that it was an unfortunate incident which took place suddenly and it was for this reason that he did not held the accused guilty of offence under s 307 IPC and also give benefit of Section 360 Cr PC to other two co-accused in the case, namely, Bheru and Balchand, of course formerly on the ground of old age and later on the ground of tender age. Still the circumstances have important bearing while considering the case of the present acccused-appellants for awarding the sentence The incident has taken place 11 years before and this appeal is pending for last 7 years, in my opinion, in the circumstances of this care it would be travesity of justice to send the accused-appellants to jail once again to serve out the remaining sentence, particularly when they have remained in custody for quite some time during investigation which is more than a month and a half. In view of the fact that the period for which the accused remains in custody during investigation has to be given set off as it is counted towards the period of sentence imposed against the accused under Section 428, Cr.PC. Thus for all purposes the accused appellants had remained in jail for more than a month and a half and in my opinion ends of justice would meet in case the substantive sentence of imprisonment is reduced to the period already undergone by each of the accused-appellant and instead of that sentence of fine is enhanced.
9. As a result of the aforesaid discussion this appeal is partly allowed. The conviction of the accused-appellant Jagdish is maintained for offence under Sections 326, 323 and 323/34 IPC. His substantive sentences on all these counts are reduced to the period already undergone and sentence to fine imposed under Section 326 IPC is enhanced from Rs. 600/- to Rs. 2600/-. His fine of Rs, 100/- under Section 323 and Rs. 50/- under Section 323/34 IPC is maintained Thus, in all he shall pay a fine of Rs. 2750/- and in default of payment of fine he shall undergo 3 months’ simple imprisonment. The conviction of accused-appellant Prahlad is maintained for offence Under Sections 325, 323 and 323/34 IPC. His substantive sentences on all the counts are reduced to the period already undergone. Sentence of fine of Rs. 500/- for offence under Section 325 IPC is enhanced to Rs. 2500/-. Fine of Rs. 100/- for offence under Section 323, IPC and fine of Rs. 50/- for offence under Section 323/34 IPC is maintained. He shall thus, in all pay a fine of Rs 2650/-, in default of payment of fine he shall undergo 3 months’ simple imprisonment.
10. Six months’ time is granted to the appellants to deposit the fine. Out of the fine deposited by the appellants Rs. 2500/- shall be paid to the complainant-injured Mansingh as compensation, Rs. 2400/- shall be paid to the complainant-injured Kalian Singh as compensation and Rs. 100/- to injured Harji as compensation. The learned Sessions Judge shall ensure the payment of aforesaid account to the injured persons. The accused-appellants are on bail. They need not surrender to their bail bonds and the same are discharged. .