JUDGMENT
V.S. Dave, J.
1. This appeal is directed against the judgment of learned Sessions Judge, Jhalawar, dated 18th Sept., 1981, whereby he convicted the accused-appellant for offence Under Section 326 and 324 IPC and sentenced to undergo 3 years’ rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo 3 months’ rigorous imprisonment for the aforesaid offences respectively. Both the sentence were directed to run concurrently.
2. One Poora (PW 1) injured-complainant lodged an FIR at the police station, Piwada at 8.00 p.m. on 10th September, 1978 alleging that his daughter Geeta was married to the accused-appellant, Mangilal about a decade earlier but after the marriage the accused appellant was ill treating her and giving casual beating also. It was alleged that due to the harassment she voluntarily left her husband’s house and came to the house of the complainant father about 20 days prior to the date of occurrence. On the date of occurrence, i.e. on 10th September. 1978 at 4.00 p m. when the complainant Poora went to his field for seeing maize crop accused-appellant Mangilal who was lying in ambush with a naked sword, attacked him as a result of which be sustained 3 injuries on his person. On his raising an alarm Onkarlal and Deva are alleged to have appeared on the scene of occurrence who are also cited as eye-witnesses. On receipt of the report the police registered a case for offence Under Section 307 IPC and investigated the case. After completing the investigation a charge-sheet for offence Under Section 307 IPC was submitted against the accused appellant. He was committed to the court of Sessions for trial where on 5th November, 1979 a charge for offence Under Section 307 IPC was read over to him to which he denied and claimed to be tried.
3. The prosecution examined as many as 13 witnesses in support of its case The accused-appellant how ever, did not examine any witness in defence. The learned Sessions Judge, when the evidence was closed and the statement of the accused appellant was to be recorded Under Section 313 Cr. PC, realised that charge framed as such was not enough and, therefore, re-framed the charges on 25th August, 1981. The accused-appellant pleaded not guilty to the additional charges and the learned Sessions Judge observed in his order sheet that P.P. does not want to recall any witness for further examination nor the accused wants to re-call any witness for further cross-examination. He heard the arguments on the same day and posted the case for judgment. He acquitted the accused appellant for offence Under Section 307 IPC but convicted him for offence Under Sections 326 and 324 IPC. Aggrieved by his conviction the appellant has preferred this appeal.
4. The learned Counsel for the appellant submits that none of the eye-witnesses mentioned in the FIR, namely, Onkar and Deva corroborated the statement of Poora injured in the manner alleged by him. It is submitted that the accused appellant was father-in-law who had forcibly brought his daughter, i.e., wife of the accused appellant and he had come to take her back but Poora did not allow his wife to go with him and on the contrary he was giving beating. In these circumstances it is submitted that even if the accused inflicted injuries the offence would not travel beyond Section 335 IPC, i.e, foe causing grievous hurt as a result of sudden and grave provocation It is submitted that other eye-witnesses have been examined in the casa by the prosecution who had not been named in the FIR, namely, Rai Singh, Bhuwana and Amra. It is also submitted that alteration of the charge in the manner done by the learned Sessions Judge has caused prejudice to the case of the accused appellant and no proper opportunity has been given to him for cross examining the Doctor regarding the case Under Section 326 IPC and the compliance of Section 235(2) Cr. PC has also been done mechancally. Lastly it is submitted that in the circumstances of the present case where there is very minor fracture sustained by the complainant and that the incident had taken place 11 years before, it would be a travesity of justice to send the accus ed-appellant to jail again, particularly when he has already remained in jail for about 40 days during investigation and after the judgment passed by the trial court.
5. The learned Public Prosecutor has supported the judgment of the learned trial court and submits that son-in-law had no right to have gone with a sword to bring his wife by use of force. Even if his wife has been taken away against his will he had enough time to take recourse to courts and get her custody. His submission is that circumstance of the case does not warrant reduction of the sentence.
6. I have carefully considered the rival contentions and have perused the entire record.
7. Poora PW 1 has stated in his statement that his daughter Geeta was being illeterated by her husband, accused-appellant, and, therefore, he had taken a customary divorce and returned to his house. Accused annoyed by this came armed with a sword and caused injuries on his person. The incident was seen by Onkarlal and Deva He submitted that accused had attempted to take her once before also when his wife had sustained injuries which fact he has mentioned in cross examination. It was suggested to him that the accused had come to take away his wife and since she was being beaten one Bheru came with a sword and when he intended to cause injuries on the person of the accused the complainant injured tried to save him, as a result of which he sustained injury. Out of the eye witnesses mentioned in fee FIR Onkar has stated that when he reached the spot he found Poota lying on the ground and the accused had run away. Almost similar is the state-merit of Deva. They how ever, have stated that they had seen the accused-appellant running with a sword. Accepting the contention of the learned Counsel that these two witnesses do not support the prosecution story to the extent that they could section the incident, but this fact also connot be lost-sight of that they can be termed as witnesses proving the circumstances in which the injured Poora was lying and he could sustain the injuries Genesis of the story of course, these two witnesses cannot say, but their mentioning about running of the accused with a sword lend support to the story given by Poora which is corroborated by the FIR which has been lodged without loss of time and also by the statement of Dr. C K. Shrivastava. PW 3 Dr. Shriyastava who had examined the complainant within 5 to 6 hours of his sustaining the injuries. Thus, in my opinion, the trial court was not in error when it came to the conclusion that it was the accused who had caused injuries on the person of the complainant. How ever, cannot approve the manner in which the charge has been amended at the feg end of the trial on 25-8-1981 on which date the arguments have also been heard and the judgment has been reserved. This sort of amending the charge can easily be infered to have been framed after making up the mind for recording the conviction Under particular offences; and filling the lacuna left by the prosecution. Recording the statement of the accused on the same day hearing the final arguments and reserving the judgment all show that giving the sufficient time to the accused for thinking about the re-calling the witnesses for further cross-examination, was merely an idle formality. I would have remanded the case for that purpose from that stage but no useful purpose would be served after 11 years of occurrence, particularly in view of the fact that even such a remedy is curable Under law unless it is prayed that serious prejudice has been caused to the accused which argument has not been advanced in the instant case Similarly there was no necessity in the instant case for recording separate conviction Under Section 324 IPC and passing a separate sentence when the accused had already been convicted and sentenced for offence Under Section 326 IPC. Despite the above infirmities in the judgment in substance I do not find any material to interfere with the order of conviction for offence Under Section 326 IPC.
8. So far as the question of sentence is concerned, the entire circumsances of the case are such when it appears that some alteraction preceded the causing of the injuries as it is a dispute between father-in-law and son-in-law arising out of the ill-treatment by the husband on his wife and that the court has already come to the conclusion that the accused had no intention to cause death of the complainant and the injuries only were made to chestise, in my opinion ends of justice would meet if the sentence is reduced to the period already undergone which comes to about 40 days in the instant case and by enhancing the amount of tine imposed.
9. As a matter of aforesaid discussion I partly. allow the appeal, maintain the conviction of the accused appellant for offence Under Section 326 IPC and reduce the substantive sentence of imprisonment to the period already undergone but increase the fine from Rs. 500/- to Rs 2000/-. On realisation of the fine Rs. 1500/- shall be paid to the complainant Poora as compensation for the injuries he sustained at the hands of the accused-appellant Four months time is granted to the accused-appellant for depositing the fine else the the trial court shall proceed to realise the fine in accordance with law and ensure the payment of compensation to the complainant injured. No separate order requires to be passed for offence Under Section 324 IPC in the circumstances mentioned above as the substantive sentence has already been reduced to the period already undergone.