K.Narayan - (1.) -Chhedua and seven others convicted by the Ilnd Additional Sessions Judge, Fatehpur, by his judgment and order dated 22.5.1979 on charges under Sections 147, 323/149, I.P.C. Accused Chhotey Lal and Bhagwan Deen were sentenced to pay a fine of Rs. 150 under Section 147, I.P.C. and others Rs. 100 under Section 323, I.P.C. and in default of payment of fine they were sentenced to rigorous imprisonment for nine months, the remaining accused were sentenced to rigorous imprisonment for one year and six months under Section 147, I.P.C. and one year's rigorous imprisonment under Section 323, I.P.C.
(2.) I have heard learned counsel for the appellants and the learned A.G.A. Before proceeding further it may be mentioned that the sentence of imprisonment in default of payment of fine, has been awarded by the learned Sessions Judge without looking to the relevant provisions in that behalf. Section 65, I.P.C. which limits the sentence in default of payment of fine. The sentence is provided as under: 'The term for which the court directs the offender to be imprisoned in default payment of a fine shall not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence if the offence be punishable with imprisonment as well as fine." The maximum sentence provided for the offence under Section 147, I.P.C. is two years and under Section 323, I.P.C. is one year. The order of the learned Sessions Judge directing the imprisonment for nine months and six months in default of payment of fine to Chhotey Lal and Bhagwan Deen, obviously exceeds one fourth of the term of imprisonment which is the maximum provided for the offence and cannot be said to be a lawful sentence.
(3.) COMING to the merits of the appeal on facts, it may be mentioned that the proceedings had commenced on a first information report lodged by one Jhallar on 20.3.1974 at 18-20 hours about an occurrence which took place at 4.00 p.m. on the same day. The allegations were that there was some dispute as to the extent of shares in the land held jointly by the two groups and as a relation for the same, the accused persons, numbering 8, had gone to the house of the informant and his brother who was armed with lathi etc., had assaulted Lallu, the brother of Jhallar. The first information report was taken as one under Section 308, I.P.C. It is very clear from the nature of the prosecution case that there was nothing in the first information report to indicate that there was any mind with any person amongst the accused to cause death and unless there is some action relating to culpable homicide, there would be no application of the provisions of Section 308, I.P.C. The nature of injury as was shown is very evident of the fact that the conviction has been made under Section 323, I.P.C. As regards the eye witnesses, it will be suffice to say that P.W. 1 Shiv Charan and P.W. 2 Bundi were both named in the first information report and they had come with a clear word that they had not seen anything. Though an effort was made by the prosecution to challenge them by way of cross- examination but apart from the procedural irregularity therein, nothing material could be made out in the so-called cross-examination which could give an impression that they had seen anything in the occurrence. Any statement given to the Investigating Officer, even if it was made, though it has been denied by the witnesses, would not reach the status of evidence before a court of law.;