- (1.) THIS appeal is directed against the judgment dated 24thof January, 1980. passed by the Sessions Judge, Banswara by the learned 5 Sessions Judge, convicted the appellants under section 307 I. P. C. and awarded a sentence of 2 years' rigorous imprisonment,and a fine of Rs. 50/- each and default of payment of fine to further undergo one month's simple imprisonment
(2.) THE incident which led to the prosecution of the appellant along with one Bheru took place at about 3. 30 P. M. in a fair held at Nanakatwala. P. W. 1 Veer Singh along with his friend Nathulal and Kanhaiyalal had gone to see the fair at about 12 in the noon. At about 3. 30 P. M. accused Bherusingh caught hold of the collar (fent) of the complainant by asking "why you/did the same thing with him", whereupon Nathulal asked the accused Bherusingh not to raise quarrel, but in the mean time accused Range and Koja started throwing stones towards them which hit Nathulal on his head and back. Accused punja tried to inflict injury by sword to Nathulal, which hit on his left hand. Nathu raised his left hand and caught that sword, but Punja snatched the sword. Accused Bherusingh and Ranga inflicted injury by lathi and stones. THE report of this incident was lodged by P. W. I Veersingh at Police Station, Bhukia, and on the basis of which case under section 325, 324, 323 and 160 I. P. C. was registered and police after necessary investigation, presented the challan in the Court of Munsif and Judical Magistrate, Frist Class, Kushalgarh, who committed the accused for trial to the Court of Sassions Judge, Banswara. THE prosecution, in support of its case, examined 8 witnesses, out of which P. W. I Veersingh, P. W. 2 Nathulal and P. W. 3 Kanhaiyalal are the 3 eye-witnesses. THE accused, in their defence, produced injured witness Champa. THE case of the defence is that Champa, along with accused Bhursingh and Ranga, had gone to see the fair and at that time Nathulal inflicted a sword injury on the neck of Champa and on receiving the injury Champa fell down. Several persons collected there and gave beating to Nathulal, and in the mean while Bherusingh and Ranga took away Champa to the Police Station and lodged the first information at the police Station. Case relating to that incident was also pending before the learned Sassions Judge when he decided the present case. Counsel for the appellant as well as the public prosecutor are not in a position to inform the Court what has happaned in that case. THE learned Sessions Judge after trial believed the prosecution version and placed reliance over the testimony of the three eye-witnesses P. W. 1 Veersingh, P. W. 2 Nathulal, P. W. 3 Kanhaiyalal and the other witnesses produced by the prosecution and found the present appellants guilty under section 307 I. P. C. but the learned Sessions Judge, however, acquitted Bherusingh as the witnesses have not ascribed any part to accused Bherusingh. I have gone through the statements of P. W. 1 Veer Singh, P. W. 2 Nathulal and P. W. 3 Kanhaiyalal. P. W. 1 Nathulal has stated that he had gone to also the fair with Kishanlal and in fair Nathulal also met him. At about 330 P. M. accused Bherusingh, Punja, Range along with Champa met him. Accused Bherusingh caught hold of his from his collar and asked him what is the matter. Bherusingh asked Champa, Ranga and Punjab to give a besting to him, upon which Punja, who was armed with sword, tried to hit him, but he was obstructed by Nathulal. who asked them " why you are quarrelling and if you have any dispute, then go to the police for settlement. " Upon which, Ranga asked Nathulal "why you are intervening, who are you?" Thereupon, Punja accused inflicted injury with sword on the hand of Veersingh. Accused Ranga inflicted lathi injury on the head of Nathulal. upon which, the witness raised a cry and the police came. The accused, thereafter, ran away similar is the statement of P. W. 2 Nathulal, who had corroborated the statement of P. W. 1 Veersingh. P. W. 3 Kanhaiyalal has supported the incident, but he was doubtful about the presence of accused Punja. All the witnesses have been cross-examined by the accused's counsel, but nothing slicked from their cross-examination from which it can be gathered that the witnesses are not stating truth. On a careful scrutiny of the statement of those witnesses, I am of the opinion that the witnesses are speaking truth and the incident took place in the manner stated by these witnesses in my view, the learned Sessions Judge has not committed any illegality in placing reliance over the testimony of these witnesses produced by the prosecution. Now comes the point what offence has been committed by the accused persons. The learned Sessions Judge has convicted these appellants under section 307 I. P. C. learned sessions Judge in its Judgment has given specific finding that the incident took place without any premeditation at the spur of the moment, and both the parties received injuries and, therefore, it was a case of sudden fight, which converted into a free fight and each accused can be convicted for inflicting injuries on the person of the injured, P. W. 8. Veersingh. According to Dr. P. W. 2.-Fazarual Hussain, the injuries found on the person were all simpls in nature. The appellant Ranga was armed with sword who inflicted injury on the hand of P. W. 1 Veersingh and that injury was found to be simple in nature by the doctor. So far as other injuries on the person of Veersingh is concerned, those are by blunt weapon and were caused by Punja by lathi, and are simple in nature. If the appellant would have intended to kill the injured Veersingh, then they have an sample opportunity to inflict much more injury and not injuries which he has received. Ranga who was armed with sword gave only one blow on the hand, and, therefore, the present case does not fall with the purview of section 307 I. P. C. and the learned Sessions Judge was not right in convicting the accused persons under section 307 I. P. C. In my view, the appellant Ranga has committed an offence punishable under section 324 I. P. C. while Punja has committed an offence punishable under section 323 I. P. C. The next contention raised by the learned counsel for the appellant is that looking to the nature of offence and the fact that the incident took place at the spur of the moment without any premeditation and the appellant are not previous convict, they may be given benefit of the probation. Looking to the facts and circumstances of the case, I think it proper to give the benefit of probation to the appellant. The result of the above discussion is that the appeal filed by the filed by the appellants is partly allowed, the appellants are acquitted under section 307 I. P. C. , but the appellants Ranga is convicted under section 324 I. P. C. and accused appellant Punja is convicted under section 323 I. P. C. but instead of sentencing them, I direct that the appellants shall be released on probation, provided, they furnish personal bonce in the sum of Rs. 5000/-each and a surety bond in the like amount to the satisfaction of the Session Judge, Banswara, undertaking to appear and received sentence as and when called upon to do so within a period of two years and in the mean time to keep the peace and be of good behaviour. The appellants are allowed 2 months' time to file the aforesaid bonds. . ;