TIBREWAL, J. - (1.) THIS is a joint appeal by all the four convicted accused persons who were tried in the court of the learned Sessions Judge, Balotra in sessions case No. 12/79. The learned trial court, after completion of the trial convicted the appellant Jaikan under section 307, I. P. C. and sentenced him to four years' R. I. and a fine of Rs. 1000/-, while the remaining appellants were convicted under section 325/34, I. P. C. and were sentenced to two years' R. I.
(2.) THE prosecution case is that on 19. 11. 78 P. W. 3 Panchya and P. W. 2 Ananda were in their 'dhani'. THEn all the four accused persons came there and assaulted Ananda with their respective weapons which they had at that time. A report of the incident was lodged on the same day by P. W. 3 Panchya and the police after registration of the case did all the formalities. THE injuries of injured Ananda were examined by P. W. I Rajendra Singh Mehta. As per statement of doctor, the injured had sustained 24 injuries. THE doctor found all the injuries except injury no. 4, to be simple in nature. Injury no. 4 is an incised wound on the right lower 2/3rd of forearm and this injury was found to be grievous on x-ray examination. THE doctor further opined that all the injuries sustained by the injured were not sufficient in the ordinary course of nature to cause his death. The learned counsel for the appellant has not challenged before me that the appellants, had assaulted the injured Ananda, but his contention is that the conviction of the appellant Jaikan under section 307, I. P. C. was not sustainable, after the categorical opinion of the doctor that the injuries sustained by the injured were not sufficient to cause his death in the ordinary course of nature. His contention is that Jaikan could have been convicted only under section 326, I. P. C. The second contention of the learned counsel for the appellant is that the incident is an old one and about 12 years have passed since then, as such it would not be just and proper to send the accused in jail after such a long period and in lieu of the reduction of the sentence of imprisonment, amount of fine be increased and compensation be awarded to the injured. I have given my thoughtful consideration to the aforesaid contentions made by the learned counsel for the appellants. The accused persons and the injured are of the same village and were residing in the same locality. No immediate cause of the incident has come on the record and it is alleged that the assault was given to Ananda on account of previous enmity. If the accused persons had intended to commit murder of Ananda then there was no impediment in the way and he could have used their weapons with much force and caused such bodily injury which was sufficient to cause his death in the ordinary course of nature. Admittedly, there was no such intention on the part of the accused persons to commit murder of injured Ananda. After the categorical statement of the doctor, it is evidenced that the injuries were not sufficient to cause death of Ananda nor it was likely to cause death. When there was no such intention to commit murder and when the injuries were not likely to cause death of injured Ananda, I am of the view that the appellant Jaikan should not have been convicted under section 307 I. PC. His conviction under section 307, I. P. C. is not sustainable and same may be set a side. However his conviction is altered to one u/s. 326, I. P. C. as one of the injuries caused by him has been opined to be grievous in nature and that was by a sharp adged weapon. The conviction of the other appellant under section 325/34, I. P. C. is also maintained. Now the question remains about the sentence. All the accused persons and the injured are of the same village. The incident is a very old one and 12 years have already passed since then. During such a long period the parties must have percepted as no further incident has been brought to my notice which took place between the parties. If the accused appellants are sent to jail after such a long period, it will cause great in justice not only to the appellants but also to the family members and the relations between the co-villagers is further likely to get strained the accused appellants have remained in jail for considerable period i. e. more than one month, as pointed out by the learned public prosecutor. In my view, the sentence of imprisonment undergone by each of the appellants shall meet the ends of justice. However, in lieu of reduction of sentence of imprisonment the sentence of fine should be increased upon them.
(3.) CONSEQUENTLY, the appellant Jai Kan is acquitted from charge under section 307, I. P. C. and he is convicted under section 326, I. P. C. and is sentenced to the period already undergone by him and to pay a fine of Rs. 2000/ -. The conviction of the appellants Kesa, Birda and Sona under section 325/34 is also maintained and they are sentenced to the period of imprisonment already undergone by them and to pay a fine of Rs. 1000/ -. In default of payment of fine, the appellant Jai Kan shall undergo R. I. for six months, while the remaining appellants shall undergo R. I. for four months. Three months time is granted for depositing the fine. In case the fine is deposited by the accused persons, the entire amount shall be paid to the injured Ananda and the learned trial court is directed to take steps to make the said payment. The appellants are on bail, hence they need not surrender. Their bail bonds are discharged. The appeal is partly allowed as indicated above. . ;