- (1.) THIS appeal arises against the judgment date 14. 9. 79 passed by learned Addl. Sessions Judge, Udaipur in Sessions Case No. 39/79 by which he convicted and sentences the appellants u/s 323 IPC to 9 months' R. I. and a fine of Rs. 300/-
(2.) THE incident is alleged to have taken place on 6. 11. 78. while the report came to be lodged on November 12. 1978 at Police Station Dekariya, District Udaipur. THE prosecution case, as given out in the report is that Bhoma had come to village Taloi Phalan Koop, where the residence of his sister Smt. Chunni lies. It is alleged that Bhoma had brought a transistor radio which belonged to the accused appellant Vena Ram. Some altercations took place all of a sudden and the accusation against the accused- appellants is that they gave beating to Bhoma Ram with fists and kicks. On intervention of Smt. Chunni the sister of Bhoma Ram the beating is alleged to have been stopped by the accused. Bhoma Ram is said to have did next day. However, no attempt was made to lodge any report at the police station either by Bhoma Ram or by his sister Smt. Chunni or any other person who was alleged to be there. No injury report was got prepared and no medical aid is said to have been sought from any Medical Officer. THE report came to be lodged after six days of the incident. After investigation of the case, police submitted charge-sheet against the accused persons. The learned District and Sessions Judge framed charge u/s 304/34 IPC against each of the accused-appellants. After conclusion of the trial. by The learned District and Sessions Judge acquitted the accused appellants from the charge u/s 304/34 IPC but convicted and sentenced them as stated above. State has not preferred any appeal against the acquittal of the accused for the charge u/s 304/34 IPC. I need not state the facts in details as the learned counsel for the appellants has not contested the conviction of the appellants u/s 323 IPC. However, I have also gone through the judgment of the learned trial court as well as the statements of the eye witnesses of the incident. After going through the statements of the witnesses, I am fully convinced that the finding of the trial court regarding conviction of the appellant u/s 323 IPC is justified. Learned counsel for the appellant has vehemently argued that the conviction of the appellant is u/s 323 IPC only and there is no injury report, though Bhoma Ram had enough time to get the injuries examined by a Doctor. The incident is alleged to be all of a sudden and that too on a petty matter. The learned counsel, therefore, contends that looking to the facts and circumstances of the case, it is a fit case in which the benefit of probation u/s 4 should be granted to the accused-appellants.
(3.) THE learned Public Prosecutor, though opposed this request but not so seriously. I have considered the arguments made by the learned counsel for the appellant. The incident is of 1. 1978 and more than 11 years have passed since then it appears that Bhoma Ram, deceased the appellant are close relatives and incident took place on a petty matter all a sudden. No weapon was used and only kicks and fist blows are said to have been given. There is no injury report on the record. The two appellants are poor Agriculturists. There is no previous conviction against them. Thus, Looking to all the fact and circumstance of the case, including the nature of the offence and the character of the effenders. it is expedient to release the appellants on probation of good conduct and instead of sentencing them at once to any punishment, I direct that they be released on entering into in the sum of Rs. 5,000/- with one surety to the like amount to satisfaction of the trial court with the stipulation to appear and receive sentence when called upon during the period of one year and in the meantime to keep the peace and be of good behaviour. The appellants are on bail and two months' time is granted to them to submit the requisite bonds as stated above. In case they fails to submit the requisite bonds, they will undergo the sentence awarded by the learned trial court. . ;