N. K. JAIN, J. - (1.) THIS appeal is directed against the judgment of learned Sessions Judge, Merta dt. 26-6-79 whereby he convicted and sentenced the appellants as follows with a direction that all the sentences shall run concurrently: - Sanwata Ram, Ramkaran, Jeetu Ram, Moolaram : U/s. 148 IPC and sentenced to 1 year's R. I. and u/s. 326 read with Sec. 149 IPC sentenced to 3 year's R. I. Deo Karan : U/s. 148 IPC and sentenced to 1 years' R. I. and u/s. 307 IPC. sentenced to 5 years' R I. and u/s. 326 IPC sentenced to 5 years' R. I.
(2.) BRIEF facts of the prosecution case are that one Tejaram lodged a report with an allegation that in the night intervening 11th and 12. 07. 1978 while he and Dala Ram were sleeping in the Gadal. Five accused persons gave beating to Dalaram with axe and Pharsies, as a result of which Dala Ram had received injuries. On this police registered a case and started investigation. The injured was medically examined by Dr. Pratap Singh who found five injuries and prepared injury report Ex. P. 2. The accused appellants were arrested and at the instance of accused Pharsies and Kulharies were recovered. After usual investigation police submitted a challan before the learned Magistrate who committed the case for trial to the court of learned Sessions Judge. The accused appellants pleaded not guilty and claimed trial. In support of its case, the prosecution has examined 11 witnesses. The accused appellants in their statement u/s. 313 denied the charges and in defence examined two witnesses. On conclusion of trial the learned Sessions Judge found the case well established against the accused persons and convicted and sentenced them as mentioned above. Hence the accused appellants preferred this appeal. Mr. M. M. Singhvi, learned counsel for the appellant does not challenge the incident but submitted that all the family members have been falsely implicated due to old revelry and the learned Sessions Judge has not appreciated the number of injuries vis-a-vis the number of accused persons. It has also been submitted that the incident is of 11. 07. 1978 so it is not desirable to send the accused appellants in jail. Mr. Singhvi, placed reliance on a decision of the Supreme Court in Naib Singh vs. State of Punjab (l ). Mrs. Chandralekha, learned Public Prosecutor has opposed the appeal. I have heard Mr. M. M. Singhvi, learned counsel for the appellants and Mr. Chandralekha learned Public Prosecutor and perused the record. In this case it is pertinent to note that the learned trial court has recorded in its finding that three eye witnesses have been introduced and false evidence have been fabricated, in view of this finding the testimony of the witnesses on other material should be read carefully and cautiously. PW 9 Tejaram, father of the injured Dala Ram who was sleeping near him has stated that accused Sanwata Ram was armed with Kulhari and the remaining four accused were armed with Pharsies. He has also stated that from one side Dhanna, Bharu and Prabhu reached the place of incident and simultaneously the accused left the place of occurrence. He has not stated anything as to how the occurrence took place and who were the four persons. Thus his statement is of no help. So, the entire case against the accused person rest on the evidence of injured PW 6 Dala Ram who has stated that Deo Karan inflicted blow on his head which was saved by his hand and due to that he sustained injury on his hand. Except this he has not attributed any of the injury to any of the accused. There is nothing on record to show that the four accused appellants have participated in the assault. Five injuries were found on the person of injured Dala Ram whereas 5 persons of the same family have been roped in on the basis of old rivalry which does not appear to be probable. In the absence of any independent witness no case is made out against them. Therefore, the conviction of the accused Ramkaran, Jeetu, Moola Ram and Sanwata Ram cannot be sustained and their conviction u/ss. 148, 326/149 is set aside.
(3.) SO far as accused Deo Karan is concerned, injured PW 6 Dala Ram has assigned only one injury to him and as per PW 4 Dr. Pratap Singh, none of the injury was found on the vital part of the body. The injured PW 6 Dala Ram was sleeping and the accused appellant Deo Karan could have inflicted injuries on the vital part of the body of injured as he had sufficient time if he had any intention to kill the injured. SO, the accused appellant Deo Karan could not be convicted u/sec. 307 and his conviction u/sec. 307 cannot be sustained. PW 4 Dr. Pratap Singh has stated that injury no. 1,2 and 4 were grievous and caused by sharp weapon. Injury no. 5 was simple in nature but. was caused by sharp weapon. Injury No. 5 was also simple in nature though it was caused by blunt weapon but there was no explanation whether any of the accused had inflicted injury by blunt side of the weapon. Even injury no. 1 was grievous in nature which was assigned to accused appellant Deo Karan and it was sufficient to hold liable for the offence, so his conviction u/sec. 326 IPC deserves to be maintained. Since the incident had taken place on l1/12 July, '78, in my opinion, looking to the peculiar circumstances of this" case and in view of the decision of the Supreme Court in Niab Singh vs. State of Punjab (supra) wherein their lordships while maintaining conviction u/s. 326 IPC. held that it is not desirable to send the accused in jail after 13 years and the accused was sentenced to rising of the court with a fine of Rs. 5,000/-, it would not be proper to send the accused Deo Karan again behind the bars after a lapse of about 13 years and sentence already undergone by him will meet the ends of justice and to compensate the injured a fine of Rs. 2000/- is imposed. However, his conviction u/sec. 326 is maintained but conviction u/sec. 307 is set aside. The conviction of remaining accused appellants Sanwata Ram, Ramkaran, Jeetu Ram and Moola Ram is set aside. In the result, this appeal is partly allowed. The conviction of accused Deo Karan u/sec. 148 and u/s. 307 IPC are set aside but the conviction u/s. 326 is maintained. However, the sentence awarded by the learned Sessions Judge is, reduced to the period already undergone and a fine of Rs. 2000/- is imposed to compensate the injured to be deposited within three months from the date of the receipt of the record. This amount will be paid as compensation to the injured Dala Ram and failing which, in default the appellant will serve the remaining sentence awarded to him by the trial court. As all the accused are on bail, they need not surrender and their bail bonds are discharged. .;