JAIN, J. - (1.) THIS criminal appeal is directed against the judgment of learned Additional Sessions Judge, Sirohi dated 28.2.1980 whereby he has convicted the appellant Moti Singh u/s. 148 and sentenced him to two years R.I., u/s. 324 IPC to 1 year R.I., u/s. 323 I.P.C. sentenced him to six months R.I. 324/149 IPC sentenced each of them to one year R.I. 307/149 I.P.C. sentenced him to 7 years R.I. with a fine of Rs. 200/ - in default of payment of fine to undergo further three months R.I. The learned Addl. Sessions Judge has also convicted the appellants Shambhu Singh, Bhanwar Singh, Ratan Singh, Hajra and Shiv Singh u/s. 147 and sentenced them to 1 1/2 years R.I., u/s. 323/149 sentenced each of them to 6 months R.I., u/s. and u/s. 307/149 sentenced them to seven years R.I. with a fine of Rs. 200/ - each, in default of payment of fine to undergo further three months R.I.
(2.) MR . S.R. Singhi learned counsel for the appellants has not challenged the conviction of the appellants except the conviction u/s. 307 IPC and submitted that no case u/s. 307 is made out and none of the accused could be convicted u/ss. 307/149 IPC. He has submitted that as per the prosecution story Moti Singh was armed with an axe but there is no injury of axe on the person of Arjun Singh. If the intention of the accused was to murder Arjun Singh he could have attacked by sharp side of axe which was readily available. As per the finding of the trial court on the basis of evidence the injuries mentioned in Ex. 6 could be caused by blunt portion of the axe. In view of this no case u/s. 307 IPC is made out. He has further submitted that at the best it is a case of free fight and there can be no question of forming an unlawful assembly when both the parties have sustained injuries. He has also submitted that there was no enmity between the injured party and the appellants Moti Singh and Sambhu Singh and the incident took place on the spur of moment and more than 15 years have passed. That apart the parties have entered into compromise stating that they will maintain good relations and peace. He has placed reliance on Wahid Khan Vs. State of Raj. (1), Hari Narain Vs. State of Raj. (2) and Mahesh Chand and Anr. Vs. State of Raj. (3).
(3.) MR . S.K. Vyas, learned Public Prosecutor has not disputed the facts. I have heard learned counsel for the parties and perused the record. I am of the view that the finding recorded by learned trial court calls for no interference. However, since the incident is of the year 1975 and each of the accused has remained in jail for some time. There is a compromise between Arjun Singh injured and Motisingh, Shambhu Singh and others and sons with the injured Arjun Singh s/o Ranjeet Singh who is grand son of Motisingh appellant, Ranjeet Singhs father Devisingh and Moti Singh appellant are real brothers and persons of both the sides received injuries. The compromise is placed on record. The learned Public Prosecutor has not controverted it. Thus, there remains no animosity between the injured and the appellants Motisingh, Shambhu Singh and others who are of the same family. Moreover, the appellant Motisingh is about 75 years old and sufficient period has already lapsed. Under the peculiar circumstances of this case, I deem it proper that a lenient view may be taken in the matter of sentence as no useful purpose will be served, if the appellants are again sent to jail after a period of 16 years to serve out the remaining sentence.;