DEEPAK MAHESHWARI,J. - (1.) Accused-appellants Keliya @ Kailash and Shambhu have preferred this appeal to challenge the judgment impugned dated 17.1.1995 passed by learned Additional Sessions Judge, Beawar, District Ajmer in Sessions Case No. 44/94, whereby the accused-appellants have been convicted and sentenced for the offences mentioned below :- Keliya @ Kailash : 1 Section 325 IPC For Three years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine further to undergo one month's imprisonment. 2 Section 323/34 IPC For One month rigorous imprisonment and fine of Rs. 100/- and in default of payment of fine further to undergo seven days' imprisonment. Shambhu : 1 Section 325/34 IPC For Three years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine further to undergo one month's imprisonment. 2 Section 323 IPC For One month rigorous imprisonment and fine of Rs. 100/- and in default of payment of fine further to undergo seven days' imprisonment.
(2.) Heard learned counsel for the accused-appellants as also learned Public Prosecutor. Perused the judgment impugned and material available on record.
(3.) Learned counsel for the appellants has argued that there is material anomaly in the prosecution evidence. The complainant-injured Bhagu, who has been examined as PW-13 does not completely corroborate the facts mentioned in the FIR Ex.-P/13. He has not stated that by which weapon of offence Kailash caused injury on his head. The specific place has also not been mentioned by him where the injury was caused on his head. Wife of the complainant PW-2 Smt. Ansi has also not stated about the weapon of offence and the exact place where the injury was caused on the head of her husband. Learned counsel has further averred that no grievous injury has been found on the body of injured Bhagu as per the MLR Ex.-P/11. Thus, the conviction recorded by the learned trial court for the offence under Section 325 IPC is not sustainable. He has further submitted that the learned trial court has not taken into consideration the provisions of Sections 360 and 361 Cr.P.C. while awarding the sentence to the accused-persons. As per the arrest memo Ex.-P/1 and Ex.-P/2, they were of the age of 18 and 19 years respectively. No specific reason has been assigned by the learned trial court for not extending the benefit of probation to the accused-persons. His further argument is that the occurrence had taken place on 15.9.1993 i.e. almost 24 years ago. Both the parties are close family members being first cousins. The occurrence has taken place on account of mortgage of the agricultural field with the complainant, which the accused persons wanted to redeem. In view of these facts, learned counsel for the accused-appellants submits that the judgment impugned convicting the accused-appellants deserves to be quashed and set-aside. His alternative argument is that if the accused-persons are found guilty of the offence under Section 324 IPC, they are liable to be extended the benefit of probation under Sections 360 and 361 Cr.P.C.;