Mahesh Chandra Sharma, J. - (1.) By filing this criminal appeal under section 374 Criminal Procedure Code the accused-appellants have challenged the impugned judgment of conviction and sentence dated 22.8.1990 passed by learned Addl. District and Sessions Judge, Karauli Camp Hindaun City (for short the learned trial Court) in Sessions Case No. 54/1988, by which he convicted and sentenced the accused appellants as under : Under Section 307 Indian Penal Code. (accused-appellants No. 1 and 2 namely; Jainarayan and Gangoriya) Five years R.I. and Rs. 2,000/- fine. In default of payment of fine, he shall further undergo 15 months further imprisonment. Under Sections 323 and 325 Indian Penal Code. (Accused appellant No. 3 Chiman): Given the benefit of probation.
(2.) Brief facts of the case as set up by the prosecution are that at the time of alleged incident Swarjeet and his brother Pema (PW-2) were putting doli and the aforesaid field was allotted to him by the Revenue Department and earlier this land was charagaha. It is alleged that they were armed with Karwadi, lathi and Bhala. Appellant Jainarayan is alleged to have Karwadi inflicted injury to Pema, Chiman was having lathi inflicted to Sawamjeet and Gangoria and others inflicted spear to others. 4. The police after investigation submitted charge-sheet against the accused-appellants in the Court concerned. 5. The trial Court after hearing framed charge against the accused-appellants, who denied the charges, pleaded not guilty and claimed to be tried in the matter. 6. The prosecution in support of its case produced as many as 12 witnesses and certain documents were got exhibited. 7. Thereafter, the statementof the accused-appellants under Section 313 Criminal Procedure Code were recorded. 8. The learned trial Court after hearing convicted and sentenced the accused-appellants No. 1 and 2 tor the aforesaid offences but gave the accused-appellant No. 3 the benefit of probation vide impugned judgment dated 22.8.1990. Hence, this criminal appeal before this Court. 9. I have heard learned counsel for both the parties and carefully gone through the entire material made available to me. 10. Learned counsel for the accused-appellant submits that the alleged incident has taken place on 29.7.1981 which is near-about 28 years ago from today. He submits that looking to the nature of injuries as also the statements of the prosecution witnesses, the case of the accused-appellants No. 1 and 2 come under Section 308 Indian Penal Code. instead of Section 307 Indian Penal Code. There is great contradictions, omissions and improvements in the statements of the prosecution witnesses. As per injury report, injury No. 6 is found to be grievous in nature. Most of the witnesses produced by the prosecution are interested one. The accused-appellants are not habitual offenders. Both the accused-appellants have remained in judicial lock up near-about 8 days. Thus, the impugned judgment of conviction and sentence dated 22.8.1990 be quashed and set-aside and the accused-appellants be acquitted for the aforesaid offences. 11. Learned Public Prosecutor opposed the aforesaid contentions of counsel appearing for the accused-appellant and submits that the learned trial Court has passed the impugned judgment of conviction and sentence after considering the statements of the prosecution witnesses as also other material made available to him. Thus, no interference is required to be made in the impugned judgment of conviction and sentence passed by learned trial Court. 12. In my considered view as also looking to the statements of the prosecution witnesses, the case of the accused-appellant comes under Section 308 Indian Penal Code. instead of Section 307 Indian Penal Code. 13. In the result, the criminal appeal is partly allowed, the accused-appellants No. 1 and 2 namely; Jainarayan and Gangoriya are convicted for the offence under Section 308 Indian Penal Code. instead of Section 307 Indian Penal Code. and they be released for the period already undergone by them in confinement. The accused-appellants are on bail, their bail bonds stand cancelled. 14. So far as case of accused-appellant No. 3 Chiman is concerned, the judgment dated 22.8.1990 passed by learned Addl. District and Sessions Judge, Karauli Camp Hindaun City (Raj.) in Sessions Case No. 54/1988, is maintained. The judgment of conviction and sentence dated 22.8.1990 passed by learned Addl. District and Sessions Judge, Karauli Camp Hindaun City in Sessions Case No. 54/1988 with regard to accused appellants No. 1 and 2 namely; (1) Jainarayan, and (2) Gangoriya is modified as indicated here-in-above. Appeal partly allowed.;