JUDGMENT Mukteshwar Prasad, J.
1. This criminal appeal by the accused is directed against the judgment and order dated 23.4.1981 passed by Sri Krishna Kumar, the then Additional Sessions Judge, Shahjahanpur whereby he convicted Jagpal Singh and Virendra Singh under Sections 324 and 325 read with Section 34 of the Penal Code and sentenced them to undergo rigorous imprisonment for a period of one year and two years respectively. They were further sentenced to pay Rs. 5007- as fine under Section 325 and in default of payment of fine they were sentenced to undergo rigorous imprisonment for a period of six months. Accused Atiraj Singh and Sonpal Singh were convicted under Sections 325 and 324 read with Section 34 of the Penal Code and were sentenced to suffer rigorous imprisonment for a period of two years and one year respectively. They were directed to pay Rs. 500/- as fine under Section 325 I.P.C. and in default they were directed to undergo rigorous imprisonment for a term of six months. Both the sentences were directed to run concurrently.
2. In brief, the prosecution case is as under:
P.W. 1 Gajraj Singh, the informant, and appellants (Atiraj Singh and his three sons Sonpal Singh, Virendra Singh and Jagpal Singh) are residents of village Bamiyana, P.S. Khudaganj. It appears that there was a dispute between the parties in respect of flowing dirty water of the informant's house. The informant used to drain out the dirty water through a 'Nala' which joined the Tank but the appellants objected and stopped the flow of dirty water. The villagers intervened. The appellants wanted to teach a lesson to informant and his sons.
3. On 1.9.1977 at about 7-00 a.m., P.W. 2 Raja Babu, son of the informant, was ploughing his field and the informant was also busy in the plot and was digging the corner. All the four appellants arrived there. Atiraj Singh and Sonpal Singh were having lathies and Jagpal Singh and Virendra Singh were armed with Kantas. Atiraj Singh exhorted his sons to kill Raja Babu and teach him a lesson. All the four joined together and assaulted Raja Babu with lathies and kantas and caused several injuries. On the alarm raised by father and son, Pitam Singh, Munna Singh and Dularey Singh, who were grazing their cattle in the neighbour-hood arrived there and challenged the assailants. The assailants, on being challenged, ran away towards the village.
4. The injured was taken to the police station on a cot and Gajraj Singh lodged an oral FIR at P.S. Khudaganj on the same day at 10-05 a.m. The police registered a case under Section 307 I.P.C. and started investigation.
5. P.W. 6 Dr. P.P. Gupta, Medical Officer of P.H.C., Khudaganj examined the injuries of Raja Babu at 11-00 a.m. on the same day and found as many as 11 injuries of different dimensions on his body, including six lacerated wounds, one contusion, two punctured wounds, one incised wound and swelling of both right upper and lower eyelid and cheek. In the opinion of Dr. Gupta, all the injuries were fresh and were caused by blunt object and sharp edged weapon. The injury No. 7 was kept under observation. He further advised X-ray of the scalp, right upper arm and left hand.
5. On X-ray, fracture of the shaft of humerus was detected.
6. The case was investigated as usual by P.W. 5 S.I.Vikram Lal. He completed investigation and submitted chargesheet against all the four assailants named in the F.I.R.
7. All the four accused were charged under Section 307 of the Penal Code on 9.9.80 to which they pleaded not guilty and claimed to be tried. The prosecution in support of its case, examined P.W. 1 Gajraj Singh, P.W. 2 Raja Babu, P.W. 3, Pitam Singh, P.W. 4 Munna Singh, P.W. 5 S.I Vikram Lal, I.O. of the case, P.W. 6 Dr. R.P. Gupta and P.W. 7 V.P. Verma, the X-ray Technician of District Hospital, Shahjahanpur.
8. All the accused totally denied their complicity in the alleged offence and pleaded their false implication on account of enmity. Accused Jagpal Singh disclosed that Raja Babu was assaulted somewhere in the darkness by unknown assailants. No evidence was led in defence.
9. After having considered the entire oral and documentary evidence on record led by the prosecution and the arguments advanced on behalf of the parties, learned Judge found that there was no intention on the part of the accused to kill Raja Babu and the accused were found guilty for the offences punishable under Sections 324 and 325 of the Penal Code and sentenced, as mentioned above.
10. Appellant No.4 (Atiraj Singh, son of Takku Singh) expired during pendency of this appeal.
11. I have heard appellants' learned Counsel at length, learned A.GA and have gone through the record carefully.
12. Learned Counsel for the appellants has urged vehemently that no independent witness of the village supported the prosecution version and P.W. 3 Pitam Singh and P.W. 4 Munna Singh who were named in the F.I.R. as eye witnesses turned hostile and did not support the prosecution story. He has further contended that punctured wounds could not be caused by Kantas and presence of Gajraj Singh at the scene of incident appears to be highly doubtful The trial Judge erred in believing the testimony of the injured and his father and was not justified in convicting the appellants. Admittedly, there was enmity between the parties and as such, the Court below committed error in placing reliance on the testimony of the injured. Lastly, it was submitted that the incident in question took place on 1.9.77 and the appellants were convicted by the Court below on 23.4.81 and as such, no useful purpose would be served by sending the appellants again to jail in case the appeal is dismissed.
13. On the other hand, learned A.G.A. has supported the judgment and has urged that the trial Judge took into consideration all aspects of the case and committed no error in placing reliance on the testimony of the injured and his father. The appeal is, therefore, liable to be dismissed and the appellants deserve no sympathy of this Court.
14. I have considered the submissions made on behalf of the parties and have scrutinized the evidence carefully. It is true that three witnesses Pitam Singh, Munna Singh and Dularey Lal were named in the F.I.R. as eye witnesses of the incident. Out of which, the prosecution examined Pitam Singh as P.W. 3 and Munna Singh as P.W. 4. P.W. 3 Pitam Singh did not support the prosecution story and turned hostile. He gave out that he saw no incident. P.W. 4 Munna Singh also did not support the prosecution version and turned hostile. He, however, testified that he saw the incident but could not identify the assailants. Thus, he partly supported the prosecution story.
15. P.W. 2 Raja Babu, the injured fully supported the prosecution version and testified that on the date of incident at about 7-00 a.m. he was ploughing his plot and his father was digging corner of the plot. All the four accused named above armed with lathies and Kantas arrived there and assaulted him mercilessly. After sustaining several injuries he fell down and blood had fallen down on the ground. He further gave out that he was taken to the police station by his father and others and his father lodged F.I R and thereafter he was sent to Khudaganj Hospital He remained hospitalized at Shahjahanpur for about twenty days. He was cross-examined at length and remained successful in the test of cross-examination He totally denied the suggestion of the defence that he was assaulted in the darkness by unknown assailants.
16. P.W. 1 Gajraj Singh corroborated the testimony of his son on all material points and stated in unambiguous words that Raja Babu was assaulted by all the four accused and had sustained injures and blood had fallen on the ground He proved his F.I.R. He further gave out that eye witness Dularey expired during pendency of the case. He was cross-examined extensively but nothing could be elicited in cross-examination. He also denied that his son Raja Babu was assaulted in the night and he was not present on the spot. It is true that there are some minor discrepancies in the statements of the father and son but the testimony of both could not be shaken by the learned Counsel for the accused.
17. According to the statement of I.O., he had collected blood-stained earth also on the spot. It is noteworthy that I.O. visited the scene of incident on 1.9.77 itself and found blood-stained earth.
18. Dr. R.P: Gupta stated in clear words that punctured wounds could be caused by the pointed portion of Kantas. This statement of the doctor was not challenged in cross-examination.
19. In view of the foregoing discussion and observation, I find that the learned Judge committed no error in appraisal of the evidence led by the prosecution and he rightly found all the accused guilty for the offences punishable under Sections 324 and 325 of the Penal Code.
20. So far sentence is concerned, learned Judge took lenient view. I, however, find sufficient force in the contention of the appellants' learned Counsel that incident took place on 1.9.77 and the appellants were convicted on 23.4.81 and since then several years have passed and it will not be proper now to send the appellants to jail. I, therefore, hold that appellants no 1 to 3 should be sentenced to the period already undergone by them and they should be directed to pay fine also.
21. In the result, the appeal succeeds partly. The conviction of appellants Jagpal Singh and Virendra Singh under Section 324 and 325/34 I.P.C. is upheld and they are sentenced to pay a fine of Rs. 2000/-under Section 324 I.P.C. They are sentenced to the period already undergone by them under Section 325/34 I.P.C. and to pay a sum of Rs. 4000/- as fine.
22. The conviction of Sonpal Singh under Section 325 and 324/34 I.P.C. is maintained and he is sentenced to the period already undergone by him and to pay a sum of Rs. 4000/- as time under Section 325 I.P.C. He is further sentenced to pay a sum of Rs. 2000/- as fine under Section 324/34 I.P.C.
23. It is made clear that each of the appellants shall deposit a total sum of Rs. 6000/- as fine in the Court below within a period of four months from today under both counts and in the event of default, they are directed to suffer rigorous imprisonment for a period of one year.