JUDGMENT B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 19-9-3 980 passed by Sri M.S. Premi, the then Vth Additional Sessions Judge, Farrukhabad in S.T. No. 210 of 1980, whereby he convicted the accused-appellant Jugi Khan of the office under Section 324, I.P.C. and convicted the accused-appellant Bajhe Khan alias Sher Mohammad Khan of the offence under Sections 324/114, I.P.C. and accused-appellant Munne Khan of the offence under Sections 324/34, IPC but instead of sentencing them to any sentence at once, directed them to be released on probation of good conduct on each furnishing a bond for a sum of Rs. 2000/- with two sureties each in the like amount to keep peace and be of good behaviour for a period of one year, During the pendency of this appeal Jugi Khan accused-appellant No. 1 has died and consequently, the appeal has abated to his extent. learned Counsel for the remaining accused-appellants and the learned A.G.A. have been heard on the merits of this appeal.
2. The prosecution case was that Sher Mohammad informant was resident of village Hatiapur, P.S. Maudarwaja and was employed in District Etah as a constable in the police department, that the accused-appellants were real brothers inter se and out of them Bajhe Khan alias Sher Mohammad accused-appellant was Pradhan of Gaon Hatiapur, that the informant had sent an application to the S.P. Etawah who had forwarded it to S.P. Fatehgarh for enquiry and the same was given to Ram Prasad Awasthi Sub-Inspector of Police Station Maudarwaja, that on 1-11-1978 at about 4.45 p.m. when S.I. Ram Prasad Awasthi along with the constable Sher Ali and informant Sher Mohammad came to village Hatiapur and started making enquiry in the application of the informant in front of the Baithak of Bhullan Miyan, all the three accused-appellants came there, that accused-appellant Bajhe Khan exhorted his brothers whereupon Munne Khan accused-appellant caught hold of Sher Mohammad informant while Jugi accused-appellant assaulted the informant with a knife to commit his murder which struck on his mouth near jaw, that Bhjhe Khan and Munne Khan accused-appellants were caught at the spot while Jugi Khan accused-appellant managed to escape with the knife.
3. The F.I.R. Exh. Ka-1 was lodged at the police station by the informant at 6.35 p.m., the same day and on its basis of chik report was prepared and a case was registered under Section 307, I.P.C. against all the accused-appellants. The investigation was entrusted to S.I. Jitendra Prasad who after making it submitted charge sheet against all the 3 accused-appellants under Section 307, I.P.C.
4. The medical examination of Sher Mohammad informant was made by Dr. G.D. Ahuja on 1-11-1978 at 7. 15 p.m. at the civil hospital, Farrukhabad. He has found the following injuries on his person.
(i) Incised wound semi-circular 1 1/2" x 8" muscle deep on left side lower lip, over left side-chin in curved and slanting manner margins were clean cut oozing/blood present.
(ii) Abrasion 1/4" x 1/4" on the nose on the left middle part.
(iii) Abraded contusion 3" x 3/4" on the left side face near the angle of mouth.
(iv) Two abrasions 1/4" x 1/8" x 1/8" apart on left side neck middle part.
In the opinion of the doctor, all the injuries were simple. Injury No. 1 was caused by sharp edged weapon and the rest by blunt weapon or friction and the injuries were fresh at the time of the occurrence and could be caused at 5.00 p.m. on 1-11-1978 by knife.
5. Before the Sessions Court, the accused claimed to be innocent and demanded a trial. Bajhe Khan claimed that he was village Pradhan and the police had pressurised him to withdraw the case brought by him in Tehsil against the in- formant which he declined and for this reason, he was called to the police station and beaten and his brother Munne Khan was also beaten and put in the lock up. Munne Khan accused-appellant claimed that he was falsely implicated due to enmity with his brother Bajhe Khan. Jugi accused-appellant had taken the stand that he had been talsely implicated due to being brother of Bajhe Khan and also claimed that he was not in the village on the date of occurrence but has gone to Ajmer for taking potato.
6. The prosecution examined Sher Mohammad informant PW 1, Ram Prasad Awasthi S.I. PW 2, Jitendra Pratap Singh I.P., PW 3 and Dr. G.D. Ahuja PW 4. The accused appellants did not produce any evidence oral or documentary in their defence at the trial. The ocular testimony was given by PW 1 and PW 2. The learned Sessions Judge believed the ocular testimony and held that the occurrence took place and was committed by the accused-appellant as set out by the prosecution. He however, did not agree with the contention of the prosecution that the injury was caused with intent to commit the murder of the informant and consequently acquitted the accused-appellants of the offence under Section 307, I.P.C. but convicted them for the lesser offences under Sections 324, I.P.C. 324/ 34, I.P.C. and 324/411, I.P.C. respectively and gave the benefit of probation law to the accused-appellants who furnished their bonds accordingly on the date of judgment i.e. 19-9-1980 itself which were accepted by the learned Sessions Judge.
7. I have gone through the entire oral and documentary evidence on record in this case. The learned Counsel for the accused-appellants has not been able to show any infirmity in the appreciation of evidence by the learned Sessions Judge. There is the evidence of the injured informant Sher Mohammad PW 1 which is supported by the medical evidence on record and also by a prompt F.I.R. lodged by him in the police station which was 3 miles away. It has been elicited from him in the cross-examination that he has constructed house on the land of Gram Sabha and when the house was ready, the Bajhe Khan accused-appellant who was village Pradhan got a case for eviction against him and he filed a case against village Pradhan Bajhe Khan accused-appellant in civil side which, however, was dismissed in default whose revision was still pending. All this to not inconsistent with the prosecution case. It has come in his evidence that he had moved an application to the S.P. Etawah who forwarded it to S.P. Farrukhabad and that is why this application was taken by S.I. Ram Prasad Avasthi PW 2 to the spot for enquiry. This fact shows a motive for the accused-appellants who are real brothers inter se to commit occurrence. It cannot be said that false implication has been made for the above noted reason. There is also the evidence of S.I. Ram Prasad Awasthi PW 2 who had gone to spot to make enquiry on the application. His presence at the spot cannot be doubted. He was an independent person unconnected with the informant. There are no reason to disbelieve his evidence. Consequently, the learned Sessions Judge rightly made the conviction of the accused-appellants at the trial.
8. Regarding the sentence, he has already taken a lenient view and granted the benefit, of probation to the accused- appellants and the bonds were furnished on 19-9-1980 before the learned Sessions Judge, as noted above. However, it has been revealed by the file of this appeal that at the instance of the accused-appellants this Court had stayed the operation of the order of the learned Sessions Judge, Farrukhabad till the disposal of this appeal, by its order dated 19-9-1980. Consequently, these bonds had remained in force only for 3 months and their operation remained stayed for the remaining 9 months period after the expiry of which these would have exhausted in the normal course.
9. The learned Counsel for the accused-revisionist has prayed that instead of probation, the accused-appellants Bajhe Khan and Munne Khan may be punished with suitable amount of fine. Considering the entire circumstances of the case, it is unnecessary to interfere with the order of probation passed by the learned Sessions Judge.
10. For the reasons aforesaid, the appeal is dismissed. The conviction of the accused-appellants Bajhe Khan alias Sher Mohammad and Munne Khan is upheld. Stay order dated 9-12- 1980 shall stand discharged. The bonds furnished by the accused-appellants Bajhe Khan and Munne Khan would now revive and would remain in force for their remaining period..
11. Let a copy of this judgment be sent to the learned Sessions Judge concerned within a week from today by fax/registered post A.D. for information and necessary compliance.