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Judgment
S. I. Jafri, J.
The instant appeal preferred by Sri Kripal alias Kripa Ram and Shyam Behari arises out of Sessions Trial No. 395 of 1977 impugning the judgment and order passed by Sri Ram Swarup, IV Add. Sessions Judge, Etawah dated 5.5.1979 thereby convicting the appellant Shyam Behari under Section 308/34, I.P.C. and sentencing him two years R. I. and further convicting the appellant Shree Kripal alias Kirpa Ram under Section 308, I. P. C.. and sentencing him to two ear R.I.
The prosecution case as disclosed in the First Information Report is that on the day of occurrence i, e, on 441976 at about 9 a.m. when Daya Ram was sitting in front of his door and his son Lal Behari was drawing water from the well nearby, appellant Shree Kripai, who was armed with Latin and Shyam Behari who was armed with an axe, descended at the place and began to assault Lal Behari with the result that Lal Behari received a number of injuries on his person. On the cries raised by the complainant , witnesses were attracted to the scene of occurrence and on their intervention, the accused persons fled from the scene of occurrence,
After the occurrence, injured Lal Behari was removed to Police Station Oraiya by Daya Ram where Daya Ram lodged his written report of the occurrence at 1.30 p.m., the Head constable prepared a chick report on the basis of the aforesaid written report. He also registered a case under Section 308. I.P.C. in the General Diary of the Police Station against the appellants. Thereafter the injured was sent to Primary Health Centre, Oraiya, where his injuries were examined at 2 p.m.
Dr. Charan Jeet Singh, PW 2 on examination of the injured, found the following injuries on the person of Lal Behari :
(1) Incised wound 5� cm x � cm x 1 cm deep (bone deep on sculp on top of head 13 cm above right ear 2 cm from raidline vertical in position. Margin cleancut wound filled with blood clotted.
(2) Incised wound 3 cm x � cm x � cm deep on back of left forearm 11 cm below colcannon forearm wound filled with blood clotted, margine clean cut, vertical in position.
(3) Incised wound 7cmx 1cm x �cm deep (muscle deep) on front of left leg, vertical in position 8 cm below tibial tuberosity and filed blood clotts.
(4) Incised wound 1 cm x 3/10 cm x � cm deep on lateral side of right elbow joint. Oblique imposition, wound filled in blood clot is. Margin clean cut.
(5) Contusion 10 cmx2 cm on right supra scapular wound oblique in position, redish in colour, 5 cm from mid line.
(6) Abrasion 5 cm on back right side middle part wound with scab, oblique in position.
(7) Contusion 10 cm x 2 cm on lateral silo of right arm oblique in position redish in colour, middle part.
(8) Contusion 10 cm x 2 era on back of right elbow joint redish in colour, oblique in position.
(9) Contusion with swelling 3 cm x 1 cm on dorsum of right hand on knode of index and middle finger and spelling all and redish in colour, oblique in position.
(10) Abrasion 2 cmx2 cm on front of right thigh upper part and blood clotts.
(11) Contusion 3 cmx2 cm lower part of right thigh and both buttocks, no sign of injury seen.
The investigation of the case was taken up by Lal Singh, PW 4, who recorded the statement of the Head constable at the Police Station in the first instance. Thereafter, he went to the Hospital where he recorded the statement of Lal Behari injured and others After concluding the investigation, he submitted chargesheet against the appellants.
The accusedappellants pleaded not guilty to the charge and they attributed their false implication in the case to enmity.
The learned Sessions Judge on the basis of the evidence adduced by the prosecution, came to a conclusion that the prosecution had succeeded in bringing home the guilt to the accused and accordingly convicted and sentenced the appellants as aforesaid.
While proceeding to discuss the prosecution evidence, I take up the evidence of Daya Ram, PW 1 for scrutiny. Daya Ram is the father of injured Lal Behari. He has dwelt upon the prosecution case in extenso deposing that on the day of occurrence at about 9 a.m. when he was sitting at his door and his son Lal Behari, injured, at that time, was drawing water from the well nearby, the appellants all of a sudden came there and began to assault Lal Behari, his son and out of the appellants Shree Kripal was armed with a lathi white Shyam Behari appellant was armed with an axe. As a result of assault on his son Lal Behari sustained numerous injuries on his person. He further deposed that it was on the intervention of the witnesses, the accusedappellants bolted away from the scene of occurrence. After the occurrence, he deposed that he took his son to the Police Station where he lodged his written report of the occurrence and from the Police Station, the injured was taken to the Hospital for examination and treatment.
From a scrutiny of his evidence, it is transparent that evidence of Daya Ram, PW 1 is quite convincing, cogent and trustworthy. I have also gone through the crossexamination of the witness and from a perusal of the crossexamination, I find that no material infirmity or discrepancy has been brought out by the defence which may render his evidence unworthy of reliance or tarred with any taint of doubt. The only contention advanced by the learned counsel is that he is the father of the injured and that enmity had existed between the parties from before the occurrence. The contention of the learned counsel for the appellant does not cut any ice with me as it is a daylight occurrence and also the occurrence had taken place in front of the house of the complainant. The fact that the occurrence had taken place in front of the house of the complainant, goes a long away to establish that Daya Ram is a natural witness and his presence at the spot is probable.
10, The evidence of Daya Ram has been fully substantiated by his son Lal Behari injured. The oral testimony of Lal Behari is also corroborated by the medical evidence of Dr. Charanjeet Singh, PW 2. Though the conviction of the appellant hinges on the testimony of Daya Ram who may be interested being father of the injured, but there is no plausible reason to discard his evidence on the point that the witness is interested. Under the circumstances, the conviction of the appellants recorded by the trial court is liable to be affirmed.
It is contended threadbare by the learned counsel that the occurrence in the instant case had taken place as back as 13 years and during this period, both the parties complainant and the appellants have been living amicably in a peaceful atmosphere with love and fellow feeling without any trace of badblood or animus and in case the appellant is sent back to Jail after such a long lapse of time in order to serve out the sentence, it would serve no useful purpose but to reopen the old wounds and further embitter the relations between the parties. It is further contended by the learned counsel that Shree Kripal appellant is aged about 76 years, and looking to his old age, it would not be in the interest of hi health to send him to Jail for serving out the sentence and in view of the above contention, it is submitted by the learned counsel that the appellants may be sentenced to pay fine instead of being sent to Jail against. I sec substance in the contention of the learned counsel. I myself feel that it would not serve any useful purpose to send the appellants to Jail again and rather they be sentenced to pay the fine plus the period of imprisonment already undergone by them. Besides, it is also contended that the appellants are the only earning members for their family and in their absence from their respective families, the members of their families may be on the brink of starvation. I also feel impelled by this contention of the learned counsel to take the view that the appellants may be sentenced to pay the fine instead of sending them to Jail.
In view of the facts and circumstances as well as the submissions advanced by the learned counsel, I propose to impose a fine of Rs. 1,000 each on the appellants instead of their being sent to Jail to serve out the sentences.
In the result, the appeal is partly allowed. The conviction of the appellants recorded by the trial court is affirmed. However, the appellants are sentenced to pay a line of Rs. 1,000 each and the period of imprisonment already undergone by them. The appellants are allowed three month''s time to deposit the amount of fine as aforesaid in the Court of VI Addl. Sessions Judge, Etawah from the date of the receipt of record at the end of the Court below. Is default of payment of fine the appellants shall undergo R.I. for one year each.
Out of the amount of fine which works out to Rs. 2,000 a sum of Rs. 1,500 shall be delivered to Lal Bhadhur, injured (PW 3) as compensation under Section 357, Cr.P.C. for the shock and pain suffered by him and the remaining sum of Rs. 5,00 shall go the State Excheques.
Office is directed to comply with the directions contained in the body of the judgment. Appeal pertly allowed.