1 S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan. Date of Judgment: 23.12.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Kamlakar Sharma with Mr. Govind Prasad Rawat, for the appellants. Mr. J.R. Bijarnia, Public Prosecutor, for the State. BY THE COURT: Heard learned counsel for the parties. 2. Three appellants namely (1) Ram Kishan S/o. Modu, (2) Raghunath S/o. Amra and (3) Amra S/o. Bheru Bux have preferred this appeal under Section 374(2) of the Code of Criminal Procedure challenging their conviction and sentence passed by District and Sessions Judge, Bundi vide judgment dated 23.09.1986 in Sessions Case No. 130/1984, whereby they have been convicted and sentenced as under: 2 S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan (i) Accused Ram Kishan and Raghunath: Under Section 325 I.P.C.- 3 years rigorous imprisonment and fine of Rs. 5,00/-, in default of payment of fine to further undergo 2 months' simple imprisonment. Under Section 323 I.P.C.- 6 months' rigorous imprisonment and fine of Rs. 2,00/-, in default of payment of fine to further undergo 15 days' simple imprisonment. (ii) Accused Amra: Under Section 325 read with Section 34 I.P.C. to 3 years' rigorous imprisonment and fine of Rs. 5,00/-, in default of payment of fine to further undergo 2 months' simple imprisonment. Under Section 323 read with Section 34 I.P.C. to 6 months' rigorous imprisonment and find of Rs. 2,00/-, in default of payment of fine to further undergo 15 days' simple imprisonment. 3. Initially, learned counsel for the appellant argued the case on merits, but during the course of arguments, in view of statements of two eye-witnesses namely P.W. 2 Ramswaroop and P.W. 4 Jasvir Singh, did not press the appeal on merits and submitted that incident took place in the year 1984, therefore, this is 26 years old matter, appellants Ram Kishan and Raghunath have already remained in jail for about 58 days and appellant Amra has remained in jail for 3 S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan about about 43 days, offence in present case is punishable with maximum imprisonment of 7 years and it was duty of the trial court to give the benefit of probation under Section 360 Cr.P.C. to the appellants, but no reasons have been recorded by the trial court for not giving the benefit of Section 360 Cr.P.C. to the appellants, therefore, either the benefit of Section 360 Cr.P.C. may be given to the appellants or their sentence of imprisonment may be reduced to a period of imprisonment already undergone by them. 4. Learned Public Prosecutor defended the impugned judgment and prayed for dismissal of the appeal. 5. I have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of the trial court. 6. Exhibit P-2, F.I.R. No. 78/1984 was registered at Police Station Gandoli District Bundi against the appellants under Section 302/34 I.P.C., wherein it was alleged that incident took place all of sudden and accused 4 S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan Ram Kishan and Raghunath inflicted injuries on the stomach of deceased Champalal by hands and accused Amra inflicted injury on the person of complainant Ramswaroop. Post Mortem of dead body of Champalal was conducted by P.W. 3 Dr. Trilok Chand Mahawar, who proved Post Mortem Report, Exhibit P-3, wherein he mentioned that there is no external injury present over the body. He opined that cause of death is Haemorrhage Shock due to Rupture of Spleen(Internal Haemorrhage). 7. Learned trial court after considering the evidence available on record, acquitted the accused persons of the charge under Section 302 and 302/34 I.P.C. and convicted the accused-appellants as mentioned above. 8. I have examined the statements of both eye-witnesses; P.W. 2 Ramswaroop, who is injured eye-witness and son of deceased, and P.W. 4 Jasvir Singh, who have specifically stated that all of sudden quarrel took place between the parties and accused Ram Kishan and Raghunath inflicted injuries by fists and kicks on the person of deceased and accused Amra inflicted injury on the person of 5 S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan injured Ramswaroop. 9. Looking to the statements of P.W. 2 Ramswaroop and P.W. 4 Jasvir Singh, I am satisfied that learned counsel for the appellants rightly did not press the appeal on merits and no interference in the finding of the learned trial court in this regard is called for. 10. So far as sentence of imprisonment of the appellants awarded by the trial court is concerned, I find that offence under Section 325 I.P.C. is punishable with 7 years' rigorous imprisonment and as per Section 360 Cr.P.C., it was incumbent upon the trial court to grant benefit of probation to accused persons. As per Section 361 Cr.P.C., it was incumbent upon the trial court to record specific reasons, if benefit of Section 360 Cr.P.C. is not granted to the accused persons. From the impugned judgment it is clear that learned trial court has not recorded any reason for not granting the benefit of Section 360 Cr.P.C. to the accused-appellants. 6 S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan 11. Offence in the present case took place in the year 1984, therefore, incident is 26 years old. The appeal was filed in the year 1986 and it is also 24 years old appeal. Incident took place all of sudden. The accused-appellants were not armed with any weapon. They inflicted injuries only by hands. There was no external injury on the person of deceased. Injured Ramswaroop also sustained simple injury. 12. Looking to all the facts and circumstances of the case, I am not inclined to grant benefit of probation to appellants but I find this case to be fit one to reduce the sentence of imprisonment to a period of imprisonment of 58 days in the case of accused Ram Kishan and Raghunath and 43 days in the case of accused Amra, already undergone by them. 13. Consequently, appeal is partly allowed. Conviction of the appellants under Sections 325, 325/34, 323 and 323/34 I.P.C. is maintained, but their sentence of imprisonment awarded by the trial court is reduced to a period of imprisonment already 7 S. B. Criminal Appeal No. 456/1986 Ram Kishan & Others Vs. The State of Rajasthan undergone by them. Judgment of trial court is modified to the above extent. 14. The appellants are on bail, therefore, their bail bonds are discharged. They need not to surrender. (Narendra Kumar Jain),J. Manoj Item No.S.4.