1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Harkan & ors. Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.210/2004 against the judgment dt.9.2.04 passed by Addl.Sessions Judge (FT), Jalore, Camp Bhinmal, in Sessions Case No.45/03 (20/01). (tagged with D.B.Cr.Appeal No.187/04) Date of Judgment: Sept.07, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Vijay Purohit, for the appellants. Mr.K.R.Bishnoi, Public Prosecutor. BY THE COURT : (PER THANVI J.) This appeal is directed against the judgment of the learned Addl.Sessions Judge (FT) Jalore, Camp Bhinmal dated 9.2.2004, whereby he convicted all the six appellants Harkan, Bechara Ram, Jawa, Makna, Salu and Jora under sections 148, 325/149, 324/149 & 2 323/149 and sentenced them as under: U/Sec.148 IPC Two years' R.I. and a fine of Rs.500/-each and in default, to further undergo three months' S.I.; U/Sec.325/149 IPC Four years' R.I. and a fine of Rs.1000/-each and in default, to further undergo six months' S.I.; U/Sec.324/149 IPC Two years' R.I. and a fine of Rs.500/-each and in default, to further undergo three months' S.I.; U/Sec.323/149 IPC One year's R.I. and a fine of Rs.250/-each and in default, to further undergo one month's S.I. The charges against the accused were that on 24.9.2000 at 9 AM, they formed an unlawful assembly at village Gundau of Police Station, Karda and inflicted simple and sharp weapon injuries on the persons of Ranchhora, Jairoopa and Mota Ram. The report of the incident was lodged by Jairoopa Ram, PW 2 vide Ex.P.2. The police investigated the case and filed challan against 11 accused before the learned Judl.Magistrate, I Class, Sanchore, who committed the case to the court of learned Addl.Sessions Judge, Bhinmal. Learned trial Judge framed charges against eleven accused u/ss.148, 3 323, 323/149, 324, 324/149, 325, 325/149, 307 and 307/149 to which they pleaded not guilty and claimed trial. The prosecution examined 19 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence except the documents. After hearing the arguments, the learned trial Judge acquitted five accused but convicted above six accused appellants as above but they were acquitted u/s.307/149 IPC. Learned counsel for the appellants has not questioned the legality of conviction and sentence but he has drawn our attention towards the judgment of the learned trial Judge in the cross case against which the appeal has been filed in this Court being D.B.Cr.Appeal No.187/04 and submitted that it is a case of free fight, wherein both parties received injuries and it was not proved as to who were in the possession of the field, where the incident is alleged to have taken place. Therefore, according to him, the incident being nine years old, the accused appellants should be given benefit of probation. We have seen the cross case and the 4 circumstances in which the offence took place, particularly when both the sides have sustained injuries, we deem it proper that by virtue of Section 360 CrPC, accused appellants should be given benefit of probation. Consequently, we allow this appeal in part. While maintaining the conviction of the accused appellants Harkan, Bechara Ram, Jawa, Makna, Salu and Jora u/ss.148, 323/149, 324/149 and 325/149 recorded by the learned Addl.Sessions Judge (FT), Jalore, Camp Bhinmal vide his judgment dt.9.2.2004, instead of sentencing them, they are released under Section 4 of the Probation of Offenders Act, provided each of them furnishes within one month a personal bond in the sum of Rs.10,000/- and a surety in the like amount to the satisfaction of the learned trial Judge that they will keep peace and be of good behaviour for a period of two years. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS