M.L. Jain, J.
1. This is an appeal against the judgment of the learned Sessions Judge. Pali dated May 25, 1971, by which he convicted and sentenced the appellants as fallows:
1. Ghisia - Under Section 325, IPC to rigorous imprisonment
for three years and to pay a fine of Rs. 51/-
in default of payment whereof to addit. ional
rigorous imprisonment for two months, Under
Section 24 of the Cattle Trespass Act to a fine
of Rs. 30/-, in default whereof to additional
simple imprisonment for one month.
2. Adiya - Under Section 326, IPC to rigorous imprisonment
for three years and to pay a fine of Rs. 51/ and
in default whereof to additional rigorous
imprisonment for two months, and Under Section 24
of the Cattle Trespass Act, to a fine of Rs. 30/-
in default whereof to additional simple imprisonment
for one month.
2. I have heard arguments and perused the record. The prosecution case is that Narayan PW 4 went out at 8 00 a.m. on 6-8-70 to take a round of his field which is situated near the village Nayasar. He found that accused Bhundia, a boy of ten years, was grazing about ten fifteen cows in his field in the 'Bajri' crop. He drove the animals out of the field and began to carry them to the village cattle pound' Bhundia went running into the village and brought with him Ghisiya and Adiya. Adiya came armed with an axe while Gnosis and Bhundia had stocks in their hands. Both of them objected to Narayan's taking the cows to the cattle-pound When Narayan told them that be would certainly take them to the cattle-pound because the cows had damaged his crop, it was then that the accused are said to have attacked Narayan & inflicted 17 injuries on various parts of the body, out of which one was an abrasion, twelve were bruises and three were contused wounds. There also was an incised wound with a compound fracture on the left leg in he lower part of the fibula. The medical officer Dr. Jethmal PW 9 who had examined Narayan had also found that there where fractures of the right mandible, of the right radius, right ulna and left ulna.
3. A report of this occurrence was lodged in the police station Shivpura Dist. Pali on 8-8-70, vide Ex PW 2 The police, after investigation, challaned the case to the court of the Munsif-Magistrate, Sojat, who committed the accused for trial under Section 307, I.P.C. to the court of Sessions where Bhundia accused was acquitted and the remaining two were convicted and sentenced as aforesaid. The accused were not defended by a lawyer.
4. It was not contended by the learned Counsel for the appellants that the appellant Ghisia was wrongly convicted What the learned Counsel submitted was that Ghisia had already suffered imprisonment both before and after the trial, for one year 7 months and 21 days in all. He is a young man and has learnt a suffcient lesson and may be let off on the sentence already undergone.
5. I have gone through the evidence on record and I am satisfied that Narayan PW 4 was beaten manly by Ghiaia Narayan's testimony receives full support from the medical evidence and the evidence of other two witnesses, namely, Girdhari PW 2 and Poonaram W 3 who were eye-witnesses of the occurrence. The learned Sessions Judge bad found that the testimony of these witnesses bad not been shaken in any manner.
6. Now as regards the point of sentence, the learned Counsel cited Ramnarain v. State of Uttar Pradesh 1973 CrLR (SC) 398. My attention was drawn to the last passage in this judgment wherein it has been observed by the Supreme Court that the question of sentence requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishment. The broad object of punishment in progressive civilised societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society. The sentence to be appropriate should, therefore, be neither two har honor too lenient. In that case, the accused was convicted under Section 384/511, I.P.C. and sentenced to rigorous imprisonment for one year and had served out only one month's sentence. The offence was committed as far back as 1964 and he was sentenced by the trial court on April 27, 1967. The proceedings against him lasted for more than eight years and ha had been released on bail by the Supreme Court in January 1970 In these circumstances, the Supreme Court considered it somewhat harsh to send him back to jail after to many years for serving he remaining period of sentence in the facts and circumstances of the case. The offence was of attempted extortion but the attempt did not succeed. Their Lordships of the Supreme Court therefore, considered that the ends of substantial justice will be met if the sentence is reduced to that which is already undergone, the fine of Rs. 700/- and three months' imprisonment for default of payment was maintained. The learned Counsel for the appellant therefore, urged that when the Supreme Court took a lenient view in the matter of sentence even in case of a serious offence, there was there all the more reason for taking a lenient view in the instant case.
7. I have given my anxious consideration to the facts and Circumstances of the case and have kept in view the observations of the Supreme Court in the aforesaid case, and yet I am not pursuaded to hold that the accused should be enlarged on the sentence undergone. To beat a man mercilessly & to break his bones and then to ask for a lenient treatment, will be a request not justified in the circumstances of this case.
8. As regards the accused Adiya, it is not in dispute any more that be is (sic) nsible only for one injury, namely, injury No. 9 which has been described in the injury report as follows:
Incised wound 1/2' x 1/2' x 1/4' with compound fracture left leg fibula at the lower 1/4th of the left leg lover 1/4th part lateral aspect
9. It is alleged that this injury is caused by an axe. The learned Counsel for the appellant submitted that a blow with an axe causing a compound fracture of the fibula will not leave behind an incised wound of such a smill size as stated above. He therefore argued that the blow was in fact not caused by an axe but by some blunt weapon and the resultant wound has been confused by the medical officer with an incised wound. In his support, the learned Counsel referred me to page 224 of Modi's book of Madical Jurisprudence and Toxicology (Edition 1967) wherein a has been stated that 'occasionally, on wound) produced by a blunt weapon or by a fali the skin splits and may look like incised wounds when inflicted on tense structures covering the bones' such as the scalp. eyebrow, illiac crest, cbin, perineum etc., or by a fall on the knee or elbow when the limb is flexed. But the edges of such wounds will be found irregular with a certain amount of bruising and smill strands of tissues may be seen at the pettom bridging across the margins, if examined with a hand lens'. A corollary of this argument developed by the learned Counsel was that since the aforesaid injury could not result from an axe, it should be presumed that it was not caused by Adiva and in this respect, the prosecution witnesses were telling a lie. There is a so an absence of medical evidence to support the prosecution case. Dr. Jethmal PW 9 did not say that the tractate was caused by a sharp weapon. The medical officer also did not say that the injury could be caused by an axe. PW 4 Naravan injured himself did not say that any fracture was caused in his leg. He did on also race as to which side of the axe was used. Indeed, the police did not care to recover any axe at all, In the first information report Ex. P. 2, the injury was said to have been caused in the calf of the leg while in his statement. Narayan PW 4 simply stated that he was bit in the left Mkos ij ekjh. He does not even say where he was hit. The witnesses were not cross-examined by any lawyer. In these circumstances, it should be held that the case against Gnosia appellant was doubtful. Reliance was placed upon paras 15 and 16 of the jadgemnt in Asa Singh v. State of Punjab : 1973CriLJ623 .
10. I have considered all these submissions and I am not impressed by any one of the arguments advanced on behalf of the appellant. The madical officer has described the fracture as a compound fracture and the wound as an incised wound. There is evidence of the prosecution to show that the accused Adiya was armed with an axe and be did attack Narayan. Therefore, it cannot be held that the injury was not caused by an axe because the victim did not mention as to which side of the axe actually hit him. No question was put either to the Medical Officer or to the victim as to whether the injury was and could be caused by the sharp edge of the axe. I do agree that the police should have been able to recover the axe and produce the weapon of offence before the Court but mere non recovery thereof will not go to show that the injury was not caused with an axe by the appellant. There is no justification for holding that the medical officer confused a blunt weapon with a sharp weapon injury.
11. The last argument (which incidentally is common to both the appellants) was that the occurrence took place on 6-8-70, while the first information report was lodged on 8-8-70 and no attempt was made to explain this interval, Delay in making first information report is not necessarily fatal to the prosecution in all cases and even if the delay has not been explained in this case, it does not derogate from the truth of the prosecution story, nor does it vitiate the findings of the learned lower court. Adiya has therefore rightly been convicted under Section 326 IPC.
12. Now the question which remains to be decided is regarding the quantum of sentence in respect of Adiya. He his been in prison both before and after the trial for only 20 days but at the same time looking to the injury he inflicted, I am inclined to consider that the sentence of three years' rigorous imprisonment awarded to him is rather harsh. I would, therefore, like to reduce his sentence.
13. The convictions and sentences under Section 24 of the Cattle Trespass Act were not challenged.
14. The result is (i) that the appeal of Ghisia totally fails and (ii) the appeal of Adiya is partly accepted and his sentence under Section 326, I.P.C. is reduced to six months' rigorous imprisonment. The fine shall be maintained His conviction and sentence under the Cattle Trespass Act is also maintained.
15. The bail-bonds of the two accused persons are cancelled. They shall surrender before the learned lower court for serving the sentences. The Chief Judicial Magistrate concerned will take steps to get the accused arrested and send them to jail for undergoing remainng period of their sentences.