Kanta Bhatnagar, J.
1. This appeal is directed against the judgment passed by the learned Additional Sessions Judge, Jalore dated February 22, 1977 by which all the appellants were held guilty for the offences under Sections 447 and 148 I.P.C. & sentenced to three months rigorous imprisonment on the first count, two years rigorous imprisonment on the second count. Appellant Dola was convicted for the offence under Section 326 I.P.C. and sentenced to three years rigorous imprisonment and a line of Rs. 100/- in default to under go one month's rigorous imprisonment. He was also convicted for the offences under Sections 325/149 and 323/149 I.P.C. and sentenced to one year rigorous imprisonment on the first count and six months rigorous imprisonment on the second count. All the appellants except Dola were held guilty for the offence under Section 326/149 I P.C. and sentenced to two years R.I. and fine of Rs. 100/-, in default of payment of fine to undergo one months rigorous imprisonment. All the appellants except Dola were also convicted for the offence under Section 325 and 323 I.P.C. and sentenced to one year rigorous imprisonment each on the first count and six months rigorous imprisonment on the second count.
2. Briefly stated, the facts of the case leading to the trial of the appellants & the present are appeal as under. On February 1, 1976 in the afternoon Vala (PW 1) along with his daughter Mst Rambha (PW 2) was cutting berry hedge in their field. The appellants went outside the field and directed Vala to come out of the filed. warning him of dire consequences if he did not comply. Dola was armed with an axe and the remaining appellants were having lathis with them. Apprehending quarrel, Vala did not come out. The appellants went away towards the way hurling abuses Ganesha (PW 7) brother of Vala & Khima his father were coming in the way towards the field with too food for Vala & Mst. Rambha. When they reached near the field of Vada Oda, the appellants surrounded them. Dola inflicted are blow on the head of Ganesha. Ganesha and Khima ran away in the field. All the appellants chased them and gave lathi blows to Ganesha and Khima. On hearing the noise Vala and Mst. Rambha rushed to the site. Jeewa (P.W. 8) and Jhunjha (PW 3) also reached there and managed to rescue Ganesha and Khima. Mst. Rambha also sustained injuries in her effort to rescue her uncle and grandfather. Vala went to Police Station, Sanchore and filed the written report Ex. P. 1 with the Head Constable Sardarkhan (P.W. 9), Incharge of the Police Station at that time. Case under Sections 307, 147, 148 and 149 of the Indian Penal Code was registered and 1st Information Report Ex P 2 was chalked. The Head Constable went to the site and found Ganesha, Khima and Mst. Rambha lying injured there. He found Ganesha unconscious, having a number of injuries on his head and bleeding. He prepared the injuries reports of the victims and sent Mst. Rambha (P.W. 2), Ganesha (P.W. 7) and Khima to the Primary Health Centre, Sanchore. He conducted the necessary investigation at the site. Dr. Nimbarj Tolaram Hirani (P.W. 6), Medical Officer, Incharge Primary Health Centre, Sanchore, examined Ganesha on the same day at 6.00 P. M. and prepared the injury report fix. P. 6. The Doctor noted following injuries on his person:
(1) Lacerated wound with bleeding 4 1/2' x 1/3' x 1/2 on the left side skull parietal region 4 1/2 above left ear.
(2) Lacerated wound with bleeding 3 ' x 1/2 x 1/2' on the scalp frontal region 2' away from injury no. 1.
(3) Incised wound with bleeding with fracture of underlying bones 3' x 1/2' x 1/2' oblique on the scalp at centre involving both parietal bones.
(4) Lacerated wound with clotted blood 3' x 1/3' x 1/4' on the right parietal region on the sclap 4' above right ear.
(5) Lacerated wound with bleeding 1 1/2 ' x 1/2' skin deep on the scalp mid-way between injury no. 3 and 4.
(6) Swelling 2 'x 3' on the right fore arm lower 1/3.
(7) Swelling 1 1/2' x 1 1/4' on the left hand dorsum between index finger and thumb.
(8) Abrasion 1/4' x 1/2 ' on the left leg upper part 2 1/4' below pa-tells.
(9) Swelling 2' x 1' on the left foot dorsum edjacent to little toe.
(10) Abrasion 1/4' x 1/4 ' on the right leg lower part adjacent to medial malleous.
(11) Swelling 1 1/2' x 1/2' on the left foot on medial malleous.
3. On the same day Dr. Hirani (P.W.6) examined Khima and noted following injuries on his person. The injury report is Ex. P. 7.
(1) Lacerated wound with fresh and clotted blood 1/4' x 1/3' x 1/20' on the right leg lower 1/3 ', 2' J/2 above lateral imalleolus.
(2) Contusion (red) 3 1/2 ' x 1/4' on the right side back lower part adjacent to right renal angle.
(3) Contusion (red) 3 1/4' x 1/4 ' on the right side back 1 1/4 above injury No. 2.
(4) Spelling 2 1/2' x 2 1/4' on the right fore-arm upper part posterior aspect 2 1/4' below point of elbow.
(5) Abrasion 4' x 1/3' on the left fore-arm extending from upper part to the middle.
(6) Contusion 1/4'x 1/5 ' on the right side back upper part 2 1/4' away from spine.
(7) Contusion 1 1/4' x 1/5' on the right side back upper part adjacent to spine.
4. The Doctor advised x-ray of injury no.4 of right fore-arm for confirmation of fracture if any. All the injuries were caused by simple blunt weapon.
5. Mst. Rambha was also examined by Dr. Hirani (P. W. 6) on the same day and following injuries were noted on her person. Her injury report is Ex. P. 8.
(1) Lacerated wound with clotted blood 1/2' x 1/6' x 1/30' approximately on the left hand index finger posterior aspect 1/8' away from nail.
(2) Abrasion 1/(sic) 'x 2' on the left fore-arm upper part posterior aspect 3' blow point of elbow.
(3) Abrasion 1/(0' x 1/10' on the right handorsum adjecent to index finger.
(4) Contusion (faint red) 2 1/2' x 1/3' on the right fore-arm extending from upper part to middle posterior aspect.
6. All the injuries were caused by blunt weapon & were simple in nature.
7. The injured were admitted in the hospital. According to the Doctor injury no. 3 of Ganesha could be caused by sharp edged weapon like an axe. The duration of the injuries sustained by the above persons at the time of the examination, according to the Doctor was 3 to 5 hours.
8. Thana also lodged report of the incident at the same police station and case against the complainant party was registered. Dr. Hirani had examined Thana, Dola and Kana on February 3, 1976 in the morning. Their injuries reports are Ex. P. 11, Ex. P. 12 and Ex. P. 13 respectivley.
9. The Doctor noted following injuries on the person of Thana:
(1) Abrasion 1/2' x 1/4' on right shoulder 1 1/2' away from shoulder joint.
(2) Abrasion 1/4' x 1/10' on left hand dorsum mid-away between index and middle finger.
(3) Swelling with tenderness-suspected fracture of first metacarpal bone (middle) 2 1/2' x 2' on the left hand dorsum.
10. All the injuries were simple in nature and caused by the blunt weapon.
11. The injuries noted on the person of Dola are as under:
(1) Abrasion 1/2' x 1/3' on the right shoulder back 3' above clavicle.
(2) Swelling 1 1/4' x 2' on the right elbow 1 1/2' away from point of elbow.
(3) Abrasion 1/2' x 1/4' on the right side back 2' above anterior superior illiac spine.
12. All the injuries were simple in nature and caused by blunt object.
13. The following injuries were noted on the person of Kana:
(1) Abrasion x 1/2' on the right fore-arm at middle.
(2) Abrasion 1 1/2'x 1/4' on the right fore-arm posterior aspect upper part 4' below point of elobow.(3) Abrasion 1/4' x 1/10' on the left side chest 2 1/4' below left clavicle.
(4) Lacerated wound with clotted blood 1/2 ' x 1/10' x 1/10' on the on scalp right parietal region 3 1/2' above right ear.
14. All the injuries were simple in nature and caused by blunt object The duration of the injuries of Thana, Kana and Dola according to the Doctor was within 40-42 hours from his examination.
15. Upon completion of necessary investigation chargesheet against the appellants for the offences under Sections 147, 148, 307, 326, 325, 324 and 323 read with 149 I.P.C. was filed in the Court of Judicial Magistrate Sanchchore. The learned Magistrate finding a prima facie case against the appellants committed them to the Court of Sessions Judge, Jalore to stand their trial there. The learned Additional Sessions Judge charge sheeted the appellants for the offences under Sections 147, 148, 307, 323, 325 and 326 read S 149 I.P.C. and recorded their pleas. All the appellants denied the indictment and claimed to be tried. Prosecution examined nine witnesses in all to substantiate its case. Kishna appellant pleaded alibi and examined Gena Ram (D. W. 2) to substantiate the plea. Thana denied the allegations levelled against him and stated that on the day of occurrence they were cutting berry hedge in Khasra No. 55 belonging to him. But, Ganesha, Khima M* Rambha, Raghunath and Kana tried to take away the thorns of the berry hedge so cut, but were resisted and while proceeding towards the house Ganeshea obstructed their way and came infront and his other companions surrounded them and gave lathi blows to him. That they also gave a beating to Dola and Kana. Roopa, Vala and Saluda appellants came to their rescue. That, they requested the assailants not to pick up quarrel. That, on the next morning, Thana and Dola lodged the reported the police station Dola has given similar statement. D.W. 1 Roopa was examined to substantiate this plea. The remaining appellants denied the allegations levelled against them. The learned trial Judge placed reliance on the prosecution witnesses and passed the judgment under appeal.
16. I heard Mr. P.L. Choudhary, learned Counsel for the appellants and Dr. S.S. Bhandawat, learned Public Prosecutor for the State.
17. From the arguments advanced by Mr. Choudhary, assailing the findings of the learned trial Judge on many grounds and the learned Public Prosecutor controverting those contentions a number of points emerge for determination in this appeal.
18. It has been strenuously contended by Mr. Choudhary that the incident had not taken place in the way prosecution has alleged According to him the injuries sustained by Thana, Dola and Kana have not been explained by the prosecution. The learned Counsel stressed that, had the appellants formed an unlawful assembly with an idea to cause injury to any body of the familly or Khima there was no reason why Vala and Mst. Rambha were spared at first when there was to chance of any body corning to their rescue. According to the learned Counsel the occurrence might have taken place in the way, and then the injured Ganesha and Mst. Ramba might have rushed to the border (Mat) of the field and the prosecution on that ground made out a case for criminal trespass in the field.
19. There is no dispute on the point that the complainant party & Thana, Dola etc. were not on good terms & litigation in the Revenue Courts was going on for the agricultural land. The prosecution case is that, when Vala with his daughter Mst. Rambha was cutting the berry hedge the appellants directed Vala to come out. of the field. There appears to be force in the arguments of Mr. Choudary that at that time the assailants had no intention to cause any injury to Mst. Rambha or Vala, otherwise they would have entered the field and fulfilled their aim in case Mst. Rambha and Vala did not leave the field which Thana and Dola etc. claimed to be theirs This is evident from the prosecution witnesses that the quarrel commenced when Khima and Ganesha were coming towards the field with food for Vala and Mst. Rambha. That, when they had reached near the field of Vada, the appellants surrounded them and gave a beating to them. Apart from the point that the assailants did. not choose to give a beating to Vala with whom they must have felt most annoyed for his cutting the hedge, there is yet another reason fir disbelieving that part of the prosecution story. In his initial version before the police Vala has not stated about such a warning to him. Attention to the witness was drawn to the omission of such an important fact in his statement Ex. D. 1 & the only explanation given by him was that he had stated so but cannot say why it does not find place in that statement. In this view of the matter this appears to be more probable that quarrel in whatever circumstances it might be, had taken place in the way (Galiyara As stated earlier Dr. Hirani has examined the injuries of Thana, Kana and Dola on February 3,1976. Taking into consideration the duration of injuries of these persons and those of Mst. Rambha, Khima and Ganesha examined on February 1,1976, the Doctor has opined that the injuries of Ganesha, Khima, Mst. Rambha, Kana, Thana and Dola could occur at the same time. The Investigating Officer Sardar Khan (P.W. 9) has admitted that Thana had also lodged the report about this occurrence. Thus it is established that Thana, Kana and Dola appellants had sustained injuries in that very incident.
20. The next question for consideration would be whether the injuries of the three appellants Kana, Thana and Dola were of the type that there may be justification for their causing a number of injuries to Ganegha and Khima & also to Mst. Rambha who was decidedly not there in the way when the quarrel must have commenced. It is also to be decided as to which party was the agressor.
21. In this concern it will be relevant to note that the injuries of Kana, Thana and Dola are of minor nature and possibility of sustaining such injuries in a scuffle initiated by their own group cannot be ruled out. The non-explanation of such superficial injuries cannot be fatal to the prosecution case if otherwise proved. Another point relevant for the purpose is that Ganesha and Khima were unarmed and were only two in number whereas the appellants were six in number. As stated by the injured witnesses Mst. Rambha, Ganesha, Khima as well as Vala and the independent witnesses Jhunjha and Jeewa, Dola appellant was having an axe and the remaining appellants were having lathis in their hands at the time. In such circumstances, I find full force in the arguments of the learned Public Prosecutor that the accused party must have been the aggressor.
22. It has been stressed by Mr. Choudhary that from the prosecution evidence itself, it is evident that Thana, Dola, Kishna etc. were having their field there and if it was so then their presence there cannot be said to be an assemblege for unlawful purpose, it had also been submitted that there is nothing strange for the agriculurists being at their fields, having axe and lathis in their bands.
23. The group of six persons of the assailants might have been already there, but their surrounding Ganesha and Khima while passing on the way, Dola starting the quarrel by inflicting axe blow with sharp side, there after the remaining appellants causing injuries to them with lathis and Dola also striking another blow with the blunt side of the axe are the factors sufficient to establish that these persons while attacking the victims had a common object. So far as Mst. Rambha is concerned, the prosecution case is that when Ganesha and Khima were being dealt with by the assailants she rushed to their rescue and fell over Ganesha. That it was at that time hat Thana and Kishana caused injuries with lathi to her.
24. The important point for determination is whether the injuries were caused to Ganesha, Khima and Mst. Rambha by the assalilants by trespassing the field belonging to the complainant party as to make them liable for the offence under Section. 447 I.P.C. It has been vehemently argued by Mr. Choudhary that prosecution has failed to bring on record by positive specific evidence, as to whom the field in which Ganesha and Mst. Rambha are said to be lying after the incident, belonged. It has been contended that litigation was going on regarding 'Dayri Wala Field' and Khasra No 55 is claimed by Thana by inheritance from his ancestors. Vala has stated that the field of dispute was purchased by them from Uda, uncle of accused Thana.
25. It is pertinent to note that the Investigating Officer has not cared to look in to the Revenue Record of examining the 'Patwari' concerned or directing the complainant party to produce the documents with them to bring the relevant facts before the Court, it is also note worthy that Investigating Officer Sardar Khan has not cared to make the measurement of the place where the cut up berry hedge was lying so as to show as to from which part of the field they were cut My attention has been drawn by Mr. Choudhary to the statement of Vala to substantiate the arguments that 'Dayri Wala' field belonged to the accused party and there was dispute about it. According to the witness Vala (P.W. 1) he had the sale deed for purchase of 'Dayri Wala' field in the S.Y. 2017. he admitter that he had not produced that document before the police. According to him that document was produced in the court of Munsif Magistrate, Sanchore in another case and he did not make efforts to obtain its copy. The witness e expressed his ignorance about the names of Kishna, Thana, Uda, ect. being there in the record. He then stated that names of Kishna and Thana were recorded there but they were wrongly recorded so. He stated that 'jama-bandi' of the field was in the name of Dhira from whom he purchased the field but admitted that he had not produced the copy of 'jama-bandi' before the police. He further admitted that Dhira having lost the case in the Court of Revenue Appellate Authority, Jodhpur had gone to file the appeal before the Board of Revenue. The witness admitted that he or his father had never initiated proceedings to get the entries corrected. The witness expressed ignorance about the Khasra number of his field. He admitted that 'Dayri Wala' field belongs to the accused. Then in the next breath he stated that it was another 'Dayri Wala' field. The prosecution has not come with a case that there are two 'Dayri Wala' fields, one belonging to the complainant party and other to the appellants. The case of the prosecution rather is that, 'Dayri Wala' field belongs to the complain ant party and the assailants objected to their enjoying it. The witness them stated that from S.Y. 2019 the field, where the incident had taken place came in their 'Khatedari'. That, they had purchased that field from Uda, uncle of appellant Thana. He could not tell the year of the purchase. He further stated that the registered sale-deed in that concern was with him but the same was not produced before the police. If there were documents regarding the purchase of fields by the complainant party from the uncle of appellants Thana there was no reason for the prosecution for not getting those documents produced. From this type of evidence and the carelessness of the prosecution for not bringing relevants material on the record to establish to whom the field in question belonged, coupled with the absence of the specific evidence as to which exactly was the field which can be said to be the place of incident I am inclined to hold that the cause of criminal tres-pass in a field belonging to the complainant party cannot be said to be made out. At this point, it is near important to consider that Khima was found lying injured in the way near the field of Vala and not in the field claimed by the complainant party. This falsifies the prosecution case that Khima and Ganesha both had entered the filed where Vala was & were given a beating by the assailants there. This also falsifies the version of Mst. Rambha that she had rushed to the rescue of Ganesha and Khima when both of them reached the field where the witness was. In view of the fact that Khima was found laying injured on the road. It some distance from the field where Vala and Mst. Rambha are said to be, Mr. Choudhary has emphatically argued that the possibility of Ganesha being given a beating near the field of Vada & Mst. Rambha reaching there & sustaining injuries cannot be ruled out. According to the learned Counsel Mst. Rambha and Ganesha were found lying not inside the field but on the border (mat) of the field which also shows that the appellants had not entered the field. The argument has force. In his view of the matter, the appellants cannot be held guilty for any criminal tres-pass so as to justify their conviction for the offence under Section 447 of the Indian Penal Code.
26. appellant Dola has been guilty under Section 326 IPC for causing grevious injury to Ganesha with a sharp edged weapon. He has also been held guilty for the offence under Section 325 and 323 with the help of Section 149 IPC for the injuries to Ganesha, Khima and Mst. Rambha. The remaining appellants have been held vicariously liable for the act of Dola in causing grevious injury with sharp edged weapon to Ganesha and for their own acts in causing grevious injuries to Ganesha and Khima and simple injuries to Mst. Rambha.
27. In order to find out whether the conviction of the appellants in the way stated above is sustainable or not, thorough study and discussion of the injuries of Ganesha, Khima and Mist. Rambha in the light of the statement of the witnesses and the medical opinion of Dr. Hirani (P. W. 6) is required.
28. So far as Mst. Rambha (PW 2) is concerned, her injuries said to have been caused by lathis, were minor and in the opinion of the Doctor were simple in nature. She had remained in the hospital for thirteen days.
29. So far as injuries of Khima are concerned, the learned trial Judge has not discussed their nature There is the evidence of Vala and Mst. Rambha to the effect that he remained in the hospital for 27-28 days and during that period he was not able to follow his ordinary pursuits of life. Dr. Hirani has stated that Khima remained admitted in the hospital for 20 days but he was able to follow his ordinary pursuits such as walking, easing himself and he was able to take his meals. The Doctor has further stated that he was able to go to the Chemists Shop and bring medicines.
30 Khima has not been examined at the trial as he is very old and had completely lost his power of hearing. Dr. Hirani has specifically deposed that the injuries of Khima and Mst. Rambha were superficial. The injuries being superficial, cannot be said to be dangerous to life. With this type of medical evidence, merely because Khima remained an indoor patient for 20 days, his case cannot be said to be covered by Clause VIII of Section 320 IPC so as to designate his injuries to be grevious In this view of the matter the as aislants can be held responsible either for their own acts or vicariously only for causing simple injuries to Mst. Rambha and Khima.
31. The learned trial Judge has not discussed the nature of the injuries of Ganesha from the view point whether Sections 326 and 325 IPC were atteracted or not. It so appears that because of Dola remaining in the hospital for 20 days the learned Judge has held the appellant Dola guilty under Section 326 and 325/149 I.P.C. The careful examination of the statement of Ganesha and Mst. Rambha will be helpful to ascertain whether the above conclusion of the learned trial Judge is correct or not.
32 Mst. Rambha and Ganesha have stated about thel(sic) atter remaining admitted as an indoor patient in the hospital for 27-8 days. Both of them have also stated about his inability to follow his ordinary pursues of life in that period The veracity of their statements is to be judged from the medical evidence of Dr. Hirani.
33. According to Doctor Hirani, for injury no 3 of Ganesha (incised wound) he could not clinically detect a fracture. The Doctor could not say whether Ganesha got himself x rayed or not but he (Doctor) did not receive any x-ray report. Dr Hirani has further stated that in the absence of Radii-logical confirmation this injury should now be treated as simple injury. He also could not say whether death could have been caused instantly if the treatment would not have been given. The Doctor further stated that in the case of Ganesha, his vital parts were hit but, he could not say whether any vital part was damaged or not. Dr Hirani also deposed that for injury no. 6 of Ganesha he had advised x-ray but did not receive any x-ray plate or report. Thus there is no Radiological opinion about any of the injuries sustained by Ganesha to be grevious.
34. The statement of the Doctor will have to be seen further to find out whether all the injuries of Ganesha or any of them can be said to be grevious for the reason of his remaining in the hospital for more than 20 days. In other words, whether Ganesha was unable to follow his ordinary pursuits of his life for a period of 20 days or more so as to bring his case within the ambit of Clause VIII of Section 320 I.P.C. Dr. Hirani has stated that after ten to twelve days or fifteen days, Ganesha was able to take his meals by himself but he was unable to walk. For going to lavotary he required some assistance. The necessity for this assistance according to the Doctor was because of his feeling giddiness and vertigo due to severe bodily pains. The Doctor further stated that the patient required assistance because he was getting giddiness, vertigo and severe bodily pain due to multiple injuries. According to the Doctor gid(sic)einess was due to cummulative effect of all the injuries and not otherwise.
35. Mr. Choudhary emphatically argued that on account of the injuries Ganesha might be feeling giddiness and vertigo and therefore inability to fellow ordinary pursuits of life cannot be attributed to any particular injury. According to Mr. Choudhary there being specific opinion of the Doctor for injury by the sharp edged weapon being simple in nature it cannot be said with certainty that injury was in itself responsible for the giddiness and vertigo of the patient. The learned Counsel stressed that there is the specific opinion of she Doctor that it was the bodily pain and not any particular injury which was responsible for ibis condition of the injured. The Doc or has stated about the cummulative effect of all the injuries causing bodily pain leading to the giddiness of the patient There is force in the contention of that learned Counsel that as there were three lacerated wounds on the parital region and scalp there was greater possibility of the blunt object injuries on the head, as well as en other parts of the body, causing pain resulting into giddiness and vertigo. It is well settled that when two possible opinions can be forming the one in favour of the accused should be preferred This being the position, the case falls within the ambit of Section 325 and 324 IPC and not under Section 326 IPC.
36. With the above discussion in view the question emerges as to for which offences the appellants are liable to be convicted. All of them have been held guilty for forming an unlawful assembly. Appellant Dola was armed with an axe. a sharp edge weapon and therefore, his conviction for the offence under Section 48 IPC is justiciable. So far as the remaining five appellants are concerned, their being armed only with lathis & those lathis not having been used for causing any fatal injury to any victim, their convection for the offence under Section 148 IPC is not sustainable and they are instead to be convicted for the offence under Section 147 IPC. The sharp edged injury sustained by Ganesha at the hands of Dola having been designated to be simple by the Doctor and in view of the discussion regarding his stay in the hospital Dola is held guilty only for the offence under Section 324 IPC The five other appellants are held guilty for the offence under Section 324/149 IPC for the sharp edged injury of Ganesha caused by Dola appellant, a member of the unlawful assembly. As it is not clear as to which particular injury inflated by which particular appellant was responsible for the stay of Ganesha in the hospital for more than 20 days disabling him to follow his ordinary pursuits of life on account of giddiness and vertigo it would not be proper to convict any appellant for the offence under Section 325 IPC simplicitor. Hence all of them are convicted for the offence under Section 325 IPC with the aid of 149 IPC. As stated earlier no injury of Khima has been proved to be grevious nor his case falls within the ambit of Clause VIII of Section 320 IPC. All the injuries sustained by Mst. Rambha are simple. Hence for the injuries of Khima and Mst. Rambha all the appellants are held guilty for the offence under Section 323/149 IPC.
37. The next important question for determination would be as to what would be the adequate punishment for the aforesaid offences for which the appellants are held guilty.
38. Learned Counsel for the appellants has prayed that in view of the nature of the injuries inflicted and the fact that the case relates to the year 1976, a lenient view may be taken and the appellants may not be sent behind the bars now. The learned Public Prosecutor does not oppose the prayer for taking a lenient view in view of the facts and circumstances of the case.
39. Appellant Dola had remained in custody for a period of eight months and eight days. The remaining appellants have remained in custody for 13 days each. The case of appellant Dola and the remaining appellants is distinguishable on the ground that the former was armed with an axe and used the same, may it be for causing a simple injury to Ganesha. The remaining accused have only used lathis and no serious injury was inflicted by any of them.
40. Taking into consideration the facts and circumstances and the period the appellants had remained in custody so far, coupled with the fans that more than six years have lapsed since the date of the occurrence, the ends of justice would meet if the substantive sentences awarded to the appellants is confined to the period they had remained in custody along with imposition of fine.
41. Consequently, the appeal is partly allowed. The conviction and sentences awarded to the appellants for the offence under Section. 447 I.P.C. are set aside. The conviction of appellants Dola for the offence under Section 148 I.P.C., is maintained but the sentence awarded to him on that count is reduced to the period he had remained in custody. He is however sentenced to a fine of Rs. 100/-, in default of payment of fine to undergo three months R.I. for that offence. The conviction of Thana, Badia, Kishna, Saluda and Kana appellants for the offence under Section. 148 I.P.C. is converted to one under Section 147 I.P.C. and they are each sent c need to the period they had remained in custody so far & a fine of Rs. 51/- each, in default of payment of fine to undergo one months R.I. for that offence. The conviction of appellant Dola for the offence under Section 326 I.P.C. is converted to one under Section 324 I.P.C. and he is sentenced to the period he had remained in custody so far along with a fine of Rs. 100/-, in default of payment of fine to undergo three months R.I. for that offence. Appellants Thana, Badia, Kishna, Saluda and Kana are convicted for the offence under Section 324/149 I.P.C. and sentenced to the period they had remained in custody so far and a fine of Rs. 51/- each, in default of payment of fine to undergo one month's R.I. each. All the appellants are convicted for the offence under Section 325 read with 149 I.P.C. and sentenced to the period they had remained in custody so far and a fine of Rs. 51/- each, in default to undergo one month's R.I. All the appellants are convicted for the offence under Section 324/149 I.P.C. and sentenced to imprisonment for the period they had remained in custody so far along with a fine of Rs. 25/- each, in default to undergo fifteen days R.I. each. Out of the amount of fine Rs. 200/- would given to Ganesha by wav of compensation. The appellants are allowed two months time to deposit the amount of fine so imposed, in the trial court. O^ their failure to do so, the Chief Judicial Magistrate, Jalore shall effect their arrest and send them to custody to suffer the sentences awarded to them in default of payment of fine.