M.L. Jain, J.
1. This appeal bas been preferred against the judgment of the learned Sessions Judge, Jhunjhunu dated 23-10-71 by which he convicted the accused appellants as follows:
1. Jai Narain--(a) under Section 452 IPC. to rigorous imprisonment for two months:
(b) under Section 524 IPC, to pay a fine of Rs. 100/- in default whereof to undergo rigorous imprisonment for two months.
2. Prabu Ram & Lekh Ram--(a) under Section 452 IPC, to rigorous imprisonment for two months:
(b) under Section 324 read with 34 IPC, to a fine of Rs. 100/-in default whereof rigorous imprisonment for two months.
(c) under Section 323 IPC, to fine of 50/ in default whereof to rigorous imprisonment for one month.
3. Sugan Chand--under Section 324 read with 34; 323 and 452 IPC He was released on probation under Section 4 of the Probation of Offenders Act.
2. I have beard the arguments and seen the record. The brief facts are that on 5.5.68 at about 5 a. m the accused Jai Narain, Lekhram, Prabhu Ram and Sugan Chand entered the Nohra of Jagnaram and belabored Jagna Ram. Jai Narain gave a Farsi blow on the bead of Jagna Ram and the remaining accused beat him with lathis. The occurrence was seen by Megh Singh Ram Niwas and Suhala sons of Jagna Ram and Madhi wife of Jagna Ram and Kaloo Ram Abir and Sugna Ram. The accused while fleeing the scene of occurrence also delivered lathi blows to Mst. Madhi and Suhala.
3. The medical report of Dr. Nawab Ali disclosed that Jagna Ram received an incised wound 4' x 1/2' x 2' on the right temporal region and 7 bruises covering the right thigh, right buttock, right leg, left thigh, left buttock left side of chest, and left scapular region and one abrasion on the right scapular region. Mst. Madhi got a lacerated wound on the buttock, one bruise on her left thigh and another on her right thigh. Ram Niwas had a lacerated wound on the forehead 1' x 0.3' x 0. 2'.
4. The case of the prosecution was proved by the evidence of Megh Singh PW 1, Ramnivas PW 2, Sohala PW 3, Sugna Ram PW 4. Madhi PW 6 and Jagna Ram PW 7. All of them corroborated the prosecution case.
5. Accused Jai Narain and Sugan Chand pleaded alibi Prabu Ram and Lekhram pleased not pleased not guilty. All the accused pleaded that the were falsely implicated because Suhala and Ram Niwas had stabbed Shri. In defance they also produced Banal DW 1 who deposed that Jagna Ram was employed by him for construction work Jagnaram fell down from the roof & suffered injuries. Ram Chandra DW 2 is a neighbor of Jagna Ram and stated that he beard do noise of any occurrence at the alleged time and place.
6. The learned Sessions Judge rejected the defence version and relying upon the evidence of the prosecution witnesses convicted and sentenced accused appellants as aforesaid.
7. The learned Counsel for the appellants submitted that the occurrence took place in the year 1968 and the learned Magistrate has awarded a sentence of two months imprisonment only to Jai Narain for causing a sharp weapon injury on the head of Jagnaram. The case of the accused appellant is not different from that Sugan Chand and all of them should given the benefit of probation. The age of Jai Narain was estimated by the learned Sessions Judge to be 50 years, the age of Prabhuram 33, Lekhram 40 and Sugan Chand 24.
8. I have considered over this request and it appears to me that there is considerable force in what the counsel for the appellants has urged. The case of Sugan Chand and the case of Prabu Ram and Lekhram are certainly not distinguishable. It, Sugan Chand was entitled to the benefit of probation then there appears little reason why the other tow should not be similarly treated. As regards Jai Narain, looking to his age and the sentence that has been awarded to him he also appears to be similarly dealt with I therefore, conceding the circumstances of the case, nature of the offence and the character of the offenders, find it to be a fit case in which he benefit of probation should be extended lo the appellants.
9. Consequently, I reject the appeal of Sugan Chand. I partly accept the appeal of Jai Narain, Prabu Ram and Lakhram and while main raining their convictions, set aside their sentences and direct the instead, each of them shall be released provided he furnishes personal bond in the amount of Rs. 1000/- with surety in the like amount to the satisfaction of the learned sessions Judge undertaking to appear and receive sentence when called upon to do so within a period of one year from today and in the meantime to keep peace and be of good behaviour. The personal and surety bonds shall be furnished in the court of the learned Sessions Judge, Jhunjhunu within two months of the receipt of this judgment in his court, If the appellants tail to so furnish the bonds the appeal shall be deemed to have been dismissed.