Judgment:
Jas Raj Chopra, J.
1. This is an appeal against the judgment of the learned Additional Sessions Judge, Udaipur dated 28-2-1978 where by the learned trial court has acquitted the accused persons Sunder Lal and Sharafat Khan of all the offences with which they were charged, but has convicted accused Ganesh Lal of offence under Section 326 IPC and has sentenced him to undergo four years rigorous imprisonment together with a fine of Rs. 500/-. In default, he has been ordered to undergo simple imprisonment for two months. It has further been ordered that if the amount of fine is recovered, Rs. 330/- out of this recovered amount of fine shall be paid to injured Ramesh as compensation. The facts necessarily to be noticed for the disposal of the appeal briefly stated are that on 12-5-76, at about 12.30 in the day injured Ramesh Chandra was sitting in his floor mill at Bhopalpura. He was talking to one Abid Ali who is his neighbour. All of a sudden, accused Ganesh Lal, milk vendor, his brother Sunder Lal and Ganesh Lal's friend Sharafat along with 8-9 other persons came there. Only Ganesh Lal, Sunder Lal and Sharafat entered into the floor mill of Ramesh and started beating him. Ganesh Lal was armed with a knife. Sunderlal was armed with an iron shaft and Sharafat was having a iron chain with him. Ganesh Lal thurst his knife into the stomach of Ramesh. At that point of time, Ramesh's brother Raju, Amar Singh Kothari Mansingh etc. arrived at the scene of (he occurrence. The accused persons thereafter left in a huff, leaving behind their cycle, iron chain, cloth bag etc., Condition of Ramesh deteriorated. He was therefore shifted to the hospital where his injuries were examined and he was operated.
2. Written report of the incident was lodged at the P.S. Bhopalpura by one Abid Ali which has been marked Ex. P.2. The injury report which also contains the operation notes has been marked Ex. P.S. Formal FIR recorded on the basis of the Ex. P.2, has been marked Ex. P.5 Sight inspection memo which also contains plan has been marked Ex.P.7. Blood stained clothes of Ramesh were seized vide seizer memo Ex.P. 8. The cycle chain and cloth bag etc. were seized vide seizer memo Ex. P. 9 The accused was arrested. At his instance knife was recovered from his possession. The blood stained clothes and knife were sent for medical and serological examination by the S.P. Udaipur with a letter marked Ex. P.6. Medical and Serological reports received in the case have been marked Ex. P. 10 and Ex. P. 11 respectively. After usual investigation, the case against the three accused persons was challanged in the court of Munsif and Judicial Magistrate 1st class. Udaipur from where it was committed for trial to the Sessions Judge, Udaipur. The learned Sessions Judge transferred this case for trial to the court of the Additional Sessions Judge, Udaipur. Accused Ganesh Lal was charged with offences under Sections 148, 449, 307, 326 and 323 IPC. Other accused persons were also charged with number of offences need not be mentioned out because they have been acquitted of all the charges framed against them. Accused Ganesh Lal has been acquitted of the offences under Sections 147, 449, 307 and 323 IPC. He has however, been held guilty of the offences under Section 326 IPC and hence this appeal by Ganesh Lal also.
3. I have heard Mr. Mahaveer Chand Bhandari for the accused appellant and Mr. B.C. Bhansali, Public Prosecutor for the State. I have also meticulously gone through the records of the case. The learned lower court felt that the case against two companions of Ganesh Lal put forth by the prosecution at the trial is doubtful. According to the learned lower court five of more than 5 persons did not participate in the crime and therefore the offence of rioting was not proved against the accused appellant. It only held that the knife blow was inflicted by Geneshlal in the stomach of Shri Ramesh and therefore it has held accused Ganesh alone guilty of the offence under Section 326 IPC. The injury inflicted by Ganesh was appeared to be dangerous to life as per the testimony of Dr. Dangi. This injury in stomach was not likely to cause death and therefore the accused has been acquitted of the offence under Section 307 IPC. The injury being grievous by the sharp weapon, the accused has been held guilty of causing a sharp weapon injury which is dangerous to life and as such provision eightly of Section 320 IPC is attracted which is punishable under Section 326 IPC. The learned counsel of the accused appellant challenged the finding recorded by the learned trial court Under Section 326 IPC. From the testimony of the PW Ramesh Chandra PW 2 Abid Ali, it is clear that this injury was inflicted by Ganesh Lal with a knife in the epigastrium region of Ramesh Chandra. The size of the injury was 1-1/2 into 1/4' into cavity deep obliquely placed over the upper part of epigastrium. On operation of his wound following pathology was observed by Dr. Dangi:
'1/2' long transverse in direction, sharp injury in the epigastrium 1/2' below the siphoid process penetrating all layers of abdomen upto liver anterior superior surface, 1/2' depth, paritorial cavity containing blood.
4. This injury report Ex. P. 2 which contains the operation notes has been proved by PW 7 Dr. D.C. Dangi. According to Dr. Dangi this injury was dangerous to life because it has cut all layers of abdomen and partionial cavity contained uncloited blood. From this evidence 1 am convinced that the learned lower court was justified in holding the accused guilty of the offence under Section 326 IPC.
5. Mr. Bhandari has however addressed the court mainly on the point of sentence. According to him it is a case of mutual rivalry. The accused himself has received three injuries and all the three injuries are placed on his head. DW 2 Dr. G.L. Dad has proved that all these three injuries were placed on the head of Ganesh Lal. One of these injuries was by sharp weapon. The other two injuries were by blunt weapon. The sharp weapon injury measured 4 1/2 cm. x 1/3 cm. It was placed on the right parietal region of the sealp. Injury was bleeding. The other two injuries which were by blunt weapon also existed on the scalp and occipital region. His injury report has been marked Ex. P. D 2 which has been proved by Dr. G.L. Dad. The complainant side has explained how this accused came to receive these three injuries on his head, one of which is by sharp weapon. He has therefore submitted that lenient view may be taken so far as sentence is concerned. The accused is not a previous convict. He has been facing the ordeal of this trial from 12-5-76 i.e. more than 9 years have elapased from the dates of the occurrence. The accused has already remained in custody from 12-5-76 to 18-6-76 and from 28-2-78 to 6-5-78 i.e. for one hundred days in all. Looking to the fact that he too has been injured seriously and further looking to the fact that he did not repeat the blow and this being his first conviction and considering the fact that he is under agony of a protracted trial for the past about 9 years, it will not be just to send him back to the custody. The learned Public Prosecutor has however stated that grevious injury by sharp weapon has been caused and, therefore, no leniency should be shown to the accused.
6. I have given my most earnest consideration to rival submissions made at the bar. It has been the consistent view of this court that in such matters after lapse of such a long time, it is unjust to send back an accused to custody unless there are special reasons to hold otherwise. In this case this is the first offence of the accused. The accused has not repeated the assault. He is faving this trial for over a period of nine years. Under these facts and circumstances, I feel inclined to take a lenient view so far as sentence is concerned. Taking an overall view of the facts and circumstances of this case I deem it just and proper to sentence the accused to the period of custody. However, the amount of fine imposed against him is raised to Rs. 1,000/-.
7. The result is that this appeal is partly accepted. The conviction of the accused appellant under Section 326 IPC is hereby maintained, but the substantive sentence is reduced to the period of his custody and the amount of Rs. 500/- levied against him as fine is raised to that of Rs. 1,000/-. In default, the accused shall further undergo six months rigorous imprisonment. If the fine is recovered Rs. 600/- be paid as compensation to Shri Ramesh Chandra injured.
8. The learned counsel of the accused appellant Ganesh Lal prayed for two months time to deposit the amount of fine. Time prayed for is allowed. If the amount of the fine imposed against Shri Ganesh Lal accused is not deposited within this period of 2 months the learned Additional Sessions Judge No. 1 Udaipur is directed to effect the arrest of the accused Ganesh Lal to serve out the sentence imposed against him, in default of the payment of the amount of line. The appeal is decided accordingly.