JUDGMENT 1. - These three appeals arise out of the judgment dated July 22, 1974 of the learned Sessions Judge, Shri Ganganagar. As these three appeals arise out of the same judgment, they are being disposed of by this single judgment. 2. The facts of the case, in brief, are that on August 18, 1973, at about 6 p. m. Sharif and Saddiq were attacked by the accused persons, namely, Man Singh, Bhanwar Singh, Govind Singh, Chen Singh, Tejmal Singh, Samada and Sattar. They were charged with the offences under Sections 147, 302, 302/34, 302/149, 307 and 307/ 149, IPC. Accused Man Singh was further charged with an offence under Section 143 SPC, because he was armed with a "barchi". 3. The prosecution produced nine witnesses. The accused denied the charges and claimed to be tried. The learned Sessions Judge convicted the accused persons as under:- 1. Accused Man Singh, Bhanwar Singh, Tejmal Singh and Samada were sentenced to undergo rigorous imprisonment for seven years, and to pay a fine of Rs. 300/- each, in default thereof to undergo simple imprisonment for three months under Section 320 Part II, read with Section 149, IPC-for causing homicide of Sharif. 2. They were further convicted to three years rigorous imprisonment under Section 325 read with Section 149, IPC. 3. They were also convicted for two years rigorous imprisonment under Section 324, read with Section 149, IPC for rigorous imprisonment for six months under Section 323, read with Section i49, IPC. 4. They were also sentenced to one year's rigorous imprisonment under Section 147, IPC. All the substantive sentences of imprisonment were ordered to run concurrently. 4. The accused Sher Singh, Govind Singh and Sattar were given the benefit of the Probation of Offenders Act provided each one of them furnish within a period of 15 days personal bond in the sum of Rs. 3000/- with a surety of the like amount undertaking to appear and receive the sentences whenever called upon to do so within two years from today (i.e. July 22, 1974, the date of judgement) and in the meantime t. keep peace and to be of good behaviour. 5. Appeal No. 458/1974 has been filed on behalf of Samada. 3000/- with a surety of the like amount undertaking to appear and receive the sentences whenever called upon to do so within two years from today (i.e. July 22, 1974, the date of judgement) and in the meantime t. keep peace and to be of good behaviour. 5. Appeal No. 458/1974 has been filed on behalf of Samada. Appeal No. 500/1974 has been filed on behalf of Man Singh, Bhanwar Singh and Tejmal Singh and Appeal No. 710/1974 has been filed on behalf of Saddiq against Govind Singh, Chen Singh and Sattar who have been released on probation. 6. The learned counsel for the accused-appellants Man Singh, Bhanwar Singh and Tejmal Singh argued on the question of sentence only. Their contention is that looking to the facts and circumstances of the case, the sentence awarded is extremely harsh and penal. It was contended on their behalf that looking to the facts and circumstances the ends of justice would be met if the sentence is reduced to the sentence already undergone by the accused persons. It was contended that the accused Samada was arrested on August 28, 1973, while the accused-appellants Man Singh, Bhanwar Singh and Tejmal Singh were arrested on August 23, 1973. Since then, all the accused persons, except Tejmal Singh, are in judicial custody. Accused Tejmal Singh was released on bail on November 28, 1974. It was contended that taking into consideration the provisions of Section 428, Cr.P.C 1973, the accused-appellants Man Singh, Bhanwar Singh and Samada have already remained in custody for a period exceeding three years and two months, while the accused-appellant Tejmal Singh remained in custody for a period exceeding one year and three months. 7. It was further contended that the case of the accused Tejmal Singh stands altogether on a different footing, and no overtact has been ascribed to him. It was also contended that looking to the facts and circumstances of the case a case for acquittal could have been urged, but if the sentence awarded to the accused-appellant Tejmal Singh is also reduced to the sentence already undergone, it may not be necessary to argue the appeal on merits; 8. It was also contended that looking to the facts and circumstances of the case a case for acquittal could have been urged, but if the sentence awarded to the accused-appellant Tejmal Singh is also reduced to the sentence already undergone, it may not be necessary to argue the appeal on merits; 8. On behalf of the accused-appellants Man Singh, and Bhanwar Singh it was strenuously argued that though the foundation of the entire prosecution case has been completely shaken because of serious infirmities in the prosecution evidence, but the ends of justice would be met if the severity of the sentence is reduced to the sentence already undergone. The learned counsel for the accused-appellant placed reliance on D.B. Criminal Appeal No. 93 of 1972 decided on July 27, 1972 and D.B. Criminal Appeal No. 116/1960. The State of Rajasthan v. Karda Ram & others, decided on August 9, 1962 and Gokaran Singh v. Emperor, AIR 1947 All 67 . It was contended on behalf of the accused-appellant that the sentence inflicted in these cases undoubtedly go to indicate that the sentences awarded in the instant case is too much excessive, and deserve to be reasonably reduced. 9. Dr. D.P. Gupta, PW/8, Medical Officer In-charge, Government Hospital, Suratgarh examined Saddiq at about 3.00 a.m. on August 19, 1973 on the requisition from the police. He found the following injuries on his person:- 1. Multiple contusions (12 in number) of various sizes on the whole of back. 2. Oblique contusion 4" x 1/2" posterio-lateral, aspect of right arm. 3. Contusion with swelling 21/2" x 1/2 on the posterior aspect on the upper one third of right forearm. 4. Incised wound l" x ⅛" between right thumb and index finger. 5. Multiple contusion (6 in number) of various sizes on the posterior aspect of whole left arm and deltoid region. 6. Contusion 11/2" x 1/2" postero-lateral aspect of whole left elbow-joint. 7. Incised wound 21/2" x ⅙" x skin deep on the posterior aspect of middle of left forearm. 8. Contusion and swelling 21/2" x 1/2 posterior upper half of right leg. 9. Multiple contusion with swelling on whole of left forearm of various sizes. 10. In the opinion of the Medical Officer, injury No. 4 and 7 were simple caused by sharp weapon. Injury No. 9 was grievous because there were fractures of left ulna caused with blunt weapon. 11. 9. Multiple contusion with swelling on whole of left forearm of various sizes. 10. In the opinion of the Medical Officer, injury No. 4 and 7 were simple caused by sharp weapon. Injury No. 9 was grievous because there were fractures of left ulna caused with blunt weapon. 11. The Medical Officer examined the dead body of Sharif at 11.55 a.m. and performed his post mortem. The following external injuries were found on his body 1. Incised wound 11/2" x 1/2 x 1/4" on the left parietal region. 2. Contusion 3/4 x ⅓" on the site of left mastoid process. 3. Oblique contusion 2" x 1/2" on left side of neck anteriorly. 4. Incised wound x ⅙" x bone deep on the posterior aspect of left elbow joint. 5. Incised wound 11/4" x ⅙" x bone deep on the posterior aspect of lower ⅓rd of left arm. 6. Oblique contusion 21/2" x 1" on the posterior aspect of middle of left forearm. 7. Multiple contusion various sizes whole of left shoulder and posterior aspect of ⅔rd of left arm. 8. Abrasion 3/4" x 1/2" lateral part of left chest. 9. Contusion 1" x 1/2" medial aspect of right knee joint. 10. Contusion 2" x 1/2" antero-medial aspect of upper l/3rd of right leg. 11. Incised wound 3/4" x ⅙" bone deep antero lateral aspect o f just middle of right leg. 12. Punctured wound 3/4" x ⅙" x muscle deep lateral aspect of middle of left thigh. 13. Incised wound 1" x ⅙" x bone deep postero lateral aspect of lower l/3rd of left leg. ' 14. Incised wound 3/4" x ⅙" bone deep on the postero lateral aspect of lower one third of left leg. 15. Multiple contusions various sizes whole back, both buttocks and posterior aspect of both thighs. 12. On opening the body, he found that a fracture of left fibula was caused. There was fracture in the 8th ,rib of the left side, parietal plura of the left side at the site of the fracture was injured and the plura cavity contained 1/2 oz. of blood. 13. The learned Sessions Judge found that the common object was to assault Sharif and Saddiq. There was fracture in the 8th ,rib of the left side, parietal plura of the left side at the site of the fracture was injured and the plura cavity contained 1/2 oz. of blood. 13. The learned Sessions Judge found that the common object was to assault Sharif and Saddiq. It was also contended that the `'gandasi" which is said to be the weapon of offence could not-have caused the injuries as described, and this contention is supported by the opinion of the Medical Officer. 14. In Gokaran Singh v. Emperor, AIR 1947 All 67 it was held that where the accused were caught red-handed in the act of stealing and on taking to their heels they were chased and obstructed by A and B, whereupon accused hit B with a spear, of which injury B died subsequently. It was held that the intention of accused in hitting B was not to kill him or even to injure him seriously but to facilitate theft and hence the sentence of two years in place of 5 years under the second part of Section 304. Penal Code would serve the ends of justice. In the present case, in the opinion of the Doctor there has been no injury on the vital part or the body. Secondly, the learned Sessions Judge has held that the common intention of the accused was only to cause an assault and no more. 15. In D.B. Criminal Appeal No. 93 of 1972 Karrai v. The State of Rajasthan, decided on July 27, 1972 , the conviction under Section 302, IPC was set aside and the accused was convicted under Section 304, Part 11 IPC, and was sentenced to two years rigorous imprisonment. The learned Additional Sessions Judge, Sirohi had, however, convicted him under Section 302, IPC and sentenced him to imprisonment for life. This was a case where the son had inflicted injuries by "lathi" on the head of his father resulting in latter's death. In D. B. Criminal Appeal No. 116 of 1960, The State of Rajasthan v. Karda Ram & others, decide on August 9, 1962 , the order of acquittal was set aside and the accused was convicted under Section 325 read with Section 149 and Section 147, IPC and was sentenced to two years rigorous imprisonment. 16. In D. B. Criminal Appeal No. 116 of 1960, The State of Rajasthan v. Karda Ram & others, decide on August 9, 1962 , the order of acquittal was set aside and the accused was convicted under Section 325 read with Section 149 and Section 147, IPC and was sentenced to two years rigorous imprisonment. 16. On behalf of the accused-appellant Tejmal Singh it was contended that no part is ascribed to him and at best he was only an onlooker there. Reliance was placed on Suraj pal v. State of U.P., AIR 1955 SC 419 and Bajwa v. State of U.P., AIR 1973 SC 1204 . It was also contended that no useful purpose would be served by recalling this accused-appellant and sending him behind the bar at this belated stage. It was also contended that the ends of justice would be met if the sentence undergone by him is deemed sufficient in the instant case. 17. In Criminal Appeal No. 710/1974, Saddiq has prayed that the benefit of probation of Offenders Act which has been extended to the three accused persons, namely Govind Singh, Chen Singh and Sattar should be withdrawn and they should be sentenced to substantive sentences. It was contended that the mere fact that the accused persons happen to be below the age of 21 years does not entitle them to be released on probation. It was also contended that the severity of the offence, the injury inflicted and the intention of the crimp, should be the main criterion for judging whether an accused should be given the benefit of the Probation of Offenders Act.Reliance was placed on Kamli v. The State, 1963 RIW 288 and Krishnanand v. Harbans Singh, 1967 RIW 101. 18. On behalf of the respondents, it was contended that there was no injury on the vital part of the body. The common intention of the accused-appellant was only to assault and not to cause death, and that both of them were below the age of 21 years. Reliance was placed on Shri Ram v. The State, 1973 RLW 495 and A. M. Sinha v. A. K. Biswas, AIR 1974 SC 1818 . It was contended that in Shri Ram v. The State, 1973 RLW 495 , the offence was under section 304, Part II, IPC, and this is a case which applies on all fours to the present case. It was contended that in Shri Ram v. The State, 1973 RLW 495 , the offence was under section 304, Part II, IPC, and this is a case which applies on all fours to the present case. It was also contended that in A.M. Sinha v. A. K. Biswas, AIR 1974 SC 1818 , it was held that this is a legislation intended to give an opportunity to the offenders to rehabilitate themselves again. Looking to the facts and circumstances of the case, no case has been made out for an interference on the appellate side against the order of the learned Sessions Judge whereby the benefit of the Probation of Offenders Act was extended to these three accused persons namely Govind Singh, Chen Singh and Sattar. The appeal filed on behalf of Saddiq is, hereby dismissed as having no force. 19. As regards the quantum of sentence in the appeals filed on behalf of Man Singh, Bhanwar Singh, Tejmal Singh, and Samadi, the learned counsel for the complainant and the learned Public Prosecutor did not challenge the reasonable reduction in sentence, if the convictions of the accused-appellants are upheld. 20. Having given my most anxious consideration to the aspect of the case, I feel that the ends of justice would be met if the sentences awarded to the accused appellants Man Singh, Bhanwar Singh and Samada are reduced to the sentence already undergone. As regards Tejmal Singh there is no overact which has been assigned to him. He has already remained in custody for one year and three months. The ends of justice would be met in this case if the sentences awarded to him are reduced to the sentence already undergone by him keeping in view the ratio decidendi laid down in Surajpal v. State of U. P., AIR 1955 SC 419 and Rajwa v. State of U.P., AIR 1973 SC 1204 . 21. For the reasons stated above, the appeals Sled by Samada, Man Singh, Bhanwar Singh and Tejmal Singh are allowed in part. Their convictions under various sections awarded by the learned Sessions Judge, Shri Ganganagar, are hereby confirmed, but the sentences are reduced to the period already undergone. The appeal filed by Saddiq against Chen Singh, Govind Singh and Sattar is hereby dismissed. The accused-appellants Man Singh, Bhanwar Singh and Samada shall be released from judicial custody forthwith if not required in any other case. The appeal filed by Saddiq against Chen Singh, Govind Singh and Sattar is hereby dismissed. The accused-appellants Man Singh, Bhanwar Singh and Samada shall be released from judicial custody forthwith if not required in any other case. The accused Tejmal Singh is already on bail. He need not surrender to his bail and bonds. His bail and bonds are hereby directed to be cancelled. *******