JUDGMENT 1. - This appeal is directed against the judgment passed by the Additional Sessions Judge, Jolare dated Novembar 15,1976. By that judgment, appellant Tharw was convicted for the offences under Sections 325, 392 and 392/397 I.P.C. and sentenced to three years' rigorous imprisonment and a fine of Rs. 2000/ , in default to undergo six months' rigorous imprisonment for the first count 11/2 years' rigorous imprisonment and a fine of Rs. 2000/-. in default to undergo six months' rigorous imprisonment for the second count and seven years' rigorous imprisonment for the third count. Appellant Saddiq was convicted for the offences under Sections 325 read with Section 34, I.P.C. and 392 I.P.C. and sentenced to 11/2. years rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine to undergo three months' rigorous imprisonment for the first count and 11/2 years' rigorous imprisonment and a fine of Rs. 2000/-, in default of payment of fine to undergo six months' rigorous imprisonment for the second count. Briefly stated, the facts of the case giving rise to this appeal are that on April 24,1976 at 4.P.M. Kesa Mali resident of village Padardi (Duthva) filed an oral report at police station Sarvane to the effect, that his brother Dana had gone to Urniawali village on the previous day to Varda with whom he had pledged two `Mootha' of Tariya (golden ornaments for the neck). That, at the time Dana was having Rs. 1660/- with him. On his way Dana had stayed at the threshing ground of Davraj. The two accused are said to have gone to Dana and asked him to accompany them so that the amount to be paid to them in lieu of the compromise in the matter under Section 107, Cr.P.C. may be settled by Koopsingh. Dane refused to accompany them as he was going to Varde to redeem his ornaments. After some time Dana left that place. When he had gone a few miles away from that place, the two appellants met him and gave a besting to him. They Snatched Rs. 1660/-from him. Sadram son of Daula informed latter about somebody lying in the bushes in injured condition. Daula whose field was only at a little distance, went to that place and found Dana lying in injured condition. They Snatched Rs. 1660/-from him. Sadram son of Daula informed latter about somebody lying in the bushes in injured condition. Daula whose field was only at a little distance, went to that place and found Dana lying in injured condition. Daula than informed Kesa, brother of Dana, who as stated earlier, lodged the first information Report at police station, on the next day at 4.P.M. Prior to that Dana had been taken to the hospital Sanchore where he was admitted for the treatment of his injuries. After registering a case, S.H.O. Police Station Sanchore proceeded to the site and investigated into the matter. After completion of investigation, charge-sheet against the two appellants was filed in the court of Munsif & Judicial Magistrate under Sections 307, 325 and 397 I.P.C.The learned Magistrate committed the accused to stand their trial in the court of Additional Sessions Judge, Jalore. The learned Sessions Judge proceeded with the trial. Believing the prosecution evidence the learned Additional Sessions Judge held the appellants guilty for the aforesaid offices and passed the judgment under appeal. 2. The learned counsel for the appellants strenuously contended that prosecution has utterly failed to establish, that any money was with the injured Dana at the relevant time and the same was snatched by the appellants. Another argument advanced is that the information in the case was lodged after an inordinate delay on the next day at 4.P.M. It has also been stressed that the prosecution could not substantiate that there was any grievous injury sustained by Dana so as to bring the case within the ambit of Section 325, I.P.C. 3. The learned Public Prosecutor controverting these contentions submitted that the injured was first taken to the hospital and that explains the delay in lodging the First Information Report. Regarding the charge of robbary, the contention of the learned Public Prosecutor is that there is the evidence of Devraj to substantiate the contention of Dana that he had money at the time and he had told the accused that he was going to radeem his ornaments from vardha and for that reason refused to accompany them for the settlement of the amount relating to the compromise. Learned Public Prosecutor stressed that it is after proper appreciation of evidence that the learned Additional Sessions Judge has found the appellants guilty and his judgment calls for no interference. 4. Learned Public Prosecutor stressed that it is after proper appreciation of evidence that the learned Additional Sessions Judge has found the appellants guilty and his judgment calls for no interference. 4. From the perusal of the record it is evident that prosecution has placed reliance only on the oral testimony regarding the charge of robbary despite the fact that written document was in existence according to the injured himself. Dana has specifically stated that the pledging of the ornaments with Verdha was reduced in writing. He also stated that he had obtained a receipt from Verda which was with him. For the reasons best known to the prosecution no receipt has been taken in possession from Verda, nor has any reason given for the Investigating Officer not doing so. The Investigating Officer has stated that he made an inquiry from Verda, but because of his refusal to have any such transaction with Dana, he did not record his statement. The defence has been very vigilant to examine Verda as D.W. 1 who has denied any such a transaction of pledging the ornaments with him by Dana. When there is such specific evidence of Varda and there is no suggestion even in his cross-examination that he was concealing the fact. I find full force in the contention of the learned counsel for the appellants that the story pledging the ornaments has been demolished by his evidence. It is relevant to note that the terms between the appellants and Dana were not cordial. Already there had been proceeding under Section 107 Cr.P.C. initiated by Dana.If it was so it is not palatable that Dana, of all the persons, would tell the appellants, his enemies, that he was at the time having money with him and going to another village. It is also noteworthy that no evidence of any sort has been brought on record to point out wherefrom Dana got that money. Thus, the story of Dana having Rs. 1660/- with him at the time of incident does not appear to be correct. I am, therefore, inclined to hold that prosecution has failed to substantiate its case for the offence under section 392 and 392/397 I.P.C. against the appellants and their conviction for that count can not sustained. 5. Thus, the story of Dana having Rs. 1660/- with him at the time of incident does not appear to be correct. I am, therefore, inclined to hold that prosecution has failed to substantiate its case for the offence under section 392 and 392/397 I.P.C. against the appellants and their conviction for that count can not sustained. 5. Regarding the injuries sustained by Dana, his statement stands supported by Daula and Kesha who had immediately reached near him on being informed by Sadram and seen him in injured condition. The medical evidence also lands support to the contention of the injured. The relations between Dana and the two appellants being strained the motive to give a beating to Dana is also evident. I am, therefore, in agreement with the finding of the learned trial Judge that prosecution has succeeded in establishing that the two appellants had caused injuries to Dana. The next question requiring determination is, whether in the absence of grievous injury on the person of Dana, the case may fall within the ambit of Section 325 I.P.C.Dana has stated at the trial that he remained as indoor patient in the hospital for 28 days and during that period he was totally confined to bed on account of injuries sustained by him and was having constant pain. As provided in Clause eight of section 320 I.P.C., an injury would be termed as grievous if it causes the sufferer to be during the space of twenty days in severs bodily pain, or unable to follow his ordinary pursuits. Ex.P. 4, the Discharge Certificate, shows that Dana was discharged from the hospital on 25th May, 1976, the date of his admission in the hospital was 24th April, 1976. This supports the contention of the injured Dana about his remaining in the hospital for about 28 days. The injuries have been assigned to Tharu and Saddiq is said to be with him and has been convicted for the offence under Section 325 I.P.C. with the help of Section 34 I.P.C. 6. In view of the above discussions, it can definitely be said that prosecution has succeeded in proving the offence under Section 325 I.P.C. against Thera and 325/34 I.P.C. against Saddiq. 7. In view of the above discussions, it can definitely be said that prosecution has succeeded in proving the offence under Section 325 I.P.C. against Thera and 325/34 I.P.C. against Saddiq. 7. The learned counsel for the appellants inter alia submitted that in view of the lapse of five years since the alleged date of occurrence and the fact that the appellants had already remained in custody for quite a long period they may not be sent behind the bars again. 8. The perusal of the record shows that Tharu was arrested on 29th April, 1976 and was released on bail on May 25,1976. Thus he had remained in custody for more than two years. Saddiq was arrested on 25th April, 1976 and remained in custody till December 11,1976. Thus he has remained in custody for more than seven months. 9. In view of the facts and circumstances of the case and the nature of injuries sustained by Dana, the ends of justice would meet if the substantive sentences awarded to the appellants form the offences under Sections 325/34 and 325 I.P.C. are reduced to the period they had remained in custody as for along with the sentence of fine. The amount of fine imposed appear to be heavy in view of the facts and circumstances and the nature of the injuries sustained by Dana. 10. In the result, the appeal filed by appellants Theru and Saddiq is partly allowed. They are acquitted of the charges under Sections 392 I.P.C. and 392/397 I.P.C. and their conviction and sentences are set aside. The conviction of the two appellants Theru and Saddiq for the offence under Section 325 I.P.C. and 325 read with Section 34 I.P.C. respectively is maintained. The substantive sentence of the two appellants for these counts are reduced to the period they had remained in custody so far. The amount of fine Rs. 2000/- imposed upon appellant Tharu is reduced to Rs. 600/-; in default to undergo six months rigorous imprisonment. The amount fine of Rs. 1000/-imposed upon appellant Saddiq for the offence under Section 325 read with Section 34 I.P.C. is reduced to Rs. 300/-, in default to undergo three months rigorous imprisonment. Out of the amount of fine Rs. 400/- shall be awarded to injured Dana by way of compensation. 11. The amount fine of Rs. 1000/-imposed upon appellant Saddiq for the offence under Section 325 read with Section 34 I.P.C. is reduced to Rs. 300/-, in default to undergo three months rigorous imprisonment. Out of the amount of fine Rs. 400/- shall be awarded to injured Dana by way of compensation. 11. Mr.B.K. Chouhan, learned counsel for the appellants prays for two months time to intimate his clients to deposit the amount of fine in the trial court. Mr. M.C. Bhati, learned Public Prosecutor has no objection for the time being granted. Two months time is allowed.Appeal Partly Allowed. *******