JUDGMENT 1. - This is an appeal against the conviction and sentence of the accused appellant Teesa recorded under section 326 by the learned Addl. Sessions Judge, Siorhi dated 19,10.78. The accused has been sentenced to two years R.I. together with a fine of Rs. 100,/- and in default to undergo 2 months R.I. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are : that on 24-7-78 injured Saja was going from village `Bharja to village `Tokiyo' in District Sirohi, In the way near village `Dhaval, he found three persons sitting and enjoying wine. They were Galiya. Surta and accused appellant Teesa He sat near them. They offered wine to him which he refused to take. On this, it is alleged that on the instigation of the accused Galiya and Surta, Teesa inflicted word blows to Saja. The first injury inflicted on the parie to-occipital region to the neck was of the size of 15 cm X 15 cm X 4 cm and the second injury inflexed on the right inter scapular region was of the size of 21/2 cm X 1/2cm 1/4cm. The second injury was simple but the first injury caused a fracture of the parieto occipital region The patient was admitted in Sirohi hospital, from where, information was sent to S.H.O. Sirohi but as the case related to P.S. Rchida, the information given by Saja were sent to P.S. Rohida were a case against all the three accused persons was registered under section 307 I.P.C. After investigation, all the three accused persons were challaned and were committed for trial to the Court of learned Addl. Sessions Judge, Sirohi who held accused Teesa guilty of aforesaid but acquitted the remaining two accused persons Galiya and Surta, the learned lower Court held that occurrence took place at the spur of the moment and so. There could not have been any intention to kill and the injury caused was only grievous and was not fatal to the life and hence offence under section 307 I.P.C. was not made out against the accused persons and consequently be held accused Teesa guilty of the offence under section 326 I.P.C. 3. Mr. Jaswant Mal appearing for the accused appellant has not challenged the conviction of the accused under section 326 IPC. Mr. Jaswant Mal appearing for the accused appellant has not challenged the conviction of the accused under section 326 IPC. In this case injured Saja along- with two eye witnesses i.e., P.W. 6 Laliu and P.W. 7 Aluda have been examined and all the three witnesses have stated that on refusal of Saja to take wine accused Teesa inflicted these two injuries and, therefore, from the evidence on record, it is crystal clear that the assailant of Saja was Teesa and it was he who inflicted these two sharp weapon injuries and, therefore, I am also of the opinion that then learned lower court was perfectly justified in recording the conviction under section 326 IPC against accused Teesa. Saja has admitted that he had no previous enmity with Teesa- The occurrence took place all of a sudden and so the question by intention to kill does not arise in this case. So far as sentence is concerned Mr. J.M. Bhandari has submitted that the accused belongs to `Bheel community and he has already remained in custody for 88 days i.e., from 24-5-78 to 13-7-78 and 13-10-78 to 18-11-78. Locking to the nature of the injury and the circumstances in which the occurrence has taken place where the accused was probably under the influence of wine, a lenient view is called for so far as sentence is concerned, Mr. R.K. Soni has however, submitted that the injured has refused to take wine and this was the punishment meted out to him for not taking wine and such persons who inflict such grave injuries simply on his refusal to take wine should be dealt with very strictly. 4. I have considered the rival submissions made at the bar. There cannot be any doubt that this occurrence took place without any previous enmity at the spur of the moment. It could not have been conceived by Teesa that Saja would pass by that way. Everything happened without any premeditation further without any previous enmity just at the spur of the moment most probably under the influence of intoxication. The occurrence is almost 91/2 years old. 5. In the facts and circumstances of this case, I feel that the ends of justice would be met if he has sentenced to the period of his custody alongwith a fine of Rs. The occurrence is almost 91/2 years old. 5. In the facts and circumstances of this case, I feel that the ends of justice would be met if he has sentenced to the period of his custody alongwith a fine of Rs. 2,500/- in default of payment of this amount of fine, he should further undergo six months R. I Out of the amount of fine, if recovered Rs. 1500/- be paid as compensation to injured Saja. 6. The result is that this appeal partially succeeds. The conviction of accused appellant Teesa under section 32 I.P.C. recorded by the learned Addl. Sessions Judge, Sirohi wide his judgment dated 13-10-78 is maintained. However, the senunce oi 2 years R.I. recorded against him vide the order of the learned Addl. Ksehions Judge dated 19-10-78 is reduced to the period of his custody but the amount of fine of Rs. 100/- is enhanced and raised to Rs 2500/- in default of the payment of this amount of fine, accused will undergo six months R.I. If the amount of fine is deposited in the Court of learned Sessions Judge, Sirohi then cut of this amount of fine Rs. 1500/- be paid as compensation to injured Saja. Mr. Jaswant Mal prays for 2 months time to deposit the fine in the Court of learned Addl, Sessions Judge, Sirohi Time prayed for is allowed. If the amount of fine is not deposited within the aforesaid period, the learned Sessions Judge, Sirohi is directed to effect the arrest of the accused Teesa to unnergo the sentence imposed against him in default of the payment of this amount.Appeal partly allowed. *******