JUDGMENT C.K. Thakker, C.J,—This appeal is filed for enhancement of sentence awarded by the Sessions Judge, Kangra at Dharmashala, on April 5, 1997, in Sessions Case No. 17-K/VII-1996. 2. The case of the prosecution was that on November 4, 1994 at about 8 p.m. at Village Chari, PW 2 Mast Ram at his residence. 20-25 days prior to the date of the incident, Dinesh Kumar, son of Mast Ram, was beaten by accused persons. On the date in question, therefore, the complainant asked accused persons as to why they had all beaten the son of the complainant. On that, the accused persons started abusing the complainant. All the three accused were armed with weapons. Accused No. 1 Sudesh Kumar was having axe, accused No. 2 Ashwani Kumar was having Belcha and accused No, 3 Suneet Kumar was having Danda. According to the prosecution accused No. 1 administered two blows of axe; accused No. 2 gave one blow on neck with Belcha and accused No. 3 gave one blow with Danda on the forehead of the complainant. Meanwhile, PW 3 Ranjeeshna, wife of PW 2 reached there and tried to help her husband. But she was threatened and was removed from the place. Dinesh Kumar, son of the complainant then went to PW 4 Soni? Pradhan of Village and reported the matter to him. PW 4 Soni, Pradhan came to the place of offence but meanwhile all the accused had left the place. Mast Ram was unconscious. He was taken to hospital. He was accompanied by his wife, whose statement was recorded by the police and First Information Report was registered. Police visited the spot on the next day, that is, November 5, 1994. After usual investigation, charges were framed against the accused for offences punishable under Sections 307, 326, 324, 506 read with Section 34 of the Indian Penal Code, (hereinafter referred to as the Code), 3. The case of the accused was of total denial. In further statement under Section 313 of the Code of Criminal Procedure, 1973 accused No. 3 Suneet Kumar has stated that he was innocent. On the day in question, he was in his house and he had not witnessed any quarrel between the complainant Mast Ram and his brothers. He also did not know wiry his name was given by Mast Ram. Case of accused Nos. On the day in question, he was in his house and he had not witnessed any quarrel between the complainant Mast Ram and his brothers. He also did not know wiry his name was given by Mast Ram. Case of accused Nos. 1 and 2 in their further statements was that both of them were innocent and they were falsely implicated by interested witnesses and close relatives of the complainant. They stated that on November 4, 1994, they were returning home after working in the field. When they reached near the house of Mast Ram, he was present in his house, He came down from his ‘Bohar’ On seeing them (accused Nos. 1 and 2), Mast Ram who was having a Danda in his hand went behind accused No, 2 Ashwani to beat him. Accused No. 1 apprehended that Mast Ram might kill his brother, Accused No. 1 was having a sickle in his hand and with a view to save his brother Ashwani, he caused injuries to Mast Ram. Had such injuries not been caused by him to complainant Mast Ram, his brother might have been killed by the complainant. It was also stated by the accused that they had no enmity with complainant Mast Ram. Accused No. 2 had stated that Suneet (accused No. 3) was not with him. 4. The defence also examined a defence witness, an employee of a Court of Sub Divisional Judicial Magistrate, Kangra, to prove that First Information Report No. 176 of 1994 was received by that Court on November 7, 1994 at about 11.30 a.m. 5. The learned Sessions Judge, on examination of 12 witnesses, held that it was proved by the prosecution that the injuries were sustained by the complainant and those injuries were caused by accused persons in furtherance of common intention. Looking to the medical evidence as well as the evidence of the prosecution witnesses, the learned Sessions Judge was of the view that the case was covered by Section 324 of the Code and since there was common intention on the part of the accused persons in causing injuries to the complainant, all the accused were liable to be convicted under Section 324 read with Section 34 of the Code, The said order was recorded by the learned Sessions Judge on November 26, 1997. 6. 6. The learned Sessions Judge, thereafter, heard accused as well as their counsel on the question of sentence. The learned Judge thought it fit to call for a report of the Probation Officer. Considering the report as also in the light of attending circumstances, the learned Judge felt that since the past record of the accused was clean and there were no antecedents prior to the date of the incident, it was in the interest of justice not to award substantive sentence on the accused by keeping them with hardened criminals. Instead, it would be appropriate if they would be granted benefit under the Probation of Offenders Act. Accordingly, no substantive sentence was imposed on any of the accused and all the convicts were ordered to be released on probation under Section 4 of the Probation of Offenders Act, 1958, by directing them to furnish personal bonds in the sum of Rs. 2,000/- each with one surety in the like amount to maintain peace and be of good behaviour for a period of one year to the satisfaction of learned Chief Judicial Magistrate, Dharamshala, within 30 days from the date of the order. They were also directed to pay Rs. 1,500/- each to the injured Mast Ram towards compensation within 30 days from the date of the order. That order was passed on April 5, 1997. 7. It may be stated at the outset that the prosecution has not challenged acquittal of accused by the learned Sessions Judge for offences punishable under Sections 307, 326 and 506 read with Section 34 of the Code. Such an appeal obviously could be filed under Section 378 of the Code of Criminal Procedure, 1973. The present appeal is, however, filed by the prosecution for enhancement of sentence under Section 377 of the Code of Criminal Procedure, 1973. The grievance of the prosecution is that the learned Sessions Judge has committed an error of law in not awarding substantive sentence upon the accused and in granting benefit of probation to them. 8. I have heard Mr. J.K. Verma, learned Assistant Advocate General for the appellant and Mr. Jagdish Vats, learned Counsel for the respondents. 9. It was submitted by Mr. 8. I have heard Mr. J.K. Verma, learned Assistant Advocate General for the appellant and Mr. Jagdish Vats, learned Counsel for the respondents. 9. It was submitted by Mr. Verma that so far as the evidence of the prosecution witnesses is concerned, the learned Sessions has held that looking to the evidence of PW 2 injured Mast Ram and PW 3 Ranjeeshna, wife of PW 2, it was clearly established that the incident took place on November 4, 1994. From the evidence of PW 2 Mast Ram and an eye witness Ranjeeshna PW 3, wife of PW 2, it was clearly proved that injuries were sustained by PW 2 Mast Ram and those injuries were caused by the accused. The Sessions Court was, therefore, right in convicting the accused in the light of the fact that the injuries said to have been caused to PW 2 Mast Ram were corroborated by evidence of two Doctors, PW-1 Dr. S.M. Mehta, who examined the injured on the same day, on November 4, 1994 at 9.30. p.m. and PW 11 Dr. Atul Mahajan, again on the same day, at 10.20. p.m. It, therefore, cannot be said that by recording conviction; any illegality was committed by the learned Sessions Judge. But the Sessions Court, according to Mr. Verma, was not right in awarding benefit of probation in the light of the injuries caused to PW 2 Mast Ram and surronding circumstances. To that extent, therefore, the order deserves to be modified by imposing substantive sentence in accordance with law. 10. Mr. Jagdish Vats, on the other hand, submitted that in appeal for enhancement of sentence under Section 377, the accused has a right to plead for their acquittal or for reduction of sentence. The counsel submitted that even if this Court is of the view that the evidence of PW 2 Mast- Ram (injured) and PW 3 Ranjeeshna, wife of PW 2 alongwith medical evidence deserves to be accepted and rightly accepted by the Sessions Court, at least with regard to accused No. 3, the judgment and order of conviction is vulnerable and deserves to be set aside. It was submitted that in the instant case, the accused 1 and 2 had come out before the Court with a positive case, namely, self-defence. Accused Nos. It was submitted that in the instant case, the accused 1 and 2 had come out before the Court with a positive case, namely, self-defence. Accused Nos. 1 and 2 both have expressly and specifically pleaded that they were present at the scene of occurrence and accused No. 1 had caused injuries to complainant because PW 2 Mast Ram wanted to cause injuries to accused No. 2. Accused No. 1 apprehended that if he would not intervene in the matter and prevent Mast Ram from causing injuries to accused No. 2, there was danger to his life. The learned Judge has failed to consider that aspect in its proper perspective. It was further submitted that accused No. 3 had also stated in his statement under Section 313 of the Code of Criminal Procedure that he was not there but was in his house. The same case was put forward by accused No. 1 in his statement about accused No.3. It was, therefore, submitted that the conviction recorded by the Sessions Court against accused No. 3 is not in accordance with law. 11. The counsel also drew my attention to the injuries sustained by PW 2 Mast Ram. On the person of PW 2, there were four injuries. They were as under : INJURY No. 1. It was in the left scapular region 10 cm. x 2 cm. in size, incised in character and by putting finger pleurae was palpable. Fresh bleeding was present. INJURY No. 2. Incised wound - one in number on the left side dorsum of chest 16 cm x 4 cm muscle deep and fresh bleeding was present. INJURY No. 3. Lacerated wound on the right side of neck 8 cm x 1 cm in size. Skin deep. INJURY No. 4. Multiple bruises on the back of chest were present. 12. Relying on First Information Report as well as substantive evidence of PW 2 in the Court, the defence counsel submitted that it was specific case of PW 2 that three accused came at his residence armed with axe, Belcha and Danda, respectively. Accused No. 3 was having Danda in his hand. He then stated that initially accused Nos. 2 and 3 caught hold of complainant and accused No. 1 administered two blows of axe on his neck. Accused No. 3 was having Danda in his hand. He then stated that initially accused Nos. 2 and 3 caught hold of complainant and accused No. 1 administered two blows of axe on his neck. Then accused No. 2 gave Belcha blow on his right side of the neck and accused No. 3 gave Danda blow on his forehead (frontal portion). 13. The counsel urged that looking to the injuries, two axe blows attributed to accused No. 1 were supported by medical evidence. Similarly, a blow said to have been given by accused No. 2 on neck was possible by Belcha, used by accused No. 2. But so far as injury No. 4 was concerned, it was on chest. It was never the case of the complainant that any injury was caused by accused No. 3 with Danda on his chest. On the contrary, his positive case was that accused No. 3 gave Danda blow on frontal portion of his forehead. No injury was found either on his head or on his forehead with Danda. Both the injuries were found on the head were incised wounds possible by axe and attributed to accused No. 1. 14. No doubt, it was submitted by the Assistant Advocate General that the learned Sessions Judge had rightly invoked Section 34 of the Code. When presence of accused No. 3 was believed and initially when two axe blows were given by accused No. 1, complainant was caught hold by accused Nos. 2 and 3, accused No. 3 was liable under Section 324 read with Section 34 of the Code as there was common intention on the part of all the accused. In my opinion, however, the submission of the learned defence counsel deserves acceptance when it was argued that only two accused were present who had pleaded right of private defence. Accused No. 3 in his statement under Section 313 of the Code of Criminal Procedure also stated that he was not present. Moreover, there was no injury, which was attributed to accused to him with Danda. I am, therefore, of the view that accused No. 3 is entitled to benefit of doubt. To that extent, therefore, the order passed by the Sessions Judge deserves to be quashed and the contention of the learned Counsel for the respondents-accused must be upheld. 15. Moreover, there was no injury, which was attributed to accused to him with Danda. I am, therefore, of the view that accused No. 3 is entitled to benefit of doubt. To that extent, therefore, the order passed by the Sessions Judge deserves to be quashed and the contention of the learned Counsel for the respondents-accused must be upheld. 15. It is no doubt true that a serious injury was caused to the complainant. From the evidence, it is clear that after receiving the injury, the complainant became unconscious and his statement also could not be recorded. The prosecution, however, has not filed an appeal against acquittal under Sections 307, 326 and 506 read with Section 34 of the Code. An appeal is filed only for enhancement of sentence. Now, the order was passed by the learned Sessions Judge on April 5, 1997 granting benefit of probation. More than three years are over. At this stage, it would not be appropriate for this Court to impose substantive sentence after so much period. At the same time, looking to the injuries caused to the complainant who was a Millitary personnel as stated in his substantive evidence, in my opinion, the ends of justice would be met if both the respondents-accused, namely, Sudesh Kumar, accused No. 1 and Ashwani Kumar, accused No. 2, are directed to pay an amount of Rs. 5,000/- each (total Rs. 10,000/-) towards compensation to the complainant. The compensation awarded by the learned Sessions Judge of Rs. 1,500/ each requires to be modified and it is directed that both accused Nos. 1 and 2 will pay Rs. 5,000/- each to complainant Mast Ram towards compensation. No amount of compensation to be paid by accused No. 3. Conviction of accused No. 3 is set aside. Likewise, the order of payment of compensation also is set aside. In the result, the appeal is partly allowed. Conviction and order of payment of compensation of accused No. 3 is hereby set aside. Conviction of accused Nos. 1 and 2, on the other hand, is confirmed. But instead of imposing substantive sentence on accused Nos. 1 and 2, benefit of probation granted in their favour is not disturbed, but instead of payment of compensation of Rs. 1,500/- each by accused Nos. 1 and 2, it is enhanced to Rs. 5,000/- each. Both the accused Nos. 1 and 2 will pay Rs. But instead of imposing substantive sentence on accused Nos. 1 and 2, benefit of probation granted in their favour is not disturbed, but instead of payment of compensation of Rs. 1,500/- each by accused Nos. 1 and 2, it is enhanced to Rs. 5,000/- each. Both the accused Nos. 1 and 2 will pay Rs. 5,000/- each to complainant Mast Ram. The appeal is accordingly allowed to the above extent. Order accordingly. Appeal allowed.