JUDGMENT 1. - This criminal appeal under section 374(2) Criminal Procedure Code is directed against the judgment and order dated 16.5.2003, passed by Additional Sessions Judge (Fast Track), Sirohi.(for short 'the trial Court' hereinafter) in Sessions Case No. 70/2001 (9/99) whereby the trial Court convicted and sentenced the appellants as follows : 2. Appellant-Harda-U/s. 304-II Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of 7 years and a fine of Rs. 2,000/-, and in default of payment of fine to further undergo 6 months imprisonment. Under Section 323 Indian Penal Code-3 months rigorous imprisonment and a fine of Rs. 200/-, and in default of payment of fine to further undergo one month's imprisonment. Both the substantive sentences were ordered to run concurrently. 3. Appellant-Kheta-U/s. 325 Indian Penal Code sentenced to undergo 3 years rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine further to undergo 6 month's imprisonment. Under Section 323 Indian Penal Code sentenced to undergo 3 months rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo one month's imprisonment. Both the sentences were ordered to run concurrently. 4. Appellant-Narsa was convicted for the offence under section 323 Indian Penal Code but instead of sentencing him to imprisonment, he was given benefit of Probation under section 4 of the Probation of Offenders Act, 1958 for short 'the Act' hereinafter) and was directed to pay a sum of Rs. 1,000/- as compensation as provided under section 5 of the Act. Aggrieved by the judgment and order impugned, all the three appellants filed the instant appeal. 5. Briefly stated facts of the case are that on the basis of Parcha Bayan of complainant PW-2 Dharmaram, Exhibit-P/2, police registered a case against the appellants and others. After usual investigation, Police filed a challab against 14 persons including the appellants for the offences under sections 147,30'2/119, 323 and 325/149 Indian Penal Code any they were put to trial. Trial Court framed the charges against the appellants and co-accused since acquitted for the offences noticed above. 6. The case as setup by the prosecution is that in the year 1996, one Bhoota was murdered in the village of complainant PW-2 Dharmaram, in that case Karni and Sona who were real brothers of complainant-Dharmaram, were facing trial for the offence of murder of Bhoota. 6. The case as setup by the prosecution is that in the year 1996, one Bhoota was murdered in the village of complainant PW-2 Dharmaram, in that case Karni and Sona who were real brothers of complainant-Dharmaram, were facing trial for the offence of murder of Bhoota. Thus, there was rivalry between family members of Bhoota and the complainant-Dharmaram. On 9.10.1998, the complainant, his father Nawaji, brother Rawata and nephew. Surata were coming from Amritya Bera to their house. While they were near to their Mohala, one Hariya came on a cycle and after seeing them, he turned back. At about 6.30 when all of them being four in number reached near to Hanuman Temple, suddenly they were surrounded by appellant-Kheta, Narsa, Smt. Ganga, Harda Ratiya, Opopatia, Vaja, Kasna, Achala, Smt. Vasu, Smt. Tipu, Bhemla and Bhananwra all were armed with lathis and in order to take revange of murder of Bhoota, they attacked on them and inflicted injuries to various persons. Due to the injuries caused to Pataram, he died, Rawta suffered grievous and others simple injuries. The prosecution adduced the evidence by examining as many as 25 witnesses and produced documentary evidence Exhibits P/1 to P/67. Accused made statements under section 313 Criminal Procedure Code and denied the allegations and produced as many as 4 witnesses in defence. The trial Court, on appreciation of the evidence produced by the parties, came to the conclusion that the prosecution has proved the case beyond reasonable doubt against appellant-Harda for the offences under sections 304-11 and 323 Indian Penal Code, appellant-Kheta for the offences under sections 323 and 325 Indian Penal Code and appellant-Narsa for the offence under section 323 Indian Penal Code. However, the trial Court held that the prosecution has failed to prove the case against the appellants and other co-accused for the offences under sections 147, 325 and 302/149 Indian Penal Code and they were accordingly acquitted of the said offences. However, appellant-Harda was convicted for the offences under sections 304-II and 323 Indian Penal Code, appellant-Kheta for the offence under section 325 and appellant-Narsa for the offence under section 323 Indian Penal Code, appellant-Harda and Kheta were-sentenced as noticed above. 7. I have heard learned counsel for the appellants and learned Public Prosecutor appearing for the State. Perused the judgment and order. I have also gone through the record of the trial Court. 8. 7. I have heard learned counsel for the appellants and learned Public Prosecutor appearing for the State. Perused the judgment and order. I have also gone through the record of the trial Court. 8. Appellant-Ha rda has undergone the sentence awarded to him and ultimately he was released from jail on completion of the sentence on 10.2.2004. Appellant-Kheta has undergone imprisonment for a period of about four months and appellant-Narsa has already furnished bail bonds for keeping peace and good behaviour under section ~4 of the Act and also deposited a sum of Rs. 1,000/- as compensation awarded under section 5 of the Act. 9. At the out set, learned counsel appearing for the appellants submits that since appellant-Harda has already undergone the imprisonment and has been released from the Jail on completion of the sentence in pursuance to the order of His Excellency the Governor of State of Rajasthan on the eve of Republic Day. At any rate he has suffered the sentence of imprisonment for more than 5 1/2 years. Learned counsel for appellants submits that the appellants do not challenge their conviction for the offences stated above and only challenges on the point of quantum of substantive sentence of imprisonment awarded to appellant-Kheta under section 325 Indian Penal Code for causing grievous injury by blunt to PW-12 Rawta and the appellant-Kheta has already suffered imprisonment for a period of four months, therefore, learned counsel submits that the substantive sentence awarded to him be reduced to the period already undergone by him, keeping in view the fact that co-accused-Harda has already been released from jail and Narsa has been granted benefit of probation under section 4 of the Act. 10. Learned Public Prosecutor supported the judgment and order of the trial Court. 11. On close scrutiny of the entire prosecution case, more particularly the statement of PW-12 Rawta and other prosecution witnesses it appears that occurrence took palce on the spur of the moment and there was no ulterior motive of 14 persons to assault the complainant party. There is evidence that injury inflicted by Kheta resulted in fracture of Mandible bone, thus the injury assign to the appellant is not on the vital part of the body of PW-12 Rawta. There is evidence that injury inflicted by Kheta resulted in fracture of Mandible bone, thus the injury assign to the appellant is not on the vital part of the body of PW-12 Rawta. Since appellant-Kheta has already suffered imprisonment of four months, the ends of justice would meet if the sentence awarded to appellant-Kheta for the offence under section 325 Indian Penal Code is reduced to the period of imprisonment already undergone by him. Even otherwise, he could have been similarly treated with that of co-accused-Narsa who has been granted benefit of probation under section 4 of the Act. 12. Consequently, the appeal filed by appellant No. 1-Harda and appellant No. 3-Narsa Ram fails and their conviction is maintained. The appeal filed by Harda and Narsa Ram is, therefore, dismissed. The appeal filed by appellant No. 2-Kheta is partly allowed and while maintaining his conviction for the offence under section 325 Indian Penal Code, the substantive sentence of imprisonment awarded to him is reduced to the period of imprisonment already undergone by him. Appellant-Kheta is on bail. His bail bonds stand discharged.Appeal partly allowed. *******