S. C. NIGAM, J. ( 1 ) THIS criminal appeal was filed by Chanda and his two sons, Niranjan and Jai Kumar against the judgment and order-dated 21. 11. 1980 passed by Sri R. R. Agrawal, the then Ist Additional Sessions Judge, Mathura in S. T. No. 185 of 1977 whereby he convicted appellant nos. 1 and 2 under Sections 326, 325 and 323, all read with Section 34 of Penal code. Chanda and Niranjan were sentenced to suffer rigorous R. I. for a period of one year and three months respectively under Sections 325/34 and 323/34 I. P. C. They were directed to pay fine of Rs. 100/-, Rs. 50/- also respectively thereunder. Accused Niranjan was sentenced to suffer R. I. for a period of three years and to pay a fine of Rs. 200/- under Section 326 I. P. C. Chanda was sentenced to undergo R. I. for a period of two years and to pay a fine of Rs. 200/- under section 325/34 I. P. C. In default of payment of fine, they were directed to undergo two months R. I. , one months R. I. and fifteen days R. I. under Sections 326, 325 and 323 I. P. C. respectively. All the sentences of both the accused were directed to run concurrently. So far as third appellant Jai Kumar is concerned, he was found to be a minor and was extended benefit of Section 4 of the U. P. First Offenders Probation Act. ( 2 ) GOVERNMENT Appeal No. 643 of 1981 was filed by the State against Jai Kumar against the judgment and order-dated 21. 11. 1980 passed by Ist Additional Sessions Judge, Mathura whereby accused Jai Kumar was given benefit of Section 4 of the U. P. First Offenders Probation Act. By means of Government Appeal No. 645 of 1981, the State came up to this Court challenging the acquittal of all the four accused-respondents of the charge under Section 307 read with Section 34 of the Penal Code. ( 3 ) ALL the aforesaid appeals have arisen out of a common judgment and order and as such, all the appeals were heard together and are being disposed of by a common judgment. During pendency of the appeal, accused Chanda and his son Niranjan expired and appeal filed by them and against them stood abated. ( 3 ) ALL the aforesaid appeals have arisen out of a common judgment and order and as such, all the appeals were heard together and are being disposed of by a common judgment. During pendency of the appeal, accused Chanda and his son Niranjan expired and appeal filed by them and against them stood abated. ( 4 ) BRIEFLY stated, the facts of the prosecution case, as unfolded during trial, were as under: -Informant Sammo Singh son of Tikam Singh and all the accused are residents of village Barsana, Police Station Barsana, district Mathura. Smt. Revti is wife of Chanda and Niranjan and Jai Kumar are sons of Chanda. ( 5 ) ON 14. 12. 1976, at about 1. 00 p. m. sweeperess had thrown garbage on the Mend of accused, whereupon exchange of hot words and abusive language took place between Smt. Revti and wife of informant. Smt. Revti threatened to teach her a lesson. ( 6 ) ON the same day, at about 3. 00 P. M. Ram Kishore, Nathi, Lachman and Sammo were returning home from their field. All the four accused including Smt. Revti were present in their Chaupal and they all surrounded Ram Kishore and others and attacked upon them. Niranjan was carrying a Pharsa and remaining three were armed with lathies. All the four used their respective weapons and caused serious injuries to Ram Kishore, Nathi and Lachman. This incident was witnessed by Udai Singh, Gyasi, Omi and others and they saved Ram Kishore and his brothers. Informants grandson Jaswant armed with lathi arrived there and used force in self-defence. All the three bothers sustained serious injuries. The informant took all the three injured to Barsana Hospital but the doctors were not available there. He made an attempt to lodge an F. I. R. but in the absence of Station Officer, no case was registered. He again reached hospital and met Dr. J. R. Jiani. Dr. J. R. Jiani, Medical Officer, P. H. C. examined injuries of Ram Kishore on 14. 12. 1976 at 9. 40 P. M. and found following four incised wounds on his body: - 1. Incised wound 1-1/2" x 1/2" x scalp deep on right side of head 3-1/4" above to upper margin of right ear. 2. Incised wound 1-3/4" x 1/2" x scalp deep on head 3" above to the mid point of left eyebrow. 3. 12. 1976 at 9. 40 P. M. and found following four incised wounds on his body: - 1. Incised wound 1-1/2" x 1/2" x scalp deep on right side of head 3-1/4" above to upper margin of right ear. 2. Incised wound 1-3/4" x 1/2" x scalp deep on head 3" above to the mid point of left eyebrow. 3. Incised wound 2" x 1/2" x scalp deep on head 3-1/4" above to (P. T.) upper margin of left ear. 4. Incised wound 1" x 1/3" x skin deep on left lateral side of abdomen , 7" away from upper margin of umbilicus. ( 7 ) ALL the injuries were found to be simple except injury no. 1 for which x-ray of skull was advised. All the four injuries were caused by some sharp edged instrument. Dr. Jiani further examined injuries of Nathi on the same night at 10. 30 P. M. and found the following injuries: - 1. A Lacerated wound 1-3/4" x 1/4" skin deep on head 3" above to left ear. 2. Lacerated wound 1/2" x 1/8" x skin deep in the middle of right external ear. 3. Complaint of pain in the mid exterior region of right forearm. No marks of external injuries. Both the injuries of Nathi were found to be simple and were caused by some blunt and hard object. ( 8 ) THE injuries of Lachman were examined by Dr. Jiani on the same night at 11. 00 P. M. who found the following injuries on his person. 1. Swelling and tenderness on terminal phalynx of left middle finger. 2. Lacerated wound 1-1/4" x 1/3" x bone deep on the back of left external ear. 3. Lacerated wound 2-1/4" x 1/4" x skin deep on the head 3-3/4 above to external occipital protuberance. 4. Lacerated wound on lower lip 1/2" x 1/4"x sized 1/2" away to mid region towards right side. 5. Swelling with sever tenderness 4" x 3" sized on the middle of exterior surface of right forearm. Suspected fracture of right ulna. Advised for x-ray. 6. Lacerated wound of " x " x skin deep on terminal phalynx of right thumb. ( 9 ) THE injuries of Lachman were simple except injury no. 5 for which x ray was advised. In the opinion of doctor, the injuries were caused by some blunt and hard object. Suspected fracture of right ulna. Advised for x-ray. 6. Lacerated wound of " x " x skin deep on terminal phalynx of right thumb. ( 9 ) THE injuries of Lachman were simple except injury no. 5 for which x ray was advised. In the opinion of doctor, the injuries were caused by some blunt and hard object. All the injuries of three injured were about half day old at the time of examination. On 16. 12. 1976, X-ray of skull of Ram Kishore was done and comminuted fracture of left frontal and parietal bones were detected. ( 10 ) ON the same day, x-ray of right forearm of Lachman was done and fracture of right ulna lower part was detected. Dr. Jiani, Medial Officer, P. H. C. Barsana examined injuries of Chanda on 15. 12. 1976 at 9. 00 A. M. and found following five injuries: -1. Swelling on dorsum of left hand 2" x 2 in size towards lateral aspect. Area is also tender. 2. Lacerated wound " x 1/8" skin deep on the back of right external ear. 3. Contusion 2" x 1" sized on left supra scapular region. 4. An abrasion " x "sized on forehead 2" above to inner angle of right eyebrow. 5. Complaint of pain over occipital region. No marks of external injuries are seen. Dr. Jiani further examined the injuries of Niranjan on the same day at 9. 30 A. M. and found following four injuries. 1. An abrasion " x " sized on back of right forearm. 1" above to lower end of ulna. 2. Swelling with tenderness 3" x 2" sized on back of right forearm 2" below to olecranon process. 3. An abrasion 1/5" x 1/5" sized on forehead 1" above to outer angle of right of right eyebrow. 4. Complaint of pain on back of left knee joint. No mark of external injuries was visible. ( 11 ) THE injuries of Smt. Revti were examined by the same doctor on the same day at 10. 00 A. M. and following injuries were found: - 1. Swelling with tenderness 1" x " sized on right side of forehead just above to right eye. 2. Lacerated wound 2" x 1/8" x skin deep on head 3-1/2" above to root of nose. 3. 00 A. M. and following injuries were found: - 1. Swelling with tenderness 1" x " sized on right side of forehead just above to right eye. 2. Lacerated wound 2" x 1/8" x skin deep on head 3-1/2" above to root of nose. 3. Lacerated wound 1" x " x skin deep on back of right forehead arm 3" below to olecranon process. 4. Swelling of 3" x 2" sized on the tip of right shoulder. 5. An abrasion of " x " size on the back of left elbow joint 1" lateral to olecranon process. 6. An abrasion " x 1/8" size in the middle phalynx of left little finger. 7. Contusion 2" x 1" size on right infra scapular region. ( 12 ) ALL the injuries of three injured were simple and caused by blunt and hard object and were about one day old at the time of examination. ( 13 ) THE investigation of the case was taken up by PW 7 S. I. Harbir Singh, who was Station Officer. He interrogated the witnesses and recorded their statements and after inspection of the scene of incident prepared site plan. After completing the investigation, he submitted charge sheet against Chanda, Niranjan, Jai Kumar and Smt. Revti. After committal of the case to the Court of Session, all the four accused were charged under Sections 307, 323, 325, all read with Section 34 of the Penal Code. They pleaded not guilty to the charge. ( 14 ) IN order to bring home, the charges framed against the accused, the prosecution examined as many as nine witnesses. PW 1 Sammo Singh, informant and father of the injured Ram Kishore, Nathi and Lachman. He was not an eyewitness. After having come to know about the incident, he reached there and found his three sons in an injured condition. PW 2 Ram Kishore is one of the injured. PW 3 Udai Singh is said to be an eyewitness and was named in the F. I. R. as eyewitness. PW 4 Gyasi is said to be an eyewitness and was named in the F. I. R. PW 5 Nathi is son of informant and sustained injuries in the course of incident. PW 6 Constable Mahipal Singh proved the Chik report and copy of the G. D. PW 7 S. I. Harbir Singh is Investigating Officer of the case. PW 8 Dr. PW 6 Constable Mahipal Singh proved the Chik report and copy of the G. D. PW 7 S. I. Harbir Singh is Investigating Officer of the case. PW 8 Dr. N. N. Sharma was posted as Radiologist in the District Hospital, Mathura on 16. 12. 1976 and got x-ray done of skull and forearm of Ram Kishore and his brother Lachman respectively and found fracture and PW 8 Dr. J. R. Jiani, the then Medical Officer, P. H. C. Barsana proved the injury reports of Ram Kishore, Nathi and Lachman. He further proved the injury reports of Chanda, his wife Smt. Revti and son Niranjan. ( 15 ) ACCUSED Niranjan pleaded that his mother and father were assaulted by Jaswant, Lachman, Ram Kishore, Nathi and Sammo. When he reached to rescue them, he was also assaulted and he too used lathi in his self defence. Accused Jai Kumar pleaded his alibi and stated that he was present in his college at the time of alleged incident. Accused Chanda disclosed that he was assaulted by Sammo and used Khurpa and lathi in his self-defence. Smt. Revti attributed her false implication in the case on account of enmity. Accused examined one Bhahm Kumar a Head Clerk of Radha Bihari Inter College, Barsana to prove that on 14. 12. 1976 Jai Kumar was present in his college at 10 A. M. and 1. 30 P. M. and he was shown present in his attendance register. After having considered the arguments and entire evidence on record led by the parties, learned trial Judge found Chanda, his two sons Niranjan and Jai Kumar guilty and convicted and sentenced them, as mentioned above. The complicity of Smt. Revti was not established and she was given benefit of doubt. ( 16 ) WE have heard learned A. G. A. for the State and Sri Haridwar Singh, learned counsel for the accused-respondents. We have also gone through the record carefully. ( 17 ) AS mentioned above, two versions were put up before the trial court by learned counsel for the parties. It is undisputed now that on 14. 12. 1976 at about 3. 00 P. M. near the Chaupal of the accused, the incident of Marpit took place between the parties in which Ram Kishore sustained four incised wounds caused by Pharsa. It is undisputed now that on 14. 12. 1976 at about 3. 00 P. M. near the Chaupal of the accused, the incident of Marpit took place between the parties in which Ram Kishore sustained four incised wounds caused by Pharsa. Besides him, his two-brothers Lachman and Nathi also sustained injuries on their heads and other parts of the body. After x-ray, fracture of frontal and occipital bones were detected. The Radiologist found fracture of right ulna of Lachman also. On the other hand, Chanda and his wife Smt. Revti and son Niranjan sustained injuries in the course of incident. Dr. Jiani examined the injuries of Ram Kishore and his brother on the one hand and Chanda, his wife and his son Niranjan on the other hand. The injury reports are on record. It is, therefore, clear that the incident of Marpit took place at the place, time and on the date, as alleged by the prosecution. It is noteworthy that informant mentioned in his report itself that his grandson Jaswant arrived at the scene of incident and used his lathi in self-defence. This statement of informant finds full support from the statements of Ram Kishore, Udai Singh, Giyasi and Nathi. We, therefore, find that the injuries of Chanda and two others were explained by the prosecution in written report itself. The injuries of Chanda and others were found to be simple, which were caused by some blunt object. On the other hand, there were four incised wounds including three wounds on the head and fourth one on the abdomen of the body of Ram Kishore. In the x-ray report of skull, it was found that he had fracture of left parietal bone and injuries of Ram Kishore could be caused by Pharsa. We further find that two brothers Lachman and Nathi were also assaulted in the course of incident and they had lathi injuries on their bodies. They too sustained injuries on their heads. It further appears that this Marpit took place as Smt. Revti had given a threat to teach a lesson to the wife of the informant in the morning on the same day. However, we find from the perusal of injury report of Ram Kishore that except Niranjan, others caused no lathi injury to Ram Kishore. It means the accused did not have intention to kill him. However, we find from the perusal of injury report of Ram Kishore that except Niranjan, others caused no lathi injury to Ram Kishore. It means the accused did not have intention to kill him. We are, therefore, of the opinion that learned trial Judge committed no error in not convicting the accused under Section 307 read with Section 34 I. P. C. So far acquittal of Smt. Revti is concerned, we find force in the contention of learned A. G. A. The prosecution led evidence to the effect that on the impugned date in the morning, some altercation took place between Smt. Revti on the one hand and wife of one Sammo on the other. Smt. Revti gave a threat to teach her a lesson. ( 18 ) SHE further sustained seven injuries in all on her body in the course of incident, which included two lacerated wounds on the head and one contusion also. Therefore, there was no question of doubt of her participation in the Marpit. It means she actively participated in the offence and learned trial Judge erred in allowing her benefit of doubt. PW 2 Udai Singh, PW 4 Gyasi and PW 5 Nathi also testified in clear words that Smt. Revti was also armed with lathi and used the same in causing injuries. Her injuries were examined by Dr. Jiani on the next day. The reasons given for extending the benefit of doubt to the lady by the trial Judge does not stand to reason. We are unable to subscribe to the view taken by learned trial Judge that she was aged about 40 years on the date of incident. She belongs to village. She, therefore, had no difficulty in using lathi. We, therefore, hold that reasoning and view taken by the trial Judge are perverse and lady did not deserve any mercy because her complicity was found proved by reliable evidence of injured as well as eyewitnesses. We are, therefore, of the opinion that acquittal of Smt. Revti is not sustainable and is liable to be set aside. ( 19 ) SO far the role assigned to accused Jai Kumar is concerned, we find that he was rightly found guilty by the court below. He pleaded alibi and claimed that he was present in his college at the time of alleged incident. ( 19 ) SO far the role assigned to accused Jai Kumar is concerned, we find that he was rightly found guilty by the court below. He pleaded alibi and claimed that he was present in his college at the time of alleged incident. The Head-Clerk of the college DW 1 Brahm Kumar was examined to prove that Jai Kumar attended the college on 14. 12. 1976 and his attendance was marked at 10. 00 A. M. and 1. 30 P. M. He, however, admitted that attendance was taken in the class by the class-teacher. The class-teacher was not examined. During cross- examination, he admitted that Abadi of village Barsana is at a distance of 100 yards only from the college in question. The prosecution led sufficient and reliable evidence to the effect that Jai Kumar had also participated in assaulting Ram Kishore and others and used lathi. We are, therefore, of the view that Jai Kumar was rightly convicted by the court below. Since he disclosed his age as 18 years on 28. 8. 1980, he was found to be a boy aged about 14-15 years on 14. 12. 1976. It means he was a child as defined under Section 2 (4) of U. P. Children Act. Accused Jai Kumar was given benefit of Section 4 of U. P. Probation of First Offenders Act and was directed to execute a bond in a sum of Rs. one thousand and to furnish two sureties each of the like amount. ( 20 ) AS mentioned above, Jai Kumar was found to be a minor on the date of commission of the offence, as defined under Section 2 (4) of U. P. Children Act. The court below released him on probation of good conduct and directed to execute a bond in a sum of Rs. One thousand and furnish two sureties each in the like amount, as provided under Section 33 (e) of the U. P. Children Act. In our opinion, learned trial Judge exercised his discretion in accordance with law and we, therefore, see no reason to interfere with the same. ( 21 ) IN view of the aforesaid discussion and conclusion, Criminal Appeal No. 2909 of 1980 filed by Chanda and two others is liable to be dismissed. Similarly, Government Appeal No. 643 of 1981 filed by State against Jai Kumar is also liable to be dismissed. ( 21 ) IN view of the aforesaid discussion and conclusion, Criminal Appeal No. 2909 of 1980 filed by Chanda and two others is liable to be dismissed. Similarly, Government Appeal No. 643 of 1981 filed by State against Jai Kumar is also liable to be dismissed. However, Government Appeal No. 645 of 1981 filed by the State against Chanda and three others has merit and it must succeed partly. Government Appeal No. 643 of 1981 and Criminal Appeal No. 2909 of 1980 lack merit and are hereby dismissed. Government Appeal No. 645 of 1981 is partly allowed. The acquittal of Smt. Revti is set aside. She is found guilty and is convicted of the offence punishable under Sections 326, 325 and 323, all read with Section 34 of the Penal Code. Smt. Revti disclosed her age as 45 years on 26. 6. 1980. She is now an old lady aged about 72 years. The occurrence in question took place on 14. 12. 1976. Chanda, husband of Smt. Revti, and her son Niranjan have already expired. Therefore, keeping in view the date of incident as well as advance age of the lady, she is sentenced to suffer R. I. for a period of 6 months, 4 months and 3 months respectively thereunder. She is further sentenced to pay a fine of Rs. 2,000/-, Rs. 1000/- and Rs. 500/- also respectively thereunder. In default of payment of fine, she is directed to undergo R. I. for a period of two months, one month and one month respectively. All the three sentences imposed on the lady shall run concurrently. Smt. Revti is on bail, Her bail bonds are cancelled. She shall be taken into custody and send to Jail to serve out the sentence.