JUDGMENT SURINDER SINGH, J 1. THE present appeal has been directed by the convict/appellants against the judgment of conviction and sentence, passed by the learned Trial Court in Sessions Case No. 29/04 RBT No.67/05/04, decided on 20.9.2006, whereby they were held guilty for the offences punishable under Sections 307, 325, 324, 323 and 148 read with Section 149 of the Indian Penal Code and were accordingly sentenced to undergo imprisonment as under:- Sl. No. Offence under Section Sentence 1. Section 307 IPC Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.5,000/- each and in default of payment of fine to further undergo simple imprisonment for six months. 2. Section 325 IPC Rigorous Imprisonment for a period of three years and to pay a fine of Rs.2,000/- each and in default of payment of fine to further undergo simple imprisonment for two months 3. Section 324 IPC Rigorous Imprisonment for a period of one year. 4. Section 323 IPC Rigorous Imprisonment for a period of six months. 5. Section 148 IPC Rigorous Imprisonment for a period of one year All the sentences aforesaid were ordered to run concurrently. The fine amount, if recovered is ordered to be paid to all the four injured namely Harmesh Lal, Sukhdev alias Sukha, Darshan Lal and Roshan Lal in equal shares as compensation. 2. THE prosecution case, as emerges from the evidence on record, can be summed up thus. PW1 Harmesh Lal was rearing up his buffalos and earning his livelihood by selling milk. For the last about 10 years, he was residing alongwith others in vicinity at Khanpur Bela as the Panchayat leased pasture on the bank of river Swan. (ii) On 10.6.2003, PW1 Harmesh Lal alongwith PW2 Sukhdev @ Sukha, PW3 Darshan Lal and PW4 Roshan Lal were dining together in the Dera (temporary shed) of Harmesh Lal aforesaid. Round about 9.15 p.m., one Dhani Ram came there and informed that Soma was lying in the drunken state in his Dera and asked him to bring him to his place. In the meantime, accused Kishore Chand and Ramesh Lal @ Pammi came armed with 'Gandasi' and other respondents, all hereafter referred as the "accused persons" were having Dandas in their hands. In the meantime, accused Kishore Chand and Ramesh Lal @ Pammi came armed with 'Gandasi' and other respondents, all hereafter referred as the "accused persons" were having Dandas in their hands. (iii) Accused Kishore Chand alleged to have given the Gandasi blow on the left ear of PW1 Harmesh Lal, whereas, accused Jasbir Singh dealt a Danda blow on his forehead just above the eye and other started beating him with Dandas. The complainant party started crying and raised alarm, thereafter PW1 Harmesh Lal became unconscious. (iv) PW6 Jai Chand a nephew of PW1 Harmesh Lal though tried to rescue the complainant, but could not succeed. (v) In the aforesaid episode, PW2 Sukhdev @ Sukha, PW3 Darshan Lal and PW4 Roshan Lal had also sustained injuries on account of the beatings given by the accused persons. (vi) PW2 Sukhdev @ Sukha was given Danda blow by accused Ghugi @ Lakhbir Singh on the left side near parietal region and accused Kishore Chand had a Gandasi blow on his head from its reverse side. (vii) PW3 Darshan Lal was dealt a blow of Danda by accused Jasbir Singh on his head and also on his shoulder and because of beatings he became unconscious. (viii) PW4 Roshan Lal was given Gandasi blow on his head with the sharp edged side of Gandasi by accused Ramesh Kumar @ Pammi. . (ix) PW6 Jai Chand and one Telu Ram (not examined) reached the spot and tried to rescue them, but were not successful. Thereafter, PW6 aforesaid took all the injured persons in his Tractor-trolley to hospital covered each of them with quilt. (x) On next day, i.e. on 11.6.2003, PW13 ASI Ashok Kumar received information in the Control-Room from the office Superintendent of Police, Una about the incident. He visited hospital and moved an application Ext.PW13/A whether PW1 Harmesh Lal is fit to make his statement. After certifying that he was fit for the purpose, ASI Ashok Kumar aforesaid recorded the statement of PW1 Harmesh Lal under Section 154 of the Code of Criminal Procedure Ext.PW1/A and obtained the Medico Legal Certificates of the injured persons and sent thereafter Ruqa for the registration of the case. After certifying that he was fit for the purpose, ASI Ashok Kumar aforesaid recorded the statement of PW1 Harmesh Lal under Section 154 of the Code of Criminal Procedure Ext.PW1/A and obtained the Medico Legal Certificates of the injured persons and sent thereafter Ruqa for the registration of the case. He also recorded the statement of the injured persons, visited the spot of alleged occurrence and prepared site plan Ext.PW13/B. He took into possession four Dandas of Bamboo and one plank which were stained with blood, produced by Telu Ram in presence of Som Nath and Harmesh vide memo Ext.PW5/A. On the same day, PW13 aforesaid also took into possession blood stained quilt cover Ext.P18. (xi) PW8 Dr. Sunil Sharma had medically examined PW3 Darshan Lal and noticed the following injuries on his person:- 1 Diffuse tender swelling right forearm with an overlying abrasion closed to right elbow joint region. 2 Cut lacerated wound left parietao- occipital region. Bone deep actively oozing of the size of 2x1x1.5 cms. 3 Cut lacerated wound forehead left side, tender bleeding, bone deep and the size is 2.5x1.5x 1.5 cms. For injury No.3 he was advised for X-ray skull. AP/lateral views. 4. Contusion left shoulder joint region, unable to move the left upper limb. For this injury he was advised X-Ray of left shoulder joint region AF/Lateral views. Injuries No.1 to 3 were opined to be simple, whereas 4th injury after x-ray was grievous. The Medico Legal Certificate to his effect is Ext.PW8/A. On the same day, said doctor also examined PW2 Sukhdev @ Sukha and noticed the following injuries on his person: 1. Cut lacerated would scalp right parietal region actively oozing and the size is 3x1. 5x1.5 cms. 2. CLW scalp left parietal occipital region actively oozing. Scalp hari soiled with blood and the size was 3x2x1.5 cms and for this injury X-Ray skull AP and lateral views was advised. The X Ray skull was again done on the advise of radiologist of left lateral and left anterior oblique for the frontal region. On the basis of x-ray report qua injury No.2, the doctor noticed fracture of frontal bone (left), as such it was opined to be grievous in nature. The doctor issued his Medico Legal Certificate Ext.PW8/B to this effect. The doctor on the examination of PW4 Roshan Lal noticed the following injuries on his person:- 1. On the basis of x-ray report qua injury No.2, the doctor noticed fracture of frontal bone (left), as such it was opined to be grievous in nature. The doctor issued his Medico Legal Certificate Ext.PW8/B to this effect. The doctor on the examination of PW4 Roshan Lal noticed the following injuries on his person:- 1. CLW forehead right side, tender actively bleeding, regular in shape. The size was 2.5 x 1.5x1 cms. 2. CLW scalp on the vault actively oozing and the size was 5x2x3 cms and it was bone deep. For this injury he was advised X-ray skull A.P and lateral views. 3. An abrasion on postero lateral aspect of left leg, skin deep mildly tender. 4. There were parallel reddish abrasions on left shoulder joint, tender to touch, joint movement painfully restricted. X-ray reveals that all these injuries were simple in nature However, doctor opined that injures No.1, 3 and 4 caused with blunt weapon, whereas injury No.2 with sharp edged weapon. His Medico Legal Certificate is Ext.PW8/C. The doctor also noticed the following injuries on the person of PW1 Harmesh Lal:- 1. Badly crushed and deformed left pinna with overlying cartilage exposed, tenderness present, active bleeding present. External auditory canal full of blood clots. 2. A tender would was present on lateral border of right upper eye, actively oozing, tenderness present. Injury No.1 was opined to be grievous in nature and another injury simple. His Medico Legal Certificate is Ext.PW8/D. In the opinion of the doctor, some of the injuries aforesaid were dealt with either by Dandas or sharp edged weapon like Gandasi. (xii) On the opinion of the doctor, PW13 ASI Ashok Kumar added the offence under Section 307 of the Indian Penal Code. (xiii) During investigation, police also found the involvement of the accused persons Dhani Ram, Bihari Lal, Sohan Lal and Mohan Lal. 3. After completing investigation of this case, challan was presented in the court for the trial of the accused persons. They were accordingly charge- sheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial. 4. TO prove its case, prosecution examined the injured witnesses, PW6 Jai Chand besides examining the doctors and other witnesses. 5. THE accused persons were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances, which were found attendant upon them. 4. TO prove its case, prosecution examined the injured witnesses, PW6 Jai Chand besides examining the doctors and other witnesses. 5. THE accused persons were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances, which were found attendant upon them. Accordingly to them, the witnesses have given the wrong versions and they were innocent and falsely implicated in this case. While called upon to enter into their defence, they did not lead any evidence in defence. 6. While relying upon the statements of the prosecution witnesses, the learned trail Court has convicted and sentenced all the accused persons, as aforesaid, which is under challenge in the present appeal. 7. SHRI N.K. Thakur, learned Senior Advocate duly assisted by Shri Ramesh Sharma, learned Advocate for all the accused except accused No.3 Ramesh Lal @ Pammi who is being represented by Shri Anup Chitkara, learned Counsel, forcefully argued that the prosecution witnesses having not given a true version and their statements are contradictory. It is further argued that there has been a cross case by Karan Singh Bhaiya with respect to the incident in question. He and other persons also sustained the injuries on their person which have not been explained by the prosecution, as such, the very genesis of the facts were suppressed by them. Further their report was not investigated and the police gave a lopsided version. It is further argued that nothing has been imputed against accused Dhani Ram, Bihari Lal, Sohan Lal and Mohan Lal. They were dragged in the case being their friends and relations. Learned counsel also pointed out that there has been a delay of 12 hours in lodging the report, which was after due deliberations. Further there is reference of one Karan Singh @ Bhaiya who was neither made an accused nor a witness. 8. ON the other hand, Shri D.C. Pathik, learned Additional Advocate General duly assisted by other Law Officers countered the aforesaid arguments, on the grounds that the learned trial Court had sifted the evidence in proper manner. The role of each of the accused persons has been explained. 8. ON the other hand, Shri D.C. Pathik, learned Additional Advocate General duly assisted by other Law Officers countered the aforesaid arguments, on the grounds that the learned trial Court had sifted the evidence in proper manner. The role of each of the accused persons has been explained. It is also argued that the accused persons had formed an unlawful assembly and in prosecution of common object thereof attacked the complainant party with deadly weapons and he also referred the Medico Legal Certificates of the injuries duly supported by the doctors that the injuries in question were grievous and dangerous to the life, thus they were rightly convicted and sentenced. He also referred the statement of PW6 Jai Chand, an alleged eye witness and it is ventilated that the evidence of the injured persons can not be lightly brushed aside for want of non-explanation of the minor injuries on the person of some of the accused persons. It is further argued that there has been no undue delay in lodging FIR for the reasons that incident in question had taken place around 9.15 p.m., thereafter injured persons were immediately taken to the hospital and next morning around 9.30 a.m. PW13 ASI Ashok Kumar on visiting the hospital, had recorded statement of PW1 Harmesh Lal Ext.PW1/A, which ultimately culminated into FIR. It is further argued that the complaint by Karan Singh @ Bhaiya to Police was nothing but an eye-wash to create defence. He happened to be a servant of one of the accused persons, who belonged to Punjab. 9. We have thoughtfully and with due care and caution scanned the evidence on record. 10. THE prosecution has heavily relied upon the injured witnesses regarding occurrence. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness was injured at the time and in the same occurrence lends a confidence to the testimony that the witness was present at the time of occurrence and very convincing ground would be required to discard such evidence when an injured witness named the assailants so much so that it cannot be readily said that such witness would omit the real assailants and falsely implicate an innocent person in absence of proven animosity. Similarly, it is also settled that all form of discrepancies in the testimony of witness cannot be treated as fatal. Similarly, it is also settled that all form of discrepancies in the testimony of witness cannot be treated as fatal. The role of the Court is to examine his statement to reach the truth. 11. FURTHER, the discrepancies in the statement of witnesses which do not materially affect the veracity of testimony do not create infirmity in a prosecution case. More so, when the witness is not shown to be partisan or in a way inimically disposed towards the accused. 12. This is a case where almost all the injured witnesses are proved to be eye witnesses, whereas the prosecution case is that the said witnesses suffer number of grievous injuries and they supported the prosecution case in toto whereas, the accused persons if had suffered the superficial injuries is also one of the relevant factor to decide about the presence at the relevant time and to find out as to who was the aggressor. The injuries sustained by the witnesses guarantee their presence at the place of alleged incident. Their testimony is relevant in the context to unfold the prosecution story. But, at the same time, there is no immutable rule that evidence of the injured witness should be mechanically accepted, therefore, law requires the proper sifting of the evidence. Thus, taking this onerous duty on us, we proceed to scan the evidence in the light of above settled principle of law. 13. according to PW13 ASI Ashok Kumar, Karan Singh servant of Jasbir Singh accused had lodged the report Ext.PW11/A was a person from Hoshiarpur (Punjab). He was an injured and was got medically examined, but the injuries found on him were simple in nature and non-cognizable, thereafter he was not traceable. A perusal of the said report reveals that Karan Singh aforesaid alongwith Bihari Lal were servants of accused Jasbir Singh employed to graze his cattle. Both of them belonged to Hoshiarpur (Punjab). In the report aforesaid, they imputed allegations against Darshal Lal, Harmesh Lal and Roshan Lal, injured persons having come in the tractor in their Dera when they were taking food and gave beatings to him and also to Bihari Lal. When they raised hue and cry, accused Kishore Chand and Jasbir Singh came there and rescued them from the clutches of the aforesaid persons. Thereafter they fled away in their tractor. 14. When they raised hue and cry, accused Kishore Chand and Jasbir Singh came there and rescued them from the clutches of the aforesaid persons. Thereafter they fled away in their tractor. 14. WHEREAS, prosecution witnesses PW1 Harmesh Lal, PW2 Sukhdev @ Sukha, PW3 Darshan Lal and PW4 Roshan Lal have supported the prosecution case in one voice. PW1 Harmesh Lal categorically attributed the injuries having been caused to him by accused Kishore Chand and Ramesh Lal @ Pammi. Kishore Chand gave Danda blow whereas Ramesh @ Pammi Gandasi as aforesaid. In cross- examination, he admitted that normally the owners of Buffalos keep Bhaiyas (servants) for grazing, but those who are poor, they graze the cattle themselves. He also referred in his statement Ext.PW1/A recorded on 11.6.2003 that he did not mention the names of Karan Singh @ Bhaiya aforesaid and also the names of Dhani Ram, Ghuggi and Pammi and the arms carried by each of them as on that day, he was not fully conscious because of the injuries sustained by him. He was under a great pain. Thereafter, in his statement recorded by the police on 13.6.2003, he had exonerated Karan Singh. He had not mentioned the name of Jai Chand who had tried to rescue him. Though, he stated that he received a Gandasi blow from the reverse blunt side and also with its handle, which was of Bamboo. He denied having falsely implicated the accused persons. 15. PW2 Sukhdev @ Sukha substantiated the fact of giving Danda blow by accused Ghuggi on the left side near parietal region, thereafter a Gandasi blow on his head was given by Kishore Chand from its reverse side. In cross-examination, he stated that he was interrogated by the police after about 2/3 days though he was fully conscious after about a week. He was also confronted with his statement Mark D-2 wherein it was not so recorded that the accused persons were identified by them in the light of kerosene lamp. 16. PW 3 Darshan Lal stated having been hit with Danda by Jasbir Singh accused on his head and shoulder. He also had a fracture of his left shoulder. In cross-examination, he stated that at the time of occurrence, Jai Chand was sitting on a cot with Telu Ram, lying at some distance. All of them were dining while sitting away from each other. 17. He also had a fracture of his left shoulder. In cross-examination, he stated that at the time of occurrence, Jai Chand was sitting on a cot with Telu Ram, lying at some distance. All of them were dining while sitting away from each other. 17. PW 4 Roshan Lal categorically stated having given Gandasi blow on his head by Ramesh Lal @ Pammi accused while the other (names not given) Danda blow on his arm. In cross-examination, he stated that when they were attacked and immediately stood up and tried to save themselves. He also stated that Telu Ram was already sitting there on the cot at a distance. A trolley with Tractor was parked near their Dera. He categorically denied that he and other persons were not given beatings by the accused persons. He had also denied that he had quarreled with Bhaiya and falsely implicated the accused persons. 18. PW6 Shri Jai Chand is a witness to the occurrence, who had tried to save the complainant party. He also stated that when all of them were dining together, accused Kishore Chand, Ram Lal @ Pammi came armed with Danda and Gandasi, respectively. Thereafter, Kishore Chand attacked Harmesh Lal and Pammi attacked Roshan Lal with Gandasi while others (names not mention) started beating them with Dandas. He also stated that he alongwith Telu Ram tried to save them. They also raised hue and cry, but were not successful in getting more help. He further stated that because of this beating given by the accused persons, Darshan Lal, Harmesh Lal, Roshan Lal and Sukha became unconscious. Thereafter, he took all of them to hospital at Una in Tractor-trolley laid them over a quilt-cover Ext.Pw17/A. He is also a witness to the recovery memos Exts.PW6/A and PW6/B, vide which accused Kishore Chand and Ramesh Lal produced Gandasis to the police, which were taken into possession and also identified to be the same as Ext.P9 and P10. In cross-examination, he stated that he identified one of the Gandasi from the nail crossing its handle. He admitted that on the previous date of hearing, he was present in the Court compound, but did not hear anything regarding the proceedings in the Court. In cross-examination, he stated that he identified one of the Gandasi from the nail crossing its handle. He admitted that on the previous date of hearing, he was present in the Court compound, but did not hear anything regarding the proceedings in the Court. He admitted that after the incident, he remained with his Uncle and talked with them, but however, his statement was recorded next day of the occurrence and disclosed to the police about the bringing of the injured to the hospital in his tractor-trolley, wherein this fact was not found mentioned in his statement Mark D-5 recorded by the police. He also stated that 4-5 days earlier to the alleged occurrence, a quarrel had taken place between the parties on entering of the cattle of the accused persons in the land of the complainant party, but the dispute was compromised inter se them. He also stated that he was not hit by any of the accused persons nor he sustained injuries, but he was trying to rescue the injured with the help of his arms ( referred to hands). 19. THE injuries on the person of PW3 Darshan Lal as per PW8 Dr. Sunil Sharma were simple in nature except 4th injury as stated above having sustained the fracture on his shoulder and PW2 Sukhdev @ Sukha had sustained the fracture of frontal bone in addition to the minor injuries of cut over the scalp right parietal region and Harmesh Lal was having grievous injuries over left Pinna which was badly crushed and deformed overlying cartilage exposed, tenderness present active bleeding was present and external auditory canal was full of blood whereas, Roshan Lal was having minor injuries over the scalp, forehead and other parts of the body. The x-rays on the basis of which PW8 Dr. Sunil Sharma opined grievous injuries on the persons of the Darshan Lal, Sukhdev, Harmesh Lal have been proved by PW9 Dr. M.K. Kapoor, Radiologist alongwith his opinion which have not been disputed in his cross-examination. 20. ACCORDING to PW13 ASI Ashok Kumar, report Ext.PW11/A by Karan Singh was also investigated, but it was found false after verification as it was lodged by him just to save their own skin. 21. M.K. Kapoor, Radiologist alongwith his opinion which have not been disputed in his cross-examination. 20. ACCORDING to PW13 ASI Ashok Kumar, report Ext.PW11/A by Karan Singh was also investigated, but it was found false after verification as it was lodged by him just to save their own skin. 21. On the critical examination of the aforesaid evidence, we find that there is nothing on record to connect accused Dhani Ram, Bihari Lal, Sohan Lal and Mohan Lal @ Mohan as none of the witnesses stated against them nor they have been proved to have formed an unlawful assembly, whereas, qua Dhani Ram specifically, there is a reference in the statement of PW1 Harmesh Lal that he had come to inform them to take back Soma, who was lying in drunken condition in his Dera. According to PW6 Jai Chand, when Dhani Ram had informed Harmesh Lal about the above fact, accused Kishore Chand and Ramesh @ Pammi, Jasbir Singh @ Chiri came armed with the weapons attacked Harmesh Lal and others as aforesaid. Thus, no overt act has also been imputed to Dhani Ram. Therefore, in our considered opinion, the conviction of Dhani Ram, Bihari Lal, Sohan Lal and Mohan Lal @ Mohan is unsustainable and deserves to be set-aside. 22. IN so far as the other accused persons, namely Kishore Chand, Ramesh Lal @ Pammi, Jasbir Singh @ Chiri and Ghugi @ Lakhbir Singh are concerned, there are consistencies in the statements of the injured witnesses referred above, having also imputed the role played by each of the said accused persons and voluntarily caused grievous and sharp edged injuries in furtherance of their common intention to the injured aforesaid. Since against other four of them nothing came on record even by direct or indirect evidence so as to make them as a member of the unlawful assembly as none of them is proved to have formed an unlawful assembly or having committed any overt act. It is proved that the Gandasi was used from the reverse side which caused the fracture of left shoulder joint region of Darshan Lal and also the fracture of frontal bone of Sukhdev with blunt weapon, whereas the cut injuries on the aforesaid persons are with Gandasi, which was so opined by the doctor. It is proved that the Gandasi was used from the reverse side which caused the fracture of left shoulder joint region of Darshan Lal and also the fracture of frontal bone of Sukhdev with blunt weapon, whereas the cut injuries on the aforesaid persons are with Gandasi, which was so opined by the doctor. The report Ext.PW11/A alleged to have been lodged by Karan Singh is of no consequence to doubt the prosecution version to the above extent, as neither such story was put to the injured witnesses in their statements nor in their cross-examination. It appears to have been lodged simply to counter the case of the complainant party, who otherwise were having very grievous injuries on their persons and injuries to Karan Singh and Bihari Lal were very simple in nature, which require no explanation by the prosecution as the injuries sustained by the complainant party are self indicative of the fact that the aforesaid accused persons were aggressors. 23. SINCE accused persons, namely, Kishore Chand, Ramesh Lal @ Pammi, Jasbir Singh @ Chiri and Ghugi @ Lakhbir Singh have caused voluntarily hurt to the aforesaid injured persons in furtherance of their common intention, as such, we hold them guilty for the offences punishable under Sections 325 and 324 read with Section 34 of the Indian Penal Code and not for attempted murder punishable under Section 307 and also for rioting. 24. Therefore, accused persons Kishore Chand, Ramesh Lal @ Pammi, Jasbir Singh @ Chiri and Ghugi @ Lakhbir Singh are convicted for the offences punishable under Sections 325 and 324 read with Section 34 of the Indian Penal Code and accordingly each of them are sentenced to undergo rigorous imprisonment for a period of three years under Section 325 of the Indian Penal Code and to pay a fine of Rs.5,000/- and two years rigorous imprisonment for the offence punishable under Section 324 of the Indian Penal Code and to pay a fine of Rs..2,000/-. In default of payment of fine, they shall further undergo simple imprisonment for a period of six months under each of the Sections aforesaid. The fine, if any, deposited by them, shall be adjusted against the fine imposed by this Court. The aforesaid sentences shall run concurrently. In default of payment of fine, they shall further undergo simple imprisonment for a period of six months under each of the Sections aforesaid. The fine, if any, deposited by them, shall be adjusted against the fine imposed by this Court. The aforesaid sentences shall run concurrently. In addition, the aforesaid convicts are also liable to pay compensation under Section 357 of the Code of Criminal Procedure to the tune of Rs.40,000/-, which shall be paid and deposited by the said convicts in equal proportion. In case the above amount is deposited/realized, it shall be disbursed to injured persons: i) PW2 Sukhdev @ Sukha = Rs.20,000/-; ii) PW3 Darshan Lal = Rs.10,000/-; iii) PW4 Roshan Lal = Rs.5,000/-; and iv) PW1 Harmesh Lal = Rs.5,000/-. 25. IN case the compensation is not deposited, it shall be realized as a fine. 26. HOWEVER, the appeal filed by Dhani Ram, Bihari Lal, Sohan Lal and Mohan Lal is allowed and their conviction and sentence is set-aside. They are discharged of their bail bonds entered upon by them during the pendency of the proceedings. The fine amount, if any, deposited be refunded to them. 27. Appellants-convicts namely, Kishore Chand, Ramesh Lal @ Pammi, Jasbir Singh @ Chiri and Ghugi @ Lakhbir Singh are hereby directed to surrender before the learned trial Court to serve out the sentence on 25th June, 2013. The period of custody, if any, i.e., pre and during trial, shall be set-off under Section 428 of the Code of Criminal Procedure. The appeal is partly allowed in the above terms.