JUDGMENT 1. - This appeal is directed against the judgment of conviction and order of sentence dated 13.08.1991 passed by the learned Additional Sessions Judge, No.1, Jodhpur in Sessions Case No.68/1987, titled as the State of Rajasthan v. Kailash Dan and Anr. , whereby appellant Kailash Dan was convicted for the offence under Section 326 IPC and sentenced him for 3 years' rigorous imprisonment with fine of Rs. 50, in default whereof to further undergo for 15 days' simple imprisonment. It was also ordered that the period for which appellant remained in custody during investigation and trial, same shall be adjusted in the principal sentence. Appellant Gulab Dan was convicted for the offence under Section 323 IPC and was released on probation for a period of one year on his executing a personal bond and surety bond for Rs. 5000/-. 2. From the perusal of the record of the learned trial court, it reveals that Mahendra Singh (PW-1) submitted a written report Ex.P/1 before the Station House Officer, Police Station, Shashtri Nagar, Jodhpur stating therein that on 23.03.1987, at about 10:45 AM, a she-goat belonging to him was being beaten by the sons of Jawahar Dan and he asked them not to do so. Thereafter Jawahar Dan, Kailash Dan, and Gulab Dan started pelting stones and when Dalip and his other brothers came out of house, abuses were hurled by the accused. Appellant-accused Kailash Dan went inside his house and brought a sword and inflicted a sword blow on the head of Dalip. Gulab Dan inflicted Lathi blow on the hand of Dalip and Jawahar Dan threw the stones towards him. When Mahendra Singh intervened, he was also hit by stone. The incident was witnessed by Praveen, Daulat Ram and Bharat Bhusan. 3. On the basis of this information, FIR No.61/1987 was registered for the offences punishable under Sections 307, 336, and 323 IPC at Police Station, Shashtri Nagar, Jodhpur and investigation was commenced. After investigation, charge-sheet for the offences punishable under sections 307, 323 and 325 read section 34 IPC was filed on 12.06.1987 before the learned Additional Chief Judicial Magistrate, No.1 Jodhpur. After investigation, charge-sheet for the offences punishable under sections 307, 323 and 325 read section 34 IPC was filed on 12.06.1987 before the learned Additional Chief Judicial Magistrate, No.1 Jodhpur. Since the offence under Section 307 IPC was exclusively triable by the Court of Sessions, therefore, learned Additional Chief Judicial Magistrate, after complying the provisions envisaged under Section 207 Cr.P.C., committed the case to the court of learned Sessions Judge, Jodhpur on 12.08.1987 as per the provisions of Section 209 Cr.P.C. Learned Sessions Judge assigned the case for trial to the learned Additional Sessions Judge, No.1, Jodhpur (hereinafter referred to as 'the learned trial court'). The learned trial court after hearing framed charge under Section 307 IPC against accused Kailash Dan and under Sections 307 read with section 34 and 323 IPC against accused Jawahar Dan and Gulab Dan for which they denied and claimed for trial. 4. To substantiate the charges against the accused prosecution examined as many as 12 witnesses and proved certain documents. Thereafter accused persons were examined under section 313 Cr.P.C. wherein they claimed prosecution evidence as false and stated that due to enmity they have been falsely implicated and didnt choose to lead defence evidence. After hearing the learned Additional Public Prosecutor and learned counsel for accused, learned trial court convicted the appellants-accused and sentenced as aforesaid. During course of trial accused Jawahar Dan was died. 5. Aggrieved by the impugned judgment of conviction and order of sentence appellants preferred this appeal before this court which was was admitted for consideration vide order dated 12.09.1991 and notice was issued to respondent State and record of trial court was called for. 6. Heard Mr. P. N. Mohnani, learned counsel for appellants accused and Mr. J.P.S. Choudhary learned Public Prosecutor and perused the impugned judgment and record of the learned trial court. 7. Mr. P. N. Mohnani, learned counsel appearing on behalf of appellants-accused, has submitted that in this case injured Dalip has not been examined during trial and no sharp edged injury was proved on the head of injured Dalip. The medical officer, who prepared injury reports has not been examined and in absence of sharp edged grievous injury, the offence under Section 326 is not made out. Mr. Mohnani further submitted that initially no bony injury was found on the body of injured Dalip. Therefore second report regarding fracture cannot be relied upon. The medical officer, who prepared injury reports has not been examined and in absence of sharp edged grievous injury, the offence under Section 326 is not made out. Mr. Mohnani further submitted that initially no bony injury was found on the body of injured Dalip. Therefore second report regarding fracture cannot be relied upon. As such at the most the offence cannot travel beyond 323 IPC. He further submitted that at the time of offence appellant-accused Kailash Dan was below 21 years of age and is not previous convict, therefore he is entitled for the benefits of probation. He further submitted that appellant Gulab Dan has already given the benefit of probation, therefore appellant accused Kailash Dan is also entitled for that as parity. 8. The learned Public Prosecutor supported the impugned judgment of conviction and order of sentence and submitted that since injured Dalip died during trial, therefore, he could not be examined before the learned trial court. It was further submitted that the eye-witnesses, who were present at the site, have supported the prosecution case and their statements fully corroborate with the medical evidence. He further submitted that the eye-witnesses specifically stated that the appellant-accused Kailash Dan inflicted sword blow on the head of injured Dalip and as per the radiological report, there was fracture on left parietal bone. As such, this injury was treated as grievous one. Hence, the learned trial court rightly convicted the appellant-accused Kailash Dan for the offence under Section 326 IPC. It was also submitted that due to death of injured Dalip, the statements of other witnesses and medical evidence cannot be ignored and the learned trial court rightly convicted and sentenced the appellant-accused. Therefore, the appeal has no merit and deserve to be dismissed. 9. To decide the issues raised by the learned counsel for the parties, a brief synopsis of evidence on record, as led by the prosecution is apposite. 10. Mahendra (PW-1) deposed that on 23.03.1987, at about 10:45 AM, a she-goat belonging to him was being beaten by the sons of Jawahar Dan and he asked them not to do so. Thereafter Jawahar Dan, Kailash Dan, and Gulab Dan started pelting stones and when Dalip and his other brothers came out of house, abuses were hurled by the accused. Kailash Dan went inside his house and brought a sword and inflicted a sword blow on the head of Dalip. Thereafter Jawahar Dan, Kailash Dan, and Gulab Dan started pelting stones and when Dalip and his other brothers came out of house, abuses were hurled by the accused. Kailash Dan went inside his house and brought a sword and inflicted a sword blow on the head of Dalip. Gulab Dan inflicted Lathi blow on the hand of Dalip and Jawahar Dan threw the stones towards him. When he intervened in between, he was also hit by stone. Thereafter Praveen, Daulat Ram and Bharat Bhusan also came there and intervened. 11. Gajendra Singh (PW-2) proved recovery memo of sword (Ex.P/3). 12. Daulat Ram (PW-3) is the eye-witness, who corroborated the statement of Mahendra Singh (PW-1). 13. Dharma Ram (PW-4) proved site inspection report (Ex.P/4), site inspection memo (Ex/P/5) and recovery memo of clothes (Ex.P/6). 14. Gopal Singh (PW-5) deposed that he reached at the spot where he saw injured Dalip having sword blow. He also proved recovery memo of sword Ex.P/3. 15. Bharat Bhushan (PW-6) is also an eye-witness of the incident, who corroborated the statement of Mahendra Singh (PW-1). 16. Malam Singh (PW-7) deposed that on 23.03.1987, he was posted as ASI, P.S. Shastri Nagar, Jodhpur and on that day, Mahendra Singh (PW-1) submitted a written report (Ex.P/1) on which he chalked the FIR (Ex.P/9) and thereafter the matter was assigned for investigation to Shri Ratan Singh, ASI. 17. Praveen Choudhary (PW-8) is also an eye-witness of the incident, who corroborated the statement of Mahendra Singh (PW-1). 18. Ratan Singh (PW-9), ASI, investigated the matter and stated about the investigation. 19. Kalyan Singh (PW-10) deposed that at the relevant time he was posted as SHO, PS, Shastri Nagar, Jodhpur and Shri Ratan Singh, ASI, after investigation of the matter, submitted papers before him on which he filed charge-sheet against the accused in the court. 20. Dr. B.P. Gupta (PW-11) examined injured Dalip and found the following injuries on his person:- "(i) A stitched wound 3" long placed horizontally in middle of scalp. (ii) Abrasion 1/2" X 1/4" on the lower portion of nose. (iii) Abrasion 1" X ⅛" on left arm. (iv) Abrasion 1" X 1/2" below right nipple. (v) Abrasion 1/2" X 1/2"on left knee. (vi) Complaining of pain in back." 21. It was also stated by him that thereafter X-ray of scalp of Dalip was got done on which fracture was found of left parietal bone. 22. Dr. (iii) Abrasion 1" X ⅛" on left arm. (iv) Abrasion 1" X 1/2" below right nipple. (v) Abrasion 1/2" X 1/2"on left knee. (vi) Complaining of pain in back." 21. It was also stated by him that thereafter X-ray of scalp of Dalip was got done on which fracture was found of left parietal bone. 22. Dr. Ratanlal (PW-12), Professor, Radiology deposed that the X-ray of injured Dalip was got done in his presence and he proved X-ray report (Ex.P/13) and stated that there was fracture on left parietal bone. 23. I have considered the rival submissions made at the Bar and gone through the impugned judgment and available record. 24. From the statements of eye-witnesses Daulat Ram (PW- 3), Bharat Bhushan (PW-6) and Praveen Choudhary (PW-8), it is clear that the appellant-accused Kailash Dan inflicted sword blow and from the statements of Dr. B.P. Gupta (PW-11) and Dr. Ratanlal (PW-12), it is clear that he inflicted sword blow on the head of injured Dalip which resulted in fracture on the left parietal bone. As such, the said injury was treated as grievous in nature. It is true that Dr. B.P. Gupta (PW-11) stated in his cross-examination that since injury No.1 was stitched wound, therefore, he cannot say that by which weapon, the said injury was caused. The grievous hurt is defined in Section 320 IPC, which reads as under:- "320. Grievous hurt.- The following kinds of hurt only are designated as" grievous":- First.- Emasculation. Secondly.- Permanent privation of the sight of either eye. Thirdly.- Permanent privation of the hearing of either ear. Fourthly.- Privation of any member or joint. Fifthly.- Destruction or permanent impairing of the powers of any member or joint. Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth. Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. 25. As per the injury report, there was fracture of left parietal bone. As such, injury NO.1 of injured Dalip was grievous. 26. Now, the question remains that which weapon was used for causing that injury. For that, eye-witnesses, Daulat Ram (PW-3), Bharat Bhushan (PW-6) and Praveen Choudhary (PW-8) clearly stated that the appellant-accused Kailash Dan inflicted sword blow on the head of injured Dalip. As such, injury NO.1 of injured Dalip was grievous. 26. Now, the question remains that which weapon was used for causing that injury. For that, eye-witnesses, Daulat Ram (PW-3), Bharat Bhushan (PW-6) and Praveen Choudhary (PW-8) clearly stated that the appellant-accused Kailash Dan inflicted sword blow on the head of injured Dalip. Therefore, it is clear that the injury No.1 of injured Dalip was caused by him by sword and the sword was recovered at the instance of appellant-accused Kailash Dan from his conscious possession from his house having stained with human blood. As per Section 326 IPC, sword is sharp-edged weapon, which is an instrument for stabbing or cutting and used as a weapon of offence. Therefore, it cannot be said that offence under Section 326 IPC is not made out. As such, the arguments of the learned counsel for the appellants that offence under Section 326 IPC is not made out has got no merit. 27. Further, due to death of injured Dalip, he could not be examined before the learned trial court during trial. In such circumstances, the testimonies of eye-witnesses Daulat Ram (PW-3), Bharat Bhushan (PW-6) and Praveen Choudhary (PW-8, out of which Daulat Ram (PW-3) and Bharat Bhushan (PW-6) are independent witnesses, and medical witnesses, cannot be discarded and from their statements, it is proved beyond reasonable doubt that the appellant-accused Kailash Dan inflicted sword blow on the head of injured Dalip resulting in fracture on left parietal bone, which was treated as grievous. It is also noteworthy that no previous enmity was found to be established. As such, offence under Section 326 IPC has clearly been made out against appellant-accused Kailash Dan. Thus, it also cannot be said that the offence cannot travel beyond Section 323 IPC. 28. From the statements of the witnesses, it has also been proved that appellant-accused Gulab Dan pelted stones on the injured and thus he has also rightly been convicted and sentenced under Section 323 IPC. Further, while considering the facts and circumstances of the case, he has been extended the benefit of the provisions of Probation of Offenders Act, which does not warrant any interference by this Court. 29. From the above discussion, it is clear that there is no material on record, which warrants any interference with the impugned judgment and order. 30. Further, while considering the facts and circumstances of the case, he has been extended the benefit of the provisions of Probation of Offenders Act, which does not warrant any interference by this Court. 29. From the above discussion, it is clear that there is no material on record, which warrants any interference with the impugned judgment and order. 30. So far as contention of the learned counsel for the appellant that since appellant-accused Gulab Dan was granted probation, therefore, for maintaining parity, appellant accused Kailash Dan be also extended the benefit of probation, is concerned, in this regard Section 3 of the Probation of Offenders Act is relevant, which reads as under:- "3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860 .) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then. notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition." 31. Section 4 of the Probation of Offenders Act is also relevant, which reads as under:- "4. notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition." 31. Section 4 of the Probation of Offenders Act is also relevant, which reads as under:- "4. Power of court to release certain officers on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub- section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub- section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub- section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub- section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned." 32. From a bare perusal of the aforesaid provisions, it is clear that an offender can be released on probation if he is not accused of offence punishable for not more than sevan years as per Section 4. In the present case, the appellant accused Kailash Dan has been convicted for the offence under Section 326 IPC and the maximum sentence provided for this offence is life term imprisonment. Thus, he cannot be extended the benefit of probation. 33. At this stage, learned counsel for the appellant-accused submitted that the incident is of 1987 and at the time of incident, the age of appellant-accused was below 21 years, therefore, while taking lenient view, his sentence may be reduced. 34. In Sevaka Perumal & Anr. v. State of Tamil Nadu [ (1991) 3 SCC 471 ] , it has been emphasised that undue sympathy resulting in imposition of inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. 35. In Jashubha Bharatsingh Gohil & Ors. v. State of Gujarat [ (1994) 4 SCC 353 ] , the Hon'ble Apex Court adverting to the new challenges of sentencing, opined that the courts are constantly faced with the situation where they are required to answer to new challenges and mould the required sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. 36. In State of M.P. v. Saleem @ Chamaru & Anr. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. 36. In State of M.P. v. Saleem @ Chamaru & Anr. [ (2005) 5 SCC 554 ] , it has been ruled that the object should be to protect society and the avowed object of law is achieved by imposing appropriate sentence to deter the criminal. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 37. In Alister Anthony Pareira v. State of Maharashtra [ (2012) 2 SCC 648 ] , it has been laid down that sentencing is an important task in relation to criminal justice dispensation system. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence, commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles; twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. It has been further opined that the principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, the proportion between crime and punishment bears the most relevant influence in the determination of sentencing the crime-doer. The court has to take into consideration all aspects including the social interest and conscience of the society for award of appropriate sentence. 38. In State TR.P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda [(2012) 7 SCC 120] , Hon'ble Mr. Justice K.S. Radhakrishnan, in his separate opinion, pertaining to the conception of adequate sentencing, has expressed thus: "Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. In State TR.P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda [(2012) 7 SCC 120] , Hon'ble Mr. Justice K.S. Radhakrishnan, in his separate opinion, pertaining to the conception of adequate sentencing, has expressed thus: "Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence." 39. Recently, Hon'ble Supreme Court in Rattiram & Ors. v. State of M.P. Through Inspector of Police [AIR 2012 SCW 1722] , though in a different context, has stated that criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. It is the duty of the court to see that the victim's right is protected. We may note with profit that an appropriate punishment works as an eye-opener for the wrong doers. 40. In Guru Basavaraj @ Benne Settappa, the Hon'ble Supreme Court observed that there can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored. 41. In Siriya @ Shri Lal v. State of M.P. [AIR 2008 SC 231] , it has been held:- "Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his 'Law in Changing Society' stated that, 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, law as a corner-stone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his 'Law in Changing Society' stated that, 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be." 42. From the aforesaid authorities, it is luminous that the Hon'ble Supreme Court has expressed its concern on imposition of adequate sentence in respect of commission of offences regard being had to the nature of the offence and demand of the conscience of the society. That apart, the concern has been to impose adequate sentence for the offences punishable under Section 326 IPC. It is worthy to notice that in certain circumstances, the mitigating factors have been taken into consideration but the said aspect is dependent on the facts of each case. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It has its impact on the society and the impact is felt more when such types of offences are repeated. 43. In view of the aforesaid, I have to weigh whether the submission advanced by the learned counsel for the appellants as regards the mitigating factors deserves acceptance. Compassion is being sought be on the ground of protracted trial and mercy is being invoked on the foundation of family responsibilities. The date of occurrence is in the year of 1987. Weighing the individual difficulty as against the social order, collective conscience and the duty of the court, I am disposed to think that the adequate sentence awarded by the learned trial court does not warrant any interference and accordingly I concur with the same. 44. Consequently, the appeal, being devoid of any merit, fails and is hereby dismissed. 45. The appellant-accused Kailash Dan is on bail. He is directed to surrender before the learned trial court forthwith and to receive and undergo remaining sentence imposed upon him. On the failure of the appellant to surrender as above directed, the learned trial court shall commit the appellant to jail for undergoing the sentence by issuing warrant of arrest against him. 46. He is directed to surrender before the learned trial court forthwith and to receive and undergo remaining sentence imposed upon him. On the failure of the appellant to surrender as above directed, the learned trial court shall commit the appellant to jail for undergoing the sentence by issuing warrant of arrest against him. 46. Record of the court below be sent back with a copy of this judgment forthwith for compliance.Appeal Dismissed. *******