JUDGMENT : 1. Heard Sri Ashutosh Gupta, learned counsel for the appellant no.1/Ram Het and Sri S.B. Maurya, learned counsel for the State and perused the material on record. 2. This appeal has been preferred by Ram Het, Bhoop Singh, Amar Singh and Jasram against the judgment and order dated 28.01.1981 passed by 4th Additional Sessions Judge, Mathura in Sessions Trial No. 221 of 1978 (State of U.P. Vs. Jasram and 3 others) by which the appellant no.1/Ram Het has been convicted and sentenced under Section 326 IPC to three years R.I., appellant no.2/Bhoop Singh and the appellant no.3/Amar Singh have been convicted and sentenced under Section 323 IPC to Rs. 100/- and in default of payment of it to three months rigorous imprisonment and the appellant no.4/Jasram has been convicted under Section 324 IPC and has been directed to file personal bond of Rs. 1,000/-with two sureties to keep peace and for keeping good behaviour for two years. In the impugned judgment, it is mentioned that the appellant no.2/Bhoop Singh and appellant no.3/Amar Singh have paid fine as imposed on them and as such their bail bonds have been cancelled and sureties have been discharged. 3. During the pendency of this appeal before this Court, the appellant no.2/Bhoop Singh, appellant no.3/Amar Singh and appellant no.4/Jasram have died and as such their appeals stand abated vide order dated 20.02.2020 passed by a co-ordinate Bench of this Court. 4. The prosecution case as per the First Information Report lodged on 31.10.1977 at about 18:02 hrs at Police Station Kotwali, District Mathura by Khajan Singh PW-2 is on his giving statement with regards to an incident which took place on 31.10.1977 at about 10:00 am in village Falin, District Mathura is that Khajan Singh is son of Bheem Sen R/o village Falin, Police Station Kosi Kalan, District Mathura. 5. On the day of lodging of the report at about 10:00 am, his brother Ram Singh was ploughing his field and in the neighbouring gram field was sown which had germinated and had taken to shape of growing plants. Three buffaloes of accused Jasram entered in the said gram field and started grazing. They were driven away by Ram Singh who started to take them towards the cattle pond in Kosi Kalan. Three buffaloes of accused Jasram entered in the said gram field and started grazing. They were driven away by Ram Singh who started to take them towards the cattle pond in Kosi Kalan. After going some distance, Jasram armed with ballam, Ram Het armed with farsa, Bhoop Singh armed with lathi and Amar Singh armed with lathi reached there and told his brother Ram Singh not to take the animals on which he stated that he would take them to the animal’s pond. There was some discussions between them after which all the four accused persons armed with their respective weapons assaulted Ram Singh. On hearing his cries, Khajan Singh, his brother who was working in the nearby field, Ram Swaroop and Naval Singh intervened and disbursed the situation. Ram Singh in an injured condition was taken to the Hospital, Kosi Kalan where he was examined by the doctor who referred him to the District Hospital, Mathura for saving his life. He was then taken to Mathura and admitted in the District Hospital, Mathura. 6. Khajan Singh the brother of Ram Singh went to the Police Station Kotwali, Mathura and lodged an oral report naming all the four accused persons. The same is Exb: Ka-5 to the records. 7. Ram Singh was medically examined on 31.10.1977 at 12:15 pm by Dr. Mohan Chand Galecha PW-1 who found six injuries on his person. The same are as follows:- i. Incised wound 8cm x 1.5cm x scalp deep oblique in direction on middle of head 13 cm above left ear. Bleeding present. Advised X-ray. Kept under observation. ii. Lacerated wound 8cm x 1cm x scalp deep semi circular on back of left side of head 6cm behind injury no.1. Bleeding present. iii. Lacerated wound 3.5cm x 8.5cm x skin deep on left side of neck 7 cm below left ear. Bleeding present. iv. Penetrating wound 1cm x 0.5 cm x 2cm on inner side of left thigh. Bleeding present. v. Complains of pain on chest. No external mark of injury. vi. Complains of pain on right knee joint. No external mark of injury. Further observation of the doctor and his opinion regarding the injuries is as follows:- “Bleeding from left ear present. Semi conscious state. Nature of injuries: All injuries are simple in nature except injury no.1 which was kept under observation. Injury no.1 caused by sharp edged object like farsa. Complains of pain on right knee joint. No external mark of injury. Further observation of the doctor and his opinion regarding the injuries is as follows:- “Bleeding from left ear present. Semi conscious state. Nature of injuries: All injuries are simple in nature except injury no.1 which was kept under observation. Injury no.1 caused by sharp edged object like farsa. Advised X-ray head. Injury no. 2 and 3 by blunt object like lathi. Injury no.4 by penetrating object like ballam.” The medical examination report of Ram Singh is Exb: Ka-1 to the records. 8. On being referred for x-ray examination for injury no.1, the same was conducted on 01.11.1977 by Dr. M.K. Rawat PW-6 who gave his report which is Exb: Ka-4 to the records. In the x-ray report, the doctor found fracture of the left parietal bone. 9. The investigation concluded and charge sheet No. 106 dated 16.11.1977, under Sections 323, 324, 308 IPC was filed against all the accused persons. The same is Exb: Ka-10 to the records. 10. Charges were framed against the accused persons by 5th Additional Sessions Judge, Mathura vide order dated 17.06.1980 under Section 308 IPC. The accused denied the charges and claimed to be tried. 11. In the trial, Khajan Singh the first informant was examined as PW-2, Shiv Singh the nephew of the injured was examined as PW-3, Ram Singh the injured was examined as PW-5, Naval Singh the alleged eye witness was examined as PW-8. Amongst the formal witnesses, Dr. Mohan Chand Galecha was examined as PW-1 who examined Ram Singh and prepared his medical examination report and had further examined Bhoop Singh on 01.11.1977 and prepared his medical examination report which is Exb: Kha-1 to the records. Somdutt Sharma the Head Constable was examined as PW-4 who had received the First Information Report and the injury report of Ram Singh and had transcribed the GD of the same. Dr. M.K. Rawat was examined as PW-6 who had prepared the x-ray report of Ram Singh. Pahalwan Singh the Head Constable was examined as PW-7 who transcribed the Chik FIR on the basis of an oral statement of Khajan Singh and D.C. Mishra who was examined as PW-9 was the Investigating Officer of the present case. 12. Dr. M.K. Rawat was examined as PW-6 who had prepared the x-ray report of Ram Singh. Pahalwan Singh the Head Constable was examined as PW-7 who transcribed the Chik FIR on the basis of an oral statement of Khajan Singh and D.C. Mishra who was examined as PW-9 was the Investigating Officer of the present case. 12. The accused under Section 313 Cr.P.C. gave their statements wherein the appellant no.3/Amar Singh pleaded alibi and stated of false implication due to enmity, appellant no.1/Ram Het also pleaded alibi and showed his ignorance about the facts of the case and further stated that as he is the son of the Jasram he has been falsely implicated in the present case, appellant no.4/Jasram stated of false implication due to enmity, appellant no.2/Bhoop Singh stated that he was ploughing his field and when he heard someone person in his sugarcane field, he went there and saw Ram Singh and Raghuveer removing his sugarcane and when the same was objected by him, Ram Singh assaulted with lathi. He cried for help after which his father Jasram reached there and then he assaulted his father armed with spade which was used by him for his defence. 13. The accused in the defence produced three defence witnesses being Hifazat Hussain Zaidi who was the Record Keeper in the office of the Senior Superintendent of Police, Mathura as DW-1, Vishnu Swarup Mittal as DW-2 and Gulab Singh as DW-3. 14. The trial court after considering the entire evidence on record and by appreciating the same came to a conclusion that the present incident is a broad daylight incident and there was no possibility of any mistaken identity. The injuries of the injured were of different weapons as stated by the prosecution. The prosecution has been successful in establishing the case beyond reasonable doubt. The injury no.1 received by the injured was on a vital part on the body and it was grievous and serious in nature and thus convicted the accused persons as aforesaid. 15. Although the accused persons were charged under Section 308 IPC and the trial took place under the said section but they were acquitted of the same and were found guilty under different sections for which they have been convicted and sentenced which has been stated above. 16. 15. Although the accused persons were charged under Section 308 IPC and the trial took place under the said section but they were acquitted of the same and were found guilty under different sections for which they have been convicted and sentenced which has been stated above. 16. Learned counsel for the appellant argued as follows:- (i) The present appeal remains only for the appellant no.1/Ram Het who is alleged to be armed with farsa. The appellant has been falsely implicated in the present case. (ii) He has been assigned the role having a farsa with him and assaulting the injured but the injury as received does not go to show that the same has been caused by farsa. (iii) The appellant has been convicted and sentenced for three years rigorous imprisonment. (iv) The present incident is of the year 1977 which is about 45 years above. (v) The appellant no.1/Ram Het surrendered before the Police Station on 08.11.1977 and was granted bail by the Sessions Judge, Mathura vide order dated 09.11.1977. He was convicted vide judgment and order dated 28.01.1981 after which he was granted bail by this Court vide order dated 06.02.1981. Subsequently non bailable warrants were issued against accused persons vide order dated 26.08.2021. In compliance of the said order dated 26.08.2021 he was arrested on 13.09.2021 and was subsequently granted bail on 21.12.2021. He was initially in jail for two days, then after conviction for 8 days till being granted bail by this Court after filing of the appeal and then lastly for three months and seven days and as such he is undergone about three months and 17 days in jail. (vi) It is argued that since the appellant has undergone some period in jail and looking to the facts of the case that Dr. Mohan Chand Galecha PW-1 in his cross examination has stated that the injury no.1 could have been caused from a corner of a sharp edged favra there are chances of false implication of the appellant and as such the sentence of imprisonment as awarded to him be converted to the period already undergone and appropriate compensation under Section 357 Cr.P.C. by awarded to the injured Ram Singh or his legal heirs which shall in no manner be treated as an enhancement of punishment by the appellant. 17. 17. Per contra, learned counsel for the State in rebuttal argued that the appellant is named in the First Information Report. He has been assigned the role of assault upon the injured with farsa along with other co-accused persons. The injuries corroborate with the prosecution case. Even the testimony of the injured Ram Singh is intact which would go to show that the prosecution case is consistent throughout. The appeal thus is liable to be dismissed. 18. PW-1 Dr. Mohan Chand Galecha examined Ram Singh the injured while being posted as Medical Officer, Civil Hospital, Mathura, he prepared the injury report which was proved by him. He further stated that there was a fracture of left parietal bone found under the injury no.1 and as such it was grievous and serious in nature. He further states that the injuries could have been inflicted by lathi, ballam and farsa. 19. Khajan Singh PW-2 the first informant of the present case and brother of Ram Singh the injured stated about the incident as narrated by him in his oral report which was registered as the First Information Report. 20. PW-3 Shiv Singh is the nephew of Ram Singh the injured, he is an eye witness of the incident. He also narrated about the incident as has been stated by PW-2 Khajan Singh/first informant. 21. PW-4 Somdutt Sharma the Head Constable stated that he received the First Information Report of the present case and the injury report of Ram Singh of which he made entries in the general diary as G.D. No. 17 at about 09:10 am on 01.11.1977. The copy of the same was marked as Exb: Ka- 6 to the records. 22. Ram Singh PW-5 is the injured of the present matter. He gave the narration of the incident as was stated by Khajan Singh PW-2 in his oral report. 23. Dr. M.K. Rawat PW-6 was the Radiologist of District Hospital, Mathura who conducted the x-ray examination of the injured Ram Singh, he proves the x-ray report which is Exb: Ka-4 to the records. He states that the left parietal bone was found fractured. The x-ray films were Exb: Ka-2 and Exb: Ka-3 to the records which were proved by him. 24. M.K. Rawat PW-6 was the Radiologist of District Hospital, Mathura who conducted the x-ray examination of the injured Ram Singh, he proves the x-ray report which is Exb: Ka-4 to the records. He states that the left parietal bone was found fractured. The x-ray films were Exb: Ka-2 and Exb: Ka-3 to the records which were proved by him. 24. PW-7 Pahalwan Singh was a Head Constable posted in Police Station Kotwali, District Mathura who transcribed the Chik and First Information Report on the basis of oral version given by the Khajan Singh PW-2. He prepared the relevant documents for the same. 25. Naval Singh PW-8 is also an eye witness of the said incident. He states that while he was passing through village Falin, he saw crowd collected and came to know that there was some criminal activity which had taken place. He saw the assailants who were running away but could not identify the accused persons running. He was thus declared hostile. 26. D.C. Mishra PW-9 the Sub-Inspector was the Investigating Officer of the case. He took up the investigation and concluded it by filing the charge sheet which is Exb: Ka-10 to the records. He states that he had although taken blood stained earth and plain earth from the place of occurrence but the same was not sent to the chemical examiner for examination. In the site plan, he has taken the blood stained earth from the field of the first informant which was an inadvertent mistake by him. 27. Hifazat Hussain Zaidi the Record Keeper of the Senior Superintendent of Police, Mathura was examined as DW-1. He proves an application moved by Jasram an accused which is dated 08.12.1977 which was marked as Exb: Kha-2 to the records. On the said application, he states that there was an endorsement of the Circle Officer, Mathura directing the Station House Officer, Police Station Kosi Kalan to register the case and investigate the same. 28. Vishnu Swarup Mittal the Compounder in the Civil Hospital, Kosi Kalan was examined as DW-2. He proved the injuries of accused Bhoop Singh from the Medico Legal Register dated 01.11.1977 of the Hospital. The said injury report states as follows:- “i. Abraded contusion 12cm x 3 cm on front side right forearm, 4cm above right wrist, crest present & bluish in colour. ii. Abrasion 6cm x 2cm on front of middle right thigh. He proved the injuries of accused Bhoop Singh from the Medico Legal Register dated 01.11.1977 of the Hospital. The said injury report states as follows:- “i. Abraded contusion 12cm x 3 cm on front side right forearm, 4cm above right wrist, crest present & bluish in colour. ii. Abrasion 6cm x 2cm on front of middle right thigh. Crest present. iii. Abrasion 6cm x 1½ cm on outer side right lower leg, 20cm above right ankle joint. Crest present. iv. Traumatic swelling 8cm x 3.5cm on outer side of left ankle joint. Advised X-ray. Nature of injuries: All are simple in nature, except injury no.4, which was kept under observation & advised X-ray. Caused by blunt object and friction about 1½ days old in duration.” 29. After examination of DW-2, Dr. Mohan Chand Galecha PW-1 was re-examined who then stated of medically examining Bhoop Singh but stated that the injuries were superficial in nature and could have been self-inflicted. He was referred for x-ray examination but he did not find any x-ray film or report with regards to injury no.4 of Bhoop Singh. 30. Gulab Singh DW-3 states that he was in the field in the neighbourhood and was ploughing it when an incident took place. He states of a fight between Bhoop Singh and Ram Singh due to some dispute with regards to sugarcane. He further states that Ram Singh assaulted Bhoop Singh after which Bhoop Singh raised a shout for help on which Jasram reached there with a spade to rescue Ram Singh. Ram Singh assaulted Jasram with a lathi and in retaliation Jasram assaulted him with a spade in self-defence which hit his head. He states that there was no gram field of Ram Singh. 31. The trial court after going through the evidence on record and hearing the learned counsels for the parties came to a conclusion that the injury which resulted in fracture of Ram Singh was grievous and serious in nature and on a vital part of the body. The testimonies of the prosecution witnesses were intact and as such convicted the accused persons. 32. After having heard learned counsels for the parties and perusing the records, it is evident that the present incident is alleged to have taken place on 31.10.1977. Three of the accused, namely, Bhoop Singh, Amar Singh and Jasram have died and their appeal stands abated. 32. After having heard learned counsels for the parties and perusing the records, it is evident that the present incident is alleged to have taken place on 31.10.1977. Three of the accused, namely, Bhoop Singh, Amar Singh and Jasram have died and their appeal stands abated. The only surviving accused is Ram Het who is alleged to have been armed with a farsa. The evidence of witnesses have stated about the Bhoop Singh also receiving injury which was proved as Exb: Kha-1 to the records. He was found to have received one abraded contusion, two abrasions and one traumatic swelling. DW-3 Gulab Singh states of inter-se dispute between Bhoop Singh and Ram Singh which resulted in a quarrel and then assault between them. 33. The injuries of Bhoop Singh have also been duly proved by Dr. Mohan Chand Galecha PW-1 and also Vishnu Swarup Mittal DW-2 through the Medico Legal Register of Civil Hospital, Kosi Kalan. The fact that Ram Singh as received injuries cannot be disputed. The fracture of the left parietal bone is on the vital part of the body and cannot be a self inflicted injury. The same is injury no.1 in his medical examination report. The doctor has opined the other injuries received by him to be simple in nature but the injury no.1 is grievous and serious in nature. He was found bleeding from the left ear and was in a semi conscious state when taken to the doctor. The accused appellant no.1/Ram Het as till today suffered totally period of incarceration about three months and 17 days in jail. 34. The incident in question is of the year 1977 which is around 45 years back. 35. The accused appellant no.1/Ram Het was examined under Section 313 Cr.P.C. on 20.01.1981 and on the said date, he had disclosed his age as 22 years and as of now after 45 years, he must be around 67 years of age. The injured Ram Singh at the time of his medical examination was stated to be around 40 years old as per the medical examination report which is Exb: Ka-1 and even in his statement recorded as PW-5 before the trial court on 16.01.1981 he had disclosed his age as 45 years. From the age as disclosed in court while being examined as PW-5 he would be around 90 years of age as of now. 36. From the age as disclosed in court while being examined as PW-5 he would be around 90 years of age as of now. 36. The Apex Court in the case of Mangilal Vs. State of M.P. : 2004 (2) SCC 447 in paragraph 8 in regards to power to award compensation under Section 357 Cr.P.C. has held as follows:- “The power of the Court to award compensation to victims under Section 357 is not ancillary to other sentences but is in addition thereto. In Hari Singh v. Sukhbir Singh and Others : ( 1988 (4) SCC 551 ) it was observed that the power under Section 357 is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a re-compensatory measure to rehabilitate to an extent the beleaguered victims of the crime, a modern constructive approach to crimes, a step forward in our criminal justice system. In Sarwan Singh and Ors. etc. v. the State of Punjab : ( AIR 1978 SC 1525 ) it was held that in awarding compensation, the Court has to decide whether the case is fit one in which compensation has to be awarded. If it is found that the compensation should be ordered to be paid, then while arriving at the quantum to be paid, Courts are obliged to keep into account the capacity of the accused to pay the compensation besides taking into consideration also the nature of the crime in each case, the justness of the claim for compensation and the need for it in the context of the victim or members of the family of the victim and other relevant circumstances, if any, in so fixing or apportioning the amount of compensation. As noted above, the mode of application of the fine is indicated in sub-section (1) of Section 357. Sub-section (3) contains an independent and distinct power to award compensation.” 37. This Court thus while upholding the conviction of the appellant directs the sentence awarded to him to be reduced to the period already undergone by him in jail. 38. It is further directed that compensation is hereby awarded to the victim Ram Singh PW-5 or his legal heirs (as per law), as the case may be, of Rs. This Court thus while upholding the conviction of the appellant directs the sentence awarded to him to be reduced to the period already undergone by him in jail. 38. It is further directed that compensation is hereby awarded to the victim Ram Singh PW-5 or his legal heirs (as per law), as the case may be, of Rs. 1 lakh (Rupees one lakh) to be paid by the appellant no.1/Ram Het which is to be deposited before the Chief Judicial Magistrate, Mathura within a period of 60 days from today. In the event, the same is deposited as ordered herein, the same shall forthwith be disbursed to Ram Singh (PW-5) son of Bheem Sen or his legal heirs, as the case may be, forthwith after proper verification. In the event, the said amount of compensation is not deposited within the aforesaid period, the appellant shall serve out the sentence as awarded to him by the trial court after his conviction. 39. The Chief Judicial Magistrate concerned shall after deposit of the said amount of compensation and its disbursement as ordered above shall send a report on the administrative side to the Registrar General of this Court who shall keep the same in the file of the present case. Even, in the event of non-deposit of the same within the stipulated period, a report shall be sent by the Chief Judicial Magistrate concerned to this Court who shall further ensure the compliance of this order for the appellant to serve out the remaining sentence as awarded by the trial court. 40. The appeal thus is partly allowed. 41. The Registrar General is directed to communicate this judgment to the District and Sessions Judge, Mathura and the Chief Judicial Magistrate, Mathura for its compliance and necessary action within two weeks from today.