JUDGMENT: AFTAB ALAM,J.

1. Heard counsel for the parties

2. Leave granted

3. Appellant no.1 is the informant of the case and appellant no.2 is his father, the injured victim of the offence. They filed this appeal against the judgment and order dated 18 August 2005 passed by the Gwalior bench of the Madhya Pradesh High Court in criminal appeal no.283 of 1998. Before the High Court there were three appellants (respondents before this Court) who were convicted by the trial court under section 307 of Penal Code and sentenced to rigorous imprisonment for five years and fine of rupees 1000=00 each; in case of default in payment of fine they were directed to undergo simple imprisonment for three months. The High Court, by the judgment coming under appeal, acquitted Dault Singh (Appellant no.2 before the High Court) and altered the conviction of Kishan Singh and Devilal(appellants 1 and 3 before the High Court and respondent 1&3 before this Court) from section 307 to section 326 of the Penal Code and reduced their custodial sentence to the respective periods that they had already undergone. In lieu of imprisonment, the High Court punished them with fine of rupees 3500=00 each with the direction that in default of payment of fine they would undergo simple imprisonment for six months. The High Court further directed that on realisation of the amounts of fine, Rs.5000=00 should be paid to the injured victim Omkar Lal. At the time of the High Court judgment Kishan Singh (respondent no.1) had served about four months in jail and Devi Lal (respondent no. 3) about three months.

4. On hearing counsel for the parties we are satisfied that in so far as the acquittal of Daulat singh (respondent no.2) is concerned the judgment of the High Court calls for no interference. The limited question for consideration is whether the High Court was justified in altering the conviction of the other two respondents from section 307 to section 326 of the Penal code and reducing their sentence to fines only.

5. We propose to state here only such facts that are germane to the limited issue.

6. According to the prosecution case, as made out in the first information report lodged by appellant no.1, on 14 July 1996 at about quarter past ten in the morning while the informant and his father were going through the jungle they were ambushed by the accused persons, including the three respondents in this appeal. Among the accused the three respondents were armed with Pharsas and the other four were carrying lathis. All the seven accused assaulted the informants father Omkar Lal with Pharsas and lathis on his legs and hands. While beating him the accused also declared their intent not to leave him alive.

7. All the seven accused were put on trial on charges under Sections 307, 341, 147, 148 read with Section 149 of the Penal Code. The Trial court by judgment and order dated 27 September 1998 passed in Sessions Trial 4 no. 327/1996 acquitted the four accused who were alleged to be armed with lathis but convicted the three respondents under section 307 of the Penal Code and passed sentence on them as stated above. In appeal the High Court modified the conviction and sentence as noted above.

8. Learned counsel for the appellants submitted that having regard to the medical evidence and the nature of injuries the Trial Court had rightly convicted the respondents under section 307 and the High Court erred in altering the conviction under section 326 of the Code. Learned counsel placed strong reliance on the evidence of PW 3, Dr. S. O. Bhola who had found five incised injuries on the hands and legs of Omkar lal and PW 7 Dr. Sitaram Singh Raghuvanshi who on the basis of X-ray examination of the different injuries of Omkar lal deposed before the Trial Court that there were fractures of left radius, right ulna, right fibula and left fibula bones. Counsel further submitted that Dr. Bhola PW 3 stated before the Trial Court that in case no medical care was provided the injured pers