Order

Khem Chand Sharma, J.— The appellants have preferred this crimi-nal appeal under Section 374 Cr.P.C. against the judgment and order dated 30-10-1984 passed by the Additional Sessions Judge No. 2, Ajmer, thereby convicting and sentencing them for offence under Sections 326 and 324 IPC in the following manner :

Under Section Each to undergo rigorous

326 IPC imprisonment for 3 years

with a fine of Rs. 3,000/-.

in default thereof, each to

further undergo six months

rigorous imprisonment.

Under Section Each to undergo rigorous

324 IPC imprisonment for 1 year with

a fine of Rs. 1000/- in

default thereof each to

further undergo one month’s

rigorous imprisonment.

The substantive sentences were ordered to run concurrently. The trial court ordered that the period spent by the appellants in judicial/police custody shall be adjusted as per the provisions of Section 428 Cr.P.C. It was further ordered that the sen-tences awarded in default of payment of fine shall be undergone severally.

2. As per the prosecution case, on 8-6-1983 PW 7 Mahendra Singh informed the police at Police Station Alwar Gate. Ajmer of the incident alleged to have taken place in the morning. The information was in regard to the beating with his father and brother. This information was recorded as Ex. P. 3 in the Rojnam-cha. Having received the information. Police alongwith the informant, first rushed to the place of incident, but by that time the injured were taken to the hospital. Thereafter, PW. 11 Ramesh Chand, Assistant Sub-Inspector reached the Hospital and recorded the parcha Bayan, Ex. P. 6 of injured Bhagwan Singh.

3. PW 6 injured Bhagwan Singh stated in his Parcha Bayan that on the day of incident, at about 6.45 AM his father Uda Ram PW 10 had gone for urinating and he followed him. While they were entering into the house, the accused appellants duly armed with sword and Pharsa belaboured them. He stated that PW 8 Sohan and PW 9 intervened and saved them.

4. After usual investigation, police submitted challan against the appellants for offence under Sections 307/326, 324 323 IPC and Sec. 4/25 of the Arms Act in the court of Additional Chief Judicial Magistrate No. 2, Ajmer.

5. The accused appellants were tried for offence under Section 307 IPC and Section 4/25 of the Arms Act. At the conclusion of trial, the learned trial court found the accused appellants guilty of having committed offence under Sections 326 and 324 IPC and accordingly convicted and sentenced them in the manner stated above.

6. I have heard Mr. Shailendra Balwada, learned counsel for the accused appellant and Mr. Madhav learned Public Prosecutor and gone through the impugned judgment and the evidence on record. Mr. Balwada has challenged the finding arrived at by the trial court on merits and has contended that the impugned judgment is legally not sustainable as it being contrary to the evidence on record. In the alternative it is contended that if this appeal does not succeed on merits, in that event, lenient view may be taken in the matter of sentence.

7. On the other hand, learned Public Prosecutor has supported the impugned judgment and has conten-ded that the finding of guilt recor- ded by the trial court is based on proper appreciation of evidence and therefore, it calls for no inter-ference.

8. I have considered the rival submissions. Having gone through the impugned judgment and on scrutinizing the prosecution evidence on record, it appears that as per the categorical version of injured Bhag-wan Singh PW 6, accused appellant Govind inflicted injury by pharsa on his right and left shoulder and appellant Brijlal inflicted injury by sword on his hand, back and head, Similarly PW 10 Uda Ram injured has categorically deposed that accused Govind inflicted Pharsa blow. PW 12 Dr. B.L. Bhatia, Medical jurist examined the injuries of both Bhagwan Singh and Uda Ram. He found 5 injuries on lumber area of back side, back of left forearm, back of