1. - The instant cr. appeal has been filed by the appellants Jagji S/o Deva and Jiteng S/o Khumaji both resident of village Palawada, District Banswara under Section 374(2) Cr.P.C. against the judgment dated 12.7.1995 passed by the Special Judge, (SC/ST) Court, Banswara in Sessions Case No.9/1993 whereby the learned trial court convicted the accused appellants for offence under Section 3(i)(v) of the SC/ST (Prevention of Atrocities) Act Cases and under Section 325 of the IPC and passed the following sentence:

Under Section 3(i)(v) of the SC/ST (Prevention of Atrocities) Act Cases : 6 months RI and a fine of Rs. 500/- and in default of payment of fine to further undergo one months RI.

Under Section 325 IPC : 6 months RI and a fine of Rs. 300/- and in default of payment of fine to further undergo two months RI.

2. At the threshold the learned counsel for the appellant submits that the appellants are not challenging the conviction but submit that incident took place in the month of Dec., 1992 and upon oral complaint dated 23.12.1992 filed by the complainant Heera Aadiwasi at Police Station Kalijara in which an allegation was leveled by the complainant that on the last night at about 9.30 p.m. while he was cultivating his agricultural field both the accused appellants came there and they made quarrel and inflicted Lathi blow upon his left shoulder and wrist. The learned trial court after due trial convicted the accused appellants for offence aforesaid but not granted the benefit of probation for the reason that although the benefit of probation can be granted for offence under Section 323 IPC but there is no provision for granting probation for the offence under Section 3(i)(v) of the SC/ST (Prevention of Atrocities) Act Cases. Therefore, in the interest of justice after 23 years it is not in the interest of justice to send the appellants behind the bars because they belongs to Aadiwasi area and they are very poor person.

3. The learned counsel for the appellants submits that although there is no evidence on record to prove the case against the accused appellant but the incident took place in the year 1992, therefore, after 23 years it is not proper to send the appellant to the jail, therefore, the sentence awarded to the appellants may be reduced to the term already undergone because the appellants are ready to pay the compensation in accordance with Section 357 of Cr.P.C.

4. The learned Public Prosecutor vehemently opposed the prayer and submits that for the offence committed by them the prosecution has proved its case beyond doubt, therefore, appellants are liable to serve the sentence passed against them.

5. After hearing the learned counsel for the parties I have perused the statement of PW-7 Dr. Ashok Gupta, in which following statement was made by him:

"cloky yksd vfHk;kstd c;ku fd;k fd fnukad 24-12-1992 dks eSa fpfdRlk vf/kdkjh] jsQjy vLirky] ckxhnkSjk ds in ij dk;Zjr FkkA ml fnu ghjk firk dqfj;k vkfnoklh mez 41 o"kZ fuoklh cklyk dh izkFkZuk ij mldh pksVsa ns[kh Fkh] tks fuEu Fkh%&

(1) cqt 3 ls0eh0 x 1 ls0eh0 ck;h Hkqtk ds chp ds fgLls ij (2) cqt fo/k Losfyax 4 ls0eh0 x 2 ls0eh0 ck;sa gkFk ds fupys fgLls esa (3) cqt 3 ls0eh0 x 2 ls0eh0 ck;ha tka?k ds chp ds fgLls ij
pksV uEcj 2 ds ,Dljs djk;s tkus ds fy;s ,e0t0 vLirky] ckalokM+k dks jsQj fd;k FkkA pksV uEcj 1 o 3 lk/kkj.k izd`fr dh gksdj dqUnvkys ls ykbZ gqbZ FkhA pksV uEcj 2 Hkh HkksVs gfFk;kj ls vkbZ gqbZ FkhA pksVksa dh vof/k ijh{k.k le; ls 24 ?k.Vs ds Hkhrj dh Fkh] tkap fjiksVZ nh Fkh tks izn'kZ ih&7 gSa] ftl ij , ls ch gLrk{kj esjs o lh ls Mh gLrk{kj ghjk ds gSaA ftjg }kjk odhy okLrs eqyfteku&;g ckr lgh gS fd dksbZ O;fDr mij ls fxj tk;s rks izn'kZ ih&7 dh rhuksa pksVsa tk ldrh gSA iqu% ijh{k.k&'kwU;"

6. It is obvious from above evidence that out of 3 injuries one injury was grievous in nature, therefore, on the ground that incident took place in the month of Dec., 1992 and out of the three injuries one was grievous injury for which benefit of probation can be grant