ORDER :

1. At the outset, counsel for the appellant further submits that appellant no.1 Bheraram has expired and only appellants no.2 & 3 are surviving.

2. This criminal appeal has been preferred under Section 374 Cr.P.C. praying for the following reliefs:-

“It is, therefore, humbly prayed that in the facts and circumstances of the case the appeal may kindly be allowed and the accused appellants be ordered to be acquitted and discharged from the charges levelled against them and the conviction and sentence mentioned inter alia in the order dated 30th June, 1997 passed by the learned Additional Sessions Judge, Nagaur be set aside.”

3. The matter pertains to an incident that occurred in the year 1995 and the present appeal has been pending since 1997.

4. Vide impugned judgment dated 30.06.1997 the learned Additional Sessions Judge, Nagaur in Sessions Case No.32/95 acquitted accused-appellant Chhataram for offence under Section 325/34 IPC and accused-appellants Manaram & Bheraram for the offence under Sections 326/34 & 324/34 IPC but convicted Chhataram for offence under Sections 307/34, 326, 324/34 & 323/34 IPC and accused Manaram & Bheraram for offence under Sections 307/34, 325/34 & 323/34 IPC.

Counsel for the appellant submits that the incident is of 19.09.1994 when complainant alleges that while he was grazing herd in Agore of pond, at that time, the accused persons armed with ‘lathies’ and ‘kassies’ attacked him. Counsel for the appellant has taken this court to the statement of Dr. OD Mathur (PW-6), in which, he has explained injuries and opined that injuries no.3, 4, 5 & 6 were of grievous nature. Counsel for the appellant submits that none of the injuries are on any vital part, thus, the intention to cause death is not available. Counsel for the appellant also submits that, though, the injuries are grievous but there was no knowledge or intention to cause death. Counsel for the appellant has also taken this Court to the evidence of eye-witness/injured/complainant i.e. PW-4 Haru Ram, in which, discrepancy regarding the number of injuries and the matter of attack is their. Attribution of weapon is doubtful.

Mr. G.R. Punia, Sr. Advocate, further submits that there is no other witness to the incident.

Counsel for the appellant submits that it is a fit case where offence under Sections 307 and 326 IPC are not made out and the conviction needs to be climbed down, however, he prays for benefit to be given under Section 4 of the probation of Offenders Act.

5. Learned counsel for the accused-appellant(s) submits that the accused-appellant(s) do not have any criminal antecedents to their credit.

6. Learned counsel for the accused-appellant(s) further submits that the sentence awarded to accused-appellant(s) was suspended by this Hon’ble Court vide the order dated 02.07.1997, passed in S.B. Criminal Misc. Appln. (SOS) No.253/97 and, thus, they are on bail.

7. Learned counsel for the accused-appellant(s) however, makes a limited prayer that the accused-appellant(s) may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’).

“4. Power of court to release certain offenders 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: