N.C. SHARMA, J.—Devi Lal appellant has been convicted by the Sessions Judge, Sawai Madhopur (Camp Gangapur City) for offences under secs. 326 and 323 of the Indian Penal Code and has been sentenced to rigorous imprisonment for two years and for one month respectively and also to a fine amounting to Rs.500/- for the offence under Sec. 326, IPC and, he has come in appeal before this Court against the said convictions and sentences.

2. Sundar (PW/1) is uncle of Shrikishan (PW/3). The fields of Sundar and Shri Kishan are adjoining the. fields of Naula and his son Devi Lal. On April,6, 1980 Shri Kishan (PW/3) Lodged a First Information Report (Ex.P/3) at 9.30 p.m. at the Police Station, Karauli to the effect that they were erecting a. dol around their fields. At the time, apart from Sundar, and Shrikishan, Bharosi, Ram Charan, Parma and other, labourers were present and were erecting the dol. At about 2 p.m. Devi Lal, appellant armed with favda came to the fields of Sundar and Shri Kishan, hurled abuses and took Sundar by dragging him to the well and started beating him. Shri Kishan went there to rescue his uncle Sundar, but the appellant and his father Naula started telling that he will be killed that day and an injury was inflicted on his head from the sharp edge side of the favda. Blood oozed out from the head of Shri Kishan and he fell down. Devi Lal and Naula continued beating Shri Kishan even he was lying. Thereafter he left the place thinking that Shri Kishan has died. Bharosi, Ram Charan and Parma came there, lifted Shri Kishan and got him admitted in the hospital for treatment saying that his life should be saved by taking him to the hospital. On the basis of this First Information Report, the Station House Officer, Police Station, Karauli registered a case under sections 324. 447 and 323 read with Sec. 34, IPC and started investigation. He went on the spot and prepared site-plan and the memo of site-inspection (Ex.P/11). The Blood stained clothes which Shri Kishan was wearing were seized vide memo Ex.P/18. Naula and Devi Lal were arrested on April 11, 1980 and on heir information being given under section 27 of the Evidence Act, two axes by which the injuries are alleged to have been inflicted were recovered. After necessary investigation, the police filed a charge-sheet against Naula and Devi Lal in the Court of the Addl. Munsif & Judicial Magistrate, Karauli under sections 307/34,447 and 323, IPC. The case was committed to the Court of Sessions, Sawai Madhopur. The Sessions Judge charged Devi Lal for the offences under sections 307, 447 and 323, IPC. He charged Naula for the offences under section 307 read with sec. 34 and secs. 447 and 323, IPC. After trial, the Sessions Judge held the charge against Naula with respect to any of the offences, not established and acquitted Naula. However, he found Devi Lal appellant guilty for the Offences under sections 326 and 323, IPC. and sentenced him as aforesaid, for both these offences.

3. The learned counsel for the appellant urged that the prosecution has . failed to establish that the appellant inflicted any injury on the head of Shri Kishan or on any part of his body. He urged that there are contradictions in the statements of the eye- witnesses with regard to the person who inflicted the injuries on Shri Kishan. Lastly, the learned counsel for the appellant has contended that the Sessions Judge should have considered the provisions of Sec. 360 of the Code of Criminal Procedure and should have released that appellant on probation of good conduct instead of sentencing him to rigorous imprisonment for two years and one month in respect of the offences under secs. 326 and 323 IPC.

4. The First Information Report (Ex.P/2) was lodged on April 6, 1980 at 9.30 p.m. in which the incident was alleged to have taken place at 2.p.m, The distance between the place of the incident and the Police Station is 7 miles. In the First Information Report the presence of both Naula and his son Devi L

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