The court ruled that the trial court erred in denying probation without special reasons, emphasizing the appellants' clean record and the nature of the injuries.

JUDGMENT :

By Court: Heard Mr. M.B. Lal, learned counsel for the appellants and Mr. Jitendra Pandey, learned A.P.P. appearing for the State.

2. Above named appellants have preferred this criminal appeal challenging their conviction and sentence dated 02.09.2006 passed by learned Additional Sessions Judge, F.T.C., 7th, Dhanbad in Sessions Trial No. 173 of 2002,whereby and whereunder, the appellants have been held guilty for the offence under Sections 323 and 325 of the I.P.C. and sentenced to undergo R.I. for six months for the offence under Section 323 of the I.P.C. and to undergo R.I. for two years and to pay fine of Rs. 1,000/-for the offence under Section 325 of the I.P.C. with default stipulation. All the sentences were directed to run concurrently.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal in a narrow compass is that on 23.02.2001 at about 6:00 A.M., in the morning the informant Rama Shankar Bhagat was returning to his home after attending nature’s call and when he reached near his house where accused Sheo Shankar Bhagat was cutting cauliflower in his field. On seeing the informant, the accused Sheo Shankar Bhagat abused the informant. At that time, other above-named accused being armed with lathi and danda also came there. Thereafter, all the accused persons hit the informant by means of lathi and danda, resulting into injuries on both knees, elbow and back of the informant. The accused persons committed the occurrence due to previous enmity and land dispute. At the time of occurrence, the son of the informant namely, Birendra Bhagat came to save the informant and thereupon all the accused persons also assaulted Birendra Bhagat, resulting into injuries on his body.

4. On the basis of above information, FIR was registered against the accused for the offence under Sections 341, 323, 325, 506, 307 and 34 of the I.P.C.

5. After completion of investigation, the I.O. of the case has submitted charge sheet under Sections 341, 323, 325, 307, 506 and 34 of the I.P.C. against the appellants. After submission of charge sheet, the cognizance was taken and the case was committed to the court of Sessions, where the charges were framed under Sections 307, 323, 341, 506 and 325 of the I.P.C., to which the appellants pleaded not guilty and claimed to be tried.

6. In order to substantiate the charges leveled against all accused persons, altogether six witnesses were examined by the prosecution.

7. Apart from oral evidence of ocular witnesses, following documentary evidences were also adduced.

Exhibit-1 : Fardbeyan of Informant.

Exhibit-2 : Injury Report of Informant.

Exhibit-3 : Signature of Informant on Fardbeyan.

Exhibit-4 : Endorsement on Fardbeyan.

Exhibit-5 : Formal F.I.R.

8. The case of defence is denial from occurrence and false implication due to previous enmity and land dispute. However, following documentary evidence has been adduced by the defence.

Exhibit-A : C.C. of judgment of learned Additional Sessions Judge, F.T.C., 5th, Dhanbad dated 25.11.2004 passed in S.T. Case No. 202/2001.

Exhibit-B : C.C. of order dated 21.02.2002 of Sri Dharam Deo Prasad, Executive Magistrate, Dhanbad passed in M.P. Case Nos. 613/2001 and 614/2001.

9. The learned trial court, after evaluating the evidence available on record, held the appellants guilty for the offence under Sections 323 and 325 of the I.P.C. and sentenced as stated above.

10. Being aggrieved with the impugned judgment of conviction and order of sentence dated 02.09.2006, this Criminal Appeal has been preferred on behalf of the appellants.

11. Learned counsel for the appellants has submitted that the occurrence took place in a sudden manner. There was exchange of assault from both sides and there was counter case also lodged by the present appellants against the informant party of this case. Admittedly, the appellants were held guilty for the offence under Sections 323 and 325 of the I.P.C. and it was brought on record that appellants have no criminal background they have neve