Point of Law : Incident is not such as to direct accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour.

JUDGMENT :

Heard Sri Ajay Sengar, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned A.G.A. for the State.

2. This criminal appeal has been instituted against the judgement and order dated 15.09.1995 passed by Additional Sessions Judge, Lalitpur in Sessions Trial No. 64 of 1993, State of U.P. Vs. Ram Kishan and another, arising out of Case Crime No. 105 of 1909 u/s 308, 323 and 427 I.P.C., P.S.- Mahrauni, District- Lalitpur.

3. By the impugned order, the trial court has convicted the appellants, Ram Kishan and Gore Lal u/s 323 r/w 34 and 427 r/w 34 I.P.C. and sentenced them to one year rigorous imprisonment in both the sections. The trial court also directed that both the sentences shall run concurrently. The State has not filed any appeal against acquittal of the accused from the charge under Section 308 I.P.C. Thus, the judgment and order relating to acquittal of accused under Section 308 I.P.C. has become final.

4. Shorn of unnecessary details, the prosecution case in brief if that on 26.06.1990 at 4 pm near Chhayan Kumhairi Tiraha Road, Police Station Mahraun, the appellants-accused Ram Kishan and Gore Lal stopped the Bus No. U.T.P. 4113 and compelled the driver, conductor and passengers to alight from the bus then the appellants-accused in furtherance of common intention with such knowledge caused injury to Jamuna Prasad passenger of Bus No. U.T.P. 4113 that if his death took place, they would be guilty of culpable homicide not amounting to murder. The appellants-accused also voluntarily caused simple injury to Prem Narayan, the driver of the aforesaid Bus. They also pelted stones on the bus resulting in breaking of its 10 to 12 nos. of window panes causing damage of about Rs. 15000/-.

5. The first information report was lodged on the basis of written report (Ext.Ka.1) of bus driver, Prem Narayan on 26.06.1990 at 18.05 hours as Case Crime No. 105 of 1990 u/s 308, 323, 427 I.P.C. was registered in Police Station-Mahrauni, District-Lalitpur. The chik F.I.R. (Ext.Ka.5) and carbon copy of the G.D. (Ext.Ka.6) is on record.

6. On 26.06.1990 at 6.30 p.m., Dr. Pratap Singh, Medical Officer, Primary Health Centre, Mahrauni, examined Jamuna Prasad and prepared injury report (Ext.Ka.7). Following injuries were found on the person of injured Jamuna Prasad :-

(i) Lacerated wound 5 cm x 1 cm bone deep left side of head obliquely 11 cm above left ear. Fresh blood present.

(ii) Contused swelling 7 cm x 4 cm in front and outside of left forearm 9 cm above wrist joint

(iii) Contusion 15 cm x 2.5 cm left side of back 23 cm below the tip of shoulder.

Injury nos. (ii) and (iii) were simple in nature. They were fresh and caused by blunt object. Injury no. (i) was kept under observation and x-ray was advised.

7. On 26.06.1990 at 6.50 p.m., Dr. Pratap Singh, Medical Officer, Primary Health Centre, Mahrauni, examined Prem Narayan and prepared injury report (Ext.Ka.8). Following injuries were found on the person of injured Prem Narayan :-

(i) Contusion with swelling 15 cm x 4 cm on left side of left shoulder.

(ii) Contusion 8 cm x 2.5 cm on left side of the back 4 cm below injury no.(i).

(iii) Contusion 8 cm x 2.5 cm on right side of back.

All the injuries were simple in nature and caused by hard blunt object.

The formal proof of injury report was admitted by learned counsel for the applicant on which (Exts.Ka.7 and Ka.8) was inscribed.

8. The case was investigated by Investigating Officer PW5 A.S.I. Shiv Shanker Tiwari. He inspected the place of occurrence and on the pointing out of informant Prem Narayan and prepared its site plan (Ext.Ka.3). He arrested the accused persons on 03.07.1990 and interrogated them. He also recorded the statements of the witnesses and after completion of investigation, submitted charge-sheet (Ext.Ka.4) in the court.

9. On 13.08.1993, charge u/s 308 r/w 34, 323 r/w 34 and 427 r/w 34 I.P.C. was framed against accused-appellants, Ram Kishan and Gore Lal. They denied the charges and claimed trial.

10. The prosecution