Appellant No.1 Rajendra Singh has been convicted under section 307, IPC and appellant No.2 Guddu @ Virendra Singh has been convicted under section 307 read with section 34, IPC and both have been sentenced to seven years' R.I. and fine of Rs. 5,000/- each.

As per prosecution story, incident took place on 10.6.1997 at about 5.30 p.m. There was dispute between the parties about ownership of ghoora (place where dung is collected) and on the date of incident Brijmohan son of complainant Matadeen PW 1 and Ravindra PW 7 were loading the dung from that place. Father of appellant No.1 Bhawani Singh was also claiming the ownership of that place. When Omprakash was loading the dung, appellant No. 1 Rajendra Singh armed with sword (talvar) and appellant No.2 Guddu armed with lathi arrived at the place of incident and Rajendra inflicted three sword blows to Omprakash. Guddu also tried to give lathi blow but Bhavani Singh stopped it. Thereafter, Omprakash fell unconscious. Harcharan PW 6 and Gopi PW 5 came on spot, but all the three accused ran away from spot. Bhavani Singh was also present on spot and he was also tried but he died during trial. FIR was lodged by PW 1 Matadeen. Matter was investigated, chargesheet was filed. The learned trial Court convicted the appellants against which appellants have preferred this appeal.

At the outset, the submission of learned counsel for the appellants is that looking to the medical evidence and the injuries received by injured Omprakash, case does not come under section 307, IPC. At the best, appellants can only be convicted under section 326, IPC.

I have perused the evidence of PW4 Dr. Ashok Singh who was posted at PHC, Indergarh, and had recorded the MLC. As per MLC report (Ex.P-4), injured Omprakash received three incised wounds on the left scapular region, right scapular region and left side back on lower thoracic region. Thereafter, he was referred to J.A. Hospital, Gwalior, where he was examined and treated by PW 3 Dr. S.K. Shri vastava. As per evidence of Dr. S.K. Shrivastava, injured received three incised wounds and he remained in hospital from 10.6.1997 to 20.6.1997. He found fracture in the 10th and 11th ribs and also found that the injuries were grievous in nature, but in the cross-examination both have admitted that injuries were not dangerous to life. PW 4 Dr. Ashok Singh has also admitted in the cross-examination that all the three injuries were not sufficient to cause death in the ordinary course of nature and they were not dangerous to life. It is also the prosecution case as stated by Matadeen PW 1 who is the eye witness and had lodged the FIR, that appellant No.2 Guddu was present on spot armed with lathi and he gave lathi blow to injured Omprakash. PW 2 Omprakash has also stated that Guddu gave lathi blow but from the medical evidence, it is clear that the injured has not received any injury by lathi. Thus, from the ocular as well as medical evidence it is clear that appellants have not caused any injury to the injured which was dangerous to life, but from the evidence it is clear that appellant No.1 caused grievous hurt by sword which is a dangerous weapon. Therefore, the case comes under section 326, IPC instead of section 307, IPC. It has also come in the evidence that incident took place at the spur of moment and the appellants have not caused any injury with intention or with knowledge that it may be dangerous to life.

At the outset it is submitted that appellant No.1 Rajendra Singh is in jail from the date of judgment dated 26.8.2002 and was also in custody for six months during trial. Appellant No.2 Guddu @ Virendra Singh is on bail, but he was also in custody for more than five months after judgment. Learned counsel for the appellants submitted that appellants are not the persons of criminal background. They are peaceful citizens and incident took place at the spur of moment. He further submitted that as appellant No. 1 has already suffered more than t