1988 PLP 1748 (MLD)

The revision petition is directed against the order dated 28‑1‑1977 of Sessions Judge, Gujrat whereby learned Sessions Judge dismissed the appeal by the petitioner against the order dated 21‑12‑1976 of Magistrate section 30 Mandb Bahauddin, whereof learned Magistrate had convicted the petitioner under section 307, P.P.C. and sentenced him to undergo R.I. for four years. Learned Sessions Judge, while dismissing the appeal, reduced the sentence of the petitioner from 4 years R.I. to two years R.I.

2. The occurrence in this case had taken place on 19‑4‑1971. The F.I.R. was lodged on the same day. The petitioner was arrested on the following day‑ Taisa, the weapon of offence was recovered at his instance. Bahu complainant who had lodged the first information report and had appeared as P.W. 2, was found to have suffered two incised wounds, one on the outer side of left upper arm, about 6‑1/2" away from the tip. of the shoulder and the other on the back of right shoulder. The injury on the arm was declared simple. The injury on the shoulder which was kept under observation, was also later declared simple.

3. At the trial, prosecution had examined, in all, nine witnesses. The r,: prosecution story narrated by Bahu complainant that the petitioner had launched attack on him with Taisa and had caused him injuries on the arm and shoulder, was supported by Abdul P.W.3. The other two eye‑witnesses, namely Hayat P.W.4 and Yara P.W.9 had resiled. They were declared hostile and were cross -examined. The evidence of recovery of Taisa was also produced. The complainant had also given the motive for the occurrence. In that, he had stated that a brother of Mukhtar accused (the petitioner) was murdered in which he was challaned but was later acquitted.

4. The petitioner had denied the prosecution case and had also produced evidence in defence.

5. Learned counsel for the petitioner has not pressed the petition on merits, in so far as it pertains to actual happening of the occurrence. He has, however, contended that the seats and nature of injuries found on the complainant do not attract the provisions of section 307, P.P.C. According to him, at the best, offence under section 324, P.P.C. is attracted to the facts of the case. He has prayed for alteration of conviction of the petitioner from section 307, P P.C. to section 324, P.P.C. and has urged that he be dealt with leniently by reducing his sentence to that of already undergone in view of long period that has already elapsed since after the occurrence.

6. As mentioned earlier, one of the injuries on the complainant was on the arm while the other was on the back of the shoulder. The arm and shoulder are vital parts of the body. Both the injuries were declared simple. In the circumstances, there appears to be force in the argument of learned counsel for the petitioner that provisions of section 307, P.P.C. are not attracted to the fact the case. The conviction of the petitioner is, therefore, altered from section 302, P.P.C. to section 324, P.P.C. The case was registered on 19‑4‑1971. The petitioner was arrested on the following day. The trial had ended on 21‑12‑1976. The appeal filed by the petitioner was disposed of on 28‑41977. The revision petition filed by him is pending since then. The petitioner had not only undergone stress and stain of the trial for about six years but has also remained in continuous agony thereafter also. He has already undergone R.I. for 2 months and 20 days and had remained in jail during the trial as well. In the circumstances, I am of the view that the sentence already undergone and a fine of Rs.500 (Rs.five hundred only) will meet the ends of justice. Order accordingly. In case of failure to pay the one, the petitioner shall undergo R.I. for three months. He is allowed thirty days' time to deposit the fine and in case he fails to deposit the same within the stipulated time, he shall be caused to be arrested and lodged in jail for undergoing the sentence awarded in lieu of non‑payment of fine. M.A.K./M‑973/L Order accordingly.