JUDGMENT
1. This appeal is directed against the judgment and order dated 26-2-1981 of Shri G.D. Chaturvedi, the then Sessions Judge, Hamirpur, in Sessions Trial No. 160 of 1980 convicting and sentencing all the appellants to imprisonment for life under Section 302 read with Section 149 I.P.C., and to 2 years rigorous imprisonment under Section 307/149 I.P.C. Appellants Bhaiya Lal, Raghuraj and Shyam Sunder have been sentenced further rigorous imprisonment for 3 years each under Section 148 I.P.C. while other appellants have been sentenced to 2 years rigorous imprisonment each under Section 147 I.P.C.
2. Undisputedly appellants, Bhaiya Lal, Beta Lal Prahlad, Raghuraj are real brothers being sons of Mehdi Kachhi. Appellant No. 5 Ram Manohar is son of appellant Raghuraj while Shyam Sundar is nephew of Raghuraj appellant.
3. Prosecution case in brief is that in the evening of 17-2-1980 one buffalo of Raghuraj and one bullock of Beta Lal accused trespassed into the field of Jhandu P.W. 2 and started grazing wheat crop sown by Jhandu. Smt. Ram Dulari P.W. 3 drove out the aforesaid cattle from her field.
4. On the same day at about 5.30 P.M. in the evening, when Jhandu P.W. 2 and his brother Baij Nath (deceased of this case) were sitting in front of their house, Beta Lal accused passed through the lane. Seeing him, Baij Nath told Beta Lal that his bullock and she buffalo of Raghuraj had caused damage to his wheat crop and asked Beta Lal to keep his cattle tied. On this Beta Lal uttered that his cattle would graze the fields in the same manner as they used to do. On this Baij Nath told Beta Lal that he would take the cattle to cattle pound. Hot words were exchanged between Baij Nath and Beta Lal and while they were still engaged in altercation, rest of the accused persons arrived at the scene of occurrence. Bhaiya Lal was armed with a Barchi (a pointed sharp edged weapon), Raghuraj and Shyam Sunder were having Pharsa while other three possessed lathi. Raghuraj asked his companions to assault Baij Nath whereupon he and Shyam Sunder gave Pharsa blows to Baij Nath which caused injuries to him. When Jhandu intervened, Bhaiya Lal gave a Barchhi blow in his right thigh while Ram Manohar, Prahlad and Beta Lal assaulted Baij Nath and Jhandu with lathi. Smt. Ram Dulari mother of Baij Nath came forward to the rescue of her son but she was also assaulted with lathi by the accused persons. Baij Nath sustained one lacerated wound on left side of head, one contusion on left side back; one penetrating wound on left thigh and 4 abrasions. He succumbed to his injuries on the spot.
5. Jhandu P.W. 2 who himself was assaulted and sustained injuries went to police station alongwith his mother Smt. Ram Dulari and lodged an oral report at Police Station Sumerpur, which was recorded there at 5.10 A.M. in the morning of 28-2-1980. Case was registered and investigation ensued.
6. The Investigating Officer, S.I. Desh Bahadur Singh P.W. 9 recorded the statements of Jhandu, Smt. Ram Dulari, Basdeo and others. He also visited the scene of occurrence and held inquest proceedings and sent the dead body of Baij Nath to mortuary for post mortem examination. He also prepared site plan Ext. Ka 11 and collected samples of blood stained and ordinary earth through memo Ext. Ka. 10. The rest of the investigation was completed by S.I. Asha Ram Tripathi P.W. 8 who on completion of investigation submitted charge-sheet against all the nominated accused persons. The accused persons were duly tried before the Sessions Court. Before the trial Court prosecution produced 9 witnesses, of whom P.W. 2 Jhandu, P.W. 3 Ram Dulari, P. W.5 Debia and P.W. 6 Basdeo were witnesses of fact.
7. P.W. 1 Dr. G.P. Ojha conducted medical examination of injured Jhandu and Smt. Ram Dulari on 18-2-1980 at 9.45 a.m. and 10.00 a.m. respectively. On the person of Jhandu following injuries were found:
(1) One stab wound, 1cm in circumference on the front of right, 26.5 cm above the right knee. Margins of wound were inverted, blood oozing was found. (2) One abrasion 2 cm x 0.5 cm, on the back of left hand, 8 cm down to the back of left wrist.
8. Injury No. 1 was kept under observation while injury No.2 was reported to be simple. In the opinion of the doctor both injuries were half day old. Injury No. 1 was caused by penetrating object and injury No. 2 by hard and blunt object. In his deposition before the Court Dr. Ojha further opined that injury No. 1 of injured Jhandu could be the result of a Barchhi blow while injury No. 2 could be caused by lathi in the evening of 17-2-1980 at about 5.30 P.M. Injury report of Jhandu is Ext. Ka. 1.
9. Dr. Ojha also examined Smt. Ram Dulari and found following injuries on her person:
(1) One Bruise 3 cm x 1.5 cm on the back of right wrist, colour was blue.
(2) One bruise 4 cm x 2 cm, on the right shoulder, colour was blue.
10. Injuries were simple and as per the opinion of the doctor expressed in his statement before the trial court both the injuries were caused by blunt and hard object like lathi in the evening of 17-2-1980 at about 5.30 P.M.
11. P.W. 4 Dr. P.N. Singh had conducted autopsy on the dead body of Baij Nath deceased on 19-2-1980 at 3.15 P.M. Following ante-mortem injuries were found:
1) Laceration, 5 cm x 0.5 cm x bone deep on left side of head, 10 cm. above the left ear, sagitally placed, fracture of left parietal bone underneath present.
2) Abrasion 1cm x 0.5 cm on left external ear, near the back & top.
3) Abrasion 1cm x 0.5 cm on middle of left forearm inner part, transversely placed.
4) Penetrating wound 1.5 cm x 1cm x 9.5 cm on upper and outer part, of left thigh, going inward clots seen underneath and femoral vessels punctured.
5) Abrasion 2 cm x 1cm on right side back, middle part 6 cm outer to midline, transversely placed.
6) Contusion 1cm x 0.5 cm on left side back, upper part, 1.5 cm from midline, obliquely placed.
7) Abrasion 1.5 cm x 0.5 cm on right scapular region, obliquely placed.
12. Internal examination of the deceased revealed that left parietal bone was fractured and there was Intra Costal and frontal haemorrhage on left side. In the opinion of the Doctor, death was due to head injury described as ante-mortem injury No. 1. Post Mortem Report is Ext. Ka. 4. Dr. P.N. Singh in his statement before the trial court further opined that injury No. 1 was caused by lathi while injury No. 4 could be the result of a pointed weapon like Ballam.
13. P.W. 7 is Head constable Rajendra Veer Singh who prepared chick report and registered the case in the General Diary. P.W. 9 Desh Bahadur Singh is the first Investigating Officer while P.W. 8 Asha Ram Tripathi is the second Investigating Officer.
14. Bhaiya Lal accused pleaded right of self defence. According to him he was passing through the way when at about 2.30 in the night he was assaulted by some dacoits who used to stay at the house of Baij Nath and Jhandu and he defended himself with Barchhi. Rest of the accused persons denied their participation. Dr. S.N. Dixit D.W. 1 was examined as a defence witness who stated that on 26-2-1980 he medically examined accused Bhaiya Lal in jail at 6.00 P.M. and found the following injuries:–
(1) Traumatic swelling 4 cm x 2 cm on right wrist joint injury U.O. Ad. X-ray.
(2) Abrasion 1cm x 1cm on right shoulder top.
C/o Pain on left forearm upper part & left calf muscle, but no mark of injury present. In the opinion of the Doctor injuries were simple and were about one week old.
15. On appraisal of evidence learned trial Judge has found that the prosecution has succeeded in establishing its case beyond reasonable doubt against all the accused persons. Accordingly the appellants have been convicted and sentenced as stated above.
16. We have heard Shri G.S. Chaturvedi, Senior advocate for the appellants and Shri R.S. Sengar, A.G.A. for the State. We have also perused the record.
17. Factom of death of Baij Nath on account of head injury has neither been assailed nor disputed before us by the learned counsel for the appellants. This fact is also otherwise fully established from the evidence on record. Dr. P.N. Singh P.W. 4 who had conducted the post mortem examination has very categorically stated that cause of death of deceased Baij Nath was head injury which he has mentioned as injury No. 1 in the post mortem report Ext. Ka. 4. It also could not be disputed or assailed by the learned counsel for the appellants that P.W. 2 Jhandu and P.W. 3 Ram Dulari had also sustained injuries on their person in the same course of incident in which Baij Nath deceased was assaulted. Their injuries were examined by P.W. 1 Dr. G.P. Ojha in the morning of 18-2-1980 who in his statement before the trial court has stated that injuries of these injured persons could be sustained by them in the evening of 17-2-1980 at about 5.30 P.M. By no stretch of imagination it could be said that injuries of the injured persons were self inflicted or self suffered. Both Jhandu and Ram Dulari were produced before the trial court as P.W.2 and P.W. 3 and they have very specifically stated that when they tried to intervene in order to save Baij Nath from further beating, they were also assaulted by the assailants. The presence of P.W. 2 Jhandu and P.W. 3 Ram Dulari at the scene of occurrence therefore cannot be doubted. Accused persons were well known to these witnesses from before the incident and as the incident had occurred during day time and the assailants had come in their close contact there could be no difficulty for these witnesses in identifying the accused persons. Deceased Baij Nath was the real brother of injured P.W. 2 Jhandu and son of injured P.W. 3 Ram Dulari. These witnesses therefore would be the last persons to falsely nominate innocent persons leaving out the real assailants. We have gone through their testimony minutely and find no inherent weakness therein. Their evidence also substantially tallies with the medical evidence excepting that participation of two accused namely Raghuraj and Shyam Sunder who are alleged to be armed with Pharsa is not established beyond reasonable doubt. In the F. I.R. which was promptly lodged at the police station on the same morning at 5.10 a.m. first informant Jhandu P.W. 2 came with a specific case that accused Raghuraj and Shyam Sunder who were holding Pharsa had assaulted Baij Nath. However, during the post mortem examination of the deceased Baij Nath only one penetrating injury on the left thigh was found by the medical officer and according to his opinion the said injury was caused by a piercing instrument like ‘Barchi’ which according to the prosecution case was possessed by accused Bhaiya Lal. In his statement before the Court P.W. 2 Jhandu stuck to the same stand that Baij Nath was assaulted by both these accused persons with Pharsa. However, in his cross examination he stated that Raghuraj appellant had simply exhorted his associates and did nothing more. From the statement of Dr. G.P. Ojha P.W. 1 who had medically examined P.W. 2 Jhandu and P.W. 3 Ram Dulari, it is further evident that none of these injured had sustained any Pharsa injury. Both the injuries of Smt. Ram Dulari P.W. 3 were of blunt object while Jhandu P.W. 2 had sustained one blunt object injury and other a penetrating injury on right thigh. Faced with the difficulty that there was no ‘Pharsa’ injury either on the person of deceased or on any injured, the prosecution developed the case at a later stage through the statement of P.W. 5 Debia that on the exhortation of Raghuraj, Shyam Sunder accused struck a Pharsa blow on Baij Nath. Raghuraj accused also wielded Pharsa blow on Baijnath but it struck the deceased from its blunt side. The witness was confronted with his statement recorded during investigation wherein he had not stated that only blunt side of Pharsa had struck the deceased. This improvement in our view was deliberately made for the first time in the statement of P.W. 5 Debia in order to bring evidence of the prosecution witnesses in consonance with the medical evidence so far as use of Pharsa by accused Raghuraj and Shyam Sunder was concerned. Raghuraj has also been given role of exhortation. It is well known that the allegation of exhortation is a weak kind of allegation and there is a tendency in villagers to add innocent persons assigning them role of exhortation. In the F.I. R. the prosecution case was that Raghuraj accused incited his companions to assault Baij Nath. According to the wit-1 nesses this appellant was also armed with Pharsa. It does not sound to reason that if he had exhorted his companions to make assault upon Baij Nath, he himself would not make use of the weapon which he carried with him. Assault by Pharsa in the incident is completely ruled out as no injury of that kind of weapon was found either on the deceased or any injured. P.W. 3 in his cross examination clearly admitted that Raghuraj appellant did nothing at the scene of occurrence excepting to instigate his companions. According to P.W. 5 Debia, on arrival at the scene of occurrence Raghuraj asked Shyam Sunder to assault Baij Nath whereupon only Shyam Sunder struck a Pharsa blow on Baij Nath. This was contrary to what had been stated by P.W. 2 and P.W. 3. We, therefore, as an abundant caution find it safe to extend the benefit of doubt to appellants Raghuraj and Shyam Sunder as in our opinion their participation in the commission of murder of Baij Nath is not established beyond reasonable doubt. They therefore deserve to be acquitted.
18. However, so far as other appellants are concerned, their participation is proved beyond doubt. Bhaiya Lal appellant is said to be armed with Barchhi. One Barchhi injury was found on the deceased and another on the person of injured Jhandu. Appellants Beta Lal, Prahlad and Ram Manohar are said to be armed with lathi and they are alleged to have assaulted deceased as well as injured witnesses. On the body of deceased one blunt object injury was found on his head, while 2 blunt object injuries were found on injured Smt. Ram Dulari and one such injury was found on the person of injured Jhandu. We have already found above that presence of P.W. 2 Jhandu and P.W. 3 Ram Dulari at the scene of occurrence cannot be doubted as they themselves sustained injuries at the hands of assailants when they tried to intervene in order to save Baij Nath who was their own blood. Their evidence further gets corroboration from evidence of P.W. 5 Debia and P.W. 6 Basdeo as well as from the medical evidence. The First Information Report was lodged without undue delay wherein all these appellants were named with weapons specified. Thus the participation of appellants Bhaiya Lal, Beta Lal, Prahlad and Ram Manohar has been established beyond any reasonable doubt.
19. It was submitted by the learned counsel for the appellants that accused Bhaiya Lal had also sustained injuries, but no explanation whatsoever with regard to these injuries has been given by the prosecution witnesses in their evidence. It was, therefore, urged that failure of the prosecution to offer any explanation regarding the injuries found on’the person of accused Bhaiya Lal throws a doubt in the correctness of the prosecution case on the ground that the prosecution has suppressed the genesis of the origin of occurrence.
20. In the case of Onkar Nath Singh v. State of U.P. AIR 1974 SC 1550 (1556) it was held by the Apex Court that the question as to what is the effect of non explanation of injuries of accused is a question of fact and not of law. In another decision in Bhaba Nanda Sharma v. State of Assam, AIR 1977 SC 2252, it was held that before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victim on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case become reasonably doubtful for its failure to explain the injuries on the accused.
21. The same question again came up for consideration before a three Judge Bench of the Supreme Court recently in the case of Ram Sunder Yadav v. State of Bihar 1998 (37) All Cri C 519: (AIR 1998 SC 3117) where the statement of law made in the case of Vijayee v. State of U.P. 1990 (27) All Cri C 483: (1990 All LJ 415) has been reaffirmed and accepted the principle that if the evidence is clear, cogent and credit worthy then the non-explanation of the injuries on the accused ipso facto cannot be a basis to discard the entire prosecution case.
22. From the above decisions it is clear that before non-explanation of the injuries on the person of accused by the prosecution witnesses may be used against the prosecution, the court has to be satisfied of the existence of two conditions namely:
(i) That the injuries on the person of the accused were of serious nature ; and
(ii) That such injuries had been caused at the time of occurrence in question.
23. Now we proceed to examine the defence plea of accused Bhaiya Lal which he pleaded in his statement recorded under Section 313, Cr.P.C. on the touchstone of the principles noted above. Accused Bhaiya Lal in his statement has stated when he was passing through the way in front of the house of Jhandu P.W. 2 at about 2.30 in the night, he was attacked by some persons in darkness as a result of which he sustained injuries. He defended himself with Barchhi. He further stated that dacoits used to stay at the house of Jhandu P.W. 2. From the defence side Dr. S.N. Dikshit was examined as D.W. 1. He stated that on 26-2-1980 at 6.00 P.M. he medically examined accused Bhaiya Lal in jail and found a traumatic swelling on his right wrist joint and one abrasion of 1cm x 1cm on right shoulder top. The injuries were reported to be one week old. In cross -examination Dr. Dikshit admitted that the injuries of Bhaiya Lal accused were superficial and could be self inflicted or could be caused due to a fall. It has also come in evidence of the prosecution witnesses that the deceased and the witnesses were all empty handed and they did not notice any injury on the person of accused Bhaiya Lal. There is nothing on record to indicate that injuries found on the person of Bhaiya Lal at the time of his admission in jail on 26-2-1980 were sustained by him during the course of incident in question. The learned trial Judge has discarded the defence plea of Bhaiya Lal as absurd inasmuch as he was all alone, yet he could inflict a large number of injuries on the deceased and two injured persons yet suffering himself only two very superficial injuries. We have also closely examined the evidence on record and we are of the view that the defence plea of accused Bhaiya Lal is wholly untrue. According to Bhaiya Lal accused when he was assaulted in darkness, he defended himself with Barchhi. He did not say that any other person was present on his side. How then blunt object injuries were sustained by the deceased and two injured persons remained a mystery. The fact that the injuries found on the deceased and injured persons were of at least two kinds of weapons one piercing instrument and the other hard and blunt object totally belies the stand of accused Bhaiya Lal that he alone was present and used only Barchhi to defend himself. In that event no blunt object injury could have been found on the person of deceased and two injured witnesses. In any view of the matter and in the facts and circumstances of the case the prosecution was not obliged to explain the injuries of accused, firstly for the reason that they were not proved to have been received by the accused during the course of incident and secondly that they were very superficial in nature. In our considered opinion the prosecution case is not all affected on account of its failure to explain the injuries of accused Bhaiya Lal who was examined in jail as late as on 18-2-1980. We, therefore, find no force in the statement of the learned counsel for the appellants that since prosecution has suppressed the injuries of accused Bhaiya lal, the correctness of the prosecution case should be doubted.
24. The next question that arises for consideration is as to for what offences each of these appellants can be held guilty?
25. It was vehemently argued by the appellants counsel Sri G.S. Chaturvedi, Senior Advocate that the circumstances appearing in the case do not establish with certainty that common intention of these appellants was to commit murder of deceased Baij Nath and therefore they cannot be held guilty for the offence of murder with the aid of Section 34 of the Indian Penal Code.
26. It is well settled principle that common intention should be anterior in time to the commission of crime showing a pre-arranged plan or prior concert. It is true that prior concert may develop on the spot during the commission of an offence but before holding a person vicariously liable for the acts of others with the aid of Section 34, I.P.C., the Court must be fully satisfied that from the evidence on record it can safely be inferred that the offence was committed in furtherance of common intention. Courts should be able to record a definite conclusion that the said person had a prior concert with one or more persons for committing the murder. As in most cases direct evidence is seldom available, the common intention is to be inferred from the circumstances appearing in the case.
27. In the case of Ram Tahal v. State of U.P. (1972) 1 SCC 136: (AIR 1972 SC 254) it was held that totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be connected. The pre-arranged plan may develop on the spot during the commission of offence buj: the crucial circumstance is that the said “plan must precede the act constituting the: offence. If that be so before a Court convicts under Section 302/34 a person, it should come to a definite conclusion that the said, person had a prior concert with one or more persons named or unnamed for committing the murder.
28. In a recent decision in Surendra Chauhan v. State of M.P. (2000) 3 JT (SC) 507 (508): (AIR 2000 SC 1436) the Apex Court has laid down that the common intention can develop during the course of an occurrence but to apply Section 34, apart from the fact that there should be two or more persons, two factors must be established namely:
1. Common intention; and
2. Participation of the accused in the commission of an offence.
29. If a common intention is proved, but no overt act is attributed to the individual accused, Section 34 can still be attracted as essentially it involves vicarious liability, but if participation of accused in the crime is proved and the common intention is absent, Section 34 cannot be invoked.
30. Keeping these principles in mind, we have examined the evidence on record and the attending circumstances appearing in the case. From the evidence of prosecution witnesses it is evident that there was no prior enmity between the deceased and accused persons. The incident in question occurred on a very trivial issue which had occurred in the evening of the day of incident, when she-buffaloes and bullock of Raghuraj and Beta Lal had entered into wheat field of the deceased which were driven out by Smt. Ram Dulari. On this issue an altercation started between Baij Nath and accused Beta Lal. That altercation continued for quite some time and it was only during exchange of hot words between Beta Lal accused and Baij Nath deceased that other 3 appellants namely Bhaiya Lal, Prahlad and Ram Manohar arrived at the scene of occurrence. Before the assault was made upon the deceased there had been a good deal of altercation between Beta Lal and Baij Nath deceased. Three of the accused persons were armed with lathi while Bhaiya Lal was having Barchhi but it was not inflicted on any vital part of the body of deceased. Injuries of injured persons were found to be simple. All other injuries of the deceased excepting injury No. 1 were not responsible for his death. It was only injury No. 1a hard blunt object injury, which actually proved fatal. In the evidence of witnesses it has not been clarified as to who out of the three accused holding lathi was the architect of that injury. In the absence of clear evidence, the fatal head injury could not be attributed specifically to any of the appellants. As already stated above, the deceased as well as injured persons were assaulted during the course of altercation in the heat of passion. In the circumstances, therefore, it is not possible to say with reasonable certainty that common intention of all these accused persons was to commit murder of Baij Nath. It has come in evidence that only appellant Bhaiya Lal was armed with Barchhi. Deceased sustained one Barchhi injury on his thigh and injured Jhandu sustained only one Barchhi injury on his right thigh. Injury of Jhandu was kept under observation, but the prosecution produced no further material for showing that the said injury was grievous in nature. In the absence of such evidence it has to be held that the Barchhi injury sustained by Jhandu was simple in nature. As far as Barchhi injury of deceased Baij Nath is concerned, it was on non-vital part of the body i.e. right thigh, but it had punctured femoral vessels. The injury thus could be termed as ‘grievous’. Since Bhaiya Lal was responsible for causing the punctured injuries he alone has to be held guilty under Section 326 and under Section 324, I.P.C. for causing Barchhi injury upon the deceased Baij Nath and injured Jhandu respectively.
31. As far as the other three appellants Beta Lal, Prahlad and Ram Manohar are concerned they are said to have assaulted the deceased and injured persons with lathi. Deceased sustained only one blunt object injury over his head which ultimately proved fatal. We have already pointed out above that the prosecution evidence is not clear as to who out of these 3 accused persons was the author of the head injury. We have also held above that it has not been established beyond doubt that common intention of the accused persons was to commit the murder of deceased. Accordingly in the circumstances appearing in the case, we hold these three appellants guilty under Section 325/34, IPC as well as Under Section 326/34 and 324/34, I.P.C. Accused Bhaiya Lal is also to be convicted under Section 325 read with Section 34, I.P.C. as in the circumstances appearing in the case it can safely be inferred that common intention of accused persons was at least to cause grievous hurt to the deceased, if not his. death.
32. It has now to be find out as to what would be just and appropriate sentences which should be imposed on all these four appellants who have been found guilty by us.
33. It is well known that sentencing an accused is a sensitive exercise because for most of the offences only upper limit of term of sentence is provided under the Penal Code, leaving it wide open to the Courts to select and choose an appropriate term of sentence. For selecting an appropriate and just sentence the Courts have to weigh not only aggravating circumstances but also mitigating and extenuating circumstances. With this object, the law makers introduced a salutary provision in Section 235(2), Cr.P.C. which inter-alia requires the Courts to give to the accused an opportunity of hearing. The hearing as contemplated in this provision is not confined merely to hearing of oral submission. The Courts have to give to the accused an opportunity of placing on record material /evidence having a bearing on the question of sentence. In the present case, we find that the learned Sessions Judge has not made a due compliance of this mandatory provision. It is evident from the perusal of judgment of the trial Court that after recording conviction of the appellants, the trial Judge on the same day merely heard oral submission of the counsel for the accused on the question of sentence. Neither the judgment nor the record indicates that the accused were given an opportunity of placing on record material and evidence relating to the various factors bearing on the question of sentence as contemplated under Section 235(2), Cr.P.C. By affording this opportunity the accused gets a chance to place before the Court his antecedents, social and economic back ground, mitigating and extenuating circumstances etc. which helps the Court in reaching to a right conclusion in the matter of passing an appropriate sentence. Denial of that opportunity in the present case has certainly prejudiced the appellants.
34. In the instant case, the incident had occurred about 22 years ago on 17-2-1980. At that time accused Bhaiya Lal was aged about 24 years, Beta Lal 25 years, Prahlad 29 years and Ram Manohar 19 years. They have already served out sentences of more than 2 months each. We have found above that there was no previous animosity between the parties and incident occurred on a very trivial issue, and the deceased and injured persons were assaulted during the course of exchange of hot words in a heat of passion. The appellant Bhaiya Lal who was armed with Barchhi did not inflict the same on any vital part of the body of deceased or of injured Jhandu. Only injury No. 1 which was on head of the deceased proved fatal. It was a blunt object injury. Even as per the prosecution case three appellants were armed with laJii and it has not been clarified who out of these three appellants had caused this fatal injury. With the passage of long period of 22 years, the socio, economic conditions of the appellants must have gone a radical change and passion of bqttfsides must have subsided by now. There is also nothing on record to show that during this long interval of 22 years the appellants had indulged themselves in any criminal activity. Taking into consideration all these factors, we feel that ends of justice will be sufficiently met it Bhaiya Lal is sentenced to two years rigorous imprisonment under Section 326, I.P.C. one year rigorous imprisonment under Section 324, I.P.C. and to a period already undergone plus a fine of Rs. 10,000/ – under Section 325 read with Section 34, I.P.C. In case of default in payment of fine, he shall go further rigorous imprisonment for one year. Appellants Beta Lal, Prahlad and Ram Manohar are sentenced to a period already undergone under Section 326/34 and 324/34 I.P.C. they are further sentenced to a period already .undergone plus a fine of Rupees 10,000/- each under Section 325/34, I.P.C. and in case of default in payment of fine each of these appellants shall undergo rigorous imprisonment for one year.
35. Appellant Bhaiya Lal is on bail, he shall be taken into custody forthwith for serving out the sentences as modified by this Court.
36. Conviction and sentence of appellants Raghuraj and Shyam Sunder as recorded by the trial Court are set aside, they are acquitted of offences charged for. Both of them are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.
37. The appellants are given two months time to deposit the fine in the trial Court failing which’ appropriate steps shall be taken against them by the trial Court. It is further directed that sentences awarded on the appellant Bhaiya Lal shall run concurrently. It is further directed that out of the fine deposited or realized from the appellants, half shall be paid to the legal heirs of deceased Baij Nath and rest shall stand deposited with the State.
Appeal is accordingly disposed of.