JUDGMENT 1. - This is an appeal by the accused-appellants against the judgment of the., learned Sessions Judge, Jhunjhunu dated December 9, 1974, whereby the accused-appellant, Bhagwana, was convicted under Sections 147,304, Part II read with Section 149, and 323, IPC and sentenced to one year's rigorous imprisonment, seven years rigorous imprisonment and two months rigorous imprisonment respectively. 2. Accused Nanda was convicted under Sections 147, 304, Part II and 323 read with Section 149, IPC and was sentenced to one year's rigorous imprisonment, seven years rigorous imprisonment and two months rigorous imprisonment respectively. Accused Chandra was convicted under Sections 147, 304 Part II read with Sections 149 and 323/149, IPC and sentenced to one year's rigorous imprisonment, seven years rigorous imprisonment and two months rigorous imprisonment respectively. 3. Accused Chhotu was convicted under Sections 147, 304 Part II read with Sections 149. and 323/149, IPC and sentenced to one year's rigorous imprisonment, seven years rigorous imprisonment and 2 months rigorous imprisonment respectively. Accused Surja was convicted under Sections 149, 304 Part 11 read with Sections 149 and 323, IPC and sentenced to one year's rigorous imprisonment, seven years rigorous imprisonment and 2 months rigorous imprisonment respectively. All the sentences were ordered to run concurrently. The accused persons were also entitled to the set off for the period of detention under Section 428, Cr. P. C. 1973. 4. The facts of the case, in brief, are that on October 9, 1973, Doonga Ram Mali residence of Chanwara lodged a written report to the Superintendent of Police, Jhunjhunu with the allegations that Bhagwana, Nanda and others have got a litigation with Rati Ram for agricultural lands, and as such they were seeking an opportunity to kill Rati Ram, On the morning of October 9, 1973, Bhagwana, Nanda, Chandra, Chhotu and Surja, Mali by caste, residents of Chanwara armed with lathis entered the Guwari of Rati Ram and gave a severe beating to Rati Ram, his son Kedar and Gyankori, daughter-in-law of Rati Ram. It was alleged that the condition of Kedar and Rati Ram was serious, A case was accordingly registered under Sections 147, 452 and 323, IPC. Injured Rati Ram, Kedar and Gyankori were brought by Kalu and Doonga to the Government Dispensary, Gudha Gorji. and the Medical Officer found the condition of Rati Ram serious. He, therefore, sent a report Ex. It was alleged that the condition of Kedar and Rati Ram was serious, A case was accordingly registered under Sections 147, 452 and 323, IPC. Injured Rati Ram, Kedar and Gyankori were brought by Kalu and Doonga to the Government Dispensary, Gudha Gorji. and the Medical Officer found the condition of Rati Ram serious. He, therefore, sent a report Ex. P/5 to the Police Station, Gudha for recording dying declaration. In the meantime, the injured persons were sent to R.D.K. Hospital, Jhunjhunu. Rati Ram was taken therein a jeep Rati Ram died before his dying declaration could be recorded. After completing the investigation, all the six accused persons were charge-sheeted for the offences under Sections 302, 452,147 and 323, IPC. The accused persons were committed to the Court of Session after necessary committal proceedings. 5. The learned counsel appearing on behalf of the accused-appellants argued the case on the question of sentence only. His main contention is that the accused and the complainant party are members for the same family. Bhagwana, aged 72 years, married twice. From his first wife, he had three sons, namely Nanda, Chandra and Raju. From the second wife Rati Rarn was born. Kedar and Hanuman are the sons of Rati Ram. Chhotu, the accused-appellant, is also related to the accused persons. Surja is a neighbour Gyankori is the wife of Hanuman. It was also contended that Rati Ram was alleged to have brought the grass from the field of Bhagwana, though it was said by Rati Ram that he had brought the grass from his own field. Bhagwana and his sons from the first wife wanted to teach a lesson to Rati Ram so that he may not commit such a mischief in future. It is alleged that these persons beat Rati Ram by lathis. It was further contended that it was never the intention of any of the accused person to have caused the death of Rati Ram, and what the accused party wanted was to chastise Rati Ram for having taken grass from the fields of Bhagwana. The learned counsel for the accused-appellants strenuously argued that the quantum of sentence awarded to the accused-appellants is too much excessive and harsh. It was also contended that an opportunity should be given to this dispute-torn family to rehabilitate themselves. The learned counsel for the accused-appellants strenuously argued that the quantum of sentence awarded to the accused-appellants is too much excessive and harsh. It was also contended that an opportunity should be given to this dispute-torn family to rehabilitate themselves. It was also contended that most of the prosecution evidence is of omnibus type and it is difficult .to fix up the responsibility of the fatal blow on any specific individual. It was, therefore, contended that it was only by a matter of incident that one of the lathi stroke proved fatal, resulting in serious injury to Rati Ram to which injury Rati Ram ultimately succumbed. It was also contended that Bhagwana is of 72 years age and that a father would naturally never like to kill his own son. It was argued that the other brothers also never intended to kill Rati Ram, and his death is mere a matter of chance, and not a matter of design, or active manipulation or intended brutal beating. 6. The learned counsel appearing on behalf of the complainant party and the learned Public Prosecutor did not seriously challenge the reasonable reduction in the quantum of sentence, and left the question of reduction in sentence to the discretion of the Court. 7. The respective contentions of the learned counsel for the parties have been considered, and the record of the case perused. 8. PW/1, Dr. S. C. Malakar conducted the post mortem on the dead body of Rati Ram at 8.00 a. m. on October 10, 1973, and found the following injuries:- 1. Defused swelling covering whole of the surface of the right side of the face. 2. Defused swelling covering half portion of right side of the head. 3. Lacerated wound 1/2" x 1/4" x 1/4" over the inner surface of the pinna of right ear. 4. Ecchymosis 5" x 1" over anterior abdominal wall. 5. Defused swelling covering of the surface of the middle 3rd portion of left leg. 6. Transverse ecchymosis 3" x 11/2" over the upper ⅓rd portion of back. 7. Transverse ecchymosis 4" x 1" over the left scapular region. 8. Longitudinal ecchymosis 4'x 21/2" over left hip. 9. Complete fracture of left humerous at the junction of upper ⅓rd with lower ⅓rd. On opening the body he found the following internal injuries 1. 6. Transverse ecchymosis 3" x 11/2" over the upper ⅓rd portion of back. 7. Transverse ecchymosis 4" x 1" over the left scapular region. 8. Longitudinal ecchymosis 4'x 21/2" over left hip. 9. Complete fracture of left humerous at the junction of upper ⅓rd with lower ⅓rd. On opening the body he found the following internal injuries 1. Extra creanial haemorrhage covering the whole of the surface of right parietal region at the scale. 2. Fissured fracture 5" in length over the right parietal region 6" behind from the bridge of the nose, it was transverse in direction. 3. Extensive sub-dural haemorrhage was present on the right side of the head. 4. Intra-creanial haemorrhage on the brain. 9. The Medical Officer was of the opinion that the internal injuries found were the result of external injuries corresponding to them. In his opinion, the cause of death was shock and haemorrhage as a result of fracture of head and arm. The learned Sessions Judge in para No. 27 of his judgment observed as under:- "27. All the four prosecution witnesses have stated that Rati Ram was beaten by all the accused persons which will be relied now for Bhagwana, Surja, Nanda, Chandra and Chhotu. Out of these Nanda is said to have inflicted a lathi blow on the head of Rati Ram which caused a fissured fracture and extra cerenial haemorrhage qnd other accused gave beating which resulted into fracture of one arm of Rati Ram and other simple injuries. Gyankori has stated that right hand of Rati Ram was fractured, but the medical officer has found the fracture of left humerous. The statement of Gyankori can be considered wrong in presence of medical evidence as the Doctor has opened the body and had seen the fracture. The mistake may be on account of non-observance or short memory as the injury was not caused to her but was caused to Rati Ram. In that case such discrepancy may occur in the statement of illeterate villager. The fact remains that left humerous was broken in the incident, besides six ecchymosis and one locerated wound was more inflicted to Rati Ram by these accused persons. They did not finish him and left from there. It has been narrated by all the four witnesses that Dunga and Kalu remained standing out side the main gate of Guwari. The fact remains that left humerous was broken in the incident, besides six ecchymosis and one locerated wound was more inflicted to Rati Ram by these accused persons. They did not finish him and left from there. It has been narrated by all the four witnesses that Dunga and Kalu remained standing out side the main gate of Guwari. This shows that the assailants were not afraid of these persons and still inflicted the injuries and thereafter left and went away. It has not been pointed out by positive evidence as to why the accused persons left the place without finishing Rati Ram. Therefore, it will be inferred that all the five accused persons came there in order to give a severe beating to Rati Ram as he cut the grass from the field of the accused. This shows that they came there in order to give a severe beating to Rati Ram so that he may not commit again such mischief or theft or may not harass the accused persons in litigation and that is why his death was not caused by them on the spot, otherwise there was no impediment to them in inflicting more injuries in order to finish Rati Ram. From this it will be inferred that accused inflicted injuries to Rati Ram with lathis knowingly that injuries inflicted by them may cause death. Thus the actions of accused fell under Section 304 part 2 IPC. Hence Nanda is held guilty under Section 304 Part 2 IPC and other accused Bhagwana, Chandra, Chhotu and Surja are found guilty under Section 304 Part 2 read with Section 149, IPC." 10. This shows that the assailants were not afraid of these persons, inflicted the injuries and thereafter left the place and went away. It has not been pointed out by positive evidence as to way the accused persons left the place without finishing Rati Ram. Therefore, it will be inferred that all the five accused persons intended to give a severe beating to Rati Ram as he cut the grass from the field of the accused. This shows that they came there in order to give a severe beating to Rati Ram so that he may not commit again such mischief or theft or may not harass the accused persons in litigation. 11. This shows that they came there in order to give a severe beating to Rati Ram so that he may not commit again such mischief or theft or may not harass the accused persons in litigation. 11. It was further observed in para No. 29 that, In that case if accused persons went in the Guwari surrounded by their own fields on the plea that Rati Ram had cut and removed their grass, it will be taken that they had gone to remonstrate Rati Ram. 12. Taking an over-all view of the entire prosecution evidence, on record, it is borne out that the accused appellants had gone to remonstrate Rati Ram so that he may not cut the grass again and that he may not repeat the mischief. Nobody intended that Rati Ram should be killed. Even, otherwise, it is pertinent to note that Bhagwana is the father of Rati Ram and Nanda. Chandra and Raju are his brothers. Chhotu is his nephew and Surja is a close neighbour. Even taking the prosecution case at its best, it cannot be said that the accused persons had any intention Of causing such injuries as would imminently result in the death of Rati Ram. All the five accused-appellants were arrested on October 9, 1973. They have already been in judicial custody for a period exceeding three years and one year. The prosecution evidence is of omnibus type, but the fatal blow on the head of Rati Rath has been ascribed to Nanda. The learned counsel for the accused appellants could not assail successfully this finding of the learned Sessions Judge that the fatal blow on the head of Rati Ram was inflicted by Nanda which caused this injury with its corresponding injuries and others are simple injuries. It was also contended that Nanda is extremely poor and has two small children and deserve a special consideration on the ground of poverty. 13. For the reasons stated above, I think, the ends of justice would be met if the convictions of all the accused-appellants are sustained. As regards the sentence in the cases of Bhagwana, Chandra, Chhotu and Surja, the ends of justice would be met by reducing their sentences to the imprisonment they have already suffered. The sentence of Nanda would be reduced to 41/2 years rigorous imprisonment. instead seven years. As regards the sentence in the cases of Bhagwana, Chandra, Chhotu and Surja, the ends of justice would be met by reducing their sentences to the imprisonment they have already suffered. The sentence of Nanda would be reduced to 41/2 years rigorous imprisonment. instead seven years. The appeal filed by the accused-appellants is, therefore, allowed as indicated above. The accused-appellants Bhagwana, Chhotu, Surja and Chandra shall be released forthwith from judicial custody, if they are not required/in any other case. *******