JUDGMENT 1. 1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Gangapur City dated 14th February, 1974 whereby the accused-appellants were convicted and sentenced as under for committing the murder of Surjan aged five years son of Mst. Rampyari and causing injuries to Gokul, Mangiya, Ramswaroop, Birbal and Kalyan. 1. Girdhari & Ramcharan : U/s 302 I.P.C. Sentenced to imprisonment for life. 2. Ghecsya, Oangasahai, Kishan, Raghubir, Girdhari, Ramswaroop, Ramsahai, Madho, Ramcharan. U/s 147 I.P.C. Each of them sentenced to rigorous imprisonment for one Year. 3. Gheesya, Ramsahai, Girdhari, Kishan and Ramswaroop. U/s 323 I.P.C. Each of them sentenced to rigorous impri- sonment for six months and to pay a fine of Rs. 100/- in default each of them to undergo one month's rigorous imprisonment. 4. Ramcharan, Gangasahai, Raghubir and Madho U/s 323/149 I.P.C. Each of them sentenced to rigorous imprisonment for six mouths and to pay a fine of Rs. 100/- in default each of them to undergo further one month's rigorous imprisonment. 2. The facts giving rise to this appeal are that on 16.12.1972 Gokul injured after returning from the well to his house, noticed that accused-appellants Ramsaha/and Ramcharan were pilfering 'Bajra' after breaking open his house. He resisted their action and asked them to refrain from nefarious activity but the accused refused to oblige him and took away two bundles of 'Bajra'. Later on the accused persons after forming an unlawful assembly with the common object to teach lesson to Gokul, came to the house of Gokul after being armed with lathis. They belaboured him and when his wife Mst. Rampyari ran to rescue Gokul, accused Girdhari asked other accused persons to kill her on which Ramcharan and Girdhari inflicted iathi blows which fell on the head of Surjan, a child who was in the lap of Mst. Rampyari. As a result of those injuries, the boy met instantaneous death. Mangya, Kalyan and Ramswaroop arrived at the scene of incident. They tried to rescue the injured but they were also not spared. Written report Ex. P. 1 of the incident was made to the Head Constable, Police Outpost, Gudhachandraji. The incharge of the Outpost made an endorsement o.i the report and sent it to the police station, Garmora on which first information report Ex. P. 5 was chalked out. They tried to rescue the injured but they were also not spared. Written report Ex. P. 1 of the incident was made to the Head Constable, Police Outpost, Gudhachandraji. The incharge of the Outpost made an endorsement o.i the report and sent it to the police station, Garmora on which first information report Ex. P. 5 was chalked out. A case against all the nine accused persons was registered vide F. I. R. Ex. P. 9. Autopsy on the dead body of Surjan was performed by P. W. 15 Dr. M. C. Verma. The post-mortem report is Ex. P. 49. Dr. Verma noticed 4 injuries on the person of the deceased. In the opinion of the doctor injuries sustained by Surjan on his head led to the fracture of the head bone which resulted in his death. P. W.l Gokul, P. W. 8 Mangiya, P.W. 5 Kalyan and P. W. 11 Ramswaroop were clinically examined for their injuries. Their injury reports are from Ex. P. 50 to Ex. P 54. The police after usual investigation submitted challan against 9 accused persons in the court of Additional Munsiff Magistrate, Gangapur City. The learned Magistrate alter taking proceedings under section 207-A Cr.P.C. 1978, committed all the accused to take their trial to the court of Additional Sessions Judge, Gangapur City. 3. The accused pleaded not guilty to the charge. The prosecution examined 15 witnesses out of whom five persons are injured eye-witnesses. Besides the above mentioned witnesses, P.W. 2 Mst. Rampyari and P. W. 10 Ananda were also examined as eye-witnesses of the occurrence. P. W. 15 Dr. M. C. Verma was produced to prove the post-mortem report and the injury reports, P.W. 14 Roopsingh is the investigating officer of this case. All the accused denied their complicity in the Crime and examined two witnesses in their defence.The learned Additional Sessions Judge found the defence evidence unreliable Placing reliance on the statements of the eye-witnesses corroborated by the medical evidence and the first information report Ex. P. 1, the learned Judge held that the prosecution was successful in bringing home the guilt to the accused-appellants. He convicted and sentenced them as mentioned above. 4. P. 1, the learned Judge held that the prosecution was successful in bringing home the guilt to the accused-appellants. He convicted and sentenced them as mentioned above. 4. We are not required to examine in detail the evidence produced on behalf of the prosecution and all the circumstances brought forth on the record of the case, as the learned counsel appearing on behalf of the accused-appellants, keeping in view the preponderance of evidence on record, has rightly conceded that there are no grounds to challenge the fact that all the accused-appellants participated in the assault in which Surjan sustained injuries and the other 5 persons named above also sustained injuries. He further agrees that the injuries sustained by Surjan were sufficient in tire ordinary course of nature to cause his death. However, we have also looked into the relevant portion of the prosecution, by cogent and reliable evidence, has brought him the guilt to the accused appellants.Only two points have been seriously passed before us. (1) rue learned Additional Sessions Judge committed an error of law in convicting the accused Ramcharan and Girdhari under section 302 I.P.C. simplicitor. The learned counsel argues that by no stretch of' imagination it can be said that the accused has any grudge against Surjan deceased. They had no intention to cause bis death or cause any injury to him which was likely to cause his death. It was not expected that Mst. Rampyari will rush to save Gokul and the blow would fall accidentally on the head of Surjan. We find considerable merit in this argument. There is no dispute between the parties that the quarrel which led to the unfortunate death of Surjan was the out come of a trifling matter. There is no pre-existing enmity between Gokul. Surjan and Mst. Rampyari on one side and the accused persons on the other side. The common object of the unlawful assembly formed by the accused was to chastise Gokul, only simple injuries were caused to him by the accused. It indicates that the accused party had not intended either to kill Gokul or to cause any grievous hurt to him. it does not appear from the prosecution evidence that Gokul escaped getting serious injuries due to any thing intervening accidentally between the appellants and the victim. Mst. Rampyari came suddenly when Gokul was being beaten. It indicates that the accused party had not intended either to kill Gokul or to cause any grievous hurt to him. it does not appear from the prosecution evidence that Gokul escaped getting serious injuries due to any thing intervening accidentally between the appellants and the victim. Mst. Rampyari came suddenly when Gokul was being beaten. It was not expected that be will rush towards Gokul with the child in her lap. It is not clear from the prosecution evidence that appellants Ramcharan and Girdhari aimed lathi blows on the head of Surjan. It is an admitted case of the prosecution that they intended to cause injuries to Mst. Rampyari and the blows fell accidentally on the head of Surjan. Thus the falling of blows accidentally on the head of Surjan cannot be Slid to be sufficient to hold the accused-appellants Girdhari and Ramcharan liable under section 302 I.P.C. Keeping in view the injuries sustained by Gokul nil of which were found to be simple, it can be safely said that the accused did not intend to cause fatal injuries to Surjan. But when they inflicted injuries with a lathi, they could have expected that the blows may fall on the vital part of Surjan's mother or Surjan which may lead to the death of other of the two persons simultaneously inflicting injuries on the head of a child can be convicted with the aid of section 34 I.P.C. 5. For the above reasons, we are of the opinion that the conviction of the two accused-appellants, namely Girdhari and Ramcharan under section 302 I.P.C. cannot be maintained. But they can safely be convicted under section 304 part 1/34 of the Indian Penal Code.In similar circumstances their Lordships of the Supreme Court in Hardev Singh and another v. The State of Punjab, A.I.R. 1975 Supreme Court 879 accepted the appeal filed by the accused of that case and set aside his conviction and sentence under section 302 I.P.C. and converted it to section 304 part I, of the Indian Penal Code. The decision of this case squarely covers the facts of the case in hand. The conviction and sentences of accused Girdhari under section 147 and 323 and of Ramcharan under section 147 and 323/149 I.P.C. are maintained.Now remains the cases of remaining accused-appellants Gheesya, Ganga Sahai, Kishan, Raghubir, Ramswaroop, Ramsahai and Madho. The decision of this case squarely covers the facts of the case in hand. The conviction and sentences of accused Girdhari under section 147 and 323 and of Ramcharan under section 147 and 323/149 I.P.C. are maintained.Now remains the cases of remaining accused-appellants Gheesya, Ganga Sahai, Kishan, Raghubir, Ramswaroop, Ramsahai and Madho. Learned counsel for these appellants has urged that the occurrence is of the year 1972. A period of nearly six years has elapsed in between the commission of the offence and hearing of the appeal. The accused-appellants have remained in jail for a considerable time. Accused have turned a new leaf in life. They have engaged themselves in useful profession of cultivation. Sending them to jail after so long a time, is likely to upset the entire family and will go very harsh to their innocent wives and children.As already narrated above, criminal proceedings against the appellants are going on since 16.12.1972. To send the appellants back to jail to serve out the remaining sentences after lapse of such period, appears to be a bit harsh in the circumstances of the case. It is unlikely to have any reformatory effect on them ; harassment of a criminal trial for nearly six years and the expenses which they must have incurred, in our opinion can legitimately be taken into account when considering the question of sentence to be imposed by this Curt at this point of lime. Taking a conspectus of the circumstances of the case, in our considered opinion, it would be just and proper to reduce the substantive sentences of imprisonment awarded to the accused-appellants under all the counts to the period already undergone but enhanced the sentence of fine from Rs. 100/- to Rs. 200/- each, regarding the above-mentioned seven appellants excluding Girdhari and Ramcharan.The net result of the above discussion is that the appeal filed by the accused-appellants Girdhari and Ramcharan partly allowed. Conviction and sentences awarded to them under section 302 I.P.C. are set aside and instead they are convicted under section 304 Part 1/34 I.P.C. Each of them is sentenced to seven years rigorous imprisonment under this count. Conviction and sentences awarded to them under sections 147 and 323 I.P.C. are maintained. The substantive sentences of imprisonment are ordered to run concurrently.The appeal filed by rest of the seven accused-appellants, namely, Gheesya, Ganga Sahai, Kishan, Raghubir, Ramswaroop, Ramsabai and Madho is partly allowed. Conviction and sentences awarded to them under sections 147 and 323 I.P.C. are maintained. The substantive sentences of imprisonment are ordered to run concurrently.The appeal filed by rest of the seven accused-appellants, namely, Gheesya, Ganga Sahai, Kishan, Raghubir, Ramswaroop, Ramsabai and Madho is partly allowed. Order of conviction passed against them by the trial court is maintained. However, for the grounds already mentioned, sentences awarded to each of them are reduced to the period of imprisonment already undergone by them and in lieu of reduction of the substantive sentences, line imposed on them is enhanced from Rs. 100/- to Rs. 200/-. in default of payment of fine each of them will further suffer rigorous imprisonment for two months. They are allowed two months' time to deposit the fine imposed by this Court.Accused Girdhari is on bail. He is not before us. The learned Chief Judicial Magistrate is directed to take appropriate steps to get him arrested and send him to jail for undergoing the remaining term of sentence awarded by this Court.As regards Girdhari and Ramcharan, it is, however, made clear that both of them shall be entitled to the benefit of section 426 Cr.P.C., 1973 and the period of detention undergone by them during investigation, inquiry or trial shall be set off against the term of sentence awarded to them by this Court. Out of fine, if realised, an amount of Rs. 1,000/- (rupees one thousand only) shall be paid to Mst. Rampyari wife of Gokul Goojar, resident of Rajaheda, district Sawai Madhopur. The trial court is directed to send a copy of the operative portion of the judgment to Mst. Rampyari *******