JUDGMENT 1. - Prabhuram has filed this appeal against the judgment of learned Sessions Judge, Balotra camp: Barmer dated December 9, 1983 convicting the accused under Section 304, Part-I, Indian Penal Code and sentencing him to five years' rigorous imprisonment and a fine of Rs. 50/- in default of payment of fine to further undergo rigorous imprisonment for 15 days. 2. The unfortunate incident relates to the alleged causing of death by one brother of the other brother. Achlaram died on account of the injuries received from Prabhu accused. Both are brothers and agriculturists living in the same village and having separate Dhanies. 3. The incident happened on account of some alleged attempt to reprimand Prabhu by Achlaram as there was some dispute about the milking of the goats in front of Prabhuram's Dhani. 4. The deceased received the following injuries as per the statement of Dr. Both are brothers and agriculturists living in the same village and having separate Dhanies. 3. The incident happened on account of some alleged attempt to reprimand Prabhu by Achlaram as there was some dispute about the milking of the goats in front of Prabhuram's Dhani. 4. The deceased received the following injuries as per the statement of Dr. Ranjeetmal Jain PW 2- 1 & ns[kus esa e`rd dk 'ko g"V&iq"V ekywe gksrk Fkk jhxj ekjVhl vkSj iksLVekVZe LVsuhax ekStwn Fks vkSj 'ko ds fyykV ij ?kko ds mij ,d ?kjsyw diM+s dh iV~Vh ck/kh gqbZ FkhA eSaus flj ds mij cka/kh gqbZ ?kko dh iV~Vh dks [kksydj ?kko ds pkjksa rjQ ds ckyks dks dkVdj ml ?kko dk fujh{k.k fd;kA ?kko ns[kus ls Kkr gqvk fd og ?kko dqUn gfFk;kj ls dkfjr fd;k gqvk dVk gqvk ?kko FkkA ftldk vkdkj 2 bUp bUVw 1 bUp Fkk vkSj og gM~Mh ftruk xgjk Fkk vkSj ;g ?kko flj ds QszUVy Hkkx ij FkkA 2 & e`rd ds vkSDlhihVy fgLls ij ,d gkseksVksek Fkk tks 5 bUp bUVw 3 bUp vkdkj dk Fkk vkSj ;g Hkh dqUn gfFk;kj ls dkfjr fd;k gqvk FkkA 3 & uhyxw dk fu'kku nkfguh rjQ Nkrh ds Hkkx ij Fkk tks 6 bUp bUVw 1 bUp vkdkj dk FkkA vkSj dqUn gfFk;kj ls dkfjr fd;k gqvk FkkA 4 & uhyxw dk fu'kku cka, gkFk dh dykbZ ds ihNs dh rjQ Fkk tks 1 bUp bUVw 1 bUp vkdkj dk FkkA tks dqUn gfFk;kj ls dkfjr fd;k gvk FkkA 5 & [kjksp dh pksV nk;h Vkax ij vUnj dh vksj chp ds fgLls ij Fkh tks 3 bUp bUVw 1@4 bUp vkdkj dh Fkh vkSj dqUn gfFk;kj ls dkfjr dh gqbZ FkhA mijksDr ikWapksa ckgjh pksVksa e`rd dh vkW[ks cUn Fkh vkSj iqrfy;ka QSyh gqbZ FkhA mldk eqag cUn Fkk vkSj xkyksa dks nckus rFkk Nkrh dks nckus ls [kwu ckgj fudyrk Fkk tks 'kk;n ,df=r gks jgk gks jgk FkkA 'ko dks phjus ds ckn 'ko ds Hkhrj fuEufyf[kr fLFkfr ikbZ %& 1- diky ds vkxs ls ysdj ihNs rd [kksyus ij mij fy[kkbZ x;h pksV dze'k% 1 ds lanHkZ e`rd dh Hkhrjh pksVs Fkh tks e`rd ds diky dh nkfguh vkSj ck;h nksuksa rjQ dh QzsUVksa] VsEiksjksa] isjkbZVl gfM~M;ksa dk vfLFkHkax gks jgk FkkA tks cka;s dh vis{kk nkfguh rjQ vf/kd FkkA ml LFkku ij tek gqvk [kwu Hkh ekStwn FkkA 2- e`rd ds nkfguh rjQ dh NBh] lkroha] vkBoha o uoha ilfy;ka dk vfLFkHkax gks jgk Fkk tks muds nkfgus rjQ ds dks.k ij gqvk Fkk vkSj ml LFkku ij tek gqvk [kwu Hkh ekStwn FkkA ;g pksV mij fy[kk;h xbZ ckgjh pksV dze'k% 3 ds lUnZHk esa vkSj mlh pksV ls lEcfU/kr gSA e`rd ds nksuksa QsQM++s dUtsLVsM Fks g`n; dk nkfguk fgLlk jDr ls Hkjk gqvk rFkk ckW;k fgLlk [kkyh FkkA cMh /keuh;kW o cMh f'kjk;sa dUtsLVsM Fkh] yhoj Hkh dUtsLVsM Fkk] Liyhu Hkh dUtsLVsM Fkk nksuksa xqnsZ Hkh dUtsLVsM FksA " 5. Dr. Ranjeetmal admitted that there were injuries on the person of accused also and blood was coming from the skull and he advised X-ray. 6. The trial court came to the conclusion that the eye-witnesses produced by the prosecution, namely, Baga Ram and Premaram have turned hostile as Bagaram is the brother and Premaram is Hali (employee). The other set of eye witnesses consisting of the wife of deceased Achlaram and daughter were held to be persons who reached the spot later on and were not eye witnesses. 7. However, on the basis of the circumstantial evidence it was held that it was accused who caused injuries to the deceased, and while doing so, he exceeded right of private defence. It was also held that the quarrel took place on the spur of the moment, without any premeditation, and in an altercation about the alleged reprimand. 8. The learned Counsel initially argued that it was a case of acquittal because when eye witnesses have been disbelieved and the injuries of the accused have not been explained, the trial court was not justified in making a conjecture that accused must have caused injuries to the deceased. 9. The learned Public Prosecutor opposed the appeal. 10. I have examined the record of the case and considered the rival contention of the learned Counsel for the parties. 11. I find that so far as the conviction of the accused is concerned, it is based on just and proper appreciation of the evidence and merely because there is no direct evidence, the consequence of acquittal cannot follow. 12. Realising the above, the learned Counsel for the accused submitted that in any case the accused and the complainant are brothers and the accused also received number of injuries on his skull and there was bleeding and the Investigating Agency did not get him examined by a doctor at the proper time. He, therefore, prayed that in the interest of justice the sentence of the accused should be reduced to that already undergone. 13. It is common ground that the accused has already remained in jail for three years and a few days and this is exclusive of the period of remission which is allowed by the Jail Rules. 14. The trial court has awarded sentence of five years. 13. It is common ground that the accused has already remained in jail for three years and a few days and this is exclusive of the period of remission which is allowed by the Jail Rules. 14. The trial court has awarded sentence of five years. Normally the sentence of five years cannot be called to be excessive for offence under Section 304, Part I, Indian Penal Code. However, in the peculiar facts and circumstances of this case as mentioned above, I am of the opinion that it would meet the ends of justice if the accused is released on the sentence already undergone. 15. Consequently, the appeal is partially allowed only on the question of sentence. The conviction of the accused-appellant is maintained but the sentence of imprisonment is reduced to already undergone. In all other respects the conviction & sentence including the sentence of fine stand confirmed.Appeal Partly Allowed. *******