Judgment S.I. Jafri, J. 1. PHIRAY, Birmi and Tejpal sons of Ratan Lal have filed this appeal against their conviction and sentences recorded by Sri P. C. Agarwal, VII Additional Sessions Judge, Bulandshahr by his judgment and order dated 22-1- 1979. All the appellants were convicted under Section 325/34 and 323/34 IPC and were sentenced to undergo R. I. for 5 years and 6 months respectively by the trial court. 2. ALONG with the appellants, their uncle Ram Swarup was also charge- sheeted but he died before the commencement of the trial. The case of the prosecution is that on 4-5-1978 at about 5 P. M. she- buffalo of Phiray appellant was grazing in the field of Mangoo deceased, whereupon he drove the cattle from his field and gave a Danda blow to the she-buffalo and in the meantime Phiray appellant reached there and said to him "Bhains ke danda kyoon mara tujhey aj duniya se kho dunga". Phiray, thereafter, ran after Mangoo to assault him and started beating him with lathies, whereupon the witnesses Rajpal PW 1, Sheo Singh PW 2, Mawasi PW 3 and Sheo Kumar PW 4 reached the scene of occurrence and on the intervention by Rajpal PW 1 he was also assaulted by Phiray appellant. Birmi and Tejpal along with Ram Swarup had also reached there during the assault and they had also joined with Phiray appellant in assaulting the deceased Mangoo and Rajpal. The accused after assaulting the deceased and Rajpal PW 1 made good their escape from the scene of occurrence. Mangoo succummbed to his injuries on the spot. He was taken by Rajpal PW 1, Mawasi PW 3 and Sheo Kumar PW 4 to his house in the village on a bullock cart. Rajpal did not go to the Police Station during the night on account of the fear from the side of the appellants. Next day Rajpal went to the Police Station Jewat and he handed over his written report Ext. Ka-1 to the Head Constable who after preparing a chik report at 1.30 P. M. had registered a case against the appellants and Ram Swarup. Rajpal informant was examined at P. S. Jewar by the Medical Officer in charge at 4.30 P. M. on 5-5- 1978. The injuries found on his persons are noted below :- 1. Ka-1 to the Head Constable who after preparing a chik report at 1.30 P. M. had registered a case against the appellants and Ram Swarup. Rajpal informant was examined at P. S. Jewar by the Medical Officer in charge at 4.30 P. M. on 5-5- 1978. The injuries found on his persons are noted below :- 1. Traumatice swelling 5"x 4" on and upper arm and right forearm arising from 2" above the right elbow joint to 3" below the right elbow joint. Advised X-ray. 2. Abraded contusion 2"x 1" on lat. aspect of right upper arm in upper 1/3 part. 3. Contusion 1"x 1" on ant. aspect of right thigh in middle. 3. THE investigation of the case was; taken up by Parmanand PW 5 who reached the place of occurrence and recorded the statement of the witnesses and also prepared the inquest on the dead body of Mangoo deceased. He had sent the dead body of the deceased to the mortuary for Post Mortem examination, through constables Om Prakash and Krishnapal Dr. Aleem Ahmad PW 7 conducted the autopsy on the dead body of the deceased at 1.30 P. M. on 6-5-1978 and he had found the following injuries on his person: 1. Contusion 5"x 2" on left side head 3" above left ear. 2. Contusion 3"x 1" on back of head. 3. Contusion 2"x 1-1/2" on right side of head 3" above right ear. 4. Contusion 10"x 3-1/2" on right top and back. 4. CONTUSION 6"x 2-1/2" on left side of shoulder top and back. 5. On internal examination the left temporal bone of the deceased was fractured. The membranes in the brain on the left side was also found lacerated. According to the opinion of the doctor the death of the deceased was caused due to shock and deep coma due to antemortem. injuries. The accused pleaded not guilty to the charge and stated that they have been falsely implicated on account of enmity. 5. BIRMA accused stated in his statement under Section 313 CrPC that a marpit took place between him and the daughter of Rajpal and Rajpal and Mangoo armed with lathies came to his house at about 10 P. M. in the night and assaulted his uncle Ram Swarup and lathi blows were exchanged between them which resulted in injuries to Ram Swarup, Rajpal and Mangoo. Then, the entire village people reached there and they threw brick bats. It was also suggested to Rajpal PW 1 in his cross-examination by the defence that there was a fight between Phiray appellant on the one hand and Mangoo deceased on the other hand. However, the accused have not proved any injury on the person of Phiray or Ram Swarup. The accused have examined Narain Singh DW 1 in their defence. 6. IN support of the prosecution case 7 witnesses were examined, out of them Rajpal PW 1, Mawasi PW 3 and Sheo Kumar PW 4 were examined as eye witnesses of the occurrence. Rajpal PW 1 is the brother of Mangoo deceased. He has narrated the prosecution case in detail. He deposed that about 6 months before at about 5 P. M. the she-buffalo of Phiray had damaged sugarcane crop of his brother Mangoo whereupon his brother had given a danda blow to the she buffalo and had driven out the she buffalo from his field but in the meantime Phiray reached there who assaulted him in the field of Shambhu. On hearing the alarm raised by his brother Mangoo, he also reached therefrom his Khaliyan which was nearby. He has further stated that Mawasi PW 3 and Sheo Kumar PW 4 were also attracted to the scene of occurrence from their Khaliyans. It was stated by him that he was assaulted by Phiray and also by Birmi, Tejpal and Ram Swarup who had also joined Phiray in causing injuries to him and Mangoo in the field of Shambhu. The accused after assaulting him and his brother Mangoo had run away from the place of occurrence. He further deposed that his brother Mangoo died on the spot. After the occurrence he sent Het Ram to his village who brought bullock cart and he took the dead body of the deceased on the bullock cart to his house. 7. HE has further stated that he did not go to the Police Station during the night to lodge a report due to fear of the accused. HE further stated that he had lodged the report the next day at the Police Station and his injuries were also examined in the hospital. 8. RAJPAL is an injured witness and his presence on the spot cannot be doubted. HE further stated that he had lodged the report the next day at the Police Station and his injuries were also examined in the hospital. 8. RAJPAL is an injured witness and his presence on the spot cannot be doubted. Even the defence had suggested in cross-examination of the witnesses that RAJPAL had received injuries in the marpit which took place between Phiray and RAJPAL. The evidence of RAJPAL has been thoroughly scrutinised by me and I hold him as a reliable witness. His evidence is also fully corroborated by Mawasi PW 3 and Sheo Singh PW 2 who are independent witnesses. The evidence of Narain Singh DW 1 does not inspire confidence. The version of occurrence given by him appears; to be after-thought. He is also related to the accused. The learned Sessions Judge has given good reasons for not placing reliance on the evidence of Narain Singh DW 1. 9. AFTER considering the entire evidence in the case, I hold that the trial court has rightly convicted the appellants under sections 325 read with Section 34 and 323/34 IPC. 10. LEARNED counsel for the appellants has contended before me that the occurrence took place in the year 1978 and about 9 years have elapsed since then. It was also submitted that the occurrence took place in this case all of a sudden on a petty matter. There was also no previous enmity between the parties and the assault was not premeditated. It was also urged by the learned counsel for the appellants that instead of sending the appellants to jail for serving out the sentences, a lenient view may be taken and the appellants may be fined. There appears substance in the above contention put forth by the learned counsel for the appellants. The occurrence had taken place about 9 years back and, thereafter, the appellants must have been settled in life and, if they are sent to jail, their family members are likely to be put to starvation. It was also submitted that the appellants also remained in jail for more than 2 weeks and they are not previous convicts. In the result, the appeal is partly, allowed. It was also submitted that the appellants also remained in jail for more than 2 weeks and they are not previous convicts. In the result, the appeal is partly, allowed. The conviction of all the appellants under Section 325/34 and 323/34 IPC are affirmed but the sentence of 5 years' R. J. and 6 months' R. I. awarded to them by the trial court is set aside, Instead, Phiray appellant is sentenced to pay a fine of Rs. 5000/- and the period of imprisonment already undergone by him under Section 325/34 IPC. In default of payment of fine, the appellant Phiray shall undergo 15 months R. I. Phiray is further sentenced to the period of imprisonment already undergone by him under Section 323/34 IPC the appellants Birmi and. Tejpal are sentenced to pay a fine of Rs. 2000/- each and the sentence of imprisonment already undergone by them under Section 325/34 IPC. In default of payment of fine, Birmi and Tejpal shall undergo 15 months' R. I. each. They are further sentenced to the period of imprisonment already undergone by them under Section 323/34 IPC. 11. THE appellants are allowed two months' time to pay the fine imposed on them by this Court after the receipt of the; record of this case from the High Court by the trial court. Out of the fine deposited by the appellants, Rs. 5000/- shall be given to Smt. Jallo, the widow of the deceased Mangoo and Rs. 1000/- to Rajpal PW 1 as compensation under section 357 Cr. P.C. In case of death of Smt. Jalloo and Rajpal PW 1, the amount of compensation awarded to them shall be given to their heirs by the trial court. THE remaining amount of Rs. 3000/- shall go to the State Exchequer. 12. LEARNED counsel for the appellants states that the appellants shall not treat the imposition of fine on them as enhancement of sentence. Office is directed to send the record of the case to the Court of VII Additional Sessions Judge, Bulandshahr within 10 days from today. Appeal allowed.