JUDGMENT 1. - This is an appeal against the judgment dated 26-9-1981 passed by the learned Additional Sessions Judge No. 2, Hanumangarh whereby he has convicted the accused appellants Gurdass, Mangatsingh, Payarasingh and Dilipsingh under Section 302 read, with Section 149 I.P.C. and sentenced him to life imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two years' rigorous imprisonment. He has further convicted the accused appellants under Section 148 I.P.C. and sentenced them to one year's rigorous imprisonment. Both the sentences are directed to run concurrently. 2. The facts giving rise to this case are that on 15-9-1978 deceased Jogendra singh informed the Station House Officer, Police Station, Hanumangarh that at about 7.00 p.m. in the evening when he was going back to his house after closing his shop along with Harbansh Singh and reached near the railway gate there he found accused Gurdass Singh along with his son Mangatsingh armed with Kirpan along with his another son Dilipsingh armed with Kirpan and another person armed with Gandasi. Mangatsingh gave him a blow with Kirpan on his right leg. The other, person who was armed with Gandasi gave a blow on his left leg. It is said that Gurdass was also armed with a Takua and Payarasingh armed with Gandasi. Accused Gurdass Singh exhorted his two sons to kill him Payarasingh hit the deceased on his head while Mangatsingh gave a blow on his right leg. Thereafter, all the accused appellants started beating with their weapons. Harbansh Singh wanted to intervene and save him as a result of which he has also received injuries. Thereafter, the deceased fell unconscious on the ground. Thereafter, wife of the deceased came on the scene of occurrence and she carried him in a rickshaw to the Hospital. It was further stated by the deceased that the accused persons are inimically motivated towards him because he has already filed a complaint under Section 107 Cr. P.C. against the accused persons. On the basis of this information given by the deceased a case under Sections 307, 326, 325, 324, 147, 148 and 149 I.P.C. was registered against all the accused persons. 3. During the course of investigation, a dying declaration of deceased Jogendra singh was recorded, which is on record as Ex.P 5., by the Magistrate. But the deceased died in the Hospital. 3. During the course of investigation, a dying declaration of deceased Jogendra singh was recorded, which is on record as Ex.P 5., by the Magistrate. But the deceased died in the Hospital. Accused Mangatsingh was arrested and his blood stained clothes were also seized. Accused Gurdass Singh and Payarasingh were also arrested. Deceased Jogendrasingh died on 19-9-1978, his body was sent for post mortem and thereafter the case was registered under Section 302 I.P.C. During the course of investigation, the site was inspected and the site plan was prepared. During the course of investigation; accused Gurdass Singh gave information as a result of which one Takua was recovered, accused Mangatsingh gave information which led to the recovery of a kirpan and likewise on the information given by Payarasingh one Gandasi was recovered. Accused Lunaram was also arrested and on his information one Gandasi was recovered. Since the accused Lunaram's name was not mentioned in the First Information Report and that his identity was not known therefore the identification parade was also held. After close of the investigation a challan was filed against all the accused persons under Section 302 read with Section 149. The accused persons ultimately committed to the court of Sessions for trial under the aforesaid sections. The learned trial Judge after due trial convicted and sentenced the accused appellants as aforesaid and acquitted the accused Lunaram by giving him benefit of doubt. Aggrieved against the aforesaid conviction and sentence passed by the learned Additional Sessions Judge No. 2, Hanumangarh the accused appellants have approached this Court by filing the present appeal. 4. We have heard the learned Counsel for the appellants and the learned Public Prosecutor and have gone through the judgment as well as the record. Mr. Bhagwati Prasad, learned Counsel for the appellants has strenuously urged that the incident has taken place on account of old enmity and the testimony of Harbansh Singh PW 6 is not reliable and the dying declaration is not worthy of credence. We have gone through the dying declaration, the statement of PW 6 Harbansh Singh and other evidence on record PW 6 Harbansh Singh has deposed that when he along with deceased Jogendra Singh were going to Hanumangarh town and when they reached near the railway gate at that time, Mangatsingh, Dilipsingh and one more person came there and surrounded them. We have gone through the dying declaration, the statement of PW 6 Harbansh Singh and other evidence on record PW 6 Harbansh Singh has deposed that when he along with deceased Jogendra Singh were going to Hanumangarh town and when they reached near the railway gate at that time, Mangatsingh, Dilipsingh and one more person came there and surrounded them. He identified Mangat Singh, Dilip Singh and Luna Ram Mangal Singh and Dalip Singh were armed with Kirpans and Lunaram was armed with Gandasi. He said that Mangatsingh gave the blow on the right leg of deceased and Luna Ram gave the Gandasi blow and thereafter Gurdass Singh and Payarasingh also came and they also gave beating with Takua and Gandasi. Accused Gurdass Singh exhorted his two sons do not spare the deceased. He tried to intervene but he could not succeed and he also received injuries. Accused persons left the place believing that the deceased has expired. Thereafter, wife of the deceased and a rickshaw puller came and some more persons came there. The deceased was immediately taken to the Hospital and he immediately rushed to the police station. When he reached at the police station, he was informed that one Charan Singh, ASI has already left the police station. We have gone through the statement of this witness and we are of the opinion that there is no reason to disbelieve the testimony of Harbansh Singh. He has stood well in the cross examination and the defence could not shatter his testimony. Likewise, we have also gone through the dying declaration Ex P 5, which was recorded by the Magistrate and after going through the dying declaration Ex P 5 where in the deceased has given out the whole version of the incident. The dying declaration Ex.P 5 stands duly supported by the testimony of PW 6 Harbansh Singh. The only difference between the dying declaration given by the deceased and Harbansh Singh PW 6 is regarding the identity of Lunaram. The deceased could not identify the accused Lunaram, therefore, he could not name that person. However, Harbansh Singh PW 6 has named Lunaram. But the benefit of doubt regarding this variations has already been given by the learned Additional Sessions Judge and he has acquitted the accused Lunaram. The deceased could not identify the accused Lunaram, therefore, he could not name that person. However, Harbansh Singh PW 6 has named Lunaram. But the benefit of doubt regarding this variations has already been given by the learned Additional Sessions Judge and he has acquitted the accused Lunaram. Thus, we are of the opinion that the learned Additional Sessions Judge has rightly convicted the accused appellants for committing murder of the deceased Jogendra Singh. 5. Mr. Bhagwati Prasad, learned Counsel for the appellants next submitted that even if it is accepted that the accused persons were responsible for causing the injuries but by taking the case of the prosecution at best the offence cannot travel beyond Section 304, Part-II, I.P.C. The learned Counsel has submitted that in fact, on account of old enmity between the two families the accused only wanted to chastise the deceased and never intended to cause his death. Learned Counsel has also submitted that no injury of the vital part of the body of the deceased has been deposed by the Doctor to be fatal. On the contrary, the Doctor PW 7 Rajendra Kumar Gupta, Medical Jurist has deposed that death could have been caused as a result of the cumulative effect of these injuries and shock. He further deposed that no single injury was sufficient to cause death. Having regard to the nature of the injuries and the fact that there was a family dispute between the parties, the death took place after five days, we are of the opinion that the contention of Mr. Bhagwati Prasad, learned Counsel for the appellants appears to be correct that in fact the accused persons never intended to cause death of the deceased. Therefore, in the peculiar facts and circumstances of this case, we convert the conviction of the accused appellants from under Section 302, I.P.C. to Section 304, Part II, I.P.C. read with Section 149 I.P.C. 6. Learned Counsel has submitted that so far as accused Gurdass Singh is concerned, he is an old man of 60 years of age and is also infirm on account of leg injury and he has already served the sentence for a period of 3 years and he is on bail. Learned Counsel has submitted that so far as accused Gurdass Singh is concerned, he is an old man of 60 years of age and is also infirm on account of leg injury and he has already served the sentence for a period of 3 years and he is on bail. In the facts and circumstances of the case, we convict all the four accused persons under Section 304, Part-II, I.P.C. and sentence each of the accused persons except accused Gurdass Singh for a period of 7 years rigorous imprisonment with a fine of Rs. 1000/-each and in default of payment of fine to further undergo rigorous imprisonment for one year. The sentence of accused Gurdass Singh is reduced to that already undergone by him as he is an old man of 60 years of age and in infirm. He is already on bail and he need not surrender. Out of the amount of fine so realised, a sum of Rs. 2,500/- shall be paid to the wife or dependents of the deceased Jogender Singh. 7. In the result, the appeal is partly allowed as indicated above.Appeal Partly Allowed. *******