S. I. JAFRI, J. The instant appeal has been preferred by Sardar, Gajraj and Ram Kumar alias Joker residents of village Dhdhaura, P. S. F. Fatehpur, District, Barabanki against their conviction and sentences recorded by Sri Umesh Chandra, Sessions judge, Barabacki by his judgment and order dated 3-6-1982 passed in S. T. No. 221 of 1981. 2. Sardar appellant was convicted under Sections 304 (Part I) and 323 read with Section 34, I. P. C. and was sentenced to undergo R. I. for five years and nine months R. 1. respectively under the aforesaid sections of the Penal Code. 3. Gajraj appellant and Ram Kumar alias Joker appellant were convicted under Section 323/34,i. P. C. and they were sentenced to undergo R. I. for nine months. 4. Before embarking upon the prosecution case, it would be proper to delineate the preliminaries of the prosecution case. It is alleged that in the field belonging to Babu Lal (deceased) which had been taken on Batai by Chhote Lal P. W. 4 in the partneship of Babu Ram (deceased) and crop of tomato was grown. Just jutting to this field, stood the field of appellants Sardar and Gajraj. 5. The case of the prosecution is that at about 3 p. m. on 28-11-1978, the accused-appellants Sardar and Gajraj were watering their field through the Channel branching off the irrigation canal. The irrigation of the field was complete by 2 p. m. excepting a small portion of the field of Gajraj. Just then, Chhote Lal, P. W. 4 made it known to the appellants that he was to irrigate his field as well upon which appellants Sardar and Gajiaj refused to oblige till they had completed irrigation of their another field of Sardar a little away. Consequently, there ensued an alternation between Sardar and Gajraj on one hand and their brother Chhote Lal on the other hand, with the result that Sardar and Gajraj appellants jointly began to be labour Chhote Lal, P. W. 4. Chhote Lal also plied Lathi in his defence. Deceased Babu Ram who was working in his field a little away intervened in the fight in order to save Chhote Lal but he was also given. a beating by appellants Sardar and Gajraj by means of Laihies. Chhote Lal also plied Lathi in his defence. Deceased Babu Ram who was working in his field a little away intervened in the fight in order to save Chhote Lal but he was also given. a beating by appellants Sardar and Gajraj by means of Laihies. In the fight aforesaid, appellant Ram Kumar alias Joker also joined on the side of the appellants in labouring deceased Babu Ram and Chhote Lal, Smt. Brij Rani, wife of the deceased Babu Ram who was also present in the field gathering tomatoes also intervened in the fight in order to rescue Babu Ram from repeated assaults, but she was also assaulted with Lathi which however landed on her hand resulting in smashing of her bangles and sustaining minor injuries in her hand. It was also alleged that an attempt was made to assault Bachchu Lal son of the deceased but he escaped unhurt. A hue and cry followed and on the alarm by the witnesses, the appellants bolted away from the scene of occurrence towards the village. 6. After the occurrence, the deceased Babu Ram was brought to his house in an injured State. However, Chhote Law was left behind in the field in an injured State. Babu Ram, deceased could not be removed to hospital or police station during the course of night on account of the fear of the appellants and at about 3 a. m. Babu Ram deceased succumbed to his injuries. 7. Next morning Bachchu Lal went to the Police Station, Fatehpur and lodged his oral report of the occurrence to the Head constable. The head constable after preparing a Chife report on the basis of the aforesaid oral report, registered a case under Section 304/323,i. P. C. against the appellants. There after, investigation followed and Maharaj Singh, P. W. 6, conducted investigation in the case. He recorded the statement of the complainant at the Police Station. He went to the place of occurrence and recorded the statements of the remaining witness. He also conducted inquest on the body of the deceased Babu Ram Thereafter, Chhote Lal injured was sent to P. H. C. , Fatehpur for medical examination. The Investigating Officer also inspected the place of occurrence and prepared the site-plan. 8. Dr. He went to the place of occurrence and recorded the statements of the remaining witness. He also conducted inquest on the body of the deceased Babu Ram Thereafter, Chhote Lal injured was sent to P. H. C. , Fatehpur for medical examination. The Investigating Officer also inspected the place of occurrence and prepared the site-plan. 8. Dr. J. S. Chawla P. W. 2, Medical Officer, P. H. C. , Fatehpur examin ed the injuries on the person of Chhote Lal P. W. 4 on 29-11 -1978 at 4. 25 p. m. The Doctor found the following injuries on his person: (1) Lacerated would 6 cm xl cm xl cm on top of head, slight right to the midline, 5 cm behind right eye brow. No bleading, no pus, as longitudinal mark. (2) Lacerated would 4 cm x cm x cm on scalp 1 cm behind the injury No. 1. (3) Lacerated wound 3 cm x cm x cm on left slide of scalp, 8 cm above left ear. (4) Abrasion 1 cm x cm on back and lateral part of right hand, soft scab. (5) Abrasion cm x cm on the back and base of right index finger. (5) Abraded contusion S cm X 2 cm on back and medical aspect and lower third of right forearm. Swelling on left hand and left fore arm. No mark of injury. The doctor opined that injuries sustained were simple and caused by blunt object except Nos. 4 and 5 were caused by friction. 9. The post-mortem on the body of deceased Babu Ram was conducted by Dr. C. S. Kumar, P. W. 5 on 30th November, 1978 at 1 p. m. The Doctor found the following ante-mortem injuries on his person : (1) A lacerated wound 3 cm x cm X skin deep on the right side of forehead occipital region. (2) Lacerated wound cm x skin deep top of head occipital bone 6 cm above injury No. 1. (3) Lacerated wound 3 cm X 1 cm x skin deep on left side of head 9 cm, above the external ear. (4) Lacerated wound 3 cm x 1 cm x skin on top of head parietal left side. (5) Lacerated wound 2 cm x 1 cm x bone deep on forehead 3 cm above the right eyebrow. (6) Contusion 16 cm x 8 cm on right side back chest outer aspect. (4) Lacerated wound 3 cm x 1 cm x skin on top of head parietal left side. (5) Lacerated wound 2 cm x 1 cm x bone deep on forehead 3 cm above the right eyebrow. (6) Contusion 16 cm x 8 cm on right side back chest outer aspect. (7) Contusion 16 cm X 8 cm on right side back chest outer aspect. (8) Abrasion 3 cm x 1 cm on the left scapular region, middle part. On internal examination, the doctor found that 3rd to 10th ribs of the right side of chest were fractured underlying injury No. 7. Larynx and Trachea wire congested. Right lung was punctured and clotted blood found present in t right side. Left lung was congested. Right side of heart chamber was full of blood and the left chamber was empty. 10. The accused pleaded not guilty to the charge and stated that they had exercised their right of private defence in causing injuries to the deceas and Chhote Lal. However, the accused did not examined any witness in defence. 11. In support of its case, the prosection has examined in all six witnes and out of them, Hanuman Prasad P. W. 1, Bachchu Lal P W 3 Chhote Lal P. W. 4 were examined as eye-witnesses of the occurrence. 12. Chhote Lal P. W. 4, is an injured witness. However, he did not. support ot the prosecution case and he was treated hostile. The conviction of the appellants, thus, rests on the testimony of Hanuman Prasad P. W. 1 and his brother Bachchu Lal P. W. 3. Both these witnesses are the sons of deceased Babu Ram. 13 I have heard the learned counsel for the appellants at length and also the learned counsel for the State. I have also gone through the statements of the witnesses adduced in this case. 14. Upon a consideration of the entire facts and circumstances in the case, I am fully satisfied that the prosecution has succeeded in bringine home the guilt to the accused persons. 15. First of all, I propose to deal with the evidence of Bachchu Lal P. W. 3. He has dwell upon the prosecution case in detail deposing that on the day of occurrence at about 3p. 15. First of all, I propose to deal with the evidence of Bachchu Lal P. W. 3. He has dwell upon the prosecution case in detail deposing that on the day of occurrence at about 3p. m. , he was present alongwith his father deceased Babu Ram, brother Hanuman and her mother in his field taken on Batai by Chhote Lal P. W. 4 in the partnership of his father and crop of tomato was grown in the said field. He further deposed that the appellants J. I. C.-43 Sardar and Gajraj had completed watering of their field which lay adjacent to the aforesaid field of Babu Ram. Chhote Lal also wanted to irrigate the aforesaid potato field and on being refused by the appellants an altercation followed between Chhote Lal on one hand and the appellants Sardar and Gajraj on the other. The altercation developed into a fight and the appellants started belabouring Chhote Lal and when Babu Ram interceded and tried to rescue hire, Sardar and Gajraj also belaboured him. He further stated that during the course of Marpit, Ram Kumar alias Joker appellant a causin of the appellants also joined in the fight on the side of the appellants in causing injuries to Babu Ram. It was also deposed by the witness that appellants also tried to assault him but he escaped unhurt. However, her mother sustained minor injuries on her hand. After the occurrence leaving Chhote Lal into field, he took his father Babu Ram to his house in an injured state. However, he could not go to the Police Station or the Hospital during night out of fear of the appellants. During the night at about 3 p. m. his father Babu Ram succumbed to his injuries in his house. 16. Next morning, he went to the Police Station where lodged an oral report of the occurrence to the Head constable. Subsequently, he was examined by the Sub-Inspector at the Police Station itself. 17. During the night at about 3 p. m. his father Babu Ram succumbed to his injuries in his house. 16. Next morning, he went to the Police Station where lodged an oral report of the occurrence to the Head constable. Subsequently, he was examined by the Sub-Inspector at the Police Station itself. 17. Bachchu Lal was subjected to gruelling cross-examination by the defence at length and in the entire cross-examination of the witness, the defence had not been able to fish out any infirmity as to render the credibility of his testimony doubtful and in view of the fact, that the defence has not been able elicit any infirmity in the testimony of the witness, his evidence is worth reliance and there is no earthly reason to disbelieve his evidence. It is no doubt true that he is the son of the deceased, but merely because he is the son of the deceased, his evidence cannot be discarded. His presence at the time of occurrence in his field is also natural and probable. There was no motive for Bachu Lal to have falesly nominated the appellants in his report and also in his deposition before the Investigating Officer. In the circumstances of the case, his evidence very much inspires confidence and I have not the hesitation in accepting his evidence as a true account of the occurrence. 18. Hanuman Prasad P. W. 1, who is also the son of the deceased Babu Ram, is aged about 13 years. He has lent full corroboration to the evidence of his brother Bachu Lal. The learned Sessions Judge has given a note before recording his evidence that the witness has full understanding and as such, there is no reason to disbelieve his as well. 19. I have gone through the statement of Hanuman Prasad thoroughly and I find that this evidence is not tinged with any doubt even remotely. He is also a natural witness and in respect of his testimony also, I have no hesitation in accepting the version given by the witness. 20. As stated above, Chhote Lal, P. W. 4 who is the brother of Sardar and Gajraj appellants, was treated hostile on accout of his not substantiating prosecution case. The reasons are obvious and are not too far to seek. 20. As stated above, Chhote Lal, P. W. 4 who is the brother of Sardar and Gajraj appellants, was treated hostile on accout of his not substantiating prosecution case. The reasons are obvious and are not too far to seek. He is no doubt an injured witness, but it appears that it was to family feeling that pro meted him to tilt towards his brothers on account of full blood relation. Under the circumstances, the evidence of Chhote Lal does not weaken the edifice of the prosecution case en account of his turning hostile. 21. The learned counsel submitted that in view of the nature of injuries sustained by the deceased, the offence does not travel beyond the ambit of Sec tion 304, Part II, I. P. C. It was also submitted that the scuffle ensued all of a sudden and without any premeditation between the brothers I have carefully gone through the injuries sustained by the deceased and I find that out of the five lacerated wounds inflicted on the person of the deceased four of them are skin deep. The remaining two injuries are contusions and one injury is abrasion. Under the circumstances, I feel that conviction of the appellants is liable to be set aside under Section 304, Part I, I. P. C. and instead I propose to convict the appellants under Section 304, Part II, I. P. C. 22. In the next round of arguments the learned counsel for the appellants has submitted that the occurrence in the instant case had taken place about 12 years back and it is now drawing to a close in the year 1980. During the course of this interval, both complainant and the appellants have been living in a amiable and cordial atmosphere without any trace of bad-blood and under the circumstances, if the appellants are sent to Jail for serving out the sentences it would help none but to reagitate and revive the past bitter memories-vitiating the atmosphere of cordiality and cause rancour. It is also submitted by the learned counsel thread-bare that the appellants as the only members in their respective families seeking out livelihood for the members of their families and in case they are sent to Jail, the possibility that the family members of the appellants may be on the brink of starvation, is imminent and the tempo of life may be disturbed. In the end the learned counsel has invoked this Courts mercy in taking a lenient view of the entire matter by imposing fine instead of sending them to jail. 23. I have devoted my thoughtful consideration to this aspect of the matter and I also share the view of the learned counsel that no useful purpose would be served by sending the appellants to Jail in order to serve out their sentences after such a long interval when the old hatchet is lying deeply hurried and wounds of yester years are not visible and in considering the above facts and circumstances, I convict Sardar appellant under Section 304, Part II. However, the conviction of all the appellants Sardar, Gajraj and Ram Kumar under Section 323/34, I. P. C. recorded by the trial court, is affirmed and instead of sending them to Jail for serving out the sentences, I imposed a fine of Rs. 5,000 on Sardar appellant and also sentence him to the period of imprisonment already undergone by him. Likewise while affirming the conviction recorded against the appellant Gajraj and Ram Kumar alias Joker under Section 323 read with Section 34, I. P. C. , I impose a fine of Rs. 1,000 on each of them and sentence them to the period of imprisonment already undergone by them. Learned counsel for the appellants states that the appel lants shall not consider the imposition of fine on them by this court as enhance ment of sentence. 24. In the result, the appeal is partly allowed. The conviction of Sardar appellant under Section 304, Part I is converted to one under Section 304, Part II, I. P. C. and his conviction under Section 323/34, I. P. C. recorded by the court below is affirmed. However, instead of sending Sardar appellant to Jail to serve out the sentence, I impose a fine of Rs. 5,000 and also the period of sentence already undergone by him. Likewise while affirming the conviction of the appellants Gajraj and Ram Kumar alias Joker under Section 323 read with Section 34, I. P. C. impose a fine of Rs. 1,000 each on them and sentence them to the period of imprisonment already undergone by them. Out of the fine so deposited by the appellant Sardar, a sum of Rs. Likewise while affirming the conviction of the appellants Gajraj and Ram Kumar alias Joker under Section 323 read with Section 34, I. P. C. impose a fine of Rs. 1,000 each on them and sentence them to the period of imprisonment already undergone by them. Out of the fine so deposited by the appellant Sardar, a sum of Rs. 4,000 will be disbursed to the heirs of deceased Babu Ram, namely, wife Brij Rani, sons Bachchu and P. W. 4 and Hanuman Prasad P. W. I and the remaining Rs. 1,000 would go to the State exchequer. Likewise out of the fine deposited by appellants Gajraj and Ram Kumar alias Joker, Rs. 1,500 shall be disbursed to the heirs of Babu Ram deceased aforesaid and Rs. 500 shall go the State Exchequer. In default of payment of fine by appellant Sardar, he shall undergo imprisoment of 15 months R. I. In default of payment of fine by appellants Gajraj and Ram Kumar alias Joker, they shall serve out nine months R. I. 25. The aforesaid fine shall be deposited in the Court of Sessions Judge, Rae Bareli and the Sessions Judge shall ensure that the aforesaid amount is equally disbursed amongst the heirs of deceased Babu Ram as indicated above. The appellants are granted three months time to deposit the fine from the date of receipt of the record in the Court of Sessions Judge Rae Bareli. Appeal partly allowed. .