JUDGMENT S. I. Jafri, J. 1. Instant appeal has been filed by Naresh, Baleshwar, Siya Ram and Bishambhar impugning hereby their conviction and sentences recorded by Sri D. C. Srivastava, II Additional Sessions Judge, Muzaffarnagar vide his order and judgment dated 2-1-1979. 2. Naresh and Baleshwar appellants were convicted under section 302/34 IPC and they were sentenced to undergo life imprisonment. They were also convicted under section 325/34 IPC and sentenced to undergo R.I. for two years. Sia Ram and Baleshwar were convicted under section 302/34 IPC and sentenced to suffer two years' R.I. They were also convicted under section 325/34 and 342/34 and 201/34 IPC and sentenced to undergo R.I. for two years, six months and three months respectively. 3. The occurrence in the instant case had taken place on 21-1-1978 at 12 noon in which one Jai Nand lost his life and another person Kishan Lal PW 1 sustained injuries. The events which bear with the occurrence in the instant case are that the deceased Jai Nand and Kishan Lal are brothers of appellant Bishambar and Siaram and the remaining appellants are the nephews of the deceased Jai Nand and injured Kishan Lal. The incident had taken place in the jungle of village Phalauda where the complainant's side and appellants had undivided agricultural holdings The father of Bishambar appellant Jai Nand deceased and Kishan lal injured had pre-deceased the occurrence in the instant case. Parmanand deceased father of Jai Chand (deceased) and Kishan Lal had left behind 40 Bighas of land situate in village Phalauda and in the wake of the death of Parmanand, Jai Nand (deceased) had applied for mutation of his name over the properties left by his father. Bishambhar accused contested the mutation proceedings and ultimately, the names of the sons of Bishambhar accused were mutated in the revenue records over the said property left behind by Parmanand (deceased). Against that mutation, Jai Nand (deceased) obtained stay orders from the Sub Divisional Officer restraining the accused persons from harvesting the crop standing in the plots in dispute. Bishambhar accused contested the mutation proceedings and ultimately, the names of the sons of Bishambhar accused were mutated in the revenue records over the said property left behind by Parmanand (deceased). Against that mutation, Jai Nand (deceased) obtained stay orders from the Sub Divisional Officer restraining the accused persons from harvesting the crop standing in the plots in dispute. According to the prosecution case, the accused persons defied the reetraint orders and harvested the crop upon which on a report, proceedings against Bishambhar and others were initiated and it was in the context of that very proceedings that Jai Nand and Kishan Lal had gone to the court of S.D.O. on 20-1-1978 which was the date fixed in the case. After attending the court on 20-1-1978 both Jai Nand and Kishan Lal sheered off to village Phalauda and stayed with one Bhagat and Elam Chand. It is worthwhile to mention that two years prior to the instant occurrence, Kishan Lal injured had migrated to village Dhola Chaura in Saharanpur while deceased Jai Nand had shifted to village Sarurpur and they used to come over to village Phalauda quite often owing to agricultural holdings. It is also useful to mention here that Kishan Lal injured had agricultural holdings measuring 1 Bigha 18 Biswa at village Beeja Haidi. He had also purchased some land in the name of the sons of Bishambhar at the said village. To resume the narration of the prosecution case, on 22-1- 1978, when Kishan Lal and Jai Nand went to iheir Chaks at Bheeja Haidi in order to harvest the sugarcane crop and set to the harvesting of sugar cane crop, Sia Ram, Naresh, Baleshwar and Bishambhar arrived at the scene at about 12 o' clock, Baleshwar was armed with Palkati, Naresh had lathi, Sia Ram was possessed of Sariya shod with bolt. Sia Ram questioned the propriety of harvesting Sugar Cane crop by Kishan Lal and Jai Chand. Meanwhile Bishambhar emerged from the sugar cane field and exhorted to teach a lesson to them. On being exhorted by Bishambhar, all the accused persons, namely, Sia Ram, Naresh and Baleshwar began to belabour Kishan Lal and Jai Nand and they dragged Kishan Lal and Jai Nand to the field of Bishesh- war. On hue and cry raised by Kishan Lal, Bisheshwar, Tej Pal and Ram Swamp were attracted to the scene and they witnessed the occurrence. On hue and cry raised by Kishan Lal, Bisheshwar, Tej Pal and Ram Swamp were attracted to the scene and they witnessed the occurrence. The witnesses tried to intervene in order to save them but they were cautioned against meddling into the occurrence. Both the victim were also belaboured in the field of Bisheshwar. Jai Nand breathed his last in the field of Bisheshwar. Excepting Sia Ram who stayed behind for watch over the two victims, the remaining accused persons walked away from the scene of occurrence. The prosecution case further is that after a lapse of 3-4 hours, Bishambhar accused in the company of Mahavir and Baleswar again turned up at the scene along with a Buggi (bullock cart) and took both the victims on the aforesaid Buggi to the house of Sia Ram accused situate in village Phalauda. Both the victims were confined in a room in the house of Sia Ram accused. During the course of his confinement in the room at the house of Sia Ram accused, Kishan Lal injured had a talk with Durga Prasad of his village. It was at 6 P.M. that police raided the said house of accused Sia Ram and redeemed Kishan Lal injured and also recovered the corpse of Jai Nand from the aforesaid room. The Police prepared a recovery memo and obtained signatures of injured Kishan Lal and witnesses over the Fard which was marked Ex. Ka 1. Later on Police sent injured Kishan Lal for medical examination but he could not be medically examined owing to the strike of the Doctors and it could be done 3-4 days. The Police sent the dead body of Jai Nand for post mortem examination. It is worthwhile to mention that the police lumbered into action on the information of Durga Prasad of the same village who had a talk with Kishan Lal Injured when Kishan Lal had been kept confined in a room at the house of accused Sia Ram. On the basis of the said information provided on telephone, the Police of P. S. Purkazi prepared a chik report and registered the case u/Sec. 302/342 IPC against the accused persons Naresh. Baleshwar and Sia Ram. On the basis of the said information provided on telephone, the Police of P. S. Purkazi prepared a chik report and registered the case u/Sec. 302/342 IPC against the accused persons Naresh. Baleshwar and Sia Ram. Jagir Singh, S.I. who was present at the Police Station at the time the information was received at the Police Station, rushed to the scene of occurrence and recovered the victims from a room of the house of Sia Ram. Accused Bishambhar and Sia Ram were taken into custody. At the time the recovery was made, the room was chained from outside. The investigating officer after recovery of the victims sent the injured for medical examination and the dead body of deceased Jai Nand was sent for post mortem examination. He prepared a site plan Ex. Ka 13 of the house from where the dead body had been recovered. Thereafter he went to the place of Marpeet along with the witnesses. He collected blood stained and unstained earth from the field of Bisheshwar. He also inspected the sugarcane field of Kishan Lal where the victims had been belaboured, and prepared site plans of both the places which was marked as Ex. Ka 15. 4. After concluding the investigation, the Investigation officer submitted charge-sheet against all the four accused persons. Autopsy on the dead body of Jai Nand deceased was conducted on 24-1-1978 at about 1 P.M. by Dr. N. D. Bahuguna PW 9 and he found the following ante-mortem injuries on the person of Jai Nand. 1. Lacerated wound 2,1/4" x 1/2" x bone deep on right side head 3,1/2" above right ear-direction transverse. 2. Lacerated wound 2" x 1/2" x scalp deep on left side head 4" above left ear direction transverse. 3. Contusion 1" x 1/2" over upper eye lid right eye. 4. Lacerated wound 1/2" x 1/4 x muscle deep on back on outer part right elbow joint. 5.Contusion 3,1/2" x 1,1/2" on dorsum and back of right hand and swelling on whole hand and fingers. 6.Contusion 4" x 3" on back of lower 3rd left forearm and simple fracture of left radius and ulna lower third. 7.Abrasion 3/4" x 1/2" on front and lower 3rd right leg. 8.Lacerated wound 3/4" x 1/4" x muscle deep on dorsum, middle and outer part right foot. 9.Contusion 6" x 3" on lower 3rd and outer part left leg. 6.Contusion 4" x 3" on back of lower 3rd left forearm and simple fracture of left radius and ulna lower third. 7.Abrasion 3/4" x 1/2" on front and lower 3rd right leg. 8.Lacerated wound 3/4" x 1/4" x muscle deep on dorsum, middle and outer part right foot. 9.Contusion 6" x 3" on lower 3rd and outer part left leg. 10.Contusion 4" x 2" on inner part left ankle joint. 11.Contusion 4" x 2" on back of chest right side scapular region. 5. The Doctor opined the cause of death as shock and haemorrhage as a result of ante-mortem injuries aforesaid. 6. Kishan Lal injured was also examined at P.H.C. Purqazi Muzaffar- nagar by Dr. Gyanendra Kumar on 25-1-1978 at 4 P.M. He was found to have sustained as many as 10 injuries on his person out of which three are contused wounds, one abrasion, swellings at lour places and complaint of pain all over the back. Accused persons pleaded not guilty to the charge and attributed their false implication in the case to enmity. The defence examined clerk Constable Kela Ram DW 1. 7. In support of its case, the prosecution examined in all thirteen witnesses and out of them, Kishan Lal PW 1, Ram Swarup PW 2, Basheshwar Dayal PW 6, Tej Pal PW 10 and Shorn Dutt PW 12 were examined as ocular witnesses of the occurrence. Out of the above set of eye witnesses, with the exception of Kishan Lal PW 1 all were treated as Hostile owing to the fact that they did not lend support to the prosecution case. Hence the conviction of the appellants hinges on the sole testimony of Kishan Lal PW 1. 8. We have traversed upon the evidence of hostile witnesses very carefully and upon a consideration, we feel that they had hardly witnessed the occurrence it is deducible from their evidence that they did witness the occurrence but for some reason or the other they were not willing to support the factum of the occurrence. Here it is useful to advert to the position in law. It is settled law that part of the evidence of a hostile witness can be relied upon and with this position of law in view, we purpose to sift the evidence of each and every hostile witnesses. Here it is useful to advert to the position in law. It is settled law that part of the evidence of a hostile witness can be relied upon and with this position of law in view, we purpose to sift the evidence of each and every hostile witnesses. Ram Swarup PW 2, who has been treated hostile, deposed that the occurrence had taken place at 10 or 11 A.M. at the field of Bisheshwar. He further deposed that he was present at his field along with Tej Pal at the time of occurrence. At the same time, Bisheshwar had also come to his field in order to sprinkle fertilizer in his field. It has farther been deposed by the witness that he had seen Sia Ram and two sons of accused Bishambhar at the scene of occurrence belabouring Kishan Lal and one another person whom he could not name and on enquiry, the sons of Bishambhar had told that the other injured was their uncle. He did not support the prosecution case in so far as presence at the scene of Bishambhar accused was concerned. His evidence is also at variance with the prosecution case in so far as weapons in the hands of the accused were concerned. In other material particulars, the witness has lent support to the prosecution case to the effect that after beating the two persons, the remaining accused had walked away from the scene ex- cepting Sia Ram accused who had stayed behind at the scene. 9. Basheshwar PW 6 another hostile witness has also lent support to the prosecution case to the extent that he had arrived at the scene of occurrence only at 2.30 P.M. when he had witnessed both the victims lying injured in his field. The presence of BASHESHWAR Dayal at the scene is also evidenced by the testimony of Ram Swarup PW 2 who deposed that Bisheshwar Dayal had come to his field in order to sprinkle urea in his field. Bisheshwar Dayal has also claimed in his deposition to have gone to his field but he purposely changed the time of his presence at his field with the apparent object of avoiding to appear as a witness in the case. Bisheshwar Dayal has also claimed in his deposition to have gone to his field but he purposely changed the time of his presence at his field with the apparent object of avoiding to appear as a witness in the case. The quintessence of his statement boils down to the fact that he had found the two injured lying in his wheat field on the day of occurrence at 2 or 2.30 P.M. 10. Durga Prasad PW 3 has not been treated hostile by the prosecution. It was on his information on telephone that the Police registered case u/Sec. 302/342 IPC on 21-1-1978 at 5.15 P.M. against Naresh, Baleshwar and Sia Ram accused. In his deposition in the court, he denied to have given the names of the accused persons to the Police on telephone. However, he conceded that he had sent the information to the Police on phone about the occurrence at about 4.45 P.M. when he had over-heard at the bus-stand about the death of Jai Nand and serious injuries having been sustained by Kishan Lal. He further deposed that thereafter he went to the house of Sia Ram and there he found Kishan Lal in injured state and Jai Narain dead. Now we take up the testimony of sole ocular witness namely, Kishan Lal PW 1 who has also sustained injuries in the occurrence. He has lent full corroboration to the case of the prosecution in all materials particulars. The injuries of this witness were examined after a lapse of 3-4 days and the delay has been attributed to the strike by the Doctors. He has dwelt on the prosecution case in detail and we have carefully examined the testimony of the witness coupled with the attending circumstances in the case. We have also sifted the cross-examination which is quite thorough and lengthy. 11. Before embarking upon the merit and demerit of the prosecution case, it would be useful to observe that in a case where the conviction of the appellants hinges on the sole testimony of an injured witness, the court has to guard itself against accepting the evidence without thorough scrutiny. As stated above, we have very carefully gone through his evidence and we are fully satisfied that as far as Naresh, Baleshwar and Sia Ram accused are concerned, the witness has given a truthful account with regard to their participation in the occurrence. As stated above, we have very carefully gone through his evidence and we are fully satisfied that as far as Naresh, Baleshwar and Sia Ram accused are concerned, the witness has given a truthful account with regard to their participation in the occurrence. The defence has not been able to cull out any material discrepancy that may render his testimony tinged with suspicion. The learned counsel for the appellants at this stage contended that Baleshwar accused was armed with Palkati while no incised injury was found to have been sustained by the deceased on his person or even by Kishan Lal who has been injured in the occurrence. This is of course a point warranting our pointed attention. We have examined this point and upon scrutiny of the testimony of Kishan Lal, it transpires that Kishan Lal had also stated that Baleshwar accused had used his weapon from reverse side. In this view of the testimony of the witnesses, the possibility that Palkati was used by accused Baleshwar at its back end, cannot be ruled out altogether. To arrive at a just conclusion it would be useful to take into consideration the other circumstances as well. It may be noted that Kishan Lal is the real brother of Sia Ram and Bishambhar and by the same token, he is the real uncle of accused Naresh and Baleshwar. It has been vehemently contended by the learned counsel that the participation of Bishambhar accused in the occurrence is in the ring of grave doubts inasmuch as that Bishambhar accused is not attributed to have inflicted any injuries on the persons of any of the victims. Rather, he has been shown empty handed the only role assigned to Bishambhar accused is that of exhortation to the other accused persons for assaulting the victims. The learned counsel in order to prove the innocence of accused Bishambhar pointed out that the name of Bishambhar even does not figure in the First Information Report telephonically lodged with the Police of P. S. Purqazi by Durga Prasad PW 3. We have bestowed our thoughtful consideration to this facet and upon a careful consideration of the facts and attending circumstances we feel that the argument of the learned counsel in so far as accused Bishambhar is concerned, is loaded with substance. We have bestowed our thoughtful consideration to this facet and upon a careful consideration of the facts and attending circumstances we feel that the argument of the learned counsel in so far as accused Bishambhar is concerned, is loaded with substance. As a matter of abundant caution, we are constrained to feel that case for extending benefit of doubt to accused Bishambar is amply made out. 12. On the next limb of his argument, the learned counsel for the appellant submitted that the offence in the instant case in the conspectus of the facts and attending circumstances, does not fall within the ambit of section 302 IPC and to lend substance to his argument, the learned counsel submitted that death appears to have resulted on account of single head injury which is seated at the right parietal region. In furtherance of his contention, the learned counsel also submitted that it is all the more difficult to pin-point as to who amongst the appellants had inflicted the deadly blow in the right temple of the deceased Jai Nand. In further support of his contention, the learned counsel also contended that the injury in the right temporal region also does not appear to be intended one and it appears that the appellants only wanted to teach a lesson for harvesting the sugarcane crop and it is a mere incident that the deceased succumbed on account of injuries on his person. As a bid to lend strength to his contention, the learned counsel has adverted to certain statement in the testimony of Kishan Lal. ON our part, we feel that it cannot safely be presumed that the appellants never intended to cause death to deceased Jai Nand but upon a consideration of categorical statement in the testimony of Kishan Lal, coupled with attending circumstances, the contention of the learned counsel cannot be jettisoned altogether. Hence we attribute the death of the deceased as mere incidental and not intentional and in this view of the matter, the offence cannot be stretched beyond the ambit of culpable homicide not amounting to murder and thus the conviction of the accused persons, namely, Naresh, Baleshwar and Sia Ram u/Sec. 302/34 IPC is liable to be altered to one u/Sec. 304 Part II IPC. The accused persons are also liable to be convicted u/Scc. 325/34 IPC 342/34 IPC and 201/34 IPC as recorded by the trial court. The accused persons are also liable to be convicted u/Scc. 325/34 IPC 342/34 IPC and 201/34 IPC as recorded by the trial court. As regards the sentences, the learned counsel for the appellants submitted that parties are siblings and a minor dispute over landed property developed and escalated into the instant occurrence. It is next submitted that the occurrence had taken place about 12 years back and during this period of 12 years, there has been no incident be speaking of hostility between the parties, it is next submitted by the learned counsel that appellants are the only members earning livelihood for their respective families and if after such a long lapse of time, they are re-committed to the prison for serving out the sentences, it would visit upon their families with frightful consequences so much so that their families may be on the brink of starvation. We have given our thoughtful consideration to this aspect of the matter and we feel that substantial justice would be done if the appellants are sentenced to pay fine and the period of imprisonment already undergone by them. 13. In the result, the appeal is partly allowed. The conviction of the appellants Naresh, Baleshwar and Sia Ram under section 302/34 IPC and sentences of life imprisonment awarded to them are set aside and instead each of them are convicted u/Sec. 304 part II IPC and they are sentenced to pay a fine of Rs. 2000/- each and the period of imprisonment already undergone by them. The conviction recorded against appellants Naresh, Baleshwar and Sia Ram u/Sec. 325/34, 342/34 and 201/34 IPC by the court below is affirmed. However, the sentences of two years R. I. six month's R. I. and three years' R. I. under the aforesaid sections are set aside. Instead they are sentenced to the period of imprisonment already undergone by them. Appellants Naresh, Baleshwar and Sia Ram are allowed one month's time to deposit the fine in the court of C. J. M. Muzaffarnagar from the date of the receipt of the record in the court below. In default of payment of fine, all the appellants shall undergo R. I. for one year each. Out of the fine realised, a sum of Rs. 5000/- shall be disbursed to injured Kishan Lal PW 1 as compensation u/Sec. 357 CrPC and the remaining sum of Rs. In default of payment of fine, all the appellants shall undergo R. I. for one year each. Out of the fine realised, a sum of Rs. 5000/- shall be disbursed to injured Kishan Lal PW 1 as compensation u/Sec. 357 CrPC and the remaining sum of Rs. 1000/- shall go to the State exchequer. 14. Appellant Bishambhar is given benefit of doubt and in the result, he is acquitted.