JUDGMENT 1. 1. This appeal is directed against the judgment dated 5th of August, 1977, passed by Sessions Judge, Balotra, by which the learned Sessions Judge' convicted the present appellants. The present four appellants alongwith 16 other accused persons were tried for committing the murder of one Mst. Barju and for inflicting injuries on the body of Mst. Chuni and Khata. Appellant Nagia was tried for offences under sections 147, 302 and 447 Indian Police Code while Narsingha, Lumbia and Mahadeva were tried for offences under sections 147, 302/149, 447 and 323 Indian Police Code. Other sixteen accused persons were also tried for the offences under sections 147, 302/149 and 447 Indian Police Code. The learned Sessions Judge after trial, convicted Narsinga, Moda, Mahadeva, Lumbia under section 325/149 and 147 Indian Police Code and awarded a sentence of imprisonment for 2 years under section 325/149 IPC under section 147 IPC 2 years' R.I. and under section 447 Indian Police Code 3' months simple imprisonment. All the sentences were to run concurrently. As accused Moda was less than 12 years of age. the learned Sessions Judge therefore, released him on probation. Appellant Nagia was convicted under sections 302, 147 and 447 Indian Police Code and was awarded a sentence of imprisonment for life under section 302 Indian Police Code, 2 years' R.I. under section 147 and 3 months' R.I. under section 447 Indian Police Code. The remaining 15 accused were acquitted by the learned Sessions Judge. Dissatisfied with the conviction and sentence passed by the learned Sessions Judge, Balotra, the appellants Nagia, Narsingha, Lumbia and Mahadeva preferred the present appeal while Moda did not file any appeal. 2. Brief facts of the prosecution case are that on 12th of Fagun of Samvat year 2033, corresponding to 2nd of March, 1977, 20-25 mavis of village Dabli, at about 10-11 A.M., went to the Dhani of Poosa and they were singing Fagun songs. Poosa's mother Mst. Barju asked them not to sing Fag songs and caught hold of the "Chang" which they were beating at that time. When they were asked not to sing the Fag song, they started quarrelling. Nagia who was carrying stick in his hand, inflicted injury with the stick on the head of Barju, who after receiving the injury fell down. Modia, Kishana, Mahadeva and Lumbia and Narsingha also inflicted injuries to Barju, Chuni and Khata. Mst. When they were asked not to sing the Fag song, they started quarrelling. Nagia who was carrying stick in his hand, inflicted injury with the stick on the head of Barju, who after receiving the injury fell down. Modia, Kishana, Mahadeva and Lumbia and Narsingha also inflicted injuries to Barju, Chuni and Khata. Mst. Chuni and Khata received simple injuries while Barju died of the injuries received by her. The prosecution in support of its case, examined nine witnesses. PW 1 Poosaram, PW 2 Mst. Lachhi, PW 3 Kheta and PW 4 Mst. Chuni are the eyewitnesses to the occurrence, while PW 5 Mohanlal is that doctor who conducted the postmortem of deceased Barju, and also examined Kheta and Mst. Chuni. Kheta received two simple injuries while Mst. Chuni also receiving one bruise on the wrist joint. PW 6 Ridmal is a witness to whom Poosaram narrated the story after the incident, PW 7 Jaisingh is the witness of recoveries and of various memos, which were prepared during the investigation. PW 6 Jasntsingh is the Head Constable, who was Incharge of PS Guda Malani, where the FIR was registered. He also conducted the investigation. PW 9 Padam singh is the Head Constable and Incharge, Police Station, who conducted the investigation. The accused denied the occurrence and their participation. They also produced DW 1 Vijay singh in their defence. 3. Now so far as the evidence of four eyewitnesses is concerned, PW 2 Poosaram, who is the son of the deceased Barju, PW 4 Kheta, who is brother of deceased Barju have been declared hostile as they have not supported the prosecution case. PW 2 Lachhi also does not support the prosecution case. There remains only the testimony of PW 4 Mst. Chuni, wife of Poosa, he has stated that on the 12th day of Fagun, her mother-in-law, was milching the she-buffalo, when 20-25 walvis of village Dabli came singing Fag songs. Her mother-in-law asked them not to sing Fag songs and also caught hold the "Chang" upon which Lumbia accused inflicted injury on her hand, Modia and Nagia inflicted injury on right hip. After receiving the injury, she fell down and became unconscious. The accused party again came at about 10 in the night. Nagia accused gave lathi injury on the temple of her mother-in-law Barju. After receiving the injury, she fell down and became unconscious. The accused party again came at about 10 in the night. Nagia accused gave lathi injury on the temple of her mother-in-law Barju. She has also stated that they were going to their house from Kotai and were singing Fag songs. Ravatia Luhar, was sent for asking them not to sing Fag songs. Her husband and Narsingha grappled and due to which "Chang" was broken and they went to their village after threatening him and, therefore, on account of that enmity, they returned in the Dhani and committed this incident. Smt. Chuni was cross-examined at length by the counsel for the accused. We have gone through the statement of Smt. Chuni. We do not find any infirmity in the statement of Smt. Chuni and we are of the opinion that the learned Sessions Judge was right in relying upon the testimony of PW 4 Smt. Chuni. Her presence at the scene of occurrence is most natural as the incident took place out side the house of the witness and her presence at her house at the time of the incident cannot be doubted. She is most natural witness. Now coming to the question what offence has been committed by these appellants. The learned Sessions Judge has convicted the appellants Nagia under section 402 IPC. According to PW 5 Dr. Mohanlal who conducted the post mortem examination of deceased Mst. Barju, following two injuries were found on the body of Smt. Barju : (1) Lacerated wound of 21/2" x 1/2" x 1/2" over the left side of the scalp 2" above the ear. Bone pieces and brain matter coming out of the wound. (2) Lacerated wound at the base of right index finger 1/2" x 1/4 in size. 4. The Doctor, in his statement, has merely opined that the cause of death was injury to the scalp which led to injury to brain matter and sudden death. He has not stated that injury received by deceased Baru was sufficient in the ordinary course of nature to cause death. Even according to the prosecution case, Nagia inflicted one injury and did not repeat any blow though at that time he was not obstructed by any other person. The incident also took place on a trivial matter on Holi festival when they were asked not to sing Fagun songs. Even according to the prosecution case, Nagia inflicted one injury and did not repeat any blow though at that time he was not obstructed by any other person. The incident also took place on a trivial matter on Holi festival when they were asked not to sing Fagun songs. The accused had no malice against the deceased. He has also no quarrel with the deceased and he did not make any attempt of giving second blow to the deceased at the time of the occurrence, and as such it could not be said that the intention of the accused was to cause this particular injury. In such circumstances, it cannot be said that the accused had any intention to cause that particular injury. Though the injury proved fatal, but in our view, the case of the appellant Nagia would not be covered by thirdly of section 300 IPC, as the intention to cause death or causing particular injury could not be imputed to him. However, the knowledge that he was likely to cause injury which was likely to cause death could, however, be inferred in the present case, and as such, in our view, the accused Nagia has committed the offence which, according to us, falls under section 304 part II Indian Police Code. and not under section 302 Indian Police Code. We, therefore, acquit appellant Nagia for offence under section 302 IPC and convict him under section. 304 Part II Indian Police Code. 5. Now so far as the conviction of the other three accused-appellants namely, Narsinga, Mahadeva and Lumbia, under section 325/149, 147 and 447 Indian Police Code is concerned, in our view, the findings of the learned Sessions Judge on that count cannot be said to be in any way perverse or illegal. There is evidence of PW 4 Mst. Chuni on the participation of these appellants, which fully supports the prosecution case and these accused persons have been rightly convicted by the learned Sessions Judge for these offences. The judgment of the learned Sessions Judge so far convicting these appellants does not require any interference. 6. Now we take up the question what sentence should be awarded to the appellants. The incident, in the present case, took place in the year 1977 and now we are in the year 1990, and more than 13 years have elapsed. The judgment of the learned Sessions Judge so far convicting these appellants does not require any interference. 6. Now we take up the question what sentence should be awarded to the appellants. The incident, in the present case, took place in the year 1977 and now we are in the year 1990, and more than 13 years have elapsed. All the four accused remained behind the bars for 153 days and it will not be proper to send these accused persons in jail after a lapse of 13 years. We, therefore' think it proper that instead of sending accused Narsingha, Lumbia and Mahadeva to jail again, we reduce the substantive sentence imposed on them to that of already undergone and a fine of Rs. 1000/- each and in default of payment of fine, the accused appellants Narsingha, Lumbia and Mahadeva will further to undergo six months' R.I. Accused appellants Nagia is convicted under section 304 part II IPC and sentenced to undergo the imprisonment already undergone and a fine of Rs. 5000/- and in default of payment of fine he has to undergone 2 years' R.I. 7. Consequently, we allow the appeal in part. Accused Nagia is acquitted of the offence under section 302 IPC and is convicted under section 304 Part II IPC and is awarded a sentence of imprisonment already undergone and a fine of Rs. 5000/- and in default of payment of fine to undergo 2 years' rigorous imprisonment. The conviction of accused Narsingha, Lumbia and Mahadeva is maintained, but their substantive sentence is reduced to that of already undergone and a fine of Rs. 1000/- is imposed on each of the accused and in default of payment of fine, they will have to undergo rigorous imprisonment for six months. The accused appellants are allowed three months' time to deposit the fine. Fine if so deposited may be paid to the legal heirs of deceased Barju.Appeal Partly Allowed. *******