JUDGMENT 1. - These two appeals one filed by the State of Rajasthan and the other filed by the accused-respondents arise out of the same judgment rendered in Sessions Case No. 22 of 1984 by the learned Sessions Judge, Churu on 22nd July, 1986 whereby the learned trial Court has held accused Lichhman Das, Bhanwara and Bajrang guilty of the offences under Section 304 part II read with Section 34 I.P.C. for the murder of Shri Hanuman Das and they have further been held guilty of the offences under Section 323 read with Section 34 I.P.C. for causing injuries to Smt. Savitri and Smt. Bhagwani and have been sentenced to seven years' rigorous imprisonment together with a fine of Rs. 500/- for the offences Under Section 304 P.II read with Section 34 I.P.C. and to a sentence of three months' R.I. together with a fine of Rs. 200/- for the offence under Section 323 read with Section 34 I.P.C. It has however acquitted accused Ram Kumar and Mst. Bakhtawari. 2. The State of Rajasthan has filed the appeal against this judgment firstly against the acquittal of Mst. Bakhtawari and Ramkumar and secondly against their acquittal from the offence under Section 302 read with Section 149 I.P.C. 3. However, the accused respondents have filed the appeal to set aside the conviction recorded against them as aforesaid. 4. The facts necessary to be noticed for the disposal of these appeals briefly stated are that late Shri Hanuman Das had some dispute with Lichhman Das, his uncle as regards the way to their field. On the fateful date i.e. 1.11.84 when he was returning from Ramu Ram's shop and was going towards his lane, he was accested in the way near the house of Lichhmandas by one Bhanwara. As soon as he was caught by accused Bhanwara, accused Ram Kumar and Mst. Bhagwani came there armed with lauiies and Lichhmandas came there armed with a 'barchhi' where as Lichhmandas's wife Bakhtawari came armed with a 'Jayee' and started beating Shri Hanumandas. On hearing his cries, his sister Smt. Savitri and his mother Smt. Bhagwati came there. Smt. Savitri fell on him and she too was beaten. Not only that, Smt. Bhagwati was also given a beating. It is alleged that one Ganesh Das father of Hanuman Das came there. On hearing his cries, his sister Smt. Savitri and his mother Smt. Bhagwati came there. Smt. Savitri fell on him and she too was beaten. Not only that, Smt. Bhagwati was also given a beating. It is alleged that one Ganesh Das father of Hanuman Das came there. It was then declared that another enemy has come and he should also be killed and it is alleged that certain people went behind him but they could not inflict injuries to him. Hanuman Das received as many as forty four injuries out of which only two injuries are by sharp weapon and remaining forty two injuries are blunt weapon injuries. One of the sharp weapon injuries has been received in between the left thumb and the index finger measuring 3" x 1/4" x ⅓" and other has been received on the middle of injury No. 32 i.e. on the lower part of the right arm measuring 3/4" x ⅛" x ⅛". It has been candidly admitted that no injury has been received from the 'Jayee' and there is no stab wound which could have been caused to the injured by the irem prongs of a Jayee. Smt. Savitri has received five blunt weapon injuries which are simple in nature whereas Smt. Bhagwati has received two simple injuries by blunt weapon. The injured were immediately shifted to the B.B. Hospital, Churu and from the hospital a telephone call was received by Jaswant Singh, Incharge of the Police Chowky that Hanuman Das has been admitted to the Hospital in an injured condition. Jaswant Singh thereupon went to the Hospital and recorded the statement of Hanumandas and that has formed the basis for the recording the F.I.R. marked as Ex. P.1. 5. After trial, the accused persons have been convicted and acquitted as aforesaid and hence these appeals. 6. Mr. S.S. Bhandawat, learned P.P. appearing for the State has submitted that the learned Sessions Judge has wrongly acquitted Mst. Bakhtawari and Ram Kumar. We are unable to accept his version so far as Mst. Bakhtawari is concerned. It is alleged that forty four injuries have been inflicted to Hanumandas, five injuries have been inflicted to Smt. Savitri and two injuries have been inflicted to Smt. Bhagwati. It is nobody's case that Mst. Bakhtawari and Ram Kumar. We are unable to accept his version so far as Mst. Bakhtawari is concerned. It is alleged that forty four injuries have been inflicted to Hanumandas, five injuries have been inflicted to Smt. Savitri and two injuries have been inflicted to Smt. Bhagwati. It is nobody's case that Mst. Bakhtawari used the 'Jayee' from its opposite side and no injury in the nature of stab wound has been caused to any injured and, therefore, participation of Smt. Bakhtawari in the incident is highly doubtful and, therefore, we agree with the learned trial Court that Mst. Bakhtawari has not taken part in the occurrence and has not inflicted any injury to any injured persons and consequently her acquittal has to be sustained. So far as accused Ram Kumar is concerned, not only Hanumandas whose statement was recorded by Jaswant Singh P.W. 2 and which has been treated as a dying declaration has involved Ramkumar but in addition to that P.W. 3 Smt. Savitri and P.W. 4 Mst. Bhagwati who are the injured witnesses as also P.W. 6 Dungar Ram and P.W. 7 Hardeva Ram have stated that accused Ram kumar took part in beating and he inflicted injuries to accused Hanumandas as also Smt. Savitri. Of course, P.W. 1 Ganesh Das has stated that accused Ramkumar has inflicted injury to Smt. Bhagwati but in the later part of the cross examination it is admitted by him that he has not seen the beating of Smt. Bhagwati. The learned Trial Court has observed that Smt. Bhagwati and Smt. Savitri have not stated that Ramkumar has given any beating to Smt. Bhagwati and Smt. Savitri That was a statement regarding Smt. Bhagwati and not regarding Smt. Savitri and, therefore, to that extent, it appears that the evidence has been misread. Accused Ramkumar was fully involved in the incident but it has been stated at the bar by Mr. Sandeep Mehta appearing for the accused-persons that Ramkumar has been murdered and to this effect, an affidavit of one Shri Omprakash has been filed and it is on record. This fact is not contreverted by the learned Public Prosecutor and, therefore, so far as accused Ramkumar is concerned, inspite of the fact that he was involved in the incident, the appeal against him abates. 7. It was next contended by Mr. This fact is not contreverted by the learned Public Prosecutor and, therefore, so far as accused Ramkumar is concerned, inspite of the fact that he was involved in the incident, the appeal against him abates. 7. It was next contended by Mr. Bhandawat that it was a case of murder and the accused persons have wrongly been held guilty of the offence under Section 304 part II read with Section 34 I.P.C. We are unable to accept this condention of Mr. S.S. Bhandawat. In this case, accused Lichhmandas was armed with a 'Barchhi' which was a sharp edged weapon and only two very small insignificant injuries have been inflicted by him on the non vital parts of the body. Had it been the intention of the accused to kill Hanumandas, Lichhmandas would certainly have used his 'Brachhi' in a more violent manner than what has been done. It has not been stated by the Doctor that any one injury was sufficient to cause the death of deceased Hanumandas. According to P.W.9 Shri B.L. Soni, it is the cumulative effect of the injuries which has been responsible for causing the death of Hanumandas. The major weapons of offence have been lathies and, therefore, keeping in view these facts and circumstances of the case we are firmly of the view that the learned lower Court was justified in taking a view that the accused persons knew that injuries caused are likely to cause the death of Hanumandas. It is not a case of intentional murder and, therefore, the accused persons have rightly been held guilty of the offences under Section 304 part II read with Section 34 I.P.C. It was next contended by Mr. Sandeep Mehta that in this case, accused respondents Lichhman Das, Bhanwara and Bajrang have been held guilty of the offences under Section 304 Part II read with Section 34 Indian Penal Code. Bhanwara and Bajranag have already served out their sentence and have now been released. So far as accused Lichhmandas is concerned, he has inflicted only two sharp weapon injuries out of forty four injuries that have been inflicted to deceased Hanumandas and these two injuries are simple in nature and have been inflicted on non vital parts of the body. Injury No. 32 is totally insignificant and trivial in nature. So far as accused Lichhmandas is concerned, he has inflicted only two sharp weapon injuries out of forty four injuries that have been inflicted to deceased Hanumandas and these two injuries are simple in nature and have been inflicted on non vital parts of the body. Injury No. 32 is totally insignificant and trivial in nature. Not only that, he was released on bail because his wife Smt. Bakhtawari and his son Ramkumar have been killed by the complainant side and one of the grand sons was in a critical position and, therefore he was released on bail to look after him. Keeping in view the nature of the injuries caused and the fact that so many persons of his family have been killed by the complainant side, he deserves sympathy and compassion in this old age and moreover he has already remained in custody from 4.11.84 to 19.9.86. In the facts and circumstances, of this case. No useful purpose will be served by sending him back to the custody and, therefore, by taking a compassionate view, his sentence should be reduced to the sentence already undergone argument has advanced that the conviction of the three convicted accused persons deserves to be set aside. From the evidence on record coupled with the dying declaration of deceased Hanumandas, it is clear that these three accused persons have rightly been held guilty of the aforesaid offences. 8. Mr. S.S. Bhandawat, learned P.P. has however submitted that the accused should be ordered to be serve 1 out the sentence as has been imposed against him. 9. We have bestowed our anxious consideration to the rival submissions made at the bar. In the peculiar facts and circumstances of this case where the family members of accused Lichhmandas have been killed after this incident and keeping in view the fact that he has only inflicted two trivial injuries which individually are not at all responsible for causing the death of deceased Hanmandas, it will meet the ends of justice if the accused Lichhmandas is sentenced to the period of his custody. 10. Consequently, the appeal filed by the State fails and is hereby dismissed. However, the appeal filed by the accused respondents is partly allowed. The conviction and sentence of accused Bhanwara, Lichhmandas and Bajrang are maintained. They have already served out their sentence and, therefore, the appeal filed by them almost has become infrutuous. 10. Consequently, the appeal filed by the State fails and is hereby dismissed. However, the appeal filed by the accused respondents is partly allowed. The conviction and sentence of accused Bhanwara, Lichhmandas and Bajrang are maintained. They have already served out their sentence and, therefore, the appeal filed by them almost has become infrutuous. So far as their conviction is concerned, it has rightly been recorded against them on the basis of the evidence on record accused Lichhmamdas his conviction and sentence recorded under Section 323 read with Section 34 Indian Penal Code is maintained. However the sentence imposed against him for the offence Under Section 304 part II read with Section 34 Indian Penal Code is recused to the sentence already undergone. Both the sentences are ordered to run concurrently. Since Lichhmandas is on bail, he need not surrender to his bail bonds. 11. Both the appeals stand disposed-of accordingly on merits.Appeal Partly Allowed. *******