JUDGMENT 1. - The appellants (Dhanraj @ Dhanpal and Birdhilal) were prosecuted for committing murder of one Raghuveer, on the night of 6-5-1983 near the house of Dava Gujar in village Gandawad, police station Itawa (Kota). The learned Sessions Judge convicted the appellants under Section 304-I read with Section 34 IPC and sentenced them to six years regorous imprisonment with fine of Rs. 500/- each, in default of the payment of fine to further undergo three months simple imprisonment. 2. Heard learned counsel for the parties, perused the impugned judgment. 3. Learned counsel for the appellants...that in this case the allegation against accused-appellants, as per the testimony of the eye witnesses, is that both the appellants inflicted blow on the head of deceased Raghuveer. There is no dispute that the deceased died due to the injuries sustained on his head. Learned counsel, therefore, submits that when the case of the prosecution against both the accused appellants is similar then both the appellants caused injuries on the head of the deceased but the prosecution has failed to explain as to who was the author of the fatal injury. In view of the circumstances learned counsel for the appellants submits that the appellants can be convicted only under Section 325 read with section 34 IPC and they cannot be convicted for the offence punishable under Section 304-I IPC. 4. A look at the record and the impugned judgment shows that in this case prosecution has utterly failed to prove the author of total injury. The offence against both the accused appellants is similar that they have caused injuries on the person of deceased. In view of the circumstance it is a case where author of fatal injury is not proved. 5. In these circumstances the accused-appellants can be convicted for a lesser offence as is observed in the following reported cases; Ram Lal v. Delhi Administration ( AIR 1972 SC 2462 ) and Devi Lal and another v. State of Raj. ( AIR 1971 SC 1444 ) . 6. Learned Public Prosecutor failed to point out the author of the fatal injury in this case. He merely submits that as per the statement of eye witnesses, appellant Birdhilal caught the deceased and appellant Dhanraj @ Dhanpal inflicted lathi blows, so in these circumstances appellant Dhanraj @ Dhanpal can be held responsible for the fatal injury. 6. Learned Public Prosecutor failed to point out the author of the fatal injury in this case. He merely submits that as per the statement of eye witnesses, appellant Birdhilal caught the deceased and appellant Dhanraj @ Dhanpal inflicted lathi blows, so in these circumstances appellant Dhanraj @ Dhanpal can be held responsible for the fatal injury. Learned Public Prosecutor, therefore, submits that the facts of the present case are not similar to the cases referred above. 7. I am unable to accept this contention of the learned Public Prosecutor because the case of the prosecution is that after sustaining injury at the hands of appellant Dhanraj, the deceased fell down and thereafter appellant Birdhilal caused injury on the person of deceased. In these circumstances it is thus clear that both the appellants caused injuries on the person of deceased that too on his head but it is not clear that who was the author of fatal injury so the cases cited above are fully applicable in the present case. So while following the principles laid down in the cases cited above, the appellants can be convicted only for the offence under Section 325 read with Section 34 IPC. 8. Learned counsel for the appellants submits that both the appellants remained in jail for about 18 months, so the sentence of the appellants be reduced for the period already undergone by them. 9. Consequently, this appeal is, therefore, partly allowed. The appellants are acquitted from the offence under Section 304-I IPC but they are convicted under Section 325 read with Section 34 IPC. The offence is alleged to have taken place in the year 1983 and at present appellants leading a settled life and it will create a lot of great hardship, in case, appellants are sent to jail to serve out the remaining impugned sentence. In these circumstances, ends of justice will be met if the appellants are sentenced for the period already undergone by them. So, the appellants are sentenced for the period already undergone by them. 10. Looking to the nature and peculiar circumstances of the case, I am of the opinion that amount of fine be enhanced and the appellants are sentenced to a fine of Rs. 1000/- (Rupees one thousand) each instead of 500/-. Learned counsel for the appellants submits that they have already deposited Rs. 500/- each before the trial Court. 10. Looking to the nature and peculiar circumstances of the case, I am of the opinion that amount of fine be enhanced and the appellants are sentenced to a fine of Rs. 1000/- (Rupees one thousand) each instead of 500/-. Learned counsel for the appellants submits that they have already deposited Rs. 500/- each before the trial Court. The remaining fine of Rs. 500/- is to be deposited by the appellants within a period of two months, failing which the appellants shall serve out the sentence of two months simple imprisonment. From the amount of fine is deposited, Rs. 1500/- shall be given to the nearest legal representatives of Raghuveer (deceased). The learned trial Courts, therefore, directed that the amount of Rs. 1500/- be given to the nearest legal representatives of deceased Raghuveer immediate after the amount of fine is deposited in the Court. *******