Judgment MOHINI KAPUR, J, J. ( 1 ) THE Sessions Judge, Dholpur by his judgment dated 31st July, 1989 has convicted and sentenced the above appellants as under: Ram Lakhan: U/s. 302, IPC- Imprisonment for life and a fine of Rs. 5,000. 00, in default three years rigorous imprisonment. Against this conviction and sentence all the appellants have preferred this appeal. The incident out of which this case arises occurred on 18th June, 1985 in village Singna ka Nagla, Majra Mamodhan at 5. 30 a. m. It may be mentioned here that deceased Kishan Singh, informant Chhiddu and accused Karan Singh and Ramji Lal are real brothers. Four sons of Karan Singh are also accused. Nemi Chandra is the son of informant Chhiddu and he is the injured person. An old dispute exists between the brothers and the sons of two of the brothers. All of them have their separate houses in a common Nohra. On the day in question i. e. on 18th June, 1985 deceased Kishan Singh was sweeping in his house when the accused persons came there and started putting Kattal (stone slabs) in front of the house of Kishan Singh. He asked the accused not to do so but then a quarrel started and the accused persons gave blows by lathies on the head of deceased Kishan Singh and PW/4 Nemi Chandra, who was also there was also beaten. This is the story in short. The report of the incident was registered on the basis of the Pcrcha Bayan of PW. 3 Chiddu, who was actually not an eye witness. He named as many as 11 persons in the Parcha Bayan Ex. P. 3 but later on gave an application Ex. D. 1 to the In-charge, Police station restricting his case to seven persons only. Gut of these seven persons, one Vinod was a child and he was tried by Children Court and this trial is restricted to the other six persons who alone were challenged by the police. After registering the case, investigation in the case was started. Site plan Ex. P. 4 was prepared and dead body of deceased Kishan Singh, who had died at the hospital was sent for post-mortem examination. According to the post mortem report, Ex. P. 6 the deceased had on lacerated wound U/s. 452, IPC - Three years rigorous imprisonment and fine of Rs. 1,00/- (One Hundred Only ). Site plan Ex. P. 4 was prepared and dead body of deceased Kishan Singh, who had died at the hospital was sent for post-mortem examination. According to the post mortem report, Ex. P. 6 the deceased had on lacerated wound U/s. 452, IPC - Three years rigorous imprisonment and fine of Rs. 1,00/- (One Hundred Only ). In default to under-go seven days imprisonment. Kailashi : U/s. 325, IPC Released under Section 4 read with Section 5 of the Probation of Offenders Act and directed to pay compensation of Rs. 2,000. 00 to the injured Nemi Chand. U/s. 452, IPC Released under Sections 4/5 of Probation of Offenders Act and directed to pay compensation of Rs. 100. 00 and Rs. 50/- as cost of proceedings. Karan Singh, Ramji Lal: U/s. 452, IPC Released under Section 4 of the Probation of Offenders Act. Sriniwas and Munna: U/s. 452, IPC Released under Section 4/5 of the Probation of Offenders Act and directed to pay compensation of Rs. 100/- each with Rs. 50/- each as costs of proceedings. round in shape 1 in diameter, bone deep with depressed fracture on left parietal bone and besides this, he had swelling 5 x 4 on left from to parietal region. The cause of death in the opinion of the Doctor was due to external brain injury and intracranial hemorrhage due to fracture of parietal (left) bone. Nemi Chand was examined for his injuries and according to the report Ex. p. 22 the following injuries were found on him: 1. Lacerated wound; 5 c. m. x 1. 5 c. m. x bone deep; on the scalp on the front to parietal region on the right side. ( 2 ) BLACK eye Rt. side which has occurred due to above injury. The injury No. 1 was found to be grievous as there was a fracture of the frontal bone. The learned Sessions Judge mainly relied upon the statement of PW. 4 Nemi Chand who was an eye witness and convicted the accused appellants as stated above. ( 3 ) THE learned counsel for the appellant has first of all contended that the evidence in this case is not sufficient to base the conviction of the appellants as the witnesses PW. 1 Ganga Prasad and PW. 2 Kanhaiya who were named as eye witnesses in. ( 3 ) THE learned counsel for the appellant has first of all contended that the evidence in this case is not sufficient to base the conviction of the appellants as the witnesses PW. 1 Ganga Prasad and PW. 2 Kanhaiya who were named as eye witnesses in. the First Information Report have not supported the prosecution case and as such, there is no independent evidence in the case. As for PW. 4 Nemi Chandra it is contended that his statement under Section 161, Cr. P. C. was recorded on 30th June, 1985 i. e. 12 days after the incident and as such his presence becomes doubtful. While referring to the statement of PW. 3 Chhiddu and PW. 4 Nemi Chandra it has been contended that in their earliest version they did not mention as to which of the accused inflicted blows on Kishan Singh and Nemi Chandra and now they have developed their story in order to attribute specific acts to certain accused. It is argued that it should not be believed that the actual blows were given by Ram Lakhan or Kailashi. In the alternative, the pica raised is that some arguments between the two sides resulted in minor pushing and hilling and in this, the deceased fell down on a stone and received injury which resulted in his death. The statement of PW. 6 Dr. Radhey Shyam Sharma has been referred in this connection wherein he has stated that injury No. 2 could be due to a fall. Even if the theory of fall is not believed then it is contended that the incident occurred without premeditation upon a sudden quarrel between two sides and only one person inflicted a blow and the case would fall under Exception 4 to Section 300, I. P. C. and as the accused appellant Ram Lakhan has already remained in custody for about 3-1/2 years, he should be released on the sentence already undergone. ( 4 ) WE may look into the evidence which has been produced in the case. According to Parcha Bayan Ex. P. 3 Kanhaiya and Ganga Prasad are said to be the persons who intervened in order to separate both the parties. However, both of them have stated that they did not see any beating with Kishan Singh and Nemi Chandra. Hence, their testimony is of no avail to the prosecution. PW. 3 Chhiddu and PW. According to Parcha Bayan Ex. P. 3 Kanhaiya and Ganga Prasad are said to be the persons who intervened in order to separate both the parties. However, both of them have stated that they did not see any beating with Kishan Singh and Nemi Chandra. Hence, their testimony is of no avail to the prosecution. PW. 3 Chhiddu and PW. 4 Nemi Chandra are the witnesses who have been relied upon by the learned Sessions Judge and we have gone through their evidence and it can be said that though there are certain Commissions in the statements under section 161, Cr. P. C. but their testimony cannot be disbelieved on account of this reason alone. Nemi Chandra is an injured witness and his statement under Section 161, Cr. P. C. was not recorded immediately after the incident which is not his fault. His testimony has to be examined on his own merits and if he is found to be a reliable witness then he cannot be disbelieved merely because the police recorded his statement after delay of 12 days. According to the statements of these two witnesses, the trouble started when the accused persons started keeping their Kattals in front of the house of deceased Kishan Singh. Naturally Kishan Singh asked them not to do so but they started abusing and some of the accused came with lathies and entered the Nohra, the door of which had been closed by Kishan Singh and Nemi Chandra. Ram Lakhan gave a lathi blow on the head of Kishan Singh and Kailashi inflicted a blow on Nemi Chandra. At least this version is constant in the testimony of these eyewitnesses and also in the statement of PW. 5 Smt. Janak Dulari, wife of Nemi Chandra. The presence of this witness is very natural as they lived in this particular Nohra and if there is any altercation or quarrel, they are likely to come out and see as to what is happening. The deceased Kishan Singh has two injuries on his head and even if one would have caused by fall there is no evidence to support this theory. Actually it was due to the blow given by Ram Lakhan that Kishan Singh received injuries and Nemi Chandra received the injury by blow given by Kailashi. All the accused had entered the Nohra of the deceased and thereafter the incident occurred. Actually it was due to the blow given by Ram Lakhan that Kishan Singh received injuries and Nemi Chandra received the injury by blow given by Kailashi. All the accused had entered the Nohra of the deceased and thereafter the incident occurred. Hence, all of them have been rightly convicted for the offence under Sections 452, I. P. C. As far as Kailashi is concerned, his role is also definite as he caused a grievous injury on the head of Nemi Chandra. His conviction under Section 325, I. P. C. is also proper. ( 5 ) IT remains to be seen as to what offence can be said to be made out against accused Ram Lakhan for the injuries given by him to deceased Kishan Singh. We have already noted the injuries of Kishan Singh as found at the time of postmortem examination. One is lacerated wound and the other is swelling. Both these injuries are on the head and have been attributed to appellant Ram Lakhan. According to Dr. Radhey Shyam Sharma, P. W. 6 the swelling was as a result of injury No. 1 but it could have been caused by a fall. Hence, the main injury which can be said to be inflicted by Ram Lakhan is the injury No. 1 for which the witnesses have specifically stated that he was the author of it. The circumstances in which the incident occurred relevant for purpose of deciding as to what offence can be said to be made but. The incident occurred because the accused persons started putting their kattal in front of the house of Kishan Singh. A quarrel ensued in which both the sides abused each other. There was no pre-meditation but it was a sudden fight in the heat of passion wherein the accused Ram Lakhan inflicted the blow on the head of Kishan Singh. He has not repeated the blows hence the case would fall under Exception 4 to Section 300, I. P. C. The weapon which was used by the appellant Ram Lakhan was a lathi and it can be said that the act done by him was done with a knowledge that it is likely to cause death even though he has no intention to cause death. In these circumstances, he has committed the offence under Section 304, Pan II, I. P. C. The appellant Ram Lakhan has already remained in jail for about 3-1/4 years and this period can be said to be adequate punishment for the offence under Section 304, Part II, I. P. C. ( 6 ) IN the result the appeal of appellants Karan Singh, Ramji Lal, Kailashi, Sriniwas and Munna Lal is dismissed as their conviction and sentence are proper. As far as the appellant Ram Lakhan is concerned, his appeal is partly allowed. His conviction under Section 302, I. P. C. is set aside and it is altered to conviction under Section 304, Part II, I. P. C. His conviction under Section 452, I. P. C. is proper and is maintained. He has remained in custody for over 3-1/2 years and this imprisonment is adequate sentence for both the above offence. He shall deposit of fine of Rs. 2,000. 00 (Rupees Two Thousand Only) on both these counts within a period of three months failing which he shall undergo rigorous imprisonment for three months. The jail authorities may be informed that he shall be released forthwith if not wanted in any, other case. Appeal partly allowed.