JUDGMENT 1. 1. The learned Addl. Sessions Judge No. 1, Bharatpur has convicted accused-appellant No. 1 Gurucharan Singh, under his judgment dated June 15, 1991 under section 302 IPC and has sentenced him to undergo life imprisonment and a fine of Rs. 2,000/- or in default of payment of fine to further undergo two years rigorous imprisonment. Accused appellant No. 2 Sheeshlal has been convicted under Section 302 IPC and has been sentenced to undergo 3 years rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine to further suffer 9 months rigorous imprisonment It has also been ordered by the Addl. Sessions Judge that in case fine is realised, out of which a sum of Rs. 1,000/- shall be given to Mallo injured. Alongwith the two appellants two other accused namely, Madanmohan @ Teetu and Surveer @ Pappu sons of the accused-appellant No. 1, Gurucharan were also tried. Haribabu was also tried, but all of them have been acquitted. 2. In the locality of Gopalgarh, Bharatpur City, the house of deceased Madan Lal and of the accused-appellants are situated. The position of the house of deceased Madan Lal has been shown in the site plan (Ex.P 2). The occurrence is said to have taken place in the Verandah which has been shown by the letter 'H'. The house adjoins the main street. On one side of the house of deceased Madan Lal, there was a vacant piece of land which belonged to one Shakuntala wife of Ram Swaroop DW 4. The litigation in between deceased Madan Lal and Shakuntala wife of Ram Swaroop DW 4 in respect of the aforesaid vacant piece of land was going on and deceased Madan Lal had lost in the Trial Court. He had filed an appeal which was pending in the Court of District Judge, Bharatpur. The case of the prosecution is that accused Gurucharan was also resident of Gopalgarh and he prevailed upon Shakuntala to sell the above vacant piece of land to Desraj son of Nemichand. Nemichand, it may be stated, was one of the accused persons and he is also said to have assaulted the deceased Madan Lal. The case of the prosecution is that accused Gurucharan was also resident of Gopalgarh and he prevailed upon Shakuntala to sell the above vacant piece of land to Desraj son of Nemichand. Nemichand, it may be stated, was one of the accused persons and he is also said to have assaulted the deceased Madan Lal. The case of the prosecution was that he too had caused two injuries to the deceased with a blunt weapon, but the learned Judge acquitted him disbelieving the case of the prosecution So far as the other persons are concerned, there is material on the record that before the date of the occurrence i.e 8-11-1988 at about 9.30 p.m., the deceased Madan Lal alongwith his wife Smt. Mallo PW 4 was standing in the Verandah of their house. There, first Gurucharan came and there was some exchange of words, Gurucharan returned to his house and thereafter alongwith other accused appellants he came to the house of the deceased Madan Lal in the Verandah. All of them were armed and so far as the accused-appellant Gurucharan is concerned he is stated to have been armed with a Pharsa and the other person who is stated to have been armed with Pharsa is other accused Sheeshlal. Others were armed with lathies. Accused-appellant No. 1 is said to have caused a blow on the head of the deceased Madan Lal and Nemi Chand, who has been acquitted, as per the case of the prosecution gave a blow by lathi on his chest Accused-appellant No. 2 Sheeshlal who is said to have been armed with a Pharsa gave a beating to Smt. Mallo PW 4 as well as Ganesh PW 1 who is a cousin of deceased Madan Lai. 3. Ganesh the father of Madan Lal who was also injured and was unconscious and Smt. Mallo PW 4 were admitted in general hospital, Bharatpur. No report of the incident was immediately lodged and it was on the next date i.e. 9-11-1988 at about 9 30 a.m. that ASI Murari Lal of the Police Outpost Mathura Gate, Bharatpur reached the General Hospital, Bharatpur and recorded the Parchabayan of PW 1. It is the FIR in the case on the basis of which a case was registered, by then Madan Lal had not died but later he died in the hospital. It is the FIR in the case on the basis of which a case was registered, by then Madan Lal had not died but later he died in the hospital. The injuries of Ganesh Lal, Smt. Mallo and of Madan Lal were examined and when Madan Lal died, postmortem was also conducted of his dead hody. 4. Dr. Ajay Kapur PW 11 examined injuries as well as he conducted post-mortem on the dead body of Madan Lai. Dr. Kapur found that there was only two external injuries on Madan Lal The first was an incised wound 8x2x1 cms. on his head left side and other was bruise 10x5 cms in front of the chest. In his opinion the injury No. 1 was caused by sharp edged weapon whereas other was by blunt weapon. On conduct of autopsy on the body of Madan Lal after his death Dr. Kapur found that the external injuries were the same but on opening the body he found that there was a fracture of left parital bone and fracture of 7 and 8 sebs. In the opinion of Doctor it was found that the deceased Madan Lal died as a result of severe blood loss due to the head injury No. 1 which in his opinion is sufficient to cause death. 5. On examining Mallo PW 4, Dr. found that there was incised wound on upper part of first phalanx of right hand. There were also 5 lacerated wounds and bruises on the other parts of the body. On X-ray of the left leg and skull, Dr. found that there was no fracture and on examining Ganesh 3 injuries were found on his person. The first was incised wound on the right hand and the other two were lacerated injuries, whereas the first was caused by sharp edged the others were by blunt weapon. On his X-ray also it was found that though there was no injury on his skull, there was evidence of a fracture of third metacarpal bone but no cullin had been seen. 6. The accused appellants were arrested alongwith others and charge sheet was filed and after trial whereas the accused appellants were convicted and sentenced others were acquitted. On his X-ray also it was found that though there was no injury on his skull, there was evidence of a fracture of third metacarpal bone but no cullin had been seen. 6. The accused appellants were arrested alongwith others and charge sheet was filed and after trial whereas the accused appellants were convicted and sentenced others were acquitted. The learned Sessions Judge, did not place reliance on the case of the prosecution that two accused appellants alongwith three others in all, were 5 members of an unlawful assembly or their common object was to cause death of Madan Lal or to cause injuries to him or others. Therefore, he did not place reliance on the case of the prosecution, so far as the participation of the other accused persons is concerned, and thereafter examined the case of individual accused out of which accused appellant had been found guilty of their own act From the defence of the accused appellant, it will appear from the trend of the cross-examination as well as from the statement under Section 313 Cr.PC recorded in the Trial Court that the appellant No. 1, Gurucharan was not even present and he claimed that he had gone to village Nangal Fua on the date of the incident and he received the information lateron through his son. So far as the other accused-appellant is concerned, he is also stated to have gone to Aligarh on three day's leave and on expiry of the leave he returned to Bharatpur. Other accused persons also pleaded ignorance about any occurrence. The accused persons examined the few witnesses in defence including PW 4 Ramswaroop who is the husband of Shankuntala from whom land had been purchased. 7. The first contention of the learned counsel for the accused-appellants is that the FIR Ex. P. 1 lodged at 9.30 a.m. on 9th November, 1988 and the occurrence had taken place on 8th November, 1988 at about 9.30 p.m. There is thus delay of almost about 12 hours and it has not been explained. According to the learned counsel, the police out-post was not far away from the place of the incident and even police station was in the city itself. According to the learned counsel, the police out-post was not far away from the place of the incident and even police station was in the city itself. The time was gained to discuss amongst themselves to decide as to whom the fatal injury to deceased Madan Lal should be attributed and because the deceased and Ganesh sons of PW 4 and other members of the family though or had an impression that Gurucharan, accused-appellant No. 1 was responsible for the sale of the land adjoining the house of Shri Madan Lal to Desraj son of Nemichand and because of this reason the only injury to Madan Lal was attributed to the appellant Gurucharan who otherwise had no enmity with the deceased or his sons. The learned counsel further contends that therefore, taking into consideration the delay of 12 hours in lodging the FIR, the case of the prosecution, in so far as it is alleged that the accused-appellant Gurucharan is the author of fatal injury to deceased Madan Lal should not be relied upon. Learned counsel also contended that the occurrence took place in the Verandah and a look at the site-plan Ex. P 2 will show that the Verandah is about 15 feet in length and there is material on record that the height of the Verandah was only 8 feet. The learned counsel, therefore, says that if as many as 5 persons were there and all entered the Verandah, and it has been disbelieved by the Sessions Judge that all of them were involved, then it was not possible for Ganesh PW 1 who is said to be at that time inside the room to have witnessed the occurrence. The learned counsel also referred to the statement of Ganesh and Smt. Mallo to press his point that they could not have been the actual witnesses of the occurrence and they came to the place of occurrence when the incident had taken place or at any rate the injury on the head of the deceased might have been inflicted by somebodyelse then the accused-appellant. According to the learned counsel, taking this alongwith the aforesaid delay and that in the FIR the case of the prosecution is wholly different, the story should not be relied upon It is lastly contended by the learned counsel that the genesis of the incident is shrouded in mistry and generally there must be some immediate and proximate cause of the incident which is said to have taken place at 9 30 pm. but the prosecution has not come out with the proximate and immediate cause and, therefore, also the prosecution story should not be relied upon. The learned P.P. has controverted all the aforesaid arguments. 8. After having heard the learned counsel for the accused-appellants and the learned P.P., we may state that so far as the delay is concerned it has been explained on the material on record The occurrence took place at 9.30 p.m. on 8th November, 1988. It will appear that Ganesh PW 1 and Mallo PW 4 were also injured and so far as Madan Lal is concerned his condition was serious. A look at his post-mortem report will show that the brain matter was coming out from his head injury and, therefore, in all probability, he must have been unconscious It was more important for the members of the family to attend to the injured rather than to immediately go to the police station to lodge the FIR. It is clear that it was the Dr. who had send a requisition to the police that three persons in injured condition had been admitted in the hospital. It has come on record that the police personnel had even reached during the night in the hospital but no steps were taken by the police personnel to record the statement of either Ganesh or of Mallo or of Purshottam who was also there in the hospital with the injuries and only when the ASI reached at 9.30 a m on 9th November, 1988 Ganesh P.W. 1 had made his statement. On these circumstances, merely delay in lodging the FIR, in our opinion, is not fatal to this case. There can be no dispute that the incident did take place in the Varan-dah of deceased Madan Lal as blood was found in the Verandah, it was seized by the SHO, was sent to the chemical examiner and a perusal of the report of the FSL Ex. There can be no dispute that the incident did take place in the Varan-dah of deceased Madan Lal as blood was found in the Verandah, it was seized by the SHO, was sent to the chemical examiner and a perusal of the report of the FSL Ex. P 42 will show that so far as the scrappings of blood from packet (A) are concerned, it were found stained with human blood. Thus we do not attach much importance to the aforesaid delay in lodging the FIR so far as the facts and circumstances of the case are concerned. 9. It may also be stated by us that the dispute in respect of the land adjoining to the house of Madan Lal was earlier with Shakuntala wife of Ramswaroop DW 4 and the aforesaid pieces of land had been purchased by Deshraj son of Nemi Chand who also was an accused, under registered sale-deed Ex. D 9A. Not only this, a compromise was arrived at between Deshraj and deceased Madan Lal even before the sale-deed Ex. D 9A, under which it was agreed that 3 ft. of land shall be left adjoining the house of Madal Lal and a wall will be constructed towards the house of Madan Lal and there is no dispute, rather even the prosecution admitted that the boundry wall leaving 3 feet land towards the house of Madan Lal was constructed before the occurrence Therefore, because, it was Deshraj who had purchased the land and he was the son of Nemi Chand if the accused wanted to ascribe the fatal injury to anybody normally that would have been attributed to Nemi Chand whose name was also mentioned in the FIR and not necessarily to Gurucharan, accused who, no doubt, appears to be the person at whose instance or interference or behest the land was sold by Shakuntala wife of Ramswaroop PW 4 to Deshraj son of Nemi Chand accused (acquitted) Ramswaroop PW 4 has stated that it was Gurucharan who was responsible for the transaction of the land in favour of Deshraj son of Nemi Chand accused and Madan Lal had complained to him and was angry against Gurucharan. Fie also stated that Madan Lal had told to Gurucharan that he (Gurucharan) should allow the land to be purchased by Madanlal otherwise it will not be good for him. A look at Ex. Fie also stated that Madan Lal had told to Gurucharan that he (Gurucharan) should allow the land to be purchased by Madanlal otherwise it will not be good for him. A look at Ex. D-9 and D-10 will show that Desraj had entered into an agreement with Madan Lal and it was prior to the registration of the sale-deed and, therefore, if any, dispute might have been there and Madan Lal might be willing to purchase the land it must have come to an end and, therefore, in our opinion, for the incident dated 8th November, 1988, the land dispute could not be and should not have been any reason or cause of the incident and there must have been some immediate or proximate cause. Ex D 8 is dated 30th June, 1988 and the sale-deed Ex. D 9 is dated 16th August, 1988 and the incident took place on 8th November, 1988. Therefore, as contended by the learned counsel that it was because of the aforesaid dispute and the impression of the deceased that accused Gurucharan was responsible for the purchase of the land, it was Gurucharan to whom the fatal injury is attributed does not appeal to us. At the same time the incident is said to have been taken place at 9.30 pm. on 8th November, 1988, the accused persons as well as the deceased all Jatavs by caste. They live nearby in the locality of Gopalgarh in the City of Bharatpur and there must have been some reason for the incident and we got some inclination from the statement of nonelse but of Mallo PW 4. PW 4 is the wife of deceased Madan Lal & looking to the time when incident took place i.e. at 9 30 p.m her presence in the house and in the Verandah alongwith her husband is natural. She is also injured and, therefore, the injury on her person also gives credence to her presence at the same time of the incidence She has stated that at 9.30 p.m. she and her husband Madan Lal were sitting in the Verandah and accused-appellant Gurucharan came there and told her husband and "Babuji" come with me to my house but he refused. That goes to show that Gurucharan had come to the deceased and requested him or asked him to come to his house. That goes to show that Gurucharan had come to the deceased and requested him or asked him to come to his house. Obviously because there must have been some incident immediately before why he came to the house, it is the duty of the prosecution to come out with the story but for the reasons known to the prosecution it has not come out with the real prosecution story and it is stated that all of a sudden the accused-appellants along with three others armed with deadly weapon came to the house of deceased Madan Lal and caused injuries without any exchange of words to deceased Madan Lal. This is against the normal human conduct but for that matter all that can be said is that the prosecution witnesses might be hiding something and might be concealing 1rue genesis of the incident, might be exaggerating, but taking into consideration that Mallo PW 4 whose presence cannot be doubted at the time of the incident, cannot be disbelieved and there is no reason in the accused appellant No. 1, Gurucharan would not have been the actual assailant of deceased Madan Lal and would not have given the blow on the head of the deceased with a Farsa, why the blow would have been attributed to him instead of Nemi Chand who is the father of Deshraj, who had purchased the land near the house of deceased Madan Lal, in reference to which a compromise had been arrived at between Desh Raj and Madan Lal as said earlier in the month of June, 1988. 10. The learned counsel has contended that Ganesh PW 1 in the FIR as well as in his statement has stated that he was inside the room and only on hearing of cries of his father, he came to the Verandah and, therefore, he could not have been seen the first blow being inflicted by the accused appellant Gurcharan on the head of deceased Madan Lal. We will again refer to the statement of PW 4 and it will appeal that 'Pal' is just adjoining the Verandah, the house does not appear to be a big one and, therefore, Ganesh could have witnessed the occurrence. He is also an injured, his presence cannot be doubted at that odd hour of the night inside in his own house. He is also an injured, his presence cannot be doubted at that odd hour of the night inside in his own house. Therefore, so far as his statement that it is accused Gurucharan who was armed with Farsa and caused an injury on the head of deceased Madan Lal, we fail to find any reason to disbelieve the statement. Smt. Mallo PW 4 as said earlier that she was in the Verandah, received injury and she too has stated that the accused Gurucharan gave a blow on the deceased Madan Lal. There is no reason to take a different view that is taken by the Addl. Sessions Judge that Gurucharan was the author of the first blow on the head of the deceased Madan Lal. We have said earlier that there is delay in lodging the FIR, but it is of no consequence in the view of the facts and circumstances of the case and for the reasons already stated and it is the case of the prosecution even that it was the accused Gurucharan who had caused injury on the head of the deceased Madan Lal by a Farsa. Thus the FIR corroborates the statement of Ganesh on whose statement we have placed reliance. Thus there appears to be no doubt in the case of the prosecution that it is Gurucharan who had inflicted first blow on the head of deceased Madan Lal. 11. Coming to the case of accused Sheeshlal, the allegations are that he caused injuries to Smt. Mallo PW 4 and Ganesh PW 1. They have stated that Sheeshlal caused grievous injury and on medical examination their statements stand corroborated. Thus it can be said that it is the accused-appellant No. 2 Sheeshlal who caused grievous injury and there is a sharp edged weapon injury and he has been convicted under Section 326 IPC. 12. The question is as to whether as held by the learned Sessions Judge against accused-appellant No 1, the offence under Section 302 IPC has been made out. We have already said earlier that the prosecution has not come out with the true genesis of the incident and for the reasons known to it, has tried to conceal some part and it has tried to conceal as to how the incident started and how it occurred. The accused-appellant Gurucharan is said to have inflicted one blow only by Farsa on the deceased. The accused-appellant Gurucharan is said to have inflicted one blow only by Farsa on the deceased. He had no enmity with the deceased prior to the occurrence. He did not repeat the the assault. So far as the other injury on the chest of deceased is concerned there being only two injuries one by sharp edged weapon attributed to the accused-appellant Gurucharan and the other on the chest, it can be said that the accused did not take any undue advantage, there might have been sudden flair up, the accused caused only single blow and did not repeat the assault and, therefore, the accused at the best can be said, in the facts and circumstances of the case, to have the knowledge that he is likely, by his act, to cause death and, therefore, committed an offence under Section 304 Part II of the IPC. 13. The accused was arrested on 13-11-1988 and it appears from the endorsement on the warrant of commitment of Jail after the sentence by the Sessions Judge that he has been in custody from 13-11-1988 to 10-4-1989. The Sessions Judge on 15th June 1991 had sent him to jail and he is in jail since then as the sentence was not suspended. It can, therefore, be said that the accused-appellant Gurucharan has remained in custody in all for about 15 months. An offence under Section 304 Part II is punishable with imprisonment which may extend to 10 years or with 8 years or with both and thus it is an offence which is punishable also with fine only In the facts and circumstances, we are of the opinion that the sentence already undergone by the accused appellant No. 1 with some increased fine will meet the ends of justice. So far as the other accused-appellant No 2 Sheeshlal is concerned, it appears that the accused had only remained in custody from 9th January, 1989 i.e. 6 days. He has been on bail and he has been convicted under Section 326 IPC The occurrence took place in the year 1988. The offence under Section 326 IPC is one, which is punishable with imprisonment and fine Taking into consideration the facts and circumstances, in our opinion, the sentence already undergone and enhanced fine shall also meet the ends of justice. 14. Consequently, we hereby partly allow this appeal. The offence under Section 326 IPC is one, which is punishable with imprisonment and fine Taking into consideration the facts and circumstances, in our opinion, the sentence already undergone and enhanced fine shall also meet the ends of justice. 14. Consequently, we hereby partly allow this appeal. We hereby convert the conviction of the accused-appellant, Gurucharan from Section 302 IPC to Section 304 Part II IPC and sentence him to undergo the imprisonment already under gone and a fine of Rs. 5,000/- and in default of payment of fine, he shall further undergo six months simple imprisonment. The conviction of accused appellant No. 2 under Section 326 IPC is maintained but his sentence is reduced to the sentence already undergone and with a fine of Rs. 3,000/- and in default of payment of fine he shall further undergo three months simple imprisonment. Out of the fine, if realised, from both the above persons, a sum of Rs. 3,000/- be paid to Smt. Mallo as compensation for the injuries received by her. The learned counsel for the appellants requests for one month's time for depositing the fine of Sheeshlal. So far as the Gurucharan, he shall be released forthwith as and when he deposits the amount of fine or if some part of fine as has already been deposited then the remaining one. We give one month's time to Sheeshlal to deposit the amount of fine failing which he shall surrender before the Trial Court to undergo the sentence awarded in default of payment of fine. On his failure the learned Trial Court shall take necessary steps.Appeal partly allowed. *******