JUDGMENT 1. - This appeal has been preferred against the judgment dated 29-7-1994 passed by the learned Additional Sessions Judge, Barmer whereby he convicted appellants Salim, Bhura, Matal Khan and Gorkha for the following offences and sentenced each one of them as under:- S. No. Offence Sentence 1. u/S. 304, Part-II/34, I.P.C. S.I. for 10 years' and a fine of Rs. 100/- in default of payment of fine to further undergo 15 days' S.I. 2. u/S. 325/34, I.P.C. 2 Years' S.I. and a fine of Rs.100/- in default of payment of fine to further undergo 15 days' S.I. 3. u/S. 324/34. I.P.C. S.I. for 1 year and a fine of Rs. 100/- in default of payment of fine to further undergo 15 days' S.I. 4. u/S. 323/34, I.P.C. S.I. for 6 months and a fine of Rs. 50/- in default of payment of fine to further undergo 7 days' S.I. 5. u/S. 447/34, I.P.C. S.I. for one month and a fine of Rs. 50/- in default of payment of fine to further undergo 7 days' S.I. He further directed that all the substantive sentences shall run concurrently. However, he acquitted 8 co-accused persons for the offences under Sections 148, 323, 324, 325, 302 read with 149, I.P.C. and the appellants for the offence under Section 302, read with 149, I.P.C. 2. Briefly the relevant facts necessary for the disposal of this appeal are that in the year 1965, Sachu son of Azim and Hindal son of Khangar, who were the cousins of Kamaal, the father of appellants Bhura and Matal Khan had migrated to Pakistan with the result that vide S.D.M. Barmer's order dated 29-4-1966 agricultural land-bearing Khasra No. 457 situated in village Mendusar now in Revenue village Pabusari was resumed by the State and a part of the said land bearing Khasra No. 457/2/1 measuring 75 bighas was allotted to Smt. Chandan Kanwar wife of deceased Deep Singh Rajput in the year 1978. One third-agricultural land of Khasra No. 457 continued in the Khatedari and possession of Kamaal and others Later on vide Mutation No. 832 dated 5-10-1984 the said 75 bigha of land was mutated, in her Gair Khatedari. Thereafter vide Mutation No. 902 dated 18-5-1989 (Ex. P.80), khatedari rights were conferred on Smt. Chandan Kanwar in respect of the said land. One third-agricultural land of Khasra No. 457 continued in the Khatedari and possession of Kamaal and others Later on vide Mutation No. 832 dated 5-10-1984 the said 75 bigha of land was mutated, in her Gair Khatedari. Thereafter vide Mutation No. 902 dated 18-5-1989 (Ex. P.80), khatedari rights were conferred on Smt. Chandan Kanwar in respect of the said land. It may be mentioned here that one third land of Khasra No. 457 remained in possession and khatedari of Kamaal and his co-sharers. However, Kamaal Khan along with Alladdin, the father of appellant Salim filed a declaratory suit against Smt. Chandan Kanwar in respect of the agricultural land including the disputed land of Khasra No. 45/2/1 in the Court of Assistant Collector, Barmer vide plaint dated 21-7-1980 Ex. D. 18. That suit was dismissed in default on 3-5-1982 vide order-sheet Ex. D. 31. It is alleged that on 15-9-1992 Kamaal Khan took his cows and she-goats into the field of Smt. Chandan Kanwar for grazing, which was driven out by P.W. 31 Balwant Singh son of deceased Deep Singh. On 16-9-1992 at about 1 p.m. deceased Deep Singh and his son P.W. 17 Lang Singh and P.W. 31 Balwant Singh were erecting a hut in their said field with the help of P.W. 29 Surta Meghwal. It is alleged that the present appellants along with 8 other accused persons, who have been acquitted by the learned trial Judge, after forming an unlawful assembly having a common object of committing murder of Deep Singh and others criminally trespassed in that field. Appellants Gorkha, Mital Khan and Bhura were armed with axes while others had lathies. It is the case of the prosecution that appellant Gorkha asked Deep Singh and his sons as to why they had driven out the cattle folk of Kamaal Khan the other day and, thereafter appellant Gorkha dealt an axe blow on the left ear (Kanpati) of Deep Singh. Appellant Salim gave a lathi blow on his head and thereafter Deep Singh fell down and all the assailants inflicted injuries to him. Balwant Singh and Lang Singh, who came to the rescue of Deep Singh were also dealt with by the assailants causing them multiple injuries. The alleged incident was also witnessed by P.W. 11 Chatar Singh, who was grazing his cattle in the nearby field and P.W. 13 Satidan Singh. Balwant Singh and Lang Singh, who came to the rescue of Deep Singh were also dealt with by the assailants causing them multiple injuries. The alleged incident was also witnessed by P.W. 11 Chatar Singh, who was grazing his cattle in the nearby field and P.W. 13 Satidan Singh. Injured Deep Singh, Balwant Singh and Lang Singh were immediately taken to Primary Health Centre. Gadra Road, where P.W. 12 Dr. Santosh Maheshwari examined their injuries and gave them the first aid. 3. Dr. Maheshwari found the following injuries on the person of Deep Singh:- 1. Lacerated wound 11/2 x 1" whole thickness of pinna just below mid of left ear; 2. Bruise 2" x 6" horizontal on the lower part of back; 3. Abrasion with bruise 2" x 3/4" with two abrasions of less than 1/2" on the middle side of the right parietal eminece. 4. Dr. Maheshwari also found the injuries on the persons of Balwant Singh and Lang Singh enumerated in their M.L.R.s Ex. P. 39 and Ex. P. 40 respectively. 5. Deep Singh was admitted in the Government Hospital, Barmer at 5 a.m. on 17-9-1992. He expired the same day at 6.20 a.m. due to the injuries sustained by him. 6. P.W. 22 Dr. M.M. Purohit, Medical Jurist conducted the Medico Legal Autopsy of Deep Singh and found the following injuries:- 1. Lacerated wound 3.5 cm. x 2.5 cm. extending to the base of middle part of left ear; 2. Bruise 4 cm. x 4 cm. on the left cheek near the left ear; 3. Incised wound 1.5 cm. x 0.5 cm. x 0.5 cm. on the left elbow; 4. Abrasion 2 cm. x 2 cm. near the injury No. 3; 5. Abrasion 1 cm. x 1 cm. on the middle side of right arm; at the lower end; 6. Abrasions 1 cm. x 1 cm. on the right elbow;- 7. Abrasions 1 cm. x 1 cm. on the left epigastrium; 8. Abrasion with haematoma 6 cm. x 4 cm. on the right parito occipteal region with fracture of right parietal bone. There was a haematoma on the right cranial cavity. There was collection of blood in the brain, which had turned pale. He also noticed the fracture of the 7th right side rib and another fracture of 7th & 8th ribs. Abrasion with haematoma 6 cm. x 4 cm. on the right parito occipteal region with fracture of right parietal bone. There was a haematoma on the right cranial cavity. There was collection of blood in the brain, which had turned pale. He also noticed the fracture of the 7th right side rib and another fracture of 7th & 8th ribs. He opined vide the post-mortem examination report Ex.P.77 that all the injuries were ante mortem in nature and the cause of death was fracture of right parietal bone. 7. Radiological examination revealed fracture of proximal phalanx of little finger of Balwant Singh and fracture of 5 meta-carpal bone and fracture of proximal phalanx of middle finger of Lang Singh. 8. Balwant Singh informed P.W. 5 Laxman Singh about the incident, who submitted a written report Ex. P.8 at Police Station, Gadra Road on 17-9-1992 at 0.30 a.m. In the F.I.R., the names of the appellants along with eight other assailants were mentioned and case under Sections 147, 148, 447, 323, 307 and 149, I.P.C. was registered. 9. After usual investigation the Investigation Officer submitted the challan against appellants and eight other co-accused persons for the offences under Sections 148,302,325, 324,323,447,147 and 149, I.P.C. in the Court of learned A.M.J.M. No. 1, Barmer, who committed the case to the learned Additional Sessions Judge, Barmer. 10. Appellant Salim was charged for the offences under Sections 148, 302, 323, 447; 324/149 and 325/149, I.P.C. while rest of the appellants and other accused persons were charged for the offences under Sections 147/ 148, 447, 323, 324/149,_325/149, 302/149, I.P.C. The appellants and others pleaded not guilty and claimed trial. The prosecution examined as many as 33 witnesses. The appellants denied the circumstances appearing against them in the prosecution evidence and in their defence examined 3 witnesses. The prosecution examined as many as 33 witnesses. The appellants denied the circumstances appearing against them in the prosecution evidence and in their defence examined 3 witnesses. After trial the learned Sessions Judge by his impugned judgment held that it was a case of over implication, that the presence and the participation of the appellants only was well established, whereas the presence and participation of 8 co-accused persons was not proved beyond reasonable doubt, that the prosecution failed to prove that all the accused persons had formed an unlawful assembly having a common object of committing the murder of Deep Singh and had inflicted simple and grievous injuries by blunt and sharp weapons to Deep Singh, Balwant Singh and Lang Singh and that the appellants had the knowledge that by inflicting a lathi blow on the head of Deep Singh, it was likely to cause his death. The learned Sessions Judge, therefore, instead of convicting the appellants for the offence under Section 302, 302/149, I.P.C. found them guilty for the offence under Section 304, Part-II/34, I.P.C. He also convicted them for the offences under Sections 148, 323, 324, 324 read with Section 34, I.P.C. and sentenced them in the manner indicated above. 11. I have heard Shri Moinuddin the learned Counsel for the appellants and Shri K.L. Thakur, the learned Public Prosecutor for the State and carefully perused the record of the lower Court. 12. Shri Moinuddin has rightly not challenged the legality, correctness and propriety of the conviction of the appellants for the offences under Sections 304, Part II/34, 325, 324, 323 read with 34 and 447, I.P.C. He has also not challenged the-quantum of sentence awarded to the appellants for the offences under Sections 325,324,323 read with 34 and under Section 447, I.P.C. His sole contention is that the quantum of punishment awarded to the appellants under Section 304, Part II I.P.C. is excessive keeping in view the facts and circumstances of this case, that the appellants are continuously under detention since 17-9-1992 and thus they have already undergone the sentence for a period of about two years and five months. He has, therefore, submitted that the sentence of the appellants for the said offence be reduced to the period already undergone by them. 13. He has, therefore, submitted that the sentence of the appellants for the said offence be reduced to the period already undergone by them. 13. On the other hand Shri K.L. Thakur has strenuously asserted that the appellants had criminally trespassed into the field of Smt. Chandan Kanwar wife of deceased Deep Singh and inflicted a fatal injury to Deep Singh and when his sons Balwant Singh and Lang Singh tried to rescue him the appellants also inflicted grievous and simple injuries to them. Therefore, in such circumstances, the quantum of punishment awarded to the appellants for the offence under Section 304, Part-II I.P.C. is hot excessive. 14. I have bestowed my thoughtful consideration to the rival submissions. In the F.I.R. besides the names of appellants, names of 8 co-accused persons were also mentioned as assailants. After the trial, the investigation was filed against 12 accused persons. However, the learned trial Judge scanning the testimony of injured P. W 17 Lang Singh, P.W. 31 Balwant Singh and eye-witnesses P.W. 11 Chatar Singh, P.W. 13 Satidan Singh, P.W. 18 Gordhan Singh and P.W. 29 Surta Meghwal (who were declared hostile), held that it was a case of over implication and exaggeration. Keeping in view the number of injuries sustained by deceased Deep Singh and injured Lang Singh and Balwant Singh, he rightly held that the presence and participation of appellants only was conclusively proved whereas the presence and participation of other 8 accused persons was not established beyond reasonable doubt. He accordingly acquitted the 8 accused persons by giving them benefit of doubt. The disputed agricultural land was admittedly in the khatedari of Sachu and Hindal, who were the co-sharers of Kamaal, the father of appellants Bhura and Matal Khan. Since they had migrated to Pakistan in 1965's action, their land was resumed to the State and the disputed land measuring 75 bighas was later on allotted to Smt. Chandan Kanwar the wife of deceased Deep Singh initially as Gair Khatedar in the year 1978 and thereafter in the year 1989 Khatedari rights were conferred on her. Kamaal and others had also filed a declaratory suit in respect of the disputed land against Smt. Chandan Kanwar and others in the Court of S.D.O., Barmer, which was dismissed in default. Thus, the appellants' party had a dispute in respect of the said field and grudge with Deep Singh and his sons. Kamaal and others had also filed a declaratory suit in respect of the disputed land against Smt. Chandan Kanwar and others in the Court of S.D.O., Barmer, which was dismissed in default. Thus, the appellants' party had a dispute in respect of the said field and grudge with Deep Singh and his sons. On the ill fated day Deep Singh, Balwant Singh and Lang Singh were erecting a hut in the said field, which was objected to by the appellants. The appellants armed with axes and lathies criminally trespassed in the said field. From the evidence recorded in this case it stands well proved that appellant Gorkha inflicted an axe blow causing a lacerated wound below mid of left ear of Deep Singh. This injury was caused by a sharp weapon, but was simple in nature as per testimony of P.W. 12 Dr. Santosh Maheshwari, who has proved his M.L.R. Ex. P. 38. Appellant Salim dealt a lathi blow on the head of Deep Singh which proved fatal, Dr. Maheshwari had noticed only three injuries on the person of Deep Singh. However, at the time of post-mortem examination some more injuries were also noticed by Dr. M.M. Purohit, Medical Jurist. 15. P.W. 19 Chunni Lal, Head Moharir has deposed that appellants Bhura, Matai Khan, Gorkha and Salim had also sustained injuries and for that he had sent a requisition to the Medical Officer, Gadra Road. However, the injury reports of the appellants were not produced by the prosecution. The appellants had no intention to commit the murder of Deep Singh. There was nothing on record to suggest that antecedent regarding conduct and character of the appellants was bad. Therefore, keeping in view the afore-mentioned peculiar and mitigating circumstances in this case, as also the nature of offence committed by the appellants, I am of the considered opinion that the quantum of punishment awarded to the appellants is positively excessive and disproportionate to the offences committed by the appellants. To my mind, the interest of justice will be served, if the sentence of the appellants for the offence under Section 304, Part II I.P.C. is reduced from ten years' S.I. to five years' S.I. 16. No other point was pressed before me. 17. To my mind, the interest of justice will be served, if the sentence of the appellants for the offence under Section 304, Part II I.P.C. is reduced from ten years' S.I. to five years' S.I. 16. No other point was pressed before me. 17. Hence for the reasons mentioned above, this appeal is partly allowed and while maintaining the conviction of the appellants for the offence under Section 304, Part II I.P.C. their sentence is reduced from ten years' S.I. to five years' S.I. with a fine of Rs. 100/- each and in default of payment of fine to further undergo S.I. for 15 days. The appeal against their conviction and sentence for the offences under Sections 325, 324, 323 read with 34 and 447, I.P.C. stands dismissed, the Jail authorities be informed accordingly.Appeal allowed partly. *******