JUDGMENT 1. 1. Both the accused - appellants were charged and tried for the offences under Section 302 Indian Penal Code and, in the alternative, under Section 302/34 Indian Penal Code and Section 323 Indian Penal Code for committing murder of Ram Narain, real brother of appellant No. 1 Kanhaiya Lal. On conclusion of trial, the learned Sessions Judge, Jaipur District. Jaipur, wide his judgment dated 18th December, 1980 convicted the appellants under Section 302 Indian Penal Code and in the alternative under Section 302/34 Indian Penal Code and sentenced them to life imprisonment and a fine of Rs. 300/- each, in default, three months' R.I. Both the appellants were also convicted under Section 323 Indian Penal Code and were sentenced for one year's simple imprisonment. Both the sentences were ordered to run concurrently. 2. Succulently stated, the facts of the case are that on 3rd January, 1980 at 11.45 p.m. Badri Narain (PW 14) lodged an oral report at Police Station Chaksu to the effect that in village Anandpur there is a well known as `New Well' fitted with a pumping set. Both, the complainant and accused party had share in this working well having 1 /3rd share and ⅔rd share respectively. Hence, as per agreement they used to take water from the well according to their rotation. The accused party used to draw water for two days while the complainant party used to draw water for four days in a week. It was stated that the complainant party was prevented from taking water from the well as the accused Kanhaiya Lal had removed the belt from the pumping set two days prior to the date of occurrence. On 3rd January, 1980 when Kanhaiya Lal tried to operate the pumping set, Ram Narain (deceased) obstructed him on the pretext that he was not allowed to take water on the last turn. This resulted in Kanhaiya Lal's using abusive language followed infliction of lathi blows on Ram Narain and Badri Narain and when his brother Ram Gopal came to intervene he too was also not spared. As a result of lathi beating Ram Narain and Badri Narain sustained injuries. During this "marpit" Radha Mohan and Ganesh were also present. This report was written in the Rojnamcha by Shri Virendra Singh which is marked as Ex. P-11 A. The injured were referred for medical examination. As a result of lathi beating Ram Narain and Badri Narain sustained injuries. During this "marpit" Radha Mohan and Ganesh were also present. This report was written in the Rojnamcha by Shri Virendra Singh which is marked as Ex. P-11 A. The injured were referred for medical examination. It has come in the evidence that the Medical Officer of Chaksu did not attend the deceased Ram Narain and referred to S.M.S. Hospital, Jaipur where he was examined by Dr. B.B.L. Goswami. The MLR of the deceased Ram Narain is Ex. P. 16. The doctor found the following injuries on the person of the deceased:- 1. Swelling 5 cm x 3 cm over Rt. temporal region. 2. Abrasion 2 cm x 1/2 cm over left frontal region. 3. Abrasion with contusion 5 cm x 3 cm over left hip. 4. Two parallel bruise 12 cm x 1/2 cm each in size and with 1 cm gap, obliquely placed on postiria lateral aspect Rt. thigh in middle ⅓rd part. 5. Two parallel bruise obliquely placed on the postiria lateral aspect of Rt. thigh 10 cm x 1/2 cm with 1 cm gap about 5 cm below the INO (4). 6. Two parallel bruise 8 cm x 1/2cm with 1 cm gap on the anterior aspect of Rt. thigh middle ⅓rd part. 7. Two parallel bruise 4 cm x 1/2 cm with 1 m gap on the anterior aspect of left thigh with deteriority. 8. Contusion on the anterior aspect of middle of left leg, size of 4cm x 3cm. 9. Lacerated wound 1/2 cm x 1/2 cm x multi deep on the anterior aspect right leg upper ⅓rd part. 10. Swelling 5 cm x 3 cm over postiria aspect of right forearm lower left portion. 11. Diffuse swelling left knee joint anteriority. 3. Ram Narain died on 4th January, 1980 at 1.00 p.m. at S.M.S. Hospital. On receiving of the information that Ram Narain died the Police registered the case under Section 302 IPC against the accused appellants and it started investigation. On 5th January, 1980 the Investigating Officer prepared the site plan which is marked as Ex. P-2. The post mortem on the dead body was conducted by Dr. B.B.L. Goswami who opined that the cause of death was shock brought about as the result of injuries with cumulative effect of head injury. The post mortem report is Ex. P. 17. On 5th January, 1980 the Investigating Officer prepared the site plan which is marked as Ex. P-2. The post mortem on the dead body was conducted by Dr. B.B.L. Goswami who opined that the cause of death was shock brought about as the result of injuries with cumulative effect of head injury. The post mortem report is Ex. P. 17. After investigation the police submitted charge-sheet against both the appellants and the case was committed for trial. Prosecution examined 22 witnesses and pleas of the accused were recorded. Ganesh in his plea stated that the complainant-party inflicted injuries on him for which he had already lodged a report with the Police Station, Chaksu. The accused also produced two witnesses in defence. 4. The learned counsel for the appellants submits that no case against the appellants has been made out. The appellants are innocent persons. The deceased and his sons were aggressive. According to the FIR lodged by Badri who is the son of deceased, it is apparent that on 3.1.1980 the Osra (turn) was of the accused-appellants for watering the fields from the pumping-set, but the deceased obstructed and on account of that the occurrence took place. He further submits that it has been admitted by Ram Gopal PW 11 who is the son of deceased that he gave a lathi blow on the head of accused Ganesh. In such circumstances, his argument is that if the appellants had inflicted injury on deceased Ram Narain or his son Badri it was done in their right of private defence of their person and property. There are several material contradictions in the statements of prosecution witnesses. According to the FIR, there was only one incident at the spot where the pumping-set is installed, but according to the statements of prosecution-witnesses there were two incidents. The first incident took place at the pumping set and the second incident took place in the way when the deceased and his son Ram Gopal were passing after the first incident. His submission is that there was only one incident. The second incident is concocted one after the death of Ram Narain. His last submission is that there is no evidence that the intention of the appellants was to cause murder of Ram Narain. In such circumstances, the appellants cannot be convicted under Section 302 IPC or under Section 302/34 IPC. His submission is that there was only one incident. The second incident is concocted one after the death of Ram Narain. His last submission is that there is no evidence that the intention of the appellants was to cause murder of Ram Narain. In such circumstances, the appellants cannot be convicted under Section 302 IPC or under Section 302/34 IPC. All the appellants are innocent and deserve to be acquitted. 5. On the other hand the learned Public Prosecutor Shri S.M. Poddar has supported the judgment of the learned Sessions Judge. His submission is that the prosecution has proved its case from the statement of eye-witnesses PW 11 Ram Gopal and PW 14 Badri Narain. The statements of the witnesses, who were also injured are supported from the statement of PW 20 Dr. B.B.L. Goswami and also from the MLR of Badri PW 5, MLR of deceased Ram Narain marked as Ex. P. 16, the post-mortem report Ex. P. 17 and from site plan Ex. P. 2. 6. We have considered the arguments advanced by the learned counsel for the parties and have also gone through the record. From the statement of PW 11 Ram Gopal who was 10 years of age at the time when his statement was recorded on 30.6.80, it appears that accused Ganesh sat on the chest of deceased Ram Narain and inflicted lathi blow on his chest. Kanha inflicted lathi blow on the feet and chest of the deceased. PW 14 Badri Narain stated that accused-appellants dragged the deceased Ram Narain, his brother and himself and, thereafter, inflicted injuries to them by fists. Ganesh inflicted lathi blow on his head. These statements are corroborated from the MLR of the deceased Ram Narain, MLR of PW 16 and statement of Dr. B.B.L. Goswami PW 20. From the statement of Dr. Goswami it appears that there was fracture of the sternum in middle and fracture of third to six ribs and ten to eleven ribs anteriorly on the left side of the deceased. The left lung was lacerated. Cause of death is shock brought about as the result of injuries with cumulative effect of head injury. In view of this, in our opinion Ram Narain died on account of injuries caused by the appellants, but the question remains as to what offence has been committed by the appellants. 7. The left lung was lacerated. Cause of death is shock brought about as the result of injuries with cumulative effect of head injury. In view of this, in our opinion Ram Narain died on account of injuries caused by the appellants, but the question remains as to what offence has been committed by the appellants. 7. There is nothing on record to show that the intention of the appellants was to cause death of Ram Narain or to cause such bodily injury which was likely to cause his death. But from the evidence of Dr. Goswami it has been established that deceased Ram Narain received grievous injury. This injury was caused by the appellant Kanhaiya Lal by inflicting lathi blow on the chest of the deceased. The appellant Ganesh caused simple injury on the deceased Ram Narain and Badri. 8. In the result, we allow this appeal in part, set aside the conviction of the appellants under Section 302 IPC or in the alternative under Section 302 IPC read with 34 IPC and convict the accused-appellant Kanhaiya Lal under Section 325 IPC & under Section 323 IPC, accused Ganesh under Section 325/34 IPC and 323 IPC. Looking to the circumstances of the case and particularly the fact that the offence was committed in the year 1980 and the appellants are facing mental agony since then, we award the sentence to them for the period already undergone by them and a fine of Rs. 2,500/- each, in default of payment of fine, to undergo one year's R.I. each. On the realisation of fine, it may be given to the legal heirs of the deceased Ram Narain. The appellants are on bail. Their bail bonds are cancelled. They need not surrender.Appeal Partly Allowed. *******