JUDGMENT 1. - The above mentioned two appeals arise out of the same judgment dated 13.11.1978 pronounced by the learned Sessions Judge, Sri Ganganagar and therefore they have been heard together and are being disposed of by this common judgment. 2. The learned Sessions Judge by the impugned judgment convicted Kishna Ram and Kirta Ram under section 325 read/with Section 34, Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for three years. He has acquitted all the four accused Madha Ram, Kishna Ram, Narsi Ram and Kirta Ram under/section. 302 Indian Penal Code The State has preferred appeal under section 378, Criminal Procedure Code against acquittal recorded by the learned Sessions Judge. The two accused have filed appeal against their conviction. By the order dated 26.2.1989 this Court granted leave to appeal against acquittal in respect of all the four accused persons. 3. The case relates to an occurrence which took place on 9.6.1977 at about 11.00 p.m. The prosecution case was that deceased Tulsa was going towards his thrasher ground (Khala) when Balraj (PW 13) called him to his "Khala". There Mani Ram, Ramu, Haru and the four accused were arranging the fodder. On reaching the "Khala", Tulsa asked the accused persons, who are his close relations, as in favour of which party they would cast their vote. On their saying that they would vote for the Janata Party, Tulsa asked them that if they did so, they would not get the land. Abuses were hurled from both the sides. Balraj (PW 13) told them to move out of the "Khala" and Prithvi Raj (PW 14) took Tulsa Ram from there yet abuses were continued to be hurled by them. The accused were having "Tangliyas" and "Chosangis" is their hands. It is said that they gave beatings to Tulsa, who fell down in the way. The FIR of the occurrence was lodged by Harp (PW 6) at 3.00 a.m. in the night on which a case under section 307 was registered. Tulsa died next evening and therefore, Section. 302 IPC was also added. After completion of the investigation, the police challaned the four accused persons. 4. The FIR of the occurrence was lodged by Harp (PW 6) at 3.00 a.m. in the night on which a case under section 307 was registered. Tulsa died next evening and therefore, Section. 302 IPC was also added. After completion of the investigation, the police challaned the four accused persons. 4. The prosecution examined PW 1 Sriram, PW 2 Laxminarayan, PW 3 Rajpal Singh, PW 4 Mani Ram, PW 5 Shyopat Ram, PW 6 Harjira, PW 7 Gajan Singh, PW 8 Mani Ram s/o Lalu Ram, PW 9 Champa, PW 10 Dalip, PW 11 Dr. M.P. Agrawal, PW 12 Saroop Singh, PW 13 Balraj, PW 14 Prithvi Raj, PW 15 Dunilal and PW 16 Satya Prakash. Accused in their statements stated that the witnesses have given false statements because of enmity. Kirta Ram, accused came with the case that they were doing work in their "Khala" where Tulsa Ram, who was drunk, came there having "Tangli" in his hand and forced them to vote in favour of Congress and when they refused, he started abusing them and therefore they told him to go away. However, he continued to hurl abuses. He and Kishna told him not to do so. Tulsa attacked them with "Tangli" and Kishna sustained injury on his hand. Therefore, he and Kishna raised their 'Tanglis" also and in that process Tulsa Ram sustained injuries. The accused did not lead evidence in defence. The learned Sessions Judge has held that Tulsa died on 6.10.1977 because of the injuries sustained by him on 9.6.1977 and that the injuries caused by accused Kishna and Kirta. He did not accept the defence case that the injuries were caused in the exercise of right of private defence. However, the learned Sessions Judge held that the offence proved against the accused was under section 325 Indian Penal Code only. 5. We have heard the arguments of the learned counsel for the accused and learned Public Prosecutor appearing for the State and perused the record of the case. 6. Shri Bohra contends that the trial Court has erred in acquitting the two accused persons. According to him, the prosecution witness ought to have been believed against all the four accused and they should have been convicted under section 302 Indian Penal Code 7. Mr. 6. Shri Bohra contends that the trial Court has erred in acquitting the two accused persons. According to him, the prosecution witness ought to have been believed against all the four accused and they should have been convicted under section 302 Indian Penal Code 7. Mr. Garg, on the other hand, tried to support the judgment of the trial Court and submitted that the accused have already remained in custody for about 19 months and the period already undergone should be considered to be sufficient. 8. We have given the matter our thoughtful consideration. Dr. M.K. Agrawal (PIA' 11) had performed autopsy of the body of Tulsa. He has deposed that the following 5 external injuries were found on the person of Tulsa. 1. Lacerated wound (Vertical) with clotted 3" x 1/2" x bone deep on the dorsel aspect of middle one third of left arm. 2. Lacerated penetrating wound (oblique) 1" x ⅓" x bone deep on the dorsum medial aspect on the lower end of left forearm. On exploration of the wound there was a chip fracture of the lower end of left ulna under the wound. There was dark clotted blood. 3. Soft tissue swelling 41/2" x 33/4" on the right side of face in front and below the right pinna. On exploration of the side, fracture of the right mendible near its angle was seen. 4. Multiple coalased bruises (irregular) over 8" x 6" area on the left scapular region and left lateral aspect of the chest wall. 5. Multiple coalased bruises (irregular) over 14" x 6" area on the left glutaeal region and the dorsal aspect of the upper half of left thigh. He has then deposed that injuries No. 1, 4 and 5 were simple and injuries No. 2 and 3 were grievous and all the injuries were caused by blunt weapon. The doctor has deposed that on opening the body he found that there was a linear fracture of the occipital bone on right side in the posterior cranial fossa with intra cranial haemorrhage. The doctor has admitted that there was no corresponding external injury of the internal injury found on the occipital bone. Since no external injury was found on the skull, it cannot be accepted that in the occurrence the deceased had suffered head injury. The doctor has admitted that there was no corresponding external injury of the internal injury found on the occipital bone. Since no external injury was found on the skull, it cannot be accepted that in the occurrence the deceased had suffered head injury. The medical officer has not deposed that the five injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. In these circumstances, the learned Sessions Judge was perfectly justified in holding that it was neither a case of murder nor a case of culpable homicide not amounting to murder. 9. The prosecution had relied upon the direct evidence contained in the statements of PW 13 Balraj and PW 14 Prithvi Raj and also the dying declaration contained in the statements of PW 8 Maniram, PW 9 Champa and PW 10 Dalip besides the recovery of the pieces of "Tangli". 10. As regards the dying declaration we have ourselves gone through the evidence of PW 8 Maniram, PW 9 Champa and PW 10 Dalip and we do not find that the approach of the learned Sessions Judge was in any way incorrect. Champa has admitted that she had not deposed before the police regarding this extra-judicial confession when the police first met her. There are discrepancies in the statements of 3 witnesses on the point of extra-judicial confession. The learned Sessions Judge has rightly disbelieved these witnesses. 11. Coming to the eye-witness account given by Balraj (PW 13) and Prithvi Raj (PW 14), it may be stated that according to the Balraj only two accused Kishna and Kirta had given beatings to Tulsa. Of course, Balraj has admitted that two other accused Narsi Ram and Madha Ram were also standing there having "Tanglis" in their hands. However, it has come in the evidence that the accused persons were already doing work in the field and collecting the fodder. In these circumstances, it was natural for them to keep "Tanglis" in their hands. Since according to Balraj they did not take part in the occurrence of beatings, the learned Sessions Judge has rightly held that they have not committed any offence. PW 14 Prithvi Raj has deposed that all the four accused had caused blows to Tulsa Ram. However, in view of the categorical statement of Balraj, another eye-witness, the testimony of Prithvi Raj cannot be believed in this regard. PW 14 Prithvi Raj has deposed that all the four accused had caused blows to Tulsa Ram. However, in view of the categorical statement of Balraj, another eye-witness, the testimony of Prithvi Raj cannot be believed in this regard. It is relevant to state that according to Prithvi Raj, when he reached the spot, he found Tulsa Ram lying on the ground. He has further admitted that he could not say whether the accused caused one blow or even 5 blows. Thus, implicit reliance could not be placed on the statement of Prithvi Raj (PW 14). 12. That being so, the learned Sessions Judge has rightly found that only Kirta and Kishna had taken part in the occurrence and they had caused injuries to Tulsa. 13. The accused had set up the case of right of private defence. However, no injury was found on the person of the accused Kishna when he was arrested. It may be that he had some mark of injury. That does not prove that Kishna had sustained injury in the occurrence in which Tulsa was given beatings. The learned Sessions Judge has rightly disbelieved the defence case of right of private defence. 14. It appears that the occurrence had taken place all of a sudden when Tulsa forced the two accused persons who were none else then his close relation to vote for the Congress and the accused insisted that they would vote for Jata Party. It is in evidence that Tulsa had showered abuses even concerning the mother and sister of the accused persons. The accused were having "Tanglis" to do the work in the field. When they inflicted blows to Tulsa it has to be found that they had voluntarily caused hurt to Tulsa. Two injuries were found to be of grievous nature and therefore, both the accused have been rightly convicted under section 325 read with Section 34 of Indian Penal Code. 15. Coming to the sentence part, it is on record that both the accused have undergone the imprisonment of about 19 months. The occurrence had taken place 19 years ago. The accused were 35 and 40 years of age at the time, their statements were recorded in the year 1979, are now about 55 years of age. 15. Coming to the sentence part, it is on record that both the accused have undergone the imprisonment of about 19 months. The occurrence had taken place 19 years ago. The accused were 35 and 40 years of age at the time, their statements were recorded in the year 1979, are now about 55 years of age. Keeping all the facts and circumstances of the case, we think that the sentence already undergone by them and a sentence of fine of Rs. 5,000/- shall meet the ends of justice. 16. Consequently, we find no merit in the Appeal No. 107/79 preferred by the State, which is hereby dismissed. 17. Appeal No. 22/79 preferred by Kirta and Kishna is partly allowed. While maintaining their conviction under section 325 read with Section 34 Indian Penal Code the sentence of imprisonment is reduced to the period already undergone. They are further sentenced to pay a fine of Rs. 5,000/- each. In default of payment of fine, each of them shall undergo simple imprisonment for 3 months. Amount of fine, if realised, shall be given to the legal representatives of Tulsa.Appeal partly allowed and State appeal rejected. *******