R. N. RAY, J. ( 1 ) THIS criminal appeal has been preferred against the judgement and order dated 31-8-79 passed by Sri D. N. Sharma, III Additional District and Sessions Judge, Varanasi in S. T. No. 81/79, wherein he was pleased to convict Ram Viriksh, Ram Surat and Ram Gulam u/s. 147 I. P. C. and 323/149 I. P. C. and sentencing them each to R. I. for a period of one year and nine months respectively and convicted appellant Raj Karan u/s. 147 I. P. C. and 302 I. P. C. to undergo R. I. for one year and R. I. for life imprisonment respectively. ( 2 ) THE prosecution case in brief is that on 7-12-74, complainant Ram Agya, (deceased) Bhagwan Das, Moti, Yogendra and Mitthoo were on patrolling duty in the plantation and at about 1 P. M. they saw cattle of village Baigarh grazing in the plantation. They drove the cattle tres-passing on the plantation for taking them to the cattle-pound, Naugarh, where they were intercepted by the accused and several other persons of village Baigarh and all of them challenged, they were saying "maro SALO KO NA RAHAYGI BAS NA BAJAGI BASIIRI". At this saying accused Raj Karan struck lathi blow on the left side of the neck of the (deceased) Bhagwan Das and as a result of which he was injured and fell on the ground and thereafter the accused persons snatched the cattle and went away. ( 3 ) AFTER the occurrence, Bhagwan Das was taken Chakiya hospital and Mitthoo Ram and Ram Agya proceeded to Naugarh P. S. for lodging an F. I. R. Bhagwan Das was then taken to District hospital, Varanasi where he succumbed to his injury next day at 6. 10 A. M. On the day of occurrence at 6 A. M. complainant Ram Agya lodged a written report of the occurrence which is Ext-Ka-3, Head Moharrir Tarkeshwar Singh drew up the F. I. R. Ext-Ka-6 and registered a case in the general diary. Thereafter the investigation of the case was entrusted to S. I. Chhotey Lal Sumen. On 10-12-74 he recorded the statement of the complainant Ram Agya in the village Chikni and the same day he inspected the scene of occurrence and prepared a site plan which is Ext-Ka-4 and thereafter he was transferred. Thereafter the investigation of the case was entrusted to S. I. Chhotey Lal Sumen. On 10-12-74 he recorded the statement of the complainant Ram Agya in the village Chikni and the same day he inspected the scene of occurrence and prepared a site plan which is Ext-Ka-4 and thereafter he was transferred. The investigation of the case was thenentrusted to S. I. Raj Bahadur Singh (P. W. 3 ). On 25-3-76 he recorded the statements of Ganga Ram (P. W. 1), Moti (P. W. 2) and Yogendra and the same day on the completion of the investigation, charge-sheet Ext-ka-1 was submitted against the accused persons and the learned Magistrate took the cognizance u/s. 302/147/323/149 I. P. C. and committed the case to the Court of Sessions and thereafter the III Additional Sessions Judge, Varanasi upon holding the tria1 and on due hearing of both sides framed the charges at the trial against all the accused persons. ( 4 ) THE appellants pleaded not guilty and claimed to be tried. ( 5 ) DURING hearing of this appeal, the arguments in short was pin-pointed and it has been submitted that the case u/s. 147 I. P. C. have been proved against all the accused appellants but so far as the other appellants are concerned, there was no case u/s. 323 I. P. C. as only appellant No. 1 stuck a lathi blow on the person of Bhagwan Das (deceased) and there was no such evidence against any other accused appellants and they did anything in furtherance of unlawful assembly. It has been submitted that there was only one lathi blow which hit at the neck and left parietal bone radiating into the left temporal and occipital bones that as a result of which the deceased Bhagwan Das fell down and later on died. From the very conduct it appears that the appellants forcibly took away their cattles and the deceased Bhagwan Das was assaulted by a single blow of lathi, as such it was a case u/s. 304 Part II, I. P. C. and as it is presumed that before that assault, some altercation took place in between the parties. From the very conduct it appears that the appellants forcibly took away their cattles and the deceased Bhagwan Das was assaulted by a single blow of lathi, as such it was a case u/s. 304 Part II, I. P. C. and as it is presumed that before that assault, some altercation took place in between the parties. ( 6 ) LEARNED A. G. A. submitted that if it is believed that a number of miscreants shouted that maro SALO KO NA RAHAGI BAS NO BAJAGI BASURI, so there was a clear intention of finishing the victim and his party men. ( 7 ) DULY considered the submissions of both sides and perused the records carefully. So far as the statement of P. W. 5, Ram Agya is concerned, he had not stated as to who gave a challenge to the defacto complainant and his party-men that maro SALO KO NA RAHAGI BAS NA BAJAGI BASURI and whether due to that utterance, the appellants got excited and assaulted the deceased, Bhagwan Das. From the very conduct and the manner in which the alleged incident took place, it appears to us that the whole purpose of the miscreants was to take their cattle forcibly and as they were resisted in their object, Raj Karan assaulted the deceased by a lathi blow on the left side of the neck resulting fracture of parietal bone radiating into the left temporal and occipital bones so far as the evidence of Ganga Ram is concerned, he has stated that the appellant No. 1, Raj Karan shouted like that and that fact was not specifically stated in the F. I. R. and the statements under S. 161, Cr. P. C. There is no evidence that the other co-accused persons were the members of unlawful assembly and they were armed with deadly weapon with lathi etc. According to (P. W. 2), Moti that all the members of unlawful assembly shouted together that maro SALO KO NA RAHEGI BAS NA BAJAGI BASURI. So over this shouting, there are much contradiction between the statements of one witness and the statements of other. From the post mortem reports it is crystal clear that there was single assault on the left parietal bone, left temporal and occipital bones with separation of cornow suliva between frontal and parietal bones. So over this shouting, there are much contradiction between the statements of one witness and the statements of other. From the post mortem reports it is crystal clear that there was single assault on the left parietal bone, left temporal and occipital bones with separation of cornow suliva between frontal and parietal bones. ( 8 ) ON scrutiny of the records and on hearing of both sides at length, we are of the opinion, that the prosecution has failed to prove his case u/s. 323/149, I. P. C. against the appellants. We acquit appellants 2, 3 and 4 from the charge u/s. 323, I. P. C, read with Section 149, I. P. C. so, we do not find any substance and material against them as they did not make any overtact so as to bring home the charge u/s. 323/149, I. P. C. ( 9 ) IN the result, the appeal is partly allowed and we modify the order of sentence relying upon the guidelines as given in the decisions by Honble Apex Court as reported in (1990) 3 JT (SC) 323, Food Corporation of India Workers v. Food Corporation of India and also the decision of our Honble High Court as reported in 1991 All Cri C 230 : (1991 Cri LJ 2159) Kapoor Lal v. State of U. P. The order of sentence is thus modified herein under. The accused Ram Viriksh, Ram Surat and Ram Gulam are found guilty u/s. 147 I. P. C. only and as they have already suffered imprisonment for sometime, however, it is ordered that each of them should pay a fine of Rs. 1000. 00 and in default they should suffer R. I. for six months. Appellant Raj Karan has been in jail for about 15 months and he was released on bail by the courts order dated 14-9-1979. The case arises out of an incident dated 7-12-74. It is more than 19 years now when the appeal is finally being decided. In our opinion, it would be not very proper to send the accused appellant, Raj Karan, to jail to undergo R. I. and in the ends of justice, an amount of fine may be substituted. The case arises out of an incident dated 7-12-74. It is more than 19 years now when the appeal is finally being decided. In our opinion, it would be not very proper to send the accused appellant, Raj Karan, to jail to undergo R. I. and in the ends of justice, an amount of fine may be substituted. ( 10 ) IN this connection, we place our relianceupon the guidelines given by Honble Supreme Court in the judgements reported in (1973) 1 SC WR 897 : ( AIR 1973 SC 2127 ) (Jagdish Chandra v. State of Delhi ). In that decision the Lordships of Honble Supreme Court were pleased to hold inordinate delay in appellate court is a mitigating circumstances which favour soft attitude towards sentence of suitable cases. Since we have held appellant Raj Karan guilty of the offence under S. 304 Part II, I. P. C. and not u/s. 302 I P. C. , so in our opinion, to meet the ends of justice, we direct Raj Karan to pay a fine of Rs. 50,000. 00 for the offence u/s. 304 part II, I. P. C. and we thus modify the sentence awarded by the learned court below and we also direct that the fine if paid within a period of two months from this date and, then that should be given to the widow of the deceased and the heirs of the deceased. Appellants 2 to 4, if they pay a fine of Rs. 1000. 00 each within one month from this date, then they should not be taken into custody. However, we make it abundantly clear that the term of imprisonment already suffered or detention as under trial prison by the appellants 2, 4, be set off u/s. 428, Cr. P. C. If the appellant No. 1, Raj Karan, does not pay the fine of Rs. 50,000. 00 as directed above, then he shall suffer R. I. for 5 years and the period of detention as under trial prisoner will be set off against the term of sentence u/s. 428, Cr. P. C. If the appellant No. 1, Raj Karan, does not pay the fine of Rs. 50,000. 00 as directed above, then he shall suffer R. I. for 5 years and the period of detention as under trial prisoner will be set off against the term of sentence u/s. 428, Cr. P. C. if the fine as ordered in modification of sentence of R. I. for the offence under S. 147, I. P. C. is not paid by appellants 2 to 4, then bail bonds shall be forfeited and the learned court below shall proceed against the sureties according to law and the accused persons be taken into custody and be sent to jail to serve out the remaining period of sentence. If the accused appellant No. 1 Raj Karan, fails to pay the fine as ordered above within the stipulated period, then his bail bonds shall stand cancelled and the learned court below should proceed against him and the sureties according to law. ( 11 ) BE it noted that no separate sentence is awarded to appellant No. 1, Raj Karan, for the offence u/s. 147, I. P. C. Appeal partly allowed. .