JUDGMENT 1. 1. The above mentioned two appeals have been directed against the judgment passed by the learned Sessions Judge, Pali dated 1.7.1981 whereby he convicted accused Saifal Khan under section 302 IPC and sentenced him to imprisonment for life and a fine of Rs. 500/- but acquitted the other accused persons Ishaq, Mohammed Hanif, Jamal, Smt. Kamla and Smt. Dhakhu of the offence under section 302 IPC. They were however convicted under section 325 read with Section 34 1PC and were let off on probation. The State through Appeal No. 54/82 has questioned the acquittal of the five accused persons under section 302 IPC; whereas accused Saifal Khan, Isahq, Mohd. Hanif and Jamal have challenged their conviction by preferring Appeal No. 444/81. Both the appeals are being disposed of by this judgment. 2. The case relates to an occurrence which took place on 8.3.1978 in the town of Pali. The prosecution case, in short, was that accused Saifal Khan used to visit the house of Dhania Bhambi situate in Sarvodaya Nagar, Pali. Deceased Wali Mohd. and other persons, Who were neighbours of the house used to object to the visit of Saifal Khan, as according to them, he had illicit relations with Kamla daughter of Dhania. It is alleged that on the day of occurrence Saifal Khan was spotted by Wali Mohd., going inside the house of Dhania. Wali Mohd. called Saifal Khan to come out of the house. The latter on coming out of the house of Dhania started abusing Wali Mohd. and even threw this shoe at him. There was some exchange of hot words. In the meantime, Dhakhu wife of Dhania and Kamla went to call the associates of Saifal Khan. After some time some 10 to 15 persons reached there and started giving beatings to the family members of Wali Mohd. Injuries were caused to Mubarak, Kamruddin, Hazra and Farida. One injury was also caused to Wali Mohd. The injured persons were shifted to the hospital. On a report lodged by Kamruddin, a case under sections 147, 148, 140, 307 & 452 IPC was registered at Police Station, Pali. Wali Mohd. succumbed to the injury and therefore Section 3021PC was added. Autopsy was held by Dr. R.C. Dinkar on 9.3.1978. After the completion of the usual investigation, a challan was filed against six persons. 3. On a report lodged by Kamruddin, a case under sections 147, 148, 140, 307 & 452 IPC was registered at Police Station, Pali. Wali Mohd. succumbed to the injury and therefore Section 3021PC was added. Autopsy was held by Dr. R.C. Dinkar on 9.3.1978. After the completion of the usual investigation, a challan was filed against six persons. 3. Charges under sections 302, 307, 325/34, 452 & 450 IPC were framed against the 4 male accused persons. Kamla and Dhakhu were charged for offence under section 302 read with 109 IPC. The accused pleaded not guilty. The prosecution examined 31 witnesses. Accused in their statements under section 313 Cr.P.C. denied the accusation. They examined 7 witnesses in defence. The learned Sessions Judge in the impugned judgment held that Wali Mohd. had met homicidal death. He further held that Mubarak, Kamrduddin, Hazra and Farida had also sustained injuries in that occurrence, at the hands of the accused. He, however, did not accept the prosecution version that all the accused had a common intention to cause the death of any of the persons. Holding that it was the individual act of accused Saifal Khan, when he caused fatal blow to Wali Mohd., the learned Sessions Judge convicted him under section 302 IPC. It was held that the common intention of accused persons was only to cause hurt. He, therefore, convicted the other accused under section 325 IPC with the aid of Section 341PC. 4. We have heard Mr. Garg learned counsel for accused persons and Mr. Upadhyaya learned Public Prosecutor appearing for the State. 5. The contention of Mr. Upadhyaya is that all the accused had gone to cause hurt to Wali Mohd. and others and, therefore, the trial Court ought to have convicted the other accused persons under section 302 IPC with the aid of Section 34 IPC. 6. On the other hand, Mr. Garg contends that the trial Court has considered the various circumstances to come to a conclusion that the common intention of the accused was only to give beatings and there is no material on record on which it can be held that all the accused had common intention to cause the death of any of the persons in the family of Chhail Khan. He, however, frankly concedes that by the evidence produced, it is established that Wali Mohd. He, however, frankly concedes that by the evidence produced, it is established that Wali Mohd. had sustained injury on his head at the hands of the accused, and he had died of that injury. His submissions is that accused Saifal Khan could not be convicted under section 302 IPC for the reason that the Medical Officer has not opined that the injury suffered by Wali Mohd. was sufficient in the ordinary course of nature to cause death and also because it is not proved that the injury was caused by Saifal Khan. According to him accused Saifal Khan can be convicted at the most under section 325 read with Section 34 IPC, as it is not clear on record as to who was the author of the injury of Wali Mohd. He, however, does not press the appeal of other three appellants Ishaq, Mohammed Hanif and Jamal. 7. We have carefully considered the arguments. The trial Court has noticed that the occurrence had taken place because of the visit of Saifal Khan to the house of Dhania. It was further noticed that as many as 15 persons had collected there but only three persons had taken part in the beating. It has come in evidence that prior to the coming of the other accused persons, there was brawl between Saifal Khan and Wali Mohd. and Saifal Khan was even given some beatings. He was even made to sit on the Chabutra. It is obvious that when other accused persons went there, their object was to get Saifal Khan free. Obviously the common intention of the accused persons was only to teach lesson to Wali Mohd. and his family members who object to the visit of Saifal Khan to the house of Kamla. It is further to be noticed that only one injury was caused to Wali Mohd. which fact is evident by the postmortem report. The Medical Officer who performed autopsy does not say that the injury was sufficient to cause death in the ordinary course of nature. Though assailants were many in number, yet only one injury was caused. It indicates that the accused had not intended to cause the death of Wali Mohd. In these circumstances, the trial Court was perfectly justified in holding that the intention of the assailants was only to give beatings to Wali Mohd. and his family members. Though assailants were many in number, yet only one injury was caused. It indicates that the accused had not intended to cause the death of Wali Mohd. In these circumstances, the trial Court was perfectly justified in holding that the intention of the assailants was only to give beatings to Wali Mohd. and his family members. There is no merit in this contention of Mr. Upadhyaya that the other accused persons ought to have been convicted under section 320 with the aid of Section 34 IPC. 8. Now we switch over to the appeal filed by the Saifal Khan. The question requires consideration is whether on the basis of the evidence produced on record it can be said with certainty that the injury to Wali Mohd. was caused by Saifal Khan. 9. The witnesses have given vague statements about the person, who had caused the injury to Wali Mohd. Smt. Puri in her examination chief states that accused Saifal Khan had inflicted a lathi blow to the head of Wali Mohd., but in her cross examination she clearly admits that she did not see accused causing injury to Wali Mohd. This witness had not stated in her police statement Ex. D/2 that accused Saifal Khan had caused the injury by a 'Danda' to Wali Mohd. PW5 Kamruddin sates in his examination chief that his mother, sister-in-law and Wali Mohd. had gone to the house of Tej Singh where accused Jamal had landed a blow by pipe to the legs of Wali Mohd. and at that time Saifal Khan had a 'Danda' in his hand. It is, thus, obvious that this witness does not say that Saifal Khan had caused any injury to Wali Mohd. If his statement is accepted as correct then Jamal had inflicted a blow to Wali Mohd. on his legs. However, that part of his statement is also not correct as no injury was found on the legs of Wali Mohd. PW 15 Smt. Hazra deposes that when Wali Mohd. asked the assailants not to beat the ladies, injuries were caused to his legs by accused Ishaq and Saifal Khan. She further states that Wali Mohd. was thrown on the ground after inflicting injuries and then Saifal Khan and Ishaq caused injuries to Wali Mohd. by the 'Danda' of 'Geti'. She then says that Ishaq caused injuries by a lathi to Wali Mohd. She further states that Wali Mohd. was thrown on the ground after inflicting injuries and then Saifal Khan and Ishaq caused injuries to Wali Mohd. by the 'Danda' of 'Geti'. She then says that Ishaq caused injuries by a lathi to Wali Mohd. on his back and legs. As already stated, only one injury was found on the person of Wali Mohd. Obviously this witness has given false statement when she says that number of injuries were caused to Wali Mohd. According to other witnesses Wall Mohd. had received head injury when he was at the roof of the house of Tej Singh, whereas as per statement of this witness, after Wali Mohd. was given beatings at the house of Tej Singh he was brought before this witness and injuries were caused to him there also. She also states that Ishaq had inflicted some 4-5 injuries to Wali Mohd. It is difficult to hold on the basis of her statement that the head injury suffered by Wall Mohd. was caused by Saifal Khan. PW17 Smt. Sayari deposes that when Wali Mohd. was in the house of Tej Singh, Saifal Khan had caused number of injuries by a 'Danda' to Wali Mohd. According to her injuries were caused to his hands and entire body. However, as already stated no injury was found on the person of Wali Mohd. except the head injury. It is obvious that the statement of this witness is false when she says that the accused had caused number of injuries to Wali Mohd. It may be that Wali Mohd. had suffered injury in that occurrence but by her testimony, it can not be said with certainty that the head injury was caused by Saifal Khan. PW18 Mubarak also sails on the same boat. He deposes that Hanif had inflicted lathi blows to the legs of Wali Mohd. whereby he fell down and thereafter Jamal, Ishaq, Hanif and Saifal Khan landed blows to Wali Mohd. The evidence of this witness obviously runs counter to the medical evidence and no reliance can be placed on his testimony. PW19 Farida is the widow of Wali Mohd. She deposes that three accused persons, except Saifal Khan, had caused injuries on the legs of her husband and therefore Wali Mohd. jumped from the wall and at that time Saifal Khan had caused injury to his head. PW19 Farida is the widow of Wali Mohd. She deposes that three accused persons, except Saifal Khan, had caused injuries on the legs of her husband and therefore Wali Mohd. jumped from the wall and at that time Saifal Khan had caused injury to his head. She then says that Saifal Khan had brought Wali Mohd. to her feet and thereafter caused injuries to his back, legs, stomach etc. Obviously, the testimony of this witness is inconsistent with the medical evidence, which indicates that this witness had also not seen as to who had caused the injury to Wali Mohd. In view of the medical evidence, no reliance can be placed on the testimony of Farida. 10. The other witnesses who were independent persons have not supported the prosecution story. In this view of the evidence, it is not possible to say with certainty that the only injury sustained by Wali Mohd. was caused by Saifal Khan. 11. However, there is ample evidence on record to hold that Wali Mohd. had suffered this injury in that occurrence. There is also clear evidence to this effect that Saifal Khan had also participated in the occurrence. When his other companions came, he also lifted a Danda from the house of Wali Mohd. and used it in the occurrence. He had thus shared the common intention with the other accused persons to cause injuries to Wali Mohd. and others. As already stated there is no clear evidence on record to hold that accused Saifal Khan had caused that injury. In the circumstances that the assailants had shared the common intention to give beatings to the family members of Wali Mohd. and accused Saifal Khan had taken part in the occurrence, he can be held guilty under section 325 read with Section 34 IPC only. His conviction under section 3021PC is liable to be vacated. 12. As a result of the foregoing discussions, we find no merit in the appeal preferred by the State which is hereby dismissed. There is force in the appeal preferred by accused Saifal Khan. The appeal is partly allowed. His conviction under section 302 IPC and sentence passed thereunder are set aside. Instead he is convicted under section 325 read with Section 34 IPC. Appeal of Ishaq, Mohammed Hanif and Jamal is dismissed as not pressed. 13. At this stage, Mr. Garg pointing out that the accuse. The appeal is partly allowed. His conviction under section 302 IPC and sentence passed thereunder are set aside. Instead he is convicted under section 325 read with Section 34 IPC. Appeal of Ishaq, Mohammed Hanif and Jamal is dismissed as not pressed. 13. At this stage, Mr. Garg pointing out that the accuse. d has already remained in custody for about four and half months, canvasses that the period already undergone may be considered sufficient in view of the fact that the occurrence had taken place way back in the year 1978. He submits that his client is prepared to pay compensation to the LRs of the victim. Taking all the facts and circumstances into consideration particularly the fact that the occurrence had taken place some 19 years ago, we are inclined to accept the submission of Mr. Garg. Accused Saifal Khan is sentenced to the period of imprisonment already undergone by him. We further direct that a sum of Rs. 10,000/- shall be paid by accused Saifal Khan to the LRs of deceased Wall Mohd. as compensation. This order is passed under section 357(3) Cr.P.C. Accused is allowed eight weeks time to deposit the amount of compensation.Appeal partly allowed. *******