VISHNU SAHAI, J. Through this appeal the 11 appellants namely Kali Charan, Ram Charan, Keshri, Jasi, Nanhkoo, Mangroo, Salik, Gurudin, Rampher, Baboo and Jairam Challenge the judgment and order dated 7-10-1980 passed by the II Additional Sessions Judge, Sultanpur in Sessions Trial No. 163 of 1979, whereby they have been convicted and sentenced in the manner stated hereinafter: (i) Under Section 304/149 I. P. C. to imprisonment for life. (ii) Under Section 324/149 I. P. C. to two years R. I. (iii) Under Section 323/149 I. P. C. to six months R. I. In addition appellants Nanhkoo and Jai Ram have been convicted for the offence punishable under Section 148 I. P. C and sentenced to two years R. I. and the remaining appellants under Section 147 I. P. C. to one years R. I. The Substantive sentences of the appellants have been ordered to run concurrently. It is pertinent to mention that during the pendency of the appeal appellant Shriram died and consequently vide an order dated 11-10-1996 passed by a Division Bench of this Court comprising of D. K. Trivedi and I. M. Quddusi JJ. the appeal preferred by him was directed to abate. 2. Shortly stated the prosecution case runs as under: At the time of the incident the informant, the deceased, witnesses Darshan, Panchu, Pancham, Ludur, Lutawan, Jasi and Bhukhali and appellants Kali Charan, Ram Charan, Keshri and Shriram were living in village Rampur, within the limits of Police Station Gosainganj, in District Sultanpur. At the time appellants Jasi, Nanhkoo, Mangroo, Salik, Gurudin, Rampher, Baboo and Jairam were living in village Mojapur hamlet of Barosa, which was situated contiguous to village Rampur. On 21-3-1978 at about 4 p. m. when the informants sister-in-law (wife of deceased Chhitanoo) was coming alongwith her pigs in the backyard of appellant Kali Charan appellants Kali Charan and Ram Charan abused her. An altercation ensued between the said appellants and informants sister-in-law. She later came home alongwith pigs. An hour later i. e. at 5 p. m. the same evening appellants Nanhkoo and Jai Ram armed with ballam and the remaining 10 appellants namely Kali Charan Ram Charan, Keshri, Shriram, Jasi, Mangroo, Salik, Gurudin, Rampher and Baboo armed with lathies came to the door of the deceased Chhitanoo. At that time Chhitanoo was ill and was lying at his door. The appellants started assaulting him. At that time Chhitanoo was ill and was lying at his door. The appellants started assaulting him. Hearing the cries of Chhitanoo and his wife, the informant, Bhukhali P. W. 3, Duma @ Dumman P. W. 4, Lutawan P. W. 5, Panchu, Pancham and Ludur and some others rushed to the place of the incident and intervened. Some of them also suffered injuries. At the time of leaving, the appellants damaged the house of Chhitanoo causing damage of Rs. 50/- to him. After the appellants had run away the informant Bansi alongwith the injured proceeded to Police Station Gosainganj the same day, where he lodged his First Information Report at 7 p. m. It is pertinent to mention that the distance between the place of incident and police station Gosainganj, was 4 miles. 3. The injuries of the victims Panchu, Dumma, Pancham, Chhitanoo, Ludur and Bansi were medically examined on the date of the incident itself i. e. , on 21-3-1978 at 9. 45 p. m. , 10 p. m. , 10. 10 p. m. , 10. 20 p. m. 10. 30 p. m. and 10. 45 p. m. respectively at the District Hospital Sultanpur by Dr. K. N. Singh P. W. 1. On the person of Panchoo doctor found the following injuries: (i) non scabbed fresh abrasions in area of 5 cm. x 4 cm. on the front of the middle part of the right fore arm. In the opinion of the doctor the said injury was simple and caused by friction. On the person of Dumma @ Dumman the doctor found the following injuries: (i) Traumatic swelling 7 cm. x circumference on right fore arm just above the wrist. (ii) Abrasion Fresh and non scabbed 2. 5 cm. x 1 cm. on the front of the left fore arm just above the wrist. In respect of injury No. 1 the doctor advised X-ray and injury No. 2 was simple. On the person of Pancham the doctor found the following injuries: (i) Punctured wound 0. 5 cm. x 0. 2 cm x. 8 cm on the back of the left fore arm 8 cm. below the elbow. Fresh bleeding is present. Shape is spindle shape. Margins are clean cut. In the opinion of the doctor the injuries were simple and caused by shape pointed object. 5 cm. x 0. 2 cm x. 8 cm on the back of the left fore arm 8 cm. below the elbow. Fresh bleeding is present. Shape is spindle shape. Margins are clean cut. In the opinion of the doctor the injuries were simple and caused by shape pointed object. On the person of Chhitanoo the doctor found the following injuries: (i) Traumatic swelling 3 cm. x 3 cm. on the right temporal region. Fresh bleeding from the right ear is present. (ii) Incised wound 1 cm. x 0. 3 cm. x skin deep on the back of the right fore arm. Fresh bleeding is present and there is diffuse swelling around the wound. Margins are clean cut and the shape is spindle. In respect of injury No. 1 the doctor advised X-ray and injury No. 2 was simple. On the person of Ludur the doctor found the following injuries:- (i) Lacerated wound 4 cm. x 0. 5 cm. x scalp deep on the left side of the head, 7 cm. above the ear. Fresh bleeding is present. (ii) Punctured wound 1 cm. x 0. 5 cm. x muscles deep on the back of the right fore arm, 3 cm. below the elbow. Margins are clean cut. (iii) Red contusion 10 cm. x 3 cm. on the back on right side in lower part. (iv) Abrasion 2 cm. x 1 cm on the left back just below the angle of the scapula fresh and non scabbed. In the opinion of the doctor injury No. (ii) was caused by sharp pointed object; injury Nos. (i) and (iii) were caused by blunt object; and injury No. (iv) was a result of friction. On the person of Bansi the doctor did not find any external injury but noted that he complained the pain. In his examination in chief Dr. K. N. Singh stated that the injures of the aforesaid victims could have been caused on 21-3- 1978 at 5 p. m. 4. The evidence of Dr. Surendra Verma P. W. 6 shows that on 26-3- 1978 at 2. 45 p. m. Chhitanoo succumbed to his injuries and the next day at 11 a. m. he performed the autopsy on his corpse and found on it following ante-mortem injuries: (1) Traumatic swelling 4 cm. x 3 cm. right temporal region skull deep clotted blood present in the right ear. 45 p. m. Chhitanoo succumbed to his injuries and the next day at 11 a. m. he performed the autopsy on his corpse and found on it following ante-mortem injuries: (1) Traumatic swelling 4 cm. x 3 cm. right temporal region skull deep clotted blood present in the right ear. (2) Partially healed wound with scab covering the wound, size of the wound being 1 cm x 0. 3 cm. x 0. 1 cm on the back of the right fore-arm 10 cm. above the wrist. As the healing had progressed to a great extent the margin of the wound is not clear. (3) Abrasion 1. 5 cm. x 1 cm. back of right fore-arm on the ulner aspect 4 cm. above breast. The abrasion was covered with a thin scab. Fracture of ulna-bone detected under the injury. On internal examination Dr. Verma found fissured fractures of right temporal bone and right parietal bone and also fracture of right side of middle cranial fossa. In the opinion of Dr. Verma the deceased died on account of ante- mortem injury No. 1 suffered by him and the said injury was sufficient in ordinary course of nature to cause the death. 5. The case was investigated in the usual manner by S. I. B. D. Singh P. W. 7 who after completing the investigation submitted the charge-sheet against the appellants. 6. The case was committed to the Court of Sessions in usual manner, where the appellants were charged for offences punishable under Sections 304, 149,324, 149, 323, 149, 148 and 147 I. P. C. They pleaded not guilty to the charges and claimed to be tried. During trial the prosecution in all examined seven witnesses. Four of them namely Bansi Bhukhali, Duinma and Lutawan P. Ws. 2, 3, 4 and 5 respectively were examined as eye witnesses. The learned trial Judge believed the evidence furnished by the said witnesses and convicted the appellants in the manner stated above. 7. We have heard learned Counsel for the parties. Mr. Mukul Rakesh learned Counsel for the appellants, true to his customary fairness, urged that he is only pressing this appeal on the question of offence made in relation of the assault on the deceased and sentence. 8. 7. We have heard learned Counsel for the parties. Mr. Mukul Rakesh learned Counsel for the appellants, true to his customary fairness, urged that he is only pressing this appeal on the question of offence made in relation of the assault on the deceased and sentence. 8. In our view the learned Counsel for the appellants has rightly not assailed the involvement of the appellants in the incident because the same is squarely established by the evidence furnished by the four eye witnesses named above two of whom namely Bansi P. W. 2 and Dumma @ Dumman P. W. 4 are injured. It is pertinent to mention that in paragraph 2 we have set out the prosecution story, on the basis of the recitals contained in the examination in chief of the said witnesses. As would become manifest there from appellants Nanku and Jairam assaulted the deceased and the injured witnesses with ballams and remaining assaulted them with lathies. We have earlier reproduced the injuries suffered by the deceased and the injured persons. Their perusal would show that they were caused by ballams and lathies. 9. Apart from medical evidence, assurance to the claim of the eye witnesses of having seen the incident, is lent by the circumstance that the FIR of the incident was lodged by Bansi P. W. 2 within two hours of the incident taking place and in the said FIR, the appellants are not only named but the essential features of the prosecution case have been furnished. 10. For the said reasons in our view the learned trial Judge acted correctly in holding that the involvement of the appellants in the incident was established. 11. We are also of the view that the learned trial Judge was justified in convicting the appellants for offences punishable under Section 324/249 I. P. C. and 323/149 I. P. C. and he was further justified in convicting appellants Nanhkoo and Jairam for the offence punishable under Section 148 I. P. C. and the remaining for that punishable under Section 147 I. P. C. 12. But in our view the learned trial Judge erred in convicting the appellants for the offence punishable under Section 304/149 I. P. C. and instead should have convicted them for the offence punishable under Section 325/149 I. P. C. We have seen that the incident occurred on a trivial reason; namely an hour before it an altercation took place between the sister-in-law of the informant (wife of deceased Chhitanoo) on one hand and appellants Kali Charan and Ram Charan on the other, because the former was taking her pigs from the backyard of the latter. We have also seen that although two of the appellants were armed with spears and ten with lathies but the post-mortem report shows that the deceased only suffered one traumatic swelling, one partially healed wound and one abrasion. This means at the highest only three of the appellants assaulted the deceased. It is pertinent to mention that the traumatic swelling was situated in the head region and the other two injuries on the right fore-arm. It is equally pertinent to mention that the deceased died on account of traumatic swelling beneath of which there were fissured fractures of right temporal bone, right parietal bones and cranial foosa. It is significant to point out that prosecution has failed to specify as to which of the ten appellants, who were armed with Lathis, were responsible for this injury. On the aforesaid facts, bearing in mind the fact that two appellants were armed with ballam but no punctured injury was inflicted on the deceased, only an offence punishable under Section 325/149 I. P. C. is made out against the appellants and no offence punishable under Section 304/149 I. P. C. would be made out against them. 13. The question which remains is of sentence. 13. The question which remains is of sentence. So far as the sentence for the offence punishable under Section 325//149 I. P. C. is concerned in our view bearing in mind the nature and number of injuries received by Chhitanoo and the fact that the prosecution has not been able to fix as to which out of the 10 appellants who were armed with lathies was responsible for the fatal traumatic swelling suffered by him and also the fact that the incident took place more than 24 years ago and there is nothing indicate that the appellants have any adverse criminal history a substantive sentence is not called for and a sentence of fine of Rs. 5,000/- on each of the appellants and 2 years S. I in default would meet the ends of justice. So far as the sentences of the appellants on the other counts are concerned, in our view, considering the fact that the appellants have been in jail for sometimes as under trials and convicts and the incident took place nearly 24 years ago they deserve to be reduced to the period already undergone by them. 14. In the result this appeal is partly allowed. Although we maintain the conviction of the appellants Kali Charan Ram Charan, Keshri, Jasi Nankhoo, Mangroo alias Sri Pal, Salik, Gurudin, Rampher, Baboo and Jairam for offences punishable under Sections 324/149 I. P. C. and 323/149 I. P. C. and that of the appellants Nanku and Jairam for the offence punishable under Section 148 I. P. C. and that of appellants Kali Charan, Ram Charan, Keshri, Jasi, Mangroo, Salik, Gurudin, Rampher and Baboo for the offence punishable under Section 147 I. P. C. , we reduce their sentence to the period already undergone by them. We, however, acquit the aforesaid 11 appellants for the offence punishable under Section 304/149 I. P. C. and set aside their convictions and sentence there under and instead convict them for the offence punishable under Section 325/149 I. P. C. and reduce their sentence to the period already undergone by them and direct each of them to pay a fine of Rs. 5000/-, in default to suffer two years S. I. The fine shall be deposited by the said appellants in the trail Court, within a period of six months from today. 5000/-, in default to suffer two years S. I. The fine shall be deposited by the said appellants in the trail Court, within a period of six months from today. It would be open for the trial Court to accept it on production of a certified copy of this judgment, which in case an application is made by Counsel for the parties, shall be issued within one month from today. The total fine realised from the 11 appellants shall be paid as compensation, under Section 357 Cr. P. C. to the widow of the deceased Chhitanoo and in case she is not alive to the legal heirs of Chhitanoo. As soon as the fine is deposited the trial Court shall inform the widow of the deceased the legal heirs of the deceased, as the case may be, about this compensation and shall pay the same at the earliest. As mentioned earlier the appeal preferred by the appellant Shri Ram has been ordered to abate vide order dated 11-10-1996 passed by a Division Bench of this Court comprising of D. K. Trivedi and I. M. Quddusi, JJ. In case the 11 appellants, named above do not pay the fine imposed by us within the stipulated time, they shall be taken into custody to serve out the sentence in default of payment of fine. Appeal partly allowed.