JUDGMENT 1. 1. This appeal is directed against the judgment dated December 22, 1984 passed by learned Sessions Judge, Tonk whereby the appellants Moti and Rai Singh have been convicted for the offence under Section 304 Part (II) Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 200/-, in default of payment of fine to further undergo two months rigorous imprisonment. 2. The brief facts of the prosecution case are that PW8 - Malma S/o Shri Bhoja, by caste- Sansi, R/o Alipura, P.S. Mendwas (District Tonk) submitted a written report Ex.P12 to Satya Narain Pareek (PW12), SHO, Mendwas in Saadat Hospital, Tonk on September 15, 1983. PW12 Satya Narain Pareek had come there in connection with the investigation of a criminal case. It was interalia stated in the written report by Malma that today at about 8.00 A.M. his son Kaluram was in the field situated in the vicinity of village Alipura. Accused Mori and his son Rai Singh were grazing their buffaloes. As the buffaloes entered the field and started damaging the crop, Kaluram dropped them off and remonstranced Moti for the damage done to the crop. Moti became enraged and retorted that his buffaloes would be at liberty to graze freely and he would be taught a lesson. Thereafter Moti dealt a lathi blow on the head of Kaluram followed by Rai Singh who gave lathi blow on his forehead. Kaluram fell down. He (PW8 Malma) tried to rescue his son and made hue and cry which attracted Khajanya and Deepkya. On seeing Khajanya and Deepkya coming to the field, both the accused fled away. Kaluram was brought to Saadat Hospital for treatment but his life could not be saved. Satya Narain Pareek (PW12) forwarded this written report Ex.P12 to P.S. Mendwas for registration of the under section 374, G.P.C. against judgment dated 22.12.84 passed by Distt. & Sessions Judge, Tonk in Sessions Case No.40/83. case through Harnath Singh, Constable. On the basis of written report Ex.P12, a formal F.I.R. Ex.P13 was registered and investigation commenced. 3. In the course of investigation, Satya Narain Pareek, SHO prepared the Inquest Report Ex.P 15 of the dead body of Kaluram. The Investigating Officer reached on the spot and prepared Site Plan Ex.P2. Blood smeared soil and control soil were seized and sealed vide Seizure Memos Ex.P3 and Ex.P4. 3. In the course of investigation, Satya Narain Pareek, SHO prepared the Inquest Report Ex.P 15 of the dead body of Kaluram. The Investigating Officer reached on the spot and prepared Site Plan Ex.P2. Blood smeared soil and control soil were seized and sealed vide Seizure Memos Ex.P3 and Ex.P4. 'Dhoti' and 'Kurta' which the deceased was wearing at the time of incident were also seized and sealed vide Seizure Memo Ex.P5. Both the accused appellants were arrested. On their information given to the Investigating Officer in police custody and at their instance, lathis were allegedly recovered and sealed vide Recovery Memos' Ex.P8 and Ex.P9. Report Ex.P14 of the Patwari regarding the possession of the field was obtained. The statements of the witnesses were recorded under section 161 Criminal Procedure Code. On completion of the investigation, a charge-sheet was laid against the appellants in the Court of Chief Judicial Magistrate, Tonk who committed the case to the Court of learned Sessions Judge, Tonk. 4. Learned Sessions Judge framed charges under Section 302 and 302/34 Indian Penal Code against the appellants which were denied by them and the appellants claimed trial. 5. The prosecution examined as many as 13 witnesses in support of its case. In the statement recorded under section 313 Criminal Procedure Code , the appellants claimed innocence and stated that because of enmity they were falsely implicated in the case. In defence six witnesses were examined by the appellants. 6. Learned Sessions judge, after hearing the final submissions of both the parties, convicted and sentenced the appellants as indicated here-in-above. 7. I have heard learned counsel for the appellants and learned Public Prosecutor. Material on record has also been scanned and scrutinized. 8. There is no dispute that the deceased Kaluram met with the homicidal death and this fact is established by the medical evidence on record. PW1 Dr. G.C. Jain stated that on September 15, 1983 he was posted as Medical Jurist, Saadat Hospital, Tonk. He conducted post-mortem examination of the deceased Kaluram on September 15, 1983 at 6.00 P.M. and found the following injuries on the dead body : EXTERNAL INJURIES (1) Lacerated wound 11/2" x 1/2" x 1/4" on the left eyebrow lateral half. (2) Lacerated wound 2"x1/2"x1/4" (bone depth) on the left parietal region of the scalp. 9. Dr. He conducted post-mortem examination of the deceased Kaluram on September 15, 1983 at 6.00 P.M. and found the following injuries on the dead body : EXTERNAL INJURIES (1) Lacerated wound 11/2" x 1/2" x 1/4" on the left eyebrow lateral half. (2) Lacerated wound 2"x1/2"x1/4" (bone depth) on the left parietal region of the scalp. 9. Dr. Jain also stated that there was swelling on left upper eyelid which was black in colour. Haematoma was found in the left upper eyelid extending upto forehead. INTERNAL INJURIES (1) Committed fracture of left frontal bone. Bone piece of size 1/2 cm. x 1/2 cm. piercing the frontal lobe of brain matter. Clot of size 2" x 1/2" on the left frontal lobe of brain with laceration of 11/2 cm. x 11/4 cm. of left frontal lobe of brain was found. (2) Extra dural haematoma of size 10 cm. x 8 cm. on the left parietal region of the brain, middle meningeal artery was lacerated and above haematoma was around the middle meningeal artery. (3) Sub-dural hemorrhage on the left parietal region of brain below the lacerated wound in the left parietal region. 10. Dr. Jain further stated that in his opinion, the cause of death was injury and compression of the brain mainly the left frontal and parietal lobes causing laceration and haematoma. These injuries were sufficient to cause death in the ordinary course of nature. The injuries were likely to have been caused by a hard blunt object like lathi. He prepared the post-mortem report Ex.P1. 11. Learned counsel for the appellants did not challenge the testimony of Dr. Jain and in my opinion also, he is a trustworthy witness and his testimony can be relied upon. Thus, it has been proved beyond reasonable doubt by the prosecution that the deceased Kaluram met with the homicidal death. 12. The prosecution case rests mainly upon the testimony of PW8 Malma, father of the deceased, PW9- Khajan a and PW10- Deepkya. Learned counsel for the appellants contended that PW8 Malma being the father of the deceased is interested as well as partisan witness and, therefore, his testimony should not be relied upon. 13. I have given my thoughtful consideration to the submission made by learned counsel. The Apex Court in (1) Lehna V/s State of Haryana (2002) 3 SCC 76 held as under : xxx xxx xxx xxx xxx 14. 13. I have given my thoughtful consideration to the submission made by learned counsel. The Apex Court in (1) Lehna V/s State of Haryana (2002) 3 SCC 76 held as under : xxx xxx xxx xxx xxx 14. In view of the above decisions of the Apex Court, the evidence of PW8 Malma cannot be discarded only on this ground that he happens to be the father of the deceased. 15. In State of Haryana V/s Ramsingh (2002) 2 SCC 426 , the Apex Court held as under : "Admittedly all the supposed eyewitnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the Court will be rather strict in its scrutiny as to the acceptability of such an evidence." 16. Keeping in view the aforesaid decision of the Hon'ble Supreme Court, the testimony of PW8 Malma needs to be scanned and scrutinized. 17. In his statement, he (Malma) stated that on the date of the incident, he alongwith his son Kaluram was present in his field wherein maize crop was sown. The appellants Moti and Rai Singh were grazing their buffaloes. When they started grazing their buffaloes in his field and thereby causing damage to maize crop, Kaluram asked them not to damage the crop. Thereafter the appellant Moti gave a lathi blow on the head and the appellant Rai Singh inflicted an injury with a lathi on the forehead of Kaluram. Kaluram fell down and the appellants fled away. It was further stated by PW8 Malma that the incident was witnessed by Khajanya and Deepkya also. 18. I have carefully scrutinised the statement of PW8 Malma. The trial Court has found his evidence to be reliable and truthful. There has been searching cross-examination and he has stood the test of cross-examination. The cross-examiner has not been able to make any dent in his testimony. I, therefore, see no reason to disbelieve PW8 Malma. Moreover, he has been supported by PW9 Khajanya and PW10 Deepkya. Both -Khajanya and Deepkya stated on oath that both the appellants gave lathi blows on the person of the deceased Kaluram. The cross-examiner has not been able to make any dent in his testimony. I, therefore, see no reason to disbelieve PW8 Malma. Moreover, he has been supported by PW9 Khajanya and PW10 Deepkya. Both -Khajanya and Deepkya stated on oath that both the appellants gave lathi blows on the person of the deceased Kaluram. Both Khajanya and Deepkya are independent and impartial witnesses and they were also grazing their cattle near the place of occurrence at the time of the incident. They have been relied upon by the trial Court and I see no ground to differ from the view taken by learned Sessions Judge. The ocular testimony of the prosecution gets corroboration from the medical evidence stated above. Thus, in my considered opinion, the prosecution has succeeded in proving that both the appellants Moti and Rai Singh had inflicted injuries with lathis on the left parietal region of the scalp and on the forehead of the deceased Kaluram respectively which resulted in his death. 19. Learned counsel for the appellants alternatively contended that when the offence was committed, the appellant Rai Singh was below 21 years of age and the age of the appellant Moti was 50 years. Prior to this incident, no offence was committed by any of the appellants. A lone period of 19 years has elapsed between the incident and now. There is nothing on record to show that the appellants had any previous enmity for inflicting injuries on the person of the deceased or any other grievance to cause death of Kaluram. The incident took place without pre-meditation and the appellants inflicted injuries in sudden fight in the heat of passion. The appellants Moti and Rai Singh have remained in custody for more than 15 (fifteen) months and 9 (nine) months respectively. Each of the appellants had caused only one injury with a blunt weapon i.e. lathi and they had not acted in a cruel or unusual manner. At present the age of the appellant Moti is around 70 years, therefore, the sentence awarded to the appellants be reduced to the period already undergone by them. Learned Public Prosecutor did not dispute the facts and circumstances narrated by learned counsel for the appellants for reduction of sentence awarded to the appellants by learned Sessions Judge. At present the age of the appellant Moti is around 70 years, therefore, the sentence awarded to the appellants be reduced to the period already undergone by them. Learned Public Prosecutor did not dispute the facts and circumstances narrated by learned counsel for the appellants for reduction of sentence awarded to the appellants by learned Sessions Judge. Having regard to the facts and circumstances of the case including the age of the appellant Rai Singh on the date of incident, old age of the appellant Moti, period during which the appellants have remained in custody, the circumstances in which the offence was committed and the fact that only one injury was caused by each of the appellants and that too by blunt weapon, I am of the view that in the ends of justice, the appeal of the appellants deserves to be allowed in part as under. 20. Consequently, the appeal of the appellants Moti and Rai Singh is partly allowed. Their conviction under Section 304 Part (II) Indian Penal Code is maintained. The substantive sentence of 5 years awarded to them by learned Sessions Judge is reduced to the period already undergone by them but in the facts and circumstances of the case, I enhance the fine from Rs. 200/- (Rs. two hundred) to Rs. 10,000/- (Rs. ten thousand). In default of payment of fine, they will have to further undergo one year's rigorous imprisonment. The amount of fine Rs. 20,000/- (Rs. twenty thousand), if deposited by the appellants, shall be paid to PW8 Malma-the father of the deceased. If he is not alive then it shall be paid to other legal heirs of the deceased Kaluram.Appeal partly allowed. *******