JUDGMENT 1. - Accused-Samunder Singh @ Samunder Ram, Mohari and Suwarthi were indicted before the learned Sessions Judge, Jhunjhunu for having committed murder of Ganpat Ram in Sessions Case No. 45/1980. Vide judgment dated 6.7.1981 the learned Sessions Judge found Samunder Singh guilty under section. 325 Indian Penal Code and Smt. Mohari and Smt. Suwarthi under section. 323 Indian Penal Code and sentenced Samunder Singh to suffer 5 years RI and fine of Rs. 100/- whereas Smt. Mohari and Suwarthi were released on probation on their executing personal bond in the sum of Rs. 500/- to keep peace and be of good behaviour for a period of six months. Accused-Samunder Singh assailed the impugned judgment by filing criminal appeal No. 293/1981 whereas the State of Rajasthan has impugned the judgment of acquittal of the accused- respondents under section. 302 & 302/34 IPC in Criminal Appeal No. 422/1982. 2. The prosecution story as unfurled during trial is that on 16.10.1980 at about 8.00 a.m. in the morning Ganpat Ram (now deceased) left his well and proceeded to go to his village Kithana. When he had arrived in the field of accused-Samunder Singh he found that the latter along with his mother Mohari and wife Suwarthi, armed with lathies, stood in the way. Three accused then expressed that the enemy has come alone, he be murdered. At that moment Samunder Singh gave a lathi blow on the head of Ganpat Ram. Mohari and Suwarthi followed Samunder Singh in beating Ganpat Ram. Pala Ram, Ramjilal and Nandram from the neighbourhood rushed up and had rescued Ganpat Ram. Ganpat became unconscious. The report of the occurrence was lodged in the Police Station Chirawa by Bihari Lal, the son of Ganpat Ram. Case was registered under section. 307 Indian Penal Code and after death of Ganpat Ram the case was converted into 302 IPC, and investigation commenced. Charge-sheet was laid and in due course the case came up for trial before the learned Sessions Judge Jhunjhunu. 3. Charges under sections. 302, 302/34 Indian Penal Code were framed against the accused persons who denied the charges and claimed to be tried. As many as 7 witnesses were examined by the prosecution in support of its case. In the statements recorded under section. 313 Criminal Penal Code. the accused claimed innocence. No witness in defence was examined. 3. Charges under sections. 302, 302/34 Indian Penal Code were framed against the accused persons who denied the charges and claimed to be tried. As many as 7 witnesses were examined by the prosecution in support of its case. In the statements recorded under section. 313 Criminal Penal Code. the accused claimed innocence. No witness in defence was examined. On hearing final submissions the learned trial Court convicted and sentenced the accused as indicated here in above. They were however acquitted from charges under sections. 302, 302/34 IPC. 4. We have heard the rival submissions and carefully scanned the record. It is contended by Mr. Biri Singh learned counsel for the accused that Dr. Mool Singh referred Ganpat Ram for treatment to BDK Hospital Jhunjhunu but his relatives did not take Ganpat Ram to B.D.K. Hospital and it is a circumstance which suggests that Ganpat Ram could possibly have been saved, had timely treatment been obtained at Jhunjhunu. It is further contended by Mr. Biri Singh learned counsel that the accused acted in their private defence as from the prosecution evidence it is established that it was Ganpat Ram who had initiated the incident by removing sticks from the way. It appears that the way was already closed by Samunder Singh by putting obstruction with the help of sticks. Mr. Biri Singh, learned counsel also canvassed that Smt. Mohari Devi also sustained as many as 8 injuries vide Ex.D/1 but those injuries were not explained by the prosecution. The contention of the learned counsel is that while Ganpat Ram started inflicting blows on the person of Mohari Devi, the appellant-Samunder Singh acted in the right of private defence. But this aspect was not considered by the learned Court below and the appellants-Samunder Singh, Mohari Devi and Suwarthi were convicted under sections. 325 & 323 respectively and thus Samunder Singh is entitled to acquittal. 5. Per contra, Mr. Rajendra Yadav, learned Public Prosecutor canvassed that the act of accused-Samunder Singh is covered u/Cl. Thirdly of Section 300 IPC and he acted in a calculated manner with intention to kill Ganpat Ram and other accused-Mohari and Suwarthi shared common intention and they are guilty with the aid of Section 34 IPC. 6. Nand Ram (PW-3), Palaram (PW-4) and Ramji Lal (PW-5) are the star witnesses of the prosecution. Thirdly of Section 300 IPC and he acted in a calculated manner with intention to kill Ganpat Ram and other accused-Mohari and Suwarthi shared common intention and they are guilty with the aid of Section 34 IPC. 6. Nand Ram (PW-3), Palaram (PW-4) and Ramji Lal (PW-5) are the star witnesses of the prosecution. In his deposition Nand Ram (PW-3) stated that the way was blocked by Samunder Singh by putting sticks and when Ganpat Ram started uprooting the sticks the mother of Samunder abused him. Thereafter Samunder Singh inflicted lathi blow on the head of Ganpat Ram and Suwarthi also inflicted lathi while Ganpatram was lying. This witness did not see accused-Mohari inflicting injuries on the person of Ganpatram. In his cross-examination he admitted that another way South-North already existed by the side of field of Palaram. He did not explain the injuries sustained by Mohari. Over all view of the testimony of this witness demonstrates that the incident had taken place in the field of Samunder Singh. This witness further admitted in the cross-examination that while Mohari protested not to uproot the sticks Ganpat started abusing her. 7. Palaram (PW-4) in his cross-examination stated that Mohari was standing in the field of Samunder Singh and Suwarthi was also standing nearby. He did not see the injury sustained by Mohari. 8. Ramjilal (PW-5) in his cross-examination stated that on the date of incident Samunder Singh was sowing mustard crop. Mohari was also with him. Suwarthi stated Ganpat not to uproot the boundary made by sticks Ganpat did not agree and thereafter the incident had taken place. 9. From the post-mortem report Ganpat sustained as many as four injuries with diffused swelling with bluish, black right eye was also found. 10. Vide Ex.D/1, Mohari sustained following 8 injuries : 1. Lacerated wound 2" x 1/4" x bone deep on left Zygomate bone. 2. Diffuse swelling on left parietal region of skull. 3. Diffuse swelling on occipital region of skull right side. 4. Diffuse swelling on right parietal region of skull. 5. Lacerated wound 1/4" x ⅛" x skin deep on right middle finger. 6. Bruise 3" x 1" on right scapular region. 7. Abrasion ⅛" x ⅛" on left top of shoulder. 8. Bruise 3" x 1" on right Thigh upper one third outer aspect." 11. 4. Diffuse swelling on right parietal region of skull. 5. Lacerated wound 1/4" x ⅛" x skin deep on right middle finger. 6. Bruise 3" x 1" on right scapular region. 7. Abrasion ⅛" x ⅛" on left top of shoulder. 8. Bruise 3" x 1" on right Thigh upper one third outer aspect." 11. It is thus evident that the incident had taken place at the field of Samunder Singh and Samunder Singh had no intention to kill Ganpat Ram. There was altercation between mohari and Ganpat Ram. Mohari also sustained injuries which were serious in nature and said injuries were not explained by the prosecution therefore it appears to us that origin and genesis of the occurrence had not been placed by the prosecution before the Court. We are satisfied that the prosecution has failed to establish the charge under section. 302 or Section. 302 r/w Section 34 Indian Penal Code. The accused were rightly acquitted from the said charge by the learned trial Judge. 12. Coming to the conviction of the accused-Samunder Singh we find that only one injury has been attributed to him by the prosecution and the circumstances under which the injury was caused by him are sufficient to establish the charge under section. 325 Indian Penal Code against the accused-Samunder Singh and we find that he has rightly been convicted under section. 325 Indian Penal Code. Accused-Samunder Singh had already remained in custody for more than 10 months and no purpose would be served to send the accused-Samunder Singh to jail after 21 years of the incident for serving the sentence awarded to him and in the facts and circumstances ends of justice would be met to release him to the period already undergone by him in detention. 13. In the result the appeal preferred by the State of Rajasthan stands dismissed. The appeal of Samunder Singh stands partly allowed. The conviction of Samunder Singh under section. 325 Indian Penal Code is maintained and he is sentenced to the period already undergone by him in detention. Accused-Samunder Singh is on bail he need not surrender. His bail bonds stand discharged.Appeal of State Government dismissed and Appeal of accused partly allowed. *******