JUDGMENT A.N. Jindal, J.-­ This appeal is directed against the judgment of conviction and sentence dated 4.9.1995, passed by Sessions Judge, Patiala, convicting the appellants under Sections 304 Part-I, 323 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘the Code’). Appellant Karam Singh was sentenced under Section 304 Part-I and Major Singh under Section 304 Part-I read with Section 34 of the Code to undergo rigorous imprisonment for 7 years and to pay fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for one year, each. Karam Singh was further sentenced to undergo rigorous imprisonment for 3 months under Section 323 of the Code and Major Singh too was sentenced similarly under the same Section with the aid of Section 34 of the Code. All the sentences were ordered to run concurrently. 2. The factual matrix of the case as unfolded by Naib Singh son of Jarnail Singh resident of village Kullaran (PW4) in his statement Ex.PL made on 28.8.1993 at about 3 p.m. in Civil Hospital, Samana, is that on 27.8.1993 at about 8 p.m., when he and his brother-in-law (loser) Gurbax Singh son of Jagmail Singh resident of village Bahmana and Lakhwinder Singh alias Lakha son of Amar Singh resident of village Kulwanu, while sitting on the tractor were proceeding towards village, they sighted a truck, parked on the road obstructing the passage. Naib Singh asked the truck driver to remove it from the passage. On this, there was exchange of hot words, followed by a fight. Dharampal inflicted two iron rod blows on the head of Naib Singh. Major Singh inflicted Lathi blow on the thigh and knee joint of Naib Singh. Dharampal also inflicted an iron rod blow upon the head of Gurbax Singh and also caused injuries to Lakhwinder Singh alias Lakha by hitting on his head twice or thrice, as a result of which, he fell down on the ground. Thereafter, Major Singh again inflicted a lathi blow on Lakhwinder Singh alias Lakha. The hue and cry raised by the complainant party, attracted Nirmal Singh son of Jarnail Singh resident of village Kullaran and Mohan Singh son of Amar Singh resident of village Kulwanu, who had come there to see village fair. Thereafter, Major Singh again inflicted a lathi blow on Lakhwinder Singh alias Lakha. The hue and cry raised by the complainant party, attracted Nirmal Singh son of Jarnail Singh resident of village Kullaran and Mohan Singh son of Amar Singh resident of village Kulwanu, who had come there to see village fair. They rescued the complainant party from the clutches of the accused persons and shifted the injured to Civil Hospital, Samana, where they were medico-legally examined. Consequently, Lakhwinder Singh alias Lakha expired on 28.8.1993. Motive behind the occurrence was that the complainant party and the accused party exchanged abuses over the non-clearance of the passage. 3. On the aforesaid statement EX.PL made by Naib Singh before Assistant Sub-Inspector Karam Singh at about 3 p.m., the formal FIR Ex.PL/2 was registered under Sections 323/324 of the Indian Penal Code at 3.10 p.m. on 28.8.1993. Later on, it was converted under Section 302 of the Code. 4. Assistant Sub-Inspector Karam Singh handled the investigation and he reached the Civil Hospital. He collected MLRs of Gurbax Singh and Naib Singh; on reaching Rajendra Hospital, he found that dead body of Lakhwinder Singh alias Lakha was lying in the mortuary of that hospital. He prepared Inquest Report EX.PD and, thereafter, made a request EX.PE for getting the post mortem examination conducted. On 29.8.1993, he recorded the statement of Gurbax Singh. It would be pertinent to mention here that Naib Singh had made a supplementary statement on 28.8.1993 itself, wherein, he clarified that he had named Dharampal alias Dharam Singh as accused by mistake and in fact, he was Karam Singh (appellant), who had caused injuries along with Major Singh (appellant). As such, Karam Singh and Major Singh were arrested on 8.9.1993. Karam Singh, in pursuance of his disclosure statement, got recovered the weapons of offence i.e. iron rod and Lathi. On 15.9.1993, the Investigating Officer also took the truck No.PCT-9981 into possession. 5. On completion of the investigation, the appellants were challaned under Sections 302 and 323 read with Section 34 of the Indian Penal Code. Consequently, they were charged for the aforesaid offences, to which they pleaded not guilty and claimed trial. 6. On commencement of the trial, the prosecution examined Dr.Nabh Kanwal Singla (PW1), Dr.S.S.Oberoi (PW2), Dr.P.K.Mittal (PW3), Naib Singh (PW4), Gurbax Singh (PW5), Mohan Singh (PW6) and Assistant Sub-Inspector Karam Singh (PW7). Consequently, they were charged for the aforesaid offences, to which they pleaded not guilty and claimed trial. 6. On commencement of the trial, the prosecution examined Dr.Nabh Kanwal Singla (PW1), Dr.S.S.Oberoi (PW2), Dr.P.K.Mittal (PW3), Naib Singh (PW4), Gurbax Singh (PW5), Mohan Singh (PW6) and Assistant Sub-Inspector Karam Singh (PW7). While giving up PW Nirmal Singh as won over, the prosecution closed its evidence. 7. The accused appellants in their statements under Section 313 of the Code of Criminal Procedure denied the prosecution allegations and pleaded their false implication. Appellant Karam Singh further explained as under:­ “ I have been falsely implicated in this case. Initially Dharampal Singh, my elder brother, was named in the FIR. Later on, for extraneous reasons, I have been substituted in his place. Janak Singh Sarpanch is inimical with us. He has connived with the complainant party in order to implicate at the first instance my brother and my co-accused Major Singh and later on Dharampal Singh has been let off and I have been substituted in his place. The injured might have received injuries at the hands of some unidentified persons in the village fair.” Similarly, Major Singh explained as under:­ “I am innocent. I have been falsely implicated in this case due to party faction and at the instance of Janak Singh Sarpanch with whom myself and my co-accused Karam Singh are on inimical terms.” On scrutiny of the evidence, the trial ended in conviction, hence, this appeal. 8. I have heard Mr.Tarunveer Vashisth, counsel appearing for the appellants and MS. Reeta Kohli, Deputy Advocate General appearing for the respondent-State of Punjab and also have gone through the evidence with their able assistance. 9. Having re-appreciated the evidence, as led by the prosecution and having considered the arguments raised by the counsel for the parties, I observe that there is nothing to disbelieve the testimonies of PW4 Naib Singh and PW5 Gurbax Singh as both are the injured eye-witnesses. They would be the last persons to implicate false persons. Moreover, their testimonies stand corroborated by Mohan Singh, brother of Lakhwinder Singh alias Lakha, who also happened to be near the place of occurrence, who had come to see the village fair. By going through the testimony of Mohan Singh, I have no reason to dub him as chance witness. They would be the last persons to implicate false persons. Moreover, their testimonies stand corroborated by Mohan Singh, brother of Lakhwinder Singh alias Lakha, who also happened to be near the place of occurrence, who had come to see the village fair. By going through the testimony of Mohan Singh, I have no reason to dub him as chance witness. Nevertheless, if his statement is ignored, even then there is no reason to ignore the testimonies of two injures eye-witnesses. They are quite consistent with regard to the time, place and manner, in which occurrence had taken place. Though, there is little bit delay in lodging the First Information Report, yet, this fact, by itself, is not so substantial, so as to make the basis to discard the entire prosecution case. The delay in lodging the First Information Report has been duly explained. As regards the insertion of the name of Karam Singh (appellant) in place of Dharampal alias Dharam Singh, who was originally named in the First Information Report on 28.8.1993, it may be mentioned that the complainant had no particular motive against any of the above two persons. Had the complainant any motive to involve false persons, then he could involve both the brothers by adding the name of Karam Singh on 28.8.1993, and some force could be stated to have been found in this argument. In the facts of the present case, it appears that complainant Naib Singh in some confusion got recorded the name of Dharampal alias Dharam Singh, as both Dharampal alias Dharam Singh and Karam Singh are brothers. He might have mistook Dharampal as Karam Singh on the night of occurrence. Therefore, later on, when he gained strength to his mind, in his wisdom, he thought it proper and it pricked his conscious that lest innocent may be punished. Thus, in all human probabilities, the correction got made up by Naib Singh, cannot be taken as an infirmity leading to damage to the prosecution case. The question is not of name, but of identity. All the witnesses appearing in the witness box categorically pointed out that Karam Singh and Major Singh - appellants caused injuries to Naib Singh, Gurbax Singh and Lakhwinder Singh alias Lakha. The medical evidence is also consistent with the ocular version. 10. The question is not of name, but of identity. All the witnesses appearing in the witness box categorically pointed out that Karam Singh and Major Singh - appellants caused injuries to Naib Singh, Gurbax Singh and Lakhwinder Singh alias Lakha. The medical evidence is also consistent with the ocular version. 10. Faced with situation, Shri Tarunveer Vashisth, counsel appearing for the appellants, stated that even according to the prosecution the occurrence took place all of sudden and in heat of moment when the complainant party wanted appellants to remove their truck, therefore, certainly the appellants had no intention to commit the murder of Lakhwinder Singh alias Lakha. He further stated that though the Trial Court has rightly taken the view that offence falls within the ambit of Section 304 Part-I of the Indian Penal Code, yet Major Singh, having caused no fatal, blow to Lakhwinder Singh alias Lakha (deceased), could not be convicted under Section 304 Part-I with the aid of Section 34 of the Code. 11. While pondering over the argument, I agree with the contention raised by the counsel for the appellants. The occurrence took place as a result of sudden altercation between the parties and the accused appellants had no intention to cause the murder. Therefore, since it was due to sudden quarrel as a sequel of which, Lakhwinder Singh alias Lakha having received injuries at the hands of Karam Singh died, thus, Karam Singh only could be convicted for the injuries caused to him. In such circumstances, each of the accused should have been dealt with individually for the injuries caused by them, respectively. 12. Now coming to the question of sentence, though the accused/appellant Karam Singh committed the culpable homicide not amounting to murder falling within the ambit of Section 304 Part-I of the Code, yet this fact cannot be ignored that he was sentenced as far back as on 4.9.1995 and since then he has been facing the agony on account of pending adjudication of his appeal. No doubt, that such agony cannot be a circumstance to wipe out the sentence as a whole, but it can be taken as a mitigating factor for taking a lenient view. For the foregoing reasons, I partly accept the appeal and set aside the conviction of Major Singh under Section 304 Part-I read with Section 34 of the Code. No doubt, that such agony cannot be a circumstance to wipe out the sentence as a whole, but it can be taken as a mitigating factor for taking a lenient view. For the foregoing reasons, I partly accept the appeal and set aside the conviction of Major Singh under Section 304 Part-I read with Section 34 of the Code. The sentence of 7 years awarded to Karam Singh under Section 304 Part-I of the Code is also reduced to 5 years, without interfering in the fine clause. Conviction and sentence awarded to Karam Singh for the offences under Section 323 of the Code shall remain intact. Since Major Singh has already undergone incarceration for 4 months and 2 days and he has only been convicted under Section 323 read with Section 34 -­ of the Code, his sentence is reduced to the period, already undergone by him Chief Judicial Magistrate Patiala to ensure custody of Karam Singh (appellant) to undergo his remaining part of sentence. —————————