JUDGMENT 1. 1. This is an appeal under Section 374 Criminal Procedure Code against the judgment dated 5.7.1986 passed by the learned Add]. Sessions Judge No.1, Kota in Sessions Case No. 11/1981 whereby he convicted and sentenced the accused appellants as under:- 2. Accused appellant Kedarlal:-Convicted under Sections 148, 324 Indian Penal Code for 1 year rigorous imprisonment and under Section 323 for 6 months R.I. and under Section 325 Indian Penal Code for a period of 2 years R.I. and fine of Rs. 100/-, in default of payment of fine, to further undergo 1 month rigorous imprisonment; (i) Appellants Laturlal, Mangi Lal- Under Section 148 Indian Penal Code 1 year R.I., Mangilal - under Section 323 Indian Penal Code for 6 months R.I., Ratanlal - under Section 324/149 Indian Penal Code 1 year R.I., Chotulal - under Section 325/149 for 2 years R.I. with fine of Rs. 100/-, in default one month R.I. in each. 3. The brief facts of the case are that on dated 16.5.1980, at about 11.30 A.M. one Gopal s/o Dalu Berwa submitted a report at Police Station, Sultanpur that which is relating to an incident of a theft of some stitched clothes and from the complainant shop which took place a month back and on asking from some, one Sunni told the names of Mangilal and Chhotu to the other neighbors of the village. Upon this, the appellants at about 8 to 9 P.M. on 5th May, 1980, came at the house of the complainant where he was sleeping. It is further alleged that the appellants were armed with Kulhadi, Gandasi and Kuntia in their hands and they started beating to complainant. On hearing hue and cry his sons Narain and Latoor also came on the spot, they were also given beatings. One Shanker also was there on the spot, who immediately run away from there when he was also given beating. 4. Upon the aforesaid report, police has registered a case for the offence under Sections 148, 149 and 324 Indian Penal Code and started investigation. During investigation, on 15th June 1980 complainant Gopal Berwa died of the haemotoma under the layer of the brain and the case was converted into Section 302 Indian Penal Code read with Section 148, 325, 324, 323 & 326 Indian Penal Code. During investigation, on 15th June 1980 complainant Gopal Berwa died of the haemotoma under the layer of the brain and the case was converted into Section 302 Indian Penal Code read with Section 148, 325, 324, 323 & 326 Indian Penal Code. After completion of investigation a challan was presented under Sections 302, 326, 325, 324, 323, 147, 148 and 149 Indian Penal Code before the Court of Special Judicial Magistrate, Kota who committed the case for trial to the Court of Sessions Judge, Kota. The learned Sessions Judge, Kota transferred the case to the Court of Addl. Sessions Judge, No.1, Kota who framed charges against the accused appellant Kedarlal under Sections 148, 323, 324, 302 read with Section 149 and 325 Indian Penal Code, under Sections 148, 302 read with Section 149, 323, 324 read with Section 149 and 325 read with Section 149 Indian Penal Code against accused Ratan Lai, Chhotulal and Mangilal and under Sections 148, 302, 323, 324 read with Section 149 and Section 325 read with Section 149 Indian Penal Code against Laturlal. The charges were read over and explained to the accused appellants who pleaded not guilty and claimed for trial. 5. During trial, the prosecution in support of its case examined as many as 16 witnesses in the prosecution story and got exhibited some documents. Thereafter, the statements of accused appellant were also recorded under Section 313 CF. P. C. In defence they produced two witnesses along with a cross-FIR lodged by the accused appellant Laturlal against deceased Gopal. 6. After hearing both the parties, the learned Addl. Sessions Judge No.1, Kota through his judgment dated 5.7.1986 convicted the accused appellants for the offences which have already mentioned above. 7. Aggrieved against the judgment and order of the learned trial Court dated 7.12.1985, acquitted all the accused appellants under Section 302 read with Section 149 and 326 read with Section 149 Indian Penal Code, but found them guilty of the offence under Section 148 and 323 Indian Penal Code wherein the accused Kedarlal was found guilty for the offence under Section 324 & 325 Indian Penal Code also and the rest of the appellants were found guilty for the offence under Section 325 read with Section 149 and convicted and sentenced them as indicated above. 8. The appellants being aggrieved by the aforesaid judgment and order of the learned Addl. 8. The appellants being aggrieved by the aforesaid judgment and order of the learned Addl. Sessions Judge No.1, Kota preferred this appeal. 9. In this appeal Mr. P.R.S. Rajawat appearing on behalf of the accused appellants made a request to the Court that he is not challenging the conviction part of the judgment of court below, but he is only requesting to this Court that the sentence should be reduced for the period already undergone. 10. Mr. Rajawat has urged to this Court that this incident took place 28 years ago approximately from today. According to him, the age of the accused appellant Kedarlal is 64 years, Ratan Lai 59 years, Chhptulal 73 years, Mangilal 68 years and Laturlal 53 years. 11. He has further drawn attention of this Court that all the accused persons have remained in judicial lockup approximately 5 days. He has further drawn attention of this Court that all the accused appellants having their family and their children are marriageable age. He further pointed out to this Court that the marriage of the daughter of accused appellant Laturlal is going to be performed today when he is arguing this case in the Court. In support of his arguments, relied upon the judgment in (1) Ayub & Others Vs. State of U.P. reported in 1994 CRI. L.J. 1219 SC , Hon'ble Apex Court held as under : "Penal Code (45 of 1860) section 325-Grievous hurt-sentence-Occurrecne taking place about 17 years before-Some of accused more than 76 years of age and one died-Besides some others receiving injuries-Held, it was not fit where accused should be sent back to jail-Sentence reduced to period already undergone-However, fine of Rs. 200/- was imposed on each of them in and in default they were sentenced to one month's imprisonment." 12. The relevant portion of the aforesaid judgment, in Para 7 their Lordships observed as under : "7. Having regard to all these circumstances, we think that it is not a fit case where the appellants should be sent back to jail. In the result, while their convictions are affirmed the sentence is reduced to the period already undergone. However, we impose a fine of Rs. 200/- on each of the appellants in default of which they will be sentenced to one month's rigorous imprisonment. Appeal is accordingly disposed of". 13. Mr. In the result, while their convictions are affirmed the sentence is reduced to the period already undergone. However, we impose a fine of Rs. 200/- on each of the appellants in default of which they will be sentenced to one month's rigorous imprisonment. Appeal is accordingly disposed of". 13. Mr. Rajawat further relied upon a judgment of Apex Court in (2) Halke and Anr. Vs. State of M.P., reported in 1993 Cri. L.J. 1220 , the Apex Court observed as under : "We have gone through the judgments of both the Courts and the relevant evidence. It is submitted by the counsel for the appellants that the prosecution has not properly explained the injuries found on the accused persons and the circumstances show that the deceased party could have been the aggressors. The evidence of the injured witnesses also show that the two appellants with sticks inflicted some blows on the deceased as well as on the two witnesses. In this context the medical evidence becomes very relevant. The occurrence is said to have taken place on 15.4.1974. The injured deceased was admitted in the Hospital and the doctor found four contusions. One of them was on the head. The necessary treatment was given and an operation was also performed and unfortunately the deceased died on 22.4.1974. P.Ws 1 & 19 were also examined by the doctor and similarly he found some lacerated wounds and some abrasions. Therefore to that extent the medical evidence also corroborates the evidence of P.Ws. 1 and 9. Taking all circumstances into consideration we find that there must have been a fight and it is difficult to hold that the appellants while inflicting sticks blows had the knowledge that under the circumstances they were likely to cause the death of the deceased when they themselves have received the injuries at the hands of the prosecution party. Coming to the death of the deceased as noted already the medical evidence shows that the deceased was treated for nearly a week and an operation was also performed and he died only thereafter. No doubt the injury on the head proved to be fatal after lapse of one week but from that alone it cannot be said that the offence committed by the two appellants was one punishable under Section 304, Part-II Indian Penal Code. No doubt the injury on the head proved to be fatal after lapse of one week but from that alone it cannot be said that the offence committed by the two appellants was one punishable under Section 304, Part-II Indian Penal Code. The injuries found on the witnesses are also of the same nature and for the same they are convicted under Section 325 Indian Penal Code. Having regard to the fact that the deceased died after one week the offence committed by them in respect of the deceased would also be the same, punishable under Section 325 Indian Penal Code. In view of the peculiar facts and circumstances of this case we set aside the conviction of the appellants under Section 304, Part-11, Indian Penal Code and the sentence of years R.I. thereunder, instead we convict the appellants under Section 325 read with Section 345 Indian Penal Code and sentence each of them to undergo nine months' R.I. The conviction under Section 325 read with Section 34 Indian Penal Code is confirmed but the sentence is reduce to nine months' R.I. Both the sentences shall run concurrently. The Appeal is partly allowed." 14. Learned counsel for the appellants further relied upon a judgment delivered by the Apex Court in (3) Naib Singh Vs. State of Punjab, reported in 1986 Cr.L.J. 2061 . The relevant portion of the said judgment reads as under: "Accordingly, the appeal fails and is dismissed. The judgment of the High Court after convicting the appellant under Section 326 of the Indian Penal Code is upheld. As to the sentence, we are inclined to take a lenient view. We are informed that the appellant is a Teacher in a Government School. The circumstances brought out by the prosecution evidence show that he acted in the heat of the moment. Looking to the fact that the incident occurred on April 22, 1973, some 13 years back, we do not think it desirable to send the appellant back to jail. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5,000/- or in default, to undergo rigorous imprisonment for a period of six months. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5,000/- or in default, to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation. Appeal dismissed." 15. Mr. Rajawat has lastly urged to this Court that a lenient view should be taken in the light of the judgment cited herein above. 16. The learned Public Prosecutor has controverted the arguments advanced by the learned counsel for the appellants. 17. In the light of the judgment of Hon'ble Apex Court (supra) and looking to the facts and circumstances of the case I am inclined to take a lenient view in the matter and I do not think it is not a fit case where the appellants should be sent back to jail. 18. In the result, I maintain the order of conviction passed by the trial Court. But looking to the facts and circumstances of he case and the fact that the appellants have already undergone confinement for the period which has indicated above, the ends of justice would be met in sentencing them for the period already undergone by them in confinement. 19. The accused appellants will pay a fine of Rs., 1000/-, each and in default of payment of fine, to undergo further rigorous imprisonment for a period of 1 month each. The amount of fine shall be deposited in the Court of Addl. Sessions Judge No.1, Kota within a period of two months from date of receipt of certified copy of this order. 20. The judgment and order dated 5th July, 1986 passed by the learned Addl. Sessions Judge No. 1, Kota is modified to the extent as indicated above. 21. This appeal is partly allowed.Appeal partly allowed. *******