Judgment ( 1. ) APPELLANTS have preferred this appeal challenging their conviction and order of sentence passed by Additional Sessions judge, Multai, District Betul in S. T. No. 151/95, decided on 23. 07. 97. ( 2. ) APPELLANTS have been convicted under Section 326/34 of IPC and sentenced to imprisonment for three and half years by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 15. 06. 95 about 8. 30 P. M. at village Deo-Bhilai, deceased Dhannu (hereinafter referred as deceased) had gone to search his younger brother Gampu @ ganesh @ Pappu in the village. On hearing the noise of quarrel coming from the side of house of appellant Gendlal, Bato Bai, the mother of deceased reached there and found that appellants gendlal, Ramdayal and Pappu @ Shravan were assaulting her son dhannu in front of the house of Bhaiya Patel by rod, sword and lathi on his scalp and other parts of the body. When Bato Bai tried to intervene, she also received a lathi blow wielded by appellant gendlal on her left hand. Appellants then dragged the deceased and tied him with a rope in their house. The FIR of the incident was lodged by Bato Bai, on the basis of which an offence was registered against the appellants at Police Station Multai and was investigated. Bato Bai and injured Dhannu were sent for medical examination to Multai Hospital, where dying declaration of Dhannu was recorded. However, Dhannu succumbed to his injuries on his way to District Hospital, Betul. The intimation of his death was given by Constable Ranjit Yadav, whereupon merg intimation was recorded and merg inquest report was prepared. The dead body of deceased Dhannu was sent for postmortem examination. Blood stained and plain earth were seized from the spot. The spot map was drawn. The rope and weapons used in the commission of offence were also seized at the instance of the appellants. The seized articles were sent for forensic examination. After due investigation, appellants were prosecuted under Section 302, 342, 323/34 of IPC and were put to trial. ( 4. ) APPELLANTS abjured the guilt and pleaded false implication. According to appellants, deceased Dhannu and his brother Gampu had assaulted Ramu Sahu and Shanta Bai causing injuries to Ramu Sahu and death of Shanta Bai and lodged a false report against them. ( 5. ( 4. ) APPELLANTS abjured the guilt and pleaded false implication. According to appellants, deceased Dhannu and his brother Gampu had assaulted Ramu Sahu and Shanta Bai causing injuries to Ramu Sahu and death of Shanta Bai and lodged a false report against them. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, came to hold that appellants were not guilty of intentionally causing death of deceased Dhannu and acquitted them of the charges under section 302 and 342 of IPC, but found them guilty for commission of offence under Section 326/34 of IPC, convicted and sentenced them as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED counsel for the appellants submitted that the trial court erroneously convicted the appellants on the basis of unreliable testimony of partisan witnesses plus the dying declaration of the deceased and it failed to consider that the deceased was not in a position to give the statement. Learned counsel for the appellants further submitted that the trial court also failed to appreciate that the complainant party had gone to the place of the appellants and was the agressor, causing injuries to ramkumar, as also death of Shanta Bai and the right of private defence was available to the appellants. ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellants. ( 8. ) PERUSED the evidence on record. P. W-10 Bato Bai, the mother of the deceased is an injured eyewitness, her presence on the scene of occurrence, therefore, cannot be doubted. The FIR of the incident in the form of Dehati Nalishi (Ex. P-24) was also recorded by Inspector K. M. Vyas (P. W-13) at the instance of bato Bai (P. W-10) at midnight around 2. 30 A. M. on 16. 6. 95. P. W-10 Bato Bai categorically deposed in her evidence that on the day of occurrence about 8 oclock at night, on being informed that her son Gampu was being beaten, she reached near house of bhaiya Patel following her son Dhannu and witnessed appellants gendlal, Ramdayal and Pappu assaulting the deceased. 30 A. M. on 16. 6. 95. P. W-10 Bato Bai categorically deposed in her evidence that on the day of occurrence about 8 oclock at night, on being informed that her son Gampu was being beaten, she reached near house of bhaiya Patel following her son Dhannu and witnessed appellants gendlal, Ramdayal and Pappu assaulting the deceased. According to Bato Bai (P. W-10), appellant Gendlal was holding a lathi, appellant Ramdayal had a rod and appellant Pappu had a sword with him; when she intervened to save her son Dhannu, she received a lathi blow on her hand given by appellant Gendlal. ( 9. ) THE aforesaid version of Bato Bai also stands substantially corroborated by the evidence of Chanda Bai (P. W-9), the wife of the deceased. She also deposed that appellant Gendlal was holding a lathi, Pappu was holding a sword and Ramdayal had a rod in his hand and all the three appellants were assaulting dhannu in front of the house of Bhaiya Patel. ( 10. ) THERE is also dying declaration of the deceased (Ex. P-12) on record which was taken down by Naib Tahsildar b. L. Malviya (P. W-4) on 16. 6. 95 at 4. 15 A. M. in Multai Hospital. According to Naib Tahsildar B. L. Malviya (P. W-4), after obtaining certificate from the Doctor that the deceased was fit to give statement, he had recorded his statement as per Ex. P-12. Dr. R. S. Patel (P. W-14) also corroborated this fact that before recording of the statement of deceased by Tahsildar Multai, he had certified that declarant was fit to give statement and also endorsed the certification on Ex. P-12 to this effect. As per dying declaration (Ex. P-12) of the deceased, appellants Gendlal, Ramdayal and Pappu had assaulted him by sword and iron rod on his scalp, hands and leg and caused injuries. ( 11. ) DR. R. S. Patel (P. W-14), who medically examined injured Dhannu (deceased) on 16. 6. 95 at 4:15 A. M. at Multai hospital, also found thirteen injuries on the body of deceased as enumerated in MLC report (Ex. P-27) out of which injuries no. 2, 11, 12 and 13 were said to have been caused by sharp edged weapons and rest of the injuries were caused by hard and blunt object. It is also borne out from the evidence of Dr. P-27) out of which injuries no. 2, 11, 12 and 13 were said to have been caused by sharp edged weapons and rest of the injuries were caused by hard and blunt object. It is also borne out from the evidence of Dr. I. P. S. Popli (P. W-15), who had conducted the external and internal postmortem examination on the dead body of deceased Dhannu, that deceased also had a fracture on his left parieto occipital region with subdural haematoma, besides rupture of spleen with tear at centre of 2" x 1" size, which led to his death. ( 12. ) THERE are no cogent reasons to discard the aforesaid ocular and medical evidence and the dying declaration of the deceased. Despite extensive cross-examination, nothing has been elicited in the cross-examination of P. W-9 Chanda Bai and P. W-10 bato Bai so as to disbelieve their basic version that all the three appellants had assaulted the deceased by means of lathi, sword and rod, which also stands fortified not only by the dying declaration of the deceased, but also by the medical evidence. The medical evidence also goes to indicate that the deceased had also 3-4 incised wounds, caused by sharp edged weapons, besides numerous contusions on his body capable of being caused by hard and blunt object. In view of these facts, the lack of description in the evidence of P. W-10 Bato Bai and P. W-9 Chanda Bai as to landing of particular blow of the weapons wielded by each appellant on the body of the deceased would not belie the ocular version that the appellants had assaulted the deceased and caused injuries by means of sword, rod and lathi. ( 13. ) ALTHOUGH, the defence witnesses examined on behalf of the appellants, namely Sushila Sahu (D. W-1) and Subadiya (D. W-2) the wives of appellants Ramdayal and Gendlal respectively, have tried to negate the presence of P. W-9 chanda Bai and P. W-10 Bato Bai as well as the presence of appellants Ramdayal and Pappu on the place of occurrence, but their evidence in this behalf is not reliable. Appellants Pappu and ramdayal never pleaded any alibi during their examination under section 313 of Cr. P. C. , rather they claimed that deceased Dhannu and his brother Gampu had assaulted them as well as Ramdayal sahu and Shanta Bai. Appellants Pappu and ramdayal never pleaded any alibi during their examination under section 313 of Cr. P. C. , rather they claimed that deceased Dhannu and his brother Gampu had assaulted them as well as Ramdayal sahu and Shanta Bai. Similarly in view of the injuries found by dr. R. S. Patel (P. W-14) on the body of Bato Bai (P. W-10), her presence on the place of occurrence, as said earlier, cannot be doubted. There are also no cogent reasons to doubt the presence of P. W-9 Chanda Bai on the place of occurrence and discard her evidence. Besides, as mentioned hereinabove, there is also dying declaration (Ex. P-12) of the deceased on record indicating the involvement of all the three appellants in assaulting the deceased. ( 14. ) IT is evident from the testimony of Dr. R. S. Patel (P. W-14), that he had examined the deceased in injured condition right at 4. 15 A. M. on 16. 6. 95 and recorded his injuries as per ex. P-27. As such, his certification after medical examination of the deceased that he was in a fit state to give statement, cannot be doubted and the dying declaration (Ex. P-12) cannot be rejected on the basis of callous statement made by Naib Tahsildar B. L. Malviya (P. W-4) that he had obtained certificate from the doctor in the duty room. There are also no reasons to doubt that Dr. R. S. Patel (P. W. 14) would give false certificate about the fitness of the declarant/deceased to give statement. There are also no reasons to suspect that Naib Tahsildar B. L. Malviya (P. W-4), who had no animus against the appellants, would himself manipulate the dying declaration (Ex. P-12) of deceased Dhannu at the instance of the police. Dying declaration (Ex. P-12) of the deceased, as it related to the cause of his death was clearly admissible under Section 32 (1)of the Indian Evidence Act and could be relied upon for the reasons stated above. ( 15. P-12) of deceased Dhannu at the instance of the police. Dying declaration (Ex. P-12) of the deceased, as it related to the cause of his death was clearly admissible under Section 32 (1)of the Indian Evidence Act and could be relied upon for the reasons stated above. ( 15. ) ALTHOUGH, it transpires from the evidence on record that two persons of appellants party, namely, Ramu and Shanta bai also sustained injuries in the incident and Shanta Bai also succumbed to her injuries later on, but there is no such cogent evidence on record that deceased party was the aggressor and initiated the assault on Ramu and Shanta Bai or on any of the appellants. Ramu himself has not been examined; in absence of his own evidence, and even otherwise, the evidence of D. W.-1 sushila Sahu and D. W-2 Subadiya given in this behalf does not inspire confidence. Evidently, appellants themselves did not sustain any injury. In fact, there is no such cogent evidence on record to infer or conclude that appellants acted in exercise of right of private defence. ( 16. ) UPON due and careful consideration of the entire evidence on record, it is found established that the three appellants conjointly assaulted the deceased using deadly weapons like sword, rod and lathi and thereby caused several injuries on his person including a fracture, i. e. Grievous hurt, on his left parieto occipital region, which ultimately resulted into his death. In view of these facts, the conviction of the appellants recorded by trial court under Section 326/34 of IPC does not warrant any interference in appeal. ( 17. ) AS regards the sentence, learned counsel for the appellants submitted that the occurrence leading to the conviction of the appellants took place in the year 1995 and after conviction they were released on bail by this Court in February, 1998, appellant no. 3 Gendlal is of more than 70 years of age, appellants have already suffered imprisonment for nearly ten months and one of the members of the appellants party also died in the same incident; it was, therefore, submitted that appellants should not be sent back to jail after long lapse of time and their sentence of imprisonment should be reduced to the period already undergone by them. Learned counsel for the appellants also cited two decisions of the Apex Court in this behalf reported in (1998)5 supreme Court Cases page 150 (G. S. Walia Vs. State of punjab and others) and 1992 Supreme Court Cases (Cri)page 292 (Parusuraman @ Velladurai and others Vs. State of Tamil Nadu) and submitted that in these cases on almost similar set of facts the sentence of imprisonment was reduced to the period already undergone and certain amount of fine was imposed. ( 18. ) CONSIDERING the submissions as advanced and the facts and circumstances of the case, particularly the fact that the occurrence took place about fourteen years back, appellant no. 3 is also more than 70 years of age and the appellants have already suffered imprisonment for nearly ten months, in my opinion, interest of justice would be subserved if the impugned sentence of imprisonment awarded to the appellants is reduced to the period already undergone by them and certain amount of fine is imposed on them to be paid to the kins of the deceased as compensation. ( 19. ) APPEAL is, therefore, partly allowed. The conviction of the appellants under Section 326/34 of IPC is upheld; but the impugned sentence of imprisonment awarded to them is reduced to the period already undergone by each of them. However, each of the appellants shall pay a fine of Rs. 5000/-(five thousand only)to be deposited by them within four months from today, in default they shall suffer rigorous imprisonment for ten months. The amount of fine, if realised, shall be paid in equal proportion to the mother and wife of the deceased by way of compensation. ( 20. ) APPEAL is accordingly disposed of.