JUDGMENT 1. - The appellant has preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and sentence dated 19/20.2.1986 passed by Addl. Sessions Judge, Baran (for short `the trial Court') in sessions case No 84/83 whereby he convicted and sentenced the accused appellant as under :U/s 304 Part-I IRC : Ten years' RI and a fine of Rs. 2,000/-. in default of payment of fine, he s^all further undergo six months Rl. U/s 147 IRC: One year RI. Both the sentences were ordered to run concurrently.Brief facts of the case are that on 4th June, 1983 at about 2:00 AM Shri Bhagwan Lal (since deceased) went to P.S. Nahargarh accompanied by his brother Ram Kishan and Bhagwan Lal and lodged a verbal report to this effect that at about 5 or 6 P.M. on the preceding evening he was standing in front of his house. His younger brother Ram Kishan was also standing there. It was further stated in the FIR that the informant's brother Ram Kishan told the appellant and his father Har Narain, who are alleged to be standing in front of the house of Kajod Dhakar as to why had they placed stones on their Revadi, which was lying in the chowk of the field. Thereupon, Har Narain, is alleged to have told him that the said place did not belong to his father and he started hurling filthy abuses. Thereupon the informant Bhagwan Lal and his brother Ram Kishan forbade him from giving the abuses. 2. The complainant further mentioned in the report that the accused appellant hit the informant with a stone on the right side of the head, as a result of which he started bleeding. Co-accused Har Narain is alleged to have inflicted a lathi blow on the right elbow. Co-accused Hira Lal is alleged to have inflicted a lathi blow on the right leg and co-accused Khem Lal inflicted a lathi blow on his back. Co-accused Dwarka Lal, Mathura Lal, Brij Mohan, Bhanwar Lal and Madan Lal Dhakar of village Pachlawda are also alleged to have arrived there and they are also alleged to have given beating to the informant with fists and legs in the abdomen and the testicles. Co-accused Dwarka Lal, Mathura Lal, Brij Mohan, Bhanwar Lal and Madan Lal Dhakar of village Pachlawda are also alleged to have arrived there and they are also alleged to have given beating to the informant with fists and legs in the abdomen and the testicles. The accused persons alleged to have given beating to the informant Bhagwan Lal and his brother Ram Kishan outside his house as also in the court yard of the house with common object. The above occurrence was alleged to have been seen by Kajod and others. 3. After investigation, the police submitted charge-sheet against the accused appellant. 4. The trial Court after hearing framed the charges against the accused appellate for the aforesaid offences, who denied the charges, pleaded not guilty and claimed to be tried In the matter, 5. The prosecution in support of its case produced as many as 16 witnesses and certain documents were got exhibited. 6. Thereafter the statement of the accused-appellant under Section 313 Cr.RC. was recorded. In defence the accused appellant produced one witness and certain documents were got exhibited. 7. After hearing both the parties, the trial Court vide its judgment dated 19/20.2.1986 convicted and sentenced the accused-appellant for the aforesaid offences but gave the benefit of probation to other accused persons for the offence under Sections 147, 323/149 I PC. 8. Aggrieved with the impugned judgment of conviction and sentence dated 19/20.2.1986, passed by trial Court, the accused appellant has preferred the instant appeal. 9. I have heard both the counsel appearing for the respective parties and carefully scanned the entire material made available to me. 10. Mr. Mehrishi, counsel for the accused-appellant submits that the trial court has not properly considered the statements of prosecution witnesses and erred in convicting and sentencing the accused appellant for the aforesaid offences. The trial court has not gone through the ingredients of provisions of Section 304 Part I and 304 Part II, which runs as under: "304. 10. Mr. Mehrishi, counsel for the accused-appellant submits that the trial court has not properly considered the statements of prosecution witnesses and erred in convicting and sentencing the accused appellant for the aforesaid offences. The trial court has not gone through the ingredients of provisions of Section 304 Part I and 304 Part II, which runs as under: "304. Punishment of culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 11. The trial court has erred in relying upon the testimony of PW4 Ram Kishan, PW8 3mt. Girraj, PW12 Laxmi Chand and PW13 Kajod. PW15 Roop Singh, who was I.O. of the case and PW14 Altaf Hussain, who was a constable both of them are police personnel and both of them were interested in the success of the investigation and no reliance can be placed on the alleged dying declaration recorded by PW15 Roop Singh. According to PW8 Smt. Girraj Bai, Bhagwan Lal had become unconscious after sustaining the injury of the head and in these circumstances no reliance can be placed on Ex.P3. The other statements of the prosecution witnesses are contradictory to each other. 12. Mr. Mehrishi, in support of his case has placed reliance upon following judgments : 1. Sakir Mohd. @ Sakir Hussain v. State of Rajasthan, Cr.L.R. (Raj.) 1983, page 707 2. Sugna Ram v. State of Rajasthan, SB Criminal Jail Appeal No. 434/93), 1994 Cr.L.R. (Raj.) 226 , 3. Arjun Lal v. State of Rajasthan, 2008(3) RCC 1207 ; and 4. State of Punjab v. Surjan Singh and another, (1975) 1 SCC 588 . Sakir Mohd. @ Sakir Hussain v. State of Rajasthan, Cr.L.R. (Raj.) 1983, page 707 2. Sugna Ram v. State of Rajasthan, SB Criminal Jail Appeal No. 434/93), 1994 Cr.L.R. (Raj.) 226 , 3. Arjun Lal v. State of Rajasthan, 2008(3) RCC 1207 ; and 4. State of Punjab v. Surjan Singh and another, (1975) 1 SCC 588 . Lastly, he requested before this Court in the instant case the alleged occurrence has taken place on 4.6.1983 i.e. almost more than 26 years which tantamounts to mental agony. The co-accused have been given the benefit of probation but the present accused appellant have been deprived of the same. In the instant case, from the statements of prosecution witnesses it is clear that there was no intention of the accused appellant to commit murder of the accused appellant. The accused appellant has remained in judicial lock up near about 21 months. Thus, the accused appellant be convicted and sentenced for the offence under Section 304 Part-II instead of section 304 part I and the ends of justice would be met if the accused appellant is released for the period already undergone by him in confinement. 13. Learned PP controverted the aforesaid submission of the counsel for the accused appellant and submits that the impugned judgment of conviction and sentence passed by the trial Court needs no interference of this Court. He further submits that in the instant case the accused appellant is the main accused, who pelted stones upon the deceased- as a result of which deceased died, which is corroborated from the statements of PW4 Ram Kishan, PW8 Girraj Bai, PW12 Nadi and PW13 Kajod. Thus, the prosecution has proved the case against the accused appellant beyond all reasonable doubts. The trial Court while passing the impugned judgment of conviction and sentence has taken into consideration all the facts of the case and material available on record. 14. In my considered view the judgment of conviction and sentence passed by the learned trial Court needs interference of this Court. 15. In the result this criminal appeal is partly allowed. The conviction and sentence imposed on the appellant for the offence under Section 304 Part I is set aside. The appellant is convicted of the offence punishable under Section 304 part II and in the interest of justice he be released for the period already undergone by him in confinement. 15. In the result this criminal appeal is partly allowed. The conviction and sentence imposed on the appellant for the offence under Section 304 Part I is set aside. The appellant is convicted of the offence punishable under Section 304 part II and in the interest of justice he be released for the period already undergone by him in confinement. But i impose a fine amounting to Rs. 30,000/- (Rs. Thirty Thousand only) upon the accused appellant. The accused appellant shall deposit such amount of fine before the learned trial Court within a period of four months from the date of receipt of certified copy of this order, failing which the accused appellant shall undergo two years' RI. After deposition of such amount by the accused appellant, the trial Court shall disburse this amount to the successors of the deceased forthwith. Rest of the judgment dated 19/20.2.1986 passed by Addl. Sessions Judge, Baran in sessions case No. 84/83 is maintained.Appeal partly allowed. *******