JUDGMENT Honble Mrs. Poonam Srivastav, J.—This is an appeal against the judgment of conviction in Session Trial No. 182 of 1979 under Sections 147, 148, 149, 307, I.P.C. passed by the IIIrd Additional Sessions Judge, Basti. Ten accused namely Tilak Ram s/o Meene, Jag Mohan s/o Buddhoo, Mangal son of Meene, Kamla son of Mangal, Ram Deo son of Ram Awadh, Gafoor son of Solhar, Chunni Lal son of Gafoor, Sarju son of Gafoor, Sukhai son of Gafoor and Munni Lal son of Gafoor were sent up for trial and all of them were convicted and preferred the instant appeal. The appellant No. 1 Tilak Ram, appellant No. 2 Jag Mohan, appellant No. 6 Gafoor and appellant No. 10 Munni Lal have died during pendency of the appeal and appeal on behalf of them stands abated. I proceed to hear the argument on behalf of appellant No. 3 Mangal, appellant No. 4 Kamla, appellant No. 5 Ram Deo, appellant No. 7 Chunni Lal, appellant No. 8 Sarju and appellant No. 9 Sukhai. 2. Ms. Ibha Sinha Advocate was appointed as Amicus Curiae by this Court since the appellants were not turning up and the concerned Chief Judicial Magistrate was not able to submit compliance report whereby bail bonds were cancelled and a direction was issued to take steps against the sureties as well. Conviction of all the appellants in respect of whom the appeal is being argued, have been sentenced under Section 147, I.P.C. to six months R.I., under Section 307/149, I.P.C. to 7 years R.I. and 323/149, I.P.C. to six months R.I. All the sentences were directed to run concurrently. 3. The occurrence is alleged to have taken place on 16.12.1978 at 12 noon and the F.I.R. was lodged on the same day at 7.00 P.M. by PW-1 Bhanu Pratap Singh at Police Station Chhawani, District Basti situated at a distance of 4 Mile from the place of occurrence. 4. The appellant Tilak Ram now deceased is alleged to be armed with lathi with pointed iron end and appellant Munni Lal is alleged to be armed with Farsa. Rest of the appellants are attributed the role of using lathi at the time of incident. 5. The prosecution case as written in the F.I.R. is that the backward communities of his village namely Nagara Badli have formed a group against the Brahmins and Thakurs of the village. Rest of the appellants are attributed the role of using lathi at the time of incident. 5. The prosecution case as written in the F.I.R. is that the backward communities of his village namely Nagara Badli have formed a group against the Brahmins and Thakurs of the village. On one pretext or the other they used to go quarrel amongst themselves. The Brahmins and Thakurs are the Ex. Zamindars and the opposite parties have been their Riyals but with the change of time they have started damaging the crops etc. of the upper communities. Accused Tilak Ram has installed a tube-well and in connection with that there has been a dispute between the complainant and Tilak Ram. On 16.12.1978 at about 12 noon the complainant was sitting at his own tube well and was getting it repaired. PW-2 Tirath Mishra and Bajrangi had also come there to settle the deal with the complainant for using his pumping set to irrigate their fields. Suddenly accused Tilak Ram armed with a lathi in which a pointed iron rod was fixed. Munni Lal armed with a Pharsa, Jagmohan, Mangal, Kamla, Ramdeo, Gafoor, Chunni Lal, Sarju and Sukhai accused armed with lathis came there. Gafoor and Tilak Ram started abusing the complainant which was objected by him. Then Gafoor incited his co-accused to kill the complainant. Thereafter the accused started assaulting complainant, Tirath Mishra, Bajrangi and Jagdeo with an intention to murder. Hearing the alarm raised by the victims, Lallan Singh, Devi Prasad, Mata Prasad, Gullu, Nand Kishore, Jamuna Singh and other arrived there and intervened. The complainant and his companion wielded lathi in self defence, as a result of which Tilak Ram, Kamla and Jag Mohan also received injuries on the side of the accused. There was cut on the left eye of Tirath Mishra and was permanently damaged. He was hospitalized. Since the injuries of Tirath Mishra were very serious, therefore, the injured persons were immediately rushed to the District Hospital and having no option the F.I.R. was lodged at P.S. Kotwali which is on the opposite side, although the case relates to the jurisdiction of police station Chhawani. 6. Injuries of the injured Bhanu Pratap Singh PW-1 were examined on the same day. 6. Injuries of the injured Bhanu Pratap Singh PW-1 were examined on the same day. The injuries are detailed herein below : I/R of Bhanu Pratap Singh aged 32 years, s/o Radhika Singh, R/o Nagara Badali, P.S. Chhawani came for treatment in medical examination at 6.10 P.M. on 16.12.1978. M.I. Mole on Rt. side of face 2 cm. away from Rt. Eye ball. 1. Contusion on Rt. arm upper part 12 cm. x 1 cm. outer side. 2. Contusion on back side middle of Rt. scapular region. 3. Contusion on left side of back 3.5 cm. x 3 cm., 3cm. away from lower fold of Axilla left side. 4. Abraded contusion on skin of left Tibea 2 cm. x 1 cm. with Traumatic swelling 7 cm. x 4 cm. about injury No. 4, 10 cm below tubercle of left Tibia. 5. Abraded contusion on left foot opposite platu aspect 1 cm. x 0.5 cm 19 cm. infront of left Ankle joint. 6. Contusion on Rt. Thumb at the root 2 cm. x 1cm. The colour of contusion Red in appearance. Injuries appear to be fresh over with in 6 hours duration. All injuries simple & caused by some blunt object. Sd/- illegible. LTI of seal. Bhanu Pratap Singh Sd/- illegible. Seal. 7. Injuries of Bajrangi was also examined on the same day by the doctor which is detailed below:- I/R of Bajrangi aged 50 years approx s/o sic .........R/o Kohal Mishra, P.S. Parasu Rampur came for treatment in medical examination on 16,12.78 at 6.45 P.M. M.I. Mole on left side of face 1.5 cm outer border of left Eye ball. 1.Lacerated wound on Rt. side forehead 3.5 cm. x 0.5 cm. x skin x bone deep 5 cm. above Rt. Eye brow. 2.Contusion with abrasion back & upper part 12 cm x 2 cm., 12 cm. below left shoulder joint. 3.Contusion back of both elbow joint 5cm. x 1.5 cm. 4.Abrasion 1 cm. x 1 cm. back of left forearm 7 cm. below left elbow joint. 5.Contused swelling on Rt. upper arm back side 12 cm. x 2 cm., 6cm. above Rt. elbow joint. 6.Contusion on Root of Rt. Thumb 2 cm. x 1 cm. opposite palm. 7.Contusion on Rt. little finger mid digit 1 cm. x 1cm. opposite palm. The colour of contusion red in appearance. Injuries appear to be fresh one- end 6 hours duration. upper arm back side 12 cm. x 2 cm., 6cm. above Rt. elbow joint. 6.Contusion on Root of Rt. Thumb 2 cm. x 1 cm. opposite palm. 7.Contusion on Rt. little finger mid digit 1 cm. x 1cm. opposite palm. The colour of contusion red in appearance. Injuries appear to be fresh one- end 6 hours duration. All injuries simple-caused by some blunt object. LTI of Sd/- illegible Bajrangi Seal. Sd/- illegible Seal. 8. Injured Ram Tirath Mishra was examined thereafter. His injury report is reproduced below : I/R of Ram Tirath Mishra Aged 60 years s/o Ghosai Mishra R/o Kohal Mishra, P.S. Parasu Rampur, Distt. Basti, B/B Sri Ram Bihari at 5.45 P.M. on 16.12.78. M.I. Black mole on left side of face 5.5. cm away from left corner of mouth. 1.Incised wound on left forehead just above lateral part of left Eye brow 4.5 cm. x 0.8 cm x muscle deep up to Bone. Margins clear cut inverted. 2.Incised wound on outer side of left eyeball 4 cm. x 1cm. x skin x bone deep. Margins clear cut inverted. Injury No. (2) under observation. Refer to Eye Surgeon for opinion. 3.Contusion on left Eye lid 5 cm. x 4 cm. Eye lid swellen. Refer to Eye Surgeon for opinion of left Eye Ball in vision. 4.Traumatic swelling on left side of face 7 cm. x 6 cm. 5.Contusion on Rt. shoulder joint upper part 3 cm. x 1.5 cm. 6.Contusion on Rt. leg upper part medial side 10 cm. x 1.5 cm. starting from tubercle medial side. 7. Contusion on Rt. leg medial side 8 cm. x 1.5 cm., 7 cm. above Rt. Ankle joint. The colour of contusion Red in appearance. No 5.......sic .......? no wound seen. Injury appears to fresh one with in 6 hours duration. Injury No. (1) (2) caused by some heavy sharp cutting object. Three injuries caused by some blunt object. Injury No. (3) under observation reported after Eye Surgeon Report. LTI of Ram Tirath Mishra Sd/- Illegible. Sd/- illegible Seal. Seal. 9. The accused appellants have also received injuries at the time of incident which is admitted in the F.I.R. itself. Tilak Ram, Jag Mohan and Kamla are the injured accused persons. Three injuries caused by some blunt object. Injury No. (3) under observation reported after Eye Surgeon Report. LTI of Ram Tirath Mishra Sd/- Illegible. Sd/- illegible Seal. Seal. 9. The accused appellants have also received injuries at the time of incident which is admitted in the F.I.R. itself. Tilak Ram, Jag Mohan and Kamla are the injured accused persons. The injuries do not appear to have been proved during the trial but it stands admitted in the F.I.R. Supplementary injury report is also brought on record to substantiate that Ram Tirath PW-2 has lost his eyes in the instant incident. Ex. Ka-11 and Ex. Ka-13 are also proved by the prosecution to substantiate this fact. 10. The accused in their statements under Section 313, Cr.P.C. have denied the allegations against them and have uniformly stated that on account of enmity they have been falsely implicated. A cross case as S.T. No. 326 of 1979 at the instance of the accused is pending in the trial Court and the same was tried simultaneously. Accused Jag Mohan, Kamla, Ram Deo, Chunni Lal, Sarju and Sukhai have stated that they were not present on the spot. 11. I have heard Ms. Ibha Sinha Amicus Curiae at length and according to her submissions, the accused had also received injuries and since both the sides entered into a sudden quarrel, it is not a case where there was any intention to kill, there was any plan to commit murder. She has argued that the conviction under Section 307/149, I.P.C. is uncalled for. There was no unlawful assembly and the judgment of learned Session Judge is not justified, the trial Court has carved out a case of its own. The next argument is that the learned Session Judge has wrongly acquitted the accused from the side of the complainant though the injuries were admittedly caused on the side of the appellants also. It was case of sudden quarrel and there was no intention to cause injury whatsoever and it calls for no conviction. Since it was quarrel from both sides, the Court below should have elucidated and recorded a finding how the quarrel ensued. 12. Learned A.G.A. has disputed all arguments of Ms. Ibha Sinha Advocate and submitted that one of the injured has lost his eyes and use of Farsa is sufficient to substantiate the intention on the side of the accused. Since it was quarrel from both sides, the Court below should have elucidated and recorded a finding how the quarrel ensued. 12. Learned A.G.A. has disputed all arguments of Ms. Ibha Sinha Advocate and submitted that one of the injured has lost his eyes and use of Farsa is sufficient to substantiate the intention on the side of the accused. Lathi used by the deceased appellant Tilak Ram is also vocal of the intention of the appellants that they were only trying to save themselves and, therefore, the arguments of Ms. Ibha Sinha cannot be accepted. 13. After hearing the respective counsels at length and going through the record, statements as well as injuries on both sides, it is evident that the appellants as well as complainant entered into a quarrel on account of some flow of water of the tube-well and it was only at the spur of the moment the altercation started which led to the causing of injuries. No doubt, Ram Tirath has lost one of his eyes, however, Farsa was used by Munni Lal and lathi was used by Tilak Ram and both of them have died during pendency of the appeal and the appeal stands abated against these two appellants. The rest of the injuries as reported by doctor are simple in nature and, therefore, I am of in agreement with the submission of the counsel on behalf of appellants. I do not think that the conviction under Section 307, I.P.C. with the aid of Section 148 I.P.C. can be maintained. It was a case of sudden quarrel. The complainant has admitted injuries were caused to the accused in the incident. I am of the view that injuries were caused by both sides on an impulse. There was no planning and no meeting of thought to kill or even cause a permanent disability. No doubt the accused have not challenged the judgment of acquittal in the connected Session Trial and also no appeal but this alone does not belie the clear unequivocal admission of the complainant that accused had received injuries. 14. There was no planning and no meeting of thought to kill or even cause a permanent disability. No doubt the accused have not challenged the judgment of acquittal in the connected Session Trial and also no appeal but this alone does not belie the clear unequivocal admission of the complainant that accused had received injuries. 14. For the reasons detailed herein above, the conviction under Section 307, I.P.C. is set at naught but the appellants are convicted under Section 324, I.P.C. read with Section 149, I.P.C. A period of more than 30 years have elapsed and I do not think it proper to send the appellants to jail specially they are very old persons as it is evident that four of them are already dead. 15. In the circumstances, the appeal is partly allowed and the conviction of the appellants are converted under Section 324, I.P.C. and sentence is reduced to the period already undergone and also a fine of Rs. 1000/- each. It is true that the appellants are not being traced out but the Chief Judicial Magistrate, Basti is directed to make effort and ensure that if there is any property of the appellants then the same may be sold off and get the fine deposited. ————