JUDGMENT Honble Mrs. Poonam Srivastav, J.—Heard learned counsel for the appellants and learned A.G.A. for the State. 2. The present appeal was filed by two appellants Nathu son of Chheda Lal and Ram Bir son of Nathu Singh challenging the judgment and order dated 2.5.1981 passed by the XIth Additional Sessions Judge, Etah in Sessions Trial No. 285 of 1978. The sentence awarded to the appellant is one year R.I. and fine of Rs. 1000/- under Section 323, I.P.C. The trial proceeded and charge framed against the two appellants was under Section 302 read with Section 34, I.P.C. The F.I.R. was registered under Section 304, I.P.C. on 8.10.1976 at 8.35 P.M. relating to an occurrence alleged to have taken place on 7.10.1976 at 6.00 P.M., at Police Station Jaithara, Sub-District Aliganj, District Etah. 3. The prosecution case as detailed in the F.I.R. was that at the relevant time Nathu son of Chheda Lal was 55 years and Ram Bir was aged about 17 years. 4. The prosecution case is that a child of accused Natthu Singh had plucked some sugar cane from the field of deceased Lakhpat Singh. This fact was noticed by the son of Lakhpat Singh. He informed his father. At about 6.00 or 7.00 P.M. on October 7, 1976, Lakhpat Singh went to the house of accused Natthu Singh to lodge protest. The field from where the sugar cane was plucked, is situated infront of the house of Natthu Singh. In the course exchange of hot words ensued and finally an altercation took place between Lakhpat Singh and Natthu Singh. Accused Natthu Singh went inside his house and got a lathi and began to wield lathi on Lakhpat Singh. His son Ramvir also began to hurl brick bats upon the deceased Lakhpat Singh. Consequently, Lakhpat Singh suffered injuries on his head, arm and stomach. Ishwar Dayal, Lalman, Hira Lal, Deshraj and other people of the village reached the place of occurrence and they intervened. After the incident, Dwarika Prasad and Jaduraj Singh came to the place of Lakhpat Singh and they persuaded the deceased Lakhpat Singh and the accused to compromise the matter because both of them were poor people. According to these persons, nothing would be gained from lodging the report. However, in the following evening (8.10.1976, at about 5.00 or 6.00 P.M.). After the incident, Dwarika Prasad and Jaduraj Singh came to the place of Lakhpat Singh and they persuaded the deceased Lakhpat Singh and the accused to compromise the matter because both of them were poor people. According to these persons, nothing would be gained from lodging the report. However, in the following evening (8.10.1976, at about 5.00 or 6.00 P.M.). Lakhpat Singh died on account of the injuries which he had received on the previous day. Consequent upon his death, it become necessary to lodge a report. Nazir Singh, cousin of Lakhpat Singh went to the police station with the written report (Ex. Ka-1). 5. At Police Station First Information Report (Ex. Ka-2) was prepared on the basis of the written report (Ex. Ka-1). Entries were made in the General Diary and a case was registered. A true copy of the entries of General Diary is (Ex. Ka-3) and the investigation was taken up by S.I. Sri S.P. Singh. 6. Post Mortem on the body of Lakhpat Singh was conducted by Dr. Dhirendra Pratap Singh. The Medical Officer found two ante mortem injuries on the dead body of Lakhpat Singh. First injury was on the left side of the head. Beneath this injury parietal bone was fractured. Blood clots was present between scalp and bone. The second injury was on the front of the left shoulder. According to Dr. Singh, death of Lakhpat Singh had taken place due to shock and cerebral haemorrhage due to the ante mortem injuries which were caused by some blunt object. The Investigating Officer after completing investigation, submitted charge sheet against the accused under Section 304, I.P.C. 7. The prosecution examined Nazir Singh, Ishwar Dayal, Lalman, Head Constable Yadram, Dr. Dhirendra Pratap Singh and I.O. S.I. Sri S.P. Singh. An affidavit was filed on behalf of constable Rajendra Singh. He had taken the dead body of Lakhpat Singh for post mortem. The accused had examined Dwarka in their defence. 8. Learned Session Judge after taking into consideration the statements of the witnesses, documents on record and weighing the facts and circumstances, was of the view that there was nothing on record to come to a conclusion that both the accused shared a common intention and none of them can be held guilty for committing culpable homicide not amounting to murder. Neither there was any common intention nor knowledge. Neither there was any common intention nor knowledge. No doubt a person has died as a result of the injuries but the accused were convicted under Section 323, I.P.C. alone. No State appeal has been preferred. It is only the appellants who have challenged their conviction of one year R.I. and fine of Rs. 1000/-. 9. The submission of learned counsel for the appellants is that the appellants have already remained in jail for six months, 22 days. They have also deposited fine. Besides, Ramvir was juvenile aged about 17 years at the time of occurrence. There is no dispute regarding age. Since there was no intention to cause death, it was a sudden quarrel. In fact the deceased himself had come to the house of the accused on account of the reason that he plucked sugar cane from his fields. 10. Learned A.G.A. has also supported the judgment and it appears that no State appeal has been filed and, therefore, I am of the considered view that since the conviction is only under Section 323, I.P.C. and the injuries were caused at the spur of the moment, the sentence already undergone is sufficient to meet the ends of justice. One of the accused, who was aged about 55 years on the relevant date, is almost 85 years of age and he need not be sent to jail. 11. In the circumstances, the appeal is partly allowed. The sentence of one year under Section 323, I.P.C. is reduced to the period already undergone. The fine has already been deposited. The appellants need not surrender. ————