Shri Kant Tripathi, J. - Heard the learned Counsel for the appellants and the learned AGA for respondent and pe­rused the lower Court record. 2. The appellants Pritam Singh and Sukhvant Singh have preferred this appeal against the judgment and order dated 27.1.1982 rendered by the then IV-Additional Sessions Judge, Pilibhit in Ses­sions Trial No. 127 of 1980 (State v. Pritam Singh and another) whereby the learned Additional Sessions Judge has convicted both the appellants under section 307 IPC and sentenced each of them to undergo rigorous imprisonment of five years and also to pay a fine of Rs. 1000/- and in de­fault of payment of fine to further undergo rigorous imprisonment of three months. 3. According to the prosecution story, there was some enmity between the complainant Banta Singh and the appellants. Prior to the incident in question, the appellant No. 2 Sukhvant Singh had cut the paddy of the complainant Banta Singh about which he had complained to appel­lant No. 1. On this, the appellants Sukhwant Singh and his father Pritam Singh took it ill. On 3.11.1978 at about 5.30 p.m. the injured Kashmir Singh was return­ing from his fields to his house. The appel­lant No. 2, Sukhvant Singh armed with "Kanta" and appellant No. 1, Pritam Singh armed with 'lathi' were standing near the 'Peepal' tree. The appellant No. 2, Sukhvant Singh asked the appellant No. 1, Pritam Singh to catch the injured Kashmir Singh and then appellant No. 1, Pritam Singh suddenly caught hold of the injured Kashmir Singh and then appellant No. 2, Sukhvant Singh struck 'Kanta' on his head. On his shrieks, Banta Singh the complain­ant, Gurucharan Singh, son of Bakshi Singh of village Devrania who had come there to arrange labour and Banta Singh son of Surendra Singh of Mohanpur arrived there and challenged the appellants on which the appellants had run away. The injured Kashmir Singh was taken to the District Hospital, Pilibhit on a Tractor trolley where medical examination of his injuries was conducted. His injury report is Exihibit Ka. 2. Subsequently his X-ray was also done. The X-ray report is Exhibit Ka. 3 and X-ray plate is Exhibit 1. The doctor, who medi­cally examined him, prepared the supple­mentary report of injuries on the basis of the X-ray report. The supplementary report is Exhibit Ka. His injury report is Exihibit Ka. 2. Subsequently his X-ray was also done. The X-ray report is Exhibit Ka. 3 and X-ray plate is Exhibit 1. The doctor, who medi­cally examined him, prepared the supple­mentary report of injuries on the basis of the X-ray report. The supplementary report is Exhibit Ka. 4, The complainant Banta Singh lodged an FIR of this incident at the police station Kotwali, Pilibhit which Ex­hibit Ka. 1, on which basis, the Police regis­tered the case for investigation and submit­ted charge-sheet against the appellants. 4. The learned Trial Court charged both the appellants under section 307 IPC. They denied the charges and claimed to be tried. 5, During the trial three eye-witnesses were examined to prove the charges. P.W.-l Banta Singh happens to be the father of the injured and said to be eye-witness of the occurrence. P.W.-3, Kashmira Singh is the injured and P.W.-4 Santa Singh is also an eye-witness of the occurrence. These three witnesses have supported the prosecution story in the witness box. 6. P.W.-2 Dr. V.P. Agarwal had medi­cally examined the injured, who has proved the injuries sustained by the injured and also the injury report, Exhibit Ka-3 and supple­mentary report, Exhibit Ka-4. The injured had sustained the following injuries: Incised wound 7.0 x 2.0 cm x bone deep on the right side of head 7.0 cm. above right ear. The injury is trailing back­wards. The margins are clean cut with fresh bleeding present. Kept under observation. Advised X-Ray. Lacerated wound 2.0 x 1.0 cm. x mus­cle deep on left side of upper lip on the ma-cosal aspect. 7. The injury No. 1 was kept under observation and the injured was advised for X-ray. On X-ray of injury No. 1, a frac­ture was seen in the skull but there was no abnormality in the abdomen and chest. 8. P.W. 2, Dr. V.P. Agarwal on the basis of the X-ray report as well as the supplementary report stated that the injury no. 1, which was a fracture, was grievous in nature and was sufficient to cause death. 9. The appellants had examined the defence witness, D.W.-1, Balbir Singh, in their defence, who has deposed that it was about 7 or 8 p.m. when he heard the noise. His house is at a distance of about 40 paces from the place of occurrence. 1, which was a fracture, was grievous in nature and was sufficient to cause death. 9. The appellants had examined the defence witness, D.W.-1, Balbir Singh, in their defence, who has deposed that it was about 7 or 8 p.m. when he heard the noise. His house is at a distance of about 40 paces from the place of occurrence. He rushed to the spot and saw that Kashmir Singh, Makhan Singh and Darshan Singh had caught Pritam Singh. The another accused Sukhvant Singh was not there. Kashmir Singh had 'Darati' in his hand and was badly drunk. The assailants (Kashmir Singh, Makhan Singh and Darshan Singh) were saying that where was Sukhvant Singh and that they would kill him. Pritam Singh said that he did not know and that he was not at his house. On this Kashmir Singh, Makhan Singh and Darshan Singh caught Pritam Singh and said that if his son was not there, he should be killed. Seeing this D.W. 1 himself along with Bahadur Singh and Darshan Singh had freed Pritam Singh as a result of which Kashmir Singh had fallen down and his own 'Darati' had caused injuries on his head. He has been cross-examined by the prosecution Coun­sel. He has deposed in his cross examination that in connection with this occurrence, the I.O. had come in the village second or third day and that the I.O. told him that he was not required and when the necessity would arise he would be called. 10. On the request of the appellants' Counsel one more witness C.W.-1 Darshan Singh was also examined. He has deposed that clothes of Kashmir Singh injured were taken in possession by the police in his presence but he could not see as to whether or not the clothes were blood stained. 11. The learned Additional Sessions Judge held that the prosecution story was believable and the charge under section 307 IPC was proved beyond reasonable doubts and the defence version was not probable. 12. The learned Counsel for the appel­lant No. 1 submitted that the appellant No. 1 had not played any role except that he had caught hold of the injured. The main assailant was appellant No. 2 Sukvant Singh, who has died during the pendency of the appeal. 12. The learned Counsel for the appel­lant No. 1 submitted that the appellant No. 1 had not played any role except that he had caught hold of the injured. The main assailant was appellant No. 2 Sukvant Singh, who has died during the pendency of the appeal. The learned Counsel for the appellant further submitted that the offence under section 307 IPC is not made out against the applicant No. 1. From the proved facts and circumstances of the case, the only offence under sections 326 read with 34 IPC is made out against him. The learned Counsel for the appellant next submitted that he would not press the ap­peal, so far as the involvement of the appel­lant No. 1 in committing the instant inci­dent is concerned but he would submit that the occurrence is of the year 1978 and since more than 32 years have elapsed and the appellant No. 1 has not only become almost blind but is also more than 80 years. The learned Counsel for the appellant urged that the appellant may not be incarcerated in jail again and may be sentenced with the imprisonment for the period already un­dergone. 13. The prosecution story regarding assault on the injured by appellant No. 2 (deceased) with a 'Kanta', (a sharp edged weapon) is fully established from the statements of the aforesaid 'eye-witnesses, which has been corroborated by the medi­cal evidence of P.W.-2 Dr. V.P. Agarwal. The only allegation against the appellant No. 1 is that he had caught hold of the injured at the time of the incident and thus assisted the main assailant (the appellant No. 2) to strike with the 'Kanta' on the head of the injured. 14. In view of the fact that the learned Counsel for the appellants has not pressed the appeal on the merit of the finding of the guilt recorded by the trial Court against the appellant No. 1 and merely contended that no offence under section 307 IPC was made out, it seems to be proper to ascertain as to what offence is made out from the proved facts. 15. It appears to be a case of simple Maar-peel without any intention or knowl­edge to kill the injured. 15. It appears to be a case of simple Maar-peel without any intention or knowl­edge to kill the injured. If during the course of simple Mnai-peet, the appellant No. 2 inflicted a single blow with a sharp edged weapon on the head of the injured, it can­not be contended that the injury No. 1 was inflicted with the intention or knowledge to cause death of the injured. Had the assault been made with that intention or knowl­edge, the blow or strike on head, most probably, would have been repeated. 16. The contention of the learned Counsel for the appellants that no offence under section 307 IPC is made out seems to have some substance. In the case of Rekha Mandal and others v. State of Bihar, 1967 CAR 108 the Apex Court has held that section 307 IPC re­quires that the act must be done with such intention or knowledge or under such cir­cumstances that if death be caused by that act, the offence of murder will emerge. In that case the fact that the injuries were not dangerous to life was also taken into con­sideration for holding that no offence un­der section 307 IPC was made out. 17. In view of the facts and circum­stances cited above, I am of the view that the offence under section 307 IPC is not made out. Since the injured had sustained grievous injury on his head, which was caused with a sharp edged weapon, only the offence under section 326 IPC is made out. The appellant was not the assailant, he had merely shared the common intention and as such he is guilty of committing the offence under section 326 read with 34 IPC. 18. In view of the fact that the appel­lant No. 1 had not played any role except the role of catching hold of the injured and the incident is of the year 1978 and since then more than thirty two years have elapsed and now the appellant has attained the age of 80 years and has also almost lost eye sights, I do not consider it just and ex­pedient to incarcerate the appellant No. 1 in jail again. The ends of justice would be met if the appellant No. 1 Pritam Singh is sentenced for the period already under­gone and also to pay a fine of Rs. 5000/-. 19. The appeal is, therefore, partly allowed. The ends of justice would be met if the appellant No. 1 Pritam Singh is sentenced for the period already under­gone and also to pay a fine of Rs. 5000/-. 19. The appeal is, therefore, partly allowed. The order of conviction and sen­tence under section 307 IPC recorded against the appellant No. 1 Pritam Singh is set aside. The appellant No. 1 is convicted and sentenced under sections 326 read with 34 IPC to undergo imprisonment for the period already undergone and also to pay a fine of Rs. 5000/- and in default of pay­ment of fine to undergo a further rigorous imprisonment of six months. 20. The appellant No. 1 is granted two months time to deposit the fine. On recov­ery of the fine, a sum of Rs. 4000/- shall be paid to the injured as compensation. 21. The appeal is abated against ap­pellant No. 2 Sukhvant Singh. 22. Let a certified copy of this judgment along with the lower Court record be transmitted to the Sessions Judge, Pilibhit for compliance.