Hon'ble JAIN, J.—Both the appeals are directed against the impugned judgment dated 18.12.1981 passed by the Additional Sessions Judge, Kishangarh Bas, Camp Behrod, in Sessions Case No. 46/1980, therefore, they are being disposed of by this common judgment. 2. Briefly stated the facts of the case are that on 5.6.1980 an oral report was lodged by Rajpal (PW.1) at Police Station Mandhan, District Alwar, which was entered at S.No. 134 in Roznamcha (Ex. P.12). It was alleged in the report that he is the resident of Mauza Basai Bhopal Singh. On 4.6.1980 at about 10.00 PM, his uncle Omprakash asked as to who had removed the stones, then he told that they have removed as they belong to them and they have also won the case. Thereafter Omprakash told that he had given the same to Ramkumar. Omprakash and Ramkumar were standing near the wall of his Uncle and his Bhabhi (Sister-in-law) Rajbala, his mother Gindori, his Grandmother Sharwan and his Aunt Kaushalya started quarreling. His mother Gindori was beaten by Omprakash, Kaushalya, Sharwan and Bhani by fists and kicks. He was also beaten by all the four persons by stones and lathi. After hearing hue and cry, number of villagers came at the spot. 3. On the basis of above report, the police registered a case under Section 323 IPC. Smt. Gindori was medically examined on 5.6.1980 by PW.6 Suresh Chandra Meena and her injury report (Ex.P.10) was prepared, wherein the following injuries were mentioned:- (1) Abrasion with swelling 4cm x 1cm on lower part of the chest right side. (2) Patient also complaining of pain abdomen, but no sign of external injury. Abdomen is distended and tender also giving h/o not passing flatus. 4. Smt. Gindori died on 7.6.1980 at 7.45 PM and her post-mortem was conducted on 8.6.1980 at 8.30 AM. Post-mortem report is Ex.P/7 wherein it was observed that patient was examined by the Medical Officer, Mandhan, who referred the case here for X-ray and treatment and brought by the police of Police Station Mandhan on 6.6.1980. She was very serious and thus expired in the hospital on 7.6.1980. As per post-mortem report (Ex.P/7), the following external and internal injuries were found:- External injuries 1. Abrasion with scab 5cm x 1/2 cm. On right side chest lower ribs anteriorly 14 cm. Below nipple. She was very serious and thus expired in the hospital on 7.6.1980. As per post-mortem report (Ex.P/7), the following external and internal injuries were found:- External injuries 1. Abrasion with scab 5cm x 1/2 cm. On right side chest lower ribs anteriorly 14 cm. Below nipple. Internal injuries (1) Peritoneal cavity contains foulsmelling discharge of feculent matter with adhesions: the loops are covered with flacks. There is big perforation of small gut 1-3/4 cm. x 1-3/4 cm. in size and right side upper part of abdomen. 5. As per the opinion of the doctor, the cause of death was as under:- "In my opinion death occurred due to blunt injury abdomen with perforation of gut + peritoneum with septicemia, ante-mortem in nature." 6. After death of Smt. Gindori, chalked FIR No. 21 was registered on 8.6.1980 under Section 302 IPC at 3.30 PM. After completion of investigation, the police filed a charge-sheet against two accused persons, namely, Omprakash and Smt. Kaushalya W/o Omprakash. The learned Judicial Magistrate committed the case to the Court of Sessions Judge, Alwar, who transferred the case for trial to the Court of Additional Sessions Judge, Kishangarh Bas, Camp Behrod. 7. Learned trial Court framed charge against accused Omprakash under Sections 302 and 323 IPC and against accused Smt. Kaushalya under Section 302 or in the alternative under Section 302 read with Section 34 and 323 IPC. The accused persons denied the charges and claimed trial. 8. The prosecution in support of its case examined PW.1 Rajpal, PW.2 Rajbala, PW.3 Mst. Kela, PW4 Amar Singh, PW. 5 Dr. P.S. Agarwal, PW. 6 Dr. Suresh Chandra Meena, PW.7 Munnalal Srivastava, PW.8 Gordhan Singh, PW.9 Rawat Singh, PW. 10 Ramkumar Singh, PW. 11 Jagdish Prasad, PW. 12 Radhey Shyam, ASI., PW. 13 Dhan Singh, PW. 14 Ramniwasi and PW. 15 Deenaram Khatana, S.H.O. Thereafter the statements of the accused persons were recorded under Section 313 Cr.P.C., wherein a plea of alibi in respect of accused Omprakash was taken. In defence, the statements of DW1 Dr. Suresh Chandra Meena, DW 2 Shaitan Singh and DW3 Kaluram were recorded. 9. The learned trial Court after considering the submissions of the parties and examining the record of the case, acquitted both the accused persons from the charge under Sections 302 and 302/34 IPC. Accused Mst. Kaushalya was also acquitted from charge under Section 323 IPC. Suresh Chandra Meena, DW 2 Shaitan Singh and DW3 Kaluram were recorded. 9. The learned trial Court after considering the submissions of the parties and examining the record of the case, acquitted both the accused persons from the charge under Sections 302 and 302/34 IPC. Accused Mst. Kaushalya was also acquitted from charge under Section 323 IPC. However accused Omprakash was convicted and sentenced under Section 323 IPC to one year's rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo three months' additional rigorous imprisonment. Being aggrieved with the same, accused Omprakash preferred D.B. Criminal Appeal No. 19/1982 and the State preferred D.B. Criminal Appeal No. 157/1983. 10. The submissions of the learned counsel for the accused persons are that from the facts and circumstances of the case, it is clear that the incident took place all of a sudden between ladies of both parties and the accused persons were not armed with any weapon, as per allegations in the FIR as well as the statements, the injuries on the person of the deceased were inflicted by fists and kicks. As per the injury report of deceased Ex. P.10, it is clear that deceased sustained only one abrasion on lower part of the chest right side, therefore, in any circumstance, intention or knowledge to kill the deceased cannot be inferred and the learned trial Court was absolutely right in acquitting the accused persons of the charge under Section 302 and alternative charge under Section 302/34 IPC. He further contended that the incident took place in the year 1980 and it is 30 years old matter and even otherwise there is no illegality in the findings of the learned trial Court so as to interfere with the same. He contended that even if submission of the learned Public Prosecutor is accepted and evidence is re-appreciated and another view is also possible, then as per the settled proposition of law, even if two views are possible, on appreciation of evidence, then the view favourable to the accused has to be adopted and the other of acquittal should not and cannot be interfered with. Further, the order of acquittal cannot be interfered with, unless there are some compelling and substantial reasons for doing so. He therefore contended that the State appeal be dismissed. 11. Further, the order of acquittal cannot be interfered with, unless there are some compelling and substantial reasons for doing so. He therefore contended that the State appeal be dismissed. 11. So far as appeal preferred on behalf of accused Omprakash challenging his conviction and sentence under Section 323 IPC is concerned, his learned counsel contended that in view of statements of three eye witnesses, namely, PW.1 Rajpal, PW.2 Rajbala and PW.3 Kela, which are against him, he does not press his appeal against conviction under Section 323 IPC on merit and it being a first offence and now 30 years old matter, he may be granted the benefit of probation or accused Omprakash has already remained in custody for about 48 days during investigation/trial of the case, his sentence of imprisonment of one year's R.I. awarded by the trial Court be reduced to a period of imprisonment already undergone by him. 12. Learned Public Prosecutor argued that from the statements of PW.1 Rajpal, PW2 Rajbala and PW.3 Kela, it is clear that the accused persons gave beating on the person of the deceased resulting in her death, therefore, the intention can be inferred to kill Smt. Gindori or atleast knowledge can be inferred that the injuries inflicted by the accused persons were likely to cause death of Smt. Gindori, therefore, the trial Court committed an illegality in acquitting the accused persons from the charge under Section 302 and/or 302/34 IPC. He contended that at least the accused persons should have been convicted under Section 304 Part-I or Part-II IPC. He, in alternative, contended that although there was only one injury but that was proved to be fatal and should have been termed as grievous and accused Omprakash at least should have been convicted under Section 325 IPC in place of 323 IPC. He, therefore, contended that the impugned judgment passed by the trial Court be set aside and the accused persons be convicted and sentenced suitably. 13. We have considered the submissions of the learned counsel for the parties and minutely scanned the impugned judgment as well as record of the trial Court. 14. As per Ex. P.12 Roznamcha report, the incident took place on 4.6.1980 at about 10.00 PM and report was lodged on 5.6.1980 at 5.00 PM. As per the police proceedings, Mst. 13. We have considered the submissions of the learned counsel for the parties and minutely scanned the impugned judgment as well as record of the trial Court. 14. As per Ex. P.12 Roznamcha report, the incident took place on 4.6.1980 at about 10.00 PM and report was lodged on 5.6.1980 at 5.00 PM. As per the police proceedings, Mst. Gindori had sustained two simple injuries, one injury on stomach and another on shoulder and a case was registered under Section 323 IPC Smt. Gindori was medically examined on 5.6.1980 itself and her injury report Ex. P.10 is available on record, which has been reproduced herein above. From Ex. .10, it is clear that there was only one abrasion with swelling 4cm x 1 cm on lower part of the chest right side by blunt object. Injury No. 2 was only about complaint of pain of abdomen but no sign of external injury was found. Smt. Gindori died on 7.6.1980 at 7.45 PM and her post-mortem was conducted. Post-mortem report is Ex. P7, according to which there was only one external injury i.e. abrasion on right side of chest. So far as internal injuries are concerned, it has been mentioned that there was peritoneal cavity containing foulsmelling discharge of fecal matter with adhesions, the loops are covered with flacks and there is big perforation of small gut. 15. The doctor who conducted post-mortem was PW.5 Dr. P.S. Agarwal. The deceased was initially medically examined on 5.6.1980 by PW.6 Dr. Suresh Chandra Meena. The cause of death, as mentioned in the post-mortem report, is that death occurred due to blunt injury abdomen with perforation of gut and peritoneum with septicemia and ante-mortem in nature. PW.5 Dr. P.S. Agarwal has not stated specifically that internal injury was result of external injury abrasion. He has also not stated that single external injury was sufficient to cause death. 16. The prosecution in the present case has examined 15 witnesses including three eye witnesses, namely, PW.1 Rajpal, PW.2 Rajbala, PW.3 Kela and other witnesses PW.9 Rawat Singh and PW.13 Dhansingh. PW.9 Rawat Singh was declared hostile and PW.13 Dhansingh was allowed to cross examine by the Public Prosecutor. We have examined their testimony minutely. PW.1, PW.2 and PW.3 have categorically stated that accused Omprakash and Smt. Kaushalya inflicted injuries on the person of the deceased by fists and kicks. PW.9 Rawat Singh was declared hostile and PW.13 Dhansingh was allowed to cross examine by the Public Prosecutor. We have examined their testimony minutely. PW.1, PW.2 and PW.3 have categorically stated that accused Omprakash and Smt. Kaushalya inflicted injuries on the person of the deceased by fists and kicks. From the statements of eye-witnesses, it is clear that the accused persons were not armed with any weapon. PW.1 Rajpal has stated that accused Omprakash was armed with lathi, however, no lathi was recovered during investigation from accused Omprakash. It is also relevant to mention that Smt. Gindori sustained only one injury which cannot be said to be inflicted by lathi, therefore, it is clear that the accused persons were not armed with any weapon and the incident took place on a small matter about removal of some stones which were lying at the place of incident. According to accused Omprakash, stones were belonging to him, whereas PW.1 Rajpal was claiming the same of his as he had won the case. From Ex.P.12 Roznamcha report as well as chalked FIR Ex. P.1, it is clear that the ladies of both parties i.e. Rajbala, Gindori, Sharwan and Kaushalya started quarreling on removal of stones. Subsequently, it was stated that accused persons also inflicted injury on the person of PW.1 Rajpal. 17. In this regard it is also relevant to mention that Rajpal initially named four persons as assailants but during investigation, the same was found to be false and charge-sheet was filed against only two accused persons namely, Omprakash and Smt. Kaushalya. PW.1, PW.2 and PW.3 in their statements recorded before the trial Court stated that only Omprakash and Kaushalya inflicted injuries by fists and kicks. The trial Court while appreciating oral and documentary evidence has observed that Rajpal PW.1 has not come with clean hands and he took names of two more persons namely Smt. Sarwani and Smt. Bhani as an accused falsely, therefore, there is possibility that he has falsely implicated Smt. Kaushalya also as an accused. His allegation in his initial report (Ex. P. 12) against four persons, was not supported by him during trial and the same is not corroborated by any other evidence also. 18. We have carefully examined the statements of PW.1 Rajpal and report Ex. His allegation in his initial report (Ex. P. 12) against four persons, was not supported by him during trial and the same is not corroborated by any other evidence also. 18. We have carefully examined the statements of PW.1 Rajpal and report Ex. P.12 and find that Rajpal initially named four accused persons but in his statement recorded before the trial Court, he named only two persons, therefore, we find that the finding of the learned trial Court in this regard is based on proper appreciation of evidence and there is no perversity or illegality in the same. 19. So far as accused Omprakash is concerned, he has been named as assailant by PW.1, PW.2 and PW.3 as well as PW.13, but so far as name of Smt. Kaushalya is concerned, her name has not been taken by PW.13 Dhansingh. It appears that PW.13 is not an eye-witness. He has stated that he met with Smt. Gindori in the hospital, who stated him that quarrel took place with Omprakash and she did not take the name of Kaushalya. Learned trial Court has observed that there is only one injury sustained by the deceased. PW.1 Rajpal initially took the name of four accused persons as assailants but during trial he named only two persons, therefore, it is not proved beyond doubt that Kaushalya also participated in the incident and he acquitted accused Smt. Kaushalya, not only from the charge under Section 302/34 IPC, but also from charge under Section 323 IPC. After close scrutiny of oral and documentary evidence, we find that the finding of the learned trial Court in this regard is based on proper appreciation of evidence and we do not find any perversity or illegality in the same. 20. From the above discussions of facts, it is clear that deceased Smt. Gindori sustained only one injury which was not inflicted by any weapon but was inflicted only by fists and kicks. There was no repetition of injuries and the accused persons were not armed with any weapon and the deceased died due to blunt injury abdomen with perforation of gut and peritoneum with septicemia. Since no weapon was used and injury was inflicted by fists and kicks, therefore, in any circumstances, it cannot be inferred that there was any intention or knowledge to kill deceased Smt. Gindori. Since no weapon was used and injury was inflicted by fists and kicks, therefore, in any circumstances, it cannot be inferred that there was any intention or knowledge to kill deceased Smt. Gindori. In these circumstances, we are of view that learned trial Court has rightly acquitted both the accused persons of the charge under Section 302 and 302/34 IPC and to accused Kaushalya under Section 323 IPC. We do not find any merit in the State appeal. 21. The Division Bench of this Court in Nazir & another vs. State of Rajasthan, 1977 WLN (UC) 179 considered the matter where the accused persons went on giving blows after blows and also struck the deceased's head against the wall and since no weapon was used, it was observed that intention inevitably must be proved against the accused persons was the intention to inflict injury on the person of the deceased and not to kill the deceased and the finding recorded by the trial Court under Section 302 IPC was set aside and it was altered to Section 325 IPC looking to the nature of injuries. The Division Bench held as under:- "6.....We feel that the learned trial Court was in error in attributing the intention to the accused to commit murder and that there was no intention to cause death is clear from the evidence on record that no weapon was used by the appellants against the deceased. We cannot find any intention or even knowledge to the accused that their act was likely to cause the death of the deceased. The conviction under Sec. 302 IPC cannot, therefore, be sustained & it is altered to Sec. 325 IPC...." 22. In Ahamad Ali Khan & Anr. vs. State of Rajasthan, 1986 Cr.L.R. (Raj.) 170, the Division Bench of this Court considered the matter wherein there was allegation against the accused persons that they inflicted injuries on the person of the deceased by way of slaps, fists and kicks as a result of which bruises and abrasions appeared on the person of the deceased and there was allegation against one accused that he had throttled the deceased, but since no arm was used in the incident, the order of conviction recorded by the trial Court under Section 302 IPC was set aside and the accused persons were convicted under Section 323 IPC. The Division Bench held as under:- "5.....In our considered opinion the background does not supply the necessary intention to kill. The background or the motive should be commensurate with the crime but in our opinion the present background falls for short of that. It may be that the real motive might been concealed when according to Sadul Khan there was no other dispute between the accused persons and deceased and no quarrel ever took place, it cannot be said that the relations between the deceased and the accused persons were so strained so as to take away his life. If the accused persons had intended to cause the death of deceased they would have availed the deceased with some arms and it cannot be conceived that the manner of causing death was already decided by the accused persons that they will cause the death by strangulation. To us it appears that all of a sudden any one of the accused throttled the deceased which act of one of the accused persons was not shared by the other and so in our opinion in the particular circumstances of this case a common intention cannot be attributed to be accused person that they intended to cause the death of the deceased. It may be stated that a common intention should be found only when it is clerarly made out else incalculable harm may be caused to an accused person who did not share any common intention. Even when the applicability of section 34 IPC is doubtful still the benefit of such doubt has to be given to the accused. In our opinion considering the circumstances of this case sharing of the common intention to cause death on the part of the accused persons in any case is doubtful and so the accused persons are entitled to the benefit thereof. Thus by the applicability of Section 34 the accused persons cannot be held guilty of the offence under section 302 IPC. Thus by the applicability of Section 34 the accused persons cannot be held guilty of the offence under section 302 IPC. As it has not been proved who was a author of the fatal injury, so none can be held guilty under Section 302 IPC but the accused persons can only be held guilty under Section 323 IPC in the light of the evidence of Sampatram as he has deposed that injuries were inflicted by the accused persons on the person of the deceased by way of slaps, fists and kicks as a result of which bruises and abrasions appeared on the person of the deceased. We, therefore, hold both the accused persons guilty for the offence under Section 323 IPC." 23. This Court in Raj. Kumar & Anr. vs. State of Rajasthan, 1990(1) RLR 664 = RLW 1990(1) Raj. 154, considered the matter wherein two first blows, one at back of neck and one at chin were inflicted and it was held that there was no intention to cause serious injuries and the conviction recorded against the accused persons under Section 304 Part II IPC was converted to that under Section 323 IPC. This Court held as under:- "3....However, on account of a blow given on the back of the neck of the deceased which has caused a haemorrhage in the brain and as a result of this the deceased got a shock and he died. From this it appears that in fact both the accused never intended to cause any serious injury muchless the death. Only 2 fist blows were given one at the back of the neck and another on the chin. In ordinary course of nature these injuries would hardly left any mark. But on account of sheer misfortune that the blow caused haemorrhage in the brain and the deceased died to shock. In these circumstances, I am of the opinion that the offence cannot travel beyond Section 323 IPC." 24. In ordinary course of nature these injuries would hardly left any mark. But on account of sheer misfortune that the blow caused haemorrhage in the brain and the deceased died to shock. In these circumstances, I am of the opinion that the offence cannot travel beyond Section 323 IPC." 24. From the close scrutiny of the statement of PW.1, PW.2 and PW.3, it is clearly ruled out that no arm was used by any of the accused persons and quarrel took place all of a sudden in respect of removal of some stones and the injury on the person of the deceased was inflicted by fists and kicks and, therefore, it cannot be inferred that there was any intention or even knowledge of the accused that their act was likely to cause death of the deceased. In these circumstances, we find that the finding of the learned trial Court acquitting the accused persons of the charge under Section 302 and 302/34 IPC is correct and no interference in the same is called for. 25. It is also relevant to mention that State appeal is against an order of acquittal and it is the settled proposition of law that even if two views are possible, on appreciation of evidence, then the view favourable to the accused has to be adopted and the order of acquittal passed by the trial Court should not be interfered with unless there are some substantial and compelling reasons for doing so. In this regard a reference may be given to a judgment of Hon'ble Apex Court delivered in Darshan Singh vs. State of Punjab & Anr., 2010 Cri. L.J. 1393 = 2010(1) RLW 935 (SC). 26. In view of above, we find no merit in the State appeal and the same is liable to be dismissed. 27. So far as appeal filed by accused Omprakash is concerned, we are of view that he has rightly been convicted under Section 323 IPC, but so far as sentence of imprisonment awarded to him by the trial Court is concerned, we are of view that the incident in the present case took place in the year 1980 and it is 30 years old matter and accused Omprakash has already remained in custody from 9.6.1980 to 26.7.1980 i.e. 48 days. The provisions of grant of probation are also attracted in the present case, however, in the facts and circumstances of the case, we are of the view that ends of justice would be met in case the sentence of imprisonment of one year passed by the trial Court is reduced to a period of imprisonment already undergone by him. 28. Consequently, the State appeal i.e. D.B. Criminal Appeal No 157/1983 against both the accused persons is dismissed. D.B. Criminal Appeal No. 19/1982 filed by accused Omprakash is partly allowed. His conviction under Section 323 IPC is maintained but his sentence of imprisonment awarded by the trial Court is reduced to a period of sentence of imprisonment already undergone by him. He is on bail. His bail bonds are discharged. He need not to surrender.