JUDGMENT 1. - By this appeal the appellant Goliya seeks to challenge the judgment of learned Sessions Judge, Pali dated 27.2.85, whereby he has been convicted for offence under Section 302 IPC and sentenced to imprisonment for life, so also for the offence under Section 147, 324 and 323/149 IPC and sentenced to three months' simple imprisonment on each count. All substantive sentences have been made to run concurrently. 2. Five accused persons were tried by the learned Sessions Judge for the offences under Sections 302, 149 IPC etc., however, the appellant alone had been convicted for the offences under Section 302, while others had been convicted for the offences under Sections 147, 323, 324, 324/149 and 323/149 IPC, and have either been released on probation or have been sentenced to imprisonment for a period of three months. The State has not filed any appeal against the acquittal of those accused persons for offence under Section 302 and at the same time, the other accused persons have also not filed any appeals against their conviction. 3. In the above background, the facts of the case are, that the message was received in the Police Chowki Babra that Bhanwar Lal Nai has died, thereupon SHO Sendara, P.W.11 Deen Mohd. went on the spot, and recorded the statement of Jasraj injured, being Ex.P/3, on 8.7.83 at 6.15 AM, wherein Jasraj deposed that there was old enmity with the accused persons, and that apart, last afternoon at about 3 his younger sister Sumitra (P.W.8) had gone to fetch water on the hand pump, where there was some altercation with Mohan (D.W.2) and consequently there had been a scuffle also between the two. Sumitra narrated the whole episode to Rajmal (P.W.5) injured. Then Rajmal went on the hand pump and he scolded Mohan (D.W.2), thereupon Kasumbi (D.W.1), mother of Mohan came at the house of Jasraj and started hurling abuses, however she was pacified by the victims and was made to go. The statement further shows that thereafter in the evening at about 8.30 all the accused persons, except accused Heera, armed with Lathis and Kulhari came to their house, started hurling abuses and called out Jasraj. Jasraj came out and tried to convince them, in the meantime, the accused Heera pelted a stone on Jasraj, which hit on the nose of Jasraj. Jasraj came out and tried to convince them, in the meantime, the accused Heera pelted a stone on Jasraj, which hit on the nose of Jasraj. Then other stone was also thrown, then accused Roshan inflicted injury with lathi. Hearing cries Jasraj's brother Rajmal (P.W.5) and deceased Bhanwar Lal came from inside to intervene. At that time the appellant inflicted one Kulhari blow on the head of the deceased from the reverse side, near the right temporal, while the other accused persons showered indiscriminate lathi blows. The appellant Goliya aimed another blow, which was prevented by Rajmal, then another blow was given to Rajmal on the head. The deceased fell down. On hearing cries many persons had collected, the deceased was taken to hospital, where doctor was not available, however, in the night he died. On the basis of this Parcha Bayan, a regular FIR was registered and investigation was commenced. The post mortem examination was got conducted, report being Ex.P/5, the injuries of Jasraj and Rajmal were examined by Dr. H.C. Sharma (P.W.9) vide injury report Ex.P/6 and P/7. After completing necessary investigation, including recovery of the axe on the information said to have been furnished by the appellant vide Ex.P/23, the axe was recovered vide Ex.P/8, the charge-sheet was filed in the Court of Judicial Magistrate, Jaitaran, who committed the case to the trial Court. 4. Learned trial Court framed the charges against the appellant for the offences under Section 148, 302, 324 and 323 IPC, while different charges were framed against the other accused persons. The accused denied all the charges. During trial the prosecution examined 14 witness and tendered in evidence some 28 documents. Accused persons adopted the stand of denial, and examined two witness Kasumbi (D.W.1) and Mohan (D.W.2) and also tendered in evidence the two injury reports Ex.D/1 being injury report of accused Bhima and Ex.D/2 injury report of Goliya (D.W.2). 5. After completing the trial, the learned trial Court convicted the accused persons as above. 6. Before proceeding further we may briefly recapitulate some of the conclusions recorded by the learned trial Court. 5. After completing the trial, the learned trial Court convicted the accused persons as above. 6. Before proceeding further we may briefly recapitulate some of the conclusions recorded by the learned trial Court. In para 16 the learned Judge has catalogued the gist of the prosecution evidence, in the manner that there is enmity between the accused persons with the victims and they are on litigating terms, on 7.7.83 there was a scuffle on the hand pump between Sumitra and Mohan, for which grievance was raised before Rajmal, then Rajmal scolded Mohan. Then in the evening Kasumbi, the mother of Mohan came to Jasraj's house and hurled abuses and went away, that very day in the evening, 5 accused persons came to the house of the victims, at which time Goliya was armed with Kulhari and other three were armed with Lathis, while accused Heera was not having any weapon. Jasraj came out and tried to convince, but injuries were inflicted to him. Hearing cries Rajmal and Bhanwar Lal came out. Then Goliya inflicted injury on the head of deceased near right temporal, by reverse side of the axe and then other accused persons also inflicted injuries and the deceased died. 7. Then in para 35 the learned trial Court has concluded, that the fatal injury on the head of the deceased, being injury No.1 was caused by the appellant only by reverse side of the axe only, then in para 46 it has been concluded by the learned trial Court that the fractures which have been caused on the head of the deceased show the intention on the part of the assailant to kill the victim only. The accused not only inflicted one injury but aimed other blow also which shows that he was intending to kill him. Thus he had no other intention except to kill, and therefore, he has been found guilty for the offence under Section 302. Then in para 51 the learned trial Court has found absence of common object of assembly, and has thus acquitted the other accused persons of the offence under Section 302 read with Section 149 IPC. Then in para 57 the injuries on the accused persons, and nonexplanation thereof by the victims has also been considered and it has been found that the injuries on the accused persons and their non-explanation does not adversely affect the reliability of the eye-witnesses. Then in para 57 the injuries on the accused persons, and nonexplanation thereof by the victims has also been considered and it has been found that the injuries on the accused persons and their non-explanation does not adversely affect the reliability of the eye-witnesses. Then in para 60 it has been held, that according of P.W.4 Jasraj the axe was left on the spot, in that view of the matter, the theory of the prosecution about giving information about the axe and getting it recovered cannot be proved. Inter-alia with these conclusions the conviction has been recorded as above. 8. We have heard learned counsel for either side and have also gone through the record. 9. The prosecution has examined P.W.4, 5, 6, 7 and 8 as star witness to support the prosecution, and has tried to project P.W.6, 7 and 8 also as eyewitnesses, however on close reading of their statement, only P.W.4, 5 and 6 appear to be eyewitnesses. P.W.4 Jasraj and P.W.5 Rajmal are the injured witnesses, and P.W.6 Meera is wife of P.W.4, who was inside the house and had come out on hearing the cries. 10. After going through the evidence of even all these 5 witnesses, in our view, it cannot be said, that the learned trial Court was in any manner in error in concluding that the injury No.1 was inflicted by the appellant Goliya on the head of the deceased. So far other injuries on the person of the deceased, so also other injuries on the person of P.W.4 and 5 are concerned, for that the other four accused persons so also the appellant have already been separately convicted, and the sentence imposed for those offences has also already been served out by the respective accused persons, including the appellant, therefore, we need not detain ourselves on those injuries. 11. According to post mortem report, Ex.P/5 and the statement of P.W.9 Dr. H.C. Sharma the injury No.1 on the head of the deceased is a lacerated wound 1" x ½" x ½" above the right ear, and below that there was communicated fracture of temporal bone and parietal bone (three pieces) with clotted blood under the scalp. Likewise, it is also clear from the above two that the cause of death was the shock and haemorrhage on account of the head injury: In our view Coma. 12. Likewise, it is also clear from the above two that the cause of death was the shock and haemorrhage on account of the head injury: In our view Coma. 12. In view of the above, in our opinion, the two aspects arise for consideration, firstly as to whether the injury was caused by the axe, as alleged, and secondly what offence is made out against the appellant Goliya, for this one injury. 13. The eye-witnesses P.W.4 and 5 have deposed, that the injury was caused by the reverse side of axe. According to P.W.4, the axe was left on the spot. In the site inspection note being Ex.P/1 there is no mention about the axe being available on the spot, even though P.W.4 states that the axe was left on the spot, on the other hand, the investigation has purported to record information of the appellant under Section 27 of the Evidence Act, being Ex.P/23, about his having concealed the axe, and to be prepared to get it recovered, and then vide Ex.P/8 has proceeded to get it recovered as well. According to Ex.P/8 the axe is alleged to be stained with blood on the sharp side as well as reverse side. But then it is not shown that the axe was sent for forensic examination about the presence of blood. Then the two eye-witnesses have not identified the axe, whereby injury was caused on the head of the deceased. At this place we cannot resist ourselves from noticing, that as we got from the record, that Ex.P/1 is the site inspection note, while Ex.P/8 purports to be the memo of recovery of axe. Ex.P/8 purports to be prepared by Narayan Singh, I.O. Police Station Sendara, while Ex.P/1 purports to be prepared by Deen Mohd., who has been produced by the prosecution. As P.W.11, he in his examination-in-chief has proved site inspection note as Ex.P/1. Ex.P/8 purports to be prepared by Narayan Singh, I.O. Police Station Sendara, while Ex.P/1 purports to be prepared by Deen Mohd., who has been produced by the prosecution. As P.W.11, he in his examination-in-chief has proved site inspection note as Ex.P/1. Then Narayan Singh has been produced as P.W.14 and he has stated " eqyfte xksfy;k us vkyk, dRy dqYgkM+h cjken djkus dh bryk nh tks izn'kZ ih0 23 gS tks esjh dyxh o nLr[krh gS bl ij , ls ch nLr[kr eqyfte xksfy;k us dqYgkM+h cjken djk;h ftldh QnZ izn'kZ ih 1 gS tks esjh dyeh o nLr[krh gS ftl ij , ls ch nLr[kr eqyfte xksfy;k ds gS tks mlus esjs lkeus fd;s FksA " Suffice it to say, that he has not even purported to have proved Ex.P/8, and admittedly Ex.P/1 does not bear the signature of Goliya. Thus, in our view, the learned trial Court has rightly disbelieved the recovery theory, and the above infirmities do clearly show, that it is very very doubtful as to whether injury No.1 was actually caused by Kulhari, as alleged by the prosecution, more so the doctor P.W.9 has also stated, that the injury can be received by the victim falling on a hard substance and can also be received if the victim is hit by a pointed stone. Thus, it is very likely that this injury No.1 was also caused by throw of some stone. As has come in the evidence, that the assault was opened by Heera throwing stone on Jasraj, which hit his nose. If the theory of the accused being armed with axe was to be true, then obviously the assault would have been opened with inflicting injury by axe only, and not by stone. Thus, in our view, it cannot be said with certainty, and in any case we do not feel it safe to believe that the injury No.1 was caused by axe. 14. Then coming to the offence to be made out by the injury. Once it is found that the injury is not satisfactorily proved to have been caused by axe, and is likely to be caused by throw of stone, then the background of the entire episode is required to be kept in the backdrop of coming to the conclusion, as to what is the offence made out. Once it is found that the injury is not satisfactorily proved to have been caused by axe, and is likely to be caused by throw of stone, then the background of the entire episode is required to be kept in the backdrop of coming to the conclusion, as to what is the offence made out. The trouble is said to have arisen only on account of some minor dispute between P.W.8 and D.W.2 on the point, as to who is to fill the water first on the hand pump, in which there was some altercation and some scuffle for which P.W.5 had scolded D.W.2, then D.W.1 came to retaliate and then after about 4-5 hours the present incident is said to have occurred, wherein it appears, that there was exchange of stones. With this, as found by the learned trial Court, that the accused persons did not come there with the common object of killing Jasraj P.W.4, on whom the assault was opened, obviously as the prosecution case goes, the deceased Bhanwar Lal along with Rajmal had come from inside on hearing the cry of Jasraj, which obviously shows that these two persons came in order to save Jasraj, who happened to be the brother of Rajmal, and son of the deceased Bhanwar Lal. That being the position, it cannot be said, that even Goliya, the appellant had any intention to kill Bhanwar Lal, rather in the background of the episode it appears, that they had come on the spot either to substantially retaliate, or give a chastisement, for the scolding given to D.W.2. It is unfortunate that Bhanwar Lal had died, but then, in absence of any intention capable of being attributed to the appellant, in our view, it cannot be said that he committed the offence under Section 302. 15. At the same time, the magnitude of the injury cannot be undermined, inasmuch as, the injury has resulted into fracture of right temporal and parietal bone, as well breaking them into three pieces, with extensive haemorrhage, resulting into collection of 200 ml of blood under scalp. 15. At the same time, the magnitude of the injury cannot be undermined, inasmuch as, the injury has resulted into fracture of right temporal and parietal bone, as well breaking them into three pieces, with extensive haemorrhage, resulting into collection of 200 ml of blood under scalp. Obviously the injury was inflicted with quite sufficient force, and therefore, it can very well be assumed, that while inflicting injury the appellant did know, that by his act he is likely to cause injury, which in the ordinary course of nature would be sufficient to cause death, and thus, the offence would fall under Section 304 Part-II IPC. 16. Coming to the question of sentence to be imposed, ordinarily we would have been inclined to impose punishment of 5 years' rigorous imprisonment, however in the present case, the occurrence relates to July 1983, and now we are in January 2010, thus, more than 26 years have rolled by. The accused has remained in custody from 11.7.83 to 27.9.86 i.e. more than 3 years and 2½ months. In such circumstances, now to impose punishment of 5 years after expiry of such a long time would not bring any fruitful purpose, and in our opinion, the ends of justice would be met, if the accused is sentenced to imprisonment for the period already undergone by him. 17. Accordingly, the appeal is partly allowed. The conviction of the appellant under Section 302 IPC is set aside, and instead he is convicted under Section 304 Part-II, and is sentenced to the period already undergone. The conviction and sentence for the other offences of course are maintained, which he has already undergone. The appellant is on bail, he need not surrender. The bail bonds are cancelled.Appeal partly allowed. *******