Judgment Kanwaljit Singh Ahluwalia, J. 1. The present appeal has been filed by six persons, namely Zile Ram, sumer, Dheeraj, Lila Ram, Hans Raj, sons of Dulli, and their father Dulli son of Kundan Lal. They were named as accused in case FIR No.9 dated 10.1.1993 registered at Police Station Hoshiarpur, under Sections 148, 149, 323, and 302 ipc. 2. Appellant Zile Ram was acquitted for the offence under Sec.302 ipc. He was convicted and sentenced under Sec.304 Part-I IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months. Trial Court had also acquitted the accused for offence under Section 148 IPC and had not applied Sec.149 ipc. Appellants, Sumer, Dheeraj, Lila Ram alias Liley, Hans Raj and Dulli were convicted and sentenced for offence under Sec.323 IPC to undergo rigorous imprisonment for three months each, vide judgment and order dated 30.8.1997/4.9.1997 by the Court of Additional Sessions Judge (II), Faridabad. 3. Office has reported that during the pendency of appeal, appellant lila Ram has expired. His death certificate was taken on record by this Court on 20.2.2007. 4. Mr. R. S. Rai, Senior Advocate, assisted by Mr. Karan Pathak, advocate, appearing for the appellants, at the outset has stated that appellants will not assail their conviction and only pray that sentence awarded upon Zile Ram, appellant, be reduced taking into consideration protracted trial faced by him. It is submitted that appellants Sumer, Dheeraj, Hans Raj and dulli have already undergone their sentence. Taking into consideration the fact that counsel for the appellants has opted not to assail the conviction, the facts of the case and findings recorded by the trial Court will be noticed briefly. In the present case, Smt. Tofan got recorded her statement Ex. PB. This statement was recorded by Prem Narain, Assistant Sub Inspector, PW.8. In her statement, Smt. Tofan stated that on 9.1.1993 at about 8.30 P. M. , she along with her Devrani (wife of brother of the husband) Bharpai wife of Dharamvir and her mother-in-law Baldei had gone to their Nohra for tethering the cattle. At that time, her husband Bhagwat was smoking hukka. Then, Dulli and his sons liley, Zile, Sumer, Hansi and Dheeraj came armed with lathies. Zile lifted her husband Bhagwat and took him on the road and abused. At that time, her husband Bhagwat was smoking hukka. Then, Dulli and his sons liley, Zile, Sumer, Hansi and Dheeraj came armed with lathies. Zile lifted her husband Bhagwat and took him on the road and abused. Zile started beating Bhagwat with lathi in his hand and the injuries were caused on the head and other parts of the body. When complainant, her Devrani Bharpai and mother-in-law Baldei made an attempt to rescue Bhagwat, they were given injuries by other accused who were armed with lathies. Bhagwat became unconscious. Chatri alias Chattar Singh had taken Bhagwant to hospital at Palwal for treatment. It has been stated in the FIR that complainant had no ill-will against the accused as they were descendants of common ancestors. FIR was investigated. Report under Sec.173 Cr. P. C. was submitted. 5. All the appellants were charged for the offence under Sec.148 ipc. They were also charged under Sec.149 IPC. They were also charged for the offence under Sections 302 and 323 IPC. They pleaded not guilty and claimed trial. 6. Pw.1 Khurshid Ahmad, Constable, had accompanied the dead body to general Hospital, Palwal. 7. Pw.2 Hukam Chand, Head Constable, had recorded formal FIR Ex. PB/1. 8. Pw.3 Dr. Bhagwat Sarup Sharma, Medical Officer, Employees State insurance Dispensary, Palwal, had conducted post mortem on the dead body of bhagwat and found following injury on his person:- "lacerated wound 41/2 " X 11/4 " over the middle of parietal region of the skull. It was bone deep and underline bone was fractured in the multiple pieces. Blood in liquid form was still present. Cerebral haemotama of the size 81/2 " X 41/2 " over both the right and left cerebral hemispheres. The other organs were healthy. The right sided heart was full of blood and left side was empty". 9 Simple injuries were found on the persons of Smt. Bharpai, Smt. Baldei and Smt. Tofan. They were medicolegally examined by PW.4 Dr. Man Mohan sharma. 10. Lakhan Lal alias Likhan appeared as PW.5 and stated that he was an eye witness of the occurrence. Complainant Smt. Tofan appeared as PW.6 pw.7 Subhash Chand proved scaled site plan Ex. PJ. PW.8 Prem Narain, assistant Sub Inspector, proved various facets of the investigation. 11. The appellants have denied the prosecution version when their statements were recorded under Sec.313 Cr. P. C. In defence, three witnesses were examined. Complainant Smt. Tofan appeared as PW.6 pw.7 Subhash Chand proved scaled site plan Ex. PJ. PW.8 Prem Narain, assistant Sub Inspector, proved various facets of the investigation. 11. The appellants have denied the prosecution version when their statements were recorded under Sec.313 Cr. P. C. In defence, three witnesses were examined. DW.1 Sunil Grover, Branch Manager, was examined to prove alibi of Lila Ram accused who has expired qua whom the appeal has been abated. 12. Dw.2 Bhagwan Dass and DW.3 Bhagwan Dass Meena, were also examined to prove alibi of Lila Ram accused. Trial Court, after discussing the entire evidence concluded as under:- "30. Upon the foregoing reasons and the facts and circumstances of the case, I hold that the prosecution is able to prove the guilt of Zile accused for the offence punishable under Sec.304 Part-I ipc and against Lila Ram alias Leeley, sumer, Dhiraj, Hans Raj and Dulli for the offence punishable under Sec.323 ipc beyond reasonable doubt. Holding Zile accused guilty for the offence punishable under Sec.304 Part-I IPC and the remaining accused Lila Ram alias Leeley, Sumer, Dhiraj, Hans Raj and Dulli for the offence under Section 323 IPC, I convict them therein". The State of Haryana has not filed appeal against the acquittal of appellants for offence under Sec.302 IPC. As stated earlier, appellants Sumer, Dheeraj, Hans Raj and Dulli have already undergone their sentence and Lila Ram has died during the pendency of appeal, furthermore counsel for the appellants has not assailed conviction of the appellants. Zile Ram has been sentenced to seven years rigorous imprisonment for offence under Sec.304 Part-I IPC. 13 In the present case, occurrence pertain to January 1993. A period of 17 years are going to elapse. Right of speedy trial vests in the appellant Zile ram. Protracted trial in itself has been acknowledged by the Courts as mitigating circumstance. Counsel for the appellants has submitted that accused and complainant party are closely related as father of deceased and father of zile Ram, appellant, are real brothers. It has been further submitted that in the last 17 years, no untoward incident has taken place between the parties. Taking these factors into consideration, sentence of appellant Zile Ram is reduced from seven years to five years rigorous Criminal Appeal No.737-SB of 1997 6 imprisonment. 14. With the observations made above, the present appeal is disposed of.