JUDGMENT Hon'ble GOMBER, J.- This judgment will dispose of the afore mentioned appeals preferred by the State of Rajasthan as well as by the accused 25 appellants against the judgment and order dated 11.6.1986 passed by the learned Sessions Judge Jaipur District Jaipur in case No. 106/84 whereby the accused-appellants were convicted and sentenced as under: (i) Accused -appellants Bheem Singh and Smt. Pishtra Devi were convicted & sentenced as under:- (a) For offence under Section 325/149 IPC: sentenced to 3-1/2 years RI. and tine of Rs. 100/- each in default of payment of tine to further undergo two months rigorous imprisonment. (b) For offence under Section 1481PC: sentenced to 2 years R.I. and tine of Rs. 100/- in default of payment of fine to further undergo 2 months' R.I. (c) For offence under Section 323/149 IPC: Sentenced to 2 months RI. (ii) Accused-appellants Ramavlar, Mamraj, Girraj were convicted and sentenced as under:- 1-1/2 year R.I. fine of Rs. 100/- each in default of which 2 months further RI. (b) For offences u/S. 325/149 IPC 2-1/2 year RI. and fine of Rs. 100/- each in default thereof to undergo 2 months RI. (c) For offences u/S. 323/149 IPC : 2 months RI. each. The sentences were ordered to run concurrently. 2. The facts as culled out by the prosecution are that on receipt of an information recorded in Ex. P 10A rapat-roznamch from General Hospital Kotputli about a dead body, the Station House Officer, PS-Kotputli reached hospital at about 12.45 AM on 8.9.84 and recorded Ex. P.1 Parcha Bayan of injured PW.1 Chandra Pal who happen to be the brother-in-law (Joser) of deceased, wherein he stated that on 7.9.84 at about 9.30 PM, When he and his brother-in-law. Tarachand (deceased) were having dinner, Pista Devi who happened to be his sister-in-law (Saali) cracked some- vulgar jukes with him and that she was asked not to use abusive language. There was an altercation between him, Pista Devi and Banwari on this issue and they went home which is situated in the same Baada. After a while, accused Pista Devi, Banwari, Bheem Singh, Ramavtar, Mamraj, Girraj, and Banarsi Devi came to the complainant's house laced with Lathis and a lathi blow was inflicted by Pista Devi followed by Bheem Singh who also inflicted lathi blows on his person. After a while, accused Pista Devi, Banwari, Bheem Singh, Ramavtar, Mamraj, Girraj, and Banarsi Devi came to the complainant's house laced with Lathis and a lathi blow was inflicted by Pista Devi followed by Bheem Singh who also inflicted lathi blows on his person. Deceased Tarachand who intervened to separate them, was also given a lathi blow on his head by Bheem Singh resulting into his death during that very night. The case, therefore, was registered under Sec. 302 and 302/34 IPC and on completion of investigation, challan was filed against seven persons and as against Subhash being minor, it was filed in Children Court. Charges under Secs. 148, 149, 302, 302/149,323, 323/149 IPC were read over to the accused who denied committing any crime and claimed trial. In order to prove its case, prosecution examined as many as 17 witnesses namely Chandra Pal PW1, Vimla Devi PW.2, Ashok PW.3, Masuddin PW 4, Kishan Lal PW.5, Gita Devi PW. 6, Dr. Raghuvir Singh Gaur PW.7 Sadhu PW.8, am Avtar PW. 9, Dr. Ramesh Chandra PW.10, Mahavir PW.11, Jagdish' Prasad PW.12 Shakala PW.13, Prabhu Dayal PW.14, Bhanwar Singh PW.15, Ashok Trivedi PW. 16 and Ramakaran PW. 17 in and produced documentary evidence Ex. P/1 to Ex. P/28. Statements of the accused were recorded under Sec. 313 Cr.P.C. wherein they pleaded that it was the complainant party who on Pista Devi's asking Chandra Pal to return her money, beat her with lathis and consequently Banwari and Ramavtar who came to rescue, were inflicted injuries by the complainant side. Some of them took a plea of alibi. They examined two witnesses in defence. Learned trial Court, after considering the entire record as well as submissions of counsel for both the parties, vide its judgment dated 11.6.86 acquitted all the accused from the charges under Secs. 302, 302/149 as well as accused Ramavtar Mamraj, Girraj, Banwari and Smt. Banarsi Devi from the charges under Sec. 148 IPC. Bheem Singh, Pista Devi, Ramavtar, Mamraj and Girraj were found guilty and awarded sentences as mentioned above for offence under Sec. 147, 325/149, 323/149 IPC, Accused Appellant Banwarj and Banarsi Devi; were granted benefit of Probation of offenders Act on account of their old age while convicting for the said offences. 3. Bheem Singh, Pista Devi, Ramavtar, Mamraj and Girraj were found guilty and awarded sentences as mentioned above for offence under Sec. 147, 325/149, 323/149 IPC, Accused Appellant Banwarj and Banarsi Devi; were granted benefit of Probation of offenders Act on account of their old age while convicting for the said offences. 3. It is relevant to mention that accused appellants Ramavtar, Mamraj, Banwari and Smt. Banarsi Devi died during the pendency of these appeals and proceedings as against/by them stood abated vide order dated 11.3.2010. 4. Learned Public Prosecutor argued that there was sufficient evidence to prove that the accused formed unlawful assembly and came laced with lathis to the complainant's Chowk (compound) and Bheem Singh and Banwari Singh caused fatal injuries upon the person of the deceased Tara Chand resulting in his death. According to him, the learned trial Court committed an illegality by not appreciating the evidence properly and acquitting them of charges under Sec. 302, 302/149 IPC. Statements of eye witnesses PW.1 Chandra Pal, PW. 2 Bimla Devi, PW. 4 Musaddi Lal, PW.5 Kishan PW. 6 Geeta Devi, PW. 8 Sadhu & PW. 7 Dr. R.S. Gaur, who performed Post mortem of deceased Tara Chand and examined injured Chandrapal, were referred to. However, during the course of arguments, he could net point out any illegality or perversity in the finding of the learned trial Court to the effect that there was no previous enmity of accused with deceased Tara Chand or the complainant party and it was just on account of cracking of some vulgar jokes by Pista Devi to Chandrapal (who happened to be her jija), she was rebuked and that altercation took place and after sometime she along with all other accused persons who also live in the same chowk came laced with lathis to the complainant's house by breaking wall and influenced first injury on Chandrapal followed by others on the person of deceased Tara Chand also. 5. On the other hand, learned counsel for the accused appellants submitted that the injuries on their persons remained unexplained and that there were material improvements from Ex. P1 Parcha Bayan which was the foundation of the case. Further that the accused party had lodged report Ex. 5. On the other hand, learned counsel for the accused appellants submitted that the injuries on their persons remained unexplained and that there were material improvements from Ex. P1 Parcha Bayan which was the foundation of the case. Further that the accused party had lodged report Ex. D 7 on the same night at 10.20 PM as on Pista Devi's asking for her money from Chandra pal, the complainant party gave beating to Banwari and Ramavtar whose injuries as shown in Ex. D 8 and Ex. D. 9 remained unexplained by the prosecution. 6. It was also contended that as per Ex. P/1, the deceased Tara Chand died because of lathi blows given on his head by Bheem Singh and Banwari Lal but the cause of death has been found to be the injury on the chest of deceased Tara Chand, Therefore, the entire evidence of Prosecution witnesses deserved to be disbelieved and the accused appellants should have been acquitted of all the charges. As such, witnesses who made material improvements cannot be said to be reliable and that the learned trial Court has erred in even holding them guilty for the offences as mentioned above. Further that the accused appellants could not have been convicted u/S. 325/149 because the charges were read under Sec. 323 or alternatively 323/149 and 325/149 is not a lesser offence than 323/149. 7. In the alternative it was submitted that the incident pertains to the year 1984 and out of 9 accused, 4 have already expired and that Girraj, Pista Devi and Bheem Singh are about 58, 61 and 50 years of age respectively and there is no other case against them during this period. In the facts and circumstances, they be given benefit of Probation of Offenders Act. Drawing my attention also to the Provisions of 360 IPC it was submitted that the accused are above 21 years of age and offence is punishable with fine or a term of imprisonment of 7 yeas or less the provision mandatorily applies in view of Section 361 Cr.P.C. unless there are special reasons for not doing so. 8. We have considered the rival contentions of the learned Public Prosecutor and the counsel for the accused and minutely scanned the impugned judgment as well as the record of the trial Court. 9. It was Parchabayan Ex. 8. We have considered the rival contentions of the learned Public Prosecutor and the counsel for the accused and minutely scanned the impugned judgment as well as the record of the trial Court. 9. It was Parchabayan Ex. P/1 of PW-1 Chandrapal on the basis of which FIR Ex. Pill was chalked. The prosecution examined four eye witnesses; out of which PW.1 Chandrapal is injured eye witness whereas other eye witnesses are the wife, sister and uncle living in the same chowk whose presence at that time of night in the house is very natural and who have completely supported the Prosecution story except that there are some improvements in' their statements with regard to injuries of deceased Tara Chand because in Ex. P/1 Parchabayan PW.1 Chandra Pal's allegation was that Tara Chand died on account of lathi blows by Bheem Singh and Banwari on his head whereas the cause of death by Medico Legal Expert PW. 7 Dr. Gaur, after Post Mortem examination, was stated to be injury on the chest which had not been attributed to any of the accused in Ex. P/1 nor was it narrated in their statements during investigation and there was material improvement so as to match with the expert opinion. 10. It is true that there are three types of witnesses some are wholly reliable some are partially reliable and the third category are totally unreliable. As per Parcha Bayan Ex. P/1, Tara Chand died because of lathi blows inflicted by Bheem Singh and Banwari Lal on his head but looking to the medical report and the statements in cross-examination of all the 'eye witnesses, it is clear that none of them mentioned about infliction of any injury on Tarachand's chest, which has been opined by the doctor to be the cause of death. The version given in the FIR Ex. P/1 is different than the one given in the court injury which led to death of Tarachand can be specifically attributed to any of the accused. 11. The version given in the FIR Ex. P/1 is different than the one given in the court injury which led to death of Tarachand can be specifically attributed to any of the accused. 11. In the facts and circumstances of the case, when the incident arose on account of cracking of vulgar jokes by Pista Devi with his brother-in-law (Jija) Chandra Pal @ Pappi and his rebuking her and on Tara Chand's intervention, he was given lathi blow by Bheem Singh on the head, there cannot be said to be a common intention or common object of causing death of deceased Tara Chand. 12. There was no previous enmity and was also no evidence to show that accused had picked up a quarrel in order to cause murder. It is also not the case of the prosecution that on the date of the incident also, some issues arose between the accused and deceased Tara Chand. PW.1's Parcha Bayan and his statements, 'and even other witnesses' statements are clear in this regard that it was on account of jokes by Pista Devi that altercation took place. Both the parties as per site plan Ex. P.3, live next to each other in the same chowk and it is very common in villages in local custom for the sister in law (Sali) to crack vulgar jokes with the brother in law (jija)and there was no previous enmity. PW.1 Chandrapal is said to have been inflicted lathi blow by Pista Devi and later by Bheem Singh and he had four simple blunt injuries as per Ex. P.S, out of which three are only swellings. 13. Medico-legal expert Dr. Raghuveer Singh Gaur PW.7 opined the cause of death of the deceased to be rupture at the apex of right vertical of heart and collection of blood in pericardium whereas in the Parcha Bayan Ex. P/1 which is foundation of the case, Tara Chand is stated to have died because of lathi blows given by Bheem Singh and Banwari Lal on his head. The doctor also found four injuries on external examination which were: (i) Transverse bruise on the middle of chest, (ii) Lacerated wound on left eyebrow (iii) Lacerated wound also on the parietal eminences on back side (iv) Lastly a linear scratch red in color 1" long vertical just below medial part of right c1avical. 14. In the cross-examination, PW.7 Dr. The doctor also found four injuries on external examination which were: (i) Transverse bruise on the middle of chest, (ii) Lacerated wound on left eyebrow (iii) Lacerated wound also on the parietal eminences on back side (iv) Lastly a linear scratch red in color 1" long vertical just below medial part of right c1avical. 14. In the cross-examination, PW.7 Dr. R.S. Gaur deposed that the rupture of the heard can be caused some times if a blunt forcible injury is caused on chest wall. If a man falls forcibly on some blunt object and by that fall injury is caused on the chest, then sometimes the rupture may also be caused. Minute examination of statements of eye witnesses seen in the light of Parcha Bayan and their earlier statements as well as Ex. P/5 read with PW-7, clearly show that the prosecution has failed to prove as to who caused fatal injury which is injury No. 1 on the chest of deceased Tara Chand. 15. In a case of homicide the distinction between homicide simplicitor and a homicide amounting to murder is well recognized by law and has to be kept in view while evaluating evidence. Further the distinction between Part-I and Part II of Section 304 IPC has also to kept in view. That apart, there may be cases where the intention of the accused may be to cause an injury simplicitor but death may result. In such cases, it has to be considered whether the act constitutes an offence punishable under Section 322, 323, 325 25 or 326 IPC. 16. The reason is obvious, unlike in statutory offences or offences of strict liability, mens rea plays a very important role in criminal matters. An act actuated by mens rea comes within the four corners of a penal offence. 17. In the case in hand the learned Trial Judge has rightly disbelieved the material improvements made by the eye witnesses during their examination before the court who had tried to connect the chest injury which, as per PW.7 Dr. Gaur was the cause of death, whereas no such version was in their previous statements or in Ex.P/1 Parcha bayan. 18. The doctor who conducted the post mortem Dr. Gaur was the cause of death, whereas no such version was in their previous statements or in Ex.P/1 Parcha bayan. 18. The doctor who conducted the post mortem Dr. Gaur deposed that 35 as per the post mortem report the cause of death of the deceased was shock as a result of rupture of apex of heard and collection of blood in pericardium. 19. The learned trial Judge has arrived at a conclusion that it was not a case u/S. 302 or 302/149 but was a case of 325 IPC because it is obvious that the appellant simply intended to cause injury on the person of the deceased 10 by giving lathi blows on the head which is not the cause of death. At best, the offence committed by the appellants is of voluntarily causing grievous hurt punishable u/S. 325 IPC. 20. Section 149 of the IPC creates a specific and district offence. The vicarious liability of the members of an unlawful assembly extends to those 45 acts which are done in prosecution of the common object of the unlawful assembly and such offences as the members f the unlawful assembly knew to be likely to be committed in prosecution of common object. Each case has to be adjudged according to the facts as unfolded. 21. In the instant case, it is clear that the principle embodied in this section is attracted, the members of this unlawful assembly knew that by their co-joint participation in the offence actually committed it was likely to be committed in the prosecution of their common object i.e. of the attack on the victim this can well be gathered from the holding of lathies/weapons of offence by each member of the unlawful assembly. On being rebuked by Chandra Pal for her cracking vulgar jokes with him, Pista Devi, Banwari Lal had hot words with Chandra Pal and after sometime she along with other accused persons (7 in all) laced with lathies came to the place of incident that is chowk of Chandra Pal adjacent to Pista Devi's 'Chhappar' and she gave first blow to Chandra Pal followed by Bheem Singh. 22. On intervention by deceased Tara Chand, who was having dinner with Chandra Pal, was given beatings by lathies by Bheem Singh and Banwari on his head. 22. On intervention by deceased Tara Chand, who was having dinner with Chandra Pal, was given beatings by lathies by Bheem Singh and Banwari on his head. Each of the accused knew about the likelihood of the commission of some offence; actual physical attack by each member of the unlawful assembly being not a prerequisite for the application of this section which is based on the principle of vicarious liability. 23. It is clear that the prosecution has established its case beyond reasonable doubt that there was no common intention to kill Tara Chand but there was sufficient evidence to prove that they formed an unlawful assembly and in prosecution of common object of causing injuries, they came lacked with lathies and gave beatings to Tara Chand and Chandra Pal. Therefore we do not find any illegality or perversity in the findings of learned trial Court in this regard. 24. So far as the defence of alibi projected by the accused is patently false. Bald averment of Bheem Singh that when the occurrence took place, he was on duty in Krishna Talkies and was not present, has little meaning when the prosecution has specifically established his presence at the scene of occurrence through aforenoted reliable and cogent evidence. It was then incumbent upon the accused to have led positive evidence to establish his defence of alibi which he has failed to do. 25. Both the defence witnesses showed their ignorance about Bheem Singh's causing injuries upon the person of Tara Chand and Chandrapal, so they do not help the accused appellants in any manner. 26. The other argument of defence about unexplained injuries of Banwari & Ramavtar shown in Ex. 11/9 and Ex. D/10, suffice it to say that the evidence clearly establishes that on being attacked by accused, Chandrapal ran to his uncle Musadi Lal's (PW.4) house, also situated in the same chowk so as to hide himself. The evidence clearly establishes that when Ramavtar and Banwari were chasing Chandrapal, habitants of the vicinity threw stones so as to stop them from following Chandrapal and in that process Banwari and Ramavtar sustained simple injuries. This fact is also established as the stones have been found lying at mark 5' in the site plan Ex. P/3. Thus there is sufficient explanation as is also clear from the statement of PW.8 Sadhu. 27. This fact is also established as the stones have been found lying at mark 5' in the site plan Ex. P/3. Thus there is sufficient explanation as is also clear from the statement of PW.8 Sadhu. 27. In these circumstances, the argument of learned counsel for the appellant accused does not hold water and the prosecution, on the basis of discussion herein above, has established its case beyond reasonable doubt against accused Bheem Singh, Pishta Devi & Girraj along with Mamraj and Ramavtar (since expired) for making unlawful assembly causing simple & grievous hurts in prosecution of common object of the assembly. Accused namely Mamraj & Ramavtar have already expired during the pendency of appeal (hence dismissed/abated). 28. Conviction of the accused Bheem Singh, Girraj and Pishta Devi calls for no interference. There is no perversity or illegality in the order under challenge. 29. So far as the proposition of sentence is concerned, while imposing a sentence the first facet that must be kept in mind is that the accused must realize that he has committed the act which is not only harmful to the society of which he forms an integral part but is also harmful for his own future both as an individual and as a member of the society. The second facet highlights the punitive deterrent aspect of a sentence and third facet highlights the reformatory aspects of a sentence. 30. In a modem civilized society the reformatory aspect of the sentence is given great importance; however a too lenient or a too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. 31. Punishment should be such as would adequately meet the ends of justice with a balance and due regard to the policy of sentencing on both the aspects of a punitive deterrent sentence and a reformatory aspect of the sentence and a reformatory aspect of the sentence. 32. So far as the case in hand is concerned, this fact cannot be ignored that more than a quarter of a century has passed by, since the date of occurrence and maximum sentence awarded was 3-1/2 years and one of the accused is a woman that too in her old age. 33. 32. So far as the case in hand is concerned, this fact cannot be ignored that more than a quarter of a century has passed by, since the date of occurrence and maximum sentence awarded was 3-1/2 years and one of the accused is a woman that too in her old age. 33. In this background, if the case in hand is looked into, it shows that the maximum sentence awarded to Bheem Singh and pishta Devi was 3-1/2 years and to Girraj 2-1/2 years and fine. The offence relates to the year 1984; much water has flowed in the last almost more than a quarter of a century i.e. in this intervening period of 26 years. The appellant pishta Devi is a woman and nearly 60 years of age. In the same way, Bheem Singh and Girraj are about 50 and 58 years of age as shown in Ex. P/20, 22 & 24 (arrest memos). There is no previous conviction. The nominal role of the appellant Bheem Singh shows that he has remained behind the bars for about 4 months-and 19 days and Pishta Devi for less than a month and Girraj also for a few days. 34. Hon'ble Apex Court, considered the long lapse of time from the date of incident in the matter of N.M. Parthasarathy vs. State reported in 1992 Cr.LJ. 1284. In that case the occurrence had taken place 23 years' ago where it was observed that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical perception acting on hunch. The social background and the personal factors of the crime doer are very levant. 35. The parties are Harijans by caste and illiterate as well and are also labours living in the same chowk. Therefore, looking to the social background of the accused, in our view, grant of benefit of mandatory provisions of Sec. 360. Cr.P.C. appears to be serving the purpose of rehabilitating slant and avoid future problems. The case of these three accused-appellants is squarely covered under Sec. 360 Cr.P.C. and as per Sec. 361 Cr.P.C., it has to be mandatorily followed unless special reasons are recorded otherwise. Here we do not find any such reason. 36. Hon'ble Supreme Court in the case of Ludhia Handsa vs. State of Jharkhand reported in 2003 Cr.L.J. NOC 244, where incident. Here we do not find any such reason. 36. Hon'ble Supreme Court in the case of Ludhia Handsa vs. State of Jharkhand reported in 2003 Cr.L.J. NOC 244, where incident. took place more than twenty years before the judgment, accused were old men and it was their first offence. In such circumstances, they were released on probation of good conduct on furnishing security bond. 37. Keeping in mind the long lapse of more than a quarter of a century from the date of occurrence, age of the accused, character and one of them being a woman, we are of the view that the ends of justice in this case will meet if they are given the benefit of Section 360 of Cr.P.C. 38. Out of five appellants, accused Ramavtar & Mamraj died during the pendency of appeal and their appeal stood abated. 39. As regards appellants Bheem Singh, Pishta Devi and Girraj, while upholding their conviction as above, the appeal is partly allowed and it is ordered that they may be released on probation for a period of three years subject to the condition of their good conduct during said period and also on their executing a personal bond for a sum of Rs. 20,000/- with two sureties of Rs. 10,000/- each, subject to the satisfaction of trial Court. In case of breach of condition of good conduct on commission of any offence, they will have to suffer the sentence imposed by the trial Court, needless to say with the benefit of Sec. 428 Cr.P.C. 40. The State appeal stands dismissed.