JUDGMENT Hon’ble Vinod Prasad, J.—The sole appellant Smt. Shyama Devi is aggrieved by her conviction under Section 323 I.P.C. and implanted sentence of one year RI with Rs. 1,000/- fine recorded by 3rd Additional Sessions Judge, Mirzapur in S.T. No. 66 of 1981 (State v. Shyama Devi) dated 18.8.1982 and hence has challenged her conviction and sentence in the instant appeal. 2. Stated very briefly, prosecution allegations against the appellant were that on 20.6.1980 at about 3 p.m., on the question of cleaning a drainage and flowing of dirty water, a scuffle took place in between the appellant and the deceased Smt. Mantoriya, who was the mother of informant Khanman P.W. 6. In that scuffle, it is allegated that the appellant had pushed the deceased, who fell down on the ground and thereafter she was slapped and boxed with fists. She was taken PHC, Chunar the same day where Dr. C.K. Gupta P.W. 5 examined her medically at 5 p.m. and prepared her injury report vide Ext. Ka-2. Doctor did not find any external injury but condition of the injured Smt. Mantoriya was serious and, therefore, she was referred to be carried to BHU, Hospital, Varanasi vide reference slip Ext. Ka-3. While she was being transported to BHU, outside the area of village Baraipur, injured Smt. Mantoriya lost her life. Crime, therefore, was converted under Section 304 I.P.C. 3. Informant Khanman was on duty in Post Office, Chunar where he was informed about the incident by his son Ramu. Complainant returned back to his house where he was narrated about the incident by Gudri P.W. 1 and Jangli P.W. 2. On their intimation, informant got the FIR scribed through Ratan Kumar Yadav and then went to police station, Chunar where he lodged his written FIR. On the basis of the said written report, chik FIR Ext. Ka-4 was prepared by head constable Rama Shanker Singh P.W. 9 at 5.30 p.m. regarding which GD entry vide Ext. Ka-5 was also inked. 4. Medical examination of the deceased Smt. Mantoriya at PHC, Chunar was done by Dr. C.K. Gupta vide Ext. Ka-2 on 20.6.1980 at 5 p.m. itself and the doctor has noted in her medical examination report following facts : “Patient brought in the hospital in unconscious state. O/E. There is no mark of external injury seen. Pulse 118 per mt. Volume low, BP 90/60. C.K. Gupta vide Ext. Ka-2 on 20.6.1980 at 5 p.m. itself and the doctor has noted in her medical examination report following facts : “Patient brought in the hospital in unconscious state. O/E. There is no mark of external injury seen. Pulse 118 per mt. Volume low, BP 90/60. Pupil - constricted, Not reacting to light. Respiration - 36 per mt. Reflexes - Not present due to unconsciousness. Patient is kept under observation, condition is serious, referred to B.H.U. for admission and treatment. Dr. C.K. Gupta” 5. Consequent to the death of the deceased, inquest on her dead-body was conducted on 21.6.1980 vide Ext. Ka-7. Other relevant papers i.e. photo-lash Ext. Ka-8, police form No. 13 Ext. Ka-9, challan-lash Ext. Ka-10 were prepared and post-mortem examination vide Ext. Ka-1 was conducted. Since the injured had expired, crime was converted from Section 323 I.P.C. to 304 I.P.C. vide GD entry Ext. Ka-6. Information regarding death of the deceased was received at the police station at 5.30 p.m. on 20.6.1980 and same has been proved as Ext. Ka-5. 6. Autopsy on the dead-body of the deceased was conducted on 21.6.1980 by Dr. V.L. Pandey P.W. 3. In his autopsy report vide Ext. Ka-1, doctor has noted that the deceased was 65 years of age, half day had lapsed since her death, she had an average built body, her eyes and mouth were closed, rigor mortis was present in both upper and lower limbs. Doctor did not find any external marks of injury and, therefore, has noted ante mortem injuries as Nil. On internal examination, no abnormality was detected by the doctor in any part of the internal organs except the fact that the stomach of the deceased was empty and fecal matter was present in the large intestine. In the estimation of the autopsy doctor, cause of death could not be ascertained and hence viscera was preserved. 7. Investigation into the crime was commenced by SI Ram Nath Singh P.W. 8, who had conducted inquest on the dead-body of the deceased and had prepared other relevant papers. He had also arrested the appellant on 22.6.1980 and had interrogated her. Thereafter, he was transferred and investigation was took over by SI N.K. Singh P.W. 10, who interrogated the fact witnesses P.W. 1 and P.W. 2, conducted spot inspection and prepared site plan Ext. Ka-12 and concluding the investigation, charge-sheeted the accused vide Ext. He had also arrested the appellant on 22.6.1980 and had interrogated her. Thereafter, he was transferred and investigation was took over by SI N.K. Singh P.W. 10, who interrogated the fact witnesses P.W. 1 and P.W. 2, conducted spot inspection and prepared site plan Ext. Ka-12 and concluding the investigation, charge-sheeted the accused vide Ext. Ka-13. 8. On the basis of the charge-sheet, accused was summoned and finding her case Session’s triable, it was committed to the Session’s Court where it was registered as S.T. No. 66 of 1981, State v. Shyama Devi. 3rd Additional Sessions Judge, Mirzapur charged the appellant for offence under Section 304 I.P.C. on 1.6.1981, which charge was denied by the appellant, who claimed to be tried and hence, trial procedure commenced to establish her guilt. 9. Prosecution in its endeavour to succeed, examine in all ten witnesses out of whom, Gudri P.W. 1, Jangli P.W. 2 and informant Khanman P.W. 6 were fact witnesses. Rest of the formal witnesses included Dr. V.L. Pandey P.W. 3, Krishna Nand Pal P.W. 4, Dr. C.K. Gupta P.W. 5, Brij Nandan Mishra P.W. 7, SI Ram Nath Singh P.W. 8, head constable R.S. Singh P.W. 9 and second I.O. N.K. Singh P.W. 10. Besides the depositions of the aforesaid witnesses, prosecution relied upon various exhibits as has already been mentioned herein before. 10. In her statement under Section 313 Cr.P.C., appellant accused denied incriminating circumstances put to her appearing in prosecution evidences and took the plea of false implication because of the existing enmity. 11. Trial Judge, after looking into the entire prosecution evidences, both documentary and oral, and after hearing the accused and the public prosecutor came to the conclusion that the only offence, which could be said to have been committed by the appellant was under Section 323 I.P.C. and, therefore, convicted her for the said offence vide impugned judgment and order. Trial Judge implanted a sentence of one year RI with Rs. 1,000/- fine on the appellant, which now has been questioned by the accused in the instant appeal. 12. I have heard Sri S.K. Lal, learned counsel for the appellant and Sri Sangam Lal Kesharwani and Sri Raghuraj Kishore, learned AGAs in opposition. Trial Judge implanted a sentence of one year RI with Rs. 1,000/- fine on the appellant, which now has been questioned by the accused in the instant appeal. 12. I have heard Sri S.K. Lal, learned counsel for the appellant and Sri Sangam Lal Kesharwani and Sri Raghuraj Kishore, learned AGAs in opposition. Learned counsel for the appellant did not harp much on the factual controversy and submitted that it is an incident, which occurred all of sudden at the spur of the moment between two ladies regarding cleaning of drainage. There was no mensrea present at all. In the scuffle between the two ladies, the deceased Smt. Mantoriya, mother of informant Khanman was pushed, as a result of which she fell down on the ground. Thereafter, it was alleged that she was thrashed by kicks and fists but that allegation cannot be substantiated as the injury and autopsy report of the deceased does not indicate any external mark of injury. It is, therefore, contended that in the scuffle only the deceased was pushed, as a result of which she fell down on the ground. Having a fragile body as is noted by the doctor, the deceased lost her life but that was totally unintentional without any premeditation and in fact the act of the appellant can reasonably be brought under the dictum “vis major” (An act of God). It is, therefore, contended that after 31 years of the incident, the appellant, who now will be 62 years of age, and is a lady, be not dispatched to jail to serve out remaining part of her sentence and the substantive sentence awarded to her be altered to a suitable fine. 13. Learned AGA also did not dispute and harp much on the question of sentence. 14. I have considered the argument raised by both the sides. So far as factual controversy is concerned, the same is concluded by evidence of Gudri P.W. 1 and Jangli P.W. 2. They are the eye-witnesses of the incident. Informant Khanman P.W. 6 is not an eye-witness and his evidence in respect of the actual happening of the incident is hearsay being informed by his son and later on by Gudri P.W. 1 and Jangli P.W. 2. None of the two witnesses Gudri P.W. 1 and Jangli P.W. 2 can be said to be inimical, partisan or interested witnesses. Informant Khanman P.W. 6 is not an eye-witness and his evidence in respect of the actual happening of the incident is hearsay being informed by his son and later on by Gudri P.W. 1 and Jangli P.W. 2. None of the two witnesses Gudri P.W. 1 and Jangli P.W. 2 can be said to be inimical, partisan or interested witnesses. Defence has failed to bring on record any substantial and convincing statement, which may discredit prosecution version about the happening of the incident evidenced by them. In such a view, since the evidence of the two fact witnesses is supported with the medical testimony and the factum of death of the injured, I do not find any illegality in the conviction recorded by the trial Judge. 15. Turning towards the sentence part of it, there is much force in the contention submitted by appellant’s counsel. Three decades have lapsed in between the date of the incident and as of now. As stated above, there was no mensrea attached with the incident. It was a scuffle between two ladies, which occurred all of sudden at the spur of moment where only a push was given to the deceased by the appellant. Prosecution allegation of assault by kicks and fists is not substantiated by medical evidence. The lady, in her statement under Section 313 Cr.P.C. had disclosed her age to be 33 years and, therefore, including the period passed interregnum, as of now, she will be 64 years of age. To send back her to jail after such an enormous gap of time, will not be very justified. She had no criminal history nor had any criminal proclivity. The deceased and the appellant both were neighbours and prior to the incident, there had been no muscle flexing in between them. 16. In such a view, the substantive sentence awarded to the appellant of one year RI is reduced to the period of imprisonment already undergone by her which comes round about 12 days. However besides the fine awarded to the appellant i.e. Rs. 1,000/-, she is directed to pay compensation of Rs. 2,000/-, to the legal heir of the deceased within a period of one month. Fine is stated to have already been deposited by the appellant, therefore, she is directed to deposit the compensation of Rs. However besides the fine awarded to the appellant i.e. Rs. 1,000/-, she is directed to pay compensation of Rs. 2,000/-, to the legal heir of the deceased within a period of one month. Fine is stated to have already been deposited by the appellant, therefore, she is directed to deposit the compensation of Rs. 2,000/- within a period of one month, failing which, trial Judge will get the compensation amount realized as arrears of land revenue and will pay the compensation to the legal heirs of the deceased. Appellant is on bail, she need not surrender, her personal and surety bonds are discharged. The appeal is partly allowed as above. Let a copy of this order be certified to the trial Judge for his intimation. —————