JUDGMENT Hon’ble Vinod Prasad, J.—This appeal arises out of judgment and order dated 4.5.1981 passed by Session’s Judge, Fatehpur in S.T. No. 175 of 1981, State v. Visheshwar and another, under Sections 304-II/34, 323/34 I.P.C. relating to P.S. Kishunpur, District Fatehpur. By the impugned judgment, learned Session’s Judge has convicted both the appellants under Section 304-II/34 I.P.C. and 323/34 I.P.C. and has sentenced them to five years RI on the first count and one year RI on the second count. Both the sentences were directed to run concurrently. 2. Stated briefly, prosecution allegations against the appellants were that on 18.12.1978 at 10 a.m., for the reason of constructing a pedestal (chabutara), Mahadev father of informant Gajraj was assaulted with lathi by the appellant accused. When Mahadev’s elder brother Gaya Prasad intervened to save his younger brother, he too was belabored. When informant Gajraj (P.W. 1) tried to save his father and elder uncle, he was also beaten up. This incident was witnessed by Dulariya, mother of informant, Maikee his wife, Bhundi, Nankauna, Rameshwar and many other co-villagers. After arranging for a bullock-cart, informant carried the injured to the police station Kishunpur at a distance of 9 miles and there dictated an oral FIR, which was registered as crime No. 138, under Sections 323, 504, 506 I.P.C. the same day at 5.30 p.m. Subsequently, Mahadev father of the informant expired on 19.12.78 at 7 A.M., while he was being carried to Fatehpur for better management of his injuries and consequently the crime was converted under Section 304 I.P.C. 3. Usual investigation ensued and ultimately Investigating Officer laid charge-sheet against appellants accused. Dr. Vishnu Datta, posted at PHC had medically examined the injured vide their medical examination reports Exts. Ka-1, Ka-5 and Ka-6, which are as follows; Ext. Ka-1 “Examined Shri Mahadev aged about 55 years S/o Sri Lusan Kewat R/o Village Tikura, P.S. Kishunpur at 9.30 p.m. on 18/12/78 at P.H.C. Vijaipur Fatehpur. Come Self for examination and treatment. M/I - A tiny mole on the back of the neck 8cm, from the tip of the Rt. mastoid. Injuries— (I) Lacerated wound 3 cm x 0.5 cm x scalp deep on the middle of the top of the head, 11 cm from the left mastoid, covered with blood and lymph. Come Self for examination and treatment. M/I - A tiny mole on the back of the neck 8cm, from the tip of the Rt. mastoid. Injuries— (I) Lacerated wound 3 cm x 0.5 cm x scalp deep on the middle of the top of the head, 11 cm from the left mastoid, covered with blood and lymph. (II) Lacerated wound 2 cm x 0.5 cm x scalp deep on the left side of the head 5-1/2 cm from the left mastoid. (III) Contusion 7 cm x 5 cm on the back of the left hand. Red. (IV) Contusion 7.5 cm x 6 cm on the back of the right hand. Red. Opinion: All the injuries are caused by some blunt object. Injury Nos. I and II are kept under observation and referred for the same to district hospital Fatehpur for X-Ray and further treatment. Injury Nos. III and IV are simple in nature. Duration of all the injuries about half a day old.” Ext. Ka-5 “Examined Shri Gajraj S/o Sri Mahadev aged about 40 years R/o Village Tikura, P.S. Kishunpur, district Fatehpur at P.H.C. Vijaipur on 18/12/78 at 10 p.m. B/B Self M.I. - Old scar 2.5 cm x 1 cm on the outer aspect of middle of right thigh. 18 cm above the right knee. Injuries— (I) Lacerated wound 2 cm x 1/2 cm on the outer edge of the back of left ear 3-1/2 cm above the left lobule of left ear. Covered with blood and lymph. (II) Contusion 5 cm x 2 cm on the dorsal aspect of the left hand. Red. (III) Complains of pain back left side just above the left scapula. (IV) Complains of pain left shoulder. Opinion: Injury Nos. I and II are simple in nature. Caused by some blunt object and about half day old in duration.” Ext. Ka-6 “Examined Shri Gaya Prasad HM aged about 80 years S/o Sri Lusan R/o Village Tikura, P.S. Kishunpur, District Fatehpur at P.H.C. Vijaipur on 18.12.78 at 10.15 P.M. B/B Self M.I. - Black raised mole left side cheek 1 cm away from the left nostril. Injuries— (I) Contusion 7 cm x 3 cm on the back of left shoulder 4 cm behind the outer end of the left clavicle. Red. (II) Lacerated wound 2 cm x 1 cm on the back of upper part of left fore arm 4.5 cm below the left elbow. Injuries— (I) Contusion 7 cm x 3 cm on the back of left shoulder 4 cm behind the outer end of the left clavicle. Red. (II) Lacerated wound 2 cm x 1 cm on the back of upper part of left fore arm 4.5 cm below the left elbow. Covered with blood & lymph. (III) Complains of pain left side back. Upper part. (IV) Lacerated wound 2 cm x 1 cm on the left side of lower part of back 3 cm on the left side of midline & 6 cm away from the left poster superior iliac spine covered with blood and lymph. Opinion : Injury Nos. I, II and IV are simple in nature, caused by some blunt object & about half a day old in duration.” Inquest on the corpse of the deceased vide Ext. Ka-10 was conducted on 19.12.78 at 10 a.m. and other relevant papers Ext. Ka-11 to Ka-14 were prepared simultaneously. 4. Autopsy on the cadaver of the deceased Mahadev was performed on 20.12.1978 vide Ext. Ka-9. The dead body was brought to the doctor by constable 333 Malu Prasad and head constable Balloo. Deceased was 60 years of age and one day had passed off since his demise. He had an average built body and rigor mortis had passed off from upper limbs and was present in the lower limbs. According to autopsy doctor, deceased had sustained following external ante-mortem injuries : ANTE-MORTEM INJURIES “(1) Lacerated wound 1-1/2” x 1/2" bone deep on left side of skull 2" above left ear. (2) Lacerated would 1" x 1/2 “ middle part of head, 1-3/4” from injury No. 1 towards inner side. (3) Contusion 3/4" x 1/2" right side of front of skull 2-1/2" from right eye brow. (4) Contusion 2-1/2" x 1" on left shoulder joint oblique. (5) Contusion 3" x 2" left hand back. (6) Contusion 2-1/2" x 2" back of right hand.” On the internal examination, it was detected that the temporal bone of the deceased was fractured and clotted blood was present in his brain. 5. Charge-sheeting of the accused resulted in their summoning and finding their case triable by Court of Session’s, it was committed to the Session’s Court. Accused were charged under Sections 302/34 and 323/34 I.P.C. by the learned Trial Judge. Since both the accused denied framed charges, to establish their guilt, trial procedure was undertaken. 6. 5. Charge-sheeting of the accused resulted in their summoning and finding their case triable by Court of Session’s, it was committed to the Session’s Court. Accused were charged under Sections 302/34 and 323/34 I.P.C. by the learned Trial Judge. Since both the accused denied framed charges, to establish their guilt, trial procedure was undertaken. 6. Prosecution in it’s endeavour to cement the guilt of the accused tendered two fact witnesses informant Gajraj (P.W. 1) and Gaya Prasad, his elder uncle (P.W. 2). Rama Nand Singh (P.W. 3) is the pharmacist, who has proved the injury report prepared by Dr. Vishnu Datta as Ext. Ka-1. Since formal proof of all the documentary evidences were dispensed with by the accused under Section 294 Cr.P.C., therefore, prosecution was not obliged to examine the doctor, Investigating Officer and head constables during the trial. 7. In their statements under Section 313 Cr.P.C., both the accused took a common defence of false implication and also pleaded alibi by stating that the wife of accused Pahalwan had stroke of paralysis, therefore, both had gone to nurse her and were not present at the spot. In their defence, accused had examined Kallu as D.W. 1. 8. Learned trial Judge vide impugned judgment concluded that the prosecution had not been able to substantiate accused guilt under Section 302/34 I.P.C. and, therefore, acquitted both the appellants of that charge but found them guilty under Sections 304-II/34 and 323/34 I.P.C. and, therefore, convicted them for those offences and sentenced them to five years and one year RI respectively, which conviction and sentence is under challenge in the instant appeal. 9. On the aforesaid background factual matrix, I have heard Sri R.B. Sahai, learned counsel for the appellants and Sri Sangam Lal Kesharwani, learned AGA for the respondent State. Sri Sahai did not harp much on the conviction of the appellants and fairly conceded that so far as appellants’ conviction is concerned, it is unassailable. However, learned counsel submitted that one of the appellant Visheshwar, as of now, is more than 80 years of age and is an octogenarian. Another appellant is now 62 years of age. Incident had occurred on 18.12.1978, more than 33 years ago. Both the sides are relatives of each other as their ancestors were common. However, learned counsel submitted that one of the appellant Visheshwar, as of now, is more than 80 years of age and is an octogenarian. Another appellant is now 62 years of age. Incident had occurred on 18.12.1978, more than 33 years ago. Both the sides are relatives of each other as their ancestors were common. Incident had occurred at the spur of the moment without any premeditation on a petty dispute of erection of pedestal on a land, which both the sides claimed to have owned. It was, therefore, submitted that the sentence awarded to the appellants be suitably reduced with some fine. Another mitigating circumstance, which was argued by the appellants’ counsel is that during intervening period, none of the appellants involved themselves in any criminal activity and, therefore, they should be treated clemency-fully. 10. Learned AGA arguing on the question of sentence pointed out that the injury caused to the deceased was sufficient to cause his death and, therefore, there is not much of a reason to dilute the sentence of the appellants and let them off only by imposing fine. 11. I have considered the arguments raised by both the sides. Since the conviction of the appellants have not been challenged, there is no difficulty in holding that so far as guilt of the appellants under Sections 304-II/34 I.P.C. and 323/34 I.P.C. are concerned, prosecution has successfully anoint them and had successfully brought home the charge. Conviction of the appellants, consequently, is hereby affirmed. 12. Turning towards the sentence, there is much substance in the argument raised by counsel for the appellants. Incident had occurred more than three decades ago. One of the appellant is now octogenarian. The other appellant is more than 62 years of age. They had no criminal history. The incident had occurred all of sudden at the spur of moment on the dispute of erection of a pedestal. In such a view, looking to the period already passed by the appellants, in my humble opinion, substantive sentence of one year RI with fine of Rs. 20,000/- to each of the appellants under Section 304-II/34 I.P.C. and one year RI under Section 323/34 I.P.C. with direction that both the sentences shall run concurrently, shall meet the ends of justice. In view of aforesaid, this appeal is allowed in part. 20,000/- to each of the appellants under Section 304-II/34 I.P.C. and one year RI under Section 323/34 I.P.C. with direction that both the sentences shall run concurrently, shall meet the ends of justice. In view of aforesaid, this appeal is allowed in part. While conviction and sentence of the appellants under Section 323/34 I.P.C. is hereby maintained but their sentence under Section 304-II/34 I.P.C. is altered and diluted from five years RI to one year RI with fine of Rs. 20,000/- on each of the appellants. In default of payment of fine, both the appellants shall undergo one year RI as default sentence. Both the appellants are on bail, they are directed to surrender to their bail bonds and personal bonds to serve out the substantive sentence imposed herein above. Both the sentences shall run concurrently. Appellants are allowed one month time to deposit entire amount of fine, failing which, they shall serve the default sentence of one year RI. In case the fine is deposited by the appellants, a total amount of Rs. 30,000/- out of it is directed to be paid as compensation to the family members of the deceased. Let a copy of the judgment be certified to the trial Court for it’s intimation. ———————