Pankaj Naqvi, JJ. This appeal against the judgment of conviction and order of sentence passed in Sessions Trial No. 341 of 1981 on 24.7.1982 by the learned First Additional Sessions Judge, Varanasi was initially preferred by three ap pellants, namely, Munshi, Raja Ram and Mohan. Appellant Mohan who was the father of the remaining two appellants Munshi and Raja Ram died during the pendency of the appeal and as may ap pear from Court's order dated 29.3.2007 his appeal was ordered to abate on account of his death, thus, the appeal sur viving only on behalf of appellants Munshi and Raja Ram. 2. The appellants had been con victed under section 302/34 and 323/34 I.P.C. and each of them had been di rected to suffer rigorous imprisonment for life as also rigorous imprisonment for one year on the respective two counts. 3. Initially, there was a non-cognizable report of committing of fences under sections 323, 504 and 506 I.P.C. which report was registered on 10.9.1980 at 12:30 p.m. in respect of an occurrence of the same date having taken place at 10:00 a.m. It was stated that the three convicted accused includ ing the deceased appellant Mohan had assaulted the uncle of the informant, namely, Sitaram with lathi and when he intervened he was also assaulted with the same weapon. 4. What we find further is that there was a report lodged by appellant Munshi at 11:30 a.m. of the same nature against deceased Sita Ram, Ram Nandan ( P.W.4) and Ram Dhani ( P.W.1) the informant of the present case. It was stated in the cross case, which is the defence of the appellants also, that discus sions were being going on in the joint family of which the two parties were members regarding the partition of the joint family property and during one of such discussions, the accused persons lost temper and started abusing and when they were forebade to do that they dealt lathi and danda blows as a result of which appellant Munshi, his mother Mahadei, father deceased, appellant Mohan as also the other appellant Raja Ram got injured. The accused persons left threatening that henceforth if appel lants had ever raised the issue of parti tion, they would be killed. 5. There is no dispute in it that the cases were registered as non-cognizable report initially.
The accused persons left threatening that henceforth if appel lants had ever raised the issue of parti tion, they would be killed. 5. There is no dispute in it that the cases were registered as non-cognizable report initially. But what we find is that deceased Sita Ram who was hospital ized in Sir Sunder Lai Hospital, Varanasi died on the sixth day of the occur rence, i.e., on 5.9.1980 at 11:00 p.m. due to injuries which were inflicted upon him allegedly by the appellants. Before succumbing to his injuries deceased Sita Ram had been examined by Dr. S.L. Yadav P.W.6 who found the following injuries on the person of the deceased: 1. Lacerated wound 3-1/2 cm. x 1/2 cm. x skull deep 8 cm. above from left ear on left side of head. 2. Laceration wound 2 cm. x 1/4 cm. x skin deep on left; side of head 11 cm. above from left eye brow. 3. Laceration wound 1-1/2 cm. x 4 cm. x skin deep on right side of head 9 cm. above from right ear. 4. Swelling 7 cm. x 4 cm. on left side of head, just above the left eye brow. 5. Contusion 3-1/2 cm. x 1-1/2 . cm. on upper lid of left eye. 6. Contusion 22 cm. x 2-2/2 cm. ( back) both sides 11 cm. below 7th, cervical vertebrae. 7. Contusion 6 cm. x 2 cm. on the left side of the back 1-½ cm. oblique from injury No. 6. 8. Contusion 10 cm. x 2½ cm. on, the back left side 10 cm. below from ( injury No. 7. 9. Contusion 9 cm. x 2½ cm. on the left back 5 cm. below from injury No. 8. 10. Laceration 3 cm. x ½ cm. x skin deep on the left side of hand in between thumb and index finger. 11. Abrasion 1 cm. x ½ cm. on, the left hand on root of thumb on ; dorsal surface. 6. P.W.6 kept his opinion reserved as he had put the deceased Sita Ram under observation as regards injuries No. 1 to 5 and advised X-ray in respect, of those injuries, but was clearly expressing his opinion that injuries No. 6 to 11 were simple in nature and all injuries were caused by hard and blunt substance.
6. P.W.6 kept his opinion reserved as he had put the deceased Sita Ram under observation as regards injuries No. 1 to 5 and advised X-ray in respect, of those injuries, but was clearly expressing his opinion that injuries No. 6 to 11 were simple in nature and all injuries were caused by hard and blunt substance. Subsequently, it appears that on the death of the deceased Sita Ram the post-mortem examination was held by Dr. J.K. Singh, P.W.9 and he had found only four injuries on the dead body, which were as under: ( 1) Stitched wound 2½ cm. left side forehead 10 cms. above left eye brow. ( 2) Stitched wound 3 cm. on left side head 8 cm. away from left ear. ( 3) Healed wound 3 cm. x ¾ cm. left elbow joint. ( 4) Multiple contusion 5 cm. x ½ cm. on left buttock. ( 5) Stitched wound of 3½ cm. on left thumb. ( 6) Fracture of left frontal bone and left parietal bone. 7. As may appear from the evi dence of P.W.9 as also the original re port ( Ex. Ka-16) P.W.9 had found that the frontal bone and left parietal bone of the deceased were fractured and further that while the other wounds were sim ple in nature, they were sufficient to cause death. P.W.9 further stated as may appear from his evidence that on ac count of the injuries the man had gone into coma and had survived for 5-6 days as may be in such cases. 8. After the death of Sita Ram, the case was converted into one under sec tion 302 I.P.C. and the investigation was carried out. 9. We have already noticed the de fence of the appellants. What we find is that during the course of the trial ten witnesses were examined and P.W.1 Ram Dhani, P.W.2 Ram Briksha, P.W.3 Smt. Phoolmati and P.W.4 Ram Nandan who were cited as eye-witnesses by the police were examined during trial but P.W.2 Ram Briksha, an eye-witness who was also an independent witness, did not support the prosecution case. Thus, P.Ws.1, 3 and 4 only came forward to support the prosecution charges. The defence was examining two witnesses D.W.1 Ram Adhar Upadhyay who was stating the facts relating to the counter version which was based on the report lodged by appellant Munshi.
Thus, P.Ws.1, 3 and 4 only came forward to support the prosecution charges. The defence was examining two witnesses D.W.1 Ram Adhar Upadhyay who was stating the facts relating to the counter version which was based on the report lodged by appellant Munshi. D.W.2 was Mahadei who was admittedly injured in the course of the same transaction and she was also coming forward to support the defence version that it was the de ceased and witnesses who had assaulted D.W.2, deceased appellant Mohan and Munshi as a result of which they were carrying injuries. The Court below after considering the evidence convicted the appellants as noted at the earliest and directed into suffer the sentence in flicted upon. 10. Sri V.P. Srivastava, Senior Ad vocate, took us through the evidence of the witnesses and submitted that it was not clear from the evidence as to whose assault had indeed cause the fatal in jury. It was further submitted that the initial quarrel appears ensuing between the two sides and that was for a very trifle matter regarding seeking an ease-mentary right of pathway over the land which had fell in the share of the de ceased and witnesses so as to approach ing the part of the same plot which was existing on its northern extremity with a Well standing thereon. Submission was that there was no dispute that the Well was situated in the land falling in the share of deceased appellant Mohan and his house was situated at a place which could be adjoining the land which had fallen in share of the deceased and he did not have any pathway for accessing the Well for drawing water. Submission was that it is the consistent admission of the witnesses that the accused persons were seeking a right of pathway and that was the bone of contention which had arisen after the partition which had taken place some 8-9 months prior to the occurrence. It was, as such, submit ted that for a trifle matter the incident had occurred in which as may appear from the evidence of P.W.4 Ram Nandan, D.W. Mahadei and Mohan appears definitely injured.
It was, as such, submit ted that for a trifle matter the incident had occurred in which as may appear from the evidence of P.W.4 Ram Nandan, D.W. Mahadei and Mohan appears definitely injured. It was, as such, sub mitted that even if the Court was con vinced about the fact, the appellants could have exceeded their right of de fence which was available to them or it was a free fight between the two parties. In view of the indefinite and omnibus evidence regarding the authorship of the fatal wound, the Court ought not to have convicted the appellants under section 302/34 I.P.C. Submission was that the facts of the case was almost fully covered by the judgment of the Supreme Court in Shri Kishan and others v. State of U.P., 1972( 9) ACC 193 ( SC) in which under similar set of facts the Supreme Court was alter ing the conviction to section 325 read with 34 I.P.C. 11. Sri K.N. Bajpayee, the learned AGA appearing for the State initially resisted the submissions, but was quite candid in agreeing that there was no definite allegation appearing against any of the accused that the injury which was found on the head could have re sulted from his blow. In fact, the evi dence was too indefinite to assign the role of killing the deceased or inflicting the injury which had caused the fracture of the parietal and frontal bones of the deceased to any particular accused. 12. In Shri Kishan ( supra), there was quarrel between to urchins one of whom was going to inform their family mem bers and the family members came to lodge a protest when a fight ensued. There was a death as a result of the as sault wielded, but it was not clear as to whose assault had caused the death of the deceased in Sri Krishna. 13. Here in the present case, we find from the evidence of P.Ws. 1, 3 and 4 that a fight had ensued on a very trifle matter and we further find that it could be a case that both the sides had quar relled between themselves. The inten tion was not there as may appear from the facts of the case to kill any particular person.
1, 3 and 4 that a fight had ensued on a very trifle matter and we further find that it could be a case that both the sides had quar relled between themselves. The inten tion was not there as may appear from the facts of the case to kill any particular person. The accused persons were seek ing the grant of a right of easement over the piece of land which had fallen in the share of the deceased and probably there was no serious resistance to that demand. P.W.1 had stated that the only condition for granting the right was that all the village people should come and request for granting the right which ap pears from paragraph 4 of P.W.1. There may not be any direct evidence on the point but probably the accused persons could have pressed for being granted the right without the villagers being in volved and that was probably the rea son which had flared up the fight be tween the parties. Witnesses had stated that the three accused who initially, were convicted, had started giving blows with lathi to the deceased and other injured like P.W.4 Ram Nandan. It is true that there were as many as eleven injuries which were recorded by P.W.6, Dr. S.L. Yadav who had first examined the deceased, but there was a solitary wound which caused the fracture of both parietal and frontal bone of the deceased as a result of which he went into coma for about 6 days and, lastly, succumbed to that injury. The evidence is quite unclear as to whose blow could have resulted into that injury. All wit nesses have stated that all the accused persons assaulted the deceased and gave innumerable blows to him. Thus, what we find is that there could not be any direct finding which we could re cord as to who could be held responsi ble as the author of one particular blow which had resulted into the death of the deceased. 14. It was a joint family which had partitioned its properties some 8-9 months back as appears from the evi dence both of P.VV.3 and P.W4. Some of the issues of the partition were still alive as the right of pathway was still being realised and attempted to be enforced.
14. It was a joint family which had partitioned its properties some 8-9 months back as appears from the evi dence both of P.VV.3 and P.W4. Some of the issues of the partition were still alive as the right of pathway was still being realised and attempted to be enforced. It was not a fight for any animosity or any serious motive, it might be a fight be tween coparceners seeking the enforce ment of their right and, unfortunately, that enforcement of the right appears to us to have resulted into a death on that account. What we find is that there was no real intent nor we could discern any knowledge to any particular accused that the act which he had committed was so eminently dangerous that it in all probability must have caused death. We are clear in our opinion, there is no in tent of causing the death and as such it could be a voluntary act of causing grievous injury to the deceased. 15. In that view of the matter, we partly allow the appeal by acquitting the accused appellant for their conviction under section 302/34 I.P.C. by altering the finding of conviction as against them under section 325/34 I.P.C. As regards the sentence, we direct the two appellants Munshi and Raja Ram to suf fer rigorous imprisonment for three years. But in the fact and circumstances of the case, we are inclined to direct the payment of a compensation of Rs. 25,000/- to be paid jointly by the two appellants Munshi and Raja Ram to the next of kin, especially to Smt. Phoolmati, P.W.3, if she is alive or to all legal heirs of deceased Sita Ram in equal propor tions within six months of the present judgment. 16. In case, they fail to pay up the compensation which we order to be paid under section 357 Cr.P.C, they shall have to suffer an additional period of one year in lieu thereof. 17. The conviction of appellants under section 323/34 I.P.C. is left undis turbed with a further direction that sub stantive sentences of imprisonment shall run concurrently. Appeal Partly Allowed.