JUDGMENT Ramesh Sinha, J. – This criminal appeal has been filed against the judgment and order dated 9.5.1991 passed by Vth Additional Sessions Judge, Sultanpur in Session Trial No.81 of 1989 convicting and sentencing the appellants under Sections 304 I.P.C. to undergo 10 years rigorous imprisonment. 2. The prosecution case in brief are that on 8.4.1988, the daughter in law of the informant, namely Malawati had gone to attained the call of nature outside the house and further she was not feeling well after some time the informant heard the cry and shrieks of his daughter in law near the house of co-accused Ram Phare on which the informant, his wife Smt. Dulari and their daughter Minwa Devi reached the door of accused Ram Phare and they saw that accused Ram Phare, Ram Kishun and Ram Jatan, who were resident of village of the informant, were assaulting his daughter-in-law Malawati with kicks, fists and Lathi and they were stating that she was “Mudkatni” (a notion of superstition). She was raising alarm and informant protested the accused for assaulting his daughter-in-law but the accused assaulting her. On hearing the alarm, one Hargandra and Kaladeen and other persons of the village arrived and saved informant's daughter-in-law. The informant took his daughter-in-law to Akhand Nagar Hospital for medical treatment. While he was returned in the evening he stopped at Rahul Nagar Bazar and as soon as he gave tea to her and further started taking her back his daughter-in-law died. Due to night he brought the dead body his daughter-in-law to his house and kept there. He got a written report abut the incident by Mewalal Kahanr which is marked as Ex. Ka-1 and took the same to the police station Akhand Nagar at 7.15 a.m. on the basis of which an F.I.R. was lodged against the accused persons on 9.4.1988 which was registered as Case Crime No. 23 of 1988 under Section 304 I.P.C. 3. The Investigating Officer of the case S.I. Diwakar Pandey was carried out investigation which was entrusted him and the same was concluded by another Investigating Officer Sita Ram Arya, who was the Station Officer. During the course of investigation he prepared the site plan Ex. Ka-14, the inquest report of the deceased was conducted by Sub Inspector Diwakar Pandey which was marked as Ex. Ka- 4 and Ka-5. During the course of investigation he prepared the site plan Ex. Ka-14, the inquest report of the deceased was conducted by Sub Inspector Diwakar Pandey which was marked as Ex. Ka- 4 and Ka-5. The dead body of the deceased was sent for post-mortem on 9.4.1988, the same was marked as Ex. Ka-8 to District Hospital Sultanpur where the post-mortem report prepared which was marked as Ex. Ka-2. The Investigating Officer Sitaram Arya, recorded the statement of the witnesses under Section 161 Cr.P.C. and thereafter he submitted the charge sheet against the accused under Section 304 I.P.C. The case was committed to the court of Sessions by the Magistrate and the accused were tried for the said offence. The trial court framed the charges against the appellants under Section 302 read with Section 34 I.P.C., who denied the charges and claimed to be trial. 4. The prosecution in support of its case examined P.W. 1 Ram Milan, P.W. 2 Kalideen, P.W. 3 K.P. Pathak, P.W. 4 Head Constable Ram Milan Yadav, P.W. 5 S.I. Diwakar Pandey and P.W. 6 Sitaram Arya. 5. The accused in his statement under Section 313 Cr.P.C. has stated that the witnesses have falsely deposed against them and only on account of enmity and they have been falsely implicated. The accused stated that the son of the informant, namely, Jagannath ousted his first wife, who tortured by him and after ousting her, Jagannath re-married after one year with the deceased Malawati. The informant Ram Milan used to pressurise his son Jagannath to leave his second wife Malawati but his son Jagannath went to city after leaving his wife separately and after which, the said incident has taken place. When son of the informant, namely Jagannath started living separately in the city, leaving behind his wife Malawati, the informant Ram Milan and his wife starting harassing to the deceased Malawati that due to her, his son was living separately. The informant Ram Milan was demanding the ornaments of deceased Malawati from her for the marriage of his younger daughter but deceased Malawati refused to give him. The accused have not led any evidence in defence. 6. P.W. 1 Ram Milan has deposed before the trial court that he had two sons, elder one of Jagannath and younger Amar Nath along with four daughters, who have been married. The accused have not led any evidence in defence. 6. P.W. 1 Ram Milan has deposed before the trial court that he had two sons, elder one of Jagannath and younger Amar Nath along with four daughters, who have been married. His wife is alive and the deceased was the wife of his elder son Jagannath. He stated that 20 to 22 days prior to the incident, the Jagannath had gone to Delhi for earning his livelihood. The marriage of the deceased with Jagannath was performed about five years prior to the incident and they were having a child who is alive. The accused Ram Phare, Ram Kishun and Ram Jatan belongs to the same village and they are Kewat by caste whereas the informant belongs to the Kahar caste. The incident had taken place on 4.30 a.m. in the morning and the deceased Malawati was ill and she had gone outside the house to attain the call of nature and he was present at his house. On hearing the alarm raised by her daughter-in-law, he reached the place of occurrence and saw all the three accused assaulting his daughter in law with kicks, fists and lathi and he asked the reason for assaulting her on which at the same time the witnesses Kalideen and Hargendra had arrived at the place of occurrence, who have also seen the deceased being beaten by accused. The accused had assaulted the deceased, who had fallen on the ground and they caused injuries which were found on the person of the deceased but the same was not bleeding. He further stated that he took his daughter in law on a cot to Akhand Nagar for medical treatment and while he was returning from their at Rahul Nagar Bazar, he gave tea to his daughter in law, who died immediately thereafter. He brought the dead body of the deceased to his house and kept at it on the door. A written report about the incident was dictated by him to Mewa Lal Kanhar, who wrote the same and also the same was read over to him on which his thumb impression was given. The written report Ex. Ka-1 has been proved by him. A written report about the incident was dictated by him to Mewa Lal Kanhar, who wrote the same and also the same was read over to him on which his thumb impression was given. The written report Ex. Ka-1 has been proved by him. He took the said report at police station Akhand Nagar Bazar and submitted the same on which the police had arrived at his house and they conducted the inquest on the dead body of the deceased and further sealed the same. At the time of panchayatnama, the witnesses Ram Nihor, Raj Mani and Ram Adhar, who have been appointed as panch by the Sub Inspector and after sealing the dead body, the same was sent for post mortem and he also accompanied with the dead body of the deceased and after the post mortem last rite of the deceased was performed in Gomti River. His statement under Section 161 Cr.P.C. was recorded by the Investigating Officer, he also disclosed the relationship of the accused with each other and further stated that he has no enmity with them. He stated that the deceased eased herself thereafter the incident has taken place. 7. P.W. 2 Kalideen, who is the eye witness of the occurrence has also reiterated the prosecution case as has been stated by P.W. 1 Ram Milan. He submitted that he also reached the place of occurrence at 5 a.m. on hearing the alarm raised by the deceased. The husband of the deceased used to earn his livelihood live at Delhi. He stated that he saw the accused assaulting the deceased with kicks, fists and Lathi. The accused had beaten the deceased so much on account of which she had fallen on the ground and deed. He further stated that P.W. 1 Ram Milan had reached before him and the witness Hargaendra, who also reached at the place of occurrence along with other persons of the village, objected the accused from beating the deceased. The deceased died on account of injuries sustained by her. The incident has take place in-front of house of Ram Phare and behind the house of P.W. 1. He also stated that he was real cousin brother of P.W. 1 Ram Milan. He is also resident of the same village and near his house of P.W. 1. The deceased died on account of injuries sustained by her. The incident has take place in-front of house of Ram Phare and behind the house of P.W. 1. He also stated that he was real cousin brother of P.W. 1 Ram Milan. He is also resident of the same village and near his house of P.W. 1. He stated that Ram Phare caught hold the deceased whereas Ram Kishan and Ram Jatan had assaulted the deceased with Kicks, fists and lathi. 8. P.W. 3 Dr. K.P. Pathak, who is a formal witness of the incident and has stated that he had conducted the post-mortem of the deceased on 10.4.1988 at 3 p.m. while he was posted as Medical Officer in District Hospital, Sultanpur. He has stated that the duration of death of deceased was two days old and he found following ante mortem injuries on the person of the deceased : 1. Abraded contusion 6 cm x 3 cm on forehead middle just above the root of nose. 2. Contusion swelling Lt.-side head 10 cm. above Ltd. ear 3. Contusion on Rt. side face just outer to Rt. Eye in area of 8 cm. X 5 cm. 4. Multiple abrasion of 20 cm. X 10 cm on Rt. side back just above iliac crest 1.5 cm x 1 cm. skin deep seen after removal of applied dressing with a complain. 5. Multiple abrasion contusion on back of chest Rt. side just below the shoulder 12 cm. X 2 cm. seen. 6. Multiple contusion in area of 15 cm. X 10 cm. on top of both shoulder. 7. Multiple contusion in area of 15 cm. X 10 cm. on the right buttock. 8. Abraded contusion 30 cm. X 12 cm. on outer just above the knee Jt. 9. Abrasion 3 cm x 2 cm. On Lt. Elbow Jt. 10. Abraded traumatic swelling 3 cm. X 1.5 cm. on Rt. elbow Jt. 9. In the opinion of the doctor the cause of death was shock and hammeorage and Coma as a result of ante mortem injuries sustained by the deceased. He has proved the post mortem report Ex. Ka-12. He further submitted that the death has occurred on 8.4.1988 at 4.30 a.m. He further submitted that the injuries no. 1 and 2 were sufficient in the ordinary course of the nature to cause death. He has proved the post mortem report Ex. Ka-12. He further submitted that the death has occurred on 8.4.1988 at 4.30 a.m. He further submitted that the injuries no. 1 and 2 were sufficient in the ordinary course of the nature to cause death. He submitted that the death had occurred on account of injury no. 2 sustained by the deceased before the trial court. 10. P.W. 4 Head Constable Ram Milan Yadav stated before the trial court that on 9.4.1988, he was posted as constable clerk at police station Akhand Nagar on the said date. The informant Ram Milan given written report Ex. Ka-1 on the basis of which he has prepared Chick F.I.R. in his writing on which Sub Inspector Diwakar Pandey signed the same and proved the same as Ex. Ka-13. He has also stated that he endorsed the said F.I.R. in G.D. Rapat No. 11 on 7.15 a.m. a carbon copy of which has been prepared by him which is marked as Ex. Ka-6. He denied the suggestion that informant had lodged the present F.I.R. in consultation with the police. 11. P.W. 5 Sub Inspector Diwakar Pandey has stated that he was posted at the concerned police station on the said post and he was entrusted with the investigation of the case and the investigation was further interested to Station Officer Sitaram Arya, who was concluded the investigation of the case and submitted charge sheet against the accused. He further stated that he had recorded the statement of the witnesses under Section 161 Cr.P.C. and conducted inquest of the deceased and sent the dead body of the deceased for post mortem. After inquest he prepared the site plan of the occurrence. 12. P.W. 6 S.I. Sitaram Arya, has deposed before the trial court that he was posted at the said police station from 11.6.1987 to 1988 as Station Officer of Police Station Akhand Nagar and he has taken over the investigation of the case from Diwakar Pandey on 16.4.1988. He stated that he has recorded the statements Jagannath of the husband of the deceased and other witnesses. The accused surrendered and were sent to jail. He recorded their statements while they were confined in jail and he submitted charge sheet against the accused persons which has been marked as Ex. Ka-5. 13. Heard Sri Indrajeet Shukla, learned counsel for the appellant and Mohd. The accused surrendered and were sent to jail. He recorded their statements while they were confined in jail and he submitted charge sheet against the accused persons which has been marked as Ex. Ka-5. 13. Heard Sri Indrajeet Shukla, learned counsel for the appellant and Mohd. A. Raj Siddiqui, learned AGA for the State. 14. Mohd. Riyaz, learned counsel for the complainant is not present though the matter has been called in the revised list. 15. The appellant no. 1 Ram Phare son of Dilawar is said to have died during the pendency of appeal, his appeal was abated by the Court's order dated 3.4.2003. 16. The appellant nos. 2 and 3, namely, Ram Jatan son of Ram Phare and Ram Kishan son of Ram Phare are present in compliance of Court's order dated 12.5.2016 and 8.6.2016 respectively. They have identified by their counsel. 17. It has been argued by learned counsel for the appellants that the deceased who was “Mudkatni” was done to death by the informant and his wife as they used to harass her. The deceased was the second wife of the elder son of P.W. 1, namely, Jagan Nath and they were having a child. P.W. 1 and his wife had been pressuring the deceased and his son Jagan Nath to leave the deceased on account of which Jagan Nath had started living in the city. The allegation which has been levelled against the appellants that they have assaulted the deceased on account of the fact that she was the Mudkatni with Lathi is false one. He further submitted that the evidence of P.W. 1 and P.W. 2 cannot be relied upon as the are highly interested partisan witnesses. It was next argued that the even if the prosecution case is taken its face value, though the deceased received 10 injuries on her person but the injury no. 2 was found to be fatal one as is evident from the statement of the doctor P.W. 4 K.P. Pathak and further author of the said injury is not known, thereafter, conviction and sentence of the appellants under Section 304 I.P.C. for 10 years against the evidence on record. 2 was found to be fatal one as is evident from the statement of the doctor P.W. 4 K.P. Pathak and further author of the said injury is not known, thereafter, conviction and sentence of the appellants under Section 304 I.P.C. for 10 years against the evidence on record. He submitted that the incident has taken place on a trivial issue that the deceased was a “Mudkatni” (notion of superstition) and she was done to death by the appellants the findings of conviction and sentence recorded by the trial court against them under Section 304 I.P.C. is not justified and the same be set aside as the case would not travel beyond Section 325 I.P.C. Moreover, the appellants have already served out one year in jail as under trial and after their conviction and they are aged about 60 to 65 years. The appeal has come up for hearing after 24 years and incident is 28 years old. Their rest of the sentence be reduced to fine which may not be treated as enhancement of fine. The learned counsel for the appellant has placed reliance upon the judgement of the Division Bench of this Court passed by 2013 (2) JIC 788 (Mohan and others v. State of U.P.) and 2006 (1) JIC 503 (All) (State of U.P. v. Atabul & others) 18. Learned AGA on the other hand has vehemently refuted the arguments of the learned counsel for the appellant and submitted that even though the deceased was a “Mudkatni” then to the appellants had not right to assault her and beat her to death. He argued that as per the post mortem report of the deceased the deceased received 10 injuries on her person which shows that the deceased was mercilessly beaten by the two appellants with Lathi and the post mortem report of the deceased corroborates the prosecution case but the learned AGA could not dispute the fact that the injury no. 2 which has been opined by the doctor to be the cause of death. The author of the said injury is not known and the case law which has been relied upon by the learned counsel for the appellant particularly Mohan and others v. State of U.P. (supra) is squarely covered in the given facts and circumstances of the case. 19. Considering the submissions advanced by the learned counsel for the parties and perused the record. 19. Considering the submissions advanced by the learned counsel for the parties and perused the record. 20. It is admitted fact that the deceased had gone to attain the call of nature at 4.30 a.m. in the morning on 8.4.1988 and the accused treated her to be “Mudkatni” (a notion of superstition) for assaulting the deceased with Lathi on an alarm raised by her father in law of P.W. 1 and other witnesses including P.W. 2 Kalideen arrived at the place of incident and saw that the accused assaulting the deceased with Lathi the deceased was beaten by the appellants on account of which she had fallen on the ground but her injuries were not found to be bleeding. The deceased received as many as 10 injuries of her person as has been evident from the post mortem report of the deceased. P.W. 4 Dr. K.P. Pa that during his evidence before the trial court that out of the ten injuries found on the person of the deceased, injury nos. 1 and 2 were sufficient in the ordinary course of the nature to cause of death the appellant. Moreover injury no. 2 is the cause of death. The contention of the learned counsel for the appellants that it was the P.W. 1 Ram Milan and his wife, who were torturing the deceased and harassing her and further pressuring his son to leave her, who had leave her and went to live city to earn his livelihood and further the deceased ornaments were demanded by the P.W. 1 for the marriage of her younger daughter, who refused to do the same, therefore, they have beaten the deceased cannot be accepted as the incident has taken place outside the house of the informant when the deceased had gone to attain the call of nature near the house of accused Ram Phare where she was assaulted by the two appellants and his father Ram Phare (Now dead) and the said incident was witnessed by P.W. 1 and P.W. 2 Kalideen and other persons of the village. Further the contention of the applicants of counsel that two witnesses P.W. and 2 are highly interested and partisan witnesses hence their testimony is unwarranted to be believed also has no force as the trial court has scanned their evidence minutely and came to the conclusion that the said witnesses were reliable one and further their evidence corroborates the post mortem report of the deceased which has been proved by P.W. 4 Dr. K.P. Pathak. Thus, the participation of the accused appellants cannot be ruled out. 21. So far as the contention of the counsel for the appellants that even if the case of the prosecution is taken on its face value the offence would not travel beyond Section 325 I.P.C. and the conviction of the appellants under Section 304 I.P.C. is against the evidence on record appears to have substance. It is evident from the evidence of P.W. 4 Dr. K.P. Pathak before the trial court that the injury no. 1 and 2 were sufficient to cause death in the ordinary course of nature but the injury no. 2 was proved to be fatal and the author of the said injury was not known. Further the incident has taken place on a trivial issue that the deceased was “Mudkatni” and the accused were under superstition that she was not auspicious in the village, hence on seeing her in the morning at a tap, they assaulted her. There was no enmity between the parties, therefore, it is apparent from the evidence that there was no real intent nor it could discern any knowledge to any accused that the act which he had committed was so eminently dangerous that in all probably must have caused death. 22. In my opinion there is no intent of causing the death and as such it could be a voluntary act of causing grievous injury to the deceased. 23. In view of foregoing discussions, I partly allow the appeal by acquitting the appellants for their conviction under Section 304 I.P.C. by altering the finding of conviction as against them under Section 325 I.P.C. As regards the sentence, I direct the two appellants Ram Kishun and Jatan to suffer rigorous imprisonment for three years. The appellants are old persons and their age about 60 to 65 years. The appellants are old persons and their age about 60 to 65 years. The incident is 28 years old and the appeal has come for hearing after 24 years for hearing and further taking into account, the position of the appellants as on date. As they have already undergone one year as under trial and after their conviction. 24. Considering the facts and circumstances of the case, the appellants Ram Kishun and Ram Jatan, who are convicted and sentenced under Section 325 I.P.C. for three years R.I. and further their sentence is reduced to fine of Rs. 1,00,000/-, which shall be deposited by the aforesaid two appellants, namely, Ram Kishun and Ram Jatan in equal proportion i.e. 50,000/- each in the Court of C.J.M. concerned within two months from today. Out of which Rs. 90,000/- is directed to be paid to the child of the deceased Malawati and Jagannath or to her legal hairs, if any and Rs. 10,000/- shall go to the State. 25. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as modified by this Court. 26. In view of the above, the appeal is partly allowed. 27. Senior Registrar of this Court is directed to send the certified copy of this order to the District Judge, concerned for its compliance. Appeal Partly Allowed.