JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Chetram S/o Ram Narayan, Prakash Kumar S/o Gordhan and Dhan Singh S/o Mool Chand in Sessions Case No. 67/1988, were tried by the court of Additional Sessions Judge No. 1, Ajmer. The said court vide impugned judgment dated 25.7.1990 acquitted Chetram and Prakash Kumar, who had not played any overt role in the occurrence. However, the said court convicted Dhan Singh for the offence under Section 302 IPC and 4/25 of Arms Act. Vide a separate order of even date, the said court sentenced the appellant as under:- U/s. 302 IPC To undergo life imprisonment and to pay a fine of Rs. 500/- in default of payment of fine to further undergo additional six months imprisonment. U/s. 4/25 Arms Act To undergo six months RI and to pay a fine of Rs. 100/- in default of payment of fine to further undergo additional one month imprisonment. 2. Both the sentences were ordered to run concurrently. Aggrieved against his conviction and sentence, the appellant preferred the instant appeal. 3. In the present case, the presence of the deceased and the occurrence stands admitted by the present appellant in his statement recorded under Section 313 Cr.P.C. 1973 However, the appellant has given different version qua manner of the occurrence. Smt. Kanta (PW-4), whose presence is admitted by the prosecution and the defence, has narrated the manner of the occurrence. The present appellant in his statement under Section 313 Cr.P.C. 1973 has made statement in consonance with the statement made by Kanta (PW-4). 4. We have gone through the record, appraised the evidence with the assistance rendered by the learned counsel for the appellant and the learned Public Prosecutor. 5. We are convinced that both the prosecution and the defence have given exaggerated self serving version. The prosecution to inculpate and defence to exculpate have projected diametrically opposite versions. Thus, duty has been cast upon the court to sift the grain from the chaff. Before we do so, it will be necessary for us to advert to the facts of the case and evidence led by the prosecution. 6. In the present case, the written report (Exhibit-P/1) was presented by Shankar Lal (PW-1), brother of the deceased Lekhraj before Rajendra Singh (PW-16), who was then posted as SHO, Police Station Ramganj. 7. Before we do so, it will be necessary for us to advert to the facts of the case and evidence led by the prosecution. 6. In the present case, the written report (Exhibit-P/1) was presented by Shankar Lal (PW-1), brother of the deceased Lekhraj before Rajendra Singh (PW-16), who was then posted as SHO, Police Station Ramganj. 7. Rajendra Singh (PW-16) in the court deposed that on 31.7.1988 (wrongly stated, it ought to be 31.7.1987) being posted as SHO, Police Station Ramganj, he received telephonic information from Dr. B.L. Bhatia (PW-14), who was posted as Medical Jurist, that Lekhraj has been admitted in the hospital. Thereafter, this witness (SHO PW-16) immediately left for the hospital. On arrival at the hospital, he learnt that Lekhraj had already expired. 8. At hospital on the date of occurrence, i.e. 31.7.1987, at 9:20 PM, Shankar Lal (PW-1) brother of the deceased Lekhraj presented written report (Exhibit-P/1). The same when, translated into English, reads as under:- "To SHO Saheb Police Station, Ajmer. Sir, It is submitted that I am employee in HMT VI. My duty is over by 4:00 PM and thereafter I returned to my house in the evening. At 6:00 - 6:30 PM, to fetch medicine for my wife, I had gone from Bhagwanganj to Ramganj Bazar to Doctor Shri Balani. After purchasing medicine for my wife, I was coming on foot from Gautam Nagar side. When I reached near Rose Mail Press, near Sheetala Mata Mandir or Shivji Ka Mandir, I saw that some boys were having fight and grappling. On reaching nearby, I saw that in the lower portion of the abdomen of my brother, on the right side, accused Dhan Singh Koli caused a knife injury. Blood stained knife was in the hand of Dhan Singh Koli. Prakash Koli and Chetram were also involved in the fight. Om Prakash son of Mangilal had intervened to save my brother. At that time, Kanta daughter of Ram Singh was also present there. This occurrence has also been witnessed by Kanta. Thereafter, these accused ran away from the spot. I and Om Prakash giving support to my brother were taking him away, then at Bhangwanganj Chauraha, Hukam Singh son of Bhanwar Lal met us. Then, we all three took my brother to the house. This occurrence has also been witnessed by Kanta. Thereafter, these accused ran away from the spot. I and Om Prakash giving support to my brother were taking him away, then at Bhangwanganj Chauraha, Hukam Singh son of Bhanwar Lal met us. Then, we all three took my brother to the house. Thereafter, I, Hukam Singh and my younger brother Rajendra took my brother Lekhraj in tempo to JLNH Ajmer, where he was admitted. After sometime, my brother expired due to injury caused by knife. This occurrence had taken place at around 7:30 or 7:45 PM. This occurrence was also seen by few other persons. Clothes of my brother were soaked with blood. Accused have intentionally caused murder of my brother by causing knife injury. My brother has been murdered, hence, report is presented. Action be taken. Date: 31.7.1987 Shankar Lal." 9. From the perusal of above written report, on the basis of which a formal FIR (Exhibit-P/17) bearing No. 81/1987 was registered at Police Station Ramganj, Ajmer, for the offences under Section 302/34 IPC, following facts are discernible:- (a) That author of written report (Exhibit-P/1) Shankar Lal (PW-1) had reached at the spot at the nick of the moment and he is a chance witness. (b) That as per the written report (Exhibit-P/1), Om Prakash (PW-6) was present at the spot. (c) That the occurrence was witnessed by Kanta (PW-4). (d) That in the written report (Exhibit-P/1), it is stated that the accused and deceased had grappled. (e) That in the written report (Exhibit-P/1), it is stated that the deceased Lekhraj has suffered only one injury that too in the lower part of abdomen. Dr. B.L. Bhatia (PW-14), in the court deposed that on 1.8.1987, at JLN Medical Hospital, he conducted autopsy on the dead body of Lekhraj. In the Post Mortem Report (Exhibit-P/18), he had noted the following injuries on the person of deceased Lekhraj:- (1) A stab wound 3 x 1 cm x depth (on exploration) as shown in diagram on right sub-costal margin. Exploration: Dissection of the stab wound shown in the diagram, shows cutting of skin, emasculative and wound is going deep into Rt superior surface of right lobe of liver. Into liver, the wound is 0.5 cm deep and 2½ x ½ cm on surface. Bleeding in and around the wound is evident. Abdominal cavity contains 1500 cc free frank, blood in it. Into liver, the wound is 0.5 cm deep and 2½ x ½ cm on surface. Bleeding in and around the wound is evident. Abdominal cavity contains 1500 cc free frank, blood in it. The wound is traversing downwards and inwards into liver. 10. As per opinion of the doctor, the cause of death was shock due to excessive internal hemorrhage as a result of injury to liver. 11. Om Prakash (PW-6), who has been named in the written report (Exhibit-P/1)/FIR (Exhibit-P/17), as an eyewitness, in the court has not supported the prosecution. He has turned hostile to the prosecution. This witness in the court stated that he knew Lekhraj. The accused persons present in the court are not known to him. Lekhraj is his neighbour. This witness stated that he knew Kanta (PW-4) also. As to how occurrence took place and as to how deceased Lekhraj had died, the witness feigned ignorance. This witness was declared hostile and was confronted with his previous statement (Exhibit-P/7) recorded under Section 161 Cr.P.C. 1973 by the learned Public Prosecutor. However, the prosecution could not gain anything from the cross-examination extended. Shankar Lal (PW-1), the complainant in the court reiterated as to what was stated by him in the written report (Exhibit-P/1). 12. We find merit in the argument advanced by the learned counsel for the appellant that Shankar Lal is a chance witness. It is too difficult to believe that having come from his duty at 4:30 PM, he left his house at 6:30 PM to fetch medicine for his wife and he reached at the spot at the nick of time, only to witness single blow given by accused appellant Dhan Singh to his brother Lekhraj. We find merit in the contention advanced by the learned counsel for the appellant that Shankar Lal (PW-1) was introduced and planted as chance witness. Thus, we rule out the testimony of Shankar Lal (PW-1) from consideration. 13. Material witness for us, is Kanta (PW-4), whose presence has been noted in the written report (Exhibit-P/1). We find merit in the contention advanced by the learned counsel for the appellant that Shankar Lal (PW-1) was introduced and planted as chance witness. Thus, we rule out the testimony of Shankar Lal (PW-1) from consideration. 13. Material witness for us, is Kanta (PW-4), whose presence has been noted in the written report (Exhibit-P/1). It will be apposite for us to reproduce the entire examination-in-chief of Kanta (PW-4), which reads as under:- ^^eSa ys[kjkt e`rd dks tkurh gwaA djhc nks ikSus nks lky dh ckr gSA jkr ds djhc vkB ikSus vkB cts dh ckr gSA eSa chfM+;ka nsdj vius ?kj tk jgh FkhA eSa chM+h cka/kus dk dke djrh gwaA eSa chM+h nsus xkSre uxj tkrh gwaA eSa chfM+;ka nsdj tSls gh xkSre uxj ls ?kj tk jgh Fkh eq>s ys[kjkt us jkLrs esa NsM+k Fkk ;g ckr eSaus /kulq[k dks crkbZ tks jkLrs esa feyk FkkA /kulq[k us dgk fd D;ksa NsMrs gks rks ys[kjkt us pkdw fudkykA /kulq[k us tku cpkus ds fy, mldk gkFk idM+k nksuksa esa Nhuk >iVh gqbZ vkSj bl fNuk >iVh esa ys[kjkt dk pkdw ys[kjkt dks yx x;kA** 14. The case before us is in very narrow compass, as accused appellant in his statement recorded under Section 313 Cr.P.C. 1973 not only admitted the occurrence, but took a stand that Lekhraj deceased died due to accidental blow, which was self inflicted. The relevant portion of statement of accused Dhan Singh recorded under Section 313 Cr.P.C. 1973 reads as under:- ^^eSaus dksbZ pkdw ugha ekjkA tSlk dkUrk us c;ku fn;k pkdw ys[kjkt ds mlh ds gkFk ls yxkA og chM+h nsdj vk jgh Fkh mlus eq>s dgk HkbZ;k ;g ys[kjkt eq>s NsM+ jgk gSA eSaus mls le>kus dh dksf'k'k dh mlus tsc ls pkdw fudky dj esjs ij okj fd;kA eSaus cpkus ds fy, mldk gkFk idM+ fy;kA Nhuk >iVh gqbZ ftlls mlds gkFk dh mlds yxhA ?kksaius okys ?kko ogh ?kko gSA** The trial Judge relied upon the statement made by the accused under Section 313 Cr.P.C. 1973 and convicted him for the offence under Section 302/34 IPC. 15. We are also in agreement with the argument raised by the learned counsel for the appellant that the statement made by the accused Dhan Singh under Section 313 Cr.P.C. 1973 cannot be made basis for conviction. 16. 15. We are also in agreement with the argument raised by the learned counsel for the appellant that the statement made by the accused Dhan Singh under Section 313 Cr.P.C. 1973 cannot be made basis for conviction. 16. The Hon'ble Apex Court in the case of Mohan Singh vs. Prem Singh and Another, (2002) 10 SCC 236 has held that the statement of the accused recorded under Section 313 Cr.P.C. 1973 cannot be made a sole basis of conviction. However, the Court can rely upon the statement made by the accused under Section 313 Cr.P.C. 1973 in whole or in part to corroborate the prosecution case. It is possible and in the given facts the Court can also rely on the inculpatory part of statement made by the accused if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. 17. It would be apposite here to reproduce the following portion of the judgment:- "27. The statement made in defence by accused under Section 313, Cr.P.C. 1973 can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under section 313 of the Code of Criminal Procedure, 1973 cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 Cr.P.C. 1973 of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part in found to be false on the basis of the evidence led by the prosecution Nishi Kant Jha vs. State of Bihar, AIR (1969) SC 422. "23. In this case the exculpatory part of the statement in Ex. 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under S. 342 Cr.P.C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. This was contradicted by the statement of the accused himself under S. 342 Cr.P.C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the blood-stains being so considerable as to attract the attention of Ram Kishore Pandey, PW-17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex.6 the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime." (Emphasis supplied) 18. Thus, it is true that the statement of the accused recorded under Section 313 Cr.P.C. 1973 cannot be made basis of the conviction, but it can be used to corroborate the prosecution evidence. The statement of Kanta (PW-4) made in her examination-in-chief, though she turned hostile, is categoric that the accused Dhan Singh was present at the spot. At that time, the deceased Lekhraj was also present and on the complaint made by Kanta (PW-4), the grappling had taken place. The statement made by accused under Section 313 Cr.P.C. 1973 corroborate this material part of evidence of the prosecution. Therefore, the presence of the accused and the deceased at the place of occurrence and grappling between them is admitted. In this context, we cannot become oblivious of the fact that it has nowhere come in the evidence, neither in prosecution evidence nor in defence evidence, that the relations between the parties were inimical or strained. Therefore, the presence of the accused and the deceased at the place of occurrence and grappling between them is admitted. In this context, we cannot become oblivious of the fact that it has nowhere come in the evidence, neither in prosecution evidence nor in defence evidence, that the relations between the parties were inimical or strained. Thus, the occurrence had taken place without any pre-meditation, on the spur of moment, upon the complaint made by Kanta (PW-4). It was preceded by grappling and scuffle. At that juncture, the appellant Dhan Singh, without taking any undue advantage, has caused one injury and that too in the lower portion of the abdomen of the deceased Lekhraj. It is different matter that the said injury has proved fatal. Thus, we can safely say that the accused never had intention to cause murder. At the most, knowledge can be attributed to him. Therefore, this is a case of culpable homicide not amounting to murder and shall fall under Section 304 Part II IPC and not under Section 302 IPC. 19. Having held that the offence will fall under Section 304 Part II IPC, we cannot ignore that the occurrence in the present case had taken place thirty years ago. A period of three decades has passed. It is settled legal proposition that appeal is continuation of the trial and right of speedy trial under Article 21 of the Constitution of India, as interpreted by courts of law, vest in the appellant as a mitigating circumstance. 20. We are informed by the learned counsel for the appellant that the appellant Dhan Singh at the time of occurrence was a young man aged 21 years and thereafter, he got selected as Jr. Accountant and became employee of the State Government. It is submitted that services of the accused appellant Dhan Singh were terminated and the appellant, according to the learned counsel for the appellant, is sole bread earner of the family and has large family to support, which include parents. The learned counsel for the appellant has also canvassed before us that the appellant before registration of the present FIR and thereafter, has not been named as accused in any case and in this case also, due to circumstances beyond his control, became accused, as he intervened on the bidding of Kanta (PW-4) to save her modesty, as she was being teased by the deceased Lekhraj. 21. Taking the above circumstances spelt out by the learned counsel for the appellant as mitigating circumstances, we are of the view that sentence of five years, which we normally award for offence under Section 304 Part-II IPC, cannot be awarded in the present case, in view of mitigating circumstances. 22. Awarding of sentence by courts is very onerous duty. The court has to balance mitigating and aggravating circumstances. 23. Consequently, we are of the view that the sentence of three years under Section 304 Part II IPC shall serve the ends of justice. Accordingly, we set aside the life imprisonment awarded by the trial Judge under Section 302 IPC. Hence, we sentence the appellant to undergo three years RI under Section 304 Part II IPC. The sentence awarded under Section 4/25 of Arms Act is maintained and same shall run concurrently with the sentence awarded above. 24. We are also conscious that family members of the deceased Lekhraj who died on a trivial issue, are also concerned about the outcome of the present case. In these circumstances, we direct Secretary, Legal Services Authority to pay compensation to the family members of the deceased Lekhraj under Section 357-A Cr.P.C. under the Victim Compensation Scheme, formulated by the State of Rajasthan. 25. A copy of this judgment be sent to the trial court forthwith along with the record. We will appreciate in case, the appellant surrenders within one month, from the receipt of certified copy of this judgment and if he do so, we commend to the Jail authorities to take that as a good conduct on the part of the appellant, towards award of remissions. 26. Appeal Disposed of as above-Legal Services Authority to pay compensation to family of victims Under Section 457 Cr.P.C. and Under victim compensation scheme.