JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral) - On 5.2.1985, at about 3:00 PM, as per case of the prosecution, five accused namely Ratti Ram son of Mohar Singh, Bhagwan Singh son of Brijbhan, Ramdhan son of Laxman, Rattiram son of Laxman and Hari Ram son ofLaxman constituted unlawful assembly hence committed offence punishable under Section 147 IPC. It is further case of the prosecution that on the said date in the field of complainant Inder (P.W.11), aforesaid accused caused injuries to Harjiram son of Dhandhu, as a result of which Harjiram died and thus, as per prosecution the above said persons committed offence of murder punishable under Section 302 IPC. The further case of the prosecution is that on the said and time, all the above said five accused caused simple injuries to Amar Singh (P.W.4) son of deceased Harjiram and Kalyan (P.W.5) son of the complainant Inder (P.W.11) and thus committed offence punishable under Section 323 IPC in alternate 323/149 IPC. 2. The court of Additional District and Sessions Judge, Karauli, Rajasthan, in Sessions Case No.56/1988 tried four accused namely Bhagwan Singh, Rati Ram son of Laxman, Ratti Ram son of Mohar Singh and Hari Ram. The fifth accused Ramdhan son of Laxman was declared proclaimed offender and hence, was not put to trial. The trial Judge vide impugned judgment dated 16.12.1989, recorded acquittal of the above four accused persons. 3. Aggrieved against the same, the State of Rajasthan filed an application for grant of leave to appeal. A Division Bench of this Court 17.5.1990, granted leave to appeal only qua Bhagwan Singh and Ratti Ram son of Mohar Singh. The order (3 of 14) [CRLA-214/1990] passed by the Division Bench of this Court on 17.5.1990 reads as under:- "Heard learned Public Prosecutor. Leave to appeal is granted against accused respondents Bhagwan Singh s/o Brijbhan and Rattiram s/o Mohar Singh. Appeal be registered as regular appeal against them. Leave to appeal against other coaccused is refused. Bailable warrant in the sum of Rs. 5,000/- be issued against Bhagwan Singh s/o Brijbhan and Rattiram s/o Mohar Singh for their appearance before this Court on or before on 10.7.1990." 4. In the present case, Inder (P.W.11) on 5.2.1985, at 3:00 PM, presented written report (Exhibit-P/8) before Prahlad Singh (P.W.14), who was then posted as SHO, Police Station Salempur, Sawai Madhopur. 5. 5,000/- be issued against Bhagwan Singh s/o Brijbhan and Rattiram s/o Mohar Singh for their appearance before this Court on or before on 10.7.1990." 4. In the present case, Inder (P.W.11) on 5.2.1985, at 3:00 PM, presented written report (Exhibit-P/8) before Prahlad Singh (P.W.14), who was then posted as SHO, Police Station Salempur, Sawai Madhopur. 5. Prahlad Singh (P.W.14) in the court deposed that upon presentation of written report (Exhibit-P/8), he had registered formal FIR (Exhibit-P/18) bearing No.6/85 at Police Station Salempur, Sawai Madhopur, for the offences under Sections 147, 148, 149 and 302 IPC. 6. Inder (P.W.11) in the written report (Exhibit-P/8) stated that on the day of occurrence, he alongwith his son Kalyan (P.W.5), wife Rampyari (P.W.7), brother Harji deceased, nephew Amar Singh (P.W.4) were harvesting the crop. Meanwhile, Gurjars of the village Chandan started grazing their camels and goat in the field of complainant. Harji brother of the complainant turned the grazing cattle out of the field and then Ratti Ram son of Mohar Singh, Bhagwan Singh son of Brijbhan, Ramdhan, Rati Ram, Hari Ram son of Laxman Gurjar came armed with lathis and started giving beating, as a result of which, Harji fell on the ground. Kalyan (P.W.5) and Amar (P.W.4) intervened to save him. Then, they were also caused injuries. Meanwhile, Parma (P.W.2), Parbhati (P.W.3), Moti (P.W.6) and Santoki (P.W.10) who were working in nearby fields came running. Harji died at the spot. It was further stated therein that dead body is lying in the village and he alongwith Inder (P.W.1) came to the police station to lodge the report. 7. The prosecution in the present case, in all examined sixteen witnesses, namely, Jagan (P.W.1), Parma (P.W.2), Parbhati (P.W.3), Amar Singh (P.W.4), Kalyan (P.W.5), Moti (p.W.6), Rampyari (P.W.7), Bherulal (P.W.8), Ram Prasad (P.W.9), Santoki (P.W.10), Inder (P.W.11), Dr. Jhamman Lal (P.W.12), Harveer Singh (P.W.13), Prahlad Singh (P.W.14), Gyan Singh (P.W.15) and Hanuman Prasad (P.W.16). 8. Amar (P.W.4) son of deceased Harji and Kalyan (P.W.5) son of the complainant Inder (P.W.11) have suffered simple injuries in the occurrence. 9. Before we revert to the ocular version, it will be apposite here for us to take note of medical evidence. 10. Dr. Jhamman Lal (P.W.12) on 6.2.1985 at 6:00 PM, medico-legally examined Kalyan (P.W.5) and in injury report (Exhibit-P/9), noted following two simple injuries:- 1. 9. Before we revert to the ocular version, it will be apposite here for us to take note of medical evidence. 10. Dr. Jhamman Lal (P.W.12) on 6.2.1985 at 6:00 PM, medico-legally examined Kalyan (P.W.5) and in injury report (Exhibit-P/9), noted following two simple injuries:- 1. Contusion 2" x " present on the tranto lateral aspect at middle on the Lt side thigh, simple, blunt weapon. 2. Contusion, 1" x present on the gluteal region on Rt side, simple, blunt weapon. 11. Dr. Jhamman Lal (P.W.12) on the said date at 5:00 PM, (5 of 14) [CRLA-214/1990] medico-legally examined Amar (P.W.4) and in injury report (Exhibit-P/10), noted following two simple injuries:- 1. Contusion 2" x " present on the post aspect upper V on Lt side forearm run obliquely, simple, blunt weapon. 2. Contusion 1" x " present on the dorsum aspect of the Lt side thumb, simple, blunt weapon. 12. On 6.2.1985, at about 9:30 AM, Dr. Jhamman Lal (P.W.12) conducted autopsy on the dead body of Harji and in the Post Mortem report (Exhibit-P/11), had noted following injuries on the dead body of Harji:- 1. Contusion 3" x 1" present on the post aspect of the neck at the level of the cervical vertebra run transversely. 2. Contusion 4" x 1" present on the Rt side scapular region. 3. Contusion 3" x 1" present on the Lt side scapular region. 4. Contusion 4" x 1" present on the Rt side gluteal region. 5. Contusion 5" x 1" present on the Lt side gluteal region. 13. On internal examination, Dr. Jhamman Lal (P.W.12) found fracture and dislocation of Cervical Vertebra at the level of C3 and C4. As per opinion of the doctor, Harji died because of spinal cord injury at the level of Cervical Vertebra. 14. Parma (P.W.2) in the court, who was working in the nearby field at the time of incident, has not supported the prosecution case. This witness stated that he is not aware as to how Harji died and he has not seen anyone causing injuries. 15. Parbhati (P.W.3) in the court deposed that he knew Harji and he died three years ago from the date of his deposition. On the day of occurrence, at about 9:00 - 9:30 AM, Bhagwan Singh and Rati Ram turned their camels in the field. 15. Parbhati (P.W.3) in the court deposed that he knew Harji and he died three years ago from the date of his deposition. On the day of occurrence, at about 9:00 - 9:30 AM, Bhagwan Singh and Rati Ram turned their camels in the field. This witness stated that he called Bhagwan Singh and Ratiram and told them to take camels away otherwise fight may ensue. This witness stated (6 of 14) [CRLA-214/1990] that at around 11:00 AM, he was present at his Well alongwith Santoki (p.W.10), Moti (P.W.6), Inder (P.W.11), Kalyan (P.W.5), Amar Singh (P.W.4) and Harji deceased. Then Harji, Kalyan and Amar Singh went to their mustard field. Then Bhagwan Singh and Ratiram caused them injuries. This witness stated that he had not named Ramdhan, Hari Ram, and Rati Ram son of Laxman Gujar. This witness out of five accused named initially and in his statement recorded under Section 161 Cr.P.C., absolved accused namely Ramdhan, Hari Ram and Ratiram son of Laxman and assigned overt act to only Ratti Ram son of Mohar Singh and Bhagwan Singh son of Brijbhan. 16. Similarly, Amar Singh (P.W.4) also in the court stated that on the day of occurrence, camel of Bhagwan Singh and Ratti Ram entered into their field. They were turned out of the field then Bhagwan Singh and Ratti Ram son of Mohar Singh caused injuries to him, Harji and Kalyan (P.W.5) with lathis. The exact words stated by Amar (P.W.4) are as under:- 17. Amar (P.W.4) stated that Ratti Ram had caused injury on his left thumb. Kalyan (P.W.5) had also suffered injuries. 18. Kalyan (P.W.5) has also reiterated the prosecution case against the two accused respondents qua whom leave to appeal has been granted namely Ratti Ram son of Mohar Singh and Bhagwan Singh son of Brijbhan. Kalyan (P.W.5) being injured in the occurrence has attributed specific role of causing injuries to accused respondents Ratti Ram son of Mohar Singh and Bhagwan Singh son of Brijbhan. 19. Moti (P.W.6) in the court stated that he was present in his house at a distance of two field from the place of occurrence. This witness stated that he was sitting alongwith Bharosi (not examined), Inder (P.W.11), Parbhati (P.W.3) and Santoki (P.W.10). They were running an engine at their Well. Bhagwan Singh and Ratti Ram son of Mohar Singh brought their camels in the field of Harji. This witness stated that he was sitting alongwith Bharosi (not examined), Inder (P.W.11), Parbhati (P.W.3) and Santoki (P.W.10). They were running an engine at their Well. Bhagwan Singh and Ratti Ram son of Mohar Singh brought their camels in the field of Harji. This witness identified Bhagwan Singh and Ratti Ram son of Mohar Singh, who were armed with lathis. This witness stated that both Bhagwan Singh and Ratti Ram son of Mohar Singh caused injuries. 20. Rampyari (P.W.7) in the court also stated that Bhagwan Singh and Ratti Ram son of Mohar Singh were present at the spot and they had caused injuries to Kalyan (P.W.5) and Amar (P.W.4). This witness stated that Bhagwan Singh caused injury on the neck of Harji deceased. 21. Santoki (P.W.10) also in the court stated that Bhagwan Singh and Ratti Ram son of Mohar Singh had left their two camels in the field of Harji. This witness stated that Bhagwan Singh caused injury below the neck of Harji. This witness had not seen Ratti Ram causing injury. 22. Inder (P.W.11) partially supported the prosecution case. This witness turned hostile and in the court stated that he had seen Bhagwan Singh and Ratti Ram armed with lathis, running away from his field. 23. We need not notice the testimony of the witnesses who participated in the investigation or have been produced by the prosecution to prove formal evidence. 24. Suffice it so say that Parma (P.W.2), Parbhati (P.W.3), Moti (P.W.6) and Santoki (P.W.10) are independent witnesses, who were working in the nearby field. 25. Mr. R.R. Baisla, the learned counsel appearing for the accused respondents namely Ratti Ram son of Mohar Singh and Bhagwan Singh son of Brijbhan has submitted that all the witnesses belong to one clan and they are relations in brotherhood. It is contended by counsel for the accused respondents that Parma (P.W.2) has not supported the prosecution case. Parbhati (P.W.3), Moti (P.W.6) and Rampyari (P.W.7) have specifically stated that Ratti Ram and Bhagwan Singh caused injuries to Harji deceased. Santoki (P.W.10) in the court has stated that Bhagwan Singh had caused injury on the neck of Harji but he had not seen Rati Ram causing injuries. 26. What we cannot ignore is that Amar Singh (P.W.4) son of Harji deceased was present alongwith his father working in the field and he has also received injuries in the occurrence. Santoki (P.W.10) in the court has stated that Bhagwan Singh had caused injury on the neck of Harji but he had not seen Rati Ram causing injuries. 26. What we cannot ignore is that Amar Singh (P.W.4) son of Harji deceased was present alongwith his father working in the field and he has also received injuries in the occurrence. He has been medico-legally examined on the same day when post mortem of Harji was performed. Similarly, Kalyan (P.W.5) is nephew of the deceased Harji. He has also received injuries in the occurrence. Kalyan (P.W.5) was also medico-legally examined at the same time when the post mortem of deceased Harji was carried. Amar Singh (P.W.4) and Kalyan (P.W.5) having received injuries in the occurrence are stamped witnessed, who have received injuries in the occurrence. They are duly corroborated by independent witnesses, namely, Parbhati (P.W.3), Moti (P.W.6) and Rampyari (P.W.7). Santoki (P.W.10) only corroborate injured Amar (P.W.4) and Kalyan (P.W.5) qua Bhagwan Singh. This witness (Santoki P.W.10) stated that even though Rati Ram was present, she had not seen him causing injuries. Thus, the number of witnesses have named Ratti Ram son of Mohar Singh and Bhagwan Singh as accused, who caused injuries in the occurrence. Santoki (P.W.10) even though has not assigned any injury to Ratti Ram, but has admitted presence of Rati Ram accused respondent at the spot. 27. The trial Judge primarily for two reasons, recorded acquittal of all the accused. Firstly, the trial court held that all the witnesses in their statement recorded under Section 161 Cr.P.C., have named five persons as accused and the witnesses in the court have absolved Rati Ram son of Laxman, Hari Ram son of Laxman. Secondly, the trial Judge held that the witnesses made departure from their statement recorded under Section 161 Cr.P.C and hence, they cannot be termed as truthful witnesses. 28. The learned counsel for the accused respondents has submitted that even the witnesses have not named Ramdhan son of Laxman, who was not sent for trial. The learned counsel for the accused respondents contended that family of Laxman effected compromise with the witnesses and thus, three accused who were sons of Laxman were not named by the witnesses in the court. It is contended that no implicit reliance can be placed upon the testimony of these witnesses. 29. The learned counsel for the accused respondents contended that family of Laxman effected compromise with the witnesses and thus, three accused who were sons of Laxman were not named by the witnesses in the court. It is contended that no implicit reliance can be placed upon the testimony of these witnesses. 29. The learned counsel for the accused respondents has submitted that Inder (P.W.11) the complainant, who initially named five accused having caused injuries to Harji, has turned hostile to the prosecution and has only stated that he reached at the spot later and he had only seen Ratti Ram son of Mohar Singh and Bhagwan Singh as running away from the spot. It is further contended that once Inder (P.W.11) has not stuck to the version unfolded in written report (Exhibit-P/8), he is to be excluded from consideration as witness and therefore, no reliance can be placed upon Amar Singh (P.W.4) and Kalyan (P.W.5) even though they are injured, because they followed the pattern already laid by Inder Singh (P.W.11) who in his deposition in court denied having seen the occurrence. 30. There are five injuries on the person of Harji deceased. As per Post Mortem Report (Exhibit-P/11), five contusions were noted on the dead body of Harji. No ligature mark was found. Injury on the neck has proved fatal as it caused fracture of Cervical Vertebra at the level of C3 and C4. 31. It is true that eyewitnesses in the court have not deposed against three sons of Laxman, namely Ramdhan, Hari Ram and Rati Ram. They confined the prosecution version only qua Bhagwan Singh and Ratti Ram son of Mohar Singh. 32. Amar Singh (P.W.4) son of deceased and Kalyan (P.W.5) have specifically stated that both Ratti Ram son of Mohar Singh and Bhagwan Singh have caused injuries to Harji deceased. They are fully corroborated by the testimony of Parbhati (P.W.3), Moti (P.W.6) and Rampyari (P.W.7). The maxim falsus uno falsus omnibus is not adhered to by the Indian courts. Therefore, merely because witnesses have not named three accused who were sons of Laxman, we cannot disbelieve the entire case of the prosecution. They are fully corroborated by the testimony of Parbhati (P.W.3), Moti (P.W.6) and Rampyari (P.W.7). The maxim falsus uno falsus omnibus is not adhered to by the Indian courts. Therefore, merely because witnesses have not named three accused who were sons of Laxman, we cannot disbelieve the entire case of the prosecution. Therefore, the reasoning propounded by the trial Judge that the witnesses out of five have only named two as accused and they have made departure from their statement recorded under Section 161 Cr.P.C. wherein they have named all five accused, cannot be accepted to discard the testimony of Amar Singh (P.W.4) and Kalyan (P.W.5) who are injured in the occurrence. Thus, the reasoning given by the trial Judge is perverse. 33. The learned counsel for the accused respondents, at this stage, has submitted that there was no intention on the part of the accused respondents to commit culpable homicide amounting murder. It is contended that the occurrence had ensued without premeditation and at the spur of moment when camels of the two accused had entered into the field of Harji deceased. It is submitted that the occurrence was preceded by exchange of abuses between both the parties. It is submitted that initially qua five injuries, the prosecution named five persons as accused and thus, it cannot be said that all the five injuries are caused by two accused namely Rati Ram son of Mohar Singh and Bhagwan Singh. It is stated that merely because three accused have not been named, it cannot be ruled out that they have not caused injuries. Thus, it is contended that at the most each accused had caused one injury. 34. We accept the alternative argument raised by the learned counsel for the accused respondents. 35. Consequently, we set aside the acquittal of the accused respondents Ratti Ram son of Mohar Singh and Bhagwan Singh. We hold them guilty of offence under Sections 304 Part II IPC. 36. Having held the accused respondents guilty of offence under Section 304 Part-II IPC, we have to consider mitigating circumstances while awarding sentence. 37. We cannot ignore that the occurrence in the present case had taken place thirty-two years ago. A period of three decades has passed. We hold them guilty of offence under Sections 304 Part II IPC. 36. Having held the accused respondents guilty of offence under Section 304 Part-II IPC, we have to consider mitigating circumstances while awarding sentence. 37. We cannot ignore that the occurrence in the present case had taken place thirty-two 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. 38. The learned counsel for the accused respondents has contended that in the statement of accused respondents recorded under Section 313 Cr.P.C., age of Bhagwan Singh and Ratti Ram son of Mohar Singh have been recorded as 26 and 23 years respectively. Thus, it is submitted that the appellants as on today are above 56 and 52 years of age. According to the learned counsel for the accused respondents, the accused respondents are sole bread earner of their respective families and have large family to support. The learned counsel has also canvassed before us that the accused respondents before registration of the present FIR and thereafter, have not been named as accused in any case. 39. Taking the above circumstances spelt out by the learned counsel for the accused respondents as mitigating circumstances, we are of the view that sentence of seven or ten years, in the facts and circumstances of each case, which we normally award for offence under Section 304 Part-II IPC, cannot be awarded in the present case, in view of mitigating circumstances. 40. Awarding of sentence by courts is very onerous duty. The court has to balance mitigating and aggravating circumstances. 41. Consequently, taking into account the fact that occurrence took place thirty-two years ago, alongwith age and antecedents of the accused respondents, which are above board, we are of the view that the sentence of three years under Section 304 Part II IPC shall serve the ends of justice. Accordingly, for the offence under Section 304 Part II IPC, we sentence the accused respondents Bhagwan Singh and Ratti Ram son of Mohar Singh to undergo three years RI and to pay a fine of Rs. 20,000/- each and in default thereof, to undergo one year additional RI. Accordingly, for the offence under Section 304 Part II IPC, we sentence the accused respondents Bhagwan Singh and Ratti Ram son of Mohar Singh to undergo three years RI and to pay a fine of Rs. 20,000/- each and in default thereof, to undergo one year additional RI. The fine paid shall be disbursed to the legal heirs of the deceased. 42. We are also conscious that family members of the deceased Harji, who died in the occurrence, 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 Harji, under Section 357-A Cr.P.C. under the Victim Compensation Scheme, formulated by the State of Rajasthan. Compensation to be paid by Legal Service Authority shall be over and above sentence of fine imposed by us. 43. A copy of this judgment be sent to the trial court forthwith along with the record. A copy of the judgment be also sent to Secretary, Rajasthan Legal Services Authority for compliance and disbursal of compensation. 44. The trial Judge shall issue warrant of arrest and take accused respondents into custody to serve the sentence awarded by us. The period undergone by the accused as under-trial shall be set off. 45. In view of above, the appeal filed by the State of Rajasthan is disposed of.