JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. Jagdish, Chiranji Lal, Gokal and Sardara Ram, four brothers being sons of Parsaram along with Birjuram son of Gid Ram were tried by the court of Additional Sessions Judge, Khetri in Sessions Case No. 2/90 (13/93). The said court vide impugned judgment dated 4.11.1993 convicted all the five accused for the offence under Section 147 IPC. Jagdish was substantively convicted for the offence under Section 302 for having caused death of Hari Ram father of Om Prakash (P.W.1), whereas remaining four accused Gokal, Sardara Ram, Chiranji Lal and Birjuram were convicted for the offence under Section 302/149 IPC. Jagdish, Gokal, Sardara Ram and Birjuram were convicted for the offence under Section 323 IPC, whereas Chiranji Lal was convicted for the offence under Section 323 with aid of Section 149 IPC for causing simple injuries to Om Prakash (P.W.1). 2. Having convicted the appellants for the above said offences, the trial Judge vide a separate order of even date sentenced the accused appellants as under:- U/s. 147 IPC-to undergo one year RI and to pay a fine of Rs. 100/-, in default of payment of fine to undergo additional one month SI. U/s. 302 and 302/149 IPC-to undergo life imprisonment and to pay a fine of Rs. 1000/-, in default of payment of fine to undergo additional six months SI. U/s. 323 and 323/149 IPC-to undergo three months RI and to pay a fine of Rs. 50/-, in default of payment of fine to undergo additional one month SI. 3. Aggrieved against their conviction and sentence, the accused appellants have filed the instant appeal. 4. The criminal proceedings in the present case were set into motion on the basis of statement (Exhibit-P/1) made by Om Prakash (P.W.1) before ASI, Sardar Singh (P.W.10). Sardar Singh (P.W.10) in the court stated that on 11.11.1989, he was posted as In-charge of Police Station Singhana. On that day at 2:35 AM he received an information from the hospital that injured Hari Ram and Om Prakash (P.W.1) having received injuries in a fight had been admitted in the hospital. Upon receipt of said information, Sardar Singh (P.W.10) reached at KCP Hospital and on arrival there recorded the statement of Om Prakash (P.W.1) vide memo Exhibit-P/1. 5. On that day at 2:35 AM he received an information from the hospital that injured Hari Ram and Om Prakash (P.W.1) having received injuries in a fight had been admitted in the hospital. Upon receipt of said information, Sardar Singh (P.W.10) reached at KCP Hospital and on arrival there recorded the statement of Om Prakash (P.W.1) vide memo Exhibit-P/1. 5. Om Prakash (P.W.1) in statement (Exhibit-P/1) broadly stated that at 10:00 PM, in the night he was irrigating his field from the Well by plying motor. At that time, his father Hari Ram was sleeping in nearby Kotari (hut). Then Jagdish and Chiranji Lal both sons of Parsaram came in his field, where he was irrigating and asked him to stop the motor. They further asked Om Prakash (P.W.1) as to where his father was. Upon which, Om Prakash (P.W.1) replied that he is not there. Upon which accused replied that they will not permit him to operate the motor. They further stated that after your father arrive at the spot, then only they will permit him to ply the motor. Om Prakash went to the hut to inform father and told him that Jagdish and Chiranji Lal are calling him. His father came and accused told him to make payment of bill. Hari Ram, the father of Om Prakash stated that he is not aware. He further stated that he is irrigating his field from the Well. They started giving abuses to father of the complainant and caught hold of his neck. When Om Prakash (P.W.1) intervened to save him, then Gokal Ram, Sardara Ram, Raj Kumar, Birju Mali also arrived at the spot. They started causing injuries to him and his father. The injuries were caused on the feet, back side of shoulder and waist of Om Prakash (P.W.1) and on head of his father. The complainant stated that thereafter, he sent his younger brother who was studying in the Kotari to house, upon which his uncle Suwaram came and they got his father admitted in the Khetri Hospital. Jagdish etc after causing injuries left for their houses. All accused with common intention had caused injuries. 6. Dr. Rajeev Mishra (P.W.2) in the court deposed that on 11.11.1989 he was posted as Medical Officer in Khetri Copper Hospital. In the night at about 11:30 PM, Hari Ram and Om Prakash (P.W.1) came to the hospital in injured condition. Jagdish etc after causing injuries left for their houses. All accused with common intention had caused injuries. 6. Dr. Rajeev Mishra (P.W.2) in the court deposed that on 11.11.1989 he was posted as Medical Officer in Khetri Copper Hospital. In the night at about 11:30 PM, Hari Ram and Om Prakash (P.W.1) came to the hospital in injured condition. They informed that due to beating given they have received injuries. Dr. Rajeev Mishra through Ward Boy sent communication to SHO, Police Station Singhana. Hari Ram injured was examined and in the injury/medico-legal report (Exhibit-P/3), Dr. Rajeev Mishra noted following two injuries:- 1. Linear laceration wound over skull, 4" long, lacerated wound, dangerous, blunt. 2. Lacerated wound, " x ", shin of Tibia, right side, simple, blunt. 7. On the same night on 10.11.1989 at 11:30 PM, Dr. Rajeev Mishra examined Om Prakash (P.W.1) and in the injury report (Exhibit-P/4) noted following three simple injuries:- 1. Blunt injury, external aspect of thigh, mid thigh region, right side, simple, blunt, " x ". 2. Abrasion, Rt foot, inter-digital region, between 4th and 5th toe, simple, blunt. 3. Contusion, upper lid, Lt eye and lateral can this Lt eye, simple, blunt. 8. While admitted in the hospital, Hari Ram expired on 11.11.1989 at 9:15 AM. Dr. Sumer Singh Dhankad (P.W.5) on 11.11.1989 at 11:30 AM conducted autopsy on the dead body of Hari Ram. In Post Mortem Report (Exhibit-P/27) following external injuries were noticed:- 1. Stitched wound of size 3cm size 5cm below right knee anteriorly with two stitches. 2. Stitched wound 4cm long antero-posteriorly inter-temporal to inter parietal region slight left to midline. 3. Abrasion 1cm size 8cm below Rt knee. 4. Abrasion 4cm size 12 cm below right knee. 5. No mark of ligature around neck. Pupils dilated fixed both side. Cranium and Spinal Cord-Vertical linear fracture of left parietal with temporal bone also fracture of Rt temporal and Parietal bone with separation of sature line in between two parietal bone on opening the skull-extra dural haematoma with extension to sub dural and punctuate into intra-cerebral also. Laceration of brain matter just below the parieto temporal fracture on left side. 9. Deceased Hari Ram was operated while admitted in the hospital, hence, we need not lay much emphasis on the injuries specified in the Post Mortem Report, as they are stitched wounds. 10. Laceration of brain matter just below the parieto temporal fracture on left side. 9. Deceased Hari Ram was operated while admitted in the hospital, hence, we need not lay much emphasis on the injuries specified in the Post Mortem Report, as they are stitched wounds. 10. Om Prakash (P.W.1) in the court made departure from the story given by him in the statement (Exhibit-P/1). In the court Om Prakash stated that on 10.11.1989 in the night at 10:00 PM, Jagdish and Chiranji Lal came. They told the witness to stop the motor and asked him to call his father. His father Hari Ram was sleeping in the hut. This witness called his father. According to this witness, Jagdish and Chiranji Lal made a protest as to why water to their field has been stopped, upon which his father replied that since they have not paid the electricity bill, therefore, he has stopped the water. Upon which Jagdish caught hold of the neck of his father and Chiranji Lal gave abuses. Jagdish caused his father injury on the head. Gokal, Birjuram, Saradara Ram and Raj Kumar who were armed with lathis also started beating his father. Gokal said that as to what you are seeing, cause injury in the head. Upon which Jagdish caused lathi injury in the head. This witness came to intervene then all accused gave injuries to him. 11. We may mention here that sixth accused Raj Kumar being child at the relevant time, was sent for trial to the court who was competent to try children under the Rajasthan Children Act. 12. Thus, Om Prakash (P.W.1) in the court made two significant departures from his statement (Exhibit-P/1). In the earlier statement, it was stated that the accused Jagdish and Chiranji Lal came and they said that they will not allow to operate the motor as they have not been paid amount of electricity bill, whereas in the court it was stated that Jagdish and Chiranji Lal came and they raised protest as to why water to their field has been stopped, upon which deceased Hari Ram replied that since they had not paid electricity charges, they will not be permitted by the deceased to draw the water. 13. 13. Be that as it may, essential, facts remain the same that on the day of occurrence, the accused in the night at 10:00 PM, came into the field of Om Prakash (P.W.1). They called Hari Ram deceased father of Om Prakash (P.W.1). They caught hold of him. 14. Second departure made from original story, in the statement (Exhibit-P/1) which led to the registration of formal FIR (Exhibit-P/30), is that earlier it was said that all accused caused injuries to deceased Hari Ram. In the court, in consonance with the medical evidence, it is stated that Jagdish caused first blow on the head of Hari Ram and Chiranji Lal gave abuses. Then all other four accused caused injuries to Hari Ram. This fact is not borne from the medical evidence. In the medico-legal report (Exhibit-P/3), there is one injury on the head and injury No. 2 is only lacerated wound having dimension of " x " on the shin of Tibia. From the dimension of the injury No. 2, we are of the view that it can be result of fall. Thus, qua injury No. 2, which has dimension of " x " that too on shin of Tibia, the complainant involved other five members of a family. 15. In the present case, the occurrence has taken place on 10.11.1989 at 10:00 PM. Formal FIR (Exhibit-P/30) bearing No. 124 dated 11.11.1989 was registered at Police Station Singhana, at 4:30 AM for the offences punishable under Sections 147, 447, 341 and 323 IPC. The special report reached Illaqa Magistrate on 15.11.1989 at 11:00 AM. Considering the medical evidence, we are of the view that the complainant had widen the net too far by involving all the members of the family. All injuries suffered by Hari Ram and Om Prakash (P.W.1) are being caused by blunt weapon. Jagdish was armed with lathi. 16. Having heard the learned counsel for the parties, we are of the view that this is one case where we ought to sift the grain from chaff taking delay into consideration and by removing embellishments which have emerged in the prosecution evidence. 17. Ram Singh (P.W.3) brother of Om Prakash (P.W.1) in initial version, after the occurrence, was sent by Om Prakash to relay the information at home. In the present case, no independent witness has been examined. 17. Ram Singh (P.W.3) brother of Om Prakash (P.W.1) in initial version, after the occurrence, was sent by Om Prakash to relay the information at home. In the present case, no independent witness has been examined. Om Prakash (P.W.1) is solitary witness who made improvements in the prosecution case and has made departure from the initial version. Therefore, considering that five brothers from the family and sixth person Birjuram unnecessarily were named as accused for solitary injury on the head. We are of the view that it is not safe to upheld the conviction of Chiranji Lal, Gokal, Sardara Ram and Birjuram. 18. Consequently, we set aside the conviction of Chiranji Lal, Saradara Ram, Gokal and Birjuram by extending benefit of doubt and hence, as a necessary consequence thereof, the conviction recorded and sentence awarded by the trial court upon Chiranji Lal, Gokal, Saradara and Birjuram on various counts are set aside. They are acquitted of all the charges. 19. Now, we come to the case of Jagdish. Whether we take the police statement (Exhibit-P/1) made by Om Prakash (complainant) or his testimony recorded as (P.W.1) in the court into consideration, it is apparent that the accused Jagdish had not come with intention to commit murder. He had come to raise protest as to why their field is being deprived of water. In the days of sowing crop, irrigation to the field is life line of a farmer. It has come in evidence that immediately upon arrival, the accused raised a protest and altercation had ensued. Chiranji Lal had given abuses. Thus, it is apparent that the accused came to lodge a protest as to why water was stopped to their field. At that moment, it is to be assumed that tampers ran high. Thus, without any pre-meditation, on spur of moment, Jagdish had caused a solitary blow on the head of Hari Ram. This to us, will not sustain the conviction of appellant Jagdish for offence under Section 302 IPC. By referring to the attending circumstances, nature of injuries attributed to Jagdish and the fact that he had only caused solitary injury with lathi, which is normally available with a farmer, who in the night is irrigating the field, we can only attribute knowledge to appellant Jagdish that causing of solitary injury upon deceased with lathi will result into death. 20. 20. Thus it is not case of culpable homicide not amounting to murder. Therefore, we are of the view that modification of offence is called for. 21. Consequently, the conviction of Jagdish for offence under Section 302 IPC is set aside and he is convicted for offence under Section 304 Part-II IPC. As a result of conversion of offence, we set aside the life imprisonment awarded upon appellant Jagdish. 22. With the modification of offence, we have to determine the quantum of sentence. 23. We cannot become oblivious of the fact that in the present case, the occurrence had taken place in the year 1989. Thus a period of about twenty eight years has already elapsed. It has been held by the courts that the appeal is continuation of the trial and right to speedy trial under Article 21 of the Constitution of India vests in the accused. The appellant Jagdish has already suffered pain and agony of the protracted trial for a long period of twenty eight years. Thus, this fact to us is a mitigating circumstance, while determining quantum of sentence. According to the learned counsel for the appellant, antecedents of the appellant Jagdish are above board. 24. Taking totality of circumstances of the case, we are of the view that sentence of three years shall serve the ends of justice. 25. Consequently, the conviction of accused appellant Jagdish is modified and for the offence under Section 304 Part II IPC, he is awarded three years RI and to pay a fine of Rs. 20,000/-. Thus, the appeal is disposed of in above terms. We also uphold conviction and sentence of the appellant for offence under Section 323 IPC. Sentence awarded on both the counts shall run concurrently. 26. Legal heirs of the deceased are also entitled to compensation under the Victim Compensation Scheme formulated by the State of Rajasthan under Section 357-A Cr.P.C., for death of deceased Hari Ram. 27. Secretary, Rajasthan Legal Services Authority Jaipur is directed to disburse the amount of compensation under the Victim Compensation Scheme to the legal heirs of the deceased Hari Ram. 28. We find that at the time of admission of appeal, sentence of appellants Chiranji Lal, Gokal, Saradara Ram and Birjuram was suspended and they were ordered to be released on bail. Secretary, Rajasthan Legal Services Authority Jaipur is directed to disburse the amount of compensation under the Victim Compensation Scheme to the legal heirs of the deceased Hari Ram. 28. We find that at the time of admission of appeal, sentence of appellants Chiranji Lal, Gokal, Saradara Ram and Birjuram was suspended and they were ordered to be released on bail. In view of acceptance of the appeal qua Chiranji Lal, Gokal, Saradara Ram and Birjuram, bail bonds furnished by the appellants Chiranji Lal, Gokal, Saradara Ram and Birjuram and surety bonds stands discharged. However, the trial court shall call the appellants Chiranji Lal, Gokal, Saradara Ram and Birjuram to comply with the provisions of Section 437-A Cr.P.C. 29. A copy of this judgment be sent to the Secretary, Rajasthan Legal Services Authority Jaipur. 30. Copy of the judgment along with record be sent to the trial court forthwith. The trial Judge shall issue warrant of arrest and take accused appellant Jagdish into custody. The period undergone by the accused as under-trial or after conviction shall be set off by taking recourse to Section 428 Cr.P.C., 1973.