JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. On 10.7.1989 at 7:00 PM, Navalya son of Gumna, caste Banjara, in village Manpura, was caused injuries by Champa Lal with lathi, affixed with a wire. As a result of said injuries, Navalya died. Champa Lal was substantively charged for the offence under Section 302 IPC, whereas, Rang Lal was charged with the aid of Section 34 IPC. Both Champa Lal and Rang Lal were tried by the court of Additional Sessions Judge, Chhabara, Baran in Sessions Case No. 191/92. The said court vide impugned judgment dated 27.7.1993, held accused Champa Lal guilty of offence under Section 302 IPC and Rang Lal was convicted for offence under Section 302/34 IPC. However, their father Parsaram was acquitted of offence under Section 302/34 IPC. 2. The trial court for the above said offences vide a separate order of even date, sentenced the appellants as under:- U/s. 302 or 302/34 IPC-to undergo life imprisonment and to pay a fine of Rs. 500/- each, in default of payment of fine to undergo additional one month SI each. 3. Aggrieved against their conviction and sentence, the appellants have preferred the present appeal. 4. The criminal proceedings, in the present case, were set into motion on the basis of written report (Exhibit-P/3), on the basis of which a formal FIR (Exhibit-P/3) bearing No. 50/89, was registered at Police Station Bapcha, Kota, for the offences under Sections 324, 323/34 IPC. 5. Jamna Bai (P.W.4) mother of Navlya along with her other son Daulat (P.W.5) along with Navlya injured reached at Police Station Bapcha, Kota. At that time, Navlya was unconscious. She made a statement to the effect that on 10.7.1989 in evening at about 7:00 PM, she was sitting outside on Chabutra (raised platform) of her house. His son Navlya after bringing cattle from his maize field, stood outside the house of Mohan and started saying that cattle of villagers had trespassed into his field and had damaged the crop. He complained as to why people could not tie their cattle. At that time, Parsaram son of Kishan Lal, his two sons Champa Lal and Rang Lal r/o Manpura were standing there. They were armed with lathis. Parsaram replied to Navlya that as to why he is quarreling after taking their names. Upon which, the complainant Jamna Bai (P.W.4) asked his son Navlya that he should not quarrel. At that time, Parsaram son of Kishan Lal, his two sons Champa Lal and Rang Lal r/o Manpura were standing there. They were armed with lathis. Parsaram replied to Navlya that as to why he is quarreling after taking their names. Upon which, the complainant Jamna Bai (P.W.4) asked his son Navlya that he should not quarrel. Upon which all the three accused started giving abuses. The complainant Jamna Bai restrained her son. Champa Lal with lathi in his hand which was affixed with wires caused a blow on the head of Navlya. Rang Lal gave blow by a log of a cart on the left eye of Navlya. Parsaram gave kick and fist blows to Navlya. Navlya on receipt of injuries, fell at the spot. The complainant raised noise that his son has been killed. Upon noise raised, Bhura son of Bhama, Khema son of Pema and Mohan son of Rama Banjara came running at the spot. They intervened and all the three accused after causing injuries decamped from the spot. Jamna Bai (P.W.4) along with other son Daulat (P.W.5) brought injured Navlya in an unconscious state to the police station to lodge the report. 6. From the perusal of the FIR, following facts are discernible:- (a) That Navlya from his field brought cattle in the village and raised a protest as to why cattle are not tied and are left free to trespass into his field. Admittedly, Navlya was aggrieved due to damage caused to his maize crop by the cattle. (b) It is stated in the FIR that Navlya was complaining while standing in front of house of Mohan (P.W.7). (c) At the time of occurrence, Jamna Bai (P.W.4) was sitting on Chabutra (raised platform) of her house. (d) It is stated in the FIR that upon protest raised a verbal duel had ensued and accused had abused Navlya. (e) It is further stated in the FIR that Champa Lal had given a blow on the head of Navlya with lathi on which wires were affixed and Rang Lal had given a blow on the left eye of Navlya, whereas their father Parsaram caused injuries to Navlya by giving kick and fists blows. 7. Having noted the contents of FIR, we shall refer to the medical evidence. 8. Dr. Ashok Kumar Jain (P.W.13) on 10.7.1989 at 11:00 PM vide injury report (Exhibit-P/11) medico-legally examined Navlya. 7. Having noted the contents of FIR, we shall refer to the medical evidence. 8. Dr. Ashok Kumar Jain (P.W.13) on 10.7.1989 at 11:00 PM vide injury report (Exhibit-P/11) medico-legally examined Navlya. In the injury report (Exhibit-P/11) following two cut wounds have been noticed:- 1. Cut wound, 3" x " x ?", left side of scalp, 1" anterior to parietal prominence, sharp. 2. Cut wound, " x ?" x ?", temporal area of face just lateral to the left eye, sharp. While admitted in the hospital, Navlya died. His autopsy was conducted on 11.7.1989 at 9:45 AM by Dr. Ashok Kumar Jain (P.W.13). The injuries noticed in the injury report (Exhibit-P/11) have also been specified in Post Mortem Report (Exhibit-P/12). There is no need to repeat the same. 9. Suffice to say that doctor had found fracture of left temporal bone and also hemorrhage having dimension of 2" x 2" on the temporal area. As per opinion of the doctor, cause of death was cardio-respiratory insufficiency as a result of injury on temporal area of left side of skull. 10. In cross-examination, Dr. Ashok Kumar Jain (P.W.13) stated that 11.7.1989 he had examined Rang Lal aged 18 years and in the injury report (Exhibit-D/14), he noted following three injuries:- 1. Broken tooth (pulp visible), 2nd left upper Incisor, grievous, blunt. 2. Bruise, 3" x 2", lateral aspect of left knee, simple, blunt. 3. Bruise, 11/2" x " right arm postero-laterally, simple, blunt. 11. Dr. Ashok Kumar Jain (P.W.13) also examined Dhuli Bai on 11.7.1989 and in the injury report (Exhibit-D/15), he found no external injury over forehead or scalp. 12. Dr. Ashok Kumar Jain (P.W.13) also examined Champa Lal and in the injury report (Exhibit-D/16), he noted one injury on the head:- 1. Lacerated wound, 1" x ?" x ?", occipital region of scalp, simple, blunt. 13. Having seen injuries on the person of accused, we are of the view that there is no evidence to the effect that injury No. 1 which is broken tooth of accused Rang Lal was result of injury caused in the occurrence, as there is no external mark on the lips or on the face. Neither there is presence of any scratch, abrasion, bruise and contusion on the lips. Only pulp was visible. No fresh blood had oozed. 14. Neither there is presence of any scratch, abrasion, bruise and contusion on the lips. Only pulp was visible. No fresh blood had oozed. 14. The learned Public Prosecutor was remiss in his duty not to seek clarification that whether tooth was freshly broken due to injuries caused in the occurrence or it was removed or broken earlier. 15. On the person of Dhuli Bai no external injury was seen. Even she has not complained of pain. Having perused the injuries on the person of Champa Lal and Rang Lal, we are of the view that they are simple and are not required to be explained by the prosecution. 16. In the court, Jamna Bai (P.W.4) stated that Champa Lal caused lathi injury on the head, waist and neck of Navlya. This witness further stated that Rang Lal and Parsaram both were armed with lathis. This witness stated that Parsaram has caused injury on the feet of Navlya. In the court, except to say that Rang Lal was present, this witness has not attributed any injury to Rang Lal. This witness has denied causing injuries to accused in the occurrence. 17. Daulat (P.W.5) is not an eyewitness of the occurrence. In the court, this witness stated that he was being prosecuted qua injuries caused to accused Rang Lal and Champa Lal but he has not admitted specifically that he caused any injury in the occurrence. 18. Bhura (P.W.6) in the court stated that Champa Lal caused injury on the head of Navlya. This witness further stated that Rang Lal also caused injury on the head of Navlya. While Navlya was lying, Parsaram caused him kick and fist blows. 19. Mohan (P.W.7) has not supported the prosecution. We may note here that the occurrence has taken place in front of house of Mohan. 20. We need not notice evidence of formal witnesses or the investigating officer. 21. In the present case, the occurrence has taken place on 10.7.1989 at 7:00 Pm. Jamna Bai (P.W.4) had lodged the report on 10.7.1989 at 8:30 PM. Special report reached Illaqa Magistrate on 11.7.1989 at 11:30 AM. So far role assigned to Rang Lal is concerned, inherent contradictions have emerged in the prosecution case. Jamna Bai (P.W.4) in the FIR stated that Champa Lal caused injury on the head and Rang Lal had caused injury on the eye of Navlya. Special report reached Illaqa Magistrate on 11.7.1989 at 11:30 AM. So far role assigned to Rang Lal is concerned, inherent contradictions have emerged in the prosecution case. Jamna Bai (P.W.4) in the FIR stated that Champa Lal caused injury on the head and Rang Lal had caused injury on the eye of Navlya. In the court, Jamna Bai (P.W.4) stated that Champa Lal caused injury on the head, waist and neck. Then only stated that Rang Lal was armed with stick but no specific injury is attributed to Rang Lal in the court. This witness stated that Parsaram was armed with lathi and he had caused injuries on feet. Thus, in the court statement, which is substantive evidence, no specific injury has been attributed to Rang Lal. Furthermore, both the injuries on person of Navlya are cut wounds, hence, the said injury cannot be caused by lathi attributed to Rang Lal by Jamna Bai (P.W.4) as lathi is a blunt weapon. 22. Bhura (P.W.6) in the court stated that Champa Lal caused lathi injury on the head of Navlya and thereafter, Rang Lal caused injury with a log of cart. In the injury report (Exhibit- P/11), there is only one injury on the head of Navlya deceased. This witness further stated that Parsaram had given kick and fist blows to Navlya. Hence, case of Rang Lal cannot be distinguished from the case of Parsaram, acquitted accused as injury on eye, in the court statement has not been attributed to Rang Lal, whereas all witnesses in unison have stated that Champa Lal caused injury on the head. 23. Considering delay in reaching of the special report, we are of the view that case is made out to sift grain from the chaff and hence, we will extend benefit of doubt to Rang Lal due to contradictions in prosecution evidence. 24. Consequently, the appeal preferred by the appellant Rang Lal is accepted. He is acquitted of all the charges. 25. Now we shall deal with the case of Champa Lal. 26. It is not the case of the prosecution that any previous enmity was existing between the accused and the complainant party. Due to grazing of cattle in the field of Navlya, he had come in the village to raise a protest. 27. We have perused the site plan (Exhibit-P/1). Now we shall deal with the case of Champa Lal. 26. It is not the case of the prosecution that any previous enmity was existing between the accused and the complainant party. Due to grazing of cattle in the field of Navlya, he had come in the village to raise a protest. 27. We have perused the site plan (Exhibit-P/1). House of Parsaram father of Champa Lal adjoins the house of Mohan (P.W.7). It is case of the prosecution that Navlya was raising protest in front of house of Mohan. At that time, accused were standing in front of their house. So we cannot rule out that a verbal duel ensued. It has come in evidence that the accused had given abuses. Therefore, in the heat of moment, without any premeditation, Champa Lal had caused injuries to Navlya. There are only two injuries on the person of deceased Navlya. It cannot be ruled out that both the injuries are result of a single blow, as both the injuries are having a cut wound and it is Champa Lal only who was armed with stick affixed with wires. Dimension of injuries also reveal that they have been caused by a single weapon. 28. Taking totality of circumstances, we are of the view that no offence under Section 302 IPC is made out against the appellant Champa Lal. Rather offence, if any, will fall under Section 304 Part-I IPC. 29. Consequently, the conviction of Champa Lal for offence under Section 302 IPC is set aside and he is convicted for offence under Section 304 Part-I IPC. As a result of conversion of offence, we set aside the life imprisonment awarded upon appellant Champa Lal. 30. With the modification of offence, we have to determine the quantum of sentence. 31. 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 Champa Lal 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. The appellant Champa Lal 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 Champa Lal are above board. 32. Taking totality of circumstances of the case, we are of the view that sentence of four years shall serve the ends of justice. 33. Consequently, the conviction of accused appellant Champa Lal is modified and for the offence under Section 304 Part-I IPC, he is awarded four years RI. He is further directed to pay a fine of Rs. 30,000/-. In default of payment of fine, Champa Lal shall undergo one year RI. Thus, the appeal is disposed of in above terms. 34. Legal heirs of the deceased shall also be 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 Navlya. 35. 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 over and above sentence of fine imposed by us. 36. We find that at the time of admission of appeal, sentence of appellant Ranglal was suspended and he was ordered to be released on bail. In view of acceptance of the appeal qua Ranglal, bail bonds furnished by the appellant Rang Lal and surety bonds stands discharged. However, the trial court shall call the appellants Rang Lal to comply with the provisions of Section 437-A Cr.P.C. 37. A copy of this judgment be sent to the Secretary, Rajasthan Legal Services Authority Jaipur for disbursal of compensation. 38. 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 Champa Lal 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.