JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. 1. Heard Sri Prem Prakash, Chandra Prakash Pal learned counsel appearing for the two surviving appellants, namely, Sar Nath Singh (appellant No.6) and Vijayee Yadav (appellant No.7) and learned AGA for the State. 2. Relevant to mention that this appeal was preferred by seven appellants before this Court, wherein five appellants- Jharkandey Singh, Bhairon Singh, Kedar Singh, Harkandey Singh and Ram Kandey Singh- expired during the pendency of this appeal, therefore, their appeal stood abated by order of this Court dated 19.12.2016. Now, the consideration of this appeal is confined to the aforesaid two surviving appellants, namely, Sar Nath Singh (appellant No.6) and Vijayee Yadav (appellant No.7). 3. Prosecution story as unfolded by the record has its genesis in the first information report lodged by the informant- Satya Narayan Singh (P.W.1) at police station- Sakaldiha, District- Chandauli regrading the offence/incident in question at village- Kharehara against 7 persons, including the two surviving appellants, on 07.07.1984 at 10.45 P.M. at Case Crime No.4919 of 1984, under Sections 147, 148, 325, 324, 323, 307, 379 IPC, whereby, it was alleged, inter- alia, that the incident took place around 8 P.M., on 7.7.1984 the informant and his elder brother Ambika Singh and Ramashanker Singh s/o Ambika Singh were working in their field and were cutting mud by shovel, when the aforesaid appellants- resident of same village- appeared on the scene, possessing lathi, danda, Garasha and ballam and asked Ambika Singh not to cut through water from the field. This ignited the dispute followed by heated altercation between the two sides. Dr. Ram Bahadur Singh and Raj Narayan Singh also arrived on the spot after hearing the noise. In the meanwhile, all the accused assaulted the informant side with their respective weapons. Written report contains narration that the informant on coming to know about the incident by hearing noise arrived on the spot with his licensed gun and tried to scare away the assailants by firing in the air. In the meanwhile, Harkandey Singh gave him lathi blow on his head due to which, the informant fell down, and Harkandey Singh, snatched away his gun and the rest of the assailants started assaulting the informant. A number of persons arrived on the spot and they intervened in the matter. Thereafter, appellants fled away from the scene. 4. Written report is Exhibit Ka-1. A number of persons arrived on the spot and they intervened in the matter. Thereafter, appellants fled away from the scene. 4. Written report is Exhibit Ka-1. Relevant entries were made in the concerned Check FIR at aforesaid case crime number on aforesaid date and time at police station- Sakaldiha, District- Chandauli. The Check FIR is Exhibit Ka-6. On the basis of entries made in the Check FIR, a case was registered in the General Diary at the aforesaid crime number under aforesaid sections of IPC against accused. The relevant GD entry is Exhibit Ka-7. 5. Investigation was entrusted to S.I. Sri K.K. Srivastava P.W.4, who proceeded to the spot and recorded the statement of the witnesses and prepared the site plan (Exhibit Ka-3) and also prepared various papers. He also prepared memo of blood stained clothes of the injured- Exhibit Ka-2. 6. Injured Ambika Singh and Dr. Raj Bahdur Singh were medically examined at the Government Hospital in Varanasi on 08.07.1984 by Dr. B. Das (P.W.7). Both the injured were referred for respective treatment as per their physical condition. 7. During the course of investigation, S.I. K.K. Srivastava P.W.4 recorded statements of the witnesses and after completing the investigation, filed charge-sheet against the accused-appellants- which is Exhibit Ka-5. 8. As a sequel to that, proceeding of the case was committed to the court of Sessions from where this case was made over for conduction of trial and disposal to the court of Special Judge, Varanasi. Appellants were heard on point of charge and the trial court was, prima facie, satisfied with the case against the accused-appellants. Therefore, it framed charges against the accused-appellants under Sections 323/149, 324/149, 325/149, 307/149, 147 IPC. Charges were read over and explained to the accused, who abjured charges and opted for trial. 9. The prosecution, in order to prove guilt of the accused, examined as many as 7 prosecution witnesses:- 10. Satya Narayan Singh P.W.1 is the informant of this case. Rama Shankar Singh P.W.2 is the injured witness. Jaggu P.W.3 is the eye-witness of the occurrence. S.I. K.K. Srivastava P.W.4 is the Investigating Officer of this case. Tarkeshwar Thakur P.W.5 is the Constable, who noted relevant entries in the concerned Check FIR and the General Diary. Dr. S.K. Singh P.W.6 is the Radiologist and he has conducted X-ray examination of the injured. Dr. Jaggu P.W.3 is the eye-witness of the occurrence. S.I. K.K. Srivastava P.W.4 is the Investigating Officer of this case. Tarkeshwar Thakur P.W.5 is the Constable, who noted relevant entries in the concerned Check FIR and the General Diary. Dr. S.K. Singh P.W.6 is the Radiologist and he has conducted X-ray examination of the injured. Dr. B. Das P.W.7 has conducted medical examination of the aforesaid two injured, as Emergency Medical Officer and has proved the process. 11. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, he claimed to have been falsely implicated in this case on account of enmity. 12. Two witnesses were produced on the behalf of the defence. Dr. I.C. Srivastava is D.W.1. He has testified on fact that he medically examined the two accused on 10.7.1984 in District Jail, Varanasi and has proved the process. 13. Lal Bahadur Singh is D.W.2. He has noted relevant entries in the government document, whereby report of the accused was noted. 14. Except as above no other testimony was adduced by the defence. Therefore, evidence for the defence was closed. 15. Consequently, case was posted for argument pros and cons between the parties and the trial Judge after considering the entire matter on its merit and on marshaling of facts and evaluation of evidence adduced, returned aforesaid finding of conviction and passed sentence against the appellants. 16. Consequently, this appeal. 17. At the outset, learned counsel for the appellants though tried to assail the entire judgment on its merit, but during course of argument, he paved way for consideration of this appeal only on point of quantum of sentence and relinquished the claim against conviction. Consequently, conviction has been admitted to be intact, however, sentencing part of the judgment impugned was assailed on several counts; one of them being fact that in the incident both the sides have sustained injury and as many as two people (on accused side) sustained injury on their person and the fact is that both the sides belong to the same village. He submits that it is case of sudden provocation and free fight and the present surviving appellants did not play any specific role and they have not been assigned any specific role which caused any grievous hurt. He submits that it is case of sudden provocation and free fight and the present surviving appellants did not play any specific role and they have not been assigned any specific role which caused any grievous hurt. Under such circumstances, lenient view ought to have been taken by the trial court, but the trial court of its own whim awarded sentence, which apart from being illegal, under circumstance, is too harsh and disproportionate to the offence committed. 18. Learned counsel further added sentencing the appellants for 18 months imprisonment for offences under Sections 147, 323 and 324/149 IPC, respectively, is beyond comprehension, under the facts and circumstances of the case, and the same is not justified, but appropriate sentence in this case would be a sentence of fine only and the same should have been awarded and adhered to by the trial court under prevailing facts and circumstances appearing against the two surviving appellants, which particular aspect has been ignored. It is the overall picture and also entirety of the case and the gravity of the offence that ought to have been contemplated by the trial Judge while sentencing the accused. The sentence so awarded are on the face disproportionate and legally not admissible. Lastly, he submitted that it would be better, and in the fitness of things if both the surviving appellants who have since suffered detention in this very case during trial for about a month and remained in custody pursuant to the warrant issued by this Court from 27.11.2017 upto 23.12.2017 (total 27 days in all). Hence, their respective sentences of imprisonment may be modified and reduced to the period already undergone- (under Section 324/149 and 147 IPC, likewise under Section 323 IPC). And this much of sentence, under the facts and circumstances of this case would be appropriate and just. 19. Learned AGA vehemently opposed the prayer so made and supported the sentencing done in this case, however, he did not dispute fact of injury being caused to the other side, the very same day (of occurrence) and allegations of such injury being caused to the accused side also has not been disputed. 20. Considered the submission so raised and also considered the entirety of the case. 20. Considered the submission so raised and also considered the entirety of the case. It is admitted fact that both the sides have sustained injury in this case and report on behalf of the accused has also been noted/lodged at the same police station, the very same day i.e. 7.7.1984. Also considered the motive behind the offence and the sentencing of the appellants measured to the ambit of imprisonment for 18 months awarded under Section 323 IPC is per se illegal and erroneous it can not be so awarded, as the section does not permit awarding any sort of imprisonment beyond one year period. 21. Looking to the fact that both the accused were possessing lathi at the time of incident and did not possess any lethal weapon and did not cause any such injury as would have been caused by lethal weapon, their sentencing under aforesaid Sections of IPC appears to be a bit harsh, hence, the aforesaid sentence under Sections 323, 324/149 and under Section 147 IPC need be modified. 22. With that view in mind, the period of imprisonment already suffered and undergone by both the surviving appellants, i.e., one month and 27 days, appears to be just and appropriate sentence to be awarded against both the appellants under Sections 324/149, 323 and 147 IPC. Therefore, the sentence so awarded by the trial court to the extent of 18 months imprisonment for each of the offences under Sections 147, 323 and 324 read with 149 IPC, respectively, against both the accused- appellants is hereby modified. All sentences to run concurrently. 23. Consequently, the sentencing part of the impugned judgment and order dated 16.11.1987 passed by Special Judge, Varanasi in Sessions Trial No.299 of 1985 (State Vs. Jharkandey Singh and others), Police Station- Sakaldiha, District Varanasi stands modified to the magnitude as above. 24. Accordingly, this appeal is allowed partly as aforesaid. 25. Let a copy of this order be forwarded to the lower court for its intimation and follow-up action.