JUDGMENT Hon’ble Rajul Bhargava, J.—The present appeal has been filed against the judgment and order dated 22.10.1982 passed by Third Additional Sessions Judge, Allahabad in Sessions Trial No. 353 of 1981 convicting all four appellants under Sections 325/34 IPC and sentencing them to undergo five years rigorous imprisonment, one year rigorous imprisonment under Section 323/34 IPC, further convicting the appellant No. 2 Moti Lal, appellant No. 3 Hira Lal and appellant No. 4 Sant Lal under Section 324/34 IPC and sentenced them to undergo two years rigorous imprisonment and convicting appellant No. 2 Moti Lal under Section 324 IPC and sentencing him to undergo two years rigorous imprisonment. All the sentences to run concurrently. 2. It is relevant to state here that during the pendency of the appeal, appellant No. 1 Sita Ram and appellant No. 2 Moti Lal died and by order dated 29.11.2012 their appeal stood abated. Now the appeal is being considered for the surviving appellants Hira Lal and Sant Lal. The prosecution version as disclosed in the First Information Report Exhibit Kha-1 lodged by one Amar Chand since dead. 3. In brief, it was alleged that informant’s elder brother Radhey Shyam had grown Tomato in his field, the cattle of accused Sita Ram had damaged the Tomato crop about 7-8 months back, whose complaint was made by the informant to Sita Ram. Since then Sita Ram bore ill will and personal grudge towards him. On account of the said enmity on 25.7.1980 at about 9.30 p.m. accused Sita Ram, his brother Sant Lal came in a drunken state and started abusing. On 26.7.1980 at about 9 p.m. Informant’s brother Radhey Shayam went to remonstrate about the said incident whereupon the accused-appellants armed with Lathi-Danda and Pharsa assaulted Radhey Shyam. On his raising alarm the first informant Amar Chand and Dashrath reached there to save his brother and they were also attacked by the accused. On their raising alarm, other villagers reached there and challenged the accused whereby the accused fled away. The First Information Report of the incident was lodged at 10.55 p.m. and the case was registered under Section 324 IPC. The three injured persons were sent to Hospital for their examination. On their raising alarm, other villagers reached there and challenged the accused whereby the accused fled away. The First Information Report of the incident was lodged at 10.55 p.m. and the case was registered under Section 324 IPC. The three injured persons were sent to Hospital for their examination. The Doctor noted the injuries on the persons of the injured, whose duration were fresh, the injuries noted by the Doctor, are reproduced below : Injuries of injured Radhey Shaym : “(a) Lacerated wound 1,1/2” x 1/2" x bone deep on the sight partial region. (b) Lacerated wound 1" x 1/3" x muscle deep on the right ear upper part. (c) Complains of pain on right shoulder and back of chest. (d) Right side face disfigured and mouth could not be opened. (e) The injuries were fresh and caused by blunt weapon. Injuries of injured Dashrath : (a) Lacerated wound 2,1/2" x 1/2" x bone deep frontal region (b) Complain of pain outside upper arm left. Injuries of injured Amar Chand : (a) Abrasion 1, 1/2" x 1/3" x on the outer aspect of left side neck. (b) Incised wound with clean margin 1/2" x 1/3" x muscle deep on the outer aspect of left clavicle with fracture present in the lower part. (c) Incised would left upper arm medial aspect 1,1/2" x 1/2" x muscle deep. Margin clean cut. (d) Traumatic swelling 2" x 1" on left parietal region of head. (e) Abraded contusion 1" x 1/2" on back of right elbow. (f) Superficial incised wound 5" x 1/6" on the right scapular region. (g) Superficial incised wound 5" x 1/8" back of right reual region. (h) Incised wound 4,1/2" x 1/8" x muscle deep left hand outer aspect. Injuries were fresh. Injury Nos. 1,4 & 5 were caused by some blunt weapon and the rest were caused by some sharp weapon.” 4. It is pertinent to mention here that before sending the injured persons to the Hospital, their statements especially of Radhey Shyam was recorded under Section 161 Cr.P.C. by the Investigating Officer. Radhey Shyam died in the Hospital and the death in the opinion of the Doctor who conducted the post-mortem was due to coma as a result of the solitary head injury. The case was thereafter converted under Section 304 IPC. The case was investigated and charge-sheet was submitted against all the four named accused. 5. Radhey Shyam died in the Hospital and the death in the opinion of the Doctor who conducted the post-mortem was due to coma as a result of the solitary head injury. The case was thereafter converted under Section 304 IPC. The case was investigated and charge-sheet was submitted against all the four named accused. 5. The case being triable by the Sessions Court, it was committed to the Sessions Court for trial and the same was registered as Sessions Trial No. 353 of 1981 (State of U.P. v. Sita Ram and others). The charges were framed against the accused to which the accused pleaded not guilty. 6. Prosecution in order to prove its case, examined P.W.1 Kesho Lal, he was cited in the witness of First Information Report. P.W.2 Dashrath Lal the injured and eye-witness of the incident. 7. The guilt of the case was sought to be established by the following evidences : (i) Motive (ii) Statements of deceased Radhey Shyam recorded under Section 161 Cr.P.C. used as a dying declaration. (iii) Direct evidence of Kesho Lal and Dashrath Lal whose presence could not be shaken by the defence. (iv) The ocular testimony is fully corroborated by the medical evidence. 8. However, learned defence counsel submitted that the prosecution has not come with clean hands and has suppressed the genesis of the incident. It is contended that admittedly, the incident took place at the house of the accused Sita Ram and others and in fact the deceased and the injured were aggressor and from the side of defence, accused Sant Lal also sustained injuries, therefore, the defence case that the accused acted in their self defence and the prosecution party was an aggressor cannot be ruled out. Learned defence counsel also argued about contradiction between the statements of P.W.1 and P.W.2 and challenged the lodging of the First Information Report and also make submissions with regard to the credibility and reliability of the prosecution witnesses P.W.1 and P.W.2. Learned defence counsel also argued about contradiction between the statements of P.W.1 and P.W.2 and challenged the lodging of the First Information Report and also make submissions with regard to the credibility and reliability of the prosecution witnesses P.W.1 and P.W.2. The trial Court by the aforesaid impugned judgment and order after carefully analyzing and scanning the prosecution evidence and the defence evidence arrived at a finding that the version set up by the defence of self defence has no legs to stand on and is not sustainable and placing reliance on the testimony of P.W.1 and P.W.2 and evidence on record instead of convicting the appellants under Section 304 IPC convicted them under Section 325 read with Section 34 IPC inter alia other sections. 9. I have heard Sri Manish Tiwary & Sri Ashvani Kumar Awasthi, learned counsels for the appellants and learned AGA in opposition. 10. Learned defence counsel after arguing the case at some length fairly conceded that they are not challenging the conviction of the appellants for the charge under Section 325/34 IPC and other offences for which the trial Court has recorded their conviction and they fairly conceded that as for as the conviction of the appellants including the surviving one is concerned, the same is unassailable and cannot be castigated. In continuation hereof I am also of the opinion, after careful perusal of the impugned judgment and order as well as statements of the witnesses that there was no reason for the injured witness P.W.2 Dashrath Lal who had sustained injuries on his vital part and also of the other injured Amar Chand to cook up false story against the accused-appellants. 11. Further I may record that the injury sustained by the injured by the weapons attributed to the accused fully corroborates the prosecution version. 12. Learned defence counsel therefore, did not harp much on the factual aspect and fairly conceded that the conviction of the appellants under Sections 307/34 IPC and 324/34 IPC etc. is unassailable, they however, raised submissions only on the question of sentence and submitted that the present incident had occurred about 37 years back. 12. Learned defence counsel therefore, did not harp much on the factual aspect and fairly conceded that the conviction of the appellants under Sections 307/34 IPC and 324/34 IPC etc. is unassailable, they however, raised submissions only on the question of sentence and submitted that the present incident had occurred about 37 years back. It is further submitted that as per the statement of appellant Hira Lal, he was a young lad of 22 years at the time of incident, his age recorded 22 years in his statement recorded under Section 313 Cr.P.C. on 5.10.1982 and at present he is aged about 57 years. The other appellant Sant Lal was aged about 38 years as in the statement recorded under Section 313 Cr.P.C. his age is mentioned to be 40 years on 5.10.1982, therefore, at present he is aged about 75 years. Hence, no useful purpose would be served by sending the appellants who are now sufficiently grown up and, therefore, instead of sending them to jail, the substantive sentence of imprisonment be converted to imposition of fine which as per the instruction received by defence counsel their clients would not be treated as enhancement of sentences. Other mitigating circumstance, it is argued by the defence counsel is that the accused have no criminal history and the alleged incident took place over a very petty issue in which the deceased Radhey Shyam sustained solitary injury on the head which too could not be ascertained as to who was its author and the trial Court keeping in view the said evidence on record convicted all the appellants not under Section 304 read with Section 34 IPC but under Section 325/34 IPC inter alia. 13. Next mitigating circumstance that the appellants during the course of trial and after their release on bail from this Court did not misuse the liberty of bail nor had endeavoured to tamper that the prosecution evidence to be an impediment in the entire trial. 14. Lastly, it is submitted that after the release of appellants on bail, there is nothing on the record to demonstrate that they have acted in any manner prejudicial to law and order. 14. Lastly, it is submitted that after the release of appellants on bail, there is nothing on the record to demonstrate that they have acted in any manner prejudicial to law and order. Therefore, the substantive sentences of imprisonment of the appellants to the period already undergone by them for the various offences for which they have been convicted and in lieu thereof fine may be imposed as the quantum of which the Court may deem fit and proper. 15. Learned AGA submitted that the sentence should not be reduced as it is a case of causing grievous injury on the head of the injured by accused and two other persons from the side of prosecution also sustained injuries and further as the conviction recorded by the trial Court has not been challenged by the defence, no leniency be adopted by the Court in reduction of substantive sentence and the payment of fine in lieu thereof. However, learned AGA could not dispute among of the mitigating circumstance argued by the defence counsel especially the fact that the appellant Sant Lal is now aged about 75 years and accused Hira Lal is also in his 60 without having any criminal background or proclivity. 16. After weighing the rival submissions made by learned defence counsel for the appellants and learned AGA and looking to the entire facts and circumstances and also looking into the fact that the surviving appellants have no criminal history nor have got any criminal proclivity and the crime was committed in the heat of passion when the prosecution party had gone to the house of accused to remonstrate regarding the abuses hurled by appellant Sita Ram a day before the incident. After weighing the mitigating circumstance as submitted by the learned defence counsel, I am also of the opinion that after 37 years of the incident no useful purpose would be served by sending the appellants to serve out the remaining part of the sentence of five years considering their age and also the fact that the Sword of Damocles is hanging on their head for the past thirty eight years and must have undergone through mental agony and pain through out this period, I consider it appropriate to reduce the sentence of imprisonment of surviving appellants Hira Lal and Sant Lal to the period already undergone by him but at the same time, I propose to impose fine of Rs.30,000/- each of the surviving appellants, out of which Rs.50,000/- shall be paid to the victim-injured or their heirs as compensation. From the record it transpires that during the trial and after conviction appellants have remained in custody for about thirty eight years. 17. In view of the above, the appeal is allowed in part while the conviction of surviving appellants under Sections 324/34 and 325/34 is hereby maintained and their sentence of five years rigorous imprisonment is reduced to already undergone by them and in lieu of it a fine of Rs.30,000/- each is imposed on the surviving appellants. In default of payment of fine, appellants shall further undergo two years simple imprisonment. 18. The compensation as awarded shall be paid after due verification by the learned trial Court. 19. Let a copy of the judgment be transmitted to the Trial Court for necessary compliance.