JUDGMENT 1. This appeal has been filed under Section 374 (2) of the Cr.P.C. against the judgment dated 15/10/1997 passed by Ist Additional Sessions Judge, Rewa in S.T. No.173/1990, whereby learned Sessions Judge found appellants guilty and convicted and sentenced them as under : Appellants Sections Sentence Fine Default stipulation Appellant no.1 Dinesh 304 Part-II read with 34 of the IPC Five years R.I. Rs.1000/ - S.I. for six months. 324 read with 34 of the IPC Two years R.I. Rs.500/- S.I. for three months. 323 r/w 34 of the IPC One year R.I. Rs.200/- S.I. for one month. Appellant no.2 Ram Naresh 304 Part-II read with 34 of the IPC Five years R.I. Rs.1000/ - S.I. for six months. 324 read with 34 of the IPC Two years R.I. Rs.500/- S.I. for three months. 323 r/w 34 of the IPC One year R.I. Rs.200/- S.I. for one month. Co-accused Shiv Prasad 304 Part-II read with 34 of the IPC Five years R.I. Rs.1000/ - S.I. for six months. 324 read with 34 of the IPC Two years R.I. Rs.500/- S.I. for three months. 323 r/w 34 of the IPC One year R.I. Rs.200/- S.I. for one month. 2. Brief facts of the case are that on 25/10/1988 at around 6:30 a.m., Ram Gopal left his house to go to Pahi, on the way, when he reached near Shiv Prasad's house, located at village Gurheta, co-accused Shiv Prasad, his son Dinesh Kumar, appellant no.1 and Ram Naresh, appellant no.2 came out from their house armed with sticks, spear and knife, they stopped Ram Gopal and assaulted him with the stick, spear and knife and also abused him. On hearing shouting, Ram Gopal's son Sampat Kumar (PW-7), Daya Shankar (PW-8) and wife Yashoda (PW-9) came there to rescue him, then they also assaulted them. At this time, two other unknown persons (later their names came to be learnt as Hardayal and Sualal @ Rajmani) also came on the spot from the side of Shiv Prasad's house, they also assaulted them due to which Ram Gopal, Daya Shankar, Sampat Kumar and Yashoda sustained injuries. On hearing the shouting, Vishale kurmi, Ram Jivan (PW-10) and other people came to the spot, who saw the incident and rescued Ram Gopal and other injured. On hearing the shouting, Vishale kurmi, Ram Jivan (PW-10) and other people came to the spot, who saw the incident and rescued Ram Gopal and other injured. Ram Gopal lodged the report (Ex.P-11) of the incident at PS Mauganj on the same day, which was written by Yash Narayan Sharma (PW14) and registered Crime no.191/1988 for the offence punishable under Sections 341, 294, 324, 323 and 34 of the IPC and investigated the matter. Police sent Ram Gopal, Dayashankar, Sampat Kumar and Yashoda for medical examination, where Dr. Chandrika Prasad Dwivedi (PW1) examined them and gave MLC reports (Ex.P-1 to Ex.P-4) respectively. Further investigation was conducted by Brij Narayan Dwivedi (PW-16), he recorded the case diary statements of prosecution witnesses Sampat Kumar (PW-7), Daya Shankar (PW-8), Yashoda (PW-9), Laxman Prasad (PW3), Jhadu (PW4) Ramjivan (PW-10), Ramvishal (PW-12) and Maksudan (PW-13) also prepared spot map (Ex.P-9). On 2/11/1988 Ram Gopal died due to the injuries sustained by him in the incident during treatment in the hospital. Maksudan (PW-13) lodged the report (Ex.P-12) in this regard at PS Mauganj. On that report, Brij Narayan Dwivedi (PW- 16) went to the hospital and prepared an inquest memo (Ex.P-10) of the dead body of deceased Ram Gopal. He also registered inquest no.39/1988 (Ex.P-17) at P.S. Mauganj and sent the dead body of Ram Gopal for postmortem along with the application (Ex.P-5A), where Dr. Chandrika Prasad Dwivedi (PW-1) conducted the autopsy of the dead body of Ram Gopal and gave postmortem report (Ex.P-5). Police also arrested the appellants and co-accused and prepared arrest memos (Ex.P-19 to Ex.P- 22) and also seized one knife from the possession of appellant no.1 Dinesh, one stick from the possession of co-accused Shiv Prasad and prepared seizure memos (Ex.P-15 and P-16) and after investigation filed the charge sheet before Judicial Magistrate First Class, Mauganj. On that charge sheet, Criminal Case no.116/1989 was registered. Learned Judicial Magistrate First Class, Mauganj committed the case to the court of Session. On that, ST no.173/1990 was registered. Learned Ist ASJ, Rewa framed the charge against appellants Dinesh and Ramnaresh and co- accused Shiv Prasad, Hardayal and Sualal @ Rajmani for the offence punishable under Sections 148, 302/149, 325/149, 324/149 and in alternate 324 of the IPC and 323/149 in alternate 323 of the IPC and tried the case. On that, ST no.173/1990 was registered. Learned Ist ASJ, Rewa framed the charge against appellants Dinesh and Ramnaresh and co- accused Shiv Prasad, Hardayal and Sualal @ Rajmani for the offence punishable under Sections 148, 302/149, 325/149, 324/149 and in alternate 324 of the IPC and 323/149 in alternate 323 of the IPC and tried the case. However, the appellants and co-accused persons abjured their guilt and took the defence that they are innocent and have falsely been implicated in the case. After trial, learned trial Court acquitted the co- accused Sualal and Hardayal from all the charges and only found appellants Dinesh Kumar, Ram Naresh and co-accused Shiv Prasad guilty for the aforesaid offences. Being aggrieved by that judgment, appellants filed this appeal. 3. It is pertinent to mention here that apart from appellant no.1 Dinesh Kumar and appellant no. 2 Ram Naresh, this appeal has also been filed by co-accused Shiv Prasad but during the pendency of this appeal, Shiv Prasad died, so this Court vide order dated 15/12/2021 abated the appeal against co-accused Shiv Prasad. Therefore, this judgement is only confined up to appellant no.1 Dinesh Kumar and appellant no.2 Ram Naresh. 4. Only contention of learned counsel for the appellants is that from the prosecution evidence, an offence punishable under Section 304 Part-II of the IPC is not made out against the appellants. According to the postmortem report (Ex.P-5) of deceased Ramgopal, he died due to the rupture of the small intestine, while there is no evidence on record to show that deceased Ramgopal sustained that injury in the incident. In the injury report (Ex.P-1) and postmortem report (Ex.P-5) of deceased Ramgopal, it is not mentioned that deceased Ramgopal sustained any external injury on the abdominal region, so it can not be said that Ramgopal's intestine was ruptured due to the injuries sustained by him in the incident. Though, Dr. Chandrika Prasad (PW1), who examined Ramgopal soon after the incident and also conducted the postmortem of his dead body after his death has stated that Ramgopal's intestine may also burst, due to the external injury number eighteen found on the body of deceased Ramgopal. It is his assumption he did not give any confirmed opinion in this regard. Only on the basis of his assumption, it can not be said that Ramgopal's intestine was ruptured due to the injury no.18. Even Dr. It is his assumption he did not give any confirmed opinion in this regard. Only on the basis of his assumption, it can not be said that Ramgopal's intestine was ruptured due to the injury no.18. Even Dr. Chandrika Prasad Dwivedi (PW1) in his cross-examination clearly admitted that an ulcer was found in the small intestine of Ramgopal. It was an old ulcer and it could be blasted without any internal or external force. He also deposed that for the first time, when police brought Ramgopal to the hospital he came on foot. Dr. Ramgopal Singh (DW4) also admitted that on 1/11/1988 Ramgopal was admitted in the Government Medical Hospital, Rewa due to ailment of intestinal perforation and he died on 2/11/1988 and intestinal perforation (blast) may be caused due to various reasons i.e. due to ulcer in the stomach, rupture of the appendix, rupture of stomach, which clearly show that Ramgopal's intestine was ruptured due to ulcer, not due to the injuries allegedly sustained by him in the incident. Ramgopal was suffering from ulcers long before the incident, so it can not be said that Ramgopal died due to the injuries sustained by him in the incident. Learned trial Court without appreciating these facts wrongly found appellants guilty for the offence punishable under Section 304 part-II of the IPC at the most, an offence under Section 323 of the IPC is made out against the appellants with regard to assaulting Ramgopal. So the conviction of the appellants be changed to Section 323 IPC in place of Section 304 Part II of Indian Penal Code. Appellants are facing trial since 1988, and they have also remained in custody during the trial of the case, so they may be punished only with the period of imprisonment which they have already suffered during the trial of the case. 5. On the contrary, learned counsel for the State opposed the prayer and submitted that from the statement of Dr. Chandrika Prasad Dwivedi (PW1), who examined Ramgopal soon after the incident and gave MLC report (Ex.P-1), it is apparent that in the incident, Ramgopal sustained as many as 24 external injuries. According to the post-mortem report of deceased Ramgopal, he died due to the rupture of the intestine and Dr. Chandrika Prasad Dwivedi (PW1), who examined Ramgopal soon after the incident and gave MLC report (Ex.P-1), it is apparent that in the incident, Ramgopal sustained as many as 24 external injuries. According to the post-mortem report of deceased Ramgopal, he died due to the rupture of the intestine and Dr. Chandrika Prasad Dwivedi (PW1), who conducted the autopsy of the dead body of Ramgopal opined that the intestine could be ruptured due to external injury no.18 found on the body of Ramgopal below scapula region over the chest. Even defence witness Dr. Ramgopal Singh.(DW-4) also admitted in his cross-examination that the intestine can be ruptured due to the injury. Ramgopal sustained as many as 24 injuries in the incident and died in the hospital during treatment on 02/11/1988, six days after the incident due to rupture of the intestine. This clearly shows that Ramgopal's intestine was ruptured due to the injuries sustained by him during the incident, so learned trial Court did not commit any mistake in finding the appellants guilty for the offence punishable under Section 304 part-II of the IPC. So appeal should be dismissed. 6. The point of determination in this appeal is whether the conviction of the appellants under Section 304 part-II of IPC and the sentence awarded by the trial Court against the appellants under Sections 304 part- II, 324,323 of I.P.C. are liable to be set aside for the reasons stated in the memo of appeal and raised during the argument. 7. During the course of arguments learned counsel for the appellants did not challenge the findings of the trial Court on the point that on 25/10/1988 at the time of the incident appellants assaulted deceased Ramgopal and injured Sampath Kumar, Dya Shankar Mishra and Yashoda Bai due to which they sustained injuries. Even otherwise Sampat Kumar Mishra (PW-7) has stated that on the date of the incident, at 6:00 am he had gone to attend the call of nature, he heard the shouting of his father Ramgopal, on this he went near spot where he saw that appellants Ram Naresh, Dinesh and co-accused Shivprasad assaulting Ramgopal and Dayashankar with sticks. When he reached the spot, they also assaulted him with sticks, and when his mother came to save him, she was also beaten by them. Ramnaresh was holding a stick, like a spear, and he beat him up with that spear. When he reached the spot, they also assaulted him with sticks, and when his mother came to save him, she was also beaten by them. Ramnaresh was holding a stick, like a spear, and he beat him up with that spear. In this regard, his statement is also corroborated by the statements of other injured Daya Shankar Mishra (PW8) and Yashoda (PW9) they also deposed almost the same with some minor contradictions and the statements of other eyewitnesses of the incident Lakshman Prasad (PW- 3) & Ramjivan (PW-10). 8. In the incident Ramgopal, Sampat Kumar Mishra, Dayashankar and Yashoda sustained injuries, in this regard the statements of Sampat Kumar Mishra (PW-7), Daya Shankar Mishra (PW8) and Yashoda (PW9) are also corroborated by the statement of Dr. Chandrika Prasad Dwivedi (PW1), who conducted medical examination of deceased Ramgopal and injured Daya Shankar, Sampat Kumar Mishra and Yashoda. He deposed that on the date of the incident i.e.25/10/1988 between 8.00 a.m. to 10.00 a.m., he examined Ramgopal, Daya Shankar, Sampat Kumar and Yashoda and found as many as 24 external injuries on the body of Ramgopal, out of which injury nos.4 and 5 caused by the sharp object and remaining injuries were caused by a hard and blunt object and as many as 20 external injuries were found on the body of injured Daya Shankar, which were caused by a hard and blunt object and as many as 28 external injuries were found on the body of Sampat Kumar, out of which injury no.1 found on his face was caused by hard and sharp object and remaining injuries were caused due to hard and blunt object and also examined injured Yashoda and found two external injuries on her body caused by hard and blunt object. In this regard, his statement is also corroborated by the MLC reports of Ramgopal, Daya Shankar, Sampat Kumar Mishra and Yashoda (Ex.P-1 to Ex.P-4) given by him. This witness examined injured Ramgopal, Daya Shankar, Sampat Kumar Mishra and Yashoda on 25/10/1988 between 8.00 a.m. to 10.00 a.m., and opined that the duration of the injuries found on the body of Ramgopal, Daya Shankar, Sampat Kumar Mishra and Yashoda were caused within 12 hours from the time of examination. This witness examined injured Ramgopal, Daya Shankar, Sampat Kumar Mishra and Yashoda on 25/10/1988 between 8.00 a.m. to 10.00 a.m., and opined that the duration of the injuries found on the body of Ramgopal, Daya Shankar, Sampat Kumar Mishra and Yashoda were caused within 12 hours from the time of examination. From that, it is clearly proved that at the date of the incident, appellants assaulted deceased Ramgopal, Daya Shankar, Sampat Kumar Mishra and Yashoda due to which they sustained injuries. 9. As far as the fact that Ramgopal died due to the injuries sustained by him in the incident is concerned, Dr. Chandrika Prasad Dwivedi (PW1), by whom Ramgopal was medically examined immediately after the incident and the autopsy of his dead body was also done after his death has stated that on 25/10/1988 at 10 a.m. he had conducted medical examination of Ramgopal in which as many as 24 external injuries were found on his body, out of which injury numbers four and five were inflicted by hard & sharp object and the remaining injuries were caused by hard and blunt objects. He further deposed that on 03/11/1988 he conducted the autopsy of the dead body of Ramgopal and in the internal examination of his body he found that his small intestine was ruptured near the iliac region, the size of this wound was 1.4 cm. x 1.4 cm and it was on the side of the old ulcerated wound, in his opinion Ramgopal's death was due to rupture of his small intestine and shock caused by it. He also deposed that in the examination of Ramgopal on 25/10/1988 apart from other external injuries he also found one contusion 5 cm x 2 cm in size behind the scapula bone on the left side of his back (Injury No.18) due to that external injury Ramgopal's small intestine may have ruptured. But, it is his assumption he has not given any definite opinion in this regard. Only on the basis of his assumption, it can not be assumed that Ramgopal's small intestine was ruptured due to that external injury. 10. On the contrary, he has also stated that an old ulcerated wound was present in the small intestine of Ramgopal and that ruptured wound was also found near this ulcerated wound. Only on the basis of his assumption, it can not be assumed that Ramgopal's small intestine was ruptured due to that external injury. 10. On the contrary, he has also stated that an old ulcerated wound was present in the small intestine of Ramgopal and that ruptured wound was also found near this ulcerated wound. He also admitted in his cross- examination that the ulcer found in the small intestine of the deceased Ramgopal was an old ulcer and the intestine could be ruptured due to that ulcer without any internal or external force. He has also deposed that for the first time, when police brought Ramgopal to the hospital, he came on foot, after the treatment, he had advised Ramgopal to go to the Government Medical Hospital, Rewa for further treatment. From where Ramdayal went to his home after treatment. After that, due to some illness, he came to him for treatment, and he had advised him to go to GMH Rewa. Dr. Ramgopal Singh (DW4) has stated that on 01/11/1988 Ramgopal was admitted in the Government Medical Hospital, Rewa due to an ailment of intestinal perforation and he died on 2/11/1988. He has also stated that intestinal perforation (blast) may be caused due to various reasons i.e. ulcer in the stomach, rupture of the appendix, and rupture of the stomach. 11. In the report (Ex.P-17) lodged by Maksudan Sharma (PW-13) also it is mentioned that after the incident, Ramgopal was admitted to Mauganj Hospital for treatment, from where, he came home after treatment. On 30/10/1988, he was again admitted to Mauganj hospital from where, he was referred to MGH Hospital Rewa on 01/11/1988, where he died on 02/11/1988. So it is also evident from the evidence that after the first treatment Ramdayal had come home and was later taken to the Mauganj hospital for treatment on 30/10/1988. There is no definite evidence on record to prove the fact that Ramgopal's intestine was ruptured due to the injuries sustained by him in the incident. No external injury has been found on Ramgopal's abdomen as revealed from his medical examination report (Ex.P-1). Dr. Trivedi (PW-1) only deposed that Ramgopal's intestine may be ruptured due to the external injury found on his back behind the scapula bone on the left side of his back (injury no.18). Dr. Trivedi has not given any definite opinion in this regard. Dr. Trivedi (PW-1) only deposed that Ramgopal's intestine may be ruptured due to the external injury found on his back behind the scapula bone on the left side of his back (injury no.18). Dr. Trivedi has not given any definite opinion in this regard. Ramgopal was suffering from ulcer disease prior to the incident. From the statements of Dr. Trivedi (PW-1) and Dr. Ramgopal (DW-4), it is also clear that the intestine could be ruptured due to that ulcer without any internal or external force. In these circumstances, the possibility that Ramdayal's intestine may have ruptured due to any other reason, other than the injuries suffered by him in the incident can not be ruled out. Under these circumstances, it is difficult to say there was direct nexus between the incident of assault and the cause of death of Ramgopal. So in the considered opinion of this Court prosecution has failed to prove beyond reasonable doubt that Ramgopal's intestine was reputed due to the injuries suffered by him in the incident. In the considered opinion of this Court learned trial Court committed a mistake in finding that Ramgopal's intestine was ruptured due to the injuries suffered by him in the incident. Where it is not established that Ramgopal died because of the injuries sustained by him in the incident, appellants cannot be held guilty for the offence punishable under Section 304 Part II of the Indian Penal Code. In the considered opinion of this Court learned trial Court committed a mistake in holding appellants guilty for the offence punishable under Section 304 Part II of the Indian Penal Code. 12. But from the prosecution evidence as discussed above, it is proved that in the incident appellants assaulted Ramgopal, due to which he sustained injuries. Injured Daya Shankar Mishra (PW8) and Yashoda (PW9) have stated that at the time of the incident, appellant no.2 Ram Naresh was armed with a spear and he used it in the incident. Dr. Chandrika Prasad Dwivedi (PW1), who examined Ramgopal immediately after the incident has stated that on 25/10/1988 at 10 a.m. he had conducted medical examination of Ramgopal in which as many as 24 external injuries were found on his body, out of which injury numbers four and five were inflicted by hard & sharp object. Dr. Chandrika Prasad Dwivedi (PW1), who examined Ramgopal immediately after the incident has stated that on 25/10/1988 at 10 a.m. he had conducted medical examination of Ramgopal in which as many as 24 external injuries were found on his body, out of which injury numbers four and five were inflicted by hard & sharp object. So appellant no.2 Ramnaresh is found guilty for the offence punishable under Section 324 and appellant no.1 Dinesh is found guilty for the offence punishable under Sections 324 read with 34 of IPC of assaulting Ramgopal. The Conviction of appellant no.1 Dinesh under Section 324 read with 34 and 323 of IPC and appellant no.2 Ramnaresh under Section 324 and 323 IPC to assault other injured Sampat Kumar Mishra (PW-7), Daya Shankar Mishra (PW8) and Yashoda (PW-9) are hereby affirmed. 13. As far as the sentence is concerned, learned counsel of the appellants submitted that incident took place about 33 years ago and that the appellants have been facing trial for the last 33 years and that when the incident took place in the year 1988, the appellants were young and now they are aged persons. They are the first offenders and remained in jail for some time during the trial of the case. So, they may be punished only with the period of imprisonment that they have already suffered during the trial of the case. In this regard, learned counsel for the appellants also placed reliance upon the judgement of the Single Bench of the Bombay High Court passed in Maruti vs. State of Maharashtra in Criminal Appeal no.346/1997. But, the facts of this case do not match with the present case. In that case, the incident sparked off in the spur of the moment and no weapon was used by either of the appellants while in this case, the appellants assaulted the deceased, due to old enmity and used weapons like stick and spear to cause injuries to the injured, so that judgement does not assist the appellants. 14. Regarding sentencing of accused Apex court in the case of Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 observed thus: (SCC p. 674, para 84) '84. Sentencing is an important task in the matters of crime. 14. Regarding sentencing of accused Apex court in the case of Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 observed thus: (SCC p. 674, para 84) '84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.' 15. Apex court in the case of State of Rajasthan v. Mohan Lal, (2018) 18 SCC 535 has held:- '13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.' 16. In this case, appellants assaulted deceased Ramgopal and other injured Daya Shankar, Sampat Kumar and Yasoda with stick and spear mercilessly and in the incident Ramgopal sustained as many as 24 external injuries, Sampat Kumar 28 external injuries and Daya Shankar as many as 20 external injuries as mentioned in their medical examination reporte (Ex.P-1 to Ex.P-3) respectively given by Dr. Chandrika Prasad (PW-1). Chandrika Prasad (PW-1). Therefore, this Court does not find it appropriate to be very lenient against appellants on the point of the sentence. 17. So, the appeal is partly allowed and the conviction and sentence of appellants under Section 304 part II read with 34 of IPC is hereby set aside and instead appellant no.2 Ramnaresh is found guilty of assaulting Ramgopal for the offence punishable under Section 324 of IPC and appellant no.1 Dinesh is found guilty of assault on Ramgopal under Section 324 read with 34 of IPC and sentenced to rigorous imprisonment for two years and fine of Rs. 1000/- each. In case of default in payment of the fine, they will suffer further imprisonment for four months. The conviction and sentence of appellant no.1 Dinesh under Sections 324 read with 34 and 323 of IPC and appellant no.2 Ramnaresh under Sections 324 and 323 IPC of assaulting other injured Sampat Kumar Mishra (PW-7), Daya Shankar Mishra (PW-8) and Yashoda are hereby affirmed. All the jail sentences of the appellants shall run concurrently. The period already undergone shall be set off from the period of substantive jail sentences. 18. The appellants are on bail, so their bail bonds are cancelled. They are directed to surrender before the trial Court within 15 days from today and the trial Court is directed to send them to jail for serving the remaining part of the jail sentence. If the appellants do not surrender, the trial Court shall take action according to law for the arrest of the appellants. 19. A copy of this judgment be sent to the concerned trial Court for information and necessary compliance.