S.N. Deedwania, J.
1. Appellants Shiva nth and Ramratan have preferred this appeal against the judgment dated February 28, 1979 of the learned Sessions Judge, Sri Ganganagar whereby, the appellants were convicted under Sections 304 read with 34 and 304, I.P.C. respectively and each of them was (sic)enced to rigorous imprisonment for 4 years.
2. A case as alleged in the first information report was this. That on 25th of March, 1978 i e. on the day of Holi at about 2 p.m. appellant Shivanath and one Ramratan were insisting to throw colour on the wife of Satyanarain Ram Badhas intervened a ad asked the parties not to quarrels Shivnath, then exhorted Ramratan to beat. Ramratan gave lathi blow on the head of Ram Badhas, who fell down on the ground and thereafter, Shivnath also gave a lathi blow on his hand. Many persons witnessed the incident. Ram Badhas who was taken to the hospital where he was given ordinary treatment. The injury was not considered to be serious and, thereafter, no report of the incident was lodged in the police station. Ram Badhas died on 29-3-78 as result of the aforesaid head injury and thereafter, Basant-kumar made the First Information Reports in the police station, City Kotwaii Ganganagar. A case under Section 302, IPC was registered and the usual investigation was started. During the (sic)urse of the investigation, postmortem examination on the dated body of Ram Badhas was performed by Dr. R.K. Gupta P.W. 1 Only there witnesses namely, Basantkumar P.W 2, Gourishanker P.W.3 Parasram P.W.4 were examined as eye witness of the incident. However, P.W.3 Gourishanker turned hostile and did not support the prosecution case. The accused examined D.W. 1 Fozdar and D.W. Satyanarain in defence. The learned Sessions believed the prosecution evidence and convicted and sentenced the appellants in the manner stated above.
3. I have heard the learned Counsel for the appellants and the learned Public Prosecutor for the State and perused the record of the case carefully.
4. It is argued by the learned Counsel for Shivnath appellant that the learned Sessions Judge was in error in convicting Shivnath, as no injury on the hand of Ram Badhas was found. The first information report is delayed and, therefore, his conviction can not be sustained only on the basis o the two interested witnesses in the absence of corroboration from the medical evidence.
5. On the other hand, learned Public Prosecutor argued that the two eye witnesses had no motive to falsely implicate Shivnath. I have considered the rival contentions carefully. There is no doubt that the first information it port was made four days after the incident Of course, P.W. 2 Bisant-kumar has given a cogent explanation that no report was lodged promptly because the injury to Ram Badhas was taken to be simple. The explanation is credible, but the fact of delay remains and it is difficult to use this first information report to corroborate the statement of the witness.
6. The two relation witnesses PW 2 Basantkumar and PW 5 Parasram state that Shivnath gave a lathi blow on the hand of Ram Badhas after he has fallen down on the ground. No such injury was found on the hand of Ram Badhas in the post-mortem examination. It appears that some how PW 1 Basantkumar exaggerated the first information report to implicate Shivnath also for the one reason or the other. Parasram being a close relation also, therefore, had to adopt the same story. It appears that there was a quarrel between two groups of labourers and in such circumstances, it would be difficult to notice if any exhortation was given by Shivnath to Ram Ratan. If Shivnath wanted to beat Ras Badhas he himself would have given a lathi blow and had no reason to exhort Ram Ratan. This part of story therefore, does not appear to be credible which is sought to be substantiated by the oral evidence of two relation witnesses. I am, therefore, of the view that it would not be safe to convict Shivnath and prosecution has failed to prove beyond reasonable doubt any offence against him. I am inclined to take this view also because during investigation, a number of witnesses who claimed to have seen the incident were examined but none of them was produced by the prosecution for reasons best known to it.
7. As regards, Ramratan, his conviction was not challenged before me by his learned Counsel. I have gone through the judgment of the learned Sessions Judge, and the evidence of two eye-witnesses. The learned Sessions Judge has given good reasons for believing the two eye-witnesses, as far as Ramratan is concerned. There does not appear to be any malice or motive for these two eye-witnesses to falsely implicate Ramratan. It is evident from the fact that the first information report was lodged only after the death of Ram Bid has and It appears that the parties and Ram Badhas had re-co(sic)ciled to the situation.
8. However, it is argued by the Counsel that the sentence awarded to Ramratan may be reduced to the period already undergone by him. The appellant was arrested on 7-8-78 and since then, he is in custody. He has already undergone detention for about 2 years, which would amount to about 2 1/2 years of the imprisonment including the period of detention. There was no previous enmity between Ram Badhas and the appellant. It appears from the statements of PW 3 Gourishanker and DW 1 Fozdar and DW 2 Surendra singh, that Satyanarain was trying to throw colour on the wife of brother-in Saw of Fozdar. PW 4 Parasram has also deposed similarly. It further appears from the prosecution evidence that the quarrel was between the two groups of labourers. Ram Badhas intervened only to settle the quarrel between the two groups. It appears that during the quarrel Ramratan somehow gave a lathi blow on the head of Ram Badhas. It may be said that I have already disbelieved the prosecution story about the exhortation given by Shivnath. It, therefore, appears that somehow matters went out of control and then a lathi blow was given by Ramratan on the head Ram Badhas. Admittedly be had no intention to murder Ram Badhas. He gave only one lathi blow in the heat of moment. It could not be said that it was a premeditated act to cause injuries to Ram Badhas, Even the parties had compromised in the evening, which can be gathered from the fact that Ram Badhas did not lodge any report in police and it was lodged by Basantkumar after the death of Ra m Badhas. In view of these mitigating circumstances, I am of the opinion, that it is fit case, where the sentence awarded to Ramratan by the learned Sessions Judge should be reduced to the period already undergone by him.
9. I therefore, accept the appeal of Shiv Nath appellant set aside the judgment of the learned Sessions Judge, Sri Ganganagar and acquit him of the offence under Section 304 read with 34, IPC. He is on bail and need not surrender to his bail-bonds, which are hereby discharged.
10. I dismiss the appeal of Ramratan appellant but reduce the sentence awarded to him under Section 504 Part II, IPC to the period already undergone by him. Appellant Ramratan shall be released forthwith, if not required in any other case.