The prosecution must prove the elements of the charged offence beyond a reasonable doubt for a conviction. The court may consider the period already undergone by the accused when determining the appropriate sentence.

Sunil Kumar Garg, J.-This appeal has been preferred by the accused appellants against the Judgment and order dated 30-1-1987 passed by the learned Sessions Judge, Udaipur in Sessions Case No. 152/85 whereby the learned Sessions Judge convicted the accused appellants for oflence under Section 342, I.P.C. and Section 323, I.P.C. in place of Section 302, I.P.C. sentence each of them as under Name of Convicted Sentence Accused under Section Awarded Snanti lal } 323 IPC 6 months’ R.I. Rajnikant Sardar Khan Shantilal } 342 IPC 6 months’ R.I. Rajnikant Sardar Khan Both the substantive sentences were ordered to run concurrently.

2. It arises in the following circum-stances:

(i) On 12-3-1985 a report was lodged by PW 1 Rooplal with the police Station Fateh Nagar, Dist. Udaipur stating that his brother Mangi Lal (hereinafter referred to as the deceased) was beaten by the accused appellants.

3. On this report, police chalked out regular FIR Ex. P/2 and started investigation.

4. The deceased died on then next date and the post mortem of the deceased was got conducted by PW 8 Dr. Pramod on 13-3-1985 and the post mortem report is Ex.P/11 and he found five abrasions on the body of the deceased and the cause of death as assigned by PW 8 Dr. Pramod is asphyxia as a result of injury on scalp and other injuries also.

5. The accused appellants Shanti Lal, Rajni Kant and Sardar Khan were arrested through Fard Ex.P/15. P/16 and P/17 respectively on 18-3-1985.

6. After usual investigation, police filed challan against the accused appellants for offence under Sections 302 and 342, I.P.C. in the Court of Magistrate, from where the case was committed to the Court of Sessions Judge, Udaipr.

7. On 3-12-1985, charges, were framed by the learned Sessions Judge for offence under Sections 302 and 342,

I.P.C. against the accused appellants who pleaded not guilty and claimed trial.

8. During trial, the prosecution examined as many as 13 witnesses in support of its case. The accused in their statement udner Section 313, Cr.P.C. denied to have committed any offence and no evidence was led in defence.

9. At theconclusion of the trial, the learned trial Judge through his Judgment dated 30-1-1987 came to the conclusion that the offence of culpable homicide amounting to murder punishable under Section 302, I.P.C. was not proved by the prosecution and in place of offence under Section 302, I.P.C. only offence under Section 323, I.P.C. was proved against the appellants and thus, he convicted the accused appellants for offence under Section 342, I.P.C. and 323 I.P.C. in place of Section 302, I.P.C. sentence them as stated above.

10. Aggrieved from the said Judgment , this appeal has been filed by the accused appellants.

11. In this appeal, the learned Counsel for the accused appellants has not assailed the findings of conviction recorded by the learned Sessions Judge, Udaipur by his Judgment dated 30-1-1987 for offence under Sections 342 and Section 323 I.P.C. but it has been argued on behalf of the accused appellants that they may be sentenced to the period already undergone by them.

12. I have heard both and perused the record and impugned Judgment

13. Since in this case, findings of conviction for offence under Section 342 and 323,1.P.C. recorded by the learned Sessions Judge, Udaipur vide his Judgment dated 30-1 -1987 have not been challenged, therefore, they are liable to be confirmed one and the appeal of the accused appellants against their conviction is liable to be dismissed.

14. Looking to the fact that the accused appellants have remained in PC/JC from 18-S’1985 to 18-4-1985 i.e. forone month and the incident took place on 12-3-1985 and more than 16 years have passed and this period is sufficient to exhaust anybody mentally phyisically or economically and it will not be in the interest of justice to send the appellants to Jail for conviction for offence under Section 323, I.P.C. after 16 years, the sentence of period for which the accused appellants