ORDER :

1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. This criminal appeal under Section 374(2) Cr.P.C. has been preferred claiming the following reliefs :-

“It is, therefore, most respectfully prayed that this appeal may kindly be allowed, impugned judgment dated 17.08.1994 passed by Additional Sessions Judge, Barmer is Sessions Case No.6/93 may kindly be quashed and set aside and the appellants may be acquitted in this case.”

3. The matter pertains to an incident which occurred in the year 1992 and the present appeal has been pending since the year 1994.

4. Learned counsel for the appellants submits that this Criminal Appeal has been preferred against the impugned judgment dated 17.08.1994 passed by the learned Additional Sessions Judge, Barmer in Sessions Case No.06/93 whereby the appellants were convicted for the offence under Section 304 Part-II read with Section 34 IPC and sentenced to undergo 10 years R.I. and a fine of Rs.100/-to each default of payment of which they were ordered to further undergo 15 days S.I; & under Section 323 read with Section 34 IPC sentenced to undergo 06 months S.I. with a fine of Rs.50/-to each in default of payment of which they were ordered to further undergo 07 days S.I.

5. Learned counsel for the appellants further submits that the sentence so awarded to Uda Ram was suspended by this Hon’ble Court, vide order dated 14.12.1994 passed in S.B. Criminal Misc. Bail Application No.411/94; and sentence awarded to Deraj was suspended by this Hon’ble Court, vide order dated 11.03.1996 in S.B. Criminal Misc. IV Bail Application (suspension of sentence) No.126/1996.

6. The incident is of 11.10.1992. The allegation is that while Kayam was working in his agricultural land, he was attacked by Navla, Uda, Ratna, Poonma, Hariya, Dera, Padma, Gokla & Magga with lathis. The incident resulted into death of Kayam due to injury received on head. It is fact on record that the land record was in favour of Navla but for a long time possession was with Kayam.

Counsel for the appellant submits that an isolated incident happened due to conflict arising out of possession of land, which admittedly belonged to appellants, thus, a lenient view ought to be taken by this Court while deciding the appeal.

Counsel for the appellant submits that statements of PW-23 i.e. Chanesar & PW-26 i.e. Mishri, who were eye-witnesses, is vague and that only supports the incident but reflects that they reached upon hearing commotion, thus, their testimony cannot be believed beyond a point. Counsel for the appellant has further taken this Court to evidence of PW-13 Smt.Izu, PW-4 Khera & PW7 Vali, similarly is an after incident version, thus, attribution of the crime is not clear from their depositions. Counsel for the appellant further submits that at best it would be a case of exceeding right of private defence.

Counsel for the appellant has also drawn attention of this Court to the statements of PW-10 Dr. MM Purohit & PW-11 Dr. Dev Kishan.

Counsel for the appellant at this stage submits that looking into the age of matter and also discrepancy in the evidence rendered including lack of attribution of fatal blow which caused death of Kayam as well as the fact that an isolated land dispute converted into a major incident, are the reasons enough for this Court to grant limited indulgence for letting the sentence of surviving appellants be substituted with the sentence already undergone by them.

7. Learned counsel for the appellants, however, makes a limited submission that without making any interference on merits/conviction, the sentence awarded to the present appellants may be substituted with the period of sentence already undergone by them.

8. Learned Public Prosecutor while opposing the appeal submits that Kayam was admittedly in possession and thus, it cannot be said to be a case on pri