The court's decision emphasized the consideration of witness statements, the nature of the offense, and the age of the appellants in determining the appropriateness of the sentence.

JUDGMENT

Pushpendra Singh Bhati, J. - This criminal appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the appellants may be acquitted of the charges levelled against them."

2. The matter pertains to an incident which occurred in the year 1994 and the present appeal has been pending since the year 1995.

3. Learned counsel for the appellant submits that this Criminal Appeal has been preferred against the impugned judgment dated 15.07.1995 passed by the learned District and Sessions Judge, Dungargarh in Sessions Case 113/94 whereby the appellants were convicted for the offences under Section 304 Part-II and sentenced to undergo 07 years' R.I. and a fine of Rs. 1,000/- each and in default of payment of which they were ordered to further undergo 6 months' R.I..

4. Learned counsel for the appellants submits that the incident is of 02.10.1994, when an altercation regarding the tilling of the agricultural land occurred between the parties, as the accused tried to restrain the complainant from going ahead for tilling the agricultural land.

5. Learned counsel for the appellants has drawn attention of this Court to the statement of PW-1 Soma, who is an injured witness and is father of the deceased, who has deposed that while he was trying to till the land in the morning at about 9:00 o' clock before Deepawali, the accused Sardar, Bapu and Ujma picked up a fight with him. The PW-1 has further deposed that his nephew Shanker was also with him. The PW-1 has also deposed that Sardar gave a lathi blow to him and Bapu also inflicted injury upon him. Upon seeing of Soma being injured, his son Akhma came running and was attacked by the accused persons by giving him lathi blows.

6. Learned counsel for the appellants further submits that the best star witness Soma does not distinguish between the three accused Sardar, Bapuda and Ujma whereas the learned trial court has convicted Sardar & Bapuda only whereas Ujma has been convicted under Section 323 of IPC and has been let out by the undergone sentence of nine months.

7. Learned counsel for the appellants has further taken this Court to the statement of Shanker PW-2, who also supportted the story of Soma, but has tried to distinguish and has said that all three accused persons inflicted injuries upon Soma, however, the head injuries is attributed to Sardar & Bapuda. Learned counsel also submits that the contradiction in the key witnesses as well as an admitted position that Lala came after the incident creates a suspicion in the story of the prosecution for which the benefit of doubt has to be given to the appellants. Learned counsel further submits that the appellant Sardar is 73 years old and Bapu is 50 years old at present and they have already undergone a custody period of nine months and twelve days.

8. Learned counsel for the appellant at this stage submits that the appellants were neither criminals nor they used any weapon, rather it was a small altercation for tilling of land between two farmers, which suddenly erupted into the incident whereas even the original dispute was going on between the accused persons and Soma, and Akma was no where in the picture. Learned counsel, 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.

9. Learned counsel for the appellant further submits that the sentence so awarded to the appellant was however suspended by this Hon'ble Court, vide order dated 26.07.1995 passed in S.B. Criminal Misc. Bail (SOS) Application No. 328/1995.

10. Learned Public Prosecutor opposes the same.

11. This Court on conjoint consideration of the statement of PW-1, who is a star witness of the prosecution and he alleges common allegation upon all three accused persons; the statement of Shanker PW-2 who also alleges omnib