MANOJ KUMAR GARG,J. - (1.) The instant criminal appeal has been filed by the appellants against the judgment dated 17.06.1993 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.42/1992, by which, the accused-appellant Rakiya was convicted for the offence under Section 325 IPC and sentenced to undergo 2 years rigorous imprisonment and fine of Rs.500/- with the stipulation that in the event of non-payment of fine, he shall have to further undergo 3 months rigorous imprisonment. Accused-appellant Pradhan was convicted for the offence under Section 304 Part-II IPC and sentenced to undergo 5 years rigorous imprisonment and fine of Rs.1000/- with the stipulation that in the event of non-payment of fine to further undergo 3 months rigorous imprisonment.
(2.) The brief facts of the case are that a FIR was lodged on 07.05.1991 by one Dhanji, in which he mentioned that Devji had gone towards Nawa Ganv for some work and after returning home at half past four, he was sitting in his house whereas both the accused were working in the field. It was further stated that some dispute with regard to the land was going on between the accused and Devji. Accused-Rakiya was told by Devji many time to take the amount back towards the land with interest and the same may be released in his favour. When the accused were working in the field, the complainant and Devji, both went there then accused started throwing stone upon them. Accused said that they would be killed today. All of a sudden, accused-Pradhan went inside his house and took out sword. He inflicted sword blow. Due to which, Devji fell down and succumbed to his injuries. Accused-Rakiya gave stone blow to Devji. On this, police registered a case under Section 302 IPC and started investigation. The police arrested the accused-appellants and after thorough investigation filed a challan under Section 302/34 IPC against the appellants. Thereafter, charges of the case were framed. They denied the charges and claimed trial.
(3.) The prosecution examined as many as 14 witnesses in all and so many documents were exhibited. Thereafter, the statements of the accused under Section 313 Cr.P.C. were recorded. No witness was examined from the defence side. After conclusion of the trial, the learned Additional Sessions Judge, Banswara vide judgment dated 17.06.1993 acquitted the accused- appellants for the offence under Section 302 IPC but convicted them for the offences as mentioned above. Learned counsel for the appellants at the threshold submits that he does not want to challenge the conviction of the appellants but submits that accused-appellant Rakiya was arrested on 09.05.1991 and remained in custody upto 05.01.1993. Thus, he already undergone more than 18 months out of total sentence of 2 years rigorous imprisonment. So far as accused-appelalnt Pradhan is concerned, it is submitted that he already undergone about 2 years 2 months (from 09.05.1991 to 15.05.1993, from 04.06.1993 to 17.06.1993 and 17.06.1993 to 23.07.1993) out of total sentence of 5 years rigorous imprisonment. Learned counsel further submits that accused-appellant Rakiya is at present 67 years of age and the age of the accused-appelalnt Pradhan is about 50 years of age. Both are facing the trial since 1991 and suffered mental agony and the trauma during this period. Therefore, it is prayed that the substantive sentence awarded to the accused-appellants may be reduced to the period already undergone by them. ;