JUDGMENT 1. - These appeals have been filed against the judgment of the learned Additional Sessions Judge, Sirohi dated 23-12-1976 by which he convicted the accused-appellants under Section 302 read with Section 149, 447 and 147, Indian Penal Code and sentenced to life imprisonment and payment of fine of Rs. 500/- each for the first offence and rigorous imprisonment for three months for the second offence. No separate sentence has been awarded for the third offence. The first appeal has been filed by all the accused-appellants and the second appeal has been filed by three accused-appellants, namely Patia, Binja and Pukhia from jail. The prosecution case may briefly be summarised thus. 2. On 3-6-74, a written report was filed in the Police Station, Shivpura (Sirohi) by Bhikugiri PW 1 bearing signatures of Chandmal PW 15, Roop Singh and Keraram also to the effect that in village Surayta, Misria s/o Kanji has been murdered by some-body and his mother Dakhu PW 3 had informed them. Head Constable Anop Singh PW 18 proceeded to the spot along with his party. They reached there in the night. On the next day, site-plan, Panchnama and inquest report were prepared and bloot-stained cloth of the deceased and mud were seized by the police under Section 174, Cr.PC. During these proceedings, it was found that the accused-appellants had committed the murder of Misaria. Accordingly, FIR Ex. P 33 was registered against them under Section 302, Indian Penal Code. After usual investigation, they were challaned under Sections 302, 149, 147 and 447, Indian Penal Code in the Court of the Magistrate, Sirohi who committed them to the Court of the Additional Sessions Judge, Sirohi. Prosecution produced 22 witnesses and tendered and proved 49 documents. The accused denied the prosecution story. They did not produce any evidence in their defence. After hearing the parties, the learned Additional Sessions Judge convicted the accused-appellants as said above. 3. Keeping in view the unimpeachable testimony of two eye-witnesses Dakhu PW 3 (Mother of the deceased) and Kalia PW 5 and other corroborative evidence on record, the learned Counsel for the accused-appellants did not challenge the findings of the 'earned trial Court that the accused-appellants injured the deceased Misaria and as a result thereof, he died. He confined his arguments only on the nature of the offence made out from the established facts and on quantum of punishment. He confined his arguments only on the nature of the offence made out from the established facts and on quantum of punishment. He contended that the appellants have wrongly been convicted under Section 302 read with Section 149, Indian Penal Code, offence punishable under Section 325, Indian Penal Code is only made out from the established facts, there was no motive for the murder, the offence took place on 3-6-1974, the accused persons have been in custody from 5-6-1974 to 26-7-1978 and no useful purpose will be served in sending them to jail after a lapse of over 13 years. 4. In reply, the learned Public Prosecutor contended that the deceased Misaria had illicit relation with the sister Koili of the accused Patia and Pukhia, they assembled together and formed an unlawful assembly with the common object of doing away with Misaria and in pursuance thereof, they came armed with lathies and an axe at the place of occurrence and seriously injured Misaria. 5. During the proceedings conducted under Section 174, Cr.PC, Head Constable Anup Singh PW 18 learnt in the village that the decessed Misaria had been done away by the accused persons as he had illict relation with Koili, sister of the accused Patia and Pukhia and as a result thereof, she became pregnant. This fact is mentioned in the FIR Ex. P 33. No prosecution witness has supported this version of the prosecution. Even Head Constable Anup Singh PW 18 has not said anything on this point in his statement on oath. Thus the motive for causing injuries to Misaria has remitted obscure. 6. The post-mortem examination on the dead body of Misaria was conducted by Dr. Mahendra Raj PW 14. P 33. No prosecution witness has supported this version of the prosecution. Even Head Constable Anup Singh PW 18 has not said anything on this point in his statement on oath. Thus the motive for causing injuries to Misaria has remitted obscure. 6. The post-mortem examination on the dead body of Misaria was conducted by Dr. Mahendra Raj PW 14. He noted the following external injuries on his body: "(1) Right side of chest on lateral side 3" below axilla, 5" X 4" in size, bruise; (2) Right arm over middle and lateral aspect, 2" X 3" bruise; (3) Left arm over deltoid region 3" X 2" in size, bruise; (4) Left forearm 2 in number on anterior aspect 3" X 1" in size, each, bruises: (5) Anterior abdominal wall multiple bruises on anterior and lateral aspect 6 to 10 in number each of 2" X 1" in size all bruises; (6) Right thigh, bruise 4" X 3", anterior aspect 3" below inguinal ligement; (7) Left whole of lower limb multiple about 15 to 17 in number each 2" X 1" in size, all bruises. (8) Haematoma present on occipital region." He also noted the following internal injuries and abnormalities: "(1) Bruise on Rt. side of chest wall; (2) 5th, 6th and 7th Ribs fractures on Rt. side at angle of rib; (3) Rt. Pleural cavity contains about 200 c.c. of blood and clots; (4) Right lung was congested & partially collapsed; (5) Left lung was congested; (6) Pargeardisels were collapsed; (7) Abdomen walls had multiple bruises; (8) Right middle shaft humarous was fractured." In his opinion, the cause of death was shock following multiple injuries and injury No. 1 could, in the ordinary course of nature, cause death with its corresponding internal injury. In cross-examination, he disclosed that bruises, as a rule are not fatal. 7. Mst. Dakhu PW 3 has deposed that the accused appellants were beating her son when she came to the place of occurrence and they ran away when she asked them as to why they were beating him. Kalia PW 5 has deposed that the accused appellants were causing injuries on the various parts of the body of the deceased by their lathies and he also asked them as to why he was being beaten. Kalia PW 5 has deposed that the accused appellants were causing injuries on the various parts of the body of the deceased by their lathies and he also asked them as to why he was being beaten. There is nothing in the statements of these witnesses to indicate that the accused persons had an intention to do away Misaria. On the other hand, the statements show that the accused appellants simply wanted to give a good beating to Misaria and accordingly, they inflicted lathi blows on his chest, hands and legs. No eye-witness has stated that any accused gave a lathi blow on his head. This is also clear from the post-mortem report Ex. P 30. If the accused had an intention to murder Misaria, they could do so by inflicting a few lathi blows with force on the vital parts of his body. In view of this state of evidence, it cannot be said with certainty that the accused persons had an intention to murder Misaria. From the evidence on record, it can well be said, they inflicted lathi blows with the knowledge that they were likely to cause his death. Thus, the Offences punishable under Section 304, Part-II, read with Sections 149, 147 and 447, Indian Penal Code are proved against the accused-appellants. Offence punishable under Section 302 read with Section 149, Indian Penal Code is not proved. 8. Now the question remains about the quantum of punishment. It is the admitted case of the parties that all the accused persons were arrested on June 5, 1974 and were released on bail on July 26, 1978 in pursuance of the order dated July 19, 1978 passed on their bail application by this Court. As such they have remained in custody for more than 4 years. Under the facts and circumstances of the case, this period of detention is adequate. 9. In the result, the appeal is partly allowed. The conviction of the accused-appellants is converted from Section 302 read with Sections 149 to 304, Part-II read with Section 149, Indian Penal Code. Their conviction and sentence for tb.3 offences punishable under Sections 147 and 447, Indian Penal Code are maintained. The sentence of life imprisonment and payment of fine of Rs. 500/- each are set aside. The conviction of the accused-appellants is converted from Section 302 read with Sections 149 to 304, Part-II read with Section 149, Indian Penal Code. Their conviction and sentence for tb.3 offences punishable under Sections 147 and 447, Indian Penal Code are maintained. The sentence of life imprisonment and payment of fine of Rs. 500/- each are set aside. Each is sentenced for the offence punishable under Section 304, Indian Penal Code, Part-II for the period already undergone by him.Appeal partly allowed. *******