S.N. BHARGAVA, J. —, This is an appeal directed against the judgment dated 26th October, 1987. passed by the Additional Sessions Judge No. 2, Alwar convicting and sentencing the accused-appellants as under :- Sanwata & Sunda U/s 147 IPC - Six months R.I. each. U/s 323/149 IPC - Six months R.I each. U/s 302/149 IPC - Life imprisonment and a fine of Rs. 500/-, in default of payment of fine, 6 months R.I. Sultan U/s 302 IPC - Life imprisonment and a fine of Rs.500/-each and in default of payment of fine, two months R.I. to each of them. U/s 147 IPC - 6 months R.I. U/s 323/149 IPC - 6 months R.I. Jagdish U/s 147 IPC - 6 months R.I. U/s 323 IPC - 6 months R.I. U/s 302/149 IPC - Life imprisonment and a fine of Rs.500/-in default of payment of fine, six months R.I. 2. Babu Lal (PW-3) submitted a written report (Ex.P.5) on 4.7.1985 at 9.30 p.m. at Police Station Bansur, District Alwar, stating therein that on that day at about 4 p.m. his uncle Sukhram had gone to his premises to tie the bullocks. Sanwata accused appellant objected to it and warned Sukhram that he will kill him (Sukhram), whereafter he left and returned alongwith his sons Sultan, Banwari, Sunda and Jagdish who were all armed with lathis, Sultan inflicted a lathi blow on the head of Sukhram, who was unarmed. As a result, he fell down and there upon. all other accused persons gave beating to Sukhram, by lathis. When Babulal and others went there to object, Babulal also received injuries. His uncle Sukhram died on the spot and he had come to the police station to make the report. 3. On the basis of this report, a regular FIR (Ex.P.6) was registered, u/s 302 read with Section 147, 148, 149 and 323. After usual investigation, the case was challaned. Learned Magistrate committed the case to the court of Sessions and the learned Additional Sessions Judge, after trial, convicted and sentenced the accused appellants as aforesaid. 4. We have carefully gone through the judgment of the trial court as also the record of the case. The prosecution in this case has placed reliance on the evidence of PW-3 Babulal, PW-4 Ramesh S/o Sheodan and also PW-5 Sheodan himself. It will be interesting to note that Sheodan, Sanwata and deceased Sukhram are real brothers. 4. We have carefully gone through the judgment of the trial court as also the record of the case. The prosecution in this case has placed reliance on the evidence of PW-3 Babulal, PW-4 Ramesh S/o Sheodan and also PW-5 Sheodan himself. It will be interesting to note that Sheodan, Sanwata and deceased Sukhram are real brothers. One brother has already died and another brother Sheodan and his three sons have appeared as eyewitnesses against accused persons Sanwata and his three living sons - Sultan, Jagdish and Sunda. Another son of Sanwata namely Banwari had died during the pendency of these proceedings. Out of these four eye witnesses, PW-6 Ram Karan has been declared hostile. Sheodan and his two other sons PW-3 Babulal and PW-4 Ramesh have supported the prosecution story. PW-3 Babulal and PW-4 Ramesh have also received injuries at the time of the incident vide Ex. P. 18 and Ex. P. 17 respectively and these injuries are simple in nature, caused by blunt object and not on vital parts, whereas deceased Sukhram had received seven injuries in all, vide Ex. P. 20 out of which injury No. 6 and 7 are abrasions and injury Nos. 2, 3 and 5 are result of Injury No. 1 and the only other injury on the head is Injury No. 4, Both Injury Nos. 1 and 4 are caused by blunt object. The doctor who conducted the post mortem has not been examined Post mortem report Ex.P.20 has been formally proved by a Compounder PW-9 Jagdish Singh. Accused Sultan has filed a written statement u/s 313 Cr.P.C. in which he has stated that on the day of incident, Sukhram had come to his premises for tieing his bullocks., and Sultan had objected to it, whereupon Sukhram got annoyed and started abusing him. Sultan asked him not to hurl abuses or tie the cattle. Thereupon Sukhram gave him beating by lathi. Ramkaran also came and he also hurled lathi blows as a result Sukhram received injuries. Other villagers came and intervened. Sultan had also received as many as four injuries, all of them are simple, caused by blunt object, and one of them is on the face. 5. Thereupon Sukhram gave him beating by lathi. Ramkaran also came and he also hurled lathi blows as a result Sukhram received injuries. Other villagers came and intervened. Sultan had also received as many as four injuries, all of them are simple, caused by blunt object, and one of them is on the face. 5. Learned counsel for the appellants has submitted that the prosecution has failed to examine wife of Sheodan and one Meena who were admittedly present at the time of the incident, according to the prosecution witnesses them selves. He has further submitted that the prosecution has also changed the place of occurrence; in Ex. P. 5 FIR, the place of incident is Sukhram Ka Guwada whereas in the court during the trial, the place of incident has been shifted to the field of Bahadur. He has further submitted that in Ex. P. 5 Sultan is alleged to have had lathi by which he inflicted the blow on the deceased, whereas during trial and even at the time of investigation and statements of Prosecution witnesses u/s 161 Cr.P.C. weapon lathi has been changed by Jely and on the information given by Sultan Ex. P. 9) Jely has been recovered vide recovery memo Ex.P. 10 and the same has also been found to be blood stained and having same blood group as that of the deceased vide Ex. Ex. P. 16. 6. Learned counsel for the appellants has further submitted that the prosecution has failed to explain the injuries of accused Sultan and therefore, the prosecution case should not be believed. In this connection, he has placed reliance on Lakshmi Singh V. State of Bihar (1) Pyare Lal V. State of Rajasthan (2) and Fatya alias Fateh Lal V. State of Rajasthan (3). 7. Learned counsel for the appellants has further submitted that since Sultan had received injuries and one of them was on his face, the had a right of private defence and in this connection has placed reliance on 1985 R.C.C. 172- 8. Learned counsel for the appellants has further submitted that the defence version is more probable than the prosecution story, specially in view of the statement of PW-6 Ram Karan who was examined as an eye witness and also is son of Sheodan who had himself appeared as PW-5 and his two other sons Babu Lal and Ramesh have not supported the prosecution story. In the alternative, he has also submitted that even if the whole prosecution story is believed as such, the appellants cannot be held guilty u/s 302 and 302/149 IPC and their case should fall only u/s 325 IPC, and in this connection, he has placed reliance on Ramlal V. Delhi Administration (4) and that the accused appellants should be dealt with leniently, keeping in view of the facts and circumstances of the case. In this connection, he has placed reliance on Mohin-der Pal Jolly V. State of Punjab (5), Bishnu Dev Shaw V. State of West Bengal (6) and Yogendra Morarji V. State of Gujarat (7). 9. On the other hand, learned Public Prosecutor has supported the judgment of the trial court. 10. We have given our thoughtful consideration to the whole matter and have also gone through the prosecution evidence and also kept in mind the various sub-missions made at the bar, as also the authorities relied. 11. It is a typical case where a brother having died in the incident, his younger brother with his sons, is appearing as eye witnesses against another brother and his sons who are accused. Accused Sultan has admitted that the incident had happened, though he has denied the presence of other three accused appellants, and therefore, we are of the view that the deceased Sukhram died during the incident and there is sufficient evidence on record to come to the conclusion that he had died as a result of injury inflicted by the accused appellants. Deceased Sukhram had received two injuries on his head by blunt object. According to the prosecution witnesses, Sultan had inflicted only one blow on the head of the deceased. In the absence of medical evidence, the doctor having not been examined, there is no material on record to come to the conclusion as to which of the two injuries was fatal either injury No. 1 or injury No. 4, and the prosecution is silent as to which of the Injuries either injury No. 1 or 4, was caused by Sultan. At best, we can infer that one of the two injuries had been caused by Sultan and it is very difficult to say whether the blow given by Sultan was one which ultimately proved to be fatal as admittedly, there are two injuries on the head and accused Sultan had given only one blow on the head of the deceased and the other injury must have been caused by some other accused person. Therefore, benefit of doubt must be given to accused Sultan, He might have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances: appellant Sultans conviction u/s 302 IPC is wholly incorrect and is not maintainable. He and his other companions (other accused persons) had the common intention to cause injury to the deceased Sukhram therefore, they can be convicted only u/s 325 r/w 34 IPC, as has been held in Ramlal (supra). 12. Thus, we set aside the conviction of the accused-appellants, u/s 302 or 302/149 IPC and all the accused appellants are convicted u/s 325 r/w 34 and their conviction u/s 147 IPC as also u/s 323 r/o 149 IPC is maintained. 13. Now coming to the question about quantum of punishment, in our opinion, looking to the facts and circumstances of the case, there was a dispute between two brothers on a very trifle matter regarding tieing of bullocks in the premises. It was all of a sudden that the incident had taken place without any common object or pre meditation, and further that father and his three sons are all accused appellants before us. Therefore, we are of the opinion that interest of justice will be met if the accused appellants are sentenced to the term of imprisonment already undergone which is nearly 16 months in the case of Sultan and nearly 11 months in the case of other three accused appellants. The fine imposed on the accused appellants i.e. Rs. 500/- is increased to Rs. 1000/- each, in default of payment of fine, each of them will undergo further R.I. for six months. 14. The fine imposed on the accused appellants i.e. Rs. 500/- is increased to Rs. 1000/- each, in default of payment of fine, each of them will undergo further R.I. for six months. 14. In the result, the appeal is partly allowed, the conviction of the accused appellants, recorded by the learned Sessions Judge, Alwar, u/s 302 IPC and 302/149 IPC is set aside; instead each of the appellants is convicted u/s 325 IPC r/w 34 IPC and sentenced to the imprisonment already undergone and a fine of Rs. 1,000/- each, in default of payment of fine, each of them will undergo a further R.I. for six months. Their conviction and sentences passed by the trial court u/s 147 IPC and u/s 323/149 IPC are maintained. One months time is allowed to the accused appellants for depositing the amount of fine. They are in jail. They should be released forthwith if not required in any other case.