JUDGMENT 1. - This appeal is directed against the judgment and order dated November 20, 1993 of Sessions Judge, Jhalawar, in Sessions Case No. 245/90, convicting and sentencing the appellant as under:- Rai Singh - Appellant under Section 302 I.P.C. Imprisonment for life and to pay a fine of Rs. 1,000/-. In default of payment of fine, to undergo simple imprisonment for two months. Poori Lal - Appellant Under Section 326 I.P.C. two years' rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo simple imprisonment for one month. Under Sec. 324 I.P.C. one year and to pay a fine of Rs. 250/-. In default of payment of fine, to undergo simple imprisonment for 15 days. The substantive sentences awarded, were ordered to run concurrently. 2. The facts of the case are extensively set-out in the impugned judgment of the trial court and they indicate that the incident took place at the bus stand of village Salotiya at 5.30 p.m. on September 29, 1990. PW. 15 - Nazimulla. S.H.O., Police Station, Sunel, having learnt from some employees of his Police Station that at the bus stand of the village a fight has taken place between two parties, reached to the scene of occurrence after making an entry (Ex.R 37) in `Rojnamcha Am' of the Police Station alongwith the police force. At the scene of occurrence, he found Hansraj and Umrao Singh in injured condition. The injured were shifted to the hospital at Bhawani Mandi. Thereafter, 'Parcha Bayan' (Ex.P 1) of Umrao Singh was recorded at 19.05 hrs. on the same day. In the same process, further statement of Umrao Singh as dying declaration was recorded by the doctor. This `Parcha Bayan' was treated as F.I.R. and Crime No 102/92 was registered under Sections 302, 307 and 323 I.PC. Hansraj died when he was being shifted to the hospital from the scene of occurrence. Further details about the investigation need not be stated by us as the learned counsel appearing for the appellants restricted his arguments about the nature of offence committed by the appellant Rai Singh and the sentence to be awarded to him in the facts and circumstances of the case. Suffice is to say that the trial Court, placing reliance on the testimony of PW. 1 -Umrao Singh, injured eye-witness, convicted and sentenced the appellant as stated above. 3. Suffice is to say that the trial Court, placing reliance on the testimony of PW. 1 -Umrao Singh, injured eye-witness, convicted and sentenced the appellant as stated above. 3. Shri A.K. Gupta, learned counsel appearing for the appellants, stoutly contended that the offence under Section 302 I.PC. is not made out against the appellant, Rai Singh. According to the learned counsel, even if the statement of injured eye-witness Umrao Singh is taken on its face value, only one blow by a lathi is alleged to have been inflicted by the appellant Rai Singh to the deceased and that is to also not known as to on which part of his body it struck. Learned counsel contended that admittedly, the appellants had no previous enmity or any other motive to commit murder of Hansraj, and the incident took place all of a sudden on some oral altercation between the parties. The members of the complainant party had come to the village for negotiation with the accused about some land belonging to an old lady. For the appellant-Poori Lal, learned counsel contended that sentence of imprisonment awarded under Section 326 I.PC. be reduced to the period already undergone by him and in lieu thereof, sentence of fine may be increased. 4. We carefully, considered the above submissions in the light of the facts and circumstances the incident took place. The learned counsel for the appellants though did not dispute the participation of the appellants in inflicting injuries to Hansraj and Umrao Singh, still we minutely examined the statement of the injured eye-witness Umrao Singh. On critical examination of his statement we are satisfied that participation of the appellants in the incident is well proved. Therefore, the only question that calls for our consideration is - whether the conviction of the appellant - Rai Singh under Section 302 I.PC. is sustainable or his offence should be scaled down. For this purpose, we examined entire record of the case, including the post-mortem report of the deceased Hansraj and the statement of PW. 16 - Dr. Srinath Gupta who performed post-mortem examination vide report Ex.P 34. The injuries of Hansraj were examined by Dr. Srinath Gupta at 9 a.m. on 30.9.90 when he was alive. As per injury report, Ex.P 30, Hansraj sustained two lacerated wounds, one on front of right ear and the other on right upper eye-brow. 16 - Dr. Srinath Gupta who performed post-mortem examination vide report Ex.P 34. The injuries of Hansraj were examined by Dr. Srinath Gupta at 9 a.m. on 30.9.90 when he was alive. As per injury report, Ex.P 30, Hansraj sustained two lacerated wounds, one on front of right ear and the other on right upper eye-brow. He also sustained three contusions on right parietal prominence, on right scapular region, right fore-arm and left eye. All the injuries were caused by blunt object. 5. The statement of Umrao Singh and the facts and circumstances culminating in the incident show that the deceased Hansraj and the witness Umrao Singh had come to the village Salotiya to negotiate with the accused about a piece of land. As per prosecution some land belonging to an old lady was in occupation of the accused and the deceased Hansraj and the witness Umrao Singh had come to the village to negotiate with regard to the said land. It also transpires that on some oral altercation the incident flared-up all of a sudden. Besides, the appellant Rai Singh, his two sons Poori Lal and Ramesh Chand also participated in the incident. A charge-sheet was filed against Ramesh Chand but he expired during the pendency of trial. For appellant Rai Singh, the only part assigned to him was that he inflicted one blow to the deceased, and it was not known as to on which part of his body it struck. Thus taking into consideration all the facts and circumstances, we are satisfied that the appellant Rai Singh did not intend to commit murder of the deceased Hansraj. Then, there is no material on record to hold precisely that he caused fatal injury to the deceased. The fact established against him is that he inflicted one blow with a lathi to the deceased and was not known as to on which part of the deceased's body it was struck. Appellant Rai Singh had also sustained injuries on his person, though simple in nature. We are, therefore, satisfied that the offence under Section 302 I.PC. is not made out against the appellant Rai Singh. However, looking to the nature of injuries sustained by the deceased, he can be safely convicted under Section 304 Part-ll read with Section 34 I.PC. Appellant Rai Singh had also sustained injuries on his person, though simple in nature. We are, therefore, satisfied that the offence under Section 302 I.PC. is not made out against the appellant Rai Singh. However, looking to the nature of injuries sustained by the deceased, he can be safely convicted under Section 304 Part-ll read with Section 34 I.PC. The appellant Rai Singh was arrested on 30.9.90 and since then he is in custody as such he has served out sentence of imprisonment for five years and more than 9 month. The sentence of imprisonment already undergone by him shall meet the ends of justice of the offence under Section 304- Part II I.P.C.The appellant Poori Lal has been convicted under Section 326 as well as 324 I.PC. Once he is convicted under Section 326 I.PC. for causing a grievous injury to Umrao Singh, his conviction under Section 324 I.PC. is not sustainable. However, his conviction under Section 326 I.PC. is maintained. He has remained in custody for more than 12 months and we are of the opinion that the sentence of imprisonment already undergone by him will meet the ends of justice if, in lieu of reduction of imprisonment, sentence of fine is increased to Rs. 5000/. 6. Consequently, the appeal is allowed in part. The conviction and sentence of the appellant Rai Singh under Section 302 I.PC. is set aside. Instead, he is convicted under Section 304 Part-II read with Section 34 I.PC. and sentenced to the period of imprisonment already undergone by him. He is in custody and shall be released for with if not wanted in any other case.The conviction of the appellant Poori Lal under Section 326 I.RC. is maintained. His sentences are modified in terms of the period of imprisonment already undergone by him and to pay a fine Rs. 5000/-. In default of payment of fine, to undergo simple imprisonment for six months. Three months' time is granted to deposit the amount of fine in the trial Court. His conviction and sentence under Section 324 I.RC. is set aside. He is on bail and need not surrender. In case, he fails to deposit the amount of fine within the specified time, the trial Court shall take steps for his arrest to undergo the period of imprisonment in default of payment of fine.The appeal stands disposed of as indicated above.Appeal partly allowed. *******