ORDER : S.B. Majmudar, J. 1. Special leave granted. 2. We have heard learned counsel for the parties. Accused 2 and 4 have brought in challenge their conviction and sentence awarded by the trial court under Section 304, Part I read with Section 34 of the Indian Penal Code ("Indian Penal Code" for short) and as confirmed by the High Court in appeal. The incident which resulted in conviction of the appellants by the trial court which sentenced them to suffer rigorous imprisonment for ten years for the said offence which occurred on 10-8-1977 at 5.30 p.m. Prosecution Witness 5, Gopal Sah clearly implicated both these accused in the said offence. It was found by the trial court and as agreed to by the High Court that Accused 2 had given a spear blow to the deceased Gauri Shankar Sah and Accused 4 had given a blow on the head of the deceased with a sharp-cutting instrument, "garasa". In view of the evidence of PW 5 who had clearly implicated these accused and also in view of the corroborating evidence of PW 3 no exception can be taken to the role played by these accused in causing the death of the deceased. 3. However, the question is whether they could not have been convicted under Section 304, Part II Indian Penal Code. In our view, looking into the injuries suffered by the accused themselves in the scuffle it cannot be said that they had any intention to cause the injuries which proved fatal. Accused 2 had suffered an injury on the root of his nose though the depth of the injury is not established. So far as Accused 4 is concerned, he had suffered 15 injuries though simple in nature. In our view, the accused could have been convicted under Section 304, Part II Indian Penal Code and not under Section 304, Part I Indian Penal Code. We allow the appeal to the aforesaid limited extent by converting the conviction of appellants to one under Section 304, Part II Indian Penal Code read with Section 34 thereof instead of conviction under Section 304, Part I read with Section 34 Indian Penal Code. We allow the appeal to the aforesaid limited extent by converting the conviction of appellants to one under Section 304, Part II Indian Penal Code read with Section 34 thereof instead of conviction under Section 304, Part I read with Section 34 Indian Penal Code. So far as the sentence is concerned learned counsel for the respondents vehemently submitted, placing reliance on the judgment of this Court in State of U.P. v. Jodha Singh, (1989) 3 SCC 465 : JT (1989) 3 SC 112, that as the incident is very old, i.e., of 10-8-1977 and as years have passed only fine may be imposed on the appellants. It is not possible for us to agree. So far as the present case is concerned, the trial court convicted the accused under Section 304, Part I Indian Penal Code and sentenced them to suffer rigorous imprisonment for 10 years. In appeal the High Court while confirming the conviction reduced the sentence of rigorous imprisonment for ten years to somewhat lower sentence of seven years? rigorous imprisonment. Consequently the ratio of the aforesaid decision cannot be pressed in service by the accused. They have caused fatal injuries by sharp-cutting instrument. In our opinion, fine cannot be the proper sentence. For the reasons aforementioned they are ordered to suffer rigorous imprisonment for four years for the offences which are said to have been committed by them. 4. The appeal is partly allowed. The appellants shall serve out the remaining part of their sentence.