ORDER : 1. This appeal is directed against an order passed by the Punjab and Haryana High Court for affirmation of conviction and sentence of the appellant herein under Section 302 as also under Section 323 read with Section 34 Indian Penal Code The prosecution case in brief and as culled out from the records denotes that on July 15, 1992, at about 8 p.m., one Devinder Kumar, PW-6, along with his friend Mohan Lal had come to the house of his in-laws at Beer Ghahar. At about 9.00 to 9.30 p.m. he along with his wife Kavita @ Geeta were to leave for Chandigarh on Bajaj motor cycle and his friend Mohan Lal was also to accompany them on a separate motor cycle. His wife Kavita's brother Raj Kumar, however, admittedly came out of the house to see them off. When the three of the riders were about to leave, three accused persons namely, (1) Rajesh Kumar @ Bablu, (2) Surinder Kumar @ Pappu and (3) Mukesh Kumar @ Lamboo, arrived at the place of occurrence. Immediately thereafter, Mukesh Kumar @ Lamboo gave a fist blow and Surinder Kumar @ Pappu caught hold of Mohan Lal by his neck and Rajesh Kumar @ Bablu kicked him below his abdomen. Some other friends came to rescue them. In any event, after some time, the accused persons left and Mohan Lal was taken to the Hospital by reason of the factum that he became unconscious on the spot. There is some divergence of evidence. Whereas PW-6 Devinder Kumar stated that Mohan Lal died on the way to the hospital, PW-7 Kavita, wife of Devinder, stated that his death occurred after some time at the hospital. The First Information Report was lodged on July 15, 1992 and the case was investigated. Upon framing of charges under Sections 302 and 323 read with Section 34 Indian Penal Code the trial commenced in which two witnesses PW-6 and PW-7 were examined in support of the prosecution. PW-7 happens to be the wife of PW-6. The First Information Report was lodged on July 15, 1992 and the case was investigated. Upon framing of charges under Sections 302 and 323 read with Section 34 Indian Penal Code the trial commenced in which two witnesses PW-6 and PW-7 were examined in support of the prosecution. PW-7 happens to be the wife of PW-6. It would be significant to note here the evidence of PW-6 and relevant extracts thereof are set out herein-below: “I was on my motor cycle while Kavita was the pillion rider of my motor cycle and Mohan Lal had taken seat on his motor cycle and when I was in the process of talking to the brother of my wife, Mukesh, Surinder and Bablu accused present in the court came there and Mukesh accused started giving fist blows on the neck and head of Mohan Lal deceased. When these fist blows were given, Surinder accused had caught hold of Mohan Lal by his neck. Bablu accused gave leg blows on the abdomen and testicles of Mohan Lal. I alighted from my motor cycle. I along with my brother- in-law Raj Kumar proceeded to intervene and save Mohan Lal. In the meantime, accused Balwinder and John present in the court also reached there. Bablu then caught hold of me by my neck and Balwinder, accused gave me fist blows on the right waist and back. John accused then caught Raj Kumar PW- and Surinder accused gave him fist blows on the waist and gave slaps on his face. We raised an alarm hearing which inhabitants of the village came out of their houses and seeing them all the accused ran away from the spot.” 2. PW-7, however, while narrating the incident came out with following version: “My husband had come to take me along to Mohali to celebrate the birthday of son of my aunt on the same day. After some time I along with my husband and Mohan Lal came out of the house for going to Mohali and my brother Raj Kumar also came out to see me off. There was electric bulb burning outside our house and in the light of that bulb, I saw accused Mukesh, Pappu and Balwinder who are present in the court. Mukesh accused gave fist blows on the head of Mohan Lal, while Pappu held Mohan Lal by his neck. There was electric bulb burning outside our house and in the light of that bulb, I saw accused Mukesh, Pappu and Balwinder who are present in the court. Mukesh accused gave fist blows on the head of Mohan Lal, while Pappu held Mohan Lal by his neck. Balwinder accused gave leg blows on the private parts of Mohan Lal. Balwinder and Pappu gave slaps and fist blows to Raj Kumar. John and Balwinder and Pappu accused had come later on. We raised an alarm hearing which many people collected at the spot and the accused person escaped. We brought Mohan Lal on a cot to Saket Hospital, Chandi-Mandir where he was examined by the doctor and he was still alive. My husband then made a report with the police. Again said at Saket Hospital, the doctors had declared Mohan Lal dead on his arrival there.” 3. There is thus a definite contradiction as to the author of the crime, whereas according to PW-7 Balwinder was the author, the husband PW-6 ascribed the offence to Rajesh Kumar. Be that as it may, the doctor's evidence is also to be considered for the purposes of assessing the evidentiary value of the depositions of the PWs. The doctor, who examined the body and did the post- mortem found two abrasion marks each of 1 x ½ over the anterior side of left knee joint and recorded that there was no external mark of injury on the body. Externally, the doctor opined, the testicles were healthy but on dissection, found that there was contusion and laceration of right testis. In the opinion of the doctor, the cause of death was vase vagal shock due to the injury to the testicles. It is on the basis of this evidence, the High Court recorded the finding that the conduct of Rajesh Kumar shows that he should have very well known that causing of injuries to deceased Mohan Lal on such a delicate and vital organ could prove fatal. The doctor's evidence was taken recourse too. Coming to such a conclusion, however, the High Court further recorded: Successive leg blow given by Rajesh Kumar alias Bablu on the testicles of Mohan Lal deceased resulted in the death of the latter within a few minutes. 4. The doctor's evidence was taken recourse too. Coming to such a conclusion, however, the High Court further recorded: Successive leg blow given by Rajesh Kumar alias Bablu on the testicles of Mohan Lal deceased resulted in the death of the latter within a few minutes. 4. There is, however, no evidentiary support of such a finding but, in any event, on scrutiny of evidence, the High Court came to the conclusion that accused Mukesh Kumar, Surinder Kumar and Baljinder (Balwinder) Singh are only liable for an offence punishable under Section 323 read with Section 34 Indian Penal Code and not under Section 302. But as regards accused Rajesh Kumar, the High Court maintained the conviction and sentence punishable under Section 302 as also under Section 323 read with Section 34 Indian Penal Code and dismissed his appeal. Mr. Sanyal, learned Senior Counsel appearing in support of the appeal rather strongly contended that the High Court not only misread the evidence, but also totally mislead itself on the fact situation of the matter in issue. Admittedly, no weapons were recovered, neither any weapon was used. The list of injuries as is available from the post-mortem report does not contain any lacerated wound and it is only a contusion on the private parts of the body of the deceased. Mr. Sanyal further contended that as a matter of fact the contradiction in identification as to the person giving fatal blow, warrant an acquittal in favour of his client. Mr. Sanyal relied heavily on the evidence of PW-7 Kavita and stated that it is Baljinder (Balwinder) Singh who has given the fatal kick and not Rajesh Kumar as has been stated by PW-6. In any event, this contradiction ought to be to the advantage of accused and thus the accused is entitled to the benefit therefrom. On the record, however, it appears that PW-7 was declared hostile and the trial court has recorded certain reasons for discarding her statement. The High Court also has concurred therewith for not placing reliance upon her statement so far this part of the prosecution is concerned and it is now a well settled principle of law that in the event of there being a concurrent recording of fact on the set of evidence, the Supreme Court need not intervene or interfere with the findings arrived at by the trial court or by the High Court. The law is so well settled that we need not dilate on that score. 5. But the issue what the High Court lost sight of that it was just a fight amongst certain friends and acquaintances and question of there being an intent to kill or to commit the murder does not and cannot arise. Mr. Sanyal contended, the High Court failed to consider this aspect of the matter and we do feel inclined to record our concurrence there with. 6. On the wake of the aforesaid, we cannot lend our concurrence with the findings of the High Court as regards the conviction and sentence under Section 302, rather in the contextual facts, in our view Section 304 Part II of Indian Penal Code would otherwise sub- serve the ends of justice. 7. In the result we acquit the accused of the offence punishable under Section 302 Indian Penal Code and find him guilty of offence punishable under Section 304 Part II of Indian Penal Code. We have been informed that the appellant herein is in jail for the last six years. We do feel it expedient to record that having considered the nature of the offence and the nature of occurrence and particularly, by reason of the fact that no weapons have been admittedly used and on the stake of evidence on record, we feel that the sentence already served would be a sufficient punishment for the concerned accused. The accused thus be released forthwith, unless wanted in any other matter. The conviction under Section 323 read with Section 34 Indian Penal Code, however, stands confirmed. 8. In view of the aforesaid, the appeal is partly allowed.