Honble SHARMA, J.–The appellants herein along with other seven accused were put up for trial before the Additional Sessions Judge, Hindaun City. The Trial Court by its judgment dated 17.7.1999 in Sessions Case No. 13/1994 convicted accused appellants Kishna, Ram Khiladi and Mota under S. 302/34 IPC and sentenced them to undergo imprisonment for life and fine of Rs. 500/- each, and in default of payment of fine further three months rigorous imprisonment. (2). In a nutshell the prosecution story is that on 29.8.1993 at 8.30 p.m., a `parcha bayan-Exhibit P1 of Babulal, injured, was recorded in the Govt. Hospital Todabhim, to the effect that at about 5.00 pm his cousin Chouthi was returning after grazing cattle and when he reached near the agricultural field of Kishna Meena on National Highway No. 11 accused Kishna, Ram Khiladi, Mota along with other accused persons, armed with deadly weapons came and started beating Chauthi. On hearing hue and cry, Prabhu, Narain, Badri, Prasadi, Ghamman, Kailash, Sitaram, Manki and he himself rushed to the spot. They were also beaten by the accused persons, as a result thereof Prabhu sustained serious injuries inflicted by `dhariya and `gandasi. On the said `parcha bayan, FIR No. 203/1993 was registered under Ss. 147, 148, 307, 323, and 379 in Police Station Todabhim and investigation commenced. During the investigation, injured Prabhu succumbed to his injuries. On completion of investigation, chargesheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge, Hindaun City. Charges under S. 148, 302/149, 325/149, 323/149 and 323 IPC were framed against the accused persons, who denied the charges and claimed trial. The prosecution, in support of its case, examined as many as 23 witnesses. Statements under S. 313 Cr.P.C. were recorded wherein accused denied the prosecution case. Further explanation was given that Chauthi left cows and buffaloes in their field who damaged the crop. On this some hot words were exchanged and also abusive words hurled by Chauthi on Kamla. On hearing this, Natholi son of Kamla slapped Chauthi out of annoyance. In the evening, members of the complainant party-Babulal, Ram Singh, Sitaram, Sheoji, Chauthi etc. came to the house of the accused persons, armed with weapons and started beating them causing simple and serious injuries. (3). In defence, two witnesses Dr. Dashrath Singh Rajawat, DW1, and Dr. Hari Mohan, DW2, were examined. (4). In the evening, members of the complainant party-Babulal, Ram Singh, Sitaram, Sheoji, Chauthi etc. came to the house of the accused persons, armed with weapons and started beating them causing simple and serious injuries. (3). In defence, two witnesses Dr. Dashrath Singh Rajawat, DW1, and Dr. Hari Mohan, DW2, were examined. (4). After hearing the final submissions, learned Judge convicted and sentenced the appellants as indicated hereinabove and acquitted co-accused persons namely Chiranji, Natholi, Smt. Rama, Girraj and Smt. Kamla. (5). We have heard the submissions and have carefully gone through the evidence adduced at the trial. (6). It has been contended by the learned senior counsel for the appellants that according to prosecution case, scuffle started between accused party and Chauthi and thereafter on hearing hue and cry deceased Prabhu and others came to his rescue and in this duration some injuries might have been received by Prabhu, as such the deceased was an intervenor and it is clear that there was no intention or motive of appellants to kill Prabhu. It was further contended that accused appellants Ram Khiladi and Mota, along with nine others, also sustained grievous and simple injuries. Learned trail judge also found that it was a case of free fight, occurred on the spur of the moment without there being any motive of causing death to Prabhu. Thus, the case does not travel beyond S. 304 Part II IPC. (7). On the other hand learned Public Prosecutor supported the impugned judgment and urged that prosecution has been able to prove that accused appellants inflicted several injuries and on account of these injuries deceased Prabhu succumbed. Thus the conviction recorded by the Trial Court does not require any interference. (8). We have considered the rival submissions and carefully scanned the material on record. (9). To appreciate the above submissions, it would be appropriate to first analyse the medical evidence. After the incident, which took place on 29.8.1993, deceased Prabhu was brought to Jaipur and while he was admitted in SMS hospital, Dr. Sheetal Jain, PW21, on 30.8.1993 examined his injuries, which were as below:- ``1. Stiched wound 5 cm in length having 5 stitches placed of left eye brow --Simple/kind of weapon could not be ascertained 2. Stiched wound 4 cm in length having 4 stitches placed on rt. side parietal region OR/xray-Blunt 3. Bleeding from both nostrils present OR/xray-Blunt 4. Bleeding from Rt. Stiched wound 5 cm in length having 5 stitches placed of left eye brow --Simple/kind of weapon could not be ascertained 2. Stiched wound 4 cm in length having 4 stitches placed on rt. side parietal region OR/xray-Blunt 3. Bleeding from both nostrils present OR/xray-Blunt 4. Bleeding from Rt. ear present OR/Op. notes-Blunt 5. Left leg & foot found under Pressure Bendage OR/Op. note- Kind of weapon could not be ascertained (10). Dr. Sheetal Jain in his deposition has stated that injury Nos. 1 and 3 were simple in nature but injury Nos. 1, 2 and 4 collectively, as also injury No. 2 independently, were dangerous to life. (11). During treatment in SMS hospital, Prabhu died on 6.9.1993 and autopsy was conducted on his dead body by Dr. P.C. Vyas, PW17. He found following injuries on the body of deceased Prabhu:- ``1- Stiched wound `U shaped extending from Lt. temporal region going to lt. side occipital region 29 cm long having 32 stitches Lt. eye is black eye. Dried blood seen at Rt. ear opening. 2- Stiched wound 1cm long having one stitch lying 4 cm behind pinna of Lt. ear. 3- Stiched wound 4 cm long having five stitches, Lt. eye brow. 4- Stiched wound 3 cm long having four stitches, present on Rt. Parietal region. 5- Lesion 3x2 cm on Lt. knee cap with healthy granulatry tissues. 6- Swelling at upper 1/3rd of Lt. leg on dissection fracture of Lt. tibia bone seen with antemortem haematoma. 7- Abrasion 2x1 cm with blackish hard scab, on dormsum of Lt. hand. All above mentioned injuries are antemortem in nature. (12). Dr. Vyas deposed that all injuries were ante mortem in nature and opined that cause of death was ``coma due to injuries on scull and brain, which were sufficient to cause death in ordinary course. In cross examination he made it clear that injury No. 1 was due to surgery conducted during the treatment. He further stated that internal injuries were not due to injury Nos. 2 and 3 but it was the collective result of injury Nos. 1 and 4. He further stated that he is not in a position to opine that in the absence of injury No. 1 deceased could have survived or not. (13). Thus, from the statement of Dr. Vyas, PW17, it is clear that death of Prabhu was homicidal one. (14). 1 and 4. He further stated that he is not in a position to opine that in the absence of injury No. 1 deceased could have survived or not. (13). Thus, from the statement of Dr. Vyas, PW17, it is clear that death of Prabhu was homicidal one. (14). Case of the prosecution rests on the testimony of eye witnesses PW1 Babulal, PW2 Badri, PW6 Ram Singh, PW7 Sheoji Ram and PW23 Prasadi. They categorically stated that accused party started scuffle with Chauthi when he was returning home after grazing his animals and on hearing hue and cry deceased Prabhu and others went there and intervened to save Chauthi. From their evidence, it further transpires that during this process of intervention, in the heat of passion, accused appellants Kishan, Ram Khiladi and Mota inflicted injuries to Prabhu with `Dhariya and `Gandasi. (15). Thus, on a close look at the evidence of the eye witnesses, we are satisfied with the findings of the Trial Court about the involvement of the accused persons in the incident. (16). Now the question remains for consideration is that in the facts and circumstances of the case, what offence has been committed by the appellants? (17). It is significant to note that learned trial judge also observed that first of all scuffle started between accused party and Chauthi and when deceased Prabhu and others went at the spot on hearing hue and cry to save Chauthi, during this intervention injuries were inflicted by the appellants on deceased Prabhu. It was also observed by the trial judge that there was no premeditation to kill Prabhu. Thus, having analysed the ocular evidence, medical evidence and other material on record, we find– (i) that first of all scuffle flared up between accused appellants and Chauthi (ii) that on hearing hue and cry of Chauthi, deceased Prabhu and others came and tried to intervene and during this process, some injuries were received by deceased Prabhu. (iii) that quarrel started suddenly and there was no motive or intention to kill the deceased. (iv) that in this quarrel eleven persons of accused party, including appellant Mota and Kishna, sustained grievous and simple injuries. (v) that deceased Prabhu succumbed to injuries after eight days, in the SMS hospital. (18). (iii) that quarrel started suddenly and there was no motive or intention to kill the deceased. (iv) that in this quarrel eleven persons of accused party, including appellant Mota and Kishna, sustained grievous and simple injuries. (v) that deceased Prabhu succumbed to injuries after eight days, in the SMS hospital. (18). There is no evidence to show that injuries were inflicted on the body of deceased Prabhu with any motive or intention to kill him or to cause bodily injuries which were likely to cause death but only it can be inferred that accused appellants inflicted injuries with the knowledge that bodily injuries were likely to cause death. In this circumstances, we are of the firm view that offence under S. 302/34 IPC is not made out against any of the appellants and it is scaled down to one under S. 304 Part II read with S. 34 IPC. (19). For the reasons we partly allow the appeal of appellants Kishna, Ram Khiladi and Mota and instead of section 302/34 IPC we convict them under S. 304 Part II read with S. 34 IPC. Since all the three appellants have remained in custody for a period of more than five years and eight months, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. The appellants Kishna, Ram Khiladi and Mota, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (20). The impugned judgment stands modified as indicated above.