Honble SHARMA, J.–Chhitar Lal @ Sita Ram and Madan Lal, the appellants herein, were put to trial before the learned Additional Sessions Judge (Fast Track) No. 1 Jhalawar, who vide judgment dated April 9, 2002 convicted and sentenced them as under:- Chhitar Lal @ Sita Ram u/S. 302 IPC: To suffer imprisonment for life and fine of Rs. 500/- default to further suffer simple imprisonment for three months. u/S. 307/34 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 300/-, in default to further suffer simple imprisonment for three months. u/S. 326/34 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 200/-, in default to further suffer simple imprisonment for three months. u/S. 324/34 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. Madan Lal: u/S. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months. u/S. 307 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 300/-, in default to further suffer simple imprisonment for three months. u/S. 326 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 200/-, in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently. (2). The prosecution story is woven like thus:- On November 30, 1998 Kanwar Lal (PW. 3) submitted a written report (Ex. P. 1) at Police Station Jhalawar to the effect that on the said day around 1.30 PM his brother Ramkalyan came from Kota in truck No. RPF 9336, after unloading the truck at Patan he came to Bheemsagar Dam. He asked for Gutka from Sampat Bheel, at that time Chhitar Lal hurled filthy abuses. When Ramkalyan forbade. Chhitar Lal threw stone which hit the glass of truck. When Ramkalyan got down from the truck Chhitar Lal, Madan Lal, Heeralal, Gopal, Ramchandra, Kanchan Bai and Pushpa Bai assaulted him. Chhitar Lal inflicted gandasi blow. Madan inflicted kulhari blow, Heeralal and Gopal inflicted lathi blows. Ramchandra inflicted gupti blow. Kanchan Bai and Pushpa Bai also gave beating. When Mohanbai intervened she was also beaten up. The injured was removed to hospital. Police Station Jhalawar registered a case and investigation commenced. Necessary memos were drawn. Statements of witnesses were recorded. Chhitar Lal inflicted gandasi blow. Madan inflicted kulhari blow, Heeralal and Gopal inflicted lathi blows. Ramchandra inflicted gupti blow. Kanchan Bai and Pushpa Bai also gave beating. When Mohanbai intervened she was also beaten up. The injured was removed to hospital. Police Station Jhalawar registered a case and investigation commenced. Necessary memos were drawn. Statements of witnesses were recorded. During the course of investigation injured Ramkalyan succumbed to his injuries. Dead body was subjected to autopsy. The appellants were arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Jhalawar. Charges under Sections 147, 148, 302/149, 307/149, 326/149 and 323/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Sec. 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). We have pondered over rival submissions and with the assistance of learned counsel scanned the record. (4). A look at the post mortem report (Ex. P. 20) demonstrates that death of deceased Ramkalyan was homicidal. Following ante mortem injuries were found on the dead body:- 1. Incised wound 5 x 1.0 cm x scalp tissue deep on mid occipital parietal region oblique 2. Bruise 30 x 2.5 cm on the Rt. side front of chest vertical. 3. Bruise 40 x 2.5 cm on the Rt. side back of chest and abdomen vertical. 4. Bruise 10 x 2.5 cm on the Rt. lat. Side of lower part of chest vertical. In the opinion of Dr. R.D. Verma (PW. 20) the cause of death was coma brought about as a result of injury to skull and brain. As regards injuries No. 2 to 4 autopsy surgeon deposed that they could be caused as a result of fall. (5). Injured Mohan Bai (PW. 6) vide injury report (Ex. P. 30) received following injuries:- 1. Incised wound 10 x 0.5 cm x BD on Rt. parietal region of skull. 2. Incised wound 5 x 0.5 cm x on left temporal region of skull. 3. Bruise with diffuse swelling 10 x 3 cm on Rt. forearm at 1/3 Ext. surface. 4. Injured Mohan Bai (PW. 6) vide injury report (Ex. P. 30) received following injuries:- 1. Incised wound 10 x 0.5 cm x BD on Rt. parietal region of skull. 2. Incised wound 5 x 0.5 cm x on left temporal region of skull. 3. Bruise with diffuse swelling 10 x 3 cm on Rt. forearm at 1/3 Ext. surface. 4. Lacerated wound 1 x 1 cm with diffuse swelling on Lat. surface of Rt. leg. (6). The prosecution examined Kanwar Lal (PW. 1), Bajrang Lal (PW. 2), Smt. Mohan Bai (PW. 6) and Radhey Shyam (PW. 10) as eye witnesses of the occurrence. Kanwar Lal (PW. 1) in his deposition stated that on the day of incident he was sitting at tea-stall of Satya Narain and his brother Ramkalyan came from Kota in the truck While the truck was taking turn, Chhitar Lal, who was under intoxication of liquor, threw stone on truck due to which glass was broken. His brother demanded money for the same from Chhitar Lal who took him to his father where Chhitar Lal, Madan Lal, Heera Lal Pushpa Bai and Kanchan Bai started beating him. Chhitar Lal inflicted axe blow on the head of Ramkalyan, Madan Lal also inflicted axe-blow on his head thereafter all accused gave beating to him. His wife Mohan Bai and sister Shanti Bai tried to save Ramkalyan but they were also beaten up. (7). Bajrang Lal (PW. 2) deposed that after Chhitar Lal inflicted Gandasi blow on the head of Ram Kalyan, he (Bajrang Lal) rushed to his house. Mohan Bai (PW. 6) however stated that Madan was armed with axe and he inflicted blow on the head of Ram Kalyan whereas Chhitar caused injury on his head. When she demanded explanation Mada gave axe blow on her head. Radhey Shyam (PW. 10) stated that Madan inflicted axe blow on the head of Ramkalyan. (8). Salient features appear from the record are as under:- (i) The accused and complainant party were neighbours. (ii) The incident occurred on a trivial matter of breaking glass of the truck by Chhitar Lal when he was under intoxication of liquor. (iii) Deceased sustained only one injury on head and informant Kanwar Lal (PW. 1) and Bajrang Lal (PW. 2) admitted the said injury to appellant Chhitar Lal. (iv) Injury on head sustained by Mohan Bai (PW. 6) as been attributed to appellant Madan Lal. (iii) Deceased sustained only one injury on head and informant Kanwar Lal (PW. 1) and Bajrang Lal (PW. 2) admitted the said injury to appellant Chhitar Lal. (iv) Injury on head sustained by Mohan Bai (PW. 6) as been attributed to appellant Madan Lal. (9). Having analysed the evidence adduced at the trial by the yardstick of probabilities, its intrinsic worth and animus of witnesses we find that the prosecution is only able to establish beyond reasonable doubt that the incident occurred on a trivial matter of breaking of glass of the truck, thereafter the appellant Chhitar Lal @ Sita Ram under intoxication of liquor inflicted solitary blow with axe on the head of deceased and did not repeat the same. Injuries No. 2, 3 and 4 sustained by the deceased were simple in nature and according to autopsy surgeon, could be caused as a result of fall on the hard surface. There is absolutely no evidence whatsoever to attribute any common intention that activated both the appellants to join and commit the crime. Therefore, their conviction with the aid of Section 34 IPC cannot be sustained. In the facts and circumstances of the case charge under Section 302 IPC is not established against appellant Chhitar Lal, at best the case can be one where appellant Chhitar Lal might be said to have caused a bodily injury as is likely to cause death and he can be convicted under Section 304 Part I. Therefore, there is every justification to alter the conviction recorded under Section 302 into one Section 304 Part I IPC. Charge under Section 307/34 IPC is not established against him and he stands acquitted of the said charge. Looking to the facts and circumstances of the case that the appellant Chhitar Lal has already remained in confinement for more than seven years the imposition of sentence to the period already undergone by him in confinement would sufficiently meet the requirements of justice and to this extent the judgment of the court below shall stand altered and modified. (10). Having closely scanned the testimony of Mohan Bai (PW. 6) we find that appellant Madan Lal although inflicted blow on the person of Mohan Bai but there is nothing on record to show that he made attempt to kill her. (10). Having closely scanned the testimony of Mohan Bai (PW. 6) we find that appellant Madan Lal although inflicted blow on the person of Mohan Bai but there is nothing on record to show that he made attempt to kill her. The investigating officer did not recover any cutting instrument at his instance, in such a situation ware of the view that charge under Section 326 IPC is established against him. Since he did not share common intention with Chhitar Lal he cannot be convicted with the aid of Section 34 IPC. Looking to the fact that the appellant Madan Lal is of 70 years of age and nothing has been brought to our notice that after release on bail he acted in any manner prejudicial to law and order it would not serve ends of justice to now send him back to jail and we reduce his sentence to the period already undergone by him in confinement but he is directed to pay fine in the sum of Rs. 30,000/- in addition to sentence. In Habbalappa Dundappa Katti vs. State of Karnataka (2002) 10 SCC 197 their Lordships of Supreme Court held as under:- (Para 5) ``The occurrence took place as early as in 1986. The appellant ..acquitted by the trial Court vide order dated 11.9.1987 and after their conviction for offences under Sections 326/149, 147 and 148 IPC by the High Court on 9.6.1992, they were directed to be released on bail vide our order dated 28.8.1992. In our opinion keeping all these factors in view it would serve the ends of justice if the appellants are not now sent back to jail, as indeed nothing has been brought to our notice to show that after their release on bail they have acted in any manner prejudicial to law and order. We, therefore, reduce the substantive sentences of imprisonment of the appellants to the period already undergone by them for the various offences for which they have been convicted but we sentence each one of them to pay fine in addition to the sentence of imprisonment already undergone. (11). For these reasons, we dispose of instant appeal in the following terms:- (i) We partly allow the appeal of appellant Chhitar Lal @ Sita Ram and instead of Section 302 we convict him under Section 304 Part I IPC. (11). For these reasons, we dispose of instant appeal in the following terms:- (i) We partly allow the appeal of appellant Chhitar Lal @ Sita Ram and instead of Section 302 we convict him under Section 304 Part I IPC. Looking to the fact that the appellant has remained in confinement for a period of more than seven years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit him of the charge under sections 307/34, 326/34 and 324/34 IPC. The appellant Chhitar Lal @ Sita Ram, who is in jail, shall be set at liberty forthwith, if not required to be detained in confinement, in any other case. (ii) We partly allow the appeal of appellant Madan Lal and acquit him of the charges under Sections 302/34, 307 and 324 IPC. We however maintain his conviction under Section 326 IPC. Looking to the fact that the appellant Madan Lal is of 70 years of age and nothing has been brought to our notice that after release on bail he acted in any manner prejudicial to law and order it would not serve ends of justice to now send back him to jail and reduced the sentence to the period already undergone but he is directed to pay fine in addition to sentence. (vide Habbalappa Dundappa Katti vs. State of Karnataka (2002) 10 SCC 197) Therefore the appellant Madan Lal is sentenced to the period already undergone by him in confinement and he is directed to pay fine in the sum of Rs. 30,000/- in addition to the sentence of imprisonment already undergone by him in confinement. The amount of fine Rs. 30,000/- shall be deposited with the Deputy Registrar (Judicial) within a period of three months from today. Till deposit of the amount of fine by Madan Lal his bail bonds shall not be discharged. On deposit of the amount of fine the same shall be paid to the injured Mohan Bai. (iii) The impugned judgment of learned trial Court stands modified as indicated above.