Honble SHARMA, J.–Udai Singh @ Rajendra Singh @ Raju Bana and Ummed Singh, the appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) No.2 Kota, who vide judgment dated February 20, 2003 convicted and sentenced them under section 302 IPC to suffer imprisonment for life and fine Rs.3000/-, in default to further suffer three months imprisonment. (2). It is the prosecution case that on January 10, 2001 around 9 PM while Mohan Lal (now deceased) proceeded with Babu Lal Gurjar to his house, Shambhu Singh opened fire at Mohan Lal and appellants Udai Singh and Ummed Singh inflicted injuries with lathi and Kuntia on the person of Mohan Lal, who died on the way while taken to the Hospital. Satya Narayan (Pw.1) submitted written report (Ex.P-1) at police station Bapawar Kalan where case under section 302/34 IPC was registered and investigation commenced. Since Shambhu Singh died during investigation, charge sheet was filed only against the appellants. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.2 Kota. Charge under section 302 in the alternative 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 30 witnesses. In the explanation under Sec.313 Cr.P.C., the appellants claimed innocence. Five witnesses in defence were examined. On hearing final submissions learned trial Judge convicted and sentenced the appellants as indicated herein above. (3). We have heard the rival submissions and scanned the material on record. (4). Death of Mohan Lal was undeniably homicidal in nature. As per autopsy report (Ex.P-13) following ante mortem injuries were found on the dead body:- 1. Incised wound 7 x 1cm x bone deep on vertex of scalp. 2. Incised wound 8 x 2cm x muscle deep on back of neck Lt. side. 3. Stitched wound 8cm long on Lt. temporal region of scalp. 4. Abrasion (3 in No.) 2 x 1cm to 2 x 2cm Rt.cheek & zygomatic region. 5. Abrasion 4 x 1/4cm Rt. forearm on 1/3 portion. 6. Abrasion 1 x 1cm Rt. knee cap. 7. Abrasion 1/4 x 1/4cm Rt. leg L.1/3 antly. 8. Abrasion 3 x 3cm back of chest scapular region (Lt.) 9. Contusions (3in No.) 4 x 2cm to 2 x 2cm on back of chest Lt. side. Post mortem injuries: 1. 5. Abrasion 4 x 1/4cm Rt. forearm on 1/3 portion. 6. Abrasion 1 x 1cm Rt. knee cap. 7. Abrasion 1/4 x 1/4cm Rt. leg L.1/3 antly. 8. Abrasion 3 x 3cm back of chest scapular region (Lt.) 9. Contusions (3in No.) 4 x 2cm to 2 x 2cm on back of chest Lt. side. Post mortem injuries: 1. Cut 17 long transverse on center of forehead. 2. Post mortem removal of skin 15 x 8cm on center of fronto parietal region skin flap lying separately The cause of death was shock as a result of ante mortem injury to spleen with cumulative effect of head injury. (5). Babu Lal (Pw.3) in his deposition stated that on his pursuation deceased accompanied him upto his house to make appellant Udai Singh understand. He deposed thus:- ^^eSa uoy fdkksj dks tkurk gwaA NBs efgus dh 10 rkjh[k dh ckr gS eSa mlds ;gka x;k FkkA ogka uoy fdkksj] /keZflag] gfj jke vkSj mn; flag Fks o kjkc ih jgs FksA eqÖks dgk fd eknjpksn ;gka D;k ysus vk;k gSA xkyh mn; flag us nh Fkh vkSj essjs FkIIkM ekj nhA nks pkj FkIIkM ekjrs gh eSa eksgu ds ?kj ij Hkkx dj x;kA ogka eksgu vkSj enu Fks eSaus mudks crk;k fd esjs bUgksaus ns ikMh gSA ;s eqÖks ?kj rd NksMus vkSj mudks leÖkkus vk;sA** (6). Informant Satya Narain (Pw.1) alleged that fire opened by Shambhu Singh hit on the forehead of his father, whereas as per post mortem report no gun shot injury was found on the forehead of the deceased. Satya Narain as per his own statement reached to the spot after the incident occurred. He stated thus:- ^^eSa tc igqapk rks eSaus ns[kk fd esjs firkth ds lkFk Hkh ÖkxMk gks x;k gS vkSj muds Hkh pksVs vkbZ gSA (7). Dr.Ashok Mundra (Pw.7), who conducted autopsy on the dead body, deposed that main cause of death was injury to the spleen. In his cross examination he stated that:- ^^pksV ua- 8 o 9 ds dkj.k bl O;fDr dh cka;h rjQ dh lkroha ls nloha ilyh dk ÝasDpj gks x;k Fkk ,oa frYyh Hkh QV xbZ Fkh blfy, buls bl O;fDr dh e`R;q gksuk laHko gSA Injuries No.8 and 9 were abrasion and contusions on the back of chest of scapular region (left side) and because of those injuries ribs got fractured and torn spleen. (8). (8). Salient features of the case are as under:- (i) Deceased himself had gone to the place of incident to persuade appellant Udai Singh not to quarrel with Babu Lal (Pw.3). (ii) Accused Shambhu Singh who opened fire at the deceased died in the course of investigation. (iii) Informant Satya Narain (Pw.1) admitted that when he reached to the spot he saw that his father had sustained injuries. (iv) Cause of death of the deceased was injury to spleen. (v) Injuries attributed to appellants were on the left side of back of chest and because of these injuries ribs got fractured and torn spleen. (9). In view of fact situation of the case, it is difficult to hold that the appellants intended to cause that particular injury to spleen. However, under the circumstances the appellants must be attributed to have knowledge that by dealing such blows they were likely to cause the death of deceased in which case the offence is one punishable under section 304 Part II and not under section 302 IPC. Learned trial Judge did not properly appreciate the nature of injuries sustained by the deceased and committed error in convicting and sentencing the appellants under section 302 IPC. (10). For these reasons, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal and instead of section 302 IPC, we convict the appellants Udai Singh @ Rajendra Singh @ Raju Bana and Ummed Singh under section 304 Part II IPC. Looking to the fact that the appellants have already remained in continuous custody for a period of more than five years, we sentence them to the period for which they have already remained in confinement. The appellants Udai Singh @ Rajendra Singh @ Raju Bana and Ummed Singh, who are in jail, shall be set at liberty forthwith, if not required to be detained, in any other case. (ii) The impugned judgment of learned trial court stands modified as indicated above.