Judgment Narendra Kumar Jain, J.-The learned Additional Sessions Judge (Fast Track) No. 1, Jhunjhunu, vide its Judgment and order dated 05.04.2003, in Sessions Case No. 10/2003 (14/2000) convicted the accused appellants as under:-Name of accused appellant Under Section Imprisonment 1. Hari Prasad304 IPC 323 IPC 10 Years RI and fine of Rs.2000/-; in default of payment of fine, to further undergo additional 2 months SI. One year RI and fine of Rs. 1000/-; in default of payment of fine, to further undergo additional one month SI 2. Nand Lal 323 IPC One year RI and fine of Rs. 1000/-; in default of payment of fine, to further undergo additional one month SI. 3. Vinod Kumar 323 IPC One year RI and fine of Rs. 1000/-; in default of payment of fine, to further undergo additional one month SI 2. Exhibit P-1, written report was lodged by PW-1 Om Prakash at Police Station Khetri, wherein it was alleged that his son Ajay was beaten by the son of Hari Brahmin and on this Hari and his sons, Vinod, Nandu, Arun and his wife Smt. Urmila @ Rajeshwari started to quarrel with his wife Maya. Ajay came at a shop and narrated about the incident. He went and told Hari as to why he is quarreling with Maya. Thereafter, on the instigation of Hari, his sons and wife brought lathis and iron-rod, and Hari inflicted a blow on his head. His wife Maya came to his rescue. On this Hari, his sons and wife started to inflict injuries on the person of Maya, who died at the spot and her dead-body is lying at the place of incident itself . 3. On the basis of above information, an FIR No. 385/99 was registered under Sections 147, 148, 149, 307, 302 and 323 IPC, and investigation commenced. The postmortem of Smt. Maya was conducted on 111.1999 (Exhibit P-23). After completion of investigation the police filed a challan against accused persons as well as Smt. Urmila @ Rajeshwari, on 212.1999 under Sections 147, 148, 302, 307 and 323 read with Section 149, IPC. The trial Court framed charge against the accused Nand Lal, Hari Prasad, Vinod Kumar and Smt. Urmila @ Rajeshwari for the offence under Section 147, 148, 302, 307, and 323 read with Section 149, IPC. The accused persons denied the charge and claimed to be tried. 4. The trial Court framed charge against the accused Nand Lal, Hari Prasad, Vinod Kumar and Smt. Urmila @ Rajeshwari for the offence under Section 147, 148, 302, 307, and 323 read with Section 149, IPC. The accused persons denied the charge and claimed to be tried. 4. The prosecution examined the witnesses PW 1 to PW. 18 and also produced documentary evidence in support of its case. Thereafter the statements of accused persons were recorded under Section 313, CrPC., wherein they stated that a false case has been registered against them. In defence the statement of DW-1 Arun Kumar was recorded. Thereafter the trial Court, after hearing the arguments from both the parties, acquitted all the accused persons from the offence under Section 302, 307, 147, and 148, IPC. The accused Smt. Urmila @ Rajeshwari was acquitted from the charge under Section 323, IPC also. However, the accused appellants were convicted and sentenced as mentioned above. Being aggrieved with the same, the present appeal has been preferred before this Court. 5. The learned Counsel for the accused appellants contended that the learned trial Court has committed a serious illegality in convicting the accused appellant Hari Prasad for the offence under Section 304, IPC. His contention is that from the contents of the FIR itself as well as from the statements of the prosecution witnesses it is clear that the incident took place because of the quarrel in between children of accused Hari Prasad and complainant Om Prakash. There was no intention at all to commit death of Smt. Maya. He contended that even as per prosecution case itself , deceased Maya came in rescue of Om Prakash and thus there was no intention of causing death of Smt. Maya. His contention is that as per the statement of Om Prakash (PW-1), eye witness, and other witnesses it is clear that the injuries on the person of deceased Maya were inflicted by all the accused persons, namely, Hari Prasad, Nandlal, Vinod and Smt. Urmila @ Rajeshwari. Smt. Urmila @ Rajeshwari has been acquitted from all the charges. As per postmortem report as well as statement of PW 9 Dr. B.D. Sharma, there were only two injuries found on the person of deceased Maya. Smt. Urmila @ Rajeshwari has been acquitted from all the charges. As per postmortem report as well as statement of PW 9 Dr. B.D. Sharma, there were only two injuries found on the person of deceased Maya. The allegation of causing these injuries has been attributed to all the accused persons, therefore, it is very difficult to convict the accused Hari Prasad for the offence under Section 304, IPC. He referred to the statement of PW 10 Gokul Chand, who stated that for about five minutes all accused persons inflicted injuries on the person of deceased Maya but the postmortem report Exhibit P-23 as well as the statement of PW 9 Dr. B.D. Sharma show that there was no other injury on the other part of body of deceased Maya except two injuries on her head, therefore, the statements of the prosecution witnesses are liable to be discarded. He also referred to the contents of FIR as well as the statement of PW. 1 Om Prakash wherein it has been alleged that all the five persons inflicted injuries on the person of deceased Maya. PW 1 Om Prakash was confronted with the written report Exhibit P-1 and he reiterated that the injuries on the head of deceased were inflicted by accused Hari Prasad, Vinod, Rajeshwari and Arun. He also referred the statements of PW. 11 Seema, PW. 12 Mohan Kumar and PW. 13 Satish Kumar, who have stated that all the accused persons inflicted injuries on the persons of deceased Maya whereas the said allegations are not corroborated with the medical evidence, therefore, their testimony is liable to be discarded and the accused appellant Hari Prasad is entitled to be acquitted or at the most he can be convicted for the offence under Section 325, IPC, for inflicting grievous injury on the person of deceased Maya. 6. The learned Counsel for the accused appellants, in support of his contentions, relied upon the decision in (1) Ram Lal vs. Delhi Administrator 1973 (3) SCC 466 , (2) Ninaji Raoji Boudhan & Anr. vs. State of Maharastra, 1976 CrLR (SC) 128, (3) Mehrooda and Ors. vs. State of Rajasthan, 1983 RCC 75. However, I find that these citations are not applicable in the facts and circumstances of the present case. 7. vs. State of Maharastra, 1976 CrLR (SC) 128, (3) Mehrooda and Ors. vs. State of Rajasthan, 1983 RCC 75. However, I find that these citations are not applicable in the facts and circumstances of the present case. 7. The learned Public Prosecutor contended that as per the postmortem report it is clear that the injuries on head were ante-mortem in nature. The cause of death has been mentioned as head injury in the postmortem report. He also referred the statement of PW 9 Dr. B.D. Sharma and other eye witnesses in the present case, and contended that the learned trial Court has already acquitted the accused appellants of the charge under Section 302, IPC and their convinction is only under Section 304 and 323 IPC, therefore, no interference is called for in the impugned Judgment of the trial Court. 8. I have considered the rival submission and examined the Judgment as well as the record of the trial Court. 9. The prosecution witnesses have stated that the accused persons came with lathis and iron-rod, and inflicted injuries on the person of Om Prakash and when Smt. Maya came to his rescue then she was beaten by Hari Prasad and his son and wife. PW. 10 Gokul Chand stated that Hari Prasad and Vinod Kumar inflicted head injuries on the person of deceased Maya. In his cross-examination, he specifically stated that Hari Prasad inflicted head injury on the person of deceased Maya. PW 11 Seema, PW 12 Mohan Kumar and PW 13 Satish Kumar have also stated that Hari Prasad inflicted head injury on the person of deceased Maya. Therefore, from the above referred statements, it is clear that head injury on the person of deceased Maya was inflicted by accused appellant Hari Prasad. As per postmortem report Exhibit P-23 there were two injuries on the head. PW-9 Dr.B.D. Sharma, who conducted the postmortem, proved the report Exhibit P-23. He stated in his Court statement that in the ordinary course of nature, the injuries were sufficient to cause death. The trial Court has convicted the accused Hari Prasad under Section 304, IPC but has not mentioned as to whether Part I Part II of Section 304 IPC is attracted in the present case. 10. From the analysis of the prosecution evidence it appears that deceased Maya came in rescue of Om Prakash (PW . The trial Court has convicted the accused Hari Prasad under Section 304, IPC but has not mentioned as to whether Part I Part II of Section 304 IPC is attracted in the present case. 10. From the analysis of the prosecution evidence it appears that deceased Maya came in rescue of Om Prakash (PW . 1) and thereupon she was beaten, therefore, this fact goes to show that there was no intention of causing death of Smt. Maya. The intention of causing death could have been for Om Prakash but not for Smt. Maya, hence the appellant Hari Prasad cannot be convicted under Part I of Section 304, IPC. However, from the nature of injuries sustained by deceased Maya, which are said to be sufficient in the ordinary course of nature to cause death as per the statement of PW . 9 Dr.B.D. Sharma. and further that Smt. Maya died at the spot, it is proved that it was in the knowledge of the accused Hari Prasad that his act of inflicting injury is likely to cause death. Therefore, the accused appellant Hari Prasad is liable to be convicted under Part II of Section 304, IPC and not under Section 325, IPC, as contended by the learned Counsel for the accused appellants. So far as conviction of accused appellant Hari Prasad under Section 323, IPC, is concerned, the same has not been challenged, hence the same is upheld. 11. So far as accused appellants Nand Lal and Vinod Kumar are concerned, they have been convicted under Section 323 IPC to one year RI and fine of Rs. 1000/-; in default of payment of fine, to further undergo one month SI. The learned Counsel for the accused appellants contended that both the accused persons have remained in custody for about one year and their sentence of fine was suspended by this Court on 18.08.2004; therefore, his prayer is that their sentence of fine may be set aside. 12. So far as sentence of imprisonment of accused Hari Prasad under Section 304 Part II, IPC, is concerned, I find from the record that accused appellant was arrested on 111.1999 and he has already undergone the sentence of imprisonment of about 6 years 3 months. 12. So far as sentence of imprisonment of accused Hari Prasad under Section 304 Part II, IPC, is concerned, I find from the record that accused appellant was arrested on 111.1999 and he has already undergone the sentence of imprisonment of about 6 years 3 months. The offence under Section 304 Part-II, IPC is punishable with imprisonment of either description for a term which may extend to ten years or with fine, or with both. After considering all the facts and circumstances of the case, I am of the view that ends of justice would met if accused appellant Hari Prasad is sentenced under Section 304 Part II, IPC to a period of imprisonment already undergone by him. 13. In view of the above discussion, I allow this appeal in part. The conviction of accused appellant Hari Prasad awarded by the trial Court under Section 304, IPC is altered to under Section 304 Part II, IPC and he is sentenced to a period of imprisonment already undergone by him i.e. about 6 years 3 months. 14. The conviction and sentence of imprisonment of accused appellants Hari Prasad, Nand Lal and Vinod Kumar under Section 323, IPC, are maintained but their sentence of fine is set aside. 15. The accused appellant Hari Prasad is in judicial custody, therefore, it is directed that he may be released forthwith, if his custody is not required in any other case.