JUDGMENT By Court-This appeal arises out of the judgment dated 29.04.2003 passed by Shir Rakesh Ranjan Verma, Sessions Judge, in S.C.No.64 of 2002 convicting the appellant No.1 Biren Bhandari @ Krishna Bhandari under Sections 302/325 I.P.C. and sentencing him to undergo R.I. for life for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for a period of 6 months for the offence under Section 325 I.P.C. and appellant No.2 Munna Bhandari convicted under Section 302/323 I.P.C. sentencing him to undergo to R.I. for life for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for two months for the offence under Section 323 I.P.C. Both the sentences were directed to run concurrently. 2. The prosecution case in short is that Doli Devi (P.W.5) lodged her Fard Bayan on 7.3.2000 at 4.30 p.m. in the Hospital before the police that at about 3 p.m. when she was standing in front of her house, the appellants came and started abusing her. Appellant No.1 Biren Bhandari @ Krishna Bhandari tried to drag her in his house which was protested by her on which he assaulted her with “Lathi” due to which she fell down. Then appellant No.2 Munna Bhandari asked him to kill, on which Biren Bhandari assaulted her by iron rod on her head. Appellant No.2 Munna Bhandari also assaulted her by “Lathi” on her hand. When she cried for help then her sister's son Lakhu Sardar (deceased) came to rescue her then the appellants assaulted him also by “Lathi” and “Rod” on his head due to which he fell down on the ground then her daughter ( P.W. 4) also came to rescue her but she was also assaulted by “Lathi” on her right hand. On alarm when the villagers assembled, the appellants fled away. The injured were taken to Hospital where they were being treated. The cause of incident was that at about 11 a.m., there was quarrel between the parties over the quarrel of children. 3. Mr. K.P. Deo, learned Counsel appearing for the appellants submitted that there was no intention to kill the deceased, who intervened during quarrel between the appellants and the informant and that in the F.I.R. it is alleged that Appellant No.2 also assaulted the deceased but in their evidence P.W. 4 & 5 alleged assault only against the appellant No.1. 4. Counsel for the State supported the impugned judgment. 4. Counsel for the State supported the impugned judgment. 5. In the F.I.R. it was alleged that both the appellants assaulted the deceased by “Lathi” and Iron Rod but the injured witnesses P.W. 4 & 5 alleged that appellant No.1 Biren Bhandari @ Krishna Bhandari assauted the deceased by iron rod. It further appears that Doli Devi (P.W. 5) sustained one simple injury caused by rod and a fracture caused by hard and blunt substance which was found to be grievous in nature. 6. The main question is whether the appellants had intention to kill the deceased or not. The allegation in the F.I.R. is that both the appellants assaulted the deceased by “Lathi” and Rod when he intervened during quarrel between the informant and the appellants over the quarrel between the children. But P.W. 5, who is an injured witness did not say that appellant No.2 Munna Bhandari assaulted the deceased. Similarly P.W. 4, who is another injured witness did not say that appellant No.2 assaulted the deceased. 7. After carefully going through the records and hearing the parties, we are inclined to convert the conviction of Appellant No.1 (Biren Bhandari @ Krishna Bhandari) into under Section 304 I.P.C. We uphold his conviction under Section 325 I.P.C. 8. As it is doubtful whether the appellant No.2 Munna Bhandari also assaulted the deceased on his head, he is given benefit of doubt so far as under Section 302 I.P.C. is concerned. However, his conviction under Section 323 I.P.C. is upheld. 9. Appellant No.1 is said to be in jail for more than 9 years. Appellant No.2 Munna Bhandari having remained in jail for about 3 months has already served the sentences. Therefore, the appellants are sentenced to the period already undergone by them. 10. This appeal is disposed of with the modification in conviction and sentence as aforesaid. Appellant No.1 is directed to be released forthwith, if not wanted in any other case. Appellant No.2 is discharged from his bail bonds.