JUDGMENT B.R. GAVAI, J. :- The appellants have approached this Court being aggrieved by the Judgment and Order delivered by the learned Additional Sessions Judge in Sessions Trial No.319 of 2000 thereby convicting appellant no. 1 for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.3,000/- ; in default to suffer rigorous imprisonment for a period of six months. Accused nos. 2 to 5 were convicted for the offence punishable under Section 325 r/w. 34 and 323 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- each, in default to suffer rigorous imprisonment for two months for the offence punishable under Section 325 r/w. 34 of the Indian Penal Code and for the offence punishable under Section 323 r/w. 34 of the Indian Penal Code, they were sentenced to suffer rigorous imprisonment for a period of two months. 2. The prosecution case, in brief, is as under: That the accused persons and the victim and the deceased are residents of village Khushalpur. On 26.1.2000 - on the Republic Day, at about 7.00 a.m. when the complainant Uday Dhote was proceeding for answering the natures call, accused no.1 Jaiprakash was standing in the door of his house. At the same time, Baba Kashiram Dhote, who is a member of Gram Panchayat was proceeding towards school for attending a Flag hoisting. At that time, accused Jaiprakash gave a slap to Baba. Therefore, there was an exchange of words amongst Jaiprakash and Baba. Complainant Uday had asked accused Jaiprakash as to why he had beaten Baba. However, Jaiprakash rushed towards complainant Uday. At that time, accused nos. 2 and 3, who are brothers of accused no.1 and accused nos. 4 and 5, who are nephew of accused no.1, came from the house of Jaiprakash with sticks. Accused no.1 had also brought a gupti from his house and rushed towards complainant Uday along with the gupti. 3. Thereafter, complainant Uday had gone to his house. Accused nos. 1 to 5 attacked Dr. Ramrao Dote, Baba Dhote, Nitin Kothe and Gangadhar Kothe with sticks and gupti. Accused no.1 Jaiprakash also assaulted Gangadhar Kothe with gupti on his neck. 4. 3. Thereafter, complainant Uday had gone to his house. Accused nos. 1 to 5 attacked Dr. Ramrao Dote, Baba Dhote, Nitin Kothe and Gangadhar Kothe with sticks and gupti. Accused no.1 Jaiprakash also assaulted Gangadhar Kothe with gupti on his neck. 4. On the basis of complaint of Uday (PW-2), crime no.16 of 2000 for the offence punishable under Section 147, 148, 149, 324 and 302 of the Indian Penal Code was registered against the accused. During the investigation, accused no.6 Shakuntalabai was also added as an accused. At the conclusion of the trial, the Investigating Officer filed a charge sheet against accused nos. 1 to 6 before the learned Judicial Magistrate, First Class, Narkhed. Since the case was exclusively triable by the Court of Session, it came to be committed to the learned Sessions Court. During pendency of the trial, accused no.6 Shakuntalabai died and as such, the case was abated against her. 5. The learned trial Judge framed charge for the offences punishable under Sections 147, 148, 302 r/w. Sections 149 and 324 r/w. Section 149 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. 6. Subsequently, additional charge for the offence punishable under Section 324 r/w. Section 149 of the Indian Penal Code also came to be framed. 7. At the conclusion of the trial, the learned trial Judge acquitted all the accused of the offences punishable under Sections 147, 148, 324 r/w. Section 149 r/w. Section 34 of the Indian Penal Code. Accused nos. 2 to 5 were also acquitted of the offence punishable under Section 302 of the Indian Penal Code. However, the appellants/accused came to be convicted for the offences, as aforesaid. 8. Mr. M.R. Daga, learned Counsel appearing on behalf of the appellants submitted that the witnesses - on the basis of whose evidence conviction is recorded are interested witnesses and as such, the conviction on the basis of evidence of such witnesses would not be sustainable. The learned Counsel, however, further submitted that, in any case, insofar as accused no.1 is concerned, conviction u/s. 302 of the Indian Penal Code would not be tenable. The learned Counsel further submits that insofar as rest of the accused are concerned, they have no criminal antecedents and at the stage of admission of the appeal, they were released on bail. The learned Counsel further submits that insofar as rest of the accused are concerned, they have no criminal antecedents and at the stage of admission of the appeal, they were released on bail. He submitted that after they are released on bail, they have not misused their liberty and said accused are living peacefully along with the victims in the said village. The learned Counsel, therefore, submits that the said accused be released on probation on executing a bond of good conduct and behaviour. 9. Ms K.S. Joshi, learned A.P.P., on the contrary, submits that the prosecution has proved the case beyond reasonable doubt. She submits that there are various eye witnesses attributing specific role to the appellants/accused and as such, the appeal is without merit and hence, it is liable to be dismissed. 10. With the assistance of leamed Counsel for the appellants and the learned A.P.P., we have scrutinized the evidence on record. 11. It will be relevant to consider the evidence of Dr. Ramrao Ramji Dhote (PW1). He states that on 26.1.2000, at about 6.45 a.m. he had gone to School for flag hoisting ceremony. He states that he heard the noise of quarrel from the village. When he saw towards the village, he saw that a quarrel was going on in front of house of accused no. 1 between Uday Dhote i.e. his son, Baba Dhote and accused no.1 Jaiprakash. He states that he ran to the spot and told all of them not to quarrel. Thereafter, he brought back Uday and Saba towards his house upto the distance of 20 ft. Accused nos. 2 to 5 brought Ubharies of bullock cart in their hands. Accused no.1 went inside his house and brought gupti. Mother of accused no.1 namely Shakuntalabai followed accused no.1 while abusing. She instigated her son to beat Uday and Saba. Saba seeing that accused no.1 has brought a gupti, shouted and ran away. Uday also ran away towards the house. However, accused nos. 2 to 5 followed Saba and beat him by Ubharies. He sustained bleeding injuries and fell down. Thereafter, accused no.1 Jaiprakash rushed on the body of Saba with a gupti to beat him. When accused Jaiprakash was trying to assault Saba, he caught hold of hand of accused no.1 and at that time, Saba pushed accused no.1 by kick blows towards back side. He sustained bleeding injuries and fell down. Thereafter, accused no.1 Jaiprakash rushed on the body of Saba with a gupti to beat him. When accused Jaiprakash was trying to assault Saba, he caught hold of hand of accused no.1 and at that time, Saba pushed accused no.1 by kick blows towards back side. Gangadhar Kothe, who was also coming for flag hoisting stopped on the spot. He ran towards accused no.1 Jaiprakash and pulled accused no.1 towards back side saying not to beat Baba. Taking advantage of that moment, Baba rescued and started running. Accused nos. 2 to 5 rushed with Ubharies on the body of Gangaghar and beat him by Ubharies due to which he fell down. Accused no.1 gave blow by gupti on the throat of Gangadhar. There was continuous bleeding from the throat due to that blow. The, accused also assaulted Nitin Kothe who was present on the spot. He further states that the accused persons also assaulted him by Ubhari. Though this witness has been thoroughly crossexamined, nothing'damaging has come in his evidence. 12. Uday Ramraoji Dhote (PW-2) is the complainant. He also supports the version of Dr. Ramrao till the stage of running away from the spot. This witness has also been thoroughly cross-examined, but nothing damaging has come in his evidence. It is further to be noted that the version given by this witness is corroborated by the First Information Report recorded at his instance. 13. Baba Kashirao Dhote (PW-3), who is a person sought to be assaulted by appellant no.1, also supports the version of Dr. Ramrao (PW-1). He states that accused no.1 was trying to assault him with a blow of gupti and he tried to stop that blow by holding his hand. At that time Gangadhar came near him. He told accused no.1 not to quarrel. Accused nos. 2 to 5 rushed to beat Gangadhar. He took advantage of the situation and ran away towards his house. 14. Nitin Pralhadrao Dhote (PW-4) also supports the version of the above witnesses. He specifically states that accused no.1 Jaiprakash, who was beating Baba, ran away towards Gangadhar and gave a blow of gupti on the throat of Gangadhar. This witness has also been thoroughly cross-examined, but nothing damaging has come in his evidence. 15. 14. Nitin Pralhadrao Dhote (PW-4) also supports the version of the above witnesses. He specifically states that accused no.1 Jaiprakash, who was beating Baba, ran away towards Gangadhar and gave a blow of gupti on the throat of Gangadhar. This witness has also been thoroughly cross-examined, but nothing damaging has come in his evidence. 15. It can, thus, clearly be seen that the consistent evidence of these witnesses would go to show that - in a scuffle between witness Baba and appellant no.1 Jaiprakash, when the deceased tried to rescue Baba, appellant no.1 assaulted Gangadhar on his neck. It can, thus, clearly be seen that the prosecution has proved beyond reasonable doubt that it is appellant no.1 who has caused the death of the deceased. However, the question which is required to be considered at this stage is whether the conviction of appellant no.1 under Section 302 of the Indian Penal Code needs to be maintained or altered to a lesser offence. It can be seen from the evidence of prosecution witnesses itself that the scuffle was between Baba and Uday on one hand and the appellants on the other hand. In that scuffle, when the appellant was attempting to assault witness Baba, the deceased came to stop him and in turn, appellant no.1 assaulted him. It is further to be noted that appellant no.1 gave a single blow on the neck of the deceased. It can, thus, clearly be seen that the appellant did not have any intention to cause the death of the deceased. The death of the deceased has occurred without meditation, in the heat of passion and in a sudden fight between the appellant and Baba when the deceased was trying to save Baba. It is further to be seen that, from the evidence brought on record, it cannot be said that appellant no.1 had taken undue advantage or acted in a cruel or unusual manner. We, therefore, find that the present case would fall under exception IV of Section 300 of the Indian Penal Code. In that view of the matter, we find that the conviction of appellant no.1 under Section 302 of the Indian Penal Code would not be maintainable and will have to be altered under Part I of Section 304 of the Indian Penal Code. 16. In that view of the matter, we find that the conviction of appellant no.1 under Section 302 of the Indian Penal Code would not be maintainable and will have to be altered under Part I of Section 304 of the Indian Penal Code. 16. Insofar as rest of the accused are concerned, from the material placed on record, we find that no interference is warranted with the finding of conviction under Sections 323 and 325 of the Indian Penal Code. However, it is to be noted that appellant nos. 2 to 5 have been released on bail and have enjoyed bail for a period of five years. We had requested the learned A.P.P. to take instructions from the Police Station, Jalalkheda as to whether the appellants have misused their liberty. The learned A.P.P., on instructions, states that there are no complaints regarding the appellants having misused their liberty. Two of the appellants out of them are now residing at Nagpur and are not in the village. There are no criminal antecedents against the said appellants. We are also informed that the atmosphere in the village is now peaceful and the appellants and the victims are residing in harmony. In view of this, we find that this is a fit case wherein appellant nos. 2 to 5, instead of requiring them to undergo sentence at once, be released on their entering into a bond to appear and receive sentence when called upon during the period of two years and in the meantime, to keep peace and be of good behaviour. In the circumstances, following order is passed. ORDER The Criminal Appeal is partly allowed. Conviction of appellant no.1 Jaiprakash s/o. Natthuji Dhote under Section 302 of the Indian Penal Code is altered to Section 3041 of the Indian Penal Code. Sentence of imprisonment of life is reduced to seven years rigorous imprisonment. Conviction of appellant nos. 2 to 5 namely Pramod Natthuji Dhote, Subhash Natthuji Dhote, Dilip Krushnarao Barde and Ganesh Krishnarao Barde for the offences punishable under Sections 325, 323 r/w. 34 of the Indian Penal Code and sentence awarded thereof is maintained. However, appellant nos. 2 to 5, instead of requiring to undergo sentences aforementioned, are directed to be released on their executing a bond of Rs.25,000/- each with one solvent surety in the like amount for each of them before the District Probation Officer, Nagpur. However, appellant nos. 2 to 5, instead of requiring to undergo sentences aforementioned, are directed to be released on their executing a bond of Rs.25,000/- each with one solvent surety in the like amount for each of them before the District Probation Officer, Nagpur. They shall appear and receive sentence when called upon during the period of two years and that, in the meantime, they shall keep peace and be of good behaviour. Rest of the order relating to fine etc. is maintained. The bail bonds of accused nos. 2 to 5 stand discharged. Appeal partly allowed.