JUDGMENT : VINIT KUMAR MATHUR, J. The instant criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellants against the judgment and order of conviction dated 15.12.2018 passed by learned Additional Sessions Judge, Bhinmal District Jalore in Sessions Case No. 12/2012 (CIS No. 70/2014) whereby the accused appellants have been convicted under section 302/34 IPC and sentenced to undergo life imprisonment with a fine of Rs. 10,000/- each, in default of payment of fine further to undergo two months rigorous imprisonment. 2. The facts in brief are that a written report (Ex. P.1) was filed by PW2 Jema Ram @ Jemta Ram on 19.02.2012 at about 2:00 pm at the Station House Officer, Jaswantpura District Jaiore. It was stated inter-alia that his sibling/brother Narayan Ram used to go to Sundhamata for labour work on a daily basis but he did not return on 18.02.2012. He was informed in the next morning i.e. 19.02.2012 that the dead body of his brother Narayan Ram was lying near Rajpura at Sundha Mata road. He along with other residents of Shivgarh went to the spot and saw that in front of the well belonging to Shrawan Singh, some clothes were lying and wherefrom at a distance of about 600 feet in front of the gate of Parbat Singh Rao, the dead body was lying. The dead body was devoid of clothes and was in a very bad condition. He suspected that some unknown person had murdered his brother as his clothes were stained with blood and burn marks as well were visible on the dead body of the deceased. 3. On this report, a formal F.I.R. No. 09/2012 was registered at Police Station Jaswantpura District Jalore for the offence under Sections 302 IPC against the accused-appellants. 4. After conclusion of the investigation, the police filed a charge-sheet against the accused-appellants for the offence under section 302/34 IPC. 5. Learned trial court framed, read over and explained the charges for the offences under Sections 302, 302/34 of IPC to the charge-sheeted accused, who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 23 witnesses and documents Ex. P/1 to Ex. P/35 were exhibited in support of its case. Three documents i.e. Ex. D/1 to Ex. D/3 were exhibited in defence. 7. 6. During the trial, the prosecution examined as many as 23 witnesses and documents Ex. P/1 to Ex. P/35 were exhibited in support of its case. Three documents i.e. Ex. D/1 to Ex. D/3 were exhibited in defence. 7. The accused-appellants were examined under Section 313 of Cr.P.C. and they were confronted with the evidence adduced against them during the course of trial to which they denied and stated that they were falsely implicated and that they were innocent. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellants for the offence under section 302/34 IPC vide judgment dated 15.12.2018. Hence this appeal. 9. We have heard learned counsel for the appellants and the learned Public Prosecutor. 10. Learned counsel for the appellants submitted that there is no eye witness in the present case and it is a case of circumstantial evidence. The prosecution has failed to complete the chain of circumstances in such a fashion which may indicate that the accused-appellants were the only persons who were involved in the commission of the offences alleged. There is no direct evidence against the accused-appellants. The foot moulds collected from the place of the incident did not tally with those of the accused-appellants. Alternatively, the counsel for the appellants submitted that since the appellants and deceased Narayan Ram were in an inebriated condition and, there was exchange of fists and kick blows between them on a trivial issue resulting into the death of the deceased. There was absolutely no intention for the appellants to cause fatal injuries to the deceased. Therefore the learned trial court was not justified in convicting the accused-appellant for the offence under section 302/34 IPC. The counsel submitted that preset case does not travel beyond offence under section 304 Part-II IPC and he? Therefore, prayed that conviction of the accused-appellants should be converted from offence under Sec. 302 IPC to one under Sec. 304 Part-II IPC. 11. Per contra, learned Public Prosecutor supported the judgment dated 15.12.2018 passed by learned trial court and submitted that the prosecutions had been able to prove the allegations leveled against the accused-appellant beyond all reasonable doubts. 12. Therefore, prayed that conviction of the accused-appellants should be converted from offence under Sec. 302 IPC to one under Sec. 304 Part-II IPC. 11. Per contra, learned Public Prosecutor supported the judgment dated 15.12.2018 passed by learned trial court and submitted that the prosecutions had been able to prove the allegations leveled against the accused-appellant beyond all reasonable doubts. 12. He further submitted that PW1 Narayan Singh and PW7 Shrawan who were working at the hotel of Gulab Singh had seen from a distance that there were some heated altercations taking place between the appellants and the deceased and the appellants were assaulting the deceased with fists and kicks. He further submitted that there is no reason to disbelieve the statements of PW1 Narayan Singh and PW7 Shrawan. 13. Learned Public Prosecutor further submitted that PW3 Chintu Singh who was working as a salesman on the liquor shop stated that deceased Narayan Ram and the appellants purchased liquor from the liquor shop and went towards Sundhamata. He submitted that PW1 Narayan Singh and PW7 Shrawan are the witnesses of last seen where the deceased was seen alive in the company of the accused-appellants. In the morning, dead body was recovered from vicinity of their hotel near Sundhamata. PW10 Dr. Sohan Raj Mehta also stated the cause of death as the injuries sustained by the deceased on the vital organs of the body of the deceased and postmortem report (Ex. P/9) shows the cause of death as shock (rupture of vital organs liver anti spleen). He, therefore, submitted that the learned trial court was absolutely correct in convicting the accused-appellants for the offences alleged in the present case. 14. We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 15.12.2018 impugned herein. <<<<<<< >>>>>>>PW1 Narayan Singh slated that he and nephew of the deceased Shrawan (PW7) used to work together at the hotel of Gulab Singh. The deceased Narayan Ram also used to work as labour in the temple. After getting food from his hotel, the deceased went away. He was carrying two quarters of country made liquor. At that time, the appellants were standing outside the hotel. The deceased Narayan Ram also used to work as labour in the temple. After getting food from his hotel, the deceased went away. He was carrying two quarters of country made liquor. At that time, the appellants were standing outside the hotel. While other customers were taking food in the hotel, he heard a hue and cry and went towards the source of the noise with Shrawan In the darkness, they saw three persons standing. The appellants assaulted deceased Narayan Ram for liquor and money. They came back to their hotel and on the next morning, they were informed that dead body of Narayan Ram was lying on the way leading to Sundha Mata tempte. They went to the place of incident and saw the dead body of Narayan Ram lying in a denuded condition. The Sarpanch informed the police. Nothing significant was elicited during cross examination of this witness so as to doubt the credibility or veracity of the deposition made by him in the examination in chief. PW2 Jenna Ram @ Jema Ram being the brother of the deceased stated that mental condition of the deceased was not sound and he used to go for labour work to Sundhamata for last ten years. His nephew Shrawan who used to work on the hotel of Gulab Singh informed him that the dead body of Narayan Ram lying on the Sundha Mata Road and thereafter, they went to the place of incident along with other residents of the village. PW3 Chintu Singh who was working as salesman at the liquor shop located at Rajpura Choraha stated that on the fateful day, Narayan Ram purchased three quarters of liquor and went towards Sundha Mata. He knew the deceased as he used to visit his shop daily. While Narayan Ram was purchasing liquor, the appellants also came there and purchased two quarters and went towards Sundha Mata. PW7 Shrawan (nephew of the deceased) who was working on the hotel of Gulab Singh stated almost on the same lines as deposed by PW1 Narayan Singh. PW10 Dr. Sohan Raj Mehta who conducted autopsy upon the body of the deceased stated that there were fractures in 7th, 8th and 9th rib of the deceased and he described the cause of death to be injuries on the vital organs of the deceased viz-liver & spleen cause by fracture of ribs. PW10 Dr. Sohan Raj Mehta who conducted autopsy upon the body of the deceased stated that there were fractures in 7th, 8th and 9th rib of the deceased and he described the cause of death to be injuries on the vital organs of the deceased viz-liver & spleen cause by fracture of ribs. PW22 Shanker Singh was the investigating Officer who conducted the investigation of the matter and stated that he prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples. He further stated that he completed the investigation under the provisions of law. >>>>>>> 15. The post-mortem report is Ex. P/9 wherein the cause of death is mentioned as shock (rupture of vital organs liver and spleen). 16. We find that statements of PW1 Narayan Singh, PW3 Chintu Singh and PW7 Shrawan clearly reveal that the deceased and the accused-appellants purchased liquor from the liquor shop located at Rajpura Choraha and having consumed liquor, they were in an inebriated condition. The fact that all the three were having heated altercations on some trivial issue is clear from the statements of PW1 Narayan Singh and PW7 Shrawan. In these circumstances, the appellants assaulted the deceased by fists and kicks and in the incident, the deceased Narayan Ram sustained injuries on his internal organs viz liver & spleen associated with fracture of ribs. 17. PW2 Jemta Ram @ Jema Ram (brother of the deceased) in his statement stated that mental condition of the deceased was not sound, therefore, we feel that on some trivial issue, there was heated altercation between the deceased and the appellants. In the heat of passion, the appellants inflicted injuries by fists blows and since all the three persons were not in their normal senses having consumed liquor, unintentional blows were hit by the accused-appellants on the chest region of the deceased which resulted into fracture of ribs associated with rupture of liver and spleen and proved fatal. The fact that there was no external injury is clear from the postmortem report (Ex. P/9) which reflects the cause of death to be injuries on the vital organs of the body (rupture of liver and spleen). From the sequence of events, we are of the opinion that the accused-appellants had no intention to cause death or inflict such injuries to Narayan Ram which were unexceptionally likely to result into his death. P/9) which reflects the cause of death to be injuries on the vital organs of the body (rupture of liver and spleen). From the sequence of events, we are of the opinion that the accused-appellants had no intention to cause death or inflict such injuries to Narayan Ram which were unexceptionally likely to result into his death. It appears that the injuries were inflicted by the accused to the deceased in a bare handed brawl as all the three were in an inebriated condition. Admittedly, no weapon was used in the scuffle as consistently in the statements of the prosecution witnesses, it has been stated that kicks and fists blows were inflicted by the appellants to Narayan Ram. Thus, we are of the firm opinion that the appellants had neither any intention nor any knowledge that by inflicting fist and kick blows to the deceased, they would be causing him such a harm which would definitely result into his death. 18. We are gainfully supported by the judgment of the Hon'ble Supreme Court rendered in the case of Deo Nath Rai v. State of Bihar, Etc Etc, 2018 Cr.L.R. (SC) 272 wherein the Hon'ble Supreme Court has held as under:— <<<<<<< >>>>>>>“9. Looking to the totality of the facts and circumstances of the case and the evidence on record, it is clear that it was only the accused Parsuram Rai who had assaulted Mohan Rai with the help of sword whose assault resulted grievous injury, and the deceased Mohan Rai ultimately succumbed to the said injury during the course of transit to the hospital. The incident had taken place when the deceased was returning from the disputed land and the accused persons were busy in the adjacent field transplanting paddy seedlings from where they saw Mohan Rai crossing their land. There was no premeditation of any kind on the part of the accused to commit the murder of the deceased. However the eye witnesses have deposed that accused - Wakil Rai came and started quarreling with Mohan Rai when other family members also joined. The quarrel not only suddenly erupted but also escalated without any premeditation. As rightly concluded by the High Court, the whole incident was spontaneous and went out of hand that too within short spell of time. 10. The quarrel not only suddenly erupted but also escalated without any premeditation. As rightly concluded by the High Court, the whole incident was spontaneous and went out of hand that too within short spell of time. 10. In the facts and circumstances of the case, though the High Court was justified in altering the conviction of the accused from Sections 302 and 302/149 IPC to Section 304 Part-II IPC, it was not justified in imposing lesser sentence on the accused, particularly on accused - Parsuram Rai, who gave a sword blow on the right shoulder of the deceased - Mohan Rai running up to the chest, which was grievous in nature and because of which Mohan Rai died during the transit to the hospital. In our considered opinion, the High Court ought to have imposed a sentence of 5 years on the accused - Parsuram Rai along with a fine of Rs. 50,000/- and on the other accused, while altering the sentence to the period already undergone, which in this case is approximately 2 years, the High Court ought to have imposed a line ot Rs. 5,000/- on each of the other accused, namely, Wakil Rai, Ramayan Rai, Raj Ballam Rai, Ashok Rai and Sheo Kumar Rai. The conviction and sentence ordered by the High Court in respect of other offences stands confirmed. Since the sentences in respect of the other offences run concurrently, there is no need for the accused to undergo imprisonment in respect of these other offences inasmuch as the sentence imposed on them is already suffered by them. Accordingly the following order is passed: (a) the accused - Parsuram Rai is hereby sentenced to undergo rigorous imprisonment for 5 years for the offence punishable under Section 304 Part-II IPC and also to pay a fine of Rs. 50,000/-, which shall be deposited by him in the trial Court within six months from today. In case of default of payment of fine, he shall further undergo imprisonment for one year. The accused - Parsuram Rai be taken into custody forthwith to serve out the remaining portion of his sentence; (b) insofar as the other accused, namely, Wakil Rai, Ramayan Rai, Raj Ballam Rai, Ashok Rai and Sheo Kumar Rai are concerned, the judgment and order of conviction and sentence passed by the High Court stands confirmed. The accused - Parsuram Rai be taken into custody forthwith to serve out the remaining portion of his sentence; (b) insofar as the other accused, namely, Wakil Rai, Ramayan Rai, Raj Ballam Rai, Ashok Rai and Sheo Kumar Rai are concerned, the judgment and order of conviction and sentence passed by the High Court stands confirmed. However, all these accused are directed to pay a fine of Rs. 5,000/- each, which shall be deposited in the trial Court within eight weeks from today, and in default of payment of fine, all these accused shall undergo rigorous imprisonment for two months; (c) the accused are entitled to the benefit of set-off as provided under Section 428 of the Code of Criminal Procedure; and (d) the amount of fine, as directed above, if deposited, shall be paid to the wife of the deceased - Mohan Rai as compensation.” 19. In the sequence of events, we feel that conviction of the appellants as recorded by the trial Court for the offence under Section 302 IPC cannot be sustained and same deserves to be altered to that under Section 304 Part 11 IPC and the ends of justice would be met, if the sentence of life imprisonment awarded to the accused-appellants is reduced to seven years R.I. for the said offence. 20. Accordingly, the appeal is allowed in part. The judgment dated 15.12.2018 passed by learned Additional Sessions Judge, Bhinmal District Jalore is modified to the extent of converting conviction of the accused-appellants from offence under section 302/34 IPC to that of section 304 Part-II. The accused-appellants are convicted for the offence under section 304 Part-II IPC and sentenced to undergo seven years rigorous imprisonment with fine of Rs. 5000/- each, in default of payment of fine, the appellants shall further undergo two months rigorous imprisonment. Since the appellants have already undergone the sentence of seven years, they are ordered to be released from prison forthwith upon payment of fine, if not wanted in any other case. The record be returned forthwith.