1. This appeal is directed against the judgment of conviction and order of sentence dated 2.6.1997 and 3.6.1997 respectively passed by Shri Prashant Kumar. 4th Additional Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial No. 112 of 1991, convicting the appellants under Section 302/34, IPC and sentencing them to RI for life.

2. The prosecution case in short is as follows:

Risal Laguri (PW 2) lodged a fardbeyan on 17.2.1989 that there was a quarrel between his mother and the mother of appellant No. 1 over a basket for collecting cow dung. Thereafter, appellant No. 1 came to the house of informant and abused his mother. He gave a fist blow to his sister-in-law. His father and uncle tried to rescue her, whereupon appellant No. 1 caught his father, who was rescued by his brother. Thereafter appellant No. 1 brought a danda and started assaulting informants father and his uncle. In the meantime, his brother, appellant No. 2, came with spade and caused injury on his fathers head. Thereafter, appellant No. 1 took spade from him and assaulted informants uncle also and fled away. His father fell on the ground and ultimately died and his uncle was grievously injured.

3. Appellants were charged under Sections 302/34 and 307/34, IPC to which they pleaded not guilty. They were acquitted under Section 307/34, IPC but were convicted under Section 302/34, IPC.

4. Out of six prosecution witnesses, five are eye-witnesses PWs 1, 2, 3, 4 and 6. PW 5 is the doctor, who conducted postmortem on deceased-Birsa Laguri.

5. It is submitted on behalf of the appellants that the occurrence took place due to quarrel and there was no intention to kill and therefore appellants cannot be held for the offence under Section 302/34, IPC.

6. On close scrutiny of the evidences brought on the record, we find that the prosecution has been able to prove the factum and manner of occurrence so far as deceased is concerned.

7. The question, however, is whether the appellants had intention to kill the deceased

8. It appears from the medical evidence that the cause of death was single sharp cutting injury on the head of the deceased. Two small abrasions were also found near left knee and left shoulder. The doctor opined that the injuries were caused by sharp cutting weapon and the cause of death was shock produced by injuries inflicted on head, which was sufficient to cause death in ordinary course of nature.

9. It appears that there was a single blow by Kudal on the head of the deceased. Only two minor abrasions were found on knee and shoulder. The occurrence took place after quarrel between the ladies over a basket. Nothing has been brought on the record by the prosecution to show that the appellants were having the intention to kill the deceased. It might be that they had knowledge that such injury on head is likely to cause death.

10. In view of the discussions made above, we hold that the conviction of the appellants under Section 302/34 of the Indian Penal Code cannot be sustained. Accordingly, their conviction and sentence under Section 302/34 of the Indian Penal Code are set aside. However, on the basis of the evidence on record, we hold that the prosecution has been able to establish the case against the appellants for the offence under Section 304, Part-II/34 of the Indian Penal Code. Accordingly, the appellants are convicted thereunder.

11. So far as the sentence is concerned, since the appellants have remained in custody for more than nine years, as stated by Mr. A.S. Dayal, in our opinion, the ends of justice will be met if the appellants are sentenced to the period already undergone by them in custody. The appellants, who are in custody, are set at liberty. if not wanted in any other case.

12. With this alteration in the and modification in the sentence, this appeal is dismissed. Appeal dismissed.