P. Diwaker, J.

1. Present appeal is directed against the judgment dated 29.2.2012 passed by the Additional Sessions Judge, Gariyabandh in Sessions Trial No.32/2011 convicting the accused/appellants for the offence punishable under Section 302/34 of the Indian Penal Code (for short 'IPC') and sentencing each of them to undergo RI for life and fine of Rs.100/-, in default to undergo SI for 5 days.

2. As per case of the prosecution, on 21.3.2011 at about 5.00 a.m. in the morning there was a scuffle between the appellants and Sop Singh (since deceased) and it is alleged that both the accused/appellants after knocking the deceased down gave beating to him by hands & fists which resulted into his instantaneous death. Further case of the prosecution is that at the time of incident both the accused/appellants and the deceased had consumed liquor. As the distance between the police station and the village where the incident had taken place is more than 48 kilometer, FIR (Ex.P-8) was lodged on 22.3.2011 at 5.05 p.m. by Smt. Siya Bai (PW-1). Inquest on the body of deceased was conducted on 23.3.2011 vide Ex.P-1. Body of the deceased was sent for post-mortem examination which was conducted by Dr. R.K. Shrimali (PW-11) and he noticed fracture in left temporal bone & 4th 5th & 6th ribs; echomatic patch of 8”x6” on the chest & abdomen, lacerated wound of 1 x 0.5”x deep to cranium, lateral to left arbitral region. The cause of death assigned by the autopsy surgeon was shock due to injury to vital organs and the death was homicidal in nature. Statements of witnesses were recorded in the course of investigation.

3. After investigation, charge sheet against the accused/appellants was filed under Section 302/34 IPC and accordingly the charge was framed against them by the trial Court. The prosecution in order to bring home the charge levelled against the accused examined 12 witnesses in all. Statements of accused were recorded under Section 313 of Cr.P.C. in which they abjured their guilt and pleaded innocence & false implication.

4. After hearing counsel for the parties, the trial Court by the impugned judgment convicted and sentenced the accused/appellants in the manner as described above.

5. We have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

6. Counsel for the appellant submits that in the facts of the present case the appellants could be convicted under Section 325/34 IPC but in no circumstances they could be convicted under Section 302/34 IPC because there was no intention to cause death of deceased on the part of the appellants nor such a knowledge can be so attributed to them. He further submits that the appellants are in jail for the last more than 6 years & 3 months, therefore, while converting their conviction under section 325/34 IPC, they may be sentenced to the period already undergone by them.

7. On the other hand, counsel for the respondent-State supports the impugned judgment and submits that the manner in which the victim has been assaulted, the intention on the part of the appellant to cause his death is writ large.

8. Smt. Siya Bai (PW-1), wife of the deceased, is the eye-witness of incident and lodger of FIR (Ex.P-8). She has stated that house of accused/appellants is situated near her house. On the previous night of the incident an altercation took place between the accused/appellants and her husband. Next morning at 5 a.m. the accused/appellants assaulted her husband (deceased) near her house by hands and fists as a result of he died on the spot. She has further stated that she went to the police station and lodged report of the incident. In the cross-examination she has admitted that report was lodged by her at the instance of Kotwar and that there was no previous enmity between the accused and her husband.

9. Sudhuram (PW-2) is the witness of Inquest (Ex.P-1), however, he did not support the prosecution case and turned hostile.

10. Ram Singh (PW-3) is