JUDGMENT Kaul, J. - Bharosey Appellant was convicted by the Sessions Judge of Gonda u/s 304 of the Indian Penal Code and sentenced to ten years' rigorous imprisonment and a fine of Rs. 200. In default of payment of fine he was to undergo further rigorous imprisonment for two years. He comes up The appeal. 2. The prosecution story as found established at the trial was as follows. 3. The Appellant had two brothers, Mahadeo and Badlu. Lale was their cousin. Bharosey was keeping Mahadeo's wife (his own sister-in-law) as his mistress. When Badlu died two years before the occurrence, which has given rise to this appeal Bharosey was anxious that his widow, Mst. Lekhraji, should marry Mahadeo, whom he had deprived of his wife. Lekhraji, however, would not agree. She on the other hand preferred Lale. A panchayet was held at which she declined to marry Mahadeo and expressed her preference for Lale. Ultimately she married Lale in Asarh previous to the occurrence which resulted in his (Lale's) death. This, it was said, caused considerable ill-feeling between Lale and Bharosey. On the 7th of October, 1945, Lale who belonged to Tirkolia, went to Tulsipur bazar to make some purchase. There he met his son Holi and Badlu's son Thakur. Holi was a boy of 7 and Thakur is 10 years old. They had gone to their school in Tulsipur bazar. Meeting them there he asked them to wait till he finished his purchases so that all of them might return home together. Lale purchased some salt, tobacco, gur and cloth. As he was returning home in the evening with the two boys, he saw Bharosey sitting on the culvert near village Gandwa which is midway between Tirkolia and Tulsipur bazar. As Lale approached the culvert, Bharosey set upon him and gave him a number of blows with a danda. Lale fell down upon the ground and became unconscious. But before he lost consciousness he and the two boys who were accompanying him raised an alarm. Two persons, Chunni and Bachchu, who were at a distance of about 150 paces from the culvert heard the alarm and ran up. They shouted at the accused, who was blocking Lale's way and was brandishing his lathi. On seeing them approach Bharosey gave Lale another blow on the head and ran away into an arhar field. Two persons, Chunni and Bachchu, who were at a distance of about 150 paces from the culvert heard the alarm and ran up. They shouted at the accused, who was blocking Lale's way and was brandishing his lathi. On seeing them approach Bharosey gave Lale another blow on the head and ran away into an arhar field. Lale, as already stated, became unconscious Chunni Lal and Bachchu sent the two boys, Holi and Thakur, to the mukbia of Gandhwa, They went and informed the mukhia (Lachchmi Narain) of what had happened. He arranged for a cot and a lantern, came to the place where Lale was lying and took him to his house. This was some-time between 8 and 9 p.m. A man was sent to call the chaukidar. He could not be found. But shortly after Dularey and Ghurhu two chaukidars came to the mukhia's house at about midnight. By this time Lale had expired. Sometime after Holi and Thakur were sent with Dularey Chaukidar of Tirkolia and Chunni Lal to police station Tulsipur (a mile and a half distant), where a first information report was recorded at 1 a.m. This report was made by Chunni Lal. The facts stated above were mentioned in the report. Bharosey was arrested in his own village (Tirkolia) the next day. He was in due course tried and convicted as already stated. 4. He pleaded not guilty at the trial and stated that he could not have killed his own cousin Lale. He denied that there was any ill-feeling between him and the deceased, or that be was anxious that Mst. Lekhraji should marry Mahadeo. When asked by the Magistrate at the preliminary inquiry whether he could give any reason why the witnesses deposed against him, he stated that he could not. In the Court of Sessions he said that the witnesses gave evidence against him under the influence of Lachchmi Narain. He added that Lachchmi Narain who was the mukhia and Thekadar of the village wanted to give the holding of Badlu to Mst. Lekhraji, but he opposed this as it was his brother's holding. Accordingly Lachchmi Narain got annoyed with him and threatened to get him implicated in some case. 5. Three points were raised by the Appellant's Counsel at the hearing of the appeal: 1. That the evidence given by the prosecution witnesses was inconsistent with the medicial evidence, 2. Lekhraji, but he opposed this as it was his brother's holding. Accordingly Lachchmi Narain got annoyed with him and threatened to get him implicated in some case. 5. Three points were raised by the Appellant's Counsel at the hearing of the appeal: 1. That the evidence given by the prosecution witnesses was inconsistent with the medicial evidence, 2. that there was no motive for Bharosey to murder Lale; and 3. that there was a serious omission, in the proceedings at the trial inasmuch as it was put to Bharosey Appellant whether he was keeping Mahadeo's wife as his mistress. 6. Great stress was laid by the Appellant's Counsel on the medical evidence which showed that among the injuries received by the deceased (Lale) there were two incised wounds one was 2-1/2x1/2" on the right side of the back with bone exposed and fractured and the second was l-3/4x 1/2" deep down to bone close to injury No. 4. 7. To me there appears to be nothing inconsistent between the medical evidence and the evidence of the prosecution witnesses examined at the trial. They stated the Appellant Bharosey had attacked Lale with a lathi. It is not impossible that some blade or other small piece capable of inflicting an incised wound was attached to the lathi which was not noticed by the witnesses in the dark. Besides the two incised wounds there were found on the person of Lale three contusions and one contused wound. This make it clear that a blunt weapon was used. As according to the eye-witnesses of the occurrence it was only Bharosey who attacked Lale, and he used a lathi, it mast be taken that all the injuries found upon the person of the deceased were inflicted with a lathi. I have explained above how it was not impossible for Bharosey to have inflicted those injuries with a lathi. The first point, therefore must fail. 8. As regards the question of motive, there is ample evidence on the record to prove that Bharosey wanted Mst. Lekhraji to marry his brother Mahadeo. Lale, however, succeeded in winning her affection and she subsequently married him. In these circumstances it is not difficult to conceive that Bharosey may have thought of getting rid of Lale. 9. 8. As regards the question of motive, there is ample evidence on the record to prove that Bharosey wanted Mst. Lekhraji to marry his brother Mahadeo. Lale, however, succeeded in winning her affection and she subsequently married him. In these circumstances it is not difficult to conceive that Bharosey may have thought of getting rid of Lale. 9. A grievance was made of the fact that it was not distinctly put to Bharosey at the trial whether he was keeping Mahadeo's wife as his mistress. I consider it was unnecessary to do so as the denial of such a hypothesis was implicit in the answer to the last question put to him by the Sessions Judge in his examination u/s 342 of the Code of Criminal Procedure. 10. It appears that at the trial of Bharosey the evidence of Dr. S.D. Mathur, Civil Surgeon, Gonda who made a post mortem examination of the dead body of Lale, and prepared a report, recorded by the Committing Magistrate, was tendered in evidence. In his deposition before the Magistrate (Ex. 9) he specially referred to the post mortem examination report prepared by him, Ex. 8. He gave his evidence with reference to that report. Thus both the deposition and the post mortem examination, report which formed part of it, were brought on the record. This was presumably done u/s 509 of the Code of Criminal Procedure, But Dr. Mathur was called at the trial, and a few questions were put to him as regards the incised wounds 'found upon the person of Lale. Unfortunately, however, the Sessions Judge omitted to put to him other joints concerning which he had deposed in the Committing Magistrate's Court. It was contended by the Appellant's Counsel that as Dr. Mathur was called at the trial, there was no room for the application of Section 509 of the Code of Criminal Procedure, and his deposition recorded by the Committing Magistrate, or the post mortem examination report which formed part of that deposition, could not be legally admitted in evidence. Section 509 of the Code of Criminal Procedure is a special provision forming an exception to the ordinary rule of evidence that the statements of a parson who is alive and is not called is not evidence. It was intended to be confined to cases in which a medical witness was not called at the trial. Section 509 of the Code of Criminal Procedure is a special provision forming an exception to the ordinary rule of evidence that the statements of a parson who is alive and is not called is not evidence. It was intended to be confined to cases in which a medical witness was not called at the trial. It cannot be extended to cases where the medical witness is called and examined. It must, therefore, be held that Exs. 8 and 9 were illegally admitted in evidence. If they are excluded iron consideration there is no evidence left as to the cause of Lale's death. Whatever we can gather as regards the injuries inflicted upon him must be from the evidence of the witnesses called at the trial. In the absence of definite evidence as to the cause of Lale's death, he cannot be held guilty u/s 304 of the Indian Penal Code. It is however, clear from the evidence of the prosecution witnesses that the injuries inflicted by the Appellant upon Lale were caused with a lathi. We further know that these injuries were of a character which endangered life. This much is clear from the evidence of the prosecution witnesses examined at the trial. Bharoseys conviction, therefore, u/s 304 of the Indian Penal Code and the sentence passed upon him under that section must be set aside. I do so accordingly, and instead convict him u/s 325 of the Indian Penal Code of causing grievous hurt to Lale and sentence him to seven years' rigorous imprisonment. The appeal is allowed to the extent indicated above.