JUDGMENT 1. - This appeal has been preferred by Kara and Chandariya, who have been convicted of offences under section 304 Part II I P.C. and under Section 304 Part II read with Section 34 Indian Penal Code respectively by the learned Sessions Judge, Bhilwara and each one of them has been sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 300/- or in default of payment of fine to undergo further rigorous imprisonment for three months. 2. Briefly stated the prosecution case is that on April 2, 1973 at about 1 or 130 in the night Kara appellant demanded return of his money from Chhotu in a street in the town of Bhilwara on which the latter replied that he had given the same to the brother of the accused. Narain and Chandariya were also presentation that occasion. Chhotu and Kara started grappling with each other and when Chhotu tried to escape, Chandariya and Narain caught hold of him and Kara appellant stabbed Chhotu in the chest with a knife. Chhotu cried aloud and on hearing his cries Raghubir Singh and Ram Narain constables, who were on patrolling duty in the area on that night came to the spot and when they reached the place of occurrence they found Narain, Kara and Chandariya going away on bicycles, while the dead body of Chhotu was lying on the ground bleeding. Raghubir Singh then lodged the first information report in the Kotwali at Bhilwara, where a case under section 302/34 Indian Penal Code was registered and the investigation began. Accused Kara was arrested and a blood-stained knife was recovered from him and his clothes, which are also blood-stained, were seized by the police. Thereafter the other two accused namely, Narain and Chandariya were also arrested and after completing the investigation, the police filed a challan against the three accused persons in the court of Munsiff Magistrate, Bhilwara, who committed them to stand their trial before the Sessions Judge, Bhilwara. The learned Sessions Judge after holding a trial convicted and sentenced the two accused, Kara and Chandariya as mentioned above, while Narain accused was acquitted by him. 3. The prosecution story is supported by Ram Kishan PW 4, who was an eye-witness of the occurrence. He has clearly stated that Kara stabbed Chhotu in his chest with a knife. The learned Sessions Judge after holding a trial convicted and sentenced the two accused, Kara and Chandariya as mentioned above, while Narain accused was acquitted by him. 3. The prosecution story is supported by Ram Kishan PW 4, who was an eye-witness of the occurrence. He has clearly stated that Kara stabbed Chhotu in his chest with a knife. According to this witness, Narain and Chandariya had caught hold of the deceased Chhotu by his arms. However, in this respect he was confronted with his police statement recorded under section 161 Cr. P. C. in which he did not state that Narain or Chandariya had held the deceased Chhotu by his arms. He further stated that Narain and Chandariya had grappled with Chhotu and then Kara took out a knife from the pocket of his trousers and thrust the same in the chest of Chhotu, The statement of this witness is substantially corroborated by the testimony of Raghubir Singh PW 2 and Ram Narain PW 1, who have stated that they reached the place of occurrence on hearing the cries of Chhotu deceased and they saw three persons, namely Narain, Kara and Chandariya running away on bicycles. They also found the dead body of Chhotu lying on the ground and he was bleeding from his chest. Arjun Singh PW 9, who was the Investigating Officer, has stated that he was posted as S. H. O., police station, Bhiiwara at the relevant time and that after receiving the first information report Raghubir Singh constable, he went to the spot and found the dead-body of Chhotu lying there in a pool of blood and after preparing the site plan and the inquest memo, he sent the dead-body of Chhotu for post-mortem examination. PW 1 Badami Lal, Head Constable who arrested accused Kara stated that he recovered as blood-stained knife from the right hand pocket of the trousers of accused Kara, which was about 9" long and that he prepared recovery memo Ex. P. 8. Dr. G.S Lodha conducted the post-mortem examination of Chhotu deceased and he found an oblique incised wound on his chest communicating upto the right ventricle of the heart which was cutting the skin, fascia intercostal muscles and the 9th and 10th ribs (left side) at the cartilages portion and had also cut the pericardium. The cut in the heart was long and deep. Dr. The cut in the heart was long and deep. Dr. Lodha was of the view that the aforesaid injury was caused by a sharp instrument. According to his opinion, the cause of death was shock due to profuse bleeding on account of the aforesaid injury cutting the heart (right ventricle). Thus it is well established that Chhotu died of an injury caused by a sharp instrument which had cut the skin muscles, pericardium and the 9th and 10th ribs and had also pierced into the heart, cutting the left ventricle partially and had entered the right ventricle as well. It is also clear from the evidence of PW 4 Ram Kishan that it was Kara appellant who had inflicted the fatel blow to Chhotu deceased with a knife. Raghubir Singh PW 2 and Ram Narain PW 1 found Kara running away immediately after the occurrence along with Narain and Chandariya. From the aforesaid evidence there is no doubt that Kara appellant was responsible for causing the fatal blow which resulted in the death of Chhotu and he has been rightly convicted by the learned Sessions Judge under Section 304 Part II Indian Penal Code 4. In respect of Chandariya appellant, the learned Sessions Judge has made a distinction in his case from that of Narain accused on the basis of a question that was put to Ram Kishan PW 4 in his cross-examination, to which the witness replied that in his police statement he had stated that Narain had caught hold of Chhotu, but he could not state as to why that fact was missing from his police statement. In the police statement of Ram Kishan Ex. Dl, he neither stated that Narain had caught hold of Chhotu, nor he mentioned the name of Chandariya in that respect. Thus the case of Narain and Chandariya stood on the same footing and there could be no distinction between the cases of these two accused persons. It appears that Ram Kishan tried to make some improvement in his statement before the Sessions Court by stating that Chandariya and Narain had caught hold of the arms of Chhotu, while he did not say anything in this respect in his police statement. The omission of this fact from the earlier statement of Ram Kishan recorded under section 161 Cr. The omission of this fact from the earlier statement of Ram Kishan recorded under section 161 Cr. P. C. certainly casts doubt as to whether Narain and Chandariya had caught hold of the arms of Chhotu deceased at the time when Kara stabbed him in the chest. The evidence on record establishes the presence of Narain as well as Chandariya at the place of occurrence, but merely by their presence it cannot be presumed that they had a common intention along with Kara to commit the alleged offence. I see no reason to distinguish the cases of Narain and Chandariya and if the learned Sessions Judge thought it proper to give Narain the benefit of doubt, in my opinion Chandariya appellant also deserves to be dealt with in the same manner. There is no other evidence except that of Ram Kishan, which has been referred to by me above to connect Chandariya with the commission of the offence in question. I therefore, hold that Chandariya appellant is also entitled to the benefit of doubt, as the prosecution has failed to prove beyond reasonable doubt as to whether any offence was at all committed by the appellant Chandariya. 5. In the result, while I uphold the conviction and sentence awarded to Kara appellant and dismiss his appeal, I allow the appeal of Chandariya, appellant and set aside his conviction. Chandariya is acquitted of all charges levelled against him, giving him the benefit of doubt. Appellant Chandariya is on bail and need not surrender. The bail bonds submitted by him are hereby cancelled. *******