JUDGMENT 1. - This jail appeal by accused Kalla son of Jawali is directed against the judgment of the learned Sessions Judge, Alwar dated September 19, 1975, whereby he convicted the accursed-appellant under Section 304 Part II I.P.C. and sentenced him to five years' rigorous imprisonment. He was also convicted under Section 323 IPC and sentenced to one month's simple imprisonment. Both the substantive sentences were ordered to run concurrently. The other accused tried with him were convicted into Section 323 IPC. 2. On April 13, 1975 the she buffaloes of Girraj and Gordhan strayed into the threshing floor of PW 1 Raghunath, who took them to the house of Giriaj and Gordhan and reprimanded them. A wordy warfare took place between them, hearing which Charan Singh (since deceased) elder brother of Raghunath appeared on the scene of occurrence and inquired about the cause of quarrel. At that stage accused Girraj exhorted his associates to finish Charan Singh and Raghunath. The four accused Nannu, Kalla, Girraj and Ghuda inflicted injuries on the person of Raghunath and Charan Singh as well as Bhagwan Singh. First information report Ex. P/9 of this occurrence was lodged at the Police Station, Kathumar on April 13, 1975 at 6.35 p m. by Raghunath. Charan Singh later on succumbed to his injuries in the hospital on April 15, 1975 at 5.20 a.m. The autopsy on the dead body of Charansingh was performed by P.W. 7 Dr. Surendra Chitkara, who noticed the following injuries on his person:- Lacerated wound 21/4" x 1/4" x 1/4" at the frontal region of scalp along with fracture of the underlying frontal bone. Direction of the wound was anterio-posterior. In the opinion of the doctor the cause of death was fracture of the frontal bone of the skull leading to haematoma and compression of brain. The same doctor clinically examined Raghunath and Bhagwan Singh. The injury reports of Raghunath & Bhagwan Singh are Ex P/5 and Ex P/6 respectively. The police after usual investigation submitted a challan against the four accused including the appellant, who were ultimately tried by the learned Sessions Judge, Alwar. 3. The learned Sessions Judge placing reliance on the statements of PW 1 Raghunath, PW 2 Bhagwan Singh, PW 3 Raghubir Singh, PW 4 Harbhan corroborated by the post-mortem report and the injury reports Ex. P/5, Ex P/6 and Ex. 3. The learned Sessions Judge placing reliance on the statements of PW 1 Raghunath, PW 2 Bhagwan Singh, PW 3 Raghubir Singh, PW 4 Harbhan corroborated by the post-mortem report and the injury reports Ex. P/5, Ex P/6 and Ex. P/8 as well as the first information report held the accused appellant guilty of the offence punishable under Section 304 Part II IPC as well as under Section 323 IPC and sentenced him as mentioned above. Hence this appeal. 4. From the statements of PW 1 Raghunath, PW 2 Bhagwan Singh, PW 3 Raghubir Singh and PW 4 Harbhan and the statement of PW 7 Dr. Surendra Chitkara it stands amply proved that Charan Singh and his associates sustained injuries at the time and place alleged by the prosecution and as the learned counsel for the appellant has not challenged the finding of the trial court on this point, it need not detain me more on this point. The learned counsel for the appellant urged that in the first information report Ex. P/9 injuries on the head of Charan Singh were assigned to accused Kalla and Nannu. On post-mortem it was revealed that Charansingh sustained only one injury on his head. In order to reconcile the statements of the eye-witnesses with the medical evidence the prosecution witnesses made improvement in their statements before that Court and stated that Kalla inflicted head injury on the person of Charan Singh. They were confronted with the first information report as well as their statements recorded in the police during investigation, but instead of explaining the contradictions PW 1 Raghunath, PW 2 Bhagwan Singh and PW 3 Raghubir Singh had the audacity to state that such a statement was not made by them in the police. PW 4 Harbhan Singh was also confronted with his police statement on the same point. He also failed to explain the contradiction. He developed the queer answer and stated that he had objected to the mariner of recording the statement by the police, but there is nothing on record to support his statement. The investigating officer has failed to make such a suggestion. He also failed to explain the contradiction. He developed the queer answer and stated that he had objected to the mariner of recording the statement by the police, but there is nothing on record to support his statement. The investigating officer has failed to make such a suggestion. The above noted improvement in the statements of the eye-witnesses at the stage of trial is a purposeful one and as such neither of the two accused can be held responsible for the fatal injury caused to Charan Singh (since deceased) and the accused-appellant is entitled to be acquitted of the charge punishable under Section 304 Part II IPC. 5. The conviction and sentence awarded to the accused-appellant under Section 304 Part II IPC are set aside and his conviction and sentence under Section 323 IPC are maintained 'the accused-appellant has already remained in jail for nearly a period of two years after the date of his conviction by the trial court and sentence awarded to him by the trial court under Section 323 IPC is one month's simple imprisonment. Thus he has already under gone the sentence awarded to him under Section 323 IPC. He shall be released forthwith, if not required in any other case. 6. The appeal is partly accepted as indicated above.Appeal partly accepted. *******