JUDGMENT - R.A. JAHAGIRDAR, J.:---This appeal has been preferred by the original accused No. 1 who was tried along with three other accused in Sessions Case No. 6 of 1974 for an offence punishable under section 302 and section 302 read with section 34 of the Indian Penal Code. The other three accused were ultimately convicted for the offence punishable under section 323 read with section 34 of the Indian Penal Code and each of them was sentence to suffer rigorous imprisonment for three months The learned Additional Sessions Judge of Aurangabad who tried this case directed that in view of the provisions contained in section 428 of the Code of Criminal Procedure and in view of the fact that they had already spent three months in custody, they should be released forthwith. Accused No. 1, who is the appellant before me, however, was convicted for the offence punishable under section 304 (Part II) of the Indian Penal Code and sentence to suffer rigorous imprisonment for three years. This he did his judgment and order dated 29th May, 1976, which is the subject matter of challenge in this appeal supported before me by the learned Advocate Mr. R.M. Agrawal. 2. It is not necessary, in view of the submissions which have been made before me, to narrate the entire facts and circumstance which led to the prosecution. The same have been mentioned in sufficient detail and with sufficient clarity in the judgment of the learned Additional Sessions Judge. For the purpose of this appeal, however, only the following facts may be noted. 3. On 24th of October, 1973 there was a skirmish between a one Rakhmaji, who was the victim of this incident, and accused Nos. 2 and 3 in village Shekta of Taluka Paithan in Aurangabad District. The skirmish is said to be due to a dispute about the cultivation of a land. At the time when the altercation between Rakhmaji and accused No. 3 started, accused No. 1 was not on the scheme. It is only after accused No. 3 gave a call for help that the other accused, namely accused Nos. 1, 2 and 4 came from their house. It is an admitted position that none of these accused came armed with any weapons, not even with stones. It is only after accused No. 3 gave a call for help that the other accused, namely accused Nos. 1, 2 and 4 came from their house. It is an admitted position that none of these accused came armed with any weapons, not even with stones. It is only after they arrived on the scene that each of them picked up a stone from the open place and threw at Rakhmaji. The evidence shows that two stone hit the head of Rakhmaji, one on the occupital region and the other on the temporal region. It is the latter blow occiptal region and the other on the temporal region. It is the latter blow which caused an injury resulting ultimately in the death of Rakhmaji. After this incident Rakhmaji was taken to the Police Station where he made a statement which was treated as the first information report. In that statement Rakhmaji has not mentioned that a particular accused a particular injury to his head. Rakhmaji survived till 2nd of November, 1973. In the meantime on 25th of October, 1973 statements of three persons, who have been examined as eye witnesses, were recorded. It is at this stage probably that a particular throw of stone was attributed to accused No. 1. On these facts the four accused were tried in Sessions Case No. 6 of 1974 by the learned Additional Sessions Judge of Aurangabad. 4. As already mentioned above, accused Nos. 2 and 4 were convicted for the offence punishable under section 323 read with section 34 of the Indian Penal Code. The learned Sessions Judge, however, came to the conclusion that the injury which resulted in the death of Rakhmaji was caused by the stone which was thrown by Accused No. 1. Consistent with this view he took he convicted accused No. 1 of the offence punishable under section 304 (Part II) of the Indian Penal Code. 5. Mr. Agrawal, the learned Advocate appearing in support of the appeal, has taken me through the relevant evidence which is on record and has pointed out that none of the eye witness has mentioned that accused No. 1 aimed the stone at the head of Rakhmaji and this has caused him the injury which resulted in his death. 5. Mr. Agrawal, the learned Advocate appearing in support of the appeal, has taken me through the relevant evidence which is on record and has pointed out that none of the eye witness has mentioned that accused No. 1 aimed the stone at the head of Rakhmaji and this has caused him the injury which resulted in his death. He has also with considerable justification contended that the testimonies of the three witnesses if read properly would not show that it was accused No. 1 two caused a particular injury which in turn resulted in the death of Rakhmaji. After hearing him and the learned public prosecutor appearing for the state I am inclined to accept this interpretation put on the evidence. 6. P.W. 1 Ambadas Deoji has undoubtedly mentioned in a paragraph 5 of his deposition that accused No. 1 picked a stone from the ota of Kisan Tatya and pelted the same at Rakhmaji who received it above his left ear. He has also mentioned that the other three accused throw stones simultaneously. Before this, however, he wants to say, Rakhmaji fell down after receiving the blow from accused No. 1. It is difficult to accept the precise description of the accused given by this witness. Even if it is assumed that the stone that was pelted by accused No. 1 felled down Rakhmaji it is possible to accept the further case of the prosecution that this particular stone hit Rakhmaji at a particular place. The prosecution case is not made any better by the eye witness account given by the other two witnesses, namely Govindarao and Manikraon (P.W. Nos. 2 and 3 respectively). The incident has, as the learned Sessions Judge him himself pointed out, taken place suddenly. None of the accused came to the scene armed with stone. Each of the accused picked up a stone which was available at hand and threw in discriminately at Rakhmaji. The prosecution witness are unable to say how the second injury was caused on the head of Rakhmaji. Considering the probabilities of the case and the suddenness with which the incident took place, it is impossible to attribute a particular stone throw by a particular accused resulting in turn to a particular injury. The prosecution witness are unable to say how the second injury was caused on the head of Rakhmaji. Considering the probabilities of the case and the suddenness with which the incident took place, it is impossible to attribute a particular stone throw by a particular accused resulting in turn to a particular injury. On the facts and circumstance of this case, therefore, I am unable to agree with the finding view by the learned Additional Sessions Judge that it was accused No. 1 and none else who caused the injury on the temporal region of Rakhmaji. If this is so, he cannot be treated as a class apart from accused No. 2 to 4. The conviction under section 304 (Part II) of the Code will have to be set aside. 7. Mr. Kamat for the State, however, point out that the injury caused to Rakhmaji was a grievous hurt attracting culpability under section 325 of the Indian Penal Code. If I had accepted that the injury on the temporal region of Rakhmaji was caused by the particular stone thrown by accused No. 1 Mr. Kamats contention would have undoubtedly been endorsed by me. Even if ultimately it is found that the injury caused is a grievous hurt, a person cannot be convicted for the offence punishable under section 325 or section 326 of the Indian Penal Code unless the accused intended to cause that injury or atleast had the knowledge that he would cause that injury. In the instant case such intention or such knowledge cannot be inferred from the prosecution evidence. 8. In the result, this appeal is partly allowed. The conviction and sentence passed by the learned Additional Sessions Judge of Aurangabad against the appellant (original accused No. 1) under section 304 (Part II) of the Indian Penal Code are set aside. The appellant accused No. 1 is instead convicted of the offence punishable under section 323 read with section 34 of the Indian Penal Code. He is sentenced to the term of imprisonment which he has already undergone. Bail bond of the accused shall stand cancelled. Appeal partly allowed. -----