JUDGMENT 1. This is an appeal against the judgment of Sessions Judge, Alwar, dated 31st January, 1981 convicting and sentencing the accused appellant under Section 302 IPC, for life imprisonment and a fine of Rs. 200/-, in default, further two months rigorous imprisonment. 2. The prosecution case giving rise to this appeal, briefly stated, is as underA report written by Kailash Chand was filed by Shri Gokul Chand in Police Station Tehla, district Alwar on 15 4-1980 at 11.00 A. M about an incident that happened in the village on 13.4.1980 at about 5.00 P. M. to the affect that Gokul Chand and Sugan Singh had some dispute in connection with spout. On 13-4-1980 at about 3.30 or 4.00 P. M. when Gokul Chand was at his well, his brothers Ganga Sahay and his son Mahendra were going towards the home along-with buffalo and as soon as they reached near home, Raghuveer and Lala son of Shri Sugan Singh had parked their tractor on the way, there upon Ganga Sahay asked Raghuveer to kindly remove the tractor, so that the bufallo could pass away, but Raghuveer and Lala both started abusing. Meanwhile, Sugan Singh and his father Nool Singh came there carrying a sword and Bhala in their hands and also started abusing and then told that tractor will not be removed. In the mean-time, Nannu Kumhar and Munshi Khati came from the village side and after making them understood all disbursed In the evening at about 5 P.M. Kanhaiya came to Gokul on his field and both of them went to attend a function at Sunar's house. Devi Singh Moti Singh Brijendra Singh alias Bijju were running towards the village with Farshi, Tanchia and Lathi and when they met deceased Ram Dayal (cousin of Gokul) Devi Singh told that let us capture him and we shall face the consequences and thereupon all the three started beating Ram Dayal with an intention to kill him. DeW Singh inflicted a Marsha blow on the head of Ram Dayal, Moti Singh inflicted blows by Tanchia on his head and Bijju inflicted lathi blow on his leg. Ram Dayal me unconscious. When Gokul and others reached, they ran away. Blood was flowing from the head of Ram Dayal and at that time Ram Dayal Meena. Chando daughter of Manohar Lal and Babu Lal were standing there, who had seen the incident. Ram Dayal me unconscious. When Gokul and others reached, they ran away. Blood was flowing from the head of Ram Dayal and at that time Ram Dayal Meena. Chando daughter of Manohar Lal and Babu Lal were standing there, who had seen the incident. Later on several persons came there. Ram Dayal was taken to Rajgarh Hospital in a Tractor of Ram Karan and Doctor after examine him and giving first aid directed that he should be taken to Alwar at the earliest as he was very serious. A Jeep was hired and Ram Dayal was taken in the Jeep to Alwar by Gokul Chand, Ganga Sahay and Ram Sahay etc. Ram Dayal was admitted in the Hospital in unconscious condition and his condition was serious and since they were busy in attending Ram Dayal he was filing the report late in the Police Station along with the medical report from Rajgarh doctor. F.I.R. was written by one Kailash Chand On this the Police registered a case under Section 307 IPC. read with Section 313 1.P.C. and after investigation, the case was challaned in the court of Munsif and Judicial Magistrate, Rajgarh against accused Devi Singh, Moti Singh and Brijendra Singh. The case was later committed to the court of Sessions Judge, Alwar 3. The accused denied the allegations and claimed trial. The prosecution examined in all 13 witnesses in support of its case. The accused in their statements u/s 313 Cr. P. C. denied the prosecution allegations, but did not examine any witness in defence. Learned Sessions Judge after trial acquitted Moti Singh and Brijendra Singh of all the charges, but convicted the accused appellant under Section 302 IPC and sentenced him as aforesaid. It is against this that the present appeal has been filed. 4. Learned counsel for the accused appellant has vehemently argued that the F. I. R. was lodged after a great delay and there is no reasonable explanation offered by the prosecution. It is against this that the present appeal has been filed. 4. Learned counsel for the accused appellant has vehemently argued that the F. I. R. was lodged after a great delay and there is no reasonable explanation offered by the prosecution. Several relatives of the deceased came to know about the incident on 13th evening itself and only some of them had gone to Alwar along with the deceased, therefore, the others could have lodged the report at the Police Station, Tehala, which is at a distance of about 20 miles from the place of incident F.I R, could have been lodged even at Rajgarh during the period they were trying to arrange for vehicle to take the injured to Alwar or F.I R. could have been lodged even at Alwar. Even the Doctors at Rajcarh or Alwar did not inform the Police nor any dying declaration was recorded and, therefore, the whole prosecution case is false and fabricated. 5. Learned counsel for the appellant further submitted that in the Inquest Report (Ex. P. 12) it has been mentioned that all the four Panchas, namely, Shri Rameshwar Dayal S/o Shri Bhonri Lal, Ram Kishore S/o Chiranji Lal. Rameshwar Lal S/o Mala and Ramji Lal S/o Shri Ram Kishan were unanimous in opinion that Moti Singh, Devi Singh and Bijju inflicted injuries by Farshi, Kulhari and Lathi on Ram Dayal, who fell down. Ram Kishore had witnessed the incident and tried to save, meanwhile the assailants ran away and even then the prosecution did not examine Ram Kishore, who was an independent witness and this throws lot of doubt on the prosecution story. 6. Learned counsel for the appellant has further submitted that the learned Sessions Judge has seriously erred in rejecting and not believing the defence story that the deceased fall on the stones and received injuries and because of the earlier enmity the accused appellant has been falsely implicated. He has further submitted that the prosecution has not been able to prove that the deceased received any grievous injury. X-ray report has not been produced nor the Doctor, who had X-rayed, has been examined. Dr. Vishnu Kumar Mathur (PW 8) who had examined the deceased at Rajgarh Hospital found the following injuries on his person : 1. Incised wound 10 x 1 x 1.2 cms on the fronto-parietal region from upper part of nose to the parietal region. X-ray report has not been produced nor the Doctor, who had X-rayed, has been examined. Dr. Vishnu Kumar Mathur (PW 8) who had examined the deceased at Rajgarh Hospital found the following injuries on his person : 1. Incised wound 10 x 1 x 1.2 cms on the fronto-parietal region from upper part of nose to the parietal region. 2. Incised wound 5 x 4 x 3.5 cms on the fronto-lateral surface of left arm in upper ⅓rd. 3. Abrasion 1.5 x 0.5 cms on the front of right leg in upper ⅓rd. 4. Abrasion 0.6 x 0.5 cms on the front of right leg in lower ⅓rd. The Doctor further opined that injuries No. 1 and 2 were caused by sharp weapon, whereas, injuries No. 3 and 4 were simple in nature caused by blunt weapon. Opinion whether injuries No. 2 and 3 were grievous was reserved after X-ray. He has further admitted in his cross examination that the injured Ram Dayal told his name, age and parentage and, therefore, he was not unconscious when he examined Ram Dayal. The X-ray apparatus at Rajgarh was hot in working condition and he had referred the case to Alwar after giving first aid. He did not receive the X-ray report from Alwar and therefore, he cannot say whether injury No. 1 and 2 were grevious or simple. He has further deposed that injury No. 1 had reached up to the hairs in to the parietal region. He has further admitted in the cross-examination that if a person falls upon a clean edge of a stone slab, such injury may possibly be caused. Only other doctor who has been examined by the prosecution is Dr. J. S. Pahuja (PW 9) who conducted the autopsy of the deceased on 27.4.1980 at 10.30 A.M. and noted one of the following injury 3. Stitched wound with fouls 9 x 1 cm x 1.5 cm on the frontal region of skull starting from the bridge of nose to the frontal area of skull radiating towards the parietal area of skull. Stitched wound with fouls 9 x 1 cm x 1.5 cm on the frontal region of skull starting from the bridge of nose to the frontal area of skull radiating towards the parietal area of skull. He further deposed that on opening the body he found that there was fracture of frontal bone extending from the assay area upwards and leading towards the parietal bone with the brain matter was protruding out from the fracture bone and described the cause of death as fracture of the skull bone with hemorrhage, shock and the injury noted above was sufficient in the ordinary course of nature to cause death of the deceased. Since purulent fluid was present, he opined that the wound had become septic and foul smell was coming out. He was not operated upon as the wound had been stitched and the stiled wound had become septic. 7. Learned counsel for the appellant has submitted that the prosecution has not produced the doctor or Doctors who had examined Ram Dayal on the night of 13th April at Alwar or who had treated him from 13th to 26th April when Ram Dayal died and the prosecution has not eliminated the possibility of deceased Ram Dayal falling from the bed or otherwise receiving some injury causing fracture of the frontal bone, and, therefore, even if the prosecution story as such is believed, the prosecution has failed to prove that the accused appellant was guilty under Section 302 I. P. C. as the prosecution has failed to prove that the accused received previous injury at the time of the incident on account of the injuries inflicted by the accused persons. Learned counsel has further argued that no reliance can be placed on the F.I.R. as it was recorded very late on 15th April, 80 and then it was received by the Magistrate only on 19th April, 1980 when the displace from the Police Station to the Magistrate's Court was hardly 20 miles and the prosecution has failed to explain the delay either in recording the F. I. R. or as to how it took 4 days in reaching from Police Station to the Magistrate. He has placed reliance in this connection on Marudanal Augusti v. State of Kerala, ( AIR 1980 S.C. 638 ) . 8. He has placed reliance in this connection on Marudanal Augusti v. State of Kerala, ( AIR 1980 S.C. 638 ) . 8. He has further submitted that the learned Sessions Judge has placed reliance on PW 1 Chando, PW 2 Gokul and since in the inquest report the name of Chando does not appear she could not be an eye witness. Moreover, she is only a child witness of 11 years of age. No oath was administered to her. Her father was present in the court room and her brother had also come along with her to the Court. Moreover, she is only a chance witness, who was going to play with her friends. The prosecution has not prepared the site plan properly and have failed to show the place from where the so-called eye witnesses were witnessing the incident, PW 2 Gokul is highly interested being related. He is also a chance witness and his conduct was not believable. He did not inform the doctor as to who inflicted the injury and has given false explanation for delay in Sling the FIR. His presence has also not been shown in the site play, though he is mentioned in the site plan. His. clothes which were admittedly smeared with blood of the deceased were not taken by the Police and sent for chemical examination. All the other independent witnesses like I P.W. 5 Ram Dayal and Babu Ram have not been relied by the learned Sessions Judge himself. He has submitted that the defence was more probable and the fracture due to the fall in the Hospital having been not ruled but, the case cannot go beyond Section 324 IPC. and more so when it is admitted fact ti.at there was blood found on the Putties near the place of incident and the site plan also confirms the name. He has further submitted that the prosecution has failed to prove the morning incident as they have not examined Ganga Sahay and admittedly P.W. 2 Gokul was not present and had not seen the morning incident himself and his evidence was only hear-say and if the morning incident is not proved, the gravity of the offence goes out, 9. He has further submitted that the prosecution has failed to prove the morning incident as they have not examined Ganga Sahay and admittedly P.W. 2 Gokul was not present and had not seen the morning incident himself and his evidence was only hear-say and if the morning incident is not proved, the gravity of the offence goes out, 9. On the other hand learned public Prosecutor has supported the case of the prosecution and has submitted that two eye witnesses P. W. 1 and P. W. 2 have fully proved the prosecution case and if they are believed, the delay in filing the F.I.R or reaching the magistrate .after 4 days or non examination of Ram kishore or the doctor who had treated Ram Dayal in Alwar, is not material. 10. We have carefully gone through the record of the whole case and have given a serious thought to the whole matter, We need not discuss the eye witnesses or whether reliance should be placed on them or not because in our opinion the prosecution has miserably failed to prove that deceased Ram Dayal had received a grievous injury. Ram Dayal was examined by Dr. Vishnu Kumar (P.W. 8) on 13th April, 80 just immediately after the incident and he is unable to opine whether injury received on the head by Ram Dayal was simple or grievous without the opinion of the X-ray. He has further deposed that the deceased himself had told the name, age and parentage and there was nothing significant or abnormal condition, otherwise he would have mentioned that in his in try report Ex.P 9). After the first aid Ram Dayal was taken to Alwar Hospital and the prosecution has utterly failed to bring on record the condition of the deceased when they reached Alwar and till he died on 26th as to whether he was treated in the Hospital or not, whether any X-ray was at all taken or what was the result of the X-ray. In the absence of this evidence the evidence of Dr. Pahuja (P. W. 9) who had examined the deceased on 27-4-80 at 10 30 A.M. while conducting the post-mortem and who also found a stitched wound described above is not of much value as it was only on the opening of the body at the time of post-mortem that he could find the fracture of the frontal bone. Pahuja (P. W. 9) who had examined the deceased on 27-4-80 at 10 30 A.M. while conducting the post-mortem and who also found a stitched wound described above is not of much value as it was only on the opening of the body at the time of post-mortem that he could find the fracture of the frontal bone. Moreover he has deposed that the wound had become septic and the arguments of the learned counsel seems quite plausible that if deceased Ram Dayal would have been properly treated at Alwar he may not have died on 26th. He died because of the fracture of the frontal bone and since the stitched wound had become septic, it was for the prosecution to have positively proved that deceased Ram Dayal was given all case and attention and proper treatment after he had reached Alwar and that it the injury was grievous at the time when he reached Alwar or whether X-ray was at all taken or not. This leaves doubt and a great lacuna in the prosecution case. It has not completed the chain and the benefit of doubt always goes to the accused and in the absence of this sort of the evidence produced by the prosecution, in our view the accused cannot be convicted under Section 302 IPC. The prosecution having failed to prove that the deceased had received a grievous injury at the time of the incident, the accused cannot be convicted even under Section 304 Part I or Part II or Section 326 IPC. 11. In our opinion even if the prosecution story be taken to be correct the accused cannot be held guilty only under Section 324 IPC. The accused is in jail since 1980 and therefore, we hereby convict accused appellant under Section 324 IPC. and sentence him to the term already undergone. 12. As a result, the appeal is partly allowed. The conviction of the accused appellant Devi Singh under Section 302 IPC is set-aside and he is convicted under Section 24 IPC. and sentenced for the period already undergone. The appellant may be released forthwith, if not required in any other case. *******