JUDGMENT 1. - This is an appeal by the accused appellants against the judgment of Sessions Judge, Jhalawar, convicting the accused appellants as under: Vihay Singh Devya Both under section 323 IPC two months simple imprisonment on each count, to each of them. Vijay Singh U/s 302 IPC Imprisonment for life and a fine of Rs. 1,000/- and in default of payment of fine, one year's R.I. 2. Chain Singh (PW-1) real brother of deceased Bhaw Singh, filed a report at police Station Bhalta at 5 PM on 3-10-1983 against five accused persons regarding an occurrence which took place at about 8 or 9 AM in the village. It was stated in the report that his brother Bhaw Singh had gone to the well where all the accused persons made an assault on him and he received injuries. 3. On the basis of this report, the police registered a case under section 307, 147, 148, 149 and 341 I.P.C. Injured Bhaw Singh died on 11-10-1983 and therefore, Section 302 IPC was added. 4. The police after usual investigation, put up a challan in the court of Munsif Magistrate, who committed the case to the court of Sessions. Sessions Judge, after holding trial, convicted the accused appellants as aforesaid. Hence this appeal. 5. Prosecution has examined four eye witnesses PW-1 Chain Singh, PW-12 Kasturi Bai, PW-13 Roshan Singh, and PW-14 Ghasi Lal. Evidence of PW-13 Roshan Singh has not been believed by the trial court and it has placed no reliance on his testimony. PW-12 Kasturi Bai and PW-14 Ghasi Lal have supported the prosecution story, where as PW-1 Chain Singh who is the real brother of the deceased and who had flied the F.I.R. and who himself was an injured, has supported the prosecution case in his examination-in-chief and has stated that Vijay Singh had inflicted a Gandasi blow on the head of his brother Bhaw Singh, as a result whereof, he fell down. Cross-examination of this witness was postponed and later on, when he was cross-examined, he took somersault. He admitted that Roshan Singh gave a Gandasi blow to Vijay Singh, which Vijay Singh warded off and the same hit on the head of his brother Bhaw Singh. Roshan Singh wanted to give second blow by Gandasi to Vijay Singh but he again saved himself and again it hit on deceased Bhaw Singh. He admitted that Roshan Singh gave a Gandasi blow to Vijay Singh, which Vijay Singh warded off and the same hit on the head of his brother Bhaw Singh. Roshan Singh wanted to give second blow by Gandasi to Vijay Singh but he again saved himself and again it hit on deceased Bhaw Singh. Accused Vijay Singh in his statement under section 313 Cr. P.C. has stated that it was Roshan Singh who wanted to inflict a blow on him and when he warded the blow off, it hit to Bhaw Singh, and when Roshan Singh wanted to inflict the second blow, he saved himself and that also hit Bhaw Singh. Prosecution has not declared PW-1 Chain Singh as a hostile witness and has not been cross-examined nor was confronted with his statement made in examination-in-chief or in the first information report. He is the real brother of the deceased and was himself an injured and had filed the report at the Police Station. 6. PW-12 Kasturi Bai is wife of Chain Singh (PW-1) and Bhabhi (wife of elder brother) of the deceased. She has admitted that she was present when the police had come in the village on the day of incident but her statement under section 161 Cr. P.C. was recorded after two days i.e. on 5-10-1983 and the prosecution has not tendered any explanation for this delay in recording the statement under section 161 Cr. P.C. of such an important eye witness. 7. PW-14 Ghasilal is son-in-law of deceased and is the sole witness who has supported the prosecution case. 8. In view of the statement of PW-1 Chain Singh, we do not find that the prosecution has been able to prove the case beyond shadow of doubt; and the accused is therefore, entitled to benefit of doubt. The testimony of PW-1 Chain Singh in cross-examination probablises the defence story. We are not inclined to place explicit reliance out the statement of PW-14 Ghasi Lal who is relation of deceased Bhaw Singh and in whose statement several contradictions are there than his earlier statement under section 161 Cr. The testimony of PW-1 Chain Singh in cross-examination probablises the defence story. We are not inclined to place explicit reliance out the statement of PW-14 Ghasi Lal who is relation of deceased Bhaw Singh and in whose statement several contradictions are there than his earlier statement under section 161 Cr. P.C. Similarly, Kasturi Bai (PW-12) cannot be said to be a witness of Sterling worth in as much as her statement was recorded by prosecution after two days, when admittedly, according to her own statement, she was present in village when the police had come on the day of incident. The prosecution has failed to give any explanation, whatsoever, as to why here statement was not recorded on 3-10-83. 9. In view of the above discussion, we are inclined to allow this appeal in part, set aside the judgment of the trial court and acquit accused Vijay Singh of the offence under section 302 IPC but maintain his conviction and sentence passed under section 323 and 341 IPC by the trial court. So far as appeal filed by accused Devya is concerned, it is rejected as in our opinion he was rightly convicted under section 323 and 341 IPC by the trial court.Appeal partly allowed. *******