JUDGMENT 1. - This is an appeal against the judgment dated 6-7-85 passed by learned Session Judge, Alwar, convicting the accused appellant under section 302 read with Section 34 IPC, and sentencing him to life imprisonment and a fine of Rs. 200/-, in default of payment of fine, 2 month's R. I. 2. Mohan Lal (PW-1). lodged a written report at Police Station Kathumar, at about 7.15 p.m. on 13-10-81, which has been marked as Ex. P.I, mentioning therein that when he got down from the bus at Ronija Bus Stand and was going to Village Sok, at about 3 p.m., he saw deceased Devi Singh, son of his elder brother, going who was being chased by accused appellant Mawasi, Shibboo, and Shrilal. Shiilal was carrying a `Darati' in his hand, whereas Mawasi and Sbibboo were carrying lathis. They gave severe heating to Dev Singh and when he reached near Devi Singh. all the accused persons ran away, and he gave some water to Devi Singh and asked Devi Singh, who replied that he had gone to take 'Chara' with Isar; daughter of Mawasi collected the 'Chara' which was cut by him, upon which Devi Singh pushed her and she went to her house. Thereupon, Mawasi and two other accused came and gave beating to Devi Singh. A tractor came there and he asked the driver to go and inform in the village. Devi Singh died at the spot Thereafter, brother of Mohan Lal-Charan and mother of Devi Singh and several persons came at the spot and he had gone to make the report. 3. After usual investigation the police submitted a challan against the three accused persons in the court of learned Magistrate who committed the case to the court of Sessions. Shrilal being a child is being prosecuted in the Children Court. Learned Session Judge, after trial, acquitted Shibboo but convicted the accused appellant as aforesaid Hence, this appeal. 4. We have heard learned counsel for the parties as also examined the record of the case and the judgment of the trial court. 5. Prosecution has examined Mohan Lal (PW-1) as an eye witness. Learned Session Judge, after trial, acquitted Shibboo but convicted the accused appellant as aforesaid Hence, this appeal. 4. We have heard learned counsel for the parties as also examined the record of the case and the judgment of the trial court. 5. Prosecution has examined Mohan Lal (PW-1) as an eye witness. We have gone through his evidence carefully as he was the sole eye-witness but we are not persuaded to rely on his evidence as even the trial court has come to the conclusion that PW-1 Mohan Lal is not a witness of sterling worth; he has tried to make improvements in his statement and has tried to become an eye witness, which he was not. Therefore. there is no eye witness of the incident and the entire case hinges on the circumstantial evidence Out of the three accused persons. against whom challan was filed, one is being tried by the Children Court. Shrilal is alleged to have been carrying Darati at the time of incident. Out of the remaining two accused persons who were tried by the learned Sessions Judge, Shibboo who also had a lathi in his hand. has been acquitted, and there is no appeal preferred by the State of Rajasthan, against his acquittal by the trial court. The deceased had received as many as 29 injuries on his person. There was no motive for committing the crime. The prosecution did not try to produce the tractor driver who had reached the place of incident at the earliest and was asked by PW-1 Mohan Lal to inform about the incident, in the village. Dr. Bhagwan Sahai (PW-10) has stated that death of the deceased occurred due to syncope which occurred due to blood loss from the wounds and extensive injuries of body and fractures. In view of the fact that there is no eye witness, it is not known as to bow many injuries were inflicted by the accused appellant; whether he was responsible for any of the serious or grievous injuries sustained by the deceased. Admittedly, the incised wounds and the stab wounds were inflicted by Shrilal who had a Darati in his hand and it was on account of those incised wounds only that there was loss of blood. Admittedly, the incised wounds and the stab wounds were inflicted by Shrilal who had a Darati in his hand and it was on account of those incised wounds only that there was loss of blood. It cannot be said positively that the accused appellant was responsible for the three fractures of the deceased on his right tibia and fibula, and left tibia and fibula as also fracture of Rt. humerus. They are not vital parts of the body and there is no evidence of any prior meeting of mind or pre-meditation. The evidence of PW-2 Mst. Girraji. who is mother of the deceased, also does not inspire confidence when she has stated that she had seen Mawasi returning after the incident, having a lathi in his hand and his Dhoti and palm were smeared with blood. The three accused persons had told her that they had killed her son Devi Singh. PW-3 Isar, brother of the deceased is a child witness of about 10-12 years, who had deposed earlier part of the story, that the daughter of Mawasi had taken the grass and there was some quarrel on that count; she went to her house and thereafter, the three accused persons came there to give beating to his brother Devi Singh. He had only seen Devi Singh running away who was being chased by the three accused persons and thereafter, he had come to his house and told his mother about the above story. His sole testimony is not sufficient to hold the accused guilty, more so, when the prosecution evidence has been disbelieved by the trial court with regard to accused Shibboo. Case of accused-appellant Mawasi and that of Shibboo was almost the same and indentical and based on same set of evidence. 6. In this view of the matter, we are of the opinion that the prosecution has utterly failed to brine home the guilt against the accused appellant Mawasi under section 302/34 Indian Penal Code and therefore, his conviction under section 302 read with Section 34 Indian Penal Code is not sustainable and deserves to be set aside. Even if the whole story of the prosecution is believed and taken to be true, he can at the most be convicted for offence under section 325 IPC. 7. Even if the whole story of the prosecution is believed and taken to be true, he can at the most be convicted for offence under section 325 IPC. 7. In the result, this appeal is allowed in part, conviction and sentences passed against the appellant Mawasi, under section 302/34 IPC by the rial court, are set aside, instead he is found guilty of offence under section 325 Indian Penal Code and is convicted under section 325 Indian Penal Code only and sentenced to the imprisonment already undergone (which is 31/2 years). He is in jail. He may be released forth with if not required in any other case.Appeal partly allowed. *******