JUDGMENT 1. - This is an appeal directed against the order of conviction passed by the learned Additional Sessions Judge, Raisinghnagar dated 15th of April, 1989 whereby the learned Judge convicted the accused Devilal under Section 304 Part-II, Indian Penal Code for seven years' rigorous imprisonment and fine of L 1.000/-, in default of payment of fine six months' rigorous imprisonment and Tulcha under Section 304 Part-II read with Section 34, Indian Penal Code for seven years rigorous imprisonment and fine of L 1,000/-, in default of payment of fine to undergo six months' rigorous imprisonment. 2. Brief facts of the case giving rise to this appeal on 20th January, 1987 at about 11.30 complainant Narayan filed a First Information Report at Police Station Chadsana stating therein that deceased Jiwanram was son of his Mama, Jiwanaram had come to his house to see him in the morning at about 12 p.m., when both of them were going to Rawla Mandi and when they were near the house of Ramrakh Bawri, they saw that accused Devilal and Tulcha were coming from the opposite direction. Devilal was armed with a kikar lathi. It is alleged that as soon as they were passing them, Tulcha and Devilal caught hold of Jiwanaram and thereafter Devilal gave a blow with kikar lathi on the head of Jiwanaram. As a result of this injury Jiwanaram started bleeding and became an conscious and fell down on the ground Sohanlal who was sitting at the shop came running and tried to intervene in the matter. It is alleged there was an enmity between Jiwanaram deceased and Tulchram and Devilal. On receiving this information police registered a case under Section 307, 341, 323 read with Section 34 Indian Penal Code. Ultimately they were committed to the Sessions for trial. Prosecution in support of its case examined all witnesses and a large number of documents were exhibited. Learned Sessions Judge after close of the trial found both the accused guilty as aforesaid and convicted them. Hence the present appeal. 3. Mr. Ultimately they were committed to the Sessions for trial. Prosecution in support of its case examined all witnesses and a large number of documents were exhibited. Learned Sessions Judge after close of the trial found both the accused guilty as aforesaid and convicted them. Hence the present appeal. 3. Mr. Garg, learned Counsel for the appellant submitted the Prosecution in the present case has examined four witnesses as eye witnesses namely PW 1 Narayanram, PW 2 Sohanlal, PW 5 Kana Ram and PW 6 Om Prakash Learned counsel has taken me to the statements of these four witnesses and submitted that there are major contradictions in the statement of these witnesses, therefore, the prosecution has failed to establish the case beyond reasonable doubt. Learned counsel also pointed out that the incident took place on 19-1-1987 and the deceased was taken to Rawla but no information was lodged at the police station Ghadsana or police station Anoopgarh or Raisingh Nagar. Learned counsel also submitted that PW 1 Narayan Ram who is cited as eye witness, was never witness, of the incident. As against this, learned Public Prosecution has supported the judgment. 4. I have considered the arguments of both the sides and perused the record. PW 1 Narayanram who was the person who filed the First Information Report, According to this witness Jiwanaram was a son of his Mamand therefore he was his cousin brother. It was stated that he along with him was coming from his house and were going to Rawla, in the way they came face to face with Tulcha Ram and Devilal. Devilal was armed with a kikar lathi and Tulcha was unarmed. Tulcha caught hold of Jiwan Ram and Devilal gave a blow of lathi on the head of the deceased Jiwanram. It is alleged that he fell down Sohanlal was sitting at a shop, immediately came on the scene and shouted and thereupon accused persons left the spot. It is alleged that accused told them that Jiwanram touched their tea Dolu (tea bucket) and spilled it Jiwanram became unconscious and Sohanlal told him to bring some transport. Then they transported decease Jiwanram in a camel cart. They took him to Rawla Mandi and there they met Budhram. He told them to came to Birbal's house so that they could arrange some doctor. Then they transported decease Jiwanram in a camel cart. They took him to Rawla Mandi and there they met Budhram. He told them to came to Birbal's house so that they could arrange some doctor. The doctor after seeing the injured told them that they should take the injured to the hospital. Then they hired a jeep and took him to Gharsana. They tried to contact the doctor in night at about 12-1 a.m. but they could not get him. Then they brought him to Raisinghnagar and got him admitted in hospital. Thereafter he along with Budharam went to the police station Ghadsana and lodged the report. The deceased Jiwanram died in the hospital. As against this PW 2 Sohanlal has also substantially supported the version of Narayanram PW 1 but be was specifically contradicted that he has not deposed regarding the role played by Tulcha in his statement before the police and he could not explain this discrepancy except that he did mention to police. But so fares substantial part of the story that Devilal dealt lathi blow on the head of the deceased is concerned that has been squarely supported by him. Similarly, PW 5 Kana Ram who was also an eye witness of the incident be has also substantially-supported the prosecution story but he has added that prior to this incident Tulcha Ram was carrying the tea in Dolu and deceased Jiwanlal asked him to serve tea which be declined but he tried to take the tea from Dolu and it got spilled on the road, then Tulcha Ram left that place and brother Devilal armed with kikar lathi. He also deposed that Jiwanram was coming alone when Tulcharam accompanied with Devilal came on the scene, Devilal gave lathi blow on the head of Jiwanram, then Sohanlal also came on the scene and asked him to go to Rawla and bring Narayan immediately. Thereupon he deposed, he left to inform Narayan. In his cross examination, he has deposed that he went to Rawla but he could not find Narayan. Similar is the statement of PW 6 Om Prakash. He has substantially supported the version given by PW 5 Kana Kam PW 11 Dr. Thereupon he deposed, he left to inform Narayan. In his cross examination, he has deposed that he went to Rawla but he could not find Narayan. Similar is the statement of PW 6 Om Prakash. He has substantially supported the version given by PW 5 Kana Kam PW 11 Dr. M.P. Agarwal, who examined the injuries of the deceased has depose that the injury was not sufficient in the ordinary course of nature to cause death and if the victim had been given 'medical assistance in time, perhaps be could have been saved. It is stated that the deceased has died on account of heamorrhage of left temporal artery and as a result of fracture of the left temporal region. 5. Now, from these facts, it is apparent that so far as the giving of the blow by Devilal on the head of the deceased is concerned, this has been uniformly deposed by all the four witnesses but 'PW 5 Kanaram and PW 6 Omprakash have deposed that Narayan Ram PW 1 infact came at the place of occurrence after the incident, though PW 1 Narayan Ram and PW 2 Sohanlal both have deposed that Sohanlal was present. If Narayanram was present then the PW 5 Kanaram and PW 6 Om Prakash are not correctly deposing, if Sohanlal Narayanram is to be believed then the version given by PW 6 Om Prakash is not correct, But after bestowing my best of the consideration, on the testimony of these for witnesses, it appears that even for time being it is taken that the Narayanram was not at the scene of the occurrence and he came subsequently, then too also testimony of Sohanlal whose shop is the site of occurrence, he cannot be disbelieved, Likewise Kana Ram PW 5 and Om Prakash PW 6 are said to be sitting there, they too also supported the version of prosecution. Therefore from this it is established that Devilal gave a lathi blow on the head of deceased Jiwanram. As such even for time being we ignore the testimony of PW 1 Narayanram then too also as per the testimony of Sohanlal, Kana Ram and Om Prakash, the material part of the prosecution story that Devilal gave lathi blow on the head of Jiwanram stands established. 6. As such even for time being we ignore the testimony of PW 1 Narayanram then too also as per the testimony of Sohanlal, Kana Ram and Om Prakash, the material part of the prosecution story that Devilal gave lathi blow on the head of Jiwanram stands established. 6. Now next question is whether Tulcha Ram who has been charged under Section 304 Part II read with Section 34 Indian Penal Code had been rightly convicted or not. As per PW 1 Narayanram, he caught hold of the hands of the deceased Jiwanram but this has not been corroborated by PW 5 Kana Ram and PW 6 Om Prakash. Though PW 2 Sohanlal has deposed in his statement before the Court but when he was confronted with the statement in police and to explain that this does not find mention in his police statement that Tulcha caught hold the band of deceased Jiwanram or not. But he could not explain this contradiction. Therefore it appears this part of the story that Tulcha Ram caught hold the hand of the deceased Jiwanram cannot believed and common intention of Tulcha cannot be inferred from these circumstances. In this circumstances, Tulcha cannot be co evicted under Section 304 Part II read with Section 34 Indian Penal Code. 7. Now, the question is what offence in the present circumstances is made out As per the statement of PW 11 Dr. M.P. Agarwal that if the accused had been given medical assistance he could have survived and further that he did not find any internal part of the brain damaged except a fracture and he has further deposed that death has caused out of: the rapture of the artery of the left temporal region. From this, it cannot be inferred that the accused intended to cause the death of the deceased. In the present case, the incident arose on account of the minor accident that Tulcha was carrying tea, that was spilled by Jiwanram and Tulcha informed this to Devilal and he came armed with lathi to chastise the deceased Jiwanram. It is by accident that he gave a blow on the head and too raptured the artery of the left temporal region which caused excessive bleeding and the deceased died on account of that. Doctor has admitted that if proper medical help was available, perhaps Jiwanram could have survived. 8. It is by accident that he gave a blow on the head and too raptured the artery of the left temporal region which caused excessive bleeding and the deceased died on account of that. Doctor has admitted that if proper medical help was available, perhaps Jiwanram could have survived. 8. Looking to these facts, the offence cannot travel beyond Section 325 Indian Penal Code and I accordingly convert the conviction of Devilal from Section 325 Indian Penal Code and sentence him to three years' rigorous imprisonment and a fine of L 2000/- and in default of payment of fine to further undergo six months rigorous imprisonment. The accused Tulcha Ram is acquitted of all the charges. He is already on bail. His bail bonds are cancelled. He need not to surrender. The appeal is allowed in part as indicated above.Appeal partly allowed. *******