JUDGMENT 1. - This appeal has been directed against the judgment dated 31-3-1992. passed by the learned Additional Sessions Judge No. 7, Jodhpur, whereby he has convicted the appellant Hari Ram under Section 302 Indian Penal Code and appellant Hans Raj @ Hansiya for the offence under Section 302 read with 34 Indian Penal Code and sentenced each of them to life imprisonment and a fine of Rs. 500/-, in default to further under go six months simple imprisonment, 2. Succinctly stated the relevant facts are that on 17-7-1988 at about 3 p.m., PW 4 Smt. lmarti Bai widow of deceased Shiv Raj lodged an oral report before the SHO, Police Station, Phalodi to the effect that on that day at about 11:30 a.m. she was removing the soil in front of her Dhani situated in their field, that her husband was sitting in the Dhani, that appellants armed with lathis came there, that appellant Hari Ram threw a stone. which caused injury on her right thigh, that she challenged him and that thereupon appellant Hari Ram told that they had come to take revenge of the murder of their father committed by Shiv Raj Appellant Hari Ram also threw a stone, which hit the left ear of Shiv Raj, Thereupon, she along with her husband ran away from there The appellant followed them and at about 50 paces away from the Dhani, appellant Hari Ram dealt a lathi blow on the head of Shiv Raj who fell down. Thereafter appellant Bari Ram continued inflicting lathi blows causing injuries to him. She raised an alarm, and thereafter the appellants went away. She further informed that her husband succumbed to the injuries and that Bhanwara Ram Meghwal, who was ploughing his field nearby had also seen the said incident. She further informed that about 3 years prior to the said incident, her husband had commuted the murder of appellants' father Alsi Ram and that to take revenge, appellants had killed Shiva Raj. On this information, FIR Ex P 7 was scribed and the case was registered. After usual investigation, a challan was filed against the appellants in the court of Munsif and Judicial Magistrate, who, in his turn committed the case to the court of Sessions Judge for trial. On this information, FIR Ex P 7 was scribed and the case was registered. After usual investigation, a challan was filed against the appellants in the court of Munsif and Judicial Magistrate, who, in his turn committed the case to the court of Sessions Judge for trial. The learned Additional Sessions Judge No. 3, Jodhpur, to whom this case was transferred, framed charge under Sections 302 and 323 Indian Penal Code against appellant Hari Rain and under Section 302/34 Indian Penal Code against appellant Hans Raj. They pleaded not guilty and claimed trial. The prosecution examined 12 witnesses. The appellants in their plea recorded under Section 313 Criminal Procedure Code denied the circumstances appearing against them in the prosecution evidence and is defence examined five witnesses They asserted that for last 20 years. they were living in Jodhpur and that deceased Shiv Raj had a dispute with Bhima Ram and Babu Ram in respect of the land, where the alleged incident took place. The learned Additional Sessions Judge by his impugned judgment acquitted appellant Hari Ram for the offence under Section 323 Indian Penal Code, but bound him guilty for the offence under Section 302 Indian Penal Code and appellant Hans Raj guilty for the offence under Section 302/34 Indian Penal Code and sentenced them ln the manner detailed above. Hence this appeal. 3. We have heard the learned counsel for the appellants and the learned Public Prosecutor at length and very carefully perused the relevant record. 4. The contention of Shri Singhi is that alleged eye-witness PW 2 Bhanwara Ram has not supported the prosecution story and that the whole case hinges on the sole testimony of PW 4 Smt. Imarti. According to trim, Snit. Imarti has resiled from the facts incorporated in FIR as also from her statement recorded under section 161 Criminal Procedure Code Ex.D 1 on material aspects and has tried to implicate appellant Hans Raj during trial. According to him, her statement is replete with material contradictions and improvements and as such she is not at all a reliable witness. He has further contended that PW 7 Dr Sukh Deo, who conducted the post-mortem of deceased Shiv Raj. has specifically stated that except injury No. 5 detailed in post-mortern examination report Ex.P 14, which resulted in a fracture of the right index finger. He has further contended that PW 7 Dr Sukh Deo, who conducted the post-mortem of deceased Shiv Raj. has specifically stated that except injury No. 5 detailed in post-mortern examination report Ex.P 14, which resulted in a fracture of the right index finger. all other injuries were simple and that there was no fracture of any of the skull bones of Shiva Raj. Therefore, the internal hemorrhage could not have been caused by any injury sustained by Shiv Raj on his head. He has submitted that Dr. Sukh Deo has specifically stated that internal hemorrhage, which caused blood clotting of the brain could have been caused by high blood pressure. Therefore, in such circumstances, the testimony of Smt. Imarti is not supported by the medical evidence and the learned Judge has committed an illegality in holding that the appellants had a common intention to commit the murder of Shiv Raj Singh and that in furtherance thereof they had inflicted injuries to him and in holding them guilty for the offence under Sections 302 and 302/34 Indian Penal Code. According to him at t he worst the offence against accused appellant Hari Ram does not travel beyond the offences punishable under Sections 323 and 325 Indian Penal Code. As against appellant Hans Raj according to Mr. Singhi, there is not a fringe of evidence to establish that he had a common intention to commit the murder of Shiv Raj and therefore, his conviction under Section 302 read with 34 Indian Penal Code deserves to be quashed. 5. On the other hand Shri D.R. Bohra, the learned Public Prosecutor has tried his best to support the impugned judgment and reiterated the reasonings given by the learned trial Judge. 6. We have given our thoughtful consideration to the rival contentions and carefully read the statements of all the witnesses recorded by the trial court. The whole case rests on the testimony of Smt Imarti Bai. In the FIR Ex.P 7 lodged by her she had simply informed that at the time of the alleged occurrence, appellant Hari Ram had thrown a stone which caused Injury on her right leg. that when she along with Shiv Raj ran away to save their lives, the appellants followed them and that at a distance about 30-40 paces, Hari Ram had inflicted lathi blows to Shiv Raj. that when she along with Shiv Raj ran away to save their lives, the appellants followed them and that at a distance about 30-40 paces, Hari Ram had inflicted lathi blows to Shiv Raj. In the FIR Ex.P 7, she had specifically stated that appellant Hans Raj was standing, while appellant Hari Ram continued inflicting lathi blows on Shiv Raj. In her police statement Ex.D 1 she repeated the same version and clearly maintained that Hans Raj had neither thrown any stone towards them nor dealt any lathi blow to decease Shiva Raj and that be was all the time standing nearby. However, during trial, she improved her earlier version and deposed that appellant Hans Raj had caused injury to her by throwing stone and also inflicted lathi blows to Shiv Raj. She has failed to give any plausible explanation for this improvement. Therefore, so far as appellant Hans Raj is concerned. she has tried to improve her earlier version incorporated in the FIR Ex P.7 and her police statement Ex D.1, which cannot be believed. Another contradiction in her statement is that in the FIR Ex.P.7 as well as in her police statement Ex D.1 she had stated that appellant Hari Ram had thrown a stone towards her, while during trial she has deposed that appellant Hansiya had hurled stones and inflicted injuries to her and to her husband. Thus, Imarti's statement before the trial court is replete with material improvement and significant contradictions regarding the alleged overt act of appellant Hans Raj. So far as appellant Hari Ram is concerned, her statement has been consistent right from her earlier version in the FIR till the trial. In our considered opinion, Smt. Imarti is neither a wholly reliable witness nor wholly unreliable witness, but she is a partly reliable and partly unreliable witness Her statement stands substantially corroborated by the medical evidence. 7. PW 7 Dr. Sukh Dev Suthar. who conducted the post-mortem examination of the dead body of Shiv Raj, found the following external injuries 1. Lacerated wound 6 x 3 cm. scalp over occipital region 2. Lacerated wound 3 x 2 cm. on the scalp left parietal region 3. Lacerated wound 2.5 x 2 x 1 cm. on the left external ear 4. Lacerated wound on Rt. arm lateral aspect 10 x 3 x 1 cm. 5. Lacerated wound 1 x 1 x5 cm. Lacerated wound 6 x 3 cm. scalp over occipital region 2. Lacerated wound 3 x 2 cm. on the scalp left parietal region 3. Lacerated wound 2.5 x 2 x 1 cm. on the left external ear 4. Lacerated wound on Rt. arm lateral aspect 10 x 3 x 1 cm. 5. Lacerated wound 1 x 1 x5 cm. on (Rt.) index finger 6. Closed fracture 2nd and 5th Meta Carpal left hand 7. Abrasion 3 x 3 cm. (Rt ) Gluteal region 8. Abrasion 3 x 3 cm. left thigh medial aspect 9. Abrasion 3 x 3 cm (Rt) shoulder region 8. He has proved postmortem examination Ex P. 14 and opined that the cause of death of the deceased was intracranial hemorrhage aria shock He has stated that blood clots were present in the membrane of brain He has further stated that if internal hemorrhage is caused due to injuries mentioned in the post-mortem examination report Ex.P.14 then such internal hemorrhage can cause the death of a person in the ordinary course of nature. He has further stated that the injuries mentioned in Ex. P.14 could have been caused by a lathi. But in his cross examination, he has deposed that the injuries sustained by Shiv Raj Singh on his head were not grievious and that only injury No. 6 resulting in fracture of his right index finger, was grievious. He has specifically stated that none of the skull bones had a fracture and he could not say as to which injury had caused the intracranial hemorrhage to the deceased? He has admitted that due to high blood pressure also. the intracranial hemorrhage can occur and that it can also be caused due to old age. In the instant case, the age of Shiv Raj deceased was 50 years as has been mentioned in the post-mortem examination report Ex.P 14 Therefore. in such circumstances, it can not be conclusively held that the intracranial hemorrhage was caused due to the bead injury inflicted by appellant Hari Ram by lathi blow or that be bad the intention to cause death of Shiva Raj. in such circumstances, it can not be conclusively held that the intracranial hemorrhage was caused due to the bead injury inflicted by appellant Hari Ram by lathi blow or that be bad the intention to cause death of Shiva Raj. On the other hand the act of Hari Ram of causing injuries to Shiva Raj as was likely to cause his death, amounts to culpable homicide not amounting to murder and the offence committed by him does not travel beyond the offence punishable under section 304 Indian Penal Code. 9. For want of sufficient evidence, it can not be inferred that appellant Hans Raj had a pre-meeting of mind with appellant Hari Ram and had a common intention to commit the murder of Shiv Raj Singh. Therefore, the learned Sessions Judge was not right in convicting appellant Hans Raj for the offence punishable under Section 302 read with 34 Indian Penal Code. Even offence under Section 304 Part-I read with section 34 Indian Penal Code is not made out against him. 10. Hence, for the reasons mentioned above, we partly accept this appeal and set aside the conviction and sentence of appellant Hari Ram for the offence under section 302 Indian Penal Code. but instead convict him for the offence under Section 304 Part-I Indian Penal Code and sentence him to eight years rigorous imprisonment and a fine of Rs. five hundred. In default of payment of fine he will further under go six months simple imprisonment. The conviction and sentence passed against the appellant Hans Raj @ Hansiya for the offence punishable under Section 302 read with 34 Indian Penal Code are set aside, He shall he 'clewed forthwith, if not required in any other case.Appeal partly allowed. *******