JUDGMENT 1. - This appeal is directed against the judgment of Additional Sessions Judge, Sojat, dated 13.10.93 whereby he convicted the accused appellant of offence under section 304 Part 11 IPC and sentenced him to undergo 8 years' simple imprisonment and to pay a fine of . 500/, In default of payment of fine he was directed to further undergo 3 months' simple imprisonment 2. Brief facts leading to this case are that Durgadan, Headmaster of Primary School, Kalu, lodged a report at Police station, Kalu, on 15-1.87 at 9.00 a.m. alleging that Hari Singh, since deceased, is a teacher in his School. On 14th January, 1987 at 4.00 p.m. when he was passing through the play ground of the School and reached near the gate, Sugna Ram, accused, threw a stone towards him, as a result of which he sustained injury on the bead. The accused thereafter gave a blow by an axe on the head of the deceased. He inflicted two more injuries, one by stone and another by an axe. On raising alarm by the students playing, the other members of the Staff, himself and one lady teacher Rameshwari Devi arrived on the spot and Hari Singh was brought to the hospital in an injured condition. Since his condition was precarious, be was removed to Beawar where he was admitted with severe injuries. 3. On receipt of this report, a case for offence under sections 336, 324 and 323 IPC was registered and investigation commenced. On 16th January, Hari Singh is alleged to have succumbed to the injuries and, therefore, the case was altered into offence under section 302 IPC. After completing the investigation he was charge sheeted for offence under sections 302, 324 and 323 1PC. He was committed to stand trial At trial prosecution examined 19 witnesses in support of its case. The accused took the plea of insanity and examined 6 witnesses in his defence. The learned trial court held that the accused had no intention to cause the death of deceased Hari Singh and as such acquitted him of the charge under section 302 IPC. He, however, held the accused guilty of inflicting injury which was intended to cause such injury, which could be a lesser offence and, therefore. convicted for offence under section 304 Part II IPC and sentenced as indicated above. He, however, held the accused guilty of inflicting injury which was intended to cause such injury, which could be a lesser offence and, therefore. convicted for offence under section 304 Part II IPC and sentenced as indicated above. Aggrieved by the conviction and sentence, this appeal has been preferred through jail. 4. This appeal was listed before me for admission on 4th January 1994, after summoning the record. When I perused the record I found that the accused is in jail since 18th January 1987 and from a prima-facie look at the judgment I was of the opinion that this case must be disposed of finally at this stage, so that there may be no injustice with poor and indigent person who is unable to afford a counsel and is lounged in jail for a period of practically 7 years when the evidence of prosecution is absolutely sketchy. Hence I thought it proper to seek the assistance of learned counsel Shri Suresh Kumbhat, who was present in Court and directed him as well as the learned Public Prosecutor to prepare the case and argue finally today. 5. Having gone through the entire record and hearing the learned counsel for the appellant, in my considered opinion a very detailed judgment is not warranted in the facts and circumstances of this case, which has several blurred areas which have not been considered by the learned trial court. The learned trial court, in its judgment has proceeded as if the burden of proof of insanity is totally on the accused and secondly he has referred to only the examination chief of the witnesses and has not critically examined their statements In order to appreciate the facts of this case, it is essential to start from the First Information Report, which has been lodged admittedly on 15th January, 1987 at Police Station, Kalu, by the Headmaster On analysing the First Information Report it is borne out that when the incident took place, it was only the children who had been playing and who raised alarm, bearing which the rest of the staff reached the spot and Head Master also left his room along with the another witness PW 1 Rameshwari Devi Thus, according to the report, other witnesses arrived at the spot subsequent to sustaining the injuries by the deceased Hari Singh. Hari Singh who breathed his last on 16th January 1987 was medically examined even prior to his death when he was admitted in the hospital. According to the injury report Ex. P/10, he had sustained 4 injuries on his person which are as under:- "Incised wound 1.5 cm x 0.5 cm x 0.4 cm Incised wound 2 5 cm x 0 5 cm x 0.4 cm lacerated wound I cm x lcm x 0.5 cm. Haematoma on right side skull 5 cm x 4 cm " After his death, when the inquest memo was prepared by the Investigating Officer in presence of Panchayats the condition of the deceased was mentioned in details. It was categorically mentioned in the report that everybody is of the opinion that the cause of death is the injuries sustained by the deceased but it is not known who is the author of these injuries. It was also to be found out as to what was the cause of infliction of the injuries. It appears from perusal of inquest report, Ex. P/5, that till then neither the accused was known, nor the weapon of offence were certain nor the motive was known obviously because this document bad been prepared by the Officer In charge, Police Station, Beawar City. After preparing this, the autopsy was conducted and the postmortem examination report shows 4 stitch wounds and it was mentioned that the cause of death was head injury. It is after completion of investigation that the charge-sheet has been submitted in the case. Thus, principally 3 questions arise which calls for proper answer from the prosecution's evidence. First is about the nature of injuries and the weapon of offence. Secondly the origin of the incident and the sanctity of evidence and lastly whether in the circumstances, conviction for offence under section 304 IPC could be recalled. 6. For answering the first question about the nature of injuries, I may refer to the statements of PW/ 12 Dr. Jatan Singh, who first examined the patient. He was In charge of Government Hospital, Kalu, where the injured was taken There appears to be a typographical error in mentioning the dimension of the first injury in his statement. The depth of which according to the report is 0.4 cm. but wrongly mentioned in the statement as 4.4 cm. Jatan Singh, who first examined the patient. He was In charge of Government Hospital, Kalu, where the injured was taken There appears to be a typographical error in mentioning the dimension of the first injury in his statement. The depth of which according to the report is 0.4 cm. but wrongly mentioned in the statement as 4.4 cm. According to this doctor, when the deceased was taken to him he was in full senses and he had talked to him. He has stated that he was told by the deceased that be had been attacked by Sugnaram by stone and an axe. Though it was a medical legal case, the doctor has admitted that he has not informed the police station, which was half a furlong from the hospital. This witness was not asked in reference to the axe recovered as to whether the injuries, the dimensions of which were 0,5 cm and 0.4 cm. could be caused by the axe. The witness in cross examination has given several evasive answers for not informing the police and also as the nature of the injuries. He has then stated that police had arrived in the hospital while he was examining the patient as he had already informed the police. It may he mentioned herewith that this witness had medically examined the patient in the evening of 14th January 1987 at 8.30 p.m. but there was no report taken down on that day. if his statement is read with the statement of PW/15 Dr. Kailash Chand Marhur, it can be said that even the nature of the injuries were not certain when he admitted that there was no fracture underlying any of the injury and the injuries were not more than skin deep He admitted that there was neither any rupture of any vein nor any injury to the brain. He was in fact unable to give a proper cause of death and only pressed what he had said earlier that the patent died because of the serious-ness of the injury. Now, what was the seriousness of the injury has not been told by any of the witness, except that a haematoma had been found on the right side of the ear. The corresponding injury is said to be by a blunt object. It was also not mentioned in the postmortem report as to whether there was concussion of the brain. Now, what was the seriousness of the injury has not been told by any of the witness, except that a haematoma had been found on the right side of the ear. The corresponding injury is said to be by a blunt object. It was also not mentioned in the postmortem report as to whether there was concussion of the brain. Be that as it may, lesser said about the quality of medical evidence better it is. By scientific data, prosecution has miserably failed to establish as to which was the injury responsible for death and as to whether even it was the cumulative effect of all the injuries and if so, what was the weapon of offence with which the fatal blow has been inflicted. 7. Coming to the second point, so far as PW/I Rameshwari Devi is concerned, though she has given her version in the examination-in-chief as if she had been an eye witness but could not stand the cross-examination and contradicted herself on various issues. In fact she was not an eye witness even if it is seen in the light of the first information report. Besides this, the police station was only a furlong from the scene and no reason has been assigned as to what prohibited from lodging the report of the incident immediately. According to her. even the report was taken down in the school, which is not the case of Durga Dan, Headmaster, who has admitted that he lodged the report on the next day of the occurrence. This witness though is the author of the First Information Report, yet when Ex.P/5, Inquest Report was prepared it did not mention a word that he has already lodged a report at Police Station Kalu and has named the accused therein. Durgadan is the Headmaster of the School and it was expected of him to have lodged the report on the 14th evening itself. He is alleged to have done so only on 15th. But on 16th his statement gets negatived and then as per his own First Information Report, he was not an eye witness as he only appeared after an alarm was raised by the children and he came on the spot along with Rameshwaridevi. 8. He is alleged to have done so only on 15th. But on 16th his statement gets negatived and then as per his own First Information Report, he was not an eye witness as he only appeared after an alarm was raised by the children and he came on the spot along with Rameshwaridevi. 8. So far as PW/6 Jagdish Prasad is concerned, he has been declared hostile and same holds good for PW/8 Ramzan Khan who admittedly was the first man to have reached the spot and Mahavir Prasad, PW/9 Thus, even these three witnesses did not corroborate the prosecution story. The 1 statement of all the eye witnesses, therefore, do not inspire confidence. much I less when they are seen in the light of the medical evidence. The accused 1 using the stone and the axe have been given differently by Jagdish Prasad 1 PW 6, Bhanwar]aI PW/7 Ramzan Khan PW/8 and Mahavir Prasad PW/9. 1 Even the cause of infliction of injuries by the accused to the deceased I appears to be different than what is sought to be proved subsequently. It does appear that something transpired on which there was stone throwing by the accused as a result of which he might have sustained injuries and the I remaining injuries were sustained by fall. Even if all the injuries arc taken to be injuries by stone, then too there is nothing to indicate that accused I had any motive to inflict any particular injury which could even remotely I result in the death of the deceased. Neither the motive nor the intention to I kill, nor the knowledge that any of the injury caused may result in death, is I established in this case. 9. Coming to the third question, the approach of the learned Judge I that offence under section 304 Part II IPC is made out in the circumstances of the case I is just contrary to the ocular evidence as well as the medical evidence. if, I both are properly looked into, it would be very difficult to say as to which I injury was responsible for the death of the deceased and as to whether the particular injury had been caused by any sharp edged weapon. The ingredients of offence under section 304 IPC are set aside in the instant case. 10. if, I both are properly looked into, it would be very difficult to say as to which I injury was responsible for the death of the deceased and as to whether the particular injury had been caused by any sharp edged weapon. The ingredients of offence under section 304 IPC are set aside in the instant case. 10. In my opinion, from the total perusal of the record, the offence cannot travel beyond Sections 323 IPC and that too because there is circumstantial evidence to indicate about the infliction of injuries by throwing of stone. In this eventuality, the appeal is required to be partly allowed. The conviction of the accused appellant, therefore, for offence under section 304 Part II IPC is set aside and he is convicted for offence under section 323 IPC. He has already remained in jail for six years and no sentence is required to be passed against him as he has already undergone more than what is maximum prescribed. He shall be released forthwith, if not required in any other case.Appeal partly allowed. *******