Judgment Y. R. MEENA, J. ( 1 ) THE brief facts giving rise to this appeal are that on 7-3-1992, complainant Sitaram along with injured Kailash lodged a written report Ex. P-i at police station Todaraisingh alleging therein that the appellants and two others were making the way through his field in an illegal manner and when the complainant restrained them, they gave beating to his Kaka Ladu Maharaj. His condition is serious. Therefore, an enquiry may be conducted. From the back of the report, it is also mentioned that Surajmal and others gave beating to him also in the evening. The case was registered u/ss. 147, 341, 323 and 324 IPC. Ladu Maharaj was admitted in the hospital on 8-3-1992. He was medically examined. Injury report is Ex. P-13. He was discharged from the hospital on 11-3-1992 and he died on 20-3-1992. Post-mortem was got conducted and in the post mortem report the Doctor opined that the cause of death of Ladu Maharaj is injury on head and brain. Site Plan Ex. P-10 was prepared. Accused-appellants were arrested on 2-4-1992. At their instance, Lathies were recovered. The case was then converted into Sec. 302 read with Sec. 34 IPC. After due investigation, the challenge was filed against four persons viz. , Surajmal, Suvalal, Durgalal and Mahaveer and charges were framed. Accused appellants denied the charges and claimed for trial. During trial, the prosecution has examined as many as 15 witnesses. The statements of accused-appellants have been recorded u/sec. 313 Cr. P. C. Considering the material on record, the Trial Court has acquitted Durgalal and Mahaveer but convicted and sentenced the accused-appellants Surajmal and Suvalal as aforesaid. ( 2 ) BEING dissatisfied with the order of trial Court, the appellants have preferred his appeal. ( 3 ) LEARNED Counsel for the appellants Mr. N. S. Naqvi has submitted that the deceased Ladu was admitted in the hospital on 8-3-1992 and found fit for discharge on 11-3-1992 and ultimately he expired on 20-3-1992. Even a single injury was found while he was admitted and examined in the hospital. Therefore, the case does not travel beyond Sec. 323 IPC. As per prosecution case, there are five eye witnesses viz. , PW 1 Sita Ram, PW 2 Kailash, PW 3 Kana and PW 5 Ghasi and PW 13 Gopi. PW 3 Kana and PW 5 Ghasi have been declared hostle. Therefore, the case does not travel beyond Sec. 323 IPC. As per prosecution case, there are five eye witnesses viz. , PW 1 Sita Ram, PW 2 Kailash, PW 3 Kana and PW 5 Ghasi and PW 13 Gopi. PW 3 Kana and PW 5 Ghasi have been declared hostle. PW 13 Gopi is not believed by the Trial Court. The statement of PW 1 Sita Ram reveals that he has not witnessed the scene. Thus, only eye witness left with is PW 2 Kailash. The incident has occurred all of a sudden. There was no intention or motive behind this incident. It is a matter of cross case. Even the accused-appellants have sustained injuries. Therefore, there was no justification to convict them u/sec. 304 Part II IPC. ( 4 ) THE perusal of site plan Ex. P-10 reveals that incident has taken place at place AX in the field of deceased Ladu Maharaj. It is an admitted case of the accused-appellants that they sustained injuries in the incident, therefore, their presence remains no more in doubt. They have taken part in the incident. Ex. P-25 post mortem report further supports the case of prosecution that cause of death of deceased Ladu Maharaj is as a result of ante mortem injury on skull and brain which is sufficient to cause death in the ordinary course of nature. The specific injury on head has been asigned to accused appellants. Therefore, no doubt is remained that injury which is assigned to accused-appellants is the cause of death of Ladu Maharaj, but the question remains whether this injury is caused by accused Surajmal or Survalal. Admittedly the injury on head is one. That is further evident from injury report Ex. P-13 of Ladu Maharaj when he was admitted in hospital on 7- 3-1992. There was only one injury on his hdd and there was no fracture. That can be seen from NSU II intake and output record of Ladu maintained in the hospital wherein it has been shown that after X ray of skull no evidence of fracture is found. when injury is one and assigned to two persons, can both the persons be sentenced with the aid of Sec. 34 IPC. That can be seen from NSU II intake and output record of Ladu maintained in the hospital wherein it has been shown that after X ray of skull no evidence of fracture is found. when injury is one and assigned to two persons, can both the persons be sentenced with the aid of Sec. 34 IPC. This issue has been considered in the case of Mohar Singh and Others v. State of Rajasthan and their Lordships have observed in para 8 of the judgment as under: However, all these witnesses have named Tej Singh and Charan Singh accused for giving lathi blows to deceased Baloo, but from his post mortem report Ex. P-30, which has been proved by the Doctor, we find only one injury on the body of Baloo. These discrepancies which have been pointed out in respect of the statement of Smt. Bhauti are also present in the statements of other witnesses namely PW 8, PW 9, PW 12, PW 13, PW 14, PW 15, and therefore, we do not feel it safe to fasten the guilt on the accused persons because these parties witnesses have named them as the assailants individual victims. And, of the judgment, their Lordships have agreed with the view taken by this High Court. The relevant part of para 12 reads as under: After hearing learned Counsel for the parties we are of the opinion that the High Court was right in not relying on the testimony of PW5. 8, 9 and 12 to 15 for the reasons given by it. T ( 5 ) IN the case in hand, the facts are not in dispute that hand injury has been assigned to Surajmal and Survalal both while only one head injury has been found by the doctor at the time of post mortem. ( 6 ) THE facts are not also in dispute that incident took place on 7-3-1992 Ladu Maharaj was admitted in the hospital on 8-3-1992, he was discharged from the hospital on 11-3-1992, and thereafter, he died on 20-3-1992. When he was discharged from the hospital, he found fit and no more treatment in the hospital was required. ( 6 ) THE facts are not also in dispute that incident took place on 7-3-1992 Ladu Maharaj was admitted in the hospital on 8-3-1992, he was discharged from the hospital on 11-3-1992, and thereafter, he died on 20-3-1992. When he was discharged from the hospital, he found fit and no more treatment in the hospital was required. It is true that in post mortem report, the doctor has opined that cause of death is head injury but whether this is the injury which was caused by either of the accused-appellants or the deceased had sustained head injury subsequently after discharge. A doubt has been raised as in the discharge ticket dated 11-3-1992 Ex. P-29, it has been written fit for discharge means there was no seriousness on account of the injury sustained by deceased in the incident on 7-3-1992. That further creates doubt in the case of prosecution. Therefore, considering the view taken by their Lordships in the case of Mohar Singh (supra) and the fact that Ladu Maharaj was discharged from the hospital on 11-3-1992 after found fit for discharge and subsequently he expired on 20-3-1992, it raised doubt in the prosecution case and prosecution has thus failed to prove its case beyond reasonable doubt. ( 7 ) IN the result, the appeal is allowed. The conviction and sentences are set aside, they are acquitted from the charges levelled against them. The accused-appellants be released forthwith, if not required in any other case. Appeal allowed. .