JUDGMENT R.M.lodha, J. - Bhausingh 5/0 Damadu Chavan original accused No. 1 - A-11 and Madhukar s/o Damadu Chavan original accused No. 2 - A-21 have taken exception to the conviction and sentence passed by the IInd Addl. Sessions Judge, Amravati on 10.10.1994, in Sessions Trial No. 46/1989, convicting both the accused/appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing both of them to suffer RI. for life and to pay a fine of Rs. 500/- each and in default of payment of fine to suffer further R.I. for 3 months. 2. Mr. M.R Daga, the learned Counsel for the appellants/accused has mainly argued that the deceased Hansa Raja Chavan has not met homicidal death and, therefore, the conviction and sentence awarded by the learned Trial Court to the accused/appellants, was not justified. The learned Counsel for the accused/ appellants has also urged that P.W. 3 Rani s/o Raja Chavan and P.W.1 6 Smt. Indu w/o Hansa Chavan, who, according to the prosecution case, are the eye witnesses, are not reliable because they were not occurrence witnesses and they gave exaggerated the incident in their depositions. Mr. Daga, thus, submitted that the conviction and sentence awarded by the Trial Court is liable to be set aside. 3. Mr. Agrawal, the Addl. Public Prosecutor, fairly submitted that it would be difficult for him to defend the finding before this Court that the deceased Hansa Raja Chavan met with homicidal death. The Addl. Public Prosecutor further submitted that the medical evidence led by the prosecution does not support the case (if homicidal death and, therefore, to that extent the judgment of the Trial Court cannot be sustained. Mr. Agrawal, the learned Addl. Public Prosecutor, however, submitted that the accused/appellants, on the facts found and evidence led by the prosecution, can safely be convicted for the offence punishable under Section 324 r/w Sec. 34 of the Indian Pena1 Code. 4. To appreciate the contentions of the learned Counsel for the parties, brief survey of the prosecution case may be adverted to. Public Prosecutor, however, submitted that the accused/appellants, on the facts found and evidence led by the prosecution, can safely be convicted for the offence punishable under Section 324 r/w Sec. 34 of the Indian Pena1 Code. 4. To appreciate the contentions of the learned Counsel for the parties, brief survey of the prosecution case may be adverted to. According to the prosecution story unfolded during the trial, on 5.9.1988 at about 4.00 p.m., A-2 Madhukar s/o Damadu Chavan pelted stones at deceased Hansa Raja Chavan, as a result thereof the deceased Hansa Raja Chavan fell down and A-1 Bhailsingh s/o Damadu Chavan who was having a stick In one hand and stone in his other hand, Inflicted 23 blows on the person 1/2 Hansa Raja Chavan, as a result of which Hansa Raja Chavan died on 5.9.1988 itself. The post-man examination of deceased Hansa Raja Olavan was conducted on 6.9.1988 and the said examination revealed that the deceased Hensa Raja Chavan had one external injury viz. contusion 1/2 x 1/2" left clavical. The internal examination of the deceased Hansa Raja Chavan revealed that his liver and kidney were rupturpd. Doctor Deshpande (PW 2) opined that the deceased Hansa Raja Chavan died because of haemorrhagic shock due to rupture of liver and kidney. 5. Investigation of the crime proceeded and ultimately on conclusion of the investigation, the investigating Officer challenged the accused/appellants for the offence under Section 302 r/w Sec. 34 of the Indian Penal Code. The Sessions judge, Amravati, on 20th July, 1992 charged both the accused/appellants that in furtherance of their common intention on or about 5.9.1988 at about 4.00 p.m. at Lalkhed they Intentionally or knowingly caused the death of Hansa Raja Chavan by means of stone and stick and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The prosecution in trial examined Shri Vishnu Shivlal Jadhao (PW 1), Shri Manohar Pandurang Deshpande (PW 2), Shri Rami s/o Raja Chavan (PW 3), Shri Amrut 5/0 Narayan Gawai (PW 4), Shri Chalnsingh s/o Amerslngh Rathod (PW 5), Smt. Indu w/o Hansa Chavan (PW 6), Shri Nandu s/o Vasantrao Hande (PW 7), Shri Vilas Pandurang Singalwar (PW 8) and Shri Pullan s/o Laxmanrao Ganeshkar (PW 9) and also exhibited various documents including inquest panchanama [Exh. 131; spot panchanama [Exh. 14], Post-mortem Report [Exh. 251 and the First Information Report [Exh. 361. 131; spot panchanama [Exh. 14], Post-mortem Report [Exh. 251 and the First Information Report [Exh. 361. 6. The IInd Addi. Sessions Judge, Amravati, has observed above, after hearing the learned Counsel for the parties convicted the accused/appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced both of them as aforesaid. 7. The post-mortem report of the deceased Hansa Raja Chavan reveals that the deceased had only one external injury viz. contusion 1/2" x 1/2" and two internal injuries viz. ruptured liver and kidney. PW 2 Dr. Deshpande in his deposition before the Court testified that the injuries as mentioned in the post-mortem report were found on the person of the deceased Hansa Raja Chavan at the time of post-mortem and the cause of death was haemorrhagic shock due to rupture of liver and kidney. He further deposed that if the stone, as shown to him in the Court was thrown and hit with force, it could cause rupture to kidney and if there was forcible blow by stick on the region of liver, the liver could be ruptured. However, in the cross-examination, he Conceded that he was not sure whether there was any internal injury or not. He further admitted in the cross-examination that there was no external injury in the left of left kidney or liver. He has also deposed in his cross-examination that if forcible blow was given by stick or stone on the body, then necessarily there must be contusion provided the person must survive for half an hour. PW 3 Rami who is the brother of the deceased Hansa Raja Chavan testified before the Court that the accused/appellant No. 2- Madhukar Chavan came in front of Hansa Raja Chavan and gave a blow by throwing stone at Hansa. Hansa was injured due to that blow of stone and fell down and thereafter the accused/appellant No.1 Bhausingh gave two stick blows to Hansa. PW 6 Smt. Indu who is the wife of the deceased Hansa deposed before the Court that the accused/appellant No. 2 Madhukar gave blow by his stick to her husband. Her husband fell down and thereafter the accused/appellant No. 1 Bhausing came there and gave stick blows to her husband. 8. PW 6 Smt. Indu who is the wife of the deceased Hansa deposed before the Court that the accused/appellant No. 2 Madhukar gave blow by his stick to her husband. Her husband fell down and thereafter the accused/appellant No. 1 Bhausing came there and gave stick blows to her husband. 8. At this stage, without going into the omissions and contradictions pointed out by the defence in the depositions of P.W. 3 Rami and PW 6 Smt Indu, in view of the evidence which has come on record and particularly the medical evidence viz., the post-mortem report and the deposition of PW 2 Dr. Deshpande, it cannot be said that the deceased Hansa Raja Chavan met homicidal death and to that extent the submission, made by ,the Addl. Public Prosecutor as well as by the Counsel for appellants, is justified that on the basis of the evidence on record the homicidal death of the deceased Hansel Raja Chavan cannot be said to have been stabilized. In this view of the matter, the conviction of the accused/appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code cannot be sustained. 9. Adverting to the question whether in the facts and circumstances of the case, the prosecution has been able to establish the offence under Section 324 read with Section 34 of the Indian Penal Code against both the accused/appellants or any one of them, it may be observed that so far as the appellant/accused No. 1 Bhausingh is concerned, there is no reliable evidence whatsoever on the basis of which it can be held that the accused/appellant No. 1 is guilty of the offence punishable under Section 324 or any other section of the Indian Penal Code. It would be seen that according to the PW 3 Rami, the accused/appellant No. 1 Bhausingh was armed with the stick in one hand and stone in the other hand. PW 3 Rami further deposed that after the accused/appellant No. 2 Madhukar had pelted the stone at Hansa Raja Chavan (deceased) and he fell down, the accused/appellant No. 1 gave 2-3 stick blows to Hansa. However, this testimony of PW 3 Rami is not at all corroborated by the medical evidence. Only one external injury was found on the person of the deceased Hansa and that too contusion ½” x ½”. However, this testimony of PW 3 Rami is not at all corroborated by the medical evidence. Only one external injury was found on the person of the deceased Hansa and that too contusion ½” x ½”. According to the prosecution, the said injury resulted because of pelting of the stone by accused/appellant No. 2 Madhukar at Hansa. Similarly, PW 6 Smt. Indu who is the wife of the deceased Hansa deposed that after her husband fell down, the accused No. 1 gave stick blows to her husband. This evidence of PW 6 Smt. Indu is not corroborated by the medical evidence and, therefore, not reliable. Besides that PW3 Rami deposed that about 1½ months prior to this incident, A-1 Bhausingh had given one axe blow to deceased Hansa and thus possibility of A-1 Bhausingh having been falsely implicated cannot be ruled out. Thus, there is no sufficient reliable evidence to implicate the appellant/accused No.1 Bhausingh and, therefore, the accused/appellant No. 1 Bhausingh is entitled to be acquitted and the offence punishable under Section 324 r/w Sec. 34 of the Indian Penal Code cannot be said to have been established against A-1 Bhausingh. 10. As regards the complicity of the accused/appellant No. 2 Madhukar, the prosecution witnesses PW 3 Shri Rami and PW6 Smt. Indu, both have consistently deposed before the Court that the accused/appellant NO. 2 Madhukar pelted stone at deceased Hansa and he fell down. The medical evidence corroborates this aspect of the matter since it is revealed that the deceased Hansa had one contusion 1jz" x ½ left clavical To that extent: the deposition of PW3 Rami and PW 6 Indu is reliable and is duly corroborated by the medical evidence. Looking to the instrument i.e. the stone used by the accused/appellant No. 2 and the injury sustained by the deceased Hansa, we are satisfied that the Addl. Public Prosecutor Mr. Agrawal is justified in his submission that the accused No. 2 is liable to be convicted for the offence under Section 324 of the Indian Penal Code. 11. We have heard both the learned Counsel on the point of sentence. Mr. Dagga submits that the accused/appellant No. 2 has already suffered imprisonment of 14 months. Mr. Agrawal, the Addl. Public Prosecutor does not dispute this fact. 11. We have heard both the learned Counsel on the point of sentence. Mr. Dagga submits that the accused/appellant No. 2 has already suffered imprisonment of 14 months. Mr. Agrawal, the Addl. Public Prosecutor does not dispute this fact. Looking to the nature of the incident, injury caused to the deceased Hansa by A-2 Madhukar and the facts and circumstances of the case, the accused/appellant No. 2 Madhukar is sentenced to suffer imprisonment already undergone by him and the fine imposed by Trial Court for the offence under Section 324 of the Indian Penal Code. 12. In the result, this criminal appeal is partly allowed. The conviction and sentence awarded by the IInd Addl. Sessions Judge, Amravati on 10.10.1994 to both the accused/appellants for the offence punishable under Section 302 r/w Sec. 34 of the Indian Penal Code, is quashed and set aside. The accused/appellant No. 1, Bhausingh S/o Damadu Chavan is acquitted. He is directed to be released forthwith in case he is not required in any other case. The accused/appellant No. 2 Madhukar Damadu Chavan is convicted for the offence u/Sec. 324 of the Indian Penal Code and sentenced to suffer imprisonment already undergone. The accused/ appellant No. 2 Madhukar Damadu Chavan is thus also directed to be released forthwith, if not required in any other case. The fine, if deposited by the accused/appellant No. 1 shall be refunded to him. The fine imposed on accused/ appellant No. 2 is maintained and he is directed to deposit the same, if not deposited, within two months from today. Appeal allowed partly.