JUDGMENT 1. - This appeal has been preferred against judgment dated 29.9.95 passed by the Additional Sessions Judge, Deeg, whereby he convicted the appellant for offences under section 302 and 325, IPC and sentenced him to file imprisonment with a fine of Rs.2,000/-, in default of payment of fine to further undergo two years' RI on the first count and 3 years's RI with a fine of Rs.1,000/- in default of payment of fine, to further undergo 6 months' RI on second count. Both the substantive sentences were ordered to run concurrently. 2. Succinctly stated the relevant facts for disposal of this appeal are that on 27.8.85 at about 10 A.M., informant PW1 Sheru alongwith PW2 Irshad, PW3 Mannan. PW6 Fateh Mohd. and deceased Baad Khan (all by caste Mev) after offering their prayer 'Namaj" in Idgah of village Beema were returning to their village Chhapra. When they reached near field of Sharief, Sultan & Chhutmal, accused appellant Iddar alongwith 12 co-accused persons namely (1) Razak. (2) Mammal, (3) Doda alias Mohd. khan, (4) Rahim Bux, (5) Jahaj, (6) Shakur. (7) Subhan, (8) Ayyub, (9) Subekhan, (10) Innas, (11) Samsu, & (12) Fateh Mohd. all by caste Mev and resident of village Chhapra surrounded Harru and others. It is alleged that appellant Iddar, co-accused Razak & Rahim Bux dealt lathi blows on the head of Baad Khan. Co-accused Mammal gave a lathi blow on the mouth of Baad Khan with the result his teeth were broken and he also sustained injury on his nose. Co-accused Doda also gave lathi blow on Baad Khan's mouth with the result that the latter's tongue was scruptured. Co-accused Shakur gave lathi blow on Baad Khan's back, while co-accused Jahaj gave lathi thrust blow on his abdomen. It is further alleged that co-accused Subhan belaboured PW6 Fateh Mohd. by lathi and caused injuries on his head and wrist while co-accused Razak & Mammal also caused injuries to him. Co-accused Subekhan and appellant Iddar allegedly dealt lathi blows on the head of PW4 Harru causing injuries to him, while co-accused Samsu & Ahmed caused injuries to Ishak by lathi causing injuries on his teeth and nose. Co-accused Jahaj dealt lathi blow on the head of PW3 Mannan while co- accused Innas and Ayub gave lathi blows to him causing injuries on the back and hand respectively. Co-accused Jahaj dealt lathi blow on the head of PW3 Mannan while co- accused Innas and Ayub gave lathi blows to him causing injuries on the back and hand respectively. On the alarm raised by these injured persons, PW1 Sheru, PW5 Din Mohd., PW7 Asu PW8 Rahman and Sujjat came running and rescued them. Baad Khan and Harru whose conditions were serious, alongwith other injured persons were immediately taken to PW9 Dr. Vimal Gupta medical Officer Incharge of Govt. Hospital, Pahari. On the same day, at about 5.30 PM. PW1 Sheru submitted a written report Ex.P1 to PW16 Ali Mohd. SHO PS Pahari, whereupon the latter drew formal F.I.R. Ex.R41 and initially registered a case for offences under section 147, 148, 335, 323, 307 IPC,. He requested the doctor to examine the injured persons. 3. On the same day, at about 6.45 PM. PW9 Dr. Vimal Gupta examined Baad Khan (deceased) and as per MLR Ex.R2 found the following injuries on his person : 1. Swelling 12 cm x 10 cm on the parieto temposal region on the rt. side of scalp. 2. Swelling 13 cm x 2 cm on the temporal region of the scalp on left side. 3. Loss of lower left pre molar tooth with adjacent laceration on the cheeks and bleeding from the gums.Baad Khan was unconscious. His pulse was 120/minute having low volume. His blood pressure was 110/70. His pupils were semidilated and were not reacting to light. Baad Khan was bleeding from mouth and his condition was serious. The doctor referred him to General Hospital. Bharatpur for hospitalisation and further management. The doctor also opined that injury Nos. 1 to 2 sustained by Baad Khan were grievous in nature, while injury No. 3 was simple and caused by blunt object. He also advised for the X-ray examination of the scalp of Baad Khan vide letter Ex.P.3. 4. Dr. Vimal Gupta also examined other injured persons. Ishak Khan had four injuries detailed in M.L.R. Ex.R4 while PW3 Mannan, PW6 Fateh Mohd., PW4 Harru had four, five and two injuries incorporated in M.L. Rs. Ex.R5, Ex.R6, and Ex.R7 respectively. The doctor opined that the duration of their injuries was within 24 hours. 5. He also examined PW15 Farookh who had two injuries detailed in MLR Ex.R8 but duration of his injuries was more than 72 hours. 6. Ex.R5, Ex.R6, and Ex.R7 respectively. The doctor opined that the duration of their injuries was within 24 hours. 5. He also examined PW15 Farookh who had two injuries detailed in MLR Ex.R8 but duration of his injuries was more than 72 hours. 6. As per X-ray report, Ex.P. 12 PW2 Ishak had fractures of the upper end of ulna and nosal bone, while PW15 Farukh alias Faroon had a fracture of proximal phalanges of little, ring and index fingers and PW4 Harru had a fracture of his right parietal bone as per X-ray reports Ex.P13 & Ex.R 14. 7. Baad Khan, while he was taken to Bharatpur, succumbed to his injuries and as such, offence of section 302, IPC was also added. 8. On 28.8.85 PW9 Dr. Vimal Gupta, conducted the medico legal autopsy and on dissection found the following internal injuries on the person of Baad Khan:- (1) Blood clot under the right temporal and parietal bone of scalp and ' above the left temporal region of the scalp. (2) Fracture of right temporal and parietal bones and left parietal bone. (3) Blood clot between the skull and dura matter below right parietal and temporal bone. (4) Right middle meningeal artery was injured. (5) Membranes covering the right and left lobes of brain were congested. Rest part was healthy. (6) Right temporal and parietal lobes and left parietal lobes of the brain were congested. As per post mortem report Ex.R9, the doctor opined that the cause of death was intra cranial (extradural) haematoma and shock as a result of external injury No. 1 of M.L.R. Ex.P.2. 9. PW16 Ale Mohd. SHO inspected the site and prepared site plan Ex.R21. He arrested as many as nine accused persons on 9.9.85. It is alleged that in pursuance of their respective informations given under section 27 of the Evidence Act, those accused persons got recovered lathi from their possession. However, none of those recovered lathies was blood stained. 9. PW16 Ale Mohd. SHO inspected the site and prepared site plan Ex.R21. He arrested as many as nine accused persons on 9.9.85. It is alleged that in pursuance of their respective informations given under section 27 of the Evidence Act, those accused persons got recovered lathi from their possession. However, none of those recovered lathies was blood stained. After usual investigation, on 7.12.85 the SHO submitted a challan against only nine accused persons in the court of the Munsif and Judicial Magistrate Kama, who after perusing challan papers open the same also took cognizance against remaining four accused persons namely Rahim Bux, Jahaj, Sube Khan and Mammal for offences under sections 147, 148, 323, 325, 307 and 302 read with section 149, IPC and committed the case to the court of the learned Additional Sessions Judge. 10. Appellant was charged for offences under sections 147, 323, 325/149 IPC while co-accused persons were charged for the offences under section 147, 323, 325/149, 307/149 and 302/149 IPC. 11. Appellant Iddar was as also all the co-accused persons denied their indictment and claimed trial. To prove its case, the prosecution examined as many as 16 witnesses. The appellant in his plea recorded under section 313, Cr.P.C. denied the circumstances appearing against him in the prosecution evidence and claimed that the prosecution witnesses deposed against him due to animosity. Similar was the plea taken by co-accused persons. However, co- accused Rahim Bux, Jahaj, Sube Khan and Ayub also took the plea of alibi. They examined DW1 Mohd. Yusuf in their defence. 12. The learned trial court by its impugned judgment held (1) that there was no reliable evidence to establish beyond reasonable doubt that the accused persons had formed an unlawful assembly with a common object to commit murder of Baad Khan or to cause injuries to other persons and as such, each of the accused was liable for his individual act and that no accused was vicariously liable for the act of other accused : (2) that there was no intention of the appellant and other co-accused Razak & Rahim Bux to commit the murder of Baad Khan; (3) that the alleged eye witnesses, PW1 Sheru, PWS Din Mohd., PW7 Asu & PW8 Rahman and injured witnesses, namely PW2 Ishak, PW4 Harru, PW6 Fateh Mohd. & PW15 Faroon during investigation and trial have improved the prosecution story by assigning specific overt acts of various accused persons in respect of the injuries sustained by Baad Khan deceased, which was no corroborated by the medical evidence namely M.L.R. Ex.R2. wherein the doctor had noticed only three external injuries on the person of Baad Khan; (4) that in written report Ex.Pi informant PW1 Sheru has exaggerated injuries sustained by Baad Khan deceased and also tried to implicate seven accused persons because no injury was found by the doctor on the back, abdomen, nose and tongue of deceased. Thus there was variance between the ocular and medical evidence in respect of the injuries sustained by the deceased; (5) that all the prosecution witnesses have consistently deposed that appellant Iddar had dealt lathi blow in the left side of the head of Baad Khan, which as per testimony of PW9 Dr. Vimal Gupta caused fracture of right and left temporal & parietal bones and proved fatal and that the said injury caused by the appellant was sufficient in the ordinary course of nature to cause death; (6) that it was not proved that co-accused Shakur & Jahaj caused and injury on the person of deceased Baad Khan; (7) that as per the testimony of injured and eye witnesses co-accused Razak & Rahim Bux each had dealt lathi blow on the left side of Baad Khan but PW9 Dr. Vimal Gupta, found only one external injury i.e. injury No. 2 of M.L.R. Ex.P.2 on the left side of the head of Baad Khan and thus it was doubtful as to which of these two co- accused had caused the said injury on the head of deceased Baad Khan; (8) that similarly, as per the prosecution evidence co-accused Mammal & Doda gave lathi blows on the cheek of deceased Baad Khan but as per medical evidence, the deceased had received only one external injury (injury No. 3 of M.L.R. Ex.P2) and thus it was doubtful as to which of these two co-accused had inflicted the said injury, and, therefore, except appellant Iddar, co-accused persons namely Razak. Rahim Bux, Mammal & Doda cannot be held guilty for committing murder of deceased Baad Khan; (9) that from the prosecution evidence, it was proved beyond reasonable doubt that appellant Iddar had deliberately caused a lathi blow on the head of Harru, resulting in fracture of right parietal bone and, therefore, the offence under section 325, IPC has been successfully brought home against him; and (10) that it stands well proved that co-accused Innas intentionally caused simple injuries to Ishak and that co-accused Samsu caused grievous injuries to him, that co accused Shakur & Subhan Khan caused injuries to Fateh Mohd. while co-accused Innas caused injury to Ishak and co-accused Mammal caused injuries to Mannan, Shakur and Fateh Mohd. The learned trial court therefore, convicted appellant Iddar for offences under section 302 & 325, IPC and sentenced him in the manner indicated above. He also found guilty co accused Samsu for offence under section 325, IPC, co-accused persons namely Jahaj, Innas, Shakur and Subhan for offence under section 323, IPC, but instead of sentencing released them on probation. He also ordered that each of these four accused persons should pay compensation to the injured persons. However, no appeal has been filed by the convicted co-accused persons. 13. We have heard Shri N.A. Naqvi the learned counsel for the appellant and Shri M.L. Goyal, the learned public prosecutor at length and carefully perused the record of the trial court in extenso. 14. Shri Naqvi has strenuously canvassed that admittedly, no charge for the offence under section 302, IPC simpliciter was framed against the present appellant, that on the other hand, he and all co-accused persons were charged for offence under section 302/149 IPC, that in the charge specific overt act of the appellant namely inflicting a lathi blow on right side of the head of deceased Baad Khan causing fatal injury was mentioned and that the learned trial Judge disbelieving the prosecution evidence has acquitted co-accused persons but has convicted the appellant under section 302, IPC, which has caused great prejudice to him. The learned trial Judge has, therefore, committed grave illegality in convicting the appellant for offence under section 302, IPC simpliciter. The learned trial Judge has, therefore, committed grave illegality in convicting the appellant for offence under section 302, IPC simpliciter. In support of his contention Shri Naqvi has placed reliance on the decision rendered in Subran v. State of Kerala (1993(3) SCC p.32) , wherein it has been held that a person charged for an offence under section 302 IPC read with section 149 cannot be convicted of the substantive offence under section 302, IPC without a specific charge having been framed against him as envisaged by law, and that the conviction for the substantive offence in such a case in unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under section 302 IPC. It has been further held that accused appellant was never called upon to meet a charge under section 302 IPC simpliciter and, therefore, in defending himself, he could not be said to have been called upon to meet that charge and that he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses. The Apex Court, therefore, held that the conviction of the appellant for an offence under section 302 was not permissible. However, the appellant in that case was held guilty for the offence under section 304 part, IPC. 15. On the other hand, the learned Public Prosecutor has asserted that PWs 1 to 8 & 15 have consistently deposed that appellant Iddar had inflicted a lathi blow on the right side of the head of deceased Baad Khan, which as per the medical evidence proved fatal and, therefore, the appellant had the intention and knowledge that he was inflicting such injury on the head of deceased Baad Khan was sufficient in the ordinary course of nature to have caused death and that on this aspect, all the prosecution witnesses have been cross examined at length and, therefore, no prejudice has been caused to the appellant, and as such the conviction of the appellant for offence under section 302 IPC simpliciter is not illegal. He has relied upon the decision in W. SIaney v. State of M R ( AIR 1956 SC 116 ) , wherein the charge against two accused persons was for offence under section 302 read with S. 34 IPC. He has relied upon the decision in W. SIaney v. State of M R ( AIR 1956 SC 116 ) , wherein the charge against two accused persons was for offence under section 302 read with S. 34 IPC. One of those accused was acquitted for the said offence, while other was convicted under section 302 IPC. No separate or alternative charge for offence under section 302 IPC was framed against him. The Apex Court after interpreting the provisions contained in sections 233, 535 and 537, Cr.RC. 1898, held that having regard to the nature of the charge framed, the omission to frame a separate charge under S. 302, IPC against appellant William was only a curable irregularity, which in the absence of any prejudice could not affect the legality of conviction under S. 302, IPC. It was further held that there was no prejudice to the accused by way of failure of justice. However, in the facts and circumstances of that case, appellant William was held guilty for offence under section 304, pt. II, arriving at the conclusion that there was no premeditation and there was a sudden fight, and that the nature of the injury was such that the accused could not be attributed with the special knowledge required by S. 300 IPC, nor was the injury sufficient in the ordinary course of nature to cause death. 16. We have bestowed our anxious consideration on the rival contentions made before us on this count. It will be conducive to quote in extenso the charge framed against the appellant and all the co-accused persons for offence under section 302 read with S 149, IPC which runs as under:- " 2- ;g fd vkius mijksDr fnukad] le; o LFkku ij lkekU; mns'; dh iwfrZ esa fof/k fo:) teko ds lnL; gksdj vk'k; vFkok tkurs gq, ckn [kka edcwy [kka tkfr eso fuoklh Nijk ds ykfB;ksa ls pksaVsa igWaqpk dj gR;k dj nh vkSj bl izdkj ;g d`R; fd;k tks fd Hkk0n0la0 dh /kkjk 301 ( 249 ) ds vUrxZr n.Muh; gSA " A careful perusal of the afore quoted charge reveals that no specific overt act of the accused appellant or any co- accused person regarding the injury sustained on the person of deceased Baad Khan has been mentioned therein. In written report Ex.R1 the informant, PW1 Sheru mentioned that as many as thirteen accused persons had surrounded Harru and others, that Iddar Razak and Rahim Bux inflicted lathi blows on the head of Baad Khan, whereas co-accused Mammal, Doda, Shakur and Jahaj dealt lathi blows and caused injuries on the mouth, nose, tongue back and abdomen of the deceased. During investigation, the injured persons and eye witnesses in their police statements did not specifically state that appellant Iddar had inflicted a lathi blow on the right side of the head of deceased Baad Khan causing fatal injury to him. However, during trial, all these witnesses improved their earlier version and deposed that appellant Iddar had of inflicted a lathi blow on the right side of the head of Baad Khan, which as per the testimony of PW9 Dr. Vimal Gupta, resulted in fracture of right temporal and parietal bone and the left parietal bone with congestions of left parietal lobe. The doctor however, stated that in his opinion, the cause of death was due to intra cranial haemorrhage (extra dural) and was shock, which was the result of external injury No. 1 namely, swelling 12 cm o 10 cm on the parietal temporal region of the scalp at the right side. The doctor further deposed that the said injury was sufficient to cause death. However, he did not mention this fact in the post mortem report Ex.P.9. In his cross examination, he stated that if proper treatment would have been given to deceased Baad Khan in time then his life could have been saved. Initially, the prosecution case was that appellant Iddar and co-accused Razak and Rahim Bux had inflicted lathi blows on the head of deceased Baad Khan. In his cross examination, he stated that if proper treatment would have been given to deceased Baad Khan in time then his life could have been saved. Initially, the prosecution case was that appellant Iddar and co-accused Razak and Rahim Bux had inflicted lathi blows on the head of deceased Baad Khan. The learned trial judge after closely scanning and scrutinising scrutinised statements of PWs 1 to 8 & 15 came to the conclusion that since only two external injuries were noticed by the doctor on the head of deceased Baad Khan, one on the right and another on the left side of the temporal region of the deceased, that the witnesses deposed that accused Razak and Rahim Bux also dealt lathi blows on the left side of the head of Baad Khan, it was doubtful as to which of them had inflicted lathi blow on the left side of the head of Baad Khan and caused external injury No.2 of M.L.R. Ex.P.2, there was significant and material variance between ocular and medical evidence. The learned trial Judge, therefore, gave benefit of doubt to accused Razak and Rahim Bux and acquitted them for offence under section 302 IPC. Since no specific charge was framed against the appellant for causing injury on the right side of the head of deceased Baad Khan and the prosecution story was materially improved during trial, we are of the considered opinion that the appellant was misled in defending himself for the charge under section 302/149 IPC and that the substantial prejudice has been caused to him. 17. In Motilal v. State of Rajasthan, (1984 RLR 561 (FB) , no charge of substantive offence of section 326 was framed against the accused, whereas the charge was framed for offence under section 326 with the aid or section 149, IPC. 17. In Motilal v. State of Rajasthan, (1984 RLR 561 (FB) , no charge of substantive offence of section 326 was framed against the accused, whereas the charge was framed for offence under section 326 with the aid or section 149, IPC. The Full Bench of this court after extensively considering the case law on the point, held that the law laid down in W. SIaney's case (supra) on this point holds the field; that the principle of law laid down in it, admits of no doubt or debate and that no trial is vitiated and no conviction can be set aside simply because separate/distinct charge has not been framed for a specific offence, although the charge with the aid of section 149, IPC has been framed for that particular specific offence and if no prejudice is caused to the accused. We respectively agree with this dictum of law. 18. Thereafter the three judges Bench of the Apex Court in Subran v. State of Kerala (Supra) has held that after framing charge under S. 302 read with S. 149 IPC, an accused cannot be convicted for substantive offence under S. 302 IPC simpliciter because such an accused was no called upon to meet the charge under S. 302 IPC simpliciter, and, therefore, in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during cross examination of the prosecution witnesses. As mentioned earlier, in our considered opinion, by not framing a specific charge for the offence under S. 302 IPC simpliciter, and also not specifically mentioning the overt act of appellant Iddar regarding the infliction of lathi blow and causing injuries on the right side of the head of deceased Baad Khan in the charge under section 302 read with S. 149, IPC, by no stretch of imagination it can be said that the appellant knew very well about the said accusation against him and that no substantive prejudice has been caused to him. We, therefore accept the argument advanced by Shri Naqvi and held that the conviction of the appellant for the offence under S. 302, IPC simpliciter for causing fatal injury to deceased Baad Khan is legally not permissible. We accordingly set aside the conviction of the appellant for the offence under section 302, IPC. We, therefore accept the argument advanced by Shri Naqvi and held that the conviction of the appellant for the offence under S. 302, IPC simpliciter for causing fatal injury to deceased Baad Khan is legally not permissible. We accordingly set aside the conviction of the appellant for the offence under section 302, IPC. 19. Now next question, which poses our attention is as to what offence has successfully been brought home beyond reasonable doubt against the appellant in respect of the injuries caused by him on the head of Baad Khan (deceased). Shri Naqvi has submitted that from the evidence recorded in this case, it can not be inferred that the appellant had an intention to commit murder of Baad Khan; that the incident took place all of a sudden and that co accused Razak and Rahim Bux, each one of whom had dealt lathi blow on the head of Baad Khan, have already been acquitted and that from the evidence, it can be held that the appellant had the knowledge that by inflicting the lathi blow on the head of the deceased, he was likely to cause death and, therefore, at the most of offence made out against the present appellant does not travel beyond offence under section 304 part II, IPC. On the other hand, the learned Public Prosecutor has submitted that since the appellant had dealt a lathi blow on the head of Baad Khan, which is a vital part of the body, it stands well established that he had the intention to commit murder of deceased Baad Khan and the case does not fall within any exception of section 300, IPC. 20. We have carefully gone through the evidence recorded in this case. PWs 1 to 8 & 15 have consistently deposed that after offering the prayer (Namaj) in the Idgah Masjid of village Beema when Baad Khan and others were returning to their village, they were way laid by accused persons and that all of a sudden, they inflicted multiple injuries to Baad Khan, Fateh Mohd., Harru, Ishak and Mannan. Regarding the same incident Mohd. Khan s/o Chand Khan Mev had also submitted a written report dated 8.9.85 (Ex.D.11) against the complainant party, whereupon crime No. 109/85 for offences under sections 147, 323 & 326 read with Section 149, IPC was registered at police station Pahari. Alongwith the said report, injury reports of Mohd. Regarding the same incident Mohd. Khan s/o Chand Khan Mev had also submitted a written report dated 8.9.85 (Ex.D.11) against the complainant party, whereupon crime No. 109/85 for offences under sections 147, 323 & 326 read with Section 149, IPC was registered at police station Pahari. Alongwith the said report, injury reports of Mohd. Khan and Subhan Khan were also submitted, which as per ' Karyawahi Police" on the back of Ex.D. 11 indicates that Mohd. Khan had received one grievous injury by a sharp edged weapon beside three other simple injuries, while Subhan Khan sustained three simple injuries by sharp edged weapon and another simple injury by a blunt object. PW16 Ali Mohd. SHO has admitted factum of the said counter case and filing of F/R Ex.D.11 but stated that final report Ex.D.12 was filed by him in that case. In both the cases, place of alleged incident was the same as is evident from the site plans Ex.R21 and Ex.D.13 From the evidence on record it clearly transpires that it was a case of free fight between two parties, that the incident had taken place all of a sudden and that it was not at all premeditated. PWs 1 to 8 & 15 have in most unambiguous, unequivocal and clear terms stated that the appellant had inflicted only one lathi blow on the head of deceased and that he did not repeat any further lathi blow of Baad Khan. This fact, itself, indicates that the appellant did not have any intention to commit the murder of Baad Khan otherwise, he could have very well dealt more lathi blows inflicting further injuries on the person of deceased Baad Khan. PW9 Dr. Vimal Gupta did not mention in post mortem report Ex.R9 that injury No. 1 on the right side of the head of Baad Khan was sufficient in the ordinary course of nature to cause his death. Baad Khan had also sustained fracture of left parietal bone causing congestion of left lobe of his brain. Since two persons Mohd. PW9 Dr. Vimal Gupta did not mention in post mortem report Ex.R9 that injury No. 1 on the right side of the head of Baad Khan was sufficient in the ordinary course of nature to cause his death. Baad Khan had also sustained fracture of left parietal bone causing congestion of left lobe of his brain. Since two persons Mohd. Khan and Subhan Khan members of the accused party had also sustained injuries, it appears that the appellant due to grave and sudden provocation inflicted lathi blow on the right side of the head of Baad Khan and that he had the knowledge that by inflicting such an injury on the vital part of the body, he was likely to cause death of Baad Khan. Therefore, in our considered opinion, the case of the appellant falls within the exception 1 of section 300, IPC, which is punishable under section 304 part II IPC. 21. Regarding quantum of punishment, Shri Naqvi has vehemently contended that keeping in view various mitigating factors, the appellant, who has already been under detention for a period of more than two years, be sentenced to the period, which he has already suffered. In the instant case, as per prosecution evidence co-accused Razak and Rahim Bux had also inflicted lathi blow on the head of deceased Baad Khan and since the doctor found only one external injury on the left side of the head of deceased Baad Khan, the learned trial court by giving benefit of doubt to them has acquitted them. The appellant inflicted only one lathi blow on the head of Baad Khan. The incident took place on 27.8.85 and the appellant has already undergone considerable amount of mental agony in facing trial and thereafter in pursuing this appeal. During investigation and trial, he has remained under detention for a period of 139 days as per warrant of commitment to jail issued by the learned trial Judge and thereafter since 29.9.95 he has been under going the sentence as his sentence was not suspended. Thus, he has already undergone sentence for a period of 2 years, 3 months and few days. Thus, he has already undergone sentence for a period of 2 years, 3 months and few days. Hence keeping in view all the facts and circumstances of this case, and various mitigating circumstances, we are of the considered opinion that the ends of justice shall be secured if the appellant is awarded sentence under section 304 part II, IPC for the period already undergone by him. 22. Another contention of Shri Naqvi is that PWs 1 to 8 & 15 have made material improvements in the prosecution story during trial and that the offence under section 325, IPC for inflicting grievous injuries on the right parietal region of Harru has not been made out against the appellant beyond reasonable doubt. We are not at all impressed by this argument. It is true that there are some material improvements made by the prosecution witnesses during trial, but so far as specific overt act of the appellant for causing injuries to Harru is concerned, from the very beginning till end, the prosecution case has been consistent and the same has not been materially altered or improved. In written report Ex.FH, which was promptly lodged on the same day, PW1 Sheru has mentioned that Iddar had inflicted lathi blow on the head of Harru. The same facts find mention in police statements of various witnesses. During trial also, injured PW4 Harru has specifically stated that the appellant had inflicted a lathi blow on his head. This fact stands fully corroborated by the testimony of PW9 Dr. Vimal Gupta, who has proved M.L.R. Ex.P7 and deposed that he had found a lacerated wound 6.5 cm and 0.5 cm x 1 cm deep on the right parietal region of scalp of Harru. PW10 Dr. PR Singhal has deposed that radiological examination of the scalp of Harru revealed the evidence of fracture of his right parietal bone. He has also proved the X-ray report and the related x-ray plates. These witnesses have also been cross examined at length on this count but their testimony has remained unshattered. In such circumstances, we are of the considered opinion that the learned trial Judge has discussed, analysed and assessed the evidence in right perspective on this count, and rightly convicted the appellant for offence under section 325, IPC for the injury caused by him to PW4 Harru. In such circumstances, we are of the considered opinion that the learned trial Judge has discussed, analysed and assessed the evidence in right perspective on this count, and rightly convicted the appellant for offence under section 325, IPC for the injury caused by him to PW4 Harru. However, keeping in view the facts and circumstances of the case, we feel that the sentence of three years' RI awarded to the appellant for offence under section 325, IPC is on the higher side, which in the interest of justice needs be reduced to RI for one and half year, with a fine of Rs. 1000/-. 23. No other point has been pressed before us. 24. In the result this appeal is partly allowed and the conviction and sentence of the appellant for offence under section 302 IPC set aside. However, he is convicted for offence under section 304 part II, IPC and sentenced to the period, which he has already undergone, with a fine of Rs.2,000/- in default of payment of fine, he shall further undergo RI for six months. The conviction of the appellant for offence under section 325, IPC, is hereby maintained but his sentence of three years' RI is reduced to one and half year's RI, which he has already undergone. The fine of Rs.1,000/- for offence under section 325, IPC is maintained but in default of payment of fine, he shall further undergo RI for three months only. To the above extent, the impugned judgment is modified. 25. The appellant, who is lodged in Central Jail, Jaipur be informed accordingly, and set free if not required in any other case, forthwith.> Petition partly allowed and sentence modified as above. *******