JUDGMENT 1. - The present appeal is filed by the accused appellants who have been convicted by the Special judge, SC/ST (Prevention of Atrocities) Act cases, Merta and have been sentenced under Sections 302 read with Section 34 I.RC., 324 read with Section 34 I.P.C.and 323 read with Section 34 I.P.C. The sentences awarded to the accused appellants read as under- 1. Under Section 302/34 I.P.C. : Imprisonment for life and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days simple imprisonment. 2. Under Section 324/34 I.P.C. : One year's rigorous imprisonment and fine of Rs. 50/- and in default of payment of fine to further undergo 7 days simple imprisonment. 3. Under Section 323/34 I.RC.: Six months rigorous imprisonment and fine of Rs. 50/- and in default of payment of fine to further undergo 7 days simple imprisonment. 2-4. The accused appellants being aggrieved by their conviction and sentences passed by the aforesaid court preferred this appeal.5. The prosecution started against the accused persons on the basis of the information Ex.R 2 lodged by P.W. 1 Bhanwar Lal at Police Station, Degana on 13.1.1993 at 8 A.M. According to the written report, Bhanwar Lal P.W. 2 informed the Police that at about 6 RM. on 12.1.1993 while Thana Ram, his brother , had gone to take vegetables, he was assaulted by the accused persons. Accused Jora Ram had a knife, Mohan Ram had an axe and Durga Ram had a lathi. He saw the occurrence when he was going to take vegetables. P.W. 3 Adu Ram had also come at that time. They rescued the deceased Thana Ram. While they were taking Thana Ram to the house, he succumbed to his injuries on way. He could not arrange the conveyance soon after the incident, therefore, he is lodging the F.I.R. in the morning.6. On the basis of information Ex.R 2 the Police recorded the formal F.I.R. Ex.P. 3 and started investigation. After investigation the Police filed charge-sheet, only against Jora Ram and came to the conclusion that Mohan Ram and Durga Ram were not involved in the incident. A final report was submitted qua these two persons.7. The trial proceeded against Jora Ram and the learned trial court took cognizance against Mohan Ram and Durga Ram and they were also tried.8. After investigation the Police filed charge-sheet, only against Jora Ram and came to the conclusion that Mohan Ram and Durga Ram were not involved in the incident. A final report was submitted qua these two persons.7. The trial proceeded against Jora Ram and the learned trial court took cognizance against Mohan Ram and Durga Ram and they were also tried.8. At the trial 18 witnesses were produced by the prosecution and 3 defence witnesses were examined. Learned trial court has placed reliance on the testimony of the eye-witnesses of P.W. 2, P.W. 3, P.W. 6, P.W. 7 and P.W. 9 and convicted and sentenced the accused appellants as aforesaid.9. P.W. 2 Bhanwar lal is the real brother of deceased Thana Ram and has stated in his court-statement that he was sitting at the Ghatta. Thana Ram had gone to take vegetables. Adu Ram had also come and joined him for taking vegetables. While this witness and Adu Ram reached near Bawariyon Ke Bas, he saw that the accused appellants were causing injuries to the deceased by stick, knife and axe. According to this witness, the appellant Jora Ram had a knife, Durga had a stick and Mohan had an axe. He raised cries and saw that Thana Ram was lying down and Jora Ram had a knife by which he inflicting injury on the neck. Second injury was inflicted near the eye. He inflicted 2-3 more injuries. Mohan inflicted a Kulhari injuries on the back of Thana Ram. This witness further states that they were unarmed yet they rescued the deceased from the accused. While they were taking the deceased to home he succumbed to his injuries. Then he telephoned to the Police Station but the telephone connection being not available, he could not talk. He went to the Petrol Pump but could not get a vehicle. When the vehicle was arranged by morning he came to the Police Station and lodged the F.I.R. Police came alongwith him to the place of occurrence.10. Witness PW. 2 has also deposed regarding the possible motive. The motive given by this witness is that 6-7 years earlier to the incident Thana Ram had inflicted a lathi blow on Jora Ram. Therefore, Thana Ram was being beaten by Jora Ram. Witness PW. 2 has also deposed regarding the possible motive. The motive given by this witness is that 6-7 years earlier to the incident Thana Ram had inflicted a lathi blow on Jora Ram. Therefore, Thana Ram was being beaten by Jora Ram. In cross-examination this witness has stated that he has told the police that Adu Ram had accompanied him while he was going to take the vegetables but it is not in his police statement. He has also told the police about the shouts and cries raised by him but the same is not in Ex.P 2 and Ex.D. 1. He has also admitted that in Ex.P 2 and Ex.D. 1 the particularisation of the injuries assigned to Jora Ram was not there. In Ex.P 2 and the police statement Ex.D. 1 the injuries inflicted by Mohan at the back of Thana Ram has also not been particularised. In the police statement the throttling part by Jora Ram has also not been particularised.11. P.W. 3 Adu Ram in his statement states that he accompanied P.W. 2 Bhanwara Ram while he was going to take vegetables and when they reached Bawariyon Ka Bas, he saw that Jora Ram was giving beating to Thana Ram by knife. Durga Ram gave a lathi blow and Mohan Ram gave a Kulhari blow. He has admitted that in his police statement Ex.D. 2 the particularisation of the injuries assigned to the accused persons is missing. He also admitted that in his police statement Ex.D. 2 portions A to B and C to D have wrongly been written.12. The other eye-witness produced by the prosecution is P.W. 5 Mohini, who was declared hostile. RW. 6 Sohani has been produced as an eye-witness and she stated that she had seen the accused inflicting the injuries. In her cross-examination she admitted that she remained at home and she had not seen the actual occurrence of beating but she had seen the accused fleeing.13. The other eye-witness is P.W. 7 Sundari. She contended that three persons who caused injuries to Thana Ram were the accused persons. She stated that she did not know the accused persons earlier and she had not seen them at any time before and after the incident. She had seen them for the first time. The other eye-witness is P.W. 7 Sundari. She contended that three persons who caused injuries to Thana Ram were the accused persons. She stated that she did not know the accused persons earlier and she had not seen them at any time before and after the incident. She had seen them for the first time. She was confronted with her police statement Ex.D. 3 wherein she had stated that only Jora Ram was the assailant and the two other accused persons were not the assailants. She denied this part of her police statement. She admitted that names of Durga and Mohan Ram were not there in her police statement. But she stated that she had disclosed their names to the police. She also stated that she does not know as to who called the brother of the deceased. She stated that after fall of Thana Ram his brother Bhanwaru etc. came after an hour.14. The prosecution has also produced P.W. 9 Sahi Ram. He is a child witness but looking to the age and understanding the learned Judge proceeded to record his statement. He stated that he saw Jora Ram causing injuries to the deceased. He does not name the other accused persons. He also submitted that he had run way after seeing the beating.15. Apart from the eye-witnesses discussed hereinabove, the only other piece of evidence collected by the prosecution is the recovery of an axe at the instance of Jora Ram. This axe was not found stained with human blood. Therefore, this piece of circumstantial evidence is of no consequence for the prosecution.16. To adjudicate the controversy the evidence of 5 eye-witnesses, namely, PW. 2 Bhanwar Lal, P.W. 3 Adu Ram, PW. 6 Sohani, PW. 7 Sundari and P.W. 9 Sahi Ram is material.17. Learned counsel for the appellants has argued that P.W. 9 Sahi Ram has only stated that Jora Ram was causing the injuries to the deceased. Not only this P.W. 9 Sahi Ram stated only about Jora Ram but PW. 7 Sundari has also in her police statement implicated only Jora Ram and she failed to explain as to why the names of other two accused persons did not appear in her police statement. These two eye-witnesses are independent witnesses. Not only this P.W. 9 Sahi Ram stated only about Jora Ram but PW. 7 Sundari has also in her police statement implicated only Jora Ram and she failed to explain as to why the names of other two accused persons did not appear in her police statement. These two eye-witnesses are independent witnesses. P.W. 6 Sohani in her statement has also stated that she had seen Jora Ram inflicting the injuries and then she has also stated that she had also seen Jora Ram fleeing from the place of occurrence. She has not implicated the other two accused persons.18. According to the learned counsel for the appellants out of the 5 eye-witnesses 3 had categorically stated that the appellants Durga Ram and Mohan Ram were not the assailants. Then there remains the testimony of P.W. 2 Bhanwar Lal and PW. 3 Adu Ram. If we see the testimony of P.W. 2 Bhanwar Lal then in his police statement he has not particularised the parts assigned to Durga Ram and Mohan Ram. Not only this in his statement in the court he stated that Mohan Ram gave a Kulhari blow at the back of Thana Ram but the medical evidence does not corroborate his this version. There was no injury found on the back of Thana Ram. This witness has also not assigned any specific injury to Durga Ram even in his court statement. As regards PW. 3 Adu Ram the learned counsel for the appellants has urged that according to this witness Mohan Ram had inflicted injury by Kulhari at the eye and Durga Ram had inflicted a lathi blow at the ear. No other witnesses have stated that Mohan Ram and Durga Ram had inflicted such injuries. Such statement is an improvement from his police statement. Therefore, this witness cannot be relied upon qua the injuries inflicted by the two accused persons, namely, Mohan Ram and Durga Ram.19. Learned counsel for the appellants has further urged that witness P.W. 3 Adu Ram has not stated in his police statement that he had gone with Bhanwar Lal for taking vegetable. Therefore, he cannot be treated to be an eye-witness of the incident. Learned counsel for the appellants has further urged that witness P.W. 3 Adu Ram has not stated in his police statement that he had gone with Bhanwar Lal for taking vegetable. Therefore, he cannot be treated to be an eye-witness of the incident. Sum total of the argument of the learned counsel for the appellants is that the implication of these two accused persons i.e. Mohan Ram and Durga Ram is an over implication and the investigating agency was right in not charge-sheeting them as their implication was doubtful right from the beginning. Therefore, their conviction under Section 302 read with Section 34 I.P.C.is not sustainable.20. Learned counsel for the appellant has then urged that the injuries inflicted by Jora Ram is a simple injury on the neck of the deceased Thana Ram. Therefore, it cannot be said that his injury is responsible for clotting of the blood in the trachea. It is because of blunt weapon injury inflicted on the neck of the deceased that the blood clotting had taken place. This blunt weapon injury has not been assigned by the prosecution to any particular accused. There is no mention as to how it has been caused. It cannot by any stretch on imagination be said that in causing such an injury the accused had intended to cause the death of the deceased. At best it can be said that the accused had a knowledge while causing this bruise that death may occur due to this injury but by causing this injury the appellant accused had definitely not intended to cause the death of deceased Thana Ram and, therefore, the argument of the learned counsel for the appellant is that even if it is believed that the author of the injury was Jora Ram, then too it cannot be attributed that he was intending to cause the death of the deceased. The accused is behind the bars since his arrest i.e. 25.1.1993. It is roughly about 5 years and 10 months that the accused is behind the bars. Therefore, the sentence already undergone by him may be considered to be sufficient for the offence. The offence which can at best be made out against the accused cannot travel beyond Section 304 Part II I.P.C.21. It is roughly about 5 years and 10 months that the accused is behind the bars. Therefore, the sentence already undergone by him may be considered to be sufficient for the offence. The offence which can at best be made out against the accused cannot travel beyond Section 304 Part II I.P.C.21. Learned Public Prosecutor has urged that though it is not possible to assign clearly as to who was the author of the injury inflicted on the neck in the nature of bruise yet Section 34 I.P.C. can be invoked and all the three accused persons can be convicted and sentenced as has been done by the learned trial Judge. The case is squarely made out against the accused appellants by the testimony of eye-witnesses and the same is corroborated by the testimony of the doctor.22. We have heard the learned counsel for the appellants and the learned Public Prosector and have also perused the record.23. As regards the case of accused Durga Ram and Mohan Ram is concerned, the testimony of eye-witnesses P.W. 6 Sohani, P.W. 7 Sundari and PW. 9 Sahi Ram clearly makes out a case in favour of these accused persons. These witnesses have not stated that these accused persons have at ail participated in the crime. As regards P.W. 6 Sohani it can be said that she had improved her statement from the police statement. In her police statement she had only stated that she saw accused Jora Ram running. She had even not seen this accused causing injuries. Once these three eye-witnesses exclude the participation of these two accused persons then their case has to be adjudged in the light of the evidence of remaining eye-witnesses.24. P.W. 2 Bhanwar Lal in his statement in court has assigned one injury to Mohan Ram at the back but that injury is not corroborated by the medical evidence. No injury has been assigned to Durga Ram. Therefore, from his testimony also it cannot be said that there is any positive evidence against these accused persons that they have participated in the crime.25. As regards P.W. 3 Adu Ram, he has assigned two injuries to these accused persons at ear and eye. But these injuries have not been assigned to them by any other eye-witnesses. Further this witness in his police statement has not stated regarding infliction of injuries as stated by him in the court statement. As regards P.W. 3 Adu Ram, he has assigned two injuries to these accused persons at ear and eye. But these injuries have not been assigned to them by any other eye-witnesses. Further this witness in his police statement has not stated regarding infliction of injuries as stated by him in the court statement. Therefore, his statement cannot also be brought in operation against these two accused persons regarding their participation in the crime.26. In view thereof, it would not be safe to rely upon the testimony of the eye-witnesses as regards the participation of accused Durga Ram and Mohan Ram. They deserve benefit of doubt. It is held that no case is made out against these two accused persons and, therefore, their conviction and sentence are set-aside.27. With.this we are left with the case of appellant Jora Ram. According to PW. 2 Bhanwar Lal this accused has inflicted knife injury at the neck of the deceased. Medical evidence does not disclose that injury caused by knife was grave one. The cause of death was asphyxea resulting from the bruise 15x5 cm. There is no specific allegation against this accused appellant that he had caused this injury. In the absence of any specific allegation that he has caused this injury it is not safe to convict this accused appellant under Section 302 read with Section 34 I.P.C. The question of applicability of Section 34 I.P.C. will have to be ruled out as the other accused persons have been given the benefit of doubt.28. The neck injury-by knife has been assigned to this accused. Medical evidence does not establish that it was the cause of death. However, this can safely be said that he was the assailant of the neck injury which stands corroborated by the medical evidence. The other injuries will also be the result of some of his action.29. When Jora Ram has been held to be the assailant of the deceased then it is to be seen as to what offence is made out against this accused. This injury was not found to be sufficient in the ordinary course of nature to cause death. The bruise which has resulted in clotting of blood in the trachea cannot be said to be certainly known to the accused that it will result in death.30. This injury was not found to be sufficient in the ordinary course of nature to cause death. The bruise which has resulted in clotting of blood in the trachea cannot be said to be certainly known to the accused that it will result in death.30. In this back ground, it can at best be said that the accused may have the knowledge that his action will result in the death of the deceased but no definite intention can be attributed to the accused. In view thereof it cannot be said that the accused has the intention to cause death of Thana Ram and only knowledge can be attributed to the accused that his action may result in the death of the deceased.31. In this light it would be safe to convict the accused Jora Ram under Section 304 part II I.P.C. He has already remain in custody for about 5 years 10 months. This sentence is considered to be sufficient to meet the ends of justice.32. In the result, the appeal of Mohan Ram and Durga Ram is allowed and the conviction and sentences passed against them are set-aside and they are acquitted of the charges levelled against them. They are on bail. Therefore, they need not to surrender to their bail bonds. However, the appeal of appellant Jora Ram is allowed in part. His conviction and sentence under Section 302/34, 324/34 and 323/34 I.P.C. are set-aside and instead he is convicted under Section 304 Part II I.P.C. and sentenced to the sentence already undergone by him. He is behind the bars, he should be released forthwith if not required in any other case.Appeals of 'M' and 'D' Allowed-Appeal of 'J' Partly Allowed. *******