JUDGMENT 1. - This Jail Appeal has been filed by Smt. Gamiri and Smt. Kuri, through the Superintendent of Central Jail, Jaipur, against the judgment dated 30.3.1996 passed by the learned Sessions Judge, Dungarpur. By the said judgment, the learned Sessions Judge had convicted and sentenced both of them to imprisonment for life for committing the murder of Smt. Rambhi. 2. An oral report in this case was lodged by PW 1 Mogji on 28.12.1995 at 7.00 a.m. at Police Station - Sagwada to the effect that between the night intervening 27/28.12.1995 at about mid night PW 5 Manoj came and told to the first informant PW 1 that from the house of PW 4 Romeng cries for help were coming. After hearing cries for help from inside the house of PW 4 Romeng, people of vicinity collected at his house and they gave several calls to his mother Rambhi but no one was responding from inside of the house, therefore, he had come to call him. Upon the aforesaid information, Mogji reached to the house of Romeng (PW 4) where Leela Ram (PW 6) and other neighbours of Romeng were already assembled. Mogji also gave several calls but neither anyone responded from inside the house nor opened the door. Ultimately Mogji gave a threat that if the door is not opened then he will break the door. Upon this threat Smt. Kuri, accused-appellant, opened the door from inside. People assembled there came inside the house of Romeng and asked Smt. Kuri whereabout of her mother-in-law Smt. Rambhi but she did not give any reply. When whereabouts of her husband Romeng (PW 4) were asked, she replied that he had gone to field for preparing 'gud' from 'charkhi'. When all the neighbours collected there made a search of house of Romeng (PW 4) then they found Smt. Rambhi in a room used for keeping animals shown by mark (2) in the-site plan Ex. P/5, in dying state, from where they brought her in 'parsal'-shown by mark(1) in the site plan prepared by the Investigating Officer. 3. Manoj and Balji were sent to call Romeng (PW 4) from his field. When Romeng (PW 4) came by that time Mst. Rambhi was dead. Accused appellant Smt. Kuri did not give satisfactory answer how deceased was assaulted. 3. Manoj and Balji were sent to call Romeng (PW 4) from his field. When Romeng (PW 4) came by that time Mst. Rambhi was dead. Accused appellant Smt. Kuri did not give satisfactory answer how deceased was assaulted. The neighbours assembled there apprehended from silence of accused-appellant Smt. Kuri that someone else might have caused injuries to the deceased, who may be hiding inside the room. A search was made by all neighbours assembled there whereupon during the course of search accused-appellant Smt. gamiri was found hiding herself in a 'tokra' on 'tand' (a projection few feets up from the floor for keeping house-hold things in the kitchen). She was dragged from the 'land' from where she tried to rush away but she was apprehended. 4. It is noticed from perusal of First Information Report Ex. P/1 that motive is alleged with prominence. It is alleged in the FIR that deceased Mst. Rambhi had a lurking doubt in her mind that accused-appellant Gamiri was a witch, due to which there used to be frequent quarrel between accused-appellant Kuri and deceased Rambhi. This was stated to be only reason due to which accused-appellant Gamiri and accused-appellant Kuri both had committed murder of Rambhi. Accused-appellant Gamiri is mother whereas accused-appellant Kuri is her daughter. Deceased Mst. Rambhi was mother-in-law of Kuri. 5. After completion of the investigation, a challan was filed against the accused-appellants under section 302 r/w Section 34, IPC before the committal Court who committed the case to the Court of Sessions for trial. 6. The learned Sessions Judge framed charges against both the accused-appellants u /s. 302 and also u /R. 302 /34, IPC. At the trial, the accused-appellants pleaded not guilty and claimed trial. In support of the prosecution story, the prosecution examined as many as 11 witnesses, namely, PW 1- Mogji, PW 2 - Tulsi Ram, PW 3 - Nathu, PW 4 - Romeng, PW 5 - Manoj, PW 6 - Leela Ram, PW 7 - Smt. Bijya, PW 8 - Dr. Shabbar Hussain, PW 9 Shyami Lal, PW 10 - Nanji and PW 11 - Fatch Singh and also produced documents Ex. P/1 to Ex. P/10. 7. The learned Sessions Judge after placing reliance on oral testimony of eye-wit-nesses, corroborated by documentary evidence, convicted the accused-appellants as stated above. 8. Shabbar Hussain, PW 9 Shyami Lal, PW 10 - Nanji and PW 11 - Fatch Singh and also produced documents Ex. P/1 to Ex. P/10. 7. The learned Sessions Judge after placing reliance on oral testimony of eye-wit-nesses, corroborated by documentary evidence, convicted the accused-appellants as stated above. 8. We have heard learned amicus curiae on behalf of the accused-appellants as well as learned Public Prosecutor and also gone through the material available on record. 9. It is urged by the learned amicus curiae before us that accused-appellants are innocent and had not committed murder of the deceased. According to learned amicus curiae, only two ante-mortem injuries are found on the body of the deceased in post mortem report Ex. P/6 by the Medical Jurist Shri Shabbar Hussain (PW 8). Injury No. 1 is stated on oath by the Medical Jurist (PW 8) to be a minor abrasionl ans. x 1 cm., below right knee, which can be caused by a blunt weapon and injury No. 2 is a contusion, 2 cms. x 1 cm., which is also alleged to have been caused by a blunt weapon. According to the opinion of the Medical Jurist, these two ante-mortem injuries were found on the body of the deceased Mst. Rambhi. The Medical Jurist (PW 8) further deposed that when he opened the scalp, haemotoma 5 ans. x 3 cms. in size was found inside the scalp and corresponding to injury No. 2, a linear fracture 5 cms. long was also found at the left temporal bone. The cause of death stated on oath by (PW 8) Dr. Shabbar Hussain, Medical Jurist, was coma. According to the Medical Jurist coma was caused due to injury No. 2 received by the deceased Mst. Rambhi. 10. It is submitted by the learned amicus curiae that in such a situation where there are two persons inside a house and a third one is murdered, there can be three possibilities. According to, im, firstly; it is possible that, both of them committed the crime. Secondly, either of them committed the crime and other one remained a silent spectator. Thirdly, one of them committed the crime and other one being either an abettor or sharing the intention of the accused assailant for committing the crime. According to, im, firstly; it is possible that, both of them committed the crime. Secondly, either of them committed the crime and other one remained a silent spectator. Thirdly, one of them committed the crime and other one being either an abettor or sharing the intention of the accused assailant for committing the crime. In support of his aforesaid contention, he placed reliance on a decision rendered by Division Bench of this Court in case of Karma v. State of Rajasthan reported in 1981 Cr. L.R. (Raj.) 621. 11. It is urged by learned amicus curiae that although motive was alleged by the prosecution in the FIR but no evidence whatsoever has been adduced to prove it. Contrary to it, PW 1 - first informant Mogji expressed his ignorance about frequent quarrel between Kuri and deceased Rambhi. PW 4 Romeng - son of the deceased, stated on oath that there was no quarrel between his wife Kuri (accused-appellant) and his mother Mst. Rambhi - deceased prior to incident. PW 6 Lala Ram deposed before learned Sessions Judge that prior to the present incident there was no quarrel between accused-appellant Kuri and deceased Rambhi. Thus, from the statements of these witnesses it can be easily deduced that relationship between Kuri and deceased Rambhi was cordial and allegation that deceased had lurking doubt in her mind about mother of Smt. Kuri, namely, accused-appellant, Gamiri, to be a witch, had been concocted to falsely implicate them in the case. 12. Learned Public Prosecutor vehemently opposed the aforesaid argument and he submitted before us that accused-appellant Kuri had given evasive reply to the witnesses regarding whereabout of deceased. Similarly, accused-appellant Gamin was found hiding herself in a'tokra' on the land'. According to learned Public Prosecutor, in the present case, there are incriminating circumstances against both the accused-appellants. According to learned Public Prosecutor, the decision nerved by Division Bench of this Court in case of Karma (supra), is not applicable to the facts and circumstances of this case. 13. We are of the opinion that there is substance in the ar ment of the learned Public Prosecutor. The facts and circumstances of the decision ndered by Division Bench of this Court in case of Karma (supra), are distinguish ble to the facts and circumstances of the present case, for the reasons discussed here in below. 14. 13. We are of the opinion that there is substance in the ar ment of the learned Public Prosecutor. The facts and circumstances of the decision ndered by Division Bench of this Court in case of Karma (supra), are distinguish ble to the facts and circumstances of the present case, for the reasons discussed here in below. 14. In the present case, prosecution miserably failed to establish that there used to be frequent quarrel between deceased Rambhi and her daughter-in-law accused-appellant Kuri because deceased considered her mother accused-appellant Gamiri to be a witch: From the statements of PW 1, PW 4, PW 6 and PW 7, we are satisfied that prior to incident, relationship between accused-appellant Kuri and her mother-in-law accused Mst. Rambhi was cordial and an argument contrary to it is not acceptable. In our considered opinion, FIR Ex. P/1 cannot be treated to be substantive piece of evidence to infer that there used to be frequent quarrel between deceased Rambhi and her daughter-in-law accused-appellant Kuri because deceased considered her mother Gamiri to be a witch in the light of positive evidence of PW 1, PW 4, PW 6 and PW 7 who had categorically denied frequent quarrel between Kuri and deceased, on the issue alleged in the FIR Ex. P/1. Accused-appellant Gamiri also belonged to the same village where occurrence took place, therefore, her presence in the home of her daughter Smt. Kuri at the time of occurrence is neither unusual nor unnatural. 15. In the present case, there is no evidence who caudad interna i injury No. 2 to deceased. It is difficult for us to correlate the blow to any of the accused causing internal injury No. 2 which according to Medical Jurist (PW 8) led to death of Mst. Rambhi. We are of the opinion that accused-appellants are to be convicted under section 304 Part II r/w Section 34 of the IPC, instead of under section 302 r/w Section 34, IPC. 16. The core question involved in the present appeal is as to what is the exact nature of the offence committed by the accused-appellants. From the prosecution case itself, it is borne out from the post-mortem report Ex. P/6 as well as from the statement of Medical Jurist (PW 8) that in fact only injury No. 2 proved to be fatal. The core question involved in the present appeal is as to what is the exact nature of the offence committed by the accused-appellants. From the prosecution case itself, it is borne out from the post-mortem report Ex. P/6 as well as from the statement of Medical Jurist (PW 8) that in fact only injury No. 2 proved to be fatal. As regard injury No. 1, it is a minor abrasion which could be caused by fall if the injury No. 2 is caused to the deceased while she was standing. Thus, the assault was not repeated by the accused-appellants. From the aforesaid discussion, it is easily deducible that the accused-appellants had no intention to cause death of deceased, hence, the present case falls within the purview of Section 304, Part II r/w Section 34, IPC and not under section 302/34, IPC, as held by learned trial Judge. 17. Looking into aforesaid facts and circumstances of the present case, we are of the opinion that even if it is taken that the act done by the accused-appellants causing internal injury No. 2 to deceased Rambhi was with their knowledge that it is likely to cause death of deceased Mst. Rambhi even then accused-appellants had no intention to cause death of deceased. Therefore, we alter the conviction of accused-appellants Smt. Gamiri and Smt. Kuri from Section 302 r/w Section 34, IPC to Section 304(11) r/w Section 34, IPC and reduce the sentence to the period already undergone.With aforesaid modification, this appeal is hereby dismissed. The accused-appellants to be released from jail forthwith if they are not wanted in any other case.Appeal partly allowed. *******