JUDGMENT 1. - This appeal is directed against the judgment dated 2.6.1982 passed by the learned Additional Sessions Judge, Sirohi convicting the accused appellant of offence under Section 304-II IPC and sentencing him to 6 years R.l. 2. The prosecution case is that on 4.9.1980 Nava Ram PW 7 lodged a FIR at Police Station Kalandari stating inter alia that on 3.9.1980 at the time of sunset when he was serving foder to the cattle in his house, his wife had gone to collect the grass. She returned and reported that his brother Gomaji has been belaboured by the accused Rania and as such he is lying injured near the 'Ramdev' temple. He immediately rushed to the Ramdeo temple where he found his brother Gomaram lying on the road in the injured condition. Many people including Jaisa, Chanda and Narsa had collected. On enquiry Gomaram disclosed that he was returning from the field sitting on the bullock cart. When he reached near the Ramdeo temple, the accused Rania came armed with a lathi and asked him to pay Rs. 10/- for grazing his cattle in his field. On which he asked him to collect said amount of Rs. 10/- from Joring as cattle were grazed by him. He thus denied to pay Rs. 10/- to the accused Rania. On this, accused Rania gave a lathi blow on his back. He gave another lathi blow which struck on his thigh. On account of which, he fell down. The informant also stated that Gomaram was complaining pain on the thigh. The injured was taken to Kalandari hospital in a tractor by Navaram, Chamnaji, Jaisa and Narla etc. The injured was admitted in the hospital at Kalandri. The injury report was prepared by Doctor on the same day. He found 5 simple injuries on his person caused by blunt object. He did not notice any external injury. He however, noted that Gomaram was complaining pain on the neck & chest. The doctor referred Gomaram to hospital at Pali. On 5.9.1980 Gomaram was radiologically examined. On seeing X-Ray, PW 15 Doctor R.C. Dinkar found fracture of lamina pedicle junction and spinal processes of 5th, 6th and 7th cervical vertebrae. As the condition of the injured was critical, he was taken to Ahmedabad for further treatment. He died in Ahmedabad on 10.9.1980. PW 14 Dr. Nayn Shah conducted the Post-Mortem. On 5.9.1980 Gomaram was radiologically examined. On seeing X-Ray, PW 15 Doctor R.C. Dinkar found fracture of lamina pedicle junction and spinal processes of 5th, 6th and 7th cervical vertebrae. As the condition of the injured was critical, he was taken to Ahmedabad for further treatment. He died in Ahmedabad on 10.9.1980. PW 14 Dr. Nayn Shah conducted the Post-Mortem. He found that there was haematoma in soft tissue over back around 2nd to 7th cervical vertebrae. With respect to the spinal cord, Doctor found that there was fractures of lamina of second, third, fourth, fifth, sixth and seventh cervical vertebrae. He also found compression fracture of cervical 5th vertebrae. In his opinion the deceased died due to laceration of spinal cord following compression fracture of cervical vertebrae and terminal bronchopneumonia. The police after usual investigation laid charge-sheet against the appellant of offence under Section 304 II IPC. 3. The appellant was charged of offence under Section 304-II IPC. He pleaded not guilty and claim trial. Prosecution in its support examined 15 witnesses and produced number of documents. The Trial Court found that the accused gave 4 to 5 blows to the deceased Gomaram. On account of which, he fell down. The court also held that the said act was done with knowledge that it may cause death. In view of the finding, the learned Judge convicted the appeliant of offence under Section 304-II IPC and sentenced as stated above. 4. Assailing the judgment, it is contended by Mr. Doonger Singh, learned counsel appearing for the appellant that on 3.9.1980 when the deceased Gomaram was examined by PW 8 Dr. Abhey Kumar, there were only simple injuries on his person and no other external injuries were found. On 5.9.1980, he was examined by medical jurist at Bangar hospital Pali. On the requisition of Police, X-Ray of thorasic spine laternal view, cervical spine and laternal view of Gomaram was taken. On seeing X-Ray report Ex. R 17 & Ex. R 18, he did not find any fracture. However, on examining the X-Ray report Ex. R 19, Ex.R 20, Ex. P. 21 & Ex. P. 22 he found fracture of lamina and spinous processes of 5th, 6th, 7th cervical vertebrae. He submitted that Gomaram died on 11.9.1980 and the post-mortem was conducted by PW 14 Dr. Nayan Shan, Medical Jurist at Ahmedabad. However, on examining the X-Ray report Ex. R 19, Ex.R 20, Ex. P. 21 & Ex. P. 22 he found fracture of lamina and spinous processes of 5th, 6th, 7th cervical vertebrae. He submitted that Gomaram died on 11.9.1980 and the post-mortem was conducted by PW 14 Dr. Nayan Shan, Medical Jurist at Ahmedabad. He found fracture of lamina on 2nd, 3rd, 4th, 5th, 6th & 7th cervical vertebrae. It is contended by Mr. Doonger Singh, that at the first instance, no external injury was noticed by Doctor, when the injured was examined at Kalandari. When he was examined at Pali, on radiological examination, fracture of iamina on 5th, 6th & 7th cervical vertebrae was found. Thus, there was no fracture of lamina of 2nd, 3rd & 4th cervical vertebrae. Thus, according to Mr. Doonger Singh, cause of death cannot be attributed to the act of the appellant causing lathi blow to the deceased Gomaram on 3.9.1980. He has placed reliance on the decision of the Division Bench of this court in Bhooraram v. State of Rajasthan, reported in 1998 Criminal Law Journal 3440 . On the other hand, it is submitted by Mr. Panney Singh, learned Addl. RR that at some time internal injuries may not be noticed by clinical examination. He has stressed that PW 8 Dr. Abhey Kumar has categorically stated that the patient was complaining pain in the head, neck, chest and lumber region and as such possibility could not be ruled out that the injured Gomaram has sustained certain internal injuries which could be detected on 5.9.1980 when he was radiologically examined at Bangar hospital at Pali. It is submitted by learned Addl. RR that the judgment of the Trial Court convicting the appellant of offence under Section 304-11 IPC does not call for interference. 5. I have considered the rival contentions. The consistent version of eye witnesses PW 2 Chandaram, PW 4 Jaisa and PW 5 Sunta that near the Ramdeoji temple the accused Rania gave 2-3 lathi blows to the deceased Gomaram, on account of which, he fell down. Even after he had fallen on the ground the accused Rania gave further lathi blows. It is also not in dispute that on the same day, he was taken to the hospital at Kalandari where he was examined by PW 8 Dr. Abhey Kumar who noticed injuries on the person of the deceased Gomaram. Even after he had fallen on the ground the accused Rania gave further lathi blows. It is also not in dispute that on the same day, he was taken to the hospital at Kalandari where he was examined by PW 8 Dr. Abhey Kumar who noticed injuries on the person of the deceased Gomaram. Thus, the prosecution has succeeded in establishing that the accused Rania on 3.9.1980 assaulted deceased Gomaram by giving lathi blows. 6. The next question which arises for consideration is that whether death of the deceased Gomaram can be traced in the act of the accused appellant inflicting lathi blows on why 3.9.1990 in order to appreciate the controversy raised, it would be fruitful to read the medical evidence. It was Dr. Abhey Kumar, who examined the deceased Gomaram at the first instance. He found following injuries on person of Gomaram : 1. Bruise 6"x 3/4" on the middle aspect of right hand extending from the elbow joint upwards. 2. Abrasion 11/2"x1" on the lateral aspect of left hand just above the elbow. 3. Small multiple abrasions of variable size 1/2" x 1/4" linear on posterior aspect of elbow right hand. 4. Contusion 4"x3" on the lateral aspect of left hand mid way between elbow and shoulder joint. 5. Abrasion 1/4" in diameter at occipital region. The doctor also noted that the patient was complaining pain in the head, neck, chest and lumber region but, he categorically stated that there was no external injury. On radiological examination on 5.9.1980, Doctor found fracture of lamina pedicle junction and spinal processes of 5th, 6th and 7th cervical vertebrae. PW 15 Dr. R.C. Dinkar on seeing X-Ray plates opined as follows : X-Ray film No. 1696 & 1697 Thorasic Spine AP & Thoracic Spine Lat view : There is no evidence of any bone injury. 2. X-Ray Film No. 1698, 1699 & 1704 A & B dated 5.9.1980 Cervical Spine AP and Lat views : There is fracture of lamina pedicle junction and spinous processes (5th, 6th & 7th) (cervical) vertebrae. The deceased was taken then to the Ahmedabad for further treatment. He died on 10.9.1980 during the treatment at 3.55 p.m. PW 14 Dr. Shah conducted post-mortem on 11.9.1980. The doctor stated that there was haematoma in soft tissue over back around 3rd to 7th cervical vertebrae. The deceased was taken then to the Ahmedabad for further treatment. He died on 10.9.1980 during the treatment at 3.55 p.m. PW 14 Dr. Shah conducted post-mortem on 11.9.1980. The doctor stated that there was haematoma in soft tissue over back around 3rd to 7th cervical vertebrae. Spine and spinal cord-There were fractures of lamina of second, third, fourth, fifth, sixth and seventh cervical vertebrae. There was compression fracture of cervical 5th vertebrae. There was laceration of spinal cord and a blood clots and haemorrhage at 6th cervical segment of spinal cord. Doctor Nayan Shah PW 14 in cross examination has stated that "after inflicting injury, there will be a swelling. In this case swelling must have taken place after infliction of injury". PW 8 Abhey Kumar did not find any external injury. Thus, according to the doctor, if there was a fracture of cervical vertebrae, the swelling must have taken place on the neck or back of the deceased Gomaram. The Division Bench of this Court in Bhooraram v. State of Rajasthan , in para 11 has observed that if the injury is caused by applying great force there is bound to be some external mark on the body. In the instant case, there are fractures of cervical vertebrae and, therefore, lathi blows on the neck must have been given with great force. If, it is so, there must be corresponding mark on the neck or back of the body of deceased. PW 14 Dr. Nayan Shah has also opined that in such event swelling must have taken place. The prosecution has also not explained that when the doctor on radiological examination at Pali found fracture of 5th, 6th & 7th cervical vertebrae only how there were more fracture of cervical vertebrae i.e., 2nd, 3rd, 4th as found by the medical jurist at Ahmedabad. In such circumstances, possibility cannot be ruled out that while travelling from Pali to Ahmedabad because of some loose handling or for any other reason the deceased sustained fracture of 2nd, 3rd and 4th cervical vertebrae which could be cause of death of Goma Ram. Thus the prosecution has failed to establish beyond doubt that Gomaram died due to the lacernation of spinal cord as a result of lathi blow given by the accused Rania on 3.9.1980. In the view of this, the appellant can not be held responsible for homicidal death of Gomaram. Thus the prosecution has failed to establish beyond doubt that Gomaram died due to the lacernation of spinal cord as a result of lathi blow given by the accused Rania on 3.9.1980. In the view of this, the appellant can not be held responsible for homicidal death of Gomaram. Thus, the learned Judge has committed an error in convicting the appellant of offence under Section 304 (II) IPC. The appellant is thus held guilty of offence under Section 323 IPC for causing injuries of simple nature by lathi on 3.9.1980. 7. In view of this, the appeal is partly allowed and the conviction of the appellant of offence under Section 304-II IPC is quashed and set aside and altered to Section 323 IPC. The sentence awarded is reduced to the period undergone. The appellant is on bail, which stand cancel. *******