JUDGMENT 1. - This appeal is directed against the judgment dated 25.2.1982 passed by the learned Sessions Judge, Jodhpur convicting the first appellant Malaram of offence under Section 304-II IPC sentencing him to 8 years R.l. and to pay a fine of Rs. 500/- and, in default of payment to further undergo 6 months R.l. The second appellant Shiv Ram has been convicted of offence under Section 323 IPC to 6 months R.l. and to pay a fine of Rs. 200/-, in default of payment to further undergo 2 months S.I. 2. The prosecution case as disclosed during the trial is that a day prior to 22.3.1981 some quarrel took place between wife of PW 8 Chunaram and wife of Gheesaram at about 8-9 a.m. The accused Narayan and Purkharam caught hold of Chunaram and assaulted him. However, he succeeded in escaping. The said incident is alleged to have taken place in Chowk of Bheraram' house. It is alleged that Bheraram on hearing shouts came out of the house. At that time, the accused Gheesa Ram, Narayan Ram, Purkharam, Shiv Ram & Malaram also arrived there with lathis. They started abusing Chunaram and Bheraram, on which, Bheraram brought down his safa (turban) from the head and requested them to stop quarrel. It is alleged that Malaram gave a lathi blow on the head of Bheraram and Shiv Ram also inflicted a lathi blow on the head of Bheraram. Bheraram became unconscious and was taken to the hospital where he succumbed to the injuries on 22.3.1981 at 4.30 a.m. The Police investigated the case of offence under Secs. 302, 147, 148, 323 & 452 IPC. After usual investigation the police laid charge-sheet against the accused persons for the aforesaid offences. 3. The Trial Court relying on the testimony of the eye witnesses, corroborated by the medical evidence, convicted the first appellant Mala Ram of offence under Section 304 II IPC and the second appellant Shiv Ram was convicted of offence under Section 323 IPC. The other accused persons have been acquitted. 4. Assailing the judgment Mr. Choudhary, learned counsel appearing for the appellants has contended that a careful scrutiny of the evidence will show that none of the witnesses is reliable and trustworthy. The other accused persons have been acquitted. 4. Assailing the judgment Mr. Choudhary, learned counsel appearing for the appellants has contended that a careful scrutiny of the evidence will show that none of the witnesses is reliable and trustworthy. In alternate it is submitted that only single injury alleged to have been caused by the first appellant and only on that basis, no inference can be drawn that the first appellant had the knowledge that his act may cause death of Bheraram. It is thus submitted that conviction of the appellants cannot travel beyond Section 323 IPC. He placed reliance on a decision of this Court reported in 1978 Criminal Law Reporter (Raj.) 636 and decision of the Apex Court reported in 1998 Supreme Court Cases (Cri.) 953. 5. I have heard learned counsel for the appellant as well as learned Addl. Public Prosecutor and perused the record. The prosecution in support of the case has examined PW 3 Dayaram, PW 6 Sukri, PW 7 Smt. Daghlai, PW 10 Kewaf Ram and PW 11 Ramaram as eye witnesses. PW 11 has been declared hostile. The Trial Court disblieved PW 6 Sukri and PW 7 Smt. Daghlai, PW 3 Dayaram has categorically stated that Maiaram gave latni blow on the head of Bheraram. Inspite of long cross examination nothing could be elicited on basis-of which testimony of these witnesses could be disbelieved. PW 10 Kewalram has also stated that' Malaram gave a lathi blow on the head of deceased Bheraram. Nothing has been pointed out as to why the statement of the said eye witnesses should be disbelieved. PW 5 Dr. K.N. Mathur has stated that he examined Bheraram, aged 60 years on 22.3.1981 and found following injuries on his persons: 1. There was swelling at mid of the frontal region of the scalp of 4 c.m.x3 c.m. The patient was unconscious with dialated pupil of left eye. (Note-(l) Looking to the injury of the injured and his condition he was not out of danger of the life). 2. Bruise 1 c.m. x 1/2 c.m. on right zygomatic region. 3. Abrasion of linear of 1 c.m. on right nostril. 4. Abrasion linear of 1 c.m. on right eye brow. (Note- Pulse 88 per minute-respiration 22 per minute, B.P 110/70 mmhg., Pupil or right eye was dilated and fixed. 2. Bruise 1 c.m. x 1/2 c.m. on right zygomatic region. 3. Abrasion of linear of 1 c.m. on right nostril. 4. Abrasion linear of 1 c.m. on right eye brow. (Note- Pulse 88 per minute-respiration 22 per minute, B.P 110/70 mmhg., Pupil or right eye was dilated and fixed. In his opinion injury No. 1 was grievous and dangerous to life and rest of the injures were simple in nature. He has also stated that on 22.3.1981 Bheraram died in the hospital. He conducted the post-mortem on the same day and found following external injuries : 1. Contusion 4 c.m. x3 c.m. on the centre of scalp-forehead. 2. Bruise 1 c.m.x 1/2 c.m. on right zygomatic process. 3. Abrasion 1 c.m. linear on right nostril. 4. Abrasion 1 c.m. linear on right eye brow. The right and left side of the pupil were dilated. In his opinion the cause of death was shock, brain hemorrhage and fracture of the skull bone. He also stated that the corresponding injury of the fracture of the brain resembles with the external injury No. 1 which was sufficient in ordinary course of nature to cause death. On the same day, he examined Dayaram and found the following injuries on his person - 1. Contusion 5 c.m. x4 c.m. on outer aspect of the left elbow joint. 2. Lacerated wound 1 c.m.x1/2 c.m.x deep sub-continuous tissues on right parietal region. He found both the injuries simple in nature caused by the blunt object. He proved the injury report Ex.R 10. In the cross-examination he admitted that such type of injury can be caused if a man falls on a stone of stair-case. Thus, the statement of eye witnesses find corroboration from the medical evidence to the extent that Bheraram sustained injury on heard, on account of which, he died. In view of this, I hold that the prosecution has succeeded in establishing that it was the first appellant Malaram who caused the lathi blow on the head of deceased Bheraram, on account of which, he died on the next day. So far as the second appellant Shiv Ram is concerned, it is proved that he also assaulted Bheraram, causing simple injuries by blunt object. 6. The next question arises for consideration is that as to whether the first appellant Malaram has been rightly convicted of offence under Section 304 IPC ? So far as the second appellant Shiv Ram is concerned, it is proved that he also assaulted Bheraram, causing simple injuries by blunt object. 6. The next question arises for consideration is that as to whether the first appellant Malaram has been rightly convicted of offence under Section 304 IPC ? It is contended by Mr. Choudhary, learned counsel appearing for the appellants that there is only one injury on the head and from this fact no inference can be drawn that the appellant had knowledge that his act may cause homicidal death of the deceased Bheraram. In Ghaveria v. State of Rajasthan , the accused had given a lathi blow on the head of the deceased. Considering the question that whether the offence will fall under Section 304 IPC or under Section 325 IPC, the court held that it is incumbent upon the prosecution to prove that the accused had the knowledge that injury which he is causing, may cause the death of the deceased. The court further held that merely on the basis of evidence of striking one blow, no inference can be drawn that the accused had knowledge that his act is, likely to cause death. The manner in which the incident has taken place in the instant case, it does not appear that the first appellant can be attributed to any knowledge that his act of striking lathi blow on head would meet with the homicidal death of the deceased. In view of this the learned Trial Court has committed an error in convicting the appellant of offence under Section 304 IPC. Thus his conviction deserves to be altered to Section 325 IPC. 7. Consequently, this appeal is partly allowed and the conviction of the appellant under Section 304-11 IPC is altered to Section 325 IPC. It is stated that the appellant has undergone sentence of one year and 25 days. Considering all the facts and circumstances of the case, the ends of justice would meet if the sentence is reduced to the period already undergone. The appellant shall however pay a sum of Rs. 5000/- as compensation in the Trial Court. Four months time is granted for depositing the amount. On depositing the said amount, the Thai Court will pay this amount to the legal representatives of the deceased Bheraram. The appellant shall however pay a sum of Rs. 5000/- as compensation in the Trial Court. Four months time is granted for depositing the amount. On depositing the said amount, the Thai Court will pay this amount to the legal representatives of the deceased Bheraram. In case the appellant does not deposit the said amount, he will further undergo 1 year R.l. and to pay a fine of Rs. 200/-. So far as the second appellant is concerned, his conviction under Section 323 IPC is confirmed. However, the sentence is reduced to the period already undergone. *******