JUDGMENT 1. - This appeal is filed by the accused-appellants challenging the impugned judgment dated 8.8.97 passed by the learned Special Judge for SC/ST (Prevention of Atrocities) Act, Udaipur in Sessions Case No. 4/95 convicting the accused-appellants for the offence under Section 302/34, I.PC. for life imprisonment and a fine of Rs. 1,000/- (Rupees one thousand only) to each of the accused and in default of payment of fine, to further undergo five months' simple imprisonment on the grounds mentioned in the memo of appeal and also canvassed before us. 2. With the assistance of the learned counsel tor the accused-appellants and the learned Public Prosecutor, we have scrutinised and reappreciated the evidence on record. 3. On reappreciation of the evidence, the prosecution story as disclosed by it, is that a written complaint was filed on 22.12.94 before the Deputy Inspector General of Police, Udaipur Range, Udaipur by one Himmat Singh Rajput r/o Bansi to the effect that four days ago, his brother Gopal Singh was arrested by the police of Police Station, Dhariyavad and was produced before the S.D.M. Kanod and was taken on police remand. It is then alleged that while he was in police custody on such remand, the staff of Police Station, Dhariyavad assaulted him very severely as a result of which he died in custody. On the complaint of this custodial death, investigation was ordered by the Deputy Inspector General of Police, Udaipur Range, Udaipur and on completion of investigation, challan was filed only against the present accused Mohan Lal and Daryao Singh. 4. The prosecution examined as many as 19 witnesses to prove its case of custodial death and one witness was examined by the accused after their examination under Section 313, Cr.P.C. On appreciation of this evidence, the learned trial Judge came to the conclusion of guilt as aforesaid and proceeded to convict the accused persons under Section 302, read with Section 34, I.P.C. to suffer imprisonment for life, as noted above. It is this order of conviction which is challenged before us by the learned counsel for the appellants on the various grounds mentioned in the memo of appeal as also verbally convassed before us. 5. It is this order of conviction which is challenged before us by the learned counsel for the appellants on the various grounds mentioned in the memo of appeal as also verbally convassed before us. 5. The basic attack of the learned counsel for the accused is that the conviction under Section 302, read with Section 34, I.P.C. as recorded by the trial-Judge is unsustainable in law even if the entire evidence on record is accepted The learned counsel has further urged that acceptance of entire prosecution evidence will also not prove any case against Daryao Singh None of the witnesses has mentioned his involvement. None of the witnesses attributed any overt act to him and, consequently, his conviction for mere presence is unsustainable in law. According to the learned counsel, there is no evidence even regarding his presence in the Police Station during the time when it is alleged that the accused beat the deceased. 6. We have scrutinised the record and reappreciated the oral and documentary evidence as it stand on record. Except for two witnesses, who mention about presence of Daryao Singh, there is no evidence whatever on record to prove his complicity. Even these witnesses do not speak of any overt act that may have been committed by the accused Daryao Singh. 7. Shri Doongar Singh, learned counsel appearing for this appellant, then contended that from the prosecution evidence it is obvious that the deceased Gopal Singh was tortured by the police. There is also, evidence that Mohan Lal participated in the assault. This is, however, his contention that according to the complaint made by the complainant and the investigation conducted, the entire staff of Police Station, Dhariawad was accused of having assaulted the deceased Gopal Singh, investigation prove that the assault mainly was by the present accused-appellants. The Station House Officer (S.H.O.) and other police constables in the Police Station have not even been prosecuted. There is, therefore, ah inherent exaggeration in the complaint and also the evidence led by the prosecution regarding involvement of the police officials, who are allegedly involved. Challan, however, was filed in regard to two only and demonstrate the fact that there is no evidence against one viz., Daryao Singh. In such circumstances, conviction under Section 302, read with Section 34, I.P.C. is legally impossible. Challan, however, was filed in regard to two only and demonstrate the fact that there is no evidence against one viz., Daryao Singh. In such circumstances, conviction under Section 302, read with Section 34, I.P.C. is legally impossible. According to the learned counsel, even if this evidence is accepted in toto, what is proved by the prosecution in that Mohan Lal with the aid of others tortured the accused as a result of which, the deceased met homicidal death. There is, however, total lack of any intention on the part of any of the accused to commit murder or to commit culpable homicide not amounting to murder. The intention as is projected by the prosecution obviously was to torture the deceased only to make a confession in regard to the offences for which they have been detained in the Police Station. The intention and object was to obtain confession and was not to cause death intentionally or to cause such bodily injury as, in ail probability, would result in death or to cause such bodily injury as was likely to cause death. He, therefore, prayed that Daryao Singh and Mohan Lal in the circumstances are liable to be acquitted. 8. In our opinion, the contention of Shri Doongar Singh in regard to Daryao Singh is liable to be accepted. There is absolutely no evidence on record to prove complicity of Daryao Singh. Even his presence in the Police Station at the relevant time is doubtful. Benefit of doubt must go to the accused. The appeal in relation to Daryao Singh is, therefore, liable to be accepted. 9. However, the evidence on record is sufficient to prove beyond reasonable doubt that Mohan Lal did torture and assault the victim. There is, however, no evidence even in regard to Mohan Lal to prove that he had the intention to cause the murder or to cause such bodily injury as will amount to culpable homicide not amounting to murder. The intention was to assault and cause hurt to the victim so as to extract confession from him. Being police officials, they were harshly aware of the results and very well knew the consequences of causing custodial death. None of them, therefore, had the Intention to cause such bodily injury as was likely to result in death. Their obvious intention was to cause hurt or at the most grievous hurt to the injured persons. Being police officials, they were harshly aware of the results and very well knew the consequences of causing custodial death. None of them, therefore, had the Intention to cause such bodily injury as was likely to result in death. Their obvious intention was to cause hurt or at the most grievous hurt to the injured persons. The appeal, therefore, is liable to be partly allowed. 10. In the result, the appeal is partly allowed. The conviction and sentence of Daryao Singh is totally set aside. He is acquitted of all the charges levelled against him. The conviction and sentence of Mohan Lal under Section 302, read with Section 34, I.P.C. is set aside and, instead, he is convicted under Section 326, I.P.C. He is already in jail for last more than six years and, consequently, sentence of imprisonment already suffered till now, would meet the ends of justice. Both the accused, therefore, are liable to be released forthwith in view of the aforesaid decision.Appeal Partly Allowed. *******