JUDGMENT 1. - This appeal is directed against the order of conviction dated 14.3.1985 passed by the learned Sessions Judge, Pali in Sessions Case No. 7/84 whereby, the learned Judge has convicted the accused under section 304(2) and sentenced him for three years R.I. 2. With the assistance of the learned counsel for the accused and the learned Public Prosecutor for the State, I have scrutinised the record and reappreciated the evidence on record. 3. The prosecution story as it emerges from reappreciation of the evidence is that; on 17.10.1983 PW 1 Udai Ram lodged a report at Police Station Pali to the effect that his uncle Hanuman Ram was residing in Pachpadara and his general shop was situated in Mundia Road. On 17.10.1983 at 8.00 p.m. when PW 1 Udai Ram, PW 3 Prahlad and PW 4 Achala Ram were sitting at the shop of Achala Ram, at that time, PW 2 Suleman Teli came there and informed that Hanuman Ram was assaulted by someone, thereupon PW 1 Udai Ram, PW 3 Prahlad and PW 4 Achala Ram ran towards the shop of deceased- Hanuman Ram and saw that accused-Mohan Lal had beaten the deceased-Hanuman Ram by sitting on his stomach by fist and they resuced him. The deceased was unconscious at the time when they rescued him. The accused ran away from the scene of offence. Due to unconsciousness, the deceased was not in a position to speak and he vomited himself. Thereafter Udai Ram, Prahald and Achala Ram took the deceased to Hospital by a tempo where Doctor said that he is died, thereupon they took the deceased back. Since some money was due from Girdhari, the brother of deceased, therefore, skirmish was occurred between both of them. 4. On the basis of this report the Police registered a case and started usual investigation. 5. On reappreciation of evidence, I find that there is nothing on record to require disbelieving of any of the prosecution witnesses, they have truthfully stated what is happened factually and the learned Judge was correct in accepting their evidence. 4. On the basis of this report the Police registered a case and started usual investigation. 5. On reappreciation of evidence, I find that there is nothing on record to require disbelieving of any of the prosecution witnesses, they have truthfully stated what is happened factually and the learned Judge was correct in accepting their evidence. However if the entire evidence is accepted in toto, the question that arise for decision in this appeal is whether even on acceptance of such evidence, conviction under section 304 Part II of the Indian Penal Code is permissible because from the evidence of Doctor, it is admittedly proved that the victim suffered from enlarged spleen and the death occurred due to rupture of enlarged spleen. There is no reason to attribute knowledge of existence of enlarge spleen in the victim's body to the accused, it is a case of simple assault which accidentally resulted in death because of existence of enlarge spleen. There are several decisions of Supreme Court of India that in such circumstances conviction is liable to be made under section 323 and not under section 304 IPC. 6. In the result, the appeal succeeds and is allowed. The conviction under section 304 IPC is set aside instead the accused is convicted under section 323IPC and sentence is reduced to already undergone. The accused is on bail, his bail bonds are cancelled.Appeal partly allowed. *******