JUDGMENT 1. - The three appellants namely Chanderbhan @ Ramchander, Rameshwar and Mukut Behari were indicted for having committed murder of Prabhulal before the learned Sessions Judge, Kota in Sessions Case No. 15/95. They were found guilty, convicted and sentenced vide judgment dated June 5, 1999 as under - u/S 302 or 302/34 IPC to undergo imprisonment for life with a fine of Rs. 1,000/-, in default to further undergo six months S.I. u/Ss. 324 & 324/34 IPC to suffer six months S.I. with a fine of Rs. 500/-, in default to further undergo one month S.I. Both the sentences were directed to run concurrently. 2. As per the prosecution story, on September 28, 1994 Parcha Bayan' of Gordhan (PW-13) was recorded around 11.45 a.m. It was interalia stated by Gordhan in the said 'Parcha Bayan' that while he and his brother Prabhulal were cultivated their field at about 10.00 a.m., Chanderbhan @ Ramchander, Mukut, Rameshwar, Ramswaroop, Ramniwas, Dhanna S/o Janki Lal, Bachhraj S/o Prahlad, Latoor, Papoo, Jankilal armed with Lathies, Gandasies and Dharias came over there and made assault on them. They started inflicting injuries on the person of Prabhulal with Dharia, Gandasi and lathies indiscriminately. Chanderbhan inflicted Dharia blow on his foot, Mukut inflicted Dharia blow on his left hip and Rameshwar inflicted Gandasi blow again on his foot and Prabhulal succumbed to the injuries. Moolchand when implores them not to kill Prabhulal, he was threatened and chased. This incident had been witnessed by Nandkishore, Dhannalal & Mahaveer. Dead body of Prabhulal was lying at the spot. Police Station Budhadeet, Distt. Kota registered F.I.R. No. 165/94 under sections 302, 307, 147, 148, 149, 323, 324 & 447 of the IPC and investigation commenced. Site was inspected. Inquest Report was drawn. Statements of witnesses under Section 161 Cr.RC. were recorded. Accused persons were arrested and at their instance, weapons allegedly used in committing the crime were seized. Post- mortem on the dead body of Prabhulal was conducted. Injury sustained by Gordhan were examined and on completion of the investigation, charge-sheet was laid. In due course, the case came up for trial before the learned Sessions Judge, Kota, Charges under Section 447, 148, 324, 324/149, 302, 302/149 IPC were read over to the accused. They denied the charges and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In due course, the case came up for trial before the learned Sessions Judge, Kota, Charges under Section 447, 148, 324, 324/149, 302, 302/149 IPC were read over to the accused. They denied the charges and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In the statements recorded under Section 313 Cr.P.C., the accused persons pleaded innocence. Three defence witnesses were examined by the accused persons. The learned trial Judge on hearing the final submissions, convicted the three appellants Chanderbhan @ Ramchander, Rameshwar & Mukut as indicated here-in- above and acquitted the other accused persons namely Jankilal, Ramniwas, Shravanlal, Dhannalal, Bachhraj, Papoo and Latoor. 3. At the outset, it may be noticed that the case of the prosecution rests on the sole testimony of Gordhan (PW- 13), who is the real brother of the deceased Prabhulal and sustained injuries at the time of incident. 4. It is contended by the learned counsel appearing for the appellants that the guilt against the appellants could not be proved beyond reasonable doubt. The presence of witness Gordhan (PW-13) at the time of incident was doubtful and looking to the material contradictions in his statement, his testimony could not have been relied upon. Learned counsel substantiated his arguments by reading the testimony of Gordhan and canvassed that in his statement recorded under Section 161 Cr.RC. (Ex.D 3), this witness did not assign the specific role to the accused persons. He has made vague allegations against all the 10 accused persons that they came armed with Dharia, Gandasi, lathies and they started inflicting injuries indiscriminately on the person of Prabhulal. He gave graphic details in his police statements about the incident occurred with him and stated that Chanderbhan inflicted Dharia blow on his foot, Mukut inflicted Dharia blow on his left buttock, whereas Rameshwar inflicted Gandasi blow on his foot, thereafter he ran away and then Prabhulal was killed by all the accused persons. But at the trial, this witness made improvements and has tried to become eye-witness of the incident allegedly committed by the accused persons with Prabhulal. 5. A look at the post-mortem report of the deceased Prabhulal demonstrates that he sustained following ante-mortem injuries on his person- EXTERNAL INJURIES (1) Incised wound 4" x 2" x 2" on lateral aspect Rt. ankle joint. 5. A look at the post-mortem report of the deceased Prabhulal demonstrates that he sustained following ante-mortem injuries on his person- EXTERNAL INJURIES (1) Incised wound 4" x 2" x 2" on lateral aspect Rt. ankle joint. (2) Incised wound 4/1/2" x 1/1/2" x 1" on lateral aspect of left calf. (3) Abrasion 1/1/2/" x 1/4" on back at T12 vertebra one. (4) Abrasion 1/1/2" x 1/2" on right shoulder. (5) Contusion 3" x 1" on upper border of right scapula. (6) Contusion 4" x 1" on left side of scapula. (7) Incised wound 4" x 1/2" x bone deep left side of frontal bone, 1" away from middle. (8) Transverse incised wound 3" x 1/2" x bone deep on mid parietal region. (9) Transverse incised wound 2" x 1/2" x bone deep on left parietal bone. (10) Fracture of right tibia and fibula bone at its lower end. INTERNAL INJURIES (1) Scalp, skull bones-Fracture of parietal bone in its middle. Fracture of parietal bone left side. (2) Membranes - Reptured (3) Brain matter is laceration corresponds to Injury No.8 at parietal region. Incised wound 1" x 1/1/2" on left parietal lobe. The cause of death of the deceased was shock on account of head injury. 6. Gordhan (PW-13) sustained following three simple injuries vide Ex.P17- (1) Incised wound 2/1/2" x 1/4" x bone deep on left buttock. (2) Incised wound 3/1/2" x 1/2" x 1/2" on left scapula. (3) Contusion 3" x 1" on left shoulder. 7. It also appears from the statement of Gordhan that after sustaining injuries, he had hidden himself in a drain and from the drain, he had seen the incident. But this fact was not stated by Gordhan in his police statement. A close scrutiny of the entire testimony of Gordhan reveals that soon after sustaining the injuries, he left the place of occurrence and he did not see the incident occurred with Prabhulal. We also find that the injuries with Gandasi were attributed to Ramswaroop and Ramniwas against whom the statement of Gordhan (PW-13) was not believed by the trial Court and they have been acquitted. Contention of learned counsel appearing for the appellant is that case of the present appellants is not distinguishable with that of the case of co-accused Ramniwas and Ramswaroop and the appellant also entitled to acquittal. 8. Contention of learned counsel appearing for the appellant is that case of the present appellants is not distinguishable with that of the case of co-accused Ramniwas and Ramswaroop and the appellant also entitled to acquittal. 8. We have closely scanned the material on record and on totality of the circumstances, we are of the opinion that the case of the appellants is not distinguishable with that of the case of Ramswaroop and Ramniwas, who were allegedly caused injuries on the person of the deceased with Gandasies but, were disbelieved by the learned trial Judge and in our considered view, the appellants must get the same treatment which Ramniwas and Ramswaroop were entitled. We find from the statement of Gordhan (PW-13) that after sustaining injuries, he left the place of occurrence and hidden himself in a drain thus, he did not see the incident occurred with his brother Prabhulal and because of this reason, his testimony was shattered qua the incident with the deceased. Thus, we are unable to place reliance on his testimony in so far it relates to the occurrence committed with deceased Prabhulal. The learned trial Judge in our view, has committed illegality in convicting the appellants under Section 302 or 302 read with Section 34 IPC placing reliance on the statement of Gordhan. In so far as the charge under Section 324 and 324/34 IPC is concerned, the prosecution has succeeded in establishing the said charges against the three appellants and we find that the appellants were rightly convicted for the said offences. 9. In the result the appeal is partly allowed. The conviction of the appellants under Section 302 or 302/34 I.PC. shall stand set aside and they stand acquitted from the said charges. Their conviction under Section 324 and Section 324 read with Section 34 shall stand confirmed. They have already undergone the sentence awarded to them under section 324 and Section 324 read with Section 34 I.RC. All the three appellants-Chanderbhan @ Ramchander, Rameshwar & Mukut Behari are in jail. They shall be released forthwith, if not required in any other case.Appeal partly allowed. *******