JUDGMENT 1. - This appeal is directed against the judgment dated 25.3.2000 passed by the learned Additional Sessions Judge No. 2. Chittorgarh in Sessions Cases No. 130/1998. 2. Briefly stated the prosecution story is that on 30.7.1998, an oral F.I.R. was lodged at the Police Station, Parsoli by PW/1 Raji Bai. Her case was that her father Mangi Lal deceased had gone to his field in the morning. At about 11 O'clock, when she went the lunch packet, she saw accused Hira Lal, Kailash and Smt. Kesar Bai inflicting injuries on the deceased Accused Hira Lal and a lathi, Kailash was giving blows by hands and legs and Smt. Kesar Bai had a kudali. Seeing the incident, she shouts, hearing her shouts, her uncle Bhura and aunt Smt. Badam came running. Accused made their escape good. 3. After lodging of F.I.R. usual investigation was conducted and police filed challan against all the three named accused for the offences under Section 447 and 302 read with 34 I.P.C. After commitment, the case was assigned to the learned Additional Sessions Judge No. 2, Chittorgarh who framed charges for the offences under sections 447 and 302 read with 34 I.P.C. which was denied by the accused appellants and claimed trial. During the trial, the prosecution examined as many as 16 witnesses and produced 24 documents. Accused were examined under Section 313 Cr.P.C. and 6 documents were got exhibited in defence. After conclusion of the trial, the learned Trial Judge came to the conclusion that the testimony of P. W. 1 Raji Bai corroborated by P. W.2 Bhura and P.W.3 Smt. Badam, inspire confidence and, therefore, convicted the appellants and sentenced them as under- (a) convicted each of the appellants under Section 447 I.P.C. and sentenced each of them to undergo two months' simple imprisonment and a fine of Rs. 100/- in default of payment of fine, to further undergo seven days' simple imprisonment. (b) convinced each of the appellants under Section 302 read with Section 34 I.P.C. and sentenced each of them to undergo life imprisonment and a fine of Rs. 1000/- in default of payment of fine, to further undergo one year's simple imprisonment. 4. Assailing the decision of the trial court, learned counsel for the appellant submitted that the eye witnesses namely, Bhura and Smt. Badam are not eye witnesses. 1000/- in default of payment of fine, to further undergo one year's simple imprisonment. 4. Assailing the decision of the trial court, learned counsel for the appellant submitted that the eye witnesses namely, Bhura and Smt. Badam are not eye witnesses. In the post mortem report, in all there are six injuries out of which three injuries are consequential injuries. Therefore, the time taken in the incident cannot be of such a considerable stretch that when P.W.I. Raji Bai alleged that she saw and shouted, then Bhura and Smt. Badam came running and saw the incident. In fact, the time which can be consumed in inflicting the injuries sustained would be minimal. The witness would be hardly able to see, watch and react also. The whole event would not take much time and this would hardly give an opportunity to these witnesses to come to the scene of occurrence so as to watch the occurrence, therefore, no reliance can be placed on the testimony of P. W.2 Bhura and P.W.3 Smt. Badam. 5. Learned counsel has further stated that P. W. 1 Raji Bai daughter of deceased in her statement has only stated that she saw the accused Hira Lal inflicting lathi blows. All the injuries are blunt weapon injuries. There being no injury by Kudali, implication of accused Kesar Bai is not borne out from the statement of this witness. Further another accused Kailash in supposed to have given hand and leg blows. There are no such injuries. Thus, the medical evidence negatives the story of Raji Bai so as to implicate the accused Kesar and Kailash. All the injuries which are on the person of the deceased are blunt weapon injuries which are as under:- (1) Swelling & Haematoma 13cm x 5cm on forehead. (2) Fracture of frontal bone. (3) Subdural Haematoma 6cm x 5cm frontal region. (4) Lacerated would 4cm x l/2cm bone deep, (L) perieto temporal region and protruding of brain tubes. (5) Lacerated wound 3.5cm x 1.2cm bone deep, below injury No. 4. (6) Laceration in brain in (Lt) perieto temporal region. 6. The nature of the injuries can be best bring a case of assault against Hira Lal and not other accused. Other witnesses cannot be believed to be witnesses who can be considered to have made their presence plausible at the scene of occurrence. 7. (6) Laceration in brain in (Lt) perieto temporal region. 6. The nature of the injuries can be best bring a case of assault against Hira Lal and not other accused. Other witnesses cannot be believed to be witnesses who can be considered to have made their presence plausible at the scene of occurrence. 7. Learned Public Prosecutor per contra contended that it was a joint attack by all the three accused persons. Having attacked the deceased, they are just only falling back to the niceties of law to defend themselves other wise the deceased was given severe beating by them. The deceased is alleged to have died by the beating given at the hands of the accused persons. 8. We have given our thoughtful consideration to the submissions of the learned counsel and have perused the record. 9. The testimony of P.W. 1 and 2 and 3 is to the extent of implicating all the three accused persons. From the story narrated by the prosecution witnesses. There is no injury which can be caused by hand and leg blows or Kudali. Thus, participation of Kailash and Kesar Bai becomes doubtful. The medical evidence also do not support that they inflicted injuries as has been suggested by the prosecution witnesses. 10. In the statement of P.W., 1 Raji Bai, she has stated that she saw accused Hira Lal giving lathi blows, Kesar Bai had Kudali in her hand and Kailash was giving blow by hand and legs. The case of the prosecution thus, as narrated by P.W.I cannot be considered sufficient to bring home offence against Kailash and Kesar Bai because neither there was a Kudali injury on the person of the deceased nor hand and leg blows injuries are available on the person of the deceased. Thus, it appears to be a case of over-implication by P.W. 1. P.W.2 and P.W.3 cannot be believed to have seen the incident as claimed by them because they had come on the scene of occurrence injuries, not much time was consumed and when she saw Hira Lal inflicting injuries and by the time her shouts could materialise in the attention of these accused witnesses, the assault would naturally be complete because number of injuries is not much. Thus, seeing of the accused inflicting injuries by P.W.2 and P. W.3 stands on a shaky ground and cannot be used for corroborating P.W. 1. Thus, seeing of the accused inflicting injuries by P.W.2 and P. W.3 stands on a shaky ground and cannot be used for corroborating P.W. 1. In the aforesaid circumstances, the case of Kailash and Kesar Bai deserves to be distinguished from the case of Hira Lal. There being no injury available on the person of the deceased in the manner role it assigned to them, it would be proper if benefit of doubt is granted to them. Consequently, the benefit of doubt is given to these two accused persons and it is held that their participation in the actual assault has not been made out by the testimony of the eye witnesses. 11. As regards the case of accused Hira Lal is concerned, he is alleged to have been armed with lathi. All the injuries are by blunt weapon. P.W. 1 Raji Bai in her statement says that Hira Lal has caused lathi injuries on the deceased. Thus, participation of Hira Lal is more than obvious. Though no charge of simpliciter 3021.PC. was levelled against the accused but from the prosecution case, we find that as far as his participation is concerned, that is made out more than obvious being corroborated by medical evidence. Thus his conviction is altered from Section 302 read with Section 34 I.P.C. to Section 302 I.P.C. simpliciter as the evidence is sufficiently available on the record to warrant such conviction. In charge also, there is sufficient indication of his act. 12. Resultantly, the appeal of accused Hira Lal is dismissed and he should serve out his sentence. The appeal of Kesar Bai and Kailash is allowed and their conviction under Section 447 and 302 read with 34 I.P.C. are set aside. They are no bail. Their bonds stand cancelled. *******