JUDGMENT 1. - This appeal under Section 374(2) of the Cr.RC. has been directed against the judgment of conviction and order of sentence passed by learned Sessions Judge, Bhilwara dated 14.10.1987 in Sessions Case No. 28 of 1987 whereby both the accused-Appellants namely Kalu Singh & Bhanwar Singh have been convicted and sentenced as under: Under Section 325 read with Section 34 Indian Penal Code - Each of them to undergo 4 years' rigorous imprisonment and pay a fine of Rs. 1,000/-, in default of payment thereof to further suffer three months' rigorous imprisonment. Under Section 323 IPC-Each one of the accused to undergo three months simple imprisonment. Under Section 452 Indian Penal Code - Each of the accused to undergo one year's rigorous imprisonment and to pay fine of Rs. 500/-, in default of payment to suffer further rigorous imprisonment for one month. Except the sentences awarded in lieu of non-payment of fine, all the main sentences have been ordered to run concurrently and the sentence already suffered during custody from 9.12.1986 to be deducted under the provisions of Section 428 Cr.PC. 2. Briefly stated, the facts of the case are that on 8.12.1986 at about 11 AM, an oral report was lodged by Sayar (PW 11) at Police Station Bijoliya before Acting SHO ASI Shyam Sunder (PW 7) stating interalia therein to the effect that he alongwith his brother Megha (deceased) lives in a room of old school in village Kasaniya and both of them work in mines. The neighbours Harji Rao, Pratap Rao, Kankupuri, Bhanwarpuri and Dhanpuri also live there with their families. On the previous night, at about 8-9 PM, his brother had come after taking liquor and in the drunken state abused Pratap Singh and Kankupuri. Pratap Singh, his son Harji and Kankupuri forbade him to abuse them telling that ladies also live there. He (informant) also told him not to behave in that manner and thereafter he alongwith his brother came to their room in the quarter and went to sleep. After about two hours, Kalu S/o Pratap and Bhanwarsingh Rawat came from Baniya Ka Talab in the torch light having sticks in their hands and after entering into the quarter started beating both of them.It is further stated that informant after sustaining 5-7 blows hidden himself under a stone slab. After about two hours, Kalu S/o Pratap and Bhanwarsingh Rawat came from Baniya Ka Talab in the torch light having sticks in their hands and after entering into the quarter started beating both of them.It is further stated that informant after sustaining 5-7 blows hidden himself under a stone slab. The accused gave lathi blows on the person of his brother which resulted in his death. Throughout the night he remained beneath the stone slab (Patti) and in the morning, at about 4.30 AM he narrated the entire incident to one Peeru who was his contractor. On his suggestion, oral report was lodged and investigation commenced. During the course of investigation, site was inspected, postmortem of the dead body was got conducted and accused persons were arrested. The articles of the case seized and sealed were sent for examination to the FSL. On the basis of disclosure statements of accused, lathis were recovered. After completion of investigation, challan was filed and on committal in due course of time it came before the learned Sessions Judge, who framed the charge under Secs. 302, 321, 323 and 450 IPC against the accused-Appellants. Accused denied the charges and claimed trial. In all, prosecution examined 12 witnesses. In the statement recorded under Section 313 Cr.PC., accused denied the prosecution case and claimed themselves to be innocent. No evidence was led by the accused persons in defence. The learned Trial Court, after hearing both side, convicted and sentenced the accused-Appellants as indicated hereinabove. 3. I have heard the learned counsel for the accused-Appellant as well as the learned Public Prosecutor for the State. 4. In the instant case, the argument which has been raised before me is that the learned Trial Court has not properly appreciated the evidence inasmuch as the cause of death of the deceased was the rapture of spleen. The spleen of the deceased was already enlarged and as it has come in the statement of PW 4 Dr. R.K. Ramawat that the rapture of spleen could be the result of even a slight push, therefore, according to the learned counsel, the conviction under Section 325 read with Section 34 was not correctly recorded and in fact it should have been recorded under Section 323 read with Section 34 IPC. R.K. Ramawat that the rapture of spleen could be the result of even a slight push, therefore, according to the learned counsel, the conviction under Section 325 read with Section 34 was not correctly recorded and in fact it should have been recorded under Section 323 read with Section 34 IPC. Learned Counsel prayed that the matter relates to the year 1986 and since then about 20 years have passed and the accused-Appellants have remained in jail for nearly 11 months, therefore, taking a lenient view the sentence awarded to them may be modified to the extent of period already undergone by them. 5. No other argument has been advanced except the above one. 6. On the other hand, learned Public Prosecutor has submitted that the prosecution has proved its case, therefore, the conviction and sentence awarded to the accused appellant deserves to be maintained. 7. I have considered the rival submissions made before me. 8. PW 4 Dr. Ramawat who has conducted postmortem of the dead body of deceased on 8.12.1986, found the following injuries. 1. Contusion - 6 cm x 2 cm on lower antero medial part of right thigh. 2. Contusion - 4 cm x 2 cm on lower medial part of right back of chest. 3. Contusion - 5cm x 2 cm on lower medial part of the left gluteal region. 4. Abrasion - 4 cm x 1/2 cm on back of right elbow. 5. Abrasion - 1 cm x 3/4 cm on back of distal part of right index finger. 6. Contusion - 5 cm x 2 cm on middle part of right leg. 7. Abrasion - 1 cm x 1 cm on back of left foot. 8. Abrasion - 3 cm x 1/2 cm on right cheek. All the injuries were ante-mortem in nature. The cause of death was multiple pieces of spleen measuring 1 cmx3 cm in size, therefore, the same could not be measured. The deceased died due to hemorrhagic shock caused by rapture of spleen.The documents Ex. D/1 Report of the doctor, and D/2 the requisition, are also relevant for the purpose of coming to the conclusion as to whether offence under Section 323/34 IPC and Section 325/34 has been committed. The deceased died due to hemorrhagic shock caused by rapture of spleen.The documents Ex. D/1 Report of the doctor, and D/2 the requisition, are also relevant for the purpose of coming to the conclusion as to whether offence under Section 323/34 IPC and Section 325/34 has been committed. Ex.D/2 is the requisition given to the Medical Officer DW 4 by the SHO, Police Station, Bijoliya regarding obtaining opinion as to whether the injuries were sufficient in the ordinary course of nature to cause death particularly the injury on the spleen and whether it was enlarged or not. At the back of Ex.D/2 the report Ex.D/1 is made by the doctor in which it has been opined as under: "The spleen ruptured into multiple pieces, therefore, size of the spleen could not be measured. Rapture of spleen into multiple pieces shows that the spleen was soft, brittle and enlarged. The enlarged spleen can be raptured from very slight violence without any external marks of injury." 9. In the light of above medical evidence, now it is to be seen whether the finding recorded by the learned Trial Court while holding the accused appellant guilty under Section 325/34 IPC is required to be maintained or altered to one under Section 323/34 of the IPC. 10. At page 17 of the impugned judgment, it has come that Dr. Ramwat has not mentioned in Postmortem Report (Ex. P/7) the effect of enlargement of spleen and also gave no measurement. It has further been mentioned that the doctor has not specifically said that the spleen was really enlarged. Therefore, in view of discussion about PW 4 Dr. Ramawat's evidence, the present case was considered to be one under Section 325/34 of the IPC. As is evident from report of doctor Ex.D/1, the police requisition Ex.D/2 was submitted before the Medical Officer and at the back of Ex.D/2 a clear opinion, reproduced hereinabove, indicates that the spleen was enlarged and it was not possible to measure the same as it was in small pieces which could be the result of even slight violence, therefore, in my assessment the case was one where accused-Appellants were required to be held guilty under Section 323/34 of the IPC instead under Section 325/34 IPC. 11. 11. It shall be proper to mention here that all the eye witnesses of the case have not supported the prosecution case so also the oral testimony. It is only the statement of PW 11 Sayar, who has alleged that accused came to their room and inflicted lathis blows on the person of the deceased. 12. A perusal of the statements indicates that at that point of time when the incident is alleged to have taken place, there was no light but in the cross-examination the witness has stated that there was light of chimney but this fact does not find place either in the first information report or in his police statement Ex.D/3 and the report Ex.P/11. However, it is not necessary to discuss the evidence any further for the simple reason that the only challenge which has been made before me in this appeal is that the learned Trial Judge has wrongly convicted the accused appellants under Section 325 read with Section 34 of IPC and thereby committed error whereas they ought to have been convicted under Section 323 read with Section 34 of the IPC. 13. After considering the matter and also taking into consideration the fact that the incident is alleged to have taken place in the year 1986 and the accused-Appellants have remained in jail for about 11 months, and further on the basis of assessment of evidence, I am of the view that in the interest of justice the conviction of the accused-Appellants under Section 325 read with Section 34 IPC is required to be altered and instead the should be convicted under Section 323 read with Section 34 IPC while maintaining the rest part of the judgment convicting and sentencing the accused-Appellants under Section 452 and 323 IPC and awarding them sentence to the period of imprisonment already suffered by them. 14. In view of foregoing discussions, the appeal partly succeeds. The accused-Appellants instead of Section 325/34 IPC are convicted under Section 323/34 IPC and while maintaining their conviction under Secs. 323 & 452 IPC they are sentenced to the period already undergone by them for these offences. The impugned order dated 14.10.1987 passed by the learned Sessions Judge in Criminal Case No. 28 of 1987 is accordingly modified to that extent. The accused-Appellants are on bail. They need not to surrender. Their bail bonds stand discharged.Appeal partly allowed. *******