JUDGMENT 1. - The appeal No. 85/2002 has been filed by the accused appellant Mohan Ram against the decision of the Court of Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No. 190/2001 (42/1999) dated 22.1.2002. By the judgment impugned, the learned trial Court has convicted and sentenced the accused appellant as under: OFFENCES PUNISHMENT Section 450 I.P.C. Two years S.I. and to pay a fine of Rs. 200/- and in default of payment of fine, three months S.I. Section 336 I.P.C. Fine of Rs. 250/- and in default of payment of fine, three months S.I. Section 323 I.P.C. 12 months S.I. and to pay a fine of Rs. 550/- and in default of payment of fine, six months S.I. Section 302 I.P.C. Life imprisonment and to pay a fine of 4000/- and in default of payment of fine, one year S.I. 2. Alongwith Mohan Ram, five accused persons were tried by the trial Court in the case but accused Prema Ram, Jagdish, Hanuman Ram and Sunil were acquitted. However, accused Mohan Ram was convicted as aforesaid. 3. The prosecution was lodged on the basis of a written report submitted to the police station Shir Balaji by complainant Gopi Ram on 3.7.1999 at 9.45 PM. In the report, it was alleged inter alia that at about 7:30 PM accused persons came in group to the house and opened the door. They entered the house and met Gumana Ram. Accused Mohan Ram said that one of the enemies is he and after exhorting this, Mohan Ram started hitting Gumana Ram with stones. All the accused persons started pelting stones which resulted into injuries to him and Radha. Mohan Ram took away certain ornaments of Radha as well. 4. On the aforesaid information, Police Station Shir Balajji registered an F.I.R. being F.I.R. No. 38/1999. After usual investigation, charge-sheet was filed and the case was made over to the trial Court, where charges were framed against the accused persons under Sections 147, 450, 336, 323/149, 302, 302/149 I.P.C. Accused denied the charges and claimed trial. At the trial, the prosecution examined 12 witnesses and exhibited 17 documents. The accused were examined under Section 313 Cr.P.C. Five defence witnesses were examined on behalf of the accused. Six defence documents were also exhibited. 5. At the trial, the prosecution examined 12 witnesses and exhibited 17 documents. The accused were examined under Section 313 Cr.P.C. Five defence witnesses were examined on behalf of the accused. Six defence documents were also exhibited. 5. After considering the case of the prosecution, the trial Court came to the conclusion that out of the five accused before it, no case is made out against four accused and acquitted accused Prema Ram, Jagdish, Hanuman Ram and Sunil. However, the trial Court found that the case against Mohan Ram is clearly made out and therefore, convicted the accused Mohan Ram as aforesaid. Against the acquittal of the aforesaid accused, the State has filed an appeal being Appeal No. 55/2003 challenging their acquittal. 6. Assailing the conviction, the learned counsel for the appellant submitted that the case of the prosecution is not based on correct facts because the dispute is alleged to have started at Nagaur where PW-1 Gopi Ram had gone for taking marksheet. There, Mohan Ram had entered into a quarrel but it was only a verbal encounter. The accused Mohan Ram and the complainant got separated there. On the same day, at about 7:00 PM, the accused Mohan Ram entered the house of the complainant. If the fact of bad blood between the parties as alleged was true, then there was no reason as to why Mohan Ram had not caused any 'harm while the accused encountered the complainant and the deceased at Nagaur. In fact, the dispute related to a small encounter in between the children which resulted into the ultimate death of the deceased Gumana Ram. 7. As far as the complicity of the accused persons who have been acquitted is concerned, there is only non-specific participation against these accused persons. Specific allegations have only been alleged against Mohan Ram. Therefore, their acquittal is not liable to be disturbed. All the injuries to the deceased are alleged to have been inflicted by accused Mohan Ram by a big stone on abdomen. 8. Learned counsel for the appellant further asserted that the manner of occurrence as suggested do not make out a case whereby, it can be said that the accused had intended to cause death of Gumana Ram. It was an alleged assault by stone on the front portion of the deceased. 8. Learned counsel for the appellant further asserted that the manner of occurrence as suggested do not make out a case whereby, it can be said that the accused had intended to cause death of Gumana Ram. It was an alleged assault by stone on the front portion of the deceased. If at all the accused had any intention to cause death of the deceased,' he could have caused injury on the head. In this regard, clause thirdly of Section 300 I.P.C. can't be applied. Therefore, the offence as alleged to have been made out against the accused Mohan Ram could not be made out. Learned counsel places reliance on a case decided in the matter of Augustine Saldanha v. State of Karnataka reported in 2005 SCC (Cri.) 1313. 9. Per contra, learned Public Prosecutor submitted that a young lad has been killed brutally by the accused by inflicting injuries. There was no reason as to why the accused entered the house alongwith other acquitted persons and in this light, the offence has been committed by all the accused persons consciously. The trial Court was right in convicting Mohan Ram under Section 302 I.P.C. as Mohan Ram had committed the crime as alleged. Learned counsel for the State further asserted that the offences recorded against the other accused persons for acquittal is based on such facts which are un-sustainable and therefore, the judgment cannot be sustained as far as acquittal is concerned. 10. We have considered the rival submissions and have given our thoughtful consideration to the facts obtaining on record. As regards the acquittal of four accused persons are concerned, State has filed an appeal against the acquittal. We may say it at first place that no active participation was alleged against them. The injuries have been caused by Mohan Ram alone. In this background, the implication of other accused persons for vicarious liability has been considered by the trial Court. It has been found by the trial Court that it would not be prudent to extend the implication to their level. It cannot be said that the findings so recorded by the trial Court are in any way so"vitiated that it can be said that the judgment is perverse. It has been found by the trial Court that it would not be prudent to extend the implication to their level. It cannot be said that the findings so recorded by the trial Court are in any way so"vitiated that it can be said that the judgment is perverse. To disturb the findings of acquittal, a very strong case is required to be made out and in that light of the matter, we are of the opinion that prosecution has failed to make out a case where State appeal can be accepted and the acquittal recorded in favour of four accused persons namely Prema Ram, Jagdish, Hanuman Ram and Sunil can be disturbed. In this view of the matter, the judgment of the trial Court deserves to be upheld and the appeal of the State deserves to be dismissed. 11. Now we take up the case of Mohan Ram. Mohan Ram is alleged to have entered into a verbal assault with the complainant while they met in Nagau'-. At that point, it cannot be said that the accused had caused any injury to the deceased or the complainant. Thereafter, it is alleged that he entered into the house of the complainant and inflicted injuries by stone. As regards causing of injuries.-by accused Mohan Ram, eye-witnesses' account is reliable and without ambiguity. Both the eye-witnesses Gopal Ram and Radha, injured witnesses have deposed that Mohan Ram entered into the house and caused injuries to the deceased. Therefore, it cannot be said that the case of the prosecution is not sustainable against accused Mohan Ram. 12. The trial Court has convicted Mohan Ram for the offence under Section 302 I.P.C. which in our view, would not be the correct appreciation of facts. If he had intended to cause death, he could have used the stone in smashing the head or use it otherwise and therefore, it can be said at best that he had knowledge of what he was doing and in that light, we would not consider that the conviction of the accused under Section 302 I.P.C. is proper and instead, the accused deserves to be convicted under Section 304 Part II I.P.C. Consequently, the conviction of the accused appellant Mohan Ram under Section 302 I.P.C: is set aside. His sentence of life is also set aside. His sentence of life is also set aside. Instead, he is convicted under Section 304 Part II I.P.C. He is sentenced to eight years rigorous imprisonment and fine of Rs. 5,000/- and in default of payment of fine, he will serve out one year rigorous imprisonment. The conviction of the accused under other offences namely, 450 I.P.C., 336 I.P.C. and 323 I.P.C. is however, maintained alongwith the sentences awarded to him. Accused Mohan Ram is behind the bars. He will serve out the sentence as awarded. The sentence will run concurrently. Other accused persons in State appeal are on bail. Their bail bonds are cancelled.Appeal No. 85/2002 partly allowed. Appeal No. 55/2002 dismissed. *******