Judgment Nirmal Yadav, J. 1. This is an appeal directed against the judgment dated 22.7.2002 vide which all the accused have been convicted under Section 304 IPC. It is, however, subsequently clarified while passing the order of sentence dated 25.7.2002 that the case in hand falls within the ambit of Section 304 Part II IPC and thereby sentenced all the accused to ten years rigorous imprisonment and fine of Rs. 2,000/- each. In default of payment of fine the accused shall have to undergo additional rigorous imprisonment for one month. 2. All the three accused are real brothers. On 17.2.2001 at about 00.30 A.M., Tara Chand, father of the accused persons made statement Ex. PD/1 before the Police that his wife Smt. Bala had developed illicit relations with one Om Parkash, resident of Sonepat. His sons (the accused persons) were under the influence of their mother. The complainant had forbidden his wife not to have any relation with said Om Parkash. On 16.2.2001 at about 7.30 P.M. while Tara Chand was asking his wife to refrain from indulging in such activities, she started hurling abuses to him and at her instance their sons Jai Kanwar attributed lathi blow on his head while accused Satyawan and Ashok Kumar gave danda blows on his hand and thighs. On raising alarm Mangat Ram and Charan Singh, brother and nephew of the complainant reached the spot and rescued him from the clutches of the accused persons. He was removed to the hospital and expired on 22.2.2001.On the basis of the said statement FIR was recorded on 27.2.2001. 3. Tara Chand was medico legally examined by Dr. Arun Garg PW-7 vide report Ex. PN on 16.2.2001 at 11.00 P.M. and found the following injuries : "l. A lacerated wound 4 x 1 cm on the scalp in the left temporal region bleeding bone deep tender. Advised X-ray skull Ap. & lateral. 2. A lacerated wound 3 x 0.6 on the dorsum & base of the left index finger with swollen bleeding. Advised X-ray left hand finger. 3.Two small abrasion on the dorsum of hand fresh bleeding. 4. The wrist joint; right is swollen tender restricted movements. Advised X-ray of right wrist joint. 5. The right forearm swollen tender. 6. Complaining of pain on the left side of right thigh. No cut injury seen. 7. Complaining of pain on right shoulder. No cut injury seen. 3.Two small abrasion on the dorsum of hand fresh bleeding. 4. The wrist joint; right is swollen tender restricted movements. Advised X-ray of right wrist joint. 5. The right forearm swollen tender. 6. Complaining of pain on the left side of right thigh. No cut injury seen. 7. Complaining of pain on right shoulder. No cut injury seen. Injuries No. 1, 2 and 4 were kept under observation, while injuries No. 2, 5, 6 and 7 were declared simple." 4. Vide his opinion Ex. PN/1, he declared the patient fit to make statement. According to him all the injuries were caused by blunt weapon within the probable duration of six hours. 5. PW-8 Dr. Rajiv Sethi conducted post-mortem examination on the dead body of Tara Chand on 22.2.2001 and found the following : "1. There was stitched wound 4 c.m. on the left parietal region with three stitches. Clotted blood present. 2. Stitched wound 3 c.m. over dorsum of left hand at base of index finger with two stitched wound on dorsum of hand 2 cm x 0.5 cm and 1.5 x 0.5 cm. 3. Multiple stabbed wound over right wrist and hand at base on right thumb of size 0.5 x 0.5 cm., 1 cm x 0.5 cm and 1.0 cm and 0.5. cm. On exploration. Scalp and skull altered blood present beneath the stitched wound injury No. 1." 6. On the basis of the evidence on record, the accused were prima facie charged for the offence under Section 304 read with Section 34 IPC to which they pleaded not guilty and claimed trial. 7. The prosecution in order to substantiate its case produced PW-1 HC Ramesh Chander, PW-2 EHC Sajjan Singh, PW-3 Constable Inder Pal, Draftsman, PW-4 Om Parkash ASI, PW-5, Mangat Ram, PW-6 Charan Singh, PW-7 Dr. Arun Garg, PW-8 Dr. Rajiv Sethi, PW-9 Rajinder Singh SI and PW-10 Mahinder Singh SI. 8. The accused when examined under Section 313 Cr. P.C. pleaded innocence and false implication. Accused Jai Kanwar, however, took specific plea that he is permanently disabled and, therefore, he could not inflict any injury to his father. In defence the documents Ex. D. 1 and D. 2 medical certificates have been submitted. 9. After taking into consideration the facts and evidence on record, the trial Court convicted and sentenced all the accused as mentioned above in para 1 of the judgment. 10. In defence the documents Ex. D. 1 and D. 2 medical certificates have been submitted. 9. After taking into consideration the facts and evidence on record, the trial Court convicted and sentenced all the accused as mentioned above in para 1 of the judgment. 10. The learned counsel for the appellants at the outset argued that the findings of the trial Court are based on mere conjectures and surmises and without any application of mind. It is argued that appellant Jai Kanwar is a totally handicapped person to the extent of hundred per cent. He is suffering from quadriplegia i.e. paralysis of all the four limbs. In support the accused has submitted disability certificate Ex. D.1 issued on 21.1.1995 by Viklang Seva Samiti, Sonepat. The Medical Board issued certificate Ex. D.2 on 20.10.1995. He also referred to the report of the Medical Board dated 1.1.2002 which was submitted at the time of bail application before this Court in Criminal Misc. No. 30582-M of 2001 and on the basis of the said certificate he was granted bail by this Court. The learned counsel further referred to the statement of PW-7 Dr. Arun Garg, who categorically stated in his cross-examination that Jai Kumar, who is present in the Court, has been examined by him and as per his opinion he has suffered total permanent disability to the extent of 100% and in his opinion it is not possible for him to inflict the injuries to Tara Chand. He also referred to the statements of PW-5 Mangat Ram and PW-6 Charan Singh who also admitted in their cross-examination that Jai Kanwar is 100% disabled since childhood and he is unable to even lift a danda in his hand, the question of giving lathi/danda blow does not arise. The learned counsel, therefore, argued that the trial Court was not justified in holding that the appellant Jai Kanwar had wielded lathi blow on the head of Tara Chand. 11. The learned counsel referred to para 16 of the judgment where the trial Court has observed that Ex. D.1 is without any date. The Court has, however, accepted the fact that as per Ex. D.2 and the certificate dated 1.1.2002, the accused Jai Kanwar is suffering from quadriplegia with mild mental retardation. 11. The learned counsel referred to para 16 of the judgment where the trial Court has observed that Ex. D.1 is without any date. The Court has, however, accepted the fact that as per Ex. D.2 and the certificate dated 1.1.2002, the accused Jai Kanwar is suffering from quadriplegia with mild mental retardation. He further observed that almost all the limbs with mild mental retardation could not restrict him to inflict injuries on the head of his father resulting in his death clearly shows non application of mind. Once it is accepted that accused Jai Kanwar is suffering from quadriplegia and with the clear deposition of Dr. Arun Garg that he is not in a position, to wield lathi it is not possible to arrive at the conclusion that Jai Kumar could cause a lathi blow on the head of his father. It is further argued that the trial Court is simply swayed with the proposition that a father would not falsely implicate his son. 12. On careful consideration of the medical evidence, the statement of PW-7 Dr. Arun Garg and the certificate Exs. D.1 and D.2 and the medical examination of Jai Kanwar conducted on 1.1.2002 by Medical Board, it clearly shows that accused Jai Kanwar was suffering from quadriplegia i.e. paralysis of all the four limbs. It is not possible for him to wield 9 lathi blow to any one. The observation of the trial Court that paralysis of all the limbs with mild mental retardation on the date of occurrence would not restrict him to inflict injury clearly appears to be observed without any application of mind. Either there should have been any evidence to prove that the accused Jai Kanwar had recovered from quadriplegia or that he was not suffering from quadriplegia on the date of occurrence. The only ground that a father would not falsely implicate his own son, cannot override medical certificates and medical examination conducted by the Medical Board and the opinion of the doctor that Jai Kanwar could not even lift a danda in his hand. 13. The earned counsel further argued that the other accused, namely, Satyawan and Ashok Kumar have been convicted under Section 304 Part-II IPC. As per the evidence on record Satyawan had caused danda blow on the hands of deceased Tara Chand while Ashok Kumar had caused injuries on. his thigh and left hand thumb. 13. The earned counsel further argued that the other accused, namely, Satyawan and Ashok Kumar have been convicted under Section 304 Part-II IPC. As per the evidence on record Satyawan had caused danda blow on the hands of deceased Tara Chand while Ashok Kumar had caused injuries on. his thigh and left hand thumb. Injuries No. 3, 5, 6 and 7 on the person of Tara Chand were found to be simple. While injuries No. 1, 2 and 4 were kept under observation. As per the X-ray report no bony injury was found corresponding to these injuries and, therefore, they can at best be held guilty for causing simple injuries on nonvital parts of the body falling under the provisions of Section 323 IPC. It is argued that from the evidence on record it is well proved that there was no mens-rea on the part of Ashok Kumar and Satyawan to cause the death of Tara Chand. Except the alleged statement of Tara Chand, there is no other evidence on record to prove the prosecution case. The two alleged eye-witnesses Mangat Ram and Charan Singh have not supported the prosecution case in this respect. 14. Even the medical evidence does not support the prosecution case. Dr. Rajiv Sethi (PW-8) who conducted the post-mortem examination on the dead body of Tara Chand stated that even in view of the report of the Chemical Examiner Ex. PS, he could not tell the cause of death. He simply stated that possibility cannot be ruled out that death could be caused by infliction of danda. In the next breath he stated that he was unable to tell the criteria on the basis of which it could be said that death was caused by infliction of danda. As per the statement of Tara Chand, Jai Kanwar has been attributed to the fatal blow. However, in view of the discussion in para 8, it is well proved that Jai Kanwar could not wield any danda blow as he was suffering from quadriplegia i.e. paralysis of all the four limbs. There is no definite opinion on the record that the injuries suffered by the deceased were sufficient to cause death in the ordinary course of nature. The trial Court appears to have super-imposed its own opinion that the death of the deceased was caused on account of injury suffered by him on 16.2.2001. There is no definite opinion on the record that the injuries suffered by the deceased were sufficient to cause death in the ordinary course of nature. The trial Court appears to have super-imposed its own opinion that the death of the deceased was caused on account of injury suffered by him on 16.2.2001. Admittedly, Tara Chand had died on 22.2.2001 and there is no evidence on record to prove that during the interRegulation m period what was his condition. And what was the cause of death. The statement Ex, PD/1 recorded by the Police official i.e. Om Parkash cannot be termed as dying declaration as there is no evidence if at the relevant point of time the deceased was fit to make statement nor there is any certificate of the doctor to this effect. 15. In view of the above discussion, I am of the opinion that Jai Kanwar cannot be held guilty of having caused any offence. Therefore, his appeal is accepted and he is acquitted of the charge under Section 304 Part-II IPC. Resultantly, the fine imposed on him, if deposited, be refunded. 16. As regards the other two accused Satyawan and Ashok Kumar are concerned, they are only guilty of causing simple injuries to deceased Tara Chand. Accordingly, appeal qua them is partly accepted and the judgment of the trial Court convicting them under Section 304 Part II IPC is set aside and they are held guilty under Section 323 IPC substantively. The learned counsel for the appellants argued that Satyawan has undergone about one year and 11 months whereas Ashok Kumar has already undergone about five months. Keeping in view that the accused have already undergone sentence as referred to above, theirs tence of ten years rigorous imprisonment is reduced to the period already under one by both of them. However, the fine imposed by the learned trial Court in respect of Satyawan and Ashok Kumar of Rs. 2,000/- each is maintained and in default to further undergo rigorous imprisonment for one month.