JUDGMENT 1. - This present Criminal Appeal is directed against the judgment dated 30.06.2003 passed by Additional District & Sessions Judge (Fast Track) No. 1, Jhalawar whereby the accused appellant was convicted for the offence punishable under Section 304 Part-II, IPC and sentenced to undergo 10 years' rigorous imprisonment with a fine of Rs. 1000/-. The accused appellant has been also convicted under Section 323, IPC and sentenced to undergo six month's rigorous imprisonment with a fine of Rs. 100/-; in default of payment of fine, to further undergo one month's simple imprisonment. 2. Briefly stated, facts of the case are that on 14.01.1998, a written report was lodged by Lalchand S/o Dwarkalal stating therein that at about 6.00 PM, he had gone to the shop of Ramgopaiji to make purchases. At that time, accused-Arjun was also standing there and when Ramgopal asked Arjun to move ahead, Arjun started abusing Ramgopal and hit a stone on the leg of Ramgopal. Ramgopal went to his house and told about the incident and Ramgopal, Motilal and Heeralal went together to make Arjun understand. It was further alleged that the family members of the accused started giving beating with Lathies and Gandasi, Bherulal, Ghanshyam S/o Phoolchand, Gajanand Ghanshyam Patidar and Banwarilal Patidar also gave beating with Lathi. Bherulal S/o Kashiram and Arjun are alleged to have given beating to Motilal with Lathi and Arjun is alleged to have thrown a stone from the roof, which hit Motilal and on account of same Motilal became unconscious. Dwarkalal also sustained injury no his forehead. It was also alleged that the women of the family of Sitaram also threw stone. Goverdhan Lai Meena, Prakash Sharma, Sitaram Dhakar and Shyamlal Bheel came to rescue and Motilal was sent to the hospital. Prior to this incident, the accused-Arjun had also killed the younger brother of the complainant. Motilal also died on account of injuries sustained by the accused appellant. 3. On the basis of the report, the police registered FIR No. 27/1998 for the offences under Sections 147, 148, 149, 323 and 302 of the Indian Penal Code and investigation was commenced. 4. After completion of the investigation, the police filed charge sheet under Sections 148, 149, 323 and 302 IPC in the Court of Chief Judicial Magistrate, Jhalawar against the accused and co-accused Sitaram, Gajanand, Banwarilal, Bherulal and Ghanshyam. 4. After completion of the investigation, the police filed charge sheet under Sections 148, 149, 323 and 302 IPC in the Court of Chief Judicial Magistrate, Jhalawar against the accused and co-accused Sitaram, Gajanand, Banwarilal, Bherulal and Ghanshyam. Thereafter, the case was committed to the Court of Sessions Judge and subsequently, the case was transferred to the Court of Additional District & Sessions Judge, Fast Track, No. 1 Jaipur for conducting the trial. 5. On the pleadings of the parties, the trial Court framed charges under Sections 148, 302/149 and 323, 323/149 IPC. The accused appellant denied the charges and claimed for trial. 6. The trial Court after hearing final submissions of the respective parties, convicted and sentenced the accused for the offence under Sections 304 Part-II and 323 of IPC. 7. The order impugned dated 30.06.2003 is under challenge in the present appeal. Learned Counsel for the accused appellant without challenging the order impugned on merits submits that at the most in the facts and circumstances of the case and as per statements of the witnesses, the complainant party is aggressor and accused appellant was at his residence and the allegations levelled against the accused appellant is that he has thrown stone, which hit the deceased - Motilal and ultimately, Motilal died on account of injury sustained on the head. 8. The accused appellant cannot be convicted under Section 304, Part-II, IPC. As per the evidence available on record, no case under Section 304 Part-II, IPC is made out and at the most, the case under Section 325, IPC is made out against the accused. 9. In support of his contention, learned Counsel for the accused appellant placed reliance on the judgment delivered in the case of Sakir Mohammed @ Sakir Hussain v. State of Rajasthan, reported in Cr.L.R. (Raj.) 1983 Page 707 . Wherein this court has held that the accused threw a stone after exchange of abuses and held, evidence of witnesses inspires confidence and should be accepted as true. 10. It is further held that evidence of witnesses corroborated by medical evidence-Injuries caused by a stone-Held, accused caused injuries which resulted in death of deceased. It is further observed that the accused threw a single stone causing death -Knowledge to cause death cannot be attributed to accused. Held, accused is guilty of causing grievous injuries under Section 325. 11. I have heard Mr. It is further observed that the accused threw a single stone causing death -Knowledge to cause death cannot be attributed to accused. Held, accused is guilty of causing grievous injuries under Section 325. 11. I have heard Mr. Sanjay Mehrishi, learned counsel for the accused appellant and learned Public Prosecutor Mr. B.S. Chhaba for the State. Perused the judgment dated 30.06.2003 passed by the trial Court and material available on record as well as judgment passed by this Court in the case of Sakir Mohammad @ Sakir Hussain. 12. When complainant party reached at the house of accused appellant, the accused appellant threw a stone on the deceased Motilal from the roof of the house, due to grievous injuries sustained on the head of the Motilal, died during the treatment. 13. Upon careful perusal of the prosecution evidence, it reveal that nothing has been brought out during the course of cross-examination, which may throw doubt on the testimony so far as they have deposed that the accused-appellant threw the stone from the roof of his house towards the deceased-Motilal. The deceased received injuries on his head and he became unconscious and ultimately died. The medical evidence also supports the testimony of prosecution evidence as well as postmortem report also corroborate the fact that the injury found on the deceased could be caused by stone. 14. It is not disputed that the accused appellant threw a stone at the deceased, it cannot be said that the appellant can be attributed the knowledge that the said stone, when it would hit the deceased, would cause such an injury as was merely to cause his death. In the circumstances, the conviction of the appellant for the offence under Section 304 Part-11 of the Indian Penal Code cannot be sustained. The only offence for which the appellant can be held guilty is the offence for causing grievous hurt punishable under Section 325, IPC. 15. In the result, the present criminal appeal is partly allowed. The conviction of accused appellant under Section 323 IPC is upheld but the fine awarded under this Section is enhanced from Rs. 100/- to Rs. 5000/-. So far as conviction of the accused appellant under Section 304 Part-II IPC is concerned, instead of Section 304 Part-11 IPC, the accused appellant is convicted for the offence under Section 325 IPC and sentenced to the period already undergone by him in custody. 100/- to Rs. 5000/-. So far as conviction of the accused appellant under Section 304 Part-II IPC is concerned, instead of Section 304 Part-11 IPC, the accused appellant is convicted for the offence under Section 325 IPC and sentenced to the period already undergone by him in custody. On depositing the amount of fine of Rs. 5000/- as awarded under Section 323 IPC, the accused appellant Arjunlal S/o Sitaram, who is in District Jail, Jhalawar shall be set at liberty forthwith, if not required to be detained in connection with any other case. In default of payment of fine of Rs. 5,000/-, the accused appellant will have to undergo rigorous imprisonment for six months. The impugned judgment dated 30.06.2003 passed by Additional District & Sessions Judge (Fast Track), No. 1, Jhalawar is modified accordingly.Appeal partly allowed. *******