JUDGMENT 1. - A short question that arises for our consideration in the instant appeal is - Whether the trial court was justified in concluding that the convicted appellants before it were guilty of an offence punishable under section 302 IPC? 2. Laxman Singh and Nand Singh, appellants herein, were put to trial before the learned Special Judge, SC/ST (Prevention of Atrocities) Cases Tonk, who vide judgment dated July 23, 2004 convicted and sentenced them as under:- Nand Singh: U/s.302 IPC: To suffer imprisonment for life and fine of Rs.500/-, in default to further suffer rigorous imprisonment for one month. Laxman Singh: U/s.302 IPC: To suffer imprisonment for life and fine of Rs.500/-, in default to further suffer rigorous imprisonment for one month. U/s.323 IPC: Imposed a fine of Rs.100/- in default to suffer Rigorous imprisonment for seven days. U/s.325 IPC: To suffer rigorous imprisonment for one year and fine of Rs.250/-, in default to further suffer rigorous imprisonment for fifteen days. The substantive sentences were ordered to run concurrently. 3. In the intervening night of August 9 and 10, 2002 around 1 AM Kishan (since deceased) gave fifty rupee note to shopkeeper Laxman and purchased a `Bidi-Bundle'. When remaining amount, after deducting the price of Bidi, was demanded by Kishan, Laxman became furious and refused to return the amount. Altercations between Laxman and Kishan ensued. When Prakash intervened and favoured Kishan, Laxman gave a lathi blow on the right foot of Prakash. Nand Singh and other, who were consuming liquor inside the shop, came out and started beating Kishan with lathis. Kishan and Prakash became unconscious. They were removed to hospital where Kishan died. Parcha Bayan (Ex.P-1) of Prakash was recorded on August 10, 2002 at 10.30 AM by SHO Police Station Tonk. On that Parcha Bayan under sections 147, 148, 149, 302, 341 and 323 IPC and 3(1)(10) SC/ST (PA) Act was registered and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. The appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge, SC/ST (Prevention of Atrocities) Cases Tonk. Charges under sections 302, 323, 325, 325/34 IPC and 3(1)(x) and 3(2)(v) SC/ST (PA) Act were framed against the appellants, who denied the charges and claimed trial. The appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge, SC/ST (Prevention of Atrocities) Cases Tonk. Charges under sections 302, 323, 325, 325/34 IPC and 3(1)(x) and 3(2)(v) SC/ST (PA) Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Four witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 4. Indisputably death of Kishan Lal was homicidal in nature. As per post mortem report (Ex.P-8) following ante mortem injuries were found on the dead body:- 1. Bruise on whole of left ear and left tempro mandibular joint size 10 x 6cm 2. Abrasion 4 x 2cm behind Rt. ear. 3. Abrasion 15 x 2cm on Rt. shoulder. 4. Bruise 18 x 3cm Rt. side of front of chest in mid clavicular region. 5. Fractured ribs No.3,4,5,6 on Rt. side in mid clavicular region. 6. Abrasion 1 x 1cm Rt. elbow joint 7. Bruise 14 x 4cm on Rt. thigh antero lateral aspect. 8. Bruise Rt. sided abdominal wall 6 x 3cm. According to Dr. Ramavtar (Pw.11) the cause of death was coma due to cerebral hemorrhage caused by head injury. 5. The prosecution case is founded on the testimony of Prakash (Pw.1) who is an injured witness and as per injury report (Ex.P-12) as many as four injuries were found on his right thigh, right knee, left ankle and left leg. From the testimony of Prakash it is revealed that Kishan purchased `Bidi-Bundle' from Laxman and paid fifty rupee note. When Kishan asked to deduct the price of Bidi and return remaining amount, Laxman refused to return the amount and thereafter hot words were exchanged. At this stage Prakash intervened and Laxman gave lathi blow on the right foot of Prakash. Nand Singh and others, who were consuming liquor inside the shop, came out and started beating Kishan with lathis. Kishan and Prakash became unconscious and they were removed to hospital where Kishan died. In the cross examination Prakash admitted that in his Parcha Bayan and police statement Ex.D-1 he did not state that Laxman and Nand Singh inflicted lathi-blows on the person of Kishan. Kishan and Prakash became unconscious and they were removed to hospital where Kishan died. In the cross examination Prakash admitted that in his Parcha Bayan and police statement Ex.D-1 he did not state that Laxman and Nand Singh inflicted lathi-blows on the person of Kishan. " y{e.k flag o uanflag }kjk fd'ku ds ykfB;ksa ls pksV ekjus okyh ckr izn'kZ Mh&1 esa fy[kh gqbZ ugha gSA " Prakash even disowned most part of Pracha Bayan. 6. A look at the testimony of Prakash demonstrates that the incident occurred in the odd hours of night and appellant Laxman inflicted lathi blows on the person of Prakash. Thereafter three persons viz.Kan Singh, Hari Singh and Mohan Singh, who were consuming liquor inside the shop, came out and gave beating to Kishan. In the statements recorded under section 161 CrPC Prakash did not state that appellants Laxman and Nand Singh gave lathi blows on the person of Kishan. Thus it could not be established beyond doubt that the appellants inflicted injuries on the person of the deceased. 7. The testimony of injured witness has its own efficacy and relevancy. The fact that he sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself. Although every discrepancy in the statement of injured witness cannot be treated as fatal, the discrepancy which affects the prosecution case, can be taken into consideration. In the instant case Prakash admitted that after sustaining injuries he became unconscious, therefore this possibility cannot be ruled out that he did not see the assailants, who caused injuries on the person of deceased. 8. Having closely scrutinised the testimony of Prakash, we find that since he in the police statements did not attribute to the appellants any injury sustained by the deceased, charge under section 302 IPC is not established beyond a reasonable doubt against the appellants. The prosecution is able to prove charges under sections 325 and 323 IPC only against appellant Laxman. The trial court was not justified in concluding that the appellants were guilty of an offence punishable under section 302 IPC. 9. For these reasons, we dispose of the instant matter in the following terms:- (i) We allow the appeal of Nand Singh and acquit him of the charge under Section 302 IPC. The trial court was not justified in concluding that the appellants were guilty of an offence punishable under section 302 IPC. 9. For these reasons, we dispose of the instant matter in the following terms:- (i) We allow the appeal of Nand Singh and acquit him of the charge under Section 302 IPC. Nand Singh is on bail, he need not surrender and his bail bonds stand discharged. (ii) We partly allow the appeal of Laxman Singh and while acquitting him of the charge under section 302 IPC we maintain his conviction and sentence under sections 325 and 323 IPC. Since Laxman Singh has already suffered the sentence awarded to him under sections 325 and 323 IPC, we direct that Laxman Singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal of N Allowed. *******