Judgment Shyam Kishore Sharma, J. 1. The sole appellant Bindeshwari Singh @ Bideshi Singh has preferred this appeal against the judgment of conviction and order of sentence dated 26.5.1993 passed in Sessions Trial No. 852 of 1990 by the Sessions Judge, Bhagalpur whereby the appellant was convicted u/s. 304 of the Indian Penal Code and was sentenced to undergo R.I. for two years. 2. Case of the prosecution relates to an occurrence of the evening of 7.4.1990. Ac-cording to the informant PW 2 Hiralal Yadav, at 5 P.M. Hari Kishore Singh looking after the grazing of his cattle in the Mango orchard of the appellant situated in Pachkathiya Bahiyar within Sahkund P.S. along with PW 3 Bijay Yadav, PW 5 Chanik Yadav, PW 1 Kishori Yadav and PW 4 Budhu Yadav. The inform-ant was grazing grass in the adjacent field. Suddenly the appellant came running towards the Mango orchard with lathi in his hand. Others escaped but Hari Kishore could not escape because of his physical disability. The appellant gave several lathies blows to Hari Kishore as a result of which he become unconscious. Thereafter, the appellant es-caped. PW 2 and other witnesses brought Hari Kishore Singh on a cot to his home and they wanted to take the injured to Sahkund Hospital for better treatment but they were restrained by the appellant. During that night Hari Kishore Singh died on the next morning by 6 A.M. Fardbeyan was given and Sahkund P.S. Case No. 33 of 1990 was registered u/s. 302 of the Indian Penal Code. After investigation charge sheet was submitted u/s. 302 of the Indian Penal Code. Cognizance was taken and the case was committed to the Court of Sessions where the appellant was charged u/s. 304 of the Indian Penal Code for causing such injury which was likely to cause death. He was charged for the offence culpable of homicide not amounting to murder. 3. The defence of the appellant was that the victim was of weak health, he was anemic, his physical condition was poor, he fell down from the tree and died on the spot. This fact was also supported by a number of witnesses during investigation. The I.O. could not be examined, so the defence could not brought this fact on the record through I.O. 4. In order to prove its charge the prosecution examined 7 witnesses. This fact was also supported by a number of witnesses during investigation. The I.O. could not be examined, so the defence could not brought this fact on the record through I.O. 4. In order to prove its charge the prosecution examined 7 witnesses. PW 1 Kishori Yadav, PW 2 Hiralal Yadav (inform-ant), PW 3 Bijay Yadav, PW 4 Budhu Yadav, PW 5 Chanik Yadav, PW 6 Dr. H.I. Ansari and the PW 7 Md. Shakoor. PW 4 was tendered, whereas PW 7 is a formal witness. The informant was examined and his cross-examined was deferred due to lapse of time. Later on he did not appear. Therefore, his evidence was not completed and his evidence was fit to be expunged. Remaining witnesses PWs 1, 3 and 5 have stated about the occurrence. 5. Examination of PW 6 has to be read firstly because he has conducted the post mortem examination. PW 6 has conducted post mortem of Hari Kishore Singh at 4.15 PM on 8.4.1990 and found:- (i) Bruise with swelling on left up-per arm in 3"x1" (ii) Bruise on right side fore-head in 1 "x1" (iii) Bruise on left hand postero medially in 2"x1". 6. On external examination the doctor found the deceased to be a person of thin built and anemic. Cause of death according to the doctor was pericardial effusion, anemia, hypo potaneamia. According to the doctor the injuries received by the deceased were simple in nature. The deceased was physically handicapped. The doctor has stated that because the deceased was of weak constitution so the above injuries might have been sufficient to cause his death. 7. PW 1 has stated that in the evening some persons were grazing their cattle and in the mean while the appellant came and abused. Hari Kishore Singh could not escape because he was handicapped and he was assaulted by lathi by the appellant. He be-came unconcious, thereafter he was carried to his house but when some persons were wanted to carry him to the hospital they were restrained and Hari Kishore Singh died in the night. 8. Similar is the evidence of PW 2 who has stated that while the other persons tried to carry the injured for treatment then they were restrained by the appellant who was having arms. This is the further development which was not stated by the PW 1. 9. 8. Similar is the evidence of PW 2 who has stated that while the other persons tried to carry the injured for treatment then they were restrained by the appellant who was having arms. This is the further development which was not stated by the PW 1. 9. Ocular evidence is that the appellant has assaulted the deceased but for proving the charge u/s. 304 of the Indian Penal Code it must be proved that assault was with intention to cause death. The post mortem report of the deceased shows that the deceased was anemic and thin built and his ante mortem injuries were simple in nature. These ante mortem injuries were definitely of that nature which were not sufficient in ordinary course to cause death. The defence witness has been brought to say that the deceased fell down in course of the day and due to his weak health he died. There are two version of the occurrence. One is that the deceased was injured by the appellant and that injury caused his death. On the other hand the case of the appellant is that the deceased was of weak health which fact has been supported by the doctor also. He received simple injuries in course of playing and succumbed to injuries. The prosecution any how wanted to harass the appellant so they lodged the false case. It has been forcefully argued that the I.O. has examined a number of witnesses during investigation and those witnesses have given different version that Hari Kishore Singh received injuries after he fell down from the tree and due to negligence of the family members of the handicapped he could not be treated so he succumbed to injuries. 10. The case of the appellant is definite that death was on account of fall from the tree and non-examination of the I.O. definitely caused prejudiced to the defence. The defence has brought witness to prove the fact that the death was on account of fall from the tree. The doctor who conducted autopsy found simple injuries that was not sufficient to cause death. So the charge u/s. 304 of the Indian Penal Code is not proved beyond all reasonable doubt. Non-examination of the I.O. definitely caused prejudiced to the defence. This prejudice is vital in nature because their defence could not be brought on the record. 11. The doctor who conducted autopsy found simple injuries that was not sufficient to cause death. So the charge u/s. 304 of the Indian Penal Code is not proved beyond all reasonable doubt. Non-examination of the I.O. definitely caused prejudiced to the defence. This prejudice is vital in nature because their defence could not be brought on the record. 11. In view of the aforesaid discussion, I hold that there is some doubt regarding the prosecution version. Once a doubt is created then benefit of doubt will go the accused not to the prosecution. In the result the impugned judgment of conviction and sentence passed by the Court below is set aside and this appeal is allowed. The appellant is discharged from the liabilities of his bail bonds.