JUDGMENT 1. - This criminal appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 29.3.2006 passed by the learned Additional Sessions Judge (Fast Track) Baran in Sessions Case No. 70/2005 whereby the accused appellants Madho son of Habudia, Smt. Siya wife of Madho, Raju Lal @ Raju son of Madho and Smt. Jassu @ Josoda Bai have been convicted and sentenced for offence under Section 304 Part I read with section 34 IPC and sentenced for 10 years rigorous imprisonment and fine of Rs. 250/-, in default of payment of fine to further undergo six months simple imprisonment. 2. Briefly stated, the facts for the disposal of this appeal are that on 27.3.2005, PW-11 Sukhpal @ Udam Singh lodged a written report Ex.P-12 in the police station Khelwara. It was, inter alia, alleged therein that in front of his house there exists house of Madho son of Budhia. On the day of incident, the stones which were lying for construction of boundary wall in front of his house were removed between 3.00 to 4.00 pm by Madho and the same as objected by him and in that regard hot words were exchanged between him and accused persons and at that time deceased Ramesh, the elder brother of the complainant came there and intervened. At that time, Madho, his wife Siya, Smt. Jassu @ Jasoda Bai and son Raju (all accused) also came there and started giving beating by fists and legs on different parts of his body including testicles as a result of which his brother Ramesh died. On the basis of above report formal FIR No. 47/2005 Ex.P-13 was registered and investigation commenced. During the course of investigation all accused appellants Madho, Siya, Rajulal @ Raju and Smt. Jassu @ Jasoda Bai were arrested and memos thereof Ex.P-14 to Ex.P-17 respectively were prepared. Autopsy on the dead-body of the deceased was conducted and in that regard post-mortem report Ex.P-18 was prepared. Statements of the witnesses were recorded. The viscera (pieces of kidney, liver etc. collected during post mortem) of the deceased was sent for chemical examination in the FSL. A report thereof Ex.P-21 was received which indicated that deceased was under intoxication. Autopsy on the dead-body of the deceased was conducted and in that regard post-mortem report Ex.P-18 was prepared. Statements of the witnesses were recorded. The viscera (pieces of kidney, liver etc. collected during post mortem) of the deceased was sent for chemical examination in the FSL. A report thereof Ex.P-21 was received which indicated that deceased was under intoxication. After completion of investigation charge-sheet was filed against the accused appellants and ultimately the matter came up for trial before the Additional Sessions Judge (Fast Track) Baran who framed charge under Sections 302 and 302/34 IPC to which the accused denied and claimed trial. In support of its case, the prosecution examined as many as 18 witnesses and tendered several documents in evidence. After close of prosecution evidence in the statement recorded under Section 313 Cr.PC., all the accused persons have stated that they have falsely been implicated in the case. No evidence in defence was produced. The learned trial court after hearing final submissions in the matter convicted and sentenced the accused appellants as indicated here-in-above. 3. I have heard learned counsel for the accused appellants as well as learned public prosecutor and carefully gone through the record. 4. In the instant case, the learned trial court recorded its finding to the effect that since injury was inflicted by the accused-appellants on the testicles of deceased and on account of pain the deceased got shock and ultimately because of cardiac arrest he died, therefore, the accused- appellants were liable to be convicted under Section 304 part IPC. 5. It is to be seen that in the instant case out of 18 witnesses examined by the prosecution PW-1 Bhajna, PW-2 Basanti, PW-3 Geeta Bai, PW-4 Janki Lai, PW-5 Mangi Bai, PW-6 Kashiram, PW-8 Babulal, PW-14 Sukhveer, PW-17 Kalu @ Kalya and PW-18 Mangilal have turned hostile and they have not supported the prosecution case. 6. PW-12 Ram Kumar is the witness in relation to Ex.P-8 panchayatnama of the dead-body. PW-13 Gopal is also a witness in relation to panchnama. PW-15 Lalchand at the relevant time was constable in the police station Khelwara,and he took two sealed packets for depositing the same in the FSL, Jaipur. He took those samples and deposited the same in the FSL and obtained receipt which is Ex.P-18 in the police station. PW-10 Tarachand is SHO of the police station who conducted investigation in the case. He took those samples and deposited the same in the FSL and obtained receipt which is Ex.P-18 in the police station. PW-10 Tarachand is SHO of the police station who conducted investigation in the case. PW-16 is Dr. Satish Agrawal who conducted autopsy on the dead-body of the deceased. Thus, the evidence which requires consideration in the present matter is of PW-9 Smt. Guddi who is the wife of deceased and PW-10 Tarachand, Investigating Officer, PW-11 Sukhpal brother of the deceased and PW-16 Dr. Satish Agrawal. The entire matter depends on the testimony of above four witnesses. 7. PW-9 Smt. Guddi in her statement has stated that the incident took place on Holi festival and her husband Ramesh came back at 4.00 pm as he had gone out from the home to meet his brother Sukhpal. She has stated that after returning home her husband made complaint that he was not feeling well. She has also stated that the deceased told her that the accused appellants were quarrelling with his brother PW-11 Sukhpal and when he tried to intervene then he was also beaten by accused appellants Madho, Siya, Raju and Jasso. She has stated that thereafter her husband died. In the cross-examination she has denied that the deceased has taken liquor on Holi. She has also denied that on the day of incident deceased and his brother were taking liquor. She has admitted this suggestion that hot words were exchanged between PW-11 Sukhpal and Madho and her husband intervened and tried to pacify the matter. A perusal of her statement reveals that she has stated that her husband after the alleged incident came back on foot to his house, narrated the incident and thereafter died at his house. She has not stated that her husband disclosed the fact that the accused inflicted injuries on his testicles. She has simply stated that the accused appellants gave beating to her husband when he tried to intervene on seeing that accused-appellants and PW-11 Sukhpal were quarreling with each other. 8. PW-11 Sukhpal is the brother of deceased. He has stated that quarrel took place between him and accused appellants and at that time his elder brother came there and when he intervened all the accused started beating the deceased by legs and fists, as a result of which the deceased i sustained injuries on his testicles and died. 8. PW-11 Sukhpal is the brother of deceased. He has stated that quarrel took place between him and accused appellants and at that time his elder brother came there and when he intervened all the accused started beating the deceased by legs and fists, as a result of which the deceased i sustained injuries on his testicles and died. He has proved Ex.P-12 report and formal FIR Ex.P-13 and other memos prepared on spot. In the cross-examination, he has stated that distance of the house of the deceased from his house was about 50-60 meters. He has denied that the deceased was under intoxication. He has also denied that deceased on that day insisted him to provide liquor to him. A perusal of his statement reveals that he has not specifically stated that who amongst the accused inflicted injury on the testicles of the deceased. He has simply stated that on account of beating given by legs and fists, injury was caused on testicles. 9. PW-16 is Dr. Satish Agrawal. In his statement he has stated that the medical board was constituted on 28.3.2005 and he was one of the members of the medical board. No injury, either external or internal, was found on the person of the deceased. He has stated that the cause of death was cardiac arrest due to shock. He has proved post-mortem report Ex.P-19. He has also stated that on the head of the deceased hematoma was present but there was no fracture. He has also stated that there was no fracture found on scalp. In the cross-examination, he has admitted the suggestion that excessive consumption of liquor may result in cardiac arrest and a person can die because of cardiac arrest. He has also admitted that on opening the stomach it was found containing alcohol as it was giving smell of alcohol. A perusal of his statement reveals that the cause of death was cardiac arrest. There was neither external nor internal injury found on the person of the deceased. There was no injury on the testicles. 10. PW-10 is Tara Chand, the investigating officer who conducted investigation in the case and prepared memos and arrested the accused. 11. Thus, a careful scrutiny of the statement of the above witnesses namely PW-9 Smt. Guddi, PW-11 Sukhpal, PW-16 Dr. There was no injury on the testicles. 10. PW-10 is Tara Chand, the investigating officer who conducted investigation in the case and prepared memos and arrested the accused. 11. Thus, a careful scrutiny of the statement of the above witnesses namely PW-9 Smt. Guddi, PW-11 Sukhpal, PW-16 Dr. Satish Agrawal and PW-10 Tara Chand, the investigating officer of the case reveals that the incident took place between 4.00 pm to 5.00 pm as alleged by the prosecution. It also stands proved that the accused-appellant gave beating by legs and fists but it does not stand proved in view of the statement of PW-16 Dr. Satish Agrawal and the post-mortem report Ex.P-19 that the deceased died because of injury caused on his testicles. I am of the opinion that the finding of the trial court that the accused inflicted injury on the testicles of deceased and in view of immense pain in the testicles the deceased died and the accused appellants had intention to cause death of the deceased or by that act the death of the deceased would be caused. 12. In the case of State of Karnataka v. Shivalingaiah @ Handigidda-1988 (Supp) SCC 533 , considering the fact where charge against the accused-respondent was that after an altercation he suddenly pulled the deceased Girl Gowda by his testicles and squeezed the same as a result of which he fell down unconscious and died almost instantaneously. This fact was proved by the testimony of Dr. T.C. Seetharam, Medical Officer. In the above case, the accused was convicted under Section 302 IPC by the trial court and on appeal, the Karnataka High Court allowed the appeal partly and set aside the conviction under Section 302 IPC and convicted the accused under Section 323 IPC. The Hon'ble Supreme Court altered the sentence from under Section 323 IPC to one under Section 325 IPC. 13. In the instant case, it appears that though the allegations are to the effect that the accused-appellants gave beating by legs and fists on different parts of the body of the deceased including testicles but then the evidence of PW-16 Dr. The Hon'ble Supreme Court altered the sentence from under Section 323 IPC to one under Section 325 IPC. 13. In the instant case, it appears that though the allegations are to the effect that the accused-appellants gave beating by legs and fists on different parts of the body of the deceased including testicles but then the evidence of PW-16 Dr. Satish Agrawal does not support this oral testimony because there does not appear any external or internal injury on the testicles, therefore, I am of the opinion in the facts and circumstances of the case that the accused had no knowledge that there act of beating would result into the death of deceased. It also appears that their quarrel took place between PW-11 Sukhpal and the accused appellant and deceased came subsequently and intervened, therefore, I find that in the circumstances of the case it cannot be said that the accused appellants had any intention of causing death of the deceased while committing the act in question nor can they be attributed the knowledge that such act was likely to cause cardiac arrest of the deceased resulting in his death. In the facts and circumstances of the case, only a case under Section 323 IPC stands proved against the appellants and the sentence awarded to the accused appellants by the trial court under Section 304 Part II with the aid of section 34 IPC requires to be set aside and they are liable to be convicted under Section 323 IPC. 14. The accused-appellants Madho and Raju are in jail since more than four years and six years, therefore, they have already undergone the maximum sentence provided under Section 323 IPC. As regards Siya and Jasso @ Jasoda, they have been in jail during the course of investigation, trial and pending appeal for four months. In my considered opinion, ends of justice would be served in case Smt. Siya and Jasso @ Jasoda are sentenced for four months under Section 323 IPC. According, I deem it proper to convict them under Section 323 IPC for four months. 15. In the result, the appeal is partly allowed. Their conviction and sentence under Section 304 Part II read with section 34 IPC is set aside. and they are convicted under Section 323 IPC and sentenced to the period already undergone by them. According, I deem it proper to convict them under Section 323 IPC for four months. 15. In the result, the appeal is partly allowed. Their conviction and sentence under Section 304 Part II read with section 34 IPC is set aside. and they are convicted under Section 323 IPC and sentenced to the period already undergone by them. Accused appellants Madho son of Habudia and Raju Lal @ Raju son of Madho are in jail. They be set at liberty if not required in any other case. Accused appellants Smt. Siya wife of Madho and Smt. Jassu @ Jasoda Bai daughter of Madho need not surrender their bail bonds as they are on bail. Their bail bonds stand discharged.Appeal Partly Allowed. *******