JUDGMENT 1. - This appeal has been filed against the judgment of conviction and sentence dated 29.4.1989 in Sessions Case No. 25/1986 whereby the appellant has been convicted for the offence under Section 304 Part I I.P.C. and has been sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 5000/- and in default of payment of fine, to further undergo one year's rigorous imprisonment. 2. Brief facts of the case are that the complainant, father of the deceased, has filed a written complaint before the S.H.O. Police Station, Sardarpura, Jodhpur alleging that on 13.6.1986 at 6.45 P.M. his son Om Prakash was playing on the road. The present appellant had inflicted some fist blows to him near the ear and chest, He and his wife have also seen the occurrence. They did not report the incident immediately as no visible injury has been caused to the deceased but Om Prakash has been treated at home, On 15.6.1986 his condition has become worst. Then they rushed to the Railway Hospital from where he was referred to Jodhpur, where he was declared dead. After investigation, the charge-sheet has been filed against the present appellant for the offence under Section 302, I.P.C. Charge has been framed against the present petitioner for the offence under Section 304 Part I, I.P.C. The prosecution has produced nine witnesses. Statement of the accused has been recorded under Section 313, Cr.P.C. He did not produce any witness in his defence. He has produced some documents in defence. 3. After trial, the present appellant has been convicted and sentenced, as aforesaid. 4. The main contention of the present appellant is that no case is made out for the offence under Section 304 Part I, I.P.C. 5. This is a case of simple beating. The present appellant has no intention to kill, the child and he had even no knowledge that simple fist blows are sufficient to cause the death of deceased Om Prakash. 6. This is a case of simple beating. The present appellant has no intention to kill, the child and he had even no knowledge that simple fist blows are sufficient to cause the death of deceased Om Prakash. 6. PW-1 Sita Devi and PW-3 Ram Pal, who are father and mother of deceased Om Prakash, have specifically stated that the present appellant has given fist blows to his son Om Prakash, They both have specifically admitted that no visible injury has been caused to his son and Sita Devi specifically admitted in her statement that she was not knowing that due to this simple beating, his son would die and due to this reason they had not taken the child to the doctor immediately. 7. PW-3 Ram Pal, has also stated that he had treated the child at home. Other witnesses have also stated that the simple beating was given to the child. 8. PW-6 Vinit Kumar Gupta, who was the Medical Officer, in Government Hospital, Merta at the relevant time, has specifically stated that father and mother of deceased Om Prakash has said nothing about the incident and he does not know why the patient was unconscious. 9. Post-mortem Report has been exhibited as Ex.P-7 but the doctor who had done the post-mortem has not been produced, hence the Post-mortem Report was not proved before the trial Court. Ex.P-7-Post-mortem Report goes to show that cause of death was head injury but any such injury has been inflicted to the deceased, has not been proved by the prosecution. 10. The learned Public Prosecutor has submitted that death was caused due to internal injury but no witness has corroborated the said contention and the Post-mortem Report has also not revealed that cause of death is internal injury. 11. Hence, looking at the entire evidence produced by the prosecution, specially the statements of PW-1 and PW-3 father and mother of deceased, the case does not travel beyond the scope of Section 323, I.P.C. It is a case of simple beating by the appellant. Hence conviction of the appellant under Section 304 Part I, I.P.C. is not sustainable and liable to be set aside and at the same time, he is convicted for the offence under Section 323, I.P.C. 12. Hence conviction of the appellant under Section 304 Part I, I.P.C. is not sustainable and liable to be set aside and at the same time, he is convicted for the offence under Section 323, I.P.C. 12. Therefore, this appeal is partly allowed and the present appellant who has already been remitted in judicial custody for more than 21h months, he should be released for the sentence already undergone by him, hut at the same time, looking at the fact that the injuries have been caused to small child, the fine should be enhanced from Rs. 5000/- to Rs. 10,000/- and in default of payment of fine the present appellant with further undergo one years rigorous imprisonment. The fine when recovered, should be given to Sita Devi and Ram Pal, father and mother of the deceased as compensation.Appeal partly allowed. *******