Hon'ble SHARMA, J.—This appeal has been filed by the accused appellant Banshilal (now dead) against the judgment and order of conviction and sentence dated 9.5.1988 passed by Additional Sessions Judge No. 2 Ajmer in Sessions Case No. 58/1986 (112/1986) whereby the accused appellant Banshilal was convicted for the offence under Section 304 Part II and sentenced to three years rigorous imprisonment and fine of Rs. 1000/- and in default of payment to further suffer six months additional simple imprisonment. It may be mentioned that the appellant Banshilal died on 17.3.2008 and his wife wants to represent the present appeal and for that she filed an application dated 13.1.2009 for allowing her to represent her husband in the appeal and this court allowed the said application vide order dated 10.2.2009. This court passed the following order: "Heard on application. It is prayed in the application that appellant has expired and in his place his wife may be permitted to pursue the legal remedy. No objection has been raised from other side. The application stands allowed. List on 18.2.2009." In these circumstances the appellant who died on 17.3.2008 now represented by his wife Smt. Geetadevi, is heard through her counsel Mr. O.S. Lakhawat as permitted by this court on 10.2.2009. The public prosecutor has also not raised any objection for pursuing the remedy. In view of the order of this court the counsel for Smt. Geeta Devi was heard on 15.5.2013. The Public Prosecutor was also heard on behalf of the State. After hearing both the counsel the judgment in this case was reserved. 2. Brief facts as per the case of the prosecution is that a written report was presented before the Police Station Roopangarh by Smt. Manju wife of Dhan Prakash by caste Dholi resident of village Roopangarh Distt. Ajmer. In the report it was stated that on 18.4.1986 on the day of Ramnavmi at about 11.30 p.m. when her mother in law was standing near her boundary wall and at that time accused Banshilal who is neighbour was also standing on his roof of his house, at that time Banshilal stated that why her mother in law is breaking his wall. Her mother in law stated that she is maintaining her wall. On this Banshi started abusing her mother in law. Her mother in law stated that she is maintaining her wall. On this Banshi started abusing her mother in law. Upon this Banshi lal's son in law Jagdish and his daughter Narangi and his wife Geeta pelted stones on her mother in law and her mother in law received injuries. She further stated that she started hurling and other persons in the nearby Gopal and his mother in law Sohani and Pappu Dholi came and at that time her mother in law was bleeding from the head. All these persons taken her mother in law to Hospital. It was prayed that action to taken against above persons who have pelted stones on her mother in law and on account of which she received injuries on her head. Upon receiving the above report FIR No. 27/1986 was registered for the offence under Sections 336, 323 read with section 34 IPC. The police started usual investigation and during investigation Smt. Kanchan died and the case was converted to section 302 IPC and the accused Banshilal was arrested. The charge sheet was filed for the offence under Section 302 IPC against the accused appellant and thereafter the case was committed to the court of sessions. The Sessions Judge Ajmer transferred the said case to the court of Addl. Sessions Judge Ajmer. The trial Court framed charge sunder section 302 IPC and the accused denied the charge and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The Statement of accused under Section 313 Cr.P.C. was recorded. After hearing both the sides the trial Court convicted the accused appellant for the offence under section 304 Part II IPC as mentioned above. 3. Mr. O.S. Lakhawat, learned counsel appearing for Smt. Geeta Devi representing the appellant has stated that the judgment of conviction and sentence dated 9.5.1988 is illegal and contrary to the factual position on record. The learned counsel has argued that the trial court while considering the statements of the prosecution witnesses in the judgment of conviction and sentence have not properly considered their statements. The prosecution witnesses PW.4 Gulab Mohammed and PW.9 Satya Narain have stated that the accused appellant stated to Kanchan that why she is demolishing his wall but Kanchan has not answered about it and has not stopped demolishing the wall. The prosecution witnesses PW.4 Gulab Mohammed and PW.9 Satya Narain have stated that the accused appellant stated to Kanchan that why she is demolishing his wall but Kanchan has not answered about it and has not stopped demolishing the wall. It is clear from the statements of these witnesses that deceased Kanchan continued to demolish the wall of the accused appellant and created a mischievous position for safety of his house. PW.3 and PW.9 in their statements have stated that Kanchan first pelted stones at accused appellant and thereafter accused appellant pelted stones at her. The accused appellant pelted stones in his right of private defence. The trial Court has failed to consider that the accused appellant was duty bound to take proceedings against deceased Kanchan. The learned counsel has further placing reliance on section 97 IPC stated that every person has a right to defend his own body, and the body of any other person, against any offence affecting the human body and that the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. But the trial court has failed to consider this aspect of the case. The learned counsel has further argued that the right of the accused appellant under section 233 Cr.P.C. of producing defence was not given to the accused appellant as no opportunity was afforded to the accused appellant during trial to defend his case. It was also argued that the accused appellant was working in the RSEB and if he is sentenced to the period of imprisonment and the benefit of provisions of the offenders Act are not given to him it will affect the service rendered by him in the RSEB. In these circumstances it was prayed that the accused appellant may be awarded to him may also be quashed. 4. Mr. Peeyush Kumar, Public Prosecutor appearing for the State has stated that the trial Court has considered the statements of the witnesses and the material available on record and the judgment of conviction and sentence was rightly passed. 5. I have heard the learned counsel for the parties and has also gone through the judgment of conviction and sentence passed by the trial Court. 5. I have heard the learned counsel for the parties and has also gone through the judgment of conviction and sentence passed by the trial Court. Before proceeding further it is necessary to have a look at the relevant statements of the prosecution witnesses and the material available on record. 5. I have heard the learned counsel for the parties and has also gone through the judgment of conviction and sentence passed by the trial Court. Before proceeding further it is necessary to have a look at the relevant statements of the prosecution witnesses and the material available on record. PW.1 Manju has stated in his statement thus: ^^vkt ls 14 ekg igys gekjs ?kj esa esjh lklw ikuh ih jgh Fkh rc cUlh gkthj vnkyr us vius ?kj dh Nr ls esjh lklw ij HkkVs iVds FksA cUlh o gekjs uky lhjksyh Fkh ftldk >xM+k FkkA cUlh us esjs dks uky esa p<+us ls euk dj fn;kA esjh lklw us dgk fd esa fnoky rksM+dj vyx ls uky cukÅxh D;ksa fd cUlh geus tkus vkus ugha nsrkA iRFkj yxus ls esjh lkal ds ekFks esa yxh Fkh rFkk mlds [kwu fudyk Fkk ,oa og tehu ij fxj x;h FkhA mldh fxjh gqbZ ij cUlh dh iRuh xhrk tokbZ txnh'k rFkk yM+dh ukjaxh us iRFkj ekjs FksA tc iRFkj ekjs rc xqyth rsyh lR;ukjk;.k /kksch ekSdk okjnkr ekStwn FksA tc esa fpYykbZ rc ml le; xksiky lj?kjk mldh lkal lksuh ekSds ij ogh vk xbZ FkhA** In the written report (Ex.D.1) submitted to the police Manju stated that- ^^lsok esa Jheku Fkkuknkj lkgc Fkkuk] :iuxj Jh eku th fuosnu gS fd vkt rk- 18-4-86 jke uoeh dks le; vUnkt 11-30 cts dh ckr gS fd esa vius ?kj ds pksd ds cgkj [kM+h Fkh esjh lklq dUputh gekjs edku dh Mksyh tks gekjs edku ds cgkj gS esjh lklq Bhd djus ds fy, [kM+h Fkh ml le; gekjk iM+kSlh cUlh tks lhdyh ?kj mlds edku dh Nr ij cSBk gqvk FkkA thl us esjh lklwth dk dgk fd nhokj dks D;ksa ikM+ jgh gS nhokj esjh gS esjh lklq us dgk dh esa esjh nhokj dks gh rS;kj dj jgh gwa brus esa cUlh us esjh lklq dks xkyh xyksp fn rFkk culh us vkSj cUlh dk tokbZ txnhl vkSjh cUlh dh csVh ukjaxh vkSj cUlh dh vksj xhrk us esjs lklw ds mij iRFkj QSds thlls esjh lklq ds lhj esa o nksuk gkFkksa ij o 'kjhj ij pksVsa vkbZ ml le; esad phykbZ dh esjh lklq dks ekj jgs gS rks ikl esa xksiky vkSj mldh lklq lkguh o iiq <+ksyh dks Hkkx dj vk x;s vkSj esjh lklq ds lhj esa [kqu vk x;k Fkk thl yssdj esa xksiky o lksguh vLirky yk;s o HkrhZ fd;k jhiksVZ djrh gwa fd dk;Zokgh dh tkos ckjhd gkFk dk iRFkj dh esjh lklw ds ekFks esa pksV yxh gSA Sd/- eatw** Smt. Manju in her statement recorded under section 161 on 19.4.86 by the ASI stated thus- ^^dy rkjh[k 18-4-86 dks fnu ds djhcu 11-11-1/2 ckn esa vius edku ds vUnj cSBh gqbZ vius ?kj dk dke dj jgh FkhA esjh lklw vius gkFk esa xSrh ysdj gekjs edku dh cuh gqbZ pwus dh Mksyh dks ikM+us yxh D;ksafd ml txg gekjs edku ds Åij tkus dh uky cukuh Fkh bl ij ca'kh dkdk fldyh ?kj us esjh lkl dks uky dh nhokj rksM+us ls euk fd;k esjh lklq us dgk esa rks Mksyh rksM+ dj uky cukmxh bl ij esa vius edku ls ckgj vkbZ o pkSd esa [kM+h Fkh fd cU'kh o cU'kh dk tokbZ txnh'k o cU'kh dh yM+dh ukjaxh o cU'kh dh vkSjr xhrk muds edku dh Nr ij [kM+s Fks us mij ls iRFkj esjh lklq ij QSds ftlls esjh lklw ds flj esa o nksuksa gkFksa ij o 'khj ij pksVs vkbZ o cU'khyky fldyh ?kj ds gkFk ds iRFkj dh esjs lklq ds flj ij pksV yxh esjh lklq dapu tks Mksyh ij [kM+h Fkh pksV yxrs gh gekjs edku ds lkeus idk pwus dk cuk pkSd ¼pcwrjh½ ij tkdj fxjh esa fpYykbZ rks ekSds ij xksiky ljxjk o mldh lklw lksguh ljxjh :iux<+ okys o iiw <ksyh rksn okyk tks esjh lklw us <+ksy ctkus ds fy, j[kk ¼etnwj½ dj j[kk gS Hkkx dj vk x;s mUgksaus ns[kk o esjh lklw dks ogka ls mBk dj ikl ds :iux<+ vLirky esa ys x;s tgka ij esjh lklw pksd esa fxjh ogka mldh f'kj dh pksV ls dkQh [kwu fudy dj QlZ ij fxjs esa Hkh :iux< vLirky esa xbZ ogka ij nhokuth Fkkuk :iux< vk x;s Fks mudks ,d nj[okLr ewyflag th ikyokyk :iux<+ okyk ogka vk x;k Fkk muls fy[kok dj vLirky esa is'k dj nh nj[okLr ij eSaus viuk vauwBk yxk;kA** From the statement of Manju (PW.1) recorded in the court and the written report (Ex.D.1) and statement recorded by the ASI under section 161 Cr.P.C. on 19.4.86, it is clear that Banshi, Banshi's wife, his daughter and son in law pelted stones and deceased Kanchan fell from the wall in the Pakka Chowk of Chuna and on account of that she received injury on her head. At that time only Gopal (PW.2),his mother in law Sohani and Pappu came when Kanchan fell down in Pakka Chowk of Chuna. PW.2 Gopal in his statement stated thus- ^^?kVuk okys fnu esjh lkfguh iSV elyus ds fy, dgh xbZ gqbZ Fkh vkSj esa mls cqykus x;k FkkA eSaus viuh lklq dks [kkus ds fy, dgk rks mlus dgk fd esa vk jgh gwaA fQj og esjs lkFk esa vk xbZA mlds ckn esa xqyksth us vkdj crk;k fd ca'kh us <+ksy.k ds ckVk ekjk gSA ml <+ksy.k dk uke dapu FkkA esa ?kVuk LFky ij x;k rks dapu tehu ij iM+h gqbZ Fkh mls [kwu vk jgk FkkA dapu dks esa] ejh lklq o dapu dks cgw vLirky ys x;s FksA** From his statement in the court though his name was in the written report (Ex.D.1) and (Ex.D.2) stated that he was informed by Guloji (PW.) that Banshi pelted stone at Dholan (Kanchan). PW.3 Manu was declared hostile. He stated in his statement as under: ^^ca'khyky vfHk;qDr dh nhokj dapu <ksyu rksM+ jgh FkhA nhokj rksM+rs gq, eSaus dapu <+ksyu dks ns[kk FkkA ml le; ca'khyky dgka ij Fkk eq>s irk ughaA PW.4 Gulab Mohammed in his statement stated as under: ^^esa esjs ?kj ds lkeus gh [kM+k Fkk] lrw /kksch Hkh ogka ij [kMk FkkA ml le; dapu xsrh ysdj Mksyh ij p<hA gkftj vnkyr eqfYte ca'kh dks tkurk gwaA tc xsrh ysdj dapu Mksyh ij p<+h Fkh rks ml le; ca'kh o dapu esa dgk lquh gqbZ FkhA dapu us ml ;g dgk fd ml uky dks m[kkM+ dj nwljh uky vyx ls cukÅxh ftl ij ca'kh us dapu ds iRFkj dh ekjh tks mlds ihB ij yxk o nwljk iRFkj ekjk tks mlds lj ij yxkA iRFkj yxrs gh dapu tehu ij fxj xbZ o mlds lj ls [kwu vk jgk FkkA dapu ds csVs dh cgwa ogka ij vk xbZ fQj esa cktkj dh rjQ pyk x;kA** PW.4 Gulab Mohammed in his statement under section 161 Cr.P.C. (Ex. D.3) recorded on 20.4.1986 by the ASI stated thus- ^^cU'kh ds edku dh uky ds ikl okyh Mksyh dks <lkus yxh rks cU'kh us mls euk fd;k fd Mksyh esjs ge esa gS D;ksa <+lk jgh gks dapu us dgk fd edku ds mij tkus dh thuk lkts esa gS esa viuh uky Mksyh <+lk dj vyx cukÅxh o Mksyh ikMwxh brus esa cU'khyky us Nr ij ls ,d iRFkj dapu ds ekjk tks mlds dej esa yxk o nwljs iRFkj dh vkSj ekjh tks dapu ds f'ku esa tho.kh rjQ yxk dapu dk eqag edku dh rjQ Fkk ihB lM+d dh rjQ Fkh f'kj esa iRFkj yxrs gh dapu <+ksyu mlds edku ds lkeus yxh gqbZ iDdh pwus dh QlZ ij fxj iM+h brus esa lR;ukjk;.k /kksch :iux<+ okyk Hkh vk x;k mlus Hkh ;g ?kVuk ns[kh fQj esa o lrukjk;.k nksuksa cktkj dh rjQ jokuk gks x;sA** Name of Gulab Mohammed (PW.4) is not shown in the written report or in the statement of Manju under section 161 recorded on 19.4.1986 and it is first time in his statement recorded under Section 161 Cr.P.C. (Ex. D.3) by the ASI on 20.4.86 he stated that Bansi pelted stones first it hit lower portion of the abdomen and thereafter second stone pelted by Banshi hit her head. He has also stated in his statement that Kanchan fell in the Pakka Chowk of Chuna after receiving injuries. It is necessary to see the injury report and the post mortem report showing the injuries. The injury report Ex. P.8 showing the injuries received by injured Kanchan at the time of examination by the doctor at Roopangarh Hospital read as under: 1. Lacerated wound fresh bleeding plus marzin zig-gag 3 cm x 1 cm x 1/4 cm. On anterior part of scalp. Advised x-ray 2. Bruise with swelling 2 cm x 2 cm. Lower 1/4th of left fore arm. Advised x ray 3. Swelling with bruise 1 cm. x 1 cm. Below left eye 4. Swelling 1 cm. x 1 cm. upper anterior part of gums fresh bleeding. The injury report did not show any injury on the lower portion of abdomen of Kanchan. Injury No.1 was found on Rt. Lower 1/4th of left fore arm. Advised x ray 3. Swelling with bruise 1 cm. x 1 cm. Below left eye 4. Swelling 1 cm. x 1 cm. upper anterior part of gums fresh bleeding. The injury report did not show any injury on the lower portion of abdomen of Kanchan. Injury No.1 was found on Rt. Frontal region, Injury No.2 was found on left side of neck, Injury No. 3 was found on left parietal region, injury No.4 was found left frontal region with haematoma, Injury No.5 was on left frontal region outer to injury No.4, Injury No.6 was on Rt. Parotid region and injury No.7 was bone deep on back of Right forearm on its, injury No.8 was on dorsum of Rt. Hand, Injury No. 9 were two stitched wounds on medial side of left leg lower 1/4. Cause of death was shown coma due to compression of brain matter as a result of extradural hemorrhage caused by head injury. From the injury report and the post mortem report it is clear that Kanchan did not receive any injury on the lower part of the abdomen (Kamar). Thus it is clear that Gulab Mohammed was not present at the scene of occurrence and in these circumstances his name was not shown in the written report (Ex.D.1) and in the statement under Section 161 Cr.P.C. of Manju (Ex. D.2) recorded by the ASI on 19.4.1986. His testimony given before the court cannot be believed. PW.4 - Dhan Prakash has stated in his statement as under:- ^^?kVuk okys fnu esa ?kj ij ugha FkkA nwljs fnu tc esa ?kj ij [kkuk ysus vk;k rks ns[kk ?kj ij rkyk yxk gqvk Fkk o ekywe gqvk fd esjh eka vLirky esa HkrhZ gSA tSls gh esa vLirky esa igqapk rks esjh ?kj okyh us crk;k fd esjh eka ca'kh dh ?kj okyh xhrk o tokabZ txnh'k o csVh ukjaxh us iRFkj ekjdj esjh eka ?kk;y dj fn;k gSA** This witness was not present on the day of occurrence and when he reached at the Hospital his wife stated that Banshi, his wife Geeta, son in law Jagdish and daughter Narangi pelted stone at her mother as stated in the written report (Ex.D.1) and statement of Manju (Ex. D.2). PW. 6 Dr. D.2). PW. 6 Dr. S.S. Asnani, in his statement stated that he has examined the injuries on the person of Kanchan on 18.4.1986 and he found four injuries on her body. In his cross examination he has stated that the injuries in Ex. P.8 can be caused even by fall also. It has been admitted by Manju (PW.1) in his statement before the court and in the written report and the statement under Section 161 Cr.P.C. and Gulab Mohammed that Kanchan fell in the Pakka Chowk of Chuna and it is at that time she received the injuries on head and it is proved in the statement of Doctor PW.6 Dr. Asnani that such injuries can be caused even by fall. PW.7 Vijay Singh stated about the photos of incident place taken by him on 18.4.1986 as per the instructions of the police. PW.8 Pappu in his statement stated as under: ^^?kVuk ds le; esa ogka ij ekStwn ugha FkkA esa o xksy ewnjk th ds edku ds pcwrjs ij cSBs gq, FksA xqy eksgEen vk;k vkSj mlus dgk fd Hkkxksa dapu <+ksyu ds ca'kh us iRFkj dh ekj nh gSA esa o xksiky dapu <+ksyu ds ;gka ij igqapsaA mlds ckn esa dapu dh cgw vkSj xksiky dapu dks mBkdj :iux<+ vLirky ys x;s Fks vksj mlds ckn esa vtesj vLirky ys x;s FksA Pappu whose name was in the written report (Ex.D.1) and in the statement of Manju (Ex.D.2) himself stated in the court statement that he was not present at the time of incident. PW.9 Satyanarain in his statement stated as under: ^^xqy eksgEen ds ?kj ds vkxs eq>s xqy eksgEen feyk FkkA dapu <+ksyu dk edku xqy eksgEen o ca'kh ds edku ds chp esa gSA dapu <+ksyu nhokj rksM+ jgh Fkh ca'kh us dgk og nhokj er rksM+ksA fQj dapu ugha ekuh vkSj dapu nhokj rksM+rh jghA fQj buds vkil esa iRFkj ckth gks xbZA ca'kh us o dapu us iRFkj ekjs FksA dapu ds ihB esa ca'kh ds iRFkj yxh FkhA fQj ge tjk vkxs lM+d x;sA dapu ds 5-7 iRFkj ca'kh }kjk yxs Fks vkSj dapu ogha ij fxj xbZA** Satyanarain has stated that he met Gul Mohammed (PW.4) outside the house of Gul Mohammed. Since the presence of Gulab Mohammed is doubtful and his statement based on the version of Gulab Mohammed cannot be believed on the ground that he also stated that Kanchan received on the lower portion of abdomen where there is no such injury on the body of Kanchan in the post mortem report and in the injury report which has been proved by doctor in his statement before the court. PW.10 Mool Singh proved Ex.P/2 seizure memo of clothes of Kanchan over which he puts his signature A to B. He has also stated that Ex.D/1 which is written report submitted by Manju to the police written by him as stated by Manju. He also proved Ex.P1 Panchayatnama which bears his signature A to B. PW.11 Karan Singh in his statement stated about the written report submitted by him before him when he was posted as Head Constable at Police Station Roopangarh. He has also proved Ex. P.14 entries in the register which bears his signature A to B. PW.12 Kheem Singh, ASI posted at Roopangarh proved Ex. P.3, Naksha Moka, which bears his signature A to B, Ex. P.4 seizure memo which bears his signature C to D, Ex. P.5 seizure memo of blood stained Chuna which bears his signature C to D, Ex. P.6 seizure memo of pieces of Glass Bangles of Kanchan, which bears his signature C to D, Ex. P.7 seizure memo of two stones which bears his signature C to D, Ex. P.1 seizure memo of Lookdi (sari), which bears his signature C to D, Ex.P.3 injury report, Statement of Manju Ex. D. 2, Ex. D3 statement of Gulab Singh and Ex. P.15 report of FSL. He has stated in his statement he has recorded the statements of three persons and thereafter handed over the file to SHO. PW.13 Safakat Ali, Constable stated about the handing over of articles for examination by the FSL and to which he brought Ex. P.16 acknowledgement receipt No. 2639. 9. I have critically examined the judgment of the trial Court, statements of the prosecution witnesses and the documents exhibited by the prosecution in support of its case. PW.13 Safakat Ali, Constable stated about the handing over of articles for examination by the FSL and to which he brought Ex. P.16 acknowledgement receipt No. 2639. 9. I have critically examined the judgment of the trial Court, statements of the prosecution witnesses and the documents exhibited by the prosecution in support of its case. The trial court has not considered the statements of the witnesses properly which are not corroborated by the medical evidence and the documents like injury report and post mortem report and the written report of the complainant Manju submitted to the police officials at Hospital and the same was proved in evidence by PW.10 Mool Singh which is manuscript of his own. The judgment of trial court in convicting the accused appellant for the offence under Section 304 Part II IPC cannot be sustained and it deserves to be quashed. The sentence awarded to the accused appellant also deserves to be quashed. For the aforesaid reasons the appeal filed by the accused appellant is allowed. The judgment of conviction and sentence dated 9.5.1988 passed in Sessions Case No. 58/1986 (12/1986) by the Addl. Sessions Judge No. 2 Ajmer convicting the accused appellant for the offence under Section 304 Part II IPC and sentencing him to the period of 3 years rigorous imprisonment and fine of Rs. 1,000/- is quashed and set aside. The accused appellant has already died 17.3.2008. His bail bonds stands cancelled.