JUDGMENT 1. - During the course of arguments upon the application for suspension of sentence, both tire parties submit that the appeal itself may be heard finally. Therefore, with the consent of the parties, the above criminal jail appeal is finally heard. 2. Instant criminal jail appeal was registered on the basis of appeal sent by them accused-appellant Bhanwar Singh S/o Vijay Singh from jail, who was sentenced to life imprisonment by the Addl. sessions Judge (hast track) No. 1, Bhilwara vide judgment dated 10.4.2009, whereby, in Criminal Case No. 28/2008, the accused-appellant Bhanwar Singh was convicted for commission of offence under Section 302, I.P.C. and punishment of life imprisonment was awarded to him along with fine of 10,000/- and, in default of payment of fine, to further undergo six months rigorous imprisonment. 3. As per facts of the case, an F.I.R. was registered against the accused-appellant on 6.4.2008 at about 9.30 A.M. at Police Station Hamirgarh (District Bhilwara) on a written complaint made by complainant Shankar Lal, PW-4. In the written complaint filed by Shankar Lal it was specifically mentioned that on the last night after closing his hotel at about 10-10.15 P.M. he left the hotel for his house and, in his hotel, his workers Harish Kumar Bhadu, Babu Lal and Dharam Raj were sleeping. In the morning of 6.4.2008 when he (complainant Shankar Lal) reached his hotel he was informed by his employees that Bhanwar Singh Chowkidar (accused-appellant) came there in the night with deceased Nand Ram Gurjar and, at that time, he was beating Nand Ram Gurjar with hands and legs and while so beating the deceased Bhanwar Singh took Nand Ram Gurjar behind the hotel. In the morning, they found Nand Ram Gurjar lying dead. The complainant made a phone call to the concerned Police Station and reported the incident that accused Bhanwar Singh assaulted deceased Nand Ram Gurjar and due to beating Nand Ram died. 4. The S.H.O., Police Station Hamirgarh registered F.I.R. No. 51/2008 and commenced the investigation. After investigation, the police filed challan against the accused-appellant and during the investigation statements of prosecution witnesses were recorded under Section 161, Cr.P.C. and dead body of late Nandram Gurjar was brought to the hospital where post mortem was conducted and report Ex.14 was given by the Medical Board on 6.4.2008. 5. After investigation, the police filed challan against the accused-appellant and during the investigation statements of prosecution witnesses were recorded under Section 161, Cr.P.C. and dead body of late Nandram Gurjar was brought to the hospital where post mortem was conducted and report Ex.14 was given by the Medical Board on 6.4.2008. 5. After filing challan, charge under Section 302, I.P.C. was framed against the accused-appellant by the trial Court and accused-appellant refuted the allegations levelled against him. Thereafter, trial was commenced by the trial Court. 6. During the course of trial, in all, statements of 19 prosecution witnesses were recorded by the trial Court, out of which, PW-1 Mohan Lal, PW-2 Ganpat Singh, PW-4 Shankar Lal, PW-13 Babu Meghvanshi, PW-14 Dharam Raj and PW-18 Desh Kumar turned hostile and did not support the prosecution story. The prosecution examined PW-11 Dr. Vijay Maheshwari and PW-12 Dr. Vineeta Gurava and, as per tire opinion given by the doctors in the post mortem report, the deceased Nand Ram Gurjar died due to grievous injury of liver. 7. After recording statements of the prosecution witnesses, statement of accused-appellant was recorded under Section 313, Cr.P.C. in which he refuted all the charges levelled against him but he did not lead any evidence in his defence. 8. The trial Court after taking into consideration entire evidence on record convicted the accused-appellant for offence under Section 302, I.P.C. and passed sentence of life imprisonment vide judgment dated 10.4.2009. 9. Learned counsel appearing on behalf of the accused-appellant submits that although there is no direct evidence against the accused-appellant for convicting him for offence under Section 302, I.P.C. but the circumstances in which the alleged occurrence took place loudly speak that it is not a case of offence under 302, I.P.C. Probably the deceased died due to injury inflicted by hand in the stomach by the accused-appellant, therefore, the finding of the trial Court with regard to commission of offence under Section 302, I.P.C. against the accused-appellant is totally erroneous. 10. 10. According to learned counsel for the appellant, no weapon was used nor any injury was inflicted with any weapon nor there is any evidence on record with regard to enmity in between the accused-appellant and, in the post mortem report Ex.14, there is mention of five injuries viz., tooth wound, lower incisor canine teeth were loose, abrasions upon the right side of the neck just above the clavicle, bruise and lacerated wound 2 cm x 0.1 cm x 1 cm over the convex surface of liver (Rt lobe) and the last injury was the cause of death. 11. According to learned counsel for the appellant, probably a quarrel took place in between the accused-appellant and the deceased because they were fighting in drunken condition, as per allegation, accused Bhanwar Singh was beating deceased Nand Ram but there is no allegation of inflicting any serious injury by weapon, therefore, it is not a case for conviction of the accused-appellant for offence under Section 302, I.P.C. because as per the evidence on record the case cannot travel beyond the ambit of Section 304 Part-II, I.P.C. Therefore, it is argued that looking to the nature of evidence on record the accused-appellant is challenging the judgment to the extent of his conviction for offence under Section 302, I.P.C. because as per the facts and circumstances and on the basis of appreciation of evidence on record, no offence under Section 302, I.P.C. is made out and accused-appellant can at the most be held guilty for offence under Section 304 Pt.-II, I.P.C. in view of above, it is prayed that the finding given by the learned trial Court for holding the appellant guilty for committing offence under Section 302, I.P.C. may be modified and, instead thereof, the accused-appellant can be held guilty for offence under Section 304 Pt.-II, I.P.C. 12. On the basis of above argument, learned coimsel for the appellant vehemently submits that the impugned judgment dated 10.4.2009 may be modified and finding given by the trial Court with regard to commission of offence under Section 302, I.P.C. may be altered to Section 304 Pt.-II, I.P.C. and sentence awarded to the accused-appellant may be reduced to the term already served out by the accused-appellant. 13. 13. Per contra, learned Public Prosecutor vehemently submits that although five prosecution witnesses turned hostile in this case but, on the basis of material evidence on record, it cannot be said that any error has been committed by the trial Court in convicting the appellant for offence under Section 302, I.P.C. because the trial Court rightly convicted the accused-appellant after appreciating the entire oral and documentary evidence on record in right perspective and considering the post mortem report in which the death was shown to have been caused due to injury inflicted upon the liver, therefore, no interference is called for in the judgment rendered by the trial Court for convicting the accused-appellant for committing offence under Section 302, I.P.C. Learned Public Prosecutor submits that this jail appeal is bereft of any merit and the same may be dismissed. 14. After hearing learned counsel for the parties, we have considered the entire evidence on record. 15. Admittedly, in the F.I.R. Ex.-P-5, the complainant stated the story as narrated by witnesses Harish Kumar, Babu Lal and Dhanraj who were workers in his hotel and, as per their allegation, they gave information to the complainant Shankar Lal, PW-4 that in the night at about 12-1 A.M. accused Bhanwar Singh came there beating Nandram Gurjar but none of them said that deceased died in front of them due to beating. 16. We have perused the statement of PW-4 Shankar Lal, author of the F.I.R. The complainant turned hostile and gave statement before the Court that, " fjiksVZ eSaus ugha cukbZ lkbu t:j fd;s FksA " it is also stated by him that whatever facts were stated in the F.I.R. were not written by him; meaning thereby, the names of witnesses mentioned in the F.I.R. were planted by the police. Witness Babu Lal, PW-13 turned hostile and did not support the prosecution story. Witness Babu Lal, PW-13 turned hostile and did not support the prosecution story. Likewise, witness Dharamraj, PW-14 although turned hostile but said that " Hkaojflagth ds lkFk ,d O;fDr vkSj FkkA ;s jkr ds djhc 12&1 cts vk;s FksA nwljk tuk lkFk Fkk mldk uke eSa vkt Hkwy x;k gwaA Hkaojflag ml lkFk okys vkneh dks dgka ys x;k ;s eq>s vkt ;kn ugha fQj eSa lks x;k FkkA " In view of above, it is apparent that PW-14 Dharam Raj did not support the prosecution story with regard to beating by accused Bhanwar Singh to the deceased but said that they came together on the spot. 17. PW-18 Harish Kumar whose name is mentioned in the F.I.R. support the prosecution story and categorically said that, " jkr dks lk<+s ckjg cts Hkaoj flag uan jke ogka vk;sA Hkaoj flag uanjke xqtZj ds lkFk ekjihV dj jgk FkkA rks mls nqdku ds ihNs ekjihV djrsA pys x;sA " meaning thereby, the prosecution witnesses are not disputing the presence of the accused-appellant and deceased Nand Ram Gurjar in between 12-1 A.M. but none of the witnesses except Harish Kumar, PW-18 supported the prosecution story with regard to assault made by Bhanwar Singh. But, this witness is not alleging that death was caused in front of him. Therefore, on the basis of his testimony accused-appellant cannot be held guilty of offence under Section 302, I.P.C. 18. Upon careful scrutiny of the evidence on record, we find that prosecution has established that some occurrence of beating took place in front of the hotel of Shankar Lal but Shankar Lal was not present at the time of the occurrence and his workers informed the fact of incident in the next morning. Therefore, the F.I.R. was registered on hearsay evidence of witness Shankar Lal, PW-4. 19. We have also perused statements of PW-11 Dr. Vijay Maheshwari and PW-12 Dr. Vineeta Gurawa. Above doctors were members of the Medical Board and they categorically said in their statements in the case that injuries No. 3 and 4 can be caused if any person fell down upon a pointed stone, the following opinion is given by PW-11 Dr. 19. We have also perused statements of PW-11 Dr. Vijay Maheshwari and PW-12 Dr. Vineeta Gurawa. Above doctors were members of the Medical Board and they categorically said in their statements in the case that injuries No. 3 and 4 can be caused if any person fell down upon a pointed stone, the following opinion is given by PW-11 Dr. Vijay Maheshwari in his statement before the Court: " pksV ua0 3 o 4 fxjus ls dkfjr gksuk laHko gSA Lokdkfjr ugha gks ldrhA vxj dksbZ O;fDr dk eqag [kqyk gks og eqag ds cy iRFkjksa ds <+sj ij iM+s rks eqag dh o nkar dh pksV vk ldrhA " Similarly, PW-12 Dr. Vineeta Gurawa made following statement before the Court: " pksV ua0 3 o 4 fxjus iM+us ls dkfjr gks ldrh ;fn et:g iRFkj ij fxjs rks pksV ua0 1 o 2 pksVsa vkus ds lkFk ckgjh pksVsa Hkh vo'; vk;sxhA vxj eqag [kqyk gqvk gks rks eqag ds cy iRFkj ij fxjus ls nkar ij pksVs vkuk laHko gSA " 20. Upon the assessment and re-appreciation of the evidence on record, we are of the opinion that prosecution has failed to establish motive/intention to commit the offence under Section 302, I.P.C. by the accused-appellant. So also, admittedly as per the prosecution story no weapon was used and both accused and deceased came on the spot in drunken condition and except PW-18, Harish Kumar, all other witnesses turned hostile. Therefore, probably it is a case of sudden quarrel in between deceased and accused-appellant in which an injury was caused without intention or due to using force the deceased fell down and injury was caused upon the liver of the deceased. In our opinion, in absence of direct evidence with regard to causing specific injury, it cannot be presumed that the fatal injury was caused by the accused-appellant but, at the same time, we cannot presume that no incident took place. In our view, it is not a case of conviction of the accused-appellant for committing offence under Section 302, I.P.C. More so, upon appreciation of evidence, the case cannot travel beyond the ambit of Section 304, Pt.-II, I.P.C. So also, the fine of Rs. 10,000/- imposed against the accused-appellant is also not sustainable in law. 21. In our view, it is not a case of conviction of the accused-appellant for committing offence under Section 302, I.P.C. More so, upon appreciation of evidence, the case cannot travel beyond the ambit of Section 304, Pt.-II, I.P.C. So also, the fine of Rs. 10,000/- imposed against the accused-appellant is also not sustainable in law. 21. In view of the above discussion, we are of the opinion that the finding given by the trial Court with regard to conviction of the accused-appellant for offence under Section 302, I.P.C. is erroneous, therefore, not sustainable in law. However, it is a case of conviction under Section 304 Pt.-II, I.P.C. 22. Therefore, this jail appeal is partly allowed. The impugned judgment dated 10.4.2009 rendered by the Addl. District and Sessions judge (Fast Track) No. 1, Bhilwara in Criminal Case No. 28/2008 is hereby modified and conviction of the accused-appellant for offence under Section 302, I.P.C. is set aside and altered to conviction of the appellant for offence under Section 304 Pt.-II, I.P.C. Consequently, the sentence of life imprisonment with fine of Rs. 10,000/- is set aside. The accused-appellant is behind bars since 8.4.2008. Therefore, for his conviction under Section 304 Pt.-II, I.P.C. the accused-appellant is sentenced to the term of imprisonment already served out by him. He shall be set at liberty forthwith if not required in any other case.Consequently, the application for suspension of sentence also stands disposed of.Appeal partly allowed. *******