JUDGMENT 1. - This appeal is directed to challenge the judgment and order dated 17.10.2012 passed by learned Additional Sessions Judge No. 1, Hanumangarh in Sessions Case No. 80/2011 (22/2010) (32/2010) arising out of First Information Report No. 226/2010 investigated by the Police Station Hanumangarh Town. By the judgment and order impugned learned trial court recorded conviction of the accused appellants for the offence punishable under Section 304 part-I/109 Indian Penal Code. They have been sentenced to undergo life term imprisonment with a fine of Rs. 2000/- each and further to undergo two months rigorous imprisonment in the event of default in payment of fine. 2. In brief, facts of the case are that on 20.4.2010 at 03:25 PM Smt. Kamla (accused appellant) wife of Mahavir Prasad submitted a typed report (Ex.P/53) at Police Station Hanumangarh Town with assertion that in the intervening night of 19.4.2010 and 20.4.2010 she was at her hamlet with her son Radheyshyam. At about 04:00 AM her husband Mahavir Prasad came to the hamlet under intoxication and started abusing her son Radheyshyam. Some altercations taken place between her husband and son and during that Radheyshyam gave a lathi blow to Mahavir Prasad. She made an effort to get her son and husband separated but due to a push given, she fell down and became unconscious. Her son Radheyshyam killed her husband and then fled from the spot. 3. On basis of the information aforesaid, a case was registered and investigation commenced. During the course of investigation necessary inquiry was made from Om Prakash, brother-in-law of Mahavir Prasad and ultimately informant Kamla, her son Radheyshyam, Mohabbat Ali, Kale Khan and Shah Mohammad were arrested and at their instance certain recoveries were made. At the instance of accused Radheyshyam a wooden stick, a motorcycle No. PB-10 M-4519, a cellular phone with a SIM, a blood stained pair of sandles and a blood stained pant were recovered. At the instance of Smt. Kamla a blood stained salwar was recovered. Recoveries of lathis were made at the instance of accused Kale Khan, Shah Mohammad and Mohabbat Ali. A police report as per provisions of Section 173 Cr.P.C. was submitted before the court of learned Additional Chief Judicial Magistrate, Hanumangarh, however, the case being session triable, was committed to the court of Sessions, Hanumangarh. Recoveries of lathis were made at the instance of accused Kale Khan, Shah Mohammad and Mohabbat Ali. A police report as per provisions of Section 173 Cr.P.C. was submitted before the court of learned Additional Chief Judicial Magistrate, Hanumangarh, however, the case being session triable, was committed to the court of Sessions, Hanumangarh. Learned Additional Sessions Judge (Fast Track) No. 3, Hanumangarh on 11.10.2010 framed a charge against the accused persons fro commission of offence punishable under Section 302/109 Indian Penal Code and on denial of the same trial commenced as desired. 4. During the course of trial the prosecution supported its case with the aid of 22 witnesses and by exhibiting 76 documents. 10 Articles too were produced and marked. Opportunity was given to the accused persons to explain the adverse and incriminating circumstances available against them in the prosecution evidence. The accused persons except appellants Smt. Kamla and Radheyshyam while denying their involvement in the case concerned stated that whatever evidence adduced is concocted and they were falsely implicated in the criminal case. Accused appellant Smt. Kamla stated that on the fateful day she and her son Radheyshyam were not at their home being visiting Salasar Dham. She further stated that the brother-in-law of her husband Om Prakash was used to abate her husband to have liquor in excess with a view to grab agricultural land. She and her son were falsely implicated in the criminal case by the police at the instance of Om Prakash. Accused appellant Radheyshyam also tendered similar kind of explanation. 5. The trial court after examining the evidence available on record acquitted Kale Khan, Shah Mohammad and Mohabbat Ali, but convicted Smt. Kamla and Radheyshyam for the offence punishable under Section 304 part-I/109 Indian Penal Code and sentenced accordingly. 6. In appeal, the argument advanced by counsel for the appellants is that so far as the case of the prosecution against accused Kamla is concerned, i.e. not at all sustainable being not supported by adequate evidence. It is stated that no evidence is available on record to arrive at a conclusion that this accused in any manner abated Radheyshyam to beat her husband. It is stated that no evidence is available on record to arrive at a conclusion that this accused in any manner abated Radheyshyam to beat her husband. The other circumstance taken into consideration as per counsel for the appellants against this accused is recovery of a salwar with little blood stains, having blood group matching with the blood group of deceased., but that is quite obvious in view of the fact that being wife of deceased she would have touched his body and the clothes and during that she may have received blood stains on her salwar. 7. While arguing the case for Radheyshyam, it is submitted that he too has been convicted for an offence punishable under Section 304 part-I/109 Indian Penal Code without having any evidence available on record. His conviction is based on recovery of his sandles and pant having blood stains with group matching with the blood group of deceased. According to learned counsel mere availability of blood stains on his clothes is not at all sufficient to record conviction. In alternative it is also submitted that even by accepting the prosecution case in totality, the case of the accused appellants does not travel beyond an offence punishable under Section 325 Indian Penal Code. 8. While opposing the argument advanced by counsel for the appellants it is submitted by learned Public Prosecutor that the accused appellants gave serious beating to Shri Mahavir Prasad resulting into his death and as such the conviction recorded is just and proper. 9. Heard counsel for the appellants and the Public Prosecutor. 10. The trial court has convicted the accused appellants for the offence punishable under Section 304 part-I/109 Indian Penal Code. To arrive at the conclusion the trial court mainly relied upon the nature of ante-mortem injuries available on the person of deceased Mahavir Prasad, recovery of blood stained pant and blood stained sandles of Radheyshyam and also a blood stained salwar of accused Kamla. 11. As per the medical evidence available on record, the person of deceased Mahavir Prasad was having five injuries as under:- 1. Lacerated wound 11/2" x ½" x bone deep close to left elbow. 2. Lacerated wound with swelling and clotted blood measuring 1"¼ x ½ x bone deep at upper side of right leg tilting towards outside. 3. 11. As per the medical evidence available on record, the person of deceased Mahavir Prasad was having five injuries as under:- 1. Lacerated wound 11/2" x ½" x bone deep close to left elbow. 2. Lacerated wound with swelling and clotted blood measuring 1"¼ x ½ x bone deep at upper side of right leg tilting towards outside. 3. Lacerated wound with swelling 1" x ½" x bone deep at lower half of right leg tilting towards frontal region with a fracture in tibia and fibula bone (clinically). 4. Marks of abrasion 2" x 1" towards abdomen. 5. Abrasion 8" x 8" towards both sides of lumber vertebra. 12. No cause of death was given in the postmortem report and further in the evidence adduced by Dr. Vinod Bhawandia (PW-15). However, the visceras collected were sent for their chemical examination to the Forensic Science Laboratory, Udaipur. The Forensic Science Laboratory in its report (Ex.P/71) opined that no metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides were found. Dr. Vinod Bhawandia (PW-15) while deposing before the court stated that as a matter of fact no cause of death was given in the postmortem report, however, subsequent thereto on asking by the Investigating Officer it was opined under Ex.P/25 that possibility of causing death of Mahavir Prasad due to injuries cannot be ruled out. In any case no definite opinion about cause of death was at all given. In such circumstances, the homicidal death of Mahavir Prasad itself is not proved beyond shadow of doubt. 13. The conviction of accused appellant Smt. Kamla is solely based on recovery of a salwar having blood stains. This accused is wife of deceased Mahavir Prasad. She is also first informant of the case. Availability of blood stains on salwar of the wife of deceased is quite obvious. She would have touched body and clothes of her husband and during that she may receive blood stains on her clothes. Merely on the count of availability of blood stains no conviction could have been recorded against the accused appellant in existing circumstances. As such, her conviction is apparently bad. It is also pertinent to note that her conviction is made with the aid of Section 109 Indian Penal Code without having any evidence about abatement. Merely on the count of availability of blood stains no conviction could have been recorded against the accused appellant in existing circumstances. As such, her conviction is apparently bad. It is also pertinent to note that her conviction is made with the aid of Section 109 Indian Penal Code without having any evidence about abatement. On examination of entire material available on record, we do not find any piece of evidence pertaining to abatement to cause the offence for which co-accused appellant Radheyshyam has been convicted. In such circumstances, we are having no hesitation in arriving at the conclusion that the conviction of accused appellant Kamla is absolutely ill founded. 14. So far as accused Radheyshyam is concerned, the evidence available against him is recoveries of his sandles and pant having blood stains with group matching with the blood group of deceased Mahavir Prasad. At the instance of this accused a wooden stick too was recovered with availability of blood stains of human origin. His conduct of absconding from the house after death of his father too has been taken into consideration. No explanation is given by the accused about his non-availability at the house after death of his father and even after lodging complaint by his mother. The circumstances against this accused are that at his instance a wooden stick with blood stains of human origin was recovered. On his disclosure his sandles and pant were also recovered and those were having blood stains with blood group matching with the blood group of deceased and then his conduct of absconding from his own house even after death of his father makes a complete chain to arrive at a conclusion that he was involved in the crime in question. True it is, the witnesses of recovery of wooden stick have not supported the prosecution case, however, they have accepted their signatures on recovery memo. The Investigating Officer PW-21 Rajendra Kumar has stated about recovery of lathi at the instance of this accused. As such, we do not find any wrong with the finding given by the trial court about involvement of this accused in the crime in question. 15. The important question now requires consideration is that what offence has been committed by this accused? As such, we do not find any wrong with the finding given by the trial court about involvement of this accused in the crime in question. 15. The important question now requires consideration is that what offence has been committed by this accused? As already stated that no definite medical evidence is available about cause of death of Shri Mahavir Prasad, however, availability of injuries on his person is not at all disputed. Those injuries have been caused by accused Radheyshyam, has also been established. Looking to the grievous nature of hurts caused by this accused, the offence committed by him comes within the purview of the offence described under Section 325 Indian Penal Code. So far as his conviction under Section 109 Indian Penal Code is concerned, suffice to mention that no evidence of abatement at all is available. Having considered all the facts of the case we deem it appropriate to set aside his conviction for the offence punishable under Section 304 part-I/109 Indian Penal Code, but to convict him for an offence punishable under Section 325 Indian Penal Code. 16. Accordingly, this appeal is allowed in part. The conviction recorded and sentence awarded to accused appellant Smt. Kamla under the judgment impugned is set aside, thus, she stands acquitted. The bail bonds furnished by her and her sureties stand discharged. The conviction of accused Radheyshyam for the offence punishable under Section 304 part-I/109 Indian Penal Code as well as the sentence recorded by the trial court for life term with a fine of Rs. 2000/- is set aside. He is convicted for an offence punishable under Section 325 Indian Penal Code and is liable to undergo rigorous imprisonment for a period of six years with a fine of Rs. 2000/-. In the event of default in payment of fine he shall be liable to further undergo two months simple imprisonment.Appeal allowed. *******