JUDGMENT 1. Bheru Lal son of Ram Lal has directed the present appeal against the judgment of conviction and order of sentence dated 23/03/2004 rendered by Additional Sessions Judge (Fast Track) No. 2, Jhalawar whereby the appellant has been convicted for offence under Section 302 IPC for causing murder of one Radhey Shyam son of Panchi Bai (PW-21), the first informant. 2. The trial court, after pronouncing conviction of the appellant, sentenced him for offence under Section 302 IPC to undergo life imprisonment and pay a fine of Rs. 1000/-, in default thereof, to further undergo rigorous imprisonment for one year. 3. On 14th August, 2003, one Balu Ram @ Babu Lal (PW-1) presented a written application (Exhibit-P.1) before SHO, Police Station, Kotwali (Jhalawar). In the said complaint, it was stated that in the morning ladies had gone for collecting wood in the 'Jungle' and while returning, at the old stone rock mine of Chhotu Bhai, near bushes, they found a dead body of a young person. The dead body was emitting foul smell and was having maggots. The people of village went there and arrived at a conclusion that the dead body was of an unknown person. 4. On 27th August, 2003, Panchi Bai (PW-21), the mother of the deceased-Radhey Shyam, presented a written application (Exhibit-P.28) before SHO, Police Station, Kotwali (Jhalawar) wherein she stated that she is resident of village- Suket, Tehsil-Ramganj Mandi, Distt. Kota. On 12/08/2003 (Tuesday) at about 9.00 am, Bheru Lal son of Ram Lal Mehar came to his house. He had offered one bundle of `Bidi' to her son (Radhey Shyam) and thereafter whispered something in his ears and took away Radhey Shyam to the `Jungle' of `Devri Ghata'. She stated that Bheru Lal came to his house and at a distance of 100-200 steps, there is house of Ram Karan son of Amar Lal, by caste-Chamar, resident of Suket and both have killed her son Radhey Shyam. It was further averred in the written complaint (Exhibit-P.28) that her son had told two cattle grazers to take him to the hospital but the said shepherd, due to their old age, could not bring his son to the road. It was further averred in the written complaint (Exhibit-P.28) that her son had told two cattle grazers to take him to the hospital but the said shepherd, due to their old age, could not bring his son to the road. It was further stated in the said Exhibit-P.28 by the first informant that two persons, who were grazing their cattle, told her that they were informed by the deceased Radhey Shyam that due to the deceit perpetuated, he has been killed by Bheru Lal and Ram Karan and cycle of Bheru Lal is also lying there. It was requested that murder case be registered against above persons as Radhey Shyam had advanced loan of Rs. 40,000/- to Bheru Lal who had opened a shop with that amount. 5. The complaint (Exhibit-P.28) was presented on 27th August, 2003 at 3.30 pm and a case was registered vide FIR (Exhibit-P.29) at Police Station Kotwali (Jhalawar). 6. The aforesaid FIR was investigated and during investigation, the appellant was arrested. 7. A report under Section 173 Cr.P.C was submitted alongwith the accused in the Court of competent jurisdiction. The said Court committed charge-sheet alongwith the appellant to the Court of Sessions and the same was entrusted for trial to the Court of Additional Sessions Judge (Fast Track) No. 2, Jhalawar. 8. The prosecution commenced its evidence. 9. Babu Lal appeared as PW-1. He stated that 2-3 days after `Rakhi', he had seen one dead body lying in the `Jungle' of `Devri Ghata'. Regarding presence of dead body, he was informed by the residents of village. He along with them had gone to the spot. The dead body was emitting foul smell. No external mark of injury was seen on the dead body. He had presented written report (Exhibit-P.1) to the police. From the pocket of the cloths worn by the deceased, Rs. 1350/- were recovered. In cross-examination, this witness stated that the dead body was found at the distance of one `farlang' from the National Highway. 10. Bhanwar Singh son of Bapu Singh (PW-2) stated that near `Dashera', a dead body was found in the `Jungle' of `Devri Ghata'. Site Plan (Exhibit-P.4) of the place from where dead body was recovered, was prepared. Near that place, one cycle was also standing. Regarding presence of cycle, separate demarcation (Exhibit-P.5) was made. The Police had conducted inquest proceedings. 10. Bhanwar Singh son of Bapu Singh (PW-2) stated that near `Dashera', a dead body was found in the `Jungle' of `Devri Ghata'. Site Plan (Exhibit-P.4) of the place from where dead body was recovered, was prepared. Near that place, one cycle was also standing. Regarding presence of cycle, separate demarcation (Exhibit-P.5) was made. The Police had conducted inquest proceedings. Clothes of the dead body were removed and he attested the inquest proceedings. No mark of injury was visible on the dead body. In his presence, no accused was taken to the spot. Rs. 1350/- were taken in possession from the pocket of the clothes of the deceased vide memo (Exhibit-P.3) The said memo was attested by the witness. 11. Bhagwan Singh son of Jujhar Singh (PW-3) had also attested the inquest (Exhibit-P.2). He stated that later accused was arrested, on the next day of arrest, Bheru Lal told that he alongwith deceased had taken water from a well which is at place called `Manak Chowk' and near `Devta Ka Sthan'. The accused had told that he alongwith Radhey Shyam had gone on foot and he also had a cycle. The accused also disclosed the place where cycle was parked. It is further stated by the witness that the police had also got recovered one packet of cards and the deceased had played gamble with the cards. From the pocket of the pant, worn by the deceased, diary and cash amount was recovered. In the cross examination, this witness stated that he noticed no mark of injury on the dead body. 12. Bhanwar Lal son of Bhuwana Ji (PW-4) stated that 2-3 days after 'Rakhi', he had found dead body and he came to village and disclosed this fact to the villagers. This witness, in cross examination, stated that nobody informed as to who had murdered and he had not seen any injury on the dead body. 13. Bapu Lal son of Devi Lal (PW-5) stated that a day before 'Rakhi', he was grazing his goat. At about 2.00 pm, one person came and told that water should be given to him. The witness had given water to the said person. That man said that Bheru Lal, having `chappal and shoes', had caused him injury with stone. The witness has not told this fact to anybody. At about 2.00 pm, one person came and told that water should be given to him. The witness had given water to the said person. That man said that Bheru Lal, having `chappal and shoes', had caused him injury with stone. The witness has not told this fact to anybody. The person, who had taken water from him, told that he is `Bheel Thakar' and is a resident of Suket. After seeing the photographs from the record of the case, the witness identified the person who had taken water. Photograph of the deceased was exhibited as Exhibit-P.16. The witness stated that it may be three days before `Rakhi', when he had gone with Bhanwara Ji for grazing goats and at that time, when the person asked for taking water and injury caused by Bheru Lal, Bhanwara Ji was also there with this witness. This witness further stated that the fact, disclosed by the person who had asked for the water, was not narrated by him even to his son Brijesh. 14. Nand Lal (PW-6) stated that he was working as a `Pujari' at the temple of `Mataji' where number of aggrieved persons come. 15. Ranjeet Singh (PW-7) stated that police personnel came and prepared a `Panchnama' (Exhibit-P.2) and he had attested `Panchnama'. 16. Kailash Chand (PW-8) had turned hostile. In examination-in-chief, he stated that it is not known to him that Bheru Lal had lost money while gambling. He further stated that this fact had not come to his knowledge that Bheru Lal and Radhey Shyam had gone towards "Manak Chowk" in `Devri Ghata'. This witness was declared hostile by the prosecution for having resiled from his previous statement. 17. Dilip Singh (PW-9) stated that two months ago, police took the accused to the Court where the accused accepted the fact regarding purchase of sweets from a cart-vendor and identified the cart-vendor from where he purchased sweets. This witness stated that it is correct that the police personnel were threatening the accused. 18. Dr. Gauri Shanker Chauhan (PW-10) stated that on 14th August, 2003, he was posted as Medical Jurist in SRG Hospital. He was member of the Board which had conducted autopsy on the dead body which was of unknown person. The deceased was aged about 35 years and his death took place about 48 to 72 hours before the postmortem. The dead body was emitting foul smell. He was member of the Board which had conducted autopsy on the dead body which was of unknown person. The deceased was aged about 35 years and his death took place about 48 to 72 hours before the postmortem. The dead body was emitting foul smell. Whole body was having swelling, maggots and flies were present. The skin was peeling off and whole body had turned blackish. His tongue was protruding out of mouth and was swollen. The lips were also having swelling. Forth was coming out of his nose and mouth. No injury was found on external examination of the dead body. From internal examination of dead body, it was observed that his hairs were pulling out and all the four parts of heart were empty. His abdomen was distended and was having blood and fluid. His abdomen and intestines contained gases. Other parts of the body were pale. The spleen of the deceased was enlarged and pedicle was damaged into two parts of dimension 2"x1" Cause of death was injury to spleen and hemorrhagic shock. The deceased had died due to excessive bleeding. 19. Kalyan Singh son of Shri Udai Singh (PW-11) stated that on 14th August, 2003, he was posted as ASI at Kotwali (Jhalawar) and on that day Balu Ram presented application (Exhibit-P.1) in which information regarding recovery of dead body was given. Exhibit P.2 (Inquest) of dead body was prepared and from the pocket of the pants of the deceased, Rs. 1350/- were recovered. He had prepared `Panchnama'. The place of occurrence was inspected. At the distance of 300 meters from the spot, one cycle was found which was taken into possession vide Exhibit P.9. The spot was also got photographed. Exhibit P.16 is photograph of the deceased. Vide separate memo, pants, shirt and chappals were also taken in the possession. After postmortem dead body was handed over to the Rattan Lal, for cremation as the dead body was unidentified . 20. Rattan Lal son of Halphoolji (PW-12) stated that he was posted as a Jamadar in Municipal Board, Jhalawar and one unidentified dead body was given to him for cremation. 21. Ajeet Singh son of Chhotu Singh (PW-13) stated that the accused got the spot identified vide Exhibit-P.1. The police also got recovered one stone from the spot at the instance of the accused vide Exhibit-P.14. 21. Ajeet Singh son of Chhotu Singh (PW-13) stated that the accused got the spot identified vide Exhibit-P.1. The police also got recovered one stone from the spot at the instance of the accused vide Exhibit-P.14. Packet of playing card was also recovered near the road at the instance of the accused. 22. Mangi Lal son of Nanda Ji (PW-14) stated that he is contractor of labourers. Two-Three days before `Rakhi', he was coming from Suket to Jhalawar. At that time, Bheru Lal, was accompanied by one child, both came together and they got down at `Devri Ghata'. The person, who was accompanying Bheru Lal, was not known to the witness. The witness was declared hostile for having not supported the prosecution case. 23. Devi Lal son of Udha Ji (PW-15) stated that he knows Bheru Lal. He had seen the deceased Radhey Shyam with the accused. Radhey Shyam talked with the witness and offered `Bidi'. Bheru Lal, the accused, at that time came on a cycle. He was also called by Radhey Shyam later, he left the spot along with Ram Karan. He stated that he celebrated `Rakhi' at the house of his in-laws. Later, he learnt that Radhey Shyam had died. In cross examination, he stated that police arrested Ram Karan in connection with murder of Radhey Shyam. 24. Jakir son of Sabir Ali (PW-16) stated that police had made "Panchnama" (Inquest) (Exhibit-P2.) of an unidentified dead body. 25. Jagannath son of Seva Lal (PW-17) stated that he knew nothing regarding the case. He knew accused Bheru Lal and deceased Radhey Shyam. Radhey Shyam was a contractor and Bheru Lal was engaged in cutting of stone. Both never gambled. This witness was declared hostile by the prosecution. He denied the fact that Radhey Shyam and Bheru Lal used to take drinks together and gamble. He further denied that Bheru lal had lost Rs. 11,000/- while gambling. 26. Kalu son of Gopal (PW-18) stated that he identified cycle of Bheru Lal in Police Station and Radhey Shyam deceased was his brother. While identifying dead body, he stated that Bheru Lal had murdered his brother. People, who were grazing cattle, informed that they had not seen Bheru Lal and Radhey Shayam fighting but they found Radhey Shyam in injured condition and they had given water to him. While identifying dead body, he stated that Bheru Lal had murdered his brother. People, who were grazing cattle, informed that they had not seen Bheru Lal and Radhey Shayam fighting but they found Radhey Shyam in injured condition and they had given water to him. They further told that injured had informed them that Behru Lal of 'Shoes & Chappal' had given him beating. 27. Phool Bai wife of Bajrang Lal (PW-19) has stated that Radhey Shyam was her neighbour. On the day of 'Rakhi, Radhey Shyam met her in the way and when she asked him as to from where he is coming, he replied that he is coming from the house of Bheru. 28. Badam Bai wife of Late Radhey Shyam (PW-20) stated that Bheru came to his house a day before `Rakhi'. She asked her husband about the conversation with Bheru Lal and then he told that tomorrow they will go to the place of 'Manak Chowk Thakar Maharaj Devta" Later, she had gone to her parental house. After 3-4 days, she came from her parental house and she expressed suspicion that her husband has been killed by Bheru. 29. Panchi Bai wife of Gopal Ji (PW-21) stated that on Rakhi day i.e. Tuesday, Bheru came on a cycle and took her son. At that time, Radhey Shyam was having Rs. 5000/-. He also took `Aggarbati'. She asked her son where he is going and her son informed that he is going to the house of Bheru Lal. Her son had not returned. She thought that her son had gone to the house of his in-laws and when her daughter in law returned, she asked her whereabouts of Radhey Shyam, she informed that Radhey Shyam never came to the house of his in-laws. One day, when she was sleeping in the night, a girl informed that a dead body was found in the `Jungle' of `Devri Ghata'. She identified the clothes of Radhey Shyam in the Police Station and from the clothes, one key of the room was also found which was carried by the deceased after putting a lock. She had identified the clothes and key. She also identified a cycle which belonged to Bheru. She identified the clothes of Radhey Shyam in the Police Station and from the clothes, one key of the room was also found which was carried by the deceased after putting a lock. She had identified the clothes and key. She also identified a cycle which belonged to Bheru. One person, who used to graze the cattle, informed that he had given water to her son and her son had told that Bheru had caused injury with stone and also with knife. This witness has not named the person who used to graze the cattle and had relayed the information. 30. Pappu son of Gopal Ji (PW-22) stated that on the day of `Rakhi', Radhey Shyam came in the morning and took Rs. 5000/- from him as the same belonged to him. Radhey Shyam had told him that he had to go to market for purchase of clothes. Radhey Shyam had not returned till 12.00 in the night. His sister was waiting to tie her `Rakhi'. On the next day of `Rakhi', while inquiries were being made, they had received information that Radhey Shyam was last seen with Bheru Lal. Ramesh told him that his brother Radhey Shyam and Bheru were standing alongwith a cycle outside the Mandir (Temple). On Sunday, he went to the shop of Bheru Lal and asked him about the whereabouts of Radhey Shyam. He replied that he had gone to the house of his in-laws. 31. Suresh Kumar son of Late Jagmal Singh (PW-23) stated that on 14th August, 2003, he was posted as SHO, Police Station Kotwali, Jhalawar. After registration of information regarding death, bearing No. 20/2003, he had handed over the investigation to ASI Kalyan Singh. This witness has proved various facets of investigation. 32. Mohd. Naim son of Mohd. Salim (PW-24) stated that Radhey Shyam had worked with him for one year and later used to provide labour for cutting of stone. 33. Prosecution closed its evidence. 34. Statement of accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to the accused. He denied the same and pleaded innocence and false implication. No witness was examined in defence. 35. We have heard counsel for the appellant and the learned Public Prosecutor. 36. It is not a case of direct evidence. The prosecution has not cited any eye witness. The case of the prosecution rests upon circumstantial evidence. He denied the same and pleaded innocence and false implication. No witness was examined in defence. 35. We have heard counsel for the appellant and the learned Public Prosecutor. 36. It is not a case of direct evidence. The prosecution has not cited any eye witness. The case of the prosecution rests upon circumstantial evidence. According to the prosecution case, following pieces of incriminating evidence have emerged against the appellant. (1) Evidence of last seen; (2) Information relayed by Bapu Lal son of Devi Lal (PW-5) that deceased, before his death, had told him that he had been caused injury by the present appellant; (3) Recovery of cycle of the accused near the place of occurrence and recovery of playing cards, allegedly used for gambling, at the instance of the present appellant. (4) Identification of the spot, at the instance of accused, who allegedly had taken water from well alongwith deceased and identification of the cart, from where both accused and deceased had purchased sweets. 37. It is necessary for us to examine the facts and above circumstances to arrive at a conclusion whether offence has been committed by the appellant or not. 38. So far as the evidence of last seen is concerned, Panchi Bai wife of Gopal Ji (PW-21), in the FIR had stated that the accused came to her house, offered a bundle of `Bidi' to her son and took him to the Jungle of `Devri Ghata'. This witness, in the Court, changed her version and had stated that the accused came on cycle to her house and had taken the deceased along with him. In the Court, this witness had stated that her son deceased Radhey Shyam, after taking Rs. 5000/- and `Aggarbatti', was leaving house and when she asked him as to where he is going, she was informed by the deceased that he is going to the house of Bheru Lal. This witness after having last seen the deceased in the company of the accused had not raised any hue and cry, when deceased had not returned home. Dead body was recovered on 14th of August 2003, report was lodged by this witness on 27th of August 2003. Whether the deceased had gone to the house of the accused or not, this witness has not advanced the case of the prosecution. Statement made at highly belated stage cannot be extended credence. Dead body was recovered on 14th of August 2003, report was lodged by this witness on 27th of August 2003. Whether the deceased had gone to the house of the accused or not, this witness has not advanced the case of the prosecution. Statement made at highly belated stage cannot be extended credence. Nanda Ji (PW-14) had stated in the Court that 2-3 days before `Rakhi', he was coming from Suket to Jhalawar. At that time, Bheru Lal was seen accompanying one child, both came together and went towards `Devri Ghata'. This witness further stated that the person, who was accompanying Bheru Lal accused, his name was not known to him. Therefore, this witness has also not advanced case of the prosecution regarding evidence of last seen and was declared as hostile. Jagannath son of Seva Lal (PW-17) denied the fact that Radhey Shyam and Bheru Lal used to drink together and gamble. This witness was also declared as hostile and therefore, had not advanced case of the prosecution. Phool Bai wife of Bajrang lal (PW-19) rather demolished the case of the prosecution so far as evidence of last seen is concerned. This witness stated that Radhey Shyam was her neighbour. On the day of `Rakhi', she met Radhey Shyam at about 9.00-9.30 AM. At that time, the light was not on. She asked Rahey Shyam as to from where he is coming and he replied that he is coming from the house of Bheru. All witnesses categorically stated about two or three days before `Rakhi'. This witness has stated that on the day of `Rakhi', the deceased was not accompanied by the accused rather the deceased told that he is returning from the house of the accused. This witness also contradicts first informant as deceased after going to the house of accused had returned. However, this witness Phool Bai (PW-19) was also declared hostile as she has not supported the case of the prosecution so far as evidence of last seen is concerned. Badam Bai wife of Late Radhey Shyam (PW-20) stated that a day before the occurrence, her husband had a conversation with the accused and when she asked about the contents of the talk between them, the deceased had told that tomorrow he will go to the house of the accused and both will go to `Manak Chowk Thakar Maharaj Devta'. Badam Bai wife of Late Radhey Shyam (PW-20) stated that a day before the occurrence, her husband had a conversation with the accused and when she asked about the contents of the talk between them, the deceased had told that tomorrow he will go to the house of the accused and both will go to `Manak Chowk Thakar Maharaj Devta'. This witness has also not seen the deceased and accused together rather this witness stated that next day, she went to her parental house and when she returned, she expressed suspicion that offence might have been committed by Bheru. Pappu son of Gopal Ji (PW-22), husband of the sister of the deceased, is also not direct witness of last seen. Devi Lal son of Udha Ji (PW-15) stated that he had seen Bheru along with Radhey Shyam in the `Bazar' of Suket. He had a talk with Radhey Shyam. Bheru also came in the `Bazar' and he was called by Radhey Shyam deceased. Thereafter, the witness along with Radhey Shyam had left the spot. Incidental meeting of Bheru Lal (accused) with the deceased (Radhey Shyam) in the `Bazar' would not complete the evidence of last seen. No prosecution witness states that after Radhey Shyam (deceased) and Bheru Lal(accused) had taken `Bidi' in the `Bazar', they left together or they had gone separately for their destinations. Thus, we are of the considered opinion that in the present case, the prosecution has failed to prove evidence of the last seen. 39. The prosecution had examined two witnesses namely; Bhanwar Lal son of Bhuwana Ji (PW-4) and Bapu Lal son of Devi Lal (PW-5) to prove the fact that the deceased, before his death, had taken water from these two witnesses and had disclosed to them that the injury has been caused to him by Bheru, the present accused. PW-4 has not proved the fact that the deceased had relayed any information regarding causing of the injury by the present accused appellant. PW-5, in the Court, stated that the factum of causing injury by the accused to the deceased was relayed to him by the deceased in presence of Bhanwar Lal. Since Bhanwar Lal has not supported Bapu Lal, it would be difficult to accept this part of the statement of Bapu Pal, especially when in the medical examination, no external injury has been found on the person of the deceased (Radhey Shyam). Since Bhanwar Lal has not supported Bapu Lal, it would be difficult to accept this part of the statement of Bapu Pal, especially when in the medical examination, no external injury has been found on the person of the deceased (Radhey Shyam). All prosecution witnesses, including the Investigating Officer, had stated that when they had found the dead body, they inspected the same and no external mark of injury was found on the body of Radhey Shyam deceased. Dr. Gauri Shanker Chauhan (PW-10), who had conducted autopsy, stated that no injury was found in the external examination of the dead body and from internal examination, spleen of the deceased was found to be enlarged and pedicle of the spleen had broken into two parts having dimension of 2'x1'. The cause of death, as per medical evidence, is injury to spleen and hemorrhagic shock. 40. Counsel for the appellant has placed reliance upon a judgment rendered by a Division Bench of Gujarat High Court in the case of State of Gujarat v. Babu Kava, reported as (2003) 4 GLR 892 wherein regarding injury to spleen, their Lordships, after examining the medical evidence, had observed as under:- "15. As per Modi's Medical Jurisprudence and Toxicology, the normal spleen in an adult measures 12 x 8 x 4 cms. In some cases, the spleen decomposes earlier than the stomach and the intestines, especially if it is swollen and hypepraemic from an acute infectious disease or enlarged from chronic malaria. However, it may resist putrefaction longer, if it happens to be firm and comparatively bloodless. Owing to putrefaction, the spleen becomes soft, pulpy, greenish-steel in colour, and it may be reduced to a diffluent mass within two to three days in summer. On account of its situation, rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force, such as the passing of a carriage or motor car over the body, or by a crush in a railway accident, or by a fall from a very great height; in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. A normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subjected to traction forces may be torn from its pedicle. An enlarged spleen becomes softened and brittle. Hence it is liable to rupture from a fall or from violence of a very slight degree. In such cases, the abdominal wall may not show any external mark of injury. (emphasis supplied) 16. As per Dr. Jhala & Raju's Medical Jurisprudence, normally the spleen is very high up in the abdomen and well protected by the ribs. Thus, unless enlarged to double its size, it is not directly exposed to external injury. Penetrating injuries can certainly involve the organ. When enlarged, it is clearly vulnerable even to direct blows like kicks. Furthermore, such an enlarged organ is friable in structure and hence likely to bleed profusely. Such profuse bleeding may prove fatal and that too rapidly so. On the other hand when the spleen is of normal size and texture and found to be lacerated, the overlying side and abdominal wall must show signs of blunt injury viz., contusion. A kick on an enlarged spleen resulting in fatal haemorrhage amounts to a milder offence even of simple hurt depending on circumstantial evidence. 17. In view of the above referred to authoritative passages on Science of Medical jurisprudence it cannot be gainsaid that enlarged and diseased spleen itself is sensitive and it is vulnerable and susceptible to rupture by a slightest force. Now, therefore, the question which requires to be considered is as to whether the accused have committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part II of IPC or grievous hurt punishable under Section 325 of the IPC or hurt punishable under Section 323 of the IPC. 18. A similar question arose before the Calcutta High Court way back in 1920 in the case of Emperor v. Saberali Sarkar, AIR 1920 Calcutta 401. In that case, the accused, having found that a young man had approached his kept mistress for the purpose of having sexual intercourse with her, thought that he would be justified in teaching him a lesson by giving him a good thrashing. In that case, the accused, having found that a young man had approached his kept mistress for the purpose of having sexual intercourse with her, thought that he would be justified in teaching him a lesson by giving him a good thrashing. He accordingly sent for the brother of the young man, and in the presence of the villagers gave him a good beating by kicks and blows, which resulted in his death. The deceased was of a weak constitution and had an enlarged spleen, and it appeared that when the villagers told the accused that he was about to kill the young man by his kicks and blows, he observed that the deceased was merely pretending and gave him some more strokes with a cane. The accused was thereupon charged with an offence under Section 304. The jury found him guilty under Section 323. The Sessions Judge disagreed with the jury and being of opinion that the accused was guilty under Section 325, referred the matter to the High Court under Section 307 of the Old Code. In the aforesaid fact situation, the High Court held that in the circumstances of the case it was doubtful whether the accused had either intended or knew it to be likely that he would cause grievous hurt and as the case seemed to be on the border line between Sections 323 and 325 the accused might be given the benefit of the doubt and should be convicted of an offence under Section 323. 19. In the case of Ramakrishna Panicker v. State of Kerala, AIR 1959 Kerala 372, before Kerala High Court the victim was having a spleen of diseased condition which got ruptured. In the said fact situation, Kerala High Court held that when the injury is not serious and there was no intention to cause death or grievous hurt, nor did the accused have knowledge that it was likely to cause grievous hurt or death, he is guilty of causing hurt and not death even though death is caused. In the said fact situation, Kerala High Court held that when the injury is not serious and there was no intention to cause death or grievous hurt, nor did the accused have knowledge that it was likely to cause grievous hurt or death, he is guilty of causing hurt and not death even though death is caused. It was further held that therefore where from the circumstances of the case it is impossible to draw an inference that the accused would have intended to give the deceased anything more than a beating or thrashing to teach him a lesson for using foul language to him, a police officer, it would not be possible to attribute to him the requisite intention or knowledge merely because of the diseased condition of the spleen of the deceased which got ruptured. In such circumstances his conviction under Section 304 cannot stand. 20. A similar question arose before a Division Bench of Allahabad High Court in the case of Sri Prakash v. State, 1990 Cr.L.J. 486. In that case, the beating given by the accused to a child has resulted into the death of the child. However, there was no visible injuries found on the dead-body. Beating given to the child, therefore, could not be severe. On medical evidence, spleen of the child was found to be ruptured and, therefore, enlarged spleen could only be the reason of death. The accused was not knowing of the enlarged spleen of the deceased. On the fact situation, the Division Bench held that the accused could not be held guilty under Section 304 of IPC and further held that conviction will be proper under Section 323 and not under Section 325 of IPC. 21. Applying the principles laid down by three High Courts in the above referred to judgments and the passages quoted by us from the Medical jurisprudence of Dr. Modi and Dr. Jhala and Raju to the facts of the present case, it cannot escape from the conclusion that the deceased Gordhanbhai died in an ordinary incident which has resulted into quarrel between the complainant and the accused, the accused got excited and gave fist blows to the deceased whose spleen as per the medical evidence was ruptured as it was enlarged and diseased. Therefore neither intention nor knowledge can be attributed to the accused for causing murder or culpable homicide not amounting to murder of deceased Gordhanbhai. At the most the offence under section 323 of IPC is proved as all of them gave fist blows to deceased as well as A-2 has given fist blows to complainant Vimlaben." 41. Relying upon the aforesaid judgment, counsel for the appellant has submitted that conviction of the present appellant for offence under Section 302 IPC cannot be sustained. 42. Instead of considering the nature of offence, we are firmly of the view that in the present case, the prosecution has failed to complete the chain of circumstances so as to come to the conclusion that the appellant has committed the offence alleged against him. 43. Taking into consideration the above cited judgment, we hold that there was no external mark of injury on the dead body of the deceased (Radhey Shyam) and he had died due to damage caused to spleen which was enlarged and therefore, we are of the view that this part of medical evidence contradicts the version given by Bapu Lal son of Devi Lal (PW-5). Once we rule out the evidence of last seen and statement made by Bapu Lal from our consideration, being belied by medical evidence, mere recovery of cycle of the accused at a distance of 300 meters from the place where the dead body was recovered and recovery of playing cards at instance of accused are not sufficient to sustain conviction. Furthermore, identification of the place where allegedly the deceased and accused had taken water together and purchased the sweets, according to us, is a circumstance which is inadmissible piece of evidence as it has led to no recovery. Thus, pieces of evidence relied by prosecution are not sufficient to complete the chain of circumstantial evidence to hold that the offence was committed by the present appellant alone and by nobody else. Further, since no external injury was found on the person of the deceased and it is a case of rupture of spleen, we are of the opinion that conviction of the appellant for offence under Section 302 IPC is liable to be set aside. 44. Further, since no external injury was found on the person of the deceased and it is a case of rupture of spleen, we are of the opinion that conviction of the appellant for offence under Section 302 IPC is liable to be set aside. 44. As a result of the above discussion, we accept the present appeal and set aside the conviction and sentence awarded upon the appellant and acquit him of the charge u/s 302 IPC. Appellant-Bheru Lal be released forthwith, if not required in any other criminal case. 45. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, the accused-appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court. *******