JUDGMENT 1. - Heard the learned Counsel for the parties. 2. The instant Criminal Appeal Under Section 374 Cr.P.C. is directed against the Judgment dated 13.2.1990 passed by the Additional Sessions Judge, Rajsamand in Sessions Case No. 8/89 whereby the appellant was convicted for offences under Sections 304 Part-II and 323 I.P.C. and punished with the sentence of 5 years R.l. 3. As per the brief facts of the case, an oral complaint was filed by the complainant Heera S/o Lalu Kalbeliya, resident of Sindeshar at Police Station Railmagara on 21.12.1988 at about 10.45 P.M. in the night in which the complainant PW-4 Heera Lal alleged that today at about 4.00 O'clock the accused Moti @ Nijada and Bheriya take his brother Balu to the Sideshar Indira Colony where in the evening at 5.00 O'clock Bheriya, Moti and Nanu assaulted him and his sister Kanku and niece Kailashi immediately rushed to Indira Colony for rescue and take back Balu when accused were beating him. At about 8.00 O'clock in the night when his brother Balu and Pokar were in the home again Bheriya, Naniya, Moti and Bhawariya came to the house of Balu and called him to come out from the home, at that time, his another brother Pokar came outside the house and tried to asked them not to make quarrel with Balu but the accused appellant Moti inflicted injury on his head and due to the said injury, Pokar fell down and other accused persons gave lathi blows upon his head. Due to the injuries inflicted upon Pokar, the blood come out from his head and other part of body and the accused persons left the place of occurrence. The complainant and his mother Noji, Sister Kanku, Niece Kailashi, Maternal-uncle lawara and maternal-sister Roopi came on spot, therefore, action may be taken against them. 4. Upon aforesaid oral report, the Police Station, Railmagara registered an F.I.R. for the offence under Sections 302/34 and 323 I.P.C. and commenced investigation. The complainant and his mother Noji, Sister Kanku, Niece Kailashi, Maternal-uncle lawara and maternal-sister Roopi came on spot, therefore, action may be taken against them. 4. Upon aforesaid oral report, the Police Station, Railmagara registered an F.I.R. for the offence under Sections 302/34 and 323 I.P.C. and commenced investigation. In the investigation, 5 accused persons were arrested and after investigation, the charge-sheet was filed against 5 persons under Sections 302, 323 read with Section 149 I.P.C. in the Court of Munsif and Judicial Magistrate, First Class, Railmagar from where case was committed for trial to the Court of Additional District and Sessions Judge, Rajsamand, the learned Trial Court framed charge against all the accused for offence under Sections 147, 302 read with 149 I.P.C. and in additional to that against accused Naniya, Bhera and Moti (the present appellant) charge under Section 323 I.P.C. was also framed. 5. In the trial, statements of 14 prosecution witnesses were recorded to prove the charge against the appellant as well as other accused persons and thereafter, the statement of all accused under Section 313 Cr.P.C. were recorded by the learned Trial Court and in defence the statement of DW-1 Mangu were also recorded in trial by the learned Trial Court. 6. The learned Trial Court after recording the evidence of both the sides finally heard the argument and vide Judgment dated 13.2.1990 acquitted all the accused including appellant from charge leveled against them under Section 302 read with Sections 149 and 147 I.P.C. However, the accused appellant Moti was convicted for the offence under Sections 304 Part-II and 323 I.P.C. and accused Naniya and Bheriya were convicted only for offence under Section 323 I.P.C. 7. The accused appellant Moti @ Nijada Preferred this Appeal against the conviction and sentence passed against him under Section 302 Part-II I.P.C. and sentence for 5 years R.l. vide impugned Judgment dated 13.2.1990. 8. The learned Counsel for the appellant vehemently argued that the learned Trial Court has erred in law to rely upon the testimony of interested witnesses because all the eye-witnesses are relatives of deceased, it is also argued that all the eye-witnesses gave contradictory statement before the Court upon such statement conviction is based therefore, the judgment impugned deserves to be quashed. Further, it is submitted that the learned Trial Court has not appreciated the fact that the witness PW-4 Lehru has been planted by the Investigating Officer which is evident from the fact that the alleged eye-witness PW-3 Kanku and PW-6 Kailashi did not depose in the statement that PW-4 Lehru was present at the time of occurrence. Therefore, the findings of guilt given by the learned Trial Court deserve to be quashed. 9. As per learned Counsel for the appellant offence under Section 304 Part-II I.P.C. has not been proved by the prosecution against the accused appellant because there is no ample evidence to prove the fact that the accused appellant Moti is author of the fatal injury because all the witnesses stated before the Court that head injuries were caused by 3 persons including accused Bheriya and Naniya, therefore, the finding of conviction only against the accused appellant Moti under Section 304 Part-II I.P.C. cannot be separated from other accused, who were punished only for offence under Section 323 I.P.C. because the allegation for inflicting the head injury is not only against the accused appellant Moti, but also against accused Naniya and Bheriya against also that they were having Lathis in there hand along with accused appellant Moti and inflicted injury upon the head of the deceased. Lastly, it is argued that prosecution has failed to explain the injuries found upon the body of the accused appellant Moti who was also medically examined by the Medical Officer of primary Health Centre, Railmagra vide Ex. D-5 during investigation in which 6 injuries were found upon his body, therefore, due to non-explanation of injuries upon the accused appellant, the whole prosecution case deserves to be disbelieved for the simple reason that prosecution has not explained the injuries found upon the body of the accused appellant Moti. 10. D-5 during investigation in which 6 injuries were found upon his body, therefore, due to non-explanation of injuries upon the accused appellant, the whole prosecution case deserves to be disbelieved for the simple reason that prosecution has not explained the injuries found upon the body of the accused appellant Moti. 10. The crux of the argument of the learned Counsel for the appellant is that prosecution has failed to lead reliable evidence against the accused appellant Moti for commission of offence under Section 304 Part-II I.P.C. and in spite of identical evidence against the accused Bheriya and Naniya, the learned Trial Court held them guilty for offence under Section 323 I.P.C. only and passed sentence of simple imprisonment of 10 months only whereas punished the accused appellant Moti for offence under Section 304 Part-II I.P.C. while distinguishing his case from the case of accused Naniya and Bheriya, in spite of fact that evidence against all accused persons is the same, therefore, the conviction of accused appellant Moti under Section 304 Part-II I.P.C. may kindly be set aside. 11. Per contra, the learned Public Prosecutor submitted that initially 5 accused were charge-sheeted for offence under Sections 302/147 and 149 I.P.C., but the learned Trial Court acquitted all the accused persons from the charge leveled under Sections 302/149 and 147 I.P.C., however, convicted the two accused Naniya and Bheriya for offence under Section 323 I.P.C. because as per the evidence on record, the fatal injury, which is cause of death of deceased Pokar was inflicted by the accused appellant, therefore, the learned Trial Court held that prosecution has proved the case against the appellant for culpable homicide not amounting to murder, which is punishable under Section 304 Part-II I.P.C., therefore, no interference is called for in the judgment rendered by the learned Trial Court whereby the accused appellant Moti was punished for 5 years R.l. for the alleged offence. Therefore, the appeal may be dismissed. 12. After hearing the learned Counsel for the parties, I have perused the entire evidence and considered the arguments advanced by both the parties. Admittedly, accused appellant Moti has been convicted under Section 304 Part-II I.P.C. and accused Naniya and Bheriya are convicted under Section 323 I.P.C. upon the testimony of eye-witnesses, who were alleged to be present at the time of occurrence took place. Admittedly, accused appellant Moti has been convicted under Section 304 Part-II I.P.C. and accused Naniya and Bheriya are convicted under Section 323 I.P.C. upon the testimony of eye-witnesses, who were alleged to be present at the time of occurrence took place. PW-5 Heeralal made statement before the Court that all the accused persons Moti, Bheriya, Naniya and Bhawariya were having Lathi in their hands and they were calling Balu to come out from his house but Balu did not come outside the house and in place of Balu, deceased Pokar came out and tried to ask them not to make quarrel but Pokar was catched hold by all the accused persons and the accused appellant Moti gave Lathi blow upon head of Pokar, thereafter, Naniya and Bheriya also inflicted Lathi blows upon the head and accused Moti inflicted injury upon the neck, due to these injuries, deceased Pokar fell down and accused Bhanwariya also inflicted injury by Lathi. 13. In cross-examination PW-4 Jawara, PW-6 Kailashi, PW-3 Lehru and PW-3 Kanku gave same statements. Meaning thereby, as per prosecution case, three accused inflicted head injury by Lathi including accused appellant Moti, but none if the witnesses specified which of the injury of head was caused by the accused appellant Moti. It cannot be presumed that prosecution has failed to prove the act that the injury which is said to be caused of death was inflicted by accused appellant. 14. It is also very important fact of the case that during the investigation when accused appellant Moti was arrested he was medically examined by the Medical Officer, Primary Health Center, Railmagara, on 22.12.1988 at about 10.45 A.M. and after examination 6 injuries were found upon his body but no explanation is on record from prosecution side how these injuries were caused upon the body of the accused appellant. The aforesaid ground was raised before he learned Trial Court, but in Para No. 20 of the judgment, the learned Trial Court observed that probably these injuries were caused when they were assaulting Pokar, therefore, the prosecution is not required to explain the injuries so also on the basis of above ground, the story of prosecution can be disbelieved. The PW-7 Dr. The PW-7 Dr. Sukhlal Jain, who conducted post mortem of deceased Pokar and accused appellant Moti @ Nijada in which following details of the injuries and opinion with regard to cause of death is, which reads as under. The PW-7 Dr. Sukhlal Jain, who conducted post mortem of deceased Pokar and accused appellant Moti @ Nijada in which following details of the injuries and opinion with regard to cause of death is, which reads as under. " eq[; ijh{kk%& fnukad 22-12-1988 dks eSa izk0Lok0 dsUnz jsyexjk esa fpfdRlk vf/kdkjh ds in ij rSukr FkkA ml jkst eSusa iqfyl dh izkFkZuk ij Jh iks[kj iq= ykyw dkycsfy;k dh yk'k dk ijh{k.k fd;k FkkA mlds 'kjhj ij fuEu ckgjh pksVsa Fkh%& (1) fonh.kZ ?kko 2 x 1/2 x 1/2 ls0eh0 flj ds cka;h vkSj isjk;Vy Hkkx ijA (2) fonh.kZ /kko 11/2 x 1/4 x 1/4 ls0eh0 yykV ij cka;h vksjA (3) fonh.kZ ?kko 1 x ⅙ x ⅙ ls0eh0 flj dh nkfguh isjkbZVy gM~Mh ijA (4) uhyxw 3 x 11/2 ls0eh0 isV ds nkfgus Hkkx ij mij dh vksjA (5) uhyxw 5x1 ls0eh0 xnZu ij cka;h tcM+s ds uhpsA ;s lkjh pksVsa e`R;q iwoZ dh Fkh] vkSj dqUn gfFk;kj dh FkhA yk'k dks vUnj ls [kksy dj ns[kk x;k rks cka;h isjkbZVy gM~Mh dks QzsDpj gks x;k FkkA fnekx ds Hkh pksV Fkh] vkSj czsu esVj u"V gks x;k FkkA ;g pksV uEcj ,d ds nckc ls gqbZA 'ks"k vo;o lkekU; FksA e`rd dh e`R;q dk dkj.k mDr pksVksa ls gqvk jDr L=ko ,oa lnek FkkA fo'ks"kdj pksV uEcj 1 ( ,d ) ?kkrd FkhA eSaus fnu ds ,d cts ijh{k.k fd;k FkkA vkSj e`R;q dh vof/k 24 ?kaVs ds vUnj dh FkhA iksLV ekVZe fjiksVZ cukbZ tks ,Xth0 ih&9 gS] ;g esjh dyeh gksdj bl ij , ls ch esjs gLrk{kj gSaA mDr pksVsa ydM+h ls vk ldrh gSA pksV uacj ,d vykok 'ks"k pksVsa vius vki esa e`R;q dkfjr djus ds fy;s i;kZIr ugha FkhA pksV yxrs le; dh dkQh jDr cg pqdk gksxkA vkSj tc geus pksV uEcj ,d dks [kkyh rks mlds uhps Hkh jDr tek gqvk utj vk;k FkkA pksV uacj ,d vdsyh gh e`R;q dkfjr djus ds fy;s i;kZIr FkhA ftgj&}kjk&Jh Hkokuh'kadj nk/khp pksV uacj ,d yksgs ;k fles.V ds [kaHks ls tksj ls Vdjk;s rks vk ldrh gS " fnukad 22-12-1988 dks eSaus vfHk;qDr uhtQk mQZ ekrh dh pksVksa dk Hkh ijh{k.k fd;k gSA mlds 'kjhj ij dqy N% pksVsa Fkh%& (1) [kjksap ds lkFkh uhyxw 5 x 11/2 ls0eh0 nkfguh vxz Hkqtk ds mijh ckgjh fgLls ijA (2) uhyxw 4 x 11/2 ls0eh0 pksV uacj ,d ds rqjUr uhpsA (3) fonhZ.k ?kko 2 x 1/4 x ⅛ ls0eh0 BqM<+h ijA (4) uhyxw -16 x 11/2 ls0eh0 ihB ij chp esaA (5) [kjksap 1/2 x 1/2 ls0eh0 cka;h yykV ijA (6) [kjksap 1x4/4 ls0eh0 cka;h vka[k dh Hk`dqVh ds mijA ;s lkjh pksVsa dqUn gfFk;kj dh FkhA pksV uacj ,d ds fy, ,Dljs dh lykg nh FkhA ckdh pksVsa lk/kkj.k FkhA tkap ds le; pksVksa dh vof/k 24 ?kaVs ds Hkhrj dh FkhA pksV izfrosnu ,Xth0 Mh&5 gS] tks esjs dyeh gS] bl ij , ls ch gSA izn'kZ ih&9 ,oa izn'kZ Mh&5 dh pksVsa ,d gh le; dh gks ldrh gSaA ftjg&}kjk& Jh pSrU; xgyksr pksV uacj ,d ( izn'kZ ih&9 ) ,d gh ckj ls vk ldrh gSA pksV uacj ,d yxus ds N% ?kaVs ds vUnj iks[kj dh e`R;q gks tkuh pkfg;sA iqu%&&&&&&ijh{k.k&&&&fuy " [kUtj " mDr c;ku esjs funsZ'kkuqlkj Vafdr djk;k x;k tks xokg dks i<+dj lquk;k x;k rks lgh gksuk rlyhe fd;kA " 15. I have perused the injuries of deceased Pokar as well as accused appellant Moti. Obviously there is no evidence on record or specific allegation against the accused appellant to inflict the head injury No. 1, therefore, it cannot be presmed that the finding given by the learned Trial Court so as to convict the accused appellant Moti for offence under Section 304 Part-II I.P.C. is sustainable in law because PW-7 Dr. Sukhlal Jain stated in his statement that on 22.12.1988 he examined the body of the deceased as well as accused appellant Moti in which 6 injuries were found including lacerated would upon the body of appellant Moti, but it is not explained by the prosecution how these injuries were casued to the appellant. As per the evidence produced before the Court all the witnesses stated before the Court that present appellant Moti and Bheriya and Naniya were having Lathis in their hands and all of them inflicted injuries upon the head of deceased and there is no allegation of repeated blows therefore, obviously, the learned Trial Court has committed an error while distinguishing the case of the accused appellant Moti from the case of co-accused Naniya and Bheriya, who were conflicted for the offence under Section 323 I.P.C. only. 16. In my opinion, identical evidence was on record against accused appellant Moti and accused Bheriya and Naniya, so also injuries found upon the body of accused appellant has not been explained by the prosecution, therefore, it is a case in which the accused appellant Moti is required to be given benefit of doubt, but this Court cannot lose sight of the fact that there is no denial of incident by the accused appellant Moti, therefore, I hold that as per the evidence of prosecution the case of accused appellant is at par with the case of Naniya and Bheriya, who were convicted for offence under Section 323 I.P.C. 17. In view of the above discussion, I am of the opinion that the case of the accused appellant is not distinguishable from the case of Bheriya and Naniya, who were convicted for the offence under Section 323 I.P.C. because for accused appellant also, the prosecution has failed to prove the allegation that accused appellant was author of the head injury beyond reasonable doubt, which is said to be the cause of death, therefore, the conviction and punishment of the accused appellant Moti @ Nijada for offence under Section 304 Part-II I.P.C. is not sustainable in law. A bare perusal of the impugned Judgment dated 13.2.1990 it is revealed that the Trial Court although held the accused appellant guilty for offence under Section 323 I.P.C. also, but no separate punishment for such offence has been awarded to him. 18. Consequently, the Appeal is partly allowed and the Judgment impugned dated 13.2.1990 passed by the learned Additional District and Sessions Judge, Rajsamand in Sessions Case No. 8/1989 is hereby quashed to the extent of convicting and sentencing the accused appellant Moti @ Nijada for the offence under Section 304 Part-II I.P.C. but accused appellant hereby punished for the offence under Section 323 I.P.C. with the punishment of 10 months simple imprisonment. The accused appellant is already remained in custody for more than one year, therefore, he is not required to be sent back in the custody to serve the aforesaid sentence. The bail goods of the accused appellants are thus forfeited.Appeal partly allowed. *******