JUDGMENT 1. - The instant cr. appeal has been filed by the accused appellant Dev Raj under Section 374(2) of the Cr.P.C. against the judgment dated 2.8.1991 passed in Sessions Case No.4/91 whereby the accused appellant was convicted under Section 304 Part II and under Section 325 IPC and following punishments were awarded against him: "Under Section 304 Part II IPC : 3 years RI and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo 6 months SI Under Section 325 IPC : 3 years RI and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo 3 months SI." 2. As per the facts of the case the statement of PW-1 Khuba Ram were recorded in the hospital by constable PW-6 Om Prakash upon that FIR No.203/90 (Ex.P/1) was registered at Police Station Purani Aabadi, Sri Ganganagar under Section 307/325 and 323/34 IPC against the appellant and other three persons in which an allegation was leveled by the complainant PW-1 Khuba Ram that in the evening of 7th Nov., 1990 at about 8.30 p.m. when he was standing upon the street in front of Chhabara Flour Mill, the appellant was passing through the way, at that time, the complainant PW-1 Khuba Ram raised objection because he was visiting the house of bad persons living in the area. The appellant Dev Raj felt annoyed and after some time, came back with two more persons whose identity was not known they were having Lathis in their hands and appellant was having Gandasi in his hand. According to the prosecution case, the appellant gave blow by Gandasi with the bulnt side on his foot and due to said injury a fracture was caused on the foot. Thereafter, upon intervention by one Hansraj, a Gandasi blow was given on his hand by the appellant and other persons also caused injury by Lathi upon complainant PW-1 Khuba Ram and deceased Hansraj. At the time of occurrence, Smt. Kamla, Ram Lal and Chand Lal came there for rescue, but all the three persons including the accused appellant Dev Raj ran away from the place of occurrence. The injured Hansraj became unconscious due to the injury inflicted upon him, therefore, he was taken to the hospital for treatment. At the time of occurrence, Smt. Kamla, Ram Lal and Chand Lal came there for rescue, but all the three persons including the accused appellant Dev Raj ran away from the place of occurrence. The injured Hansraj became unconscious due to the injury inflicted upon him, therefore, he was taken to the hospital for treatment. In the hospital, both the injured were medically examined and injury report (Ex.P/3) of PW-1 Khuba Ram was prepared on 7.11.1990 on 10.45 p.m. in which 5 injuries were found and the injury report (Ex.P/5) of the deceased Hansraj was also prepared on 7.11.1990 itself in which 4 injuries were found upon his body, unfortunately, Hansraj died on next day, therefore, post mortem was made on 8.11.1990 in which the medical jurist gave its opinion in the reprot (Ex.P/7) that cause of death was head injury. 3. Due to death of Hansraj, the police added Section 302 IPC and after investigation filed challan against 4 accused persons Dev Raj (present appellant), Mahendra Kumar, Baljinder Singh @ Pappu @ Bharpur Singh and Ms. Mahendro W/o Jangir Singh. 4. During investigation, Gandasi was recovered as per the information given by the present appellant and two Lathis were recovered and upon information given by the accused Mahendra Kumar and Baljinder Singh. The challan was filed in the court of Chief Judicial Magistrate, Sri Ganganagar from where the case was committed to the court of Sessions Judge, Sri Ganganagar for trial. The Trial Judge framed charge against the accused appellant under Section 302, 307, 325 and 323 IPC and proceeded to conduct trial. 5. In the trial statements of 17 prosecution witnesses were recorded and thereafter, statements of all the accused persons were recorded under Section 313 Cr.P.C. but in spite of granting opportunity no witness was produced by the accused appellant in defence. 6. The learned Sessions Judge after hearing final arguments acquitted the accused Mahendra Kumar, Baljinder Singh and Ms. Mahindro from the charges leveled against them but held accused appellant Dev Raj guilty for offence under Section 304 Part II and 325 IPC and passed the sentence aforesaid. 7. In this appeal, the accused appellant Dev Raj is challenging the validity of the judgment dated 2.8.1991 passed by the Sessions Judge, Sri Gaganagar. 8. Mahindro from the charges leveled against them but held accused appellant Dev Raj guilty for offence under Section 304 Part II and 325 IPC and passed the sentence aforesaid. 7. In this appeal, the accused appellant Dev Raj is challenging the validity of the judgment dated 2.8.1991 passed by the Sessions Judge, Sri Gaganagar. 8. The learned counsel for the appellant submits that the District & Sessions Judge, Sri Ganganagar has committed a grave error to convict the accused appellant for the alleged offence under Section 304 Part II IPC because the prosecution has failed to prove its case beyond reasonable doubt with regard to the injury found upon the head of the deceased Hansraj. According to the learned counsel for the appellant sharp edged weapon Gandasi was recovered as per the information given by the accused appellant vide Ex.P/12 in the presence of witness Panna Lal and Balchand but no injury caused by the sharp edged weapon was found upon the body of deceased, which is evident from the injury report of Hansraj (Ex.P/5) and injury report of Khuba Ram (Ex.P/3), therefore, it is obvious that prosecution has failed to prove the case beyond reasonable doubt against the accused appellant. Further, as a matter of fact out of 3 accused, against whom allegation was made for inflicting injuries by Lathi and Gandasi, the learned trial court acquitted the two accused persons namely Mahendra Kumar and Baljinder Singh @ Pappu @ Bharpur singh, therefore, the case of the accused appellant is at par with those accused persons who were acquitted but while ignoring the fact that sharp edged weapon Gandasi was recovered, but upon body of deceased Hansraj and injured PW-1 Khuba Ram no injuries were found which can be caused by Gandasi because Gandasi is sharp edged weapon and as per the injury report and post mortem report, no incised wound was found upon the body of injured PW-1 Khuba Ram or upon the body of deceased Hansraj, therefore, it is a case in which the learned trial court has committed an error to convict the accused appellant for offence under Section 304 Part II IPC because allegations are not corroborated from medical evidence. 9. The learned counsel for the appellant vehemently argued that the learned trial court has relied upon the statement of PW- 1 Khuba Ram, PW-2 Ms. 9. The learned counsel for the appellant vehemently argued that the learned trial court has relied upon the statement of PW- 1 Khuba Ram, PW-2 Ms. Kamla, PW-15 Amrit Lal and PW-16 Ram Lal to hold accused appellant guilty for offence under Section 304 Part II IPC, but all these witnesses are interested witnesses and closed relative of deceased Hansraj. The other eye witnesses turned hostile and did not support the prosecution case. Therefore, the conviction of accused appellant for offence under Section 304 Part II IPC is not sustainable in the eye of law. However, it is submitted that if this Court comes to the conclusion that appellant Dev Raj is guilty for offence under Section 325 IPC then his sentence may be reduced from 3 years to already served for offence under Section 325 IPC and conviction and sentence awarded to the accused appellant Dev Raj under Section 304 Part II IPC may be quashed. 10. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that no error has been committed by the learned Sessions Judge, Sri Gaganagar in convicting the accused appellant for offence under Section 304 Part II IPC and under Section 325 IPC because there is ample evidence on record to prove the fact that injury upon the head of the deceased Hansraj was cause of death and that injury was inflicted by the accused appellant, therefore, it is a case in which the accused cannot say that prosecution has failed to prove its case beyond reasonable doubt. While supporting the judgment impugned the learned Public Prosecutor submits that at the instance of accused appellant weapon Gandasi was recovered and as per the statement of PW-1 Khuba Ram he has inflicted the injury from blunt side upon his body, therefore, obviously, it is a case in which prosecution has proved the case against the accused appellant Dev Raj, which is supported by the medical evidence. Therefore, the argument of the learned counsel for the appellant for quashing the conviction under Section 304 Part II IPC is not sustainable in law. As per Public Prosecutor, the learned trial court has rightly convicted the accused appellant for alleged offence under Section 304 Part II IPC, therefore, this appeal may be dismissed. 11. Therefore, the argument of the learned counsel for the appellant for quashing the conviction under Section 304 Part II IPC is not sustainable in law. As per Public Prosecutor, the learned trial court has rightly convicted the accused appellant for alleged offence under Section 304 Part II IPC, therefore, this appeal may be dismissed. 11. After hearing the learned counsel for the appellant as well as the learned Public Prosecutor, I have perused the entire judgment and evidence on record.Admittedly, the FIR was filed by the injured eye witness PW-1 Khuba Ram. The complainant Khuba Ram stated in his statement that " nsojkt us vkrs gh esjs ck;s iSj ij mYVh x.Mklh ekjh ftlls esjs iSj VwV x;k o eSa fxj x;kA fQj nsojkt us rhu ykfB;ksa dh esjs vkSj pksVsa ekjhA nks ykfB;ka nsojkt ds yksx lkFk Fks mUgksaus esjs ekjhA fQj ogka esjh iRuh] esjk HkkbZ galjkt] ve`ryky] jkeyky] vk x;sA esjk HkkbZ galjkt NqM+kus ykx rks nsojkt us esjs HkkbZ ds flj ij x.Mklh ekjh] galjkt ds fxjus ds ckn nwljs eqyfteku us Hkh esjs HkkbZ ds nks rhu pksVsa ekjhA fQj eSa rks csgks'k gks x;k FkkA fQj esjs HkkbZ galjkt dks igys vLirky ys x;s o eq>s ckn esa vLirky ys x;sA vU; nks vfHk;qDr ftUgksaus ykfB;ka ekjh FkhA egsUnz vkSj cyftUnz gS tks gkftj vnkyr gSA " 12. Similarly,PW-2 Smt. Kamla stated before the Court that ^^esjk ifr ml le; ckgj [kM+k Fkk rks nsojkt us mlds iSj ij mYVh x.Mklh dh pksV ekjh ml le; eSa] esjk tsB jkeyky o nsoj galjkt o ve`ryky ck pkUnjke oxSjk Hkh vk x;s FksA ftuesa jes'kdqekj o pquhyky Hkh 'kkfey FksA esjk ifr fxj x;k rc fxjs gq, ds rhu pkj ykBh tksxsUnz] egsUnz us ekjh FkhA fxjus ds ckn nsojkt us esjs ifr ds dksbZ x.Mklh dh pksV ugha ekjh FkhA fQj esjk nsoj galjkt chp&cpko djus yxk rks egsUnz us vU; eqyfteku dks dgk fd budks [kRe dj nksA fQj nsojkt us esus nsoj galjkt ds flj esa x.Mklh tku ls ekjus ds fy, ekjh] x.Mklh mYVh ekjh ;k lh/kh ;g irk ughaA fQj galjkt fxj x;k] fxjs gq, ds egsUnz o tksxsUnz us nks pkj pksVsa vkSj ekjhA** 13. The other witness PW-3 Ramesh turned hostile and said that he was not present at the time of occurrence took place. The other witness PW-3 Ramesh turned hostile and said that he was not present at the time of occurrence took place. Eye witness PW-9 Chhunilal also turned hostile and did not support the prosecution case. PW-11 Chand Ram turned hostile and did not support the prosecution case. 14. PW-15 Amrit Lal stated before the court that accused Baljinder Singh and Mahendra Kumar were not there but accused appellant Dev Raj inflicted injury upon the head of Hansraj by Gandasi. The following statement was made by him, which reads as under:- ^^og ij galjkt Hkh [kM+k Fkk] galjkt NqM+kus yxk rks galjkt ds nsojkt us x.Mklh dh pksV tks lh/kh ekjh ;k mYVh eq>s /;ku ughaA** 15. The witness PW-16 Ram Lal stated before the court in his examination-in-chief that: ^^vkt ls djhc vkB eghus igys jkr ds djhc vkB cts dk le; Fkk eSa ?kj cSBk Fkk ;g pkjksa gks gYyk epkrs gq, vk, tks gkftj vnkyr eqyfteku gS tks galjkt ds ?kj ij vk, fQj [kqckjke ckgj fudyk rks nsojkt eqyfte us mlds x.Mklh dh ekjh vkSj nwljs nksuksa eqyfteku tks gkftj vnkyr gSA ftuds uke egsUnz o cyftUnz gS bUgksaus Hkh [kwckjke ds ykfB;ksa dh ekjhA egsUnz eqyfteku gkftj vnkyr [kkyh gkFk FkkA fQj galjkt chpcpko djus yxk rks nsojkt us galjkt ds x.Mklh dh flj esa ekjh ftlls og uhps fxj x;k] fxjus ds ckn galjkt ds egsUnz o cyftUnz us ykfB;ksa dh ekjhA egsUnz cksyk fd nksuksa dks [kRe dj nksA jksyk lqudj vkSj dksbZ ekSds ij ugha vk;k FkkA fQj iwNus ij dgk fd ekSds ij deyk] ve`ryky] pkUnjke oxSjk Hkh vk x;s FksA eqyfteku ekjfiVkbZ dj ds xyh esa Hkkx x;sA galjkt dks fjD'kk esa Mkydj vLirky ys x;s vksj [kwcjke dks Hkh vLirky ys x;sA galjkt pksVsa yxus ds dkj.k ej x;kA** 16. Upon perusal of above statement it is abundantly clear that although there is allegation of inflicting injury by the accused appellant Dev Raj upon the head of Hansraj, but none of the witness said that injury was inflicted by the accused appellant Dev Raj from the back side of Gandasi, whereas PW-1 Khuba Ram stated before the court that injury was inflicted by the accused appellant from the back side of Gandasi upon his leg and due to that injury fracture was caused upon his leg. 17. I have perused the statement of PW-4 Dr. 17. I have perused the statement of PW-4 Dr. Om Prakash also in which it is accepted by him that PW-1 Khuba Ram and deceased Hansraj were examined by him on 7.11.1990 when he was working as medical jurist in the Government Hospital, Sri Ganganagar. According to the statement of PW-4 Dr. Om Prakash, no incised wound was found upon the body of PW-1 Khuba Ram and deceased Hansraj. The following statements were made by PW-4 Dr. According to the statement of PW-4 Dr. Om Prakash, no incised wound was found upon the body of PW-1 Khuba Ram and deceased Hansraj. The following statements were made by PW-4 Dr. Om Prakash, which reads as under:- ^^yksd vfHk;kstd }kjk eq[; ijh{k.k%& 1- fnukad 7-11-1990 dks eSa jktdh; fpfdRlky;] Jhxaxkuxj esa esfMdy T;wfj"V ds in ij rSukr FkkA ml fnu iqfyl Fkkuk iqjkuh vkcknh] Jhxaxkuxj ds izfrosnu ij eSaus [kwckjke iq= eksMwjke mez 45 lky tkfr es?koky lkfcu okMZ ua0 28 iqjkuh vkcknh] Jhxaxkuxj ds ftLe dh pksVksa dk eqvk;uk fd;k FkkA [kwckjke ds 'kjhj ij fuEufyf[kr pksVsa Fkh%& (1) daVwtu fcn fMQ;wTM Losfyax 2 1/4" x 3 x 4 tks ck;sa ?kqVus ds mij FkhA (2) daVwtu fcn fMQksjfeVh ySQ~V QksjektZ mij gkQA (3) daVwtu 4"x1" ySQ~V ysVy lkbZM vkQ vcMkseu vc byk;sdzsLVA (4) vczstu 3/4"x 3/4" jkbV vkeZ yksvj 1@3 ehfM;yhA (5) daVwtu 3" 3/4" ySQ~V FkkbZ mij 1@3 ;g lHkh pksVsa dqUnvkyk gfFk;kj ls vkbZ gqbZ FkhA o pksV ua0 1] 2] 3 o 5 ds fy, ,Dljs dh jk; nh x;h FkhA bu pksVksa dh vof/k 6 ?k.Vs ds Hkhrj dh FkhA pksV izfrosnu izn'kZ ih&3 gSA bl ij , ls ch esjs gLrk{kj gSaA o et:c dh igpku fpUg lh ls Mh LFkku esa vafdr gSA ,Dljs fjiksVZ [kwckjke dh eq>s izkIr gqbZ tks izn'kZ ih&4 gS bldh iq'r ij esjk bUMksjlesUV gSA bl fjiksVZ ds vuqlkj pksV la[;k 1 o 3 xEHkhj izd`fr dh ik;h x;hA pksV la[;k 2 ,oa 5 lk/kkj.k izd`fr dh ik;h x;hA izn'kZ ih&4 dh iq'r ij , ls ch esjk bUMksLesaV gS o lh ls Mh esjs gLrk{kj gSaA 2- mlh jkst eSaus et:c galjkt iq= eksMwjke vk;q 32 o"kZ tkfr es?koky fuoklh okMZ ua0 28 iqjkuh vkcknh] Jhxaxkuxj dh pksVksa dk eqvk;uk iqfyl izfrosnu iqjkuh vkcknh] Jhxaxkuxj ds vuqjks/k ij fd;k FkkA mlds 'kjhj ij fuEufyf[kr pksVsa Fkh%& (1) daVwtu vjkmaM jkbZV vkbZA (2) ysljsfVM cawM fon CyhfMax 3" x 1/4"x cksu MhiA ;g pksV Ldy ds e/; esa FkhA (3) vczstu 1/2" x 1/2" cSad vkWQ jkbZV LdsiqykA (4) daVwtu 21/2" x 2" cSad vkWQ jkbZV 'kksYMjA et:c ds ukd ls [kwu cg jgk FkkA lHkh pksVksa dqUnvkyk gfFk;kj ls vk;h gqbZ FkhA o pksVksa dh vof/k 6 ?k.Vs ds Hkhrj dh FkhA pksV la[;k 1 o 2 ds fy;s ,Dljs dh jk; nh x;h FkhA pksV izfrosnu izn'kZ ih&5 gS bl ij , ls ch esjs gLrk{kj gSA et:c dk igpku fpUg lh ls Mh gSA et:c galjkt dh e`R;q fnukad 8-11-1990 dks lqcg lk<+s N% cts gks x;h FkhA bl ckcr eSaus ckcr eSaus lwpuk iqfyl Fkkuk iqjkuh vkcknh Jhxaxkuxj dks tfj;s rgjhj izn'kZ ih06 dh Fkh bl ij , ls ch esjs gLrk{kj gSaA 3- fnukad 8-11-1990 dks iqfyl izfrosnu iqjkuh vkcknh] Jhxaxkuxj eSaus e`rd galjkt iq= eksMwjke mez 32 lky tkfr es?koky iqjkuh vkcknh ds 'ko dk ijh{k.k fd;k FkkA 'ko dh igpku izHkkrhjke iq= teukjke us dh FkhA e`rd galjkt lk/kkj.k dn dkBh dk O;fDr FkkA mlds 'kjhj ij fuEu pksVsa ik;s x;hA (1) ysljsfVM cwaM 3"x 1/4"x cksu Mhi bu nh lsUVj vkQ LdwyA (2) daVwtu vjkmaM jkbZV vkbZA (3) daVwtu 21/2" x 2" vksu tSd vkQ jkbV 'kksYMjA (4) vczstu 1/2" x 1/2" t cSd vkQ jkbZV LdsiwykA e`rd dk flj [kksyus ij ik;k fd e`rd ds Ldy ds uhps [kwu tek gqvk FkkA rFkk QUVy o nksuksa iSjkbVy cksu VwVh gqbZ FkhA czsu esa Hkh ysljs'ku vksj gsejst ik;k FkkA esjh jk; esa e`rd dh e`R;q flj dh pksV ds dkj.k gqbZ Fkh e`rd ds lHkh pksVsa e`R;q ds iwoZ dh FkhA e`rd dh pksV la[;k 1 izd`fr ds lk/kkj.k vuqdze esa e`R;q dkfjr djus ds fy, i;kZIr FkhA iksLVekVZe fjiksVZ izn'kZ i&7 gSA ftl ij , ls ch esjs gLrk{kj gSaA 4- e`rd galjkt dh pksVksa dk tc eSaus eqvk;uk fd;k rks mlds flj ij dksbZ ixM+h lkQk cka/kk gqvk Fkk ;k ugha eq>s ;kn ugha e`rd galjkt ds dksbZ 'kjhj ij dksbZ /kkj/kkj gfFk;kj dh pksV ugha FkhA e`rd galjkt ds pksV la[;k 2] 3] 4 fxjus ls Hkh vk ldrh gSA ;g pksVsa lqijfQf'k;y FkhA ;fn ,sls dslst esa cjgksy djds dyksfVM CyM gVk fy;k tk;s rks ,sls O;fDr ds cpus dh laHkkouk jgrh gSA flj dh pksV yxus ls [kwu ckgj Hkh vk ldrk gSA bu pksVksa ls ckgj tks [kwu vk ldrk gS og CyhfMax ds :i esa vk ldrk gSA eq>s ;kn ugha fd e`rd ds diM+ksa ij [kwu yxk gqvk Fkk ;k ughaA eSaus iksLVekVZe djrs le; e`rd ds diM+s mrkj FksA e`rd ds diM+s iktkek o cfu;ku [kwu vkywnk FksA tks eSaus ckn iksLVekVZe iqfyl dks lqiqnZ fd;s FksA eq>s /;ku ugha fd iqfyl us iksLVekVZe djokus ds fy;s eq>s rgjhj ds lkFk QnZ lwjrgky is'k dh ;k ughaA iqfyl us tks iksLVekVZe djus ds fy, fjdohth'ku fn;k Fkk og eSa lkFk ugha yk;k gwaA 5- [kwckjke dh pksV la[;k 1 ,oa 5 ,d gh ckj ls vk ldrh gSA [kwckjke dh pksV la[;k 4] 5 ,oa 2 fxjus ls vk ldrh gSA [kwckjke dh pksVksa ls [kwu ckgj ugha vk;k FkkA iqu% ijh{k.k %& 'kwU;A " 18. Upon perusal of the above statement I am of the opinion that although prosecution has proved the fact that incident took place on 7.11.1990 at 8.30 p.m. in front of Chhabara Flour Mill, Sri Gaganagar, but prosecution has failed to prove the allegation that injury which is found upon the head of deceased Hansraj was caused by the sharp edged weapon Gandasi which accused appellant was having at the time of occurrence. The weapon Gandasi is sharp edged weapon but the injury which is cause of death of deceased Hansraj upon the body was caused by blunt weapon and none of the injury found upon the body of the deceased were incised wound, therefore, in my opinion, the benefit of doubt goes in favour of the accused appellant because sharp edged weapon Gandasi was recovered from him and the injury upon the head of deceased Hansarj was alleged to be caused by blunt weapon. 19. In view of the above, the conviction of accused appellant for offence under Section 304 Part II IPC is not sustainable in law because it has not been proved beyond doubt. The allegation of inflicting injury upon the body of PW-1 Khuba Ram from back side of Gandasi, which resulted into fracture, is proved, therrefore, the learned trial court has rightly held accused appellant guilty for offence under Section 325 IPC, therefore, the finding of the learned trial court for convicting the accused appellant for offence under Section 325 IPC does not require any interference, but findings for offence under Section 304 Part II IPC deserves to be quashed.However, the learned counsel for the appellant invited my attention towards the judgment of this court reported in 2004(2) Cr.L.R. (Raj) 1211: Harda & Ors. v. State of Rajasthan and submits that the incident took place in the year 1990, therefore, after 25 years the sentence awarded to the accused appellant for the offence under Section 325 IPC, which is 3 years may be reduced to the period already undergone. 20. v. State of Rajasthan and submits that the incident took place in the year 1990, therefore, after 25 years the sentence awarded to the accused appellant for the offence under Section 325 IPC, which is 3 years may be reduced to the period already undergone. 20. After taking into consideration the fact that incident took place in the year 1990 and the accused appellant remained in custody for near about one year w.e.f. 10.11.1990 to 2.8.1991 and from 2.8.1990 to 25.11.1991, therefore, while following the above judgment of Harda's case, I deemed it appropriate to reduce the sentence awarded to the accused appellant for offence under Section 325 IPC from 3 years to already undergone. 21. Consequently, this appeal is partly allowed and sentence & conviction passed against the accused appellant by the learned Sessions Judge, Sri Ganganager vide judgment dated 2.8.1991 in Sessions Case No.4/1991 for offence under Section 304 part II IPC is hereby set aside but the conviction under Section 325 IPC against the accused appellant Dev Raj is hereby maintained and the sentence of 3 years RI awarded to him is hereby reduced to already undergone. The accused appellant is on bail, therefore, his bail bonds are hereby discharged.Appeal partly allowed. *******