Hon'ble AHLUWALIA, J.—The present appeal has been preferred by Ratan s/o Shri Harji, Satya Narain s/o Harji, Chhitar s/o Sheo Ram, and Yagya Narain s/o Chhitar. They are aggrieved against the judgment of conviction dated 30th November, 2005 and order of sentence of even date, passed by Additional District & Sessions Judge, (Fast Track), Court No.3, Ajmer Camp at Kishangarh. 2. We shall briefly recapitulate the facts of the case. 3. Tweleve persons namely Ratan s/o Harji, Lalaram s/o Bhiwda @ Bhiva, Shyoji s/o shyoram, Satyanarayan s/o Harji, Jodharam @ Jagdish s/o Chittar, Chittar s/o Shyoram, Yagyanarayan s/o Chittar, Smt. Lali w/o Satyanarayan, Smt. Jodha d/o Chittar and wife of Kishanlal, Smt. Raja @ Laja w/o Ratanlal, Smt. Habudi @ Prem w/o Shyoji and Smt. Bhuri @ Bhanwari w/o Chhitar were sent for trial in case arising out of FIR No.51/2000 registered at Police Station, Bander Sindri Distt. Ajmer for offences under Sections 147, 148, 149, 341 and 302 IPC. The trial Court vide its impugned judgment dated 30th November, 2005, acquitted eight persons, namely Lalaram s/o Bhiwda @ Bhiva, Shyoji s/o shyoram, Jodharam @ Jagdish s/o Chittar, Smt. Lali w/o Satyanarayan, Smt. Jodha d/o Chittar and wife of Kishanlal, Smt. Raja @ Laja w/o Ratanlal, Smt. Habudi @ Prem w/o Shyoji and Smt. Bhuri @ Bhanwari w/o Chhitar. However, the trial Judge convicted appellants Ratan s/o Harji, Satyanarayan s/o Harji, Chittar s/o Shyoram and Yagyanarayan s/o Chittar for the offences under Sections 302 read with Section 34 IPC and vide a separate order of even date, sentenced them as under:- For offence under Section 302/34 IPC : Life imprisonment and to pay a fine of Rs. 5000/- each, in default thereof, to further undergo one year simple imprisonment each. 4. Criminal proceedings were set into motion upon written report (Ex.P/1) submitted by Hanuman (P.W.1) eye-witness of the occurrence. The report made to the police when translated into English reads as under : - “To Station House Officer, Police Station, Bandar Sindari. Subject: Lodging of the report. Sir, It is submitted that I Hanuman s/o Laxman, caste Jat, is resident of Budhoti Village. Today, on 18th July, 2000 at about 6 P.M., I and my father alongwith our cattle had gone to the well, so that animals could drink water. After cattle had taken the water, we were returning to our house. Subject: Lodging of the report. Sir, It is submitted that I Hanuman s/o Laxman, caste Jat, is resident of Budhoti Village. Today, on 18th July, 2000 at about 6 P.M., I and my father alongwith our cattle had gone to the well, so that animals could drink water. After cattle had taken the water, we were returning to our house. At about 6.15 P.M., when we reached opposite the house of Bhagchand Dakot, then from the deserted house of Ram Niwas Dakot, armed with kulhari (axe), Farsa and lathies, accused Chittar s/o Shyoram, Shyoji s/o Shyoram, Ratan s/o Harji, Satya Narayan s/o Harji, Yagyanarayan s/o Chittar, Jodha s/o Chittar, Lala s/o Bhiwda Gurjar, Bhuri w/o Harji, Habudi w/o Harji, Laja w/o Ratan Lal, Lali w/o Satyanarayan, Jodhmal s/o Chittar and others suddently emerged and attacked us. Chittar gave a blow of kulhari (axe) on foot of my father, due to which, he fall down. While, he was lying on the ground, everybody caused injuries to my father with kulhari (axe) and Farsi. Out of fear, I raised noise, which attracted my mother Hastudi, Suha Jat and Ugma Ghatala and other residents of the village to the spot. The above said accused, after causing injuries to my father decamped from the spot. People of the village had seen accused causing injuries to me and my father. Thereafter, I, my mother and other people of the village brought my father who was lying on the spot to Kishangarh Hospital where, he was declared dead. Above said all persons had caused injuries to my father. We are having dispute over the land with the accused. I am making report, action be taken. Report submitted by Hanuman s/o Laxman R/o Budhoti.” 5. Upon submission of the above said written report (Ex.P/1), as already stated, case was registered under Sections 147, 148, 149, 341 and 302 IPC. 6. Before we take notice of the version unfolded by the eye-witnesses, it would be apposite here to take note of the medical evidence. Dr. P.C. Patni (P.W.17) being Medical Officer posted at Y.M. Hospital, Ajmer, on 19th July, 2000 at about 10.20 A.M. had conducted autopsy on the dead body of Laxman aged 55 years. He had found following injuries on the person of deceased : - “External injuries : - 1.Stab wound (incised penetrating wound)- 1½ x ½” x 5” - 1½” below the Rt. He had found following injuries on the person of deceased : - “External injuries : - 1.Stab wound (incised penetrating wound)- 1½ x ½” x 5” - 1½” below the Rt. nipple the edges of the wound is clean cut, angles are acute, parabalic in shpae. Transversly placed, direction of wound is back ward, downward & to the right. ribs dividings. Piercing to lungs. 2. Incised wound – 5” x 2” viscera deep, the edges are clean out, gaping in greater exposing muscles and dividing the ribs. Underlying lung can be seen. The wound is at Rt. side transversly from postr axillary line to infrascapular region. 3. Stab wound :- 1” x 1/2” x 1” on dorsal aspect of Rt. forearm in middle underlying bone fractured. 4. Incised wound : - 3”x1/4” skin deep on Rt. Forearm 1” above injury No.(2) 5. Incised wound : - 1½” x ½” x bone deep vertically on skin of tibia 4” below knee (Rt.) 6. Incised wound : - 3½” x ½” x bone deep vertical 3” below the injury No.(5) 7. Incisead wound : - 5” x 1” x 3” clean. Sharply cutting skin, all the muscles. Vassels, tendon, ligaments and even both bone at 9” above the ankle joint of Rt. leg. Foot attached with small portion of skin otherwise cut (amputed leg at the level of ankle present) 8.Swelling with fractured 2,3, 4 are metacarpal bones (Rt.)” 7. A perusal of the Post-Mortem Report (Ex.P/28) further reveals that the pleural cavity contained blood 4.5 mm ribs on the right side were divided below the nipple. Right lung was tear from upper middle lobe and the size of the tear was 3 ½” x 3/4”, peritonial cavity was full of blood. There was a big tear 6” x 2” on the liver. 8. From a perusal of injury report, it is apparent that injury No.1 was a stab wound which after dividing ribs, had pierced the lungs. Injury No.2 was incised wound 5”x2” deep. Its edges were clean cut and underlying lung was visible. Injury No.3 and 4 are on the right forearm. Injury No.5 is below the knee on the tibia, and injury No.6 is also below injury No.5 on the right knee. Injury No.7 was on the ankle, and injury No.8 was fracture of metacarpal bones (Right). Its edges were clean cut and underlying lung was visible. Injury No.3 and 4 are on the right forearm. Injury No.5 is below the knee on the tibia, and injury No.6 is also below injury No.5 on the right knee. Injury No.7 was on the ankle, and injury No.8 was fracture of metacarpal bones (Right). Thus, it is apparent that injury No.1 and 2 which are caused on the chest have proved fatal. Medical Officer Dr. P.C. Patani (P.W.17) opined that the cause of death is haemorrhagic shock and massive traumatic injuries inflicted on various parts of the body including vital parts. 9. We take opinion of the doctor with pinch of salt as from perusal of injury and the Post-Mortem Report, it is evident that the injury which had pierced the lungs is a fatal injury, even through there is no corresponding injury in the abdomen which had caused tear on the liver. Be that as it may, from perusal of the Post-Mortem Report, we are of definite opinion that injury No.1 and 2 had proved fatal. We have already reproduced the written report (Ex.P/1) by translating the same. A perusal thereof, reveal that only accused Chittar has been attributed specific injury on the foot of the deceased Laxman. Thereafter, in the FIR Hanuman (P.W.1) has stated that all the accused had caused injuries to Laxman (the deceased). 10. Now, we shall notice the testimony of Hanuman complainant, an eyewitness who appeared in Court as P.W.1. Hanuman in his testimony stated that “one year ago, it was about 6 or 6.30 P.M., when he alongwith his father was returning from the pond after cattle had taken the water. His father Laxman was going ahead, he was following him. When they reached near the house of Ram Niwas Dakoti and Bhag Chand Dakoti, he saw that Chittar gave an injury of kulhari (axe) on the foot of his father. Lala gave an injury on the ribs, Ratna gave a kulhari (axe) injury on the foot and Satyanarayan caused injury of kulhari (axe) on the waist. Satyanarayan kept his foot on the chest of the father, due to which, intestines (????) came out. Habudi gave an injury with a lathi on the head of his father. Everybody caused injuries. Lala gave an injury on the ribs, Ratna gave a kulhari (axe) injury on the foot and Satyanarayan caused injury of kulhari (axe) on the waist. Satyanarayan kept his foot on the chest of the father, due to which, intestines (????) came out. Habudi gave an injury with a lathi on the head of his father. Everybody caused injuries. The ladies caught hold of the this witness i.e. Hanuman (P.W.1); thereafter, the accused left the spot” and the witneses came to the Police Station Bandar Sindari and lodged the report (Ex.P/1), translation of which has been reproduced above. “Police recorded the statement after other witnesses and also prepared site plan of the spot (Ex.P/2) which was attested by the Hanuman (P.W.1). Police also recovered blood stained earth and simple earth vide memo (Ex.P/3)”. 11. Suwa (P.W.2) another eye witness, appearing in the Court, only stated that on the date of occurrence, he was present in the house, after hearing noise, he came to the spot, brought the injured to the hospital at Kishangarh. This witness has not stated anything so far as the occurrence is concerned. He has not assigned any role to any of the accused. This witness cannot be termed as an eye-witness. 12. Ugmaram (P.W.12) has also not claimed himself to be an eyewitness. He stated that when he came to the place of occurrence, he saw that the dead body of the Laxman was lying. Thus, Suwa (P.W.2) and Ugmaram (P.W.12) have not advanced the case of the prosecution. 13. Testimony of Hanuman (P.W.1) is corroborated by his mother, Smt. Hathudi (P.W.7.A). She stated that after hearing the noise, she came running to the spot and saw that Chittar, Shyoji, Yagya Narain, Lala, Ratna, Satya Narayan, Habudi and four other women had caught hold of Hanuman. They had given injuries to her husband. In all there were seven accused and a women. This witness stated that at spot Chittar, Ratna and Satyanarayan were armed with kulhari (axe). Yagya Naraian was armed with farsi and Jodha, Lala and Shyoji were armed with lathi. This witness has not assigned any specific injury to any accused. 14. Now, we shall refer back to the testimonry of Hanuman (P.W.1) who in his deposition in Court has assigned injuries to the various accused. Yagya Naraian was armed with farsi and Jodha, Lala and Shyoji were armed with lathi. This witness has not assigned any specific injury to any accused. 14. Now, we shall refer back to the testimonry of Hanuman (P.W.1) who in his deposition in Court has assigned injuries to the various accused. As per this witness, Chittar had given a first blow as stated by him in the FIR, i.e. kulhari (axe) blow on the foot of Laxman deceased. Thereafter, Lala gave an injury on the ribs. Satya Naraian gave a kulhari (axe) blow on the waist and when deceased had fallen, Satya Narain had pressed his foot on the chest, due to which, intestines (????) came out. A perusal of the Post-Mortem Report reveals that Injury No.1 is a stab wound and injury No.2 is also an incised injury. Both injuries were caused on the chest. In FIR, Hanuman (P.W.1) state that after Chittar had caused injury on foot, his father fell and everyone caused injury with Kulhari (axe) and Farsi. Tip of Kulhari can cause a stab wound and its blade can cause incised injury. Injury on ribs is specifically attributed to Lala, an accused who has been acquitted by the learned trial Court. Even otherwise, who caused incised or stab injury on chest, it has not been specified. Thus, the author of fatal injury remains unknown, and eight accused have been acquitted. 15. Even though Hanuman (P.W.1) has stated that Satyanarayan had kept a foot on the chest. However, the Post-Mortem Report reveals that a clean cut piercing, injury was present on the chest, causing damage to the lung. There is no crush or blunt injury present on the chest. Thus, assertion of the witness that Satyanarayan had pressed his foot on the chest is not borne out from the medical evidence. Thus, it is apparent that vital injury i.e. Injury No.1 and 2, which proved fatal and caused death of deceased are attributed to Lala, even though weapon with Lala has not been specified. 16. In cross-examination, Hanuman (P.W.1) stated that Lala caused two injuries to his father i.e. Deceased Laxman. 17. Lala has been acquitted by the trial Court and no appeal has been preferred by the State. 16. In cross-examination, Hanuman (P.W.1) stated that Lala caused two injuries to his father i.e. Deceased Laxman. 17. Lala has been acquitted by the trial Court and no appeal has been preferred by the State. Trial Judge in the impugned judgment while acquitting eight co-accused of the appellants had observed as under: - ^^vfHk;qäx.k Jh jru] Jh Nhrj] Jh lR;ukjk;.k ,oa Jh ;Kukjk;.k ds vfrfjä vU; lHkh vfHk;qäx.k ?kVukLFky ij mifLFkr vo'; Fks] fdUrq] muds }kjk fdlh izdkj dh ekjihV ;k muds }kjk dh xbZ ekjihV ls e`rd Jh y{e.k ds 'kjhj ij fdlh izdkj dh pksVs dkfjr gksus dh iqf"V pksV izfrosnu ¼'ko ijh{k.k½ izn'kZ ih@28 ds ek/;e ls ugha gksrh gS vr% ;k rks os rek'kchu ds :i esa ?kVukLFky ij ekStwn Fks ;k chp cpko djus ;k >xM+s ds le; vU; O;fä;ksa ds lkFk fdlh izdkj dk vkijkf/kd d`R; ugha gks tkos bldk iz;kl fd;k gs] vr% bUgsa Hkk-na-la- dh /kkjk 148 ds nk;js esa j[kdj leku vk'k; dh iwfrZ esa cyokbZ gksu sds fy, Hkh nks"kh ugha vkadk tk ldrk gS] fdUrq ;g fuf'pr :i ls dgk tk ldrk gS fd vfHk;qä Jh jru] Jh Nhrj] Jh lR;ukjk;.k ,oa Jh ;Kukjk;.k] Jh y{e.k dh gR;k djus ds vkijkf/kd d`R; esa leku vk'k; dh iwfrZ esa vxzlj Fks vkSj izr;sd vfHk;qä dqYgkfM+;ksa o ;Kukjk;.k us QlhZ ls e`rd Jh y{e.k ds 'kjhj ij ekfeZd vaxks ij de ls de ,d pksV vo'; dkfjr dh gS] buds }kjk ekjh xbZ pksVksa dh izd`fr] rhozrk ,oa xEHkhjrk dks n`f"Vxr j[krs gq, ;g fuf'pr :i ls dgk tk ldrk gS fd bu pkjksa gh vfHk;qäx.k dk ,d gh vk'k; Fkk vkSj og Hkh y{e.k dh gR;k djus ds vfrfjä vkSj dqN ugha FkkA** 18. We are amazed as to how the trial Judge has ignored statement of Hanuman (P.W.1) who had specifically attirubted injury on ribs to Lala and yet acquitted this accused. We are equally astonished as to why the State has not challanged the acquittal of Lala. Since in the present case, occurrence had taken place fourteen years ago, we shall be hesitant to take suo moto notice qua the acquittal of Lala and others. 19. We are equally astonished as to why the State has not challanged the acquittal of Lala. Since in the present case, occurrence had taken place fourteen years ago, we shall be hesitant to take suo moto notice qua the acquittal of Lala and others. 19. Be that as it may, learned Public Prosecutor could not satisfy us that after acquittal of Lala who out of the four accused can be termed as an author of the fatal injury i.e. injury No. 1 and 2 on the chest of deceased Laxman, how an offence under Section 302 IPC is made out ? 20. Now, it is settled legal position that if author of the fatal injury is not known, and one accused has been acquitted, or author of the fatal injury has been acquitted, remaining accused shall not be responsible for murder, but for causing grievous injury. 21. In Baul and another vs. The State of Utter Pradesh (AIR 1968 Supreme Court 728), Hon'ble Apex Court has held as under : - “7. No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathies. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the injuries caused by Sadhai were of the character which will bring his case within S. 302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. We think that his conviction can be safely rested under S. 325 of the Indian Penal Code, but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that were caused to the deceased. We convict him instead of S. 302 for an offence under S. 325, Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years. As regards Baul his instigation was likely to result in the kind of injury which was caused to the deceased. The least that could have happened was a grievous injury. In these circumstances, we do not think that there is any room for interference in his case. His appeal must therefore be dismissed.” 22. In Karnail Singh vs. State of Punjab (1976) 4 Supreme Court Cases 816, Hon'ble Apex Court considered the same issue and held as under :- “2. The prosecution case regarding the assault by the appellant Karnail Singh on Sarwan Singh deceased has been proved beyond reasonable doubt by the two courts below. The short question for consideration in this case is as to what is the nature of the offence that the appellant has committed. As Zora Singh has been acquitted the charge under Section 302/34 I.P.C. disappears and the question now is as to what offence the appellant, who alone must have assaulted the deceased, has committed. In view of the acquittal of Zora Singh there is no evidence to show as to what particular injury was caused on the deceased by the appellant although he was armed with Kirpan. In these circumstances, it is not possible to convict the appellant under Section 302 I.P.C. simpliciter. As however it is indisputable that the accused was armed with Kirpan and used the same in assaulting the deceased, the accused must be held to have committed on offence under Section 326, viz., the offence of grievous hurt, because an injury which was caused was dangerous to life, which ultimately resulted in the death of the deceased. As however it is indisputable that the accused was armed with Kirpan and used the same in assaulting the deceased, the accused must be held to have committed on offence under Section 326, viz., the offence of grievous hurt, because an injury which was caused was dangerous to life, which ultimately resulted in the death of the deceased. For these reasons we, therefore, allow this appeal to this extent that the conviction of the appellant is altered from one under Section 302 I.P.C. to that under Section 326 I.P.C. and the sentence Is reduced from life imprisonment to 7 years' Rigorous Imprisonment.” 23. In State of Rajasthan vs. Kishan Singh & Ors. (2002) 10 SCC 160, it has been held as under :- “5.-----------------------. When the author of the fatal injury becomes doubtful- whether it was one of the accused-respondents before us or one of the accused acquitted by the trial court, against whose acquittal the State never filed any appeal, it would be difficult to find either Kishan Singh or Hem Singh guilty of causing that injury. No fault can, therefore, be found with the judgment of the High Court in acquitting the respondents of the charge under Sections 302/34 IPC. We are not satisifed that common intention to cause death of deceased Mastan Singh can be attirbuted to the respondents on the basis of evidence on the record. We agree with the High Court that the evidence in that behalf is completely lacking and discrepant. That being the position, both Kishan Singh and Hem Singh could only be convicted for the acts committed by them and as disclosed by the first informant at the earliest point of time. The injuries so attributed to them bring their case only under Sections 324/34 IPC and they were rightly convicted and sentenced for those offences by the High Court. In our opinion, the judgment of the High Court is well reasoned and based on proper appreciation of evidence. The acquittal of the respondents for the offence under Sections 302/34 IPC is well merited. It does not call for any interference at our hands. The appeal against acquittal is, accordingly, dismissed.” 24. In our opinion, the judgment of the High Court is well reasoned and based on proper appreciation of evidence. The acquittal of the respondents for the offence under Sections 302/34 IPC is well merited. It does not call for any interference at our hands. The appeal against acquittal is, accordingly, dismissed.” 24. In view of the settled legal position which has been noticed above by us, we are of the view that since the author of the fatal injury is not known, and one of the accused has been acquitted, and no appeal against the acquittal has been filed by the State, then, the remaining accused shall be responsible for causing grievious injury and not for offence of murder readwith section 34 IPC or with aid of Section 149 IPC. 25. Consequently, we set aside the conviction of the appellants for offence under Section 302 read with Section 34 IPC, and sentence of life imprisonment awarded on this score. However, we convert the offences from Sections 302/34 IPC to Sections 326/34 IPC and sentence the appellants to seven years of rigrous imprisonment, and order them to pay a fine of Rs. 20,000/- each. In default of payment of fine, the appellants shall further undergo two years Rigrous imprisonment. The fine so depsoited shall be paid as compensation to the legal heirs of the deceased.