JUDGMENT : Deepak Maheshwari, J. 1. This Appeal has been filed by the accused appellant Prabhu S/o Mangla, resident of Paniwala Gadh, District Banswara, assailing the judgment dated 17.11.1992 passed by learned District and Sessions Judge, Banswara in Sessions Case No. 54/1989 whereby learned Trial Court acquitted the accused appellant for the offence punishable under Sections 302 and 451 I.P.C. while convicting him for the offence punishable under Part-1 of Section 304 I.P.C. and sentenced him to undergo rigorous imprisonment for ten years as also with a fine of Rs. 200/- and further to undergo two months rigorous imprisonment in default of payment of fine. 2. Briefly stating the facts are that on 19.1.1989, one Bhema gave oral information at Police Station Sadar, Banswara that on hearing some noise of quarrel at about 8.00 p.m., he rushed towards the house of Kamji along with brother Kaliya and found that Kamji was lying on the ground and it was bleeding over his left eye and he was unconscious. Bharma S/o Manji and wife of Kami-Smt. Raju was standing nearby. They told him that when Kamji and Bharma were talking with each other, accused Prabhu came there and started abusing Kamji. Bharma intervened, then, Kamji went away to some distance and started abusing him from there. When Kamji and Bharma came out of House, Prabhu threw one stone aiming at kamji, which hit him on his left eye. Kamji fell down and became unconscious. It was also stated that there was some altercation between Kamji and Prabhu in day time on account of which Prabhu inflicted injury on Kamji. 3. On this oral information, F.I.R. No. 35/1989 under Sections 448, 323 and 308 I.P.C. was registered and investigation was commenced. During investigation, Kamji succumbed to the injury and died, therefore, Section 302 was also added. Injured Kamji was medically examined and on his death postmortem was conducted. Site plan was prepared. Stone by which injury was inflicted and simple soil and control soil was also seized on the spot. 4. After completing investigation, charge-sheet under Sections 302 and 448 was submitted before the concerned Trial Court against the accused appellant. 5. Learned Trial Court framed charge against accused appellant Prabhu for the offence punishable under Sections 451 and 302 I.P.C. after hearing both the sides. Accused appellant Prabhu denied the charges and claimed trial. 6. 4. After completing investigation, charge-sheet under Sections 302 and 448 was submitted before the concerned Trial Court against the accused appellant. 5. Learned Trial Court framed charge against accused appellant Prabhu for the offence punishable under Sections 451 and 302 I.P.C. after hearing both the sides. Accused appellant Prabhu denied the charges and claimed trial. 6. During trial, prosecution got seven witnesses examined and 13 documents were got exhibited. Accused appellant Prabhu was examined under Section 313 Cr.P.C. in the light of the prosecution evidence. He denied the statements of prosecution witnesses. No evidence was produced before the Trial Court from the defense side. 7. After hearing arguments of both the sides and considering the evidence on record, learned Trial Court passed the impugned judgment dated 17.11.1992 as narrated above. 8. By way of this appeal, accused appellant Prabhu has assailed the said judgment. 9. During the course of arguments, learned Counsel for the accused appellant has submitted that the prosecution has miserably failed to bring home the guilt against the accused. PW-1 Bhem, who is complainant and PW-2 Kaliya, who is alleged to rush to the spot along with Bhem, have admitted during their cross-examination that occurrence did not take place in their presence. PW-6 Bharma, who is also alleged to be present with deceased Kamji at the time of occurrence has turned hostile and has not supported the prosecution story. Only PW-7 Smt. Raju, who is wife of deceased Kamji, has corroborated the prosecution story, who is an interested witness. She has also not stated that Prabhu threw the stone while aiming at kamji. It has also been argued that PW-5 Dr. Bajrang Singh has not stated that injury caused by accused was sufficient to cause death. Also, there is discrepancy about fracture found on the frontal bone at left orbit of the deceased between X-ray report Ex.P-13 and post-mortem report Ex.P-9, therefore, prosecution has failed to prove that when and under what circumstances, this bony injury was caused to deceased Kamji, which is said to be the cause of death. 10. Learned Counsel for the accused appellant has placed reliance upon the following judgments 1. Sakir Mohammed @ Sakir Hussain v. State of Rajasthan, reported in 1983 Cr.L.R. (Raj.) p.707 2. State of Rajasthan & Ors. v. Laldeen & Ors. reported in 1997 (Supp.) Cr.L.R. (Raj.) p.232 3. 10. Learned Counsel for the accused appellant has placed reliance upon the following judgments 1. Sakir Mohammed @ Sakir Hussain v. State of Rajasthan, reported in 1983 Cr.L.R. (Raj.) p.707 2. State of Rajasthan & Ors. v. Laldeen & Ors. reported in 1997 (Supp.) Cr.L.R. (Raj.) p.232 3. State of Rajasthan v. Shivaram @ Shivlal & Ors., reported in 1980 Cr.L.R. (Raj.) p.389 4. Babu Lal & Ors. v. State of Madhya Pradesh, reported in 1993 Cri.L.J. p. 2667 5. Chhota Singh & Ors. v. State of Rajasthan, reported in 2011(1) Cr.L.R. (Raj.) p. 479 6. Bhanwaria v. State of Raj., reported in 2011(1) Cr.L.R. (Raj.) p.579 7. Pappu @ Sudhir v. State of Rajasthan, reported in 2012(4) Cr.L.R. (Raj.) p. 1857 8. Dharm Singh v. State of Rajasthan, reported in 2013(2) Cr.L.R. (Raj.) p. 572 11. While citing the above judgments, learned Counsel for the accuse appellant argued that in these circumstances, no charge is proved against the accused appellant beyond doubt for the offence punishable under Section 304 Part-1 I.P.C. 12. In alternative, it is also argued that if at all the charges are considered to be proved, considering the fact that occurrence is almost 27 years old, a lenient view should be taken against the accused appellant and he be given the benefit for the period of sentence already undergone by him. 13. Per contra, learned Public Prosecutor has vehemently opposed the arguments advances by learned Counsel for the accused appellant. While taking the Court to the prosecution evidence, he has submitted that PW-7 Smt. Raju has fully supported the prosecution story and her presence on the spot is not disputed. It is of no avail that she is wife of deceased Kamji and hence, interested witness because she is a natural witness. He has also argued that PW-1 Bhem and PW-2 Kaliya, who reached the spot just after the incident, have also supported the prosecution case while narrating about the injury of deceased Kamji, they saw just after the occurrence. PW-4 Abhay Singh, who is Investigating Officer of the case has also proved the prosecution story. Thus, his prayer is that there is no substance in the appeal and it is liable to be rejected. 14. I have given my thoughtful consideration to the evidence, ocular and documentary, available on record in the light of the rival contentions advances by both sides. 15. Thus, his prayer is that there is no substance in the appeal and it is liable to be rejected. 14. I have given my thoughtful consideration to the evidence, ocular and documentary, available on record in the light of the rival contentions advances by both sides. 15. So far the statement of PW-1 Bhem and PW-2 Kaliya are concerned, it is admitted that they were not present when the occurrence took place. Prosecution story says that after hearing the noise of scuffle, they rushed towards the spot so admittedly they have narrated the scene of occurrence what they observed after reaching there. PW-1 Bhem said that Kamji was lying unconscious. There was bleeding from the injury caused on his forehead near the eye. It is also stated by him that wife of Kamji, who was standing there, told that Prabhu inflicted injury by throwing stone. It is also stated that he lodged the report Ex.P-1 at Police Station. He has also narrated the investigation proceedings like preparation of site plan Ex.P-2, Panchayatnama of dead body Ex. P-3, seizure memo of stone, simple and control blood stained soil Ex.P-4. He has also narrated that during hospitalization, Kamji succumbed to death. In this light, his admission that Prabhu did not inflict injury in his presence cannot be Considered to adversely affect the prosecution story. Same is the case with PW-2 Kaliya, who rushed to the spot along with Bhima. He has also narrated the scene after the incident took place. He has also supported that there was injury on forehead of Kamji and it was bleeding. Both these witnesses have stated that during day hours, bullock of Kamji entered into the agriculture field of Prabhu and this was the origin of incident. It, thus, appears that both these witnesses have supported the prosecution story to the extent they witnessed the scene. 16. PW-3 Dhoolji, who is the witness of preparation of site inspection plan Ex.P-2 and Panchnama Ex.P-3, has also supported the prosecution story. He has also mentioned that police seized the blood stained stone from the scene of occurrence. PW-4 Abhay Singh, who is the Investigating Officer, has fully narrated the steps taken by him during investigation. He has also stated that there was an injury on the forehead of deceased over the left eye. He has supported the preparation of MLC Ex.P-8 and post-mortem report Ex.P-9. PW-4 Abhay Singh, who is the Investigating Officer, has fully narrated the steps taken by him during investigation. He has also stated that there was an injury on the forehead of deceased over the left eye. He has supported the preparation of MLC Ex.P-8 and post-mortem report Ex.P-9. It is significant to note that no question has been put to him during his cross-examination, which goes to indicate that his statement remains completely un-controverted. 17. It is true that PW-6 Bharma has turned completely hostile and has not supported the prosecution case but in the light of the statements given by all other prosecution witnesses, supporting the prosecution story, it appears that he is suppressing the truth. 18. PW-7 Smt. Raju-wife of deceased Kamji, who was also present on the scene of occurrence stated that during day hours, there was some quarrel in between her husband and accused Prabhu and she has further affirmatively narrated that Prabhu inflicted by throwing stone which hit her husband on his eye and because of the hit, it started bleeding and her husband fell down. She has also stated that after hearing the noise of quarrel, Bhem, Kaliya etc. rushed to the spot. During her cross-examination, she deposed that accused threw the stone towards her husband to cause injury. She has denied the suggestion that her husband fell down from the stone on which he was sitting and that caused him the injury rather she has narrated that accused intentionally threw the stone. 19. In light of the above mentioned statements of prosecution witnesses, there is no doubt that incident as narrated by the prosecution side took place and the accused appellant caused injury by throwing stone, which hit deceased Kamji on his forehead. No defence witness has been produced to negate the prosecution case. 20. PW-5 Dr. Bajrang Singh has also affirmed the injury found on the body of deceased Kamji. He has mentioned that lacerated wound of 3cm x ½cm 2x bone deep was found on left side of forehead of Kamji and this was the only injury. He prepared MLC Ex.P-8. On perusal of Ex.P-8, it is found that patient was found unconscious that is why the nature of injury was not mentioned in MLC and opinion was reserved for getting the X-ray done on completion of treatment. He prepared MLC Ex.P-8. On perusal of Ex.P-8, it is found that patient was found unconscious that is why the nature of injury was not mentioned in MLC and opinion was reserved for getting the X-ray done on completion of treatment. It has also been mentioned in the MLC Ex.P-8 that there is no bony injury on skull, still final opinion can be given after completion of treatment. 21. Though, there is no dispute about the incident having taken place as per the prosecution story but still the arguments raised by learned Counsel for the accused appellant needs serious consideration in this regard that there was only one lacerated wound found on forehead of Kamji, which was not sufficient in the ordinary course of nature to cause death. PW-5 Dr. Bajrang Singh has also not stated in his statement that this injury was sufficient in the ordinary course of nature to cause death. As per his statement, the cause of death was head injury with intracranial hemorrhage resulting in increased intracranial hemorrhage. It is also mentioned in PMR Ex.P-9 about this fact and has been further mentioned in it that there is large clotted hemorrhage at left frontal parietal region pressing the brain tissues. He has also mentioned that membrane was not ruptured but brain compressed at left front parietal region. This injury was ante-mortem in nature. PW-5 has admitted that this injury may be caused by blow of stone. During his cross-examination, PW-5 Dr. Bajrang Singh has admitted that he has not mentioned about the fracture of bone in his post-mortem report. Learned Counsel for the accused appellant has highlighted the discrepancy about the bony injury by referring to MLC Ex.P-8 and post-mortem report Ex.P-9 as well as X-ray report Ex.P-13. There is no mention of bony injury in Ex.P-8 and Ex.P-9. In this light, his argument is that there is anomaly in the prosecution evidence about the said injury, which is alleged to be cause of death, creating pressure on the brain tissues. He has advanced the argument that this fact goes to show that somehow the fracture has been caused after medical examination of Kamji and preparation of MLC Ex.P-8 and the prosecution has not established the cause this fracture. Thus, this injury of fracture cannot be attributed to the accused even while accepting the prosecution evidence as it is. He has advanced the argument that this fact goes to show that somehow the fracture has been caused after medical examination of Kamji and preparation of MLC Ex.P-8 and the prosecution has not established the cause this fracture. Thus, this injury of fracture cannot be attributed to the accused even while accepting the prosecution evidence as it is. This arguments has substance and cannot be lightly brushed aside. 22. In view of above, the prosecution side fails to explain the cause of this fracture and to connect it in any way with the injury inflicted by the accused. It created reasonable doubt in the mind that when and under what circumstances this fracture was caused. 23. Secondly, it is admitted case of the prosecution that there was only one injury i.e. lacerated wound of 3cm x ½cm x bone deep found on forehead of Kamji. All the prosecution witnesses have also narrated about this single injury. No one has stated that accused Prabhu tried to cause repeated injuries. He threw only one stone towards Kamji. There is only one witness i.e. PW-7 Smt. Raju who was present at that point of time when the incident took place. Her cross-examination reveals that accused threw the stone to cause injury to Kamji but she has not stated that accused appellant Prabhu specifically aimed while throwing the stone so as to ensure that it hit the deceased on his forehead or any other vital part of the body nor it is a case of prosecution that he threw the stones one after the other. This narration of the incident shows that the stone thrown by accused incidentally hit deceased Kamji on his forehead and ultimately it caused him injury which was found to be fatal. But the whole narration of prosecution evidence, even if it is taken as it is, does not show any intention on the part of the accused to cause death or the intention of causing such bodily injury as he knows to be likely to cause death. It also does not show the intention of the accused to cause such bodily injury, which is sufficient in the Ordinary course of nature to cause death, nor said injury can be considered to be so Imminently dangerous which accused knew that in all probabilities, it must cause death. 24. It also does not show the intention of the accused to cause such bodily injury, which is sufficient in the Ordinary course of nature to cause death, nor said injury can be considered to be so Imminently dangerous which accused knew that in all probabilities, it must cause death. 24. It is also worthy to note that the prosecution evidence is completely missing to explain as to how this fatal bony injury which has been mentioned in the post-mortem report Ex.P-9 but did not find place in MLC Ex.P-8 was caused and how can it be attributed to the accused. In the light of the above discussion, the inference drawn by learned Trial Court that the act of accused appellant comes within the definition of the offence punishable under Part-1 of Section 304 I.P.C. is found to be untenable. 25. In the case of Shakir Mohammed (supra) cited by learned Counsel for the accused licensed appellant, the accused threw a single stone causing death, it was inferred that the knowledge to cause death cannot be attributed to the accused and the accused was held guilty of causing grievous injury punishable under Section 325 I.P.C. only. 26. In the matter in hand also, accused appellant has caused only one injury to the deceased and that too without specifically aiming at him so as to ensure that the stone hits the deceased at some vital part of the body. So the said act of accused cannot be considered sufficient to punish him with the offence punishable under Section 304 Part-1 I.P.C. 27. In the light of the foregoing discussions, the injury caused by the accused appellant can at the most go to the extent of fastening him the liability of the offence punishable under Section 325 I.P.C. Thus the conviction passed by learned Trial Court for the offence punishable under Part-1 of Section 304 I.P.C. is liable to be converted to Section 325 I.P.C. and is accordingly converted. 28. Other judgments cited by learned Counsel for the accused appellant are relating to old incident on account of which it has been found appropriate in the interest of justice to take a lenient view towards the accused. So far as the quantum of sentence imposed against the accused appellant is concerned, the alleged incident has taken place in the year 1989 i.e. 27 years ago. So far as the quantum of sentence imposed against the accused appellant is concerned, the alleged incident has taken place in the year 1989 i.e. 27 years ago. Taking this aspect into consideration as also the fact that the accused appellant has been in judicial custody for the period intervening between 20.1.1989 to 19.4.1989, 22.6.1990 to 23.6.1990 and 17.11.1992 to 11.2.1993, thus, the total period of undergone sentence comes to be about six months. In the totality of the facts and circumstances of t fie case, it appears that the ends of justice would meet if the sentence imposed upon the accused is confined to the period of undergone sentence only. No purpose remains to be served now by sending the accused appellant behind the bars after a long gap of 27 years. Accordingly, while holding the accused appellant Prabhu guilty for offence punishable under Section 325 I.P.C., his sentence is reduced to the period already undergone. His bail bonds are hereby cancelled. The appeal is partly allowed in above terms.