JUDGMENT : ROHIT B. DEO, J. Challenge is to the judgment and order dated 2.11.2006, rendered by the Adhoc Additional Sessions Judge - 3 Nagpur, in Sessions Trial 200 of 2006, by and under which, the appellants - accused are convicted for offence punishable under section 304 part II of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 500/- each. 2. Heard Shri. R.M. Daga, the learned counsel for the accused and Shri. N.R. Patil, the learned Additional Public Prosecutor for the respondent/State. 3. The submission of the learned counsel for the accused Shri. R.M. Daga is two fold. The first submission is that the prosecution has miserably failed to establish that the deceased Ramraj Kulmethe was assaulted by accused Rahul Neware and Sachin Waghmare. The second submission, which is made in the alternate, is that at any rate offence punishable under section 304 part II of the IPC is not made out. The accused Rahul Neware and Sachin Waghmare can at the most be convicted for offence punishable under section 323 of the IPC, is the submission. 4. The learned Additional Public Prosecutor, Shri. N.R. Patil supports the judgment and order impugned. 5. I have carefully scrutinized the evidence on record in the light of the submissions of the learned counsel, and having done so, I am not persuaded to hold that the prosecution has established that the accused Rahul and Sachin assaulted the deceased. 6. PW 4 Dr. Gawande who conducted the autopsy has ruled out death due to assault. PW 4 - Dr. Gawande categorically admits that the death may be natural. No external injury evidencing assault is detected in the post mortem. 7. In the light of the medical evidence on record, if evidence of PW 1 Bablu Bhalavi and PW 2 Gopalkrushna Kulmethe, who are the only material witnesses from the perspective of the prosecution since PW 3 Robbin Judawan who was examined as an eye witness did not support the prosecution, is analyzed, it is difficult to hold with any degree of certainty, that the complicity of the accused Rahul and Sachin in the assault is established beyond reasonable doubt. PW 2 Gopalkrishna who is the uncle of the deceased is the informant. PW 2 Gopalkrishna who is the uncle of the deceased is the informant. The First Information Report (Exh 23) which is lodged with promptitude does not name accused 2 Rahul and accused 3 Sachin as the assailants. Be it noted, that even according to the First Information Report, PW 2 Gopalkrishna received the information from PW 1 Bablu. The learned APP Shri. N.R. Patil invites my attention to the deposition of PW 1 Bablu and contends that PW 1 Bablu has categorically stated in the examination in chief that the deceased was assaulted by accused 1 Vishal Tiwari (deceased appellant 1) and accused Rahul and Sachin. The defence has extracted an admission in the cross-examination that the evidence that accused Rahul and Sachin demanded money is an omission. That apart, the evidence of PW 1 that he witnessed accused Rahul and Sachin assaulting the deceased is not free from doubt since PW 2 Gopalkrishna who lodged the First Information Report on the basis of information received from PW 1 Bablu has not named accused Rahul and Sachin in the First Information Report. 8. The evidence on record brings to the fore that the deceased was habituated to consumption of liquor. It is not necessary for this court to venture in surmises or conjunctures or speculations as regards the death of the deceased. Suffice it to say, in the teeth of the evidence on record, in so far as accused Rahul and Sachin are concerned, their role in the assault, if at all the deceased was assaulted, is not established beyond reasonable doubt. The doubt as regards the prosecution story is only fortified by the medical evidence which rules out assault. 9. On a holistic appreciation of evidence on record, I am not inclined to uphold the conviction and sentence. (i) The judgment and order impugned is set aside. (ii) The accused are acquitted of offence punishable under section 304 part II of the IPC. (iii) The bail bonds of the accused shall discharged. Fine paid by the accused, if any, shall be refunded. (iv) The appeal is allowed.