JUDGMENT : 1. By the present appeal, the appellants (hereinafter referred to as, “the accused” for the sake of brevity) are challenging judgment and order of conviction dated 15.1.2005 passed by learned Additional Sessions Judge, Washim in Sessions Trial No.35/2000. 2. By the impugned judgment and order of conviction, all the accused persons were convicted for offences under Section 324 read with Section 34 and under Section 304 Part II read with Section 34 of the Indian Penal Code. For offence under Section 324 read with Section 34 of the Indian Penal Code, accused Hari was directed to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.5000/-. Whereas, for the said offence under Section 324 read with Section 34 of the Indian Penal Code, accused Rameshwar and Tulsiram were directed to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.3000/- by each of them. For offence under Section 304 Part II read with Section 34 of the Indian Penal Code, all the accused persons were directed to suffer rigorous imprisonment for 5 years and to pay a fine of Res.5000/- by each of them. 3. I have heard learned counsel Shri Shashibhushan Wahane for the appellants and learned Additional Public Prosecutor Shri S.M.Ukey for the respondent/State. Both learned counsel took me through record and proceedings and notes of evidence of the case. 4. According to learned counsel for the appellants, the conviction imposed upon the appellants for offence under Section 304 Part II of the Indian Penal Code is erroneous if evidence of Dr.Sandesh Sawairam Rathod (PW10) is considered in its correct perspective. He submitted that evidence of Dr.Rathod shows that since injury of deceased Ambadas was not properly managed that has resulted into death of Ambadas, if that be so, the appellants cannot be held responsible for death of Ambadas. According to him, at the most the appellants can be convicted for offence under Section 324 read with Section 34 of the Indian Penal Code. He submitted that the appellants have already undergone in jail for 12 months. He, therefore, submitted that the appellants be awarded jail sentence which they have already undergone. 5. Per contra, learned Additional Public Prosecutor Shri S.M.Ukey for the respondent/State submitted that due to assault made by the accused, Ambadas suffered injury which was caused his death. He, therefore, submitted that the appeal be dismissed. 6. He, therefore, submitted that the appellants be awarded jail sentence which they have already undergone. 5. Per contra, learned Additional Public Prosecutor Shri S.M.Ukey for the respondent/State submitted that due to assault made by the accused, Ambadas suffered injury which was caused his death. He, therefore, submitted that the appeal be dismissed. 6. On 14.12.1999, Police Sub Inspector Samual Anthony Jems (PW7) was attached to Washim Police Station and was night duty officer. At 8:00 p.m., Raju Ambadas Wabale (PW1) came to the police station and lodged his oral report which was reduced into writing. The said oral report is at Exhibit 33. Samuel registered offence against the accused persons vide Crime No.373/1999 for offence under Section 324 read with Section 34 of the Indian Penal Code. Printed First Information Report is at Exhibit 51. After registration of the offence, injured Raju and Ambadas, the deceased, were referred to Washim General Hospital under memos 52 and 53. Investigation was given to Police Head Constable B.No.117. 7. After investigation being entrusted to Police Head Constable Digambar Paikuji Tilaram (PW9), on 15.12.1999 he went to village Ganeshpur. Raju (PW1) was not present in the house. He prepared spot panchnama (Exhibit 36) in presence of two panchas. Spot of incident was a public place in front of house of accused persons. On 16.12.1999, he arrested all the accused persons and seized an axe from accused Hari and sticks from accused Rameshwar and Tulsiram. Seizure panchnama seizing the axe is at Exhibit 42. Whereas, seizure panchnamas seizing the sticks from accused Rameshwar and Tulsiram are at Exhibits 40 and 41. On 25.12.1999, Ambadas expired. Therefore, the offence was converted for the offence punishable under Section 302 of the Indian Penal Code and investigation was handed over to Assistant Police Inspector Bharat Anandrao Rakshakar (PW12). 8. After the investigation was entrusted, again Bharat Rakshakar (PW12) visited spot of incident. He conducted inquest (Exhibit 38) over dead body. After completion of other usual investigation, he filed charge-sheet in the Court of learned Jurisdictional Magistrate. Learned Jurisdictional Magistrate found that the offence is exclusively triable by the Court of Sessions and, therefore, learned Magistrate committed the case to the Court of Sessions. 9. After the case was committed to the Court of Sessions, the said was registered as Sessions Trial No.35/2000. Learned Jurisdictional Magistrate found that the offence is exclusively triable by the Court of Sessions and, therefore, learned Magistrate committed the case to the Court of Sessions. 9. After the case was committed to the Court of Sessions, the said was registered as Sessions Trial No.35/2000. Learned Sessions Judge, Washim framed charge against the accused persons for offence under Section 302 read with Section 34 of the Indian Penal Code for committing murder of Ambadas. The accused persons were also charged for offence under Section 324 read with Section 34 of the Indian Penal Code for assaulting Raju (PW1) and Smt.Kalavati Ambadas Wavale (PW5). All the accused persons abjured their guilt and claimed for their trial. 10. In order to bring home the guilt of the accused persons, the prosecution examined in all 12 witnesses and also relied upon various documents duly proved during the Course of the Trial. 11. After a full dressed trial, learned Judge of the Court below acquitted the accused persons of offence under Section 302 read with Section 34 of the Indian Penal Code. Against their acquittal of the said offence, the State chose not to prefer appeal. The accused persons were convicted for offences under Section 324 read with Section 34 and under Section 304 Part II read with Section 34 of the Indian Penal Code, as observed in the opening paragraph of this judgment. Hence, this present appeal. 12. Oral report (Exhibit 33) is lodged by Raju Wabale (PW1). He is son of deceased Ambadas and an injured person. As per the oral report, appellant Hari was holding axe. Whereas, appellants Rameshwar and Tulsiram were holding sticks. As per the First Information Report, first informant was assaulted by Hari by means of axe. Whereas, Ambadas, the deceased, was assaulted by means of sticks. Similarly, Smt.Kalavati Wavale (PW5), the mother of the first informant, was also assaulted when she tried to intervene. Ultimately, they were rescued by prosecution witnesses Bajirao Savant (PW3) and Dagdu Shivaji Kalwe. 13. Though the incident of assault occurred on 14.12.1999, Ambadas expired on 25.12.1999 i.e. after a period of 11 days. Ambadas and Raju (PW1), the injured, were sent for medical examination. On 14.12.1999, they both were examined by Dr.Sandesh Rathod (PW10) at Washim Rural Hospital. Ultimately, they were rescued by prosecution witnesses Bajirao Savant (PW3) and Dagdu Shivaji Kalwe. 13. Though the incident of assault occurred on 14.12.1999, Ambadas expired on 25.12.1999 i.e. after a period of 11 days. Ambadas and Raju (PW1), the injured, were sent for medical examination. On 14.12.1999, they both were examined by Dr.Sandesh Rathod (PW10) at Washim Rural Hospital. On examining Ambadas, Dr.Sandesh Rathod found following 3 injuries on the person of Ambadas: “(i) contusion injury 3x3 cm over right knee joint; (ii) contusion 2x2 cm over left temporal region, and (iii) contusion 2x2 cm over right side of chest.” According to the doctor, the said 3 injuries are caused by hard and blunt object like stone and stick. Injury certificate of Ambadas is at Exhibit 59. On examining Raju, Dr. Sandesh Rathod found following 2 injuries on the person of Raju: “(i) lacerated wound ½ x 3 cm over scalp and (ii) pariatal region and contusion ½ x 7 cm over left scapular region.” Injury certificate of Raju is at Exhibit 60. 14. After the death of Ambadas, his body was sent for postmortem on 26.12.1999 and Dr.Sandesh Rathod (PW10) himself performed postmortem over the dead body. Postmortem report is at Exhibit 61. 15. During the course of Trial, from line of cross-examination of first informant Raju (PW1) the accused persons took a defence that on the day of the incident their cattle got frightened and started running here and there and that caused injuries to Ambadas, the deceased, and Raju, the injured and when they tried to control the cattle, in that process they fell on the ground. Looking to the nature of the injuries and in the light of the evidence of Dr.Sandesh Rathod (PW10), the defence is very feeble and cannot be accepted. 16. Insofar as assault on Ambadas, the deceased, and Raju (PW1), the injured, apart from evidence of Raju (PW1) the prosecution examined Bajirao Savant (PW3); Keshaorao Surve (PW4), and Smt.Kalavati Wavale (PW5), the widow of Ambadas. Their evidence has remained unshaken in respect of the assault made by the accused persons on Ambadas and Raju. 17. Question, that this Court is required to answer, is as to whether learned Judge of the Court below was right in convicting the accused persons for offence under Section 304 Part II of the Indian Penal Code. 18. Their evidence has remained unshaken in respect of the assault made by the accused persons on Ambadas and Raju. 17. Question, that this Court is required to answer, is as to whether learned Judge of the Court below was right in convicting the accused persons for offence under Section 304 Part II of the Indian Penal Code. 18. On 14.12.1999, when Dr.Sandesh Rathod (PW10) examined Ambadas, the deceased, he found 3 contusions which are mentioned at Exhibit 59. Perusal of Exhibit 59 shows that Ambadas was referred for X-Ray of Chest. Further, Exhibit 59 is completely silent about the doctor noticing any bleeding injury to Ambadas. Evidence of the doctor shows that on 15.12.1999 Ambadas did not attend OPD for X-Ray because there was technical problem in X-Ray Machine and, therefore, X-Ray was advised from Akola. His evidence shows that, thereafter, the patient did not attend Rural Hospital, Washim. As per evidence of first informant Raju (PW1), the injured, he and his father were admitted to the hospital and they were discharged. His evidence shows that after discharge, since his father was not feeling well, he was taken for treatment to Deshmukh Hospital at Civil Lines. There also, he and Ambadas were admitted. Thereafter, they were discharged. For the reasons best known to the prosecution, record in respect of the admission at Deshmukh Hospital, is not filed on record. Raju's evidence further shows that after discharge from Deshmukh Hospital, Ambadas was taken to one Dr.Murlidhar Chandwani at Kanergaon. The said doctor was also not examined by the prosecution during the Trial. 19. According to the autopsy surgeon, when Ambadas, the deceased, was brought before him on 14.12.1999, he advised X-Ray of knee and chest, even contemporary document Exhibit 59 also shows the same. His evidence shows that fracture to skull is observed only after taking X-Ray of the skull. The death occurred as per postmortem report Exhibit 61 due to Intra Cranial Haemorrhage because of fracture of occipital parietal bone. The postmortem report shows that at the time of performing postmortem autopsy surgeon found fresh blood at the site of wound. Dr.Sandesh Rathod (PW10) in his examination-in-chief itself did state that if some complications occur in brain because of injuries, as referred at Exhibit 59, a person may die if left untreated within 12-15 days. The said evidence postulates that the injuries mentioned at Exhibit 59 were required proper management. Dr.Sandesh Rathod (PW10) in his examination-in-chief itself did state that if some complications occur in brain because of injuries, as referred at Exhibit 59, a person may die if left untreated within 12-15 days. The said evidence postulates that the injuries mentioned at Exhibit 59 were required proper management. 20. From the evidence as available on record, it is clear that injuries, mentioned at Exhibit 59, received by Ambadas, the deceased, were not properly taken care of. In absence of any documentary evidence, in respect of the admission and discharge, as claimed by first informant Raju (PW1), the injured, it is really difficult to hold that Ambadas was admitted in the hospital that gives ample room for deducing interference that there was no proper management of the injuries caused in the assault on 14.12.1999. Had there was proper management of the injuries, life of Ambadas could have been saved. 21. All the material prosecution witnesses did state that only accused Hari was holding an axe and other accused persons Rameshwar and Tulsiram were having sticks in their hands. No prosecution witness claimed that Ambadas, the deceased, was assaulted by Hari. The material prosecution witnesses did state that Ambadas was assaulted by Rameshwar and Tulsiram. Motive, according to Raju (PW1), the injured, was that in the year 1984 the accused persons committed murder of one person and in that connection they faced sessions trial and to defend themselves they sold their land to one Radhakisan, however they were not handing over possession to said Radhakisan. Therefore, said Radhakisan took police aid and on 8.12.1999 Washim police came and gave possession of accused persons' land to Radhakisan. According to Raju, said Radhakisan was known to Ambadas and, therefore, he offered a cup of tea to him. The said was reason for the accused persons to nurture grudge against Ambadas, resulting into assault on 14.12.1999. Also, neither the prosecution bother to place on record anything to show that the accused persons were earlier tried in murder trial nor the prosecution took any effort to file copy of the same on record to show that the accused persons sold their land to Radhakisan and in pursuance to the said the possession was obtained by Radhakisan from the accused persons. Therefore, though Raju tried to introduce an aspect of motive for the prosecution case, the said motive is not at all proved by the prosecution. Therefore, though Raju tried to introduce an aspect of motive for the prosecution case, the said motive is not at all proved by the prosecution. 22. In absence of motive, it appears to me that on the day of the incident, if the entire prosecution case is read in its entirety, quarrel took place and in that first informant Raju (PW1), the injured, and Ambadas, the deceased, were assaulted by the accused persons. However, for the reasons and in the light of evidence as discussed above, I am of the opinion that Ambadas expired due to improper management of the injuries. Therefore, in my view, the present prosecution case even for the assault on Ambadas cannot travel beyond offence under Section 324 read with Section 34 of the Indian Penal Code. 23. Record shows that after registration of the crime for offence under Section 324 read with Section 34 of the Indian Penal Code, the accused persons were arrested on 16.12.1999 and on the next day they were released on bail. However, they were again arrested on 29.12.1999 after offence under Section 302 of the Indian Penal Code was added. They were in jail till 12.10.2000. This Court in Criminal Application No.1269/2000 on 12.10.2000 granted bail to them and ultimately they stepped out of the jail on 12.10.2000. Thus, from 29.12.1999 to 12.10.2000 the accused persons were in jail. The judgment and order of conviction was delivered by learned Judge of the Court below on 15.1.2005. In this appeal, they were released on bail on 17.3.2005. Thus, post conviction also they were in jail. Their total incarceration in jail was for one year. The incident is of the year 1999. Therefore, in my view, looking to totality of circumstances, some leniency can be shown in favour of the appellants though they are held guilty for commission of offence under Section 324 read with Section 34 of the Indian Penal Code, by reducing the jail sentence from 3 years to the period which they have already undergone in jail. Consequently, I pass following order: ORDER (i) The criminal appeal is partly allowed. (i) The appellants are acquitted of offence under Section 304 Part II read with Section 34 of the Indian Penal Code. Instead, they are convicted for offence under Section 324 read with Section 34 of the Indian Penal Code for making the assault on Ambadas, the deceased. Consequently, I pass following order: ORDER (i) The criminal appeal is partly allowed. (i) The appellants are acquitted of offence under Section 304 Part II read with Section 34 of the Indian Penal Code. Instead, they are convicted for offence under Section 324 read with Section 34 of the Indian Penal Code for making the assault on Ambadas, the deceased. (iii) The conviction of the appellants for offence under Section 324 read with Section 34 of the Indian Penal Code for assaulting Raju (PW1) is hereby maintained. However, for the aforesaid offence instead of 3 years, jail sentence shall be the period which the appellants have already undergone in jail, both the sentences are directed to run as concurrently. (iv) Fine amount is maintained.