JUDGMENT : 1. The appellants herein have preferred the instant appeal under Section 389 CrPC assailing the judgment dated 18.07.2019 passed by the learned Additional Sessions Judge, Kherwara, District Udaipur in Sessions Case No. 17/2016, whereby they have been convicted and sentenced as below:- Name of the Accused -appellant Offence for which convicted Sentence awarded (1) Keshu (2) Narayan Section 302 IPC Life imprisonment alongwith a fine of Rs. 10000/- and in default of payment of fine, further to undergo simple imprisonment of 1 year Section 323 IPC Simple imprisonment of 3 months Section 341 IPC Simple imprisonment of 1 month All the substantive sentences were ordered to run concurrently. 2. Mr. Deepak Menaria, the learned counsel representing, the appellants, urged that the appellants herein are in custody since March 2012. He urged that even if the prosecution allegations are accepted to be true on the face of the record, apparently, conviction of the appellants herein for the charge under Section 302 IPC cannot be sustained. In this regard, Mr. 2. Mr. Deepak Menaria, the learned counsel representing, the appellants, urged that the appellants herein are in custody since March 2012. He urged that even if the prosecution allegations are accepted to be true on the face of the record, apparently, conviction of the appellants herein for the charge under Section 302 IPC cannot be sustained. In this regard, Mr. Menaria drew the court's attention to the following findings recorded by the trial court in the impugned judgment and urged that it was a clear case of free fight between the two parties under the influence of liquor: ^^bl Ádkj gLrxr Ádj.k esa vfHk;kstu lk{; ds vuqlkj rhu ?kVuk,a vyx&vyx LFkkuksa ij fujUrjrk esa gqbZ gSA ;s rhuksa gh LFkku ikl gSA tSlk fd Åij foospu fd;k tk pqdk gS fd xokg ihM&1 'kadj viuh ftjg esa ;g Lohdkj djrk gS fd ^^------eqyfteku o gekjs vkeus&lkeus dh tks yMkbZ gqbZ mlesa gekjs lkFk&lkFk eqyfteku ds Hkh pksVsa vk;h Fkh------A** xokg ihM&4 yksds'k us Hkh viuh ftjg esa ;g Lohdkj fd;k gS fd ^^-----;g dguk lgh gS fd ge nksuksa i{kks ds chp blh fnukad] blh le; o blh ?kVuk dks ysdj vkeus&lkeus gqbZ yMkbZ ds Øksl eqdnes ntZ gq, Fks----A** vuqla/kku vf/kdkjh ihM&24 vejflag us viuh ftjg esa ;g Lohdkj fd;k gS fd ^^-----;g dguk lgh gS fd eSaus esjs vuqla/kku esa Ádj.k la[;k 106@12 o 107@12 esa vkeus&lkeus ds >xM+s esa nksuksa i{kksa dks nks"kh ekurs gq, nksuksa i{kksa ds fo:) vkjksi i= is'k fd;s Fks----A** bl Ádkj lHkh xokgksa fo'ks"k rkSj ij vuqla/kku vf/kdkjh ihM&24 vejflag vkeus&lkeus dk >xM+k gksuk eku jgs gSA nksuksa gh i{kksa dk 'kjkc dk lsou fd;s gq, gksuk Hkh lk{; esa vk;k gSA vr% lkekU; mn~ns'; ds vxzlj.k esa mDr ?kVuk dkfjr gqbZ gks] ;g mijksDr U;kf;d n`"VkUr dh jks'kuh esa ugha ekuk tk ldrk gS] lkFk gh lk{; dk lexz foospu djs rks vfHk;kstu ,slh ifjfLFkfr;ksa ;k rF; LFkkfir ugha dj ldk gS fd vfHk;qDrx.k dk ?kVuk dkfjr fd;s tkus ds laca/k esa dksbZ lkekU; mn~ns'; jgk gksA gLrxr Ádj.k dh ifjfLFkfr;ksa esa vfHk;qDrx.k }kjk tks d`R;@dk;Z fd;k x;k gS rFkk e`rd fd'ku dks tks pksVs vk;h gS] os lkekU; mn~ns'; ds vxzlj.k esa fd;k gqvk dk;Z ugha ekuk tk ldrk gSA vr% mDr fLFkfr esa /kkjk 149 HkkŒnŒlaŒ ds vko';d rRo bl Ádj.k esa fo|eku gksuk ugha ik;s tkrs gSA** 3. He submitted that after holding that the incident took place as a free fight and that both the parties had lodged cross cases against each other, the learned trial court acquitted the accused of the charge under Section 149 IPC. Mr. Menaria submitted that as per the highest allegation of the prosecution eye-witnesses, the accused Narayan is alleged to have inflicted an iron wire clad lathi blow on the head of the deceased Kishan, whereas the accused Keshu is alleged to have inflicted a blow of a knuckle duster on the head of the deceased. Mr. Menaria submitted that as per the deposition of medical jurist Dr. Sushank Wanawat (P.W. 8) and the postmortem report Ex. P/19, two fractures were found existing on the head area of the deceased: 1. fracture of frontal bone just above right orbit bone. 2. fracture of parieto-occipital bone junction right side. He submitted that as per the postmortem report, only one lacerated wound admeasuring 1 cm x 1 cm was noticed by the doctor on the parieto-occipital bone junction and thus, the case of the eye-witnesses that both the accused inflicted one blow each on the head of the deceased is totally contradicted by the medical testimony. He further submitted that all the accused persons, namely, Narayan, Keshu, Naku and Shiva, received numerous injuries in the very same incident, for which, no explanation was offered by the prosecution witnesses. He, thus, urged that it cannot be pin-pointed from the prosecution evidence that which of the accused appellants was responsible for causing the solitary external injury on the head of the deceased which proved fatal and therefore, conviction of both the appellants for the charge under Section 302 IPC cannot be sustained. Thus, conviction of the appellants deserves to be altered to one under Section 325 IPC or Section 304 Part II IPC. On these grounds, Mr. Menaria implored the court to accept the appeal, set aside the impugned judgment and reduce the sentence awarded to the appellants while suitably toning down the offence alleged. 4. The Learned Public Prosecutor, on the other hand, vehemently and fervently, opposed the submissions advanced by the appellant's counsel. On these grounds, Mr. Menaria implored the court to accept the appeal, set aside the impugned judgment and reduce the sentence awarded to the appellants while suitably toning down the offence alleged. 4. The Learned Public Prosecutor, on the other hand, vehemently and fervently, opposed the submissions advanced by the appellant's counsel. However, he too was not in a position to dispute the fact that the trial court, itself acquitted the four other accused persons holding that the case was of free fight between the two parties, who quarreled with each other under the influence of liquor. In this melee, the accused also received a number of injuries and these injury reports were proved as Ex. D/5 to Ex. D/8. The prosecution witnesses have not given any plausible explanation for the injuries caused to the accused in this incident. On appreciating the evidence of the eye-witnesses Shankar (P.W. 1) and Lokesh (P.W. 4), it is clear that they have consistently alleged that the accused Narayan was having an iron clad lathi, whereas the accused Keshu was having a clip (knuckle duster) and both inflicted blows by their respective weapons on the head of Kishan. The Medical officer Dr. Sushank Wanawat (P.W. 8), who was one of the members of the medical board, which conducted postmortem upon the body of the deceased, deposed that when autopsy was conducted, a lacerated wound admeasuring 1 cm x 1 cm was noticed behind the head of the deceased and a bruise was noticed on his nose. Manifestly, thus, the allegation of the prosecution witnesses that both the accused inflicted blows on the head of the deceased is contradicted by the medical testimony. It is also significant to note here that the medical officer did not express any opinion in his evidence that the head injury noticed on the person of the deceased was sufficient in the ordinary course of nature to cause death. We may note that non-expression of opinion by the medical officer cannot come in the way of the court to draw its own conclusion regarding the nature of the injury, whether the same was sufficient in the ordinary course of nature to cause death or not. We may note that non-expression of opinion by the medical officer cannot come in the way of the court to draw its own conclusion regarding the nature of the injury, whether the same was sufficient in the ordinary course of nature to cause death or not. However, even if it is assumed for a moment that the injury of the deceased Kishan was sufficient in the ordinary course of nature to cause death, then also, in our opinion, there is a clear shortcoming in the prosecution case regarding the fixing of liability for the said injury upon either of the accused. The discrepancy in this regard is manifest because the prosecution eye-witnesses have alleged that both the accused were responsible for inflicting one head injury each to the deceased, but this aspersion is contradicted by the medical evidence as only one external injury ad measuring 1 cm x 1 cm was noticed on the skull region of the deceased as per the postmortem report (Ex. P/19). 5. In this background and after evaluating the over all facts and circumstances as available on record, we are of the view that conviction of the appellants recorded by the trial court for the offence under Section 302 IPC cannot be sustained and instead the same deserves to be altered and toned down to Section 304 Part II IPC. 6. Accordingly, the appeal deserves to be and is hereby allowed in part. The impugned judgment dated 18.07.2019 passed by the learned Additional Sessions Judge, Kherwara, District Udaipur in Sessions Case No. 17/2016 is modified in the terms that the conviction of the appellants Keshu and Narayan as recorded by the trial court for the offence under Section 302 IPC is altered to one under Section 304 Part II IPC and on this count, each of the appellant is sentenced to undergo rigorous imprisonment for a period of 8 years and to pay a fine of Rs. 5000/- each and in default of payment of fine, they shall further undergo simple imprisonment of 3 months. The conviction of the appellants for the offences under Sections 323 and 341 as recorded by the trial court and the sentences awarded on these counts is maintained. 7. The record be returned to the trial court.