JUDGMENT Sandeep K Shinde, J. - Aggrieved by the conviction under Section 325 read with 34 of the Indian Penal Code, 1860 and sentence, to suffer rigorous imprisonment for six months and fine of Rs. 1000/- each, accused in the Sessions Case No. 632 / 1994 have preferred this appeal. 2. Pending appeal, Accused no. 2 Shivram, Accused no. 3- Manik and Accused no. 4 - Narayan died. Mr. Sankhe Inspector attached to Wada Police Station, reported this fact. As such appeal abates against them. 3. Briefly stated prosecution case is that; Pandurang Salvi (deceased) was living in Village Nane in Taluka Wada. A dispute, between deceased and accused over the agricultural land was pending in the Court. It is alleged that on 23rd June, 1994 at about 06:00 am., deceased had been to field and while returning home, on the way at around 07:00 am, accused confronted and pelted stones on him. Pandurang raised alarm, whereupon his two sons rushed to the field, where they found Pandurang was lying on the field in unconscious state. Pandurang was brought to the home, whereafter within short span of time, he gained consciousness and disclosed the incident of assault, by the accused. As Pandurang had suffered injuries, he was taken to Wada Police Station where he lodged the report at 10:30 am., whereupon crime was registered against the accused. It seems Police referred Pandurang to Rural Hospital at Wada, where Dr. Balkrushna Kamble (PW-5) examined and noticed two injuries on his person; (i) C.L.W. left side of the forehead 2 xr 1 xr 1 cm.n (ii) Contusion on posterior aspect of left elbow 4 xr 4 cm.; . In his opinion, injury no. (i) was grievous in nature and therefore Pandurang was advised treatment at Civil Hospital at Thane. Dr. Kamble opined that injuries were possible due to pelting of stones. But for the better treatment, Pandurang was further admitted in Sion Hospital at Mumbai, where his statement was recorded by Constable on 24th June, 1994, which is at Exhibit - 25. Unfortunately, Pandurang succumbed to injuries on 25th June, 1994. Dr. Vasant Dhakane opined, probable cause of death was mild congestion on brain. Dr. Dhakane, Autopsy Surgeon, did not notice fracture to scalp. Dr. Unfortunately, Pandurang succumbed to injuries on 25th June, 1994. Dr. Vasant Dhakane opined, probable cause of death was mild congestion on brain. Dr. Dhakane, Autopsy Surgeon, did not notice fracture to scalp. Dr. Dhakane was examined as Prosecution Witness No. 7, who testified that the injury in the nature of CLW on left side temporal region was, "not sufficient in ordinary course to cause death. Prosecution in support of the charge had examined sons of deceased Balkrishna PW-1 and Mahendra PW-3. Evidence of Mahendra to be appreciated, since he had accompanied his father to primary health center at Wada and thereafter at Thane Civil Hospital and thereafter at Mumbai for further treatment. 4. Herein, the charge was framed under Section 302 read with 34 of IPC and under Section 3 (1) (X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 may be for the reason that the accused belong to 'upper' and deceased from the 'lower' caste. Be that as it may, the learned trial Court acquitted the accused of the offences punishable under the Atrocity Act, but convicted the appellants of the offence punishable under Section 325 of IPC. Thus question that arises for consideration is, whether prosecution has proved beyond reasonable doubt that the accused voluntarily caused, grievous hurt to the deceased and as such, conviction under Section 325 of IPC is just and proper. 5. It may be stated that none had seen alleged assault held on the deceased. Persons, who reached the scene of offence were Balkrishna and Mahendra. Testimony of these two witnesses indicates that when reached, they found their father was lying on the field in unconscious state. They brought him at home, whereafter he gained consciousness and disclosed the incident of assault and names of assailants. However, in cross-examination, Mahendra would admit, that his father was unconscious, while removing him to the hospital at Wada. His evidence indicates that after reaching the S.T. Bus Stand at Wada, he carried his father to the police station, as he was in semi-conscious state. In fact, evidence of Vinayak Patil (I.O.) corroborates evidence of Mahendra on the point of Pandurangs' health condition. Thus, reading together, the evidence of Mahednra (PW-2) and Vinayak Patil (PW8) indicates, that Pandurang was not conscious, while commuting from home to Wada, which makes the FIR doubtful, being lodged by Pandurang. In fact, evidence of Vinayak Patil (I.O.) corroborates evidence of Mahendra on the point of Pandurangs' health condition. Thus, reading together, the evidence of Mahednra (PW-2) and Vinayak Patil (PW8) indicates, that Pandurang was not conscious, while commuting from home to Wada, which makes the FIR doubtful, being lodged by Pandurang. As a matter of fact in FIR, Pandurang had stated that after assault, he was scared and thus left the field and went home. This revelations in FIR, contradicts the evidence of Mahendra (PW-2), Balkirshna, who said he was lying unconscious on the field. In the circumstances, the prosecution ought to have led, the evidence to justify that Pandurang was conscious throughout till lodging the complaint. However, in absence of evidence, on this point, it is difficult to accept the prosecution case that the FIR was lodged by Pandurang himself. It seems that after Pandurang was admitted in the Sion Hospital, his statement was recorded by Constable attached to Matunga Police Station. The prosecution made efforts to prove Pandurang's statement, to contend that it was his Dying Declaration at Exhibit 25. I have perused Exhibit 25 and the evidence Ramchandra Devkar (PW-6), Police Officer through whom prosecution brought on recorded statement of Pandurang. Before adverting to the evidence of Ramchandra Devkar, it may stated that before recording the statement, Pandurang's health condition was not ascertained, nor his 'statement' bears endorsement of the doctor to show that Pandurang was in ft state of mind to give statement. Be that as it may, though endorsement of medical officer, is a rule of prudence, however, herein evidence would indicate that Pandurang was unconscious throughout while shifting to Wada and in such circumstances, prosecution ought to be guarded and to ascertain, his state of mind and condition. However since that being not done, in my view, it was not be a just and proper only rely on Exhibit - 25, to convict the accused. 6. In consideration of the evidence, in my view, the prosecution has not proved beyond reasonable doubt that the accused voluntarily caused grievous hurt to the deceased. In the circumstances, the impugned conviction and sentence passed in Sessions Case No. 632/1994 by the learned Sessions Judge, Thane vide judgment dated 21.02.1998 is set aside. The appellant - accused no. 1 is acquitted. His bail bond is cancelled and sureties are discharged. In the circumstances, the impugned conviction and sentence passed in Sessions Case No. 632/1994 by the learned Sessions Judge, Thane vide judgment dated 21.02.1998 is set aside. The appellant - accused no. 1 is acquitted. His bail bond is cancelled and sureties are discharged. The fine if any paid, by refunded to the appellant. 7. Appeal is allowed and disposed of.