ORDER : Vivek Agarwal, J. These appeals are filed by the appellant Sandeep S/o Shri Kishanlal Nema and Jaykant S/o Banarsi Das Keshwarwani being aggrieved of the judgment dated 12.09.2023 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, 1989, Jabalpur (M.P.) in SCATR No.138/2014 whereby appellants have been convicted under Section 302 of IPC and sentenced to undergo R.I. for life imprisonment with fine of Rs.2,000/- with default stipulation. 2. It is submitted that prosecution story in brief is that a report was lodged by one Rahul Barman at Police Chowki - Rampur, Police Station - Gorakhpur to the effect that Shubham Pasi, Golu and Arvind Kushwaha were employed at Basanta Restaurant near Bandariya Tirha. There was a dispute in regard to payment of salary etc. with the manager of the restaurant. On account of such dispute they had left the job. On 21.05.2014 at about 11.30 pm Shubham Pasi, Golu Saini had gone to the restaurant demanding their remuneration. At that time they were abused by manager of the restaurant Jaykant and Sandeep. They were not only abused, they were threatened also and, then Jaykant with a 'lathi' and Sandeep with a baseballbat had hit Shubham Pasi, as a result of which Shubham Pasi sustained injuries on his head. He was admitted in the National Hospital, Jabalpur and thereafter he succumbed to the injuries two days after the incident. 3. Reading evidence of Dr. M.L. Chandwani (PW-3), it is submitted that Dr. Chandwani has clearly stated that when injured was brought to the National Hospital, Jabalpur where he was working as Medical Superintendent, injured was unconscious. There was no external injury mark seen on his body. He had sustained blunt injuries. His pupil were dilated, blood pressure was low, he was vomiting, he was admitted in the hospital on account of unconsciousness. After admitting him, he was handed over to the Neurosurgeon Dr. Parihar and Dr. D.S. Thakur. Thereafter, relatives of the injured had taken the injured without permission from the hospital. 4. Reading from the evidence of Dr. Ashok Jain (PW-1), CMO, Medical College, Jabalpur, who had conducted postmortem on the deceased Shubham. It is stated that there was single injury on the left frontal region measuring 4cm x 3cm. On dissection, it was found that there was blood clotting in the temporal-parietal region, there was swelling and on account of said injury, deceased succumbed to. Ashok Jain (PW-1), CMO, Medical College, Jabalpur, who had conducted postmortem on the deceased Shubham. It is stated that there was single injury on the left frontal region measuring 4cm x 3cm. On dissection, it was found that there was blood clotting in the temporal-parietal region, there was swelling and on account of said injury, deceased succumbed to. 5. Thus, it is submitted that there being a single blow, fight being sudden on account of demand of wages, conviction under Section 302 of IPC with the aid of Section 34 is not made out. It is submitted that at best case will fall under Section 304 Part-I of IPC. 6. Shri Sankalp Kochar, learned counsel for appellant Jaykant submits that Jaykant was not even an employee at Basanta Restaurant and he was a passerby. He used to run a small shop in front of Basanta Restaurant and he has been falsely implicated. 7. Reading from the evidence of prosecution witnesses, it is submitted that, Dr. Ashok Jain (PW-1) has admitted that, if he would have received the hockey-stick and baseball-bat in sealed condition, then he would have definitely mentioned this fact in his query report. Thus, it is pointed out that hockey-stick and baseball-bat were not received by the Doctor in a sealed condition. 8. It is also pointed out by Shri Siddharth Datt, learned counsel for appellant Sandeep that Hockey-stick was recovered at the instance of Sandeep Nema vide Ex.P-15,but its length is mentioned as 26½ inches while Dr. Ashok Jain (PW-1) has admitted in his cross-examination that the length of the Hockey-Stick was 159 c.m. Therefore, the hockey-stick seized at the instance of appellant Sandeep is not the same stick which was given for query to Dr. Ashok Jain (PW-1). Learned Counsel take this Court through query report (Ex.P-2) to point out that in the query report (Ex.P-2) itself, it is mentioned that a hockey-stick measuring 152 c.m.+ 7 c.m. was sent for opinion of the Doctor. Thus, it is pointed out that the hockey-stick which was seized was never subjected to query report in the hands of the post-mortem Doctor PW-1 Dr. Ashok Jain. 9. It is further submitted that Dr. Ashok Jain (PW-1) has admitted in his cross-examination that, said injuries could have been caused with a round smooth stone. Same fact has been corroborated by Dr. Ashok Jain. 9. It is further submitted that Dr. Ashok Jain (PW-1) has admitted in his cross-examination that, said injuries could have been caused with a round smooth stone. Same fact has been corroborated by Dr. M.L. Chandwani (PW-3) who too has admitted in his cross-examination that such injury could have been caused with a stone. 10. Golu (PW-4) has stated that he has no information about Basanta Restaurant. He has knowledge about Hema Restaurant which belongs to Hema. Subham Pasi, Rahul Pasi and this witness Golu (PW-4) were working at Hema Restaurant and their three months payment was due. Thereafter, he improvised his statement but he has admitted in cross-examination that he is not an eye-witness. He had not seen Shubam either at the time of incidence or thereafter. In cross-examination, this witness admitted that if injury was caused to Subham by his friends with a stone, then he cannot say any thing about it. He has further admitted that, he himself, Subham and Rahul were working for Ritesh Pandey who was having a Dosa and Ice-cream counter. He further stated that Jaykant was having a Chaat Thela in front of Basanta Restaurant which he used to manage from 05:00 p.m. to 11:00 p.m. Thus, it is submitted that involvement of Jaykant is not made out from the evidence of this witness. 11. It is submitted by Shri Datt, learned counsel for appellant Sandeep that eye-witness Rahul Burman who had accompanied deceased Subham has stated in his examination-in-chief that Subham, Arvind Kushwaha, Ritesh and Rahul Burman were working at Basanta Restaurant situated at Bandariya Tiraha. They had gone to collect their payment as he and Golu had dues for three months, whereas, Subham and Arvind had to take money for one month each. When they started demanding their wages from Jaykant and Sandeep, then they started abusing them and Sandeep had given a slap to Subham and Jaykant with a baseball-bat had hit Subham Pasi on his head, as a result of which he became unconscious. He was first taken to Victoria Hospital and then National Hospital. Thereafter to Marbal City Hospital in ICU but he died on 23.05.2014. Thus, it is pointed out that the allegation on Sandeep is of giving a slap. Thereafter allegation is that Jaykant had hit with a baseballbat and Sandeep with a hockey-stick. He was first taken to Victoria Hospital and then National Hospital. Thereafter to Marbal City Hospital in ICU but he died on 23.05.2014. Thus, it is pointed out that the allegation on Sandeep is of giving a slap. Thereafter allegation is that Jaykant had hit with a baseballbat and Sandeep with a hockey-stick. It is submitted that the hockey-stick which was seized from the possession of Sandeep was never subjected to query report and therefore, query report (Ex.P-2) cannot be read in relation to Sandeep. 12. It is also pointed out that, this witness has admitted that he had already left his job. It is also submitted that, other eye-witnesses have not been examined before the trial Court and therefore, as far as appellant Sandeep is concerned, since the injuries sustained by the deceased could not have been caused with a slap, he is innocent and as far as Jaykant is concerned injury being single blow, his conviction requires to be converted from one under Section 302 of IPC to Section 304 Part-I IPC. 13. Learned Public Prosecutor Shri Akhilendra Singh in his turn opposes the prayer and submits that there is no ground to cause interference in the matter. Both these appeals are liable to be dismissed and be dismissed as such. 14. After hearing learned counsel for the parties and going through the record, it is evident that, as far as chronology of events is concerned, there appears to be no contradiction. It is an admitted fact that, Subham alongwith Rahul Burman, Golu and Arvind Kushwaha was working at Basanta Restaurant situated at Bandariya Tiraha. It is also an admitted fact as stated by Rahul Burman (PW-7) that on the date of incident i.e. 21.05.2014 at about 11:30 p.m. these four persons namely Rahul Burman, Subham Pashi, Golu Saini and Arvind Kushwaha had gone to Basanta Restaurant to claim their past wages. 15. Though, it is argued by Shri Sankalp Kochar, that Jaykant was having a water-ball cart in front of Basanta Restaurant but this fact has been denied by the witness Rahul Buman (PW-7). He has categorically stated in para-15 that "It is wrong to say that Jaykant was having a Chaat Thela close to Basanta Restaurant". Thus argument advanced by Shri Sankalp Kochar that Jaykant was having a Chat Thela near Basanta Restaurant is not proved by any independent witness. He has categorically stated in para-15 that "It is wrong to say that Jaykant was having a Chaat Thela close to Basanta Restaurant". Thus argument advanced by Shri Sankalp Kochar that Jaykant was having a Chat Thela near Basanta Restaurant is not proved by any independent witness. Admittedly, defence has not examined any witness before the trial Court. 16. Eye-witness Rahul Burman (PW-7) is the sole witness who had seen the incident taking place. He categorically stated that Sandeep had slapped Subham Pasi and thereafter, Jaykant had hit him with a baseball-bat and then Sandeep had caused 'Marpit' with a hockey-stick, as a result of which Subham started bleeding and became unconscious. PW-4 Golu Saini who is claimed by Rahul Burman (PW-7) to have accompanied them has categorically stated that he was informed by Rahul Burman that Subham, Rahul and Ritesh had gone to Basanta Restaurant to claim their wages and in cross-examination, he has categorically accepted that, he had not seen the incident, this witness is not of much consequence. 17. PW-3 is Dr. Chandwani,PW-2 is the Ambulance Operator, PW-1 is Dr. Ashok Jain who conducted postmortem, therefore, facts of the case are required to be examined on the basis of the evidence of sole eye-witness Rahul Burman (PW-7), Dr. Chandwani (PW-2) who had first seen the patient at National Hospital in as much as Doctor from Victoria Hospital where according to Rahul Burman, patient, was first taken has not been examined so also no Doctor has been examined from Marbal City Hospital and in the light of the evidence of Dr. Ashok Jain (PW-1). 18. As noted above and at the cost of the repetition, Rahul Burman has stated that Sandeep Nema had slapped Subham after hurling some abuses and thereafter, Jaykant had hit him with a base-ball bat and then Sandeep had hit him with a hockey stick. The hockey-stick which was used and was seized by the police vide Ex.P-15 wherein it's mentioned that it's length is 26½ inches. In the post-mortem report (Ex.P-1) cause of death is mentioned as head injury which is anti-mortem and could be caused by hard and blunt object. There is no mention of this fact that this injury could have been sufficient to cause death in the post-mortem report. Dr. Ashok Jain (PW-1) in his testimony has stated that on external examination no external injury was seen on the body. There is no mention of this fact that this injury could have been sufficient to cause death in the post-mortem report. Dr. Ashok Jain (PW-1) in his testimony has stated that on external examination no external injury was seen on the body. On internal examination, there was swelling of left frontal region measuring 04 c.m. x 03 c.m. On dissection it was found that blood was cloated outside left temproperital region outside the brain membrane. There was swelling in the brain. His opinion is that, death was caused within 24 hours of post-mortem. Cause of death was comma. It originated from the injury caused to his head. In the query report (Ex.P-2) he has stated that the said injury could have been caused either with a baseball-bat or with a hockey-stick. However, the hockey-stick which was presented to him, he has mentioned its length as 159 c.m. He has denied that Police sent him 67 c.m. long hockey-stick (26.5 inches) whereas seizure of hockey stick which was made at the instance of Sandeep Nema was that of 26.5 inches or 67 c.m. Thus, it is evident that hockey-stick which was sent for query report was not the one which was seized from the possession of Sandeep. Blood being not found on baseball-bat and hockey-stick becomes insignificant because Dr. Ashok Jain (PW-1) has clearly stated that there was no external injury seen and to that extent statement of PW-7 Rahul Burman that Subham started bleeding is not corroborated from the medical evidence. 19. PW-3 Dr. M.L. Chandwani has also corroborated the statements of Dr. Ashok Jain (PW-1) who conducted post-mortem in as much as Dr. Chandwani (PW-3) stated that, he was working as Medical Superintendent at National Hospital on 22.05.2014 and Subham was brought to him. He had caused examination of the patient. Patient was unconscious. No injury marks were seen on his body. He had blunt injuries. His pupil were dilated. Blood pressure was low. He was vomiting. He was referred to the Neurosurgeon then he had left the hospital without permission. 20. Thus, expert medical opinion points out towards two facts; one there was a blunt injury and post-mortem report verified that there was a single blow. Admittedly, Dr. Ashok Jain (PW-3) neither said in his postmortem report nor in his evidence that the injury was sufficient to cause death in normal course. 21. 20. Thus, expert medical opinion points out towards two facts; one there was a blunt injury and post-mortem report verified that there was a single blow. Admittedly, Dr. Ashok Jain (PW-3) neither said in his postmortem report nor in his evidence that the injury was sufficient to cause death in normal course. 21. Therefore, Judgment of Supreme Court in the case of Bunni Lal Choudhary Vs. State of Bihar (2007)1 SCC Crl. 66 will be applicable where it is held that if Doctor does not opine that the injuries found to the deceased were sufficient to cause his death, in the natural course of his life or no injury was such that the death was likely to be caused, in such case if accused not intended to kill the victim, then the offence shall fall within the preview of Section 304 Part-II IPC. Similarly law laid down in the case of Vineet Kumar Chauhan Vs. State of U.P. 2007 (14) SCC 660 will be applicable, therefore, this Court has no hesitation to hold that there being no intention to kill, dispute occurred suddenly then conviction under Section 302 of IPC cannot be sustained and it is required to be converted to one under Section 304 Part-II of IPC. 22. Now the issue which arises is as to whether both the appellants will be liable to be punished under Section 304 Part-II IPC or one of them is entitled to benefit of doubt. 23. When the facts of the case and the evidence adduced on record is examined from this perspective, then it is evident that there was a single injury on the head of the deceased as opined by Dr. Ashok Jain (PW-1). Eyewitness Rahul Burman (PW-7) has stated that Jaykant had used a baseball bat and Sandeep Nema had used a hockey-stick. Hockey-stick seized was only of 26½ inches was never produced to a Doctor for query. This is a vital omission on the part of the prosecution in not producing the weapon seized at the instance of Sandeep Nema. Eyewitness Rahul Burman (PW-7) has stated that Jaykant had used a baseball bat and Sandeep Nema had used a hockey-stick. Hockey-stick seized was only of 26½ inches was never produced to a Doctor for query. This is a vital omission on the part of the prosecution in not producing the weapon seized at the instance of Sandeep Nema. Recovery of hockey-stick made in pursuance of memorandum (Ex.P-15) will become inconsequential because 26½ inches of hockey-stick was never produced to the Doctor to seek opinion that whether such injury could have been caused by that very hockey-stick or not and therefore, there cannot be any presumption as to the use of the hockey-stick which was seized from the possession and on the memorandum of Sandeep Nema vide Ex.P-14 & Ex.P-15 respectively. However, baseball-bat recovered vide Ex.P-17, in pursuance of the memorandum (Ex.P-16) is admissible in evidence and therefore, as per the eye-witness account which has remained unrebutted and though an attempt has been made by the learned counsel for Jaykant to point out that Jaykant was not working at Basanta Restaurant and he was in fact running a waterball cart in front of Basanta Restaurant and therefore, he had no business to be at Basanta Restaurant could not be proved and this witness Rahul Burman has categorically stated about the presence of Jaykant and his act of aggression and his statement has remained unrebutted that Jaykant had hit deceased Subham with a baseball-bat, onus of causing injury will fall on Jaykant. 24. The evidence of Rahul Burman who is the sole eye-witness is found to be reliable and trustworthy and since it is a case of single injury on head of the deceased. In view of the judgment of M.P. High Court in the case of Surjan Singh Vs. State (2003) CRLJ NOC 233 (MP), Bunnilal Choudhary Vs. State of Bihar (supra) and Vineet Kumar Chouhan Vs. State of U.P. (supra) conviction will be sustainable under Section 304 Part-II IPC. 25. In the case of Choudhary Ramji Bhai Narsang Bhai Vs. State of Gujrat (2004)1 SCC 184 , Ramavtar Vs. State of M.P. AIR 1993 SC 302 and Sarman Vs. State, 1993 CRLJ 63 (SC) it is held that, if in a sudden fight incident takes place, then case will fall under Section 304 Part-II of IPC. 26. 25. In the case of Choudhary Ramji Bhai Narsang Bhai Vs. State of Gujrat (2004)1 SCC 184 , Ramavtar Vs. State of M.P. AIR 1993 SC 302 and Sarman Vs. State, 1993 CRLJ 63 (SC) it is held that, if in a sudden fight incident takes place, then case will fall under Section 304 Part-II of IPC. 26. In view of such facts and law, benefit of doubt will accrue in favour of Sandeep Nema and therefore, he is entitled to acquittal on the basis of benefit of doubt. 27. As far as appellant Jaykant Kesharwani is concerned, it is true that his act was done without any intention to cause death or to cause bodily injury as is likely to cause death, his conviction is reduced from one under Section 302 of IPC to one under Section 304 Part-II of IPC. He has already faced incarceration from 23.05.2014 to 20.09.2014 and then, he is in custody w.e.f. 12.09.2023 till date, therefore, his conviction is altered from Section 302 of IPC to Section 304 Part-II of IPC and he is directed to undergo Rigorous Imprisonment for five years and fine of Rs.5000/- with default stipulations six months Rigorous Imprisonment. 28. Accordingly, both these appeals are disposed of. 29. CRA No. 11869 of 2023 (Sandeep Vs. The State of M.P. & Ors.) is allowed. Appellant Sandeep is acquitted from the charges under Sections 302 of IPC. It is directed that if he is not required in any other case, then he be released from prison immediately. 30. CRA No. 12988 of 2023 (Jaykant Vs. State of M.P.) is allowed in part. Conviction of the appellant Jaykant is altered from Section 302 of IPC to Section 304 Part-II of IPC and he is directed to undergo Rigorous Imprisonment for five years and fine of Rs.5000/- with default stipulations six months Rigorous Imprisonment. 31. Case property be disposed off as per the directions of the trial Court. Record be sent back. 32. C.C. as per Rules.