M.C. Jain, J.
1. The appellants Chauthi and Haria were convicted Under Section 325, I.P.C., and were sentenced to undergo five years' rigorous imprisonment and a fine of Rs. 250/- each, in default, to undergo three months' rigorous imprisonment each by the Additional District and Sessions Judge, Gangapur City, vide judgment dated 20th April, 1974.
2. The prosecution case, in brief, is that on 24-4-1973 at about 2. 00, p.m., Nathua, decesed, was coming from the side of village Kodia Mahavir. When he reached near Madvi Meharwa the appellants along with three others, namely, Ramji Lal, Khilari and Kirodi surrounded the deceased a id beat him with 'lathis' to death It is said that the occurrence was witnessed by Babu, Sugan, Gir Raj and lamdhan, The dead body of Nathua was then carried in a cart by Kissan Meena to the house of the deceased Ram Bharosi lodged the written first information report Ex. P/1 at the Police Station, Gadmora on the same day at about 10.00, p.m., on which the S.H.O. Gadmora registered a case Under Section 302, I.P.C. There after the S.H.O. visited the spot and prepared the site plan. He also prepared the 'panchnama' Ex. P/11 and observed and noted the it juries on the person of the deceased. Ali the five accused persons were arrested and the autopsy was got conducted of the dead body of the deceased. After usual investigation charge-sheet was presented against all the five accused persons in the court of Munsiff and Magistrate, First Class, Hindon, who committed the accused persons for trial. Cairges Under Sections 147, 302 or 302 read with Section 149, I.P.C., were framed against the accused persons. The same were read over and explained to them. The accused persons, however, pleaded not guilty to the charges and claimed to be tried.
3. The prosecution examined PW. 1 Ramdhan, PW. 2 Girraj, PW. 3 Sugan, PW 4 Babu, PW 5 Mst. Keshar, PW 6 Ram Bharosi, and PW. 7 Roop Singh. The statement of Dr. Mahesh Chand Bapna recorded in the committing court, was taken on record and was marked as PW. 8 and he was recalled and was permitted to be cross-examined by the Public Prosecutor and was further cross-examined on behalf of the accused persons.
4. The statement of the accused persons were recorded in which they denied the prosecution case. No evidence was led in defence.
5. After hearing the arguments the learned Additional Sessions Judge, Gangapur City, acquitted the accused persons Ramjilal, Khilari and Kirodi of the offences with which they were charged. He, however, convicted the accused-appellants Chauthi and Haria for the offence under Section 325, I.P.C. and sentenced them as stated above.
6. Dissatisfied with their convictions and sentences the accused Chauthi and Haria preferred this appeal.
7. The learned Counsel for the appellants contended that the learned Additional Sessions Judge seriously erred in convicting the appellants for the offence Under Section 325, IPC. There is not an iota of evidence that the appellants caused any grievous injuries to Nathua. The learned Judge held the appellants guilty Under Section 325, I.P.C., with the observation that the appellants have been proved to have inflicted 'lathi, injuries, they can be presumed to have intended to cause grievous injuries to Nathua deceased, so it would be safer to convict them Under Section 325, I.P.C. The learned Counsel urged that the said observation of the learned Judge is neither warranted by facts nor by law. He pointed out that firstly no such presumption with regard to the intention of the appellants could be raised nor the appellants could be convicted Under Section 325, I.P.C., without this proof that the appellants caused any grievous injuries on the person of the deceased He urged that the conviction of the appellants for the offence Under Section 325, I.P.C., cannot be sustained, so deserves to be set aside. The learned Counsel did not seriously contend that the appellants can not be held guilty for the offence Under Section 323, I.P.C., at the most.
8. The learned Public Prosecutor could not canvas as to how the convictions of the appellants Under Section 325, I.P.C., is justified.
9. Heaving heard both the sides I am clearly of the opinion that the convictions of the appellants Under Section 325, I.P.C., cannot be sustained in view of the fact that there is absolutely no evidence on record whereby it can be held that the deceased received any grievous hurt. The two eye witnesses, namely, Ramdhan (P.W. 1) and Babu P.W.4) have not supported the prosecution and they have turned hostile The other two witnesses, namely, Gir Raj, (P.W. 2) and Sugan (P.W 3) have stated that the accused-appellants gave beating to the deceased with 'lathis' along with three others. Though Gir Raj in cross examination stated that he did not observe any injuries on the person of Nathua, but he had categorically stated that the accused persons did beat Nathua. So far as the present appellants are concerned the statement of Sugan is also specific and categorical that the appellants inflicted blows on Nathua. In cross-examination he has stated that injuries on neck and hand were visible. Then there is the statement of Roop Singh S.H.O. (PW. 7), who observed the injuries on the person of the deceased when he prepared the 'panchanama'. In cross-examination he further stated that he observed the injuries after removing the shirt. Dr. Maheshchand Bapna has not stated anything about the presence of any injury. Rather his statement is that there was no mark of injury on the body of the deceased. There was advanced state of decomposition, so he was not in a position to opine regarding the cause of death. On being recalled, he stated that in this case the body had been decomposed the superficial injuries like bruise or abrasions, if there were any, could not be detected. Thus, from the evidence on record it is in no way borne out that the deceased received any grievous hurt. What can be held at the most is that the appellants inflicted blows with 'lathi' on the person of the deceased on the basis of the statement of P.W. 2 Gir Raj and P.W. 3 Sugan and corroborated by the testimony of Roop Singh, S.H.O (P.W. 7), who had observed the injuries on the person of the deceased and as such the appellants can only be held guilty for the offence Under Section 323, I.P.C. Offence Under Section 325, I.P.C. is not at all proved against them, so the appellants deserve to be acquitted of the offence under Section 325 I.P.C., and I hold them guilty of the offence Under Section 323, I.P.C.
10. Accordingly, this appeal is partly allowed. The conviction and sentence of the appellants Chauthi and Haria Under Section 325, I.P.C, are set aside and the appellants are convicted under Section 323, and each of the appellants is sentenced to one year's rigorots imprisonment. The appellants have already remained in custody for more than one year as such, their sentence stands set off. They are already on bail, so they need not surrender. Their bail bond are discharged.