JUDGMENT :

1. This Criminal Appeal under Section 374 Cr.P.C. has been preferred praying for the following reliefs:-

“It is, therefore, most respectfully prayed that this appeal may kindly be allowed and the appellant be acquitted from the charge levelled against him.”

2. The matter pertains to an incident which occurred in the year 1992 and the present criminal revision has been pending since the year 1994.

3. This Criminal Appeal has been preferred against the judgment, dated 14.01.1994, passed by the Addl. District and Sessions Judge, Nagaur in Sessions Case No. 2/93 whereby the appellant was convicted for the offence under Section 304 II I.P.C. and was sentenced to 3 years R.I. along with a fine of Rs. 30,000/- in default of payment of which he was to undergo further 3 months of S.I.

4. Brief facts of the case as placed before this Court by the learned counsel for the appellant are that the complainant Basti Ram S/o Shri Mangi Lal R/o Village Tarnau lodged an F.I.R. on 01.10.1992 at about 12:40 a.m. at Police Station, Jayal alleging therein that his brother, Hari Ram while grazing his cattle at the boundary of the village, near Jindia Talav was beaten by the appellant with a lathi owing to a demand of a borrowed sum of money. And that, the complainant was apprised of the same on 30.9.1992 at about 05:00 p.m. Lala Ram S/o Barkat Ram came to his house in his jeep, bringing along with him his brother who was injured and bleeding. And that, Hari Ram then narrated the same to him, upon which he took Hari Ram to the Govt. Hospital, Jayal for treatment. And that, subsequently, during the course of investigation, the injured Hari Ram succumbed to his injuries and passed away at S.M.S. Hospital, Jaipur. And that the case so registered was then converted from Section 307 I.P.C. to Section 302 I.P.C. And that, a charge-sheet was filed against the appellant before the Judicial Magistrate, Nagaur and the case was committed to the Addl. District and Sessions Judge, Nagaur. And that, charges were framed and upon trial, the learned Trial Court below convicted and sentenced the appellant.

5. Learned counsel for the appellant submitted that the learned trial court erred in relying on the statements of P.W. 3 Hanuman Ram and P.W. 6 Kishtura, and that the testimony of P.W. 8 Bhura Ram suffers on the count of it being contradictory to the statement recorded under Section 164 Cr.P.C. and him being a child witness, and therefore was unreliable.

6. Learned counsel for the appellant also submitted that the testimony of P.W. 20 Raju Ram, who had not seen the incident in question, cannot be relied upon and is in fact a prepared witness.

7. Learned counsel for the appellant further submits that there is an unexplained delay in the filing of F.I.R. and that the same further weakens the case of the prosecution.

8. Learned counsel for the appellant also submitted that a single injury was sustained by the victim, and that the absence of repeated and/or multiple injuries reveal the absence of intention on the part of the accused. And that, at best an offence under Section 325 I.P.C. is made out against him.

9. Learned counsel for the appellant further submitted that the victim passed away as a result of the negligence of the doctors at S.M.S. Hospital, Jaipur and the relatives of the deceased, all of whom if had acted swiftly could have saved the life of the deceased victim.

10. Learned counsel for the appellant submitted that the sentence so awarded to the appellant was suspended by this Hon’ble Court, vide order dated 25.01.1994 in S.B. Criminal Misc. Bail Petition No. 44/1994.

11. Learned counsel for the appellant, however, made a limited submission that without making any interference on merits/conviction, the sentence awarded to the present appellant may be substituted with the period of sentence already undergone by him.

12. On the other hand, the learned counsel for the private respondent and the learned Public Prosecutor opposed the submissions mad