Conviction requires reliable evidence and knowledge of victim's medical condition; lacking such knowledge limits liability to lesser offenses.

JUDGMENT :

Prem Narayan Singh, J.

1. This criminal appeal is preferred under Section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 31.01.2023, passed by learned A.S.J., Ratlam, in S.T. No..200291/2015 whereby the appellants have been convicted for the offence punishable under Sections 304 /34 and 323/34 of IPC and sentenced for 10,10 years RI and 6,6 months RI with fine of Rs.2000/-, 2000/- and 1000/-,1000/- with default stipulations.

2. Prosecution case in brief is that on 10.08.2015, the complainant Mohan alongwith the deceased Munna was going to his home. The appellants were standing near the house of appellant Badri. Thereafter, appellant Raju has assaulted complainant Mohan by stick on his back and appellant Badri has assaulted the complainant and the deceased Munna by kicks and fists.Appellant Raju has assaulted the deceased Munna with stick, due to which, the deceased has received injuries. Thereafter, deceased Munna was succumbed those injuries. thereafter, Munna was collapsed down. Thereafter, the deceased was taken to the hospital where he has died.

3..The police party, after following due procedure, arrested the accused person and registered the case against the appellants. After due investigation, charge-sheet was filed against the appellants under Sections 323 /34 and 302/34 of IPC. They abjured their guilt and took a plea that they had been falsely implicated in the present crime and prayed for trial.

4. In support of the case, the prosecution has examined as many as 13 witnesses namely Mohan (PW-1), Rahul (PW-2), Pemabai (PW-3),Banti alias Bantu (PW-4), Badrilal (PW-5), Dr. B.L. Manmgliya(PW-6), Dr. Mukesh (PW-7) Ajay (PW-8), Yashwant (PW-9), Babulal (PW-10), Karulal (PW-11), Lalsingh (PW-12), Rangu (PW-13). No witness has been adduced by the appellants in his defence.

5. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 31.01.2023 and finally concluded the case and convicted the appellants for commission of the said offence under the provisions of Sections 323 /34, 304/34 of IPC.

6. Learned counsel for the appellants, being crestfallen by the aforesaid finding of the Trial Court, submitted that the allegation against the appellant Raju is of causing injury by stick on the back of the deceased and allegation against appellant Badri is of causing injury by kicks and fists. No independent witness has been examined and witnesses are related and interested witnesses, thus on the basis of their testimonies, the appellant can not be convicted As per Postmortem report (Ex.P-5), the death was caused due to injury of spleen, the appellant had no knowledge regarding spleen, hence, the offence under Section 304 of IPC cannot be made out against them and if the case of the prosecution is taken as it is, the case of the prosecution would not travel more the offences under Section 325 of IPC.

7. Alternatively, counsel for the appellants has further argued on the point of sentence also and prays that since the appellants are in jail from more than two years out of the 10 years, their jail sentence be reduced to the period already undergone. It is further submitted that the appellants deserve some leniency as the appellants already suffered the ordeal of the trial since 2015 i.e. for a period of 09 years. It is further submitted that this appeal be partly allowed and the sentence awarded to the appellants be reduced to the period already undergone by enhancing the fine amount and giving comp