JDUGMENT - N.B. Naik, J.:---The appellant who was original accused No. I, has been convicted by the learned Additional Sessions Judge, Poona, for an offence under section 304, Part I of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for 7 years. He has also been convicted for offence under sections 323 and 323 read with section 34 and sections 324 and 324 read with section 34 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for six months on each count. He has been also convicted for an offence under section 447 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for three months. The substantive sentences have been directed to run concurrently. 2. The appellant who was original accused No. 1, and three others were prosecuted for offences under sections 302, 447, 325, 324 and 323 read with section 34 of the Indian Penal Code. The allegations on which the prosecution was founded are briefly these : Accused Nos. 1 and 2 are the sons of accused No. 4 and accused No. 3 is the father-in-law of accused No. 2. Accused Nos. 1, 2 and 4 and the victims of the incident are all residents of Sartapwadi, taluka Haveli, district Poona. The victims of this incident are Sunderabai wife of Pandharinath Gaikwad who died as a result of the assault made on her at the time of the incident, her husband Pandharinath (P.W. 9) who is the complainant, Pandharinaths brother Gulab (P.W. 8) and Laxmibai (P.W. 3) who is the wife of Gulabrao. Admittedly the land Survey No. 101 of Sartapwadi was purchased by Pandharinath as head of a family consisting of himself and his brothers and one Kisan Kashid and the families of both Pandharinath and Kashid were in possession and enjoyment of that land. In January 1969, Pandharinath purchased a house from one Laxman Dabde for Rs. 1300/- under sale deed (Ex. 23) dated 6-1-1969. On that very day, Pandharinath purported to sell the entire Survey No. l0l by the sale deed (Ex. 27) to accused No. 4 for a purported consideration of Rs. In January 1969, Pandharinath purchased a house from one Laxman Dabde for Rs. 1300/- under sale deed (Ex. 23) dated 6-1-1969. On that very day, Pandharinath purported to sell the entire Survey No. l0l by the sale deed (Ex. 27) to accused No. 4 for a purported consideration of Rs. 1500/- Although the sale deed prima facie contains a recital that the possession of the land was delivered to accused No. 4, it is the prosecution case that in fact possession of the land was not at all delivered to the purchaser and that the transaction evidenced by the sale dead (Ex. 27) was not in fact a sale but a security for a loan which was advanced by accused No. 4 to Pandharinath to enable him to purchase the house from Laxman Dabde and that there was an agreement that the land should be reconveyed after repayment of the said loan within a period of 5 years. Even the consideration for the sale deed (Ex. 27) is in dispute. Within 3 or 4 days, after the sale deed, accused Nos. 1, 2 and 4 having tried to enter the land, Pandharinath complained to Khanderao (P.W. 2) the Sarpanch who convened a meeting. At that time it is alleged that accused Nos. 1 and 4 insisted on Rs. 2000/- being paid to them in order that they may give up their claim under the sale deed. Pandharinath having agreed to pay that amount once again approached the Sarpanch within 8 days. It is alleged that accused No. 4 did no accept that amount. Having regard to this dispute over the possession of the land, on 13-2-1969 Civil Suit No. 205 of 1969 was filed by Pandharinath his brother Gulabrao and the joint owner Kisan Kashid against accused No. 4 and the other brothers of Pandharinath and Gulab Gaikwad for a declaration that the sale deed Ex. 27 was not valid and for an injunction restraining accused No. 4 from interfering with the right of peaceful enjoyment of the plaintiffs in that suit as appears from the copy of the plaint in that suit. 27 was not valid and for an injunction restraining accused No. 4 from interfering with the right of peaceful enjoyment of the plaintiffs in that suit as appears from the copy of the plaint in that suit. Within two months thereafter on 3-4-1969, Civil Suit No. 437 of 1969 was filed by Gulab and the joint owner Kisan Kashid against accused No. 4 and others for an injunction restraining the defendant No. 4 from interfering with the plaintiffs right of peaceful enjoyment of the suit land. It is in this suit that an ad interim injunction being secured the same was confirmed by the trial Court and an appeal being Appeal No. 102 of 1969 which was filed by accused No. 4 in the District Court was dismissed on 23-12-1970. Aggrieved by these concurrent findings, accused No. 4 approached this Court by filing Civil Revision Application No. 319 of 1971 on 9-7-1971 and that matter being admitted he secured an interim order of stay of the orders passed by the courts below. It may be mentioned that ultimately that civil revision application was rejected on 6-7-1973, i.e., after the incident giving rise to this prosecution. Within two months after the order of injunction was stayed by this Court in Civil Revision Application No. 349 of 1971, the incident giving rise to this prosecution has occurred in the morning of 11-9-1971. 3. It appears that having secured the stay order of the injunction which was granted by the Civil Court and the District Court, the accused wanted to enter the land. Pandharinath having received information about the intention of the accused to go to the land on 11-9-1971, for the purposes of sowing, he instructed his brother Gulab and his wife Sunderabai and sister-in-law Laxmibai to go to the land and not to allow the accused to sow the land. Meanwhile he offered to leave for Poona which is about 19 miles from Sartapwadi for consulting his Advocate Mr. Joshi who was briefed in the pending civil suit. As expected it appears that all the 4 accused left the village for the disputed Survey No. 101 in two carts for the purpose of sowing the land. Laxmibai and Sunderabai who were proceeding to some other land having noticed that the carts of the accused were being taken to the disputed land went towards that land. As expected it appears that all the 4 accused left the village for the disputed Survey No. 101 in two carts for the purpose of sowing the land. Laxmibai and Sunderabai who were proceeding to some other land having noticed that the carts of the accused were being taken to the disputed land went towards that land. After reaching the land the accused unyoked both the carts and they started to make arrangements to sow the land. That is why Laxmibai and Sunderabai who were the first to approach the land went towards the accused. Sunderabai having obstructed the sowing operations by standing in front of the accused, accused No. 3 pushed Sunderabai. It may be mentioned that by the time of this incident Pandharinath had also returned to the village after consulting his Advocate and he and his brother Gulab were also proceeding towards their land and one Baban Chorge (P.W. 10) whose land is near about also happened to notice the incident. As regards the actual incident, as stated by these 4 eye witnesses, accused No. 3 having pushed Sunderabai, accused No. 1 fetched an axe from the bullock cart and struck Sunderabai on the head. Accused No. 2 also is alleged to have struck Sunderabai on the head with what is called the "fas" which we are told is the blade of the harrow. Sunderabai fell down after the assault and Laxmibai shouted. Thereupon accused No. 1 struck Laxmibai on the head with the axe which, having grazed on the head, struck against the wheel of the cart and the handle broke down. In the process the butt-end of the axe fell on the wrist of Laxmibai. Pandharinath having intervened, accused No. 1 struck Pandharinath with the axe on the head. Accused No. 2 struck Pandharinath on the head with the blade of the harrow. Accused No. 3, it is alleged, accosted Pandharinath who was about to runaway and stabbed him with the knife on the left wrist. Thereafter accused Nos. 1 and 2 exchanged the weapons and chased Gulabrao, around the bullock cart. Gulab tumbled and fell and thereafter accused No. 3 struck Gulab on his left palm. Thereupon accused No. 2 rushed towards Baban Chorge. Baban Chorge having challenged accused No. 2, accused No. 1 pulled him aside. Then all the accused left the place. Thereafter accused Nos. 1 and 2 exchanged the weapons and chased Gulabrao, around the bullock cart. Gulab tumbled and fell and thereafter accused No. 3 struck Gulab on his left palm. Thereupon accused No. 2 rushed towards Baban Chorge. Baban Chorge having challenged accused No. 2, accused No. 1 pulled him aside. Then all the accused left the place. Baban thereafter carried Sunderabai on his back to the farm house of Sarpanch Khanderao, (P.W. 2). Pandharinath and Gulab went to the Lonikalbhor Police Station. The injured persons were sent to the Sasoon hospital, Poona. The First Information Report (Ex. 25) of Pandharinath was recorded by Head constable Shaikh (P.W. 15). Shaikh thereupon drew a panchanama of the scene of offence. All the injured persons except Sunderabai were examined by Dr. Patil (P.W. 18). Sunderabai was examined by Dr. Manohar Bapaya (P.W. 19). As it appears from his evidence and the case papers (Ex. 48), Sunderabai had a contused lacerated wound on skull frontal region extending backwards parallel to the Sagital sutureline 3" in length bone deep, depression on frontal bone seen through the wound suggesting the depressed fracture of skull. The patient was operated at 7.30 p.m. by Dr. Ambike and Dr. Bapaya assisted him in that operation. The patient, however, succumbed to her injuries at 2.30 p.m. on 13-9-1971. The post-mortem examination was held by Dr. Laxman Fervani (P.W. 11.) As it appears from his evidence and the post mortem notes (Ex. 31), the cause of death of Sunderabai was shock due to extra dural haemorrhage, laceration of brain, haemorrhage in pons due to fractured skull. Apart from the operation wound with which we are not concerned, this doctor noticed contused lacerated wound 3-½" long present on the right parietal region, 3-½" above the right eyebrow at right angle to the injury No. 1. He also noticed that as a result of that external injury there were the corresponding internal injuries as mentioned below :--- "(1) Haemotoma right frontal and parietal regions. (2) Fracture right parietal temporal region, about 5" in length zigzag in direction. (3) A piece 2-½" in right parietal region removed. (4) A fracture 2" in length in right parietal region. (5) Extra dural haemotoma right hemisphere. (6) Laceration of temporal lobe left side. (2) Fracture right parietal temporal region, about 5" in length zigzag in direction. (3) A piece 2-½" in right parietal region removed. (4) A fracture 2" in length in right parietal region. (5) Extra dural haemotoma right hemisphere. (6) Laceration of temporal lobe left side. (7) Haemorrhage in pons." In the opinion of this Medical Officer, the external injury as a result of which the internal injuries were caused was sufficient in the ordinary course of nature to cause death and that the weapon must have been hit with great force to result in the said internal injuries. He is also of opinion that injury could be caused by one severe blow by hard and blunt object like the butt-end of the axe. 4. Adverting to the investigation, the statements of material witnesses were recorded on 12-9-1971 by Head constable Shaikh and on the 15th September, 1971, the investigation was taken over by P.S.I. Naikwadi (P.W. 16). The further investigation was taken up by the Sub-Divisional Police Officer. The accused came to be arrested by the 13th September, 1971 and nothing incriminating was found on their person nor was any injury noticed on the person of anyone of them. 5. It was on these facts that the 4 accused were prosecuted for the charges mentioned above. 6. All the accused pleaded not guilty to the charge and claimed to be tried. As regards accused No. 4, their defence was that he was not at all present at the time of the incident. The other accused while admitting their presence and the presence of all the four victims of the incident, have contended that it is the accused who were in possession of the land since the same was purchased by accused No. 4, under, the sale deed Ex. 27 dated 6-1-1969. So far as the accusation of assault is concerned, their defence is one of total denial. They would have us believe that all the injuries sustained by the 4 victims of this incident were accidental as a result of fall of the victims. In particular, explaining the injury of Sunderabai the appellant-accused No. 1s version which is also the version of the other accused is to this effect : The bullock carts taken by the accused to the field were resting on what are known in Marathi as Sipayees which we are told are wooden stands. In particular, explaining the injury of Sunderabai the appellant-accused No. 1s version which is also the version of the other accused is to this effect : The bullock carts taken by the accused to the field were resting on what are known in Marathi as Sipayees which we are told are wooden stands. Pandharinath it is alleged, rushed at accused No. 1 and pushed him, and Sunderabai who was standing behind him fell against the Sipayee. The Sipayee being displaced she sustained the injury on the head by the poles on the bullock cart. About Pandharinath he said that Pandharinath lost his balance and he fell against the wheel and received injury on the hand by the tin sheet of the cart. We are not concerned with the injuries sustained by the other victims as that part of the case is not pressed before us in this appeal. 7. For proof of its case against the accused, the material witnesses examined by the prosecution are Pandharinath (P.W. 9), Laxmibai w/o Gulabrao (P.W. 3), Gulabrao Gaikwad (P.W. 8), who are all the victims of the incident and alleged eye witnesses of the incident. The next alleged eye witness to the incident is Baban Chorge (P.W. 10). The prosecution also examined Khanderao (P.W. 2) who speaks about the dispute over the land. The prosecution has also filed the F. I. R. (Ex. 25) and the sale deed of the house Ex. 23, and sale deed of the land Ex. 27, which is in dispute, and copies of plaint in civil suit No. 206 of 1969 (Ex. 24). The prosecution also examined the Medical Officers, Dr. Bapaya (P.W. 19) and Laxman Ferwani (P.W. 11) who have produced the case papers (Ex. 48) and the post-mortem notes (Ex. 31) respectively. 8. On an appreciation of the above evidence and after hearing the arguments for both the sides, the learned Additional Sessions Judge held that the land was in the possession of the victims of the incident and that in fact the accused trespassed in the land on the date of the incident. 48) and the post-mortem notes (Ex. 31) respectively. 8. On an appreciation of the above evidence and after hearing the arguments for both the sides, the learned Additional Sessions Judge held that the land was in the possession of the victims of the incident and that in fact the accused trespassed in the land on the date of the incident. With regard to accused No. 4, since the allegation against him was one of instigation and about his having assaulted Pandharinath with a stick, as it was held by the learned Judge that the instigation if any was after the assault, and Pandharinath himself had not stated about the assault by accused No. 4, the learned Judge felt that no case was made out against accused No. 4 and, therefore, he acquitted him of all the offences with which he was charged. With regard to the death of Sunderabai while upholding the defence contention that the evidence of assault by accused No. 2 on the head of Sunderabai by a Fas appears to be an exaggeration and a subsequent improvement by the eye witnesses, the learned Judge held that he was not responsible for that head injury and, therefore, acquitted him of that charge. The learned Judge, however, after appreciation of the evidence held that the head injury to Sunderabai which had proved to be fatal was caused by accused No. 1 alone. In the circumstances of the case, however, he felt that the offence which is committed by accused No. 1 is one under section 304, Part I of the Indian Penal Code. He accordingly acquitted all the accused for the main offence of murder but he, however, convicted accused No. 1-appellant alone of the lesser offence under section 304, Part I of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years. Accused Nos. 1, 2 and 3 have been also convicted for offences under sections 323, 323 read with section 34, 324 and 324 read with section 34 and section 447 of the Indian Penal Code and have been sentenced to various terms of imprisonment and fine. No appeal is filed by the State so far as the acquittal of the accused for the offence under section 302 of the Indian Penal Code is concerned. So also no appeal is filed by accused Nos. No appeal is filed by the State so far as the acquittal of the accused for the offence under section 302 of the Indian Penal Code is concerned. So also no appeal is filed by accused Nos. 2 and 3 so far as their conviction is concerned. This appeal is, therefore, filed by accused No. 1 alone challenging his conviction and sentence. 9. Mr. Agarwal who has appeared in support of this appeal, made it clear at the outset that while it should not be taken that he concedes that the conviction under section 447, is correct, it is enough that we should take note of the fact that he is not pressing that contention and that his only endeavour would be to challenge the conviction of the accused for the offence under section 304, Part I, of the Indian Penal Code. Mr. Agarwal has assailed the conviction for the offence under section 304, Part I, on the ground that having regard to the fact that according to the evidence for the prosecution itself both accused Nos. 1 and 2 had assaulted the deceased Sunderabai on the head with an axe and Fas respectively, the learned Judge was not justified in excluding the possibility of accused No. 2 being responsible for that injury and in picking up accused No. 1 only as being responsible for that injury. At any rate Mr. Agarwal submitted that the evidence against accused No. 1 is not reliable and he is, therefore, entitled to the benefit of doubt even as accused No. 2 was given that benefit. 10. As regards the question of trespass, we are satisfied that there is overwhelming evidence to show that no exception could be taken to the finding of the learned Judge that the accused did in fact trespass into the land on the date of the incident and that the possession of the land was throughout with the victims of the incident and not with the accused. That fact would be clear from the fact that as per the unchallenged evidence, initially the disputed land was purchased not by Pandharinath alone who is the head of his family but by Pandharinath Gaikwad and one Kisan Kashid who is a stranger to that family. That fact would be clear from the fact that as per the unchallenged evidence, initially the disputed land was purchased not by Pandharinath alone who is the head of his family but by Pandharinath Gaikwad and one Kisan Kashid who is a stranger to that family. There is nothing in the evidence to suggest that Pandharinath had acquired the interest of Kisan Kashid to this land or that Kisan Kashid had relinquished his interest in this land. Again, it is significant to note that immediately after the sale deed (Ex. 27) dated 6-1-1969, by Pandharinath to accused No. 4, the accused having tried to enter the land, Pandharinath and Kisan objected to the same and first they took the matter to the Sarpanch Khanderao (P.W. 2) and then they filed two suits in quick succession. They succeeded in securing ad interim injunction which was confirmed in Civil Suit No. 437 of 1969 filed on 3-4-1969 and that injunction against the accused being confirmed on appeal in the district Court continued till 9-7-1971 when this Court granted a stay of that injunction. Therefore for well over two agricultural years prior to the date of the incident and even during the summer operations of 1971-72 undoubtedly it is the victims of the incident who were in possession of the land and not the accused. Clearly therefore, when the accused went to the land on the date of the incident, they had gone to trespass on the land and, therefore, the conviction of the accused for trespass could not be assailed by Mr. Agarwal. 11. As regards the main submission of Mr. Agarwal about the conviction of the accused for the offence under section 304, Part I of the Indian Penal Code, all that could be said is that Mr. Agarwal is trying to make assumptions and submissions which are not borne out by the evidence on record or by the probabilities. Now in the F. I. R. (Ex. 25) Pandharinath stated in terms that Sunderabai was assaulted by accused No. 1 with an axe on the head. After having made that statement in the F. I. R , Pandharinath has stated that at that time Laxmibai came forward. The next statement is that, Sadashiv (accused No. 2) struck with Fas and so he and his brother went there. From this recital in the F.I.R., Mr. After having made that statement in the F. I. R , Pandharinath has stated that at that time Laxmibai came forward. The next statement is that, Sadashiv (accused No. 2) struck with Fas and so he and his brother went there. From this recital in the F.I.R., Mr. Agarwal argues that the learned Judge was not right in observing in paragraph 17 of his judgment that the complaint is, however, silent about accused No. 2 using Fas while hitting Pandharinath. But then as the sentence stands, no exception could be taken to the interpretation put by the learned Judge on the complaint. In fact that is the very interpretation which was being sought to be-put by the learned Advocate who had appeared in the trial Court who was appearing for all the accused. It is also true that while in the trial Court in their substantive evidence Pandharinath, Laxmibai and Gulab have stated parrot like that accused No. 1 assaulted Sunderabai with axe on the head and accused No. 2, also assaulted her with the Fas on the head, scrutiny of the evidence leaves no doubt that these witnesses could not at all be relied upon when they state that accused No. 2 was the assailant of Sunderabai. In the first place, the medical evidence furnished by Dr. Laxman Ferwani (P.W. 11) who has held the post mortem would show that the injury which has proved fatal was a solitary injury as a result of a single stroke. There is no suggestion either by the prosecution or by the defence that injury could have been the result of multiple strokes or at any rate of more than one stroke. Therefore, when the Medical Officer was examined, it was accepted by both the sides or at any rate it was not disputed by both the sides that the injury is a result of a single stroke. When that is the sort of evidence and witnesses have come forward to state that more than one injury has been inflicted by two assailants the Court has to scrutinize that evidence with utmost caution. Judged in that light, it would appear that the evidence about the assault of Sunderabai by accused No. 2 cannot be accepted. 12. When that is the sort of evidence and witnesses have come forward to state that more than one injury has been inflicted by two assailants the Court has to scrutinize that evidence with utmost caution. Judged in that light, it would appear that the evidence about the assault of Sunderabai by accused No. 2 cannot be accepted. 12. So far as Pandharinath is concerned, as we have endeavoured to show, while he is definite about the assault by accused No. 2 on the head of Sunderabai with the axe, he has not at all made any specific statement about accused No. 2 being the assailant of Sunderabai and that is how his F.I.R. has been interpreted by the defence in the trial Court and that has been accepted both by the prosecution and the Court below. Again when we read the evidence of Laxmibai, her cross-examination shows, that in her statement before the police she has not at all referred to the assault by accused No. 2. She has also not referred to the assault by accused No. 1 with the axe and we are however told that in her statement before the police she has stated that accused No. 1 assaulted the deceased with a Fas. But then since that part of the police statement is not brought on record, either by the prosecution or by the defence, the legal evidence of this witness boils down to this. Whereas in her substantive evidence she states that both the accused Nos. 1 and 2 are the assailants of Sunderabai, she has not at all stated before the police about accused No. 2 being the assailant. The contradiction by reference to the police statements with regard to accused No. 1 is only with regard to the instrument and not on the point of accused No. 1 in fact being the assailant. 13. As regards Gulabrao, in his statement before the police he has not stated about the assault on Sunderabai by accused No. 2. Therefore, it would appear that all these three witnesses are consistent only with regard to the assault on Sunderabai by accused No. 1 and their story about accused No. 2 being the assailant of Sunderabai is an improvement. As regards Gulabrao, in his statement before the police he has not stated about the assault on Sunderabai by accused No. 2. Therefore, it would appear that all these three witnesses are consistent only with regard to the assault on Sunderabai by accused No. 1 and their story about accused No. 2 being the assailant of Sunderabai is an improvement. It is true that Baban Chorge (P.W. 10) has not been contradicted by his police statement which was first recorded on 15th September, 1971 when he says that accused No. 1 assaulted Sunderabai with an axe and accused No. 2 assaulted Sunderabai with a Fas. But then we cannot lose sight of the fact, that by that time the investigation was taken over by another police officer and the supplementary statements of the earlier witnesses had also came to be recorded. There is no good reason as to why the evidence of this witness should not have been recorded prior to that date when in fact the statements of other witnesses were recorded. In view of this fact although the evidence of this witness about the assault No. 2 would appear to be consistent with his police statement dated 15th September, since his police statement itself was belated and since the other witnesses whose presence cannot be doubted have evidentially made an improvement over their earlier police statements in the bid to involve accused No. 2, we cannot accept the evidence of Baban Chorge against accused No. 2 as reliable. The scrutiny of the oral evidence shows that so far as the involvement of accused No. 2 with the assault on Sunderabais head is concerned, it is clearly an afterthought and cannot be accepted. Any doubt is set at rest by the unchallenged expert evidence of Dr. Fervani to the effect that the fatal injury is a result of a single stroke. Since on that point the witnesses are consistent it would appear that the learned Judge was perfectly justified in holding that it is accused No. 1, and he alone, who is responsible for that fatal injury and not accused No. 2. For whatever it is worth we may also mention that there is absolutely no suggestion either by the prosecution or by the defence to the Medical Officer that the injury in question could have been caused by a Fas. For whatever it is worth we may also mention that there is absolutely no suggestion either by the prosecution or by the defence to the Medical Officer that the injury in question could have been caused by a Fas. In fact as we have pointed out both the prosecution and the defence accepted the position that the injury was the result of a single stroke. The cross-examination by the defence shows that a futile endeavour was made to show that injury might have been the result of the fall of the yoke of the cart after the rest stand of the yoke had slipped, a suggestion which has been discarded by the Medical Officer with a chuckle and almost ridicule. In this state of the record we see no substance in the submission of Mr. Agarwal that there is no reason to pick up accused No. 1 as the assailant and that the possibility of accused No. 2 being the assailant could not be excluded. We also see no substance in the submission of Mr. Agarwal that at any rate in view of the evidence of Laxmibai, who was the first to be present on the spot and the omission of Laxmibai to state before the police about the assault by accused No. 1 with an axe, the accused No. 1 is entitled to benefit of doubt. We should not forget the fact that Laxmibai is not the only witness in this case. We also could not ignore the fact that even according to the defence, all the victims of the incident and eye witnesses except Baban Ghorge were present. When that is the stand of the defence itself, we see no reason to suspect the version of Gulab and Pandharinath when they have consistently stated that it is accused No. 1 who assaulted the deceased on the head with an axe. There is, therefore, no scope for any doubt or confusion which is tried to be urged by Mr. Agarwal in support of this appeal so far as the guilt of accused No. 1 is concerned. We are, therefore, definitely of the view that it is accused No. 1 alone and none else who is responsible for the fatal injury sustained by Sunderabai and that the attempt of the prosecution to rope in accused No. 2 in that connection is clearly an improvement and an afterthought. 14. Mr. We are, therefore, definitely of the view that it is accused No. 1 alone and none else who is responsible for the fatal injury sustained by Sunderabai and that the attempt of the prosecution to rope in accused No. 2 in that connection is clearly an improvement and an afterthought. 14. Mr. Agarwal then submitted that the offence would fall under section 304, Part II of the Indian Penal Code. We are not impressed with this submission of Mr. Agarwal. We are also not impressed with the reasoning of the learned Judge that the offence would fall under section 304, Part I. In fact having regard to the medical evidence that the injury was sufficient in the ordinary course of nature to cause death and that it is aimed on a very vital part of the body and the assault must have been with considerable force in order that the impact might have caused serious consequences as was noted by the internal examination, it would appear that the case would be covered by the third clause of section 300, of the Indian Penal Code. Since in our opinion no exception can be invoked, the learned Judge was in error in convicting the accused for the offence under section 304, Part I, of the Indian Penal Code. However, since there is no appeal by the State we leave the matter there and we have referred to this aspect only to repel the contention of Mr. Agarwal that the offence would be one under section 304, Part II of the Indian Penal Code. 15. In the view we have taken of the case, there is no substance in the last submission of Mr. Agarwal on the question of sentence with which we see no reason to interfere. 16. In the result, the appeal fails and is dismissed, subject to the modification that the period from 30-9-1971 when the accused was taken in custody till the date of the judgment of conviction dated 31-10-1972 shall be set off against the substantive period of sentence which is awarded to the accused, appellant. -----