JUDGMENT 1. - The appellant Tita was challenged for an offence under Section 301 Part I, I. P. C. by the police. He was, however, charged under Section 302 I. P. C. At the trial the learned Sessions Judge, Banswara found him guilty of committing the offence under Section 304 Part I. I. P. C. and sentenced him to undergo rigorous imprisonment for a period of 6 years and a fine of Rs. 2000/- in default of payment of fine to undergo rigorous imprisonment for one year by his judgment dated 24. I. 1976. 2. Aggrieved by his conviction and sentence the appellant has preferred this appeal. 3. The prosecution case, in brief, is that on 19. 10. 1975 at about 8 P. M. the deceased Rajhang aged about 60 years old was grazing his bullock on the fringes (medh) of his field known as Khajurawala situated in the village Vakaner. The adjoining field belonged to the appellant Tita. The appellant came there and asked the deceased as to why he was grazing his bullock in the field of the appellant and started inflicting lathi blows on the person of the deceased. On his cries Madia, PW 3, Lalu PW 4 and Hadia PW 8 came on the spot. The accused ran away. The injured Rajhang got himself examined for his injuries by Dr. Kanakmal Jain PW 2 at 10 A. M. on October 20, 1975 and, thereafter, lodged the report Ex. P/3, at the police station Kushalgarh. As advised by Dr. Kanakmal Jain, he went to the Government Hospital, Banswara for his X-Ray. He remained there for six days. He came back and got admitted himself in the P. H. C. Kushalgarh on October 27, 1975. He, however, died next day i. e. on 28th October, 1975. The post mortem examination was conducted by Dr. B. N. Bhargava P.W.l. The accused Tita was arrested. During investigation, on his furnishing the information, lathi Article 1 was recovered from his house. Achallan under section 304 I. P. C. was filed against the appellant in the court of Munsif-and-Judicial Magistrate, Kushalgarh, who committed the appellant to the court of Sessions to stand his trial. The learned Sessions Judge, Banswara convicted and sentenced the appellant as mentioned above. 4. Achallan under section 304 I. P. C. was filed against the appellant in the court of Munsif-and-Judicial Magistrate, Kushalgarh, who committed the appellant to the court of Sessions to stand his trial. The learned Sessions Judge, Banswara convicted and sentenced the appellant as mentioned above. 4. I have heard the arguments of the learned counsel for the appellant and the learned Public Prosecutor and have gone through the record of the case. 5. The contention of the learned counsel for the appellant is that the prosecution has failed to establish beyond doubt that the author of the said injuries on the person of Rajhang was the appellant. For this he has contended that there was no enmity between the parties. The First Information Report was lodged after about 20 hours of the occurrence. There is variance in the statements of the eye-witnesses as to the injuries and the injury report. The lathi has been recovered which has not been connected with the crime as it has not been proved that it was stained with human blood. The First Information Report Ex. P/3 which has been relied upon by the learned trial Judge under the provisions of Section 32 of the Indian Evidence Act also suffers from the infirmities, as it was not lodged soon after the occurrence and the injured had an opportunity to consult other persons and, therefore, the appellant has been falsely implicated. 6. Another contention of the learned counsel for the appellant is that looking to the facts and circumstances of the case there is no offence made out against the appellant under section 304 Part 1 I. P. C. and he can at the most be held guilty of an offence under section 325 I. P. C. 7. In reply the contention of the learned Public Prosecutor is that the witnesses PW. 3 Madia, PW. 4 Lalu, and PW. 8 Hadia were not either with the complainant or with the accused in the field. Their houses are at some distances and when they heard cries of the deceased they ran to the scene of occurrence. In such circumstances they cannot be expected to have witnessed the whole of the incident and, therefore, they have seen some part of the beating; they have deposed accordingly. Their houses are at some distances and when they heard cries of the deceased they ran to the scene of occurrence. In such circumstances they cannot be expected to have witnessed the whole of the incident and, therefore, they have seen some part of the beating; they have deposed accordingly. It cannot be said that there is any variance as to the injuries between the statements of the eye-witnesses and the injury report. 8. As regards the delay in lodging the First Information Report it has been explained in the First Information Report itself that it was in the night about 8 P. M. when the occurrence took place, and the distance of the police station and the place of occurrence is about 9 Kilometers. The injured first went to the hospital to examine himself for the injuries and also for medical treatment and it was his natural conduct and thereafter he went to the Police Station. In these circumstances it cannot be said that the First Information Report was lodged with delay and it creates any suspicion. There is not an iota of suggestion that Rajhang has any prior consultation before the lodging of the First Information Report. Besides this the First Information Report which is admissible under Section 32 of the Indian Evidence Act is itself a very strong piece of evidence as it has taken place of dying declaration on the death of the injured. The dying declaration Ex. P/3 has been fully corroborated by Madia PW. 3, Lalu PW. 4 and Hadia PW. 8. He has placed his reliance upon Mannu Raja and another v. The State of Madhya Pradesh, AIR 1976 SC Page 2199. As regards the witnesses being relation by itself is not a ground to discard the evidence of witnesses, if it is found to be substantive. For this he has relied upon Sarwan Singh and others v. State of Punjab, AIR 1976 SC Page 2304. It may be said, at the outset, that Ex. P/3 the First Information Report, is admissible under Section 32 of the Indian Evidence Act as the informant Rajhang has died. Thus the First Information has narrated the incident in the natural way. It has been mentioned that the deceased Rajhang was grazing his bullock on the border of his field, it was moonlit night. P/3 the First Information Report, is admissible under Section 32 of the Indian Evidence Act as the informant Rajhang has died. Thus the First Information has narrated the incident in the natural way. It has been mentioned that the deceased Rajhang was grazing his bullock on the border of his field, it was moonlit night. Tita, whose field is an adjoining one, came there and asked him as to why he was grazing his bullocks there and started inflicting lathi blows on him. He has also stated that Hadia, Lalu and Madia reached at the place of occurrence. He has given the explanation as to why he had come late to lodge the report. I do not find that this Ex. P/3 suffers from any infirmity as to make it untrustworthy. This statement of deceased Rajhang in Ex. P/3 further finds much support from the statements of Madia, Lalu and Hadia which are quite natural and consistent. Their reaching at the spot during the course of occurrence cannot be doubted by any stretch of imagination. This evidence further finds corroboration from the medical evidence of Dr. Kanakmal Jain, who has examined the injuries of the deceased. Simply because the witnesses are related, it is no ground to reject their testimony in the circumstances of the present case particularly when their evidence is consistent and true and they reached the place of occurrence. There is no hard and fast rule that the evidence of a partisan witness cannot be acted upon without corroboration. If his presence at the scene of occurrence cannot be doubted and his evidence is consistent with surrounding circumstances and the probabilities of the case and strikes the court as true, it can be a good foundation for a conviction, more so, if some assurance for it is available frost the medical evidence. It has been so observed by their Lordships of the Supreme Court in Tameshwar Sahi and others v. State of U. P., 1976 SCC (Cr.) 19. Thus the prosecution evidence does not suffer from any infirmity to establish that it was the appellant who was the author of the injuries on the person of the deceased Rajhang. 9. The next point for determination is as to what offence is made out ? It has been held by the learned Sessions Judge that there was no intention to murder Rajhang on the part of the appellant. 9. The next point for determination is as to what offence is made out ? It has been held by the learned Sessions Judge that there was no intention to murder Rajhang on the part of the appellant. But looking to the facts and circumstances of the case that the injured was an old man of 60 years of age, the injuries inflicted were seven blows of lathi, it can be gathered from this circumstance alone that the accused had intention of causing such bodily injuries which may fall under section 304 Part I, I. P. C. 10. The injuries found on the person of the deceased were as under:- 1. (a) Contusion : 6 cm x 2 cm Transversely on outer side of left arm at upper third, (b) Fracture. left humerus at upper third. 2. Contusion 5 cm x 2 cm on dorsum of right forearm 8 cm below elbow. 3. Lacerated wound 3 cm x 1 cm x 1/2 cm on back of right elbow. 4. Contusion 7 cm x 21/2 cm on right chest over liver area in axillary line. 5. Contusion 5 cm x 2 cm on back of left leg 6 cm above ankle. 6. Contusion 4 cm x 2 cm on right buttock. 7. Contusion 6 cm x 2 cm on left back just medial to scapule. The injury No. 1(h) is a fracture on the left humerus at upper third. The doctor has no where deposed that these injuries either individually or collectively were sufficient in the ordinary course of nature to cause deeth. The learned Public Prosecutor concedes that looking to the nature of the injuries and the circumstances of the case, it cannot be said to be a case falling under section 304 Part. I, I. P C. but it can fall under section 304 Part II. I. P. C. 11. For an act to fall under the mischief of Section 304 Part II what is required is that the act is done with the knowledge that it was likely to cause death or cause such bodily injury as is likely to cause death. For proving this offence knowledge on the part of the accused that his act was likely to cause death must be there. In the present case no such knowledge can be inferred. The weapon of the offence used is a lathi. There was no premeditated plan. For proving this offence knowledge on the part of the accused that his act was likely to cause death must be there. In the present case no such knowledge can be inferred. The weapon of the offence used is a lathi. There was no premeditated plan. The quarrel ensued suddenly seeing that the deceased was grazing his bullock in the field of the appellant, the appellant got enraged. He simply wanted to beat the deceased with lathi which he had with him and lathi is such an article which is generally kept by such villagers with them. The injuries were not caused on any vital part of the body. From all these circumstances nether the intention nor the knowledge to cause death or to cause such bodily injury as was likely to cause death can be inferred. Therefore, the act of the appellant does not fell within the ambit of section 304 part I or 304 part 1 I. P. C. There is of course a fracture which is previous injury and it falls within the mischief of section 325 I. P. C. and he can be convicted for that offence. The conviction of the appellant is, therefore, altered from section 304 part I to that under section 325 /. P. C. 12. As regard the sentence the learned counsel has submitted that in State v. Jang Singh (4) the injury was grievous on the head of the deceased and it was Paused by Jali. The sentence of rigorous imprisonment for one year and a fine of Rs. 300/ - was considered sufficient. In that case the deceased improved in the hospital and was discharged but later on he died of the injury coupled with dysentery. Looking to the facts and circumstances of the present case, I feel that the sentence of rigorous imprisonment for two years and a fine of Rs. 230/ - would meet the ends of Justice. 13. In the result the appeal is partly allowed. The conviction of the appellant under section 304 part I, I. P. C. is altered to that under section 325 I.P.C. and the sentence is reduced from 6 years' rigorous imprisonment and a fine of Rs. 2000/ - to two years' rigorous imprisonment and a fine of Rs. 250/- in default of payment of fine to further undergo rigorous imprisonment for three months. 2000/ - to two years' rigorous imprisonment and a fine of Rs. 250/- in default of payment of fine to further undergo rigorous imprisonment for three months. The amount of fine, if recovered, be paid to Mst. Dipa, PW 5, widow of deceased. The period of detection undergone by the accused during the investigation, enquiry or trial of the case shall be set off under, section 428 Cr. P.C., 1973 against the term of imprisonment imposed upon him. *******