JUDGMENT - P.S. SHAH, J.:---The appellant was tried by the Additional Sessions Judge, Aurangabad, for offences under sections 302 and 323 of the Indian Penal Code for having committed the murder of one Pandit Motiram Shroff and for voluntarily causing hurt to Smt. Radhabai, wife of the deceased. The learned Judge, however, found the appellant guilty under section 304, Part 2 of the Indian Penal Code instead of under section 302 as well as under section 323 of the Indian Penal Code and sentenced the appellant to suffer rigorous imprisonment for four years under Part 2 of section 304 of the Indian Penal Code and to suffer rigorous imprisonment for three months under section 323 of the Indian Penal Code. The substantive sentences were directed to run concurrently. Aggrieved by his conviction and sentence, the appellant has preferred this appeal. 2. The facts in so far as they are material are these. The incident took place at about 10 p.m. on March 1, 1975, outside the house of the deceased in village Kannad, District Aurangabad. Since about a couple of years prior to this incident, the deceased and the appellant were neighbours in the house belonging to one Rehman. The house consisted of two apartments which were occupied by each one of them as a tenant separately. Adjacent to both these tenements are the two cattle shed belonging to the deceased and the appellant respectively. At the material time, the appellant used to tether his cows and she-buffalos in his cattle shed. The deceased also used to tether his cattle in his cattle shed. The relations between these two neighbours were not cordial. Even prior to March 1, 1975, there were quarrels between them on account of the cows and she buffalos of the appellant and also on account of water tap which, according to Radhabai, the wife of the deceased was installed by the deceased; while according to the appellant, this was installed by the landlord. On the date of the incident at about 10 p.m. there was a quarrel between Radhabai and the deceased on one side and the appellant on the other side over a she-buffalo of the appellant which went off from his cattle shed and entered the cattle shed of the deceased. On the date of the incident at about 10 p.m. there was a quarrel between Radhabai and the deceased on one side and the appellant on the other side over a she-buffalo of the appellant which went off from his cattle shed and entered the cattle shed of the deceased. It is the prosecution case that Radhabai noticed the appellantss she-buffalo having come to the cattle shed of the deceased and giving pushes to the cow belonging to the deceased, as a result of which, the cow fell down. Radhabai, therefore, drove away the she-buffalo of the appellant from the cattle shed. Then Radhabai came on the ota of their house and warned the appellant that he should take care of his she-buffalo. On hearing this, the appellant came out of his house and abused her in filthy words. There was an exchange of words between the two. On hearing the exchange of words, the deceased came out of the house with a torch, as at that time electric light was off. He warned the appellant that he would impound his cattle in the cattle pond. The appellant then went into his house and returned immediately with a stick and dealt a blow of the stick on the right hand of the deceased. In the process, the torch which was in the right hand of the deceased fell down on the ground. While the deceased bent down for lifting the torch, the appellant dealt a blow with the stick on the head of the deceased. Immediately thereafter the appellant pushed the deceased by that stick. The deceased then fell down just near the entrance of his house. The appellant then dealt one blow with the stick on Radhabais fore-head causing her a bleeding injury above the left eye brow. Radhabai then went to the Police Station which was situate hardly at a distance of 200 feet from her house and gave the information of the occurrance and then returned along with policemen. The deceased who was then not in a position to walk was carried to the police station. The police sent the deceased to the Primary Health Centre in the village with a Yadi. Dr. Hanmant (P.W. 16) who was Medical Officer-in-charge of the Primary Health Centre examined both the deceased and Radhabai and treated them. The deceased who was then not in a position to walk was carried to the police station. The police sent the deceased to the Primary Health Centre in the village with a Yadi. Dr. Hanmant (P.W. 16) who was Medical Officer-in-charge of the Primary Health Centre examined both the deceased and Radhabai and treated them. He noticed that the deceased had sustained the following injuries : Lacerated wound on forhead on frontal bone. (Haemotoma measuring 3" x 2" below the lacerated wound) 3. As he found the injury to be serious and suspected fracute to skull bone and also injury to brain, he advised the patient to be taken immediately to hospital at Aurangabad. On examination, he also found that Radhabai had sustained the following injuries: i. lacerated wound on left supra orbital region measuring 1 cm. x 1/4 cm. ii contusion on left arm. Accordingly, the deceased was carried in a taxi to Medical Hospital at Aurangabad. He was examined by Dr. Galande who immediately admitted the deceased in the emergency ward. Dr. Gaikwad, the Surgeon attached to the hospital, performed a surgical operation upon the injured Pandit because of the head injury. Pandit however, died in the hospital at about 8.45 p.m. on March 5, 1975. It appears that the deceased was unconscious since his admission in the hospital till his death. On March 6, 1975, the Head Constable attached to City Chowk Police Station at Aurangabad prepared the inquest panchanama of the dead body. Thereafter, Dr. Deshpande (P.W. 4), the Reader in forensic Medicines and Toxicology, Medical College, Aurangabd, performed the post-mortem examination over the dead body. On March 6, 1975, at about 7 p.m. Dinkar P.W. 8), brother of Radhabai, lodged the complaint (Exh. 22) with S.I. Bugdeo (P.W. 18) at the Kannad Police Station. On receipt of the complaint the Police Sub-Inspector registered an offence under section 302 of the Indian Penal Code against the accused and started investigation. During the course of the investigation, one Shahabad stone (Article No. 1) by removing it from the floor of the house of the deceased was seized under a panchanama as it was found stained with blood. Similarly, the Sub-Inspector seized under a panchanama the blood stained shirt, dhoti, saree and the torch which were produced by Dinkar from the house of the deceased. Similarly, the Sub-Inspector seized under a panchanama the blood stained shirt, dhoti, saree and the torch which were produced by Dinkar from the house of the deceased. During the course of the investigation, the investigating officer also recorded the statements of eye-witness, Radhabai, the complainant, Dinkar, and some others. A stick was also recovered and seized under a panchanama at the instance of the appellant. All the articles which were seized under various panchanamas were sent to the Chemical Analyser. The report showed that human blood was found upon the stone, shirt and dhoti of the deceased and the saree of Radhabai. However, no blood was detected on the stick. At the trial, the prosecution examined as many as 19 witnesses including the eye-witness, Radhabai and H.C. Deshmukh (P.W. 15) who was attached to Kannad Police Station on March 5, 1975, and sent the injured with a Yadi to Dr. Haralkar on that night. The prosecution also examined another eye-witness, Ramkrishna More (P.W 10), who, however, did not support the prosecution at the trial and was treated hostile and cross-examined by the prosecution. The prosecution relied on the testimony of three doctors, M/s. Haralkar, Galande and Deshpande in support of its case. 4. The appellant gave his version in his statement under section 313 of the Criminal Procedure Code. According to his case, on hearing the abuses given by Radhabai he went near her and requested her not to abuse him. At that time she had a stick in her hand. While he was requesting her not to abuse him; she gave a stick blow on the right side upon his waist. While she was attempting to inflict another blow of the stick, he caught hold of the stick. At that time some of the persons who had gathered there persuaded him to leave the stick and go home. Accordingly, he left the stick and went back to his home. The learned Judge relied on the evidence of eye-witness, Radhabai, and held that it was the appellant who inflicted the stick blows on the deceased and Radhabai. As far as the injuries caused to the deceased are concerned, he held that the appellant could be held guilty for offence under section 304 Part II and not under section 302 of the Indian Penal Code. As far as the injuries caused to the deceased are concerned, he held that the appellant could be held guilty for offence under section 304 Part II and not under section 302 of the Indian Penal Code. Likewise, the appellant was held guilty under section 323 of the Indian Penal Code for the injuries caused to Radhabai. Accordingly, the learned Judge passed on order convicting and sentencing the appellant as above. 5. Mr. Agarwal, the learned Counsel, appearing for the appellant urged that the case against the appellant rests on the evidence of the single eye-witnesses, Radhabai, and her evidence should not be relied on, particularly having regard to the fact that the First Information Report was not lodged at the police station till March 6, 1975 i.e. five days after the incident. 6. I have carefully considered the evidence of Radhabai who admittedly was present at the time of the incident and also had sustained injury Radhabai has fully supported the prosecution case. The Counsel was unable to point out any infirmity in her evidence. The learned trial Judge was impressed by her evidence. I also have to hesitation in placing reliance on her testimony which I find to be natural and reliable. It is true that the first information report was lodged at the Police Station after the death of her husband. However, the delay in recording the first information report must in the facts of their case be attributed to the carelessness on the part of the Head Constable, Deshmukh, who was immediately approached by Radhabai and others. It was his duty to record the statement immediately after Radhabai brought the injured to the Police Station. However, I do not think that the delay in recording the first information report renders the evidence of Radhabai unreliable. As soon as Radhabai and her husband were brought to the police station immediately after the occurrance, H.C. Deshmukh forwarded them with two yadis to the dispensary. Memo (Exh. 35) are as under. However, I do not think that the delay in recording the first information report renders the evidence of Radhabai unreliable. As soon as Radhabai and her husband were brought to the police station immediately after the occurrance, H.C. Deshmukh forwarded them with two yadis to the dispensary. Memo (Exh. 35) are as under. ^^esMhdy vkWfQlj lkgsc] nok[kkuk] dUuM- ;kaps gq-l- fo"k; % iaMhr eksrhjke ljkQ ;kapk bykt gks.ks laca|h fouarh dh vkt rkjh[k 1-3-75 jksth- jk=h 22-00 ok- ps lqekjkl EgSl lqVyh R;k lccho#u jkejko kkejko ekGh ;kauh nk#ps ulsr dk<hus ekjyh vkgs- R;kaps ifj{k.k ?ksvqu iq<hy dkjokbdjhrk gq- erkiek.ks lVhfQdsV feG.ksl fouarh vkgs- 22-30 ok- gq-l- tkghj gks; 1 3 75 lgh** To the same effect is the memo at Exh. 36 except the fact that the subject mentioned is in respect of the injuries caused to Radhabai. Under these circumstances no importance can be given to the fact that the formal complaint was recorded a few days later after the death of Pandit. The contents of the two yadis (Exhs. 35 and 36) lend sufficient corroboration to testimony of Radhabai. The evidence of Radhabai clearly proves that it was the appellant who had assaulted the deceased and Radhabai with a stick. I see no reason to reject her testimony and have no hesitation in acting on her testimony though not corroborated by the other witness, Ramkrishna More, who has turned hostile. 7. It was then urged by Mr. Agarwal that in view of the medical evidence, it is not possible to convict the appellant under section 304 Part II of the Indian Penal Code. He submitted that the offence, if any, would fall under sections 326 or 323 or in the alternative under section 324 of the Indian Penal Code. I see considerable substance in the contention of the learned Counsel that the offence committed by the accused so far as the deceased is concerned, would be under section 324 and not under section 304 Part II of the Indian Penal Code. According to Radhabai, only one stick blow was given on the head of the deceased. So far as the second stick blow is concerned, it was, according to her evidence, on the right hand of the deceased. The head injury caused to the deceased ultimately led to the death of the deceased. It would now be necessary to turn to the evidence of Dr. So far as the second stick blow is concerned, it was, according to her evidence, on the right hand of the deceased. The head injury caused to the deceased ultimately led to the death of the deceased. It would now be necessary to turn to the evidence of Dr. Deshpande who carried out the post-mortem. His evidence shows that he found the following external injuries on the deceased. "i. A surgical stitched wound 10 cms. in length, on right parietal and temporal region, above the right ear. It was straight. It was longitudinally placed. There were 10 stitches. ii. Abrasion in mid line in frontal region measuring 3 cm. x 2 cm. iii. Contusion in occipital region, measuring 5 cms. x 2 cms. This contusion was 2 cms. on the left of the mid line. iv. Contusion measuring 3 cms. x 2 cms. on the left side injury No. iii." 8. On internal examination, he found the following injuries: "i. Contusion underneath the scalp. ii. Comminuted fracture of skull bones involving parietal temporal and frontal bones on right side and fracture of parietal bone on left side. iii. A burr hole was seen in right temporal region. It was made by the Surgeon. iv. Extra dural and sub-dural haemorrhage in mid line extending on both sides but predominantly on right side. v. The brain was congested and it showed multiple small intra cerebral haemorrhages." 9. According to him, all the internal injuries were corresponding to the external injury No. 1. Thus, he does not attribute any of the internal injuries to any of the external injury Nos. ii, iii and iv. According to his testimony, it is the external injury No. 1 corresponding with all the internal injuries which was in the ordinary course of nature sufficient to cause death. In his cross-examination he admitted that the external injury No. 1 could be caused by a forcible fall on the ground. Radhabais evidence shows that after her husband received the stick blow on the head, he fell down. It is, under the circumstances, not possible to say which of the external injuries were caused by the stick blow and which of them were caused after the fall. Radhabais evidence shows that after her husband received the stick blow on the head, he fell down. It is, under the circumstances, not possible to say which of the external injuries were caused by the stick blow and which of them were caused after the fall. External, injuries ii, iii and iv or any one of them could have been caused by the stick blow, but it is equally possible that the forcible fall on the ground could as well have caused external injury No. 1. In the circumstances, it is not possible to conclude positively that external injury No. 1 was caused by the stick blow alone and not by fall. It is not the evidence of Dr. Deshpande that external injury Nos. ii, iii and iv or any one of them were sufficient in the ordinary course of nature to cause ones death. Actually his evidence does not show that any particular internal injury was caused as a result of external injury Nos. ii, iii, and iv. The learned Judge was therefore, not justified in applying section 304 Part II to the facts of this case. The accused is entitled to a benefit of doubt, in view of the possibility of external injury No. 1 having been caused as a result of the fall. 10. Then the question is which of the other sections would be applicable. In my view, the offence would fall under section 324 of the Indian Penal Code and not under section 323 of the Indian Penal Code as in this case the appellant has voluntarily caused hurt by means of an instrument viz. a stick which is likely to cause death. I, therefore, find him guilty under section 324 of the Indian Penal Code. 11. In the result, the appeal is partly allowed. The order of, conviction of the appellant under section 304 Part-II of the Indian Penal Code as well as the order of sentence under the said section set aside and instead the appellant is convicted of the offence under section 324 of the Indian Penal code and sentenced to suffer rigorous imprisonment for 18 (eighteen months and fine of Rs. 500/-, in default of payment of fine to undergo rigorous imprisonment for three months. The conviction and sentence under section 323 of the Indian Penal Code is confirmed. The substantive sentences are ordered to run concurrently. 500/-, in default of payment of fine to undergo rigorous imprisonment for three months. The conviction and sentence under section 323 of the Indian Penal Code is confirmed. The substantive sentences are ordered to run concurrently. The order relating to the property seized during the course of investigation is maintained. 12. The appellant to surrender to his bail. Appeal partly allowed. -----