JUDGMENT 1. - This is an appeal against the judgment passed by the learned Addl. Sessions Judge, Sikar, dated 17.12.1975, under section 302, IPC, to imprisonment for life and a fine of Rs. 101/- and in default of payment of fine to a further rigorous imprisonment for one month. 2. On 26.8. 1974, a written report (Ex. P. 4) was filed by Mst. Jamna, wife of Ladu Balai, resident of Palsana, to the SHO, Police Station, Khatu. The same was presented by Narain Singh (PW. 5), wherein it was alleged that on 24.8.1974, at about 7 p. m. Chotu and Bhagirath were abusing her husband Ladu Ram and when she protested, accused persons Chotu, Bhagirath, Ishar and Rukman came to her Gwari armed with `rapan' and gave beating to her husband Ladu and her sons Chotu and Shrawan. She and her Dewar Hanuman intervened and rescued them, otherwise they would have killed them. Her husband had received serious injuries and her sons also received injuries and they are admitted in the Sikar Hospital and she was with them and, therefore, delay in making the FIR. On this report, the SHO, Khatu Shyamji, Shri Kamaruddin Khan (P.W-2) registered the case against the accused persons. Ladu died in the hospital on 29.8.1974. Dr. A.N. Mathur conducted the postmortem, whose report is Ex. P. 6, which contains his opinion that the cause of death was shock and hemorrhage brought about by the injury to skull and the fractured skull bones. After investigation, a challan was filed against the three accused-appellants in the Court of Addl. Munsif & Judicial Magistrate, 1st Class, Sikar, for the offence under Section 302, 323 and 447, IPC. The learned Judicial Magistrate committed the accused to the Sessions and the accused were charged with the commission of the offence punishable under Sections 302, 323 and 447, IPC. The charges were read over and explained to them. The accused pleaded not guilty and claimed trial. 3. The prosecution examined as many as 16 witnesses, The statements of the accused persons were recorded, but they did not lead any evidence in defence. After hearing the arguments, the learned Addl. Sessions Judge, Sikar convicted the accused-appellants under Section 302, IPC and sentenced each of them to imprisonment for life for the murder of Ladu and a fine of Rs. 101/- and in default of payment to undergo rigorous imprisonment for one month. After hearing the arguments, the learned Addl. Sessions Judge, Sikar convicted the accused-appellants under Section 302, IPC and sentenced each of them to imprisonment for life for the murder of Ladu and a fine of Rs. 101/- and in default of payment to undergo rigorous imprisonment for one month. It is against this conviction and sentence passed by the learned Addl. Sessions Judge that the present appeal has been filed. 4. The sentence of accused-appellants Bhagirath and Chotu was suspended by this Court by its order dated 2.7.1975, whereas the sentence of accused-appellant Ishar was suspended by this Court vide order dated 7.9.1978 and he was ordered to be released on bail. 5. During the course of arguments when the statement of Dr. A. N. Mathur was being read over, it was found that according to him there was only one external injury contusion 4" X 2" on left parietal and mastoid region. But at the time of postmortem haemotoma on the left temporal and parietal region of the skull and there was fracture of left parietal and temporal bone. He also found subdural haematoma on the Left temporal region of the size of 4"X3" aDd the brain was contested. The prosecution case was that these injuries were caused by three accused persons. It was not clear as to whether the internal injuries observed by the Doctor on postmortem could be caused only by one stroke causing the only external injury, or it can be caused by more than one blow/stroke. Therefore, it was thought necessary in the interest of justice and for the just decision of the case to record additional evidence. So, the arguments were postponed and Dr. S. 1C. Pathak, Medical Jurist (Lecturer), SMS Hospital, Jaipur was examined on 19.7.1983. He was cross-examined by both the learned Public Prosecutor as well as by the learned counsel for the appellants. Arguments were again heard and judgment was reserved. 6. The learned counsel for the accused appellants has very strenuously argued that the incident took place on 24th at about 7 p. m., whereas the FIR. was lodged on 26th at 10.30 a. m 5 nearly 391/2 hours late, though the distance of the police station was only 10 miles. The prosecution has not been able to furnish any plausible explanation for the delay and, therefore, the whole prosecution case is concocted and should be rejected. was lodged on 26th at 10.30 a. m 5 nearly 391/2 hours late, though the distance of the police station was only 10 miles. The prosecution has not been able to furnish any plausible explanation for the delay and, therefore, the whole prosecution case is concocted and should be rejected. The other argument made by the learned counsel for the accused-appellant is that there is only one injury on the head of the deceased and the prosecution case is that all the three accused-appellants inflicted blow on the head of the deceased and, therefore, it is not clear and the prosecution has failed to establish as to which one of the accused is responsible for the fatal blow, which has caused the death of the deceased. Therefore, the accused persons cannot be convicted under Section 302, IPC simplicity. There is no evidence of any conspiracy, or premeditation. Assistance cannot be taken from Section 34 IPC and as there were only three persons (less than five), the prosecution cannot fall upon Section 149, IPC either, nor they were charged under Section 302/149 IPC and therefore, each one of them is entitled to acquittal, the learned counsel for the accused-appellants has also pointed out several contradictions in the evidence of the prosecution witnesses. He has further submitted that though a number of persons were present at the time of the incident, but no independent witness has been examined and the failure to examine independent witnesses though available could be fatal to the prosecution case and an adverse inference should be drawn against the prosecution He has further submitted that the statement of the prosecution I witnesses was recorded by the police under Section 161, Cr.P.C. after a long delay. Therefore, no reliance should be placed of the statements in the Court since all the prosecution witnesses are interested witnesses and there is no corroboration from any independent witness and their evidence is falsified by the medical evidence in as much as the prosecution case is that all the three accused persons inflicted blow on the head of the deceased, whereas according to the medical evidence there is only one external injury. Therefore, the accused persons are entitled for acquittal. 7. We have carefully gone through the record of the case and heard the arguments of the learned counsel for the accused appellants as well as the learned Public Prosecutor. 8. Therefore, the accused persons are entitled for acquittal. 7. We have carefully gone through the record of the case and heard the arguments of the learned counsel for the accused appellants as well as the learned Public Prosecutor. 8. The incident is alleged to have taken place on 24-8-1974 at 7 p. m. The written report was sent by Jamna (PW/1) wife of Ladu, deceased, which was sent to the police through Narain Singh son of Dula Ram. in which she has given an explanation in the FIR itself that after the incident when her husband and her two sons received injuries they were taken to the hospital at Sikar where they were admitted and she was with her husband in the hospital. Therefore, she could not i send the report earlier. It is most natural that when the husband of a lady received serious injuries and her two sons also received injuries, the first thing to do was to take them to the hospital for medical treatment, and when they were admitted in the hospital and all things settled and then only they thought of filing a report in the I Police Station. In her statement before the Court she stated that the deceased and the injured were first taken to Palsana Hospital; but when the Doctor said that the injuries were quite serious and they should take them to the hospital at Sikar. So they had taken the deceased as well as the injured persons to Sikar and, thereafter she came home and in the morning went to the motor-stand to the house of Chhotu Singh for getting the report written and then sent the written report to the Police I Station, Khatu along with Narain Singh. In view of this explanation, we do not think that the delay caused in lodging the FIR is fatal. So we should not discard I the prosecution case only on this account. 9. The other submission made by the learned counsel for the accused appellants is that the statements of eye witnesses were recorded very late. In this connection, he has relied on the evidence of Sugan Singh (PW9), in which he has stated that after having received the FIR duly marked by the SHO he went to the Sikar Hospital on 27th at 10 a. m. and be wanted to record the statement of Ladu and submitted Ex. In this connection, he has relied on the evidence of Sugan Singh (PW9), in which he has stated that after having received the FIR duly marked by the SHO he went to the Sikar Hospital on 27th at 10 a. m. and be wanted to record the statement of Ladu and submitted Ex. P13 to the Doctor who made an endorsement on the back of Ex. P-13 that Ladu is not in a position to give statement at that time. He has further submitted that thereafter he asked Chotu son of Ladu, who was also admitted in the hospital, to give his statement, but he refused and told that be will give his statement only after the statement of his father has been recorded. Then he went to Palsana on 28th August and wanted to prepare the site-plan. but Smt. Jamana wife of Ladu told that he should prepare the site-plan only in the presence of her husband Ladu and her sons who were in the hospital. Smt. Jamana also did not give her statement and hence, he did not record her statement. The statements of other witnesses were also recorded by the police only on 30th after the death of Ladu, This infirmity by itself is also not sufficient to disbelieve the prosecution witnesses to discard the prosecution case as a whole. This aspect of the case will be kept in mind while appreciating the evidence of the prosecution witnesses. 10. The prosecution has examined as many as 16 witnesses out of whom PWs 1, 2, 6, 7 and 8 are only formal.PW/3 is Dr. A. N. Mathur, Medical Jurist, Government Hospital, Sikar who conducted the post-mortem and found the following external injuries on the body of deceased Ladu on 29-8-1974 : "Contusion 4" X 2'' on left temporal and mastoid region of the skull." 11. After the postmortem examination, he found that haemotoma on the left temporal and parietal of the skull below the skin. There was subdural haemotoma in the left temporal region of the size of 4" X 3" and the brain was congested. In his opinion, the cause of death was shock and haemorrhage brought about by injury to skull. The injury found on the body of Ladu was sufficient, in the ordinary course of nature to cause death. Ladu had expired on 29-8-1974 at 4.20 a. m.. In his opinion, the cause of death was shock and haemorrhage brought about by injury to skull. The injury found on the body of Ladu was sufficient, in the ordinary course of nature to cause death. Ladu had expired on 29-8-1974 at 4.20 a. m.. He was cross-examined at length, but nothing material could be brought about.PW/4 is Chotu Singh who had ascribed the written report Ex. P/4 on the instance of Smt. Jamana at his residence in Palsana village.PW/5 is Narain Singh who had taken the written report Ex. P/4 to the Police Station, Khatu. He is also a witness to Panchnama Ex. P/1 as well as a recovery witness for Ex P/8, by which Chhotu had got recovered one stick and Ex. P/9 is recovery memo by which accused Bhagirath had got recovered another stick. In cross examination, he admits that he was given Ex. P/4 after 11/2 hours of the sun rise and the report was written by Chotu Singh at the instance of Smt. Jamana and he reached the police station at about 10 or 11 in the morning. He has further admitted in the cross examination that he was accused of committing theft.PW/9 is Sugan Singh through whom SHO Khatu had sent the FTR and he reached Sikar hospital to take the statement of deceased Ladu at about 10 or 11 on 27th August and gave a written requisition to the Doctor (Ex P/13) asking whether Ladu is in a position to give statement, or not. The Doctor on the back of Ex. P/13 wrote that he is not in a position to give any statement. He asked Chotu son of deceased Ladu as well to give his statement, but he said that he will give his statement after the statement of his father is recorded. Then on 28tb August he went to village Palsana for making a site plan and recording the statement of Mst. Jamana, but she said that since her husband and sons are in the hospital, he should do it in their presence.PW/10 is Hanuman who has been examined as an eye witness and has deposed that he was sitting in front of his house when Ladu Ram and his two sons Shrawan and Chhotu were making some construction. Chbotu, Bhagla and Ishar abused him. Chhotu son of Ladu asked not to abuse, whereupon they started quarreling. Chbotu, Bhagla and Ishar abused him. Chhotu son of Ladu asked not to abuse, whereupon they started quarreling. Thereupon Chotu and Bhagla struck a lathi blow on the head of Ladu. Ishar inflicted a blow by Rapi on his "kanpati". Thereupon Ladu fell down and became unconscious. Thereafter Ishar inflicted blow by Rapi to Chhotu as well, and Bhagla gave a lathi blow on the right hand of Chotu. Then Chotu, Chotu Balai, Natha Kumbar, Narain Singh and one Sardar came after the injuries were inflicted. Thereupon, he dong with Chhotu, Shrawan and Maidan took his nephew Ladu (deceased) to Palsana Hospital who advised him to lake him to Sikar. Thereupon they took him to Sikar. Blood was coming out from the left ear of Ladu. He was admitted in the hospital and then Ladu died after three days. He has further deposed that Ladu never came in senses after the injuries were inflicted and he never spoke and they did not make any report in the police as they had taken Ladu to Sikar Hospital and there was no one at home to make a report. In his cross examination he has admitted that the place where Ladu was making construction was in the joint possession of accused and Ladu and accused wanted that Ladu should not make erections and there was no quarrel before this incident between the accused and Ladu. Accused's house was three-four paces from the place where Ladu was making some construction. He has admitted that his statement was recorded by the police after five-six days. When confronted with his statement recorded by the police under Section 161, Cr. P. C. Ex. D/1 he told that he cannot give any explanation as to why it was not recorded therein that Chotu and Bhagla bad inflicted a lathi blow on the head of Ladu and that Ishar had inflicted an injury by Rapan on the `kanpati'. On further cross-examination he said that Chotu inflicted the first by lathi on Ladu and there after Bhagla inflicted the another lathi blow to Ladu and then Isher inflicted the blow by rapan. He was confronted with several other contradictions and omissions in his earlier statement recorded by the police under Section 161, Cr. P.C.PW/11 Smt. Jamana is another important eye-witness. He was confronted with several other contradictions and omissions in his earlier statement recorded by the police under Section 161, Cr. P.C.PW/11 Smt. Jamana is another important eye-witness. She has deposed that Chhotu and Bhagirath inflicted lathi blows on the head of her husband Ladu and thereafter Ishar inflicted a blow by rapan on the left kanpati There on her husband fell down. Thereafter Ishar inflicted a blow by `rapan' on the head of Chhotu. Bhagirath inflicted blow by lathi on the right hand of Chhotu. Her husband became unconscious and was not speaking, or talking. Other persons had come after they took her husband to Palsana Hospital and then to Sikar Hospital. Her husband neither opened the eyes, nor uttered a single word from his mouth She returned from the hospital in the night and in the morning she got the report written by Chhotu Singh and sent through Narain Singh. In cross-examination, she could not explain as to why it has not been written in her statement Ex. D/2 recorded by the police under Section 161, Cr.P.C. that Cbhotu and Bhagirath had inflicted lathi blows to her husband. She has, however, not explained other contradictions and omissions in her statement recorded by the police under Section 161, Cr.P.C., or Ex. P/4 report got written by her.PW/12 Chhotu is another important eye-witness who is none else but the son of the deceased Ladu. He has also deposed that Chhotu and Bhagirath inflicted lathi blow on the head of his father and then Ishar inflicted a blow of Rapan on the left of his Kanpati. Thereupon Ladu fell unconscious and then Ishar inflicted a blow by rapan on his head and Bhagirath gave a lathi blow on his right hand. His uncle Hanuman PW/10 and mother Jamna PW/H intervened and there after the accused returned to their house. Thereupon they took his father to the hospital at Palsana and then to Sikar. His injuries were examined by Doctor Jangir. Dr. Jangir also saw the injuries of his father. His father died in the hospital after five days. His father was unconscious after receiving the injuries and did not speak till he died. He has admitted in his cross-examination that he had refused to give his statement to the police as his father was unconscious and said that he will give his statement after the statement of his father was recorded. His father was unconscious after receiving the injuries and did not speak till he died. He has admitted in his cross-examination that he had refused to give his statement to the police as his father was unconscious and said that he will give his statement after the statement of his father was recorded. He was also confronted with his earlier statement recorded by the police, Ex. D/3. He says that he has received two injuries. He did not show his injuries to Doctor at Palsana, nor his brother Shrawan showed his injuries at Palsana.PW/13 Shrawn is another important eye-witness. He has also deposed that he along with his brother Chhotu and other Ladu were erecting jhanti. Accused Chhotu, Bhagirath and Ishar abused him. Bhagirath gave a lathi blow on the right hand of his brother Chhotu. Ishar gave a blow by rapan on his head. Inbar gave a blow by rapan on the left kanpati of his father Ladu and he fell down. No other person gave any injury to Ladu. The learned Addl. Sessions judge, who recorded the statement of this witness, has recorded his demeanour that the witness is thinking and not replying and saying "mera jee ghabraya hua hai" and saying that do not write like this, "aur bada pareshan nazar aa raha hai." On further being questioned by the Public Prosecutor he deposed that Bhagirath and Chhotu bad inflicted injuries to his brother in his right hand after his father Ladu had fallen. Thereafter the accused ran away and he said that his statement was not recorded by the police and they had told that they will not give statement because their father is lying unconscious in the hospital. PW/14 Moola and PW/15 Jodha Ram have been declared hostile. There is nothing material in their statements.PW/16 is Banshidhar, Investigating Officer. He was entrusted wsth the investigation on 13-8-1974 after the death of Ladu. 12. The accused in their statement under section 313, Cr.P.C. have denied all the allegations and have said that because of party factions they have been falsely implicated. The accused did not lead any defence. 13. We have considered the arguments of the learned counsel for the parties as well as perused the record of the case. 14. 12. The accused in their statement under section 313, Cr.P.C. have denied all the allegations and have said that because of party factions they have been falsely implicated. The accused did not lead any defence. 13. We have considered the arguments of the learned counsel for the parties as well as perused the record of the case. 14. In view of the medical evidence, we are of the opinion that the prosecution has failed to prove that the injuries to the deceased were caused by three different blow inflicted by the three accused-appellants. The deceased has got only one external injury, and that has been assigned to Ishar by PW/13 Shrawan. The evidence of other two witnesses Jamna and PW/12 Chhotu shows (hat they made improvements in their statements. None of the so-called eye-witnesses have assigned any particular injury, or blow by any of the accused persons to the deceased before police. But before the trial Court Mst. Jamana and her son Chhotu had tried to implicate all the three accused-appellants. There are several contradictions and omissions in their statements recorded by the police under section 161, Cr.P.C. and their statement recorded by the court during the trial. The statement of PW/13 Shrawn seems to be truthful. He has very clearly stated before the trial court, on oath, that only Ishar had inflicted the blow to the deceased, and nobody inflicted any injury to the deceased thereafter. Thus, we rely on the statement of PW-13 Shrawan whose evidence is also supported by Smt. Jamana and Chhotu to the extent that Ishar inflicted blow to the deceased. We have, therefore no hesitation in holding that ladu died because of the injuries inflicted by accused Ishar. We are, also, of the view that the other two accused-appellants Bhagirath and Chhotu have been falsely implicated, and they did not inflict any blow to the deceased Ladu. They are therefore, acquitted of the charge under Section 302, IPC for the murder of Ladu. 15. The learned counsel for the accused-appellants thereafter submitted that the accused-appellants could not be convicted under Section 302, IPC, and at the most they can be convicted under Section 304-11, and relied on Om Prakash v. State of Haryana (1980 Cr. L. R. (SC) 725 , wherein a blow was given and that struck on the vital part of the body resulting in death. L. R. (SC) 725 , wherein a blow was given and that struck on the vital part of the body resulting in death. The accused was held to be guilty under Section 304-11, IPC and sentenced to seven years rigorous imprisonment. In Randhir Singh & Dhire v. State of Punjab (1981 Cr. L.R. (SC) 543 , there was only one injury and there was no evidence of premeditation and there was some altercation between the deceased and the accused and the death occurred nearly after six days. The accused was convicted under Section 304-11, IPC and sentenced to suffer rigorous imprisonment for five years. In Suba Singh v. State of Punjab ( 1982 (3) SCC 226 ) also one single blow was inflicted with the blunt side of the weapon on a trivial dispute. The accused was convicted under Section 304-11, IPC and sentenced to seven years' rigorous imprisonment, instead of conviction under Section 302, IPC and sentence of imprisonment for life, In Hari Ram v. State of Haryana, ( AIR 1983 SC 185 ) only a single blow was dealt in the the heat of altercation. Intention to kill was not clear. Conviction under Section 302, IPC was held to be not proper and the offence was held to be under Section 304-II IPC. 16. In Kulwant Rao v. State of Punjab, AIR 1982 SC 126 ) the accused had given one blow with a dagger in apiggstrin area. There was absence of prior enmity. The accused was convicted under Section 304-11, IPC and sentenced to five years' rigorous imprisonment. 17. On the other band, the learned Public Prosecutor has relied on Gudar Dusadh v. State of Bihar, ( 1972 (3) SCC 118 ) and Kishan v. State of M.P., ( 1974 (3) SCC 623 ) and has urged that the accused-appellant should be convicted under section 302, IPC only and his sentence should not be changed from Section 302, IPC to Section 304-11, IPC. 18. We have gone through all these cases. Looking to the facts and circumstances of the case that the incident had taken place at the spurt of the moment when the accused persons had objected to the erecting of Jhanti and when they did not stop, accused-appellant Ishar inflicted only one blow on the head of the deceased which proved to be fatal. There was no premeditation, or motive. There was no premeditation, or motive. The accused persons and the deceased were neighbours and only one injury was inflicted, though there were three accused persons. Looking to all these facts, we think that accused Ishar should be convicted u/s 304-11, IPC only and sentenced to 7 years RI. 19. In the result, the appeal is partly allowed. Accused appellants Bhagirath and Chhotu Singh sons of Daula Balai are acquitted, whereas the conviction of accused-appellant Ishar s/o Daula Balai is converted from Section 302, IPC to Section 304-11 IPC and sentenced to seven years R. I. Accused Bhagirath and Chhotu are on bail. They need not surrender and their bail bonds are discharged. Accused Ishar is on bail. A warrant should be issued against Ishar for his arrest and taken to custody to Under go the remaining period off imprisonment. However it is made clear that accused Ishar will be Entitled to set of under Section 428, Cr P. C. for the period of detention during interrogation, investigation and trial. *******