R. B. LAL, J. ( 1 ) THIS appeal is directed against the judgment and order dated 10-11-81 passed by the Bird. Additional Sessions Judge, Farrukhabad convicting the appellant Madho Ram Shakya of an offence under section 302 Indian Penal Code and sentencing him to undergo imprisonment for life. ( 2 ) THE prosecution case in brief was that the appellant and his elder brother Girvar Lal were living in separate portions of the same house in village Mubarakpur. The Barotha which was exit for both the portions was, however, joint. The appellant was insisting on partition of the Barotha but the partition could not take place. On 13-3-81 in the morning the appellant became enraged and began to demolish the Barotha with a spade. His son Om Prakash (PW-2) stopped him from doing so. At this the appellant rushed towards Om Prakash who ran away on account of fear. Smt. Ram Kunwari wife of the appellant and mother of Om Prakash, was present in the house of Hotey Ram which was nearby and came out to see if the appellant was assaulting her son. She proceeded towards her house. The appellant ran towards her in anger holding the spade and she ran back towards the house of Hotey Ram. The appellant felled the woman near the door of the house of Ram Datt and gave Phawara blows to her from its blunt side. This occurrence took place at about 8. 30 a. m. and was seen by Jwala Prasad, Niranjan Lal and Prahlad besides Om Prakash. These persons challenged the appellant and he ran away to the north of the village carrying the spade. Ram Kunwari sustained a bleeding wound at the back of her head and died some time later. ( 3 ) OM Prakash got a report of the occurrence written by Anokhey Lal (PW -5) and sent it to the police station Shamsabad which was two miles away through Komil, village Chaukidar. The report was lodged at the Police station the same day at 11. 30 a m. and a case was registered. The postmortem examination on the dead body of Ram Kunwari was performed by Dr. K. K. Agrawal (PW-l) at Fatehgarh on 14-3-81 at 11. 30 a. m. The police investigated the case and submitted charge-sheet against the appellant. ( 4 ) THE appellant admitted that on 13-3-81 at about 8. 30 a m. and a case was registered. The postmortem examination on the dead body of Ram Kunwari was performed by Dr. K. K. Agrawal (PW-l) at Fatehgarh on 14-3-81 at 11. 30 a. m. The police investigated the case and submitted charge-sheet against the appellant. ( 4 ) THE appellant admitted that on 13-3-81 at about 8. 30 a. m. he was demolishing the joint Barotha but he denied the other allegations of the prosecution. He said that Om Prakash and other witnesses were not present at that time. He denied to have given blows to his wife from the blunt side of spade. The appellant did not adduce any evidence in defence. ( 5 ) THE Trial Judge came to the conclusion that the prosecution evidence made out a case of murder against Madho Ram appellant and he, therefore, convicted and sentenced him as mentioned earlier. ( 6 ) THE report of the post-mortem-examination on the dead body of Smt. Ram Kunwari is Ex. Ka-1. The deceased was about 40 years old and of average built, Rigor-mortis was present in the lower extremities and had, partially passed off from upper extremities. The doctor found the following ante-mortemexternal injuries on the dead body: 1. Lacerated wound L shapped 2h/2t x x bone deep on the back of scalp, 8 above the first cervical vertebra. There was fracture of occipital bone underneath. 2. Contusion 3 x 21/2 on the left cheek. 3. Abraded contusion 11/2 x 1 on the back of left side of chest. 1 outer to midline and 7 below the shoulder. Internal examination revealed fracture of occipital bone. Membranes and brain were also lacerated. ( 7 ) IN the opinion of the doctor, death was due to shock, haemorrhage and coma as a result of ante-mortem-injuries. The doctor estimated the probable time since death at about one day. ( 8 ) IN his statement Dr. Agrawal said that injury no. 1 was sufficient in the ordinary course of nature to cause death. The deceased might have died on 13+81 at about 9 or 9. 30 a. m. All the injuries were caused by some bunt weapon and could be caused by the handle of a spade or by back side of the iron portion which is on the handle. The doctor denied the defence suggestion that injury No. 1 could be caused by a fall. 30 a. m. All the injuries were caused by some bunt weapon and could be caused by the handle of a spade or by back side of the iron portion which is on the handle. The doctor denied the defence suggestion that injury No. 1 could be caused by a fall. He said that injury No. I could be caused by a fall only if the head struck with great force against hard surface. He added that there could be a difference of about six: hours either way in the estimated duration of death. ( 9 ) THE Investigation Officer reached the scene of occurrence on 13-3-81 itself and carried out investigation. He prepared site-plan Ex. Ka-12. He found blood on Kharanja in front of the house of Ram Datt and indicated it by figure 5 in the site-plan. He took blood stained and simple earth from that place in separate sealed containers and prepared its Fard Ex. Ka- 10: The genuineness of both these documents (Exs. Ka-12 and Ka - 10) was admitted by the learned counsel for the accused under section 294 Criminal Procedure Code. ( 10 ) THE medical evidence which has not been impeached in this case goes to prove that Smt. Ram Kunwari died on 13-3-81 at about 9 or 9. 30 a. m. on account of head injury. The place where she died is fixed by the findings of the Investigating Officer who had reached the scene of occurrence on 13-3-81 at about mid day. He found the dead body of Smt. Ram Kunwari lying on the Kharanja and prepared its inquest report Ex. Ka-7. He also found blood at that place and took blood stained earth in a sealed container from that place. The dead body was handed over to Constable Dhawal Singh (PW-8) at 2. 30 a. m. on 13-3-81 for being taken to Fatehgarh for post-Mortem examination. Om Prakash first informant (PW-2) did not support the prosecution case on some points and was declared hostile, yet is statement shows that at about 8 a. m. his mother was present near the house of Hotey Ram and some time later he found her lying dead in front of the house of Ram Daft. ( 11 ) THE above evidence was not challenged by the defence and goes to prove ihat Smt. Ram Kunwari died on 13. 3. ( 11 ) THE above evidence was not challenged by the defence and goes to prove ihat Smt. Ram Kunwari died on 13. 3. 81 at about 9 or 9. 30 a. m. on the Kharanja in front of. the louse of Ram Datt on account of head injury instained between 8 a. m. and 9 a. m. These facts have also not been challenged before us and stand convincingly proved by the above evidence. ( 12 ) OM Prakash (PW-2) maker and Anokhey Lal (PW-5) scribe of the first information report Ex. Ka. 2 made statements to discredit this report and to show that it was written at about noon from the dictation of Sub-Inspector. Both these witnesses were declared hostile by the prosecution and cross- examined. The replies given by these witnesses in cross-examination go to indicate in a convincing manner that Anokhey Lal had written the first information report Ex. Ka. 2 from the dictation of Om Prakash before the arrival of any police official in the village and Om Prakash had sent it to the police station through village Chaukidar Komil. Both witnesses admitted that the report bore the signatures of Om Prakash. Om Prakash admitted in his cross-examination that the first information report was sent to the police station which was at a distance of two miles through Komil village Chaukidar and no one else gone to the police station before him (Komil ). He also admitted that the police came to the village two hours after Komil had left for the police station. This rules out the possibility of the first information report being written under the instructions of police Sub- inspector Anokhey Lal admitted that he had read over the report Ex. Ka. 2 to Om Prakash before obtaining his signatures. Head Cons. , table Deoki Nandan Awasthi (PW-7) stated that village Chaukidar Komil bad brought the first information report Ex. Ka. 2 to the police station at 11. 30 a. m. Before that no police official had gone to village Mubarakpur. All this is enough to show that the first information report was written by Anokhey Lal from the dictation of Om Prakash and thereafter signed by the latter and then the report was sent to the police station through village Chaukidar Komil. 30 a. m. Before that no police official had gone to village Mubarakpur. All this is enough to show that the first information report was written by Anokhey Lal from the dictation of Om Prakash and thereafter signed by the latter and then the report was sent to the police station through village Chaukidar Komil. ( 13 ) IN this case four witnesses on facts, namely Om Prakash, first informant (PW-2) Jwala Prasad (P. W. 3), Prablad (P. W. 4) and Niranjan Lal (PW-6) were examined by the prosecution. Jwala Prasad and Niranjan said that at the material time they were away from village and had not seen {he occurrence. These witnesses were declared hostile by the prosecution and were cress- examined with the help of their statements under section 161 Criminal Procedure Code Prahlad (PW-4) supported the prosecution case in full in his examination-in-chief which was recorded on 15. 10. 81. His cross-examination was done on 20. 10. 81 and that day he made a volte-face and said that his statement made on 15. 10. 81 was false and was made under police pressure as well as on account of ill-will which he bore towards the accused. He added that he was not present in the village on the date of occurrence. The prosecution declared this witness hostile and cross-examined him with the permission of the court, the witness admitted to have made a statement to the Investigating Officer but said that it was false. He denied the prosecution suggestion that his statement made on 15. 10. 81 was a true statement and whatever he had stated on 20. 10. 81 was false. ( 14 ) OM Prakash, first informant (P. W. 2) supported the prosecution story in part. He said that on the date of occurrence at about 8 a. m. his father (accused) began to demolish the Barotha. He demolished the door and began to pull down the roof. He (Om Prakash) asked the accused not to do so but the latter shouted at him and he ran away towards his field. At that time his mother was present near the house of Hotey Ram. Later on, some children went to his field crying that his mother had died. He came lack home and found that his mother was lying dead in front of the house of Ram Datt. At that time his mother was present near the house of Hotey Ram. Later on, some children went to his field crying that his mother had died. He came lack home and found that his mother was lying dead in front of the house of Ram Datt. This witness added that he had not seen anyone causing injury to his mother. He added that on his return he found that his father had run away from that place. This witness was also declared hostile by the counsel for the State and cross-examined with the permission of the Court. He persisted in saying that be had not seen the accused giving blow with Phawara to his mother. In cross-examination on behalf of the accused this witness added that the accused was having a fit of insanity since one or two days before the occurrence. ( 15 ) THUS, in this case testimony of only two witnesses namely Om Prakash and Prahlad is available. These witnesses were declared hostile by the prosecution and were cross-examined with the permission of the trial Judge. It is to be considered as to what value can be attached to the statements of these witnesses and how far they go to make out the prosecution case against the appellant. The law regarding the value to be attached to the evidence of a witness declared hostile has become well settled by now. In Sat Paul v. Delhi Administration1 the Supreme Court on a review of a number of authorities observed, this: From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot as a matter of law be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto. ( 16 ) THIS principle was reiterated in Karuppanna Thevar v. State of Tamil Nadu2 in the following words, a hostile witness may not be rejected outright but the court has at least to be aware that prima-facie, a witness who makes different statements at different times has no regard for truth. The court should, therefore be slow to act on the testimony of such a witness and, normally, it should look for corroboration of his evidence. ( 17 ) WE proceed to consider whether the testimony of these witnesses stands totally discredited or there are parts which still can he believed. ( 18 ) IN his examination in chief Om Prakash (P. W. 2) supported the prosecution case on many facts. He said that on the date of occurrence at about 8 a. m. the accused was demolishing the Barotha. He (Om Prakash) asked the accused not to do so but the latter shouted at him and that time his mother (deceased) was present near the house of Hotey Ram. From this stage, the witness made an important variation. He said that on account of fear he ran away to his field and came back on learning from some children that his mother had died. Thus, this witness did not support the prosecution story to the extent that the accused had given blows to the deceased with the blunt side of the spade. This part was crucial in order to connect the accused with the crime in question. Thus, this witness did not support the prosecution story to the extent that the accused had given blows to the deceased with the blunt side of the spade. This part was crucial in order to connect the accused with the crime in question. The witness supported the prosecution case in another respect and said that on return from his field he found his mother lying dead in front of the door of Ram Datt. This witness was declared hostile because he had omitted to state the aforesaid important part of the prosecution story. It is significant to note that this witness did not refute any part of the prosecution story. He supported several parts of that story but chose to express ignorance about one part which was material one. He did not say that his father had not given the fatal blow to his mother and also did not attempt to explain how the injuries were sustained by the deceased. His silence on this point thus causes a gap but does not go to falsify this part of the prosecution story. In our opinion, the witness is not to be treated as totally discredited on account of this silence. Those parts of his statement which are consistent with the prosecution story are in our opinion worthy of belief. They receive support from the first information report Ex. Ka. 2 which was lodged promptly at his instance. Here it may be made clear that this first information report cannot be used to fill up the gap which was left by this witness by his silence about the person who had caused injuries to the deceased. ( 19 ) PRAHLAD (P. W. 4) fully supported the prosecution case in his examination in chief and said that the accused had given blows to his wife (deceased) with the Kudal with which he (accused) was demolishing the Barotha. The examination-in-chief was recorded on 15. 10. 81. The cross- examination could not take place that day and was done on 20. 10. 81. On 20. 10. 81 this witness said that his statement given on the earlier date was false; be had made that statement under the pressure of the police and also because he bore ill-will towards the accused and wanted him (accused) to be sentenced. The cross- examination could not take place that day and was done on 20. 10. 81. On 20. 10. 81 this witness said that his statement given on the earlier date was false; be had made that statement under the pressure of the police and also because he bore ill-will towards the accused and wanted him (accused) to be sentenced. The witness added that he was not present in the village at the time of occurrence and had come back at about 10. 30 a. m. He had made a statement to the police on account of enmity with the accused. The statement given to the police was false. The witness added that the accused had broken his arm and had quarrelled with him four or five times and for this reason he was inimical towards the accused. The witness also said that the accused often became insane two or three days before the occurrence, the accused was eating food in a Thali and a dog was also eating from the same Thali. We have considered the statement of this witness and, in our opinion, the statement given by him on 20. 1081 was false and made in order to nullify the effect of his statement on the earlier date and in order to help the accused. It was merely an ipsedixit of this witness that he was inimical towards the accused, and, therefore, had made false statements on earlier occasions to harm him (accused ). If really there had been strained relations between this witness and the accused, he (witness) would have surely lodged a report at the police station. He would not have allowed the alleged incident of fracture of his arm to go un-reported. If this witness thought that the peculiar behaviour of the accused was on account of his fits of insanity, he would not have paid any serious need to them and would not have become inimical. We are not prepared to accept this story of enmity with the accused. The story of pressure exerted by the police is also not worthy of any serious notice. If it had been so, the witness would have complained about it to the trial Judge or would have made an application. This witness is of the Biradari of the accused. In this case, it is clear that all the persons, were out to help the accused. If it had been so, the witness would have complained about it to the trial Judge or would have made an application. This witness is of the Biradari of the accused. In this case, it is clear that all the persons, were out to help the accused. It is, therefore no wonder that the same persons persuaded this witness to change his position in cross-examination in order to save the accused. In our opinion, the testimony of this witness is not to be discarded as wholly discredited. His statement made on 15. 10. 8 I supporting the prosecution case in full is, in our opinion, true and believable. ( 20 ) ABOVE we have determined as to what parts of the statements of Om Prakash and Prahlad P. Ws. are believable. Now, as a matter of caution, we should look for corroboration of that evidence. The corroboration need not be in the shape of other oral evidence it may be in the form of circumstances and conduct of the accused. ( 21 ) THE first information report Ex. Ka. 2 cannot be used to corroborate the statement of Prahlad (P. W. 4 ). A first information report can be used either to corroborate or to contradict the author thereof, it cannot be used as a substantive piece of evidence To what extent this report can be used to corroborate the testimony of Om Prakash (P. W. 2) has been indicated by us in an earlier discussion. The accused admitted the fact that at the relevant time he was demolishing the Barotha. The medical evidence corroborates the statement of Prahlad that one blow was given on the head and another on the back of the deceased with a Kudal. Both these injuries were found by the doctor and the doctor said that these injuries could be caused with blunt portion of spade. Other circumstances are that the deceased died on account of head injury between 8 or 9. a. m. on the Kharanja in front of the house of Ram Datt. The place where the deceased lay dead was only about 30 paces from the Barotha, which the accused was demolishing. The accused ran away from the scene of occurrence. He did not care to take the deceased to the hospital or to police station. He also did not care to ascertain the cause of the death of the deceased. The place where the deceased lay dead was only about 30 paces from the Barotha, which the accused was demolishing. The accused ran away from the scene of occurrence. He did not care to take the deceased to the hospital or to police station. He also did not care to ascertain the cause of the death of the deceased. As husband of the deceased, the accused would have, in the ordinary and natural course, tried to know how his wife had died. Silence ort the accused in this particular case, on account of his close relationship with the deceased, also assumes significance. Unless the accused himself was the author of the injuries found on the person of the deceased he would not have remained silent and would not have run away. All these circumstances, in our opinion, afford valuable corroboration to those parts of the testimony of the two witnesses which we have found believable. All these circumstances, lend assurance to the statement of Prahlad in the examination-in-chief that the accused had given two blows to the deceased with Kudal and she died as a result of those injuries. ( 22 ) IN this case Om Prakash and Prahlad made some statements suggesting that very often the accused remained insane. It was also said that the accused was having a fit of insanity since one or two days before the occurrence. We consider it desirable to examine this aspect of the case as well. Section 84 of the Indian Penal Code which lays down the limits of responsibility of a person of unsound mind reads thus: Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The burden of proof that the mental condition of the accused was, at the crucial point of time, such as described by the above sanction lies on the accused who claims the benefit of this exemption. This is clear from Section 105 Evidence Act Illustration (a ). ( 23 ) THE above burden can be discharged by the accused from the circumstances which preceded, attended and followed the crime See Ratan Lal v. State of M. P. 3. This is clear from Section 105 Evidence Act Illustration (a ). ( 23 ) THE above burden can be discharged by the accused from the circumstances which preceded, attended and followed the crime See Ratan Lal v. State of M. P. 3. In the instant case there is no material to suggest that the accused was of unsound mind at the time of committing the crime in question. The accused did not say that at the material time he was of unsound mind. No application was made to the Magistrate or to the Sessions Judge on behalf of the accused alleging that at the material time he was of unsound mind. No prayer was made to get the accused medically examined for the State of his mind. No material was placed to show that prior to the commission of the crime the accused was having fits of insanity and on account of that he had acted in an abnormal and unusual manner. The general and vague statements of Om Prakash and Prahlad to the effect that the accused was having fits since two or three days before the occurrence are not worthy of credence because of their pronounced interestedness in the accused. These witnesses did not say that at the material time, the conduct of the accused was abnormal and indicated that he was under a fit of insanity. The fact that the accused started demolishing the Barotha cannot be taken to be an indication of unsoundness of mind. It is in evidence that the accused was insisting on partition of the joint Barotha for quite some time but the partition and not taken place. On account of that the accused could feel enraged and decide to demolish the Barotha. In these circumstances, this could be the act of a person who was not of unsound mind. Thus, in this case there are no circumstance preceding, attending or following the crime which may indicate that the accused was of unsound mind at the crucial point of crime. We are clearly of the view that the accused was not of unsound mind at the time of the commission of the crime. He cannot, therefore, claim exoneration from liability under the provisions of Section 84, Indian Penal Code. ( 24 ) IN this case, the prosecution did not examine the Investigating Officer. We are clearly of the view that the accused was not of unsound mind at the time of the commission of the crime. He cannot, therefore, claim exoneration from liability under the provisions of Section 84, Indian Penal Code. ( 24 ) IN this case, the prosecution did not examine the Investigating Officer. This has been emphasised by the learned counsel for the appellant and it has been urged that non-production of the Investigating Officer has vitiated the trial, it appears that the learned counsel for the accused had made-endorsement of genuineness on ten documents of the prosecution under Section 294, Criminal Procedure Code. This included the inquest report Ex, Ka. 7 and connected papers, the memo of recovery of blood Ex. Ka. 10 and the site-plan Ex. Ka. 12. It was on account of this that the Investigating Officer was not examined as a witness at the trial. It also does not appear that notwithstanding the endorsement under Section 294 Criminal Procedure Code the learned counsel for the accused had desired to cross-examine the Investigating Officer on any point. The defence had not confronted any prosecution witness with statement under Section 161 Criminal Procedure Code. We asked the learned counsel for the appellant to say how the non-production of the Investigating Officer had caused prejudice to the defence case. The learned counsel could not point out anything. The prosecution had used the statements of some prosecution witnesses to contradict them with their statements under Section 161 Criminal Procedure Code. The prosecution did not care to get those contradictions proved by the Investigating Officer. The reason appears to be that the proving of the statements would not have helped the prosecution because a statement under Section 161 Criminal Procedure Code cannot be under law, used as substantive evidence. It cannot be used for the limited purpose of contradiction and that would not have been of much help to the prosecution. In these circumstances, the defence cannot-be allowed to make capital out of the non-production of the Investigating Officer. We are unable to hold that the defence has been prejudiced in any way or the trial has been vitiated on account of non-examination of the Investigating Officer. In these circumstances, the defence cannot-be allowed to make capital out of the non-production of the Investigating Officer. We are unable to hold that the defence has been prejudiced in any way or the trial has been vitiated on account of non-examination of the Investigating Officer. However, we would like to observe that the trial Judge would have done well to examine the Investigating Officer notwithstanding the endorsement made by the learned counsel for the accused under Section 294 Criminal Procedure Code in order to obviate any possible objection. ( 25 ) IN view of the preceding discussion, we are inclined to accept the case of the prosecution as true. The material on the record goes to prove in a convincing manner that the appellant Madhu Ram had given two blows to his wife Smt. Ram Kunwari (deceased) from the blunt side of the Phawara with which he (accused) was demolishing the Barotha. One blow fell at the back of the head and the other on the back, as a result of the blow on the head, the deceased sustained head injury which proved fatal. The deceased died within a short time of sustaining the injuries. ( 26 ) HAVING determined the facts, we proceed to consider as to what offence is made out against the appellant. On a careful consideration of all the facts we are clearly of the view that the act of the appellant did not amount to an offence of murder. The accused felt infuriated because the deceased had proceeded towards him to intervene. The deceased gave only two blows from the blunt side of the Phawara. The fact that he had not used the sharp edge of the Phawara to cause injuries, strongly suggest that the accused had no intention to cause the death of the deceased or to cause any injury which could normally result in her death. The accused had given only two blows one of which fell on a non-vital part and was not of a serious nature. Though the accused had caused injury to the deceased without any intention to cause her death or to cause such bodily injury as was likely to cause death, still he can be attributed with the knowledge that his act was likely to cause death of the deceased. Though the accused had caused injury to the deceased without any intention to cause her death or to cause such bodily injury as was likely to cause death, still he can be attributed with the knowledge that his act was likely to cause death of the deceased. We are, therefore, of the view that the act of the accused amounts to the offence of culpable homicide not amounting to murder falling under section 304 part II, Indian Penal Code. The view of the trial Judge that the act of the accused amounted to an offence under section 302 Indian Penal Code is not well founded and ignored important facts and circumstances. ( 27 ) NEXT we come to the question of sentence. The appellant is in jail since 13. 3. 81. He was Convicted on 10. 11. 81 and is in jail as a convict from that date till now. Having regard to all the facts and circumstances, we think that the ends of justice will be sufficiently met, if the sentence of the appellant is reduced to the period of imprisonment already undergone. ( 28 ) THE appeal is partly allowed. The conviction of Madho Ram Shakya appellant is altered from an offence under section 302 to an offence under section 304 Part II of the Penal Code and for the altered offence, his sentence is reduced to the period of imprisonment already undergone. The appellant is in jail. He shall be released forthwith, unless required to be detained in some other connection. Appeal partly allowed. .