JUDGMENT 1. - The learned Sessions Judge, Udaipur, has convicted the appellant Bhagga u/s 302 IPC and sentenced him to imprisonment for life and a fine of Rs. 500/-, in default of payment of which, he awarded six months' R.I. by his judgment dated 24-6-80. Bhagga has filed this appeal through Jail. 2. The facts giving rise to this appeal briefly stated are that one Dungla had three daughters, Dhapu, Ganga and Nani. Ganga was married to the accused Bhagga of village Ladani. The other daughter Dhapu was married to Laxman. On 25-5-79 Dungla asked his son-in-law Laxman to fetch Ganga as he had to perform the 'sena' of Sunder, a daughter brought with her by his second wife. Laxman went to the village Ladani and met the in-laws of Ganga and requested them to send Ganga with him. They agreed. Ganga was also willing to go with him and her husband Bhagga also did not object to her going at that time. Smt. Ganga lived in a separate house with her husband. She went there to take her clothes etc. and her husband Bhagga and Laxman also went there with her. On reaching that house, Bhagga asked Ganga not to go with Laxman. However, Ganga insisted and said that when her in-law had allowed to her go, she would go to her parents. This infuriated Bhagga and he took up a kasi (kudali) and gave a blow with it on Ganga's head. Laxman cried and tried to intervene but in she meantime, Bhagga delivered three or four more blows whereupon Ganga fell down. On hearing the hue and cry of Laxman, Pratap and his wife Smt. Shanti reached the spot. Prabhudas, Bhagwan etc. also reached there. In the meantime, Bhagga went away from his house. Laxman then went to the Police Station Mavli and lodged a written report about this incident vide Ex. PI at about 7 P.M. The police reached the spot, saw the dead body of Ganga, who had succumbed to the injuries, inspected the site, prepared the inquest memo and also get the postmortem examination of Ganga carried out. The accused was also arrested and his blood stained shirt was taken in possession by the police. It is also alleged that the accused gave information about the kasi and got it recovered. The accused was also arrested and his blood stained shirt was taken in possession by the police. It is also alleged that the accused gave information about the kasi and got it recovered. After completing the investigations, the police put up a challan against the accused Bhagga and he was committed to the Court of the learned Sessions Judge. He framed a charge u/s 302 IPC against the accused. The accused pleaded not guilty and claimed to be tried. 3. In support of this story, the prosecution examined 10 witnesses. The accused denied the prosecution story in his statement u/s 313 Cr. PC. and, alleged that he has wrongly been implicated as Laxman alone wanted to inherit the property of their father-in-law, who had only daughter but no son. He further alleged that Dungla had refused to take Laxman's son in adoption and, thereafter, Laxman had falsely implicated him so that he may alone acquire the properties of Dungla. He also pleaded alibi to the effect that at the time of the alleged incident, he was on the well. He produced two witnesses in his defence. After hearing the learned P.P. and the learned counsel for the accused, the learned Sessions Judge convicted and sentenced the accused Bhagga as aforesaid. 4. We have heard the learned Amicus Curiae and the learned P.P. and have carefully perused the record. 5. It may straight away be stated that out of the ten witnesses, all except Laxman and Duggla and Dr. Kinra have turned hostile and have not supported the prosecution story. So far as Dungla is concerned, he states to have sent Laxman to fetch Ganga and he further states that latter two persons came and informed him that Ganga had been killed and on receiving this information, he came to village Ladani where he was informed by Laxman that Bhagga had killed Ganga in his presence. Therefore, his statement so far as the fact of the death of Ganga is concerned, is based on (he information given to him by Laxman. The only eye witness in these circumstances is, therefore, Laxman and his statement will have to be examined carefully. 6. Therefore, his statement so far as the fact of the death of Ganga is concerned, is based on (he information given to him by Laxman. The only eye witness in these circumstances is, therefore, Laxman and his statement will have to be examined carefully. 6. Before we come to the statement of Laxman, it may be stated that the Investigating Officer has not been produced and the recovery of the blood stained shirt of the accused has not been proved because the motbir to the recovery Banshi lal PW 8 was not supported this story. So far as the kasi is concerned, it has been found that the stain of blood on it was disintegrated and, therefore, its origin could not be ascertained and, therefore, this recovery was of no avail and thus we are left with the statement of Laxman alone. 7. This brings us to the evidence of Laxman. Laxman has narrated the whole story as stated above and has thus shown that it was Bhagga, who had delivered kasi blows on the person of Ganga and caused injuries to her. This fact finds corroboration from the medical evidence inasmuch as Dr. R.P. Kinra PW 10, who performed the postmortem examination of the dead body of Ganga on 26-5-79 found the following injuries on her person: "External injuries 1. Lacerated wound irregular 3" x 1/4" x bone deep on the occipital region of the scalp. 2. Lacerated wound 21/2" x 1/4" x bone deep occipital region near Injury No.l. 3. Lacerated wound 11/4" x 1/4" on the right side of the forehead. 4. Lacerated wound 2" x 1/4" x 1/4" on the occipital region of the skull. 5. Lacerated wound 11/2" x 1/2" x bone deep on the back of the scalp. 6. There is an extra vasaion of the blood on the under surface of the scalp. Fractures There is a fracture of the occipital bone of the skull injuring superficial surface of the brain at 4 different places." The doctor has further stated that these injuries could be caused by a Kasi (Kudali) and thus he lands support to the evidence of Laxman. The doctor has further opined that the cause of death of Smt Ganga was multiple fractures of the skull of occipital bone injuries superficial surface of the brain membrane. 8. The doctor has further opined that the cause of death of Smt Ganga was multiple fractures of the skull of occipital bone injuries superficial surface of the brain membrane. 8. However, the statement of Laxman has been challenged by the learned Amicus Curiae on various grounds. The first and foremost ground on which his evidence has been attacked is that the story put forward by Laxman cannot be accepted as the first version of the prosecution inasmuch as Laxman admitted in his cross-examination that it was Shobha who had gone to call the police and the information of this incident was given to the Police only after the police had arrived at the instance of Shobha. We, however, do not find force in this contention. In the examination-in-chief, Laxman had clearly stated that it was he who had gone to the police station and had lodged the report Ex. P 1. In cross-examination, however, when a suggestion was thrown to him that it was Shobha who had brought the police, he first denied it but then admitted it to the extent that Shobha did go to call the police and it was after the arrival of the police that information was given to the police and from this admission of Laxman, the learned Amicus Curiae wanted us to believe that Laxman had not gone to the police and it was Shobha who had gone to the police and the information was given to the police about this incident only after it had leached the snot. We are, however, not persuaded to accept this contention because this so called admission of Laxman that information was given to the police only after it arrived at the snot appears to be an outcome of a tricky question put to a rustic villager. If the defence wanted to establish that as a matter of fact, the information Ex. P I had not been given to the police before it came to the spot, a clear question ought to have been put to Laxman that he had not at all gone to the police station and had not lodged the report Ex. P I at police station Mavli but had submitted this report only after the police had arrived at the spot. It may be that in the first instance, Laxman had gone to the police and lodged a report Ex. P I at police station Mavli but had submitted this report only after the police had arrived at the spot. It may be that in the first instance, Laxman had gone to the police and lodged a report Ex. P 1 and then Shobha may also have gone to the police and the police may have thus arrived at the spot after Shobha had gone there but this does not in any way discredit the statement of Laxman that he had gone to the police station and lodged report Ex. P I. 9. It was then contended that Laxman himself had seen the accused Bhagga delivering Kasi blows on the person of Ganga and on cry being raised by Laxman. the other witnesses had also reached the spot and in that event, Bhagga could not have been allowed to go away from his house as has been stated by Laxman. It is. therefore, contended that the statement of Laxman appears to be unnatural and unbelievable. We do not find force in this contention either. Bhagga was the husband of Ganga being infuriated with Ganga on her insistence upon going with Laxman to her parents, he delivered Kasi blows on the persons of Ganga and then ran away. The witness Leaman may not have immediately comprehended the damage caused to Ganga at that time so he may not have caught hold of Bitagga. The gravity of the incident must have dawned upon him only after Ganga had collapsed and succumbed to the injuries and in the meantime, the accused had already been brought back to the house and, therefore, much capital cannot be made out of the fact that Bhagga was given opportunity to leave the house. 10. It was also contended that Laxman is an interested witness inasmuch as when Ganga had been killed and if the accused Bhagga was involved in the crime of her murder, this witness would be left alone to enjoy the properties of his father-in-law and, therefore, his statement cannot be taken on its face value. According to us, this contention also cannot be accepted inasmuch as it is a far fetched one. Even if Bhagga was falsely involved in the case, he would not have lost his share in the property of his father-in-law merely because he would have been sent behind the bars. According to us, this contention also cannot be accepted inasmuch as it is a far fetched one. Even if Bhagga was falsely involved in the case, he would not have lost his share in the property of his father-in-law merely because he would have been sent behind the bars. Further it is also in evidence that Laxman's son was living with Dungla and if he really wanted to deprive Ganga or her husband Bhagga of the property of Dungla, he could have managed the adoption of his son to Dungla. Further if Laxman had such an evil eye on the property of his father-in-law his father-in-law would not have supported his story as he has done by entering the witness box as PW 2. In these circumstances, we do not see any reason to disbelieve the evidence of Laxman. 11. It will not be out of place to mention here that although t he other witnesses, who are alleged to have reached the spot on hearing the cries raised by Laxman, do not support the prosecution story to the extent , that they had seen Bhagga inflicting blows on the person of Smt. Ganga but they do admit the presence of Laxman on the spot It is pertinent to note that these witnesses, namely, Smt. Shanta Bai PW 3, Shri Prem Dass-PW 4 and Bhagwan PW 5 are not only residents of Ladani butsome of them are close relations of the accused. If in fact, the version given by Laxman was not correct, then they would not have supported Laxman even to that extent so as to establish his presence on the spot. Smt. Shobha has stated that the accused Bhagga is her husband's brother (devar). 12. Before parting with the statement of Laxman, it may be stated that the learned Amicus Curiae also contended that the copy of the FIR in this case reached the Court after inordinate delay inasmuch as the FIR is alleged to have been lodged on 25-5-1979 but it reached the Court on 16-6-1979 and there is not explanation for this inordinate delay, therefore, such a delay must be taken to be fatal to the prosecution. There is no doubt that there appears to be some delay between the date of the lodging of the FIR and the receipt of the FIR by the Court as pointed out by the learned Amicus Curiae and as the Investigating Officer has not been produced in the witness box, the explanation could not be obtained from him but apparently it does appear that the copy was sent by post and there may have been some delay on the part of the postal authorities. Ordinarily such delay has to be looked down upon but in the circumstances of the present case when the statement of Laxman has been found to be wholly reliable and of sterling worth, we are not prepared to attach much importance to this delay, 13. Apart from criticising the evidence. of Laxman, the learned Amicus Curiae raised a forceful argument to the effect that the Investigating Officer has not been produced in this case and this must be taken to be fatal to the prosecution story. In support of his contention, he placed reliance upon Devaiya v. State of Coorg, AIR 1956 Mysore 51 , State of Karnataka v. H. Somashekhariah, 1985 (1) Crimes 811) and Podyami Soga v. State of MP., 1964 (1) Cri. LJ 455 . The argument of the learned Amicus Curiae no doubt is attractive and is to some extent supported by the authorities relied upon by him but on closure scrutiny with reference to the facts and circumstances of this case, it does not hold water. It is true that ordinarily if the Investigating Officer is not produced, a very strong inference arises against the prosecution and in some cases that inference has been taken to be so strong as to be fatal to the prosecution case. However, in this case, it does not appear that the prosecution purposely withheld the Investigating Officer or did not take sufficient steps to produce him. A perusal of the order sheets would go to show that the case was fixed for the evidence of the Investigating Officer on 20-11-79 and on that day, a telegram was received on his behalf praying for an adjournment. The next date fixed was 15-12-79 but it appears that summons were not issued to him. A perusal of the order sheets would go to show that the case was fixed for the evidence of the Investigating Officer on 20-11-79 and on that day, a telegram was received on his behalf praying for an adjournment. The next date fixed was 15-12-79 but it appears that summons were not issued to him. On 5-2-80, the next date fixed for the purpose, it was found that the Investigating Officer Shri Samar Mohammed had already retired and, therefore, a bailable warrant was ordered to be issued against him. On 12-3-80, the warrant was received unserved and the learned P.P. was directed to produce him by himself. On 26-3-80, the witness was not present and, therefore, the Court directed a warrant of arrest to be issued against him. This warrant was not served upon Samar Mohammed on 23-4-80 and 12-5-80. Then on 21-5-80, the learned Sessions Judge observed that the warrant of Samar Mohammed has not been served despite six adjournments and in these circumstances, the learned P P. gave him up. Thus it is clear that the prosecution had been making efforts to call this witness but it was in the circumstances pointed out above that the witness could not be produced and in these circumstances, it would not be proper draw any adverse inference against the prosecution for the non-production the Investigating Officer. However, the accused will get the benefit to the extent that the evidence which could otherwise he available to the prosecution, could not be made available to it as the Investigating Officer has not come in the witness box to prove the relevant facts. It may further be observed that the non -Production of the Investigating Officer may have deprived the accused from proving the previous statement of Laxman before the police or the alleged contradiction between his statement in chief and cross-examination regarding the fact of the first report to the police. So far as the first point is concerned, there does not appear to be any such contradiction, which may be of any advantage to the accused and so far as the second aspect is concerned, we have already dealt with it and we have found that even if this part of the statement in the cross-examination is taken as such, then also it does not detract from his earlier statement in the examination-in-chief. We are, therefore, clearly of the opinion that the statement of Laxman is wholly reliable and he appears to be a witness of sterling worth. We do not feel any hesitation in placing reliance upon his statement. If his statement is thus relied upon, there is no room for doubt that it was the accused Bhagga, who had inflicted the injuries on the person of Smt. Ganga resulting into her death. 14. Now the question which calls for determination is what offence can he said to have been committed by the accused. The learned Sessions Judge has found him guilty u/s 302 IPC but in the circumstances of the case, we are of the opinion that the offence of murder cannot be said to have been brought home to the accused and he can be held liable only u/s 304 Part I IPC because from the facts already stated above, it clearly appears that act of the accused was not a pre-meditated one. The whole thing took place in a sudden manner and in the heat of passion; being infuriated by the insistence of his wife to go to her parents, the accused inflicted blow with a kasi. Kasi is normally not a weapon of offence and is only an agricultural implement. In similar circumstances this Court had taken a similar view in Devi Lal v. The State, 1983 (2) Crimes 524 It is further pertinent to note that in this case the doctor has also not been able to say that the injuries inflicted were sufficient in the ordinary course of nature to cause death. Therefore, we are clearly of the opinion that the case does not fall under any of the four parts of s. 300 and , therefore, the accused can only be held guilty u/s 304 Part I IPC, inasmuch as he had inflicted blow with a kasi on the head and, therefore, it can be inferred that he intended to cause injuries as were likely to cause death. 15. We, therefore, partly allow this appeal, set aside the conviction and sentence passed against the appellant u/s 302 IPC instead he is convicted u/s 304 Part I IPC and is sentenced to eight years' r.i. and a fine of Rs. 200/- in default of payment of fine, lie will sutler a month's r.i.Appeal partly allowed. *******