JUDGMENT 1. This appeal is directed against the judgment dated 25th February, 1977, passed by the learned Sessions Judge, Ajmer, in Sessions Case No. 63 of 1976. 2. The prosecution story unfolded during the trial is that on 4th June, 1976, at about 4 P.M. in village Doongarkheda, the bullocks of the accused party were grazing. PW 3 Mantan was there and he wanted to take out the bullocks from the field, but he failed to do so. Thereafter, he came to his residence and informed Nooraji and others about the fact of grazing of the bullocks of the accused party in their field. It is further alleged that Noora went there for the purpose of taking out the bullocks from the field. It is further alleged that Subhan started beating and inflicted blows on the head of Noora with an axe. It is further alleged that Ratna inflicted a blow on the shoulder of Noora with an axe and Nain Singh inflicted a blow on the stomach with a sword. It is further alleged that Ismail also gave a blow on the deceased. Thereafter, Hari, son of the deceased, came on the spot and tried to intervene. Hari was also given beating. The other witnesses have also stated that they reached the spot and seen the occurrence. They are PW/4 Dhanna, PW/5 Alladin, PW/6 Jora, PW/11 Sohan and PW/12 Jalaludin. 3. Dr. B. B. Sharma (PW/1) conducted the post-mortem examination of the deceased, Noora, and found the following injuries on his person:- 1. Incised wound 5" x 1/2" x bone deep on the left parietal region. Cut meninges and brain matter pulsating into the wound which was spindle shape with clean cut margins transversely dilated. Floor of the wound containing blood clots. 2. Incised wound 2" x 1/2" x ⅛" on the right posterior ill ice spine with clean out margins and spindle shaped vertically situated. He prepared the post-mortem report Ex. P/4.He also examined Hari and found the following injuries:- 1. Incised wound spindle shape with clean cut margins bleeding 6" x ⅙" x 1/4" in left parietal region extending upward on the left region extending upwards on the left ear cutting the pinna and downward towards ramus of the left mandible. 2. Incised wound spindle shape with clean cut margins and bleeding 4" X 1/10" X 1/12" on the posterior aspect of the right shoulder. 3. 2. Incised wound spindle shape with clean cut margins and bleeding 4" X 1/10" X 1/12" on the posterior aspect of the right shoulder. 3. Lacerated wound bleeding 1" X ⅛" X 1/10" on left parieto-frontal region. 4. Three abrasions covered with clotted bleed 1" X 1/10"X 1/4 "X 1/2"X 1/10" on the interior surface of lower half of the right fore-arm. 5. Abrasion covered with clotted blood 1/4" X 1/2" on the dorsum of left hand. 4. He prepared the injury report Ex. P/1. 5. Just after the incident, Sohan Lal PW/11, who is also an eye-witness, went to the Police Station and informed the police about the incident. A case under Section 307, IPC was registered, which was subsequently converted to Section 302, IPC. Sohan Lal has informed that the accused, Subhan and Ratna had participated in the commission of the crime. He has not named any other accused. Hari PW/2 lodged a complaint on 12th June, 1976, and submitted that the investigating agency is not fair and has registered a case only against two persons, whereas five persons have participated in the commission of the crime and they have actively participated by causing injuries to the deceased. The complaint has been produced by the prosecution. The investigating agency further investigated into the matter and found that the complaint was a false complaint and charge-sheeted only two persons, namely, accused Subhan and Ratna; and it found that the allegations against the remaining three persons mentioned in the complaint were false and they did not participate in the commission of the crime. The learned Judge examined PW/2 Hari, PW/3 Mastan, PW/4 Dhanna, PW/5 Alladin, PW/6 Jora, PW/11 Sohan and PW/12 Jamaluddin, as eye-witnesses of the occurrence. All these witnesses, except Jamaluddin (PW/12), have named five persons as the persons who inflicted injuries on the I person of the deceased. Jamaluddin PW/12 has not supported the other eye-witnesses, but has slated that only two persons, namely Subhan and Ratna were there and other persons did not participate in the commission of the crime. PW/13 Asraf has also stated that the complainant party pressurised him to name all the five persons, but he has not done so. He cannot give the names and in this way he declined to do so. 6. PW/13 Asraf has also stated that the complainant party pressurised him to name all the five persons, but he has not done so. He cannot give the names and in this way he declined to do so. 6. The other set of evidence against the accused persons is the recovery of Kulhari, which was found to be blood-stained. It is alleged that the Kulhari was used for inflicting the fatal injury to the deceased. 7. The third set of evidence is that of recovery of the clothes of the accused, Subhan, namely dhoti and baniyan. The clothes of Subhan were found stained with human-blood. Injury report Ex. P/7 had also been produced to show that one of his complainant Hari has also sustained seven injuries as mentioned injury report. 8. The earned Sessions Judge after discussing the evidence of the prosecution has acquitted Ratna, but found Subhan guilty for the offence under Section 302, IPC and sentenced him to imprisonment for life. The learned Sessions Judge has also found the accused, Subhan, guilty under Section 307, IPC and sentenced him to undergo ten years rigorious imprisonment and a fine of Rs. 200/- and in default of payment of fine to undergo two months rigorous imprisonment. The learned Sessions Judge also found the accused-appellant guilty under Section 447, IPC and sentenced him to undergo two months rigorous imprisonment and a fine of Rs. 50/- and in default of payment of fine to undergo one months rigorous imprisonment. 9. Being aggrieved with the conviction and sentence, this appeal has been preferred before this Court by accused Subhan. 10. The Learned counsel for the accused-appellant submitted that the prosecuting agency was not fair to the accused-appellant. He submitted that it is the duty of the prosecution to produce all the evidence for and against the accused which is available with it. The prosecuting agency wanted to withhold the First Information Report, which was the first version of the prosecution. He has invited our attention to the FIR Ex. D/6, which was lodged just after one and a half hour of the incident by PW/11 Sohan. In Ex. D/6, PW/11 Sohan stated that Subhan gave a fatal injury on the head of the deceased and there after he gave axe blow on the hand of Hari. He has invited our attention to the FIR Ex. D/6, which was lodged just after one and a half hour of the incident by PW/11 Sohan. In Ex. D/6, PW/11 Sohan stated that Subhan gave a fatal injury on the head of the deceased and there after he gave axe blow on the hand of Hari. Hari fell down and thereafter also Subhan tried to inflict one injury with the edge of the axe on the head of Noora. He further stated that Subhan tried to inflict him the injury, but he ran away. He reached the police station and informed about the incident. He has also named Ratna and stated that Ratna came with a lathi and participated in the commission of the crime. PW/11 Sohan, who is the author of Ex. D/6, has been examined before this court. He is the son of the deceased Noora. He stated before the Court that Jamira, Ismail, Noora and Nainu also caused injuries on the person of the deceased. He further stated that Subhan inflicted fatal blow on the head of the deceased with axe. He also named Noora and submitted that Noora inflicted sword blow. He has further staled that other persons also participated in the commission of the crime and they inflicted injuries. He was confronted with the police statement Ex. D/6 by the learned counsel for the accused-appellant before the trial Court. He stated in the Court that First Information Report which has been recorded by the police on 4/6/1976, at 5-15 p. m. does not give true picture of the case and the police tried to save four accused persons and only recorded the First Information Report only against the two accused. He submits that the First Information Report, as recorded by the investigating agency, is not consistent with the theory of the prosecution which he has given before the Court. He blamed the police authority for the same. He was also confronted with the police statement Ex. D/7, in which it was also mentioned that only two persons, namely, Subhan and Ratna, were present at the time of the occurrence and the other persons were not there. He also resiled from this part of the statement recorded under Section 161, Cr.P.C. and submitted that he named all the five persons as assailants of the deceased. D/7, in which it was also mentioned that only two persons, namely, Subhan and Ratna, were present at the time of the occurrence and the other persons were not there. He also resiled from this part of the statement recorded under Section 161, Cr.P.C. and submitted that he named all the five persons as assailants of the deceased. The investigating agency was not fair and recorded the statement in a way which may be beneficial to the accused party and as such tried to save at least three accused persons, and also tried to give imperfect version about the role of Ratna. He further stated that the First Information Report, Ex. D/6 bears his thumb impression, but the thumb impression was not taken at the time of the lodging of the First Information Report, but it was taken at about 9.00 p. m. on the same day i.e. on 4th June, 1976. The learned counsel for the accused-appellant invited our attention to the fact that the incident has taken place on 4th June, 1976 at 4 p. m. He stated that the FIR was received in the Court on 7th June, 1976. He has invited our attention to the provisions of Section 151, Cr. P. C. and submitted that Clause (1) of Section 151 provides that the First Information Report shall be sent forthwith. The learned Magistrate erred in taking cognizance upon a police report. He has emphasised the word "forthwith" and submitted that after recording the First Information Report it was the obligatory duty of the investing agency to send it to the Magistrate on the same day or in any way on the next day. He submits that the First Information Report is also a connected one and does not give a true version of the incident. He has further submitted that the FIR, which is the first version of the prosecution case, should reach the court at the earliest so that the investigating agency may not be able to conceal the facts. 11. We have pursued the First Information Report. There is an endorsement of the investigating agency that it was dispatched on 5th June, 1976. The learned public prosecutor submits that probably 6th June, 1976, was a holiday, though, she is not in a position to produce the calendar. We have also tried to find out from the calendar, but it was reported by the Addl. There is an endorsement of the investigating agency that it was dispatched on 5th June, 1976. The learned public prosecutor submits that probably 6th June, 1976, was a holiday, though, she is not in a position to produce the calendar. We have also tried to find out from the calendar, but it was reported by the Addl. Registrar that the calendars are not maintained in the library and no calendar of 1976 is available. It is a sad state of affairs that the calendars are not maintained in the High Court Library which are essential for the just decision of the cases. Not only English calendars, but Hindi calendars, giving time of sun-rise and sun set are necessary to find out about the light,which may be available in hand to ascertain the fact whether the witness was capable of seeing the incident in such alight or not, are also not maintained. We hope that the Registry will take note of this and will try to have the calendars in the library and, for this purpose we direct the Registrar to put this part of the judgment before the Hon'ble Chief Justice so that the Hon'ble Chief Justice may take necessary action in the matter. 12. The word forthwith should be interpreted in a way which may be just and proper for the parties to the litigation in a criminal case, namely the prosecution and the defence. The word "forthwith" used in Section 167, Cr.P.C. should be interpreted that within a reasonable time, at the earliest opportunity, the First Information Report, which has been recorded at the earliest, should be sent to the Magistrate empowered to lake cognizance of the case. The word "forthwith" should be intended for the purpose that the first version of the case of the prosecution is given before the court at the earliest opportunity within a reasonable time. It cannot be said that just after the occurrence the first information report should be dispatched to the court giving particulars. The first information report may be lodged with the police station at once and if it may not be possible for the police authority to send the first information report to the Magistrate concerned, just after the recording of the same. It is expected that all the FIRs which are recorded, should be dispatched on the next day so that the Court may take note of it. It is expected that all the FIRs which are recorded, should be dispatched on the next day so that the Court may take note of it. We agree with the learned counsel for the defence that it was the duty of the learned Public Prosecutor to produce the First Information Report before the Court. The duty of the learned Prosecutor is to put all the relevant materials before the Court and he should not try to conceal any part of it. In the instant case, the first information report Ex. D/6 was lodged on the basis of which the investigation came into motion. It was not the business of the learned Public f Prosecutor to withhold the FIR Ex. D/6 from the Court. The learned Public Prosecutor has failed in his duty by not producing Ex. D/6, FIR, before the Court. In the instant case, the investigating agency has produced the FIR Ex. D/6 with the papers submitted under Section 173, Cr. P. C. and the investigating agency has not withheld the document. Apart from that, the statements of most of the witnesses were recorded under Section 161, Cr. P. C., including that of PW/12 Jamaluddin. In the police statement recorded under Section 161, Cr. P. C. also, the names of the accused-appellant, Subhan, and the acquitted accused, Ratna, have been mentioned and the names of the three persons, who are alleged to be the culprits in the case, have not been mentioned. This goes to show that the investigating agency was fair and has tried to put the correct record of the case and the complainant party was bond upon putting obstacles in the matter of investigation and has submitted a complaint against the investigating agency Consequently, re-investigation was ordered and it was found that the investigation was fair and the complainant party tried to implicate innocent persons in the case by changing its own version, which it had given in the FIR as well as in the statements recorded under Section 161 Cr. P. C. We are of the opinion that the investigating agency was fair to the accused and it has rightly investigated the case and submitted the correct version of the facts which was available with it. However, on the contrary, the prosecuting agency was not fair and has not acted in a judicious way. P. C. We are of the opinion that the investigating agency was fair to the accused and it has rightly investigated the case and submitted the correct version of the facts which was available with it. However, on the contrary, the prosecuting agency was not fair and has not acted in a judicious way. It is expected of the prosecuting agency that it should not act as a prosecutor in the case. The duty of the Public Prosecutor is to see that justice is done as the Public Prosecutor is a part of the court and he should not act as a persecutor and should not withhold any document from the court and should assist the court in arriving at just decision of the case. 13. In the instant case, there is a note of the investigating officer that the first information report was dispatched on 5th June, 1976 and the possibility that 6th June, 1976 might be a holiday, cannot be ruled out, or in any case, the FIR had been placed before the Court on 7th June, 1976. The submission of the First Information Report before the Magistrate, at a belated stage, creates a suspicion in the mind of the court about the veracity of the version of the prosecution, and the court can also infer, in such a case, that the prosecution has changed the story and has tried to reconstruct the story after investigation. In the instant case, we do not find any such reconstruction of the prosecution story by the investigating agency. We are of the opinion that the complainant party has tried to reconstruct the story by putting what was elicited from the accused persons in their version, but they failed to do so and the investigating agency remained fair and impartial. The argument of the learned counsel for the accused may be based on a good foundation of law that when a first information report reaches the Court at a belated stage, the court should discard the same in some cases and also proceed further in considering the first version of the prosecuting agency. In the instant case, there are other surrounding circumstances also which we have already discussed above, and we are of the view that the First Information Report should not be discarded, as submitted by the learned counsel for the accused-appellant. In the instant case, there are other surrounding circumstances also which we have already discussed above, and we are of the view that the First Information Report should not be discarded, as submitted by the learned counsel for the accused-appellant. In the present case, the prosecution has examined PW/2 Hari, who is an injured person and who had also sustained injuries as mentioned Ex. P/1, injury report. He has named five persons, including the appellant, as the persons who had participated in the commission of the crime. This witness has stated that Subhan inflicted one injury on the head of the deceased. So far as the role of the other participants mentioned by him is concerned, it is altogether different. He stated hat some accused inflicted injury with lathi, some with the sword, and some by others weapons on different parts of the body. PW/3 Mastan, who is the grand-son of the deceased, has named five persons, including the appellant, Subhan, and had practically given the same Session which his father Hari had given, PW/4 Dhanna, PW/5 Alladin, PW/6 Jora and PW/11 Sohan have also given the same version which PW/2 Hari has given. All these witnesses have been confronted with their police statements and they have deposed that in the police statement they have given the names of only two persons, namely, Subhan, and the acquitted accused, Ratna. Their allegation was that the investigating agency was not fair and had not correctly recorded their statements in the police and as such, the names of the three persons do not find place in their police statements. Some of the witnesses have staled in the police statement that the other three persons, who were not prosecuted, were also present in the Court, but their participation and authorship of the injury has not been mentioned therein. The learned counsel for the accused-appellant submitted that the prosecution story should be rejected in toto as the prosecution has withheld from the Court the genesis of the crime and has also given false statement. The persons who were found not reliable for the four persons should not be relied upon so far as the accused, Subhan, is concerned, and as such their testimony should be discarded. The persons who were found not reliable for the four persons should not be relied upon so far as the accused, Subhan, is concerned, and as such their testimony should be discarded. The learned counsel for the accused-appellant has cited before us Laxmi Singh v. State of Bihar, AIR 1976 SC 2263 , in which it has been held as under:- where all the witnesses enter into a conspiracy to implicate five innocent persons in a murder case than the back-bone of the prosecution is broken, and it would be difficult for the court to rely on such evidence to convict a single accused particularly when the prosecution docs not give any explanation for the grievous and other serious injuries on the person of one of the accused. It is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed, if on tried to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case. 14. The learned counsel for the appellant has also cited before us the case of Ishwar Singh v. State of UP, AIR 1976 SC 2424. 15. The learned public prosecutor for the state has cited before us the case of Hajari Lal v. State of Orissa, AIR 1976 SC 1344. 16. It is a settled law that the doctrine of falsus in uno falsus in amnibus is not applicable in our country. It is the experience of the courts that generally the prosecution wants to put to trial some additional persons who have not participated actively in the commission of the crime because of enmity and other factors. It is also the experience of the courts that the accused are not substituted generally. It is our duty to appreciate and appraise the evidence produced before us and should try to separate the grain from the chaff. It is also the experience of the courts that the accused are not substituted generally. It is our duty to appreciate and appraise the evidence produced before us and should try to separate the grain from the chaff. If the Court is not in a position or where it is not possible for the court to disintegrate the truth from falsehood to separate the grain from the chaff, then the benefit of doubt should be given to a person, This position comes into existence when the truth and falsehood are so unintricably mixed together that it is difficult to separate them. If we attempt to do so and inter-mix truth and falsehood, it may amount to reconsider the prosecution case which is generally not allowed to be done by the Court. However where we come to the conclusion that it is possible to disintegrate truth from falsehood, the grain from the chaff, then it becomes our duty to do so and after disintegrating the truth from the falsehood we can arrive at a true conclusion and it will not amount to reconsideration of the case. In the instant case, the First Information Report, Ex. D/6, was lodged at the police station at 5.15 P.M. on the very day. The incident, took place at 4. P.M. Thus, the First Information Report was lodged after one and a half hour of the incident. The police station is about 1.5 mile away. Thus, the first information report has been lodged by Sohan (PW/11) who is the son of the deceased and who is also an eye-witness of the occurrence and he has named only the appellant Subhan and Ratna in the First Information Report as well as in his police statement. The other persons have also named Subhan in the police statements as well as in the Court. There is consistency in their statements that Subhan is the author of the head injury and he inflicted the first blow on the deceased. Thus it is possible, in this case, to separate the grain from the chaff and truth and falsehood are not so inter-mixed that it cannot be separated. For the purpose of appreciating and appraising the evidence of the prosecution and for the purpose of sifting grain from the chaff, it is not necessary to find out the truth and the false-hood. We can take the assistance of the statement of Dr. For the purpose of appreciating and appraising the evidence of the prosecution and for the purpose of sifting grain from the chaff, it is not necessary to find out the truth and the false-hood. We can take the assistance of the statement of Dr. Sharma (PW/1) who has stated in his statement that the deceased sustained injury on his head. There is only one incised wound on the head and there is consistency in the case of the prosecution. Subhan inflicted head injury on the deceased and this version is finding place in the first information report, in the police statement and also in the statement before the Court. Thus, we can safely come to the conclusion by separating grain from the chaff, disintegrating truth and the falsehood that injury No. 1, which is on the head of the deceased, had been inflicted by Subhan, accused-appellant, and none else. 17. Apart from the testimony of the eye-witnesses, there is the recovery of Kulhari. The accused were arrested on 6th June, 1976, and the information under Section 27 of the Evidence Act was given by the accused vide Ex. P/13. At the instance of the accused, Kulhari was recovered vide recovery memo Ex. P/10. To support the case of the prosecution, motbirs Rama PW/7 and PW/17 Mool Singh have been produced. They have supported the case of the prosecution and stated that the Kulhari was recovered from the room which was in possession of the accused, at his own instance. This Kulhari was found to be stained with human blood. Ex. P/32 and Ex. P/33 are the reports of the Forensic Science Laboratory and the Serologist. The Serologist, vide his report Ex. P/33, has found the Kulhari, shown at item No. 10, to be stained with human blood. No explanation is forth coming from the accused in this connection. The fact that the Kulhari was found to be stained with human blood, is an incriminating circumstance against the accused- appellant. Accused has been arrested on 5th June, 1976, and at the time of his arrest, memo Ex. P/24 was prepared. Dhoti and Baniyan were seized vide seizure memo Ex. P/25. PW/15 Naga Singh and PW/17 Mool Singh, investigating officers, have proved that arrest memo and the seizure memo. Accused has been arrested on 5th June, 1976, and at the time of his arrest, memo Ex. P/24 was prepared. Dhoti and Baniyan were seized vide seizure memo Ex. P/25. PW/15 Naga Singh and PW/17 Mool Singh, investigating officers, have proved that arrest memo and the seizure memo. Dhoti and baniyan were also sent to the Forensic Science Laboratory, Serologist and Chemical Examiner, The dhoti and baniyan, which were taken by the police from the person of the appellant Subhan have been shown in the report of the Serologist, Ex. P/33, at item Nos. 10 and 11. Both the clothes were found to have been stained with human blood. It is true that Subhan had not sustained any injury, very serious in nature and it has not come in evidence of any witness explaining as to how human blood was found on his clothes at the time of his arrest. Failure to explain about the existence of human blood on the baniyan and dhoti is an incriminating evidence of sterling worth against the accused and this goes to corroborate the testimony of the eye-witnesses who have stated that Subhan has participated in the commission of the crime and has inflicted blows on the head of Noora. Ex. P/7 is the injury report of Subhan, which also goes to show that Subhan was present at the scheme of occurrence and he participated in the commission of the crime. Hence, his presence cannot be doubted. For the reasons staled above, we are of the opinion that the presence of Subhan stands proved and the plea of thus falls. We are also of the view that from the consistent evidence produced by the prosecution it can safely be said that Subhan is the author of the head injury which resulted in the death of the deceased. 18. The learned counsel for the accused-appellant has submitted that the quarrel took place suddenly at the spur of moment. He has also invited our attention to the statement of PW/12 Jamaluddin who has been believed by the court below. We are also of the view that PW/12 Jamaluddin is a straight forward and independent witness. He named only two persons who had participated in the commission of the crime, whereas the other eye-witnesses have exaggerated the case of the prosecution and wanted to implicate the other persons in the commission of the crime. We are also of the view that PW/12 Jamaluddin is a straight forward and independent witness. He named only two persons who had participated in the commission of the crime, whereas the other eye-witnesses have exaggerated the case of the prosecution and wanted to implicate the other persons in the commission of the crime. This witness PW/12 Jamaluddin has stated that Subhan had a Kulhari and Hari had a lathi and both of them were using their weapons against each other. Apart from that, this witness has stated that he snatched the Kulhari from Subhan and Subhan handed over the kulhari to him without any resistance. Up to that time this witness was not knowing Subhan, the present appellant. He has further stated that he asked Subhan to leave the place. He returned the kulhari and thereafter Subhan left the place.The learned counsel for the accused-appellant submitted that this part of the statement goes to show that Subhan had no intention to commit the murder of the deceased. He has further stated that Subhan had opportunity to cause some injuries on the vital part of the deceased, but inflicted only one injury and thereafter he did not inflict any injury to the deceased. It was also argued that the accused-appellant was unarmed, which is sufficient to show that there was no intention to commit the murder. Some altercation took place in the heat of passion. It may be possible that Subhan might have inflicted injury on the head of the deceased. The learned public prosecutor submitted that though Subhan inflicted only one injury on the head of the deceased, but the weapon was deadly weapon so the intention should be presumed, and the injury was sufficient in the ordinary course of nature to cause death. 19. We have heard the rival contentions of the learned counsel for the parties on the point and we are of the view that there was no pre-meditation to commit the murder of Noora. It was not brought to our notice that there was any enmity between the parties in the past. The incident had taken place on account of grazing of the cattle in the field of the deceased. It was not brought to our notice that there was any enmity between the parties in the past. The incident had taken place on account of grazing of the cattle in the field of the deceased. It was so sudden and without pre-meditation that the possibility cannot be ruled out that there might be altercation between the parties and during the altercation the passion had gone high and the axe injury was caused by Subhan on the person of the deceased. Further more, in the instant case, the details of the genesis of the crime have been withheld by the prosecution witnesses, particularly, by PW/2 Hari, PW/3 Mastan, PW/5 Alladin and PW/6 Jora, and PW 11 Sohan had come on the spot and at a later stage he was not in a position to say how the quarrel had started. PW/12 Jamaluddin stated that both the parties had used weapons. In the absence of correct genesis of the crime, we do not consider it safe to convict the accused-appellant for the offence under Section 302, IPC. In the facts and circumstances of the case, and looking to the nature of the prosecution evidence and the statement of the Doctor, we are of the view that the prosecution has succeeded in proving a case under See. 304-1, IPC. He have also considered the arguments of the learned counsel for the accused-appellant that the case falls under Clause II of Section 304, IPC. The learned counsel for the accused-appellant submitted that only knowledge should be attributed and the intention to cause such bodily injury which may cause death should not be attributed. We are of the be view that in the Instant case, the prosecution has succeeded in proving the intention and so the case falls under Section 304-1, IPC. 20. The accused has also been convicted under Section 307, IPC for causing injuries on the person of Hari PW/2, Doctor (PW/1) found the injuries, referred to above, on the person of Hari. Hari has sustained five injuries, out of them two are incised wounds. Injury No. 2 is an incised wound spindle shape with clean out margins bleeding 6" X ⅙" X 1/4" in left parietal region. Injury No. 1 is also an incised wound. The other injuries No. 3, 4, and have been caused by blunt weapon. Injuries Nos. Hari has sustained five injuries, out of them two are incised wounds. Injury No. 2 is an incised wound spindle shape with clean out margins bleeding 6" X ⅙" X 1/4" in left parietal region. Injury No. 1 is also an incised wound. The other injuries No. 3, 4, and have been caused by blunt weapon. Injuries Nos. 1 and 3 were reserved for opinion for the nature of the injury and the Doctor wanted to confirm the nature of the injury after taking X-ray. The remaining injuries were found to be simple in nature. The Doctor has stated that the injuries noted by him in the injury report Ex. P/1, which were found on the person of Hari, were not sufficient in the ordinary course of nature to cause death either individually or collectively. He found injury No. 1 to be grievous and he also opined that injury No. 1 was not sufficient in any case for causing the death of the injured person. PW/2 Hari has stated that he received three injuries on the head, whereas the Doctor reported that only one injury was on the head. This witness has stated that only Subhan inflicted a blow on the head and second time he tried to inflict a blow, but he raised arm and so he sustained an injury by the axe on the thumb. The Testimony of this witness regarding the authorship of the injury is not reliable, as this wit ness has specifically stated that Noora sustained sword blow on his right hand, but there is no incised wound on his hand, There is a blow on the shoulder which is an incised wound which cannot be caused ordinarily by sword. Similar version has been given by the other witnesses. Even if we assume that Subhan inflicted injury No. 1 on the head of Hari, it cannot be a case under Section 307, IPC. In any case, at the most, it may come within the range of Section 326 IPC. However, taking into consideration the statement of PW/2 Hari injured, who sustained injuries, who has completely given a different version about the authorship of the injury. This witness in his police statement has stated that Subhan inflicted the blow on his shoulder. In any case, at the most, it may come within the range of Section 326 IPC. However, taking into consideration the statement of PW/2 Hari injured, who sustained injuries, who has completely given a different version about the authorship of the injury. This witness in his police statement has stated that Subhan inflicted the blow on his shoulder. Taking into consideration the evidence of this witness as well as the other witnesses, we are of the view that the prosecution has failed to make out a case under Section 307 IPC against the accused-appellant, Subhan. However, we are of the opinion that the prosecution has succeeded in making out a case under Section 326, IPC against the accused-appellant. 21. So far as the conviction under Section 447, IPC is concerned, it has not been challenged by the learned counsel for the accused-appellant and he has rightly done so. There is an overwhelming evidence to show that the accused committed a trespass in the field of the deceased and as such the accused has rightly been convicted under Section 447, IPC. we maintain his conviction and sentence under Section 447, IPC. 22. In the result, we accept in part the appeal of the accused-appellant, Subhan and set aside the conviction and sentence awarded to him under Section 302 and 307, IPC. We modify the conviction and the sentence to under Section 304-1 IPC for causing the death of Noora and sentence the accused-appellant under Section 304-1, IPC and sentence him to undergo five years rigorous imprisonment and a fine of Rs. 100/-. We also convict the accused appellant for causing injury to Hari under Section 326, IPC and sentence him to undergo rigorous imprisonment for a period of one month and a fine of Rs. 100/-. We maintain his conviction and sentence under See. 447, IPC. The appellant shall be given the benefit of Section 428, Cr. P. C. It was submitted that the accused-appellants sentence has been surrender before the trial Court immediately. The trial Court is directed to issue a warrant of arrest of the accused-appellant to undergo the remaining part of the sentence. The appeal is disposed of accordingly.Appeal partly allowed. *******