JUDGMENT 1. -Appellant Om Prakash is the son of the other appellant Chhotey. They have been convicted under Section 302 I.P.C. and each has been sentenced to imprisonment for life by the Additional Sessions Judge, Dholpur, by his judgment and order dated December 7, 1987. 2. Briefly recalled, the facts and circumstances culminating in the prosecution and conviction of the appellant are, that P.W. 1 Smt. Maya is the widow of Baglu. Baglu was the real brother of appellant Chhotey. They all resided in Village Semra, Police Station Sepau, District Dholpur. The continuous recitation of 'Ramayan' was going on in the village Temple in May 1985. At about 10 A.M. on 29.5.1985. P.W. 1 Smt. Maya and her husband Baglu went to the temple and donated a sum of Rs. 50/- there. Thereafter the husband and wife were returning to their house. When they left the temple and were in their way near the Dharam-shala, the two appellants accompanied with Smt. Shyamoli and Pedda came from the other side They blocked the way of Maya and her husband Baglu. Baglu asked the appellants and their companions to allow them to go. The appellants asked Baglu as to where he was going. Baglu told them that he was going to village Rajora to beat the drum at Prem Singh's house as Perm Singh had invited him there. Appellant Om Prakash told Baglu not to go there as the house of Prem Singh was not in his 'Birat' but was in the Birat of the appellants. This led to the exchange of some hot words. Appellant Om Prakash struck a blow of lathi on the head of Baglu. Appellant Chhotey also struck a blow of lathi again on the head of Baglu. Baglu fell down. Smt. Shyamoli and Pedda put their feet on the neck of Baglu. Mst. Maya tried to intervene and lay over her husband Baglu to protect him. She was also not spared and was administered blows by the appellants Om Prakash and Shyamoli. Baglu did not survive and passed away out the spot. It may be mentioned that Smt. Shyamoli is the wife of accused Chhotey and Peeda is his son. Smt. Maya raised cries. Hearing her out cries, many persons, viz., P. W. 2 Kishan Das. P.W. 3 Chob Singh, P.W. 4 Shishupal, P.W. 7 Babulal and Dwarka, who were on the temple, rushed there. It may be mentioned that Smt. Shyamoli is the wife of accused Chhotey and Peeda is his son. Smt. Maya raised cries. Hearing her out cries, many persons, viz., P. W. 2 Kishan Das. P.W. 3 Chob Singh, P.W. 4 Shishupal, P.W. 7 Babulal and Dwarka, who were on the temple, rushed there. Seeing them, the appellants retreated and went away. Babulal and others took care of the dead body of Baglu. Smt. Maya went to the Police Station, Sepau, where she presented a written report, Ex. P. 8. of the incident at about 2.30 P.M. The Police registered a case and proceeded further. The Investigating Officer Liladhar, Head Constable. Police (P. W. 10) arrived on the spot and prepared the site-plan. He found the victim's dead body lying at his house. The Investigating Officer prepared the inquest report Ex. P. 4. The post-mortem examination of the victim's dead body was conducted at about 4.00 P. M. by P. W. 11 Dr. Babulal, the then Medical Officer-in-charge. Primary Health Centre, Sepau. The Doctor noticed the following inte-mortem injuries on the victim's dead body. "1. Bruise 2" x1/2" on the right eye lid. 2. Bruise 1" x1/2" on the left eye lid. 3. Bruise 1" x1/2" on the upper ⅓rd of the left arm. 4. Bruise 8" x3" on the left scapuler region. 5. Bruise 3" xl" on the middle of vertebral column. 6. Fracture of Rt. parietal bone of skull. 7. Fracture of left occipital bone of skull. 8. Compression of brain substance." The doctor was of the opinion that the cause of death was injury to skull bones and injury to brain substance leading to brain haemorrage and shock. The post-mortem examination report issued by the doctor is Ex. P/12. The injuries of Smt. Maya were also examined by Dr. Babulal. He found five simple injuries on her body as mentioned in the injury report, Ex. P/13 prepared by him. The appellants were arrested. During investigation, it was found that Pedda was a child below 16 years in age at the time of the incident. A case against him was, therefore, filed in the Children's Court. The police submitted a crime report against the appellants and Smt. Shyamoli in the court of the Additional Chief Judicial Magistrate, Dholpur, who in his turn, committed the case for trial to the court of Sessions. A case against him was, therefore, filed in the Children's Court. The police submitted a crime report against the appellants and Smt. Shyamoli in the court of the Additional Chief Judicial Magistrate, Dholpur, who in his turn, committed the case for trial to the court of Sessions. The case came up for trial before the learned Additional Sessions Judge. Charges under Sec. 302 and in the alternative, under Sec. 302/34 I.P.C. were Famed against all of them, to which they pleaded not guilty and claimed to be tried. 3. In support of its case, the prosecution examined 11 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Additional Sessions Judge held that there was no incriminating evidence against accused Smt. Shyamoli. The circumstances also did not point out her involvement and Sec. 34 I.P.C. had no applicability. She was, therefore, acquitted of the offences she was charged with. Learned Additional Sessions Judge further held that the deceased had received two fatal injuries on his head, one of which was caused by the appellant Chhotey and the other was caused by appellant Om Prakash. He, therefore, held both of them guilty under Section 302 l.P.C. and sentenced them as mentioned at the very out-set. Aggrieved against their conviction, the father and the son have came up in appeal. 4. We have heard Mr. Jagdeep Dhanker, learned counsel for the appellants and Mr. O.P. Sharma, learned Public Prosecutor. We have also gone through the case file carefully. 5. Mr. Dhanker did not challenge the opinion of P.W. 11 Dr. Babu Lal relating to the number and nature of the injuries found on the victim's dead body and the cause of his death. We, therefore, need not touch the testimony of Dr. Babu Lal in details. Suffice it to say that the victim sustained as many as 8 injuries, two of which were on the head. These head injuries have been described as injury Nos. and 7 in the post mortem examination report, Ex.P/12. Each of these two injuries found on the deceased's was sufficient in the ordinary course of nature to cause death according to Dr. Babulal. The death of Baglu was thus not natural, it is homicidal. 6. It would be proper to state here that the injuries of P.W. 1 Smt. Maya were also examined by Dr. Each of these two injuries found on the deceased's was sufficient in the ordinary course of nature to cause death according to Dr. Babulal. The death of Baglu was thus not natural, it is homicidal. 6. It would be proper to state here that the injuries of P.W. 1 Smt. Maya were also examined by Dr. Babulal and he found 5 simple injuries on her person as described in her injury report. Ex.P/13. The doctor was not at all cross-examined to show or suggest that these 5 injuries found on Smt. Maya's body were self inflicted or superficial. We are making these observations because vehement contentions were raised by Mr. Dhanker that P.W. 1 Smt. Maya is not a witness of truth and she has falsely introduced her as an ocular witness of the incident. 7. In order to prove the charge of murder, the prosecution examined 5 eye witnesses, viz., P.W. 1 Smt. Maya, P.W. 2 Kishandas, P.W. 3 Chob Singh, P.W. 4 Shishupal and P.W. 7 Babulal. One Dwarka, who is alleged to have seen the incident and was also cited as a witness in the calendar of witnesses filed by the prosecution, was not produced in evidence on the ground that he was won over by the accused party and was thus hostile to the prosecution. P.W. 2 Kishandas, P.W. 4 Shishupal and P.W. 7 Babulal did not lend support to the prosecution and were declared hostile. P.W. 1 Mst. Maya, who is a widow of the victim gave a detailed narration of the incident. P.W. 3 Chob Singh also alleged to have seen the occurrence. Learned Sessions Judge accepted and treated P.W. 1 Smt. Maya and P.W. 3 Chob Singh as witnesses of truth on whom full and complete reliance could be reposed. Accepting what they stated as true, he held the charge under Sec. 302 I.P.C. duly brought home to the appellants. 8. In impeaching the conviction, it was vehemently contended by Mr. Dhanker before us that the trial court crept into an error in putting full faith and reliance on the testimony of PW 1. Mst. Maya and P.W. 3 Chob Singh. It was argued that they have given contradictory version of the incident. There is no unanimity between them on any point. In view of their contradictory and conflicting evidence, it would not be proper to base the conviction. 9. Mst. Maya and P.W. 3 Chob Singh. It was argued that they have given contradictory version of the incident. There is no unanimity between them on any point. In view of their contradictory and conflicting evidence, it would not be proper to base the conviction. 9. It was on the other hand, contended by the learned Public Prosecutor that the first information report was lodged by P.W. 1 Mst. Maya herself. She is I an injured person, who sustained injuries in this very incident. Her presence on the spot is, therefore, not open to any doubt. In the first information report lodged by her, the names of P.W. 3 Chob Singh and other eye witnesses have been mentioned. The F.I.R. was lodged promptly without delay. As such it cannot be expected that the name of P.W. 3 Chob Singh was falsely introduced therein as ocular witness of the incident. 10. We have taken the respective submissions into consideration. We may state at once that the F.I.R., Ex.P/1 was lodged promptly without delay. The incident is alleged to have taken place at 10 A.M. on 29-5-1985 and the F.I.R. was presented at about 2.30 P.M. on that very day. The police station is nearly 5 Kms. away from the place of incident. Smt. Maya, who lodged the written report Ex.P. 1 is an illiterate village woman. In the inquest report, Ex P. 5, which was prepared at about 2.30 P.M. on that very day the written report Ex.P.l has been reproduced. That is sufficient to show that Ex P. 1 is not a post investigation document. In Ex.P. 1 the names of P.W 3 Chob Singh and other eye witnesses have been mentioned. That excludes the possibility that the name of P.W. 3 Chob Singh was later on falsely introduced. 11. We have carefully read the statements of P.W. 1 Mst. Maya and P.W. 3 Chob Singh, both the them have narrated the incident in details. P.W. 1 Mst. Maya is the widow of deceased victim and the appellants are the real brother and son of her deceased husband. She sustained injuries in this incident. Her injuries have not been shown or suggested to be self inflicted. As such her presence on the spot at the time of the incident is not open to any doubt. P.W. 1 Mst. Maya is the widow of deceased victim and the appellants are the real brother and son of her deceased husband. She sustained injuries in this incident. Her injuries have not been shown or suggested to be self inflicted. As such her presence on the spot at the time of the incident is not open to any doubt. One of the appellants is the real brother and the other is the real nephew of her deceased husband Baglu. She stated that she and her husband went to the temple to give donation and while they were returning, the appellate with Mst. Shyamoli and Pedda met them in the way. A verbal quarrel took place between them on the question of beating the drum in village Rajora, The appellants got displeased and made assault on her husband Baglu. They struck blows to him. Baglu fell down and did not survive. The same narration of the incident was given by P.W. 3 Chob Singh. It is true that P.W. 3 Chob Singh is a resident of some other village, but is not sufficient to discard what he testified on oath, specially when no bad blood exists between him and the appellants. It appears that his village is situate near that of the village Semra, where the deceased victim resided. Both these witnesses; P.W. 1 Mst. Maya and P.W. 3 Chob Singh ware cross-examined at length, but nothing could be elicited from them, which may shake or shatter what they testified on oath. It cannot be expected from Mst. Maya that she would falsely implicate the real brother and nephew of her deceased husband. So also, it is beyond our comprehension that P.W. 3 Chob Singh who does not belong to any side and who belongs to some other caste would falsely implicate the accused for no rhyme or reason. We are, therefore, not prepared to accept the contention of Mr. Dhanker that P.W. 1 Mst. Maya and P.W. 3 Chob Singh had not seen the incident and they have falsely introduced themselves as the ocular witnesses of the incident. The first contention thus fails. 12. It is really unfortunate that the other eye witnesses, P.W. 2 Kishandas, P.W.4 Shishupal and P.W. 7 Babulal did not lend support to the prosecution and the prosecution had to declare them hostile. It appears that they were won over by the accused. 13. The first contention thus fails. 12. It is really unfortunate that the other eye witnesses, P.W. 2 Kishandas, P.W.4 Shishupal and P.W. 7 Babulal did not lend support to the prosecution and the prosecution had to declare them hostile. It appears that they were won over by the accused. 13. It was next contended that even if the evidence of P.W.l Mst. Maya and P.W. 3 Chob Singh is accepted, the offence made out from what they testified, does not travel beyond Section 325 I.P.C. or the Second Part of Section 304 I.P.C. It was strenuously contended by Mr. Dhanker that there was no bad blood between the deceased and the appellants before this incident. The incident flared up at the spur of moment on a trifle question of beating the drum. In the F.I.R., Ex.P. 1. which is a written one, it has not been mentioned that the appellants struck blows on the head. It was at the spur of the moment that the incident took place. The appellants could have no intention to commit the murder of deceased who was the real brother of the one and the real uncle of the other. It was argued that though the two head injuries of the deceased victim have been stated to be sufficient in the ordinary course of nature to cause death by the doctor, that alone is not sufficient to bring the case with Clause IIIrdly of Section 300 I.P.C. Reliance in support of the contention was placed on number of decisions given by the Apex Court, in which the injury or injuries found on the victim's person were stated to be sufficient in the ordinary course of nature to cause death and yet the offence was taken as not covered by Clause IIIrdly of Section 300 I.P.C. 14. In reply, it was contended by the learned Public Prosecutor that two injuries were inflicted on the head of the deceased victim and each injury, according to the medical evidence, was sufficient in the ordinary course of nature to cause death. The case, therefore, squarely falls within the ambit of Sec.300 Clause IIIrdly. Reliance was placed on the well known and often cited case of Birsha Singh v. State (AIR 1958 S.C. 45). 15. We have taken the respective submissions into consideration. The case, therefore, squarely falls within the ambit of Sec.300 Clause IIIrdly. Reliance was placed on the well known and often cited case of Birsha Singh v. State (AIR 1958 S.C. 45). 15. We have taken the respective submissions into consideration. Admittedly the deceased victim Baglu was the real brother of appellant Chhotey, Appellant Om Prakash is the son of Chhotey. Both the appellants are thus, the close relatives of the deceased victim. P. W. 1 Mst. Maya admitted in her statement that the relations between the deceased and the appellants and their families were quite cordial and sweet before the incident. There were no bad blood between them and none had any grouse or ill-will against them. The statement of P.W. 1 Mst. Maya further reveals that the incident took place at the spur of the moment without any pre-meditation. There was no design or pre-plan on the part of the appellants to commit the murder of Baglu. The quarrel took place on a very trifle matter relating to the beating of drum at village Rajora. The appellants contended that village Rajora was in their Birat, whereas the deceased took it to be his Birat. In these circumstances,we cannot take by any stretch of imagination that the appellants intended to commit the murder of High. If they wanted to commit his murder, they would have never chosen the place near the temple for that purpose. In the written F.I.R., Ex.P. 1, it has not been stated that it was the appellants who had struck blows on the head of the deceased victim. The verbal altercation between the deceased and the appellants was on the spur of the moment and even their meeting in the way was accidental. In these circumstances, it cannot be precisely said with certainty that the appellants intended to cause those very injuries, which fell on the head of the deceased victim. We are, therefore, unable to agree with the learned Public Prosecutor that the case is covered either by Clause Istly or Clause IIIrdly of Section 300 I.P.C. 16. In as much as the death has been caused, the case must come atleast within the IInd Part of Section 304 I.P.C. The accused can be imputed atleast the knowledge that their act was likely to cause death. In as much as the death has been caused, the case must come atleast within the IInd Part of Section 304 I.P.C. The accused can be imputed atleast the knowledge that their act was likely to cause death. The offence committed by the appellants, therefore, falls under Section 304 Part IInd I.P.C. as the act was done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. 17. In the result, we partly allow the appeal of accused Chhotey and Om Prakash. Their conviction under Section 302 I.P.C. and the sentence of imprisonment for life awarded thereunder are set aside. Instead they are convicted under Part II of Section 304 I.P.C. and each is sentenced to five years rigorous imprisonment with a fine of Rs. 5,000/-, in default of payment of fine to further undergo 3 years like imprisonment. In case the amount of fine is realised or deposited, a sum of Rs. 8,000/- will be paid as compensation to the deceased victim's widow Smt. Maya (P.W. 1).The appeal shall stand accordingly disposed of.Appeal partly allowed. *******