M. M. LAL, J. ( 1 ) THIS is an appeal against a judgment and order dated 31-5-1978 passed by Shri S. S. Srivastava, the then VIIth Addi. Sessions Judge, Gorakhpur, by which he has convicted Sheo Prasad appellant under section 302 IPC and has sentenced him to undergo imprisonment for life. ( 2 ) SHEO Prasad, appellant, and Mahadeo deceased were neighbours and were residing in village Jhangaha, Tola Kosri, P. S. Jhangaha, district Gorakhpur; ( 3 ) ACCORDING to the case of the prosecution, on 4-2-1976 at about 8 a. m. Mahadeo deceased threw some water from his cattle trough. The said water started flowing towards that side, where Sheo Prasad appellant had placed his Puara. In order to check the flow of the water towards his Puara, the appellant started digging some earth from the land close to the aforesaid cattle trough belonging to Mahadeo deceased. Mahadeo deceased asked the appellant not to dig the said earth, on which the appellant started abusing him. It is further the case of the presentation that at that time Sheo Prasad appellant with a Kudal, and his wife Smt. Sonmati with a Lathi, started beating Mahadeo as a result of which he sustained injuries on his head and he fell down unconscious. This incident is said to have been witnessed by his son (P. W. 1) Vishwanath, his neighbour (P. W. 2) Dhanesar and his brother-in-law P. W. 3 Lal Bachan, who had come to him from his village Chaura situate at a distance of three Kos. (six miles) Mahadeo was firstly taken to P. H. C. Khorawar wherefrom he was referred to district hospital Gorakhpur, where he was examined. However, ultimately Mahadeo succumbed to his injuries in district hospital at about 6 p. m. Thereafter his son P. W. 1 Vishwanath went to P. S. Kotwali, where he lodged the report of the incident at 7 p. m. ( 4 ) IN support of its case the prosecution examined as many as fourteen witnesses. P. W. 1 Vishwanath informant, (P. W. 2) Dhanesar and (P. W. 3) Lal Bachan gave an eye-witness account of the incident. P. W. 10 Kaliash Nath Singh was head moharrir at P. S. Kotwali. P. W. 1 Vishwanath informant, (P. W. 2) Dhanesar and (P. W. 3) Lal Bachan gave an eye-witness account of the incident. P. W. 10 Kaliash Nath Singh was head moharrir at P. S. Kotwali. He deposed that on 4-2-1976 at 7 p. m. the informant came to the police station to hand over the written report of the incident, on which he prepared Chick report and G. D. and that he had then sent a copy of the G. D. to P. S. Jhangaha, with in whose jurisdiction this incident had taken place. P. W. 9 Harihar Pandey clerk-constable at P. S. Jangaha was examined to depose that on receipt of the papers of this case from P. S. Kotwali, he had prepared the Chick report and registered the case. (P. W. 8) Paramhansh Singe S. I. had prepared the Panchayatnamah of the dead body of Mahadeo deceased. P W. 12 Prabhu Ram clerk, P. W. 13 Sheo Prasad Pathak constable and P. W. 14 Budhai Prasad are formal witnesses. P. W. 11 Dr. N. C. Verma was M. O. in Khorabar hospital. He had deposed that on 4-2- 1976 at 11 a. m. Mahadeo was brought to him in a serious condition and that after superfluous examination he had referred him to district hospital. P. W. 7 Dr. M. S. Hussain, the then M. O. , district hospital, Gorakhpur stated in his evidence that on 4-2-1976 at 12. 30 p. m. he had examined Mahadeo deceased and had found the following injury on his person:lacerated wound 11/2 X X scalp deep on left side of head 41/2 above left eye brow. P. W. 5 Dr. M. N. Gope, the then Supdt. , district hospital, Gorakhpur had conducted the post mortem examination of the dead body of Mahadeo deceased on 5-2-1976 at 4. 20 p. m. He had found the following ante-mortem injury on the dead body of Mahadeo deceased: Lacerated would 11/2 X xt X scalp deep on left side of head. On internal examination the said doctor found the clotted blood between the skull bone and muscles and 7 long fracture of the skull bone. There was also depressed fracture 2 X 11/2 on the left side of the Parietal bone. The stomach was found empty. According to the doctor the death of Mahadeo was due to aforesaid head injury. On internal examination the said doctor found the clotted blood between the skull bone and muscles and 7 long fracture of the skull bone. There was also depressed fracture 2 X 11/2 on the left side of the Parietal bone. The stomach was found empty. According to the doctor the death of Mahadeo was due to aforesaid head injury. ( 5 ) THE investigation of this case was conducted by P. W. 6 Niyaz Ahmad S. I. On 5-2-1976 he went to the place of occurrence, where he recorded the statements of Dhanesar etc. He inspected the place of occurrence and prepared the site plan thereof. He found that earth had been freshly dug near the cattle trough in the courtyard of the informant. He also observed a small Mendt having been made at the place of occurrence. However, he did not find any blood at the place of occurrence. On 6-2-1976 he interrogated Lal Bachan. ( 6 ) THE appellant in his statement denied the case of the prosecution. He, however, stated that there was a dispute with the inform anal and the witnesses regarding the bamboo clump. However, the appellant did not produce any evidence in defence. ( 7 ) BELIEVING the case set up and the evidence produced by the prosecution the learned Sessions Judge has convicted and sentenced the appellant as aforesaid. It may be observed that the learned trial court acquitted Smt. Sonmati on the ground that the witnesses had not attributed any role to her. Feeling aggrieved, the appellant has filed this appeal. ( 8 ) WE have learned counsel for the - appellant and the State and have perused the record carefully. ( 9 ) LEARNED counsel for the appellant has vehement ally argued before us that whereas this incident is alleged to have taken place on 4-2-1976 at 8 a. m. , the F. I. R. was lodged with quite delay on the same day at 7 P. M. , i. e. after an interval of II hours, and that the same shows that this Case was lodged after much deliberation and consultation. In our opinion the said argument is without merit. No doubt the F. I. R was lodged with delay yet we find that in this case the delay has been satisfactorily explained. P. W. 1 Vishwanath informant is an illiterate villager. He is a ploughman by profession. In our opinion the said argument is without merit. No doubt the F. I. R was lodged with delay yet we find that in this case the delay has been satisfactorily explained. P. W. 1 Vishwanath informant is an illiterate villager. He is a ploughman by profession. He has explained that when his father was gravely hurt and had become unconscious, he was confused and that he thought it proper firstly to save the life of his father and to take him to hospital. It has come on record that Mahadeo deceased in an injured condition was firstly taken to P. H. C. Khorabar at about 11 a. m. and when he was referred to district hospital, Gorakhpur, he was brought to Gorakhpur. It appears that it was only after Mahadeo expired at 6 p. m. that his son Vishwanath got the report of the incident written from some one in the hospital and then lodged the same at P. S. Kotwali. We are impressed by the explanation offered by the P. W. 1 Vishwanath and we arc satisfied that it was only with a view to save the life of his father that the informant firstly rushed for the medical aid and when Mahadeo could not be saved and he died, then Vishwanath P. W. 1 went to the police station to hand over his written report. To repeat we are of the opinion that the explanation given by P. W. 1 regarding delay in lodging the report of incident is quite satisfactory. ( 10 ) LEARNED counsel for the appellant has taken us through the oral evidence. He has tried to challenge the same. He has urged that whereas both in the F. I. R as also in the statements of the witnesses recorded by the 1. 0. under section 151 Cr. P. C. it was said that Smt. Sonmati had also given a Lathi blow to Mahadeo and that when the witnesses had resided from the said version before the trial court, their statements should not be believed. In our view if their was any such discrepancy in the case of the prosecution, advantage of the same has been given and Smt. Sonmati wife of the appellant has been acquitted. So far the appellant is concerned, the evidence against him is consistent that after a quarrel he had struck Mahadeo with the Pasa of the Kudal. In our view if their was any such discrepancy in the case of the prosecution, advantage of the same has been given and Smt. Sonmati wife of the appellant has been acquitted. So far the appellant is concerned, the evidence against him is consistent that after a quarrel he had struck Mahadeo with the Pasa of the Kudal. This incident had taken place in broad day light, when there was no possibility of any mistake in the identification of the assailant. ( 11 ) LEARNED counsel for the appellant has further submitted before us that (P. W. 3) Lal Bachan was not only a resident of a different place but was brother-in-law of the deceased, that P. W. 1 Vishwanath was the son of the deceased, and that P. W. 2 Dhanesar was their neighbour and that it would not be safe to rely upon such interested witnesses. In the first place it may be observed sat P. W. 3 Lal Bachan was residing in a close by village Chaura, situate at a distance of six miles only. He had come to village Jhangha in order to enquire about the well being of Vishwanath P. W. 1, who was not well from some time. In our view when P. W. 1 Vishwanath was keeping an indifferent health, it was natural for his maternal uncle P. W. 3 to come to his place to enquire about his health. He had stayed for the night and it was on the following morning that this incident took place in his presence. P. W. 3 Dhanesar was as good a neighbour of the deceased as of the appellant himself. We are of the opinion that in a case where a near and dear one is killed, his relations and friends would not spare the real assailant and implicate others. In this respect, it has been observed in AIR 1983 SC 9571 that a witness whose near relative had been killed would not spare the real culprits and falsely implicate others. In this case the learned counsel for the appellant was not able to give us any sound reason as to why after all if some body else had caused fatal injuries to Mahadeo the appellant was falsely implicated. In this case the learned counsel for the appellant was not able to give us any sound reason as to why after all if some body else had caused fatal injuries to Mahadeo the appellant was falsely implicated. ( 12 ) LEARNED counsel for the appellant also urged before us that the aforesaid lacerated wound sustained by Mahadeo could not have possibly been caused by a Kudal and that therefore, when the oral evidence was belied by the medical evidence, the aforesaid three eye witnesses produced by the prosecution in this case should not be believed. We find no merit in the said argument. In this case the eye witnesses have deposed that Mahadeo deceased was struck from that side of the Kudal where the Pasa is fixed, meaning thereby that the aforesaid injury was sustained by Mahadeo when he was struck with Pasa. Dr. M. N. Gope (P. W. 5), the then Supdtt, District Hospital, who conducted the postmortem examination, has stated in his evidence that the aforesaid injury could possibly be sustained by Mahadeo if he was struck by the wrong side of the Kudal. It is settled principle of law that the testimony of a eye witness would be preferable to medical evidence unless the medical evidence completely rules out the eye witness version. Solanki Chimman Bhai Uka Bhai v. State of Gujarat2. In our opinion the medical evidence in this case does not belie the testimony of the eye-witnesses. ( 13 ) LEARNED counsel for the appellant also submitted that the 1. 0. had not found any trace of blood either at the place of occurrence or on Kudal, which is said to have been recovered from the possession of the appellant, and that in this way the case of the prosecution become doubtful. With regard to the Kudal it may be observed that it was not recovered ant taken into possession immediately after the occurrence. As regards the place of occurrence some freshly dug earth was found by the 1. 0. at the time of his local inspection. It is, thus clear that if an effort was made to remove the blood either from the place of occurrence or from Kudal, there was sufficient time for doing the same. As regards the place of occurrence some freshly dug earth was found by the 1. 0. at the time of his local inspection. It is, thus clear that if an effort was made to remove the blood either from the place of occurrence or from Kudal, there was sufficient time for doing the same. It may, however, be not out of place to state that it was not the suggestion of the appellant that the incident had taken place somewhere else. ( 14 ) IN result, therefore, we are of the opinion that the case against the appellant was made out beyond reasonable doubt and that the learned Sessions Judge has rightly found the appellant guilty. ( 15 ) LEARNED counsel for the appellant lastly urged before us that at best this was a case under section 304 part II IPC and not section 302 IPC. We find force in the said argument. It has come on record that this incident had flared up all of sudden when water flew towards the Puara and the appellant started stopping the said flow of water by erecting Mendt. Mahadeo deceased felt agitated when he found that the appellant had started digging earth by the side of his cattle trough. There was an exchange of abuses between Mahadeo and the appellant. The appellant had simply struck Mahadeo only once with Kudal. There was no pre-meditation or malice. The said circumstances how that it was not the intention of the appellant to cause the death of Mahadeo. Had there been any preplanning and had the appellant given blow after blow to Mahadeo deceased, the result would have been different but when we find that in this case the incident flared all of sudden and the appellant simply gave one blow to Mahadeo all that can be said is that the appellant had no intention to murder but simply had knowledge that he was likely to cause such injury to Mahadeo which was likely to cause death. In this respect reliance is placed upon Jagtar Singh v. State of Punjab3 where a sudden quarrel bad taken on spur of moment arising out of trivial matter. There was no pre-mediation or malice and a young man had caused a single blow by knife on the chest of the victim causing his death. In this respect reliance is placed upon Jagtar Singh v. State of Punjab3 where a sudden quarrel bad taken on spur of moment arising out of trivial matter. There was no pre-mediation or malice and a young man had caused a single blow by knife on the chest of the victim causing his death. It was held that the intention of case death or collusing particular injury could not be computed to the assailant and that the case was covered by section 304. 11 IPC and not paras 1 and 2 of the section 302 IPC. Similarly, in Kulwant Rai v. State of Punjab4 where a short quarrel was followed by an assault and accused gave the deceased one blow with a dagger that landed on epigastria area resulting in the death of the assailant. It was held that the case, fell under section 304 Part II IPC. Looking to the facts and circumstances of the case we are of the opinion that this case as well as covered by section 304 Part 11 IPC and that a sentence of 5 years R. I. thereunder shall meet the ends of justice in this case. ( 16 ) ACCORDINGLY, this appeal is allowed in part. The order under appeal. is modified to this extent that the conviction and sentence is modified and converted from section 302 IPC to section 304 Part II IPC and instead of life imprisonment Sheo Prasad appellant is sentenced to 5 years R. I. under section 304 Part ill IPC. ( 17 ) THE appellant is on bail. He shall be taken into custom forthwith so that he may serve out the sentence of five years R. I. imposed on him. .