JUDGMENT - D.J. MOHARIR, J.:---The appellant, Malhari Pandurang Shinde, was tried for committing murder under section 302 of the Indian Penal Code but came to be convicted under section 304 (Part II) of the I.P.C. He was sentenced to rigorous imprisonment for three years. This appeal challenges both the conviction and sentence awarded. The prosecution case in short, is as under. 2. At the village Nirwangi, Taluka Indapur, District Pune, Parubai, wife of Ganpat Machale, owned agricultural land. This parcel of land adjoins the land of the accused Malhari as also one Digamber. To the south of Parubai's field, at some distance from it, is the land of one Shankar. The cultivation of this land was done by Shankar Kavitke by engaging the prosecution witness No. 1, Atmaram Lalge as an agricultural servant. Parubai and Ganpat have two sons. One of them is the prosecution witness, Baban (P.W. 6). The other son Nivruti lives at Walchandnagar, District Satara where he is employed. On 24th October, 1982, Ganpat went to his (that is his wife Parubai's) land for attending to the irrigation thereof. Digambar Ghorpade's land, that of Ganpat are at a lower level than that of the accused. All these lands are irrigated. A water channel runs by the east of all these three fields. On going to his field, Ganpat Machale who was about 65 years old found that the storage of water in his field had come to be affected by reason of a stone placed by the accused at the mouth of the channel in his own field. He, therefore, tried to lift that stone so as to allow water in his field. Upon this altercation occurred between him and the accused, Ganpat indulged in abusing the accused Malhari. Atmaram who was present nearby is said to have intervened and asked both these persons not to indulge in such quarrels. However, taking offence at the abuses hurled by Ganpat at him, the accused is said to have lifted the spade in his hand and hit Ganpat with it on his head. The blow was severe enough for the aged Ganpat to bring him down instantly and he fell down into the muddy field near the channel. Thereafter, Atmaram removed Ganpat to his house. Ganpat's wife Parubai was at home at that time. 3. The blow was severe enough for the aged Ganpat to bring him down instantly and he fell down into the muddy field near the channel. Thereafter, Atmaram removed Ganpat to his house. Ganpat's wife Parubai was at home at that time. 3. Arrangement was made to take Ganpat for medical aid at the Primary Health Centre at Nimgaon Ketaki. At Nimgaon, the advice given was to shift Ganpat immediately for better medical treatment. He could have been taken to the Civil Hospital at Pune. However, since Ganpat's son was employed at Walchandnagar where there was a hospital, it was decided to remove Ganpat to Walchandnagar. He was first taken to the house of his son Nivrutti. Before he could be taken to the hospital from Nivrutti's house, Ganpat expired. It was, therefore, the dead body was taken from Walchandnagar to the Civil Hospital at Pune. Ganpat was thus not admitted there for any treatment being already dead. 4. The dead body of Ganpat was then taken from Pune to his native place Nirwangi. The Medical Officer in charge of the dispensary there, Dr. Taware (P.W. 20) carried out the post-mortem examination. There is a Police Outpost at Lasurne, having jurisdiction over the village Nirwangi. It was there that Atmaram's complaint, Ex. 9 was recorded and an offence was registered against the accused. He was arrested on the same day. 5. After usual investigation which included drawing of a panchanama of the scene of offence, the seizure of the article of clothing on the person of the deceased as had been brought by the escorting police constables, and lastly upon the seizure of a spade which was said to have been at the instance of the accused himself, the police sent the property to the Chemical Analyser for his report. A charge-sheet was eventually presented against the accused and the learned J.M.F.C. committed this case for trial by the Court of Sessions Judge, Pune. 6. A charge was frame against the accused as per Exhibit 2. A charge-sheet was eventually presented against the accused and the learned J.M.F.C. committed this case for trial by the Court of Sessions Judge, Pune. 6. A charge was frame against the accused as per Exhibit 2. He was charged that on 24th October, 1982 at about 7 a.m. near the water channel near the land of Digamber Ghorpade at Mauje Nirwangi, Taluka Indapur, the accused did commit murder by intentionally or knowingly causing the death of Ganpat Dhondiba Machale, by delivering a blow on his head with a spade; that he had thereby committed an offence punishable under section 302 of the Indian Penal Code; that a charge so framed, the accused pleaded not guilty. His defence is of a denial simpliciter. At the stage of his examination under section 313, he would appear to have raised two contentions. The first is that the injury to Ganpat Machale leading to his death had been caused probable when that morning he accidentally slipped his feet in the mud and fell on the very stone which he had been trying to remove for allowing water in his field. Secondly, the prosecution had examined witnesses who were entirely unreliable, in particular, the deceased son, Baban Ganpat Machale (P.W. 6) and Atmaram (P.W. 1) Upon their complaint, an offence had been registered against the accused. An indication was also given that the relations between the accused and the deceased were not cordial. The deceased had harboured ill-will towards him because he had purchased the adjoining land of one Laxman Ghorpade which the deceased himself wanted to purchase. In the circumstance, the accused contended that he had been falsely charged and deserved to be acquitted. 7. The evidence of Atmaram (P.W. 1), Baban (P.W. 6) and Parubai (P.W. 5) however found favour with the learned trial Judge. Considering their evidence, together with the fact of recovery of a blood stained spade from the house of the accused himself, the blood being human, the trial Court concluded that Ganpat Machale's death was homicidal. The offence under section 302 of the I.P.C. could not be brought home to the accused as the learned trial Court reasoned because this was a case where the violence had been limited to the giving of the single blow on the head and furthermore, because Ganpat had indulged in abuses and had thereby come to offend the accused. The offence under section 302 of the I.P.C. could not be brought home to the accused as the learned trial Court reasoned because this was a case where the violence had been limited to the giving of the single blow on the head and furthermore, because Ganpat had indulged in abuses and had thereby come to offend the accused. In the circumstances, the charge as sustained was held to be one under section 304 (Part II) of the I.P.C. only. Accordingly, the accused was convicted for the offence punishable under section 304 (Part II) of the I.P.C. and sentenced to suffer rigorous imprisonment for three years. It is to this conviction and sentence that exception is taken by this appeal. 8. For determining the cause of death, the evidence led is of Dr. Dilip Taware who was attached to the Indapur Rural Hospital at the material time. The post-mortem examination was carried out by him, almost 24 hours after Ganpat's death. One single contused lacerated wound accompanied by two abrasions were detected on external examination. On internal examination he found Haematoma of Temporal muscle on left side at over the temporal region. There was a fracture on the right knee, on the inner side and another abrasion over the right leg above ankle. There was fracture of skull in left Temporal. Lastly, he also found subdural haemotoma due to fracture of skull. Upon his external and internal examination, he was of the opinion that the cause of the death was shock due to subdural haemotoma due to fracture of skull. It appears that the spade in question, after it was recovered during investigation, had not been sent to the Medical Officer to obtain his opinion as to whether the head injury in question could have been caused with the said implement. Dr. Taware however stated that the injury in question could be caused with it. 9. A short reference to the panchanama of scene of offence, Ex. 14 would be useful. The field of the deceased Ganpat is adjoining to the field of accused on one side and that of Digamber on the other side. All these fields are irrigated. Water in provided by a single channel by the eastern side of these fields. There are openings in it at different places for allowing water to flow into different parcels of agricultural lands. All these fields are irrigated. Water in provided by a single channel by the eastern side of these fields. There are openings in it at different places for allowing water to flow into different parcels of agricultural lands. The openings are closed, whenever not required by placing huge stone at the junction of the channel and the inlet to the field. The panchanama of the scene of offence was drawn up upon the same scene of occurrence being shown by Atmaram (P.W. 1). On the spot where, according to Atmaram, the accused had hit Ganpat on his head with his spade, there was all mud and also close to the spot was a big stone, which could be placed against the mouth, either to allow water to pass on to the other fields or by removing it, to permit it in one's field. It is the presence of this stone with reference to which suggestion was made to Dr. Taware, that a fall on such a big stone heavily could cause the head injury, namely, the fracture of the skull and the sub-dural haemotoma resulting in a shock and ultimately death. 10. Eye-witnesses to the occurrence, according to the prosecution, are only two-Atmaram (P.W. 1) and the deceased Ganpat's son (P.W. 6). In order to correctly appreciate the version of Atmaram, it would also be necessary to refer to the complaint and the first information report lodged by him at Ex. 9. This was lodged on the very day of the incident, late in the afternoon. The FIR is to the effect that at about 7 a.m. Atmaram was on duty in the field of his brother-in-law Shankar Kavitke. He had seen water coming to the land of Shankar Kavitke with a low velocity. He therefore went up to the land of Digambar to investigate the cause. He saw Ganpat's son Baban as also the accused standing beside the channel, Ganpat complained to him, against the accused, that the latter had removed the stone which Ganpat had kept at the end of the channel in his field to allow water to come in and store in it. The removal of the stone would not thus allow water to accumulate. The removal of the stone would not thus allow water to accumulate. Because of this, Atmaram realised that water was not reaching his master's land, though his matter's field was at a lower level inasmuch the removal of the stone by Ganpat to allow water inside his field had prevented from accumulation thereof in Ganpat's field, the latter made a grievance of it. Atmaram therefore advised both Ganpat and the accused Malhari not to quarrel about it. However, Ganpat had at that time abused Malhari not to quarrel about it. However, Ganpat had at that time abused Malhari for removing the stone from the concerned end of the channel in Ganpat's field. The abuses annoyed Malhari. He therefore, hit Ganpat on the head with his spade which was in his hand. Ganpat fell down under the blow of accused. Atmaram then took Ganpat to his house. Ganpat was thereafter taken to the Dispensary at Nimgaon by his wife Parubai and his son Baban. 11. In the Court, Atmaram no doubt reiterates his version in the F.I.R. to a considerable extent. What however he tried to impress upon the Court was the presence of Ganpat's son in the field. He says that Baban was present and that when Ganpat fell down under the blow given to him with the spade, both of them had helped to get on to his feet. They had then escorted him to his house. Whether or not Atmaram was present at the time of any such incident is itself a fact questioned by learned Counsel for the appellant. He points out that even on the admission of Atmaram, the distance between the deceased Ganpat's field is about 400-500 feet. Therefore, according to learned Counsel, there was no reason for Atmaram to be present in Ganpat's field or near about it. It is significant to note that according to Atmaram, not only his master's field but the fields of certain others also did not get the usual and adequate quantity of water through the channel. Therefore, whether or not the flow of water was in the direction of Shankar Kavitke and others had at least for some time been obstructed was a question of fact determinable by examination of the other witnesses, the other field workers. However, reliance had been placed only on Atmaram's version. Therefore, whether or not the flow of water was in the direction of Shankar Kavitke and others had at least for some time been obstructed was a question of fact determinable by examination of the other witnesses, the other field workers. However, reliance had been placed only on Atmaram's version. Whether he ought to be believed in his narration that Ganpat was assaulted, is to be decided with reference to the cross-examination. As stated earlier, he had asserted that Baban, son of the deceased Ganpat, was present in the field at that time; that Baban had taken Ganpat home. Now Baban when examined as a prosecution witness, also stated that the assault on his father was witnessed by him and that he and Atmaram, took him home. Having made that statement, he has virtually eaten back his words. For he admitted in no uncertain terms that he was himself not present in the land when the accused struck the fatal blow with his spade on the head of his father. Secondly, he also admitted the correctness of the suggestion that the land of one Laxman Ghorpade adjoins as much the field of Malhari as it adjoins his mother Parubai's. Laxman Ghorpade sold this land to the accused. The suggestion was that Ganpat wanted to purchase this land but was annoyed that the accused Malhari had fore stalled him in this transaction. Parubai denied any knowledge about the intention of her husband to purchase the land which the accused had purchased from Laxman Ghorpade. But then Baban makes a clear admission on this point. He states that it was true that he was giving false evidence in Court and this was for the reason that he was antagonistic towards the accused, the cause for the antagonism being that the accused had purchased that land which Ganpat wanted to purchase. At the stage of the trial, the Additional Public Prosecutor tried to retrieve the situation by contending that Baban was a person of a very short or poor memory and that he had therefore made this erroneous admission in cross examination. The trial Court appears to have permitted the Public Prosecutor for the State to therefore re-examine Baban. Thereupon, also no success could be achieved. At the hearing of this admissions made by Baban in his cross-examination should be ignored because he had a poor memory. This argument will cut both ways. The trial Court appears to have permitted the Public Prosecutor for the State to therefore re-examine Baban. Thereupon, also no success could be achieved. At the hearing of this admissions made by Baban in his cross-examination should be ignored because he had a poor memory. This argument will cut both ways. For if a memory was poor, not merely the cross-examination of Baban but even the examination-in-chief would be equally subject to disbelief for this poor memory. 12. The circumstance that Baban might not have been present at the scene of offence, as confusedly stated by him as per argument of the A.P.P. stands further re-enforced to Parubai stated that her husband was brought home in the injured condition by Atmaram and her son Baban. Atmaram told her that Ganpat was assaulted and injured by the accused, using a spade as a weapon. It was, therefore, suggested to her that in fact her son Baban had never been to the field that morning and that he was actually at home. It is however proved from the evidence of the Investigating Officer that when her statement was recorded, she did not disclose that it was along with Atmaram that her son Baban also accompanied her husband when he had been brought home. It was also suggested to her that not even Atmaram had actually escorted her husband and that Ganpat had in fact returned home alone from the field on his own unaccompanied. It was further suggested though denied that Ganpat had then told her that he had sustained a fall on the big stone kept for closing or opening the water channel. It is in these circumstances that the question of authenticity and the truth of the first information report, Exhibit 9, requires scrutiny and consideration. Atmaram has admitted that one Mane was the Police Patil for the village. He admitted that he did not himself go and make any report with the Police Patil about his violence done to Ganpat by the accused. He admits that he was in the village only throughout the day after the incident. Yet until his complaint was recorded as per Exhibit 9, he states that he had not told anybody about this incident. This, in my opinion, is not plausible. He admits that he was in the village only throughout the day after the incident. Yet until his complaint was recorded as per Exhibit 9, he states that he had not told anybody about this incident. This, in my opinion, is not plausible. He also admits that he did not tell Parubai or Baban or anyone else in the village to give information to the Police Patil about the crime committed by the accused. There is, therefore, certainly a case of delay in the lodging of the first information report and the delay has remained to be explained satisfactorily. 13. It is therefore the contention of the accused that not only Ganpat sustained the head injury by sheer accident, but that he has himself been brought into trouble by being false charged with the murder of Ganpat, because Ganpat and his family members were annoyed that he had forestalled Ganpat in the transaction pertaining to the sale of Laxman's field. In the totality of the facts and circumstances as considered, the suggestion must be found to get probabilised. It is the accused's statement under section 313 Cr.P.C. therefore, that the witnesses Parubai, her son Baban and the complainant Atmaram have falsely implicated him. The bad relation between Atmaram himself and the accused have also been suggested to Atmaram during cross examination. The accused has further stated that on that day he was actually working in his own field. Ganpat was blocking the water channel and was removing the stone for blocking the flow of water out of his field. The land was quite muddy as is not disputed with reference to the panchanama of the scene of offence. It was in this mud that Ganpat accidentally slipped and heavily fell on the huge stone and was hurt. In my opinion, the explanation of the accused became fully probablised with the clear indication that both Atmaram (P.W. 1) and Baban (P.W. 6) were persons not worthy of credence, for different reasons. The theory of an accidental death, as advanced by the accused becomes probabilised further upon the post-mortem examination notes and the opinion evidence of Dr. Taware. At any rate, considerable doubt about the genuineness of the prosecution version explaining the death of Ganpat must come to be entertained. To the benefit of doubtful so created, it is only the accused who is entitled to. 14. Taware. At any rate, considerable doubt about the genuineness of the prosecution version explaining the death of Ganpat must come to be entertained. To the benefit of doubtful so created, it is only the accused who is entitled to. 14. In the circumstances, the appeal must succeed. The conviction under section 304 (Part II) of the Indian Penal Code and the sentence awarded to him are both hereby set aside and the accused shall stand acquitted of the said offence. The appellant has been on bail. The bail bond shall stand cancelled. Order accordingly. -----