Judgment : PADMINI JESUDURAI, J. ( 1 ) THE accused in S. C. 40 of 1987 on the file of Sessions Judge, Kanyakumari, has filed this appeal challenging his conviction for ah offence under Section 304, Part (2) Indian Penal Code and sentence of imprisonment for a period of five years. ( 2 ) THE appellant was tried by the above court for an offence under Section 302 I. P. C. in that on 30/4/1986 at 4. 30 P. M. in Alamparai, he caused the death of one Chellamuthu by beating him with hands. ( 3 ) THE facts are briefly as follows: P. W. 1 is the wife of the deceased. She was residing in Punnathanvizhai in Poovankodu. The appellant was residing about 50 feet away. On 30/4/1986 at 4. 00 P. M. the appellant went to the house of the deceased and took him saying that they would go to Alamparai, At about 4. 30 P. M. , P. Ws. 2 and 3 came to the house of P. W. 1 and informed her that at Alamparai, the appellant had beaten the deceased and the deceased was lying in an unconscious state. P. W. 1 took her brother P. W. 5 and went to Alamparar and saw the deceased, lying unconscious with injury on the forehead. They engaged a taxi and took the deceased to a Siddha Medical Practitioner P. W. 6. The deceased was given some medicines and P. W. 6 advised P. W. 1 to take the deceased to a hospital since his condition was serious. P. W. 1 did not listen to the advice but took the deceased to her house. The deceased ultimately died on 3/5/1986 at 4. 00 A. M. P. W. 1 went to P. W. 12 the Sub-Inspector of Police at Thiruvattar Police Station and gave EX. P1 complaint which P. W. 12 registered at Crime No. 105186 under. Section 174 Criminal Procedure Code. Intimation was sent to the Inspector of Police P. W. 15 who examined the witnesses, held inquest, examine P. Ws. 2,3 and others and altered the Section to one under Section 302 I. P. C. He took further investigation. ( 4 ) P. W. 8 the Medical Officer, attached to the Government Hospital at Kulasekaram, conducted post mortem on the dead body of the deceased on 4/5/1986 at 12. 2,3 and others and altered the Section to one under Section 302 I. P. C. He took further investigation. ( 4 ) P. W. 8 the Medical Officer, attached to the Government Hospital at Kulasekaram, conducted post mortem on the dead body of the deceased on 4/5/1986 at 12. 10 P. M. and found on the body the following injuries, described by him in the post mortem certificate Ex. PA. 1. Contusion 2 x 2 with abrasion 1" x 1 on the forehead right side. Bluish black in colour. On dissection blood clots present underneath the skin. 2. Contusion 4 x 3 with linear abrasions 2 x 1/2 on the temporal area right. Bluish black in colour. On dissection extravasations of blood into the tissues present. Blood clots present underneath the skin. On further dissection hemorrhage spots seen over the underlying brain tissues. 3. Abrasion 1" x 1 below the right nipple. 4. Abrasion 2" x 1-1/2 on the lateral aspect of the right hip joint. 5. Abrasion 1-1/2 x 1 on the posterior aspect of the right elbow joint. 6. Abrasion 2 x 1 on the anterior aspect of the middle of right leg. 7. Contusion 4 x 3 on the temporal area of the head left side. Bluish black in colour. On dissection extravasations of blood into the tissues present. On further dissection there is a crack fracture of the temporal bone 2 in length. On further dissection collection of blood seen over the underlying meningis and the brain tissues. 8. Contusion 5 x 4 on the inter scapular area (right) bluish black in colour. Extravasations of blood into the tissues present. On further dissection there is contusion 3 x 2 on the middle lobe of the right lung. Haemothorax present on both the sides. I According to P. W. 8, death. was due to shock and hemorrhage as a result of the injuries, particularly injury No. 8 which was sufficient in the ordinary course of nature to cause death. The injuries could have been caused as a result of forcible contact with rough surface. ( 5 ) P. W. 15 examined the other witnesses and after completing investigation, laid charge sheet. During trial, on behalf of the prosecution, P. W s. 1 to 15 were examined and Exs. P. 1 to P. 16 were marked M. Os. 1 to 4 were produced. ( 5 ) P. W. 15 examined the other witnesses and after completing investigation, laid charge sheet. During trial, on behalf of the prosecution, P. W s. 1 to 15 were examined and Exs. P. 1 to P. 16 were marked M. Os. 1 to 4 were produced. The learned Sessions Judge found that the occurrence had taken place in the manner spoken to by P. W s. 2 and 3 and other witnesses but that the offence would fall only under Section 304 Part (2) I. P. C. and convicted and sentenced the appellant, as stated above against which the present appeal has been filed. ( 6 ) MR. M. Karpagavinayagam, the learned counsel for the appellant challenging the persecution evidence would contend that there was considerable delay in giving Ex. P. 1 which had not been explained by the prosecution that the evidence of P. Ws. 1 to 3 cannot be relied upon particularly when the learned Sessions Judge has disbelieved the oral dying declaration alleged to have been made by the deceased to P. W. 1, that P. Ws. 2 and 3 had greatly improved their evidence during trial which would show that they were not witnesses of credit, that P. W. 1 had been consistently trying to avoid taking the deceased to the hospital or to make a report and all this would indicate that the occurrence could not have taken place in the manner spoken to be P. Ws. 2 and 3. The learned counsel also urged that the F. I. R. being initially under Section 174 Cr. P. C. , the inquest must have been held by the Executive Magistrate and not by the police officer and the occurrence could never have taken place as stated by P. Ws. 2 and 3. ( 7 ) PER contra the learned Public Prosecutor by referring the salient features of the prosecution case sought to sustain the conviction and sentence. ( 8 ) THE question that arises for consideration is whether the conviction of the appellant can be sustained. This is not a case where there has been any motive that led to the occurrence. It is not the evidence of P. W. 1 that the deceased was decoyed by the appellant to Alamparai. ( 8 ) THE question that arises for consideration is whether the conviction of the appellant can be sustained. This is not a case where there has been any motive that led to the occurrence. It is not the evidence of P. W. 1 that the deceased was decoyed by the appellant to Alamparai. On the contrary, the appellant and the deceased appeared to be relations and on the day of the occurrence, the appellant had gone to the house of P. W. 1 and had taken the , deceased with him stating that they could go to Alamparai. P. W. 1 is not an eye witnessto the occurrence. The actual occurrence is spoken to by P. Ws. 2 and 3. It is true that the occurrence had taken place on 30/4/1986 and Ex. P. 1 is given only on 3/5/1986 at 5. 30 P. M. The learned counsel, on the basis of this delay, would urge that no reliance can be placed on the evidence of P. Ws. 1 to 3. The arrack shop owner P. W. 4 in front of whose shop, the occurrence had taken place did not support the prosecution. It is true that P. W. 1 has not made an immediate report about the occurrence. However, when it is seen that the deceased had not sustained any serious external injury visible to witnesses and the major complaint seemed to be his unconsciousness, it is but natural that witnesses are not inclined to magnify an assault whose consequences at that time they could have never anticipated. It is true that the deceased had sustained a fracture on the temporal bone and also contusion on the middle lobe of the right lung. Injuries are serious yet they are internal injuries and P. W. 1 could not be expected to know them or their seriousness. Externally all that she could see was an injury on the fore-head. Even the other external injuries are not serious ones. P. W. 1 therefore had been trying to make the deceased regain consciousness. She has not rushed to any hospital. Under which circumstances we cannot expect P. W. 1 to report to the police about the assault which the appellant is said to have made. Even the other external injuries are not serious ones. P. W. 1 therefore had been trying to make the deceased regain consciousness. She has not rushed to any hospital. Under which circumstances we cannot expect P. W. 1 to report to the police about the assault which the appellant is said to have made. Even after the death of the deceased, it is the evidence that arrangements were being made to bury the dead even without making a report and it was only when Rajitham told P. W. 1 that a report about the assault by the appellant had to be made that Ex. P. 1 has come into existence. No adverse inference can be drawn from the fact that no immediate report has been made about the incident to the police. ( 9 ) WHEN there is a delay, the evidence has to be scrutinized with more care, since the possibility of the delay being exploited to fabricate cases has always to be guarded against. The evidence of P. Ws. 2 and 3, therefore, will have to be scrutinized with greater caution, since they are first examined only on 3/5/1986, that is on the fourth day after the occurrence. It is true that they had not reported about the occurrence to anyone, nor had they cared to enquire P. W. 1 as to how the deceased was. All this will only show that nobody took the incident in a very serious manner, because it was something like a drunken brawl between the appellant and the deceased. However merely because P. W s. 2 and 3 did not report about what they had seen, their evidence cannot be rejected. During trial P. Ws. 2 and 3 have stated that after assaulting the deceased, the appellant rolled the deceased down the rock and carried him to a distance of 75 feet and then dropped him on the ground. These acts of the appellant have not been spoken to by P. Ws. 2 and 3 while they were examined during inquest. For the first time they are spoken to during trial. This is an addition and it would be best to ignore the addition as far as the overt acts of the appellant are concerned. However, merely because P. Ws. 2 and 3 while they were examined during inquest. For the first time they are spoken to during trial. This is an addition and it would be best to ignore the addition as far as the overt acts of the appellant are concerned. However, merely because P. Ws. 2 and 3 have made same additions in their evidence, it would not follow that their entire evidence ought to be rejected: Eve in Ex. P1 reference is made that P. W s. 2 and 3 as the persons who came and informed P. W. 1 that the appellant had assaulted the deceased and the deceased was lying in an unconscious state. Their evidence is corroborated to a limited extent by P. Ws. 1 and 5, who go to the spot mentioned by P. W s. 2 and 3 and find the deceased with an external injury, lying in an unconscious state. Even in Ex. P1 reference is, made to the appellant assaulting the deceased. I see no reason to reject this portion of the evidence of P. Ws. 2 and 3. The learned counsel for the appellant however would urge that, when the major portion of the evidence of P. Ws. 2and 3 is rejected and P. Ws. 2 and 3 by making significant addition have proved themselves to be unreliable witnesses, their entire evidence would stand discredited. It is always open to a court to reject any portion of the evidence of a witness, which the court finds ought not to be relied upon and accept the portion which inspires confidence. There is consistency from the earliest document, that it was the appellant who assaulted the deceased. However, since it is not clear as to whether as result of the assault any of the injuries mentioned in Ex. p. 4, had been caused no conviction for any of the major offences can be given, particularly when P. W. 8 the Medical Officer has stated that fracture of the temporal bone will not normally be caused by beating with hand. The prosecution has only succeed in proving that the appellant assaulted the deceased with hands. ( 10 ) THE learned counsel for the appellant submitted that the inquest must have been held by the executive Magistrate. However, any irregularity in investigation, unless it has caused real prejudice to the accused, will not be the ground for acquittal. The prosecution has only succeed in proving that the appellant assaulted the deceased with hands. ( 10 ) THE learned counsel for the appellant submitted that the inquest must have been held by the executive Magistrate. However, any irregularity in investigation, unless it has caused real prejudice to the accused, will not be the ground for acquittal. In the instant case, inquest report has been furnished to the appellant and the investigating officer P. W. 15 has been questioned about the significant omissions in that. No prejudice is urged. ( 11 ) FOR the reasons stated above, I am unable to confirm the conviction for the offence under Section 304 Part (2 ). The appellant Can be convicted only for an offence under Section 323 I. P. C. ( 12 ) THE appellant has already been in custody for 15, days and ends of justice will be met by sentencing him to undergone imprisonment for a period already undergone by him which comes to about 15 days. ( 13 ) IN the result, the conviction of the appellant for the offence under Section 304 Part (2) and the sentence of imprisonment for a period of five years are set aside. Instead, the appellant is convicted for an offence under Section 323 I. P. C. and sentenced to imprisonment already undergone by him. With this modification in the conviction and sentence, this appeal is dismissed. Appeal partly allowed.