Judgment S. H. S. Abidi, J. 1. -lodaro Uraon has been convicted under Sec.302, i. P. C. and sentenced to undergo rigorous imprisonment for life. 2. On 1-6-1983 at about 8.15 a. m. (P. W.4), Halkania Bhuiyan, the chaukidar of the village lodged a F. I. R. Ext.1 at P. S. Chandwa, Distt. Palamau. In the F. I R. he said that he was the chaukidar of the village surli and that in the evening of the last Tuesday Bhangna Uraon told him that Lodaro Uraon of village Surli bad assaulted to Chaitu Uraon on his head by pawa of the cot at the door of P. W.5, Prem Yadav, on account of which he was badly injured and then he was Kept in the house of one charkba Uraon a co-villager. He had injuries on his head and was unconscious. There was no means to take him to the hospital and he died on 1-6-1983 at about 4 a. m. The accused and deceased had quarrelled and both were under liquor. This occurrence was seen by Prem Yadav (P. W. S), his wife Fulwa Devi (P. W.7) and Chirku Bhiyan (not examined) and other, 3. The investigation of this case was taken up by the officer-in-charge of the Police Station, Ramlagan Sao (P. W.3), who went to the village and found the dead body. He prepared inquest report and sent the dead body for postmortem examination. He examined witnesses and after completing the investigation he submitted charge-sheet against the appellant. 4. The accused in his defence has denied the prosecution case and has alleged that he has been falsely implicated in this case on account of enmity. No witness in defence has been examined. 5. Prosscution in support of its case has examined ten witnesses. P. W.1, Etwa Uraon has been declared hostile. Bhagna P. W.2 is a hearsay witness P. W.3 Ramlagan Sao ia the officer-in-obarge who had registered the f. I R. and had done the investigation and later on handed over the same to sakaldeep, S. I. on 21-6-1986. who submitted the charge-sheet against the appellant. P. W 4 Halfcania is the informant and chawkidar of the village. P. Ws.5 and 7 Prem Yadav and his wife are the eye-witnesses. P. W.6 savitri Uraon is a girl who was playing near the place of occurrence and had seen the accused running away. who submitted the charge-sheet against the appellant. P. W 4 Halfcania is the informant and chawkidar of the village. P. Ws.5 and 7 Prem Yadav and his wife are the eye-witnesses. P. W.6 savitri Uraon is a girl who was playing near the place of occurrence and had seen the accused running away. P. W.8 Mathura Prssad is the seizure list witness. P. W.9 has been tendered. P. W.10 is doctor R. R. Das, who has conducted the postmortem examination and submitted the postmortem report ext.3. 6. The learnead trial court after examining the entire material on record and the evidence led by the parties has convicted and sentenced the appellant as said above. 7. Learned counsel for the appellant has urged that the order of conviction is bad for various reasons. There is delay in lodging the F. I. R. as the occurrence is said to be of 30-5-1983 whereas the F. I. R. was lodged on 1-6-1983 at 8.15 am. It was also submitted that the cause of death is because of the negligence of the informant and PWs.3 and 5. He has further submitted that the evidence of the two witnesses, namely, P. Ws.5 and 7 are contrary to each other as P. W.5 has said thai he had seen occurrence whereas P. W.7 who is the wife of P. W.5 IMS said that the place 01 occurrence was not visible from the place P W.5 was taking meal. Next it was contended that the statement in the F. I. R. and in the court are different. In the F. I. R. it was said that the information was given by Bhagna, but in the Court it was said that Etwa bad given the information, to the informant etwa has been declared hostile and has said that he has not given any information to the informant. It was also contended that the blood was not found in the Pawa of the cot and the statements of the witnesses are inconsistent. Lastly it was contended that in F. I. R. as well as in the statement there is mention of the fact that the victim and the appellant both were under liquor and as such there was no intention of the appellant to kill the deceased. Lastly it was contended that in F. I. R. as well as in the statement there is mention of the fact that the victim and the appellant both were under liquor and as such there was no intention of the appellant to kill the deceased. To appreciate these contentions of the learned counsel for the appellant, the evidence will have to be scrutinised with much care and caution. 8. The F. I. R. was lodged by Harkania Oraon, P. W.4, the Chawkidar. He has said that about 41/2 years ago on a Monday at about 12 noon, Prem yadav had come to him and told that the appellant had assaulted the deceased and asked him to accompany. He went and saw the victim who was alive at that time. His head was bleeding, He atone: went to Cbandwa police station and gave his statement. Next day in the night, the victim died and again he went to the police station and then the police officer came to the place of occurrence. His house was about 1 kms. from the house of prem Yadav. He said that when he reached the place of occurrence, he found the victim lying and no outsider was there. He left the victim end went to the police station and informed about the occurrence. 9. P. W.5 has said that on a Monday, at about 12 noon, he was at his house. The appellant was there from before and Chaitu was also sitting there. They began to quarrel and the quarrel was without any reason and after drinking. After quarrel, the appellant picked up a kudal, bat his wife fulwa snatched the kudal. Then the appellant picked up a Pawa and assaulted the victim on his head. The head was broken. He has said that after two days the victim died. Before the occurrence the appellant and the victim had ploughed the filed up to 10 a. m. The field was adjacent to that place about 10 to 15 steps away, where be was also there. He said that he went to the river for taking bath and returned as about 11 a. m. Chaitu was fitting alone under liquor and without talking to him he went inside and started taking meal and then he heard the voice of quarrel and came out and saw the marpit. He said that he went to the river for taking bath and returned as about 11 a. m. Chaitu was fitting alone under liquor and without talking to him he went inside and started taking meal and then he heard the voice of quarrel and came out and saw the marpit. He said that at the Dhaba, there were 10 houses and the people present there had seen the occurrence. The appellant hit the victim by a pawa on his head and then on the shoulder which was 11/2 hand long. The victim was not taken to any hospital, which is about 1-11/2 Kos away. He said that it was not correct that the occurrence bad not taken place or that his statement was falsa. He denied the suggestions that the victim bad given bs.4000/- and on demand he refused and so he hit him and falsely implicated the accused. 10. P. W.7, Fulwa Devi wife of Prem Yadav, is the eye-witness of the occurrence. She has said that on the date of occurrence victim and the appellant were there and her husband was taking meal. The appellant picked up a Kudal and wanted to assault the victim, but she snatched the kudal from him, whereupon the appellant picked up a Pawa from outside and gave two Pawa blows on the head of the victim. The victim died on wednesday. He became unconscious and the appellant ran away. In the cross-examination she said that the appellant was not her Halwaha. She also denied the suggestion that she used to sell liquor after manufacturing and the appellant and the victim had come there to take liquor. She has said that her husband was taking food and from there they were not visible. She further stated that she was not sitting with her husband. She went outside after serving the food to her husband. She has said that the First aid was given at the house of Mangal Oraon and the treatment was done by mathura Frasad Sao. She said that it was incorrect that her husbadd bad taken a diescl pump and did not want to give him and, therefore, got him drunk and falsely implicated the appellant in this case. 11. P. W.6, Savitri Grain is the daughter of Magan Oraon. She is aged about 18 years. She said that it was incorrect that her husbadd bad taken a diescl pump and did not want to give him and, therefore, got him drunk and falsely implicated the appellant in this case. 11. P. W.6, Savitri Grain is the daughter of Magan Oraon. She is aged about 18 years. She has said that about 5 years back on a Mondy at about 3 p. m. she saw near the house of Prem Yadav and was playing under mahua tree. She saw the appellant running away. She went and saw the victim lying unconscious. Prem Yadav had told her that the appellant ran away after assaulting the deceased. She said that Mahua tree is few steps away from the house of Prem Yadav, where she was playing. She had seen the appellant running away and not assaulting the victim, who was his mama. He was taken to her house where he was treated. Her father had gone to the police station with the Chawkidar. She had denied the suggestion that the was falsely deposing.11. P. W.1 Etwa has been declared hostile. He laid that he was not examined by the police nor has said to the police that he gave information that the appellant had hit the victim by Pawa. The motive for the occurrence was said to ba that the victim bad said to the appellant "bhondua" and so marpil had taken place. He denied the suggestion that it was not correct that the appellant was his Mama by relationship and so ho was concealing the fact. 12. P. W.2 Bbagna Oraon is a hearsay witness. He has laid that the victim was bis Bahnoi and was assaulted by the appellant which was informed to him by Prem Yadav and his wife. He bad gone to see the victim who had injuries on his head. He did not know as to why the victim was hit. In the cross-examination he has said that he had gone to Patratu to inform the son of the victim and returned about 3 p. m. with the ion of the deceased. His father had gone to the police station. 13. P. W.8 Mathura Pd, Sao is the seizure list witness. In the cross-examination he has said that he had gone to Patratu to inform the son of the victim and returned about 3 p. m. with the ion of the deceased. His father had gone to the police station. 13. P. W.8 Mathura Pd, Sao is the seizure list witness. He has laid that about 5 years ago on a Monday at about 12 noon, he was at his house when Charwa Oraon came to him and said that the accused had assaulted the victim on his head and so asked him to give medicines to him. Ho, thereafter went to the place of occurrence and saw that the vietims head was broken and he was unconscious. He died on Tuesday. The I. O. seized the Pawa and Pati of the cot from the house and prepared seizure list and then he and Prayag Mahto signed us the witness. Ho was examined by the police to whom he said that Charwa Oraon had told him that the appellant had hit him on the head. He also said that be had gone for treatment to the house of Charwa. 14. P. W.9 Prayag Mahto has been tendered. P. W.10 is Dr. R. R. Das who has conducted post-mortem examination and had submitted the post-mortem report Ext.3, in which he mentioned the injuries for which he has also said in the court. He said that the following ante-mortem injuries was fouad in his body. (s) Lacerated wound 3/4" x 1/2" x bone deep on the right frontparietal region of the scalp, with escynosis all round. (ii) Bruise 1" x 3" on the postero lateral aspect of left arm. There wai communicated and depressed fracture as also linear fracture of the frontal bone on the vertex of the scalp. Massive blood clots were found between the scalp and the skull over the frontal and fronto parietal region. On opening the skull cavity menniges were found lacerated over the frontal lobe of the brain with rupture of blood vessels and clot formation between the skull bone and meaninges. The brain matter was also found lacerated on frontal lobe with runture of blood vessel and clot formation in the brain tissue. All the injuries were caused by bard and blunt substance, may be the thick pati of cot The death was caused by expanding haemotoma pressing upon the braia resulting from skull injury described above. The brain matter was also found lacerated on frontal lobe with runture of blood vessel and clot formation in the brain tissue. All the injuries were caused by bard and blunt substance, may be the thick pati of cot The death was caused by expanding haemotoma pressing upon the braia resulting from skull injury described above. The skull and brain injury was sufficient in the ordinary course of nature to cause death. Time elapsed since death was 12-48 Hra. He proved the post-mortem report (Ext.3), written and signed by him. He held that both the injuries together could not have been caused by a single fall. Thus, from the aforesaid evidence of the Dr. (PW 10) coupled with the post-mortem report (Ext.3) it is held that the death of Cbaitu Uraon was homicidal in nature. 15. On the careful scrutiny of the evidence led by the prosecution, it is fully made out that the victim had died of the injury given to him on his head by the appellant. The appellant first tried to assault the victim by Kudal which was snatched away by Fulwa. The appellant then picked up the pawa and gave two pawa blows on the head of the victim who died on 1-6-1983. The occurrence was seen by P. Ws.5 and 7. P. W.6 Savitri seen the appellant running away. The victim was taken to house of Mathura Prasad for treatment. Chawkldar P. W.4, on the information given to him, went to police station and lodged the report. The medical evidence fully corroborates the injury received by deceased. The place of occurrence has not been disputed. In the whole evidence there is nothing to show that there is any contradiction going to the root of the matter. There are bound to be minor contradiction in the evidence of natural and probable witnesses, lite P. Ws.5 and 7. P. W.5 has said that the place where the food was served to him, the occurrence was not visible but she came out and saw the occurrence and so she snatched the kudal from the hand of the appellant. P. W.5 has said that he came and saw the occurrence. It has not been said by P. W.7 that where he was taking meal the occurrence was not visible. As such there is no contradiction which goes to the root of the matter. 16. P. W.5 has said that he came and saw the occurrence. It has not been said by P. W.7 that where he was taking meal the occurrence was not visible. As such there is no contradiction which goes to the root of the matter. 16. It has been contended that there is delay of two days in lodging the F. I. R. The occurrence had taken place on 30-5-1983 at 3 P. M. for which the information was given to chawkldar, who came to the spot and found the victim injured. The F. I. R. was lodged when victim died. It is only on account of the victims death that information was given the police station for which explanation has been given in the F. I. R. itself by the informant. The delay was due to non-availability of means of transport. The circumstances of the case were such that the delay does not effect the merit of the case. 17. As regards the negligenoy in the treatment, it appears that the victim was taken to the bouse of Mathura Prasad for treatment. This witness has said that the hospital was at the distance of 1 1/2 kos from the village. Further it appears that the victim was treated at the house of mangal. The Medical evidence shows that the injury was sufficient to cause death. Therefore, it appears that there was no negligence on the part of p. Ws. , and for that they cannot be held responsible. 18. As regards the contention that the accused and deceased were under liquor and so they were quarreling and there was no intention of the appellant to kill the deceased, no doubt, P W 7 Fulwa Devi has said that the appellant, in course of marpit, bad picked up a Kudal which she snatched from his band, but the appellant picked up the pawa and assaulted the deceased on his head. The appellant thereafter ran away. There is nothing to show that there was any enmity between the appellant and deceased from before. P. W.1 has said that the motive for the assault was that the victim bad called the appellant "bhonduwa", except this, no motive bas been alleged. 19. Thus, from the above, it is clear that the deceas was assaulted by a pawa at the Dhaba of Prem Yadav. The victim died after two days. P. W.1 has said that the motive for the assault was that the victim bad called the appellant "bhonduwa", except this, no motive bas been alleged. 19. Thus, from the above, it is clear that the deceas was assaulted by a pawa at the Dhaba of Prem Yadav. The victim died after two days. From the evidence it appears that there was no strong moti ve or intention to kill the deceased but the intention was to beat him. Both the appellant and deceased were under the liquor, so in the circumstances it can be said that there was co intention to kill him and the appellant was not in a position blj] COMMISSIONER OF INCOME-TAX V/s. M/s. BANKIPUR CLUB LTD.579 to understand the implication as to what he was doing on account of liquor, though be tried to run away. Therefore the appellant is not liable to be convicted under Sec.302, I. P. C. , but be is liable to be convicted under section 304, Part I. Therefore his conviction under Sec.302,1. P. C. it altered to one under Sec.304, Part I, I. P. C. and accordingly he it sentenced to undergo R. I. for eight yeari and to pay a fine of Rs.3000/- and in case of default in payment of fine to undergo R. I. for one year. 20. In the result, with the above modification in the order of conviction add sentanoe this appeal is partly allowed. Apptal partly allowed.