D. M. PATNAIK, J. ( 1 ) THE appellant assails his conviction under sections 436 and 302, I. P. C. and sentence of imprisonment for five years under the former section and sentence of imprisonment for life under the latter section. ( 2 ) PROSECUTION case is, the appellant. P. W. 2 his second wife and the deceased (appellants mother) were staying together in the house. The first wife of the appellant was living separately at some other place. On the previous day to the date of occurrence on 2. 1. 1990, the appellant gave out to leave P. W. 2 and get back his first wife to which the deceased objected. In the morning around dawn time the appellant again brought up the issue and this was objected to by both P. W. 2 and the deceased. At this the appellant got angry, and set fire to his house and threatened both to assault. The house, caught fire and seeing this P. W. 2 ran away to the house of P. W. 3 and informed him of the appellant having set fire to that house. By the time she came along with the witnesses, the house was still on fire and the deceased was found lying with bleeding injuries on her person and the appellant was standing with an axe. When he was asked about the misdeed, he ran away from the place of occurrence. In his defence, the appellant pleaded that P. W. 2 killed his mother. ( 3 ) MRS Sujata Jena, learned counsel appearing for the appellant, strenuously urged for acquittal of the appellant on the ground of inconsistency in the evidence of the prosecution witnesses, non- examination of material witnesses and discrepant nature of medical opinion. Mr. G. K. Mohanty, learned counsel for the State, on the other band, supported the judgment of conviction. ( 4 ) HAVING gone through the post-mortem examination report (Ext. 4) with regard to the injury caused on the person of deceased and confirmed by the Doctor (P. W. 4) in his evidence, we are satisfied that the injuries could not have been possible either by accident or by self-infliction. Therefore, Budhini-died a homicidal death. This finding of the learned Sessions Judge is affirmed. It is correct, as submitted by learned counsel for the appellant that none had seen the assault by the accused. Therefore, Budhini-died a homicidal death. This finding of the learned Sessions Judge is affirmed. It is correct, as submitted by learned counsel for the appellant that none had seen the assault by the accused. But then that itself would not be sufficient to disbelieve the prosecution case. P. W. 2 stated that about dawn time the appellant gave out to leave her and bring back his first wife. It is on this issue that the old lady objected for which, according to P. W. 2, the accused set the house on fire. Seeing this, out of fear, she ran away to the House of P. W. 3 to whom she mentioned the appellant to have set fire. P. W. 3s evidence is clear and cogent that on arriving at the spot he found the house on fire and the old lady was lying with bodily injuries on her person and the appellant was standing there with the blood stained axe. The evidence of these two witnesses has been rightly accepted by the learned Sessions Judge as true and free from, any infirmity. From the evidence of both these witnesses it is abundantly proved that when P. W. 2 left the old lady, there was none else in the house except the appellant. The proximity of time between P. W. 2 seeking help from P. W. 3 and the arrival of P. W. 3 at the spot with other witnesses and shortly thereafter the arrival of P. W. 2 does not leave any room for doubt that within such short span of time some body else other than the appellant would commit the act. Therefore, the finding of the learned Sessions Judge, as discussed in para 11 of the judgment, that it was the appellant who caused the injuries on the deceased has to be affirmed. ( 5 ) THERE are other two elements, the first being the appellant running away from the spot on being questioned by P. W. 3 and others, and the second being his specific plea in the 313 statement that it was P. W. 2 who killed the old lady, which rather lend support to the prosecution case. The first one being inconsistent with the conduct of an innocent man and the second one being patently a false explanation cannot be believed in the given circumstances of the case. The first one being inconsistent with the conduct of an innocent man and the second one being patently a false explanation cannot be believed in the given circumstances of the case. ( 6 ) THE next question is what offence the appellant committed. So far as the genesis of the occurrence is concerned, it is found that the assault by the accused preceded firstly with a quarrel between himself and the deceased on the issue of expressing his desire to leave the second wife and get back the first wife to which the deceased protested; and secondly, the accused perhaps being provocated threw fire on the thatch of the roof. It is after setting fire to the house, the accused assaulted the deceased. Therefore, in these two circumstances it can be presumed that he could not have intended to commit murdert. The next we may examine whether he had such intention with reference to the injury caused by him on the old lady. ( 7 ) THE Doctor, P. W. 4 who conducted the post-mortem examination found four lacerated injuries. Two of these injuries, one on the face and the other on the right arm were evidently not on the vital parts of the body. The other two injuries, one bf which was on the scalp measuring 4 X 11/2 (depth not mentioned) and the other just below the skull on the back side of the neck measuring 4 long, I deep, cutting up to the cervical spine could be said to be on the vital part of the body i. e. bead. So far as the first injury on the head is concerned, the Doctor did not mention the depth of the injury. It is common knowledge that all the injuries on the head do not necessarily cause death. This has been so held in the case of (William Slaney v. State of Madhya Pradesh. In absence of evidence as to depth of the injury it is difficult to conclude that the injury was sufficient in the ordinary course of nature to cause death. Because of such omission in not mentioning the depth of the injury in the case of State of Karnataka v Siddappa Basanagouda Patil and others2, the apex. In absence of evidence as to depth of the injury it is difficult to conclude that the injury was sufficient in the ordinary course of nature to cause death. Because of such omission in not mentioning the depth of the injury in the case of State of Karnataka v Siddappa Basanagouda Patil and others2, the apex. Court besides other circumstances also doubted as to the nature of the injuries and held that in absence of any evidence in regard to the depth of injuries, they could be said to be injuries which were not serious in nature. In the present case, there is no opinion of the Doctor that the injury on the scalp individually was sufficient in the ordinary course of nature to cause death and, therefore, I conclude that this injury could not have been responsible for the death of the old lady. Then remains the other injury below the skull on the back side of the neck. This injury was of the size of 4 long and 1 deep cutting up to the cervical spine. The Doctorts evidence was specific that he did not find any incised wound on the body. All the injuries found by him were lacerated injuries including this injury on the back side of the neck. Therefore, doubt arises whether this injury was caused by the sharp side of the axe or the blunt side The prosecution has not clarified from the Doctor whether this injury could have been caused by using the sharp side of the axe which could not be normally possible. With this doubt I conclude that the appellant used the blunt side of the axe in causing this injury. Therefore, it cannot be said that he had any intention to cause death. With this doubt I conclude that the appellant used the blunt side of the axe in causing this injury. Therefore, it cannot be said that he had any intention to cause death. ( 8 ) BUT taking into consideration the circumstances on which the occurrence took place, the unusual hour of the day and the conduct of the accused in setting fire to the house first and further considering the fact that the appellant used the blunt side of the weapon and that too on the back side of the neck, it would be appropriate to hold that he had neither intended to cause death nor he intended to cause that injury which was likely to cause death but, he had the requisite knowledge that by dealing the blows by the blunt side of the axe on the back side of the neck of the old lady, he was likely to cause death. Therefore, he committed an offence of culpable homicide as defined under section 299, I. P. C. and punishable under section 304, part-II of the I. P. C. ( 9 ) SO far as the offence under section 436, I. P. C. is concerned, I find no reason to disturb the finding of the trial court with regard to the conviction and sentence. ( 10 ) IN the result, the appellant is acquitted of the charge under section 302, I. P. C. but he is convicted under section 304, part-Il of the I. P. C. and sentenced to undergo R. I for five years. The sentences for both the offences shall run concurrently. The appeal is allowed in part. Appeal allowed accordingly Conviction u/s. 302 IPC set aside. Accused convicted u/s. 304 Part II.