JUDGMENT A.B. Mukherjee, J. : The appeal arises out of Judgement and order of conviction dated 28th March, 1989 passed by the Learned Additional Sessions Judge. 3rd Court, Nadia sentencing the accused appellant to pay fine of Rs. 1,000/- in default to suffer simple imprisonment for six(6) months under s. 323/34 IPC and also sentencing for imprisonment for life and fine of Rs. 1,000/- in default to suffer further simple imprisonment for six (6) months under s. 302 IPC in Sessions Case No. 1 of February, 1989 (S.T. No. VII of Feb' 1989) 2. The case of prosecution as it appears from the FIR made at Ranaghat, P.S. on 28.1.86 at 12:25 hours is that on 27.1.86 around 1:30 P.M. the Cousin Brother of the de facto-complainant Goutam Roy was assaulted with fist and blows by accused appellant Sunil Sardar of Village Barasat, when the elder brother of Gobindo Roy Le. Bishnu Roy called Sunil Sardar and challenged him for such assault. There were some exchange of words between them and they also pushed each other in course of quarrel. On 28.1.86 at around 7:00 A.M. Bishnu Roy was going to his place of work and when he reached the field of Roman Catholic Church, Sunil Sardar, Nepal Hari Ghosh, Balai Sardar and Tentul Ghosh started to assault Bishnu Roy with fists and blows. His father Jotin Rayon getting this information rushed to the place when Sunil Sardar assaulted him with a lathi on his head near right ear and remaining accused persons also assaulted Jatin Roy in similar manner. As a result of assault Jatin Roy received bleeding injury when some villagers took him to Badculla Hospital from where he has referred to Saktinagar Hospital. 3. On the basis of the FIR, Ranaghat P .S. Case No. 20 dated 28.1.86 under s. 323/325 was started. Subsequently Jatin Roy expired on 1.2.86 when s. 304 IPC was added. After investigation Police submitted charge-sheet under s. 323, 325 & 304 IPC. against four (4) persons. After commitment the case was tried by the Learned Additional Sessions Judge on charges under s. 302 read with s. 34 IPC and s. 323 read with s. 34 IPC against all the four accused persons. 4. The prosecution in course of trial examined 20 witnesses. No witness was examined by the defence. against four (4) persons. After commitment the case was tried by the Learned Additional Sessions Judge on charges under s. 302 read with s. 34 IPC and s. 323 read with s. 34 IPC against all the four accused persons. 4. The prosecution in course of trial examined 20 witnesses. No witness was examined by the defence. At the conclusion of trial the Learned Additional Sessions Judge convicted and sentenced all the four accused under s. 323 read with s. 34 IPC. and sentenced them to pay fine of Rs. 1,000/- each in default to undergo simple imprisonment for six (6) months. He also convicted the accused appellant Sunil Sardar alias Parshi to imprisonment for life and fine of Rs. 1,000/- in default to suffer to further simple imprisonment for six (6) months under s. 302 IPC. 5. The present appellant is accused Sunil Sardar alias Parshi alone. The grounds stated in the Memo of appeal are that the Ld. Judge did not assess the evidence on record in their proper perspective but based his findings on consideration of evidence some of which suffer from serious infirmity. He has over-looked the contradictions between prosecution witnesses and has not taken into consideration the fact that some of the witnesses namely PW 1, PW 3, PW 4 & PW 6 are interested witnesses. It has also been emphasised that there is considerable delay in making the FIR. It is also alleged that disinterested witnesses which might have been available have not been examined. 6. In course of argument the Ld. Defence Advocate have raised several objections touching on the merit of the appeal but the major portion of his argument deals with the question as to whether the material on record are sufficient to warrant a conviction under s. 302 IPC or whether it should be treated as one under s. 304, part II, IPC. 7. We shall take up the objection one by one as raised by the Ld. Advocate. It has been alleged that the charge framed against the accused is defective. It has been argued that the time of the alleged incident has not been mentioned in the charge and the manner of causing alleged injury have not also been mentioned in details. In support of his contention the Ld. Advocate. It has been alleged that the charge framed against the accused is defective. It has been argued that the time of the alleged incident has not been mentioned in the charge and the manner of causing alleged injury have not also been mentioned in details. In support of his contention the Ld. Advocate has relied on s. 212 and s. 213 Cr.P.C. We have given our careful consideration and also scrutinised the charge as it was framed by the Learned Additional Sessions Judge and the law on this point and we come to the conclusion that there has not been any material error which might misled the accused and accordingly cause a failure of justice. It is true that the time of the alleged incident has not been mentioned in the charge and the place of alleged occurrence has been mentioned at Barasat (Naresh Palli) under Ranaghat P.S. The question is whether these omissions have misled the accused. The accused was all along defended and in our opinion the accused has not been misled and as such there has not been any failure of justice. In this connection reference may be made to s. 213 (Illustration E and s. 215 Illustration D of the Cr.P.C.). 8. It has been alleged that there was considerable delay in making the FIR. There is also no substance behind this argument. The alleged incident took place around 7:00 A.M. on 28.1.86 and FIR was made at Ranaghat Police Station at 12:25 hours on the same day. It is in evidence that the incident took place at Barasat which fails within the jurisdiction of Taherpur Out Post of P.S. Ranaghat. In course of the incident PW 6, Bishnu Roy also received injuries which required him to. take medical help from Primary Health Center at Badkulla. It is also in evidence that as a result of the incident father of PW 6, Jatin Roy received serious injury on his head, as a result of which blood came out through his mouth and nose. Injured was first taken to Taherpur Out Post and from there on the advice of Police personnel to Badkulla Hospital (S.H.C.), from where he was referred to Saktingar Hospital following a superficial examination of the injured. In view of the circumstances stated above this delay of five (5) hours is not at all fatal. 9. Injured was first taken to Taherpur Out Post and from there on the advice of Police personnel to Badkulla Hospital (S.H.C.), from where he was referred to Saktingar Hospital following a superficial examination of the injured. In view of the circumstances stated above this delay of five (5) hours is not at all fatal. 9. We shall now turn to the evidence on record to see how far the prosecution has been able to prove the charges against the accused beyond all reasonable doubts. PW 1, Niranjan Roy, resident of Barasat was on his way in his rickshaw when he found PW 6 being assaulted with slaps and blows by pccused appellant Sunil Sardar and three others namely, Nepal,. Balai and Tentul. He tried to disperse them and in the meantime Jatin Roy, father of PW 6 came to the spot when accused Sunil collected a bamboo and assaulted Jatin Roy above his right ear. As a result blood came out from the mouth and nose. He is the man to lodge the FIR though the FIR itself was written by PW 5 Nitya Biswas. It is evidence of both PW I & PW 5 that the FIR was written as per dictation of PW I. As per PW I the bamboo was collected by accused Sunil from the house of one Nemai Ghosh. There is some discrepancy regarding the exact source of bamboo as some witness stated that it was brought from the house of one Mahadev. If we consider the situation at the time of the occurrence this. discrepancy it appears to us is not un-natural. It is true that it has not been mentioned in so many words in FIR that he (PW 1) witnessed the incident but the manner in which he made the FIR shows that he must be an eye witness and therefore, this omission in the FIR is not of much consequence so as to discard the evidence of PW 1. The witness was cross-examined extensively but we do not find anything damaging coming out from his evidence. PW 2, Satya Roy was on his way to Railway Station from his house situated at Barasat when he witnessed the incident. He corroborates PW 1, PW 3 Nikhil Roy also a resident of Barasat was in his house when he heard of a noise and on reaching the field he saw the incident. PW 2, Satya Roy was on his way to Railway Station from his house situated at Barasat when he witnessed the incident. He corroborates PW 1, PW 3 Nikhil Roy also a resident of Barasat was in his house when he heard of a noise and on reaching the field he saw the incident. PW 4, Tapas Biswas was on his way to Taherpur Railway Station from his house when he 'saw the incident. PW 5, Bishnu Roy is the son of the deceased. He spoke about the incident which resulted in the head injury to his father. He also spoke about the occurrence which took place the day before near a Shallow Tubewell when accused Sunil Sardar assaulted Gobindo Roy, younger brother of PW 5. He spoke about the quarrel which ensued between the two and it is also his evidence that they pushed 'each other in course of incident. We get from his evidence that the place of occurrence is a few minutes walk from their house. He denied the defence suggestion that his father fell on a wooden log and received the. head injury. At this stage, we may look to the examination of accused Sunil Sardar under s. 313 Cr.P.C. in course of' which he admitted that the day before the incident there was exchange of words between the accused and Bishnu Roy over drawing of water and according to his statement as recorded by the Learned Judge there was also some follow up incidents. The accused also admitted in course of his examination under s. 313 Cr.P.C. that on 28.1.86 that is on the day of incident the accused assaulted Bishnu Roy with "Kacha". Therefore, apart from the evidence of PW 5 discussed earlier the accused appellant also admitted that there was an incident resulting in exchange of words between himself and PW 5 the day before the incidence and that on the day of incident itself, he also assaulted PW 5 with a "Kacha". This part of the incident has been admitted by the accused himself. Apart from proving this fact, this disclosure also is material in considering the bona fide of the prosecution story, so far as the involvement of Jatin Roy is concerned. This part of the incident has been admitted by the accused himself. Apart from proving this fact, this disclosure also is material in considering the bona fide of the prosecution story, so far as the involvement of Jatin Roy is concerned. The deceased Jatin Roy according to the prosecution case came into the picture after hearing of assault of his son namely PW 5 by accLised appellant and three others and intervene obviously to save his son when as per the prosecution story the accused appellant collected a bamboo from nearly house and assaulted him on the head, causing injuries. which ultimately proved to be fatal. 10. It was argued for the defence that the prosecution examined only interested witnesses most of whom are related to the affected persons one way or other and as such their evidence should be discarded. But there is neither any rule of law nor of prudence that relations or persons otherwise known to the persons affected are not competent witnesses. Rule of prudence demands that such evidence should be carefully scrutinised in order to assess their worth. We have carefully scrutinised the evidence of alleged eye witnesses and we are of opinion that their evidence can safely be relied on for the purpose of coming to a decision on the point in hand. After careful analysis of the evidence, we are of opinion that prosecution has been able to prove that on 28.1.86 around 7:00 AM the accused appellant and three others who were also convicted by the Learned Trial Judge assaulted PW Bishnu Roy with fists and blows and also with "Kacha" and father of the victim Jatin Roy intervened and received a bamboo blow on the right side of his head, causing severe injury on the head which ultimately proved to be fatal. 11. PW 7 and PW 8 are formal witnesses being witnesses to the in-quest which was held by PW 11, S.I. of Police. PW 9 is not a material witness in as much as he prepared a copy of injury report from the Emergency Registrar of Badkulla S. H. C. PW 12 identified the body of the deceased Jatin Roy to the Autopsy Surgeon namely PW 10 who hold post mortem examination on 2. 2. 86. PW 9 is not a material witness in as much as he prepared a copy of injury report from the Emergency Registrar of Badkulla S. H. C. PW 12 identified the body of the deceased Jatin Roy to the Autopsy Surgeon namely PW 10 who hold post mortem examination on 2. 2. 86. The Doctor found one ecchymosis on the right upper eye lid and also below right lower eye lid and abrasion on the right parietal eminence. On dissection of the skin and subcutaneous tissues and muscles he found clotted blood on the side of the scalp. On further dissection he found a depressed fracture 2" x 1" on the right parietal eminence. He also found a rapture of the menanges below the fractured area, injury of the brain of the cerebral haemesphere with massive haemorrhage of the right cerebral haemi sphere. In the opinion the cause of death is due to the injury of brain which was ante mortem and homicidal in nature. It is also his evidence that injury on the scalp could have been caused by a bamboo and the injury was sufficient to cause death in ordinary course. In cross examination he admitted that the injuries found by him could also be caused by fall on wooden log. PW 13 did not say anything material, so also PW 15, PW 14 at the relevant time was Medical Officer cum Surgeon attached to Saktinagar Hospital under whom Jatin Roy was admitted on 28.1.86 at 10. 12 A.M. after being referred by Badkulla S.H.C. On examination he found the patient deeply unconscious and he could not take history of the case as the party was not available. He also found the patient bleeding from mouth and also frothing. He examined the patient from day to day. According to him the patient might have contacted injury by an impact with a blunt substance like bamboo. He also admitted that such injury could have been caused by fall on a blunt substance. PW16 at the relevant time attached to the Badkulla S.H.C. as M.O. However he did not record the injury in the Emergency Register regarding Jatin Roy which was done by the Pharmacist of the Health Centre namely PW 18. The evidence of this witness also shows that the injured was sent to Sadar Hospital following examination. PW16 at the relevant time attached to the Badkulla S.H.C. as M.O. However he did not record the injury in the Emergency Register regarding Jatin Roy which was done by the Pharmacist of the Health Centre namely PW 18. The evidence of this witness also shows that the injured was sent to Sadar Hospital following examination. He also noted the history of injury as having been caused by Sunil son of late Mahadev Parshi of Barasat. PW 19 is Nurse cum Mid Wife - attached to Badkulla SHC. on the relevant date, We get from her that on 28.1.86 she supplied an injection to PM Bishnu Roy. PW 20 is the I.O. of this case. On a scrutiny of the evidence particularly the medical evidence described above we come to the conclusion that it fixes with the oral evidence adduced by the prosecution witnesses. Accordingly, we come to the conclusion that PW Bishnu Roy was assaulted by the accused appellant and three others on 28.1.86 causing injuries for which charge under s. 323/34 IPC has been proved. We also come to the conclusion that accused appellant also assaulted deceased Jatin Roy with a bamboo on his head on 28.1.86 making him unconscious and causing bleeding injury including fracture of his scalp and damage to the brain which culminated in his death on 1.2.86. 12. The Ld. Defence Advocate as we have stated earlier gave much stress on the point as to whether the facts and circumstances of the incident gives rise to an offence under s. 302 or under s. 304 IPC. It has been argued that there was an incident involving the accused appellant and Bishnu on 27.1.86 and as such accused appellant might have some grudge against Bishnu for which he might have assaulted Bishnu at a subsequent period of time. His father had got nothing to do with it and as such there could not be any motive on the part of the accused to assault him. We have already shown while discussing evidence that the accused and three others actually assaulted Bishnu on 28. 1. 86 around 7:00 A.M. which in the facts and circumstances must be a sequel to the incident of 27.1.86 and Jatin Roy intervened to save his son as his house was not far off from the place of occurrence when accused assaulted him with a bamboo. 1. 86 around 7:00 A.M. which in the facts and circumstances must be a sequel to the incident of 27.1.86 and Jatin Roy intervened to save his son as his house was not far off from the place of occurrence when accused assaulted him with a bamboo. Therefore, the accused had motive behind this assault which of course grew at the very moment when Jatin Roy intervened. Of course, whether this could be fatal will be considered while determining the question whether s. 302 of s. 304 IPC. is attracted in this case. 13. The Ld. defence Advocate has relied on a number of reported decisions in order to substantiate his argument that the offence in this base even if proved shall be one under Part II of s. 304 IPC and not s. 302 IPC as held by the Learned Trial Judge. The factual aspect of this matter has already been discussed and we do not like a repetition. 14. Reliance has been placed on a case reported in 1994 Cr.L.J. 144 which is a decision from the Supreme Court. In that case due to scuffle the deceased sustained only one injury on the head proved to be fatal. Other injuries as sustained by him were found to be simple. The weapons used were not lethal and the conviction was altered to one under s. 304, Part II from I of that section In another case also from the Supreme Court reported in 1993 Cr.L.J. 2667 the accused with a sharp-edged weapon inflicted injuries on the deceased but there was no serious injury on vital parts of the body except one by blunt side of axe on the head and the deceased died six (6) days later. The conviction was altered to one under s. 304 Part II from s. 302/34 IPC. In another case also of the Supreme Court reported in 1993 Cr.L.J. 1809 the accused inflicted a single blow by a blunt agricultural equipment which caused death. There also the conviction was converted to one und£:!r s. 304, Part II IPC. Also in the case reported in AIR 1982 SC 126 a short quarrel was followed by assault when accused gave one blow with a dagger, as a result the victim succumbed to the injury. In the absence of any prior enmity s. 304, Part II, IPC was attracted. Also in the case reported in AIR 1982 SC 126 a short quarrel was followed by assault when accused gave one blow with a dagger, as a result the victim succumbed to the injury. In the absence of any prior enmity s. 304, Part II, IPC was attracted. In the case reported in AIR 1993 SC 463 in the absence of premeditation or malice the accused was convicted under s. 304, Part II, IPC for causing death by a single blow of knife on the chest of the victim. In the case reported in 1993 Cr.L.J. 2954 the Division Bench of Allahabad High Court awarded conviction under s. 304, Part II IPC. when the accused attacked the deceased with a blunt side of a weapon and when there was no further assault after the deceased fell down even though he was alive. 15. The Learned Defence Advocate on the basis of reported decisions discussed above argued that in the present case the accused had no previous enmity with the deceased and there was absolutely no premeditation and as such in the absence of any ingredient for any offence under s. 302 IPC section 304, Part II of the IPC may. be attested. We have given our anxious consideration to the facts and circumstances of the case as proved by evidence on record and in the light of ratio laid-down in the reported decisions quoted earlier, we are of opinion that the offence in this case cannot come within the purview of s. 302, IPC. or one under s. 304, Part-I of IPC. In our considered opinion the offence committed by the accused appellant shall be one under s. 304. Part II of the IPC as the accused must be attributed with the knowledge that his act of hitting Jatin Roy was likely to cause death. 16. Accordingly, we set aside the conviction and sentence passed by the Learned Trial Judge on the accused appellant under s. 302 IPC and the sentence of imprisonment for life and fine of Rs. 1,000/- in default to suffer further 81 for six(6) months. Instead we convict the accused appellant under s. 304 Part II, IPC and sentence him to suffer RI for eight (8) years and fine of Rs. 1,000/- in the default to suffer further RI for six (6) months. 1,000/- in default to suffer further 81 for six(6) months. Instead we convict the accused appellant under s. 304 Part II, IPC and sentence him to suffer RI for eight (8) years and fine of Rs. 1,000/- in the default to suffer further RI for six (6) months. We, however upheld the conviction and sentence under s. 323 read with s. 34 IPC. and sentence of fine of Rs. 1,000/- in default to suffer 81 for six (6) months as passed by the Learned Trial Judge. The appeal accordingly stands allowed to the extent as indicated above. Asish Baran Mukherjee, J.: I agree. Appeal allowed in part.