JUDGMENT 1. - Heard learned counsel for the appellants and the public prosecutor for the State. 2. This jail appeal has been filed against the judgment dated 25.4.1992 delivered by the learned Special Judge (SC/ST Cases Udaipur) by which he convicted the appellants Shri Neka S/o Bhatra and Shri Bhutiya s/o Thavra under section 302 of the Indian Penal Code and sentenced each of them to life imprisonment and to pay a fine of Rs. 500 each and to undergo imprisonment for 3 months for the default in payment of fine. 3. The prosecution case in brief is that on 29.1.1987 at 8.15 a.m. Shri Megh Raj Police Constable No. 906 informed from the Police Station Bekariya (Distt. Udaipur) for the service of summons and execution of warrants of arrest. On 30.1.1987 at about 4.00 p.m. he was assaulted by the appellants Neka and Bhutiya in a field situated towards the Northern-Western side of village Deora. As a result of assault Shri Megh Raj received injuries on account of which he ultimately died. The FIR was prepared by Shri Mithu Singh Rathore Police Constable No. 2246 of Police Station Bekariya and it was sent to the Police Station through a private person who was then running a 'paan' shop. In the FIR Constable Mithu Singh stated that at about 4.30 p.m. when he was going to Jhadol by bus, the bus stopped at Devla crossing. At that time he over heard that a Constable had been beaten and he was lying in the field. It was further stated in the FIR that Rania s/o Hansa caste Garasiya on being questioned, told that sometime ago in the field of Deeta, Constable Megh Raj was assaulted with lathies by Neka and Bhutiya and he was lying in the field and had injuries on head and waist. According to the FIR Constable Mithu Singh went to the field where Constable Megh Raj was lying in injured condition and he found that Constable Megh Raj was lying unconscious and he had injuries on his head and blood was coming out from nose and ears. With the help of some other persons Constable Mithu Singh brought Constable Megh Raj to Devla crossing, and, thereafter, took him to Udaipur in a bus for the purpose of treatment because Constable Megh Raj was in serious condition. 4. With the help of some other persons Constable Mithu Singh brought Constable Megh Raj to Devla crossing, and, thereafter, took him to Udaipur in a bus for the purpose of treatment because Constable Megh Raj was in serious condition. 4. The FIR written by Shri Mithu Singh was submitted at the Police Station Bekariya on the same day at about 6.30 p.m. and a criminal Case No. 2/97 under sections 302, 323, 353/34 of the Indian Penal Code was registered at the Police Station and investigation was commenced. Shri Megh Raj who was taking to Udaipur hospital died on the next day at 8.40 a.m. and Assistance Inspector posted at Police Station Hathiyapur, Distt. Udaipur prepared the Panchayatnama of dead body, ceased the clothes of the deceased and after postmortem examination of the dead body the dead body was handed over to the younger brother of the deceased. On the same day i.e. on 31.1.1987, the police converted the offence into under section 302 of the IPC on account of the death of the deceased Megh Raj. The site of occurrence was inspected by the Investigating Officer and he recovered from the site blood stained earth which was sealed. The appellants were arrested and in pursuance of information given by them under section 27 of the Evidence Act, lathies which were said to be the weapon of offence were recovered. Rania who is an eye-witness of the occurrence was medically examined on 31.1.1987. It was also found out during the investigation that on 5.2.1987 the appellants assaulted Kesha, Bamiya and Teja and caused injuries to them. The blood stained earth, blood stained clothes of the deceased and the lathies recovered at the instance of the appellants were sent to the Forensic Science Laboratory, Jaipur and according to the report of Forensic Science Laboratory, Jaipur, earth, clothes of the accused and one lathi contained human blood of Group 'A'.After investigation the Police Station submitted the report under section 173 Cr. P.C., alleging the commission of the offences under sections 302, 323, 353 & 323 Read with IPC by the appellants. The learned Munsiff and Judicial Magistrate Gogunda took cognizance on basis of the report submitted by the Police and this case was transferred to the Court of Sessions Judge, Udaipur, who transferred the case to the learned Special Judge SC/ST cases. 5. The learned Munsiff and Judicial Magistrate Gogunda took cognizance on basis of the report submitted by the Police and this case was transferred to the Court of Sessions Judge, Udaipur, who transferred the case to the learned Special Judge SC/ST cases. 5. Charges under sections 302 & 323 of the IPC were framed against both the appellants who pleaded not guilty to the charges. The Prosecution examined as many as 28 witnesses to unfold and support the prosecution story. The appellants were examined under section 311 Criminal procedure Code They did not produce any evidence in defence. 6. The charges under section 323 of the IPC was in respect of the injuries caused to Rania, Kesia, Bania and Kera and charge under section 302 was in respect of the causing of death of Megh Raj Constable. The learned Special Judge SC/ST cases acquitted the appellants of the charge under section 323 of the IPC and convicted them under section 302 of the IPC and sentenced both of them life imprisonment and pay a fine of Rs. 500 each and for default in payment of fine to undergo imprisonment for 3 months. 7. The learned counsel for the appellants has submitted that the learned Trial Court has not appreciated the prosecution evidence correctly and the finding given by the learned Trial Court deserves to be set aside in this appeal. The learned counsel for the appellants has made several submissions in support of this appeal and we intended to deal with the submissions in the following order. 8. The first submission of the learned counsel for the appellants is that the copy of the FIR No. 2/87 was received by the Munsif & Judicial Magistrate, Gogunda on 2.2.1987 at 1.00 p.m. according to the endorsement made under signatures of the learned Munsiff & Judicial Magistrate, Gogunda, and it means that there was undue delay in transmission of the copy of the FIR to the Munsiff & Judicial Magistrate, Gogunda and this delay has not been explained by the prosecution. The learned Public Prosecutor has tried to explain the delay by pointing out that the FIR was written by Shri Mithu Singh Rathore Constable who found the injured Megh Raj lying unconscious in the field, on 30.1.1987 and this report was sent to the Police Station through Shri Joth Singh and it was received at Police Station Bekariya on 30.1.1987 at 6.30 p.m. and after registration of a Criminal Case No. 2/87 at Police Station Bekariya Distt. Udaipur, a copy of the FIR was sent to the Munsiff & Judicial Magistrate through Shri Himmat Singh, Police Constable No. 115 of Police Station Bekariya is not open to any doubt because according to his statements he took the injured Constable Megh Raj to General hospital, Udaipur for treatment and got him admitted there and before going to Udaipur sent the FIR Ex. P/1 to the Police Station. It may be mentioned here that Megh Raj Constable died on account of injuries received by him. It means that this report Ex. P/1 was written by the time when Megh Raj Constable was alive. Mithu Singh has further revealed that Megh Raj died in General Hospital, Udaipur at 8.40 a.m. It means that the report Ex. P/1 was in any case scribed before the death of Constable Megh Raj and according to the endorsement made by Ex. P/1 it was received at the Police Station Bekariya at 6.30 p.m. There is nothing to raise the suspicion that the report Ex. P/1 was prepared after reaching Udaipur by Mithu Singh. Therefore, it must be informed that the report Ex. P/1 was actually prepared on 30.1.1987 before Mithu Singh took Megh Raj Constable to General Hospital, Udaipur and that it was in fact, received at the Police Station Bekariya on 20.1.1987 at 6.30 p.m. Once it is proved that the FIR Ex. P/1 is not open to any suspicion, delayed transmission of a copy of the FIR to the Munsiff & Judicial Magistrate, Gogunda is at best an irregularity committed by the Police Officer during investigation and it is well established that no irregularity committed during the investigation is sufficient to discard the prosecution case unless it reflects on the credibility of the prosecution evidence or it causes prejudice to the accused. In this case neither any prejudice has been caused to the appellants on account of alleged delay in transmission of the FIR to the Munsiff Sr Judicial Magistrate, Gogunda nor the aforesaid delay casts any reflection on the credibility of the FIR Ex. P/1. 9. In order to prove the offence under section 302 IPC against the appellant the prosecution examined as many as 28 witnesses. The appellants were examined under section 313 IPC. They denied all the circumstances appearing in evidence against them. No sentence was produced in defence. Some of the witnesses turned hostile. The evidence against the appellant consists of the oral evidence of Mithu Singh PW 1, Hamir PW 3, Ramia PW 4 circumstantial evidence in the form of information given by the appellant under section 27 of the Evidence Act, recovery of blood stained lathi in consequence of the information given by the appellants and the report of the Forensic Science Laboratory, showing that one of the two lathies sent for chemical examination were stained with human blood of Group 'A' as well as the evidence showing the injuries found on the dead body of the deceased these injuries were anti mortem in nature and resulted in his death. 10. Mithu Singh PW 1 is a person who sent the FIR to the Police Station he is not an eye-witness of the evidence. He reached the place of occurrence after he came to know that the Police Constable had been beaten by Neka and Bhutiya and on reaching the place of occurrence he found Megh Raj in an injured condition. Hamira PW 3 and Ramia PW 4 are the eye-witnesses of the occurrence. Ramia PW 4 has disposed that on the date of occurrence Bhutiya, Neka and Megh Raj were taking wine together, he was also invited to join their party. He joined the party and all the 4 took wine. Megh Raj was taking wine by placing the bottle in his mouth and accused persons asked Megh Raj not to do so. Megh Raj on objection being raised became annoyed he knocked the accused and protested that they had no right to object. Thereafter, a quarrel occurred and the accused Neka gave lathi blows on the neck of Megh Raj. Bhutiya too inflicted the lathi blow on Megh Raj. Megh Raj on objection being raised became annoyed he knocked the accused and protested that they had no right to object. Thereafter, a quarrel occurred and the accused Neka gave lathi blows on the neck of Megh Raj. Bhutiya too inflicted the lathi blow on Megh Raj. Ramia PW 4 has admitted that Megh Raj was also possessing a stick which was about 3 feet long and on objecting drinking wine in this manner Megh Raj became angry, and he inflicted blows with his fist on Bhutiya. We have carefully gone through the evidence of Ramia PW 4 his witness is quite natural there is nothing to indicate that he is speaking a lie. We, therefore, find no reason to discard the evidence of Ramia PW 4. Hamira PW 3 is a 14 year old boy who appears to have develop sound understanding and he was administered oath by the learned trial Court before recording his evidence. According to Hamira PW 3 on the date of occurrence he was working on the Rahat of Natha and in the evening he witnessed the accused were inflicting lathies blow on Megh Raj at that time Ramia was also present and in consequence of lathi blows Megh Raj fell down he had received injuries on his head and neck. In his cross-examination he has stated that the field where the occurrence took place belong to Dharma and the Police had interrogated him 2 days after the occurrence and it was because of the fear that for a period of 2 days of the occurrence he did not relate the incident to the person anywhere. The learned counsel for the appellants has submitted that the statements of Hamira PW 3 and Ramia PW 4 are unreliable because according to Mithu Singh PW 1 the incident had taken place in the field of Deeta and according to admission of Hamira PW 3 the field of Deeta was not visible from the place where Hamira PW 3 was working under Rahat and, therefore, Hamira PW 3 was not in a position to witness the occurrence. It is also submitted by him that according to Ramia PW 4 the incident occurred all of a sudden when the deceased Megh Raj and the accused persons were taking wine but the story given by Ramia PW 4 is not corroborated because when the site was inspected after the occurrence, no bottle of liquor found at the site. In my opinion both these arguments do not carry much force. Ex. 20 shows that the dead body of Megh Raj was found at the place marked at 'A' the field of Deeta is at some distance from the place of occurrence it is marked by the letter 'E', letter 'F' indicates the field of Dharma. According to Hamira PW 3 he saw the incident while he was standing in the field of Dharma. It means that he saw the incident from the field which is indicated by the letter 'F'. The distance between 'F' and 'A' is very small and, therefore, it must be inferred that Hamira PW 3 had seen the incident taking place in the field indicated by letter 'A' while he himself was working in the field indicated letter 'F'. I, therefore, do not find anything in the submission of the learned counsel for the appellants to justify doubting the testimony of Hamira PW 3. The criticism levelled against the statement of Ramia PW 4 is equally without merit. The fict that no bottle was found at the site is not sufficient to discard the evidence of Ramia PW 4. The cause of quarrel was that the deceased Megh Raj started drinking wine directly from the bottle and he consumed about 1/2 of the bottle. It shows that at the time injuries were inflicted on Megh Raj the bottle of wine contained sufficient quantity of wine in it. The cause of quarrel was that the deceased Megh Raj started drinking wine directly from the bottle and he consumed about 1/2 of the bottle. It shows that at the time injuries were inflicted on Megh Raj the bottle of wine contained sufficient quantity of wine in it. It is, therefore, quite possible that the accused persons after inflicting the injuries on the body of Megh Raj took away the bottle of wine with them and this explains why no bottle of wine was found at the spot when it was inspected after the occurrence.In view of the discussion in our opinion there is no escape from conclusion that the criticism made against the testimony of Hamira PW 3 and Ramia PW 4 is groundless and the evidence of these 2 witnesses is trustworthy, and their evidence proves that the accused inflicted lathies blows on the head and neck of the deceased Megh Raj. 11. Regarding the recovery of the blood stained lathies the prosecution has examined Amar Singh PW 27 who has disposed that the arrested appellants Bhutiya and Neka gave information about lathi which was recorded in Ex. P/24 and appellant Bhutiya also gave information bout lathi which was recorded in Ex. P/25 and in consequence of these information's lathies were recorded and recovery memos Ex. P/5 and P/6 were prepared and these documents were signed by the appellants and as well as by the Amar Singh PW 27. Dharma PW 6 has supported the statement of Amar Singh PW 27 by stating that in his presence appellant Bhutiya and Neka got lathies from their houses this witness from the signatures of Ex. P/5 and P/6 and identified lathies as Article 1 and Article 2 in the Court. Amar Singh PW 27 has also identified the lathies article 1 and article 2 along with other material during his statements in the Court. Shyam Lal PW 28 is the Malkhana lncharge who has testified the articles pertaining to criminal case No. 2 of 1987 were brought to him in a sealed condition and in the same condition they were sent to Jaipur through S.P. Office with Constable Banshi Lal this witness has not been cross-examined and his testimony is, therefore, not open to any doubts. Daya Ram PW 23 who was posted in S.P. Office of Udaipur, on 11.2.1987 has been examined. Daya Ram PW 23 who was posted in S.P. Office of Udaipur, on 11.2.1987 has been examined. According to his statement on 11.2.1987 Constable Banshi Lal who was on that day posted at Police Station Bekariya brought 5 sealed packets marked as A, B, C, D and E for the purpose of sending them to Forensic Science Laboratory, Jaipur, and he produced the letter before him which is Ex. P/13. Daya Ram PW 23 has added that he sent the Letter Ex. P/13 and the packets to Forensic Science Laboratory, Jaipur. Ex. P/13 which stands proved by the statement of Daya Ram PW 23 dearly shows that 5 sealed packets were sent to Forensic Science Laboratory and the packets marked 'D' contained a lathi Ex. P/28 is the report of the Forensic Science Laboratory, Jaipur, this report shows that the sealed packets received in the Forensic Science Laboratory in tact which means that the sealed packets were received there in sealed condition and packet marked as 'D' contained a lathi and packet marked as 'E' also contained a lathi. Lathi recovered from packet 'E' was found to be stained with human blood of Group 'A'. Stains found on lathi recovered from packet 'D' were not sufficient for chemical analysis. Lathi recovered from packet 'A' was recovered from the appellant Bhutiya. The evidence produced by the prosecution has proved that the lathi which was recovered from the appellant Bhutiya was stained with human blood of Group 'A' and other articles of the deceased which were admittedly containing the blood of the deceased were also found to be of blood Group 'A'. In these circumstances the evidence of recovery of lathi in pursuance of the information given by the appellant Bhutiya is material and it connects the appellant Bhutiya with the alleged crime. It is true that lathi recovered at the instance of appellant Neka contain insufficient quantity of blood which could not be chemically tested. But the circumstances of Neka a lathi which was found in packet marked as 'D' was recovered by the Police does connect the appellant Neka with the lathi and according to the eye-witness of the evidence lathies were the weapons of offence used by the appellants for inflicting injuries on Megh Raj. But the circumstances of Neka a lathi which was found in packet marked as 'D' was recovered by the Police does connect the appellant Neka with the lathi and according to the eye-witness of the evidence lathies were the weapons of offence used by the appellants for inflicting injuries on Megh Raj. The circumstantial evidence corroborates the oral evidence produced by the prosecution and in our opinion this evidence proves beyond his doubt that the appellants Neka and Bhutiya inflicted lathi blows on Megh Raj. 12. The learned counsel for the appellants has submitted that the incident occurred all of a sudden when the deceased tried to drink wine directly from the bottle and the appellants objected to it and the deceased was aggressive and he knocked the appellants and in the circumstances of the case the offence of murder is not brought home to the appellants. The Postmortem Report Ex. P/18 shows that as many as 6 injuries were found and one injury was in form of a wound on the occipital region of the skull, injury No. 2 was also a lacerated wound on the left side of the occipito parietal region, injury No. 3 was in form of a swelling on the left parieto region of the skull with clotted blood in left ear, injury No. 4 was in form of a bruise on the left upper eye lid, the swelling and haemorrhage and clotted blood in nostrils, injury No. 5 was in form of bruise on the base of the chest, left scapula region and on opening that skull cephalohaemetoma in the left perito to temporal and occipito region of skull was found and there was a fracture of left occipite, left perito temporal, fissure bones extending up to the base of left of left middle cranial fosso with subdural region with all over the brain surface and clotted the left ear. Dr. N.S. Kothari P/25 has proved the Postmortem Report P/18 has stated that the cause of death was comma which resulted from the injury to the head. Dr. Kothari P/25 has nowhere stated.Submission of the learned counsel for the appellants is that in this case offence of murder has not been brought home to the appellants appears to be well founded. There was no previous enmity between the appellants and the learned deceased. Dr. Kothari P/25 has nowhere stated.Submission of the learned counsel for the appellants is that in this case offence of murder has not been brought home to the appellants appears to be well founded. There was no previous enmity between the appellants and the learned deceased. Cause of quarrel was the act of the deceased who tried to drink wine directly from the bottle and the accused who were waiting for the bottle objected to it and the deceased on objection being raised became angry and he knocked down one of the appellants and at that time the appellants inflicted injuries with lathies to the deceased. It is difficult to infer that the appellants intended to cause death of the deceased Megh Raj. It is also difficult to infer that the accused intended to cause such injuries as they knew to be likely to cause the death. The act committed by them was not so imminently dangerous as to cause death in all probability and none of the injuries found on the body of the deceased was sufficient in the ordinary course to cause death. In these circumstances the act of the appellants does not amount to murder but it is covered by Section 304 Pt. H of the IPC because in the facts and circumstances of the case it may be safely inferred that the appellants had knowledge that their act of inflicting injuries with lathies on the head of the deceased was likely to cause his death. In light of the above discussion the appeal deserves to be partly allowed, conviction and sentence under section 302 of the IPC deserves to be set aside and in its place the appellants deserve to be convicted under section 304 Pt. II of the IPC. Having regard to the facts and circumstances of the case it would meet the end of justice if both the appellants are sentenced to undergo rigorous imprisonment for the period for which they have remained in custody up to this day and we order accordingly. The appellant shall be released if they are not wanted in any other case.Appeal partly allowed. *******