JUDGMENT 1. - The appellant has been convicted Under Section 302 of the Indian Penal Code and Section 323 of the Indian Penal Code and sentenced to life imprisonment and six months simple imprisonment respectively for the aforesaid offences. 2. On 24.4.1990 at 7.00 a.m. one Dhanna S/o Kalu lodged a first information report alleging that Megha and Hukla came to him and informed that Khema S/o Veerji Kharani, accused-appellant had killed his brother Dhula. On receiving this information he went to the spot and saw that Dhula was lying dead and Dhula's wife Navli was lying injured in an unconscious state. Dhula's son Bhanwaria met Dhanna on the spot and told him that his father was killed by accused Khema with an axe and had also assaulted his mother Navli. Navli, Bhanwaria and Nana were stated to be eye-witnesses in the FIR. The defence is of total denial. The learned counsel for the appellant submitted that out of the persons stated to be eye-witnesses PW 1 Nana and PW 7 Bhanwaru had turned hostile, Mogli and Soma were not examined by the prosecution and PW 12 Navli was the only witness who had not gone against the prosecution. It was also submitted that on the extrajudicial confession, Amra was not examined and PW 3 Sardara, PW 10 Hukla were declared hostile and only Megha PW 11 supported the prosecution. It was also contended that looking to the injuries it would at best be a case Under section 304 Part 11 of the Indian Penal Code and not Under Section 302 of the Indian Penal Code. 3. PW 1 Nana stated that he heard the cries of his brother's wife Navli and went to the spot and saw that his brother Dhula was lying there and brother Khema and sister Mogli were standing there. Khema was standing there with an axe in his hand. At this stage he was declared hostile and cross-examined by the Public Prosecutor. On being confronted by the statement as Under section 161 Criminal Procedure Code, the witness admitted having made the statements confronted to him before the police. He also admitted that the accused had confessed before Panchas and had stated that he had committed a mistake. From his testimony it is clear that the witness was resiling because of his relationship with the accused and he was trying to save the accused. He also admitted that the accused had confessed before Panchas and had stated that he had committed a mistake. From his testimony it is clear that the witness was resiling because of his relationship with the accused and he was trying to save the accused. PW 2 Dhana who had lodged the FIR supported the prosecution in his statement. PW 3 Sardara did not support the prosecution. PW 7 Bhanwaru, PW 9 Hurji and PW 10 Hukla also turned hostile and did not support the prosecution. PW 11 Megha deposed that Bhanwaria informed him about the accused killing Dhula and when he went on the spot and asked Khema as to who killed Dhula, Khema replied that Dhula died at his hands. At that time Dhanna, Hukla, Sardara, Megha and Amra were present and no one else was there. 4. PW 12 Navli is the injured eye-witness in the case. She has categorically stated that Khema hit her husband with the axe from the sharp edged side four or five times, her husband died instantaneously. She also deposed that she had raised an alarm and Khema had hit her twice on her head with the axe from the sharp edged side. She was consistent in her cross-examination also. The learned counsel has tried to show from the post-mortem report that the injuries could not have been caused from the sharp edged side as there were only bruises and swellings. It was pointed out that PW 15 Dr. Prem Mittal has stated in the cross-examination that all the injuries on the dead body could be caused by the blunt side of the axe and not a single injury could be caused with the sharp edged side. This witness has also stated that the cause of death was internal haemorrhage caused by rupture of spleen. 5. The overall assessment of the evidence shows that PW 12 Navli's statement is completely reliable, so far as the assault by the accused on the deceased and herself was concerned. In the circumstances in which the occurrence had taken place it is not unnatural that she might have made a mistake in observing whether the blow was given from the sharp-edged side of the axe or the blunt side, but that could not render her testimony unreliable. In the circumstances in which the occurrence had taken place it is not unnatural that she might have made a mistake in observing whether the blow was given from the sharp-edged side of the axe or the blunt side, but that could not render her testimony unreliable. If prosecution wanted to concoct the story they could have put before the Court a version in consonance with the post-mortem report. The very fact that PW 12 Navli had made a statement which is not corroborated by the medical evidence, so far as causing of injury from the sharp edged side of the axe shows that there has been no effort to tamper with the evidence. So far as the extrajudicial confession is concerned we find that the evidence of PW 11 Megha is reliable. We, therefore, have no reason to dis-agree with the trial Court that the accused-appellant Khema was responsible for assaulting and causing injuries to the deceased Dhula and PW 12 Navli.The next question is as to whether the case would be covered by Section 302 of the Indian Penal Code or would fall Under section 304 Part II of the Indian Penal code. It is clear from the medical evidence that the blunt side of the axe was used and the cause of death was internal haemorrhage because of rupture of Spleen. In such circumstances, intention to cause death or to cause such bodily injury as is likely to cause death cannot be inferred. Knowledge that his act was so immensely dangerous that it must in all probability cause death or such bodily injury as is likely to cause death cannot also be inferred from the aforesaid circumstances. It can only be said that the act was done with the knowledge that it was likely to cause death. The case, therefore, falls Under Section 304 Part If of the Indian Penal Code.The appeal is, therefore, partly allowed. The conviction and sentence under Section 323 Indian Penal Code is maintained. Conviction and sentence Under section 302 is set aside and appellant is convicted Under Section 304 Part II of the Indian Penal code and sentenced to rigorous imprisonment for five years. If he has already undergone the sentence he shall be released forthwith, otherwise he shall be released on completion of his sentence, if his detention is not authorised by any other lawful order.Appeal partly allowed. *******