JUDGMENT Loknath Prasad, J. This appeal is directed against the judgment of conviction dated 11.4.1989 passed by 4th Additional Sessions Judge. Hazaribagh, in Sessions Trial No. 147/84 through which both the appellants were found guilty under Section 302/34 of the Indian Penal Code and they were sentenced to undergo imprisonment for life. 2. The prosecution case, in short, is that on 5.7.83 the deceased, Mahboob Mian, was in his house situate in village Laiyo, P.S. Mandu, Dist. Hazaribagh and at that time, the other family members were also present in the house. It has been alleged that at that time the appellant, Hashim Mian came to the house of Mahboob and called him and also asked him to show the damaged crop which had been damaged by grazing of his she goat so that he will pay the compensation. Then Mahboob came out and both of them proceeded towards the house of Hashim and the wife of Mahboob also followed him. But on the way, the brother of Hashim, Salim Mian, came and put a towel on the neck of Mahboob and began to assault by fists which led to altercation between the two sides. In the meanwhile, appellant Hashim brought a piece of wood and gave a blow on the head of Mahboob due to which Mahboob became seriously injured and became unconscious and immediately he was taken in a truck to Jharkhand Colliery Dispensary where he was treated but sensing the gravity of the injury, he was referred to Nayee Sarai Hospital and from there he was referred to R.M.C.H., Ranchi. It is the prosecution case that the injured Mahboob was admitted in RMCH, Ranchi in the Neuro-Surgery Ward and in course of treatment he died on 7.7.83. In the meantime, Hussaini Mian, the father of Mahboob returned to his house on 7.7.83 and informed the family members and other villagers that condition of Mahboob was serious in the hospital and on 8.7.93 at 8.15 a.m. a written report was submitted at West Bokaro O.P which was referred to Mandu P.S. for instituting a case. In the meantime, Hussaini Mian, the father of Mahboob returned to his house on 7.7.83 and informed the family members and other villagers that condition of Mahboob was serious in the hospital and on 8.7.93 at 8.15 a.m. a written report was submitted at West Bokaro O.P which was referred to Mandu P.S. for instituting a case. In the meantime, the deceased also died at R.M.C.H. So information was sent to local police at Bariatu and a police officer went to the hospital and recorded the statement of Sattar Hussain, the brother of Mahboob on 8.7.83 at 11 a.m. It was also subsequently referred to Mandu P.S. The police actually treated the first FIR, that is, the FIR recorded at 8 a.m. on 8.7.83 on the basis of the written report submitted at West Bokaro O.P by Hussaini Mian, father of the deceased, and investigation was taken up. The dead body of the deceased was subjected to post mortem examination at RMCH itself. After completing the investigation, charge-sheet was submitted as against these two appellants. 3. Both the appellants claimed themselves innocent in court below and a defence was taken up that only out of previous enmity they have been falsely implicated and no specific defence case was made out. 4. So the defence has not specifically denied that the deceased Mahboob Mian or Mahboob Ansari sustained injury in the afternoon of 5.7.83 at village Laiyo and due to that died in HMCH, Ranchi during the course of treatment on 7.7.83. Simply both the appellants claimed that they had not taken part in the occurrence. 5. To prove the case on behalf of the prosecution as many as 16 witnesses were examined and PW 1 Ibrahim Mian, PW 3 Maksood Hussain, PW4 Sadik Mian, PW 5 Jaimunissa, PW 7 Julekha Khatoon, PW 9 Hussaini Mian, who is the informant, and PW. 10 Sattar Hussain, who is the brother of the deceased are witnesses on the point of the occurrence. PW 9 Hussaini Mian is the father of the deceased and the informant of this case because the first information report was lodged by him by submitting a written report, that is, Ext. 2 at West Bokaro O.P. and so he is an important witness. PW 9 Hussaini Mian is the father of the deceased and the informant of this case because the first information report was lodged by him by submitting a written report, that is, Ext. 2 at West Bokaro O.P. and so he is an important witness. According to this witness, on the date of occurrence, that is on 5.7.83 at about 4 p.m. or so when Mahboob, his son, was in the house and taking rest, then the appellant Hashim came and asked Mahboob to show the damaged crop which had been damaged by the she-goat of this appellant on the previous day so that he will pay the compensation and as such Hashim and Mahboob were going to the field and they were followed by the wife of Mahboob and others, then on the way, Salim, the brother of Hashim, came and tied a towel on the neck of Mahboob and began to assault by fists and as such there was altercation between them and then the appellant Hashim immediately rushed to his house and brought a wooden piece and gave a blow on the head. It is also his evidence that when his son Mahboob was injured and unconscious, he has immediately removed in a truck to Jharkhand Colliery Dispensary where he was examined by a doctor who referred him to Noorsarai Dispensary, but Noorsarai Dispensary also referred the injured to RMCH and ultimately the injured was admitted in Neuro-Surgery Ward of RMCH on 6.7.83 and treatment was going on but he was in serious condition and so he returned to his village on 7.7.83 and informed the villagers and on their advise, on the next date, he had gone to West Bakaro O.P. and submitted a written report about the occurrence, that is, Ext. 2. It is also the evidence of this witness that on the previous day, she-goat of Hashim grazed some portion of paddy crop, for that there was aftercation and this occurrence took place due to the previous day's grazing. 6. No doubt this witness is an interested witness being the father of the deceased but his evidence was examined with great caution and his evidence also finds corroboration from other independent witnesses and he had also disclosed all the material facts in the written report, that is, Ext, 2. 6. No doubt this witness is an interested witness being the father of the deceased but his evidence was examined with great caution and his evidence also finds corroboration from other independent witnesses and he had also disclosed all the material facts in the written report, that is, Ext, 2. It was further contended on behalf of the appellant that admittedly the occurrence took place in the evening of 5.7.83, but the first FIR, that is, Ext. 2 was lodged as late as on 8.7.83 at 8.15 a.m. So there is abnormal delay in lodging of the FIR. 7. At the very outset, it can be said that there is reasonable explanation for the delay that immediately after the occurrence, the injured was taken from one hospital to another and lastly to RMCH where he was admitted on 6.7.83 and after that on 7.7.83 informant came to the village and narrated the incidence to the villagers and then on the next day, he lodged the FIR. Moreover, admittedly the occurrence took place on 5.7.83 at 4 p.m. and the injured was immediately taken to Jharkhand Colliery Hospital where he was examined by a Medical Officer at 4.30 p.m. and from Ext. 4, the report of Medical Officer of Jharkhand Colliery Hospital, it can be said that the matter was immediately reported to Mandu police on 5.7.83 by the Medical Officer. This indicates that actually steps was taken for informing the police immediately after the occurrence. 8. The evidence of the informant also finds support from the evidence of PW 1 Ibrahim Mian, PW 3 Maskood Hussain, PW 4 Sadik Mian, PW 5 Jaibunissa, the wife of the deceased, PW 7 Julekha Khatoon, another relation of the deceased and that of PW 10 Sattar Hussain who is the own brother of the deceased and was present with the deceased all along in the RMCH and also lodged a fardbeyan after the death of the deceased at RMCH itself (Ext. 8). 8). Admittedly, PW 1 Ibrahim Mian, PW 3 Maksood Mian and PW 4 Sadik Mian are independant witnesses and they got their houses near the P.O. Similarly PW 5 is the wife of the deceased and P.W. 7 Julekha Khatoon is the brother's wife and PW 10 is the own brother of the deceased and they are also expected to see the occurrence because the deceased was called from his house and the occurrence took place near the house of the deceased. These witnesses have also consistently supported the prosecution case that Hashim came to the house of the deceased Mahboob and asked him to show the damaged crop so that he will pay compensation and when they were going towards the field, on the way another appellant Salim came and assaulted the deceased by fists and slaps and then this appellant, Hashim, brought a piece of wood which was like a lathi, and gave a blow on the head of the deceased. 9. PW 2 Sahadat Hussain and PW. 6 Raiyasat Hussain came to the P.O. after the occurrence and they too learnt about the occurrence and assault by Hashim and Salim from PW.1. Maksood and others. Furthermore, PW. 14 Dr. Giridhari Pasti of Jharkhand Colliery Dispensary has stated that on 5.7.83 at about 4.30 p.m. or so, the injured Mahboob was brought in his dispensary and he examined the injured which was on the head and as the condition of the patient was serious, he referred the injured to Noorsarai dispensary. Ext. 4 is the report of this doctor which clearly indicate that immediately after the occurrence, the injured was taken to this doctor who found the injury on the head which was serious in nature. Admittedly, the deceased died in RMCH on 7.7.83 and on 8.7.83 at 1.30 p.m. Dr. Ext. 4 is the report of this doctor which clearly indicate that immediately after the occurrence, the injured was taken to this doctor who found the injury on the head which was serious in nature. Admittedly, the deceased died in RMCH on 7.7.83 and on 8.7.83 at 1.30 p.m. Dr. Remu Bala held post mortem examination of the dead body of the deceased and also found injury on the head caused by hard and blunt substance and from his evidence it also appears that the death of the deceased took place due to the head injury on 7.7.83 P.W. 15 is Suresh Nath Tiwary who is the I.O. of this case and he visited the P.O. and from his evidence it can be said that the P.O. was in village Laiyo and blood-stained clothes of the deceased were handed over to him which he seized in presence of the witnesses. 10. So the evidence on the record as discussed above clearly proves that on 4.7.83, the she-goat of the appellant Hashim grazed the paddy crop belonging to the deceased and for that there was altercation on that day which was pacified and on the next day at 4 p.m. or so Hashim had gone to the house of the deceased and asked him to show the place and extent of damage so that he will pay the compensation and on the way Salim assaulted by fists and slaps and Hashim had gone to his house and brought a wooden lathi and gave only one blow on the head and due to the head injury, the deceased died on 7.7.83 at RMCH in course of treatment. 11. So far, appellant Salim Mien is concerned, no doubt he was found guilty under Section 302/34 IPC by the trial court but the evidence as discussed above. clearly show that he had gone to the house of the deceased alongwith main accused Hashim and Hashim had gone to the house of the deceased alone and asked the deceased to show the damaged crop and on the way this appellant came and assaulted the deceased simply by fists and then the witnesses intervened and after that Hashim brought a wooden lath; from his house and gave a blow on the head. In such a situation, this appellant Salim actually came all of a sudden that too unarmed, and he simply assaulted the deceased by fists and slaps and nothing more. So it can be said that he was not sharing any common intention with the main appellant Hashim to commit the murder of the deceased. At best he is guilty under Section 323 IPC only because he assaulted the deceased by fists and slaps. So the conviction of the appellant Salim Mian under Section 302/34 IPC is definitely unwarranted and as such it is set aside and modified under Section 323 IPC and this appellant is simply found guilty under Section 323 IPC for causing hurt to the deceased. For that he is sentenced to undergo rigorous imprisonment for four months only under Section 323 IPC. 12. So far Hashim Mian is concerned, definitely the evidence on the record indicates that he brought the wooden lathi and gave only one blow on the head which proved to be fatal. It was contended on behalf of this appellant that admittedly this appellant had no intention to commit the murder of the deceased and this occurrence took place all of a sudden without any premeditation and that too in course of hot exchange of words. From the evidence on the record, it can be said that this appellant Hashim had also gone to the house of the deceased unarmed and asked him to show the portion of the damaged crop alleged to have been grazed by his she-goat so that he will pay compensation and for that there was altercation between the parties. Then he brought a wooden stick from his house and gave only one blow and had not repeated the blow. Then he brought a wooden stick from his house and gave only one blow and had not repeated the blow. So there is no two opinion that this occurrence took place all of a sudden without any premeditation and in such a situation, learned counsel for the appellant has relied upon a case law of the Supreme Court reported in 1996 (2) Supreme (Cr.) 307, Mahesh vs. State of M.P. and in that case actually the accused-appellant gave only one Pharsa blow on the head of the deceased which resulted in the instantaneous death and as the occurrence took place all of a sudden without any premeditation, that too, regarding dispute for grazing of the cattle, and so it was held by the Apex court that in such a situation the occurrence comes within the Exception 4 to Section 300 of the IPC and as such the appellant was convicted under Section 304 Part I IPC. This case is definitely on the lesser gravity than that of Mahesh (supra) and here the occurrence also took place all of a sudden when there was hot exchange of words going on regarding grazing of the paddy crop and this appellant Hashim was unarmed at that time and he brought a wooden lathi and gave only one blow on the head and after two days the deceased died in the hospital. In such a situation, this case also comes within the Exception 4 to Section 300 of the IPC and as such the appellant Hashim Mian is liable to be convicted not under Section 302 but under Section 304 Part I IPC. 13. Accordingly, for the reasons mentioned above, the conviction of this appellant Hashim Mian is modified to Section 304 Part I of the IPC instead of Section 302/34 IPC and he is sentenced to undergo rigorous imprisonment for five years and also to pay fine of Rs. 3000/- (three thousand), in default to undergo rigorous imprisonment for another one year and if the fine amount is realised, half of the amount shall be paid by way of compensation to the widow of the deceased, namely Saibunissa (P.W. 5) of this case. 14. 3000/- (three thousand), in default to undergo rigorous imprisonment for another one year and if the fine amount is realised, half of the amount shall be paid by way of compensation to the widow of the deceased, namely Saibunissa (P.W. 5) of this case. 14. In the result, this appeal is allowed in part and the conviction and sentence of the appellant Salim Mian from Section 302/34, IPC is hereby modified and convicted under Section 323 IPC and he is sentenced to undergo rigorous imprisonment fur four months under Section 323 IPC and similarly conviction and sentence of the appellant Hashim Mian is modified to Section 304 Part I IPC and he is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 3000/- (three thousand), in default to undergo further rigorous imprisonment for one year as indicated above. The bail bond of both the appellants are hereby cancelled and they should surrender in the court below for undergoing the remaining part of the imprisonment and period of their detention during trial and appeal will be set off from the period of imprisonment as awarded by this court. If these appellants will not surrender in the court below immediately then the trial court will take steps for their apprehension so that they will serve the remaining part of imprisonment as awarded by this court. P.K. Sarkar, J.-I agree.