Honble JAIN, J.–These two appeals will be disposed of by this common judgment because Jail Appeal No. 69/93 was submitted by the accused from the jail while appeal No. 114/93 was preferred by Shri A.K. Acharya on behalf of the accused appellant. (2). Accused-appellant preferred these appeals against his conviction andsentence under Section 302 of Indian Penal Code passed by the learned Addl. Sessions Judge, (Special Judge, SC/ST Court) Udaipur on 1.2.93. (3). Briefly stated the facts of the case are that Ramas daughter Sohni was married to appellant Vajia. She returned to her parents on 17.4.92. Rama and his wife had gone to Gogunda at about 6 p.m. in order to make some purchases. Sohani,wife of the accused appellant, her sister Hemli and her brother Mohan were present on the field. Heeras wife was also present at the field. At about 8 p.m. accused appellant reached there and asked Sohni to accompany him. Thereupon Mohan, Kankuni and Sohni told that parents of Sohni were not in the village and he may take Sohni next day. Some altercation took place. Accused appellant inflicted Lathiblows on the head and left hand of Mohan. Mohan fell down and died instantaneously. Thereupon the accused appellant ran away. Hemli, sister of Sohni, went to PW 1 Bhima and thereupon Bhima, Dhulchand, Keshar Singh and other witnesses reached the site. They found that Mohan was already dead. Since the night had advanced nobody could inform the police in night. Bhima went to police station,Gogunda next day in the morning and lodged oral report which was noted down as Ex.P/1. A case under Section 302 IPC was registered against the appellant. During the investigation, Investigating Officer inspected the site and prepared inspection memo, panchayat nama of the body of the deceased. Blood smeared as well as control soil was seized. Autopsy of the dead body was conducted. On 20.4.92 accu-sed appellant was arrested and on his disclosure statement a Kulhadi was recovered at his instance. The same was sent for examination alongwith the seized soil to the FSL, Jaipur. In due course challan was submitted under Section 302 IPC before the concerned Magistrate who committed the case to the learned Sessions Judge. (4). Charge under Section 302 IPC was framed and read over to the accused on 4.7.92. He denied it and claimed trial. Thereupon prosecution examined as many as 10 witnesses. In due course challan was submitted under Section 302 IPC before the concerned Magistrate who committed the case to the learned Sessions Judge. (4). Charge under Section 302 IPC was framed and read over to the accused on 4.7.92. He denied it and claimed trial. Thereupon prosecution examined as many as 10 witnesses. Statement of accused appellant was recorded under Section 313 Cr.P.C. He did not produce any evidence in defence. His defence was that he told his wife time and again not to go her parents and in case she would continue thishabit, he would perform a Nata marriage with some other woman. Therefore, his wife became angry and falsely implicated him in this case. (5). We have heard the learned counsel for the appellant as well as the learned Public Prosecutor. The first question arises if it is a case of homicide. PW-7 Dr. Surendra Singh Jhala has stated that he performed the autopsy on the dead body of Mohan on 18.4.92 when he was posted as Medical Officer, Gogunda. He found following two injuries on the dead body. 1. Incised wound.–The wound is spindle shaped and edges are smooth and clean cut. Clotted blood is present inside the wound and around the wound. The size of wound is 4-1/2" x 1" x 1/4" x 1". The wound is situated over the right temporal region of skull. The wound is horizontal on dissection - it was found that the right Temporal Bone is cut into two parts below the injury also the brain substance is on right temporal lobe and clotted blood is present into brain matter. 2. Incised wound.–The margins of wound are clean cut. Blood clots are present inside the wound and also around the wound. The wound is situated on outer part of right upper arm just above right elbow joint size of wound 4" x 2" x 1-1/2". On dissection-it was found that muscles of right upper arm under the injury is cut. The right humerus bone is also half cut under the wound. (6). According to him the cause of death of deceased was shock and coma due to head injury (Injury No. 1.). The injury was ante-mortem and deceased died due to the shock and coma which was caused by injury No.1. The right humerus bone is also half cut under the wound. (6). According to him the cause of death of deceased was shock and coma due to head injury (Injury No. 1.). The injury was ante-mortem and deceased died due to the shock and coma which was caused by injury No.1. Learned counsel for the appellant while arguing did not challenge the findings of the doctor and we findthat it is a case of homicide. (7). Now we have to see as to what is the other evidence of the witnesses against the appellant. Learned counsel for the appellant submitted that there was delay in lodging the report and the recovery of axe at the instance of the appellant will not be sufficient to connect the appellant with the crime because the report ofForensic Science Laboratory is not available. He also submitted that there was no motive to kill Mohan. In the last he submitted that the case may fall under Section 340 Part II of Indian Penal Code. (8). On the other hand learned Public Prosecutor has repelled all these arguments and supported the judgment of learned Sessions Judge. (9). So far as delay is concerned, it was Bhima who informed the police orally at 7 a.m. on 18.4.92 and the report was jotted down at police station as Ex.P/1. Bhima PW-1 has stated that on the day of the incident i.e. 17.4.92 Rama and his wife had gone to Gogunda in order to purchase some cloth. Therefore, their children were at the field from where Hemli daughter of Rama came to him andinformed about the incident. He immediately went to the site and found that Mohan was lying in the field. He stated that he could not go to the police station in the night because last bus which connected Jhadole-Gogunda and passes through his village, leaves in the evening. He has stated that no bus is available in the night. Last bus leaves at 7 or 8 p.m. to Gogunda. In the FIR Ex.P/1 the delay was explainedwhich is corroborated by oral evidence. We are of the view that in such circumstances in an interior village when there are no means of transport, delay in lodging FIR is not material in this case. (10). Now we have to examine the evidence of eye witnesses. They are Hemli PW 4 and Sohini PW 6. We are of the view that in such circumstances in an interior village when there are no means of transport, delay in lodging FIR is not material in this case. (10). Now we have to examine the evidence of eye witnesses. They are Hemli PW 4 and Sohini PW 6. According to Hemli there were only three persons on thefield when accused appellant arrived. She has stated and corroborated by PW-6 Sohini that their parents had gone to Gogunda by bus during the day time to make purchase of cloth. Therefore they were the only persons not present in the the field. PW 3 Rama has stated he was not in the village and that he had gone out to make purchases. He has stated that his daughter Sohini had come to him in village before him and complained that her husband had given beatings. On this complaint, he, as seasoned father, told Sohni that he would make her husband understand and thereafter he left with his wife to make purchase of cloths. However according to Hemli an eye witness accused appellant came at the field armed with Kulhadi in his one hand and by another hand he caught hold the hand of Sohni and asked her to accompany him. He also abused her and asked as to why she had come there. Thereupon this witness and hir brother told the appellant that their parents were out, therefore the appellant should come next day to take his wife. The appellant would not hear them and slapped Sohni and then inflicted a Kulhari blow on theright arm of Mohan and the second blow was inflicted on the head of Mohan. Mohan cried and fell down. Sohni was so much terrified that she went in the field of sugarcane to hide himself. But this witness Hemli gathered courage in both hands and went to Bhima who was her Mausa (co- brother of Rama) and invited her. She made hue and cry in the village as well. Bhima and other villagers immediately camethere. At that time the accused appellant had run away. So according to her, it was the accused appellant who was in great anger and inflicted two lathi blows on the person of Mohan when she and Mohan asked to come next day in order to fetch Sohni. Bhima and other villagers immediately camethere. At that time the accused appellant had run away. So according to her, it was the accused appellant who was in great anger and inflicted two lathi blows on the person of Mohan when she and Mohan asked to come next day in order to fetch Sohni. The appellant was so much enraged that he first abused his wife and slapped her. PW 6 Sohni who is the wife of appellant has stated that the accused appellanthad given her beatings a day earlier and therefore she came to her parents. Her parents met there and she narrated the mis-behaviour of the appellant to her father. Her father told that he would make the appellant understand. Thereafter her father and mother left the village in order to make purchases. At about 6 p.m. the accused appellant came at the field and caught hold of her hand and dragged her with theresult her bangles were broken. Then Hemli and Mohan asked the appellant that since the parents were not in the village he (appellant) should take Sohni next day in their presence. Then the accused appellant inflicted Kulhari blows on the head of Mohan. Mohan fell down. Thereafter the accused appellant ran away. She was so much terrified that she went to a field of sugarcane to hide herself. She has corro-borated Hemli. It was PW 4 Hemily who had gone to village and told the story to Bhima, Dhulchand, Keshar Singh and other persons. We have read statement of PW 6 Sohni very carefully and we are of the opinion that she has not falsely implicated the appellant who is her husband. There were no suggestion to her during the cross examination that the accused appellant had threatened her thatin case she would again visit her parents time and again he would contact a Nata marriage and therefore Sohni had implicated him falsely. Of course there is cross examination to the effect that Mohan fell down from rope and suffered injuries. But in the circumstances of this case the story suggested cannot be believed. The statements of Sohni and Hemli inspire confidence. They have been corroboratedon material facts by Bhima who came after the incident had taken place. (11). Of course there is cross examination to the effect that Mohan fell down from rope and suffered injuries. But in the circumstances of this case the story suggested cannot be believed. The statements of Sohni and Hemli inspire confidence. They have been corroboratedon material facts by Bhima who came after the incident had taken place. (11). Rama PW-3 stated that he and his wife stayed in Mathua village and from there they went to Lohari Gaon Factory where their another son Hiralal was living. The house was found locked and the landlady informed him that there was some trouble at his house in the village. He and his wife started towards their village thenand there and in the way the police jeep was found by which they went to the field where they found dead body of Moha. PW-5 Keshar Singh has corroborated Rama and Bhima when he stated that he and Rama went to the field after 7 p.m. and found dead body of Mohan. He has stated that it was Hemli who informed the villagers and therefore he came at the field. Hamera PW-2 is the attesting witnessesof different memos and PW-9 Bharat Singh is the investigating officer. (12). Now of the recovery of the Kulhari at the instance of accused-appellant, PW-9 has stated that he arrested the accused appellant on 20.4.92 who gave information Ex.P/12. A kulhari was recovered at his instant vide P/13 which mentions that it was stained with blood. Learned counsel for the appellant submitted that since there is no FSL report, it cannot be believed that it was stained with blood. In a large number of cases this court has taken view that the learned Sessions Judge should obtain FSL report by writing to the Director, Forensic Science Laboratory to sent report on priority basis. In this case no such attempt appears to have been made. However, the accused appellant cannot take advantage of this lapse as the weapon of offence was recovered at his instance. It may be mentioned that when the Kulhari recovered at the instance of the appellant, it was blood stained as Ex.P/13 mentions. From this evidence as are convinced that it is the accused and accused alone who committed the crime. (13). It may be mentioned that when the Kulhari recovered at the instance of the appellant, it was blood stained as Ex.P/13 mentions. From this evidence as are convinced that it is the accused and accused alone who committed the crime. (13). Now the technical question arises whether the accused appellant is liable for offence under Section 302 IPC or it is a case under Section 304 Part II. Learned counsel for the appellant has cited Abdul Majid vs. State of Assam (1). In this citation the murder was not pre-meditated and accused was given dagger by co-accused during quarral and only one overt act was attributed to him. The injurywas inflicted by the appellant. In such circumstances conviction under Section 302 IPC was altered to Section 304 part II IPC. He also cited Shitla Prasad @ Baba vs. State of U.P. (2) in which there was an quarrel regarding diversion of water to a field. Accused inflicted single injury which proved to be fatal. Intention to cause death particularly was not established. The accused appellant had knowledge thatby inflicting such injury death was likely to be caused. The conviction was altered to Section 304 Part II. Counsel for the appellant cited Jagtar Singh vs. The State of Punjab (3) in which quarrel took place on the spur of moment. The appellant never expected to meet the deceased. When the deceased was just passing by the road in front of the house of the appellant, his forehead dashed with the parnala of thehouse of the appellant which provoked the deceased to remonstrate the appellant. There was exchange of abuses and at that time appellant gave a blow with a knife which landed on the chest of the deceased and that blow pierced deep inside the chest cavity resulting in injuring the heart and this injury was sufficient in the ordinary course of nature to cause death. The case was altered to Section 304 partII IPC and the accused appellant was asked to suffer 5 years R.I. (14). Learned Public Prosecutor has contended that the case does not fall under Section 304 Part II. We have considered the rival contentions. There is evidence to the effect that the wife of the appellant had left the house without his permission and had gone to her parents to make a complaint. The husband wentthere in order to fetch her and abused and slapped her. We have considered the rival contentions. There is evidence to the effect that the wife of the appellant had left the house without his permission and had gone to her parents to make a complaint. The husband wentthere in order to fetch her and abused and slapped her. She did not accompany back with him. Her brother Mohan and her sister Hemli suggested that his wife should be taken next day when parents returned after making purchases. We are of the opinion that the murder was not premeditated and injury no.1 was fatal which caused shock and coma resulting into the death of deceased. We are of theview that in the facts and circumstances of the case conviction of the accused appellant should be altered to Section 304 Part II IPC. We are of the view that 7 years imprisonment will be sufficient. (15). In the result, the appeals are partly allowed. Conviction of accused appellant Vajia is altered to Section 304 Part II IPC and he is sentenced to 7 yearsR.I. and fine of Rs. 100/-. In default of payment of fine he will undergo one months S.I. Appellant was arrested on 20.4.92 and since then he is in custody. He will continue to be in custody till he completes the sentence.