Judgment AMARESH KU. SINGH, J. ( 1 ) HEARD the learned counsel for the appellant and the learned Public Prosecutor. ( 2 ) THIS appeal is directed against the judgment dated 28th August, 1982 passed by the learned Additional District and Sessions Judge No. 1, Hanumangarh in Sessions Case No. 20/82. By the aforesaid judgment the appellant was convicted under Sections 302 and 323 of the Indian Penal Code and he was sentenced to imprisonment for life for the offence under Section 302 and rigorous imprisonment for six months and a fine of Rs. 500/- and further rigorous imprisonment for one month for default in payment of fine for the offence under Section 323 of the Indian Penal Code. Both the sentence of imprisonment were ordered to run concurrently. ( 3 ) THE facts of the case may be briefly summarised as below :-On 10th January, 1982 at 8. 30 p. m. Balbir Singh gave an oral first information report at Police Station, Hanumangarh Junction. The information given by him was recorded on Ex. P/1. According to Ex. P/1 on 10th January, 1982 at about 7 p. m. Balbir Singh was going to his house from the market. When he reached in front of the shop of Mukuand Lal, he saw that Gurmail Singh was beating Hakum Singh with a lathi and Hakum Singh was lying unconscious on the ground and blood was coming out of his nose and mouth. Balbir Singh asked Gurmail Singh why he was inflicting injuries to Hakum Singh and in response Gurmail Singh said that he would not leave Hakum Singh without killing him. It was further stated in the First Information Report that when Balbir Singh tried to intervene, Gurmail Singh inflicted a lathi blow on his leg. Meanwhile, on hearing the hue and cry, Gurjant Singh also reached the spot and then Gurjant Singh and Balbir Singh both saved Hakum Singh from further injuries. Balbir Singh thereafter sent his younger brother Major Singh to the house of Sarpanch and himself went to the house of Hakum Singh, where he disclosed the incident. Hakum Singh was taken to the Police Station at the time of lodging the First Information Report. He was seen by the Police Officer and his condition was noted down in the endorsement made by the police on Ex. P/1. Hakum Singh was taken to the Police Station at the time of lodging the First Information Report. He was seen by the Police Officer and his condition was noted down in the endorsement made by the police on Ex. P/1. On the basis of report given by Balbir Singh, police registered a case under Section 307 of the Indian Penal Code and investigation was conducted. On 12th January, 1982 at about 10. 50 a. m. Hakum Singh breathed his last, and his post mortem examination was conducted on the same day at 1 p. m. by the doctor. After investigation, the police submitted the charge-sheet under Section 173 of the Criminal Procedure Code against the accused Gurmail Singh alleging commission of offence punishable under Section 302 of the Indian Penal Code. ( 4 ) THE learned Munsif and Judicial Magistrate, Hanumangarh committed the case to the Court of learned Additional Sessions Judge No. 1, Hanumangarh. Charges under Sections 302 and 323 of the Indian Penal Code were framed against the accused, who pleaded not guilty to the charges. The prosecutions examined 7 witnesses namely, Sardar Balbir Singh, P. W. 1, Major Singh P. W. 2, Dalu Ram P. W. 3, Girdharilal P. W. 4, Ramjilal P. W. 5, Dr. Narendra Godara P. W. 6 and Richpal Singh P. W. 7 in support of the prosecution case. The accused was examined under Section 313 of the Criminal Procedure Code. He denied all the allegations made against him and added that he had no enmity against Hakum Singh and that on the night of occurrence at about 8 p. m. he returned to his house from outside and saw that Balbir Singh and Hakum Singh were sitting in his house and Hakum Singh was trying to outrage the modesty of his wife and Balbir Singh was standing near the door. The accused further added that in order to stop Hakum Singh from committing rape with his wife, he inflicted a lathi blow on the head of Hakum Singh, and thereafter, Hakum Singh fell on the cot and received another injury by falling and thereafter Hakum Singh and Balbir Singh ran away from the scene of occurrence and at that time Balbir Singh fell on the ground as he had collided against the "khoonti" and he received injury on his leg and that at the time of incident both of them were intoxicated. It is further stated by him that he had gone to the Police Station to lodge the report, but the police did not listen to him and after keeping him for 15-16 days in confinement, submitted a challan against him. ( 5 ) SUKHDEO Kaur alias Jarnail Kaur, who is the wife of the accused appellant has been examined as D. W. 1. She has deposed that on the date of occurrence about one hour after the sunset, she was alone in her house, the children had gone to bed and at that time Hakum Singh, who had taken wine entered the house and one other man, remained standing at the gate and after entering the house Hakum Singh caught her hand and at that time she raised hue and cry and her husband (Gurmail Singh) came from outside and he inflicted a lathi blow on the head of Hakum Singh Hakum Singh fell on the cot and the other person standing at the gate of the house started running away and while he was attempted to run away, he struck against the "khoonta" and fell on the ground and Hakum Singh also ran away. It is further stated by Sukhdeo Kaur D. W. 1 that if her husband had not come to the scene of occurrence, Gurmail Singh would have committed rape on her and that she had narrated the whole story to the police and there was no enmity between Hakum Singh and her husband. ( 6 ) THE learned Additional Sessions Judge after taking into consideration the evidence adduced by the parties and the arguments advanced by both the parties came to the conclusion that charges under Sections 302 and 323 I. P. C. were proved beyond reasonable doubt against the accused. Consequently, he convicted and sentenced the accused appellant under Sections 302 and 323 of the Indian Penal Code as mentioned above. Consequently, he convicted and sentenced the accused appellant under Sections 302 and 323 of the Indian Penal Code as mentioned above. ( 7 ) LEARNED counsel for the appellant has submitted that the prosecution evidence produced in his case is not reliable and the real incident occurred not in front of the house, as has been alleged by the prosecution, but in the house of the accused, where Hakum Singh had gone with the intention of committing rape on the wife of the accused and that the accused had inflicted only one lathi blow on Hakum Singh with the object of preventing him from committing rape on the wife of the accused, and this act of the accused does not amount any offence because he had every right to protect his wife when Hakum Singh was attempting to commit rape on his wife. It is further stated by the learned counsel for the appellant that the story given by the accused is proved by the evidence of Sukhdeo Kaur alias Jarnail Kaur D. W. 1, who has given her version on oath as defence witness and even according to the circumstances proved by the prosecution, the story given by the accused is probable. He has therefore, prayed that the appeal should be al lowed and Gurmail Singh should be acquitted of the charges under Sections 302 and 323 I. P. C. ( 8 ) ON the other hand learned Public Prosecutor has submitted that the defence version is completely unreliable and the prosecution has fully established that the accused inflicted several injuries on the body of Hakum Singh and in consequence of those injuries Hakum Singh died. He has therefore prayed that the appeal be dismissed. ( 9 ) WE have carefully considered the rival arguments and the evidence adduced by both the parties. The only question to be decided in this appeal is whether the prosecution has proved its case beyond reasonable doubt in view of the defence version given by the accused in his statement under Section 313 of the Criminal Procedure Code and the evidence of his wife. ( 10 ) BEFORE we proceed further, it may be observed that in criminal prosecution, the accused is not required to prove his case beyond reasonable doubt. Even if he succeeds in showing that the defence version given by him is probable, he is entitled to be acquitted. ( 10 ) BEFORE we proceed further, it may be observed that in criminal prosecution, the accused is not required to prove his case beyond reasonable doubt. Even if he succeeds in showing that the defence version given by him is probable, he is entitled to be acquitted. The reason for this view is that if the defence version, which is incompatible with the prosecution version is shown to be probable, the prosecution version ceases to be proved beyond reasonable doubt. The decree of proof that is required from the prosecution can be established only if the defence version is neither proved nor is shown to be probable and is liable to be discarded as completely false. ( 11 ) IN the instant case, prosecution has alleged that the incident took place on the public way when the complainant Balbir Singh saw the accused inflicting blows on Hakam Singh with lathi in front of the shop of Mukundlal. The defence version is that no incident occurred in front of the shop of Mukundlal on the public-way and that the real incident occurred in the house of the accused. The place of occurrence as alleged by the prosecution, is therefore, not the same as alleged by the defence. According to prosecution, the accused was bent on killing the deceased, Hakam Singh and therefore he continued to inflict lathi blows on him after he had fallen on the ground and did not stop beating Hakum Singh inspite of the pleadings made by Balbir Singh P. W. 1. On the other hand the defence version is that the accused inflicted only one injury with the lathi on the head of the deceased and that too was inflicted not with a view to kill, but with a view to prevent him for committing rape on the wife of the accused. The number of injuries caused to the deceased is important. ( 12 ) DR. Narendra Godara P. W. 6 examined the injuries of the deceased Hakam Singh on 10th January, 1982 when he was admitted in the Government Hospital. He found the following three injuries :-1. Swelling 5" x 6" right temporo parietal region of fore head. 2. Swelling 6" x 5" scalp parietal middle and left parietal area. 3. Odema was present over right eye (Black eye ). According to Dr. He found the following three injuries :-1. Swelling 5" x 6" right temporo parietal region of fore head. 2. Swelling 6" x 5" scalp parietal middle and left parietal area. 3. Odema was present over right eye (Black eye ). According to Dr. Narendra Godara P. W. 6 the injury No. 1 and 2 appears to have been caused with some hard object and that at the time of examination, blood was coming out of his left ear, nose and mouth and injured was unconscious and the smell of wine was coming from his mouth. It is further stated by Dr. Narendra Godara P. W. 6 that on the same day, he examined the injuries of Balbir Singh and found three injuries on his body. One of them was lacerated wound one and one fourth inch x three eighth inch x one fourth inch on right leg lower one third. Second injury was swelling 5" x 3" right leg laterally upper and middle part and third injury was bruise two inch x one and half inch right shoulder laterally and all the three injuries were simple and caused by some blunt weapon and the smell of wine was coming from his mouth. Dr. Narendra Godara P. W. 6 has proved the medical reports of both the injured. It is further stated by him that he had conducted the post mortem examination of the dead body of Hakum Singh on 12th January, 1982 at 10. 50 a. m. and found three injuries as below :-1. Swelling 5" x 6" on right temparo perietal area and fore head. 2. Swelling 6" x 5" on scalp-parietal middle and left parietal area. 3. Abrasion 1/8" x 1/8" on left car external meatus. According to Dr. Narendra Godara P. W. 6 all the injuries were ante mortem and on opening the head right parietal temporal region contained haemotoma and the brain membrane were conjected and there was extra dural haemotoma present over right parietal temporal area (Clotted blood) and brain was conjected in right parietal area and that his injury No. 1 and 2 could have been caused with the lathi and both the injuries were collectively sufficient to cause death and injury No. 1 was more dangerous for his life. He has proved post mortem examination report Ex. P/12. He has proved post mortem examination report Ex. P/12. Regarding injury No. 2, doctor has admitted that his leg injury could have been caused by a fall provided he knocked against some hard object. ( 13 ) THE evidence of Dr. Narendra Godara P. W. 6 shows that Hakam Singh contained only three injuries, out of which two were on the head and one was in the nature of aedima on right eye. There does not appear to be any fracture of the scalp bone, though there was haemotoma inside the brain. ( 14 ) BALBIR Singh P. W. 1 is the author of the First Information Report. He has supported the prosecution case in his statement and proved the First Information Report Ex. P/1. ( 15 ) MAJOR Singh P. W. 2 is the brother or Balbir Singh P. W. 1 and according to his version, he reached the spot on hearing the hue and cry. Major Singh has not deposed that he saw anybody inflicting injuries on Hakum Singh, although, he has staled that when he reached in front of the shop of Mukundlal, he saw that Gurjant Singh and Balbir Singh were standing and Hakum Singh was lying on the ground and he was unconscious and blood was coming out of his nose and mouth and that Balbir Singh had told that Gurmail Singh had inflicted injuries on Hakam Singh and that Gurmail Singh inflicted the injury on him also. In cross-examination this witness has stated that shop of Mukundlal was closed at the time of incident. ( 16 ) DALU Ram P. W. 3 is Assistant Sub Inspector, who scribed the First Information Report Ex. P/1 at the instance of Station House officer of the Police Station. Thereafter, Dalu Ram went to the spot, prepared the site plan and site inspection note and got the medical examination of the injured done by the doctor. ( 17 ) GIRDHARILAL P. W. 4 has deposed that he carried 7 packets from the Police Station to Forensic Science Laboratory, Jaipur. ( 18 ) RAMJILAL P. W. 5 is another Police Constable, who carried some sealed packets to Forensic Science Laboratory, Jaipur. ( 19 ) RICHHPAL Singh P. W. 7 is the Investigating Officer. He prepared the Panchayatnama Ex. ( 18 ) RAMJILAL P. W. 5 is another Police Constable, who carried some sealed packets to Forensic Science Laboratory, Jaipur. ( 19 ) RICHHPAL Singh P. W. 7 is the Investigating Officer. He prepared the Panchayatnama Ex. P/3, seized the garments of the deceased and recovered a lathi given by the accused and sent the Malkhana articles to Forensic Science Laboratory, Jaipur. It is admitted by Richhpal Singh P. W. 7 that during investigation the accused had told him that he had apprehension to the effect that deceased cast evil eye on his wife. Richpal Singh has denied that the accused went to him to give information about any incident committed in his house. ( 20 ) LEARNED Additional Sessions Judge has discarded the defence version and relied upon the prosecution evidence. It has been observed by learned Additional Sessions Judge that Balbir Singh P. W. 1 is the solitary eye witness of the occurrence, but, there is no reason to discard his evidence. ( 21 ) WE have carefully considered the evidence adduced by both the parties. It is well established that appreciation of evidence cannot be done by counting the number of witnesses examined by the parties. It is the quality of evidence of that matters, not the numbers, and therefore, even a solitary witness may be held to be sufficient for convicting or acquitting an accused. Those witnesses who are not shaken in the cross-examination to any extent and whose every part of statement remains unshaken, may be regarded as persons giving evidence of the highest quality provided the version given by them is not inherently doubtful or improbable. ( 22 ) SECONDLY, in the case of such witnesses whose statements are partly true and partly untrue, the Court may require corroboration of those portion of statement which in the opinion of the Court are likely to be true. Lastly there are witnesses, who made the statement partly true and partly untrue in such a manner that it is not possible for the Court to separate the truth from the falsehood and these are persons whose evidence can be regarded as of lowest quality and therefore, worthless. Lastly there are witnesses, who made the statement partly true and partly untrue in such a manner that it is not possible for the Court to separate the truth from the falsehood and these are persons whose evidence can be regarded as of lowest quality and therefore, worthless. In the instant case, learned Sessions Judge has relied on the testimony of Balbir Singh P. W. 1 and held that he is a reliable witness and the testimony of Sukhdeo Kaur D. W. 1 has been discarded as unreliable. ( 23 ) THE statement of Balbir Singh P. W. 1 is corroborated by the First Information Report Ex. P/1 which was lodged within one and a half hour of the incident. There was thus no sufficient time for fabricating a false case. First Information Report Ex. P/1 bears an endorsement to the effect that it reached the Court of Magistrate on 11th January, 1982 at 2. 30 p. m. There is thus no unnecessary delay in sending the First Information Report Ex. P/1 to the concerned Judicial Magistrate. The statement of Balbir Sing P. W. 1 has been supported by the statement of Major Singh P. W. 2, who found Balbir Singh and Gurjant Singh both standing in front of the shop of Mukundlal and Hakam Singh lying on the ground in injured condition. ( 24 ) WE have gone through the statements of Balbir Singh P. W. 1 and Major Singh P. W. 2 and we do not find any reason to doubt their testimony. In our opinion, the learned District and Sessions Judge was right in coming to the conclusion that the evidence of Balbir Singh, who is the solitary witness in this case, is reliable as it has not been shaken during trial. On the other hand, the evidence of Sukhdeo Kaur D. W. 1 suffers from inherent infirmities and is not supported by any evidence. Her version is that the time of incident was about one hour after sunset and she was inside the Kotha and that her children had by that time slept and at that time Hakam Singh entered her house. Her version is that the time of incident was about one hour after sunset and she was inside the Kotha and that her children had by that time slept and at that time Hakam Singh entered her house. He was drunk and no sooner he entered the house, he caught her hand and when she raised hue and cry, her husband came from outside and he inflicted an injury on the head of Hakam Singh with a lathi and Hakam Singh fell on the cot. In her cross-examination, she has stated that her husband was arrested by the police 10-12 days after the death of Hakam Singh and that she did not liberate her hand from the grip of Hakam Singh, who continued to hold her hand for 2-4 minutes till her husband reached the scene of occurrence and that her husband went to the Police Station next day in the evening. The most important admission of this witness is that her husband went to the Police Station on the next day in the evening and that she did not relate the incident to any person in the village. This clearly shows that for 24 hours after the alleged incident, neither Sukhdeo Kaur D. W. 1, nor her husband made any effort to go to the Police Station to give information about the incident, which occurred in the manner alleged by the defence, nor they related the incident to any person in the village. This was completely unnatural on the part of the accused and his wife not to have narrated the incident to any person in the village. Apart from this improbability, there is inconsistency between the statement given by the accused under Section 313 of the Criminal Procedure Code and the statement given by Sukhdeo Kaur D. W. 1. In his statement given under Section 313 of the Criminal Procedure Code, accused has stated that he had gone to the Police Station and given the report. But, Sukhdeo Kaur D. W. 1 says that her husband went to the Police Station on the next day in the evening, which means that for full 24 hours the accused did not go to the Police Station to lodge any report about alleged incident which occurred in his house. But, Sukhdeo Kaur D. W. 1 says that her husband went to the Police Station on the next day in the evening, which means that for full 24 hours the accused did not go to the Police Station to lodge any report about alleged incident which occurred in his house. It may also be pointed out that Richhpal Singh P. W. 7 who is the Station House Officer of the Police Station has categorically denied the suggestion that the accused had gone to the Police Station to report about the version which has been given in defence. In addition to all these circumstances, one important circumstance is that according to the testimony of Dr. Narendra Godara P. W. 6 when Hakam Singh was admitted in the Hospital, he was unconscious and blood was coming out of his left ear, nose and mouth and that on opening his body, he found that there was haemotoma on the left parietal and right frontal area and the brain membranes were conjested and there was extra dural haemotoma present over right temporal area and brain was congested in right parietal area. This shows that after the infliction of the injuries on his head, the deceased was not in a position to run away from the place where he received the injury. Therefore, the defence version that after the incident, the deceased and his companion both ran away from the house of the accused is on the face of it improbable as shown by medical evidence. We are therefore of the opinion that in view of the medical evidence, the deceased Hakam Singh became unconscious soon after the infliction of the injuries and he was not in a position to run away from the place where he was beaten and the defence version that he ran away from the house of the accused after the infliction of injury, is therefore improbable. The conduct of Sukhdeo Kaur, D. W. 1 and the accused in not relating the incident, which according to them occurred in their house to anyone in the village, is so unnatural that the only inference which can be drawn in the facts and circumstances of the case is that the defence version was concocted later on for the purpose of saving the accused. Besides there is an inconsistency between the statement of the accused and the statement of Sukhdeo Kaur D. W. 1, inasmuch as Sukhdeo Kaur D. W. 1 has admitted that her husband went to the Police Station on the day following the date of incident, in the evening, whereas the statement of the accused read as a whole to the effect that the accused went to the Police Station soon after the incident, and this inconsistency between the statement of Sukhdeo Kaur D. W. 1 and the statement of the accused makes the defence version liable to be discarded as false. Besides, the defence version that soon after the incident, accused went to the Police Station and narrated his version to the Police Officer has been denied by Richhpal Singh, P. W. 7 and we do not find any reason to suspect that the statement of Richhpal Singh P. W. 7 is false. The First Information Report was lodged within one and a half hour of the incident and this circumstance clearly shows that the prosecution version as given in First Information Report Ex. P/1 by Balbir Singh P. W. 1 was genuine and true and could not have been concocted with a view to falsely implicate the accused. We, therefore, hold that the defence version given in the statement of the accused-appellant under Section 313 of the Criminal Procedure Code and the statement of Sukhdeo Kaur D. W. 1 wife of the accused are improbable and false. The accuse appellant, therefore, cannot obtain any advantage from them. ( 25 ) WE, therefore, find no infirmity in the judgment of the learned Sessions Judge that the accused inflicted injuries No. 1 and 2 on the head of the deceased with a lathi in front of the shop of Mukundlal. ( 26 ) THE next important question is what offence has been committed by the accused. In the instant case, it does not appear that any fracture of the skalpbone had been caused. There were only two injuries on the head and they had been caused with the lathi. There was no enmity between the accused and the deceased and in these circumstances, it cannot be said that the accused intended to cause death of the accused. There were only two injuries on the head and they had been caused with the lathi. There was no enmity between the accused and the deceased and in these circumstances, it cannot be said that the accused intended to cause death of the accused. It is also obvious that it is difficult to infer that the accused knew that the injury which he was likely to cause by hitting the deceased on his head with lathi was likely to cause his death. The injuries No. 1 and 2 have been described as sufficient in the ordinary course of nature to cause death. But having regard to the nature of injuries as described in the post mortem examination by Dr. Narendra Godara and his statement taken as a whole, we are of the opinion that it is difficult to hold that the injuries caused to the deceased were sufficient in the ordinary course of nature to cause death. Dr. Narendra Godara P. W. 6 has himself admitted that if emergency aid would have been available, the deceased could have been saved. In these circumstances, in our opinion conviction of the appellant under Section 302 of the Indian Penal Code cannot be maintained. However, it is proved by evidence that he intentionally caused blows on the head of the deceased with lathi and those blows resulted in the injuries Nos. 1 and 2 as described by Dr. Narendra Godara P. W. 6 in his post mortem examination report, and it is therefore, proper to hold that the injuries caused by the accused were intentional. The case of the accused is therefore, covered by Section 304 Part I of the Indian Penal Code and in the facts and circumstances of the case, we are of the opinion that ends of justice would be met if the accused appellant is convicted under Section 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years. ( 27 ) FOR the reasons mentioned above, we partly allow this appeal. The conviction as well as sentence of the accused appellant under S. 302 of the Indian Penal Code is hereby quashed and set aside. His conviction and sentence under Section 323 of the Indian Penal Code is maintained. ( 27 ) FOR the reasons mentioned above, we partly allow this appeal. The conviction as well as sentence of the accused appellant under S. 302 of the Indian Penal Code is hereby quashed and set aside. His conviction and sentence under Section 323 of the Indian Penal Code is maintained. The accused appellant is found guilty of the offence punishable under Section 304 Part I of the Indian Penal Code and he is hereby convicted under Section 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years. The accused appellant is on bail. His bail bonds are hereby cancelled. He shall surrender within 15 days before the learned Sessions Judge, failing which a non-bailable warrant of arrest shall be issued to compel his appearance and after his arrest or appearance, as the case may be, he shall be committed to Jail to serve out the sentences awarded to him. Order accordingly.