JUDGMENT 1. 1. The accused appellant was convicted by the Court of Additional Sessions Judge, Bikaner vide its judgment dated 31.1.1996 in Sessions Case No. 34/94. 2. The prosecution was based on F.I.R. No. 50/94 lodged with the Police Station, Deshnok. The accused was challaned and charged under Section 302 I.P.C. was framed against him. The prosecution story was that on 1.7.1994 at about 11.30 A.M. the occurrence took place in village Molai Talai Rohi Mauja Keshar Deshar Bohran where the Famine relief work was going on. The accused Prahlad with a stick of three and half feet in length and around three and half inch of width hit deceased Magha Ram twice by virtue of which his parietal bone and occipital bones sustained multiple fractures. His skull got divided into six pieces and within three hours of the incident the injured Magha Ram died. In the evidence no motive was deposed. The learned Additional Sessions Judge vide his judgment has found that the eye-witnesses RW. 4 deposed about the incident and from their evidence the learned Additional Sessions Judge found that the incident has been proved. The learned Trial Court has further held that no particular defence has been taken by the accused. He has pleaded ablibi. The learned Additional Sessions Judge found that the case is squarely covered by clause secondly of Section 300 I.P.C. Therefore, the offence under Section 302 I.P.C. is made out against the accused and consequently the accused was convicted under Section 302 I.P.C. and sentenced to life imprisonment. 3. Aggrieved by the judgment of the learned Additional Sessions Judge, the present appeal has been filed by the accused appellant. 4. The argument of the learned counsel for the appellant is that there was no motive on the part of the accused appellant to kill the deceased in this case. No particular motive has been expressed. However, in the testimony of P.W. 9 Smt. Parmeshwari and RW. 10 Smt. Shanti Ex.D. 4 and Ex.D. 5 there is a reference that the deceased and the accused had some altercation regarding bringing of water tank. These portions were put to these witnesses, but these witnesses have not struck to their police statement. Therefore, the learned counsel for the appellant contends that there was no motive and whatever motive was there has not been correctly deposed by the prosecution witnesses. 5. These portions were put to these witnesses, but these witnesses have not struck to their police statement. Therefore, the learned counsel for the appellant contends that there was no motive and whatever motive was there has not been correctly deposed by the prosecution witnesses. 5. Learned counsel for the appellant has further contended that RW. 1 Mangi Lal an independent eye-witness who was present at the scene of occurrence has not supported the prosecution case and, therefore, the correctness of the prosecution case is doubtful. 6. Learned counsel for the appellant has further contended that though the police was informed in the hospital itself yet the RLR. was recorded at 9 PM. on 1.7.1994 whereas the police had arrived at the hospital at about 2 PM. and, therefore, the F.I.R. is delayed. 7. It has been further canvassed by the learned counsel for the appellant that the presence of RW. 4 Shera Ram and RW. 7 Mohan Lal has not been established and RW. 9 Smt. Parmeshwari and RW. 13 Smt. Shanti have not been named in the F.I.R. Therefore, they cannot be termed as eye- witnesses of the occurrence. 8. Lastly, it has been contended on behalf of the appellant that no offence under Section 302 I.P.C. is made out against the accused appellant. 9. Learned counsel for the appellant has relied upon a Supreme Court decision delivered in the matter of Panchaiah and Ors. v. State of Karnataka, (1994 SCC (Cr.) 1218 ) and has contended that notwithstanding there was a head injury, the offence under Section 302 I.P.C. has not held to be made out. 10. Learned counsel for the appellant has further relied upon another decision of the Supreme Court delivered in the matter of Janab Ali Shaikh v. State of West Bengal, (1992 SCC (Cr.) 831 ) therein the Hon'ble Supreme Court converted the conviction of the accused from Section 302 I.P.C. to Section 304 Part I I.P.C. The injury on head was found to be caused at the heat of the moment and that he was not entitled to get benefit of right of private defence as claimed by him. 11. Another case relied upon by the learned counsel for the appellant is Madhusudan Sathpathy & Ors. 11. Another case relied upon by the learned counsel for the appellant is Madhusudan Sathpathy & Ors. v. State of Orissa, (1995 SCC (Cr.) 155 ) wherein only one injury was found on the head which proved to be fatal and other injuries were found to be simple. The conviction was altered from 304 Part 1 I.P.C. to Section 304 Part II I.P.C. 12. Another case relied upon by the learned counsel for the appellant is State of Rajasthan v. Ramswaroop & Ors., (1997 Cr.LR (Raj.) 506 ) wherein this Court while considering the appeal against acquittal came to the conclusion that the acquittal was bad. However, it was found that no offence under Section 302 I.P.C. was made out against the accused and Section 304 Part II I.P.C. was invoked to punish the accused persons. 13. Another case relied upon by the learned counsel for the appellant is 1, Chhaju s/o Hurmat, 2 Subhan S/o Sultan v. The State of Rajasthan, (1985 Cr.LR (Raj.) 529 ) wherein the accused was convicted under Section 304 Part II. 14. Learned Public Prosecutor replying to the arguments of the learned counsel for the appellant has urged that the defence is wrong in contending that the motive is a must to be proved by the prosecution. Learned counsel appearing for the State has urged that the motive lies hidden in the mind of the culprit. Presence of motive is not always necessary and it is always to be established. In the instant case the accused came and caused the injuries to the deceased. What was his design he alone has the knowledge. Therefore, the prosecution has not been able to establish as to what the motive was. 15. As regards the F.I.R. the learned Public Prosecutor stated that the F.I.R. was recorded at the Police Station and if the Police has not lodged the report at the hospital and directed the witnesses to go to the Police Station and get the F.I.R. registered then there is nothing wrong about it. F.I.R. has been given by the person who was working in the famine relief work. Therefore, the delay cannot be said to be unexplained. Firstly, the witnesses had taken the injured to the Hospital and after taking the injured to the hospital at Bikaner they had to go back to Nokha to get the case registered. F.I.R. has been given by the person who was working in the famine relief work. Therefore, the delay cannot be said to be unexplained. Firstly, the witnesses had taken the injured to the Hospital and after taking the injured to the hospital at Bikaner they had to go back to Nokha to get the case registered. The occurrence had not taken place at an isolated place. Therefore, the argument regarding the F.I.R. is of no consequence. 16. As regards the presence of the eye-witnesses, the learned counsel appearing for the State has contended that their presence was natural. They were the workers at the famine relief work and, therefore, they were the natural witnesses of the occurrence. 17. As regards the names of P.W. 9 Smt. Parmeshwari and P.W. 13 Smt. Shanti being not mentioned in the F.I.R. suffice it to say by the learned counsel for the State that the information was given by RW. 1 Imarta Ram and he was not an eye-witness of the incident. He gave it on the information given to him and he cannot be supposed to be acquainted with all the facts. What he has said has been incorporated in the F.I.R. Therefore, the non-inclusion of the names of RW. 9 Smt. Parmeshwari and RW. 13 Smt. Shanti in the F.I.R. should not be taken so seriously. The case being not supported by one witness is not a new thing. Some times witnesses turn hostile to favour the accused. Similar was the case here. 18. Learned counsel for the State has further urged that the defence had taken a plea of alibi. Therefore, they cannot get the benefit of diluting the offence as alleged by the learned counsel for the appellant. Learned counsel has argued that the accused should be punished under Section 304 I.P.C then the accused is required to show that the act of the accused was one of culpable homicide not amounting to murder. The accused is required to bring his case within one of the exceptions of Section 300 I.P.C. Neither there was any attempt on the part of the accused at the trial nor any attempt has been made at the arguments to show as to under which exception the case of the accused would come. Therefore, the case of the accused cannot be taken out of the purview of Section 302 I.P.C. 19. Therefore, the case of the accused cannot be taken out of the purview of Section 302 I.P.C. 19. We have heard the learned counsel for the appellant as well as the learned Public Prosecutor and have also perused the record. 20. The eye-witness account of the incident given by RW. 4 Shera Ram is to the effect that while he along with the deceased, Mangilal and Ram Chandra etc. were sitting in the shed of the cart the accused all of a sudden came and gave a hit on the head of the deceased Magha Ram. With the hit Magha Ram fell down on the ground and second hit was again given by Prahlad on his head. Then the villagers started shouting and the accused ran away from the scene of occurrence. Thereafter the injured was put in the cart and taken to the village and there the incident was reported to Imartaram P.W. 11 nephew of the deceased. This witness was cross-examined and in cross-examination this witness has clearly stated that they had not known as to why the accused Prahlad had hit Magha Ram. This witness has not been contradicted by his police statement. Nothing has been brought in his cross-examination so as to dilute his testimony. He appears to be a witness of truth. His testimony finds corroboration from the testimony of eye-witness P.W. 7 Mohan Lal who corroborates. RW. 4 Shera Ram on material particulars. In cross-examination of this witness, nothing material has been brought out by the defence. He has not been contradicted with his earlier statement. He had withstood the test of cross-examination. The testimony of two ladies eye-witnesses RW. 9 Smt. Parmeshwari and RW. 13 Smt. Shanti is also to the same effect and they also corroborate P.W. 4 Shera Ram and P.W. 7 Mohan Lal. 21. Looking at the testimony of these witnesses, we don't find that the Trial Court had committed any error in accepting the testimony of these witnesses. They appeared to be the witnesses of truth and thus, the account of occurrence is held to be proved by the prosecution. Turning of hostile of witness P.W. 1 Mangi Lal also does not affect the case of the prosecution. 22. They appeared to be the witnesses of truth and thus, the account of occurrence is held to be proved by the prosecution. Turning of hostile of witness P.W. 1 Mangi Lal also does not affect the case of the prosecution. 22. The argument of the learned counsel for the appellant regarding delay in lodging the F.I.R. deserves to be rejected because there is no inordinate delay in lodging the F.I.R. The deceased was first taken to the village and from there he was taken to the hospital. The witnesses were with him. From there they come to Deshnok and in all this process consumption of time was necessary and whatever time has been consumed cannot be said to be of any consequence. 23. This bring us to the question as to what offence is made out against the accused. Before it can be said that the offence under Section 304 I.P.C. is made out it is necessary that the act of the accused has to be brought within one of exceptions of Section 300 I.P.C. Though at the time of trial the accused had not taken any specific defence and contended that his case falls within any exception of Section 300 I.P.C. But the learned counsel for the appellant tried before us to show that it was an accidental quarrel and the case was covered by exception four of Section 300 I.P.C. Exception four of Section 300 I.P.C. requires that there should not be any premeditation and the quarrel should be sudden. In the instant case there was no quarrel what to say of any fight. The accused came all of a sudden and hit on the head of the deceased and smashed his hand and by repeated blows head was broken into pieces. It cannot be said that the case of the accused falls within any of the exceptions of Section 300 I.P.C. Unless any one of the exceptions of Section 300, I.P.C. is invoked, the invoking of Section 304 I.P.C. is out of questions. 24. The cases relied upon by the learned counsel for the appellant are distinguishable on facts and, therefore, they serve no purpose. 25. 24. The cases relied upon by the learned counsel for the appellant are distinguishable on facts and, therefore, they serve no purpose. 25. Before the act of the accused can be said to be punishable under Section 304 I.P.C. it is necessary that the act complained of falls within any of the exceptions of Section 300 I.P.C. In the instant case, we do not find that the act of the accused is covered by any of the exceptions of Section 300 I.P.C. and unless the act of the accused can be said to be culpable homicide not amounting to murder, the invoking of Section 3G4 I.P.C. is not permissible. In these circumstances, the argument of the learned counsel for the appellant does not find favour with the Court and hence is rejected. 26. In the result, there is no force in the appeal and the same is dismissed. The conviction and sentence recorded against the accused appellant are maintained.Appeal dismissed. *******