JUDGMENT A. Ramamurthi, J. : - The appellant has preferred an appeal challenging the conviction and sentence imposed by the learned Additional Sessions Judge, Pondicherry at Karaikal in S.C.No.18 of 1988, dated 1.11.1988, wherein he was found guilty under Sec.302, I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.500. 2. The case of the prosecution in brief is as follows: On 19.9.1987 at about 7.00 p.m. there was quarrel between one Selvaraj, brother of the deceased and the appellant regarding claim over a fence. The appellant and his brother attacked Selvaraj and his brother Periyan, P.W.3 who came that way advised Selvaraj and his brother to go to the police station to give a complaint. They also went to the Police Station. At the time P.W.1, mother of Selvaraj came to the spot and enquired about the quarrel. P.W.10 who is the wife of Selvaraj came there and she was also beaten by the appellant and he also pulled her tuft. On seeing this, Thiruvethipathy aged about 8 years, who is the son of P.W.1 intervened to save P.W.1 The appellant got wild and kicked the boy on the left side of his abdomen severely. The boy unable to withstand the heavy kick, fell down and he was carried home by P.W.1. The boy complained of severe pain and P.W.1 applied some oil. On the next day the boy vomited blood and, therefore, he was admitted in Government Hospital, Karaikal. 3. P.W.8 Doctor Venkateswaralu examined the boy and found intra abdomen injuries. He conducted abdominal operation and in spite of the treatment, the boy died on 21.9.1987 at about 4.00 a.m. Ex.P-4 is the case sheet relating to the victim. P.W.1 went to the police station on the same day at 10.45 a.m. and lodged a complaint Ex.P-1 with P.W.13 who registered a case in Cr.No.45 of 1987 under Sec.302, I.P.C. 4. P.W.14 Inspector of Police, on information took up investigation in the case and sent express first information report Ex.P-7 to the court. P.W.14 went to the hospital and held inquest in the presence of panchayatdars and Ex.P-3 is the inquest report. He gave a requisition to P.W.9 to conduct the post mortem examination. 5. P.W.9 Doctor commenced the post mortem at 12.45 hours on 21.9.1987 and on external examination found bleeding from nostril. Cyanosed nails of both hands. P.W.14 went to the hospital and held inquest in the presence of panchayatdars and Ex.P-3 is the inquest report. He gave a requisition to P.W.9 to conduct the post mortem examination. 5. P.W.9 Doctor commenced the post mortem at 12.45 hours on 21.9.1987 and on external examination found bleeding from nostril. Cyanosed nails of both hands. Pallor of both side of Feet 1“long sutured wound at posterior auxiliary line 8th intercostal space right side 6” long sutured wound (r) Paramedian. Ex.P-5 is the post mortem certificate given by him. According to him, the deceased died due to haemorrhage shock to bleeding from contused (1) lung and contused 2nd part of deodenum. Internal injuries could have been caused by a severe kick in the stomach. 6. P.W.14 went to the spot and prepared a rough sketch Ex.P-8. He also examined all the witnesses. He sent a requisition to the court to send the properties for chemical examination, Ex.P-6 is the Chemical Examiner's report. After completing investigation, he laid a charge sheet against the appellant for an offence under Sec.302, I.P.C. 7. On behalf of the prosecution, P.Ws.1 to 14 were examined and Exs.P-1 to P-9, were marked, Neither any witnesses nor any document was marked on the side of the defence. The learned Sessions Judge found the appellant guilty, convicted and sentenced him as aforesaid. 8. The learned counsel for the appellant contended that there is inordinate delay in giving the complaint. There is conflicting version relating to the place of offence. The earlier complaint said to have been given has been suppressed by the prosecution. P.Ws.1 and 2 are interested witnesses and P.Ws.5 to 7, independent witnesses turned hostile. The medical evidence is not supporting the oral evidence. There is no evidence by P.W.9 to show that the injury sustained by the deceased is sufficient in the ordinary course of nature to cause death. There is absolutely no intention on the part of the appellant cause the death. In the alternative, the learned counsel contended that if at all, even assuming that the prosecution version is true, the offence committed is only under Sec.304(II), I.P.C. 9. The learned counsel for the appellant contended that there is inordinate delay in giving the complaint. According to the prosecution, on 19.9.1987 at about 7.00 p.m. the occurrence took place. Admittedly, no complaint was given immediately to the police. The learned counsel for the appellant contended that there is inordinate delay in giving the complaint. According to the prosecution, on 19.9.1987 at about 7.00 p.m. the occurrence took place. Admittedly, no complaint was given immediately to the police. It is necessary to state that the appellant had kicked the victim in his abdomen and when the victim fell down, P.W.1 lifted him to the home. When the victim complained of pain in the stomach, oil was applied. On the next day only when he vomited blood, he was taken to the hospital and later surgery was also performed. Notwithstanding that, the victim died in the hospital on 31.9.1987 at about 4.00 a.m. Only thereafter on 21.9.1987 at about 10.45. a.m. the complaint Ex.P-1 was given by P.W.1. 10. Prima facie it may appear that there is delay in giving the complaint. There is external injury on the body of the victim and he was aged about 8 years at the time of the incident. When the appellant caught hold of the tuft of P.W. 10 only, the victim intervened and he was kicked. P.W.1 must have been under the impression that there may not be any injury and because of that only, she also kept quiet without giving any complaint. Sometime prior to this, Selvaraj and his brother were also assaulted by the appellant and for which only, Selvaraj went to the police station for the purpose of giving a complaint. P.W.1 is a village woman and she had affixed her thumb impression in the complaint and it would only indicate that she did not think it necessary to give a complaint in the first instance, but only after the death, she was constrained to give the complaint. This occurrence had been witnessed by P.Ws.1 to 3 and P.Ws.10 and 11 also. There cannot be any dispute relating to the identity of the assailant. There is also electric light near the place of offence. Considering the fact that number of witnesses had seen the occurrence, we are of the view that the delay in giving the complaint about this incident, will not be fatal to the case of the prosecution. 11. The learned counsel next contended that there is conflicting version relating to the place of offence. Considering the fact that number of witnesses had seen the occurrence, we are of the view that the delay in giving the complaint about this incident, will not be fatal to the case of the prosecution. 11. The learned counsel next contended that there is conflicting version relating to the place of offence. No doubt some of the witnesses stated that the occurrence took place near the milk depot and some witnesses stated that the incident took place near the Radio Station. The distance between two places is not very much and. As such, it cannot be said as an inconsistent version relating to the place of offence. It is further stated that earlier complaint given by the prosecution has been suppressed. No doubt, Selvaraj and his brother went to the police station for the purpose of giving the complaint relating to the earlier occurrence and they were not aware of this occurrence. P.W.10 admitted that she went to the police Station, but she has not chosen to give any complaint. There is absolutely no record to show that any person prior to Ex.P-1 has given any complaint relating to this incident. 12. The learned counsel further contended that P.Ws.1 and 2 are interested persons and independent witnesses examined viz., P.Ws.5 to 7 turned hostile. Simply because P.Ws.1 and 2 are related to the deceased, their evidence cannot be brushed aside on that ground. It is a matter to be weighed with due care and caution. The evidence of P.W.1 is natural and convincing. There is no reason to implicate the appellant falsely leaving the real culprit. Apart from that, P.W.3 and P.W.11 independent witnesses also corroborated the testimony of P.W.1 Their evidence is also fully supported by the medical evidence. 13. The learned counsel contended that there is no evidence to show that the injury sustained by the deceased is sufficient in the ordinary course of nature to cause death. P.W.8 the doctor, who had first seen the victim stated that he conducted abdominal operation and noticed injury on the deodenum and in the thorax. He further stated that these injuries were sufficient to cause death in the case. In fact, Ex.P-4 case sheet has also been filed in the court. The doctor, further stated that the patient vomited blood only due to the injury in the intestine. He further stated that these injuries were sufficient to cause death in the case. In fact, Ex.P-4 case sheet has also been filed in the court. The doctor, further stated that the patient vomited blood only due to the injury in the intestine. The evidence of P.W.8 will be an answer to the contention of the learned counsel, P.W.9 the doctor, who conducted post moretem also categorically stated that the internal injuries could have been caused by a severe kick in the stomach. The evidence adduced by the prosecution also established that the appellant kicked on the abdomen of the boy with force. The learned counsel stated that by kicking in the abdomen, it may not cause any injury on thereax region. The age of the boy was only 8 years and considering his tender age, the bones in the body would be soft one and as the kick was very sevare in the stomach, naturally it would cause internal injury in the other portion also. In H.M.V. Cox Medical Jurisprudence and Toxicology, 6th Edition, it is stated as follows: “Kicking is particularly dangerous and ruptures of the liver, spleen, mesentery or intestine may occur. Severe or fatal internal haemorrhage may occur without any sign of injury on the abdominal well such as bruising or abrasion, especially if clothing overlies the area. A particular injury, sometimes seen in the ”battered chilled syndrome“ is a blow to the control abdomen which crushes the duodenum against the front of the spinal column. Sometimes transacting it almost as cleanly as if it was out by a scalpel”. When P.W.9 categorically stated that the internal injuries can be caused by a severe kick in the stomach, it only strengthened the case of the prosecution. 14. Lastly, the learned counsel for the appellant contended that there was absolutely no intention on the part of the appellant to cause the death of the victim and at best, the offence committed would come within the category of Sec.304(11), I.P.C. The learned counsel for the appellant relied on Hardev Bhanji Joshi v. State of Gujarat Hardev Bhanji Joshi v. State of Gujarat, 1992 S.C.C. (Crl.) 842 wherein it is observed that, “Intention to cause death or to cause that particular badly injury, which doctor found to be sufficient. In the ordinary course of nature to cause death being absent, clauses of Sec.300 not attracted and the offence would be one of cuppable homicide punishable under Sec.304, Part II as knowledge that death could be the likely result can be attributed to the accused.” 15. The learned counsel also relied on Karam Singh v. State of Punjab Karam Singh v. State of Punjab, 1993 Crl.L.J. 3673 wherein it is observed that absence of intention to cause death inferred from nature of weapon used on parts of body. Conviction from Sec.302 altered to Sec.304, Part II. The facts in that case disclosed that two blows were given on the chest by stick resulting into death. The doctor opined that the injuries could have ruptured spleen and liver which proved fatal. If there was absence of intention to cause death, naturally the offence would not fall under Sec.302, I.P.C. 16. It is clear from the prosecution that the appellant and another person were assaulting one Selvaraj and his brother. Subsequently, the appellant beat P.W.10 and caught hold of her tuft. It is only at this juncture, the boy intervened and he was kicked by the appellant in the abdomen. There could not have been any intention on the part of the appellant to cause death since he would not have thought that the boy would intervenes at the time of the incident. However, it is certain that the appellant being a person aged about 40 years and the victim being 8 years, naturally he should have got knowledge that his act is likely to cause death. Furthermore, the appellant kicked the boy only once. There was also delay on the part of P.W.1 in taking the injured to the hospital and he was admitted only on the next day. Although there was prior enmity between the parties, there is no evidence to come to the conclusion that there was any intention on the part of the appellant to cause the death of the boy, but there is evidence to come to the conclusion that the appellant has got knowledge that his act is likely to cause death and under the circumstances, we are of the view that the offence committed by the appellant would fall under Sec.304. Part II, I.P.C. 17. Part II, I.P.C. 17. In the result, the appeal is allowed in part and the conviction and sentence imposed on the appellant for the offence under Sec.302, I.P.C. are set aside and we find him guilty under Sec.304, Part II, I.P.C. and sentence him to suffer rigorous imprisonment for five years and the fine is confirmed. The appellant is directed to surrender before the trial court to undergo the remaining period of sentence. B.S.-----Appeal allowed in part.