JUDGMENT 1. - This appeal Under section 374(2) Cr.P.C. is directed against the judgment and order dated 29.11.1997 whereby the learned Special Judge SC/ST (Prevention of Atrocities) Cases/Addl. Sessions Judge, Sawai Madhopur, in sessions case No. 57/97 State of Rajasthan v. Shankar and another , convicted and sentenced the two appellants in the following manner. (1) Durga, appellant: U/s. 304 Pt.I IPC - RI for 10 years and fine of Rs. 5,000/-. U/s. 323 IPC - SI for one year and fine of Rs. 200/-. U/s. 341 IPC - SI for one month. (2) Shankar, appellant : U/s. 323 IPC - SI for one year and fine of Rs. 200/-. U/s. 341 IPC - SI for one month. 2. The substantive sentences of imprisonment of both the appellants were directed to run concurrently. 3. The relevant facts are these : Jhandu, the father of the appellants Durga and Shanker, Ram Prasad, the deceased and Ram Dayal, P.W. 5 residents of village Mukandpur under P/s Khandar and agriculturists by profession, were real brothers. They had their agricultural land just outside of the village. They used to cultivate their land separately. In the field of Ram prasad, deceased, there was a hut. Whereas the land in possession of Jhandu and Ram Prasad, deceased were quite adjoining to each other, land being cultivated by Ram Dayal, P.W. 5, lay on the other side of the hut. A well was also there at some distance from the hut. Jhandu, the father of the appellants and Ram Prasad, deceased, were married to two real sisters. Smt. Amri and P.W. 2 Ram Kanwari, respectively. It is alleged that Jhandu and Ram Prasad, deceased, had some dispute over the boundaries of their fields. Some villagers are stated to have settled down their such dispute by digging some stones on the intervening boundary of their respective fields. 4-5. On the fateful day, September 12, 1996, in this case, at about 9.00 a.m. Ram Prasad, deceased, his wife Smt. Ram Kanwari PW (2) and his son PW. 1 Rajender were working in their field wherein chilies had been grown, Jhandu, the present appellants, their mother Smt. Amri and other ladies Smt. Badam and Manju were working in their adjoining fields. Ram Dayal PW. 5 was also working at his field on the other side of the hut. PW. 1 Rajender were working in their field wherein chilies had been grown, Jhandu, the present appellants, their mother Smt. Amri and other ladies Smt. Badam and Manju were working in their adjoining fields. Ram Dayal PW. 5 was also working at his field on the other side of the hut. PW. 8 Kalyan, the brother-in-law of the deceased, Ram Prasad and Jhandu, their sister P.W. 9 Smt. Tulsa are also alleged to be there in the fields nearby or in the village. P.W. 7 Ram Swaroop, PW. 10 Shobhag are stated to be grazing their cattle in the fields nearby. P.W. 14 Shiv Lal and P.W. 11 Smt. Gulab are also stated to be there near about place of occurrence.6. It is in the above background that the prosecution case is that Jhandu and his sons uprooted the stones fixed on the boundary line of their adjoining fields, there extending their own field by about one or two feet. When the deceased noticed the uprooted stones he protested against such act of Jhandu. Jhandu started abusing the deceased and when the deceased protected against the abuses, being hurled at him by Jhandu, the appellants opened at attack upon the deceased with a wooden stick and a 'Kasia'. Both the appellants are stated to have struck the deceased on his head. When Smt. Ram Kanwari tried to intervene, she was also given a stick blow by Durga, appellant. When P.W. 1 Ram Prasad tried to save his parents, he was caught hold of by the two appellants and thrown into the well. The hue and cry raised by Smt. Ram Kanwari and P.W. 1 Rajendra attracted Ram Dayal, Rameshwar, Kalyan, Smt. Tulsa, Sheobhag, Smt. Gulab and P.W. 14 Shiv Lal, aforementioned to the spot. The daughter of the deceased informed the village Surpanch Ghanshyam P.W. 3 and the village Patwari PW. 7 Om Prakash, who alongwith Jansi, P.W. 4, reached the place of occurrence. They found the deceased in unconscious condition with injury on his head. They noticed that P.W. 1 Rajendra was sitting on a "patra" or iron rod in the well. PW. 4 Jansi managed to take Rajendra P.W. 1 out of the well. Thereafter the witnesses took the injured Ram Prasad to the hospital at Khandar but the Doctor there advised them to take him to the hospital at Sawai Madhopur. They noticed that P.W. 1 Rajendra was sitting on a "patra" or iron rod in the well. PW. 4 Jansi managed to take Rajendra P.W. 1 out of the well. Thereafter the witnesses took the injured Ram Prasad to the hospital at Khandar but the Doctor there advised them to take him to the hospital at Sawai Madhopur. Ram Prasad (deceased) was then taken to the hospital at Sawai Madhopur where the Doctor advised them to take him to the SMS Hospital at Jaipur. Ram prasad (deceased) was then taken to the SMS Hospital, Jaipur, and was admitted in Surgical Ward No. 1 for the treatment Of head injury. He however succumbed to his injuries on 18.9.96. The Medical Jurist at the hospital informed the police authorities at P/s. Moti Dungari, Jaipur, of the death of the deceased. On instructions from his superior officers at the said police station, P.W. 13 Mali Ram, Head Constable, at Police Chowki, stationed in the Hospital premises, commenced proceedings Under section 174 Cr.P.C. and got the postmortem examination on his dead body by P.W. 16 Dr. Ashok Kumar. Dr. Ashok Kumar noted the following injuries on the person of Ram Prasad, deceased : 1- flj ds mij [kjksap 2x 1/2 ls0eh0 cka;s iSjkbVy jhtu ij] blds uhps lc&Ldsy fgesVksek FkkA Ldy & blesa vkDlhihVy cwu dk 10 ls0eh0 yEck QzsDpj FkkA czsu dh f>fYy;ksa esa lcM~;wjy vkSj lc ,jsDlksbZM fgeVksek FkkA czsu esa ,fMek Fkk vkSj bldh lrg ij uhyxw fu'kku Fkk] tks jkbZV iSjkbZVy ,sfj;k ij ekStwn FkkA jkbZVy QzUVy yksx dqpyk gqvk FkkA 2- vU; pksVsa& [kjksap 1x1 ls0eh0 lh/kh dykbZ ds ihNs o ckgj dh rjQ 2- [kjksap 2x1 lh/kh dksguh ds ihNs dh rjQ 3- [kjksap 1x1 ls0eh0 Vd.ks ds ckgj dh rjQ] nkfgus ijA 4- jxM+ 3x1 ls0eh0 Vd.ks ds ihNs ck;sa Vd.ksa ij] 5- jxM+ 2x 1/2 ls0eh0 nk;sa Vd.ks ds ihNs dh rjQA 7. Dr. Ashok Kumar opined that the death of the deceased had been caused by coma resulting from the ante mortem head injuries including brain injury and that such injury was sufficient in ordinary course of nature to cause death. After conducting the post mortem examination the dead body of the deceased was handed over to his son Rajendra, PW. 1 for cremation.8. The deceased was cremated in the village on 18.9.1996. After conducting the post mortem examination the dead body of the deceased was handed over to his son Rajendra, PW. 1 for cremation.8. The deceased was cremated in the village on 18.9.1996. Thereafter his son Rajendra P.W. 1 took his ashes to the river Ganga to drop the same there as per religious tenets and directions.9. After returning to the village P.W. 1 Rajendra lodged the FIR in the present case (Ex.R1) on 25.9.1996. P.W. 15 Dharam Veer Singh, the then SHO PS, Khadar, registered a case Under sections 302, 307, 447, 341, 323 and 147 IPC against Jhandu, Shankar (appellant), Durga (appellant) Smt. Amri, Smt. Badam and Manju and started investigation. In the course of investigation Dharamveer Singh, SHO arrested the present appellants on 28.10.1996. A wooden stick was allegedly recovered from the chilly field of Shankar appellant, at the instance of Durga, appellant, a 'kasia' is stated to have been also recovered from a 'tibari' in possession of Shankar appellant, at his instance. After having completed the investigation the present appellants only were charge-sheeted in the court of the concerned Magistrate.10. At the trial the learned trial Judge charged both the appellants with offences Under sections 302 r.w. Section 34, 323 and 341 r.w. Section 34 IPC. Both the appellants pleaded not guilty to the charges framed against them. The plea taken by them in their defence was of denial simplicitor. The learned trial Judge held both the appellants guilty and convicted and sentenced them in the manner stated above vide his judgment and order under challenge in this appeal.11. Mr. Biri Singh, the learned counsel for the appellants, mainly stressed that the FIR lodged in this case was unduly delayed, that the witnesses were interested, untrustworthy and unreliable, that their testimony suffers from material contradiction on various points, that the prosecution put up two conflicting versions of the incident as also of lodging the reports and getting the deceased medically examined. It was thus submitted that looking to the inordinate delay, caused in lodging the FIR, and the highly interested testimony of the witnesses it was not proper to hold the present appellants guilty of any offence whatsoever. In support of such arguments the leanred counsel relied upon the cases of Nain Singh & Anr. v. State of UP 1991 (Cr.) 420 . In support of such arguments the leanred counsel relied upon the cases of Nain Singh & Anr. v. State of UP 1991 (Cr.) 420 . Har Chand Singh v. State of Haryana 1973 SCC (Cr.) 962 , Diwakar Nilkante Hegde v. State of Karnataka 1996 VAD SC 774 , Ayub Singh v. State of Haryana JT 1992(1) SC 1 , Deen Dayal v. Raj Kumar @ Raju & Ors. JT 1998(2) SC 534 , Tulia Kar v. State of Tamil Nadu AIR 1973 SC 501 .12. On the other hand, the learned Public Prosecutor, supporting the impugned judgment and order, submitted that Rajendra P.W. 1 was the only major male member in the family of the deceased and since he remained busy with the treatment of the deceased and after the death of the deceased with the performance of last rituals, connected with his death, the delay in lodging the FIR was caused. It was submitted that looking to the fact that the parties to this unfortunate incident were close kith and kins and their relatives had also gathered, it was but natural that some delay would be caused in lodging the FIR. The learned Public Prosecutor further submitted that although promptness in lodging the FIR is indicative of the spontaneity of a truthful version but in the facts and circumstances of the instant case the delay caused in lodging the FIR should be read as having been satisfactorily explained, in the totality of all the circumstances. He added that the appellants and the deceased had their fields quite adjoining to each other and, therefore, an incident of the nature, as was alleged by the prosecution, could have naturally taken place and in such incident the appellants, on being enraged by the abuses hurled by the deceased at their father and mother, could have opened the assault on the deceased. The learned Public Prosecutor further submitted that the conduct of the prosecution witnesses in immediately removing the injured Ram Prasad to various hospitals clearly suggests that criminal force had been used against the deceased by the present appellants and they had caused fatal injuries to him. It was also submitted that the entire prosecution case should not be thrown outright without properly appreciating the evidence of the prosecution witnesses, which is duly supported by the facts and circumstances attending on the commission of the offence against the deceased.13. It was also submitted that the entire prosecution case should not be thrown outright without properly appreciating the evidence of the prosecution witnesses, which is duly supported by the facts and circumstances attending on the commission of the offence against the deceased.13. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties before me. I have also very carefully examined the evidence as was brought on the record of the learned lower court.14. It is an undisputed fact that the FIR in the present case was lodged with inordinate delay. The incident, wherein Ram Prasad, deceased, had sustained a head injury, had taken place on 12.9.1996 but the FIR was lodges as late as on 25.9.1996. The learned counsel for the appellants has rightly pointedout that the witnesses had sufficient time to lodge the FIR at an early point of time. The deceased had first been taken to a hospital at Khandar. The hospital and the police station at Khandar are located in adjoining premises. P.W. 1 Rajendra or any other person, including the village surpanch, could have lodged the FIR of the incident on 12.9.1996 itself when the deceased had been taken to the hospital at Khandar. But no such report was lodged there. The deceased was then removed to the hospital at Sawai Madhopur. The prosecution witnesses could have informed the police there of the unfortunate incident. Again, that was not done. Then the deceased was got admitted in the Surgical Ward of SMS Hospital at Jaipur. In the premises of SMS Hospital, Jaipur, a police chowki was located and the witnesses could have very well informed the police officers at that police chowki, of the incident. But that was also not done. The deceased died on 18.9.1996. On that day also FIR could have been lodged either at Jaipur or at P/s. Khandar. But that was not also done. The FIR (Ex.P1) was lodged by P.W. 1 Rajendra after his returning from the river Ganga after dropping the ashes of his father therein. It is thus clear that despite having opportunity to lodge a FIR in the present case, the prosecution witnesses do not appear to have thought of lodging any FIR in the matter before 25.9.1996.15. The FIR (Ex.P1) was lodged by P.W. 1 Rajendra after his returning from the river Ganga after dropping the ashes of his father therein. It is thus clear that despite having opportunity to lodge a FIR in the present case, the prosecution witnesses do not appear to have thought of lodging any FIR in the matter before 25.9.1996.15. The pertinent question that, however, arises for consideration of this court is whether inordinate delay in lodging the FIR in the present case should by itself be held sufficient to destory the entire prosecution theory and the appellants be acquitted on the sole ground of the delay FIR.16. A FIR in a criminal case is undoubtedly an un-extremely vital and valuable piece of evidence for the purposes of corroborating the oral evidence at the trial. The importance of the FIR in a criminal case can, therefore, not be over looked. It is always desirable that the FIR of the incident should be promptly lodged with the police so as to save the prosecution case from any sort of embellishment, which may be a creature of after thought. A delayed FIR gets bereft of the advantage of spontaneity, which makes a characteristic of truthful version. Delayed FIR may admit coloured version, exaggerated accounts or even concocted story as a result of deliberation and concentration. It is, therefore, essential that the delay in lodging the FIR should be satisfactorily explained.17. In the instant case the FIR was undoubtedly lodged with delay. But it cannot be dismissed without looking into the merits in the explanation offered by the prosecution in lodging the FIR. The explanation offered is that P.W. 1 Rajendra was the only adult member in the family of the deceased and he remained busy in looking after his dying father. It is seen that almost all the kith and kins of the deceased, including his brother-in-law Kalyan P.W. 8, his sister Smt. Tulsa and other villagers, had turned hostile at the trial of the appellants. That may be for the reason that the unfortunate incident had taken place between the families of two real brothers, who incidentally, ware married with two real sisters also. That may be for the reason that the unfortunate incident had taken place between the families of two real brothers, who incidentally, ware married with two real sisters also. Under such circumstances the kith and kins of the deceased as well as the common relatives of the parties would have naturally thought of not reporting the incident to the police in order to save both the families the members of the family of the deceased and the agonising and repentant family of the appellants, from entering into criminal litigation. The conduct of even the close common relations of the deceased in turning hostile to the prosecution case may reasonably suggest that PW. 1 Rajendra must have been advised to forebear the irreparable loss of the life of his father in the larger interest of the two families and .to pay his attention to his injured father rather than to the reporting of the matter to the police. These are the facts attending upon the lodging of the FiR in this case with inordinate delay. I am of the opinion that all these facts may be taken info consideration in appreciating the prosecution evidence which if found reliable and incriminating against the present appellants, should not be thrown over board on the sole ground of inordinate delay committed in lodging the FIR.18. At the trial of the appellants the prosecution had examined as many as 16 witnesses in all. P.W. 1 Rajendra and P.W. 2 Smt. Ram Kanwari are the son and wife of the deceased respectively. P.W. 5 Ram Dayal is the brother of the deceased. These three witnesses have not turned hostile and have supported the prosecution case. P.W. 6 Ramswaroop, P.W. 8 Kalyan, P.W. ' Smt. Tulsa, PW. 10 Sheobhag, P.W. 11 Gulab and P.W. 14 Shivlal, who appear to have been examined as eye witnessed have turned hostile and have not supported the prosecution case to the extent it was placed before the court. P.W. 3 Ghanshyam and P.W. 7 Om Prakash are the village Surpanch and village Patwari respectively. They alongwith P.W. 4 Jansi had reached the place of occurrence on receiving information of the violent incident at the field of the deceased. I shall examine their evidence alongwith the evidence of other witnesses. P.W. 12 Dr. S.N. Saxena had examined P.W. 2 Smt. Ram Kanwari on 26.9.1996 and P.W. 16 Dr. They alongwith P.W. 4 Jansi had reached the place of occurrence on receiving information of the violent incident at the field of the deceased. I shall examine their evidence alongwith the evidence of other witnesses. P.W. 12 Dr. S.N. Saxena had examined P.W. 2 Smt. Ram Kanwari on 26.9.1996 and P.W. 16 Dr. Ashok Kumar had conducted post mortem examination on the dead body of the deceased on 18.9.1996. The evidence of these two witnesses is of corroborative value and that shall also be examined in order to find out the element of truth in the statements of P.W. 1 Rajendra and P.W. 2 Smt. Ram Kanwari. P.W. 13 Mali Ram is the Head Constable, posted at that time as incharge of the police Chowki in the premises of SMS Hospital, Jaipur, and had prepared 'panchnama' of the deceased. P.W. 15 Dharamveer Singh is the Investigating Officer in the case.19. P.W. 1 Rajendra and P.W. 2 Smt. Ram Kanwari have stated in detail the facts narrated above. Their version is to the effect that the 'pathar ghadi' made in the presence of five villagers, had been removed by the appellants and their father thus thereby extending the area of their field and when the deceased protested against such act done by the father of the appellants. Durga appellant with a stick reached the field of the deceased and struck a blow with the said stick on his head. Their version further is that when Smt. Ram Kanwari tried to save her husband. Durga appellant struck her also with a stick and when P.W. 1 Rajendra tried to save his parents, both the appellants caught hold of him and threw him into the well. Both these witnesses are very closely related to the deceased and therefore, it would be unsafe to accept their testimony as it is. If their testimony is found supported by other independent evidence on record, then of course it may be accepted to the extent it is supported by such other evidence.20. P.W. 5 Ram Dayal is the brother of the deceased and is not a hostile witness. He has stated that on the unfortunate day he was working in his field and at that time both the sisters, i.e. the wife of the deceased and the wife of Jhandu had started abusing each other. The deceased also started abusing the appellants' father. He has stated that on the unfortunate day he was working in his field and at that time both the sisters, i.e. the wife of the deceased and the wife of Jhandu had started abusing each other. The deceased also started abusing the appellants' father. Durga appellant, who was working in his field, went to the deceased and asked him not to abuse his father. But Ram Prasad, deceased, again hurld abuses at appellants' family. Thereupon Durga, appellant, picked up a stick from the hut and gave a blow thereof on the head of the deceased. The witness has added that Durga appellant had given only one blow on the head of the deceased. He further added that Durga appellant had also struck a blow on the neck of Smt. Ram Kanwari as also to Rajendra. Smt. Ram Kanwri tried to throw herself into the well and when P.W. 1 Rajendra tried to save her, he fell down in the well. It is evident that this witness is equally related to the deceased as well as to the appellants. Since it is the case of the prosecution that the 'patthar ghadi' had been removed by the father of the appellants, two sisters one of whom was the wife of the deceased and the other of Jhandu, could have indulged themselves into exchange of abuses at each other. The deceased too could have felt annoyed at the removal of "patthar ghadi" which resulted in reducing the area of the field and thus could have joined his wife Smt. Ram Kanwari in hurling abuses at Jhandu. His abuses could have enraged the present appellants. Thus the testimony of this witness, in my opinion, carries an element of truth in it.21. P.W. 6 Ramshwaroop is another witness who was grazing his she buffalos in the adjoining fields. He has also stated that in the beginning the ladies on the two sides had started quarreling with each other and Jhandu's wife Smt. Amri had hurld abuses at P.W. 2 Ram Kanwari. He further stated that the deceased and Durga had also indulged in exchanging abuses at each other and it was in the course of exchange of such hot words that Durga appellant took out a lathi from the 'tapri' and struck a blow on the head of the deceased with the same. He further stated that the deceased and Durga had also indulged in exchanging abuses at each other and it was in the course of exchange of such hot words that Durga appellant took out a lathi from the 'tapri' and struck a blow on the head of the deceased with the same. He further stated that Durga, appellant, struck a blow on the head of Smt. Ram Kanwari also. The witness further stated that Shankar, appellant, also reached there with a "kasia" and at that point of time the witnesses stated, he busied himself in driving his she buffalos out of the field and did not see the incident further and went to the well. The witness further stated that Rajendra had been taken out of the well by Ghanshyam, Sarpanch, Om Prakash, Patwari and Shobhagmal. This witness has told the presence of both the appellants, though he did not state that Shankar appellant had also caused injuries to any of the prosecution witnesses or the deceased.22. P.W. 3 Ghanshyam is the village Sarpanch and P.W. 7 Om Prakash is the village Patwari. Their testimony is to the effect that on being informed by a girl from the family of Ram Prasad deceased, they had gone to the field of the parties and there they were told that when Smt. Ram Kanwari had tried to throw herself into the well P.W. 1 Rajendra, in order to restrain her from doing that, happened to throw himself into the well. The boy was taken out of the well by the witnesses. These witnesses further stated that Durga appellant was very much there and that the daughter of Ram Prasad had stated to them that Durga, appellant, had struck a blow on the head of her father.23. P.W. 4 Jansi, the another witness, has spoken almost in the same language. He had taken P.W. 1 Rajendra out of the well.24. Out of the above mentioned three witnesses P.W. 7 Om Prakash Patwari has been declared hostile, though he had also supported the above version as was given by the other two witnesses. The village Sarpanch and Jansi are not found inimical to the appellant or friendly with the deceased. He had taken P.W. 1 Rajendra out of the well.24. Out of the above mentioned three witnesses P.W. 7 Om Prakash Patwari has been declared hostile, though he had also supported the above version as was given by the other two witnesses. The village Sarpanch and Jansi are not found inimical to the appellant or friendly with the deceased. Their testimony to the effect that Ram Prasad's daughter had told them that Durga, appellant, had struck a lathi blow on the head of her father and that on going to the spot they had found the deceased in unconscious state and Smt. Ram Kanwari, having a bleeding injury, is required to be accepted.25. P.W. 8 Kalyan, P.W. 9 Tulsa, PW. 10 Shobhagmal, P.W. 11 Gulab and P.W. 14 Shivlal, the remaining witnesses of the incident, have turned hostile and have not supported the prosecution case at all.26. It is thus seen that whereas PW. 1 Rajendra and his mother P.W. 2 Smt. Ram Kanwari appear to be exaggerating the facts of the case, P.W. 5 Ram Dayal, P.W. 6 Ramswaroop are found to be stating the true facts. Considering the testimony of these two witnesses and reading the same with the testimony of P.W. 3 Ghanshyam, Sarpanch, his brother P.W. 4 Jansi and the village Patwari P.W. 7 Om Prakash, it stands proved that the deceased had hurld abuses at the father of the appellants and on being so provoked, Durga appellant only had opened an attack with a stick on Ram Prasad, deceased.27. Whereas the witnesses are quite unanimous and firm on the point that Durga appellant had struck a blow on the head of the deceased with a stick, the evidence on the point of Durga appellant causing a blow with the stick to Smt. Ram Kanwari and/or to Rajendra Singh, is not very clear and specific. Again the witnesses have not supported the version of Rajendra and his mother Smt. Ramkanwari that the two appellants had caught hold of Rajendra and thrown him into the well.28. On an appreciation of the direct evidence in the manner stated above, I am satisfied that the prosecution had succeeded in proving that on being provoked by the abuses hurld by the deceased at the father of the appellants, Durga appellant had struck one stick blow on the head of the deceased. On an appreciation of the direct evidence in the manner stated above, I am satisfied that the prosecution had succeeded in proving that on being provoked by the abuses hurld by the deceased at the father of the appellants, Durga appellant had struck one stick blow on the head of the deceased. This conclusion is also supported by the testimony of P.W. 16 Dr. Ashok Kumar, who has stated that on conducting the post motem examination of the deceased on 18.9.1996, he had noted one injury only on his person. The other injuries, as mentioned in the post-mortem examination' report were the consequence of the said single injury.29. It is true that injuries of the deceased might have been observed by the Doctors at Khandar, Sawai Madhopur and SMS Hospitals at Jaipur, it may be possible that at one place or the other same notes of the injuries, found on the person of the deceased, might have been taken by the Doctors. But in view of the fact that after having sustained the injury on his head, Ram Prasad deceased had remained in un-conscious state his kith and kins as also other persons attending on him, including the Doctors, might have thought it proper to treat the injured for his injuries first, lapse on their part in not preparing the injury reports at the relevant time does not destroy the entire direct evidence on the point totally particularly in view of the testimony of PW. 16 Dr. Ashok Kumar, who had found the fatal injuries on the head of the deceased. Therefore, in my opinion, the testimony of P.W. 16 Dr. Ashok Kumar corroborates the direct evidence on the point that the deceased had been caused one injury with a blunt weapon on his head. The direct evidence has proved that the said one injury had been caused to him by Durga, appellant.30. Though P.W. 12 Dr. S.N. Saxena stated that on examining the person of Smt. Ram Kanwari on 26.9.1996 he had found an injury on her person yet, for the reasons stated above, it is not safe to hold either of the two appellants responsible for causing that injury to Smt. Ram Kanwari.31. Though P.W. 12 Dr. S.N. Saxena stated that on examining the person of Smt. Ram Kanwari on 26.9.1996 he had found an injury on her person yet, for the reasons stated above, it is not safe to hold either of the two appellants responsible for causing that injury to Smt. Ram Kanwari.31. The evidence of the independent witnesses, namely Ghanshyam, the village Surpanch, Jansi, Ram Swaroop and Om Prakash Patwari, does not support the prosecution case that P.W. 1 Rajendra was wrongfully restrained by either of the appellants and was thrown into the well. Participation by Shankar appellant in the incident is not proved beyond reasonable doubt.32. Each case has to be judged and examined on its facts. In appreciating the facts of the present case I have considered the ratio deci-den-di of the cases relied upon by the learned counsel for the appellants.33. For the reasons stated above, I am satisfied that the prosecution had succeeded in proving the offence of culpable homicide not amounting to murder against Durga appellant only. He as well as Shankar appellant are entitled to benefit of doubt in respect to the charges Under sections 323 and 341 IPC. They are accordingly acquitted of those charges.34. For the offence committed in the act of causing fatal injury to Ram Prasad, deceased, by Durga appellant I am of the opinion that the deceased had provoked Durga appellant by hurling abuses at his mother and father. Durga, appellant, was working in his field and in the heat of passion he had picked up a wooden stick from a hut and blowed the same once only, incidentally, on the head of the deceased. In my opinion Durga, appellant did not intend either to cause the death of Ram Prasad, deceased, or to cause him that particular injury intentionally. It was all in the heat of passion that he blowed his stick once and that fell upon the head of the deceased and proved fatal. But striking the deceased by him with a wooden stick in those heated moments in that way must have given him the knowledge of the likely consequences of his act. The said injury, as stated by the Doctor, was sufficient to cause death in ordinary course of nature and did cause his death. But striking the deceased by him with a wooden stick in those heated moments in that way must have given him the knowledge of the likely consequences of his act. The said injury, as stated by the Doctor, was sufficient to cause death in ordinary course of nature and did cause his death. On such facts I am inclined to take the view that the second part of the offence, defined in Section 304 IPC stands attracted to the facts and circumstances of the present case. Durga, appellant, is therefore, found guilty of having committed the offence Under section 304 Pt. II IPC. His conviction is, therefore, altered from Under section 304 Pt. I IPC to that Under section 304 Pt. II IPC.35. In the result this appeal succeeds partly. Whereas both the appellants are acquitted of the offences Under section 323 and 341 IPC and their conviction and sentences for that offences are hereby set-aside. Durga appellant is convicted Under section 304 Pt. II IPC and is sentenced to three years RI and also to a fine of Rs. 10,000/- or in case of default of payment of fine to further undergo RI for one year. The amount of fine, if realised, shall be paid to P.W. 1 Rajendra and P.W. 2 Ram Kanwari, the son and wife of the deceased respectively, in equal portion. The judgment and order under appeal in respect of Durga appellant would stand modified accordingly.36. Shankar appellant is reported to be released on bail. His bail bonds are cancelled.37. The appeal stands partly allowed.Appeal Partly Allowed. *******