JUDGMENT : P.K. Mohanty, J. - This is an appeal against the order of conviction u/s 302/34, I.P.C. and sentence of life imprisonment passed by the learned sessions Judge, Phulbani in Sessions Trial No. 63 of 1993. 2. The prosecution case in short is that on 24.3.1992, deceased Brundaban Naik of village Gerupada offered to sell one Radib-cum-tape recorded to accused Dilip for a consideration of Rs. 600/- and accused Dillip having agreed to purchase the same kept it on the condition that the deceased would give the cash memo in respect of its purchase by 25.3.1992. On 25.3.1992 at about 1.00 P.M.. deceased brundaban came to the house of the accused persons who are brothers and asked accused Dillip to return his Radio-cum- Tape recorder, but it was refused. Accused Dillip threatened the deceased to report against him since according to him, the Tape-recorder was a stolen one. The deceased having insisted for return of the Radio-cum-recorder, both the accused persons tied him with a rope to an electric pole and assaulted him by means of lathi, web belt, kicks and fist blows. The further allegations was that the accused persons shaved his hair from the head and a portion of his moustache and due to the assault, blood were coming out of the nostrils end from his eyes and he ultimately succumbed to the injuries. F.I.R. was lodged by P.W. 1 Baman Naik at 10.30 P.M. on the date of occurrence, where after the O.I.C. of Phiringia Police Station (P.W. I) took up investigation, visited the spot, examine the witnesses, sent the dead body to the District Headquarters Hospital, Phulbani for autopen, seized the material objects and finding a prima facie case, on completion of the investigation, and filed the charge-sheet. 3. The accused-appellants' plea was one of complete denial and that since the Harijan people of that locality do not pull on well with them, a false case has been foisted. 4. The prosecution examined sine witnesses in support of its case, of whom Baman Naik-P.W. I am the informant, P. Ws. 2, 4, 5 and 1 are the eye-witnesses to the occurrence, P.W. 6 is a seizure witness, P.W. 7 is the doctor, who conducted autopen on the dead body of the deceased and P.W. 9 is the Investigating Officer. 4. The prosecution examined sine witnesses in support of its case, of whom Baman Naik-P.W. I am the informant, P. Ws. 2, 4, 5 and 1 are the eye-witnesses to the occurrence, P.W. 6 is a seizure witness, P.W. 7 is the doctor, who conducted autopen on the dead body of the deceased and P.W. 9 is the Investigating Officer. The learned Sessions Judge, relying on the prosecution evidence, has recorded a finding of guilt against the accused-appellants and convicted them u/s 302/34, I.P.C. and sentenced to undergo rigorous imprisonment for life and u/s 342/34, I.P.C. a sentence of two months rigorous imprisonment. 5. Learned Counsel for the Appellants assails the order of conviction and sentence mainly on the grounds; (a) that the F.I.R. (Ext. 17) is a manipulated and manufactured one and the original F.I.R. has been suppressed by the prosecution and therefore, the prosecution case should be disbelieved, (b) the learned Sessions Judge, could not have relied on the evidence of child witnesses, P. Ws. 2 and 4, their competence and power of understanding having not been tested,by the trial Court before recording their evidence, inasmuch as the evidence of child witnesses ought to have been examined with care and caution, since inherently, that is a weak piece of evidence, (c) the I.C. having admitted not to have forwarded the statements of witnesses recorded u/s 161 Code of Criminal Procedure to the Court till accused persons were forwarded, it is apparent that the statements were not in existence till then, but manufactured consequently to suite the prosecution case. 6. Now let us examine the first submission of the learned Counsel as to whether the prosecution is guilty of suppression of the first F.I.R. and on that score the prosecution case has to be viewed with suspicion and is to be discarded. According to the learned Counsel, P.W. I in his evidence has stated that he had lodged the F.I.R. at the Piliringia Police Station at 10.30 P.M. of 25.3.1992 but the Investigating Officer (P.W. 9) in his evidence has stated that P.W. 1 came to the Police Station and made an oral report at 5.30 P.M., which he reduced to writing and that F.I.R. is Ext. 17 and thus, in view of such statement of the Investigating Officer, the F.I.R. lodged at 5.30 P.M. has been suppressed. The Investigating Officer has proved the F.I.R. marked Ext. 17 and thus, in view of such statement of the Investigating Officer, the F.I.R. lodged at 5.30 P.M. has been suppressed. The Investigating Officer has proved the F.I.R. marked Ext. 17, which itself indicated that the time of lodging was 10.30 P.M. of 25.3.1992. P.W. I have categorically stated that he orally reported the matter at the Police Station at 10.30 P.M., which was reduced to writing by the Investigating Officer and he put his L.T.I. on it. The Investigating Officer (P.W. 9) has proved the F.I.R. marked Ext. 17 and thus, the statement that the F.I.R. was lodged at 5.30 P.M. appears to be an inadvertent mistake. It appears from the cross-examination that no suggestion has been put to P.W. 9 that the F.I.R. (Ext. 17) is a manipulated or manufactured one. There is nothing on record to suggest that the F.I.R. was lodged at 5.30 P.M., contrary to the date and time mentioned in the body of Ext. 17, inasmuch as, P.W. 1 the informant has categorically stated that the assault on the deceased continued till 5.00 P.M. of the occurrence date and after the deceased Brundaban succumbed to death, he came with some others to the Police Station to lodge the report at the Police Station at about 10.0 P.M. The F.I.R. disclosed that the Police Station is situated at a distance of 13 K. Ms. from the place of occurrence inasmuch as it was a hilly track in the district of Phulbani. In that view of the matter, the contention of the learned Counsel that the F.I.R. (Ext. 17) is not the original F.I.R. which was lodged at 5.30 P.M. is to be rejected being without may foundation. 7. The next contention of the learned Counsel is that the delay in dispatching the F.I.R. and the statements of the witnesses by the Investigating Officer to the Court casts a doubt to the prosecution case. According to the Investigating Officer (P.W. 9), he registered P.S. case No. 18 of 1992 and took up investigation on the very day of lodging of the F.I.R., went to the spot, examined some witnesses and deployed a constable to guard the spot. On 26.3.1992 he held inquest over the dead body at the spot near the house of the accused persons, prepared the inquest report (Ext. On 26.3.1992 he held inquest over the dead body at the spot near the house of the accused persons, prepared the inquest report (Ext. 5) and sent the dead body of deceased Brundaban to the district Headquarters Hospital, Phulbani for postmortem examination. The Investigating Officer arrested both the accused persons Dillip Kumar Pradhan and Sisir Kumar Pradhan on 26.3.1992 at 11.00 A.M. and he seized the tape-recorder, the rope on production by accused Dillip. At 12.30 P.M., accused Sisir gave recovery of the belt (M.O. II) kept inside a box in his living room which was seized by the Investigating Officer. The Investigating Officer, in his cross-examination stated that he forwarded the accused persons to the Court on 27.3.1992. The endorsement in F.I.R. (Ext. 17) itself discloses that it was dispatched from the Police Station to the Magistrate on 26.3.1992 inasmuch as there is an endorsement of the learned S.D.J.M. to have seen the said F.I.R. on 27.3.1992. Thus, the F.I.R. was lodged at 10.30 P.M. of 25.3.1992 in the Police Station, the Investigating Officer started investigation soon thereafter, started for the spot at a distance of 13 K. Ms. in a hilly track from the Police Station, continued the investigation on the next day also and therefore, if the F.I.R. has been dispatched to the learned Magistrate on 26.3.1992 and received.by the learned Magistrate on 27.3.1992, no exception can be taken to that Law is,well settled that the delay in dispatch of the F.I.R. is riot a circumstances which can throw the prosecution case in its infinity. In the instant case, the prosecution has given a reasonable explanation which is the facts and circumstances of the case are acceptable. The Apex Court in Sarwan Singh and Others Vs. State of Punjab, held that the delay in dispatch of the F.I.R. itself is no ground to throw out the prosecution case in its entirety. The Apex Court in Pala Singh and Another Vs. State of Punjab observed that when the F.I.R. was actually recorded without delay and the investigation was started on the basis of that F.I.R. and there is no other infirmity brought to the notice of the Court, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that the investigation is tainted and the prosecution in supportable. The observation of the Apex Court is squarely applicable to the case at hand. The defense has not even put any suggestion to the Investigating Officer that he had not forwarded the F.I.R. to the Magistrate at the earliest but it was suggested that only two witnesses were examined till the accused persons were forwarded to the Court on 27.3.1992 and that statement of Mansi Digal was sent to the S.D.J.M., Phulbani along with the forwarding report. In that view of the matter, the contention of the learned Counsel has to be rejected. 8. Learned Counsel for the Appellants then contended that the statement of the child witnesses; P.W. 2-Sapua Digal, P.W. 3 Banabasi Naik and P.W. 4-Radhakata Naik, who are of 12 years of age, ought not to have been accepted by the learned trial Court since these witnesses were not tested as to their capacity of understanding by the learned Sessions Judge. It is the further contention that any view of the matter, the evidence of child witnesses are to be viewed with care and caution and viewed in such situation, their evidence ought to have been rejected. Learned Sessions Judge, while considering the evidence of P. Ws. 2 and 4, has observed that even P. Ws. 2 and 4 were aged about 12 years still then they were matured enough to understand the effect of their evidence and only because, they are ten years, their evidence cannot be brushed aside altogether. P. Ws. 2 and 4 are eye-witnesses, who have seen a part of the entire occurrence. According to P.W. 2, at about 2.00 P.M., while he was coming to his school at Gerupada after taking lunch in his house, he saw accused Dillip Kumar Pradhan, poking the deceased with a Medha while accused Sisir Kumar Pradhan tied the deceased with a rope in the electric pole and assaulted him with a belt. Accused Dillip Pradhan was poking the deceased with a Medha and accused Sisir also forcibly tied to administer night soil etc. and when he came back after attending the school at 4.00 P.M., he saw the assault on the deceased by both the accused persons still continuing. Accused Sisir was giving kicks with the boots he was putting on and was also inflicting fist blows. and when he came back after attending the school at 4.00 P.M., he saw the assault on the deceased by both the accused persons still continuing. Accused Sisir was giving kicks with the boots he was putting on and was also inflicting fist blows. The deceased succumbed to the injuries at 5.00 P.M. According to him, the deceased was tied to the electric pole while he was being assaulted. Nothing substantial has been elucidated from the cross-examination of the witness. It is emphatically submitted that this witness has not disclosed anybody in the school or he after reaching at his house and therefore, his evidence is not to be given credence. But in the cross-examination, it was brought out from this witness that after closure of the school, when he returned to home, a disclosed the incident to his relatives, father, sister, uncle etc. P.W. 3, another child witness has become hostile, but however, he has testified that he saw the deceased Brundaban standing near the house of the accused persons and while he was coming back from the school, he saw the deceased was tied to an electric pole and he found him dead. P.W. 5 is an independent witness and he has corroborated the statement with regard to material particulars and nothing material has been brought out on cross-examination. P.W. I is the informant, who saw the incident while passing thorough the place of occurrence on a truck in its Dala and after reaching home, he came back and saw the later part of the incident. Law is well-settled that child witness, if stands the test of truth, can be relied on. The evidence of a child witness has to be considered with care and caution. There is no requirement of law that the witness has to be first tested about his understanding before his statement is recorded. This Court in The State Vs. Bhima Patra, has held that if a child witness has been examined and cross-examined and his statement is consistent and not flattering would itself go to show that the witness is capable of understanding the implication of his statement and therefore the very fact that he has been examined by the Court, would lead to the presumption of his statements made in the Court as a witness. In that view of the matter, the contention of the learned Counsel for the Appellant has to be rejected on that score. 9. Learned Counsel for the Appellant then contended that in the facts and circumstances of the case and the special background and in view of the fact that the accused-appellants have not used any deadly weapon to assault the deceased, they had no intention to kill the deceased Brundaban and as such, in absence of such intention, the offence, if any, would come under the exception of Section 300, I.P.C. and the offence committed would be u/s 304, Part I, and not 302, I.P.C. It is the contention of the learned Counsel that the admitted prosecution case is that the accused persons were assaulting the deceased by a belt on a Medha inasmuch as there is no evidence that the accused persons were giving blows with the Medha, rather it is the specific evidence of the eyewitnesses that the Medha was used only to poke the deceased. It is further submitted that the injuries found on the body of the deceased, the nature and the gravity thereof would suggest that the accused-appellants had no intention to kill, rather they wanted to teach him a lesson that was otherwise a bad character in the village. This question needs consideration. 10. The Doctor (P.W. 7), who conducted the autopen found the following external injuries: I. Abrasion 4" x 2" horizontally placed below the right knee. II. Contusion 6" x 1/2" over the right thigh on middle and anterior part obliquely placed. III. Contused abrasion 4" x 2" over upper part of right thigh. IV. Contused abrasion over lower part of the abdomen including right inguinal region extended up to upper thigh (of size 9" x 5"). V. Contusion 6" x 5" over left inguinal region extending to upper thigh. VI. Contusion over right side of abdomen size 1" x 1/2" obliquely placed extending up to xiphisternum. VII. Contusion 2" x 6" over right auxiliary region. VIII. Contused abrasion over right scalp extending from right eye brow to parietal regions. IX. Contused abrasion over upper chest and lower part of the neck over an area of 6" x 5". X. Contused abrasion 4" x 3"-below right Oleicranum Process. XI. Contused abrasion 5" x I" on right arm on its middle part posterior placed. XII. VIII. Contused abrasion over right scalp extending from right eye brow to parietal regions. IX. Contused abrasion over upper chest and lower part of the neck over an area of 6" x 5". X. Contused abrasion 4" x 3"-below right Oleicranum Process. XI. Contused abrasion 5" x I" on right arm on its middle part posterior placed. XII. Contused abrasion 4" x 3" over left oleicranum process extending up to left arm. XIII. Contusion 6" x 4" over left scalp of middle part. XIV. Contusion over right wrist extending up to the near eminence. XV. Contusion over left arm on its posterior part of size 4" x 3". On discussion he found the underneath tissue below the injuries mentioned above were achy mooed and contained blood clots. Right scalp contained a huge hematoma extending from parietal region to right eye brow. There was fracture of second rib of right side at cost abnormal junction. According to the Doctor, death was due to shock and hemorrhage arising from the multiple injuries and the cumulative effect of all these injuries is sufficient to cause death of a human being in ordinary course. The injuries found in the dead body can be possible with a lathi (M.O. I) and can be possible by belt (M.O. II). From the evidence on record, it appears that there were no previous enmity between the parties and the assault was started after there was same altercation with regard to return of the radio-cum-tape recorder to the deceased by the accused persons which, he delivered to them, for purchase. According to the eye-witnesses, the injuries were inflicted by a lathi and a web belt by both the accused-appellants. In the circumstances, the accused persons cannot be imputed with the intention of causing death of the deceased, but however, knowledge could be imputed to the accused that their act was likely to cause death. Law is well settled that where the multiple injuries received by the deceased were caused by blunt weapons like lathi and the injuries were not on any vital part of the body and there in nothing to show that the accused intended to cause the deliberate murder of the deceased, the offence attributable to the accused persons will be u/s 304, Part-II and not u/s 302, I.P.C. A reference may be made to the decision of the Apex Court in Molu and Others Vs. State of Haryana wherein it is held that in a situation where the multiple injuries were caused on the deceased by lathis and were of minor character and there was no material to show that the accused did not intend to cause deliberate murder, the accused is said to have committed an offence u/s 304, Part-II, I.P.C. and not u/s 302, I.P.C. The Apex Court in Chuttan and others Vs. State of Madhya Pradesh, in a similar case, held that where the accused person inflicted injuries on the deceased by stick portion of the spear on any vital parts of the body, the accused had no intention to cause the death or to cause such injuries, which were sufficient in ordinary course of nature to cause death, but had knowledge of causing such injuries they are likely to cause death of the deceased, the accused can be convicted u/s 304, Part-II, I.P.C. 11. In the case at hand, it has not been proved that anyone of the injuries inflicted on the deceased by the accused-appellants were sufficient in the ordinary course of nature to cause death, but the cumulative effect of the injuries inflicted was the cause of death. The ocular evidence coupled with the medical evidence shows that the blows with lathi and web belt were given on different parts of the body including in the palatine region and there was no premeditation and it all happened because of the allegation against the accused that the tape recorder-cum-radio sought to be sold its a stolen property and return of the same on demand by the deceased, the accused person fall u/s 304, Part-II, I.P.C. From the nature of the injuries and the weapons used like lathi and web belt and the place of the injuries on the body of the deceased, it cannot be said that the accused-appellants intended to cause death. The knowledge that their act was likely to cause death of the deceased however can be attributed and as such, we are of the considered opinion that in the facts and circumstances of the case, the accused-appellants have committed an offence u/s 304, part-II/34, I.P.C. and their conviction u/s 302/34, I.P.C. cannot be sustained. In view of what has been discussed in the proceeding paragraphs and the evidence on record, the conviction recorded by the learned Sessions Courts has to be confirmed. 12. In view of what has been discussed in the proceeding paragraphs and the evidence on record, the conviction recorded by the learned Sessions Courts has to be confirmed. 12. In the result, the conviction of the accused-appellants u/s 302/34. I.P.C. is set aside, but each of the Appellants is convicted u/s 304, Part-II, I.P.C. and in the facts situation of the case, we feel that the ends of justice shall be sat by sentencing the accused-appellants to serve a sentence of 8 (eight) years rigorous imprisonment. Conviction and sentence u/s 342/34 I.P.C., however, cannot be assailed and we affirm the same and the sentences there under are to run concurrently. The Criminal Appeal is accordingly allowed in part on the aforesaid terms. R.K. Dash, J. 13. I agree. Final Result : Allowed