JUDGMENT 1. - This appeal is directed against the judgment dated 4.11.1980 passed by the Additional Sessions Judge, Nagaur convicting the appellant for the offence under section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine to further under three months rigorous imprisonment. The appellant has also been convicted for the offence under section 452 IPC and sentenced two years rigorous imprisonment and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo three months rigorous imprisonment. Both the sentences have been ordered to run concurrently. The regular as well as Jail appeal filed by the appellant registered as D.B. Criminal Appeal No. 8/81 and 44/81 respectively are disposed of by this judgment. 2. The prosecution case in brief is that RW. 6 Poona Ram lodged a first information report at police station, Nagaur on 30th may, 1980 at 10.30 a.m. stating that his son Parmaram had gone to call Triloka Bhabhi and when he reached near the house of accused Surajmal, his dog started barking, whereupon Parmaram enquired Surajmal as to why he has no tied down his dog. He also complained that his dog had bite with a view to thrash him. Parmaram entered into the house and narrated the incident to the family members. Poona Ram and Parma Ram requested their neighbour Balu Ram RW. 3 to make him understand. After sometime, the accused Surajmal entered in their house. His father Bhanwar Lal asked him not to abuse them, whereupon accused gave lathi blow on the head of Bhanwar Lal. He also caught hold of him and pressed the neck, on account of which he could not speak. The complainant's mother raised an alarm, Asu rescued his father Bhanwar Lal. Many other persons from the neighbourhood also arrived on the spot, seeing them, the accused ran away. Bhanwar Lal was taken to the Hospital in a bullock-cart. On this information, police registered a case for offence under secs. 452, 323 IPC. On 2.6.1980 Bhanwar Lal died and as such the case was registered for offence under section 302 IPC. After usual investigation, the police laid charge-sheet against the accused-appellant for offence under section 302 and IPC. 3. The accused denied the charge framed against him and claimed trial. 452, 323 IPC. On 2.6.1980 Bhanwar Lal died and as such the case was registered for offence under section 302 IPC. After usual investigation, the police laid charge-sheet against the accused-appellant for offence under section 302 and IPC. 3. The accused denied the charge framed against him and claimed trial. The prosecution in support of the case examined ten witnesses and produced certain documents. The appellant in his statement under section 313 Cr.PC. stated that the entire evidence appearing against him is false. He also stated that on 29th May, 1980 at about 10.30 p.m. he had gone to the house of Balu to accompany him for going to village Lapolai and while he was sitting on the platform of his house, Asha Ram, Poona Ram, Parma Ram and Rameshwar arrived and they assaulted him, on account of which blankness appeared before his eyes and he lost his vision for a moment. Bhanwroo arrived to rescue him. He sat down and accidentally lathi blow fell on the head of Bhanwroo. The trial court relying on the testimony of the three eye witnesses, namely, RW. 1 Asha Ram, RW. 2 Smt. Sukhi and RW. 6 Poona Ram and the other evidence held accused appellant guilty of the murder of Bhanwar Lal. Accordingly, convicted and sentenced at noticed above. 4. Mr. K.L. Thakur, learned counsel appearing for the accused-appellant has confined his argument to the nature of the offence. It is submitted that the incident has taken place all of a sudden on a petty issue and as such, the no intention to cause the murder of deceased Bhanwar Lal can be inferred. It is also submitted that there is deliberate delay in lodging the FIR of the incident, in as much as it has been lodged on the next day at 10.30 a.m. This time has been utilised for moderating the prosecution case to fit in medical evidence. It is also submitted that PW. 6 Poona Ram has admitted that the deceased was admitted in the Hospital during the intervening night of 29 and 30th May, 1980 while he was in the Hospital, he fell down from the cot. He was lifted and again laid on the cot. He also invited our attention to the statement of RW. 7 Dr. Vijay Singh wherein he admitted that either of the injury Nos. 2 and 3 could be caused by a fall. He was lifted and again laid on the cot. He also invited our attention to the statement of RW. 7 Dr. Vijay Singh wherein he admitted that either of the injury Nos. 2 and 3 could be caused by a fall. It is thus submitted that the offence against accused appellant does not travel beyond Section 323 IPC or in any case beyond 323 or 304-II IPC. On the other hand, learned public prosecutor has supported the judgment of the trial court. 5. We have scanned the prosecution evidence carefully. PW. 7 Vijay Singh has stated that he examined deceased Bhanwar Lal on 30th May, 1980 and noticed the following injuries. " 1 & fuyxw fu'kku ( czwt ) 7 lseh0 x 5 lseh0 eki esa ;g pksV ckgha vka[k ds mij nksuksa iydksa dks {kfrxzLr djrs gq, FkhA 2 & fuyxw fu'kku ( czwt ) 5 lseh0 x 3 lseh0 eki dh pksV flj ds ckgha rjQ VsEiksjkisjkbVy Hkkx ij Fkh] tks fd ck,a dku ds mijh yksy ls 10 lseh0 mij dh rjQ FkhA 3 & fuyxw fu'kku ( cwzt ) 7 lseh0 x 2 lseh0 eki dh pksV tks fd nkfguh VsEiksjkisjkbVy Hkkx ( [kksiM+h dk Hkkx ) ij Fkh] tks fd nkfgus dku dh mijh yksy ls 10 lseh0 mij FkhA " He has proved the injury Report Ex. P/6 injury Report shows that Bhanwar Singh was examined at 9 a.m. and on radiological examination, injuries Nos. 1 and 2 were found to be simple and injury No. 3 grievous in nature. He further stated that deceased Bhanwroo died on 2.6.1980 at 7 a.m. He conducted the post mortem of the dead body of Bhanwar Lal and found the following injuries:- " 1& nkfguh isjkbVy gM~Mh Hkax dk yEckdkj ls vfLFkHkax ik;k x;kA fnekx ds mij lcM~;wjy Lisl nksuksa [kwu ls tes gq, ik, x,A " He was proved the Post Mortem Report Ex. P/8. In his opinion, the death was caused by cerebral compression due to bilateral subdural hemorrhage caused by fracture of right parietal. 6. PW. 1 Asha Ram RW. 2 Smt. Sukhi and PW. 6 Poona Ram eye witnesses of the incident have narrated the incident as given in the F.I.R. All of them have stated that accused gave lathi blow on the head of deceased Bhanwar Lal and also pressed his neck. 6. PW. 1 Asha Ram RW. 2 Smt. Sukhi and PW. 6 Poona Ram eye witnesses of the incident have narrated the incident as given in the F.I.R. All of them have stated that accused gave lathi blow on the head of deceased Bhanwar Lal and also pressed his neck. The trial Court disbelieved the testimony of the witnesses to the extent that accused pressed the neck of the deceased. The principle reason given for rejecting the part of prosecution case is that It does not find corroboration from medical evidence RW. 7 Dr. Vijay Singh has stated that he found no mark of pressing of neck on the body of Bhanwar Lal. We find no reason to discharge with the view taken by the trial court to the extent of allegation of pressing the neck of the deceased by the appellant after giving lathi blow. 7. P.W. 6 Poona Ram has stated that the deceased Bhanwar Lal was aged about 60 years while he was in the hospital he fell down on the ground from the cot. He was lifted and again laid on the cot. PW. 7 Dr. Vijay Singh has stated that when he examined Bhanwar Lal his condition was normal, but he came to know about the fracture on the head only after seeing the x-ray plants on the next-day. He admitted in the cross-examination that on account of fall from the cot, injury Nos. 2 or 3 could have been caused. Thus, the possibility cannot be ruled out that the injury No. 3 was sustained because of fall from the cot on the hard surface. This brings us in the zone of suspicion and we cannot say with definiteness that fatal injury No. 3 was caused because of lathi blow on the head given by the appellant. The benefit of doubt is given to the appellant for causing fatal injury No. 3 to the deceased Bhanwar Lal. However, he is held causing simple injuries to Bhanwar Lal punishable under section 323 IPC. So far as offence under section 452 IPC is concerned, there is consistent evidence that the accused appellant entered in the house of the complainant and assaulted Bhanwar Singh. Thus, the conviction of the appellant under section 452 IPC is upheld. 8. Consequently, both appeals are partly allowed. The conviction of the appellant Surajmal for offence under section 302 IPC is set aside. Thus, the conviction of the appellant under section 452 IPC is upheld. 8. Consequently, both appeals are partly allowed. The conviction of the appellant Surajmal for offence under section 302 IPC is set aside. He is acquitted of the charge of offence under section 323 and under section 452 IPC is maintained. However substantive sentence awarded under section 452 IPC is reduced to the period already undergone. For offence under section 323 IPC he is sentenced to the period already undergone. The accused appellant is on bail. The bail bond stands discharged. *******