JUDGMENT 1. - This appeal has been filed u/s. 374(2) Cr.P.C. by accused-appellant-Bhanwara Ram challenging the judgment dated 27.2.1999 passed by learned Additional Sessions Judge, Ratangarh in Sessions Case No. 47/97 by which he has been convicted u/s. 302 IPC and sentenced to life imprisonment with a fine of Rs. 500/- and in default to undergo three month's simple imprisonment. 2. Charge against the accused-appellant are that at about 5.00 a.m. on 6.7.1997 in village ???garh infront of his own house be gave lathi blows on vital parts of Magha Ram injuring him seriously by which inspite of treatment he passed away on 2.7.1997 at 2.00 p.m. Accused pleaded not guilty and claimed _ trial, hence prosecution examined 17 witnesses and exhibited 36 documents. 3. In statement given u/s. 313 Cr.P:C. accused denied all the incriminating evidence appearing against him and stated that due to animosity he has been falsely implicated. No evidence in defence was produced. Thereafter the learned trial Court after threadbare discussion of the evidence documentary and oral convicted and sentenced the accused-appellant as stated above relying upon the testimony of PW-1 Ramprasad, PW-2 Ramnarain, PW-3 Nanuram, PW-4 Chunaram, PW-6 Narainram supported by medical testimony of PW-14 Dr. Sunil Bothra. 4. The first contention of Mr. Kalia, learned counsel for the appellant was that the FIR was lodged 24 hours late without sufficient explanation and there were significant improvement and material contradictions between the testimony of the eye-witnesses, yet the Court below has convicted him merely on surmises and conjectures. Mr. Kalia, learned counsel has took us through the evidence and tried to impress upon us that the deceased was dead drunk and fell on the foot steps of the house, received injuries on his head and passed away two days thereafter. 5. On the contrary, learned Public Prosecutor has supported the impugned judgment. 6. We have carefully considered the rival contentions and have analysed, assessed, scanned and scrutinised the prosecution evidence available on the file. 7. So far as non-explanation of delay in lodging the FIR is concerned, this aspect was dealt with by the trial Court extensively and we have also perused the same vis-a-vis the evidence ocular and documentary available on the file. 7. So far as non-explanation of delay in lodging the FIR is concerned, this aspect was dealt with by the trial Court extensively and we have also perused the same vis-a-vis the evidence ocular and documentary available on the file. Ex.P/1 FIR itself indicates that immediately after the occurrence Magharam injured was taken by his son PW-1 Ramprasad alongwith other prosecution witnesses to Nagaur for treatment where he was admitted in Nursing Home of PW-8 Dr. Badrilal Choudhary who was a retired surgeon from the Government Hospital and has proved that at 2.00 p.m. on 6.7.1997 Magharam was admitted in injured condition who remained there till his death. In support of his above contention this witness has exhibited Ex.P/15, P/16 and P/22. Even PW-1 Ramprasad has also stated that from the place of occurrence his father Magharam was first taken to the doctor of the village who was not available, thereafter through jeep of Shrawan Ram he was taken to Nagaur and admitted in the hospital of Dr. Badrilal where treatment continued. Ramprasad was hardly the age of 23 years old and was not wise enough to lodge the FIR simultaneously but kept waiting without anticipating the grave consequences of the injury. He has been cross-examined at ength on this point but could not be shaken. Even assuming that the FIR was belated and the delay has not been explained reasonably, that by itself is not sufficient to throw away the prosecution case. The Apex Court in a spate of judgments has held that even long delay may be condoned if no motive for false implication is found. Explanation of delay, if found not very satisfactory, that by itself is not a ground for disbelieving prosecution evidence. In this respect Ram Jog v. State of U.P., AIR 1974 SC 607 , Rammurthi v. State of Haryana, AIR 1976 SC 2455 , and Apren Joseph v. State of Kerala, AIR 1973 SC 1 , among others can be referred to. Therefore, the first contention has rightly been rejected by the trial Court. 8. So far as second submission is concerned, Mr. Kalia learned counsel has vehemently supported this contention from the statement of PW-8 Dr. Badrilal Choudhary who has not only deposed in the Court testimony but has also written in Ex.P/23 that the injured fell down on the foot steps as per disclosed to him by attendants accompanying the injured. 8. So far as second submission is concerned, Mr. Kalia learned counsel has vehemently supported this contention from the statement of PW-8 Dr. Badrilal Choudhary who has not only deposed in the Court testimony but has also written in Ex.P/23 that the injured fell down on the foot steps as per disclosed to him by attendants accompanying the injured. Not only the trial Court has scrutinised the evidence of PW-8 Badrilal Choudhary and disbelieved on this point, we too have carefully considered his statement as also Ex.D/1, Bed Head ticket. In cross-examination this witness has admitted that though he admitted injured on 6th July yet he prepared Ex.D/1 on 7th July and on that day its portion "E" to "F" was written in his own hand writing at the instance of some attendant who was accompanying the injured. We fail to understand where was the necessity to prepare Ex.D/1 on 7th July when the patient was admitted on 6th July vide Ex.P/15 and Ex.P/16. Had any operation was to be undertaken Ex.D/1 may have been prepared for the solitary purpose that if something untoward happens to the patient the doctor will not be responsible. If at all any history of the patient was asked the same should have been done on the day of admission itself and may have been written either on Ex.P/15 or on Ex.P/16. This witness has admittedly not done anything except conducting X-Rays, come bandages and giving some oral treatment to the patient. Similarly, at place "A" to "B" in Ex.D/1 signatures of Magharam are found whereas at place "C" to "D" signature of PW-1 Ramprasad are found. Had Magharam been conscious and dictated portion "E" to "F" on Ex.D/2 on 7.7.1997, atleast the same should have been stated by this witness in his examination in chief or atleast may have stated on 7.7.1997 at what time signatures of Magharam at place "A" to "B" on Ex.D/1 were taken. Had Magharam been conscious and dictated portion "E" to "F" on Ex.D/2 on 7.7.1997, atleast the same should have been stated by this witness in his examination in chief or atleast may have stated on 7.7.1997 at what time signatures of Magharam at place "A" to "B" on Ex.D/1 were taken. When Magharam, according to FIR Ex.P/1, died due to the injuries at 2.00 p.m. on 7.7.1997 and when post-mortem on his dead body Ex.P/30 was conducted at 9.30 a.m. on 8.7.1997 wherein death opined to have occurred within 24 hours and when signatures of Magharam on Ex.D/1 were not confronted to PW-1 Ramprasad in his cross-examination, how can it be safely said that Ex.D/1 was signed by Magharam deceased or that at place "E" to "F" the factum of Magharam falling on foot steps after taking liquor was told by him. 9. It is pertinent to note that PW-8 Dr. Badrilal Choudhary in his examination in chief has stated that some attendant accompanying the injured has told that the injured has fallen on foot steps whereas in the cross-examination this witness has turned table and stated that it was Magharam himself who told portion "E" to "F" of Ex.D/1 that he fell on the door foot steps after taking liquor. As per the prosecution theory the occurrence took place at about 5.00 in the morning and even hard drinkers will not like to take liquor, at such an earthly hour. Admittedly the deceased was employed as a driver in the Rajasthan Roadways and he may have been proceeding on duty and it was not possible that he will go on duty after taking liquor in the morning at 5.00 a.m. To be dead drunk at five the wine should have been taken atleast half an hour before the occurrence. All these circumstances were weighed by the learned trial Court while rejection this submission. We also do not find sufficient ground to differ from that. It seems that PW-8 Dr. Badrilal Choudhary may have been pursuaded to execute Ex.D/1 after the death of Magharam, else the case history of the patient may have been written on 6.7.1997 when he was admitted for treatment. 10. There is another circumstance belying the submission of the falling on the door foot steps. It seems that PW-8 Dr. Badrilal Choudhary may have been pursuaded to execute Ex.D/1 after the death of Magharam, else the case history of the patient may have been written on 6.7.1997 when he was admitted for treatment. 10. There is another circumstance belying the submission of the falling on the door foot steps. Had it been so, some foot steps should have been suggested in the cross-examination of PW-1 Ramprasad as also other eye-witnesses of the occurrence produced in the trial Court and to the Investigating Officer who prepared site plan map etc. PW-1 Ramprasad has denied having any staircase for the roof of his house. However, he has admitted that in the main gate of his house there were three foot steps and there were no foot steps while entering in the Court yard. Such a suggestion was made to this witness in cross-examination that his father fell down on the door foot steps being dead drunk which was denied by him. Had there been any truth in the above submission, atleast other eye-witnesses and Investigating Officer must have been given some suggestion in the cross-examination. PW-2 Ramnarain and PW-4 Chunaram in cross-examination have denied the suggestion that Magharam being dead drunk fell down and received the injury. It was not suggested to these witnesses that he fell down on the door foot steps. PW-3 Nanuram was put such suggestion in the cross-examination and denied that Magharam being dead drunk may have fallen on the stairs. Similarly, PW-6 Narainram has also denied that after taking liquor Magharam fell on the stairs. PW-17 Bhagirath Singh, Station House Officer was the Investigating Officer who prepared site plan map of the site Ex.P/3 and Ex.P/3-A. He has specifically stated that it has not come in investigation that deceased fell on the foot steps. Had there been any foot steps in the house of PW-1 Ramprasad the same should have been mentioned in Ex.P/3 or atleast PW-17 Bhagirath Singh should have been pointed out in cross-examination that in the house of Ramprasad there were foot steps where Magharam fell down due to dead drunk. No such suggestions were made. On the contrary this witness has proved that the place of occurrence was infront of the house of accused at place "X" in Ex.P/3 and there were no foot steps nearabout. 11. PW-14 Dr. No such suggestions were made. On the contrary this witness has proved that the place of occurrence was infront of the house of accused at place "X" in Ex.P/3 and there were no foot steps nearabout. 11. PW-14 Dr. Sunil Bothra though in cross-examination has admitted that if some dead drunk person falls on foot steps, possibility of causing injury No. 3 cannot be ruled out. However, when this witness was confronted by his own report on Ex.P/31 wherein he has reported to the contrary that injury No. 3 generally cannot be caused by falling on foot steps. It seems that PW-14 Dr. Sunil Bothra in his cross-examination has inadvertently admitted that the injury No. 3 can be caused by falling on foot steps. Had there been only single injury on the deceased possibility of causing on fall may have been there but according to the post-mortem report Ex.P/30 there were following five injuries: 1. Lacerated wound 2 cm x 1/2 cm skin deep on chin. 2. Diffuse swelling on neck anteriorly extending "from mendible to supra eternal notes. 3. Ill defined swelling extending from zygometic process, tragus of left ear, left mastoid process upto interior border of mendible on left side, flectuation present ill defined swelling in it temporal region of the scalp with bleeding from left ear. 4. Contusion 15 cm x 4 cm on left arm laterally. 5. Two oblique parallel 2 cm apart contusion of 10 cm x 0.5 cm over chest anteriorly on left side. 12. The above injuries cannot be caused by a single fall and injury No. 3 which was found sufficient to cause death in ordinary course of nature may not be caused if the fall is not from a substantial height and that too on a hard object. Therefore, for the above reasons the possibility of causing injury No. 3 by a fall has rightly been ruled out by the trial Court, and this submission of the learned counsel is also not sustainable. 13. Next contention of the learned counsel was that when there are two views possible from the evidence available on the file the one favourable to the accused should be adopted. 13. Next contention of the learned counsel was that when there are two views possible from the evidence available on the file the one favourable to the accused should be adopted. This submission of the learned counsel has no force as the possibility of falling on the foot steps and receiving the injuries found on the dead body has been ruled out, therefore, the possibility of the second view is not envisaged in the present case. 14. So far as testimonial value of the prosecution witnesses are concerned, the trial Court has relied upon the testimony of PW-1 Ramprasad to PW-6 Narainram and PW-15 Smt. Kuni. The presence of all these witnesses were natural because they were residing in the immediate vicinity of the occurrence and at 5.00 a.m. their presence at the site was most natural. These witnesses have stated that upon hearing the noise at the place of occurrence they were attracted to the scene. While proceeding towards the place of occurrence they saw the accused-appellant inflicting lathi injuries on the person of Magharam and when they reached the site the accused-appellant fled away alongwith lathi. Even according to site plan map Ex.P/3 house of PW-1 Ramprasad and PW-15 Smt. Kuni is only 100 feet away and in between there is a vacant land. Similar is the case of other witnesses. All these witnesses have in unison supported the prosecution story that Magharam went to the house of accused to demand his Rs. 500/- who refused to pay the same and instead inflicted lathi injuries. These witnesses have neither made any improvements in their Court testimony nor they have been confronted and contradicted by their previous statement, therefore, were of sterling worth. 15. PW-1 Ramprasad in cross-examination stated that when he took his injured father to PW-8 Dr. Badrilal Choudhary, Budharam and Narainram consulted the doctor. The above fact was missing in Ex.P/1. Similarly to begun with Dr. Badrilal Choudhary refused to give treatment. That fact is also missing in Ex.P/1. Thereafter condition of his father started deteriorating. This fact is also not mentioned in Ex.P/1 and Dr. B.L. Choudhary told this witness to arrange for the money. The witness has stated that he has told above facts to be recorded in FIR Ex.P/1, yet the same has not been mentioned there. That fact is also missing in Ex.P/1. Thereafter condition of his father started deteriorating. This fact is also not mentioned in Ex.P/1 and Dr. B.L. Choudhary told this witness to arrange for the money. The witness has stated that he has told above facts to be recorded in FIR Ex.P/1, yet the same has not been mentioned there. Even assuming that this witness have made improvement in his version to some extent in cross-examination, that too will not affect his testimony adversely because nobody can envisage the questions put to the witness in cross-examination. Similarly, the FIR is not encyclopedia and may not contain all unnecessary details and, therefore, if there were some immaterial omissions in FIR Ex.P/1 that will not be of any evil consequences and this witness has withstood the test of cross-examination. 16. PW-2 Ramnarain, PW-3 Nanuram, PW-4 Chunaram, PW-6 Narainram as also PW-15 Smt. Kuni though have been cross-examined to some extent, yet could not be contradicted by their previous statements because they have neither improved their versions in the Court nor have stated to the contrary. Testimony of PW-15 Smt. Kuni is assailed as she is wife of the deceased. Similarly version of PW-1 Ramprasad is assailed as he is son of the deceased. There is neither any rule of law nor of prudence that testimony of a relative witness be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. A relative witness will be the last person to leave the real culprit and implead innocent. No suggestion in the cross-examination to both these witnesses were made that they or the deceased had any animosity with the accused to rope him in falsely. 17. Similarly, PW-2 Ramnarain has stated in his cross-examination that the accused never threatened him to rope him in falsely in an offence of untouchability. However, the accused was in habit of doing so with other villagers. PW-3 Nanuram has admitted in cross-examination that about 6-7 years prior to the occurrence he had a litigation with the accused and his mother but there was settlement between the parties and there were cordial relations between the two. Other witnesses have not been given any suggestion in cross-examination about their any grudge or animosity with the accused. Therefore, this submission of the learned counsel is also not tenable. 18. Other witnesses have not been given any suggestion in cross-examination about their any grudge or animosity with the accused. Therefore, this submission of the learned counsel is also not tenable. 18. The last submission of the learned counsel seems to be tenable that the offence falls under Exception 4 of Section 300 IPC because the injuries were caused without premeditation in a sudden fight and in heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the facts and circumstances proved herein the deceased went to the house of accused, demanded his money at about 5.00 a.m. in the morning. The accused seems to have felt it badly and there may have been some altercation between the two in which accused hurled lathi blows on the vital parts of the deceased. According to post-mortem report Ex.P/30 as proved by PW-14 Dr. Sunil Bothra though there were five blunt injuries on the dead body yet injury No. 3 was the solitary fatal injury which was a swelling on the zygomatic process and mastoid process on the lower jaw. It seems that the accused may have inflicted single lathi blow by which the injured may have fallen down and the remaining injuries which are lacerated wounds and contusions may have been caused. Be that as it may, there was no intention of the accused to cause murder of the deceased nor there were any motive for that. In an altercation and in a sudden fight injuries seems to have been caused without premeditation. The lathi blow has not been given with much force, therefore, the injured survived for a day or two which also indicates the state of mind of the accused that be never intended to cause murder. In an altercation and in a sudden fight injuries seems to have been caused without premeditation. The lathi blow has not been given with much force, therefore, the injured survived for a day or two which also indicates the state of mind of the accused that be never intended to cause murder. The Apex Court right from Willian Saleni v. State of M.P., AIR 1956 SC 116 , Jagtar Singh v. State of Punjab, 1983 SCC (Cri) 459 and Laxman Kalu v. State of Maharashtra, JT 1993(4) SC 463 to M.H. Musalman v. State of Maharashtra, (2000) 3 SCC 557 , has held that if homicidal death is caused without premeditation in a sudden fight upon a sudden quarrel without taking undue advantage or acting on cruel manner the offence will fall under part-II of Section 304 IPC because a knowledge can be attributed to the accused that injury which he inflicted on the person of deceased was likely to cause death. In the matter at hand PW-14 Dr. Sunil Bothra has deposed that injury No. 3 was in ordinary course of nature sufficient to cause death. 19. Therefore, the conviction of the accused-appellant u/s. 302, IPC is not maintainable which is set aside instead the accused is convicted under Part-II of Section 304 IPC and is awarded five years' rigorous imprisonment alongwith a fine of Rs. 10,000/-. In default of payment of fine he shall undergo further imprisonment of one year. If fine is recovered the same shall be paid to PW-15 Smt. Kuni widow of deceased-Magharam. 20. For the reassessment and re-appreciation made above by us the appeal stands partly allowed as stated above.Appeal partly allowed. *******