Judgment JAGAT SINGH, J. ( 1 ) - This jail appeal has been directed against the judgment dated 9-9-1997 passed by learned Sessions Judge, Merta in Sessions Case No. 17/95, by which accused appellant Yusuf Aladeen has been convicted for offence under Section 302, IPC and sentenced to life imprisonment with a fine of Rs. 500/- and in default to undergo three months rigorous imprisonment. ( 2 ) ACCUSED appellant Yusuf has stabbed his own nephew Sanu aged about five years on 13-5-1995 at 9. 30 AM. at the house of deceased because even at the age of 32 years he could not be married and wanted a bride in exchange of sister Khurshida PW-1. But deceased Sanus mother got the marriage of Khurshida arranged with her own brother about a month before the occurrence. Khurshida PW-1 was the solitary witness of the occurrence who disclosed it to Salim sitting on his vegetable shop who came on the spot and took injured Sanu to the local hospital. But after first aid Sanu was referred to L. S. M. Hospital, Makrana for further treatment but died on the same day at 11. 20 AM. ( 3 ) PW-10 Dr. Man Singh Gehlot sent the message to the Station House Officer, Makrana who came on the spot where Ex. P/9 written report was handed over to him at 11. 30 AM. The autopsy was done on the dead body by Dr. Gehlot. Accused appellant, was arrested on the same day at 4. 45 P. M. vide arrest memo Ex. P/b. He gave a disclosure statement Ex. P/17 at 4. 30 P. M. on the next day and got a knife recovered on 16-5-1995 from the residential house vide seizure memo Ex. P/i which was sealed then arid there. ( 4 ) ACCUSED appellant was charged under Section 302, IPC and in support of the charge prosecution examined 11 witnesses and exhibited 18 documents. In statement under Section 313, Cr. P. C. accused has denied all the circumstances appearing against him and took a special plea that Rashida wife of Salim wanted to usurp the property of the accused who has got Rashida married with her brother and has also implicated the accused appellant in a false case. ( 5 ) LEARNED Sessions Judge after dealing with the evidence ocular and documentary threadbare convicted and sentenced the accused appellant as stated above. ( 5 ) LEARNED Sessions Judge after dealing with the evidence ocular and documentary threadbare convicted and sentenced the accused appellant as stated above. ( 6 ) MR. KK. Shah, learned amicus curiae, took us into the evidence available on the file and pointed out that except PW-1 Khurshida no other evidence is implicating the accused appellant in the crime. Statement of Khurshida is also full of embellishments and contradictions. The so called recovery of knife has not been proved because there is no uniformity in the statements of recovery witnesses PW-2 Allanoor and PW-8 Sattar. First Information Report also despatched belatedly to the Court. Lastly it was submitted that at the most the accused appellant wanted to teach a lesson to his elder brother Salim and there was no intention to murder five years old child. A single injury was caused which later on proved fatal and as such at the most offence may fall under Section 304, Part-Il, IPC. ( 7 ) ON the contrary learned Public Prosecutor has supported the impugned conviction and sentence awarded by the trial Court. ( 8 ) WE have carefully considered the rival contentions. So far as delayed despatch of the First Information Report is concerned though FIR Ex. P110 was recorded on 13-5-1995 at 11. 30 P. M. yet its copy reached to concerned Magistrate at 8. 45 P. M. on 15-5-1995. With regard to delay no cross-examination was done on PW-11 P. P. Gaur. However, the same seems to be explained because the accused appellant was produced before the Civil Judge (JD) Makranaat 9. OOAM. on 15-5-1995 and an endorsement to the above effect is found on the application for remand dated 14-5-1995 which makes it clear that on 14-5-1995 before completion of 24 hours of arrest accused was taken for police remand not only to Magistrate located at Makrana but also to the Magistrates located at Kuchaman and Deedwana but none of them were available tin 10. 30 P. M. therefore, the accused had to be produced at 9. 00 AM. on 15-5-1995 before Judicial Magistrate (JD) Makrana. Had there been any misstatement in remand application the Judicial Magistrate (JD) Makrana may have mentioned the same in his order of remand. ( 9 ) PW-11 P. P. Gaur, 1. 0. , has also deposed that accused was arrested at 4. 43 P. M. on 13-5-1995 and at. 4. 00 AM. on 15-5-1995 before Judicial Magistrate (JD) Makrana. Had there been any misstatement in remand application the Judicial Magistrate (JD) Makrana may have mentioned the same in his order of remand. ( 9 ) PW-11 P. P. Gaur, 1. 0. , has also deposed that accused was arrested at 4. 43 P. M. on 13-5-1995 and at. 4. 30 P. M. on 14-5- 1995 he was taken by ASI Shakoor for taking remand before the concerned Magistrate. But the Magistrates were not available at Makrana, Parbatsar, Kuchaman and Deedwana. They were reported to be on leave, hence at 9. 00 AM. on 15-5-1995 the accused was presented before the Judicial Magistrate (JD), Makrana who gave police remand for one day. PW-11 P. P. Gaur has again deposed that the First Information Report was sent to Makrana Court through constable Lekhram at 8. 45 P. M. on 15-5-1995. An endorsement to the above effect is also found on Ex. P/10 by the concerned Magistrate. No cross-examination worth the name has been done on PW -11 P. P. Gaur on the above deposition. Had there been any Magistrate available on 14-5-1995 at the above places the accused could have been produced before them for getting police remand even on 14-5-1995 itself. Mere delayed despatch of FIR without any other infirmities going to the root of the case is not sufficient to throw the prosecution case as has been held by the Apex Court in Shaikh Ayub v. State of Maharashtra, where the FIR reached to the concerned Magistrate the days after the occurrence. Therefore, this first submission of learned amicus curiae is not tenable. ( 10 ) MR. Shah learned amicus curiae has assailed the recovery of knife at the instance of the accused appellant because there were material contradictions in the statement of recovery witnesses PW-2 Allanoor and PW-8 Sattar. Learned counsel has pointed out that according to PW 2 Allanoor the knife was recovered by the police on the day of occurrence. In the cross-examination Allanoor has deposed that when he reached the place of occurrence he saw knife with the police personnel. Similarly, PW-8 Sattar has deposed that the knife was recovered on the day the accused was arrested. Both these recovery witnesses have deposed so in their cross examination. In their examination-in-chief they have supported the prosecution version and have admitted that the recovery memo Ex. Similarly, PW-8 Sattar has deposed that the knife was recovered on the day the accused was arrested. Both these recovery witnesses have deposed so in their cross examination. In their examination-in-chief they have supported the prosecution version and have admitted that the recovery memo Ex. P/i as also the site plan map of the place of recovery Ex. P/2 bore their signatures. ( 11 ) IT seems that both these witnesses were, under some pressure and therefore, in their cross- examination have tried to save the accused appellant who was none other than the uncle of the deceased boy. Had the knife was recovered from the accused on the day of occurrence there was no purpose to make it post dated by the Investigating Officer. PW-11 P. P. Gaur 1. 0. has deposed that the accused was arrested on 13-5-1995 at 4. 45 P. M. vide arrest memo Ex. P/10. He gave voluntary disclosure statement Ex. P/17 under Section 27 of the Evidence Act at 4. 30 P. M. on 14-5-1995. But in pursuance of Ex. P/17 the knife could not be recovered because remand of the accused appellant was to be procured before 4. 45 P. M. as 24 hours of the arrest were approaching 15 minutes thereafter. Even after getting police remand on 15-5-1995 the knife could not be recovered because the Investigating Officer has to attend a Court hearing on that day at Ajmer. On 16-5-1995 at 6. 00 A. M. he reached at Makrana and got the knife recovered immediately thereafter. ( 12 ) THERE is no doubt left in our mind that the accused gave a voluntary disclosure statement and got a knife recovered from his residential house which was seized and sealed then and there. The above knife was sent in sealed condition to the Forensic Science Laboratory on 6-6-1995 vide receipt Ex. P/7 through constable Mahaveer Singh PW-4. Upon serological examination Ex. P/18 the above knife was found to be having human blood. The above knife was sent in sealed condition to the Forensic Science Laboratory on 6-6-1995 vide receipt Ex. P/7 through constable Mahaveer Singh PW-4. Upon serological examination Ex. P/18 the above knife was found to be having human blood. ( 13 ) THE contention of learned amicus curiae that origin of the blood on the articles could not be ascertained also will not make the prosecution case weak because in Sanjay Kaka v. The State (N. C. T. of Delhi) the Apex Court following Teja Ramts case3 as also Gura Singhs case4 was of the view that failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far fetched in the broad spectrum of this case. The effort of the criminal Court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit could be claimed by the accused. ( 14 ) LASTLY, learned amicus curiae assailed the testimony of PW-1 Khurshida, who being sister of the accused and being illiterate may have made some improvements in the Court but unless and until the improvements were in material particulars the same with not affect testimonial value of the witness. It is the bounden duty of the criminal Court to make effort to disengage the truth from the falsehood and to shift the grain from the cheff rather than take the easy course of rejecting the entire prosecution case merely because there are some embellishments. Invariably, witness add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if true in the main aspect. If there is link of truth in the main, the case should not be rejected. Invariably, witness add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if true in the main aspect. If there is link of truth in the main, the case should not be rejected. It is the duty of the Court to cut out nuggets of truth from the evidence unless there is reason to believe that inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witness. It is necessary to remember that a judge does not preside over a criminal Court merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties which the judge has to perform, as has been held by the Apex Court in State of U. P. v. Anil Singh and in catena of other pronouncements. In the matter at hand keeping in view the aforestated legal duties the trial Court after meticulously examining the deposition of Khurshida has rightly held her to be a wholly reliable witness. ( 15 ) LEARNED amicus curiae has also taken us to the statement of PW-1 Khurshida. The main contradictions and embellishments pointed out were that immediately before the occurrence Khurshida went to fetch chhachh but from whose house? In the Court she has deposed that she went to the dhani of Rajputs for fetching chhachh whereas in Ex. D 11 statement given under Section 161, Cr. P. C. as also in Ex. D/2 statement given under Section 164, Cr. P. C. she has stated that she went in mohalla for fetching chhachh, Similarly, in Court statement Khurshida deposed that immediately after the occurrence she did not go to the shop of Salim to inform him whereas in Ex. D/1 and Ex. D/2 it is written that she herself went to Salimts shop and informed him. No other contradictions worth the name were confronted to her except the above two. Though some exaggerations were also pointed out to her which were also not in material particulars. PW-1 Khurshida has deposed that some children informed Salim at his shop from where he came running at the place of occurrence. Similarly in cross-examination Khurshida deposed that the knife injury was caused on the deceased when the latter was near the latrine of the house. PW-1 Khurshida has deposed that some children informed Salim at his shop from where he came running at the place of occurrence. Similarly in cross-examination Khurshida deposed that the knife injury was caused on the deceased when the latter was near the latrine of the house. This fact is also not found mentioned in EX. D-11 and Ex. D 12. According to us also above contradictions or exaggerations are not of the nature affecting the testimonial value of PW-1 Khurshida. She being an illiterate rustic girl may not have remembered the prosecution version in all minor details because she has been examined in Court about more than a year after the occurrence. Be that as it may the Sessions Court has rightly believed PW-1 Khurshida as a wholly reliable witness. Her testimony has been corroborated by the recovery of knife on the voluntary disclosure statement given by the accused appellant. The above knife has also been found to be having traces of human blood. ( 16 ) SALIM could not be examined to prove written First Information Report Ex. P/9 because he passed away during the trial. That by itself will not make the prosecution case weak because Salim was not an eye witness to the occurrence and on the basis of Ex. P/9 First Information Report Ex. P110 was registered. Both these documents have been proved by PW-11 P. P. Gaur, C. I. ( 17 ) ACCUSED appellant has also admitted in statement under Section 313, Cr. P. C. that Khurshida is married to the brother of Rashida and, therefore, through her Rashida has got accused appellant implicated in false case. Prosecution story also discloses that the accused-appellant even at the age of 30 years could not be married and wanted PW-1 Khurshida to be exchanged in marriage for himself. When Rashida mother of deceased boy got Khurshida married to her own brother accused appellant did not relish it and to teach lesson to his brother Salim and bhabhi Rashida he caused injury to five years old Sanu. ( 18 ) WE have carefully and with care and caution scanned the prosecution evidence in minute details and are of the view that there was no love lost between the accused appellant and his brother Salim. ( 18 ) WE have carefully and with care and caution scanned the prosecution evidence in minute details and are of the view that there was no love lost between the accused appellant and his brother Salim. At the most accused appellant could be angry with Salim because Khurshida was engaged with brother-in-law of Salim and chances of accused appellant getting married have diminished. Our above view gets support from the testimony of P. W. 10 Dr. Man Singh Gehlot who found a stab wound on the abdomen wall of the deceased boy. All the prosecution witnesses have also deposed that the accused caused a single knife injury to the boy. The plea of the accused appellant has not been found favour with the learned Sessions Judge despite the fact that numerous pronouncements of our own High Court have been referred in support of the plea that the offence falls under culpable homicide not amounting to murder. In our view offence under Section 302, IPC is not proved because the accused was not acted in a cruel or unusual manner and his act falls under exception 4 of Section 300, IPC. ( 19 ) IN State of Madhya Pradesh v. Jhaddu and Ors. , the deceased had sustained injuries on the chest resulting in fracture of ribs and laceration of lungs leading to death and the Apex Court was of the view that there was no intention to kill and the accused could be imputed with knowledge that the death was the likely result. Therefore, conviction altered under Part-Il of Section 304, IPC. Similarly, in Ramesh Vithalrao Thakre and Anr. v. State of Maharashtra, there was only one injury on the deceased. A single knife blow was given on the abdomen of the deceased. The Apex Court converted the offence under Sections 302 to 304. Part II. IPC. In Bhera v. State of Rajasthan, there was quarrelling between the accused and the deceased and in anger the accused suddenly brings out a knife giving blow on the chest of deceased resulting into his death. It was held that requisite intention of causing murder was not there and offence was converted from Section 302 to 304, Part-Il. IPC. ( 20 ) KEEPING in view the afore stated Apex Courts pronouncements we are of the view that the offence falls under Section 304, Part-Il, IPC instead Section 302, IPC. It was held that requisite intention of causing murder was not there and offence was converted from Section 302 to 304, Part-Il. IPC. ( 20 ) KEEPING in view the afore stated Apex Courts pronouncements we are of the view that the offence falls under Section 304, Part-Il, IPC instead Section 302, IPC. Therefore, we partly accept this appeal, set aside the conviction and sentence under Section 302, IPC awarded by the learned Sessions Judge and instead convict the accused appellant under Section 304, Part-Il, IPC. ( 21 ) SO far as sentence is concerned, accused appellant was arrested on 13-5-1995 and since then he is in custody. He has already undergone about six years sentence which looking to the nature of offence and circumstances in which it is committed will meet the ends of justice therefore, we sentence the accused appellant for the period he has already undergone. Accused is in jail. He shall be released forthwith if not required in any other case. Appeal allowed partly. .