JUDGMENT S.N. JHA & A.K. VERMA, JJ. The appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have also been convicted under Section 323 of the Penal Code and sentenced to rigorous imprisonment for three months. 2. The prosecution case, briefly stated, is as follows. In the night of 18.11.85 at about 10 P.M. Baudhi Devi, resident of village Tegrari Tola Ghaphar, P.S. Shivaipatti of Muzaffarpur district, heard the knocking sound on the door. When she came out, she found the appellants armed with Lathi. They assaulted her by Lathi. Baudhi Devi started crying. On alarm raised by her, Makhan Bhagat, younger brother of her deceased husband who had his house nearby, reached there. He too was assaulted by the appellants. Yogendra Bhagat, Jagarnath Bhagat, Bharat Thakur and Husaini Bhagat also came there hearing the sour j of cries of Baudhi Devi and they too were assaulted by the appellants. While the other victims suffered minor injuries for which they were treated by Dr. Baidyanath Singh, In-charge Medical Officer of Minapur State Dispensary, Husaini Bhagat succumbed to injuries. The occurrence was reported by Makhan Bhagat to the ASI of Police Shashi Kant Jha of Siwipatti Police Station at the place of occurrence on the next day i.e. 19.11.95 at 8 A.M. while narrating the occurrence he disclosed that the appellants used to tap toddy from the palm trees standing by the side of the houses of Baudhi Devi and his own and for this purpose they used to go there at odd hours which was objected to by them causing them (appellants) annoyance. 3. On the basis of the said fardbeyan of Makhan Bhagat, Siwaipatti P.S. Case No. 1/85 was instituted against the appellants. ASI Shashi Kant Jha, in the meantime, prepared inquest report, sent the dead body of Husaini Bhagat for post mortem and examined the witnesses under Section 161 of the Code of Criminal Procedure. After completing necessary formalities, he submitted charge-sheet against the appellants and they were thus put on trial. 4. At the trial the prosecution examined as many as 21 witnesses to prove its case. six of whom namely, P.W. 4, Shakaldeo Bhagat, P.W. 9 Raudi Bhagat, P.W. 10 Sheo Shanker Prasad, P.W. 12 Hardeo Sah, P.W. 14 Jailal Prasad and P.W. 16 Raghunath Bhagat were tendered for cross-examination. Dr. 4. At the trial the prosecution examined as many as 21 witnesses to prove its case. six of whom namely, P.W. 4, Shakaldeo Bhagat, P.W. 9 Raudi Bhagat, P.W. 10 Sheo Shanker Prasad, P.W. 12 Hardeo Sah, P.W. 14 Jailal Prasad and P.W. 16 Raghunath Bhagat were tendered for cross-examination. Dr. Manoranjan Prasad Srivastawa who held autopsy on the dead body of Husaini Bhagat was examined as P.W. 19 while Dr. Baijnath Singh who examined the injuries on 4 out of 5 victims was examined as P.W. 20. The I.O., Shashi Kant Jha, was examined as P.W. 21. P.W. 7 Devendra Prasad was examined as formal witness. The remaining witnesses, - namely, P.W. 1 Baudhi Devi, P.W. 2 Jogendra Bhagat, P.W. 3 Jagarnath Bhagat, P.W. 5 Lakshman Mahto, P.W. 6 Bharat Thakur, P.W. 8 Ganeshi Bhagat, P.W. 11 Ram Ayodhya Prasad, P.W. 13 Ram Kishore Prasad, P.W. 15 Ghoghari Bhagat, P.W. 17 Akloo Bhagat and P.W. 18 Makhan Bhagat were examined on the point of occurrence. Out of them P.Ws. 1, 2, 3, 6, 8, 11, 13 and 18 were examined as eye witnesses. P.Ws. 1, 2, 3, 6 and 18 had, in fact, suffered injuries at the hands of the appellants. The appellants did not examine any witness in defence. At the end of the trial, the Trial Court convicted and sentenced the appe1lants in the manner indicated above. 5. Smt. Neelam Kumari, learned counsel for the appellants, submitted that the appellants have been falsely implicated in this case on account of enmity, most of the material witnesses are related to each other and therefore, not much reliance can be placed on their evidence. She also submitted that there was delay in lodging the case for which there is no explanation. The occurrence allegedly took place at 10 P.M. but the fardbeyan was lodged 10 hours thereafter at the place of occurrence without making any attempt to go to the police station. 6. It is true that some of the witnesses examined on the point of occurrence are related to the deceased and the informant but that cannot be a ground to discard their testimony. The only thing is that the Court has to apply the rule of care and caution while scrutinising their evidence but merely on the ground of relationship inter se or with the informant/deceased, as the case may be, their evidence cannot be rejected. The only thing is that the Court has to apply the rule of care and caution while scrutinising their evidence but merely on the ground of relationship inter se or with the informant/deceased, as the case may be, their evidence cannot be rejected. From the evidence on record it appears that the genesis of the occurrence was the assault on P.W. 1 Baudhi Devi. According to the prosecution, the appellants were annoyed with Baudhi Devi as she used to object to their act of taping toddy from the palm trees near her house at odd hours. Finding Baudhi Devi alone in the house the appellants went there and assaulted her. When she raised alarm those came to her rescue were assaulted too. The presence of the P. Ws. 1, 2, 6 and 18 at the place and time of occurrence, apart from P.W. 3, cannot be disbelieved in view of the injuries suffered by them at the hands of the appellants as is apparent from the injury reports, Ext. 3 series, granted by P.W. 20. While P.W. 1 Budhi Devi suffered abrasion over her right leg swelling on the right side of her neck and another swelling on right buttock, P.W. 2 Jogendra Bhagat suffered swelling on the left forearm and haemotma on the left parietal bone, P.W. 6 Bharat Thakur suffered lacerated injury on the left parietal bone, P.W. 18 Makhan Bhagat suffered swelling on the right forearm, abrasion on the right ring finger, swelling on left scapular region. The injuries were described by the doctor as simple. However, he stated in no uncertain terms that they had been caused by weapon like Lathi. What is further significant is that their evidence is quite consistent with each other and also consistent with their previous statement before the police. No contradiction whatsoever has been elicited in their cross-examination to create doubt about their presence at the time and place of occurrence. It may be mentioned that the aforesaid victims were examined by P.W. 20 at Minapur State Dispensary at the instance of the Investigating Officer. 7. As far as delay in lodging the case, is concerned. It appears from the evidence that the occurrence was first reported at the police Station at 5.15 by the local Choukidar, it was submitted that the Choukidar did not give details of the occurrence. 7. As far as delay in lodging the case, is concerned. It appears from the evidence that the occurrence was first reported at the police Station at 5.15 by the local Choukidar, it was submitted that the Choukidar did not give details of the occurrence. All that he stated was that a person had been killed at village Tegrari at the hands of some thieves. There is nothing on the record to suggest that the Choukidar had personally verified facts relating to the occurrence and therefore, if he has simply reported that some occurrence had taken place without giving details thereof, it cannot create any doubt about veracity of the prosecution case. May be as contended by the counsel, that none on the side of the prosecution went to the police station to lodge the case. However, their not going to the police station could be on account of the injuries which they had suffered in the occurrence, Considering that as many as five of them including the informant suffered injuries, the occurrence may have left the injured in a state of shock and thus if they did not go to police station in the night and waited for the dawn, it cannot be said that there was inordinate delay in lodging the case, particularly when the Choukidar had gone to the police station find lodged informant. 8. An argument was made to the effect hat though the fardbeyan is said to have been lodged at 8 A.M. on 19.11.85, from the body of the FIR it would appear that the same was received in the Court of the concerned Magistrate on 23.11.85 i.e. after• four days. The delay in despatch and receipt of the FIR by itself cannot be a ground to disbelieve the prosecution case. As the Supreme Court has explained the object of the prompt despatch of the FIR and its receipt by the concerned Magistrate is to minimis the chance of concoction but where notwithstanding the delay in despatch of the FIR, it is found that the investigation had commenced in right earnest, the delay would be insignificant. As the Supreme Court has explained the object of the prompt despatch of the FIR and its receipt by the concerned Magistrate is to minimis the chance of concoction but where notwithstanding the delay in despatch of the FIR, it is found that the investigation had commenced in right earnest, the delay would be insignificant. In the instant case, it appears that soon after the fardbeyan of Makhan Bhagat, was recorded at 8 A.M. on 19.11.85, the Investigating Officer proceeded to hold inquest at about 10 A.M., sent the dead body for post mortem at about 10.15 A.M. The post mortem was held on the same day at 4 P.M. Meanwhile statements of the witnesses were recorded u1der Section 161 Cr. P.C. Thus, the investigation having commenced soon after the lodging of the fardbeyan, if any delay occurred in despatch of the FIR and its receipt by the concerned Magistrate, no adverse inference can be drawn against the prosecution case, particularly in view of the fact that the manner of occurrence as stated in the fardbeyan finds support from the injury reports, Ext. 3 series, and the post mortem report. It may be mentioned that apart from the injured witnesses, P.Ws. 5 and 17, claimed to have reached the place of occurrence soon after the incident and seen the deceased in injured condition. They also heard the deceased naming the appellants as the persons who had assaulted him. P.W. 5, in fact, stated that he had also seen the appellants fleeing away from tile place of occurrence. P.W. 15 also spoke to the same effect. Thus the evidence of the eve witnesses including those who suffered injuries themselves in course of the occurrence amply corroborated by the evidence of other witnesses who either reached the place of occurrence soon after the incident or had seen the appellants running away from the place, leaves little room for doubt about the veracity of the prosecution case. The fact that the deceased himself named the appellants as the persons who had assaulted him also has to be given due weight. In the above premises, we find ourselves in agreement with the trial Court that the prosecution has proved its case beyond all reasonable doubts. 9. The fact that the deceased himself named the appellants as the persons who had assaulted him also has to be given due weight. In the above premises, we find ourselves in agreement with the trial Court that the prosecution has proved its case beyond all reasonable doubts. 9. Counsel for the appellants alternatively submitted that there being no intention on the part of the appellant to kill the deceased and the deceased having suffered injuries in the same transaction as other injured witnesses, the trial court was not justified in convicting the appellants for the offence of murder under Section 302 of the Penal Code. We find substance in this contention of the counsel. Section 300 of the Penal Code provides that culpable homicide is murder, if the act by which the death is caused is done firstly, with the Intention of causing death, or secondly, the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. As noticed above, the genesis of the occurrence was assault on P.W. 1 Baudhi Devi. After she raised alarm the injured witnesses and the deceased came there to rescue her from the appellants and were assaulted in turn, one by one. Besides, P.W. 1 Baudhi Devi, P.Ws. 2, 6 and 18 suffered minor injuries. The injury on the deceased, however, proved fatal. It is significant to mention that in the post mortem report, only two bruises of the size of 4" x1/4" on the right side of chest and 2" x 1/4" on occipital region of skull bone were found on the person of the deceased. After opening the vault of the skull bone the doctor found that the occipital bone fractured and subdural haemotoma behind the 1" x 1" fracture. 10. After opening the vault of the skull bone the doctor found that the occipital bone fractured and subdural haemotoma behind the 1" x 1" fracture. 10. It is clear from the manner of occurrence that the appellants first assaulted P.W. 1 Baudhi Devi and later assaulted all those who come to rescue her and in that process the deceased too suffered injuries. While the similar assault on the injured witnesses caused simple injuries, like bruises, swelling or even lacerated injury, so far as the deceased is concerned, one of the blows hitting the occipital region of the skull caused fracture of the skull bone. It would thus appear that all that the appellants wanted was to assault P.W. 1 Baudhi Devi at the first instance and in that process assaulted others too who came in their way to rescue her. The intention was never to kill any of them. Nor there is any evidence to suggest that the appellants knew that the lathi blow was likely to cause such injury to the deceased as to cause his death or any badly injury sufficient in the ordinary course to cause death or so imminently dangerous as in all probability to cause one's death. The question arises as to whether the conviction of the appellants can be altered from Section 302 to 304 of the Penal Code. Inasmuch as the case does not fall under any of the five exceptions appended to Section 300, it is not possible to alter the conviction to Section 304 it is not possible to alter the conviction to Section 304 but as none of the clauses of section 300 is attracted, we are of the view that the offence would fall within the mischief of Section 325 of the Penal Code. 11. We would accordingly set aside the conviction of the appellants under Section 302, and instead convict them under Section 325 of the Code and sentence them to rigorous imprisonment for 5 years. The aopella'1ts are on bail. Their bail bonds are cencelled and they are directed to surrender in the court below to serve the remainder of the sentences. With this modification in conviction and sentence the appeal is dismissed.