JUDGMENT 1. - The abovementioned accused-appellant has preferred this appeal against the judgment and order dated 12.7.2002 passed by the learned Additional Sessions Judge, Banswara camp Kushalgarh in Sessions Case No. 81/2001 by which he convicted the accused-appellant for offence u/s. 302 IPC and sentenced him to imprisonment for life and a fine of Rs. 5,000/-, in default of payment of fine to further undergo 2 years RI. 2. It arises in the following circumstances : (i) That on 9.3.2001 at about 7.30 a.m., PW-2 Rajesh lodged an oral report (Ex.P/2) in the M.G. Hospital, Banswara before PW- 10 Bhanwar Singh, ASI inter alia stating that Gautam (accused-appellant) was his nephew in relation and on 8.3.200 1, guests were in the house of the accused-appellant and he and his son Bhoor Singh (hereinafter referred to as `the deceased') had also gone there on being called by the accused-appellant and thereafter the guests had left the house of the accused-appellant for their village Unkala. It was further stated in the report (Ex.P/2) lodged by PW-2 Rajesh that thereafter his son (deceased), one Par Singh, Dhula (PW-9) and PW-7 Dharu were sitting there as they had not left the hous' of the accused-appellant and at that time, there was about 3.30 p.m. It was further stated in the report (Ex.P/2) by PW-2 Rajesh that accused-appellant asked the deceased as to why'he had come to his house, upon this, the deceased stated to him that since he was invited by the accused- appellant, therefore, he had come. It was further stated in the report (Ex.P/2) that thereafter the accused-appellant started abusing the deceased and when the deceased started to go back, the accused-appellant went inside the house and brought a lathi and gave a lathi blow from backside on the head of the deceased, as a result of which, he fell down and one another lathi blow was given by the accused-appellant on the head. It was further stated in the report (Ex.P/2) that PW-2 Rajesh and other persons ran towards the deceased and intervened, but the accused appellant gave another blow on the back of the deceased and on account of the injuries blood came out from the head of the deceased and the deceased became unconscious on the spot and thereafter he (PW-2 Rajesh) and Ram Lal PW-3), Roop Singh and Gor Singh took the deceased in the jeep to the hospital at Dungra from where he was referred to Banswara, Hospital, where he was admitted, but he died. (ii) That on this report (Ex.P/2), regular FIR Ex.P/11 was chalked out and investigation was commenced and during the course of investigation, post-mortem of body of the deceased was got conducted by PW-1 Dr. Sudhindra Kumar Bhatnagar and his post-mortem report is Ex.P/1 which shows that the cause of death of the deceased was head injury. (iii) That the accused-appellant was got arrested on 9.3.2001 through Fard Ex.P/9. (ix) After investigation challan was filed against the accused-appellant in the Court of learned Magistrate from where the case was committed to the Court of Sessions and the learned Additional Sessions Judge vide order dated 27.7.2001 framed charge against the accused-appellant for offence u/s. 302 IPC which was denied by the accused-appellant and he claimed trial. (x) During trial statements of 10 witnesses were recorded on behalf of the prosecution and thereafter statement of accused-appellant u/s. 313 Cr.P.C. was recorded, but no witness was examined in defence. (xii) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dated 12.7.2002 convicted and sentenced the accused-appellant as stated above. (xii) After being aggrieved by the judgment and order dated 12.7.2002 the accused-appellant has preferred the present appeal. 4. (xii) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dated 12.7.2002 convicted and sentenced the accused-appellant as stated above. (xii) After being aggrieved by the judgment and order dated 12.7.2002 the accused-appellant has preferred the present appeal. 4. In this appeal, the following submissions have been raised by the learned counsel for the accused-appellant : (i) That since in this case eye-witnesses, namely, PW-3 Ram Lad, PW-7 Dharu and PW-9 Dhula have been declared hostile and some of the witnesses whose names had been mentioned in the report (Ex.P/2) have not been produced, therefore, the case of the prosecution should not have been accepted as PW-2 Rajesh on whose statement reliance has been placed by the learned Additional Sessions Judge is an interested witness being father of the deceased and hence, there is no corroboration to the statement of PW-2 Rajesh and because of this fact, conviction of the accused- appellant should not be sustained. (ii) That for the sake of arguments, if this Court comes to the conclusion that the accused-appellant has committed any offence, the same cannot travel beyond Section 325 IPC or at most Section 304(11) IPC and thus, findings of conviction recorded by the learned Additional Sessions Judge be altered accordingly. 5. On the other hand, the learned Public Prosecutor has supported the judgment and order dated 12.7.2002 and submitted that the same are based on proper appreciation of evidence available on record and do not require any interference by this Court.6. Heard and perused the record.7. Before proceedings further medical evidence in this case has to be seen which is found in the statement of PW-1 Dr. Sudhindra Kumar Bhatnagar who conducted the post-mortem of the body of the deceased.8. PW-1 Dr. Sudhindra Kumar Bhatnagar has stated that on 9.3.2001, he was medical jurist in M.G. Hospital, Banswara and he conducted the post-mortem of the body of the deceased and he found following injuries on the body of the deceased : (i) Lacerated wound with swelling 7 x 3 x bone deep left side saggesto frontal region. (ii) Bruise 7 x 2 cm. Left side back. 9. PW-1 Dr. Sudhindra Kumar Bhatnagar has proved the post-mortem report (Ex.P/1) and has opined that the cause of death was head injury.10. Thus, from the statement of PW-1 Dr. (ii) Bruise 7 x 2 cm. Left side back. 9. PW-1 Dr. Sudhindra Kumar Bhatnagar has proved the post-mortem report (Ex.P/1) and has opined that the cause of death was head injury.10. Thus, from the statement of PW-1 Dr. Sudhindra Kumar Bhatnagar the fact that death of the deceased was homicidal one is well established and further more, he received only one lacerated wound on his head and one simple injury on his back by blunt weapon.11. There is no dispute on the point that the accused was nephew of PW-2 Rajesh. There is also no dispute on the point that other eye-witnesses, namely PW-3 Ram Lal, PW-7 Dharu and PW-9 Dhula whose names are found in the report (Ex.P/2) have been declared hostile and thus, there remains the solitary statement of PW-2 Rajesh and there is also no dispute on the point that PW-2 Rajesh is father of the deceased.Before examining in the evidence of the alleged eye-witness, something should also be said about the evidence of relatives.EVIDENCE OF RELATIVES12. Relationship by itself is not a ground to discredit testimony of witness, if it is otherwise found to be consistent and true, as held by the Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, AIR 1976 SC 2304 . 13. Similarly, the Hon'ble Supreme Court in State of Rajasthan v. Kalki & Ors., AIR 1981 SC 1390 has held as under : ""Related" is not equivalent to interested. A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in a decree in a civil case, or in seeing an accused person punished.. A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be "interested"." In this respect, the decisions of the Hon'ble Supreme Court in Ram Adhar v. State of U.P., AIR 1970 SC 707 , Gopal Singh v. State of U.P., AIR 1979 SC 1822 and State of Punjab v. Wassan Singh & Ors. , AIR 1981 SC 697 may be seen.14. Thus, evidence of relative where he happens to be an eye-witness, would be assessed carefully. This is the only rule of caution. , AIR 1981 SC 697 may be seen.14. Thus, evidence of relative where he happens to be an eye-witness, would be assessed carefully. This is the only rule of caution. Where prior enmity of accused against the deceased and the witness is established as in the present case is also there, in such a case, evidence of such eye-witness has to be examined cautiously. However, the plea that their evidence should be rejected outright is not tenable.15. Keeping the above well settled principles in mind, the evidence of alleged eye-witness, namely, PW-2 Rajesh is being examined.16. PW-2 Rajesh has stated that accused-appellant gave lathi blow on the head of the deceased and at that time, Par Singh and Gor Singh who have not been produced at the trial were present and the accused-appellant also caused injury on the back of the deceased. PW-2 Rajesh has been cross-examined and following facts have emerged from his cross-examination:- (i) That the accused-appellant was his nephew. (ii) That there was no enmity of him with the accused-appellant. (iii) That there was blood on the spot etc. etc. 17. Since in this case report (Ex.P/2) was lodged by PW-2 Rajesh just after the occurrence, and no doubt names of some of the witnesses were mentioned in the report (Ex.P/2), but they have been declared hostile, it does not mean that statement of PW-2.Zjesh should have been rejected merely on the ground that he was father of the deceased.SOLITARY WITNESS18. The Hon'ble Supreme Court in Jagdish Prasad v. State of M.P., 1995 SCC (Cr) 160 has held that testimony of a solitary witness can be acted upon, if entirely reliable and corroboration is required only in case of doubt or suspicion.19. It is settled law that corroboration is not rule of law, but one of caution as an assurance. The conviction could be made on the basis of testimony of solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness to the victim, his predisposition towards the accused, are some of the circumstances to be kept in view to weight and accept the ocular evidence of a witness. It is not the quantum of the evidence, but its quality and credibility of the witness that lends assurance to the Court for acceptance. It is not the quantum of the evidence, but its quality and credibility of the witness that lends assurance to the Court for acceptance. For that the decision of the Hon'ble Supreme Court in Mikiyath Singh v. State of Punjab, 1991(2) Crimes Vol. 2 (SC) 191 may be referred to.20. Thus, it can be concluded that (i) As a general rule, a Court can and may act on the testimony if a single though uncorroborated. One credible witness outweight the testimony of a number of other witnesses of indifferent character. (ii) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness whose evidence is that of an accomplice or of an analogous character. (iii) Whether corroboration of the testimony of single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. 21. Since in this cast, the report (Ex.P/2) was lodged by PW-2 Rajesh treating himself to be an eye-witness and thus presence of PW-2 Rajesh on the spot does not create any doubt and further more statement of PW-2 Rajesh further gets corroboration from the medical evidence and therefore, if the learned trial Judge has placed reliance on the solitary statement of PW-2 Rajesh, he has committed no illegality and thus, it is held that in this case, PW-2 Rajesh is reliable witness.22. When the statement of PW-2 Rajesh is relied upon, the fact that the injuries which were found on the body of the deceased were caused by the accused-appellant is also well established. Thus, it is concluded that the injuries which were found on the body of the deceased as mentioned in post-mortem report (Ex.P/1) were caused by the accused-appellant.23. Before proceeding further, it may be stated here that following facts have -merged in this case : (i) That the accused-appellant was the nephew of PW-2 Rajesh and the deceased and the accused-appellant were close relatives. (ii) That incident had taken place in the Bara of accused-appellant when PW-2 Rajesh, deceased and others were invited. Before proceeding further, it may be stated here that following facts have -merged in this case : (i) That the accused-appellant was the nephew of PW-2 Rajesh and the deceased and the accused-appellant were close relatives. (ii) That incident had taken place in the Bara of accused-appellant when PW-2 Rajesh, deceased and others were invited. (iii) That the weapon which has been used by the accused-appellant as ordinary in nature i.e. lathi and nor sharp edged or dangerous weapon. (iv) That as per the statement of PW-2 Rajesh, there was no enmity or quarrel between the accused-appellant and PW-2 Rajesh. (v) That the incident had taken place on the spur of moment and without pre-meditation when the accused-appellant asked the deceased as to why he had come to his house. (vi) That as per the post-mortem report (Ex.P/1), there was only one injury on the head of the deceased and thus, it can be concluded that on the head, the accused-appellant gave only one blow. 24. For adjudging the intention on the part of the accused-appellant to cause murder of the deceased, the nature of weapon used, manner in which it is used, motive for crime, severity of blow, part of the body where injuries are inflicted are some of the facts that may be taken into consideration.25. If above factos are taken into consideration, it appears that the accused-appellant was not having any intention to cause murder of the deceased as only one fatal blow was given by him on the head of the deceased from back side. Thus', by causing injury on the head of the deceased, the accused-appellant might have knowledge that by that act, death could have been caused, but it cannot reasonably be inferred that there was intention on the part of the accused-appellant to cause murder of the deceased.26. Thus', by causing injury on the head of the deceased, the accused-appellant might have knowledge that by that act, death could have been caused, but it cannot reasonably be inferred that there was intention on the part of the accused-appellant to cause murder of the deceased.26. The intention on the part of the accused-appellant to murder the deceased cannot be inferred in the present case because of the simple reason that there was no enmity between the accused-appellant and PW-2 Rajesh and the incident had taken place at the house of the accused-appellant and before" that there was trivial altercation between the deceased and accused-appellant on the point as to why the deceased had come to his house and the deceased stated to the accused-appellant that he had come because he was invited and further more presence of the deceased in the house of the accused-appellant cannot be said to be surprising as both were relatives. Apart from this, the weapon which was used by the accused-appellant was ordinary lathi and not dangerous weapon like "farsa" or sword and further more, the incident had taken place on the spur of moment and without pre-meditation, therefore, from this point of view also, the intention on the part of the accused-appellant to cause murder of the deceased cannot be inferred.27. Thus, element of intention is missing in the present case and knowledge on the part of the accused-appellant can be attributed and therefore, the act of the accused would be covered by Cl. IV of Section 300 IPC punishalbe u/s. 304 Part II IPC and not u/s. 302 IPC.28. The following observations made by the Hon'ble Supreme Court in State of U.P. v. Indrajeet @ Sukhatha, JT 2000(9) SC 426 would further strengthen the view taken by us : "Indian Penal Code, 1860 Sections 302, 304 Part II - Murder - Accused, a carpenter, entering into the hut of victim at 4.00 a.m. - Armed with "Rukhani" an implement of carpentry - Only two injuries inflicted, out of which only one sufficient to cause death in normal course - Parents of deceased in hut - If murder with intention to kill. Held that there is no intention to kill and hence conviction from Section 302 to 304 Part II was rightly converted." 29. Held that there is no intention to kill and hence conviction from Section 302 to 304 Part II was rightly converted." 29. In this respect, it has been submitted by the learned Public Prosecutor that since there was one injury also on the back of the deceased, therefore, intention on the part of the accused to murder the deceased should be assumed. In our considered opinion, this argument carries no weight because of the law laid down in the case of State of U.P. v. Indrajeet (supra) as in that case also there were two injuries and out of two injuries, one was found fatal and same situation is in present case as there was only one head injury on the body of the deceased which was found fatal and other injury was found simple in nature. Apart from this, in the above case, the injuries were caused by "Rukhani", while in the present case, the injuries were caused by lathi which is generally found with the villagers and thus, lathi cannot be said to be dangerous weapon.30. We, therefore, hold that the accused-appellant by causing one injury on the head of the deceased, has not committed the offence of culpable homicide amounting to murder punishable u/s. 302 IPC, but instead has committed the offence of culpable homicide not amounting to murder punishable u/s. 304 Part II IPC and thus, the findings of learned Additional Sessions Judge are to be altered accordingly to the above extent.ON POINT OF SENTENCE31. So far as point of sentence for offence u/s. 304 Part II IPC is concerned, the accused-appellant is in jail since 9.3.2001 and after taking into consideration all the circumstances of the case, we think that ends of justice would meet, if the accused-appellant is sentenced for 10 years' RI for offence u/s. 304 Part II IPC and the order of sentence passed by the learned Additional Sessions Judge is to be modified accordingly.For the reasons mentioned above, this appeal is partly allowed. The conviction of the accused-appellant is altered from Section 302 IPC to Section 304 Part II IPC and he is accordingly convicted u/s. 304 Part II IPC and for the said offence he is sentenced to 10 years' RI. The judgment and order dated 12.7.2002 passed by the learned Additional Sessions Judge, Banswara Camp at Kushalgarh stand modified accordingly. The conviction of the accused-appellant is altered from Section 302 IPC to Section 304 Part II IPC and he is accordingly convicted u/s. 304 Part II IPC and for the said offence he is sentenced to 10 years' RI. The judgment and order dated 12.7.2002 passed by the learned Additional Sessions Judge, Banswara Camp at Kushalgarh stand modified accordingly. However, the order of fine passed by the learned Additional Sessions Judge, Banswara camp at Kushalgarh is maintained.Appeal partly allowed. *******