CH. S. R. K. PRASAD, J. ( 1 ) THE accused has preferred this appeal against the conviction and sentence of imprisonment for life and imposition of fine of rs. 300/-, in default Simple Imprisonment for one month for the offence under Section 302 ipc and also conviction and sentence to undergo Rigorous Imprisonment for one year and imposition of fine of Rs. 300/- in default simple Imprisonment for one month for the offence under Section 498-A IPC awarded by the II Additional Sessions Judge, Warangal in S. C. No. 602 of 2000. ( 2 ) THE incident which gives raise to the present criminal appeal happened on 10-3-2000 at about 8. 00 p. m. The accused beat his wife T. Lachamma, who was married about 30 years ago blessed with three sons and one daughter. After abusing her in filthy language, he pressed on her throat with leg and hands in fully drunken condition, which led to the death of Lachamma on 11 -3-2000. On the strength of a report given by P. W. 1 cr. No. 20 of 2000 under Section 302 and 498-A IPC was registered by P. W. 11. Thereafter, P. W. 12 proceeded to the scene of offence after recording the statement of p. W. 1 on 11 -3-2000. He conducted scene of offence panchanama and also prepared ex. P-2 inquest panchanama and sent the body to post-mortem examination. P. W. 10 conducted autopsy over the dead body and opined that the deceased was already malnourished, emaciated, dehydrated state and injury over chest and traumatic incident and prolonged starvation precipitated her ill- health leading to peripheral shock, coma and death. P. W. 13 another Circle Inspector arrested the accused on 10-4-2000 and laid charge-sheet. The accused has pleaded not guilty for offenses under Sections 302 and 498-A IPC. The prosecution in all examined 13 witness. Ex. P-1 is the complaint, Ex. P-2 is the inquest panchanama, Ex. P-3 is the scene of offence panchanama, Ex. P-5 is the postmortem certificate and Ex. P-6 is the first information report. The prosecution has mainly relied on the evidence of P. W. 2 being the son and P. W. 3 being the daughter-in-law of the deceased. The prosecution has also placed extra judicial confession said to have been made by P. W. 5 to P. W. 4 who has been brought by himfor treatment of thedeceased. The prosecution has mainly relied on the evidence of P. W. 2 being the son and P. W. 3 being the daughter-in-law of the deceased. The prosecution has also placed extra judicial confession said to have been made by P. W. 5 to P. W. 4 who has been brought by himfor treatment of thedeceased. It has also placed medical evidence opining that the deceased died due to malnutrition, emaciated, dehydrated state and prolonged starvation precipitated her ill-health leading to peripheral shock, coma and death. After appraisal of the entire evidence, the learned additional Sessions Judge has recorded a finding of guilt against the accused for the offence under Sections 302 and 498-A IPC and awarded sentences referred to above. Aggrieved by the same, the accused has preferred this appeal through jail. The accused is defended by the legal aid counsel. ( 3 ) IT is mainly contended by the learned counsel appearing on behalf of the appellant that the evidence of P. Ws. 2,3,5 and 7 are interested. It is also contended that accused was in a drunken position and not in a position and capable of knowing of his acts and he is entitled to benefit under Section 85 IPC. It is further contended that the accused has no intention to kiil her and at best the offence may fall under Section 304 Part-ll IPC. He has placed reliance on the doctor s evidence. ( 4 ) THE learned Public Prosecutor has contended that the eyewitness account has been given by P. Ws. 2 and 3 and there is extra judicial confession made by the accused before P. Ws. 4. It is also contended by the prosecutor that she was caused injuries, which led to her death. ( 5 ) ADVERTING to the said contentions, we have to see whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the alleged charges. P. W. 2 is the son. He spoke about his father consuming too much gudumba and put his leg on the neck and chest of his mother and pressed on her and beat her with hands. According to his evidence he came to his residence at about 8. 00 p. m. , and himself and his brother s wife were present at the time of the incident. According to his evidence he came to his residence at about 8. 00 p. m. , and himself and his brother s wife were present at the time of the incident. According to him, he did not resist his father at the time of the incident and his brother s wife Bhagya asked the accused to keep quite and not to beat herand the neighbours did not intervene. It is also in his evidence that they have shifted his mother to the hospital and his mother has talked with him in the night. He admits that P. W. 1 came to his house and gave complaint to the police station. He is a child witness. His age was given as 10 years in the year 2001. The incident is said to have happened during march, 2000. Children are a most untrustworthy class of witnesses for, when of a tender age, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety. When considering evidence of child witnesses, these observations should not be lost sight of, although each case would depend upon its particular facts and circumstances. His evidence should be scanned carefully. If no flaws or infirmities are found therein, there is no impediment in accepting it. Court should see if there are signs of tutoring. Normally Court should look for corroboration, more by way of caution and prudence and not as a rule of law. P. W. 2 obviously young in age and he was with his mother. He has spoken to about the beating of his mother. P. W. 3 corroborates the testimony of P. W. 2. She also stated that the accused took guedumba and he used to beat the deceased daily demanding money for purchasing gudumba. She has corroborated the evidence of P. W. 2 in all material particulars, namely, the accused pressing on the chest and neck of the decease by his leg at the time of the incident. She categorically stated that the deceased died on account of the beatings of the accused. She has stated that the incident might have taken place at 9. 00 p. m. , or 10. 00 p. m. , and she was not having any watch. She categorically stated that the deceased died on account of the beatings of the accused. She has stated that the incident might have taken place at 9. 00 p. m. , or 10. 00 p. m. , and she was not having any watch. It is also in her evidence that when the accused was beating the deceased, she did not enter into their room. After the incident they slept in the house as usual. She claims that the husband brought doctoron the next day morning. It is suggested to this witness that the accused beat her mother-in-law and her mother-in-law fell on the ground and received injuries on account of B. P. It is clear from her evidence that there is discrepancy relating to the timing. No body can give the timing with mathematical precision. Both of them spoke about beating and death. After all she was staying in the same house and it is but natural that P. W. 2 with tender years to be with his mother. When the incident took place in the house during night time, neighbours cannot be expected to come. The evidence of the child witness has to be considered along with medical evidence to know the truth. Obviously, P. W. 10, Dr. V. Vedavathi noticed three injuries which are as follows: (1) Single transverse abrasion found measuring 4 to 5 c. ms. , which indicates skin fold. (2) Contusion measuring 3 c. ms. , dia left side of the chest. (3) Internal injuries. Muscle discoloration due to vessels bleeding corresponding to injury No. 2 i. e. , contusion measuring 3 c. ms. , dia on the left side of chest. (4) Ribs are intact. She conducted autopsy over the dead body. If those injuries are taken into consideration, what P. W. 2 spoke is nearer to truth and cannot said to be falsehood or exaggerated version given by him. Apart from this direct witness, there is extra judicial confession said to have been made by P. W. 4, Pitta sreenivas. He categorically stated that he was working as R. M. P. doctor since 12years. The son of the accused came to his house and stated that his mother was ill and requested him to give treatment. When he went to the house of the accused, he saw lachamma with injuries on her neck; chest and herface became blackish due to injuries. The son of the accused came to his house and stated that his mother was ill and requested him to give treatment. When he went to the house of the accused, he saw lachamma with injuries on her neck; chest and herface became blackish due to injuries. Her questioned the accused as to what happened to Lachamma and the accused told him that he beat her when she abused in filthy language. The accused refused to take her to the hospital and stated let her die and abused her in filthy language. P. W. 4 is an independent witness. Thefact is corroborated by P. Ws. 2 and 3. The extra judicial confession said to have been made appears to be truthful and reliable. There is no motive for P. W. 4 to speak falsehood. He supports the version of the prosecution. Moreover, P. Ws. 2 and 3 informed that Lachamma died due to beatings by the accused to P. W. 6, who is a neighbour. It also supports the version of the prosecution. P. Ws. 6 and 7 went to the house of the accused and saw the deceased with injuries on chest, neck etc. She was in serious condition. During the examination under section 313 Cr. P. C. , the accused has stated that his wife has got B. P. , she sustained injuries due to fall. He could not take her to the doctor due to lack of money, It is in the evidence of P. Ws. 2 and 3 that the accused was regularly beating his wife. Is it possible to sustain injuries 1 to 3 due to fall? P. W. 10 being doctor gave out the cause of death which reads as follows:"cause of death in my opinion is: The deceased is already malnourished, emaciated, dehydrated state, these first injury over chest and traumatic incident and prolonged starvation precipitated her ill-health leading to peripheral shock, coma and death". It is clear that the deceased was having malnutrition and she was in dehydrated state and the prolonged starvation precipitated her ill-health leading to peripheral shock, coma and death. P. W. 10 found three injuries over the body of the deceased, namely, single transverse abrasion measuring 4 to 5 cms. , contusion measuring 3 cms. , dia left side of the chest, and muscle dislocation due to vessels bleeding corresponding to injury no. 2. P. W. 10 found three injuries over the body of the deceased, namely, single transverse abrasion measuring 4 to 5 cms. , contusion measuring 3 cms. , dia left side of the chest, and muscle dislocation due to vessels bleeding corresponding to injury no. 2. The said injuries cannot be caused due to a fall or from B. P. In all probability they can be caused by beating. She opined that the injuries are simple. Death was certainly caused due to the said injuries. We find that injuries can be caused due to beating which let to her death. It is also corroborated by the evidence of P. W. 4 who stated that the deceased was having injuries on her neck and chest. The ocular evidence, the res gestate evidence and extra judicial confession made by P. W. 4 would amply probabilise the version of the prosecution. ( 6 ) IT is mainly contended by the learned counsel for the accused that injuriesfound as such will not cause death and the deceased died due to malnutrition etc. , and hence the offence may not fall under Section 304 IPC. , and it may fall under Section 302 Part-ll IPC. He placed reliance on decision reported in madhukar Awadhutroa Taide v. State of maharashtra and Lal Mondi v. State of West bangal and contends that the offence will fall under Section 325 IPC. ( 7 ) ADVERTING to the same, it is held by the apex Court in Lal Mondi v. State of West bengal held at paras 3,7 and 8 as under: "3. . . . . . . . . . . . . . . . . . P. W. 2, the husband of the deceased, who made no efforts either to save his wife from being assaulted in his very presence or from being forcibly dragged from his house also create a doubt about his presence at the time of the occurrence. Both the submissions were rejected by the trial court and in our opinion rightly and for cogent reasons with which we agree. 7. . . . . . . . . . . . . . . . . . . Both the submissions were rejected by the trial court and in our opinion rightly and for cogent reasons with which we agree. 7. . . . . . . . . . . . . . . . . . . IN the face of all these circumstances, in our opinion it would not be safe to hold that the appellant shared the common intention with the absconding co-accused in either causing the death of the deceased or in destroying the evidence to screen the offender. 8. . . . . . . . . . . . . . . . . . WE accordingly set aside his conviction and sentence for the offence under Section 302/34 IPC and 201 IPC and instead find him guilty of an offence under section 325/34 IPC and sentence him to suffer rigorous imprisonment for the period already undergone by him. This appeal, therefore, succeeds to the limited extent as noticed above. "it is also held by the Apex Court in Madhukar awadhutroa Taide v. State of Maharashtra (supra 1) at paras 4,7 and 8 as under:"4. . . . . . . . . . . . . . She has stated in her evidence that Gujanan came and reported the incident that Panjabrao was severely beaten and was lying near the shop of accused No. 1. In her report, she has specifically named that Gajanan told her the names of Madhu, Damo, prakash and Anya meaning the accused herein. There is nothing to disbelieve asha as she immediately seems to have gone near the decease after being informed by Gajanan. . . . . . . . . . . . . . . P. W. 3 jankibai is the other witness who had seen Panjabrao standing near the shop of accused No. 1 with the bottle in his hand at about the same time, i. e. , about 7 to 7. 45 p. m. 7. . . . . . . . . . . . . . . IT is a common feature in the village that the people normally avoid to become the witnesses even if they have witnesses the incident. It is not the number of witnesses which matters but the quality of evidence. 45 p. m. 7. . . . . . . . . . . . . . . IT is a common feature in the village that the people normally avoid to become the witnesses even if they have witnesses the incident. It is not the number of witnesses which matters but the quality of evidence. Considering the evidence of P. W. 2 read with evidence of P. W. 1, it seems that Gajanan is a truthful witness who had seen his uncle being brutally assaulted. He immediately went and named the assailants to his aunt who has immediately lodged the first Information Report naming all the accused persons. 8. . . . . . . . . . . . . . . . . . . ONEGLANCE at the section would show that it will have to be shown that a particular weapon was used in the offence and further that the said weapon of offence was likely to cause death. Admittedly the stick by which the offence is committed is not identified . The evidence is against Prakash who has discovered the said stick. Unless that stick was identified by the witness in the evidence and unless the Court came to independent conclusion that the stick was capable of causing death, the conviction under Section 326 would not be possible. In that case, the conviction would be under Section 325 as admittedly the deceased died because of the grievous injuries on his body including the fracture to his head which was well established in the postmortem report. Apart from that, the injury suffered by the accused was such which was dangerous to his life. The conviction, therefore, will have to be altered from Section 326 to that under section 325 and the appeal would succeed only to this extent. Apart from that, the injury suffered by the accused was such which was dangerous to his life. The conviction, therefore, will have to be altered from Section 326 to that under section 325 and the appeal would succeed only to this extent. "section 300 IPC reads as follows:"except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or secondly, If it is done with 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, If it is done 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 tocause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. "it is clear from the illustrations of Section 300 ipc that the person giving a blow knows about the deceased was suffering with a disease and the blow is likely to cause death it will come under. the definition of murder. It is a case where the deceased was having malnutrition and the accused was under intoxication of gudumba. As can be seen from the evidence of P. Ws. 2 and 3, the accused has no definite intention to cause murder since he did not kill her. What they stated is that he beat and put his leg on her chest. It only causes a rupture of vessels. The injuries are simple in nature and said to have been caused without any intention to cause death, ( 8 ) THE contention of the learned counsel for the accused that he was not in a position, capable of knowing the acts what he was doing and he is entitled to be given benefit under Section 85 IPC has no legs to stand since he took gudumba and not administered by any body without his knowledge or against his will. The offence certainly will fall under Section 304 Part-ll and not under sections 326 or 325 IPC since there is no evidence regarding injuries caused endanger to life. ( 9 ) ON a reappraisal of the entire evidence, we find the ocular evidence is reliable and the extra judicial confessions truthful and believable. We also find that the ocular evidence is supported by medical evidence. P. Ws. 1 and 2 also spoke about regular beating by the husband, which amply proves the offence under Section 498-AIPC. Hence, we find the accused guilty for offences under Section 304 Part II as well as under section 498-A IPC. Accordingly, we convict and sentence the accused to undergo rigorous Imprisonment for a period of Seven years under Section 304 Part-ll IPC. We confirm the sentence awarded by the trial court under Section 498-A IPC. We also confirm the imposition of fine amounts of rs. 300/- each under Section 304 II IPC as well as under Section 498-A IPC. Both sentences shall run concurrently. The period of custody is ordered to be given set off. ( 10 ) THE criminal appeal is partly allowed.