Judgment Mehtab S.Gill, J. 1. This is an appeal against the judgment dated 12.10.1996 of the Sessions Judge, Rohtak whereby he convicted Raju alias Raj Kumar under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default of payment of fine, to further undergo R.I. for one year. He further convicted Babita wife of Raju alias Raj Kumar under Sections 302/34 I.P.C. and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 200/- I.P.C. and in default of payment of fine, to undergo R.I. for six months. 2. Case of the prosecution is unfolded by the statement given by PW-6 Om Parkash son of Sant Lal to SI Randhir Singh in Police Station City, Rohtak. He stated that he is an inhabitant of Dehri Mohalla, Rohtak and works in a cloth shop. His nephew Pappu alias Rakesh son of Chiman Lal was married to Babita daughter of Birbal in the year 1987. Out of this wedlock, Rakesh had three children, two boys and one girl. Babita started having illicit relations with Raju son of Som Nath who also lived in the same mohalla. Complainant tried to explain to Raju and Babita not to carry on with this relationship, but they did not desist. On 8.7.1985, complainant Om Parkash (PW-6) along with his elder brother Hans Raj went to the house of his nephew Rakesh, where - they saw Raju inflicting injuries on Rakesh with a hockey stick and Babita was giving him slaps and fist blows. Rakesh was crying. The blows inflicted by Raju hit on the head and other parts of the body of Rakesh. Om Parkash and Hans Raj intervened. The children of Rakesh were weeping, but out of fear they did not speak. Raju then went away taking his hockey along. Gagan son of Rakesh told Om Parkash that Raju was on visiting terms during day and night to their house. Babita then asked them to leave the house saying that it was their personal matter. Complainant Om Parkash and Hans Raj returned to their house. On 9.7.1995, Om Parkash went to enquire about the health of Rakesh. Rakesh was lying on a sofa in an unconscious condition. He had vomited and urinated though the injuries on his person were not visible. Complainant Om Parkash and Hans Raj returned to their house. On 9.7.1995, Om Parkash went to enquire about the health of Rakesh. Rakesh was lying on a sofa in an unconscious condition. He had vomited and urinated though the injuries on his person were not visible. Om Parkash asked Gagan as to where his mother was. He stated that his mother and Raju had gone somewhere. Om Parkash then took Rakesh to the Medical College Hospital, Rohtak for treatment. Matter was not reported to the police as Om Parkash feared that he may be blamed for nothing. Rakesh died in the Medical College Hospital, Rohtak on 11.7.1995. Statement of Om Parkash was recorded on 11.7.1995 at 4 p.m. by SI Randhir Singh. 3. Prosecution to prove its case, brought into the witness-box PW-1 Dharam Pal, PW-2 Dr. Manju Arora, PW-3 Constable Raju, PW-4 Inspector Fateh Singh, PW-5 Dr. Ashok Bhatia, PW-6 Om Parkash complainant, PW-7 Gagan and PW-8 SI Randhir Singh. 4. Learned counsel for the appellants has argued that there is an unexplained delay of 3 days in lodging of the F.I.R. Occurrence had taken place on 8.7.1995 in the evening. Statement of Om Parkash (PW-6) was recorded on 11.7.1995 at 4 p.m. after the death of Rakesh. Though Rakesh deceased was the nephew of complainant Om Parkash (PW-6), but he did not show any urgency to report the matter to the police, PW-6 Om Parkash was no stranger to the family and if he had seen the injuries being inflicted on Rakesh his nephew, he would have, in the natural course of events, gone to the police to inform them. Occurrence had not taken place in some remote area that the matter could not be reported, but in the town of Rohtak. The special report reached the Illaqa Magistrate on 11.7.1995 at 7.10 p.m. 5. PW-6 Om Parkash came into the witness-box and did not support the prosecution case. The other eye-witness Hans Raj was not produced by the prosecution. It is not believable that Om Parkash (PW-6) and Hans Raj though seeing their nephew being beaten, they did not intervene to try to save him. Learned counsel has further argued that the date of occurrence has not been corroborated by any of the witnesses, they have contradicted each other. PW-6 Om Parkash has stated that occurrence had taken place on 8.7.1995. Learned counsel has further argued that the date of occurrence has not been corroborated by any of the witnesses, they have contradicted each other. PW-6 Om Parkash has stated that occurrence had taken place on 8.7.1995. PW-7 Gagan son of the deceased, has stated that occurrence had taken place on 7.7.1985 and PW-8 SI Randhir Singh, the Investigating Officer, has stated that occurrence had taken place on 2.7.1995. 6. Appellants cannot be convicted on the basis of the statement of a sole eye-witness Gagan (PW-7) who is a child of seven years and is the son of the deceased. 7. Learned counsel for the appellants has further argued that there is only one injury i.e. injury No. 4, which was fatal. Injury No. 4 caused a haemotoma near the ear of the deceased. The other three injuries are not of a serious nature. Case of the appellants at the most fell under the category of Section 304 Part-II I.P.C. Appellants did not have the intention to cause death of Rakesh, but at the most, it was to cause injuries and to intimidate him, so that he did not interfere in the illicit relationship between appellant Raju and Babita. 8. Learned counsel for the State has stated that the delay in recording of the F.I.R. is due to the reason that complainant Om Parkash (PW-6) feared that he may get into trouble if he reported the matter to the police. Further, Om Parkash did not want to interfere in the personal affair of Babita and Raju. Om Parkash (PW-6) had asked appellants Babita and Raju to desist from having an illicit relationship, but appellant Babita had told him to mind his own business. Injuries inflicted on the person of the deceased at that time did not seem to be of a serious nature to PW-6 Om Parkash complainant. It was only on the next day when he went to meet deceased Rakesh, he saw that he was not in good health, though there were no external marks of injuries. Testimony of PW-7 Gagan son of Rakesh is cogent and convincing. Though a child of seven years, he stood the test of cross-examination. 9. We have heard the learned counsel for the parties and perused the record with their assistance. 10. Testimony of PW-7 Gagan son of Rakesh is cogent and convincing. Though a child of seven years, he stood the test of cross-examination. 9. We have heard the learned counsel for the parties and perused the record with their assistance. 10. This is a case which hinges on the testimony of the sole eye-witness i.e. PW-7 Gagan, son of deceased Rakesh, as the other eye-witness Om Parkash (PW-6) (complainant) having turned hostile. PW-7 Gagan was a child aged seven years when he came into the witness-box to give his testimony before the Court. We have carefully scrutinished his statement and have found him to be truthful and forthright. His testimony could not be shattered by the defence on he being cross-examined. He has stated categorically and clearly that he has one brother and one sister. Names of his brother and sister are Kiran and Deepak. He goes to school and studies in II Class. He has further stated that appellant Raju was on visiting terms with his family. He identified Raju and Babita his mother who were present in Court. He has further stated that Raju hit his father on the head and waist with a hockey and his mother slapped and kicked his father. He along with his brother and sister were present in the house. No one came to rescue their father. PW-6 Om Parkash and Sat Narayan took his father to Medical College Hospital, Rohtak. Appellants Raju and Babita caused injuries to his father Rakesh. Appellant Raju resided in their street. Raju used to visit their house daily. He identified hockey Ex. P-1 with which appellant Raju had given injuries to his father. In his cross- examination, he has given the name of his mother and his grand-father. He has further stated that he has been brought by his Bua to the Court. On being questioned whether he has been tutored by the police, he answered in the negative. Occurrence had taken place at about 7 p.m. in the evening. On being asked whether on the day of occurrence, his father had taken excess liquor, PW-7 Gagan replied in the negative. He categorically stated in his cross- examination that his father did not fall from the first floor. He has further stated that it is incorrect to suggest that he is deposing falsely under the pressure of the police. 11. On being asked whether on the day of occurrence, his father had taken excess liquor, PW-7 Gagan replied in the negative. He categorically stated in his cross- examination that his father did not fall from the first floor. He has further stated that it is incorrect to suggest that he is deposing falsely under the pressure of the police. 11. No dent could be made in the testimony of this witness (PW-7). He has not only named appellant Raju, but also has not spared his mother Babita. A truthful version has come out from the child. 12. It was natural for Gagan (PW-7) to be present in the house at 7 p.m. in the evening. As he had seen appellant Raju and Babita inflicting injuries on his father, this was the sole reason that he deposed in Court in a truthful, categorically and clear manner. There is no ambiguity in his statement. Apart from his saying that one injury was given on the head and one on the waist, there is no discrepancy in his statement. His statement is corroborated by the medical evidence. PW-2 Dr. Manju Arora has stated that cause of death in her opinion was due to the injuries described, inflicted on the person of the deceased. 13. The Honble Supreme Court in Mangoo and another v. State of Madhya Pradesh, 1995(2) R.C.R. 481 (SC), qua a child witness, has held as under :- "The learned counsel also pointed out that PW-2 being child witness, there was every scope of tutoring and the fact that he has admitted that he was in the district headquarters for about 12 days before adducing the evidence, also shows that he must have been with the police for the purpose of tutoring. The mere fact that he might have been taken by the police to be produced as witness, is not a ground to come to the conclusion that the witness must have been tutored but on examining the evidence and from the contents, we have to see whether there are any traces of tutoring. We find that the version given by PW-2 appears to be quite natural and there is a ring of truth in the same. We find that the version given by PW-2 appears to be quite natural and there is a ring of truth in the same. The evidence of PW-1 further corroborates the evidence of PW-2 namely to the extent that immediately after the occurrence PW-2 mentioned the names of the accused and the manner in which his father had been done to death." 14. The Honble Supreme Court in another judgment in Nikka Singh and others v. State of Punjab, 1997(1) RCR 131 (SC), has held that even though the child witness was put to searching cross-examination, his testiomony could not be shattered. The child witness being the son of the deceased, was aged 11 to 12 years. The Honble Supreme Court held that conviction on the basis of evidence of child witness could be sustained. 15. PW-6 Om Parkash complainant was declared hostile. He did not support the case of the prosecution for the reason that he did not want to get entangled in the personal affair of appellant Babita. The other eye-witness Hans Raj was not cited as a witness by the prosecution, as the Investigating Officer at that time was confident that PW-6 Om Parkash whose nephew had been murdered, would depose against the appellants. 16. Learned counsel for the appellants has laid much stress on this aspect that the correct date of the occurrence has not been given by the witnesses and there is an explained delay in loding of the F.I.R. We do not find any merit in this argument. Occurrence had taken place on 8.7.1995 in the evening. Injuries on the person of the deceased at that time did not seem to be serious, to Om Parkash (PW-6). Further, Om Parkash thought that it being a personal matter of Babita and deceased Rakesh, he did not want to interfere. It was on the next day that he took Rakesh to the Medical College Hospital, Rohtak. He did not go to the police, as he feared that he may get entangled in this sordid affair. It is believable that at times people who are not strong mentally, do not want to get involved in others affairs. PW-6 Om Parkash seems to be a fickle minded person, who not only did not want to interfere, but was afraid to report the matter to the police, lest he gets involved. It is believable that at times people who are not strong mentally, do not want to get involved in others affairs. PW-6 Om Parkash seems to be a fickle minded person, who not only did not want to interfere, but was afraid to report the matter to the police, lest he gets involved. In Court also he resiled from his statement and was declared hostile. 17. Learned counsel for the appellants had finally argued that at the most an offence under Section 304 Part-II I.P.C. is made out. The appellants did not have any intention to cause the death of Rakesh, but they only wanted to intimidate him, so that he did not interfere in their illicit relations. Injury No. 4 was an injury near the ear, it was due to the negligence of the doctor that this injury turned out to be fatal. 18. As per the statement of PW-2 Dr. Manju Arora who conducted the post-mortem on 12.7.1995, she found 4 injuries on the person of the deceased Rakesh. The first was an abrasion 0.25 cm on the left side of face, second was a scabbed abrasion 0.25 cm below the left eye, third was an abrasion 0.25 cm on the left upper eye-lid, and fourth was an infected abrasion 2x2 cm behind the right ear. There was defuse swelling around it. On further examination, she found a big sub-dural haemotoma involving parietal and temporal region on the right side of brain. It was injury No. 4 which led to the death of Rakesh. 19. It is clear from the nature of injuries, appellants Raju and Babita did not have the intention to cause the death of deceased Rakesh, though they may be having the knowledge that it cannot cause his death. The fatal blow (injury No. 4) was given with a hockey on the back of the ear. We are of the considered opinion that if due medical care had been taken by the hospital authorities, injury No. 4 which was a sub-dural haemotoma, the deceaseds life could have been saved. It seems that some negligence was shown by the doctors who attended on Rakesh. Babita wife of Rakesh is alleged to have given slaps and kicks only. We are in consonance with the counsel for the appellants that the case of the appellants falls under Section 304 Part-II I.P.C. 20. It seems that some negligence was shown by the doctors who attended on Rakesh. Babita wife of Rakesh is alleged to have given slaps and kicks only. We are in consonance with the counsel for the appellants that the case of the appellants falls under Section 304 Part-II I.P.C. 20. We modify the conviction of the appellants from Section 302 to Section 304 Part-II I.P.C. and sentence appellant Raju alias Raj Kumar for 6 years R.I. and to pay a fine of Rs. 2,000/- and in default of payment of fine, to further undergo R.I. for 2 months. Appellant Babita wife of Rakesh is sentenced to undergo RI for 2 years 6 months and to pay a fine of Rs. 2,000/- and in default of payment of fine, to further undergo RI for 2 months. If on bail, the appellants are directed to surrender before the Superintendent, Central Jail, Rohtak, to undergo the remaining part of their sentence, if any. 21. Appeal is dismissed.