Judgment Adarsh Kumar Goel, J. 1. The appellants Darshan Kumar and Jatinder Kumar @ Happy challenge their conviction and sentence for the murder of Jagdish Chand on 12.2.1997 at 3-00 P.M. 2. Case of the prosecution is that on 12.2.1997, at about 3-00 P.M., Mrs. Amarpal PW-2 and her husband Jagdish Chand deceased were at their house. The accused, who are brothers and living in the opposite house, came to the house of Jagdish Chand deceased and assaulted him. Darshan Kumar raised a lalkara that Jagdish Chand be not left alive and Jatinder Kumar gave a blow of his stick on the upper side of left eye in the temporal region of Jagdish Chand. Rajesh Kumar PW-3 who was a neighbour of the deceased, also came to the spot and saw the occurrence. Mrs. Amarpal PW-2 and her daughter Asha Rani PW-5 raised alarm, on which the accused ran away. Mrs. Amarpal took the injured Jagdish Chand to Dr. Roshan Lal PW-6 in the vicinity, who gave dressing in the left eye. At 4-20 P.M., condition of Jagdish Chand became serious. He was being taken to Pahwa Hospital, but he died on the way. Reason for the occurrence was that the accused used to visit one Rita, who was tenant of the deceased, to which the deceased used to object. Mrs. Amarpal proceeded to inform the police and met Inspector Santokh Singh PW-8, who recorded her statement at 7-25 P.M., which led to registration of FIR. PW-8 Inspector Santokh Singh prepared inquest report and sent the dead body for post-mortem examination. He visited the place of occurrence and took steps for investigation. He arrested the accused on being produced by Sushil Kumar and after completion of investigation, the accused were sent up for trial. 3. The prosecution examined Dr. Gagandeep, Medical Officer, Civil Hospital, Ludhiana, PW-1, Mrs. Amarpal PW-2, Rajesh Kumar PW-3, C. Ranjit Singh PW-4, Asha Rani PW-5, Dr. Roshan Lal PW-6, Harminder Singh PW-7, Inspector Santokh Singh PW-8 and ASI Nasib Singh PW-9. 4. The accused denied the prosecution allegations, but did not lead any defence. 5. After considering the evidence on record, the trial Court convicted and sentenced the appellants. 6. We have heard learned counsel for the parties and perused the record. 7. Roshan Lal PW-6, Harminder Singh PW-7, Inspector Santokh Singh PW-8 and ASI Nasib Singh PW-9. 4. The accused denied the prosecution allegations, but did not lead any defence. 5. After considering the evidence on record, the trial Court convicted and sentenced the appellants. 6. We have heard learned counsel for the parties and perused the record. 7. Learned counsel for the appellants submitted that Rita, whom the appellants are said to be visiting, was neither joined in investigation nor produced as a witness. There were material contradictions in the version given by the PWs, particularly about the time of occurrence and the PWs were close relatives of the deceased and were not reliable. Defence version was reliable. There was delay in lodging of the FIR. In any case, Darshan Kumar was falsely implicated by an exaggerated version. Jatinder Kumar only gave a stick blow and according to medical evidence, the same was not sufficient to cause death in the ordinary course of nature. Death was on account of neurogenic shock. Weapon of offence was not recovered. 8. Learned counsel for the State supported the conviction and sentence of the appellants. 9. Before we consider the submissions made, it will be appropriate to make a brief reference to the evidence on record. 10. PW-1 Dr. Gagandeep conducted post-mortem examination on the dead body of Jagdish Chand on 13.2.1997 at 1-00 P.M. He inter-alia found following :- "There was lacerated wound 1/3" x 1/7" bone deep on lateral edge of left eye. On exploration of skull, there was no fracture of cranial cavity, but there was small haemotoma, sub-durally underneath injury No. 1. Pleurae were found adherent to lungs. Both lungs were shrunken and adherent to lateral walls of the chest and were fragile. Heart was sent to pathologist. Sample of blood was sent to Chemical Examiner. Stomach, small intestines, large intestines, liver, spleen and kidney were sent to Chemical Examiner. On receipt of the reports of the Chemical Examiner Ex. PA and Pathologist vide No. 572/17.4.97 and No. 97/Path/124 respectively, nothing abnormal was detected. The cause of death in this case in our opinion was due to shock only. The opinion Ex. PB given in that respect is signed by me as well as by Dr. Kulwant Singh." 11. PW-2 Mrs. PA and Pathologist vide No. 572/17.4.97 and No. 97/Path/124 respectively, nothing abnormal was detected. The cause of death in this case in our opinion was due to shock only. The opinion Ex. PB given in that respect is signed by me as well as by Dr. Kulwant Singh." 11. PW-2 Mrs. Amarpal widow of the deceased, who was an eyewitness and author of the FIR, supported the version given by her in the FIR. Apart from insignificant discrepancies, there is nothing in her cross-examination which can discredit the veracity of her version. A suggestion was given to PW-2 Amarpal that she herself hit the deceased while trying to hit the accused. PW-3 Rajesh Kumar, neighbour of the deceased did not fully support the version of the prosecution. He expressed lack of knowledge of lady tenant in the house of the deceased and stated that the accused and the deceased were exchanging hot words and he did not see the accused hitting the deceased. He was declared hostile and was confronted with statement made by him to the police. He also stated in cross-examination that it was Mrs. Amarpal herself who hit the deceased while trying to hit the accused. He gave the time of occurrence to be 1-00 P.M. PW-4 C. Ranjit Singh is a formal witness. PW-5 Asha Rani daughter of the deceased fully supported the version given by PW-2 Mrs. Amarpal. Only variation pointed out is that she gave time to be 4-00 P.M. and that she mentioned that her father received number of blows and that police came to the place of occurrence within half an hour or 3/4 hours after the occurrence and recorded the statements of Amarpal PW-2. PW-6 Dr. Roshan Lal stated that he dressed the wound of Jagdish Chand at 2/2-30 P.M. PW-8 Inspector Santokh Singh proved the investigation conducted by him. He admitted that he did not record statement of Rita. 12. The above resume of evidence shows that the case of the prosecution is mainly based on version given by PW-2 Amarpal and PW-5 Asha Rani apart from medical evidence. 13. After giving due consideration to the submissions made by learned counsel for the appellants, we are unable to hold that the version given by eyewitnesses is not reliable. 12. The above resume of evidence shows that the case of the prosecution is mainly based on version given by PW-2 Amarpal and PW-5 Asha Rani apart from medical evidence. 13. After giving due consideration to the submissions made by learned counsel for the appellants, we are unable to hold that the version given by eyewitnesses is not reliable. Minor variation in time given in Court by the said witnesses after one year of the occurrence, is not enough to discard their testimony. Even if time of occurrence was taken to be 1-00P.M., case of the prosecution could not be rejected on the ground that FIR was registered at 7.25 P.M. PW-2 Mrs. Amarpal and PW-5 Asha Rani are natural witnesses and knew the accused. The occurrence was in day time. There was no dispute about identity. They had no reason to falsely implicate the accused and leave out the real killers of Jagdish Chand. Version given by the defence that it was Amarpal PW-2 widow of the deceased herself who caused the fatal blow while trying to hit the accused, is without any substance. The FIR was lodged promptly. Non-examination of Rita cannot be held to be material. Absence of proof of motive is of no significance when there is direct evidence. Rita was not an eyewitness to the occurrence. 14. Thus, there is no ground to reject the testimony of eyewitnesses as such. Mere absence of recovery of the stick, is no ground to reject the prosecution version. It is well settled that absence of recovery or absence of reliable evidence of recovery, does not per se affect the reliability of eyewitnesses account. Reference may be made to judgment of the Honble Supreme Court in Gurnek Singh v. State of Punjab, 1988(2) RCR(Criminal) 543 : AIR 1988 SC 2249. 15. However, Darshan Kumar being brother of the accused Jatinder Kumar, who is said to have caused the fatal blow is given the role of catching hold of, which in absence of independent corroboration could possibly be by way of exaggeration. We give him benefit of doubt. 16. Jatinder Kumar is said to have caused only single blow. As per medical opinion dated 7.6.1997 Ex. DA/1, injury was not sufficient to cause death in the ordinary course of nature. Death was due to shock. The occurrence took place all of a sudden. We give him benefit of doubt. 16. Jatinder Kumar is said to have caused only single blow. As per medical opinion dated 7.6.1997 Ex. DA/1, injury was not sufficient to cause death in the ordinary course of nature. Death was due to shock. The occurrence took place all of a sudden. The shot was on account of injury received and having regard to the weapon used, seat of injury and force applied, the accused could certainly be attributed knowledge that the injury could result in death, though it cannot be held with certainty that the accused had intention to cause the fatal injury. Having regard to the peculiar facts and circumstances of the present case, we consider it appropriate to hold that offence will fall under Section 304-II IPC. 17. Accordingly, we allow the appeal filed by Darshan Kumar and give him benefit of doubt and acquit him, while we convert the charge against the accused Jatinder Kumar from Section 302 IPC to Section 304-II IPC and convict him accordingly. We are of the view that ends of justice will be met if Jatinder Kumar is sentenced RI for seven years and is directed to pay compensation of Rs. 1 lac to the widow of the deceased. In default, he will undergo further RI for three years. The appeal is disposed of accordingly.