JUDGMENT B.V. PINTO, J.—This Appeal has been filed challenging the Judgment dated 14.7.2005 passed by the Fast Track Court-II, Shimoga in S.C. NO. 71/2002 convicting the accused for the offence punishable under Section 326 IPC. and sentencing him to undergo SI for a period of 5 years and to pay a fine of Rs. 3000/- in default to suffer further SI for six months. 2. The case of the prosecution is that on 7.4,2002 at 6.00 p.m. the accused near the house of CW2 Hanumanthamma with a grudge with the deceased Ravikumar had picked up quarrel and assaulted one Manjunath. The accused assaulted the deceased with a club with an intention to murder him and caused injuries over his head, chest and hands, as a result of which Ravikumar died, thereby the accused alleged to have committed an offence punishable under Section 302 IPC. The prosecution in order to prove the case has examined in all 10 witnesses and got marked Ex. P1 to P17 and produced M.Os. 1 to 4. defence of the accused is one of total denial and he has got marked Ex. D1 to D4 being the portion of statement of witnesses. After hearing the prosecution and the defence, the Learned Sessions Judge came to a conclusion that the prosecution has not proved the case against the accused for offence under Section 302 IPC. but the prosecution was able to prove that the accused has committed an offence under Section 326 IPC. Accordingly, the Trial Court convicted the accused and sentenced him for the said offence. Being aggrieved by the said order of conviction and sentence the accused has filed this appeal. 3. Heard Sri Y.S. Shivaprasad, learned counsel for the appellant and Sri Vijayakumar Majage, learned HCGP for the State. 4. The learned counsel for the appellant submits that in this case all the relevant witnesses have turned hostile to the case of the prosecution and therefore the Trial Court ought not to have convicted the accused for the offence under Section 326 IPC. He submits that the Trial Court has erroneously relied on the evidence of P.W. 2, the eye witness and P.W. 7 brother of the deceased. P.W. 2 has turned hostile to the case of the prosecution and therefore the evidence of P.W. 2 cannot be taken into consideration for the purpose of conviction. He submits that the Trial Court has erroneously relied on the evidence of P.W. 2, the eye witness and P.W. 7 brother of the deceased. P.W. 2 has turned hostile to the case of the prosecution and therefore the evidence of P.W. 2 cannot be taken into consideration for the purpose of conviction. So far as P.W. 7 is concerned he is a child witness and that his evidence cannot be taken for its facial value. There are no other witnesses speaking regarding the incidence and therefore the Trial Court ought to have given benefit of doubt to the accused. He further submits that the weapon used in this case is the stick used for tethering cattle which is not a dangerous weapon and therefore, even if it is held that the accused committed the act, the offence falls under Section 324 IPC. He further submits that P.W. 6 Dr. Srinivasa has categorically stated that M.O.I is not a dangerous weapon and therefore the conviction for offence under Section 326 IPC is bad in law. He has relied on the ruling reported in State of Karnataka by Kakati Police Station vs. Parashram Kallappa Ghevade and Others, ILR 2008 Kant. 3514, wherein a Division Bench of this Court has held that bamboo stick used in that case cannot be categorized as a dangerous weapon in the absence of material evidence, Under the circumstances he submits that the appellant may be acquitted by allowing this appeal 5. Sri. Vijayakumar Majage, learned HCGP on the other hand submits that the Trial Court has relied heavily upon the evidence of P.W. 2 Hanumanthamma. P.W. 2 who is an eye witness and P.W. 7 is a witness before whom the deceased had made a dying declaration. P.W. 7 is also a circumstantial witness and has supported the circumstances of assault on Nanjunath. He submits that Dr. Srinivasa P.W. 8 has given a certificate as per Ex. P7 in which he has categorically stated that M.O. 1 if used as a weapon of offence could cause the death of a human being. He further submits that according to Ex. P5 Mahazar the length of M.O. 1 is 92 cms. and it has got a diameter of 6 cms. P7 in which he has categorically stated that M.O. 1 if used as a weapon of offence could cause the death of a human being. He further submits that according to Ex. P5 Mahazar the length of M.O. 1 is 92 cms. and it has got a diameter of 6 cms. on one side and 8 cms, on the other side, Therefore, the ruling cited by the learned counsel for the appellant does not apply to the facts of this case since the weapon used in that case is a bamboo stick of 2 ft, length and its diameter is not mentioned in the said Judgment. In view of the evidence of the Doctor, the offence found proved by the Trial Court, namely under Section 326 IPC is in accordance with the evidence on record. Therefore, he submits that the Judgment of conviction passed by the Trial Court does not call for interference and prays for dismissal of this appeal. 6. The prosecution in this case commenced by filing of a complaint by Chamaraja the father of the deceased Ravikumar on 7.4.2002 before the Anavatti Police Station, Shimoga. In the said complaint it is stated that the complainant is residing in Shirinayakanakoppa in Soraba taluk alongwith his wife Gangamma and his minor children aged about 16, 13 and 11 years. On 7.4.2002 in the morning, himself, his wife and elder daughter had gone to the land of one Pesos Gowda for coolie work and his sons Ravikumar and Nagaraja were in the house since it was a holiday. In the afternoon they had come to have lunch and again they went back at 3.00 p.m. His sons were in the house. At about 6,30 p.m. his 3rd son Nagaraja came and informed him that accused Basavanyappa assaulted Ravikumar, his brother on his head by means of a stick and his brother is tired (sic). Hearing the same, he left the work and took his wife and daughter and came home. His son Ravikumar was lying inside the house. At about 6,30 p.m. his 3rd son Nagaraja came and informed him that accused Basavanyappa assaulted Ravikumar, his brother on his head by means of a stick and his brother is tired (sic). Hearing the same, he left the work and took his wife and daughter and came home. His son Ravikumar was lying inside the house. When he questioned him, he told that at about 6.00 p.m. the accused abused him near the house of one Hanumanthamma and assaulted him with stick on his head, chest and hands and since his head and chest are paining he was holding his hands to his chest and was screaming, He has stated that at that time in their lane one Hanumakka, Durgappa, Narayanappa and others were there who informed him that at 4.00 p.m. on the same day one Manjappa, brother of the accused was fighting with Ravikumar and Nagaraja and they threatened him and send him back and at about 6.00 p.m. again the accused came and was fighting with Ravi asking as to why he has assaulted his brother Manjunath and that the accused has assaulted Ravi with a stick on his head and chest. It is further informed to him that in the mean time Ravi has sustained injuries and has fallen and he was left in his house. By then they had sent Nagaraj to inform them. Thereafter, Ravi was taken in a bullock cart. In the mean time on the way Ravi gasped three times and at about 7.30 p.m. they reached the clinic where the Doctor pronounced him dead. It is stated in the complaint that there was quarrel between Ravi and Basavanyappa-accused even before the said date and that the accused had threatened to kill Ravikumar and he has awaited for this opportunity. When all of them had gone to work and when his son Ravi was available alone, the accused has assaulted with the stick on his head and has committed the murder of his son. The Anavatti Police on receipt of the complaint at about 8.30 p.m. on 7.4.2002 registered a case in Crime No. 64/02 for offence under Section 302 IPC and commenced investigation. On completion of the investigation, charge sheet was filed. 7. The Anavatti Police on receipt of the complaint at about 8.30 p.m. on 7.4.2002 registered a case in Crime No. 64/02 for offence under Section 302 IPC and commenced investigation. On completion of the investigation, charge sheet was filed. 7. During the trial the complainant P.W. 1 has stated as per the version in the complaint, however, he has been treated hostile by the prosecution and the prosecution has suggested certain omissions from the mouth of P.W. 1. However, he has denied those suggestions as having told by him before the Police. In particular he has denied the averments in the complaint regarding the deceased informing him that accused had assaulted him and further regarding Hanumanthamma informing him about the incident. However, on further cross-examination he has admitted that he had stated before the Police regarding the previous enmity of the accused with deceased Ravikumar and also regarding the assault of Ravikumar by the accused. In the cross-examination it is elicited that he has got the complaint written through one Nagarajappa. It is suggested to him that the children when climbing the Mango trees some times slip and fall down and sustain injuries as the one sustained by the deceased. However, he has denied the said suggestion of tried defence. It is further suggested that in respect of the enmity, a false complaint has been filed which also has been denied by P.W. 1. P.W. 2-Hanumanthamma has stated that on the date of incident at about 5.00 p.m. the accused and deceased were quarreling with each other in front of her house. She came near the place of occurrence and came back. There after Ravikumar was taken to the hospital. However, she has denied the statement made by her to Police as having seen the incident and regarding the manner in which the incident has happened. Therefore, she has been treated hostile by the prosecution. In the cross-examination by the Public Prosecutor, she has admitted that she has separated the deceased and his brother on the one side and accused and his brother on the other side while they were fighting at 4.00 p.m. on the same day. She has identified the M.O. 1 and states that the said stick is taken for tethering the cattle. But she, however, states that the said M.O. 1 was in the hand of the accused. She has identified the M.O. 1 and states that the said stick is taken for tethering the cattle. But she, however, states that the said M.O. 1 was in the hand of the accused. However, she denies that from the said M.O. 1 accused has assaulted on the deceased Ravikumar. P.W. 3 Basavanthappa has stated that the accused has shown M.O. 1 in his house. When Police came he has stated that the stick M.O. 1 was used for grazing cattle. He has signed Ex. P4 recovery Mahazar and identified M.O. 1. He has also signed Ex. P3 which is the Spot Mahazar. However, he has been treated hostile regarding the person who has shown the scene of occurrence to the Police. In the cross-examination he has admitted that the accused is doing work of grazing cattle, M.O. 1 was used by accused while grazing the cattle. P.W. 4 Basavarajappa is a signatory to Ex. P5 which is Inquest Mahazar. P.W. 5 Gangamma is the mother of the deceased Ravi. She has stated regarding the dispute between her sons and the accused and his brother. However, on the date of offence she was not there at the scene of occurrence. However, she has been treated hostile by the prosecution regarding the deceased informing her about the incident before his death, P.W. 6 Dr. Srinivasa has conducted the post-mortem examination on the deceased. He has stated that deceased has sustained four injuries, one on the head, one injury on the chest and two internal injuries. He has opined that such injuries on the deceased could be caused by M.O. 1 bamboo stick. He has issued the post-mortem report as per Ex. P7 and further opined as per Ex. P8 clarifying therein that the M.O. 1 if used for assaulting a human being can cause the death of the human being. P.W. 7 Nagaraja is a child of 15 years as on the date of giving evidence. After confirming that he is of knowledgeable age and understands the consequence of his evidence before the Court, the Trial Court has examined him as a witness, He has stated that he knows the accused and his brother Manjunath and the accused had assaulted him on his cheek one day and Manjunath who is brother of accused was asking as to how his brother has assaulted him. Deceased Ravikumar was hearing this conversation between the accused and himself (Nagaraja) and the brother of the accused has assaulted Ravikumar, the deceased. These two incidents have happened within a period of two days. On the date of the incident, Ravikumar had assaulted Manjunath, brother of the accused at about 4.00 p.m. At about 8.00 p.m. accused asked Ravikumar as to why he has assaulted his brother Manjunath and apprehending danger, he went inside the house and thereafter he went to the house of one Rekha daughter of Hanumanthappa. At about 6.00 p.m. the accused went towards his house and at that time his brother Ravikumar was sitting in the house and when asked he stated that his head and chest is paining and that accused had assaulted him. He thereafter went to call his mother from the back side doors and the people who gathered there were massaging the chest of his brother. Thereafter his brother was taken to the hospital where he was found to be dead. In the cross-examination, it is suggested that he has not stated regarding the incident in his statement before the police and also regarding his going inside the house of one Rekha at the time of incident. It is suggested to him that he is deposing falsely before the Court and that both himself and his brother had gone to pluck the Mangoes and in the mean time his brother had fallen from the tree and had sustained injuries. P.W. 8 has been treated hostile by the prosecution. P.W. 9 is the PSI who has conducted the investigation in this case after registering the case on the basis of the complaint of P.W. 1. He has arrested the accused and recovered M.O. 1 on the basis of the voluntary statement given by the accused and thereafter investigation was conducted by Inspector Manjappa and he has filed charge sheet. However the said Inspector, Manjappa has expired before giving evidence. Hence P.W. 9 has stated that he has assisted C.P.I., Manjappa in the conduct of investigation and has spoken regarding the particulars in this case. It is on the basis of the above evidence that the Learned Sessions Judge has found the accused guilty for offence under Section 326 IPC, which acquitting him of the offence under Section 302 I.P.C. 8. It is on the basis of the above evidence that the Learned Sessions Judge has found the accused guilty for offence under Section 326 IPC, which acquitting him of the offence under Section 302 I.P.C. 8. On a proper reappreciation of the evidence on record though it is seen that P.W. 2 who as an eye witness has given half hearted evidence regarding her witnessing the incident and also regarding the deceased informing her that he was assaulted by the accused, from the evidence of P.W. 2, it can be gathered that the incident as alleged by the complainant in his complaint has in fact happened and that the accused has caused injuries on the deceased Ravikurnar on the date of occurrence. It is seen that there is a promptness in lodging of FIR in this case and the complaint has been received in the Police Station at about 8.30 p.m. on the same day and the Police Station is at a distance of 13 kms, from the scene of occurrence as found in Ex. P11 FIR marked in this case. The evidence of P.W. 7 brother of the deceased also appears to be natural though it is his case that at the time when his brother was assaulted by accused he was scared and hence he went in hiding and immediately after the incident he saw his brother with the injuries and was writhing with pain in his head and chest. The opinion of P.W. 6 Dr, Srinivasa further proves that the deceased had suffered skull fracture. Under the circumstances, I am of the opinion that injuries caused on the deceased Ravikumar is as a result of assault by the accused by means of M.O. 1 stick. 9. So far as the nature of weapon is concerned, the submission made by the learned counsel for the appellant needs to be adverted to. The seizure Mahazar indicated that the weapon M.O. 1 is a bamboo stick having a length of 92 cms. and a circumference of 6 cms on one end and 8 cms. on the other end. Further, it is in the evidence of the witness that the accused was using the said stick for grazing the cattle, which is his profession. The seizure Mahazar indicated that the weapon M.O. 1 is a bamboo stick having a length of 92 cms. and a circumference of 6 cms on one end and 8 cms. on the other end. Further, it is in the evidence of the witness that the accused was using the said stick for grazing the cattle, which is his profession. Under the circumstances, relying on the ruling of our High Court, though the Doctor says, that used as a weapon, M.O. 1 can cause death, under the circumstances in which the weapon was used, I am of the opinion that offence falls under Section 324 IPC rather than 326 IPC as observed by the Learned Sessions Judge. 10. In that view of the matter, I hold that the accused is guilty of offence under Section 324 IPC and accordingly I convict the accused for the said offence. 11. So far as the sentence is concerned, it is seen that the accused was in custody for 234 days during the under trial period and for another 35 days in the post conviction stage and having regard to the age of the accused and the manner in which the incident had happened, I am of the considered opinion that the period of sentence already undergone is sufficient sentence for the offence under Section 324 IPC. 12. In the result, the following order is made; 13. The appeal filed by the appellant is partly allowed. 14. The order of conviction for offence under Section 326 is altered to one under Section 324 IPC and sentence is modified to the period already undergone by the appellant. If the appellant is on bail, his bail bonds be discharged. The fine deposited shall be refunded to him.