JUDGMENT 1. - This appeal has been preferred by the accused appellant Prakash who has been convicted for the offence under Section 302 Indian Penal Code by the learned Additional Sessions Judge (Fast Track) No. 1, Bundi in Sessions Case No. 22/2004 and has been sentenced to life imprisonment with a fine of Rs. 5,000/- in default of payment of fine to further undergo one year simple imprisonment. 2. Aggrieved by the aforesaid judgment, the appellant has preferred this appeal. 3. The brief facts giving rise to this appeal are that on 18.10.2002 PW-5 Smt. Swaroopa Bai lodged a report (Exhibit D/1) alleging therein that about 2.00 PM in afternoon she was cutting fodder on the maed (*9) and her son Ramesh (deceased) started the motor for giving water in the crops. At that time a dispute arose between Ramesh and the accused appellant Prakash with regard to preferential right to irrigate the fields and as a result of the aforesaid altercation it was alleged that Prakash, the accused appellant inflicted injury with an axe (kulhari) on the head of Ramesh. PW-5 Smt. Swaroopa Bai further stated that on hearing cries of Ramesh, she came running but the accused appellant accompanied by three other persons Kajod, Sheoji and Ramraj ran away from the spot inflicting injuries to Ramesh. She alleged that the incident has also been seen by Laddu and Nand Kishore who were also close-by in the adjoining fields. It is further stated that they took Ramesh to the hospital at Bundi from where he was referred to Kota. The aforesaid report was lodged at about 7.30 PM with the Sub Inspector, Police Station Hindoli, District Bundi who had come for taking the report at M.B.S. Hospital, Kota. It is also stated in the report that on account of the dispute with regard to the fields there were also earlier animosity between the parties. 4. On the basis of this report (Exhibit D-1), the police registered an F.I.R. (Exhibit P-14) at Police Station Hindoli, District Bundi and started investigation. 5. The accused persons were arrested during the course of investigation. The weapon of offence, the axe (kulhari) was recovered from the accused appellant Prakash on the basis of the information given by him (Exhibit P-18) and the recovery memo is Exhibit P-8. 6. The prosecution examined as many as 21 witnesses and adduced 20 documents in evidence. 5. The accused persons were arrested during the course of investigation. The weapon of offence, the axe (kulhari) was recovered from the accused appellant Prakash on the basis of the information given by him (Exhibit P-18) and the recovery memo is Exhibit P-8. 6. The prosecution examined as many as 21 witnesses and adduced 20 documents in evidence. From the side of the defence, the statement of accused appellant Prakash were recorded under Section 313 Criminal Procedure Code The defence also examined three witnesses namely DW-1 Ram Ratan, DW-2 Radhey Shyam and DW-3 Dr. Nirmal Jain and exhibited nine documents in support of their case. 7. The learned trial Court after having considered the entire evidence and hearing the counsel for the parties vide the impugned judgment dated 6.7.2005 convicted the accused appellant Prahlad for the offence under Section 302 Indian Penal Code and sentenced him to undergo life imprisonment with a fine of Rs. 5,000/- and in default of payment of fine to further undergo one year simple imprisonment. The co-accused Ramraj, Kajod and Sheoji were acquitted by the learned trial Court as there was no cogent evidence against them led by the prosecution. 8. Learned counsel for the appellant contended that firstly there was a delay in lodging of the F.I.R. as the incident occurred at about 2.00 PM and the report was lodged at about 7.30 PM. It is, therefore, submitted that as a result of the aforesaid delay there was ample time for the prosecution witnesses to have manipulated the entire story despite the fact that the alleged eye-witnesses and PW-5 Smt. Swaroopa Bai, mother of the deceased, was not present at the spot and after having gone through the nature of injuries as seen in the medical report, it was possible for the prosecution witness PW-5 Smt. Swaroopa Bai to ascribe the injury to the accused appellant though there are still contradictions in the medico-legal evidence and ocular evidence of PW-5 Smt. Swaroopa Bai. 9. Learned Public Prosecutor, on the other hand, pointed out that the incident had taken place in the fields around Hindoli and the Police Station Hindoli is over 60 Kms in distance from Kota where the deceased was at that time undergoing treatment in M.B.S. Hospital and for the police to have reached from Hindoli to the Hospital at Kota took time. It was also submitted that it is natural in the course of events that when the deceased had suffered serious injuries that it was a requirement that he should have been attended first and report should have been lodged later and as such learned Public Prosecutor submitted that delay is well explained in the facts and circumstances of the case. 10. So far as the aforesaid submission is concerned, we are in agreement with learned Public Prosecutor that in the facts and circumstances of the present case the delay in lodging the F.I.R. cannot be said to be fatal so far as the prosecution is concerned. It is indeed true that the distance from the scene of occurrence to M.B.S. Hospital, Kota where the deceased was undergoing treatment and the place where the Police Station was located is indeed relevant and it cannot be said that the delay in lodging the F.I.R. is not explained. The delay which has occurred in the facts and circumstances of the case cannot be said to be such so as to prejudice the defence and give room for manipulation in the F.I.R. In the present facts and circumstances of the case, therefore, we find no merit so far as the aforesaid submission of the learned counsel for the appellant that delay in lodging the F.I.R. is fatal to the case of the prosecution. 11. Learned counsel for the appellant further submitted that the prosecution evidence has been disbelieved by the learned trial Court itself inasmuch as the learned trial Court has acquitted three accused persons namely Ramraj, Kajod and Sheoji based on the same set of evidence and as such the benefit of doubt with regard to reliability of the prosecution witnesses should have been given to the accused appellant. 12. Learned Public Prosecutor, on the other hand, submitted that so far as the co-accused Ramraj, Kajod and Sheoji are concerned, their acquittal is based upon the appreciation of evidence and material placed before the learned trial Court in respect of their involvement in the crime and also based upon the disparities between ocular evidence and medico-legal evidence. It is submitted that the aforesaid three co-accused persons were said to have been armed with sticks and there being no corresponding injury caused by the blunt weapon on the body of the deceased. It is submitted that the aforesaid three co-accused persons were said to have been armed with sticks and there being no corresponding injury caused by the blunt weapon on the body of the deceased. Moreover PW-5 Smt. Swaroopa Bai who lodged the F.I.R. had also only narrated that the accused appellant Prakash had caused injuries on the head of the deceased, therefore, the learned trial Court after appreciation of evidence had given the benefit of doubt to the co-accused persons Ramraj, Kajod and Sheoji whereas in the case of the present appellant Prakash, there was a direct evidence of eye-witnesses seeing his involvement in having caused injuries to the deceased and as a result thereof his case stands on a separate footing from that of the co-accused persons who have been acquitted by the learned trial Court. 13. We have considered the aforesaid submission of the learned counsel for the appellant and the learned Public Prosecutor. We are in agreement with the learned Public Prosecutor that in the facts and circumstances of the case the prosecution neither led direct evidence about any involvement of the co-accused Ramraj, Kajod and Sheoji in the crime nor is it supported by any medico-legal evidence showing their involvement in causing of any injury to the deceased or being present on the spot at the time of the incident. Even the accused has stated in his statement under Section 313 Criminal Procedure Code in reply to question No. 39 that no other person was present on the spot at that time. Thus, so far as the acquittal of co-accused persons is concerned that in our view cannot help the accused appellant to any extent. In the present case, the prosecution witnesses who are the eye-witnesses have clearly deposed that they saw the accused appellant causing injuries with an axe to the deceased Ramesh. PW-5 Smt. Swaroopa Bai who is the lodger of the F.I.R. has clearly stated that she was present at the field where the incident took place on account of dispute regarding irrigation of the fields between the deceased and the accused appellant and she was cutting the grass (fodder) from the maed i.e. boundary of the field. PW-5 Smt. Swaroopa Bai who is the lodger of the F.I.R. has clearly stated that she was present at the field where the incident took place on account of dispute regarding irrigation of the fields between the deceased and the accused appellant and she was cutting the grass (fodder) from the maed i.e. boundary of the field. She has clearly stated that she saw the accused appellant Prakash inflicting injuries on the head of the deceased from sharp edged side of the axe and as a result of which the deceased Ramesh fell down. After hearing the cries of Ramesh she went to the spot and seeing her come, the accused appellant ran away. She has been cross-examined on the aforesaid statement but her testimony has remained unshaken and nothing could be elucidated from the side of the defence so as to discredit her testimony. The testimony of PW-5 Smt. Swaroopa Bai is also corroborated by the testimony of PW-12 Laddu Lal who has also corroborated the fact that he heard the cries of Ramesh and he found that near irrigation canal the accused appellant Prakash was inflicting injuries with kulhari (axe) on the deceased Ramesh. PW- 12 Laddu Lal has clearly stated that the deceased Ramesh fell down after receiving the first injury and thereafter Prakash inflicted two more blows with the axe on Ramesh. He has also shown the presence of PW-17 Nand Kishore on the spot. PW-17 Nand Kishore has also corroborated the prosecution. story wherein he has clearly stated that the accused appellant Prakash inflicted the injuries with the axe on the head of Ramesh and thereafter inflicted the injury with the axe on the left shoulder. Thus, the testimony of PW-5 Smt. Swaroopa Bai has been corroborated by two independent witnesses i.e. PW-12 Laddu Lal and PW-17 Nand Kishore. These witnesses have been cross-examined in detail and their testimony remained unshaken so far as the fact that the accused appellant Prakash inflicted blows with axe to the deceased Ramesh on head and shoulder. 14. PW-18 Dr. P.K. Tiwari who conducted the post mortem and submitted the Post Mortem Report (Exhibit P-13) has clearly stated in his report that there were four injuries on the deceased. 14. PW-18 Dr. P.K. Tiwari who conducted the post mortem and submitted the Post Mortem Report (Exhibit P-13) has clearly stated in his report that there were four injuries on the deceased. He has stated in his statement as PW-18 giving description of the injuries as follows: " 1- ck;sa da/ks ds ihNs okys fgLls esa 13 x 4 ls0eh0 dh gM~Mh dh xgjkbZ rd tkrk gqvk ,d pksV oqaM ik;k x;k Fkk bl ?kko ds vUnj blds iqyk gM~Mh Hkh dVh gqbZ utj vk jgh FkhA 2- flj ds ck;sa QzaVksisjkbZVy Hkkx esa 17 x 4 ls0eh0 dk gM~Mh dh xgjkbZ rd tkrk gqvk pkWi oqaM ik;k x;kA blds vUnj Hkh flj dh gM~Mh dVh utj vk jgh FkhA 3- ck;sa ?kqVus ij 1 x 1 ls0eh0 dk [kjkasp ik;k x;k FkkA 4- flj ds nkfguh vkSj QzaVksisjkbZVy Hkkx esa 3x1 ls0eh0 dk dVk gqvk ?kko ik;k x;k FkkA mijksDr lHkh pksVs e'R;q iwoZ dh vkbZ gqbZ FkhA vkarfjsd pksVs%& flj dh peM+h dks gVkdj ns[kus ij ckgkz pksV ua0 2 ds vUnj [kwu dk FkDdk tek gqvk ik;k x;k rFkk ckgkz pksV ua0 2 ds lekukUrj vUnj dh rjQ ck;s QzaVksisjkbZVy vfLFk dk QzsDpj ik;k x;kA bl ?kko ds vUnj ls czsu esVj ckgj vk jgk Fkk rFkk ?kko ds vklikl vUnj rd [kwu dk FkDdk tek gqvk ik;k x;k ckgkz pksV ua0 1 dks [kksydj ns[kus ij ckgkz Ldsiqyk vfLFk dk QzsDpj ik;k x;kA ckdh 'kjhj ds lHkh vaxks dks dkVdj ns[kus ij isy ik;s x;sA " 15. Apart from the above, nature of the injuries caused and the opinion given by the PW-18 Dr. P.K. Tiwari as regard the cause of death which is the head injury negatives the submission made by the learned counsel for the appellant that even in case the appellant is found to be guilty of having inflicting the injuries, his case cannot be said to be a one for conviction under Section 302 Indian Penal Code but in the alternative be considered to be one under Section 304 Part-I Indian Penal Code PW-18 Dr. P.K. Tiwari has described the injuries, as quoted hereinabove, and has given the cause of death as follows: " e'R;q iwoZ vkbZ gqbZ gsM bUtjh ds dkj.k e'rd dkSek esa pyk x;k Fkk bl dkj.k mldh e'R;q gks xbZ rFkk lk/kkj.k ifjfLFkfr;ksa esa fdlh balku dks ejus ds fy, ;s pksV i;kZIr FkhA iksLVekVZe fjiksVZ izn'kZ ih0 13 esjh dyeh gS ftl ij , ls ch esjs gLrk{kj o lh ls Mh esjh jk; rFkk b ls bQ mldks igpkuus okys NksVw yky rFkk th ls ,p uwj eksgEen ds gLrk{kj vafdr gSA " 16. A perusal of the above, goes to show that the Injury No. 2 which is on the left fronto-parietal region with dimension 17 x 4 cm going through the bone of the skull with brain matter coming out, as described in the internal injuries, was sufficient in the ordinary course of nature to cause death. More particularly, it was on the vital part of the body. Thus, it cannot be said that the accused appellant did not have the knowledge or intention that causing such an injury with the axe with which he was armed was unlikely to cause death. In our view, therefore, the nature of the injury and the fact that blows were repeated clearly show the intention of the accused appellant and the fact that there was a previous animosity between the parties, as stated by PW-5 Smt. Swaroopa Bai, we are of the view that the submission of learned counsel for the accused appellant in the facts and circumstances of the case that in the alternative the accused should be convicted for the offence under Section 304 Part-I Indian Penal Code cannot be accepted. 17. In the light of the above discussion and the findings arrived at by the learned trial Court, we are of the view that the prosecution has established a case against the accused appellant Prakash beyond reasonable doubt and in the facts and circumstances of the case the conviction of the accused appellant under Section 302 Indian Penal Code deserves to be maintained. 18. In the facts and circumstances, therefore, we would maintain the conviction of the accused appellant and dismiss the appeal as against his conviction. 19. However, we find that the learned trial Court while passing the sentence of life imprisonment and a fine of Rs. 18. In the facts and circumstances, therefore, we would maintain the conviction of the accused appellant and dismiss the appeal as against his conviction. 19. However, we find that the learned trial Court while passing the sentence of life imprisonment and a fine of Rs. 5,000/- has further provided that in the event of default of payment of fine, the accused shall undergo one year simple imprisonment which we find to be excessive. Accordingly, we would modify the sentence and direct that in the event of default of payment of fine, the accused shall undergo two months simple imprisonment instead of one year simple imprisonment, as provided by the learned trial Court. 20. With the aforesaid limited modification, the sentence awarded by the learned trial Court stands modified and the appeal filed by the accused appellant stands dismissed. The accused appellant is in jail he shall undergo the remaining sentence.Appeal dismissed. *******