JUDGMENT 1. - Although this case has been listed on the bail application, but with the consent of both the parties this appeal is being decided finally. 2. The appellant, Roopa, the challenged the judgment dated 5.3.2008 passed by the Additional Sessions Judge, Udaipur whereby the learned Judge has convicted him for offence under Section 302 I.P.C. and has sentenced him to life imprisonment and has imposed a sum of Rs. 5,000/- and has directed him to further undergo six months of simple imprisonment in default thereof. 3. Briefly, the facts of the case are that on 14.9.2007 at 2.00 P.M., Maniya (PW-9) submitted a written report (Ex.P-8) wherein he claimed that on 13.9.2007 around 5.00 P.M. in order to protect his field, Noliya was sitting in his field. At that time, Roopa brought an axe from his house and started assaulting Noliya. Roopa hit Noliya on his head with the blunt side of the axe. He hit him twice or thrice. Noliya cried out. Hearing his cries, Badira (PW-2), Basuda (PW-5), and he rushed to Noliya's rescue. Seeing them, Roopa fled away. Badira (PW-2), Chandu (PW-3), Basuda (PW-5), and Maniya (PW-9) placed Noliya on a cot and brought him to his house. They informed Noliya's father. Due to the non-availability of transportation, they kept him at home. Today, they were bringing him to the Kotra Hospital in a jeep, however, around 10.30 A.M. Noliya expired. He has died due to the assault committed by Roopa. There is dispute between Noliya's father and Roopa's father with regard to land. It is due to this animosity, that Roopa assaulted Noliya. On the basis of this report, a formal F.I.R., F.I.R. No. 74/2007, (Ex.P-10), was chalked out for offence under Section 302 I.P.C. 4. In order to support its case, the prosecution, examined eleven witness and submitted twelve documents. The defence neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, by judgment dated 5.3.2008, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 5. Mr. In order to support its case, the prosecution, examined eleven witness and submitted twelve documents. The defence neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, by judgment dated 5.3.2008, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 5. Mr. Kaluram Bhati, the learned counsel for the appellant, has raised the following contentions before this Court:- firstly, according to Maniya (PW-9), the alleged incident occurred on 13.9.2007 at 5.00 P.M. However, the F.I.R. was not lodged till 14.9.2007 at 2.00 P.M. Thus, there was an inordinate delay of almost nineteen hours in lodging of the F.I.R. No cogent explanation has been given by the prosecution witness for the said delay. Therefore, the said delay is fatal to the prosecution case. 6. Secondly, all the witnesses produced by the prosecution are related to the deceased. Therefore, they are interested witnesses. Maniya (PW-9), the complainant happens to be a maternal cousin brother of the deceased. Chandu (PW-3), happens to be the uncle of the deceased. Moreover, a few witnesses are chance witnesses. Since these are chance witnesses or interested witnesses, therefore, their testimonies should not be believed. 7. Thirdly, although the prosecution claims that an axe was recovered at the instance of the appellant, but the axe was recovered from an open place. Moreover, no blood was found on the axe. Therefore, the recovery of the axe. does not connect the appellant to the alleged offence. 8. Fourthly, according to Dr. Shankarlal (PW-8), the deceased had suffered a single injury on his head that too by a blunt weapon. Therefore, considering the fact that the appellant was armed with a sharp-edged weapon, and according to the eye-witnesses, he used only the blunt side of the weapon, obviously, his intention was not to cause the death of the deceased. He neither had the intention, nor the knowledge to cause Noliya's death. Therefore, at worst, the case would travel only upto an offence under Section 304, Part II I.P.C. 9. Lastly, Since the appellant has already completed five years of sentence, his conviction should be reduced from Section 302 I.P.C. to Section 304, Part II I.P.C. and his sentence should be reduced to as undergone. 10. On the other hand, Mr. Therefore, at worst, the case would travel only upto an offence under Section 304, Part II I.P.C. 9. Lastly, Since the appellant has already completed five years of sentence, his conviction should be reduced from Section 302 I.P.C. to Section 304, Part II I.P.C. and his sentence should be reduced to as undergone. 10. On the other hand, Mr. K.R. Bishnoi, the learned Public Prosecutor, has vehemently made the following submissions:- firstly, Chokhli (PW-1), Badira (PW-2), Natha (PW-7), Maniya (PW-9) have clearly stated that although Noliya was brought to his house in the evening, but they could not locate any transportation. The Jeep could be located only in the morning. Thereafter, Noliya was taken to the hospital. However, on the way, he expired. Subsequently, a written report was given to the police at the hospital. Thus, these persons have explained the delay in lodging of the F.I.R. Hence, the delay in lodging of the F.I.R. is not fatal to the prosecution case. 11. Secondly, none of the witnesses are chance witness as their presence around the place of incident is natural. The alleged incident occurred in the evening. It was natural for Chandu (PW-3) to be passed through that area and for Badira (PW-2) to be on his way to his shop. Moreover, merely because, the eye-witnesses happen to be related to the accused, this fact would not dilute the significance of their testimonies. Furthermore, none of these witnesses have been demolished in their cross-examination. Hence, the learned Judge as justified in relying upon their testimonies for the purpose of convicting the appellant. 12. Thirdly, since the axe was recovered at the instance of the appellant, the recovery connects the appellant to the alleged offence. 13. Fourthly, even if a single blow was struck by the appellant, the injury was on a vital part like the head. According to Dr. Shankarlal (PW-8), the deceased had suffered a fracture on the left parietal side and a large hematoma was discovered in the brain. The injury was sufficient in the ordinary course of nature to cause death of the deceased. Therefore, the learned Judge was justified in convicting the appellant for offence tinder Section 302 I.P.C. Hence, the learned Public Prosecutor has supported the impugned judgment. 14. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 15. The injury was sufficient in the ordinary course of nature to cause death of the deceased. Therefore, the learned Judge was justified in convicting the appellant for offence tinder Section 302 I.P.C. Hence, the learned Public Prosecutor has supported the impugned judgment. 14. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 15. Delay in lodging the F.I.R. is generally considered to adversely affect the prosecution story. For, the delay may give an ample time to the complainant-party to implicate the innocent person, to embroider the story, and to exaggerate the real facts of the case. However, delay is not always fatal to the prosecution, especially when the delay has been explained by the prosecution witnesses. Therefore, the Court is required to see whether the delay has been explained or not? In the present case, Badira (PW-2) clearly states that at night they made frantic efforts to locate a jeep, but they could not find a jeep till the next morning. In the morning, they took Noliva to the hospital. However, on the way, he expired. According to Chandu (PW-3) they tried to locate a vehicle at night, but they could locate the jeep only at 5.00 A.M. They transported Noliva in the Jeep to the Hospital. But, on the way, Noliya expired. Same version has been given by Maniya (PW-9), the Complainant. According to the Maniya (PW-9), he gave the written report at the hospital. Thus, according to the prosecution witnesses, the moment the vehicle could be located, they took the injured to the hospital. However, he died on the way. Obviously, their first concern was to get Noliya medically treated. Since the written report was given at the hospital, it cannot be said that there was a delay which has not been explained by the prosecution witnesses. Hence, the delay is not fatal to the prosecution case. 16. Merely because, the eye-witnesses happen to be related to the deceased, would not oust their testimony. For, firstly, according to the prosecution witnesses, even the appellant is related to the deceased as he is Noliya's uncle. Therefore, both tie appellant and the witnesses are related to each other. Secondly, the testimony of the witnesses has been corroborated by independent evidence such as the medical evidence. Thirdly, none of these witnesses have been demolished in their cross-examination. For, firstly, according to the prosecution witnesses, even the appellant is related to the deceased as he is Noliya's uncle. Therefore, both tie appellant and the witnesses are related to each other. Secondly, the testimony of the witnesses has been corroborated by independent evidence such as the medical evidence. Thirdly, none of these witnesses have been demolished in their cross-examination. Thus, the learned Judge was certainly justified in relying upon the eye-witnesses, namely Badira (PW-2), Chandu (PW-3), Basuda (PW-5) and Maniya (PW-9). 17. The only issue before the Court is whether offence falls within the ambit of Section 302 I.P.C. or within the ambit of Section 304, Part II I.P.C. or not? According to the prosecution witnesses there was a dispute between the appellant's father and father of the deceased over a land owned by the family. Secondly, the appellant happens to be the uncle of the deceased. Thirdly, although the appellant as armed with a sharp-edged weapon like an axe, he chose not to use the sharp side of the weapon. Instead, he assaulted the deceased on the head from the blunt side. Fourthly, he did not repeat the assault. According to Dr. Shankarlal (PW-8) the deceased had suffered a single injury on his head. Therefore, it cannot be said that the appellant had the intention or the knowledge that by causing a single injury on his head, he would cause such an injury which would either be so imminently dangerous, or would be sufficient in the ordinary course of nature to cause Noliya's death. Therefore, the offence does not travel beyond Section 304, Part II I.P.C. 18. For the reasons stated above, the appeal is partly allowed. The conviction of the appellant is reduced from Section 302 I.P.C. to Section 304 Part II I.P.C. Since the appellant has undergone five years of imprisonment, his sentence is reduced to as undergone. However, the fine amount of Rs. 5,000/- is confirmed. In case the appellant fails to deposit the said amount, he is further directed to undergo six months of simple imprisonment in default thereof. In case he deposits or has deposited the said amount, he shall be set at liberty forthwith, if not wanted in any other criminal case. 19. The bail plication has become infructuous in the light of the judgment passed of the appeal.Appeal partly allowed. *******