JUDGMENT 1. - This appeal is directed against the judgment dated 0/02/2004 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bundi in Sessions Case No. 46/2001 whereby, he was convicted for offence under Section 302 IPC and was sentenced to life imprisonment alongwith fine of Rs. 5,000/- and in default of payment thereof, he was sentenced to further undergo simple imprisonment for three months. 2. The facts giving rise to this appeal are that Chaturbhuj (PW7) submitted a written report (Exh.P.8) at Police Station Sadar, District Bundi on 27/05/17 at 6.10 p.m. in connection with an incident, which took place on the same day at 2.00 p.m. He alleged that while he was working at his agriculture field, suddenly his cousin Durgalal, who was employed to look after the agriculture field of Pappu Lal, came to him and informed that Pappu Lal inflicted kulhadi blow on the head of Brij Mohan in his presence, due to which, he was lying in a pool of blood outside the house of Pappu. After hearing this, the complainant reached the place of incident. Ram Kalyan and Bajrang were already present there. As per the complaint, there were two injuries on the head of his brother Brij Mohan. Ram Kalyan, Bajrang, Chittar Lal and complainant himself took Brij Mohan on a cot to the Bundi Hospital in the tractor-trolley of one Satya Narain Dhabai of Village Jaleda. It was further mentioned in the written report that due to injuries, Brij Mohan had become unconscious. 3. On the basis of the aforesaid written report (Exh.P.8) at Police Station Sadar, District Bundi, a regular first information report was lodged against accused Pappulal vide No. 152/17 for offence u/Ss.307, 324 and 323 IPC. However, Brij Mohan, later succumbed to the injuries, therefore, offence u/S.302 IPC was added. After investigation, the police filed charge-sheet against the accused-appellant for offence u/S.302 IPC. On committal of the case, the learned Additional Sessions Judge (Fast Track) No. 1, Bundi framed the charge against the accused for offence u/S.302 IPC simplicitor to which accused pleaded innocence, denied the charges and claimed to be tried. The prosecution examined as many as 25 witnesses and produced 28 documents to prove their case. 4. We have heard Shri Arvind Kumar Gupta, learned counsel for the accused-appellant and Shri Javed Choudhary, learned Public Prosecutor. 5. The prosecution examined as many as 25 witnesses and produced 28 documents to prove their case. 4. We have heard Shri Arvind Kumar Gupta, learned counsel for the accused-appellant and Shri Javed Choudhary, learned Public Prosecutor. 5. Shri Arvind Kumar Gupta, learned counsel for accused-appellant has argued that the learned trial court has not correctly examined the version of the prosecution witnesses, whose statements are not only self-contradictory but the witnesses are also contradicting each other. From the statements of Chaturbhuj (PW7) and Durgalal (PW4), it becomes clear that the first information report was not lodged at the time alleged by the prosecution. The entire prosecution case thus becomes doubtful. There was considerable delay in sending the first information report to the Magistrate u/S.157 Cr.P.C. It reached the Magistrate on the next day. From the statement of Ramkishan (PW3), it becomes clear that accused-appellant and deceased Brij Mohan did not sit together after consuming liquor and the story developed by the prosecution that the accused-appellant caused fatal injuries to the deceased is not believable. The statement of Durgalal (PW4), who is star witness of the prosecution, is full of contradiction. He has made lot of improvement over his previous version given to the police under Section 161 Cr.P.C. Learned counsel has submitted that Durgalal on the one hand has stated that he was working at the agriculture field of Pappulal at 2.00 p.m. but subsequently he changed his version stating that he was working in the agriculture field at 12.00 noon when the occurrence took place. Durgalal stated that first of all he went to Sita Bai, the wife of Brij Mohan and told her about the incident. Sita Bai (PW13) in her statement has stated that the incident took place around 12 in the noon. Statement of Sita Bai under Section 161 Cr.P.C. was recorded by the police twelve days after the incident, whereas she has admitted in her statement that the police came to the village on the same day of incident. There is no allegation in the first information report lodged by Chaturbhuj that Durgalal went to Sita Bai to inform about the incident. Sita Bai in her statement does not corroborate the version given by Durgalal. She has stated that Durgalal informed her that Brij Mohan was lying in front of the house of Pappulal in injured condition. There is no allegation in the first information report lodged by Chaturbhuj that Durgalal went to Sita Bai to inform about the incident. Sita Bai in her statement does not corroborate the version given by Durgalal. She has stated that Durgalal informed her that Brij Mohan was lying in front of the house of Pappulal in injured condition. When she went there, it transpired that mother of Pappulal had inflicted a `lakdi' blow over his head. Then, Sita Bai cleaned the blood and put the bandage. This clearly proves that Durgalal was not an eye-witness. 6. Shri Arvind Kumar Gupta, learned counsel further argued that Sita Bai (PW13) herself is an eye-witness. This is not only proved from her own statement but also proved from the statement of Durgalal Jana Bai (PW14), mother of the deceased also demolishes the case of the prosecution. She has stated that Durgalal informed her about 11 or 12 a.m. that Brij Mohan was lying in inured condition in the house of Pappu and mother of Pappu had caused injuries to him. She in her statement under Section 161 Cr.P.C. did not state that Durgalal was an eye-witness. She has thus made lot of improvement from her previous version. The deposition of Sita Bai (PW13) has also not been properly appreciated by the learned trial court. She too made lot of improvement over her previous version under Section 161 Cr.P.C. According to Dr.Trilok Chand Mahavar (PW8), injured was admitted in the surgical ward where he was treated. Injury report of the deceased was not produced on record. Injuries also did not corroborate the statements of these witnesses. This witness Dr. Trilok Chand Mahavar (PW8) has not stated about the presence of liquor in the stomach of the deceased so as to corroborate the case of the prosecution that accused-Pappu Lal and deceased-Brij Mohan together consumed liquor and accused inflicted `kulhadi' blow on his head. It thus, falsifies the case of the prosecution. Learned counsel submitted that even otherwise none of the injuries sustained by the deceased are found to have been caused by any sharp edged weapon. All the injuries were lacerated wounds and therefore allegation of the prosecution of causing injury by the appellant with `kulhadi' is proved to be false. Written report (Exh.P.8) is also proved to be false and fabricated. A.U. Siddiqui (PW25) suppressed the report by Gram Panchayat Bameda. All the injuries were lacerated wounds and therefore allegation of the prosecution of causing injury by the appellant with `kulhadi' is proved to be false. Written report (Exh.P.8) is also proved to be false and fabricated. A.U. Siddiqui (PW25) suppressed the report by Gram Panchayat Bameda. He in his statement has proved that first information report was lodged with the delay and same was not sent to the Magistrate forthwith. Learned trial court has not correctly appreciated the statement of Dr.O.P. Verma (DW1). This witness was not produced by the prosecution but was produced by the defence. He treated the deceased immediately after the incident. He stated that he was posted as Medical Jurist on 27/5/17. He proved that all the injuries on the person of deceased-Brij Mohan were caused by a blunt weapon and that none of these injuries could have been caused by a `kulhadi'. His testimony has been overlooked by the learned trial court. The court cannot make distinction between the statements of the prosecution witnesses and those of the defence witness. Everything will depend upon the quality of the evidence and the confidence that inspires. 7. Shri Arvind Kumar Gupta, learned counsel further argued that when it becomes doubtful whether deceased died due to injuries inflicted by `lathi', `lakdi' or `kulhadi', accused-appellant becomes entitled to the benefit of doubt. Not only this, most of the prosecution witnesses are also simultaneously saying that it was mother of Pappulal, who caused such injuries to the deceased. Learned counsel alternatively argued that the alleged offence at the maximum would fall within the purview of Section 304 Part-I IPC. The appellant has already served sentence of more than ten years and therefore if the court is not persuaded to acquit him, his conviction ought to be converted from Section 302 IPC in one under Section 304 Part-I IPC and should be sentenced to the period already undergone by him. 8. Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and submitted that informant-Chaturbhuj (PW7) has maintained his version throughout what he has stated in the written report. There is neither any contradiction nor any improvement. He alleged in the written report on the basis of information given by Durgalal (PW4) that Pappulal inflicted `kulhadi' blow on the head of Brij Mohan, as a result of which, he fell down and was lying in front of house of Pappulal. There is neither any contradiction nor any improvement. He alleged in the written report on the basis of information given by Durgalal (PW4) that Pappulal inflicted `kulhadi' blow on the head of Brij Mohan, as a result of which, he fell down and was lying in front of house of Pappulal. Durgalal (PW4) in his court statement corroborated this allegation. Learned trial court has rightly appreciated that Durgalal was a child witness, hardly thirteen years of age and therefore minor variations and discrepancies in his statement were liable to be overlooked. He has categorically stated that both, the appellant and deceased were taking liquor in the house of Ramkishan. They came to his house and sat on a cot. Pappulal started abusing Brij Mohan, which he latter objected. Accused-Pappulal then inflicted two-three `kulhadi' blows on the deceased. This witness (Durgalal) then went to inform the wife of deceased Sita about the incident. Learned Public Prosecutor submitted that other witnesses namely; Chaturbhuj (PW7), Sita Bai (PW13) and Jana Bai (PW14) have substantially corroborated this version in their statements. Post-mortem report (Exh.P.) is proved by Dr.Trilok Chand Mahavar (PW8). `Kulhadi' has been recovered at the instance of appellant vide Exh.P.13, which has been proved by Chitar (PW18) & Babulal (PW23). The appeal therefore deserves to be dismissed. 9. We have given our anxious consideration to the rival submissions and perused the material available on record. 10. It is no doubt true that Chaturbhuj (PW7) in the first information report has alleged that Durgalal, who was employed with Pappulal to look after his agriculture field, informed him that Pappulal inflicted `kulhadi' blow on the head of Brij Mohan. Brij Mohan was lying outside his house. Durgalal (PW4) has also made similar allegation in the examination-in-chief that both Pappulal and Brij Mohan were consuming liquor in the house of Ramkishan. Then, Pappu started abusing Brij Mohan. Brij Mohan objected to this. Then, Pappulal inflicted two-three blows on the head of deceased. He (Durgalal) then went to Sita Bai and informed her. Durgalal (PW4) has also made similar allegation in the examination-in-chief that both Pappulal and Brij Mohan were consuming liquor in the house of Ramkishan. Then, Pappu started abusing Brij Mohan. Brij Mohan objected to this. Then, Pappulal inflicted two-three blows on the head of deceased. He (Durgalal) then went to Sita Bai and informed her. In cross-examination, he stated that when Pappulal inflicted `kulhadi' blows on the head of Brij Mohan, Brij Mohan was sleeping on the cot and was not sitting but then in the next line he stated that Brij Mohan was standing and that Pappulal inflicted injuries to him while he was standing and thereafter he fell on the cot and then he got injuries on his head from the wooden cot. This witness has given statement from A to B and C to D vide Exh.D.2 under Section 164 Cr.P.C. to the Magistrate, where he stated that when Pappu started abusing Brij Mohan, he in turn also abused Pappu then, both of them fought each other. All this only indicates that Durgalal, who was boy of the tender age of twelve-thirteen years, could not face with volley of questions by defence counsel and therefore could not fully withstand the cross-examination. Nevertheless, his statement is not liable to be fully rejected for that reason. The court has to while evaluating his evidence has to give due regard to his age but at the same time look for sufficient corroboration as to what he has stated. Ramkishan (PW3) in whose house both accused-Pappulal and deceased-Brij Mohan were consuming liquor, has stated that both of them came to his house. They hunted a rabbit in the jungle and brought it for their feast. He stated that Pushpa Bai, mother of Pappulal came there at around 2.00 p.m. and both left with her. Her mother forbade Pappu from consuming liquor. This witness thus has not given any substantial evidence as to incident either way. Chaturbhuj (PW7) has stated that Durgalal had inflicted `kulhadi' blows on the head of deceased-Brij Mohan. When he reached there, he found Brij Mohan lying outside his house (Pappulal). Ramkalyan and Bajranglal were also present. In cross-examination also he stated that Durgalal had seen Brij Mohan lying outside the house of Pappu and having seen him, he thereafter came to inform to this witness. When he reached there, he found Brij Mohan lying outside his house (Pappulal). Ramkalyan and Bajranglal were also present. In cross-examination also he stated that Durgalal had seen Brij Mohan lying outside the house of Pappu and having seen him, he thereafter came to inform to this witness. He has denied the suggestion that Durgalal told him that mother of Pappu had inflicted `kulhadi' blows on the head of deceased-Brij Mohan. 11. Sita Bai (PW13) widow of deceased Brij Mohan, stated that Durgalal informed her about 12 in the noon of the fateful day that Pappu Teli inflicted blows on the body of her husband Brij Mohan. She went to the place of the occurrence. Her mother-in-law and sister-in-law were also there. She noticed that head of her husband has been cleaned and bandage was put over his head after washing it with cold water. When this witness was confronted with her statement to the police Exh.D.4, she denied having informed that her husband and appellant-Pappulal were friends and that when her husband was leaving for Pappulal, he told her husband that he should give the amount of Rs. 2,000/-, which he was having, to her. Further statement of this witness in cross-examination is that when they reached the house of Pappulal, they were informed that his mother inflicted lathi blow on the head of her husband and thereafter cleaned his head and put the bandage. Similar statement has been made by Sita Bai (PW13), wife of the deceased and Jana Bai (PW14), mother of the deceased. They stated that when they reached the place of incident, they were mislead on being informed that mother of Pappulal had hit the deceased on his head by `lakdi', who thereafter cleaned his head and put the bandage by applying cold water so that bleeding should stop. Version that mother of Pappulal hit the deceased at his head with `lakdi' is only partially correct to the extent that weapon of the offence was not `kulhadi' but `lakdi' or `lathi', with which the accused-appellant hit the deceased. Though Durgalal in giving his initial version has alleged that it was `kulhadi' with which appellant delivered two-three blows on the head of deceased. The injury report of the deceased has been exhibited by the defence vide Exh.D.6, which has been proved by Dr. O.P. Verma (DW1). Though Durgalal in giving his initial version has alleged that it was `kulhadi' with which appellant delivered two-three blows on the head of deceased. The injury report of the deceased has been exhibited by the defence vide Exh.D.6, which has been proved by Dr. O.P. Verma (DW1). Even if he has been produced by the defence but if he is a witness of the truth, his testimony has to be believed and accepted. He has proved that none of the injuries found on the person of the deceased were found to have been caused by a sharp edged weapon. All the four injuries were lacerated wounds. This explains the use of `lathi' as a weapon of offence. Evidence also proves these facts, one is that Pappulal and Brij Mohan were friends, second that they both were consuming liquor in the house of Ramkishan and third that they fought each other in the state of intoxication. That apart, Durgalal (PW4) and Ramkishan (PW3) also proved this fact. Ramkishan even proved the fact that Pushpa Bai, mother of Pappulal had come to his house at 2.00 p.m. and both, Pappu and Brij Mohan had left with her. They were heavily drunk. Durgalal proved that appellant-Pappu started abusing Brij Mohan to which Brij Mohan objected and it is therefore that Pappulal inflicted blows on his head. Evidence thus proves that accused-Pappulal and deceased-Brij Mohan were friends. Pappulal and Brij Mohan came to the house of Ramkishan for enjoying the feast of rabbit, which they hunted and they had consumed liquor and in that state, fought with each other. Durgalal (PW4) a child witness may be mislead in respect of weapon of offence but he was surely a witness of the incident. 12. Evidence proves that weapon of offence was not `kulhadi' but `lathi' or `lakdi' and therefore it is proved that though it was a case of culpable homicide not amounting to murder and not that of the culpable homicide amounting to murder without premeditation. Accused-appellant Pappulal inflicted blows on the head of the deceased in sudden fight in the heat of passion upon a sudden quarrel and without having taken any undue advantage or in an unusual manner. Accused-appellant Pappulal inflicted blows on the head of the deceased in sudden fight in the heat of passion upon a sudden quarrel and without having taken any undue advantage or in an unusual manner. Pappulal caused such injuries on the head of Brij Mohan with intention to cause such bodily injuries as was likely to cause his death and therefore his act would fall within the purview of Part-I of Section 304 IPC. 13. We therefore uphold the alternative plea set up by the learned counsel for the accused-appellant. 14. In the result, the appeal is allowed in part. The conviction of accused-appellant Pappu Lal for offence u/S.302 IPC is altered into one under Section 304 Part-I IPC. Accused-appellant has already served the sentence of 10 years & 07 months. Accused-appellant Pappulal S/o Kalu Lal thus is sentenced to the period already undergone by him. He be released forthwith, if not required in any other criminal case. 15. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 173, appellant is directed to forthwith furnish a personal bond in sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court. 16. The record be sent back to the trial court forthwith.Appeal partly allowed. *******