JUDGMENT Hon'ble MATHUR, J.—By the judgment impugned dated 24.11.2005 learned Additional Sessions Judge No.2, Bhilwara, Camp Court Shahpura, convicted accused Prabhu for the offences punishable under Sections 302 and 341 Indian Penal Code. The trial court for commission of offence punishable under Section 302 Indian Penal Code sentenced the accused to undergo life term imprisonment with a fine of Rs.1000/- and further to undergo three months' rigorous imprisonment in the event of default in payment of fine. For the offence punishable under Section 341 Indian Penal Code the trial court awarded a simple imprisonment for a period of one months with a fine of Rs.200/- and further to undergo seven days simple imprisonment in the event of default in payment of fine. To challenge the conviction recorded and sentence awarded, this appeal is preferred. 2. Briefly stated, facts of the case are that on basis of an oral information given by Shri Bhanwar Singh son of Sardar Singh on 4.10.2004 at Police Station, Jahajpur, a criminal case was registered and investigation commenced for the offences punishable under Sections 341 and 307 Indian Penal Code. While submitting oral information, Laxman Singh and Raghunath Singh were also accompanying the informant and injured Bhanwar Singh son of Madan Singh was lying in a tempo. He was not in condition to speak. 3. As per the information recorded (Ex.P/4), informant Bhanwar Singh at about 05:30 PM of the same day was at his well, where he heard that Prabhu has caused injury to Bhanwar Singh son of Madan Singh by an axe. He imme-diately rushed to the place of occurrence, where he came to know that Bheru Singh son of Gopal Singh has taken the injured to his house. The informant, on reaching to house, saw Bhanwar Singh son of Madan Singh having a head injury oozing blood. The injured then was taken for treatment by a tempo and while going to hospital the information was given at the police station. 4. Injured Bhanwar Singh son of Madan Singh while undergoing treatment at Jahajpur Hospital on 4.10.2004 itself died at 09:35 PM, therefore, the investigation was initiated for the offence punishable under Section 302 Indian Penal Code. The investigating agency while undergoing usual investigation got an autopsy on the corpus of deceased Bhanwar Singh son of Madan Singh and report of that is available on record as Ex.P/16. The investigating agency while undergoing usual investigation got an autopsy on the corpus of deceased Bhanwar Singh son of Madan Singh and report of that is available on record as Ex.P/16. As per the postmortem report (Ex.P/16) the cause of death was massive blood loss from ruptured spleen. The injuries found on the body of deceased were recorded in the postmortem report as under:- 1. Lacerated wound – 8 x 2 cm x bone deep on left periato – frontal region – periato frontal bones under injury. 2. Lacerated wound – 6 x 2 cm x skin deep just lateral to 1/R No.1. 3. Bruise – 8 x 3 cm on left back below scapular region with swelling 10 x 5 cm surrounding to bruise. 5. The accused then was arrested and on basis of a disclosure made by him the investigating agency recovered an axe as per document Ex.P/11. The axe was sent for its serological examination and as per its report (Ex.P/18) no blood stains were found on it. Certain other articles including a shirt of accused, a shirt and safa (headgear) of the deceased were also sent for their serological examination to the Forensic Science Laboratory. As per the report given by the Forensic Science Laboratory (Ex.P/18) all these articles were found with blood stains of group 'O'. 6. The prosecution after completion of the investigation filed a police report and the Sessions court after hearing the accused framed a charge against him for commission of the offences punishable under Secs. 302 and 341 Indian Penal Code. On denial of the same, trial commenced, as desired. 7. The prosecution supported its case with the aid of 17 witnesses and by getting 18 documents (Ex.P/1 to Ex.P/18) exhibited. An opportunity was given to the accused to explain the adverse and incriminating circumstances against him available in prosecution evidence. The accused termed the entire evidence false and pleaded his innocence. Three documents Ex.D/1 to D/3 were produced and exhibited in defence. 8. Learned trial court after examining the evidence available on record held the accused guilty for the charge levelled. Accordingly, conviction was recorded and sentence was awarded. 9. The accused termed the entire evidence false and pleaded his innocence. Three documents Ex.D/1 to D/3 were produced and exhibited in defence. 8. Learned trial court after examining the evidence available on record held the accused guilty for the charge levelled. Accordingly, conviction was recorded and sentence was awarded. 9. In appeal, the only argument advanced by Shri R.S. Chundawat, learned counsel for the appellant, is that even by accepting the evidence adduced by the prosecution, the offence committed by the accused appellant does not travel beyond an offence punishable under Sec.304 part-II Indian Penal Code. It is submitted that no evidenced is available on record to establish that the accused was having any intention to cause death of Bhanwar Singh son of Madan Singh. As per learned counsel, the incident also not discloses any cruelty or taking undue advantage of the circumstances. It is pointed out that even as per the prosecution the injury was caused from rear side of the axe, as such, if the accused would have any intention to kill Bhanwar Singh, he would have gave injuries on vital parts by sharp edged side of axe. 10. While meeting with the argument advanced by counsel for the appellant, Shri K.R.Bishnoi, learned Public Prosecutor, submits that the accused caused three injuries to the deceased on his vital parts and this fact clearly indicates his intention to kill Bhanwar Singh son of Madan Singh. 11. Heard counsel for the appellant, learned Public Prosecutor and also examined the record in lucid. 12. As per the medical evidence available on record, there is no doubt about homicidal death of Bhanwar Singh son of Madan Singh. The deceased was having two lacerated wounds on his head, but these were not found sufficient to cause death in usual course of life. The third injury i.e. the bruise with swelling on back below scapular region caused rupture of the spleen. 13. Dr. Himmat Singh (PW-14), the treating doctor at Government Hospital, Jahajpur, stated that Bhanwar Singh son of Madan Singh was brought to the hospital in serious condition at 07:50 PM and he died at 09:35 PM. He was not having any incised wound. 14. Dr. 13. Dr. Himmat Singh (PW-14), the treating doctor at Government Hospital, Jahajpur, stated that Bhanwar Singh son of Madan Singh was brought to the hospital in serious condition at 07:50 PM and he died at 09:35 PM. He was not having any incised wound. 14. Dr. G.N. Verma (PW-15), who conducted autopsy on the corpus of deceased Bhanwar Singh son of Madan Singh, stated that the cause of death was rupture of spleen and this cause came in knowledge on internal examination of the body. The external bruise available in the scapular region was the injury that damaged the spleen. In cross examination, this witness accepted that such kind of injury may occurred due to falling from tempo or from any other place of little height. 15. Shri Bheru Singh (PW-8) was cited by the prosecution as an eye witness of the incident. As per this witness, deceased Bhanwar Singh son of Madan Singh on the fateful day was standing outside the house of Roopa and was eating corn. At that time Prabhu came and stated that he will beat Bhanwar Singh. Prabhu then gave an axe blow to Bhanwar Singh son of Madan Singh on his head and further gave him blow by axe on falling his down. Looking to the blood oozing from the head, this witness covered the injury by a safa (headgear) and took him to his house. Bhanwar Singh son of Madan Singh at that time walked for his house at his own with the aid of this witness. Sardar Singh, Bhanwar Singh, Laxman Singh and Raghunath Singh also arrived there. The entire incident was narrated by this witness to above named persons also. The tempo then was brought and injured was taken to hospital. This witness in very specific terms stated that all the injuries were given by Prabhu from rear side of the axe. In cross examination this witness stated that at the time of incident about 50 persons were present but none of them tried to help the accused. 16. Bhanwar Singh son of Sardar Singh (PW-2) stated that on the fateful day he was at his well, where he heard that an axe injury has been caused to Bhanwar Singh son of Madan Singh by Prabhu. As per this witness, the incident occurred at 07:30 PM. 16. Bhanwar Singh son of Sardar Singh (PW-2) stated that on the fateful day he was at his well, where he heard that an axe injury has been caused to Bhanwar Singh son of Madan Singh by Prabhu. As per this witness, the incident occurred at 07:30 PM. On hearing about the incident, this witness rushed to the spot of occurrence and then for the residence of Bhanwar Singh son of Madan Singh. He found Bhanwar Singh son of Madan Singh with injuries, thus, carried him to hospital alongwith Laxman Singh, Raghunath Singh, Bheru Singh etc. According to this witness, Bheru Singh in tempo conveyed him that axe blows were given by Prabhu. The tempo with injured Bhanwar Singh son of Madan Singh was first taken to the police station, where the first information report was lodged and then the injured was taken to the hospital for treatment alongwith a police constable. In hospital Bhanwar Singh son of Madan Singh was treated, but he died at about 09:35 PM. This witness corroborates the evidence given by Bheru Singh (PW-8) to the extent that on arriving at home of Bhanwar Singh son of Madan Singh, the injured was taken to the hospital in a tempo. Before going to hospital, all the persons went to the police station, where the information was given to the Station House Officer. An important fact stated by this witness is that the incident occurred at about 7:30 PM. Suffice to mention that as per Dr. Himmat Singh (PW-14), the injured was admitted at hospital at 07:50 PM. The discrepancy here is with regard to the time of incident. The first information report (Ex.P/5) was lodged at police station on 4.10.2004 at 07:30 PM, but as per its contents the incident occurred at 05:30 PM. The discrepancy noticed above clearly indicates that Bhanwar Singh son of Sardar Singh (PW-2) did not mention correct time of incident while getting his testimony examined before the court. It is important to notice that in the document Ex.P/4, the document wherein the oral information was reduced in writing, the time of incident is given as 05:30 PM. Meaning thereby, after receiving injury at about 05:30 PM, the injured was first brought to the police station at 7:30 PM and then he arrived at the hospital at 7:50 PM. 17. Meaning thereby, after receiving injury at about 05:30 PM, the injured was first brought to the police station at 7:30 PM and then he arrived at the hospital at 7:50 PM. 17. Shri Laxman Singh (PW-3), stated that on knowing about the injury caused to Bhanwar Singh son of Madan Singh by Prabhu, he went to his residence, wherefrom the injured was taken to police station by Bhanwar Singh, Bheru Singh and this witness also accompanied them. As per this witness the distance of Jahajpur from his village is six kilometers. 18. An another witness is Ghisalal Kalal (PW-7). As per this witness, deceased Bhanwar Singh son of Madan Singh, about a month earlier to the date of incident misbehaved with wife of Prabhu. He heard about this incident from several residents of the village. 19. Shri Sanjeev Kumar (PW-17), the Station House Officer of Police Station Jahajpur, being Investigating Officer, narrated all the steps taken during the course of investigation including the fact that the oral information was given to him by Bhanwar Singh (PW-2) at 07:30 PM and therafter the injured was taken to hospital. 20. From the evidence discussed above, there is no doubt that accused Prabhu gave axe blows from its rear side to Bhanwar Singh son of Madan Singh and those caused two head injuries and one abdominal injury. The head injuries were not sufficient to cause death in usual course of life. The injury caused in scapular region damaged spleen of Bhanwar Singh son of Madan Singh and massive bleeding due to that resulted into his death. 21. The incident aforesaid as a matter of fact occurred at 05:30 PM, though Bhanwar Singh (PW-2) stated the time of incident as 07:30 PM. After receiving injury, Bhanwar Singh son of Madan Singh walked to his residence and thereafter he was taken to hospital i.e. situated at the distance of about six kilometers from his native village. Bhanwar Singh son of Madan Singh was taken to hospital in a tempo. The distance of six kilometers, in normal course, could have been travelled within a period of about 15-20 minutes. As already stated, the first information report was lodged at Police Station, Jahajpur at 07:30 PM, a reasonable inference, therefore, can be drawn that the deceased injured was kept at his home for about one our and 45 minutes after occurrence of the incident. As already stated, the first information report was lodged at Police Station, Jahajpur at 07:30 PM, a reasonable inference, therefore, can be drawn that the deceased injured was kept at his home for about one our and 45 minutes after occurrence of the incident. He then was taken to the police station and there-after to the hospital. These facts clearly indicate the delay of about two hours and 20 minute in providing first aid to Bhanwar Singh son of Madan Singh. 22. The other finding of fact that can be arrived on basis of the evidence available is that Prabhu caused injuries to Bhanwar Singh with rear side of the axe and at the first instance he caused a head injury. 23. On appreciation of the evidence and findings arrived, it can be safely presumed that accused Prabhu, if had any intention to cause death of Bhanwar Singh son of Madan Singh, then he would have given axe blows from sharpen edge. The giving of axe blow from rear side instead of sharpen edge indicates about the intention of the accused. The injury caused on scapular region, on its external view was a bruise with swelling. This injury resulted into rupture of spleen and massive bleeding from that caused death. The injury in scapular region too would have been given from sharpen edge of the axe, if the accused would have any intention to cause death of Bhanwar Singh son of Madan Singh. The fact of giving injuries from blunt end of axe indicates that the accused was not having any intention to cause death of deceased Bhanwar Singh son of Madan Singh. In addition to above, an another aspect of the matter is that the injured was not provided medical aid expeditiously. For no good reason, he was kept at his house for about one hour and 45 minutes. 24. In any case the prosecution evidence is not sufficient to arrive at the conclusion that the accused was having any intention to cause death of Bhanwar Singh son of Madan Singh, though he may be having knowledge that the injuries given by him with the aid of axe may result into death. He also not acted with cruelty and also not took undue advantage of the circumstances. He also not acted with cruelty and also not took undue advantage of the circumstances. The offence committed by him, thus, is not a murder as described under Section 300 Indian Penal Code, but an offence punishable under Section 304 part-II Indian Penal Code. 25. In light of the discussions made above, this appeal deserves acceptance in part, accordingly the same is partly allowed. The conviction and sentence of accused appellant Prabhu @ Prabhunath Daroga for the offence punishable under Section 302 Indian Penal Code is set aside. His conviction is recorded for the offence punishable under Section 304 part-II Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs.1000/- and further to undergo three months' rigorous imprisonment in the event of default in payment of fine.