Order : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgement dated 31.10.2013 passed by the Additional Sessions Judge No. 2, Bundi, District Bundi, whereby accused-appellant Shivraj has been convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs.10,000, in default whereof he was to further undergo simple imprisonment of six months. 2. The facts giving rise to the present appeal, are that on 24.07.2010, complainant Dhanraj submitted a written report to Prahlad Singh, Sub Inspector, P.S. Hindoli, District Bundi at the place of incident i.e. Village Pagara, District Bundi alleging therein that his elder sister Sajana was married to Shivraj S/o Sh. Ladu about 15-16 years ago and out of their wedlock, they were having one son and three daughters. Since last 10-12 years Shivraj was residing at Village Pagara, P.S. Hindoli, District Bundi and working as Driver. It was further alleged in the report that on 24.07.2010, he received an information on telephone that his sister Sajana was lying dead in her house. After reaching at village Pagara, he saw his sister lying dead in her room. At the spot he came to know that Shivraj husband of Smt. Sajana has assaulted Smt. Sajana due to which Smt. Sajana expired on the spot. On the basis of written report, police registered a FIR bearing No.256/2010 for offences u/s.302 IPC at P.S. Hindoli, District Bundi. After registering the FIR, police started usual investigation and during the course of investigation, recorded the various statements of witnesses, prepared the site plan and arrested the accused-appellant. Police filed charge sheet against the accused appellant under section 302 IPC before the Magistrate concerned, from where the case was committed to the Court of Sessions where charges were framed against the accused appellant u/s.302 IPC to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 18 witnesses and exhibited a number of documents. Thereafter, accused appellant was examined u/s.313 Cr.P.C. in which he stated that when he entered the house, he saw Smt. Sajana lying on the bed, bleeding from her head. Then appellant tried to stop the bleeding. Durgalal after examining Smt. Sajana informed that she has passed away. He stated that Durgalal stayed at his home during whole night. The witnesses have deposed against him falsely. Then appellant tried to stop the bleeding. Durgalal after examining Smt. Sajana informed that she has passed away. He stated that Durgalal stayed at his home during whole night. The witnesses have deposed against him falsely. In defence evidence, appellant examined witness Iqbal (DW1) and exhibited two documents on the record of trial court. On conclusion of the trial, the learned trial court convicted and sentenced the accused appellant vide the impugned judgment and order dated 31.10.2013 in the manner as stated above. Hence this appeal. 3. Shri Sanjay Sharma, learned counsel for the accused-appellant has argued that the learned trial court has erred in law in solely relying on the testimony of child witness Lakhan (PW5) aged 10 years, whose statement does not inspire confidence inasmuch as his presence at the seen of the occurrence when the incident took place is ruled out by both her grandmother Bhuri Bai (PW4) and cousin of the appellant Durga Lal (PW18). Presence of Durga Lal in his house has been admitted by Lakhan (PW5). Durga Lal stated that he took meals with Lakhan in the night and then they slept on one cot together. Accused-appellant Shivraj came to his house around 9-10 am and enquired from Lakhan about his mother. Lakhan told him that she had gone to Devli for collecting clothes. Then they went to sleep. In the morning, he went to met Lakhan, who had gone to the house of the Sarpanch for watching television. Deceased Sajna came in the morning and then alleged incident took place. In cross examination, this witness Durga Lal (PW18) has again reiterated this that Shivraj had not returned home till Lakhan was present in his house. It was he, who has called Lakhan from the house of the Sarpanch in the morning around 5-6 am. This witness has contradicted himself from what he has stated in examination-in-chief. He was subjected to cross examination where he stated that he did not see accused-appellant subjecting deceased to beating. When he woke up in the morning around 6 o’ clock, Sajna was lying in the room and was bleeding from her head. Accused-appellant Shivraj did not came to him in the night and came around 5-6 o’ clock. Learned counsel therefore argued that even as per this statement, neither Shivraj was present when the incident took place, nor Lakhan was present to witness any such incident. Accused-appellant Shivraj did not came to him in the night and came around 5-6 o’ clock. Learned counsel therefore argued that even as per this statement, neither Shivraj was present when the incident took place, nor Lakhan was present to witness any such incident. The accused has thus been falsely been convicted only with a view to save the real culprit. 4. Learned counsel for the accused-appellant has also referred to the testimony of Bhuri Bai (PW4), who too has stated that on receiving the information from father- in-law of the deceased that her daughter had died, she along with her son Dhanraj (PW3) and Ramratan Meena (PW11) went to village Pagara. When they reached house of the accused-appellant Shivraj, he was consuming liquor, eating almonds and dancing. The dead body of Sajna was lying in room in the pool of blood. She had sustained injuries on the head and other parts of the body. On her query, his son informed her that his father had killed his mother in the room. In cross examination, this witness has admitted that when they reached the house of the appellant, there was no one there. Lakhan and other children of the appellant were also not present there and that they were called from the house of Sarpanch after their arrival, that means that Lakhan could not have witnessed the incident. 5. Learned counsel argued that defence of the accused appellant was precisely this that when he reached back home in the morning, the deceased was lying in a pool of blood and was, in fact, bleeding profusely. He cut her hair, shaved her head by razor and put a burnt cloth on the injuries on head so that the bleeding could be stopped. At that time, however, Durga Lal (PW18) checked her body and told him that she has already died. He has not committed the murder of Sajna and was being falsely implicated only with a view to save the real culprits. 6. Learned counsel for the accused-appellant has contended that the allegation of Lakhan (PW5) that the accused caused injuries on the person of deceased by ‘kulhari’, has not been substantially proved either from the postmortem report or the statement of Dr. Brijendra Shakywal (PW6). The ‘kulhari’ has not been recovered. 6. Learned counsel for the accused-appellant has contended that the allegation of Lakhan (PW5) that the accused caused injuries on the person of deceased by ‘kulhari’, has not been substantially proved either from the postmortem report or the statement of Dr. Brijendra Shakywal (PW6). The ‘kulhari’ has not been recovered. FSL report cannot be relied against the accused as it was received late and was neither exhibited, nor put to accused in the examination under Section 313 Cr.P.C. 7. Shri Sanjay Sharma, learned counsel for the accused-appellant further argued that the learned court below has seriously erred in not appreciating the fact that the FIR (Ex.P8) is not believable because as per the prosecution case, police reached the spot after the incident and dead body was taken to the hospital thereafter, whereas FIR was lodged at 5.40 PM after a long delay. As such, the impugned conviction and the sentences recorded against the appellant is liable to be quashed and set aside by this Court. 8. It is argued that the learned court below has failed to consider and appreciate that the prosecution witnesses have indulged themselves in making material improvements in Court upon their earlier version given out before the investigating agency. As such, their testimony was not worth credence at all. 9. Learned counsel further submitted that the learned trial court has seriously erred in convicting the accused appellant without appreciating the facts that the participation of accused appellant in the incident was highly doubtful and improbable and the evidence on the record was not sufficient to prove the guilt against the appellant. It is further submitted that the learned Court below has seriously erred in not considering the facts that the first information report was ante timed and time is not mentioned in postmortem report or MLR of the deceased. As such, the omission in the F.I.R. regarding the specific overt act and the weapons carried by the accused person is material one and goes to the root of the case, making the entire story of the prosecution highly doubtful. 10. Learned counsel further submitted that the learned court below has failed to consider and appreciate that the prosecution examined a witness namely Durgalal S/o Sh. Bansi Lal before the learned trial Court, who was present at the spot whole night whereas the presence of accused petitioner at the spot is totally doubtful. 10. Learned counsel further submitted that the learned court below has failed to consider and appreciate that the prosecution examined a witness namely Durgalal S/o Sh. Bansi Lal before the learned trial Court, who was present at the spot whole night whereas the presence of accused petitioner at the spot is totally doubtful. It is contended that the prosecution examined Lakhan (PW5) as an eye witness of the incident, who is a child witness and there are material contradictions in his statement as such, no reliance can be placed on his statement as the witness changed his version on one on another pretext. The alleged eye witnesses were not only unreliable looking to the circumstances of the case but their testimony was further liable to be condemned on the premise that their statements u/s 161 Cr.P.C. were not recorded by the Investigating Officer on the same day but on the next day of the incident. Such a material and crucial aspect has been brushed aside by the trial court in a cursory manner. 11. Learned counsel submitted that the learned court below has miserably failed to make a critical analysis of the prosecution evidence so as to thrash out the real facts of the case by separating the grain from the chaff. It is submitted that in the facts of the present case, truth and falsehood are so inextricably mixed up with each other that they cannot be separated safely. As such, the entire case of the prosecution deserves to be discarded. It is contended that the learned trial judge has miserably failed to consider and appreciate that the circumstances relied upon against the accused appellant were not even put to him u/s 313 Cr.P.C. As such those circumstances could not be taken into consideration against the accused appellant. 12. Learned counsel for the accused-appellant submitted that the learned court below has also failed to appreciate the various embellishments and additions made in the First Information Report and the other documents prepared by the investigating agencies, which reflects upon the malafides of the complainant and investigating agencies. The testimony of the prosecution witnesses is riddled with numerous in congruencies rendering the same unworthy of credence. The prosecution has conveniently not produced independent witnesses of vicinity to substantiate its case, and adverse inferences on that count should have been drawn against them. The testimony of the prosecution witnesses is riddled with numerous in congruencies rendering the same unworthy of credence. The prosecution has conveniently not produced independent witnesses of vicinity to substantiate its case, and adverse inferences on that count should have been drawn against them. The defence of the accused appellant has been discarded with callous indifference by the learned trial court. It is submitted that the medical evidence is in conflict with the ocular testimony, which goes to the root of the case making and entire prosecution case untrustworthy and unreliable. 13. It is submitted that the learned court below has seriously erred in framing charges and recording the statements of the accused u/s 313 Cr.P.C., which has seriously prejudiced the case of the defence. As such, the conviction recorded by the learned court below cannot be sustained by this Court and the appellant is liable to be acquitted. 14. Shri Sudesh Saini, learned Public Prosecutor opposed the appeal and supported the impugned judgement. He submitted that there is sufficient evidence against the accused-appellant, which has been properly considered by the learned trial court while convicting the accused-appellant. Therefore, no interference can be called for by this Court and the appeal deserves to be dismissed. 15. We have given our anxious consideration to the rival submissions and perused the material on record. 16. The earliest version, which was given to the police by Dhanraj, brother of the deceased in written report (Ex.P8) dated 24.7.2010 was that the marriage of his elder sister Sajna was solemnised with appellant-Sajna 15-16 years ago. One son and three daughters were born out of their wedlock. The elder son of the deceased Lakhan was aged 12 years. The appellant and his family were residing in village Pagara for last 10-12 years. The appellant was a truck driver. His sister used to earn her livelihood by beating drums. They were staying in a house outside village Pagara. He received a telephonic information from Ladu Singh, father of the appellant at 3.00 pm on 24.7.2010 that his sister Sajna was found dead in their house. Thereupon, the informant along with his mother Bhuri Bai and friend Ramratan Meena went to village Pagara on a motorcycle. When they reached their about 3.30 pm, they saw the dead body of the Sajna lying in the room. Thereupon, the informant along with his mother Bhuri Bai and friend Ramratan Meena went to village Pagara on a motorcycle. When they reached their about 3.30 pm, they saw the dead body of the Sajna lying in the room. Her head was shaved and hair removed and she was bleeding from her head. Cousin of the appellant Durga Lal, who was resident of Village Chhoti Luhari was present there. When inquired from him, he told that in the morning around 5.30 am, while he was sleeping, Lakhan S/o Shivraj woke him up and told hat appellant was beating his mother. When he went inside the room, he saw Sajna was lying on the ground and was bleeding from the head. Her hair were cut and head was shaved. He tried to stop Shivraj, but Shivraj started abusing him with filthy language and pushed him out of the room. The informant further stated that at the time of incident, his nephew Lakhan and her younger sisters were present there. Action be taken against the accused. 17. The informant Dhanraj has appeared as (PW3) and has reiterated the same version, which he has given in the written report (Ex.P8). He has also proved the site plan (Ex.P7), photography thereof (Ex.P1), seizure memo of the blood smeared ‘lugadi’ of the deceased (Ex.P2), seizure memo of razor and blade (Ex.P3), inquest of the dead body (Ex.P4) and seizure memo of blood stained broken piece of cement floor (Ex.P5), seizure memo of simple pieces of cement floor (Ex.P6) and seizure memo of one ‘peticote’ and blouse of deceased (Ex.P11). He was attesting witness of all the aforesaid memos. Though in cross examination, this witness has stated that the piece of ‘lakri’ and a ‘kulhari’ was also found at the place of occurrence, which the police carried with themselves, but seizure of neither of these articles has been shown by the police. 18. Bhuri Bai, mother of the deceased and the informant has appeared as PW4 in the Court. She has stated that marriage of deceased was solemnised with the appellant 20 years ago. Three daughters and one son were born out of their wedlock. The elder son was Lakhan and younger to him were daughters Radha, Saroj and Golu. At the time of incident, appellant and his family were staying in village Pagara. She has stated that marriage of deceased was solemnised with the appellant 20 years ago. Three daughters and one son were born out of their wedlock. The elder son was Lakhan and younger to him were daughters Radha, Saroj and Golu. At the time of incident, appellant and his family were staying in village Pagara. He was earning his livelihood by working as a driver on a truck. Sajna used to earn his livelihood by beating drums. Appellant was habitual alcoholic and used to often beat her daughter Sajna. This witness then stated that she usually advise her so that their material relation might not disturb. Father of deceased Ladu Singh telephonically informed Dhanraj about the death of Sajna whereupon she along with Dhanraj and Ramratan Meena went to their house in village Pagara. This witness has stated when they reached there, she saw Shivraj consuming liquor and almonds outside the house and he was dancing. They found the dead body of Sajna lying in the room. Her head was shaved and she had number of injuries on head and other parts of the body. When she enquired from Lakhan as to what happened to his mother, Lakhan told that in the morning about 4-5 pm, when they were asleep, his father Shivraj took his mother Sajna to another room and killed her. Lakhan told that his father returned from his duty around 9-10 pm, the previous night, at that time his mother Sajna was not found in house. Shivraj enquired from Lakhan about Sajna. He told that Sajna had gone to Devli. Sajna returned from Devli quite late in the morning around 4-5 am. Shivraj on this infuriated and subjected her to beating. Earlier also, Shivraj had subjected deceased Sajna to beating, of which police complaint was also made. This witness was subjected to cross examination where she was confronted with her police statement (Ex.D1) and asked a specific question why did she not stated therein that Shivraj was found consuming alcohol and dancing, she failed to explain this contention. In cross examination at one place, she has stated that when she reached at the place of incident, her grandchildren were not present there and after their arrival, they were brought from the house of the Sarpanch after 15-20 minutes of their arrival. In cross examination at one place, she has stated that when she reached at the place of incident, her grandchildren were not present there and after their arrival, they were brought from the house of the Sarpanch after 15-20 minutes of their arrival. This contradiction may not be so significant because naturally some alterations in the statement may be possible, but at the same time if four children of the deceased of tendered age were taken to the house of the Sarpanch, the purpose was that they would be spared of the site of their deceased mother for some time. It was a natural reaction of the villagers or the Sarpanch. 19. We find that what has been stated by Bhuri Bai (PW4) was substantially also stated by Lakhan (PW5). The learned trial court has heavily relied on the testimony of Lakhan. On reading of statement of Lakhan, we find that despite the fact that this is a boy, aged 10 years. He was consistent and quite firm on what he told to the police and reiterated the same in the Court statement. He has stated that his grandfather was staying at Village Shahpura, whereas his father and mother was staying at Village Pagara. On the fateful day, i.e. 23rd her mother had gone to Devli to collect clothes. The children stayed back in Village Pagara. On that day, Durga Lal, the cousin of the appellant was also present in their house. Shivraj, who was working as a driver, returned back around 9.00 pm. On reaching home, he enquired about his mother Sajna. Lakhan then informed his father that she had gone to Devli for collecting clothes. Her mother returned back quite late i.e. about 5.00 am. His father then demanded explanation from her as to where she had gone. On this altercation took place between both. His father i.e. appellant started beating his mother by feast and kicks. He even hit her head on a wall. He then dragged her to another adjoining room and hit her head again to the almirah. Then his father inflicted a ‘lakri’ blow on the legs of her mother and also ‘kulhari’ blow on her head. Thereafter, he cut her hair by scissor and shaved her head by razor. His father then came out of the room, then consumed liquor, ate rice and almond and started dancing. Then his father inflicted a ‘lakri’ blow on the legs of her mother and also ‘kulhari’ blow on her head. Thereafter, he cut her hair by scissor and shaved her head by razor. His father then came out of the room, then consumed liquor, ate rice and almond and started dancing. Her mother all this time was inside the room. His father locked the room from outside. When he went inside the room, his mother was found dead. This witness also stated that when Durgalal tried to intervene, appellant abused him as well and pushed him out of the room. This witness was subjected to very lengthy cross examination. Despite the fact that he was a boy aged only 10 years, he stood his grounds and remained unshaken. 20. Lakhan (PW5) in his cross examination, has stated that Durga Lal had come to their house during day time of the previous day and stayed in their house after the incident took place. He was student of Class-VI. When his grandmother and maternal uncle came, Durga Lal was still present in the house. He then further stated in cross examination that the ‘gandasi’, ‘lakri’ and scissor were there in the room, in which dead body of her mother was lying. His grandmother had taken these articles. This statement was given by him to police in statement (Ex.D2), but why it was not mentioned therein, he could not explain. In answer to a leading question, he replied that after her grandmother reached their home at Pagara, Sarpanch brought him from his own house. As already noticed above, these minor variations and contradictions cannot be blown out of proportion because it is quite natural that when mother of the four children of tendered age was put to death in their sight, if the Sarpanch or other villagers had taken them away from their house to the house of Sarpanch, it is a spontaneous reaction to the situation. We cannot deduce from this that Laxman was not present in the house when the incident took place. In fact, when he was further heard by the defence in repeated cross examination, this witness on his own stated that at the time of incident, he had not gone to the house of Sarpanch. We cannot deduce from this that Laxman was not present in the house when the incident took place. In fact, when he was further heard by the defence in repeated cross examination, this witness on his own stated that at the time of incident, he had not gone to the house of Sarpanch. The Court then put a specific question to him that he has given two contradictory versions, which one was correct, this witness again reiterated that he did not go to the house of the Sarpanch. By this he only meant that when the incident took place, he was very much present in the house and witnessed his father beating his mother mercilessly. But then, this witness has admitted that when his mother died, a burnt cloth was also lying there, which had been put on her head by his father. This precisely was the defence of the accused-appellant that after the incident, he tried to stop the bleeding and for that purpose, he burnt the cloth, which technique is usually used by the villagers to stop the bleeding. He then further stated in cross examination that this was correct that his father had put burnt cloth on the head injury of his mother so as to stop the bleeding. 21. Durga Lal (PW18) while trying to support the prosecution has somewhat made similar statement. He too has stated that accused-appellant Shivraj was working as driver and in night when he returned back home at 9-10 pm, he enquired from his children regarding the whereabouts of their mother. They told him that she had gone to Devli for collecting the clothes. All went asleep in night. When he went to meet Laxman early in the morning the following day, Sajna, the deceased returned back home. When he brought Laxman from the house of Sarpanch where he had gone to see television, Shivraj subjected her to beating and she was lying on the ground and bleeding. He tried to intervene and save Sajna, thereupon Shivraj abused him and asked him to bring the cloth so that her bleeding could be stopped. When he brought the cloth, Shivraj cut her hair by scissor, however she was still bleeding, therefore, Shivraj asked him to bring some more cloth, which he did. After sometime Sajna died. Children then started crying. In cross examination, this witness has stated that Shivraj was his cousin. When he brought the cloth, Shivraj cut her hair by scissor, however she was still bleeding, therefore, Shivraj asked him to bring some more cloth, which he did. After sometime Sajna died. Children then started crying. In cross examination, this witness has stated that Shivraj was his cousin. He told that Shivraj did not have television in his home. He said that Laxman had gone to the house of Sarpanch in the previous night after dinner to watch television around 8-9 pm. Then this witness has differed from his examination-in-chief by stating that Shivraj did not return back home till Laxman was present there and that he brought Laxman from the house of Sarpanch in the morning around 5-6 am, thus suggesting that Laxman was not an eye witness. Therefore, he contradicts himself by stating that he did not see accused-appellant Shivraj beating Sajna. In the next sentence, he further admitted that when he got up early in the morning at 5-6 am, Sajna was lying in her room and she was bleeding. Shivraj told him that Sajna had returned back home around 1-2 am late in the night. Then in the next sentence, this witness has stated that Shivraj did not return back home till 5 am in the morning. Thereafter he stated that ‘kulhari’ and ‘lakri’ were lying by the side of Sajna, but the police people gave them to the mother of the deceased. Thereafter, this witness has stated that when Shivraj came home, he enquired from this witness as to how Sajna received injuries and why was she bleeding, to which his answer was that he is unaware. 22. But then Durga Lal (PW18) has stated that Shivraj tried to stop the bleeding by applying burnt cloth on the head injury of the deceased by removing her hair. This he did with a view to save her life. While this Court is inclined to believe the testimony of Laxman, who has proved that it was none other than the accused appellant, who subjected deceased to merciless beating, but the evidence of Laxman when read conjointly with the evidence of Durga Lal clearly suggests that accused-appellant was quite angry with the deceased because she returned back to home quite late. As per version of Laxman, she came back in the morning around 5.00 am, whereas Durga Lal has stated that appellant told him that she returned at 1-2 am. Be that as it may, the evidence sufficiently proves that heated exchange of words took place between the husband and wife. While the husband (accused-appellant) demanded explanation from the wife why she returned back home so late, he got so infuriated that he could not control his anger and subjected her to beating. Later, however, he tried to save her life by trying to stop her bleeding and in this, he used the burnt clothes. This fact has not only been stated by Durga Lal, but Lakhan as well. They both probablise part of the defence of the accused-appellant in so far as his effort to save her life is concerned. 23. The statement of Lakhan (PW5) finds medical corroboration from the inquest report (Ex.P4) as well as postmortem report (Ex.P12) as to nature, number and location of injuries. Dr. Brijendra Shakywal (PW6) has proved the postmortem report and also the cause of death of the deceased to the effect that deceased died due to head injury. Though the prosecution has alleged that ‘kulhari’ and ‘lakri’ were lying by the side of the deceased, but neither such weapons were recovered, nor apparently such weapons were used, given the nature of injuries. Accused subjected deceased to beating by use of fist and kicks and by hitting her head with the wall, which shows that he was not armed and did not have the intention of committing murder of his wife. Even as per postmortem report (Ex.P12), two injuries, which the deceased sustained on the knees are abrasions and one injury on the left leg was contusion. The nature of injuries namely; lacerated wound on left parietal bone 3 x 1 inch with multiple bruises on frontal bone, fracture of nasal bone, lacerated wound on the left leg in the size of 3 x 1 cm, lacerated wound in the size of 1 x ½ x ½ cm on right arm and bruise in the size of 6 x 5 cm on occipital bone, substantially corroborates what has been stated by Laxman that appellant in a heat of passion hit the head of the deceased against a wall and the almirah and also caused injuries to her by use of fist and kicks. This is also corroborated from the panchnama (Ex.P4) where the location and nature of injuries have been indicated, which tally not only with the postmortem report, but also with that has been stated by Bhuri Bai (PW4). The evidence thus brings the case of the appellant within the explanation-4 to Section 300 of the IPC and therefore for the act of the accused-appellant by which death of Sajna was done, it must be held that death of Sajna was caused with the intention of causing such bodily injury, which was likely to cause her death and this act, thus is held to be culpable homicide not amounting to murder, making the accused-appellant liable to conviction for offence in Part-I of Section 304 IPC. 24. In view of above discussion, the appeal deserves to be partly allowed and is accordingly allowed in part. The conviction of the accused-appellant for offence u/s.302 IPC is set aside. He is instead convicted for offence u/s.304 Part-I IPC and sentenced to rigorous imprisonment of ten years with fine of Rs.10,000 in default where he was to further undergo additional imprisonment of six months.