JUDGMENT : The present appeal is preferred by the sole accused being aggrieved by the judgment and order of conviction and sentence dated 4.2.2011 passed by the Fast Track Court, Bhadravathi, in SC.No.39/2009. 2. The brief case of the prosecution as per the complaint at Ex.P1 is that the complainant Bhyrappa is having two daughters and a son, namely Kavitha, Savitha and Manjunatha. Kavitha was given in marriage to accused Veerabhadrappa, a distant relative’s son of the complainant, seven months prior to the alleged incident. Accused and Kavitha used to reside for some time at Byadarahalli, Bengaluru and about two months prior to lodging of the complaint, they came and started residing in a separate room of the house of the complainant at Kambadal. It is further case of the complainant that on 18.11.2008 at about 8.00 p.m., when the complainant and his wife had been to Dharmasthala, the accused picked up a quarrel with Kavitha-PW.5, the daughter of the complainant by assaulting her with regard to serving of meals to him. When they were quarrelling, the deceased Shanthamma who had come to the house of the complainant about one week back to see his younger sister who was not keeping well, intervened to rescue Kavitha from the assault of the accused. Accused being enraged, told her as to why she intervenes when he was assaulting his wife Kavitha and he threatened her. Thereafter he took a piece of brick which had fallen outside the house and assaulted on the chest, stomach, head and ribs of the deceased Shanthamma. Immediately the deceased fell down by making hue and cry. At that time, children and parents of the complainant poured water on her face. Thereafter, she was taking long breath and suddenly stopped breathing and died. By that time, the neighbourers came to the spot and on seeing the incident, they caught hold of the accused Veerabhadra and tied him to a tree. When the complainant and his wife came from Dharmastala on 19.1.2008 at about 6.00 p.m., he saw the dead body of Shanthamma and on hearing the incident from his children and the other persons, he went and filed the complaint as per Ex.P1. On the basis of the said complaint, a case was registered in Crime No.225/2008 by Bhadravathi Rural Police against the accused for the offence punishable under Sections 323 and 302 of IPC. On the basis of the said complaint, a case was registered in Crime No.225/2008 by Bhadravathi Rural Police against the accused for the offence punishable under Sections 323 and 302 of IPC. After completion of investigation, the Investigating Officer laid the charge sheet. Thereafter the case was committed to the Sessions Court. The Sessions Court secured the presence of the accused and after hearing the learned counsel appearing for both sides, framed the charge which was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried and as such the trial was fixed. 3. In order to prove its case, the prosecution in all has examined 13 witnesses and got marked 13 Exhibits and one Material Object. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. and accused denied the incriminating circumstances as against him. However, he has not chosen to lead any evidence on behalf of him. After hearing both the parties, the trial Court came to the conclusion that the accused has committed the alleged offence and has convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.1,000/- for the offence punishable under Section 302 of IPC and further sentenced to undergo SI for a period of one year for the offence punishable under Section 323 of IPC. Assailing the same, the accused is before this Court in the present appeal. 4. We heard the learned counsel Smt.Mamatha appearing on behalf of the accused and Sri Vijayakumar Majage, learned Additional SPP for the respondent-state. 5. It is the contention of the learned counsel for the appellant-accused that the complainant has filed the complaint on 19.11.2008 at about 10.00 p.m, though the alleged incident has taken place on 18.11.2008 at about 8.30 p.m. Hence, there is an inordinate delay in filing the complaint and the said delay has not been properly explained by the prosecution. The prosecution has got examined 13 witnesses, except official witnesses, all of them are related and interested witnesses and no independent witnesses have been examined by the prosecution. PW.5, the wife of the accused has not supported the case of the prosecution and she has turned hostile. The prosecution has got examined 13 witnesses, except official witnesses, all of them are related and interested witnesses and no independent witnesses have been examined by the prosecution. PW.5, the wife of the accused has not supported the case of the prosecution and she has turned hostile. Even though PW.10 Eramma, the mother of PW.1 has been cited as an eye witness, during the course of her cross-examination, she has clearly admitted that she has not seen the alleged incident and she is having low eye sight. Learned counsel for the appellant-accused further submitted that PW.9, the brother of PW.5, though he has been cited as eye witness, has not stated with regard to assault which is said to have been committed by the accused. The only evidence which has been left out is that of the evidence of PW.6, the sister of PW.5, which is also not credible and not reliable. The alleged incident is said to have taken place during the night hours, but the witnesses have admitted that there was no light, then under such circumstances, the evidence of the eye witnesses ought not to have been believed and the accused ought to have been acquitted by the trial Court. She further submitted that though the case of the prosecution is that the accused took a piece of brick and assaulted on the head, chest, stomach and other parts of the body of the deceased, as per the PM report at Ex.P5, no injuries have been shown. If really the deceased was assaulted with a piece of brick, some injuries would have been found over the body of the deceased. She further submitted that though the evidence has been produced, there is no motive or intention to cause the death of the deceased. Under such circumstances, the trial Court ought to have acquitted the accused. Alternatively, she submitted that if the case of the prosecution is said to have been proved, the trial Court has not considered the fact that there was no premeditation or intention or animosity to cause the death of the deceased by the accused. Under such circumstances, the trial court ought to have convicted the accused for the offence punishable under Section 304 Part I or Part II of IPC. Under such circumstances, the trial court ought to have convicted the accused for the offence punishable under Section 304 Part I or Part II of IPC. On these grounds, she prayed for allowing the appeal by setting aside the judgment and order passed by the trial Court and prayed for acquittal of the accused. 6. Per contra, the learned Additional SPP vehemently argued by submitting that there are eye witnesses to the incident in question and the evidence of PW.6 who was present at the time of alleged incident has clearly stated that when the accused picked up a quarrel with PW.5 for having not served the food to him and assaulted her. Thereafter when the deceased tried to pacify the quarrel and intervened, the accused being enraged and with an intention to cause the death of the deceased, went out of the house and brought a piece of brick and assaulted on the head, stomach, chest and other parts of the body of the deceased, which itself clearly goes to show that the accused was having an intention to cause the death of the deceased. He further submitted that the doctor-PW.7 has clearly deposed that the injury has been caused is to the spleen and due to the said injury to the spleen the deceased died and as per the opinion of the doctor, cause of death is due to injury to the spleen. He further submitted that the doctor has clearly stated in the cross-examination that even if a particular person is assaulted with a brick, there may or may not be external injury. Under such circumstances, the evidence of PW.7 also supports the case of the prosecution. He further submitted that witnesses have categorically stated that PW.1 and his wife had been to Dharmasthala and no other persons were there and they informed PW.1 about the incident and immediately after he observing the fact situation, went and filed the complaint on 19.11.2008 at 10.00 p.m. Hence, there is no delay in lodging the complaint. After considering all the material on record, the trial Court has rightly convicted the accused. Hence, the accused-appellant herein has not made out any good grounds so as to interfere with the impugned judgment and order and therefore he prayed for dismissal of the appeal. 7. After considering all the material on record, the trial Court has rightly convicted the accused. Hence, the accused-appellant herein has not made out any good grounds so as to interfere with the impugned judgment and order and therefore he prayed for dismissal of the appeal. 7. We have carefully and cautiously gone through the grounds urged in the appeal and perused the evidence and the documents including the original records. It is the contention of the learned counsel for the appellant-accused that there is a delay in filing the complaint and the said delay has been caused to concoct and include the accused in the alleged crime as the marriage between the accused and PW.5 was not supported by the parents and the brother and sisters of PW.5. In that light, she submitted that there is possibility of false implication of the accused. 8. As could be seen from the complaint at Ex.P1 and the evidence of PW.1 who has specifically stated that he had been to Dharmasthala along with his wife and when he came back to the house at about 6.00 p.m. on 19.11.2008, he came to know about the alleged incident and thereafter he went and filed the complaint. As could be seen from the evidence of PW.5, she has also clearly stated that when the alleged incident took place they informed PW.1 over the phone and they waited till PW.1 coming home. Thereafter, PW.1 went to the Police Station and filed the complaint as per Ex.P1. On going through the said evidence and the facts and circumstances of the case, the delay has been properly and thoroughly explained by the prosecution. There is no material placed by the accused to substantiate the fact that the accused has been falsely implicated and in that light delay has been caused. Even there is no material to show that the said complaint has been filed after much deliberations. Even though it is the contention of the accused-appellant that as the parents, brother and others have not liked the marriage between accused and PW.5 as such falsely he has been implicated in this case, the fact in the evidence shows that accused was staying along with PW.5 in the house of in law’s, since more than three months. They went from Bengaluru and were staying there. In that light, the said contention is not sustainable. They went from Bengaluru and were staying there. In that light, the said contention is not sustainable. Hence, the first contention of the learned counsel for the appellant is not having any force and the same is rejected. 9. It is further contention of the learned counsel for the appellant that though the prosecution got examined PWs.5, 6, 9 and 10 as eye witnesses, their evidence is not trustworthy and not reliable. As could be seen from the evidence of wife of the accused-PW.5, who has deposed that the deceased had come to the house of the complainant in order to see her sister. On 18.11.2008, her parents had been to Dharmasthala in the morning hours and on the same day, during evening hours accused picked up a quarrel with PW.5 by slapping her for having not served food and at that time, the deceased intervened and tried to save PW.5. Even PW.6, sister of PW.5 has reiterated the evidence of PW.5. She deposed that when she was having food accused assaulted her sister PW.5 and at that time, the deceased intervened and tried to save PW.5. At that time, accused assaulted the deceased with brick. He also assaulted them with hands. So also PW.9, brother of PW.5 stated in the same line. If the entire evidence of PWs.5, 6 and 9 is closely perused including the wife of the accused, though she has not supported the case of the prosecution, she has deposed that galata took place between her and accused and accused also slapped her. Evidence of PWs.6 and 9 also clearly goes to show that accused slapped PW.5 and when the deceased tried to pacify the quarrel between the accused and PW.5, being enraged, the accused asked her as to why she comes in between them and took a piece of brick which was fallen outside the house and assaulted her with the same. Immediately thereafter, the deceased fell down and she died after taking a long breath. Even the fact that PWs.3, 5, 6 and 9 have also suffered injuries at the hands of the accused in the said galata, the prosecution got examined the doctor-PW.8 who has deposed that he examined Yellappa, Kavitha Savitha and Manjunatha and has issued wound certificates as per Exs.P6 to P9. Even the fact that PWs.3, 5, 6 and 9 have also suffered injuries at the hands of the accused in the said galata, the prosecution got examined the doctor-PW.8 who has deposed that he examined Yellappa, Kavitha Savitha and Manjunatha and has issued wound certificates as per Exs.P6 to P9. The said evidence clearly goes to show that these witnesses were present at the time of the alleged incident and they have also suffered the injuries at the hands of the accused. Though it is the contention of the leaned counsel for the appellant-accused that no such incident has taken place, no explanation is forthcoming by the accused as to how and in what manner the aforesaid witnesses have suffered the injuries. 10. On careful perusal of the evidence of PW.10-Eramma, the mother of PW.1 though she has been cited as an eye witness, she has clearly admitted that she is not in a position to hear and see the things properly, then under such circumstances, her evidence does not come to the aid of the prosecution in any manner. But even though her evidence is not considered by the Court, the evidence of PWs.5, 6 and 9 is consistent and it is trustworthy and reliable. 11. It is well established principle of law that testimony of injured witnesses has to be given a greater weight and much weight has to be given to their presence at the time of alleged place of occurrence and it cannot be doubted. It is also now well settled that it is not likely to spare the real assailant and implicate the innocent person in order to discard the evidence of the injured witnesses. There must be cogent evidence before the Court, then only the testimony of the injured witnesses can be discarded. In that light, defence has not brought any material and as such, the evidence of the injured witnesses is acceptable and reliable. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Chandrasekar & another Vs. State reported in (2017)13 SCC 585 , wherein at paragraph10, it is observed thus:- ‘10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. State reported in (2017)13 SCC 585 , wherein at paragraph10, it is observed thus:- ‘10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p 302.para 28) “28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.”….’12. The aforesaid principle of law has been already upheld by the Hon’ble Apex Court in the case Mohd. Ishaque & others Vs. State of West Bengal & others, reported in (2013) 14 SCC 581 at Head NoteA, which reads as under:- “A. Criminal Trial – Witnesses – Injured witness – Credibility – Criteria of appreciation – PWs.1, 2 and 4 in the present case sustained serious injuries and their evidence was believed by the court – Testimony of injured witnesses is entitled to great weight – It is unlikely that they would spare the real culprit and implicate an innocent person – Of course, there is no immutable rule of appreciation of evidence that evidence of injured witnesses should be mechanically accepted, it should also be in consonance with probabilities – Whether witnesses are interested persons and whether they had deposed out of some motive cannot be sole criterion for judging credibility of a witness – Main criterion would be whether their physical presence at the place of occurrence was possible and probable.” 13. Keeping in view the aforesaid principle, if we peruse the evidence of the doctor-PW.7 who has deposed that he conducted the postmortem over the dead body of the deceased on 20.11.2008 and he found that some organs were intact, but spleen of the deceased was injured. He has opined that cause of death is due to haemorrhagic shock as a result of injury to spleen. He has opined that cause of death is due to haemorrhagic shock as a result of injury to spleen. In so far as the contention of the learned counsel for the appellant that if really the accused assaulted with brick on head, chest and other parts of the body of the deceased, the injuries might have been noticed on the body and no such injuries were found as such it creates a doubt is concerned, during the course of cross-examination of PW.7, it has been elicited from his mouth that if a person is assaulted with a brick, there may or may not be external injuries, which clearly goes to show that the injury may not happen sometimes if a person is assaulted with a brick. In that light, the evidence of PW.7 also cannot be discarded. Keeping in view the aforesaid facts and circumstances of the case, we are of the considered view that the prosecution has clearly established the fact that the deceased has died due to the assault by the accused with a piece of brick and due to the injury to the spleen. 14. Though the prosecution has proved the guilt of the accused, as could be seen from the entire materials on record, there is an evidence to show that there was no premeditation or intention or animosity between the accused and the deceased. The said version is also supported by the evidence of PW.3-Yellappa. When there is no animosity or no premeditation or intention to cause the death of the deceased by the accused and the circumstances under which the alleged incident has taken place, we are of the considered opinion that the accused was not having any intention or premeditation to cause the death of the deceased. While convicting the accused-appellant, the trial Court has not properly considered and appreciated this aspect in its right perspective. Under such circumstances, we hold that the prosecution has proved the guilt of the accused beyond reasonable doubt. But at the same time, we also hold that, when the alleged incident has taken place, the accused was not having any intention or premeditation or preparation to cause the death of the deceased. Under such circumstances, the accused is liable to be convicted for the offence punishable under Section 304 Part II of IPC instead of Section 302 of IPC. 15. Under such circumstances, the accused is liable to be convicted for the offence punishable under Section 304 Part II of IPC instead of Section 302 of IPC. 15. In so far as the offence punishable under Section 323 of IPC is concerned, the prosecution has got examined the doctor-PW.8 and PWs.3, 5, 6 and 9 who have also stated that they also suffered injuries at the hands of the accused. The prosecution has also produced the wound certificates of PWs.3, 5, 6 and 9 at Exs. P6 to P9 to substantiate the fact that they have suffered injuries at the hands of the accused. In that light, there is no illegality committed by the trial Court in convicting the accused for the offence punishable under Section 323 of IPC and the same is liable to be confirmed. 16. At this juncture, it is submitted by both sides that the accused has been arrested on 20.11.2008 and till date he is in custody. In view of the said submission made at the Bar, it is clear that the accused is in custody since nearly more than nine years. Hence, it is just and proper to convict the accused for the offence punishable under Section 304 Part II of IPC instead of 302 of IPC and sentence him to undergo imprisonment for the period which he has already undergone. Accordingly, appeal is partly allowed. The accused-appellant herein is convicted for the offence punishable under Section 304 Part-II of IPC instead of Section 302 of IPC. He is sentenced to undergo imprisonment for a period for which he has already undergone. The impugned judgment and order dated 4.2.2011 passed by the Fast Track Court, Bhadravathi, in SC.No.39/2009, is modified. Accused-appellant herein is set at liberty forthwith, if he is not required in any other case. In so far as the conviction and sentence imposed on the accused-appellant herein by the trial Court for the offence punishable under Section 323 of IPC, is concerned, the same is confirmed.