JUDGMENT : This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 9.1.2003 and 10.1.2003 respectively passed by Additional District & Sessions Judge-cum- Fast Track Court no.-1, Gumla in S.T. No. 196 of 1992 whereby the appellant was convicted under section 304 of the Indian Penal Code and was sentenced to undergo R.I. for five years with a fine of Rs. 1000/-. and in default of payment of fine amount appellant was further directed to undergo S.I. for three months. 2. The case of the prosecution as per fardbeyan of the informant Charku Pradhan PW-9 is that on 30.12.1991 at about 8 p.m. Deocharan Bhagat (teacher) and his wife were quarreling with each other and villagers were trying to pacify them. Informant, his father and mother were also there. When father tried to stop the said teacher from quarrelling, then co-villager Paltu Munda became angry and told to his father why he was intervening in between the quarrel of wife and husband. Thereafter holding his father’s neck smashed his head on the wall and blood oozed out. His father became unconscious and fell down, resulting in fracture of his left hand also. It being night they could not take him to hospital. In the next morning his father did not regain consciousness, then he was taking his father to hospital but accused Paltu Hunda threatened him and said not to take his father to the hospital and his father will be treated in the home itself. In the night of 31.3.1991 at about 11-12 p.m. Paltu Munda brought doctor Ahmad from Sisai who gave injection to his father in an unconscious state. On 1.4.1991 also his father did not regain consciousness, then they took him to Sisai referral hospital from where he was referred to R.I.M.S, Ranchi. He brought the patient to RIMS, Ranchi in unconscious state itself where on 6.4.1991 his father died in course of treatment. Thereafter, informant took the body of his deceased father and returned back home and then took the body of the deceased to the police station for necessary action. 3. On the basis of the fardbeyan of informant a criminal case being Bharno P.S. case no. 32 of 1991 corresponding to G.R. Case No. 273 of 1991 u/s 341/323/306/302/201 of the IPC was registered against the accused. 3. On the basis of the fardbeyan of informant a criminal case being Bharno P.S. case no. 32 of 1991 corresponding to G.R. Case No. 273 of 1991 u/s 341/323/306/302/201 of the IPC was registered against the accused. On completion of investigation, charge-sheet was submitted and cognizance of the offence was taken and the case was committed to the court of Sessions for trial. Charge was framed against the accused u/s 302/34 of the IPC to which he pleaded not guilty and claimed to be tried. 4. Trial was held and on conclusion of trial accused was convicted and sentenced as aforesaid. Hence, this appeal. 5. The Prosecution has examined altogether eleven witnesses to prove its case. PW-9 Charku Pradhan is the informant of the case. PW-3 Akli Devi and PW-4 Sumrit Devi are two wives of deceased. PW-1 is Bhinsaria Devi and P.W.-2 is Deocharan Bhagat are wife and husband and they were said to be quarrelling with each other on the day of occurrence. P.W.-5 Ram Lakhan Pradhan is the son-in-law of the deceased and a hearsay witness. PW-6 Shivnath Pradhan was declared hostile. PW-7 and PW-8 is Suresh Prasad Sahu are the same person. He is an inquest report witness. He has proved his signature and signature of one Mahavir Sahu which was marked as Ext.1 and Ext.1/A respectively. He was also a fardbeyan witness and proved his signature and signature of one Baldev Ohddar on the fardbeyan which was marked as Ext. 1/B and 1/C respectively. PW-10 Uday Mahto is the investigating officer of the case and PW-11 is Dr. Raj Kumar Beg who conducted post mortem examination on the dead body of the deceased. 6. P.W.9 Charku Pradhan is the informant of this case. He stated that on the day of occurrence Deocharan and his wife were quarrelling. They were also present there along with villagers. His father told to Deocharan not to quarrel. Thereafter Paltu Munda told his father to go away and then by holding the neck of his father he smashed his head on the wall as a result his father fell down and became unconscious. He sustained injuries on the head and left hand. They brought his father home and in home his father was unconscious. Paltu said that he will arrange for his treatment in the village itself. Paltu brought Dr. He sustained injuries on the head and left hand. They brought his father home and in home his father was unconscious. Paltu said that he will arrange for his treatment in the village itself. Paltu brought Dr. Ahmad who treated his father but his father remained unconscious. Then they took his father to Sisai where he was treated by a doctor but he remained unconscious. Thereafter he was taken to Ranchi and he died in Ranchi in course of treatment. On next day they brought the dead body of his father to the police station and gave his statement. He proved his signature on the fardbeayn which was marked as Ext. 1/D. Informant further stated that there was delay in lodging the FIR due to threatening of Paltu. In his cross-examination he stated that Deocharan Bhagat was quarrelling with his wife in his house itself and several persons from village were seeing the quarrelling. 7. P.W.-3 is Akli Devi and Pw-4 Sumrit Devi are the two wives of the deceased. PW-3 stated that on the day of occurrence it was evening and quarrel occurred between teacher or PW-2 and his wife or PW-1 who lived near her house. She and her son Charku or PW-9 were seeing the quarrel . His husband was returning from market and he also came on the place of occurrence. Her husband asked teacher and his wife as to why they were quarrelling. Then co-villager Paltu Munda caught hold his neck and pulled him as a result her husband sustained injury on his head from the wall of Budram’s house and he fell down there itself. Then she brought her husband to home and then he was taken to Sisai hospital and from there he was sent to Bariatu or Ranchi Hospital but her husband died in Bariatu hospital. PW-4 Sumrit Devi reiterated almost same as PW-3 Akli Devi. 8. PW-1 is Bhinsaria Devi is the wife of PW-2 Deocharan Bhagat. Both PW-1 and PW-2 have stated in their examination-in-chief that on the date of occurrence they were quarrelling with each other and several villagers assembled outside the house. PW-2 was declared hostile. 9. P.W.-11 is Dr. Raj Kumar Beg. He conducted the port-mortem examination on the dead body of Bhauwa Pradhan. Both PW-1 and PW-2 have stated in their examination-in-chief that on the date of occurrence they were quarrelling with each other and several villagers assembled outside the house. PW-2 was declared hostile. 9. P.W.-11 is Dr. Raj Kumar Beg. He conducted the port-mortem examination on the dead body of Bhauwa Pradhan. He found following injuries on the person of the deceased: (i) Abrasion 3 ½” x 3” on right ear and around temporal area and face with blue colouration of skin. Blood coming from right external ear with fracture of bone of the skull. Brain matter was congested and blood clot was present. (ii) Abrasion 3” x2 ½” with skin pilled of from right shoulder to right exila. Doctor stated that both the injuries were caused by hard and blunt substance. Injury No. 1 was grievous and sufficient to cause death in ordinary course of nature. He proved the post-mortem report which was marked as Ext.-5. In his cross examination doctor stated that if a person is admitted in the hospital in injured position the police is informed and if a person dies during treatment, post-mortem examination is conducted in all government hospitals. 10. PW-10 Uday Mahto is the investigating officer of this case. He stated that on 30.9.91 when he was posted in Bharno police station Charku Pradhan came with dead body of his father and he took his fardbeyan. He prepared inquest report of the dead body and sent it for post-mortem examination. He proved the fardbeyan and inquest report which were marked as Ext.2 and Ext.3 respectively. 11. ARGUMENTS ON BEHALF OF APPELLANT:- Learned counsel for the appellant submitted that PW-9 is Charku Pradhan who is also the informant of this case and tried to show some inconsistencies or contradictions in his evidence. Learned counsel for the appellant further argued that between the fard-beyan and his deposition, PW-9 has deviated from the treatment that has been indicated in the fard-beyan. He also pointed out that though it has been deposed that hand of the deceased was broken but there is no medical evidence for the same. 12. Learned counsel for the appellant argued that P.W.-1 Bhinsaria Devi and P.W. 5 Ram Lakhan Pradhan are hearsay witnesses and their evidences are not reliable. Deocharan Bhagat P.W.-2 and Shivnath Pradhan P.W.-6 have been declared hostile by the prosecution. 13. 12. Learned counsel for the appellant argued that P.W.-1 Bhinsaria Devi and P.W. 5 Ram Lakhan Pradhan are hearsay witnesses and their evidences are not reliable. Deocharan Bhagat P.W.-2 and Shivnath Pradhan P.W.-6 have been declared hostile by the prosecution. 13. P.W.-3 Akli Devi is one of the wives of the deceased. Learned counsel for the appellant has pointed out that this witness did not corroborate the informant about the treatment or even regarding hospitalization. He has referred to paragraph no.8 of her deposition and pointed out that this witness has deposed that when the altercation ended then she had brought the body of the deceased to the home. Counsel for the appellant submitted that deceased had already died according to this witness. 14. P.W.-4 is Sumrit Devi is the second wife of the deceased. Counsel for the appellant has pointed out paragraph no.6 of her cross-examination and submitted that it appears that she is not an eye witness because she said that when children of the locality informed them then both the wives had gone to the place of occurrence. However, in para 2 of her deposition she said that the appellant had pushed the deceased and then he dashed against the wall causing injuries resulting in his death and therefore, it cannot be said that the appellant had any intention to kill the deceased. 15. P.W.10 is Uday Mahto who was the investigating officer of this case. Learned counsel for the appellant pointed out that he had not found any blood at the place of occurrence. Learned counsel for the appellant further submitted that at paragraph No.5 of the evidence of this witness showed that treatment of the deceased was also done at home by one doctor from Sisai and pointed out that if the treatment of the deceased would have been done at clinic or a hospital then the life of the deceased could have been saved. He further said that neither the statement of doctor who had treated the patient at home, nor who had treated the deceased at Sisai hospital or at RIMS, Ranchi were taken. Therefore, there is grave lacunae in the medical evidences and death cannot be attributed to the appellant rather it can be said that the death of the deceased had taken place due to delay in proper treatment. 16. P.W.11 Dr. Therefore, there is grave lacunae in the medical evidences and death cannot be attributed to the appellant rather it can be said that the death of the deceased had taken place due to delay in proper treatment. 16. P.W.11 Dr. Raj Kumar Beg who had conducted the post mortem examination of the dead body of the deceased and found abrasion 3 1/2 x 3” on right ear and around temporal area and face with blue colour skin. Blood coming from right external ear with fracture of bone of the skull. Brain matter was congested and blood clot was present. Doctor stated that this injury was grievous in nature and caused by hard and blunt substance. Learned counsel for the appellant submitted that from the evidence of Doctor P.W.11 it appears that doctor has opined that injuries were caused by hard and blunt substance, however no assault was made by hard and blunt substance as per fardbeyan or deposition of the informant and other material prosecution witnesses. It is a case in which it is seen right from the beginning there is no intention on the part of the appellant to cause death of the deceased rather he had also taken the deceased to the hospital for treatment. Moreover, during the time of alleged incident he was not armed with any weapon rather the incident occurred on the spur of moment. 17. Learned counsel for the appellant further submitted that it is apparent from the depositions of both the wives P.W.-3 and P.W.-4 of the deceased that the appellant had merely pushed the deceased and therefore, he cannot be held responsible for the occurrence that had taken place. It definitely cannot come within section 304 IPC rather Section 304 A of IPC is attracted because there was no intention and nor did appellant had knowledge that this act would result in the death of the deceased. Learned counsel has also cited a judgment passed by the Patna High Court in the case of Baidya Nath Kumar Vs. It definitely cannot come within section 304 IPC rather Section 304 A of IPC is attracted because there was no intention and nor did appellant had knowledge that this act would result in the death of the deceased. Learned counsel has also cited a judgment passed by the Patna High Court in the case of Baidya Nath Kumar Vs. State of Bihar reported in [1991 East Cr.C. 300 (Pat)] wherein it has been held that in a similar case where injuries have been caused by only kicks and fist and there was no intention to kill but subsequently the injured died and though the accused initially at the trial stage was convicted u/s 302/34 IPC by the learned court below, finally appellant’s conviction u/s 302/34 IPC which was altered to section 323/34 IPC. Learned counsel sought parity for the appellant of this case and submitted that if at all any conviction is made under any section the age of the appellant may be considered and the fact that at the time of conviction accused appellant was 55 years old and now he will be 73 years old and also the nature of the offence may be considered and the rigours of trial that has been faced by the appellant, the sentence may be modified. 18. ARGUMENTS ON BEHALF OF STATE:- Learned counsel for the State-APP pointed out to the evidence of informant PW-9 Charku Pradhan who is the son of deceased and argued that he is a natural and reliable witness as he was present at the place of occurrence and he has fully corroborated his fard-beyan and it is the quality of the witness that matters not the quantity of the witnesses and on that basis it is clear from his evidence that the appellant had caught hold of the deceased and smashed his head against the wall and therefore intention is fully made out by the very nature of assault made by the appellant. He has then referred to the medical evidence of Doctor P.W.11 and submitted that medical evidence is fully corroborated by the ocular evidence of informant P.W.9 as doctor also found that abrasion on right ear and around temporal area and opined that this injury was grievous and sufficient to cause death in ordinary course of nature. 19. He has then referred to the medical evidence of Doctor P.W.11 and submitted that medical evidence is fully corroborated by the ocular evidence of informant P.W.9 as doctor also found that abrasion on right ear and around temporal area and opined that this injury was grievous and sufficient to cause death in ordinary course of nature. 19. He has also argued that even evidences of PW-3 and PW-4 i.e. the two wives of the deceased said that the appellant had pushed the head of the deceased against a wall, may be they have not described it like informant PW-9 but this is the minor inconsistency. Counsel has therefore argued that based on the evidences of these three eye witnesses i.e. PW. 3, PW- 4 and PW-9 corroborated by the medical evidence of doctor PW-11 learned trial court rightly convicted the appellant.. FINDINGS: 20. Having heard both counsels, having gone through the records of the case and the evidences and also the judgment cited by counsel for the appellant, in the facts and circumstances, the arguments advanced by the learned counsel for the appellant, that the appellant had no intention or knowledge whatsoever that his act would result in death of the deceased is plausible. It is seen that on the day of occurrence two persons i.e. husband(PW-2) and wife (PW-1) were quarrelling and some villagers including the appellant were seeing the quarrel. The deceased tried to pacify the husband (PW-2) and wife (PW-1) who were quarrelling to which the appellant said to the deceased that he should not interfere in the business of other persons and then subsequently pushed his head on the wall causing head injury and subsequently deceased died in course of his treatment. PW-9 Charku Pradhan, who is the son of the deceased and informant of this case has in his fardbeyan alleged that appellant held the neck of the deceased and smashed his head against the wall. PW-9 in his evidence supported this version as given in the fardbeyan. However, the two wives of the deceased seem to somewhat disagree, who are PW-3 Akli Devi and PW-4 Sumrit Devi and from their depositions, it appears that the appellant had pushed the deceased and then his head smashed against the wall. PW-9 in his evidence supported this version as given in the fardbeyan. However, the two wives of the deceased seem to somewhat disagree, who are PW-3 Akli Devi and PW-4 Sumrit Devi and from their depositions, it appears that the appellant had pushed the deceased and then his head smashed against the wall. So there is some inconsistency /variations in the manner in which the assault was made on the body or head of the deceased, whether his head had been smashed against the wall by the appellant or whether the appellant was pushed and then subsequently his head hit the wall. In the latter case it would have been non intentional and even knowledge is not expected to be there that it would result in the death of the deceased. Regarding this aspect, the benefit of doubt will accrue to the appellant and therefore, the appellant has rightly tried to make out a case that if there is at all an offence then it may be under section 304A of the IPC rather than section 304 IPC. Even if we look at the injuries caused to the deceased in the evidence of the doctor P.W.11 they are referred to as abrasions and one is simple and another is grievous in nature. It is also found that subsequent to the deceased being injured there was much delay in finally getting him treated and counsel for the appellant has also argued that this delay in treatment had also contributed to his death. All these aforesaid reasons would make it a case of guilt under section 304A of the I.P.C. rather than section 304 of the IPC. 21. Moreover, I have gone through the judgment cited by the appellant in the case of Baidya Nath Kumar V. State of Bihar reported in [1991 East Cr C 300 Pat] (supra) wherein death was caused while assaulting by kicks and fists only and there was no intention to cause death, no weapon was used, then conviction under section 302 r/w section 34 of the IPC was held unsustainable and conviction was altered to section 323 r/w section 34 of the IPC. On the basis of cited judgment also, the conviction of the appellant under section 304A seems to be more appropriate. On the basis of cited judgment also, the conviction of the appellant under section 304A seems to be more appropriate. It is also the case of the appellant that the act was done on the spur of moment, it was not planned and it was done with no weapon. 22. Therefore, on the basis of aforesaid reasonings, the judgment of conviction and sentence of the appellant dated 9.1.2003 and 10.1.2003 respectively passed by Additional District & Sessions Judge-cum- Fast Track Court No.1, Gumla in Sessional Trial Case no. 196 of 1992 cannot sustain and is set aside. The conviction of the appellant u/s 304 IPC is altered to section 304 A IPC. 23. Regarding sentence to be imposed on the appellant is concerned, appellant is directed to undergo simple imprisonment of three months only for the altered conviction u/s 304 A of the IPC which will be in addition to the period which appellant had already undergone. As informant Charku Pradhan’s father had died, a consolidated amount of compensation of Rs. 6000/- to be paid to the legal heirs of the deceased by the appellant and, in default of payment of compensation amount, he will undergo S.I. for further two months. As compensation is allowed by this court the fine amount as imposed by the learned court below becomes redundant and is set-aside. Appellant bail bond is cancelled. Learned court below is directed to take step to procure the arrest of the appellant to serve out the altered sentence imposed by this court. 24. Hence, the appeal stands dismissed with above alteration in conviction and in sentence.