(1.) CHANDAN applt. 30/35 years old, of village Osri has been convicted under Part II of Section 304, I. P. C. and sentenced to five years' rigorous imprisonment, Chandan appeals.

(2.) THE facts so far as material are that on 28-4-1948, Jug Lal deceased, a grazier by profession, went with a flock of she-goats to the fields. The flock was grazing near a field of the accused, who had come there along with a cart for harvesting and taking the gram. Jug Lal's she-goats trespassed into Chandan's field. Jug Lal thereupon went after the trespassing animals to take them out. Chandan, however, abused Jug Lal and taking a bludgeon called khaivla beat Jug Lal. Jug Lal fell down on the spot and expired soon after.

(3.) AT the time the incident took place there were three other grazier boys nearabout that field, namely, Earn Chandar P. W. 3, Ratna P. W. 6 and Rulia P. W. 7. Seeing the incident Ram Chandar want to the village Bhalai and informed Kuraria P. W. 1 who, accompanied by the village chaukidar left for the police station Urlana, situate :at a distance of 11 miles from village Bhalsi and lodged the first information report at about 2. 45 p. m. The first information report reads: Today, at about 9-10 a. m. I along with Norte Son of Goga, Dhanak, resident of the village was present at my house, when Ham Chancier, Bon of Norte, boy, aged 9/10 years came to us and said 'i along with Ratna son of Norte Rulia, son of Gokal, boys, was grazing flock of sheep and goats, in the Khandian jungle. Jag Lal son of Munshi, Dhanak, resident of the village was also grazing his own flock along with us when his goats trespassed into the gramfield of Chandan, son of Bhola, caste Ror, resident of Osri, situate nearby. Chandan aforesaid was at that time filling his cart with gram sheaves, which were lying out. At the time Jug Lal Dhanak went to Chandan's field to turn out the goats, the latter having taken out a wooden khunta of the cart began to belabour him therewith. The khunta blows fell on his head and neck as a rebult of which he fell :down on the ground and is still lying there. Ratna and Rulia are still there. On receipt of this information chaudhri Tirath Das, Sub-Inspector P. W. 13 who was attached to police station Urlana in April 1948 left Urlana at about 4 p. m. and reached Bhalsi at about 8 p. m. On reaching the spot he found the dead body on a cot under a kihar tree. He prepared the injury statement and inquest report Exs. P. E. and P. F. respectively, but having failed to arrange for transport at night, it was next morning that he sent the dead body for post-mortem examination. He inspected the spot with the help of artificial light but did not find any stains of blood. He, however, noticed slight marks of struggle, as the grass appeared to be trampled. From the field of the accused gram plants appeared to have been out and removed. He then recorded the statements of the eye-witnesses on that night.

(4.) THE case states that on 29-4-1948 at about 6 p. m. the accused was produced before chaudhri Tirath Das, Investigating Officer. On enquiry from the accused about the whereabouts of the weapon of offence the accused replied that he had refixed it in the cart and would go and produce it, Chandan thereupon took chaudhri Tirath Das and others to the village at a distance of more than a mile, and pointed out the wooden cart parking near his house and unfixed danda Ex. P-l from the upper side of the cart. The danda was taken into possession: vide memo. Ex. P. D.

(5.) BEFORE coming to the examination of the various contentions raised in this case I find in the evidence given by Mange Ram, lambardar that on 29-4-1948 in the morning Mange Earn, Hukam Chand, Ram Sarup lambardar and one or two others, were sitting in thec haupal discussing over the turn of water when Chandan accused came there and confessed that he had committed crime requested them to get him a pardon. The confessional statement ascribed to Chandan runs: "jug Lal's shegoats had trespassed into my land. Out of anger I have struck him with a khalwa. "

(6.) DOCTOR Haqiqat Rai P. W. 2 performed the post-mortem examination on the body of Jug Lal on 29-4-1948 at 6 p. m. and found the following injuries on that body: (1) contused wound on right index finger, at inter phalangeal joints, distal and middle, l" x 3/4" x skin deep; (2) contusion l" x 1/4i" on the chin, colour bluish; (3) contusion right side face, maxillary and temporal region 1 3/4" x 1/4" colour bluish; (4) contusion, left side face, temporal and maxillary region 3" x 2" ; (5) contusion, forehead 1/2" x 1/4" about the middle close to the eyebrow level; (6) punctured wound 1/3" x 1/3" x 1/3" on the bridge of the nose right side; (7) contusion on the left side of forehead 2? x 1 3/4" continuous with injuries nos. 4 and 5 above; (s) contusion on the left side of the neck 2 1/4 x 1 2/3"; (9) contusion on the left side of the chest 5 1/2 x 3 1/2"; (10) contusion 3" x 1/2" on the left elbow region; and (11) contusion 2" x 11/2 "on the left elbow region.

(7.) DEATH in the opinion of Doctor Haqiqat Rai was due to shock as result of injuries enumerated above. He further stated that some blood could have come out from wounds Nos. 1 and 6, and added that causation of injury No. 8 by a projected splinter line P-l was not impossible.

(8.) KURARIA P. W. 1, and Chandar P. W. 3, Ratna P. W 6, Hukman P. W. 8, Amar Singh alias Guchi P. W. 9. Mange Ram P. W. 10 and Ram Sarup P, W. 11 appeared at the trial in support of the prosecution case.

(9.) NOW, the trial Ct. has not acted upon the evidence given by Hukman P. W. 8 Amar Singh alias Guchi P. W. 9. The judgment of the trial Ct. on this point proceeds upon the basis that Hukman P. W. 8 and Amar Singh alias Guchi P. W. 9 not having been mentioned in the first information report, it was not safe to rely upon the evidence given by them at the trial.

(10.) MR. D. N. Aggarwal contends that it would not be safe to act upon the evidence of Manga Earn. He points out that in the first place according to the evidence of Mange Earn, the extra-judicial confession was made before Hukam Chand, Ram Sarup lambardar and one or two others in the village chaupal on 29-4-1948. It is again in the evidence of Mange Earn, P. W. 10 that at the time the extra-judicial confession was made the Sub-Inspector was in the village. Counsel next points out that in cross-examination Mange Earn stated that before Chandan applt. confessed his guilt to him he had told Chandan that the police was in the village and that if he admitted his guilt, he would get him pardon from the Sub-Inspector. On these facts I find that the contention raised by Mr. Aggarwal has considerable force and I rule out the evidence of extra-judicial confession in determining the guilt of the applt.

(11.) MR. Aggarwal next contends that the recovery of the danda P-l is a neutral circumstance on the facts of this case. The danda was not found to be stained with blood and it was fixed at the time on the cart. In my view, the recovery of an ordinary danda not stained with human blood is a circumstance which does not connect the accused with the crime.

(12.) MR. D. N. Aggarwal then urges that children are a mast untrustworthy class of witnesses, for when of a tender ago they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are gently influenced by fear of punishment, by hope of reward, and by desire of notoriety. He bases himself in this connection on the reasoning in Abbas Ali v. Emperor ,a. l. R. (20) 1933 Lah. 667:34 Cr. L. J. 606. This matter came up before the Judicial Committee of the P. C. in Bhojraj v. Sitaram A. I. R. 23 1936 P. C. 60:160 I. C. 45. Lord Roche delivering the judgment in that case said : Evidence substantially true not infrequently assumes too perfect a form and witnesses, such as children, not infrequently get a story by heart which is nonetheless a true story. The real tests are how consistent the story is with itself, how it stands the test of cross-examination and how far it fits in with the rest of the evidence and the circumstances of the case.

(13.) APPLYING the test laid down in Bhojraj v. Sitaram A. I. R. 33 1936 P. C. 60: 160 I. 0. 45 to the facts of this case I find it indisputably established that Ram Chandar P. W. S was the person who carried the news of the incident to Kuraria p. W. 1. In the information that he gave to Kuraria P. W. 1 he expressly stated that one or two goats of Jug Lal had trespassed into Chandan's field which Jug Lal deceased turned out soon after. But Chandan took khalwa out of bis cart and started beating Jug Lal with it. On receipt of this information, as mentioned already, Kuraria left village Bhalsi for the police station Urlana where he lodged the first information report at about 2. 45 p. m. on that date. (After discussing the evidence his Lordship proceeded): Giving the matter my very careful considera

tion I come to the conclusion that the evidence given by Ram Chandar P. W. 3 and Ratna P. W. 6 is substantially true in all material particulars and I find that Chandan applt. caused injuries to Jug Lal deceased which proved fatal. (14.) AS mentioned above, Chandan has been convicted under Part II of Section 304, I. P. C. It is not disputed before me that the facts of this case, if true, fall within Part II of Section 304, I. P. C. and that being so, I maintain the conviction of Chandan under Part II of Section 304, I. P. C. (15.) BUT considering the cause of the fight and the injuries caused by Chandan to Jug Lal I think that the sentence imposed upon him is somewhat excessive and reduce it to rigorous imprisonment for three years. (16.) IN the result while maintaining the conviction of Chandan under Part It of Section 304, I. P. C. , I reduce the sentence imposed upon him from five years' rigorous imprisonment to that for three years' rigorous imprisonment.