M. L. MALIK, J. ( 1 ) THE following judgment of the Court was delivered by Malik, J: Appellant Bilas Rao Hardikar has been convicted under section 302 of the Indian Penal Code for the murder of his cousin Dilip Hardikar and sentenced to suffer imprisonment for life. ( 2 ) THE prosecution story may be briefly stated: Hardikars lived in Baria Ghat Ward of Saugor Town. They once owned considerable property, a big house with a big compound. On partitions being effected between the co-sharers, they occupied their separate living apartments. But the Angan and the cattle-shed were being used in common. The access to the cow-shed lay through Diwakars portion or through Angan. It so happened that on 25. 3. 1980, Dilip chopped on a Babul tree to which Shankar Rao Hardikar objected. Shankar Rao Hardikar is father of the appellant Bilas Rao ). Dilip gave him a fifthy abuse and it is said, Shankar Rao retorted that the hands which had cut the tree, shall be cut to pieces. The matter rested there. Nothing untoward happened for six days. ( 3 ) ON 31. 3. 1980, at about 9 p. m. , Dilip Hardikar went to milk the cow which was tied in the Angan. It was summer and the cow was not tied under the shed (called Goshala) which was stuffy. Since the lights had, gone off due to power failure, Dilip had taken a lantem with him. He hung it on the door pog at AT (see map Ex. P-5 ). At that very time, Mukesh (P. W. 5), Vivek (P. W. 15), the two brothers of Dilip, and Rajendra Dube (P. W. 14) had come out of the house and were standing on the Chabutra in front. Power failure had made them come out. While they stood chatting, they heard Dilips shrieks from towards the Angan: "daudo Bachao-Muze Bilas Talwar Se Mar Dal Raha Hai. ' On hearing his shrieks, they rushed in. They saw Dilip holding the sword point firmly in his grip and Bilas trying to pull it away. Bilas succeeded since Dilip could not hold fast the sharp edge which was cutting the thumb and the palm. AS soon as the sword was released from Dilips glip, Bilas gave a blow on the right knee and another on the elbow joint and the third on the shoulder. Bilas succeeded since Dilip could not hold fast the sharp edge which was cutting the thumb and the palm. AS soon as the sword was released from Dilips glip, Bilas gave a blow on the right knee and another on the elbow joint and the third on the shoulder. He had aimed the blow at the neck when Mukesh shouted at him Kya Mar Daloge. Bilas then retreated, threatening those who had come, to keep away or else he would kill them as well. The noise had attracted Rameshwar Chourasia (P. W. 13) and Dinesh Gupta also on the scene before Bilas could make good his escape. Sulbha (sister of Dilip) had also come. Dilip was in senses when he was lifted and rushed to the hospital by Sulbha, Vivek and Rajendra Dube. They had taken him on a three wheeler. Dilip died on way before he could reach the hospital. Mukesh (P. W. 5) had straight gone to the police station to lodge a report. The report is Ex. P-18, recorded within half an hour of the incident. After lodging the report. Mukesh went to the hospital out then, Dilip had breathed his last. ( 4 ) THE post-mortem examination of the dead body revealed the following injuries: 1. An incised wound 5 X 3- 1/2 cutting away the muscles and both radius and ulna bones, over the posterior of the left elbow. 2. An incised would 6-1/2 X 5 cutting the underlying muscles, blood vessel and the upper end of tibia bone. The knee joint was exposed. 3. An incised wound over the forehead, midpart, placed vertically 2 x 1/2 bone deep. 4. An incised wound 3 x 1/4 x 1/4 over both shoulders. ( 5 ) AN incised wound i" x 1/4 bone deep at the bone of the right thumb, palmer aspect, and ( 6 ) TWO incised wounds over the right arm, lower third region, above elbow joint, 3" X I /4 skin deep. The first two injuries were grievous and the rest simple. The excessive haemorrhage from injury No. 2 (probably the blood vessel referred to was the femoral vessels which had been cut) had accused death. 5. Bilas Rao was, it is alleged, absconding after the crime. He came to be arrested on 6. 4. 1950. The first two injuries were grievous and the rest simple. The excessive haemorrhage from injury No. 2 (probably the blood vessel referred to was the femoral vessels which had been cut) had accused death. 5. Bilas Rao was, it is alleged, absconding after the crime. He came to be arrested on 6. 4. 1950. On his information while in police custody, the sword which was the weapon of offence, was recovered from a well. He informed that he had burnt away his blood-stained clothes. He led the police to the spot where from ashes of the burnt clothes were collected. The Chemical Analyser found blood in the ashes and on the sword. The Serelogists report has not been obtained on the origin of blood. 6. The conviction of the appellant rested on the testimony of the three eye-witnesses Mukesh (P. W. 5), Vivek (P. W. 15) and Rameshwar Chourasia (P. W. 13 ). Rajendra Dube (P. W. 14) has turned hostile to the prosecution. Mukesh and Vivek have given consistent version how they heard the shrieks of Dilip, rushed in and saw Bilas and Dilip struggling over a sword. They saw Bilas striking with the sword after he succeeded in getting it released from Dilips grip Mukesh had shouted at Bilas when he was going to strike at the neck of Dilip. Rameshwar Choursia had heard the shouts of Mukesh which made him rush into the Angan. He saw Bilas running away with the sword. ( 7 ) THE learned Additional Sessions Judge has believed these witnesses. The F. I. R. lodged without loss of time corroborates their testimony in all material details. The names of all the witnesses who had rushed in are mentioned in the F. I. R. ( 8 ) THE learned for the appellant tried to assail the evidence on the ground of interestedness. He contended that Mukesh and Vivek were real brothers of the deceased and were interested in involving Bilas in the crime on account of the quarrel over the Babul tree which had been cut only a few days back. Certain utterances made by Shankar Rao were taken seriously by them. The two brothers and Rameshwar Chourasia were involved in bumber of cases of marpit and were also facing proceedings under section 107 of the Code of Criminal Procedure. Certain utterances made by Shankar Rao were taken seriously by them. The two brothers and Rameshwar Chourasia were involved in bumber of cases of marpit and were also facing proceedings under section 107 of the Code of Criminal Procedure. Dilip, it appears, was attacked by some 3 or 4 unknown persons as Diwakar Rao (D. W. 1) wants the Court to believe. Diwakar Raos room was the access to the Angan and he was then in the room reading newspaper. He heard Dilips shouts, came out to see but by then the four assailants had run away. He was told by Padmakar Rao (D. W. 4) that he had seen four persons escaping through the lane near the latrine. ( 9 ) THE learned Additional Sessions Judge has disbelieved the two defence witnesses Diwakar Rao and Padmakar Rao and for very cogent reasons. Diwakar Rao was on chemical terms with Dilips family. He raised no alarm, did not try to help Dilip, did not rush him to the hospital nor did he go to the police station to lodge a report. He remained absolutely indifferent. He tried to suggest that he had closed the door after he had let Dilip in to milk his cow. How was it that Mukesh, Vivek and Sulbha should reach to pick up the wounded when the access to the Angan was closed by Diwakar Rao. He admits that they had all come. ( 10 ) THE learned counsel for the appellants tried to suggest that the F. I. R. was later on manipulated. The shouts of Dilip could not reach the place where Mukesh, Vivek and Rajendra were standing. And even if they rushed in on hearing the shouts, they could not see the assault since the wall of the Goshala intervened. For that reason, the prosecution had shifted the place of incident from Goshala to Angan. ( 11 ) THE learned Additional Sessions Judge has rightly brushed aside these suggestions. The F. I. R. was not a manipulated document. The shrieks of Dilip could reach the Chabutra where the three witnesses were standing. Dilip, when attacked, had retreated into the Angan and was trying to snatch away the sword. Mukesh, Vivek and Rajendra had reached when this scuffle was going on. ( 12 ) IN our appraisal of the evidence, Mukesh and Vivek are fully reliable witnesses. The shrieks of Dilip could reach the Chabutra where the three witnesses were standing. Dilip, when attacked, had retreated into the Angan and was trying to snatch away the sword. Mukesh, Vivek and Rajendra had reached when this scuffle was going on. ( 12 ) IN our appraisal of the evidence, Mukesh and Vivek are fully reliable witnesses. The F. I. R. corroborates them on all material details. The F. I. R. does not seem to be manipulated. We have not the slightest doubt that Bilas was the assailant. ( 13 ) THE question is what offence has been committed. Only two injuries here grievous. They were around the elbow and the knee. The injuries on the shoulders and palmer aspect were simple. Was it that the assailant wanted 10 chop of the arms and legs or was it that he intended to kill the victim? The injuries being on non-vital part of the body, the intention was probably to chop off the arms and legs. The doctor who performed the post-mortem, says that the injury No. 2 was not imminently dangerous to life through it was likely to cause death. In our view, therefore, the offence would fall under section 304 Part II, I. P. C. We set aside the appellants conviction and sentence under section 302, I. P. C. and instead, convict him under section 304 Part II, I. P. C. and sentence him to suffer R. I. for 7 years. Conviction set aside. .