ORDER (ORAL) Ashok Agarwal, J. - An order of conviction, passed on the 19th of October, 1977, by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 419 of 1976, is impugned in the present appeal. The appeal was originally filed by both the accused who are convicted at the trial. Pending the appeal, accused No. 2 died. The appeal, therefore, has abated as far as he is concerned. The appeal is how prosecuted by accused No. 1 alone. By the impugned order, the accused are convicted under Section 325 of the Indian Penal Code and are sentence to suffer rigorous imprisonment for three years. 2. At the trial, the two accused were charged under Section 302 and Section 302 read with Section 34 of the Indian Penal Code for having, on the 24th of June, 1976, at about 4.00 p.m. in Vikas Mandai Hutment at Sewree Cross Road, Wadala, caused the murder of Ganpat Raghunath Naman. The facts of the case are short. The deceased Naman and both the accused were on friendly terms. In the morning of the day of the incident all the three had consumed alcohol. They were all heavily drunk. In the afternoon the deceased Ganpat went to the hut of his sister P.W. 1 whom Laxmibai with when he was putting up. After taking meals he was lying in the passage outside the hut of Laxmibai by the side of the door of her hut. At about 4.00 p.m. both the accused appeared and dragged Ganpat through the passage lying between the hut of Laxmibai and that of the accused. They carried him to an open ground and hurled him on the ground, as a result of which Ganpat became unconscious. It is the case of the prosecution that, at the material time, the accused had inflicted fist blows on Ganpat. The incident was partially witnessed by P.W. 3 Sunita and P.W. 4 Sitabai, who are residents in the close vicinity. It was witness by P.W. 1 Laxmibai also. After Ganpat fell down and nobody bothered to render assistance. He kept lying there till about 7.00 p.m. when Vinayak, a brother of Ganpat, returned from his work. He arranged to remove Ganpat to the K.E.M. hospital. 3. On admission at the hospital, Ganpat was examined by P.W. 5 Dr. Ajgaonkar. It was witness by P.W. 1 Laxmibai also. After Ganpat fell down and nobody bothered to render assistance. He kept lying there till about 7.00 p.m. when Vinayak, a brother of Ganpat, returned from his work. He arranged to remove Ganpat to the K.E.M. hospital. 3. On admission at the hospital, Ganpat was examined by P.W. 5 Dr. Ajgaonkar. A constable on duty at the hospital made a phone call to the Bhoiwada Police Station and informed of the admission of Ganpat to the hospital. P.W. 7 Kashinath Patil, A Sub-Inspector attached to the Bhoiwada Police Station, on receipt of the information, reached the hospital at about 9.30 p.m. He recorded the complaint of Ganpat (Exhibit 15). Sub-Inspector Patil traced and arrested the accused at about 2.00 p.m. on the next day i.e. 25th of June, 1976. S.I. Patil, thereafter, recorded the statements of Laxmibai, Sitabai, Sunita and one Parshuram Narayan, who are witnesses to the incident in question. Ganpat expired on the next day of the incident at about 6.30 p.m. His complaint (Exhibit 15) was, thereafter, treated as a 'dying declaration'. 4. P.W. 6 Dr. Gupta carried out the autopsy on the corpse of Ganpat. After completing the investigation a charge-sheet was submitted and the accused were prosecuted. 5. The accused pleaded not guilty. As per accused No. 1 he himself, his brother - Accused No. 2 as also the deceased Ganpat were so heavily drunk on the day in question that they were obvious of the happenings around them. He stated that after drinking liquor Ganpat returned to his place. He characterised the evidence of the eye-witnesses as interested and false. 6. On an appraisal of the evidence, which was led at the trial, the learned Additional Sessions Judge was pleased to record the impugned order of conviction and sentence against the accused. 7. I have, with the assistance of Shri Gupte, the learned Advocate appearing in support of the appeal, and Smt. Randive, the learned Public Prosecutor, gone, through the entire evidence on record. I find that the evidence of P.W. 1 Laxmilal P.W. 3 Sunita and P.W. 4 Sitabai is consistent and worthy of credence. All the three are residents of the locality. Their presence is, therefore, natural. As far as Sunita and Sitabai are concerned, they do not claim to have witnessed the entire incident. I find that the evidence of P.W. 1 Laxmilal P.W. 3 Sunita and P.W. 4 Sitabai is consistent and worthy of credence. All the three are residents of the locality. Their presence is, therefore, natural. As far as Sunita and Sitabai are concerned, they do not claim to have witnessed the entire incident. They have deposed only to that part of the incident which they have seen. They have not tried to exaggerate. They have not tried to claim that they have witnessed the entire incident. This gives a ring of truth to their testimony. As far as Laxmibai is concerned, she is the sister of the deceased Ganpat Ganpat was sleeping in the passage near the door other hut when the incident in question took place. Her presence also is natural. She has deposed to the entire incident as already narrated in the proceeding paragraphs of this ORDER. I do not find that any material has been elucidated from either of the aforesaid three witnesses to cast a doubt on the veracity of their evidence. In addition, we have the evidence in the form of a complaint of the deceased himself which is at Exhibit-15. Since the limbs of Ganpat had been immobilised the statement is not signed by Ganpat, his thumb impression is obtained. The version in respect of the incident which is found in the complaint, which after the death of Ganpat has assumed a character of dying declaration, lends further assurance to the case of the prosecution. In the circumstances, I have no hesitation in accepting the prosecution case that the accused dragged the deceased Ganpat from near door of the hut of Laxmibai through a passage to an open space near a sink where they dropped him on the ground. In the process they also gave fist blows to Ganpat 8. Shri Gupte, the learned Advocate appearing on behalf of the accused, has strenuously submitted that even if the entire case of the prosecution is accepted no offence under Section 325 I.P.C. can be said to have been made out He pointed out that as per the version of the deceased Ganpat himself, as found in the First Information Report cum dying declaration, the relations between the accused and himself were cordial. As per the statement of Ganpat, accused were his neighbours. They had called him in their room. They had liquor together. As per the statement of Ganpat, accused were his neighbours. They had called him in their room. They had liquor together. Ganpat has further gone on to state that there was no quarrel between him and accused No. 1. According to him, the accused assaulted him as both of them were heavily drunk. 9. In my view the submission of Shri Gupte is justified on the evidence on record and the same deserves to be accepted. The only role which is attributed to the accused is that both of them assaulted him with fist blows on his head, chest and neck. This is what is stated by Ganpat in his statement (Exhibit 15). As far as the other witnesses are concerned, the accused is alleged to have dragged Ganpat to an open space and hurled him on the ground. After Ganpat fell down accused Nos. 1 and'2 gave fist blows on the chest of Ganpat. According to the version of P.W. 3 Sunita all the three were drunk. They were exchanging abuses. They were pushing each other. While pushing, each other they went towards the open space. Even if the above evidence is accepted at its face value it would not be proper to infer that the accused had the intention or had the knowledge of causing grievous hurt. 10. As far as the medical evidence is concerned. P.W. 5 Dr. Ajgaonkar found a hemotoma in post cervical region below occuput He found tenderness overt the spines. The patient had inability to move his four limbs. His breathing was diaphrahmatic. He stated that Ganpat was examined with the help of X-ray when it was noticed that the location of the servical vertebra was 4-5. The medical case papers are to be found at Exhibit-14. P.W. 6 Dr. Gupte carried out the autopsy on the corpse of Ganpat. He found a swelling at the nape of the neck 3" X 3". He found that internal injuries there was subcutaneous haemotoma in nape of the neck corresponding to the external injury. There was a dislocation of C-4. There was also haemorrhage and softening in the spinal cord of cervical region. According to Dr. Gupte the cause of death was traumatic haemotomyelia of cervical cord, and respiratory failure. 11. He found that internal injuries there was subcutaneous haemotoma in nape of the neck corresponding to the external injury. There was a dislocation of C-4. There was also haemorrhage and softening in the spinal cord of cervical region. According to Dr. Gupte the cause of death was traumatic haemotomyelia of cervical cord, and respiratory failure. 11. The above evidence shows that the accused and the deceased Ganpat were neighbours and were on friendly terms; they had, consumed liquor on the day in question; they were so heavily drunk that they did not know what was happening. There was no cause for the assault except the State of drunkenness in which the accused and deceased were at the time of the incident The accused have not used any weapon of assault They have merely pushed and dragged the deceased and have given him fist blows. I have already referred to the medical evidence on record. It is unfortunate that the deceased Ganpat died on account of the incident in question. However, it is difficult to hold that the above evidence can bring home a guilt of causing grievous hurt. The order of conviction under Section 325, in the circumstances, will have to be set aside and in its place the appellant accused No. 1 is convicted for an offence punishable under Section 323 of the Indian Penal Code. 12. I have heard Shri Gupte and also Smt. Randive on the point of sentence. It appears that the accused No. 1 has undergone a sentence of about two months pending the trial. In my view, ends of justice will be met if the appellant-accused No. 1 is sentenced to the period already undergone. Appeal is partly allowed in the above terms. In view of the reduction of sentence the bail bond of the appellant-original accused No. 1 stand cancelled. Appeal allowed accordingly.